PA State Police, Aplt. v. Grove, M., PA State Police, Aplt. v. Grove, M.

This is Justice Wecht’s concurring opinion in Pennsylvania State Police v. Grove, addressing interpretation of the Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S. §§ 5701–5782.
The statutory definition of “oral communication” protects utterances by a person who "possess[es] an expectation that such communication is not subject to interception under circumstances justifying such expectation."
Pennsylvania precedent has at times blended the Wiretap Act’s statutory expectation of non‑interception with the constitutional reasonable expectation of privacy standard under the Fourth Amendment and the Pennsylvania Constitution.
Key prior decisions discussed: Blystone (applying constitutional analysis to interception where a party-consent wire was used), Henlen (applied Blystone reasoning to statutory definition), McIvor (recognized the two expectations can diverge), and Agnew (held expectation of non‑interception requires a reasonable expectation of privacy).
Justice Wecht argues Agnew wrongly conflated statutory and constitutional standards and advocates returning to a textual reading: protect communications when the speaker justifiably expects non‑interception unless circumstances indicate otherwise.
Despite arguing for reevaluation, Justice Wecht concurs with the majority because Agnew is binding and, under Agnew, the recorded communications in this case lacked a reasonable expectation of privacy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wiretap Act’s "expectation of non‑interception" is coextensive with constitutional reasonable expectation of privacy	Grove (or appellant challenging recordings) argued the statutory expectation differs from the constitutional privacy expectation and may protect conversations even when privacy is low	PSP argued Agnew controls: no reasonable expectation of privacy means no justifiable expectation of non‑interception, so no "oral communication" under the statute	Under binding Agnew precedent, court held lack of reasonable expectation of privacy defeats a justifiable expectation of non‑interception, so no Wiretap Act violation
Whether courts should treat statutory "non‑interception" inquiry independently of constitutional privacy tests	Plaintiff argued statute should be interpreted by its plain language to focus on whether speaker justifiably expected non‑interception under circumstances, independent from constitutional test	Defendant argued prior precedent (Agnew) requires using privacy principles to assess justifiability	Justice Wecht: statutory reading should be independent, but Agnew is binding; applied Agnew to find no protection here

Agnew v. Dupler, 717 A.2d 519 (Pa. 1998) (holds that a justifiable expectation of non‑interception requires a reasonable expectation of privacy)
Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988) (applies Fourth Amendment consent‑to‑monitoring principles to electronic surveillance)
Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989) (applies Blystone reasoning to statutory definition of "oral communication")
Commonwealth v. McIvor, 670 A.2d 697 (Pa. Super. 1996) (recognizes expectation of privacy and expectation of non‑interception can differ and are distinct inquiries)
United States v. Caceres, 440 U.S. 741 (U.S. 1979) (consent by one party permits electronic surveillance without violating Fourth Amendment)
United States v. White, 401 U.S. 745 (U.S. 1971) (plurality opinion endorsing one‑party consent rule for electronic interception)
Pennsylvania State Police v. Grove, 119 A.3d 1102 (Pa. Cmwlth. 2015) (Commonwealth Court decision at issue below)