*1
Argued March Decided March *2 DeFino, Finestone, Michael Anthony Aaron Philadelphia, for Lawrence Alexander. Marshall, Burns, Jr.,
Catherine Hugh J. Philadelphia, for Com. FLAHERTY, ZAPPALA, CAPPY, CASTILLE,
Before NEWMAN, NIGRO and JJ.
OPINION THE ANNOUNCING JUDGMENT
OF THE COURT CASTILLE, Justice.
The issue before this Court is whether electronically inter- cepted conversations in a physician’s office between physi- the cian (appellant) and his patient regarding illegal drug activity warrant suppression where the interception was undertaken without a warrant but with patient’s the consent and after court determination that probable cause existed for seizure of the below, conversations. For the reasons set forth affirm we the ruling Court’s affirming the trial court’s denial of appellant’s suppression motion.
The facts of the judice case sub are in dispute. not The evidence establishes appellant, physician, licensed patient the inmet appellant 1975 when began treating the patient. Appellant stopped providing medical treatment to patient the However, for a number of years. appel- lant, in Act, violation of the Health and Safety began writing pharmaceutical prescriptions for patient the for the controlled Dilaudid, substance a narcotic analgesic and powerful pain killer to which patient the was addicted. In some instances patient the paid appellant in cash and at other times appellant patient and the engaged a bartering system whereby appel- lant supplied patient the with in exchange Dilaudid for the appliances him of such as delivery to various stolen
patient’s equipment video and television's. expand enterprise
In decided to appellant to illegally with the sell Dilaudid to addicts conspired patient writing Appellant began pre- Dilaudid appellant’s on behalf. as not to pills. for for batches of 100 So scriptions patient the detected, pre- the patient directed the have the Upon redeeming at different locations. scriptions filled pills drug the to other patient the would sell prescription, illegal proceeds addicts and would then divide the from illegal continued Appellant sales with also to write appellant. patient’s for the own addiction. prescriptions May drug arrested on unrelated patient was However, charges were on charges. dismissed June Nevertheless, 1988, for who patient, lack of evidence. custody overcame his addiction Dilaudid while on change way he of life pending charges, decided wanted his began police with their cooperating better and drug activity. investigation appellant’s illegal dispensing Hence, release, patient approached after his Detec- shortly Lynch Philadelphia tive Police Narcotics Unit. illegal of appellant’s drug operation detailed the extent patient experiences Lynch and told personal based Detective cooperate investiga- he was in an willing with appellant’s tion of activities. informant, in July patient,
On now coordination police investigators, appel with arranged meeting in the lot of At that parking lant medical office. *4 location, and again illegal resumed his activities appellant patient wrote a for the for 100 and the prescription Dilaudids agreed proceeds would the sale of they two that share then to a drugs. accompanied patient were filled. Later pharmacy prescriptions where him that day, patient telephoned appellant same told pay would the sale of appellant profits he share from 11, 1988. July the Dilaudid on meantime, electronically In the order to monitor the appellant future communications with under patient’s Pennsylvania Wiretapping and Electronic Surveillance Act of (the “Act”),1 “Wiretap Act” or the Commonwealth ob- patient’s tained the consent wear a concealed recording 11, 1988, person. July device on his On the Commonwealth also obtained a court order from the Court of Pleas Common of Philadelphia County authorizing the use of electronic sur- equipment veillance for a of ten period days intercept and one-party record the consensual conversations between the patient appellant.2 Consequently, patient wore “body consisting wire” microphone a concealed connected to 11, 12, tape recorder when he met with on appellant July and 15 of 1988.3 All of the recorded conversations took place in appellant’s medical office.
As a
investigation,
result
the police
appellant
arrested
him
сharged
with
illegally prescribing
numerous counts of
substances,4
controlled
prescribing controlled substances to a
person known to
drug-dependent,5 delivery
of a controlled
§
seq.
1. 18 Pa.C.S.
et
Specifically,
provided,
pertinent part:
the order
application
good
IT APPEARINGthat the
has been made in
faith in
pending
investigation
furtherance of
criminal
and that there is
reason to believe the aforementioned residence and the
un-
other
premises
activity
known
will be used in
connection
criminal
and,
affidavit,
based
that there is
cause to believe
activity
ongoing;
the criminal
ORDERED,
5704(2)
pursuant
Chapter
IT IS
to Section
Title
Schaeffer,
Pa.Super.
and Commonwealth v.
(1987),
Ct.
tronic surveillance and record con- occurring versations inside the office of Lawrence Alexander located Avenue, PA., Rising Philadelphia, any at 6190 Sun and at other consenting location Lawrence leads or Alexander directs the individu- to, period days. al for ot [sic] time not to exceed ten The conversations between and the informant were record- days except July ed on these apparently when the recorder malfunctioned. 780-113(a)(14). § 4. 35 P.S. 780-113(a)(13).
5. 35 P.S. *5 motion filed a substance,6 conspiracy.7 Appellant and criminal that the record- on the basis tape recordings suppress to were made without patient with his of his conversations ings court denied hearing, the trial Following search warrant. of ultimately appellant convicted suppress motion to substances, 134 controlled illegally prescribing 134 counts of known person substances to of controlled prescribing counts delivery of a controlled 98 counts of drug-dependent, to be The trial substance, conspiracy. of criminal one count (12) twenty- of to to a term twelve sentenced court (24) affirmed The Court imprisonment. years four This followed. appeal of sentence. judgment Pennsylva- § 8 of the that under Article claims Appellant a search Constitution, to obtain required were nia in his profes- his conversations intercepting to prior warrant disagree. office.8 We sional Act outset, Pennsylvania’s Wiretap although
At electronic wiretapping and most other limitations on provides see communications, 5703,9 § war- 18 Pa.C.S. interception 780-113(a)(30). § P.S. 6. 35 §
7. 18Pa.C.S. Pennsylvania provides: § 8. Article 8 of the Constitution houses, persons, papers in their people shall be secure seizure, warrant searches or and no possessions from unreasonable any things person or shall issue any place or to seize to search be, may describing nearly nor without them as as without cause, by the affiant. supported by or affirmation subscribed to oath interception provided: effect at the time of the 9. Section 5703 in of wirе or oral communications. Interception, disclosure or use guilty of a provided chapter, person Except in this as otherwise felony degree if he: of the third (1) any willfully intercepts, intercept, procures or other endeavors intercept any oral commu- person intercept or endeavor wire or nication; (2) any person the willfully to disclose to other discloses or endeavors communication, or evidence derived any wire or oral contents of therefrom, knowing having to know that the information or reason through interception a wire or oral communica- was obtained tion: or any willfully contents of wire or oral uses or endeavors to use the therefrom, communication, knowing having or evidence derived through was obtained reason to know that the information interception of a wire or oral communication. electronic interception rantless cоmmunications under 5704(2) may performed of the Act certain circum- party interception. stances where one consents At the 5704(2) case, § interception time at issue provid- that investigative any ed or law enforcement officers or person *6 acting request at the direction or legally such officers could a wire or oral intercept involving communication suspected criminal activities where:
(i) communication; such officer or is a person party to the (ii) parties one to the communication has given prior However, interception. consent to such no interception under this shall paragraph Attorney be made unless the or a deputy attorney general designated General writing General, Attorney attorney, or the district or an attorney designated writing assistant district by the attorney, county district of the interception wherein the is to made, has reviewed facts and is satisfied that the сonsent is voluntary given prior approval and has for the interception.... 5704(2)(i)— ( ii).10 §
18 Pa.C.S. Here, the at suppression hearing evidence demonstrated attorney assistant district from the Philadelphia Attorney’s District designated requests Office to review electronic pursuant Wiretap surveillance to the Act reviewed matter, the facts of the instant determined the infor- mant’s consent to a body voluntary, wear wire was (Amended 21, 1988, 1000, 115, 5,§ immediately October P.L. No. effective). Although constitutionality Wiretap Act is not at case, one-party issue in this this Court has held that consensual inter I, ceptions § do not violate the Fourth Amendment or Article 8 of the 450,
Pennsylvania
Blystone,
Constitution. Commonwealth v.
519 Pa.
(1988),
299,
grounds,
Notwithstanding
reasoning of
Act,
that based
argues
(1994),
Brion,
256,
539 Pa.
652 A.2d
v.
Commonwealth
in this case without
interceptions
that the
should find
Court
claim,
1,
§
To
Article
resolve
warrant violated
v.
case of
at the seminal
Commonwealth
must first look
we
Larsen,
(Zappala
549 A.2d
Blystone,
Pennsyl
JJ.,
grounds, Blystone
other
dissenting),
on
aff'd
(1990),
vania,
whether
Constitution, and found
Article
8 of the
ed
*7
(Blystone) and
Blystone,
not.
In
they
that
did
a hitchhiker at
and robbed
picked up
of his cohorts
three
robbing
the hitchhiker after
ultimately murdering
gunpoint,
consent,
an informant’s
Acting with
him of thirteen dollars.
Blystone had
recorded a conversation
monitored and
police
Blystone’s
sat in
the two
them
with the informant while
hitchhiker.
had killed the
Blystone
truck about how
claim that
the warrantless
reviewing
1,
8,§
Act
Article
the Court
under the
violated
interception
a constitutional
in
whether
order
determine
held
first,
occurred,
appel-
it “must examine:
whether
violation had
second,
privacy;
an
and
expectation
lant has exhibited
society
prepared
is one that
expectation
whether that
463-64,
Only
Recognizing to the United the Court looked counterpart, its federal upon act analysis wiretapping of the federal Supreme States Court’s
9
Supreme
Fourth Amendment. The United States
under the
held,
sum,
justifiable
have a
person
that a
cannot
Court
that a
constitutionally protected
expectation
person
will not then later reveal that conversa-
conversing
whom he is
hence, one-party
intercep-
consensual electronic
police;
tion to
prohibition
violate the Fourth Amendment’s
tions do not
v.
searches and seizure. United States
against unreasonable
Caceres,
741,
1465,
440
99
A.2d Blystone had no reason- in the statute because tional defect chose to disclose his once he expectation privacy able v. Rod- informant.” Accord Commonwealth confidence to the (one-party 548 A.2d riguez, regard- of communications interception consensual electronic 8). I, § not violate Article drug transaction did ing decided Commonwealth Blystone, after this Court year One (1989), in Henlen, which it Pa. 564 A.2d expectation lacks an person that a reemphasized principal the he discloses it to another in a communication once Henlen, the issue has no control. over whom he person of a conversation tape recording secret рerson’s was whether a Act the record- violated the where party he had with another agency governmental of a approval did not have ing party by cause a neutral finding there was no prior recording place. appel- took The authority before the judicial Jail, lant, was guard County suspected at Mercer prison jail an inmate at the belongings of stealing personal During the jail by trooper. at the a state interrogated was site, at his work appellant of the trooper’s interrogation secretly recorded their conversation. appellant tape investigation of the theft was the Commonwealth’s After concluded, complaint against filed a guard/appellant harassment, appellant at which time the alleging trooper Internal Affairs Division of recording to the turned over his com- support Police order State violating was later convicted plaint. reсording appealed Wiretap tape Act as result conviction. Act, communication” of an “oral interception
Under the circumstances, previously limited as prohibited except under Act at was defined “Oral communication” discussed. person “Any as: oral communications uttered the time is not that such communication an possessing justifying under circumstances subject interception Writing for a unanimous 18 Pa.C.S. expectation.” court, Zappala Mr. Justice wrote: *9 of of the issue whether the conversation was an
Resolution Act revolves “oral communication” under the around wheth- expectation er there was an that the communication was not subject under circumstances interception justifying expectation. Thus,
In supra, majority Commonwealth v. of this Court exception Blystone carved a limited to elec- respect Brion, tronic interceptions one’s home. a confidential informant wore a consensual wire body authorized District Attorney’s Wiretap office under Act when he marijuana.13 entered Brion’s home to As purchase a result conversation, intercepted and recorded Brion was charged possession marijuana with one count of and one count of delivery marijuana. trial taped
The court held that the conversations were grounds inadmissible on the the one-party consensual I, § interception Pennsylvania violated Article 8 of the Consti A appeal, Superior majority tution. On Court reversed. of this Court reversed the Court and remanded the holding though person matter for a new trial that even had Although interception Henlen did that the not involve a claim violat- Constitution, Pennsylvania defining ed the it is instructive in what protected constitutes a "oral communication” under the Act. case, prior judicial approval 13. Unlike the instant no was obtained proceeded body before confidential informant in Bricm with the wire. tech- thereby to another person, his communication disclosed of that conveyance to the use or rights nically relinquishing Blystone, given reasoning under communication home, expec- has a person heightened sanctity person’s of a in his home his communicаtions privacy regarding tation of I, § 8 of the Constitution.14 under Article *10 intercep- consensual held that majority therefore home are occurring within one’s of oral communications tions of a determination prior if there has been only permitted Id. at neutral, judicial authority. cause a probable in (Nix, which dissenting opinion C.J. filed a A.2d at 290 Castille, joined). JJ. Papadakos, and Brion a warrant argues requires that since Appellant from one’s intercepted by police can be before communications home, communications could be required a warrant was before Brion, however, fails to from his intercepted workplace. for several reasons. relief in this matter provide Brion, First, in here the Common- unlike the circumstances did obtain a determination aby of cause probable wealth intercep- with the judicial authority proceeding before neutral involve- tion, require judicial Act not such thоugh even the did ment.15 world, person a "Upon closing one’s home to the outside the door of
14. highest degree privacy known to our may legitimately expect the Shaw, 496, 499 society.” 383 A.2d Commonwealth finding cause Appellant’s argument that the affidavit and warrant and served on him is should have been reduced to search entirely purpose requirement would defeat the nonsensical. Such a warrant, and Once served with a search the electronic surveillance. thereby apprised intention to conduct electron- of the Commonwealth’s surveillance, fully targeted suspect aware of the would then be ic surveillance and be able to tailor his purpose and time of the electronic avoiding police accordingly, completely de- and actions conversations activities. tection of his criminal jurisdiction argument Pleas had no His that the Court of Common First, probable cause is also without merit. make a determination of required probable cause determination was for because we find that no case, which court workplace interception in this it is irrelevant the Second, although a actually probable cause determination. made the majority required the warrants for of this Court in Brion held that Court, interception be authorized electronic in home home. Second, interception not with an one’s we are faced Rather, appellant’s work- interception here occurred in Brian enunciated does not exception The limited place. decline invitation broaden apply, appellant’s and we ruling in Brion to cover the interceptions at work- circumstances of case. place under the nature, requires A its workplace, by very generally persons other in order conduct proprietor’s interaction with contact nature of with proрrietor’s business. While form, normally vary requires can parties workplace other or over whom strangers parties certain interaction third little proprietor proprietor has control about whom beyond nature of the business relation- very knows little fact, in his brief ship. himself admits open public.” Appellant’s to the Bxief at practice “medical p. be where may
While there some circumstances this Court may expectations willing recognize heightened levels workplace, example where communi- *11 (such cation to be internal as sought intercepted strictly which arise an may employee communications between employer) regards something or where the communication which otherwise common law or may protected by be statute,16 present the case at fails to such circumstances. hand (who Here, anyone including have patient the could been officer) obligаtion keep was under no conversa- subject tions not confidential was otherwise only explained imposed procedure the that it such a the Court because Assembly specifically provided judge Superior the General that a regarding Court other make cause determinations electronic Hence, (18 5708). only consistency § surveillance Pa.C.S. then did require judge that Court also this Court make “probable there is a determination where cause/warrant” home, procedures consensual surveillance in one’s not because protection. necessary arguments were These to ensure constitutional appellant. provide no relief for employed by suspect workplace, 16. Where an informant is in tire suspect might arguably expect degree entitled to a different relationship employer/employee (e.g. protec- as a result secrets, issues, however, etc.). tiоn of Such are not before us in trade will have resolution date. matter and to wait at a later control; appellant’s thus, the physician had no reasonable expectation that patient would in fact keep his oral com- munications private.
Nevertheless, appellant argues that enactment the patient/physician privilege, the legislature has deemed his expectation of privacy regarding communications with a pa Therefore, tient to be reasonable. argues, he protected he is under the Act. Appellant misconstrues the privilege.
Even cursory the most reading of the statutory privilege makes it clear argument lacks merit:
5929. Physicians not to disclose information. allowed,
No physician matter, shall be in any civil to disclose any acquired information which he attending the in patient professional capacity, and which was necessary to enable him to act in capacity, ... without consent of said patient, except civil matters brought by such patient, for damages on account of personal injuries. Pa.C.S. 5929. As is obvious from the language
statute, the privilege applies only civil matters. Further- more, by statutorily recognizing the patient/physician privi- lege, Assembly the General conferred unto the patient, not the doctor, a heightened expectation of privacy with respect communications between doctor and himself as it limits what physician can divulge to third parties. Absent the patient’s waiver of this protection a lawsuit by patient doctor, against the a physician is expressly prohibited from using communications physician between the patient civil cases. Id. purpose of the patient/physician privilege is to:
create a confidential atmosphere which patient will be encouraged to possible disclose all information bearing on *12 his or her illness so that the physician mаy render effective treatment.
In re: June 1979 Allegheny Cty. Investigating Jury, Grand 490 Pa. A.2d As demonstrated this above, Court’s language privilege designed was for protection and proper patient, treatment of the physi- not the may any at patient is one which the waive privilege cian. The knowledge or consent time, regardless physician’s to such ability any privilege waive patient’s thereof.17 The to parties communications third privileged otherwise disclose appellant’s privilege reliance to upon demonstrates misplaced. patient/physi- is The protect illegal his activities could appellant no basis which privilege provides cian the instant expectation have a reasonable had matter.18 that his expecting had for commu- only basis patient was that his private
nications with his would remain keep private the conversations order to avoid patient would drugs to traffic prosecution agreement illegally. for their We as recognize grounds are not to such a basis simply prepared privacy.19 for a reasonable above, set was required For the reasons forth no warrant electronically intercepted appel- before the Commonwealth activities. Accord- regarding illegal lant’s conversations patient any example, may request 17. For a at time that certain records physician regarding patient physi- be transferred another (i.e. lawyer), opinion) person (e.g. cian for a second or another a or that trial, thereby possibly subjecting at such matters be used the informa- by jury strangers. tion review a Further, it is while in most instances not difficult determine the home, identify specific physical person’s location constitutes which person’s workplace a location which constitutes a far different place where can be is a matter. A one works circumscribed where one office, proprietor working single as a person sole such in a or it could perceived physical to be the entire limits of the Commonwealth if traveling Argu- one for that were a salesman or Governor matter. worker, ably, factory argue if one were a he or she would that the “workplace” necessarily factory surrounding its includes entire environs, though factory necessity interacts with even worker “workplace” hundreds or even thousands of workers as in a steel production facility. By priva- adopting invitation to extend cy expectations workplace, at issue this Court would be here to placing position courts difficult the lower and the authorities in the trying er, just facility "workplace.” Howev- to define what constitutes the judicial system will place this is a burden that this Court not on the or authorities. We claim was appellant's need not reach that there insufficient since, supрort finding probable information to cause existed as herein, required not discussed cause determination was this matter. *13 ingly, the suppression court correctly denied mo- tion to suppress the tape recorded in conversations workplace him patient/informant. between and the The or- der of Court is affirmed.
NIX, C.J., former did not in participate the consideration or decision of this matter.
ZAPPALA, J., files a concurring opinion which FLAHERTY, C.J., NIGRO, J., join.
NEWMAN, J., files a concurring opinion.
ZAPPALA, Justice, concurring.
Because the
of privacy in one’s office is akin to
the highly protected expectation
home,
privacy
I,
Article
Section 8 of the Pennsylvania
requires
Constitution
there be a prior determination of probable cause
aby
judicial
neutral
authority before electronic surveillance is con-
However,
ducted
an individual’s office.
because the court
order
provided
entered
this case
necessary
constitution-
protection,
al
intercepted
communications
properly
were
admitted.
Brion,
Commonwealth v.
589 Pa.
(1994), we held that an individual can reasonably expect that
his right
will not be violated in his home through
any
use of
electronic surveillance. We held that “[w]ith
respect
to oral communications occurring
home,
within one’s
5704(2)(ii)
interception pursuant
to 18 Pa.C.S.
can only be
I,
deemed constitutional under Article
if
Section 8
there has
been a prior determination of probable
neutral,
cause
Id. at
judicial
authority.”
As majority, noted “[u]pon closing the door of one’s world, home to the person outside may legitimately expect the highest degree of privacy known to our society.” Com Shaw, monwealth v. 543, 550, 383 A.2d is so personal liberty engrafted This nоtion of it is most often jurisprudence this Commonwealth against protection stated without elaboration. Constitutional in Pennsylvania and seizures unreasonable searches existed adoption a decade the federal Consti more than before tution, prior promulgation fifteen to the years Sell, Pa. Fourth Amendment. Commonwealth *14 (1983). of now language 470 457 “The survival the A.2d I, years 200 of through in Article Section 8 over employed in change para other areas demonstrates that the profound organic mount for first as of our privacy adopted part concern of enjoy people law in 1776 the mandate of the continues 65, at A.2d at the Commonwealth.” Id. 470 government such intrusion expectation against To hold that in unquestionable not office is untenable. It is does exist one’s the Commonwealth will not expect agents that citizens of spoken the within the confines private intrude utterances office, In both a hоme an an personal of office. and time, of retains spends significant personal individual amounts effects, in the engages and and conversations of documents in there importantly, utmost confidential nature.1 More each is activity occurring is an that the therein shielded expectation the The eyes from the ears of outside world. fact as he lay one does not his head rest under the same roof render of expectation conducts his business does not his Moreover, merely in an less. because privacy any office activity was in not his Appellant engaging illegal does render taking place The in medical the case discussions office in instant examples to be are excellent of communications that are believed private. physicians patients Communications between are statuto by rily protected, although admittedly privilege such was waived here patient/informant. оf a The fact that communications are heightened expectation supports confidential nature the view that privacy majority, purpose physi As "[t]he exists. stated cian-patient privilege atmosphere to create which is a confidential patient encouraged possible will be to disclose all information bearing physician may on his or her illness so that the render effective 1257-58, Op. Allegheny County citing at In re June treatment.” 1979 143, 73, Investigating Jury, Pa. 415 This Grand 490 A.2d 77 atmosphere many types exists in other of offices where confidential business deals are and financial transactions are conducted. made 18
subjective expectation privacy Appel- unreasonable. lant in heightened expectation privacy Brion retained marijuana his home he sold to an informant when there. Obviously, right illegal is not engage protect- conduct however, is fiercely right ed. What is to be protected, That gоvernment right guaranteed free from intrusion. I, Article Section 8 of the Constitution. Furthermore, discussing when privacy, our Court to one’s as repeatedly falling has referred office into as home. category same one’s See Commonwealth v. (1995) Labron, (“one’s 86, 95, 917, 543 Pa. 669 A.2d 921 expectation of -with to an automobile is respect signifi- office”); cantly less than that to one’s relating home or See Holzer, 93, 103, 101, also 389 Commonwealth A.2d (1978); Brundidge, 106 Pa. Commonwealth v. 533 173 n. (“Fourth 1118 n. 3 A.2d Amendment room, protection paid extends to a hotel occupied, office.”); much way as it does to a citizen’s same home 250, 258, Oglialoro, Commonwealth v. Pa. A.2d (1990), States, Katz quoting, v. United 389 U.S. *15 511, (1967) (‘What 88 S.Ct. 19 576 a person L.Ed.2d knowingly to the even in own exposes public, his home or office, subject Protection.”); is not a of Fourth Amendment Johnston, 454, 459, Pa. Commonwealth 515 530 A.2d 76 (1987); 447 Shaffer, Commonwealth v. Pa. 288 A.2d (“[w]e long 734 a recognized have distinction between of an the warrantless search automobile and that of a office”). home or
I do not that a office suggest subject citizen’s can never be Rather, to electronic I surveillance. submit that order to so, do the Commonwealth comply must with the constitutional protection against government unreasonable intrusions. The requirement a neutral of determination of probable cause to intercept communications an is not individual’s office too Commonwealth, onerous a to place upon burden the consider- ing protection the right accorded a citizen’s to privacy.
Having that a Appellant possesses heightened determined office, expectation privacy of next is to step examine
19 authorizing provided order the surveillance whether court Here, the common necessary protection. constitutional cause, court, probable a of authorized the pleas finding equipment intercept rec- use of еlectronic surveillance occurring Appellant’s inside office ord conversations days. for not to exceed ten period a that, light of the General Assem stated in Brion “[i]n We Act probable in the bly’s expressed elsewhere preference other electronic surveillance regarding determinations cause Court, 18 by judge be made a Pa.C.S. 5708-5723, procedures §§ we believe that such consistency fulfilling be applied probable should cause/warrant 261-62, at (emphasis Pa. at 652 A.2d 289 requirement.” added). case, I of the instant do not Under the circumstances made a common by the fact that the authorization was believe intercepted suppression court warrants pleas judge requires Constitution is the find communications. What the which ing judicial authority; cause a neutral judicial authority product makes that determination a Further, statutory case law interpreting provision. intercept seeking electrоnically Appellant’s authorization court, pleas Common conversations from common time, abiding by applicable the law at which wealth was judicial from officer. Common required determination (1987).2 Pa.Super. wealth v. Schaeffer, A.2d summary, Appellant possesses heightened I find that in his office be afforded privacy which should protection applies same constitutional However, in the home. since order authoriz- expectations ing the electronic surveillance satisfied this constitutional man- date, the communications were intercepted properly admitted. *16 C.J., NIGRO,
FLAHERTY, J., and this join Concurring Opinion. electronically application intercept Appel to The Commonwealth’s pleas was filed in court more than five lant’s conversations common years before we decided Brion.
20 Justice,
NEWMAN, concurring. join Majority I that Opinion agree police properly approval Attorney’s obtained the the District designee conducting before wiretap consensual office. Alexander’s
However, Concurring I write this to discuss the Opinion requirements of the Wiretapping Electronic Surveillance (Act) case; Act1 it to this applies legal as to address the v. Schaeffer, of Commonwealth significance 370 Pa.Super. Court, equally an divided 354 539 A.2d Pa. aff'd (1994); explain why sufficiently A.2d the Act protects person’s confidences dis no judicially closed an office that additional created safeguards required. are
REQUIREMENTS IN THE ACT
the Act
Generally,
police,
Section 5709 of
requires
through
Attorney
or District
to
Attorney,
apply
General
Superior
an Order from a
Judge
intercepting
Court
before
wire,
any
or oral
police
electronic
communication.
ob-
Once
tain
from one of
to
parties
consent
the conversation for a
wire,
consensual
interception
electronic or oral communica-
tiоns,
do not need
obtain
order from
an
Superior
judge
Court
conducting
before
such a surveillance.
Instead,
only requires
they
the Act
approval
obtain the
General,
the Attorney
Attorney
the District
or one of their
Thus, I
designees.
would
agree
Majority
that the
police in
case
with the
complied
by applying
Act
wiretap.
Barbieri to
their
approve
OF
ANALYSIS
COMMONWEALTH SCHAEFFER
Barbieri
that the
attempting
testified
Commonwealth was
comply
requirements
with the
of the Superior Court’s decision
when it
judicial approval
obtained
of this wiretap.
Schaeffer
case,
I,
Court held that Article
Section of Constitution
requires police
obtain a
seq.
18 Pa.C.S.
5701 et
*17
consensual inter-
conducting one-party
search warrant before
wire,
communications. The
or oral
of
electronic
ceptions
would not have to
the warrant
Court held
Superior
Act, except that the
exacting standards of the
with the
comply
finding
probable
of
сause
only
should
issue
warrant
acknowledged that:
an affidavit. The court also
supported by
entirely
are not
intercept
warrants to
conversations
search
tangible property,
to search warrants
seize
similar
wiretap
may
to the
act
useful.
analogies
therefore some
interceptions
speci
should
example,
authorizing
For
orders
time, place,
identity
limitations as to
fy some reasonable
to intercepted.
whose communications are
parties
of the
Cf.
5712(a)-(b).
18 Pa.C.S.
Pa.Super.
Superi
at
Schaeffer,
guidance
no further
to the
and the
provided
or Court
of warrant
need
Attorneys concerning
type
District
what
was
satisfy
provisions
warrant
ed and how a search
would
Court, in
appeal,
plurality opinion,
the Act. On
this
affirmed
Superior
Schaeffer,
Court. Commonwealth
The Schaeffer provide guidance sufficient to law enforcement officials. For strictly he example, aрplying Barbieri testified here that felt search warrant would defeat the requirement Schaeffer of the purpose wiretap. particular, consensual he noted that the service requirement Pa.R.Crim.P.2004 would alert the that their conversation was unknowing party In an being bypass problem recorded. effort to while still law, complying interpreted with the Barbieri the intent of the to be the opinion probable determination cause Schaeffer judicial testimony, a neutral March authority. Notes at__ (R.R. 74A). Therefore, applied he for an Order authorizing from the Court of Common Pleas the search based on determination of cause. Judge Abraham’s How ever, I provision Wiretap note that there is no Act for of Common to authorize judges wiretaps. Courts Pleas Although attempting Commonwealth was follow requirements Schaeffer, Opinion Court’s guidance not offer sufficient to law enforcement that case did how to with thе so-called warrant concerning comply officers Moreover, conceded, Barbieri Abra- Judge as requirement. for a comply requirements not with the ham’s Order did warrant; to two example it was not limited time search not it was not served on Alexander. does days and Schaeffer deficiencies are fatal to the constitution- explain whether these *18 ality of the search. demonstrates, requirement the search warrant
As this case perplexing impedes of the law the effec- makes this area It is nonfunctional and therefore tiveness of law enforcement. I unnecessary. explicitly would overrule the search Schaeffer in this case requirement uphold wiretap warrant 5704(2) solely police compliance based on Section Act, to secure an authorized District required police which Attorney Attorney designee’s approval or General or their a consensual conducting one-party wiretap.2 before ALEXANDER HAD A EX- REASONABLE WHETHER IN PECTATION OF PRIVACY ORAL COMMUNI- AN CATIONS WITHIN OFFICE addition, in I compelled greater why I feel to note detail that a has a similar argument person believe that Alexander’s in as in a is not privacy an office home expectation First, office, a persuasive.3 person’s expectation unlike an historically in home has been privacy protected. emphasized drafters of the Constitution house it in the unique person’s by including nature of a I, vigor- of Article Section 8. This Court has since language privacy a their ously protected person’s home; closing the door of one’s home to the outside “[up]on may implicitly overruled the search warrant Brion have Schaeffer requirement by requiring judge a make Court interceptions for of oral communications in a cause determinations However, explicitly have overruled the search warrant home. I would language. prescriptions drugs I note that Alexаnder used his office to sell making unconvincing compari- later sold on the street. He is now professional office to a home to shield his abandonment of his son of an physician’s privilege prescribe oath and his abuse of the medications. world, expect highest degree person may legitimately Shaw, to our Commonwealth v. society.” known privacy The home is Pa. A.2d never society.4 sacrosanct location our We have extended I, Section 8 to heightened protection under Article office, I in an decline communications would unprivileged to do so here.
Moreover, Act interest that a protects any privacy by requiring have to a conversation an office person may from a to obtain written authorization District Attorney Attorney designee General or their before con- that, I ducting wiretap. consensual would find sufficiently with these the Act provisions, protects person’s limited interests an office.
Finally,
should
cautious
adding
judicial-
we
before
I
ly
requirements
agree
created
of the Act.
with Justice
Supreme
opined:
White
the United States
Court who
ready
should
be too
to erect constitutional
[We
not]
barriers
probative
relevant and
evidence which is also accurate
An
and reliable.
electronic
will
recording
many
pro-
times
*19
duce a more reliable
of what
rendition
a defendant has said
than will
of a
memory
police agent. may
the unaided
It
also
recording
be that with the
it is
likely
existence
less
mind,
change
the informant will
less chance that threat
injury
suppress
will
unfavorable evidence and less chance
testimony.
cross-examination will confound the
White,
1122, 1126-27,
U.S. v.
401
91
U.S.
S.Ct.
28
(1971).5 Thus,
L.Ed.2d 453
I would
that no
hold
additional
judicial
oral,
of an application
intercept
review
an
wire or
have, however,
repeatedly
4.
I
stated that
the use of a residence
illegal activity,
drugs,
deprive
such as the sale of
should
even the
occupants
Com-
privacy.
of a home of
their traditional
J.,
(Newman,
Selby,
monwealth v.
547 Pa.
708A.2d Pennsylvania, Respondent, v. COMMONWEALTH SCALES, Petitioner. Demetris Pennsylvania. Supreme Court of April ORDER PER CURIAM: NOW, Petition for day April,
AND this 14th GRANTED; Superior Appeal Allowance of order from the order of the Court of Com- quashing appeal Court REVERSED; County is Philadelphia mon Pleas of REMANDED to the Court for further matter is opinion with this court’s Common- proceedings consistent Jones, 58, 700 wealth v. A.2d