COMMONWEALTH оf Pennsylvania, Appellant, v. David A. GOODMAN, Appellee.
Superior Court of Pennsylvania.
Filed Sept. 27, 1985.
Reargument Denied Dec. 6, 1985.
500 A.2d 1117
Argued July 23, 1984.
The Faust case has no bearing on the present situation which involves a stepparent adoption. The Faust statement that “an adoption decree terminates the visitation rights of a grandparent regardless of their basis,
Accordingly, we affirm the judgment entered upon the order granting the Suroviecs’ Petition for Visitation Privileges.
Judgment affirmed.
Rochelle S. Friedman, Pittsburgh, for appellee.
Before SPAETH, President Judge, and WICKERSHAM, BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMURO, JOHNSON and POPOVICH, JJ.
MONTEMURO, Judge:
Herein, this court is asked to define the scope of the Attorney General‘s authority to investigate criminal offenses. In Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237 (1985), argued eo die as the present appeal, we held that the Attorney General‘s authority to prosecute criminal cases is limited to the specific instances set forth in Section 205(a)(1)-(8) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164, § 101 et seq.,
That holding was based on the court‘s conclusion that the legislature intended the Commonwealth Attorneys Act to be the sole grant of authority to the Attorney General to prosecute criminal cases. In the present case, the Commonwealth, in the guise of the District Attorney of Allegheny
The context in which this appeal arises is by virtue of a Commonwealth appeal from an order of the Honorable John W. O‘Brien, Court of Common Pleas of Allegheny County, granting the suppression motion of the appellee David Goodman.3 In reviewing this order, we were bound by the standard set forth by the supreme court in Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983), namely:
[I]n reviewing a suppression court‘s ruling the appellate court is bound by factual findings supported by the record. Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977); and, they may not substitute their own findings for those of the suppression court. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings whol-
See also, Commonwealth v. Chandler, 505 Pa. 113, 117, 477 A.2d 851, 853 (1984). The following facts were testified to at the suppression hearing.
On April 14, 1982, Charles Park, a security representative of the Bell Telephone Company, during examination of computer records, noticed that signal irregularities were emanating from a telephone service registеred to the appellee. The irregularities were indicative of the use of a “blue box.” A “blue box” is an electronic “tone generating” device which is used to circumvent the telephone company‘s billing apparatus and thereby obtain free telephone service. Park informed his supervisors of the possible use of the device. He then connected to the appellee‘s service a Dialed Number Recorder (DNR)4 and a tape recorder. The DNR and tape recorder remained connected for a period of approximately twenty-six hours (from 2:00 P.M., April 15, 1982 to 4:15 P.M., April 16, 1982). During this period, eight conversations were intercepted and recorded.
On April 16 or 17, 1982, Robert Meinert, the head of the Bell Telephone security in Pittsburgh, contacted Special Agent Dennis Danask of the Bureau of Criminal Investigation (BCI), the investigative arm of the office of the Attorney General. Meinert informed Danask of the details of the investigation which Bell Telephone had conducted thus far.
Agent Danask relayed this information to Deputy Attorney General Lawrence Claus, who was in charge of criminal investigations in Western Pennsylvania. Claus told Danask that “without further information, we really couldn‘t make a decision as to whether or not it would be an area in which
On April 21, 1982, Agent Danask and Deputy Attorney General Claus met with Park and Meinert of Bell Telephone to discuss the incident. They were informed that on two of the calls, the appellee had identified himself as “Attorney Goodman.” Claus later testified that he felt that this fact gave rise to the possibility of investigation and prosecution by the Attorney General under the authority granted by Section 205(a)(2) of the Commonwealth Attorneys Act, which authorizes the Attorney General to prosecute cases involving corrupt organizations under
On April 26, 1982, based on the information received from Bell Telephone, Agent Danask applied for and executed a warrant to search the appellee‘s office/residence. The warrant application set forth the information received from Park and Meinert and alleged violations of
The search was executed by BCI agents. A device which was identified as a “blue box” was discovered and seized. In the course of searching for another device, the agents found a sawed-off shotgun, and they were told by appellee that several automatic weapons were on the premises. While two BCI agents secured the premises, a second warrant was obtained for the seizure of the shotgun. Subsequently, a third warrant was obtained for the seizure of several automatic weapons.
On May 12, 1982, Agent Danask filed a criminal complaint against appellee charging him with possession of a
Several pretrial motions were filed seeking the dismissal of the informations and suppression of the evidence. These motions were denied. However, on April 8, 1983, the appellee filed a motion to suppress evidence, which the lower court treated as an amendment to the appellee‘s omnibus pretrial motion. After hearings and arguments, on April 28, 1983, the lower court granted thе motion to suppress on the ground that the Attorney General‘s Office lacked “jurisdiction” to investigate the incident and that suppression was appropriate. A Commonwealth motion for reconsideration was denied and a timely appeal was taken to this court.
The Commonwealth raises two issues:
- The suppression court erred in concluding that the execution of the search warrant by agents of the Attorney General was in contravention of the Attorney General‘s authority to investigate.
- The court below erred in ruling that suppression was the necessary remedy for an alleged violation of the Commonwealth Attorneys Act.
We shall discuss them ad seriatim.
I. THE ATTORNEY GENERAL‘S AUTHORITY TO INVESTIGATE.
The scope of the Attorney General‘s authority to investigate a criminal offense is set forth in section 206 of the Commonwealth Attorneys Act. See n. 2 supra. The clause relevant to our immediate discussion is that which reads:
[t]he decision to initiate a prosecution under
§ 732-205 will arise where the [A]ttorney [G]eneral is made aware of facts that justify his commencement of a prosecution. Normally, information first brought to the [A]ttorney [G]eneral‘s attention will be an insufficient basis upon which to render a decision to prosecute. Instead, initial facts will require further investigation to determine whether an activity arises to a crime that warrants prosecution by the [A]ttorney [G]eneral under 205.
Appellant‘s brief at 15-16.
Initially, we note that this argument is not applicable logically to those sections of the Commonwealth Attorneys Act wherein the Attorney General‘s authority is invoked by request. See
The appellee, on the other hand, argues that:
[T]he clear intent of the Act is to allow the Attorney General to investigаte and subsequently prosecute only certain crimes. All other crimes are left to the numerous and qualified local law enforcement agencies. It is absurd to adopt the Commonwealth‘s rationale. Under that theory the Attorney General‘s Office could investigate every possible crime, and once they would determine it does not fall under their jurisdiction, then turn it over to local authorities. It is much more logical to assume that local authorities are to investigate crimes. Once the investigation showed that the Attorney General would have jurisdiction, the case is then turned over to the Attorney General‘s Office. Not only is this the clear intent of the Act, but it also alleviates the legal evidentiary problems created by the seizure of evidence by authorities without jurisdiction. Clearly, allowing the local authorities to gather and seize the evidence eliminates the risk of suppression of the evidence due to lack of jurisdiction.
Appellee‘s brief at 8.
The resolution of this issue depends upon the legislature‘s intendment as to the investigative powers of the Attorney General
However, we must also heed the legislature‘s mandate that the Attorney General‘s investigative authority extends only to “any criminal offense which he has the power to prosecute.” This provision must be given some meaningful effect.
This court must now decide a question of law upon which there is no authority to provide guidance. The previous statute, and the case law interpreting that statute, was much different and cannot be relied on as an accurate barometer of the legislature‘s intent.8 The legislative history of section 206, as set forth in JOINT STATE GOVERNMENT COMMISSION: TASK FORCE ON THE OFFICE OF ELECTED ATTORNEY GENERAL Final Report (September 1, 1978) (hereinafter “TASK FORCE“), does not
We believe that the legislature, when it promulgated section 206 of the Commonwealth Attorneys Act, intended that the Office of Attorney General be empowered to investigate any criminal offense which it reasonably believes, at the time of the investigation and with the information it then possesses, it is able to prosecute under section 205. However, we also believe that, if challenged, the Attorney General should be able to produce evidence which would establish by a preponderance of the evidence that a factual basis existed which supported that belief. In our opinion, this standard strikes a balance between the need of the Attorney General to possess the power to properly execute its statutory function and the apparent intent of the legislature to diminish the investigative authority of the Attorney General from that which was previously wide-ranging and comprehensive.
In light of the foregoing analysis, we now must address the question: Did the Attorney General‘s Office, based upon the information it possessed prior to its application for the search warrant, have a reasonable belief that it could prosecute David Goodman under section 205 of the Commonwealth Attorneys Act? We believe it did not.
We reject at the outset the Commonwealth‘s contention that the Attorney General‘s Office reasonably believed
Findings of fact.—The General Assembly finds that:
- organized crime is a highly sophisticated, diversified, and widespread phenomenon which annually drains billions of dollars from the national economy by various patterns of unlawful conduct including the illegal use of force, fraud, and corruption;
- organized crime exists on a large scale within the Commonwealth of Pennsylvania, engaging in the same patterns of unlawful conduct which characterize its activities nationally;
- the vast amounts of money and power accumulated by organized crime are increasingly used to infiltrate and corrupt legitimate businesses operating within the Commonwealth, together with all of the techniques of violence, intimidation, and other forms of unlawful conduct through which such money and power are derived;
- in furtherance of such infiltration and corruption, organized crime utilizes and applies to its unlawful purposes laws of the Commonwealth of Pennsylvania conferring and relating to the privilege of engaging in various types of business and designed to insure that such businesses are conducted in furtherance of the public interest and the general economic welfare of the Commonwealth;
- Such infiltration and corruption provide an outlet for illegally obtained capital, harm innocent investors, entrepreneurs, merchants and consumers, interfere with free competition, and thereby constitute a substantial
proceedings under subsection (d), and to take such actions as may be necessary to ascertain and investigate alleged violations of this section.
(2) The Attorney General and the district attorneys of the several counties shall have concurrent authority to institute criminal proceedings under the provisions of this section.
(3) Nothing contained in this subsection shall be construed to limit the regulatory or investigative authority of any department or agency of the Commonwealth whose functions might relate to persons, enterprises, or matters falling within the scope of this section.
- in order to successfully resist and eliminate this situation, it is necessary to provide new remedies and procedures.
Under the Act, it is “unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity in which such person participated as a principal, to use or invest, directly or indirectly, any part of such income, in the acquisition of any interest in . . . or operation of, any enterprise.”
The Commonwealth‘s argument is that, prior to obtaining the first search warrant on April 26, 1982, the Attorney General‘s Office had information which gave it reason to believe the appellee was an attorney, engaged in commerce, who had committed at least two acts of racketeering, i.e., two acts constituting the theft of telephone service. As Assistant Attorney General Claus testified:
Well, the significance, to me, involved Section 911 of the Commonwealth Attorneys Act [sic], and one of the areas in which the [A]ttorney [G]eneral‘s office, by specific statute, is given the authority to investigate and prosecute, or in situations where there is a pattern of racketeering activity, specifically in regard to conducting or maintaining or operating an enterprise, and the statute defines an enterprise under 911, Section H(3) as any situation or any individual engaged in commerce. And as far as I could see, on the basis of the telephone calls by Mr. Goodman identifying himself as an attorney, he was engaged in the practice of business and, therefore, fell within the scope of the corrupt organization section. The
N.T. April 28, 1983 at 31.
This argument misconstrues the corrupt organization statute and, in fact, contradicts the Attorney General‘s eventual decision to discontinue its own prosecution of Goodman.12 Basically, the Commonwealth‘s contention, at the suppression hearing and now on appeal, is that prior to applying for and executing the search warrant, the Attorney General intended to prosecute Goodman under section 911. However, nothing in the record substantiates this assertion. Indeed, the initial search warrant and accompanying affidavit listed the crimes to be investigated as violations of sections 910 (relating to manufacture, distribution of devices for theft of telecommunication services) and 3926 (relating to theft of services); no mention was made to any corrupt organizations offense. Thus, even though the Attorney General “intended” to prosecute Goodman for a first degree felony under section 911,13 he did not think it important to include such an offense in the application for the search warrant. Rather, the only offenses listed by the Attorney General were a misdemeanor of the first degree and, at most, a felony of the third degree.
If anything, the circumstances of this case appear to evidence an “intention” to prosecute Goodman for a corrupt organizations offense after it investigated him, not before he was investigated. The Commonwealth‘s justification for investigating Goodman is simply not supported by the record before us. In short, it appears the Attorney General‘s “intention” was formed in hindsight, not with foresight.
Even if we were to accept the Commonwealth‘s argument that the Attorney General planned all along to prosecute under section 911, we do not find the investigation to have been reasonable. As the initial subsection of the statute repeatedly and explicitly states, section 911 address itself to the problem of organized crime. It is a well established rule of statutory construction that the preamble of a statute may be considered in the statute‘s construction.
warrant as listed in Pa.R.Crim.P. 2005, the only violations he did include were ones much less serious in nature than the violation with which it was intended to charge Goodman.
The foregoing makes it clear that the Pennsylvania Corrupt Organizations Act was intended to grant the Attorney General the authority to prosecute individuals, among other “entities“, engaged in systematic and pervasive criminal activities, which types of activities are set forth in section 911(h). In our judgment, a reasonable reading of section 911 would not result in the conclusion that the use of a “blue box” (to avoid telephone company charges) by an individual attorney in the course of his legal practice constitutes the crime contemplated by section 911. To read this statute differently, under the facts of this case, would bring about unreasonable, if not absurd, results which we cannot sanction.
In reaching this interpretation of section 911, we have found some enlightenment from federal decisions interpreting the Racketeer Influenced and Corrupt Organization Provisions, Title IX of the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 941, codified at
As our supreme court had done with section 911 in Brady, the United States Supreme Court has interpreted
We are fully cognizant of the fact that some of the federal courts which have addressed this specific issue have held there is no requirement under RICO for the prosecution to prove a nexus between the individual being prosecuted and “organized crime.” See, e.g., United States v. Aleman, 609 F.2d 298 (7th Cir. 1979); United States v. Chovanec, 467 F.Supp. 41 (S.D.N.Y. 1979); United States v. Vignola, 464 F.Supp. 1091 (E.D.Pa. 1979); United States v. Mandel, 415 F.Supp. 997 (D.Md. 1976); cf. Saine v. A.I.A., Inc., 582 F.Supp. 1299 (D.Colo. 1984) (civil liability); D‘Iorio v. Adonizio, 554 F.Supp. 222 (M.D.Pa. 1982) (same). These blanket statemеnts, however, are better understood in light of the Eight Circuit‘s reasoning in United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982). Therein the court stated:
Obviously, no statute could and this statute was not intended to require direct proof that individuals are ‘organized crime.’ United States v. Campanale, 518 F.2d 352, 363-64 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976); United States v. Chovanec, 467 F.Supp. 41, 44-45 (S.D.N.Y. 1979) . . . . [However], [e]ach element of the crime, that is, the predicate acts, the pattern of such acts, and the enterprise requirement, was designed to limit the applicability of the statute and separate individuals engaged in organized crime from ordinary criminals.
...
We believe the reasoning of the Eighth Circuit is persuasive, for it addresses itself to the very real “danger of abuse where a prosecutor attempts to apply the statute to situations for which it was not primarily intended.” United States v. Huber, 603 F.2d 387, 395-96 (2d Cir. 1979); cf. Commonwealth v. Brady, supra. If the Attorney General had proceeded to prosecute in the instant case, we believe such an abuse would have occurred here. As stated above, no reasonable interpretation of
Finally, we add that we do not believe the Attorney General‘s “contacts” with the Allegheny County District Attorney‘s Office satisfied the requirements of the
II. SUPPRESSION.
In the present case, the challenge was made by means of a motion to suppress.18 The lower court, in its opinion of November 3, 1983, first determined that the Attorney General lacked the “jurisdiction” to investigate the case; then, by analogizing the circumstances to those cases wherein municipal law enforcement agents make arrests or execute search warrants outside their territorial jurisdiction, the court ruled that suppression was the appropriate remedy, citing Commonwealth v. Fiume, 292 Pa. Super. 54, 436 A.2d 1001 (1981) and Commonwealth v. Anzalone, 269 Pa. Super. 549, 410 A.2d 838 (1979). Fiume and Anzalone dealt with the legislative grant of authority which permitted municipal police officers to arrest suspected criminal offenders outside the territorial limits of the political subdivision employing such officers. That grant of authority is found in its present form at
The analogy is indeed an apt one. However, a recent opinion by our supreme court has cast serious doubt on the propriety of applying the drastic remedy of exclusion in cases involving extraterritorial executions of search warrants. Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421, 427 (1985); see generally, Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985) (Larsen, J., concurring). Considering that our opinion in Mason was guided by the earlier extraterritorial arrest cases, Commonwealth v. Mason, 327 Pa. Super. 520, 547, 476 A.2d 389, 402 (1984), the use of suppression by the lower court here is all the more suspect.
Mason involved, inter alia, the question of “whether a search warrant may legally be executed by non-jurisdictional police or, stated another way, must the officer executing the warrant have the authority to act as an officer where the warrant is executed.” Id., 327 Pa. Superior Ct. at 544, 476 A.2d at 401 (original emphasis). This court determined that if the executing law enforcement officer did not have the authority by virtue of a legislative grant,21 then the search pursuant to the search warrant would be illegal
Despite its holding, the supreme court, in rather extensive dicta, proceeded to discuss the general applicability of the exclusionary rule. Turning its attention to the
As the Commonwealth correctly points out, the
It is also interesting to note that in the analogous cases dealing with extraterritorial arrests, the supreme court appears to consider violations of
Federal decisions also provide us with some guidance. In United States v. Harrington, 681 F.2d 612 (9th Cir. 1982), the court was faced with the following factual circumstances. Officers of the United States Customs Service conducted a warrant-authorized search of the defendant‘s home located in Del Mar, California. A variety of drugs, $100,000 in currency and other items were seized. The district court suppressed the evidence seized for the sole reason that “the customs officers should not have conducted the investigation that led to the search and seizure.” Id. at 613. They lacked the authority to execute the search warrant because pursuant to an Executive Reorganization Plan,26 all responsibility for in-land investigations of federal drug violations was vested in the Drug Enforcement Administration (DEA). Due to the violation of the Reorganization Plan, the federal district court suppressed the evidence, basing its decision on United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979).
On appeal, the Ninth Circuit reversed. The court first noted that “[n]othing in the Plan or its history suggests that the President or Congress favored the use оf the exclusionary rule to deter noncompliance [with the Plan].” United States v. Harrington, 681 F.2d at 613-14. Furthermore, the court stated that Soto-Soto “approved the suppression of evidence seized not merely because the search violated a statute, but because the statutory violation undermined constitutional protections,” and limited Soto-Soto‘s application to “the border-search context.” Id. at 614; cf. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Finding no violation of a constitutional right by the otherwise “perfect search“, the court held “a court should not automatically suppress the evidence seized by an officer who, for some technical reason, should not have conducted the search.” Id. 681 F.2d at 615. A violation of the Plan, which was promulgated by the President and approved and amended by Congress, and which allocated the investigatory authority of governmental agents, did not result in the type of unreasonable search and seizure contemplated by the Constitution. Standing alone, it did not warrant suppression.
The United States Supreme Court, in the companion cases of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), also refused to attribute a constitutional dimension to similar statutory violations. In Giordano and Chavez, the petitioners claimed that evidence obtained as a result of federal wiretaps should have been suppressed because of violations of the federal wiretap act.
As to the remedy applicable for this violation, the Court looked no further then the wiretap act itself. The act specifically provided for suppression of evidence obtained as a result of this type of statutory violation. See
Based on our reading of Mason and on the federal authority referred to above, we do not consider the violation of the
The order of the suppression court is reversed, and the case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.
SPAETH, President Judge, files concurring and dissenting opinion in which BROSKY, J., joins.
WICKERSHAM, J., files concurring and dissenting opinion in which POPOVICH, J., joins.
SPAETH, President Judge, concurring and dissenting:
I join in the majority‘s conclusion, and in the reasoning supporting it, that in investigating appellee the Attorney General exceeded the authority granted to him by the
It is only where the violation ... implicates fundamental constitutional concerns, is conducted in bad-faith, or has substantially prejudiced the defendant....
Commonwealth v. Mason, supra, 507 Pa. at 406, 490 A.2d at 426.
Here, the Attorney General‘s violation of the
The classical statement of the fundamental constitutional concern implicated in this case is by Madison in The Federalist Papers:
It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved.
The Federalist No. 48, at 308 (J. Madison) (Clinton Rossiter, ed. 1961).
The great problem was solved in Marbury v. Madison, 5 U.S. (1 Cranch) 138, 2 L.Ed. 60 (1803):
That the people have an original right to establish, for their future government such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.
The task of determining whether the legislature has transgressed the limited powers delegated to it by the people belongs to the judiciary, for “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id. at 177. Finding that the legislature had transgressed its limited powers, by enacting an act providing that the Supreme Court should have the power to issue writs of mandamus, the Court declared the act unconstitutional and therefore of no effect.
The principle established by Marbury v. Madison is of course applicable not only to the legislature but equally to the executive. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), the President of the United States had ordered his Secretary of Commerce, Charles Sawyer, to seize several steel mills. The seizure was not based on any statutory or other Congressional authorization but on asserted necessity: the nation was at war, and the seizure was to avert a strike that threatened to cripple steel production. In these circumstances, the government argued, “presidential power should be implied from the aggregate of his powers under the Constitution.” Id. at 587, 72 S.Ct. at 866. The Court nevertheless held the seizure invalid. Justice BLACK, writing for the Court, stated the issue as follows: “We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation‘s steel mills.” Id. at 582, 72 S.Ct. at 864. In holding that the President was not acting within his constitutional power, Justice BLACK rejected the concept of “implied” or “inherent” powers, and reaffirmed the strictly limited nature of the powers of the executive: “The President‘s power ... to issue the order must stem either from an act of Congress or from the Constitution itself.” Id. at 585, 72 S.Ct. at 866. Justices FRANKFURTER, DOUGLAS, JACKSON, AND BURTON agreed, and in separate concurring opinions expressed their reasons why they
The exercise of executive authority, Justice JACKSON said, occurs in three cases: (1) where the executive officer acts pursuant to statutory authority; (2) where the officer acts in the absence of statutory authority; and (3) where the officer acts in a sphere in which the legislature has determined that the officer is not to act. In the first case, the constitutional authority of the executive officer is at its fullest, for the officer‘s act is authorized by all the power that the people have delegated to both the legislative and executive branches. In the second case, the authority of the officer depends solely upon the power delegated to the executive. In the third case, which Justice JACKSON believed to be the case in Youngstown, the authority of the officer is at its “lowest ebb“, for in such a case the power delegated by the people to the legislature must be subtracted from that delegated to the executive. Id. at 635-37, 72 S.Ct. at 870-71 (JACKSON, J., concurring)
The present case falls squarely within Justice JACKSON‘s third category. The Attorney General is one of five constitutionally provided statewide electеd executive officers.2 As a constitutional officer, the Attorney General has
With our decision today, one is left to ask, as the Chief Justice asked in Marbury v. Madison: “To what purpose“, then, did the people of the Commonwealth limit the power of the Attorney General? “[I]f th[o]se limits may, at any
The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.
With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. supra at 655, 72 S.Ct. at 880 (JACKSON, J., concurring) (footnote omitted).3
The order of the trial court suppressing the results of the Attorney General‘s illegal investigation should be affirmed.
WICKERSHAM, Judge, concurring and dissenting:
The defendant-appellee, David A. Goodman, was charged by Criminal Information filеd in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC8204435A with eleven (11) counts of Possession of Prohibited Offensive Weapons, one (1) count of Theft of Services and one (1) count of Possession of Device for Theft of Telecommunications Services. The prohibited offensive
I agree with the majority‘s conclusion that suppression was inappropriate in the instant case and that, therefore, the lower court erred in granting appellee‘s motion to suppress all intercepted wire communications, all articles seized pursuant to the search of his office/residence, and all statements made to the officers conducting the search. I disagree, however, with the majority‘s conclusion that the Attorney General had neither the authority to investigate appellee under the
The Commonwealth argues, inter alia, in its brief:
“The court below еrred in suppressing evidence seized during searches conducted in appellee‘s office/residence by agents of the Attorney General. At the time the searches were conducted, the Attorney General had a reasonable belief that based on the information available to him, the appellee was engaged in activity which merited an investigation by the Attorney General under
71 Pa.C.S.A. § 732-205(a)(2) (relating to corrupt organizations) and71 Pa.C.S.A. § 732-206(b) (relating to investigating grand juries). The Commonwealth further maintains that the investigatory power of the Attorney General, as provided by71 Pa.C.S.A. § 732-206 , must necessarily be broader than his prosecutorial power (71 Pa.C.S.A. § 732-205 ) in order that it be determined whether an activity constitutes one of the eight areas that the Attorney General is directed to prosecute.*
*
*
“The Attorney General had a reasonable belief, based on the information available to him, that appellee was engaged in activities that the Attorney General was required to investigate and prosecute under 71 Pa.C.S.A. § 732-205(a)(2) (relating to corrupt organizations) and71 Pa.C.S.A. § 732-206(b) (relating to investigating grand juries). (While it may be argued that§ 732-205 of the Act should not be read to limit the areas in which the Attorney General may prosecute, accepting such an interpretation is not necessary to decide the present case. Instead, the court need only determine that the Attorney General was acting within the scope of the investigative powers conferred upon him by the Act.) Based on the information provided by a Bell employee, the Attorney General was aware of the strong possibility that the blue boxes were being transported between counties. Certainly, Attorney Claus was correct in his initial determination that movement of the illegal devices from county to county would be a crime best suited for investigation by the Attorney General who, unlike a county district attorney, has statewide jurisdiction. (71 Pa.C.S.A. § 732-205(a) provides, in part, that: ‘The Attorney General shall have power to prosecute in any county criminal court the following cases ...’ (emphasis added).)The applicable statute,
71 Pa.C.S.A. § 732-206(b) states:The Attorney General shall convene and conduct investigating grand juries as provided in the act of November 22, 1978 (P.L. 1148, No. 271), known as the ‘Investigating Grand Jury Act.’
It is evident that the word ‘shall’ denotes the mandatory nature of that responsibility. See generally Zimmerman v. O‘Bannon, 497 Pa. 551, 442 A.2d 674 (1982).
“This reading of the Act is further strengthened by
71 Pa.C.S.A. § 732-206(a) ‘The Attorney General shall have the power to investigate any criminal offense which he has the power to prosecute. The decision to initiate a prosecution under§ 732-205 will arise where the attorney general is made aware of facts that justify his commencement of a prosecution. Normally, information first brought to theattorney general‘s attention will be an insufficient basis upon which to render a decision to prosecute. Instead, initial facts will require further investigation to determine whether an activity arises to a crime that warrants prosecution by the attorney general under § 732-205 . The failure to prosecute would not, by itself, serve as an indication that the investigation was unwarranted. Rather, the dispositive question is whether the facts known to the attorney general would justify his decision to investigate. In this context, the court below noted at the suppression hearing:[W]hen you get into the area of what he can prosecute, you are in a much more confined area than where you are in the area of what you can investigate. Because it doesn‘t take a Rhodes Scholar to realize you can‘t know whether you are in the area of a prosecution until at least you do some investigation.’
(ST Vol. II, 49)
The court went on to note that one ‘can‘t apply it [the Act] with hindsight.’ (ST Vol. II, 51)
“The Commonwealth submits that the Attorney General dealt with this very problem in executing the search warrants herein. Based on the information known to him the attorney general after consulting with the office of the district attorney made a reasonable determination that appellee was engaged in conduct which would fall within the areas he was required to prosecute under
71 Pa.C.S.A. § 732-205 and hence he was under a duty to investigate further. Not only did the attorney general have information indicating activities ripe for grand jury investigation under§ 732-206(b) , but he had evidence on which to base a reasonable belief that the appellee‘s activities were in furtherance of a corrupt organization which the attorney general is required to prosecute as provided in§ 732-205(a)(2) . See also18 Pa.C.S.A. § 911(e) .“The attorney general had information, prior to execution of the search warrants, that appellee was engaged in a
pattern of racketeering and that the profits gained from these activities were used in furtherance of a legitimate enterprise—a law office. See 18 Pa.C.S.A. § 911(b), (h) . Specifically, appellee, by repeatedly using the blue box on April 15 through April 16 conducted a pattern of activity; namely, theft of services. This criminal activity is explicitly covered by§ 911 at (h)(1)(i) ‘Chapter 39 (relating to theft and related offenses‘). The attorney general acting as a reasonable public agency with investigative powers, had reason to surmise that appellee used the profits from this unlawful activity to further a legitimate enterprise, in this case a law practice. It is important to note that the Bell recording devices revealed that appellee, in answering his phone, identified himself as ‘Attorney Goodman.’ Mr. Claus testified that it was under this interpretation of§ 911 that he determined an investigation by the attorney general was necessary. The Commonwealth maintains that given the еvidence known to the attorney general prior to the issuance of the search warrants, that belief was well-founded in the applicable law. To hold otherwise, you require the attorney general to not investigate an activity unless his initial contact with the activity would lead him to determine, with complete certainty, that the matter should be prosecuted by his office. Common-sense dictates that when initial facts indicate that an activity may involve a crime subject to the attorney general‘s prosecuting powers, the attorney general should enter into further investigation of those facts. Ensuring a broader scope of power for investigation under the Act, is of primary importance to the attorney general since his area of prosecutorial responsibility involves highly complex areas of criminal activity that would involve the sifting of many disparate elements.”
Brief for Appellant at 11 and 14-18.
I agree and accordingly dissent to the first part of the majority‘s opinion.