COMMONWEALTH of Pennsylvania, Appellee, v. Kirk REKASIE, Appellant.
Supreme Court of Pennsylvania.
Aug. 20, 2001.
Reargument Denied Nov. 27, 2001.
778 A.2d 624
Argued March 8, 2000.
PER CURIAM.
AND NOW, this 30th day of July, 2001, motion for consideration of matters on the original record without the necessity of reproduction is granted.
The petition for allowance of appeal is GRANTED, and the case is remanded to the court of common pleas for a determination of whether petitioner‘s waiver of appellate counsel is knowing, intelligent, and voluntary. See Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161, 1163 n. 5 (1999); Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
Caroline Roberto, and Paul D. Boas, Pittsburgh, for amicus.
Michael W. Streily, Pittsburgh, for Commonwealth of PA.
OPINION
CAPPY, Justice.
In this appeal, our court revisits the area of one party consensual wire interceptions. The sole issue before our court is whether
The facts of this case are not in dispute. On June 23, 1992, pursuant to an ongoing drug investigation, agents of the Attorney General‘s Office and officers of the Cranberry Township Police Department seized 36.8 grams of cocaine from Thomas Tubridy. Tubridy told the agents that he received the cocaine from Vincent Rizzo, who lived in Florida. Tubridy also stated that Rekasie was Rizzo‘s drug courier. Tubridy agreed to participate in an investigation of Rekasie and Rizzo and consented to have his telephone conversations with them taped.
In accordance with the Wiretapping and Electronics Surveillance Control Act (the “Act“),1 the officers contacted Linda
The first and second interceptions occurred on June 25, 1992 when Tubridy twice telephoned Rizzo at Rizzo‘s residence. The calls were placed from the police station and were recorded by a standard cassette tape recorder. The third interception occurred the next day when Tubridy telephoned Rizzo‘s brother, Vaughn, at Vaughn‘s residence. The fourth interception also occurred on June 26, 1992, when Tubridy called Rekasie at Rekasie‘s home. The fifth interception took place on June 29, 1992, when Tubridy again called Rizzo at Rizzo‘s residence. The sixth and final conversation that was intercepted occurred on June 30, 1992 when Tubridy wore a body wire when speaking with Rekasie at Tubridy‘s place of employment.2
Based on the intercepts, a search warrant was issued which permitted the Attorney General‘s office to seize and search Rekasie‘s luggage while he was disembarking from an airplane flight from Fort Lauderdale, Florida to Pittsburgh, Pennsylvania. The search revealed ten ounces of cocaine.
The trial court initially denied the motion to suppress. After reconsideration, however, the court granted the motion on the basis of our then-recent decision in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). As discussed more fully below, this court in Brion found that the Pennsylvania Constitution requires a determination of probable cause by a neutral, judicial authority before the Commonwealth may conduct an electronic interception of a face-to-face conversation in one‘s home by an individual wearing a body wire.
The Superior Court reversed. The Superior Court held that Brion was limited to the use of a body wire by a confidential informant in the home of a defendant and did not apply to the interception of telephone conversations. Accordingly, the Superior Court ruled that the trial court erred in suppressing the first five interceptions on the basis of Brion. It likewise found Brion inapplicable to the sixth interception because that interception occurred at a place of business rather than at a private residence. The court ruled that because the trial court made no factual findings regarding the circumstances surrounding the sixth interception, it could not determine whether the recorded party had a justifiable expectation of non-interception. Thus, it reversed the trial court‘s order suppressing the first five interceptions and remanded to the suppression court for an evidentiary hearing as to the sixth interception.3
This court granted allocatur to determine whether our Commonwealth‘s Constitution requires that the Commonwealth obtain a probable cause determination from a neutral judicial authority before it may monitor a telephone conversation between a cooperative informant and another individual.
As noted earlier, the Act dictates that the Commonwealth must obtain approval for a consensual interception from an individual designated by the Attorney General or District Attorney.
As is the case with all constitutional issues, our logical starting point is the language of the Constitution.
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or
things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
This court has recognized the tenet that
However, this probable cause requirement only applies to situations in which the citizen possesses a reasonable privacy expectation in the item searched or seized. See e.g. Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979). Therefore, we must initially determine whether Rekasie held a reasonable expectation of privacy in his telephonic communication with Tubridy. The Commonwealth relies, inter alia, on the principle that once Rekasie disclosed information to another in conversation, he lost any expectation of privacy in that information.4 Thus, the Commonwealth argues that it was not required to obtain a probable cause determination prior to monitoring the telephone conversation between Rekasie and Tubridy. The analytical framework, which this court has applied in considering privacy expectations recognized under the Pennsylvania Constitution, has been less than clear. Thus, consideration of the proper analytical construct to be applied in resolving the issue before the court becomes necessary.
In Katz, governmental agents attached an electronic listening and recording device to the outside of a public telephone booth and were able to overhear the defendant discussing wagering information over the telephone. The Court determined that the government‘s electronic listening to, and recording of, the defendant‘s words violated the privacy upon which he justifiably relied while using the telephone booth. In his concurring opinion, Justice Harlan articulated his view of the appropriate inquiry with respect to determining privacy rights under the
As the law has developed, it has been Justice Harlan‘s concurrence that has been utilized in evaluating expectations of privacy in cases challenging governmental intrusion. Indeed, Harlan‘s concurrence has become the standard in determining expectations of privacy under federal law. Smith v. Maryland, 442 U.S. 735, 739-40, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
For purposes of this Commonwealth‘s Constitutional jurisprudence, our court has also adopted the two-prong Katz construct as the appropriate inquiry for consideration of an individual‘s expectation of privacy under
Similarly, in the context of oral conversations, the United States Supreme Court has made clear that a person cannot have a justifiable and constitutionally-protected expectation that a person with whom he is conversing will not then or later reveal that conversation to the police. Lopez v. United States, 373 U.S. 427, 438, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)(no expectation of privacy in conversation with IRS agent); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971)(plurality) (no protection to individual against recording of statements by informant using transmitter; “one contemplating illegal activities must realize and risk that his companions may be reporting [his acts and statements] to the
This concept, that one does not have an expectation of privacy in information voluntarily disclosed to another, has been consistently applied by the federal high court in denying assertions of expectations of privacy under the
For example, in DeJohn, supra, this court found that an individual‘s bank records were constitutionally protected, even though such records constituted information disclosed to a third party. Thus, our court diverged from the United States Supreme Court‘s disclosure analysis utilized in Miller. Likewise, in Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), this court, in addressing an attempt by the police to install a pen register, recognized a privacy interest in telephone numbers accessible by a telephone company, eschewing the reasoning in Smith that there could be no privacy expectation in telephone numbers that were revealed to a telephone company.
Most recently, in Commonwealth v. Alexander, 551 Pa. 1, 708 A.2d 1251 (1998)(plurality) three members of a six member court found no expectation of privacy in a conversation taking place in a defendant-physician‘s medical office. While a plurality opinion, Alexander is nevertheless noteworthy. It continues utilization of the Katz standard in this area. Moreover, it is the most recent example of this court‘s rejection of an analysis based strictly upon the disclosure of information. Although recognizing the disclosure principle utilized by federal courts, and cited to in Blystone, the three members announcing the judgment of the court declined to extend the court‘s previous ruling in Brion to cover interceptions at the defendant‘s workplace “under the circumstances of the case,” Alexander, 708 A.2d at 1257, and opined that a heightened level of expectation of privacy in the workplace might be recognized where communication sought to be intercepted is strictly internal or where the listener was subject to control of the initiator of conversation. Id. Thus, our court has recently affirmed the possibility of a reasonable privacy expectation in information disclosed to another in certain circumstances.
In summary, unlike the United States Supreme Court, our court has declined to embrace a constitutional analysis under
Applying the Katz privacy expectation construct that has evolved under this court‘s jurisprudence to the case sub judice, we find that while Rekasie might have possessed an actual or subjective expectation of privacy in the telephone conversation with Tubridy, because of the nature of telephonic communication, it is not an expectation that society would recognize as objectively reasonable. A telephone call received by or placed to another is readily subject to numerous means of intrusion at the other end of the call, all without the knowledge of the individual on the call. Extension telephones and speakerphones render it impossible for one to objectively and reasonably expect that he or she will be free from intrusion. The individual cannot take steps to ensure that others are excluded from the call. Based upon these realities of telephonic communication, and the fact that Rekasie could not reasonably know whether Tubridy had consented to police seizure of the contents of the conversation, we hold that
Rekasie argues that our decision in Brion compels a different result.10 We disagree. In Brion, this court held that the Pennsylvania Constitution requires a warrant before police may send a confidential informant into one‘s home with a body wire to record a conversation with the defendant. This court determined that interception of an oral conversation within one‘s home could only pass constitutional muster if a neutral judicial authority makes a prior determination of probable cause.
Qualitatively different than a face-to-face interchange occurring solely within the home in which an individual reasonably expects privacy and can limit the uninvited ear, on a telephone call, an individual has no ability to create an environment in which he or she can reasonably be assured that the conversation is not being intruded upon by another party. On the telephone, one is blind as to who is on the other end of the line.11 Thus, while society may certainly recognize as reasonable a privacy expectation in a conversation carried on face-to-face within one‘s home, we are convinced society would find that an expectation of privacy in a telephone conversation with another, in which an individual has no reason to assume the
Rekasie also analogizes the expectation of privacy in a telephone conversation with another to the expectation of privacy that this court has recognized in telephone numbers. Melilli. According to Rekasie, if an individual has a reasonable expectation of privacy in the telephone number that he dials, then he must have a reasonable expectation of privacy in the contents of his or her conversation. We find that this court‘s decision in Melilli does not necessarily lead to a conclusion that one possesses a reasonable expectation of privacy in a telephone conversation with another where the other individual has consented to allow police to record the contents of that conversation.
The primary issue before the court in Melilli was whether Pennsylvania jurisprudence encompassed a good faith exception to the requirement of probable cause to support an application for the installation of pen registers. As part of the analysis, the court considered whether the installation of pen registers required support by probable cause. In resolving this secondary issue, the court held a pen register cannot be utilized by law enforcement authorities without an order based upon probable cause. In finding that the installation of pen register required a determination of probable cause, the Melilli court, relying heavily upon the analysis undertaken by the Superior Court in Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), found that there existed a privacy interest in the telephone number that one dials. In recognizing this privacy expectation, the court suggested a privacy expectation in all telephone activities:
In Beauford, the Superior Court intended to equate telephone numbers with other forms of telephone communication which are regarded as private. Telephone activities are largely of one piece, and efforts to create distinctions between numbers and conversational content are constitutionally untenable in our view.
Moreover, the Melilli court‘s suggestion of a privacy expectation in all telephone activities was not considered in the context of consensual participant monitoring; this changes the complexion of any analysis of a reasonable privacy expectation. Unlike the consensual monitoring situation, there is no other direct participant in the mere dialing of a telephone number. As noted by the court in Beauford, while the number that one dials is conveyed to a telephone company, it is done so to an entity that is a common carrier that has a virtual monopoly over this form of communication and is provided to the telephone company for limited record keeping purposes. Taking into consideration the entity to which a telephone number is disclosed and the limited business purpose for which such information is given, it is reasonable to conclude that society would find an objectively reasonable expectation of privacy in telephone numbers. Thus, this court‘s decision in Melilli does not necessarily lead to the conclusion that there exists a reasonable expectation of privacy in a telephone conversation with another.
As we find that under the Katz privacy expectation construct, the Appellant‘s expectation of privacy in a telephone conversation with another is not one that society is prepared to recognize as objectively reasonable, and that this court‘s prior case law does not compel a contrary resolution of this issue, we affirm the order of the Superior Court.
CASTILLE, Justice, files a concurring opinion joined by SAYLOR, Justice, who also joins the majority opinion.
NIGRO, Justice, files a dissenting opinion in which FLAHERTY, Chief Justice and ZAPPALA, Justice, join.
CASTILLE, Justice, concurring.
I join the majority opinion, subject to one essential qualification. It is clear to me that there is nothing in
My point of qualification concerns dicta in the majority opinion concerning whether and when a person may retain a reasonable expectation of privacy in the information itself that he discloses to others. Majority Op. at 629-31. With respect to this discussion, it is essential to recognize what is and is not at issue in this case. This Court does not face a claim that the substance of appellant‘s telephone conversation with Tubridy was subject to suppression; i.e., there is no claim that Tubridy should be constitutionally precluded from repeating in court the specific words that he recalled appellant saying to him telephonically. Instead, here, as in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff‘d on other grounds, Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), and Commonwealth v. Alexander, 551 Pa. 1, 708 A.2d 1251 (1998), the claim is that a tape recording of that conversation, made with Tubridy‘s express consent, should be excluded from evidence.
The distinction is significant. In my view, the teaching in Commonwealth v. Blystone, respecting the nature of oral communications, remains controlling as to the expectation of privacy one may have in what one says to another. Citing with approval to authority from the United States Supreme Court in that
However, where, as here, there is more than mere passive listening involved by the government agent—i.e., the government actually records or seizes the words or “disclosures” at issue, and the defendant seeks to have excluded from evidence the separate fruits of that seizure—the matter has proven to be more complicated. As the majority accurately notes, this Court‘s precedents—the correctness of which are not at issue in this case—have disapproved of certain of those seizures, even though the seizure was of information arguably “disclosed” by the defendant. Although I understand the reason for the majority‘s attempt to synthesize the various precedents, the attempted synthesis is not necessary to resolve this appeal. It is enough that, unlike Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) and Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), this case involves oral statements the defendant made to another and, unlike Brion, the recording/seizure of the oral statements did not result from the physical entry of a government agent into the defendant‘s home, the place where a person “may legitimately expect the highest degree of privacy known to our society.” Brion, 652 A.2d at 289, quoting Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978).
Here, as the majority recognizes, appellant knowingly engaged in a conversation that was not confined to the four walls of his home. Even if it is assumed that appellant was
Subject to the qualification explained above, I join the majority opinion.
This concurring opinion is joined by SAYLOR, Justice, who also joins the majority opinion.
ZAPPALA, Justice, dissenting.
Today the majority holds that the Pennsylvania Constitution affords no protection against the government listening to, recording and reporting the details of our private telephone conversations. By holding that we have no expectation of privacy in the confidential messages and conversations transmitted from our telephones, it has placed the freedom of every citizen into the hands of law enforcement authorities. As I believe this decision flies in the face of constitutional liberties and intrudes upon the sanctity of one‘s home and the privacy of one‘s communications, I most vigorously dissent and join the dissent authored by Mr. Justice Nigro.
The majority has authorized the government to seize our words as spoken to another on a telephone in our own homes, requiring nothing more than a willing participant to place the call. This conclusion rests on the majority‘s finding that an expectation of privacy in a telephone conversation is not one
In Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), our Court expressly held that society recognizes a reasonable expectation of privacy in one‘s home and that therefore a warrant is required prior to interception of oral communications spoken there. In Brion, the police sent a confidential informant wearing a consensual body wire into the home of the defendant in order to electronically record his conversations and transmit them to law enforcement officers. We ruled that although
If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then-Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978): Upon closing the door of one‘s home to the outside world, a person may
legitimately expect the highest degree of privacy known to our society. (Citations omitted.)
652 A.2d at 289 (footnotes omitted).
Because there was no prior determination of probable cause by a neutral judicial authority, we held that the consensual body wire violated
The majority also misinterprets case law addressing the expectation of privacy one has in his telephone conversations. In Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), the Superior Court examined whether the utilization by law enforcement agencies of pen registers or dialed number recorders (DNR) requires a judicial order based upon probable cause.1 The Act provided that it was not unlawful for “[a]ny investigative or law enforcement officer ... to use a pen register.”
In rejecting a contrary analysis employed by the United States Supreme Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979),2 the court stated:
[W]e are convinced that a person picking up his telephone in his home or office fully expects that the number he is about to dial will remain as private as the contents of the communication he is about to have. That number provides a strong, sometimes conclusive inference as to whom is being called, unquestionably a private matter. The caller certainly evidences no intention to shed his veil of privacy merely because he chooses to use the telephone to make private contacts. In modern-day America, the telephone call is a nearly indispensable tool used to conduct the widest range of business, government, political, social, and personal affairs. Certainly the vast majority of calls are unrelated to criminal enterprise, and yet the vast majority of callers would not think of allowing the destination of their every call to be recorded by the police.... In any case we do not hesitate to say that a caller and the person he calls expect and are entitled to as much privacy in the fact they are talking to one another as in what they say to each other.
Our Court adopted the Beauford court‘s analysis in Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), where we found that ”Beauford represents the marked trend of our state law to bring intrusions into telephone communications within the confines of an expectation of privacy under the State Constitution and thereby be subject to the requirements demonstrating probable cause.” Id. at 1258. The majority‘s attempts to cloud this clear pronouncement of the law are unavailing. It is simply beyond cavil that one‘s expectation of privacy in the contents of a conversation is greater than any expectation of privacy in the telephone numbers one dials. I therefore cannot agree that the citizens of this Commonwealth reasonably expect the government to intercept telephone conversations that occur in their homes merely because speaker phones and extension lines have facilitated the means of doing so. Our right to privacy does not rise and fall with technology, but rather is grounded in our state constitution, which has afforded the right to privacy the utmost protection. The future holds more subtle and effective means of invading privacy than we have ever imagined. Rather than relinquish our privacy rights in the face of modern innovation, we should fiercely protect them.
Accordingly, consistent with Brion and Melilli, the citizens of this Commonwealth have a reasonable expectation of privacy in telephone conversations they engage in at home and therefore a determination of probable cause by a detached judicial authority is required prior to interception. Such a requirement does not create too onerous a burden on the Commonwealth when considering the fundamental rights at stake. As no prior judicial approval was obtained in the instant case, the recording of the telephone conversation Appellant engaged in from his residence should have been suppressed.
FLAHERTY, Chief Justice, joins this dissenting opinion.
In holding that the citizens of this Commonwealth have no expectation of privacy in their telephone conversations, the majority has unwittingly cast aside the Constitution of this Commonwealth as well as controlling precedent of this Court. Because I believe that the majority has compromised our settled jurisprudence merely to reach a desired end result, I emphatically dissent.
I am mystified by the fact that while an individual has a reasonable expectation of privacy in a dialed telephone number, see Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), that person, according to the majority, has absolutely no privacy expectation in the content of his conversation. The majority‘s attempt to distinguish Melilli by noting that the question of privacy in “all telephone activities” was not the issue before the Melilli court ignores the illogic of protecting a dialed telephone number but not the content of the conversation.1 The majority‘s analysis is a prime example of failing to see the forest for the trees.
The majority‘s decision effectively renders this Court‘s decision in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), moot. Now that the Commonwealth may record an individual‘s statements made in his home over a telephone line without any prior judicial determination of probable cause, why would the Commonwealth ever bother sending an informant into the home in order to intercept conversations? By way of a simple telephone call, the Commonwealth can now record any conversation at its discretion without having to obtain the judicial approval needed to record a face-to-face conversation.
The majority alleges that Brion is distinguishable because an individual has less control over who may intrude upon a
According to the majority, the existence of extension telephones and speakerphones make it unreasonable for citizens to assume that their telephone conversations are private. Given the ever-increasing technological means for eavesdropping into private affairs, it appears, under the majority‘s rationale, that it is only a matter of time before there is no privacy anywhere or in anything. In my view, the constantly expanding ways in which the Commonwealth is able to intrude upon our private affairs calls for heightened, rather than diminished, protection of our constitutional rights. Requiring the Commonwealth to obtain a judicial determination of probable cause prior to interception of an individual‘s telephone conversation is not so heavy a burden as to outweigh a citizen‘s fundamental constitutional right to be free from such intrusion. I respectfully dissent.
FLAHERTY, Chief Justice, and ZAPPALA, Justice, join in the dissenting opinion.
Notes
At the time, the Act defined “pen register” as a mechanical or electronic device which attaches to a particular telephone line, and which records outgoing numbers dialed by a particular telephone, but does not monitor the contents of any communication or record the origin of an incoming communication.It shall not be unlawful and no prior court approval shall be required under this chapter for:
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(2) Any investigative enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities including, but not limited to, the crimes enumerated in section 5708 (relating to order authorizing interception of wire, electronic or oral communications), where:
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(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General ... has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception....