Commonwealth v. Schaeffer

delayed through no fault Com- prosecution faith monwealth.

Id., Common- quoting 502 Pa. at 466 A.2d at Genovese, 493 Pa. 65, 69-70, v. 425 A.2d 369- wealth prosecution under the circumstances here To dismiss of a present discharge delay would defendant because he, himself, caused. It do to enhance nothing which would disregard his trial and right speedy totally would society’s prosecution. interest effective proceedings Reversed and remanded for further consist- ent this opinion. Jurisdiction not retained.

536 A.2d 354 Pennsylvania COMMONWEALTH SCHAEFFER, Jr., Appellant. Paul R.

Superior Pennsylvania. Court

Argued Dec. 1986.

Filed Dec. 1987. appellant. for Campana, Williamsport,

Peter T. Osokow, Attorney, Assistant District Kenneth A. Com., appellee. Williamsport, ROWLEY, CIRILLO, Judge, and President Before BECK, SOLE, MONTEMURO, OLSZEWSKI, DEL POPOVICH, KELLY, JJ. TAMILIA, CIRILLO, Judge: President technique of a of electron- legality concerns the

This case monitoring,” using “participant as ic surveillance known conversa- surreptitiously person’s record a body wire whether, Consti- Pennsylvania The issue is under the tions. based on tution, need a search warrant an into the home of a confidential informer cause to send record his conversations electronically individual hold that article police. them We transmit back constitution, right the protects which section 8 of our and sei- from unreasonable searches to be secure people for the zures, probable a cause requires warrant based therefore communications. We electronic seizure of such remand for a new the of sentence and judgment reverse electronic sur- the fruits of the warrantless trial at which excluded. of the defendant will be veillance possession The Schaeffer was convicted of appellant simple and three counts of marijuana intent to deliver em- police The had substances. of controlled possession pur- make a controlled informant confidential a ployed in his home. A number from Schaeffer marijuana chase of body a later, the same informer with equipped they days home to make him into the Schaeffer sent and transmitter occurring, police was the As the transaction buy. another between Schaeffer recorded a conversation monitored that would have indicating informer Schaeffer the evening specified of a by for sale the marijuana additional date, out a police the swore The after that day date. home, reciting as to search Schaeffer’s warrant made and the the informer had buys controlled cause the the had overheard. police the conversation contents of drugs that warrant and seized executed the prosecution. the basis for formed motions, post-trial and in suppression motion pre-trial In a of the electronic constitutionality challenged Schaeffer court police. The trial used eavesdropping procedure motions, alleging appealed, and Schaeffer denied the the federal and state home violated both search of his constitutions. of this court appeal, panel filed his

After Schaeffer nor the neither the federal holding an opinion issued inter- electronic constitution forbids warrantless state transmittal, recording person’s of a conversa- ception, party the other to the conversations tions in his home where v. Har- Commonwealth interception. consented to the has Com- accord (1985); vey, 502 A.2d 679 Pa.Super. Rodriguez, 543, 515 A.2d 27 monwealth v. Pa.Super. Frank, see also Commonwealth (1986); 442, 448-49, great Due to the 516 A.2d involved, this case of the issue we ordered importance the court en banc to reexamine whether argued before Harvey Constitution correctly interpreted Pennsylvania the warrantless affording protection as no from government agent secret of an individual’s seizure his privacy home. conversations

I 3, 1978, Before December the effective date of the Wire- Act, tapping and Electronic Surveillance Control 18 Pa.C.S. 4, 5701-5727, 1978, 164, 3, see Act of Oct. No. sec. §§ 831, 848, electronic eavesdropping party’s Pa.Laws with one consent, implicate which the court found not to Harvey right state constitutional to privacy, second-degree was a proscribed by Chapter misdemeanor an amendment to 57 of Code, the Crimes at that time which was entitled “Invasion 27, 1974, 327, Act Dec. Privacy.” See No. 1978). (repealed Pa.Laws 1007 The remainder of that chap- 6, wiretapping. ter Act of Dec. banned See No. 5701-5704, sec. (repealed 1972 Pa.Laws 1568-69 §§ 16, 1957, 1978); Act of July accord No. 1957 Pa.Laws 1972). 956 (repealed Act,

The 1978 retaining enhancing while the criminal penalties for and other wiretapping interceptions communications, see Pa.C.S. carved out limited § exceptions general prohibitions. significant- these Most ly, the Act for the first time history Commonwealth’s specifically authorized law enforcement officers to engage surveillance, in wiretapping and electronic subject stringent procedure showing probable cause before superior judge. court generally See id. 5708-5726. The §§ Act certain other electronic exempted surveillance tech- from these niques technique strictures. used in this 5704(2): case is treated in subsection Exceptions prohibition interception 5704. § disclosure of communications It chapter shall be unlawful under this for: investigative or Any law enforcement officer or any person acting at the direction or request investiga- of an tive or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:

(i) person such officer or is a party communica- tion; or given communication has

(ii) parties one of interception____ to such prior consent (West 2511(2)(c)-(d) Supp. 5704(2); 18 U.S.C.A. Id. § § cf. 1987). 5704(2) court, with faced the contention

The Harvey unconstitutional, presumption strong judicial noted the was held, of a statute and constitutionality in of the favor amendment to things, that neither the fourth other among article section 8 States Constitution nor the United type for the requires warrant Constitution Pennsylvania 5704(2) monitoring permits. which participant of electronic Hassine, v. 340 Pa.Su- Commonwealth Rodriguez; Accord 318, we concur with Although 490 A.2d 438 per. amendment, interpreted as fourth that the Harvey Court, one-par- no limits on Supreme imposes United States disagree ruling we its eavesdropping, consent with ty engage Constitution the Pennsylvania may under the monitoring a citizen’s home without first obtain- such 5704(2) not find section ing a search warrant. We need holding, reason- to arrive at this because a unconstitutional Act the conclusion that the able construction allows monitoring Assembly’s exemption participant General was prohibitions requirements from the Act not necessarily legislative practice declaration that the was of state free constitutional constraints as well.

A As a matter of federal jurisprudence, constitutional the Harvey panel’s conclusion that warrantless monitoring does not offend the prohibi fourth amendment tion on unreasonable searches seizures is correct.

The United States first Supreme Court reviewed 747, practice States, Lee v. On United 343 U.S. S.Ct. 967, (1952), 96 L.Ed. 1270 informer equipped where an an electronic recorder inter- surreptitiously and transmitter cepted the laundry shop defendant’s statements his transmitted them to a federal held there agent. The Court was no fourth amendment the informer violation because he premises on the defendant’s when trespassed

had with the defendant. Court them to converse entered liken analog[y] it a “farfetched which would further found conversation, with the connivance on a eavesdropping search and seizure.” to an unreasonable parties, one of the see also Goldman 972; 753-54, 72 S.Ct. 343 U.S. at States, United 86 L.Ed. 1322 62 S.Ct. U.S. (warrantless eavesdropping telephone not a fourth amendment from room adjoining conversation States, v. United Olmstead 277 U.S. violation); (1928) (warrantless off-premises 72 L.Ed. 944 S.Ct. violation). amendment not a fourth wiretapping States, In Katz v. United 88 S.Ct. 389 U.S. however, “trespass” laid the (1967), the Court L.Ed.2d 576 rest, holding protection amendment theory of fourth protects people, places. Amendment the Fourth public, to the even knowingly exposes a person What Amend- office, not a of Fourth subject home or his own preserve he as But what seeks protection. ment be public, may in an area accessible to the even private, constitutionally protected. omitted). (citations 351-52, 88 at 511

389 U.S. at S.Ct. a defend- recording of monitoring found that the Court bugging of an electronic device ant’s means by words public telephone a booth “violated attached to the outside of using, relied while upon justifiably which he privacy a 'search and seizure’ and thus constituted telephone booth Id. 353, of the Fourth Amendment.” meaning within the determined already 512. The Court had before 88 S.Ct. at Katz “search” and that electronic surveillance could be a meaning of that could “seized” within conversations See, York, v. New e.g., Berger 41, 388 U.S. amendment. 1873, (1967) statute (invalidating 18 L.Ed.2d 1040 S.Ct. as eavesdropping electronic authorizing judicially-ordered of requirement fourth amendment violative on its face of States, Silverman v. United particularity); search warrant 679, (1961) (warrantless 5 L.Ed.2d 734 U.S. S.Ct. “spike mike” violated fourth into house with intrusion amendment, of suppressed). fruits surveillance White, 401 U.S. 91 S.Ct.

In v. United States (1971), got Court the chance Supreme L.Ed.2d light the advances in fourth amend- of reassess On Lee its bringing eavesdropping electronic within ment doctrine Lee, holding of A reaffirmed the On divided Court scope. on conversations eavesdropping finding warrantless and an informant means of a radio by a suspect between did not person the informant’s transmitter concealed amendment, than did secret any more a violate fourth or a suspect’s words to reporting informer’s them, agent’s secretly recording neither government the Court had found to violate the Constitution. See which States, 408, 17 385 U.S. 87 S.Ct. v. United Hoffa (secret re- (1966) government may informant L.Ed.2d 374 government); suspect’s Lopez conversations port States, 83 S.Ct. 10 L.Ed.2d 373 U.S. United (IRS record defendant’s agent surreptitiously could Justices, offer). Writing for four Jus- plurality bribe tice White reasoned: agent operating

If an the conduct revelations do the defend- equipment not invade without justifiable privacy, constitutionally expectations ant’s con- recording simultaneous same neither does a from trans- agent versations made others from agent missions whom defendant received neces- talking the defendant is and whose trustworthiness sarily risks. gives protection wrongdoer If no to the

... the law accomplice police agent, is or becomes a whose trusted it him when the same has protect agent neither should which later recorded or transmitted the conversations are the State’s case. prove offered evidence 751, 752, 1126, 1126 White, (plurality 401 at 91 S.Ct. at U.S. Black concurred based opinion). judgment Justice Katz, expressed had 389 U.S. the now-discredited view he 364-74, (Black, J., dissenting), at 518-23 88 S.Ct. 188 prohibition

fourth amendment’s on unreasonable searches did not apply eavesdropping and seizures on conversa- 754, White, (Black, J., tions. 401 U.S. at 91 S.Ct. at 1127 concurring).

An holding alternative Court was that White Katz did not to the apply retroactively pre-Katz bugging that 754, 1127, place took Id. at 91 S.Ct. at 1128 White. (Brennan, J., (plurality opinion), 755 concurring); accord States, 244, 1030, 394 Desist v. United U.S. 89 S.Ct. (Katz (plurality retroactive). L.Ed.2d 248 opinion) Brennan concurred in the Justice White result on the limit grounds ed nonretroactivity, disagreed Katz’s but on the plurality constitutionality White of warrantless participant monitoring after Douglas, Katz. Justices Har lan, and Marshall each dissented in White would have applied retroactively Katz and found the moni toring to have violated the fourth amendment. White,

In summary, after Katz and the fourth amend requirement applies ment warrant to electronic eaves dropping conducted police without the consent of conversation, Katz; either party see Berger; cf. Karo, 705, United States v. 468 U.S. S.Ct. (1984) (warrantless L.Ed.2d 530 monitoring of electronic amendment), in home beeper violated fourth does not but apply parties where one of the to the conversation consents. White; See Commonwealth v. Donnelly, 396, 408-13, 336 A.2d 638-41 (following under White amendment), fourth allocatur refused, Pa.Super. xxxvi (Pa.1975), denied, cert. 424 U.S. 96 S.Ct. (1976); Caceres, L.Ed.2d 744 see also United States v. U.S. 99 S.Ct. 59 L.Ed.2d 733

B however, authority, Our to diverge from the United Supreme States Court recognizing higher level of protection for rights individual under our state constitution Brennan, well settled. See generally State Constitu tions and the Protection Individual Rights, Harv.L.

189 that this state has (1977). cannot be doubted 489 Rev. “[I]t includ guard rights, individual power to the constitutional searches and free from unreasonable right to be ing does government than the federal seizures, zealously more v. Constitution.” Commonwealth under the United States 783, (1984), 253, 263, 475 A.2d 788 Pa.Super. Beauford, 327 (1985); dismissed, ac 319, 1143 Pa. 496 A.2d appeal 508 Sell, 504 Pa. 46, 63-64, v. 470 A.2d Commonwealth cord Tarbert, 348 Pa.Su v. (1983); Commonwealth 457, 466-67 allowance 309-11, 221, (1985), 306, A.2d 222-23 502 per. In re 363, (1986); Pa. 513 A.2d 1381 appeal granted, 511 allow 863, 350, 372, 851, 491 A.2d Gartley, Pa.Super. 341 352, (1985). Pa. 497 A.2d 610 appeal granted, 508 ance of state,” therefore, impose “has the stan power “[T]he required higher seizures than those on searches and dards DeJohn, v. Commonwealth Federal by the Constitution.” 1283, opinion) 32, 43, (plurality A.2d 1288 486 Pa. 403 Harris, 2, 215, 219 n. v. 429 Pa. (quoting Commonwealth denied, 444 cert. (1968)), 2 U.S. A.2d 292 n. 239 Common (1980); accord 668 62 L.Ed.2d 100 S.Ct. 519 A.2d Leninsky, wealth v. Pa.Super. Walsh, v.

(1986) (plurality opinion); Commonwealth appeal allowance 767, 771, 65, 74, A.2d Pa.Super. see Coo (Pa.1983); denied, A.2d 767 788, 791, 58, 62, 87 S.Ct. per California, 386 U.S. L.Ed.2d Sell, Justice) (now quoted Nix Justice

In Justice Chief deciding for state courts faced with guidelines Brennan’s interpreted constitutions should be their own whether rights of individual than the protection broader provide recognizes under the federal: Supreme States Court United be, not, are and should not decisions of the Court [ T]he regarding rights guaranteed by dispositive questions Accordingly, of state such counterpart provisions law. law mechanically applicable are not to state decisions issues, of the bar judges and state court members Rather, if treat them. state court seriously they err so consti- practitioners, and also do well to scrutinize judges, courts, tutional decisions by federal if are only they well-reasoned, found to logically persuasive pay- ing due to regard precedent policies and the underlying specific guarantees, constitutional may they properly claim persuasive weight guideposts as interpreting when counterpart guarantees. state Brennan, 504 Pa. at 470 A.2d at 459 (quoting supra, at 502). DeJohn, In one which observer has called “a model of independence,” Galie, state constitutional The Pennsylva- nia Constitution and the Protection of Defendants’ A Rights Survey, 1969-1980: U.Pitt.L.Rev. (1981), our high provided state court further guidance on the deference owed to decisions of the United States Su- preme Court: constitution,

For a state court interpreting a state opin- ions of the Supreme United States Court are like opinions of sister state courts or lower federal courts. While neither in a binding precedential constitutional sense nor one, in a jurisprudential they are entitled to whatever weight their reasoning persuasiveness and intellectual warrant. One would a state expect court to deal careful- ly Supreme with a Court opinion explain to forth- it rightly why found itself constrained to reason different- But such

ly. reasoning a difference should be no more alarming than the differences impel judge which one opinion, dissent from another’s one court disagree another, or the court to judges any disagree with a precedent predecessors. established their 486 Pa. at 403 A.2d at 1289 (plurality opinion) (quoting Falk, The State Constitution: A “Adequate" More Than Ground, (1973)); 61 Calif.L.Rev. 283-84 Nonfederal 264-65, Beauford, accord 475 A.2d at 789. Having heart, taken this counsel to we reject reasoning Court, Supreme United States followed this court in which finds that a citizen Harvey, gives up the right to be free from warrantless electronic seizure of spoken words in his home because simply party another the conversation has consented to the In interception. no citizen should have Pennsylvania, Commonwealth and irrevoca- may immediately government expect he voices them to every time thoughts private his bly seize be- Moreover, the distinction whatever person. another consent and done without eavesdropping electronic tween govern- consent of a done with the eavesdropping conclusion support a rational informant, it does not ment and seizure” government “search is a practice the first while the privacy zone of protected speaker’s into a more valid contrary, is not. On practice second is between purposes for constitutional distinction to recount what of an informant mere use government’s electronic moni- its simultaneous him and has told someone home, in his because spoken toring of a man’s words freedom of privacy on intrusion graver is a far latter warrant, manifestly intrusion is such speech. Without I, section 8 of article unreasonable, therefore violative Constitution, Harvey and we overrule Pennsylvania they the extent that of this court to other decisions and all 554-55, 502 A.2d at Pa.Super. 348 Harvey, hold otherwise. 68; 448-49, 516 A.2d at 683-84; Frank, at Pa.Super. 357 at 31-32; 551-54, 515 A.2d at at Pa.Super. 356 Rodriguez, cf. (wire- 353-57, A.2d at 456-59 490 Hassine, 340 minority courts of a small high tap). join We thus and found with White parted ways that have jurisdictions rights offends monitoring that warrantless Glass, v. state constitutions. See State guaranteed by their Sarmiento, (Alaska 1978); 397 So.2d State v. 583 P.2d 872 554, 227 Beavers, 393 Mich. (Fla.1981); v. People 643 878, 96 46 denied, 423 U.S. S.Ct. N.W.2d cert. Brackman, 178 Mont. 582 (1975); v. L.Ed.2d State 307, 686 P.2d 816 (1978); Lee, 67 Haw. P.2d 1216 v. State cf. monitoring (1984)(3-2 holding one-party consensual decision constitution); Lester, 64 Haw. v. not violative of state State Menor, J., (1982) (same, concur although 649 P.2d interceptions requirement ring, apply would the warrant 1982)(court (La. home); Reeves, 427 v. So.2d State warrant required constitution held 6-1 that state originally after acces- monitoring; rehearing on one-party consent not); new held 4-3 that it did Com justices, sion of three 271, 384 Mass. N.E.2d Thorpe, monwealth v. and sei

(warrantless recording didn’t violate state search scope of limited of surveillance done provision zure view such; court whom defendant knew to be by policeman for such advised obtain warrants nevertheless cause), denied, they had cert. monitoring where 1147, 102 71 L.Ed.2d 300 But 454 U.S. S.Ct. Ridenour, (Fla.Dist.Ct.App.1984) So.2d see State after amendment to Fla. (Sarmiento longer good no law Const, 12). art. § begin observing that our state constitution

We right privacy more than exists protection offers recognizes greater right and hence it regime, the federal impositions by to exclude unreasonable of the individual The government private primary, communications. Penn protection not the source of such though only, I, section provides: Constitution is article which sylvania houses, pa secure in their people persons, shall be from searches and pers possessions unreasonable seizures, or to seize any place and no warrant to search them things describing shall issue without any person be, cause, sup nor without nearly may as as or affirmation subscribed to the affi ported by oath ant. Const, I, I, Pennsyl- art. 8. “Article section 8 of the

Pa. § Constitution, court, this consistently interpreted by vania as recognition protection of the need for greater mandates the right from conduct to illegal government offensive of Sell, (emphasis 504 Pa. at 470 A.2d at 468 privacy.” added) precedent Court (rejecting Supreme United States standing challenge adopting and rule of automatic in Pennsylvania). offenses involving possessory searches court, Sell, Nix, In offered a supreme through the Justice I, the article explanation why meaning historical for of interpretations 8 could not confined narrow section to the fourth amendment: given

193 against protection unreasonable searches [ C]onstitutional Pennsylvania than decade seizures existed in more Constitution, fif federal adoption the of the before prior promulgation of the Fourth years teen the Pennsylvania Clause 10 of Constitution Amendment. guarantee. 1776 afforded such a I, highly section we find it construing In Article provision in that significant language employed in any significant respect from words vary does in The text of counterpart our first constitution. its I, no basis for the conclu- provides Article section thus it purpose today embodies philosophy sion that the Common- prompted from those which first differs from guarantee protection gov- unreasonable wealth Rather, of the lan- intrusion. the survival ernmental I, through employed in Article section 8 over guage now profound change other areas demon- years first paramount privacy concern strates that organic of our law 1776 continues to adopted part as of this enjoy people the mandate of the Commonwealth. 63, 65, Pa. at 470 A.2d at 467. Therefore, guarantee against in applying this “unreason- intrusion,” Supreme governmental Pennsylvania able searches and seizures to standards subjected Court “has than under the Constitution higher required those Federal doing right so noted that ‘the to be has] [and free from and seizures contained in Art. unreasonable searches into Constitution is tied Pennsylvania 8§ ” in this Commonwealth.’ Lun- implicit right privacy Pennsylvania Representatives, House derstadt 236, 247, opinion) (plurality Pa. 519 A.2d DeJohn, (plurality at A.2d Pa. (quoting ours). opinion)) (emphasis

Indeed, Beauford, this as court observed princi- in the constitutional Embodied ] statementf I, than ple right privacy art. is a older either [in § 8] the federal state constitution. Commonwealth v. 194

Palms, 430, right 481 The 141 15 A.2d is at searches and seizures to be free from unreasonable of our in direct line with “the body politic, the foundation Englishman an that his home was his proud boast long law, King obeyed that as as he castle and Id., his 141 against his could not enter it will.” army at A.2d at 485. Pa.Superior Ct. 15 787; A.2d at also Pa.Super. at see Beauford, 327 (“The Fourth Silverman, 81 S.Ct. at 365 U.S. secures, it have Amendment, personal rights which of a man very right At the core stands long history. there from his own home and be free to retreat into intrusion.”). governmental unreasonable hence the Pennsylvania, right privacy The intrusion, encom government unreasonable right exclude See, personal from matters. freedom disclosure passes Commonwealth, Ethics State e.g., Denoncourt (1983) Comm’n, 197-98, A.2d Pa. Allegheny County In re (plurality opinion); June 143, 151, A.2d 490 Pa. Jury, Grand Investigating Kauffman, JJ; C.J., joined O’Brien & (Eagen, Larsen, J., J., dissenting grounds, on other Flaherty, & ex holding) (“This interest finds privacy concurred in the Constitution, Art. in the protection Pennsylvania plicit 1____”). Denoncourt, summarized Flaherty In Justice § right to underpinnings some of the of our constitutional century on the used half a privacy, drawing language Brandéis the view that warrant- earlier Justice to combat right: did not on that wiretapping less trench con- our undertook to secure makers of Constitution rec- happiness. They pursuit ditions favorable nature, his spiritual man’s ognized significance feelings part his knew They only and of intellect. of life are to be pleasure and satisfactions pain, things. Ameri- They sought protect found in material beliefs, their their emotions and thoughts, cans in their They against govern- their sensations. as conferred,

195 ment, most comprehensive to be let alone—the right the by most civilized men. rights right and valued of (quot- (plurality opinion) Pa. 470 A.2d at 948-49 at States, at 48 S.Ct. at v. 277 U.S. ing Olmstead United added)); (Brandéis, J., accord dissenting) (emphasis 37, 50-51, 223 A.2d v. 423 Pa. Murray, Commonwealth J.). (Musmanno, opinion) (plurality 109-10 of comprehensive this “most protecting When it comes moreover, that High nation’s Court concedes rights,” right to protection general privacy of a person’s “the —his protection like the right people is, let alone other — life, the law very his and his left of property largely of of Katz, 350-51, at 88 S.Ct. at the individual states.” 389 U.S. omitted). (footnotes 510-11 took the first Beauford,

In this court Commonwealth of higher protec- standard giant step recognizing towards a Pennsylvania tion electronic surveillance under the from provides. than the Federal We Constitution Constitution prohibited there that article section 8 the warrantless held line to record pen register telephone of a on a installation destination, We time, length outgoing of calls. so and Electronic provision Wiretapping held a despite Act, 5704(5),declaring it Surveillance Control Pa.C.S. § this for a law enforce- chapter” “not unlawful under ... despite ruling register, ment to use a pen officer a use Supreme that warrantless United States Court does not offend the fourth amendment. pen registers 61 L.Ed.2d Smith v. U.S. S.Ct. Maryland, disagreed Supreme We thus Court “legitimate expectation of the individual’s extent in cases of warrantless electronic surveillance. privacy” determining particular whether a Smith said “[i]n surveillance is a government-initiated form Amendment, meaning ‘search’ of the Fourth our within ],” application lodestar is and that under Katz “the [Katz person depends the Fourth Amendment on whether the can claim invoking protection ‘justifiable,’ its ‘reason- able,’ ‘legitimate expectation or a has privacy’ been

invaded by government action.” 442 739-40, U.S. at (footnote S.Ct. at 2580 omitted). Thus, citations holding reach its that the fourth amendment did not extend to pen registers, use of Court Smith found that a caller “legitimate had no expectation of privacy” regarding the numbers he dialed on his phone. Id. 99 S.Ct. at 2581. rejected the reasoning in Smith and found that

Beauford I, under article section 8 expectation an of privacy in legitimate numbers dialed was and therefore constitutional- ly protected from government surveillance without a war- rant. We relied heavily DeJohn, on wherein the Pennsylva- Supreme nia rejected Court the holding of the United States Supreme in Court Miller, 435, United States v. 425 U.S. 96 1619, S.Ct. 48 L.Ed.2d 71 that the fourth amendment did prohibit the warrantless records, seizure of banking and found that a bank expectation customer’s in privacy her banking reasonable, records was legitimate, and consti- tutionally protected I, under article DeJohn, section 8. in turn, precedent followed the in set Burrows v. Superior Court, 238, 13 590, Cal.3d 529 P.2d 118 Cal.Rptr. (1974), 166 where the California Supreme Court sophis- focussed on the ticated data-gathering storage capabilities made possi- by means, ble modern electronic and warned: Development machines, of photocopying electronic com- puters and other sophisticated instruments have acceler- ated government ability to intrude into areas which person normally chooses to exclude from prying eyes inquisitive minds. Consequently judicial interpreta- tions of the reach of the protection constitutional individual privacy keep pace must with the perils created by these new devices. 247, 596, Cal.3d at 529 P.2d at 172, 118 Cal.Rptr. at DeJohn,

quoted 46, in 486 Pa. at 403 A.2d at 1290 (plurality opinion). supreme Our agreed, court saying believe “[w]e analysis California Supreme Court, in recognizing realities, modern electronic is more persuasive than the simplistic proprietary analysis supposedly in rejected at 486 Pa. used the court Miller.” ], by [Katz C.J., Nix, J.; J., (O’Brien, by Eagen, joined A.2d at 1290 concurred Manderino, J., dissenting grounds, on other holding). registers finding pen the use of opinion,

Our Beauford great also relied on the requirement, to the warrant subject intru- regarded has always this State caution with which through electronic surveil- accomplished privacy sions on 790-91; 267-68, see, 475 A.2d at Pa.Super. lance. A.2d 28 442 Pa. Papszycki, v. Commonwealth e.g., 50-51, 223 A.2d at 109-10 (1971); 423 Pa. at Murray, telephone conversation (eavesdropping (plurality opinion) rights guaran- on privacy one consent intruded party’s Const, 8); Pa. art. see also Commonwealth teed §§ (1985); 498 A.2d Doty, (1978) (statement Legislative House Journal Pa. Rhodes). Rep.

Thus, Pennsylvania shows the recent trend of decisions accept our courts to the United States a marked refusal gives up that one all constitution- Supreme premise Court’s disclosing merely by in certain matters rights privacy al persons. other them selected course, protection vaunted additional which the

Of all the privacy extends to its citizens’ Pennsylvania Constitution no moment in this case if one concludes that electronic through government a informant sent into a eavesdropping in privacy a zone of which person’s home does invade This the person protection. that claim Har- may justifiably concluded, view, quite in our on a me- relying, court vey reasoning the Su- application employed chanical in court ac- preme plurality Harvey Court White. power impose high- this state’s constitutional knowledged and than the feder- er standards on searches seizures Constitution, under the United States government al does acknowledged Pennsylva- and DeJohn Beauford interpreted provide nia courts had article section 8 against unreasonable searches and sei- protection broader provides. zures than the fourth amendment “Neverthe- less,” stated, court Harvey any interpretation

it is difficult under of Article Section expectation to find a justifiable privacy respect to information disclosed a during conversation with third person. made are during Disclosures conversation entire- ly voluntary. voluntarily If a citizen discloses criminal involvement conversation with a during person, third Pennsylvania guarantee against constitutional unreason- prevent able searches and seizures does not future disclo- sure thereof to law enforcement officials. Similarly, the guarantee prevent constitutional does not extend to or a recording of the conversation in order to preserve the same for use in Nothing law enforcement activity. contemporary thinking constitutional suggests otherwise. 555, 502 A.2d at 684. all due respect With of Harvey, author whose judicial scholarship expression of opinion are normally beyond reproach, there is a body “contempo- substantial rary thinking,” judicial constitutional scholarly, both suggesting one-party consensual electronic eaves- dropping suspect’s conducted in home without warrant his constitutionally invades protected sphere of privacy more intrusively practice than the in- simply using an former without a transmitter to body report suspect’s on a fact, In White, words. Lopez that, and in before four members of the Supreme precisely Court were of that opinion. Brennan,

As Justice one of occasions, the four on both Lopez: wrote in Agent deception

It is not Davis’ that offends constitution- principles, al but his use of an electronic to probe device and record words spoken privacy of a man’s office. there, For is a qualitative difference between electronic surveillance, whether the agents conceal the devices on persons beds, their or in or walls under and conventional police stratagems such as eavesdropping disguise. and The latter do not so seriously intrude upon right the of eavesdropper an being by risk overheard privacy. The identity the deceived as to informer or an betrayed by in inherent probably is one deals whom of one with risk kind of we It is the society. human conditions as But as soon speak. we whenever necessarily assume changes the risk play, into comes surveillance electronic of eaves- kind no from that security There is crucially. risk, and so not even mitigating the way no dropping, of true privacy. residuum J., (Brennan, joined by 465-66, at at 83 S.Ct.

373 U.S. JJ., dissenting). And as Justice Goldberg, Douglas and later recanted Harlan, majority, Lopez of the author White, in said bugging third-party impact practice

The of the confi- undermine that such as to be considered [must] one another dealing security and sense of dence relationships between is characteristic of individual goes beyond impact society. in a free It citizens of “informer” ordinary type privacy occasioned States, 385 U.S. v. investigation upheld United [Lewis 206, 87 17 L.Ed.2d S.Ct. ] [Hoffa opinion, argument plurality States United ]. it irrelevant whether secrets are effect that transistor, ignores or the by the mere tattletale revealed monitoring and third-party the differences occasioned full and accurate disclosure all recording which insures said, oversight of error possibility that is free of the reporting. inheres in human (Harlan, J., 1143-44 White, 91 S.Ct. at 401 U.S. distinc- put constitutional scholar dissenting). And as a monitoring, informing mere and electronic tion between split asunder over the issue Court Supreme before profound is more portrayal White: “[T]he —since reproduce capacity as to one’s deception it includes simultaneously transmit it accurately or conversation —and remarks are participant’s the other more inclusive—since reported selectively rather than indiscriminately by, heard Greenawalt, to, The Consent Problem nonparty.” 200 Surreptitious

Wiretapping Eavesdropping: Monitor- with the ing Participant Consent in the Conversa- of tion, (1968). 68 Col.L.Rev. 215

Thus, immediate, invasive, electronic seizure is more informant, total than mere oral repetition by an and its effects on are people’s feelings they secure their speak private homes to far are more insidious. Electron- surveillance, consent, ic with or without one party’s there- speaker fore forces the readjust completely to his tradition- al privacy expectations. expectations Whether such remain societally “legitimate” today’s world is the question we answer, must we do to but would well remember that surveillance, before the of advent society did recognize the legitimacy private notion of speech.

The common to right law secures each individual the determining, what ordinarily, to extent his sen- thoughts, timents, and emotions shall be communicated to others.2 Under our system government, he can never be com- to pelled express (except them upon when the witness- stand); and if give even he has chosen to expres- them sion, he generally the power retains to fix the limits of given which shall publicity be them. 2 right every keep "It is certain man has a to his own if sentiments pleases. certainly right judge will he He has whether he make Yates, public, only sight of them or commit them his friends.” J., (1769). Taylor, in Millar v. 2379 Burr. Right 198 n. Privacy, Harv.L.Rev. & (authored Brandéis); D. D. by Samuel Warren & Louis see Denoncourt, 197-200, also Pa. at A.2d at 948-49 (plurality opinion); 423 Pa. at 223 A.2d at 109 Murray, (“natural (plurality opinion) robbery law ... makes the one’s words as much a crime as purloining money his or Westin, jewels”); Privacy A. and Freedom keep concerning The individual must some his facts thoughts a small of people. within zone At the same time he must free to out or pour his woes inspirations dreams others. He remains the judge sole as what must be said and must unspoken. what remain This is in the First privacy inherent of the idea the essence as weli as the Fourth. Amendments Fifth J., (Douglas, White, 763, 91 at 1131 at S.Ct. 401 U.S. 452, 470-71, Lopez, 373 U.S. at see also dissenting); (“Surely high (dissenting opinion) 1404-05 S.Ct. find it only persons not the who officials are government ”). things ‘off the record.’ say to essential to be able surveillance, privacy this zone which With is gone. of his auditors range a man to choose the allows government private to the resulting disclosure The found, court but Harvey voluntary as the thoughts is States, v. United U.S. compelled. See Osborn J., 351-52, 429, 445, (Douglas, L.Ed.2d 87 S.Ct. (Bren- Lopez, at at 1393 U.S. S.Ct. dissenting); a nan, J., accepts knows and as dissenting). Every speaker go his listener society” may of human that “condition up speaking give not intend to police, but he does police from his home. But if the to exclude the right word, recording they already are simultaneously every are uninvited, there, home, contrary in to reasonable every A person people society that most still have. expectation he sight of friends” knows committing his views “to the his friends, forfeit the right his but he doesn’t misjudging risks directly in the to whom he will place to determine first right of self-determina- speak. body bug destroys that tion, is people society practice and if come believe cause, they may and widespread done without begin many previously they to fall silent on occasions when felt that speak, would have free confident the belief challenge memory of the trust- they credibility could betray colleague ed who would them. therefore, reason, is good

It with that the main constitu- many tional distinction authorities draw between is monitoring ordinary reporting of conversations bug- the far and more that graver chilling “body threat ging” poses speech: to freedom of

Authority hardly required proposition support good carefully words would be measured a deal more if inhibited one suspected communication his conver- sations being were transmitted and transcribed. Were a third-party bugging prevalent practice, it well might frivolous, spontaneity impet- smother that —reflected uous, sacrilegious, and defiant discourse—that liberates daily exchange forgotten life. Much offhand is easily remarks, may obscurity one count of his protected audience, very fact of a limited and the likelihood forget that the listener will either overlook or what is said, as inability as well the listener’s to reformulate a having conversation without to contend with a document- ed record. All these values are sacrificed aby rule of law permits monitoring official of private discourse limit- ed only by willing the need to locate assistant. White, 787-89, (Harlan, J., U.S. 91 S.Ct. at 1144 (footnotes dissenting) omitted). differences talking person between enswathed

[ t]he equipment real, and one who not are very and they cannot be reduced to insignificance by verbal legerdemain. All topics of us discuss expressions use person with one that we would not with undertake anoth er and that we would never to a broadcast crowd. New of us would if speak freely ever we knew that all our were being captured words machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as person. he talks to a Burr, 55, (9th Cir.) Holmes v. (Hufstedler, J., 486 F.2d 72 dissenting), denied, 850, cert. 414 U.S. 38 S.Ct. L.Ed.2d argues state that there is no difference

[ T]he between to a talking friend who repeats what is told in confidence and talking one with a transmitter recorder. All one needs do to refute that statement tois ask the question oneself; would make it a substantial differ ence to the speaker risk, assume the not only one’s confidence be betrayed recollections, will by oral but also the risk that one’s remarks will be secretly recorded or broadcast? Certainly, many casual, inhibited, as caustic, remarks would be the irreverent employee policies. criticism individuals would shortcomings in his point impunity could not with Families of his office. could or in the functions superiors prodding of others. Clever discuss the foibles freely sex, religion, poli- comments about thoughtless elicit may one’s in- finances and even tics, acquaintances, personal friend takes the risk that his One thoughts. nermost re- shouldn’t be what has been said. One may repeat entirely risk of an different to take the additional quired surreptitiously is being his conversation character —that transcribed or broadcast. a false friend is received repeated by

A confidence circumstances third attendant parties ill-considered memory. One’s credibility “friend’s” preserved thereby posterity remarks are not from faded magnetic tape reels of nor insulated time. Faced with passage memories inherent the risk that comments will be the choice of silence or stone,” choose the former speaker may “etched alternative, spontaneity to the manifest diminution of daily discourse. which marks our 877-78; White, Glass, v. 583 P.2d at see also U.S. State 762-63, J., dissenting); Lopez, at 1131 (Douglas, at 91 S.Ct. (Brennan, J., at 373 U.S. S.Ct. Burr, (Hufstedler, J., dissenting); Holmes 486 F.2d at 65 v. 329-30, Hall, dissenting); People Mich.App. denied, 898-99, 406 Mich. 941 appeal N.W.2d leave to (1979); The on Law Enforcement President’s Commission Justice, and Administration of Crime in a Challenge of (“The to Society Privacy____ Free 200-03 Threat suspicion Fear or one’s is monitored a speech being that stranger, even can have reality activity, without of such willingness on to voice seriously inhibiting a effect ideas.”), Berger critical and constructive in v. New quoted York, (White, J., 388 U.S. at at 1917 dissent- S.Ct. ing). respect,

In this the Harvey and courts serious White ly chilling misconceive the effect that warrantless monitor on ing rights has our by assuming citizens’ that it forces only “wrongdoers” engage “self-censorship” in in speak ing their “criminal about activities.” Harvey, See 348 Pa. Super, 502 A.2d at 682. If only this were the ill effect of such agree surveillance we would not hesitate to that “body bugging” on intrudes no that privacy interest Pennsylvania prepared recognize is as reasonable. The however, point miss, and White is that the Harvey risk warrantless electronic surveillance falls on and innocents alike, very premise criminals because the of a warrantless procedure is that the can do it demonstrating without judicial a probable before officer that there is cause to will they believe find evidence of a crime. easy forget and, hence, is too forgot too often

[ I]t — ten—that the issue is here whether to interpose search procedure warrant between law agencies enforcement engaging electronic eavesdropping public gen and the erally. By casting its “risk analysis” in terms of solely expectations “wrongdoers” and risks that or “one contemplating illegal bear, ought activities” the plurali ty opinion ... entirely. misses mark On Lee does mandate simply that criminals must daily run the risk of unknown eavesdroppers affairs; prying private into their it subjects each every law-abiding society member to that risk.... Abolition On Lee would not end It eavesdropping. prevent public would offi cials from engaging practice unless they first had to suspect cause an individual of involvement illegal activities had tested their version the facts before detached judicial officer. The interest On Lee protect fails to expectation citizen, of the ordinary who has never engaged illegal life, conduct in his he may carry his private discourse freely, openly, spontaneously measuring without his every against word might connotations it carry instantaneously when heard others unknown to him and unfamiliar with his situation or analyzed cold, in a formal played days, record of Interposition the conversation. months, after or years “wrong- not to shield designed requirement is a warrant of a sense privacy of a measure doers,” but secure society. our throughout security personal J., (Harlan, 789-90, at S.Ct. White, 401 at U.S. dissenting). needs therefore, legitimate have, considered

We crime, means to combat clandestine to use enforcement law of our the statements agree with wholeheartedly we Trignani, case of Tamilia in the Commonwealth Brother (1984), this where 483 A.2d surveillance, and of electronic facet dealt with another court legisla- anti-wiretapping Assembly’s that the General said of law-abid- right “the of privacy protect tion was meant to among criminal net- citizens,” not “communications ing police need acknowledge that again While we works.” technological ad- effective modern and to the most access crime, a warrant such access without in the war on vances powerful these eaves- them free to train leaves requirement me, law-abiding citizens and other you, on dropping devices Glass, 878. 583 P.2d at criminal element. See as as the well against of law enforcement balancing of the needs Any the framers rights already by citizen has been done and seizures who conditioned searches of the constitution prior approval on the a detached part most on great It is no burden magistrate. neutral monitoring to cases they restrict require a warrant. See they can cause for where show J., (Brennan, at 1404 373 U.S. S.Ct. Lopez, Greenawalt, at 229. dissenting); supra, is, of “Crime, privacy quarters, in the of one’s own even course, and the law allows grave society, concern right showing. proper crime to reached such a to thrust themselves into home also of officers individual, concern, but to a only society not to the grave security and free- chooses to in reasonable which dwell privacy from When the must right dom surveillance. is, rule, to be right of search as reasonably yield officer, decided a judicial policeman government agent.” enforcement Knotts, 276, 282, 1081, v. 460 103 United States U.S. S.Ct. 1085, (1983) 75 L.Ed.2d 55 (quoting Johnson v. United States, 10, 14, 367, 369, U.S. 68 92 333 S.Ct. L.Ed. 436 (1948)). reject

We must therefore the proposition dissent’s that 5704(2)(ii),i.e., the limitations contained be there afoot,” “suspected criminal activity the informant’s voluntary, prosecutor give consent be and that the prior approval interception, for the “act as an adequate deterrent to inappropriate police activity” “drastically and minimize the of of abiding likelihood an invasion the law citizen’s expectations J., legitimate privacy.” At 400 (Rowley, dissenting). language 5704(2)(ii) designed The is simply ensure that the informant has voluntarily indeed consent- to participate interception. ed in the See Commonwealth v. Clark, 599, (1987). This, Pa. 516 533 A.2d 1376 coupled the requirements 5704(2), remaining necessitating that criminal activity suspected be and Attorney that the General, Attorney, the District or respective their deputies give their approval, way provides no guard sufficient protect citizens from the unwarranted intrusions into their privacy which the constitution designed was to prevent. constitution, our prosecutors Under do not have authori- searches, toty approve which would be tantamount to their issuing their own officers, warrants. Law enforcement “engaged in the ‘often competitive enterprise of ferreting ” crime,’ out York, 200, 213, Dunaway v. New U.S. 2248, 2257, S.Ct. Johnson, 60 L.Ed.2d (quoting 369), 333 U.S. at 68 S.Ct. at. are rarely appropriate parties to determining adequacy of grounds for a search, “suspicions” and their of criminal activity not are the standard which our system constitutional has chosen to safeguard rights of citizens against arbitrary intrusions government. “Hostility to seizures based on mere suspicion a prime was motivation for the adoption of the Amendment, Fourth and decisions immediately after its report, suspicion, ‘common rumor or affirmed that adoption suspect” adequate was “strong reason to even warrant____’” v. (quoting Henry United Id. support States, 98, 101, L.Ed.2d 80 S.Ct. U.S. cause, is probable standard (1959)). constitutional us from unwarranted designed protect is [which] It upon privacy. incursions our insulates vindictive even state, rule tyrannical from dictatorial us concept democracy that assures preserves concept second to none citizens. This freedom its delineating dignity individual importance its society. in a free living Miller,

Commonwealth Pa. 518 A.2d C.J.) omitted). (Nix, (citation 1191-92 question the Constitution Pennsylvania whether monitoring boils ultimately warrantless forbids legit as reasonable and society recognizes to whether down individual his expectation the the that ordinary imate being electronically are not recorded transmitted words find it the four of his home or office. We beyond walls in an individual even perfectly legitimate reasonable his are not day age expect subject that words this surveillance, or not it is government whether warrantless doing bugging. to who is the We fail to person spoken the expectations” change a person’s see how “reasonable bug the in his house or sends government plants whether In walking body into it transmitter. both someone cases, person risk the speaker assumes the that report police. he is to the But directly speaking whom will he intrusion of the expect in neither case does added recording listening on conversation. government’s governmental consent surveillance The informant’s “legitimacy” speak in no affect can wise societal Lopez, See being he expectation bugged. that is not er’s J., (Brennan, dissenting); at 83 S.Ct. 373 U.S. at Burr, (Hufstedler, J., Holmes dissenting). 486 F.2d at 66 Sell, heed, moreover, supreme that our court We take Katz’s see 504 Pa. at result, 57-58, applauding while 463-64, A.2d the “legitimate expectation criticized of priva cy” rationale which Justice Harlan’s concurrence that id., 56-60, case spawned, had see 504 Pa. at 470 A.2d at 463-65, dangerous as a tool used in the hands of the Supreme Court to at away whittle citizens’ privacy rights that through rulings increasingly refuse to find “legitima cy” id., in subjective expectations privacy. See 504 Pa. 66-67, 470 A.2d at 468. Under article section therefore, the court directed to keep us our focus trained on squarely “the critical element of govern unreasonable intrusion,” id., mental determining whether the means the police have used to obtain challenged evidence are illegal. Focussing on the unreasonableness the govern mental intrusion which warrantless electronic eaves dropping represents leads us to conclude that the supreme court agree would with us warrantless interception of Schaeffer’s conversation in his home violated his rights under the state constitution.

We need speculate supreme whether our court will ultimately reject “legitimate expectation of as privacy” touchstone protection constitutional from unlawful seizure, search and because the idea a person his loses legitimate expectation of privacy from electronic surveil- lance he when confides his words someone who out turns to be a clandestine recorder for the demonstrably fallacious even under the rationale of the Court which has given this idea constitutional credence.

According States, to Katz v. United “What a person knowingly exposes to the public ... is not subject a of Fourth protection____” Amendment 351-52, 389 U.S. at 88 S.Ct. 511 (emphasis added). at But long as a person “[s]o preserve seeks to private, his effects as even are they if accessible to public others, the they to are constitution ally protected.” Platou, 258, Commonwealth v. 455 Pa. 266-67, 29, 312 (1973), A.2d denied, 976, cert. 417 U.S. 3183, S.Ct. 41 L.Ed.2d 1146 The idea of Harvey the plurality speaker White that a “knowingly” exposes his conversation to the public simply by to speaking another private person a assumes to be wrongly whom he individual Beauford, which reasoning behind is odds with at person a know- reasoning that Court’s Supreme rejected public he dials to the telephone numbers divulges ingly simply in them be- no interest privacy has and therefore in has access them the company telephone cause the conversation, private just The of regular course business. preserved number, sought to be as telephone is like the “others,” and therefore accessible private, even when of ratio- “legitimate expectation privacy” under the Katz The Court protection. Supreme nale deserves constitutional prohibits war- that the fourth amendment has held plainly monitoring where neither governmental rantless consents, York; v. New Berger to the conversation see party States, Katz, the Court illustrated Katz v. United from expectation privacy an one situation where legitimate: was seizure words government’s warrantless booth], shuts the door telephone occupies “One who [a him, place him to pays permits behind toll words he utters surely call entitled to assume that the to the world.” into the will not be broadcast mouthpiece added). (emphasis In 88 S.Ct. at 511-512 U.S. had, if an spoke, anything, where Schaeffer he place his even words would greater expectation world,” home; in his spoke he “broadcast because said, high justly “Upon closing and as our state court has world, a person home may the door one’s to the outside known to legitimately expect degree privacy highest 543, 550, Shaw, 476 Pa. society.” our v. Commonwealth added) (emphasis (quoting 383 A.2d Com- Flewellen, 442, 446, Pa. 380 A.2d monwealth (1977)); York, 445 Payton accord v. New U.S. (1980); 63 L.Ed.2d 639 v. United S.Ct. Silverman States, 365 511-12 n. at 683 & n. 4. U.S. at & 81 S.Ct. Katz, spoke no those differently caller from who case, White, their homes in and this Harvey, necessarily risk person spoke report bore the that the he to would what then, Why, he subject said. since' the words were oral repetition, did it an the Court Katz consider invasion privacy for the to

protected sphere government simulta- words neously proba- seize the without a warrant based on Katz, Schaeffer, just ble cause? The answer is that like spoke justifying in circumstances his belief that he could ear,” exclude “the uninvited U.S. S.Ct. at risk of oral betrayal and that the limited “inherent in the society” destroy conditions of human did not the separate, legitimate expectation police directly could not seize the of his conversation words electronic means without a based on cause. warrant From the of a standpoint person enjoying legitimate this expectation, nothing changes party when the spoken to ego an alter of the cooperates bugging. who The individual forfeited consenting may right have his own privacy, hears, to is free to he report he whatever but his actions can on simply have no effect the societal legiti- of the macy speaker’s expectations being that he is not simultaneously government. recorded risk oral remains constant there betrayal whether is nonconsen- bugging, one-party sual bugging, consensual or no bugging at all. If risk oral betrayal is allowed to defeat speaker’s legitimate expectation privacy from warrant- less electronic surveillance by police, it must do so whether or not the other party has consented beforehand to the interception, if the speaker right rely because has no to associate, the trust in his reposed there is no expectation left on which base right he can his to exclude the govern- ment. The logical consequence of interpretation this person’s expectations” “reasonable is that he no enjoys right privacy and, to anything says anyone, he there- fore, must risk that he is speaking directly to the govern- ment any says time he anything anyone. Under this “informer” theory right constitutional privacy, person speaks who to another must indeed his expect that world,” words will be “broadcast and therefore the only “residuum of true privacy” from warrantless electron- ic government alone, intrusion by is to speak only when or to remain silent. luxury When the of unmonitored speech is thus constitutionally confined to moments of soli-

211 speakers that tude, step to hold just it one small will be government to seize their words whenev- expect should that, mouths. the courts will Beyond their they open er technological to do advance nothing but await have of the mind to reading the instantaneous permits which “legitimate a recognizes determine whether constitution thoughts to one’s privacy” keeping of one’s expectation States, at 48 277 U.S. self. See United Olmstead (“Advances (Brandéis, J., dissenting) in the at S.Ct. may bring exploring means and related sciences psychic emotions____ beliefs, it thoughts and Can be unexpressed protection against no such affords the Constitution personal security?”). invasions of practice apocalyptic The most vision that, by constitutional limita- is unconstrained monitoring tool of tions, police-state type it to a threatens become free democratic traditions of totally inconsistent aids add a new people. wholly the American “Electronic penetrat- it more They make eavesdropping. dimension indiscriminate, truly free ing, more more obnoxious surveillance, fact, police makes the society. Electronic most omniscient; omniscience is one at 83 S.Ct. tyranny.” Lopez, effective tools of U.S. (Brennan, J., dissenting). at con- practice broadcasting private The inside-the-house through singularly terrify- concealed radios is versations has ing already when one considers how this snide device Hitler, it used in totalitarian lands. Under when been police planted Dictaphones secret became known houses, in the gathered members of families often whispered bathrooms to conduct discussions intimate affairs, sending thus the reach of the hoping escape apparatus. Lee, (Frank, F.2d v. On

United States J., dissenting), 72 S.Ct. 96 L.Ed. aff'd, U.S. age privacy, of no rapidly entering We are where times; where there everyone open surveillance all no from government____ are secrets surveillance,

Once electronic approved in Lopez [v. United is added to the techniques of snooping States] sophisticated age which this developed, has we face the reality stark that the walls of privacy have broken down and all the tools of the police state are handed over to our on a bureaucracy platter. constitutional may time come no when one can be sure whether his being words are recorded for use at some time; future everyone when will fear that his most secret thoughts are own, longer no his belong Government; but to the when the most confidential and intimate conversations are al- ways open eager, to prying comes, ears. When that time privacy, and with it liberty, gone. will be If a man’s privacy will, can invaded at who can say he is free? If his every word is taken evaluated, down and or if he is afraid every be, word may who can say he free- enjoys dom speech? If his every association is known and recorded, if the conversations with his associates are purloined, say who can he enjoys freedom of association? obtain, When such conditions our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished. States,

Osborn v. 323, 341, 349, United 353-54, 385 U.S. 429, 439, 444, 446, S.Ct. J., L.Ed.2d 394 (Douglas, dissenting).

Not everyone shares Douglas’s Justice dire view of the risk we as a society take condoning warrantless partici- pant monitoring. For example, Greenawalt in The Consent Problem in Wiretapping, after a thorough and careful analysis, that, concludes although participant monitoring does impinge on privacy and freedom of it speech, is a lesser intrusion than that posed electronic eavesdropping without the consent of any party. Yet even Greenawalt points out the perverse lengths to which the police presum- permissible theory “consent” go under the can ably eavesdropping: ], Lee States On v. United majority’s view Under [in however presence, visitor’s consent to a proprietor’s purpose, his visitor’s true may he be about mistaken extends, purposes of the law at least apparently bring to evidence, may the visitor devices whatever or, sees. presumably, or transmit he record what hears— cause the have to police no difference what It makes If is. privacy or how the invasion of guilt serious expect fishing expedition among persons engaged in a police, crime, a slight suspect had reason they only whom a miniature television suspect’s mistress with equipped to, transmitter, watched, as well as listened then bedroom, no there still be happened his would what no violation. trespass and constitutional Greenawalt, 193-94. supra, at shortcomings

Perhaps passage this demonstrates the best there is an exception of the constitutional theory if one requirement in electronic surveillance cases warrant accepts Anyone “consents” the intrusion. who party premise constitutionally right that there is protected overhear must recoil the idea that can privacy a and record the intimacies of a man’s bedroom without suspect cause to probable warrant without believe crime, by obtaining has committed a the “consent” merely of other party precisely the transaction. Yet that what the current Court Supreme jurisprudence fourth amendment of surveillance ramifications (“The Orwell, 1984, 4 apparently permit. would G. Cf. telescreen”), Lee, 193 F.2d quoted in United States On (Frank, J., at 317 dissenting). But see Griswold v. Con necticut, U.S. 85 S.Ct. L.Ed.2d (“penumbras” provisions Rights of various the Bill of a constitutionally protected sphere to create combine bedroom); Solis, in the marital 693 P.2d privacy State v. (Mont.1984) a com (surreptitious videotaping without Constitution). state interest pelling violates Montana See generally Hodges, Electronic Visual Surveillance and the Fourth Amendment: The Arrival Big Brother? Hastings Const.L.Q. 261

In year which formed the title George for a Orwell novel foretelling Big arrival of Brother and the governmental extinguishment of freedom, human we wrote in that the government could not use an electron- Beauford ic device to telephone discover the numbers a citizen dials without warrant based on cause. The apocalyp- tic not, vision of Orwell’s has in the eyes of most calm observers, come to in pass this country, part because the courts of this nation have always stood as a bulwark between the powers awesome of the state and rights Now, the individual. the 200th anniversary of our Constitution, nation’s we are asked to determine that a man has no right to expect he is not speaking directly into a government microphone time every opens he his mouth in the presence of person. another The supreme arbiters of the United States Constitution have held that an American no enjoys right; such we hold that a Pennsylvanian, speak- ing the private home, sanctum of his does have that right, and that an adequate, independent, fundamental ground for it exists in the Pennsylvania Constitution, which itself has protected the privacy rights of the citizens of this Commonwealth since before the nation was founded.

C The Wiretapping and Electronic Surveillance Control Act explicitly acknowledges that the target of participant moni- toring a legitimate has expectation of privacy his conver- 5704(2)’s sation. Section exemption monitor- ing from the prohibitions and requirements of the Act refers to the interception of an “oral communication,” which the Act defines as: “Any oral communications uttered aby person possessing an expectation that such communica- tion is not subject to interception under circumstances justifying such expectation.” 18 Pa.C.S. 5702 (emphasis § added); (definition see also id. of “intercept” “[ajural as acquisition any of the contents of wire or oral communica- tion____” added)). (emphasis definition “oral com- mimics virtually Supreme munication” Court’s definition protected of a interest as a constitutionally privacy “justifi- Smith, expectation privacy.” able See U.S. at Katz, 2580; 512; 99 S.Ct. U.S. at 88 S.Ct. at cf., Platou, 455 Pa. at 312 A.2d at 34. The e.g., General not, Assembly consistently therefore could with these defi- nitions, monitoring that participant have intended be free of warrant of the federal requirements state or constitu- tions.

Our that the requires conclusion state constitution warrant for consensual one-party electronic eavesdropping require therefore does not us to strike as down unconstitu 5704(2) Act, tional subsection which states only that practice that agents when done law enforcement is “not 5704(2) ... unlawful” the Act. under Section therefore police allows the “intercept” an “oral communication” one party’s consent and the of an approval authorized 5704(2)(ii), Commonwealth attorney, see Pa.C.S. with § out complying “exacting with the standards” of sections Act, Checca, 5708-5723 see Commonwealth Pa.Super. 480, 492, 1358, 1364, 491 A.2d allowance of denied, appeal (Pa.1985), 491 A.2d 1358 without risking penalties the civil and criminal apply person would other in such any engaging surveil lance, see 18 legislative Pa.C.S. 5725-5726. This §§ scheme of exempting participant monitoring from the prohi cannot, and requirements however, bitions of the Act read as an attempt authorize practice its without a warrant, because fly that would directly face Legislature’s recognition monitoring such intrudes on a constitutionally protected zone of In privacy. Beauford, we similarly Legislature’s found exemption that the of the use registers of pen from Act’s require strict ments was not a legislative declaration that such devices beyond were the reach of the article section limitation seizures, on warrantless given searches particularly 216 in electronic

Legislature’s proceed cautiously desire to prohibition and abuse. eavesdropping years after several 267-68, (quoting 475 A.2d 790-91 Pa. Pa.Super. 327 (1978) (statement Legislative Rep. 3147 House Journal Court, 51 Rhodes)). County In ex rel. Arnold v. State 434, (1971), an 187 354 the court found that Wis.2d N.W.2d making consent moni statutory exemption almost identical did not “authorize” consent monitor toring “not unlawful” evidence, 18 ing nor make its results admissible cf. 5717(b) who, means (“Any person by any autho Pa.C.S. § knowledge has obtained con chapter, rized this divulge communication or any [may tents of wire oral added)), and in testify (emphasis as to those contents]” 90, (1978) the court 118 N.H. 383 A.2d 87 Ayres, State v. participant monitoring did permitting found that a statute evidence, viewing introduction of its fruits into allow allowing as purpose exception Brack protect agent. their undercover See also State v. 116-17, 1222. man, 178 Mont. at 582 P.2d at may present These considerations and others have been 5704(2), may that enacted or it Assembly to the General constitutionality on the simply have deferred to the courts participant monitoring, taking of warrantless while care superior enunciate that it was not a crime nor was a court in it. necessary engage order See also Commonwealth 374, 392, 870, (1985) Pa.Super. 345 498 A.2d 879 Doty, v. J.) (Wieand, (“It acknowledged has generally been infringes electronic surveillance legislation which authorizes and, therefore, upon right privacy strictly must be construed.”), denied, No. 232 M.D. appeal allowance of — (Pa. 12, 1986), denied, Allocatur Dkt. 1985 June cert. 185, U.S. —, L.Ed.2d 119 107 S.Ct. 93 however, presume, Assembly must that the General We intended not to the Pennsylvania violate Constitution 5704(2), 1922(3), 1 enacting see Pa.C.S. we subsection § that a apply proposition must also “the well-established constitutionality court is not to rule on the of a statute necessary unless it is to do so in order to decide absolutely Cacek, it.” 358 Pa.Su the issue before Commonwealth 381, 384, A.2d per. (quoting Common 128, 144-45, Samuels, 511 A.2d wealth v. rev’d, (1986), on other 516 Pa. grounds, (1987)); Geller, A.2d see also United States v. (E.D.Pa.1983), 1313 n. 2 F.Supp. per curiam sub aff'd DeMaise, (3d Cir.1984), 745 F.2d 49 nom. United States v. denied, 469 U.S. 105 S.Ct. 83 L.Ed.2d 780 cert. (1985). ruling the need a

Our warrant conduct electronic one-party eavesdropping consensual does not di- in rectly statutory exemption conflict with the stated sec- 5704(2), present tion and therefore there is no need to declare that statute unconstitutional. affirmatively moreover, the exempt activity, Since statute does such “exacting” the wiretap the standards of act do necessar- it, insofar as the consti- ily apply except they effectuate guarantee tutional that search warrants shall issue only cause, upon probable “supported oath or affirmation subscribed to the affiant.” Beauford, Cf. hand, 269 n. 791 n. 7. A.2d at On the other search intercept

warrants to conversations are not similar entirely tangible to search warrants to seize and therefore property, analogies some act wiretap may be useful. For example, orders authorizing interceptions specify should time, place, identity reasonable limitations as to parties intercepted. whose communications are to be 18Cf. 5712(a)-(b). Pa.C.S. §

II Commonwealth, in a raised for contention the banc, first time at argument oral before the court en maintains that the affidavit used to obtain the warrant to search Schaeffer’s home established sufficient support cause to the search excluding even the evidence during illegally intercepted overheard the conversation. reject We this contention. in deciding part upon

“In whether a warrant issued through exploitation illegal police information obtained valid, whether, conduct we must consider absent through illegal activity, probable information obtained Commonwealth v. cause existed to issue warrant.” Shaw, 543, 555, Excising 476 Pa. 383 A.2d from the search warrant affidavit the information obtained surveillance, through illegal evidence issued that: upon which search warrant shows 25, 1984, 1. the dates of March 18 and March Between bought marijuana the informant from Schaeffer his home. 6, 1984, April April

2. Between the dates bought informant from again marijuana Schaeffer his home.

3. marijuana pre- On both occasions was “small packaged plastic baggies.” affiant, through experience drug

4. The his extensive “has learned that investigations, regular- individuals who traffic in ly frequently pre-package Controlled Substances in plastic bags, Controlled small in prepara- Substances sale____” tion for viewing “totality

Even this evidence of the circum see Gray, Commonwealth v. stances,” 476, 485, 509 Pa. 503 921, (1985), sense, nontechnical, A.2d 926 and in a “common Commonwealth v. manner,” ungrudging positive Jones, 262, 269, 1383, (1984), 506 Pa. 484 A.2d 1387 as we do, required are we must find this information insuffi cient to establish cause to believe that evidence 6, crime would be found in the home on suspect’s April date of the search. Evidence of previous activity criminal support finding will not a of probable cause to search a home unless it is also activity up shown continued Id., to or the time of about the issuance of the warrant. Commonwealth v. Tol 269, 1387; 506 Pa. at 484 A.2d at bert, 576, 580, Com 1342, (1981); 492 Pa. 424 A.2d Jackson, monwealth v. 632, 639-40, 582, 461 Pa. 337 A.2d denied, cert. 999, 423 U.S. 96 S.Ct. 46 L.Ed.2d 376 (1975); Shaw, 110, 113-14, Commonwealth v. Pa. (1971). determining A.2d In whether the Common drug wealth’s evidence of sales from Schaeffer’s home issuance of the warrant was stale or whether it preceding probability activity continuing up showed the of criminal search, the time of the must the rule or about we consider Novak, stated this court Commonwealth v. Pa. 236, 238-39, 773, 774-75, Super. 335 A.2d allocatur re (Pa. 1975), xxxv for situations a fused, where court is forced to magistrate reviewing assume when period given “within” a stated transaction occurred: the courts Generally assump- when are forced to make an tion as to when transactions occurred “within” a given cause, period, purposes determining probable it must be assumed that the transactions took place part given period. most remote 100 A.L.R.2d See 532. The reason for this If policy obvious. this were given phrase, not the construction to this stale informa- appear tion could be made to current the mere use of “within” For if language. example, drug pur- a dozen chases were made the first week of and one January wished to obtain a search in the warrant first week of March based solely this information he would need only say that “within the last two months a dozen pur- made”, chases were rather than “a dozen purchases were made in the first week of January”. Button, (8th

Accord United States v. 653 F.2d 324-25 Cir.1981); 36, 42, Burke, Commonwealth v. 235 Pa.Super. 340 A.2d Accordingly, having placed sales drug Schaeffer’s to the Commonwealth informant at part periods, remotest of the recited the Common- wealth’s affidavit establishes that on March 18 and on April home; Schaeffer sold to the informant in marijuana his quantities the affidavit does not reveal the sold on either occasion, that on except both occasions the was marijuana in a “small” “pre-packaged” baggie. This information does not allow the conclusion that police probably the would find of in drug April evidence sales Schaeffer’s home on 6th. cases us with several where presents The Commonwealth “continuing” of criminal have found evidence our courts cause, support finding probable sufficient to a of activity For distinguishable. example, case is Common but each (1986), A.2d Baker, 513 Pa. which the v. wealth case, to this “nearly finds identical” Commonwealth sales of to the “many” had made T.H.C. infor defendant drug past, possessing in the seen between mant was 12th, sold to the informant drug March 5th and March occasions, separate on and told the police under surveillance “large a of the expecting quantity” drug informant he was 12th; 11th or a search warrant was executed on on March case, however, excising In the illegal the 12th. Schaeffer’s from the removes ly pre monitored conversation warrant found that information which court Baker most cisely probable of cause: magistrate’s finding supportive is, delivery expecting that the defendant was a of (infor search. day Gray on the before the also drugs Cf. pounds marijuana suspect’s home twenty mant saw warrant, suspect days four then confirmed with within he marijuana); still had days within warrant two 427 A.2d 141 Stamps, v. Pa. Commonwealth (warrant (1981) executed within two (plurality opinion) to sell preparing weeks of observation of defendant thirteen stale; of heroin affiant also monitored wasn’t “bundles” search); premises day short visits on before subject two Davis, 480 A.2d 1035 Commonwealth (1984) (combination buy, of controlled more observation arrests, premises, drug on defendant’s record of drugs visiting premises probable known addicts’ established cause search). to the Perhaps helpful the decision most Com Toner, 289 position is Pa. monwealth’s Commonwealth v. (2-1 decision), 433 A.2d 25 where this Super. tip police held that a five-day-old alerting court use presence marijuana premises, confirmed before the search officer’s detection of days four coming odor of strong marijuana premises, from sufficiently established cause for the search. However, in- five-day-old even Toner observation

221 totally factor marijuana, a “large quantity” volved search of the justify used to the affidavit from absent quarters. Schaeffer’s warrant, the Common- to save the

In last-ditch effort that the infor- should infer contends that we also wealth of Schaeffer’s conversa- the contents orally reported mant affiant, information overheard so that the police the tion to source monitoring only was not the electronic through the expecting was knew that Schaeffer from the affiant which However, if 5. evening April marijuana to have shipment elsewhere expected did learn of the trooper attest to this fact he did not interception, from the than If is magistrate. anything to before the the affidavit sworn seizure, it is of search and Pennsylvania’s law settled of a warrant must cause for the issuance probable affidavit. supporting the four corners appear within 535-36, (plurality 427 A.2d at 143 Stamps, 493 Pa. at See Simmons, 624, 626, v. Pa. Commonwealth 450 opinion); Way, v. 342 Commonwealth (1973); A.2d (1985) (Olszew- 341, 346-47, 1151, 1154 492 A.2d Pa.Super. A.2d at ski, J.); at 269 n. Beauford, Pa.Super. Gannon, v. 7; Commonwealth 791 n. 2003(a)-(b). (1982);

341-42, Pa.R.Crim.P. 454 A.2d conclude, in speculation sheer for us It would be any statement or indeed state- of a sworn written absence effect, (1) orally informant all to that both that ment at affiant and the affiant reported his conversation find that magistrate. this fact to the We therefore relayed tainted fruits of the warrantless without search surveillance, had no cause to home. Schaeffer’s

Ill must determine whether The final issue we exclusionary adopted “good exception faith” recently drugs to admit the rule would entitle the Commonwealth house. the unlawful search of Schaeffer’s during seized apply does not good-faith exception conclude that the We Common- premised on the drugs the seizure of which was conversa- interception Schaeffer’s wealth’s warrantless of the evidence seized tion, suppression order and therefore warrant. pursuant to the unlawful Leon, United States 468 U.S. 104 S.Ct. In unreason- (1984), Court held that Supreme L.Ed.2d 677 the fourth amendment and seizures under searches able excluding rule the fruits longer subject to the no would in had acted police search or seizure where illegal of the later apparently on an valid warrant reliance good-faith also Massachu- See cause. probable establish found not to Sheppard, 981, 3424, 82 L.Ed.2d setts v. 104 S.Ct. 468 U.S. Melilli, v. Commonwealth Pa.Super. 361 In 737 (1987), applied “good this court 429, A.2d 1107 522 Pennsyl- under the illegal to a search found exception faith” could Constitution, held that the Commonwealth vania part in to a warrant based pursuant seized admit evidence installed without pen registers from on evidence obtained defendants, a telephone on the lines cause probable Melilli, acted in we which, after had police practice prohibition constitutional of the state found violative The Mel- in and seizures searches unreasonable Beauford. illi exception state constitutional recognized court a to situa- application narrowly has exclusionary rule “which (1) in acted officials have in law enforcement tions which (2) upon procedure reliance faith; in reasonable good decisions; (3) existing judicial expressly sanctioned magis- from a neutral to authorization obtained pursuant Melilli, A.2d at Ct. at 522 Pa.Superior 361 trate.” Sell under suppression to 1112; (finding subject evidence cf. DeJohn (same); Constitution); Pennsylvania art. 8 of § O’Shea, v. Commonwealth Tarbert (same); (dictum) (declining to find 104, 117, 476 A.2d Pennsylva- under exclusionary to rule exception faith good denied, 328 Pa.Su- appeal allowance Constitution), nia (Pa.1985). A.2d 911 per. however, exception to the believe, good-faith

We Leon, if even we were rule announced exclusionary it as matter of state constitu- adopting follow Melilli decide), not (an exempt do not does law issue we tional illegal of an exclusionary consequences from the state where, here, as have acted on police and seizure search to authorize a interpreted of a statute which they the basis probable cause. and seizure without search warrantless in such a situation exception apply faith cannot good per unreasonable for believe it se because conduct upon authority them the a statute confers in the of citizens on less than and seizures homes searches Leon, Supreme explained cause. As the Court probable however, held, exclusionary that the rule re- haveWe car- searches suppression evidence obtained quires statutes, declared unconstitu- pursuant yet out ried tional, to authorize searches and seizures purporting See, e.g., cause or search warrants. without Illinois, L.Ed.2d 100 S.Ct. v. U.S. Ybarra (1979); Rico, 442 U.S. Torres Puerto 1, (1979); v. Almeida-Sanchez L.Ed.2d 99 S.Ct. 266, 596, 93 States, 413 U.S. 37 L.Ed.2d S.Ct. United 917, York, 40, 20 (1973); L.Ed.2d Sibron v. New 392 U.S. (1968); v. New Ops Berger 44 Ohio 2d 402 88 S.Ct. (1967). York, 41, 18 87 S.Ct. 1873 388 U.S. L.Ed.2d which, own involved their “Those decisions statutes terms, authorized searches under circumstances which probable-cause and did not the traditional warrant satisfy Fourth v. requirements Michigan of the Amendment.” 31, 39, 443 U.S. 61 L.Ed.2d S.Ct. DeFillippo, ^[2633] The substantive Fourth Amendment princi- in those consistent with ples fully announced cases are holding our here. n. 8. We note also

468 U.S. at n. S.Ct. 3414-15 sanc- “expressly the surveillance in this case was the Penn- by existing judicial interpreting tioned” decisions Constitution, the Har- because it occurred before sylvania question favorably first to the Com- case decided vey position. monwealth’s level, moreover, good faith on the federal exception

apparently poisonous does not affect the “fruit of the tree” doctrine, i.e., unconstitutionally cannot use seized and claim support good evidence to a search warrant then of that validity faith reliance on warrant. See United Karo, 82 L.Ed.2d 530 468 U.S. S.Ct. States (fruits illegal electronic warrantless surveillance from search in assessing proba- had to be excised warrant cause) (decided Leon). days two before ble Accordingly, regardless “good excep- whether faith” exclusionary rule exists for unreasonable tion Constitution, and under the Pennsylvania searches seizures it to the fruits of the grounds applying body we find no in this wire surveillance that occurred case. of sentence and re- judgment

We therefore reverse illegal mand for a new trial all fruits of the suppressed. surveillance KELLY, JJ., concurring file and

OLSZEWSKI dissenting opinions.

BECK, J., dissenting files a statement. concurring J., ROWLEY, files a statement. dissenting OLSZEWSKI, Judge, concurring dissenting: I I majority’s scholarly Opinion. I Part join however, disagree, with the conclu- respectfully majority’s II insufficient to sion Part that the affidavit was estab- lish cause for the search. view,

In excised my majority— warrant —as standard for “totality satisfies the of the circumstances” in probable Gray, cause as elucidated Commonwealth v. (1985). Indeed, 509 Pa. 503 A.2d 921 I would find the in mirror in virtually facts the instant case those Common- Baker, (1986), progeny 513 Pa. 518 A.2d 802 a wealth v. upholding validity for the in Gray. Speaking Court Baker, in of the warrant Justice McDermott reasoned: March 1981. issued on in this case was The warrant cause state- probable affiant’s of the The first sentence conduct, criminal recites defendant’s explicitly ment March, 12th of 5th and wit: “[BJetween controlled substance a possession in his did have actor actor alleged it is Later containing T.H.C.” “[T]he that he the informant ... information related further containing of a substance quantity larger a expecting was March, 12th of 1981.” 11th or or about the T.H.C. on with a clear indi- Thus, presented was magistrate been, had being, recently crime was cation that a a controlled substance. committed, the possession i.e. informa- with reliable addition, presented also In he was crime was about of another the commission tion that larger committed, delivery i.e. the be, been, or had containing T.H.C. of a substance quantity omitted, (footnote at 805 Baker, 518 A.2d 513 Pa. at added). emphasis and second original emphasis first indicates, found that the Baker Court language As this was reasons: the warrant existed for two probable cause inwas which the defendant during last date issued on the substance; (2) the defendant a controlled possession of I large quantity drugs. delivery of a expecting was an require as to narrowly so would not read Baker large quantity of a delivery first learn of the affiant must be obtained. may before a warrant of a controlled substance helpful would be Although certainly such information cause, teaches us to look at all probable Gray establishing factor or the factors, particular to focus on one lack thereof. on the case, Baker, was issued

In this as the warrant of a possession last date in which Mr. Schaeffer was Hence, magistrate present- “the was controlled substance. or had being, that a crime was ed a clear indication I infor- been, Because find this committed.” Id. recently cause, I finding support mation sufficient issued. properly hold the was would warrant KELLY, Judge, concurring dissenting: case, In called to upon this we are determine the condi- personnel tions under which state law enforcement in Penn- may constitutionally conduct electronic sylvania monitoring. that,

I note as has the case in initially frequently been the past, this case arises as result of a criminal’s invocation and federal constitutional proscriptions against state searches and seizures in an effort suppress unreasonable guilt. Nonetheless, of his it proof undeniable is a historical safeguards fact that many liberties which honest and hold dear forged citizens cherish were cases such as criminals; thus, common involving this we must keep mind our decisions defining scope and limits of rights constitutional apply equally the vast majority citizens as as to those law-abiding justly suspected well accused of crimes. hand,

On the other it must also be remembered that what seizures, the constitution is not all forbids searches and but unreasonable searches and seizures. Our learned col- league Judge explained: McEwen has recently

Judicial examination of a to a challenge police search requires the court to balance the needs competing hand, On the one society. every need of society, including our free society, provide for enforcement of its laws and thereby preservation enable the of the com- mon weal is intrinsic to the existence of any society. is, course, That need our society in consti- described parlance tutional as the ‘police power.’ On the other hand, quite decisive upon ‘police restrictions pow- imposed by er’ the founders and framers the Bill of Rights bespeaks their keen awareness of the awesome nature of ‘police power’. The specific role of the courts then is to balance the right society imple- police power ment its against a citizen to be right of This challenging intrusion. task requires free of the courts to competing rights balance those and then to which, discern: what ‘reasonable’—a term its kin definition, de- but defies process’, and ‘due ‘fairness’ mands determination. Martinson, 140-141,

Commonwealth v. Cirillo, P.J., McEwen, J.; 533 A.2d (per added). Montemuro, J., (Emphasis join). Roberts ex- Chief Justice Samuel

The eminent former applies as it balancing approach difficulty of this plained the as follows: right privacy to to daily newspaper with the acquaintance

A passing mere felt and widely the existence of a to substantiate suffices privacy posed, only by to individual insidious threat advances, the evolution of con- by but also technological regard A for indi- jealous social structures. temporary distinguished of ori- is a tradition privacy judicial vidual imperative mandate many buttressed area gin, Protection individual guarantees. of constitutional of however, to reduce the appears privacy, frequently agencies in the methods available to law enforcement deny crime. New would prosecution detection of growth with the today in this concern country of magnitude the same order as activity criminal of of privacy. the concern with the erosion individual McCoy, 234, 240-41, Commonwealth 275 A.2d Pa. added). (Emphasis let right I would add that the tension between “the as a proper “police power” alone” and the exercise of arises deprives the necessary liberty.” Society incident of “civil avenge response himself direct right individual of the loss, and, “police for this has instituted the recompense response. ensure a reasoned and societal power” just explained, very Marshall essence Chief Justice John “[t]he right every of civil is the individual claim liberty, laws, an injury.” whenever he receives protection Madison, Marbury v. (1 Cranch) 137, 163, 2 L.Ed. 60 U.S. (1803). Judge explained William Blackstone that: man, up part

every society, gives when he enters into purchase; natural as the of so valuable a liberty, price his and, receiving advantages of mutu- consideration commerce,

al obliges himself to conform to those laws which the community thought proper has to establish. And this species legal obedience and conformity is infinitely more than desirable that wild and savage liberty which is man, sacrificed to obtain it. For no that consid- moment, ers a would wish to retain the absolute and power uncontrolled of doing whatever he pleases; is, consequence of every which other man would also have the same power, and then there would be no securi- ty any to individuals of the enjoyments of life. Politi- cal, therefore, or liberty, civil which is that of a member of society, is no other than natural so liberty, far re- (and strained by farther) human laws no as is necessary and expedient general for the advantage of the public. Hence, we may law, collect that which restrains a man doing to his fellow-citizens, though from mischief natural, it diminishes the increases the civil liberty of mankind.

I Blackstone, Commentaries, (Sharswood W. *125-26 ed. 1872). added). (Emphasis then, The instant dispute, in- volves not merely rights police the of the rights and the individual; rather, the it involves the conflict between the right of the societal majority laws, to enforce its and the rights of each individual member of society against as the rule of that majority.

The crux of appellant’s that, appeal is notwithstanding the Commonwealth’s compliance with requirements the 5704(2)(ii), Pa.C.S.A. the state conducted an unreason- § able search and seizure by using informant wired with a transmitter to allow the police to intercept and record a private conversation which occurred in appellant’s home. Appellant contends that the interception of pri- his vate conversation violates both state and federal proscrip- against tions unreasonable searches and seizures. The main thrust of appellant’s argument, however, is that this Court should adopt the minority view—adhered to only Alaska, Montana, (discussed and Michigan infra) a—that warrant, issued a judicial official and based upon proba- the state consti- cause, constitutionally required under is ble monitoring by participant prior to use of electronic tution urges expan- a more Appellant personnel. enforcement law Pennsylvania proscription against the construction of sive is in this context than and seizures unreasonable searches by the United given Fourth Amendment currently Supreme Court. States review, primary presented issue

In addition issues which must also subsidiary two have framed parties arguendo, evidence First, assuming, all be addressed. must monitoring be participant from the electronic derived of the support April did affidavit suppressed, other sufficient to establish warrant contain facts search of declar- thereby necessity cause and obviate the Second, search assuming warrant ing the invalid? invalid, should fruits of the execution warrant nonetheless deemed to have been admissible warrant exception a state “good under a faith” constitution- trial exclusionary mandated rule? ally Cirillo, President an majority, per Judge present The support which exhaustive authorities analysis officer of a minority prior judicial view that issuance constitutionally based cause is re- upon probable warrant under Art. sec. 8 law enforce- quired Pa. Const. before participant conduct electronic monitor- personnel may ment from conclude that: evidence derived ing. majority monitoring sup- must be warrantless the redacted affidavit contains insufficient aver- pressed; the search probable support ments establish cause warrant; invalid; and, a the search warrant is therefore faith” to a state mandated “good exception constitutionally that, opined expression Louis once frank 1. Justice Brandéis "in conflicting opinion greatest promise governmen- lies the of wisdom in action____” 325, 125, Minnesota, 338, tal Gilbert v. 254 U.S. 41 S.Ct. 129, so, being upon 65 L.Ed. 287 That I believe it incumbent significant acknowledge this Court contributions which the thorough thoughtful analysis appellant and for counsel counsel and have for the Commonwealth made to our deliberations on these important eloquent per- presented Both sides matters. have arguments particular points suasive for their view. 230 se per rule it

exclusionary apply cannot because unrea- sonable to have believed that 18 Pa.C.S.A. authority 5704 conferred them to conduct searches upon § Opinion, supra, than cause. 370 Majority less 221-222, 536 A.2d at Pa.Super. 375. The majority reverse and remand for a trial. new dissent,

Judge in his concludes that electronic Rowley, monitoring in the case participant conducted instant was Pennsylvania both the constitutional under and the' United Judge relies Rowley upon States Constitutions. the reason- Harvey, Commonwealth v. ing expressed 348 544, (1985), 502 A.2d 679 wherein Court this embraced the Supreme of the United States Court an view over- whelming of our sister states —that majority warrantless monitoring no ex- violates reasonable therefore, pectation of privacy, trigger does not protections of either the Fourth Amendment or the analo- gous of state constitutions.2 provisions Judge Rowley Caceres, 741, 1465, 2. See United States v. 440 U.S. 99 S.Ct. 59 L.Ed.2d State, (1979); Evers v. State v. (Ala.Crim.App.1982); 733 434 So.2d 804 Paul, State, 86, 153, (1985); v. Hoback 286 Ark. 146 Ariz. P.2d 1235 703 29, (1985); People Phillips, v. Cal.Rptr. 689 S.W.2d 569 41 Cal.3d 222 127, People Moreley, (1985); (Colo.1986); v. 711 P.2d 423 725 P.2d 510 Vecchio, 412, (1983); State v. Del United States Conn. 464 191 A.2d 813 Sell, Pulgini, v. v. (D.C.App.1985); State 487 A.2d 225 366 A.2d 1198 Ridenour, v. (Del.Super.1976); State (Fla.App.1984); So.2d 453 193 State, 610, Lee, v. (1983); Green v. State 250 Ga. 299 S.E.2d 544 67 307, Couch, (1984); 205, State v. Haw. 686 P.2d 816 646 103 Idaho State, (1982); (Ind.1983); v. Lawhorn State v. P.2d 447 452 N.E.2d 915 Reeves, 834, Roudybush, 235 (1984); State 686 v. Kan. P.2d 100 427 Thomas, (La.1982); v. (Me.1981); State So.2d 403 432 A.2d 757 Buzbee State, 599, (1984); v. Md.App. v. 58 473 A.2d 1315 Commonwealth Olkon, 271, Thorpe, 384 Mass. (1981); State v. 424 N.E.2d 250 299 State, (Minn.1980); Everett v. (Miss.1971); N.W.2d 89 248 So.2d 439 Engleman, Manchester, v. (Mo. 1982); State State v. 634 S.W.2d 466 41, (1985); 577, Kilgus, State v. 220 Neb. 367 733 N.W.2d 128 N.H. 519 Parisi, (1986); 117, v. State N.J.Super. A.2d 231 436 A.2d 948 Hogervorst, (1981); 580, State v. (1977); People N.M. 566 P.2d 828 Lasher, v. (1983); 58 N.Y.2d 460 N.Y.S.2d N.E.2d Better, Geraldo, State v. (1979); v. 298 N.C. 260 S.E.2d 567 State Fergu 68 Ohio Op.3d (1981); St.2d 22 Ohio 429 N.E.2d 141 State, Underwood, (Okla.Crim.1982); son v. State v. 644 P.2d 121 (1982); Ahmadjian, State v. Or. 648 P.2d 847 A.2d Iverson, Lee, (R.I.1981); State v. (S.D.1985); v. 364 N.W.2d 518 State State, (Tenn.Cr.App.1981); 618 S.W.2d 320 S.W.2d 243 Kizziar of 18 Pa.C.S.A. the limitations opines further that §§ against unlimited and guard to the “are sufficient and interceptions and the evidence use of such indiscriminate adequate as an deterrent therefrom act obtained per police activity.” Dissenting Opinion, inappropriate 271, 536 A.2d at 400. J., Rowley, infra, finds the electronic Judge Rowley participant Although constitutional, his he also indicates monitoring to have been and Beck the affida- agreement Judges with Olszewski even facts to establish cause vit contains sufficient the affiant’s upon participation based with the averments monitoring redacted. He offers participant the electronic the fruits of the opinion admissibility no as to the of “good faith” of the search warrant under execution constitutionally exclusionary mandated exception to a state rule. the dis- majority

I neither nor the agree fully can with use of I that unbridled agree majority sent. monitoring involves threat participant expectations law-abiding citizens privacy reasonable triggering and seizure and therefore constitutes a search agree I Pa. Art. sec. 8. also protections Const. insufficient that 18 Pa.C.S.A. 5704 and are §§ safeguard the interests legitimate privacy threatened. desig- I that those Judge Rowley’s While share confidence moni- nated to authorize warrantless electronic toring proce- not countenance wholesale abuses will Orwellian, into bring apocalyptic dure so as existence opinion, I eloquently vision so decried must majority under the possibility, probability, note the distinct even passions standardless the heat of system current cases, arising particular perceived zealousness public good may overpower judgment objectivity even the most faithful and conscientious members of the team. The current safe- prosecuting Commonwealth’s Erickson, 1986); (Tex.Crim.App.1982); (Utah v. State 722 P.2d 756 Commonwealth, Cogdill (1978); 219 Va. 247 S.E.2d 392 State v. State, Caliguri, (1983); 99 Wash.2d 664 P.2d 466 Blackburn v. State, (W.Va.1982); (Wyo.1981). S.E.2d 22 Jackson v. 624 P.2d 751 guards virtually leave unrestricted in the hands discretion the of the as to prosecution of members team who will be surveillance, reasons, subjected for to such what under conditions, agree and for how I long. Consequently, what the majority safeguards required. with that additional are However, I grave share the and majority’s while concerns regarding cautious sentiments the for abuse of potential technology electronic and general, surveillance electronic participant monitoring particular, I do not with agree the by conclusion that majority’s prior judicial issuance officer of a warrant upon probable based cause an irreducible the of prerequisite partici- to constitutional use electronic monitoring by law pant personnel state enforcement Nor Pennsylvania. agree do I that our constitution has already “the of balanced needs law enforcement the against of rights Opinion, citizens.” See Majority supra, 370 Pa.Su- Rather, I per. 536 A.2d at 367. that believe the requires analysis Constitution us to conduct additional to order determine whether the of appellant’s pri- seizure vate conversation use by participant of electronic monitor- Nonetheless, was ing agree that, unreasonable. I because safeguards were the sei- constitutionally inadequate, of appellant’s private zure communications was unreason- I outline, infra, safeguards able. of I type basic believe required in order minimally to find the warrantless participant use electronic monitoring law enforcement personnel to be reasonable.

Assuming, arguendo, tapes of the monitoring monitoring and the officer’s statements should have been suppressed pursuant to a state constitutionally mandated (the exclusionary rule existence and scope which remains open an I question), find would the redacted affidavit probable cause to contain insufficient averments to estab- home, lish therefore, cause the search of a and find the would search warrant to In I agree be invalid. this and majority Judge concurring and Olszewski’s dissenting opinion with Judges which Rowley and Beck agreement. However, have indicated for a of rea- variety fruits infra, of the sons, suppression I find that discussed neither in this case is the search warrant of the execution Final- decline to do so. and would appropriate, nor required prior tapes I neither note that because ly, nor testimo- surveillance warrantless into were admitted evidence monitoring officers of the ny trial, suppress I find the failure bench during appellant’s beyond harmless evidence, error, if nonetheless was of sentence. doubt, judgment affirm would reasonable raised, I write importance of the issues Because express reasoning my my separately explain approaches majority, taken regarding concerns concurring, dissenting opinions.

I. it Congress legislatures, and state is unlaw- acts of Under or to or communication intercept private ful a oral wire intercepted contents of an communication divulge use or use, divulgence pursuant is interception, unless the authorization, to the conver- party or unless prior judicial enforcement interception by has to the law sation consented suspected activity.3 Appel- criminal personnel investigating participant monitoring lant concedes electronic in the instant did Pennsylvania’s conducted case not violate Wiretapping (Appellant’s and Electronic Surveillance Act. contends, 11-13). however, Appellant Brief at 2510-2520; seq.; 18 U.S.C. 18 Pa.C.S.A. 5701 et see also 3. See §§ §§ Surveillance, Carr, § Law 3.5 “Surveillance with Consent Electronic Conversation,” (2nd Ed.1987) Party at of a to the 3-55 to 3-76 Fishman, cases); (collecting Wiretapping Eaves statutes Carr, (1978 (same); Cumm.Supp.1986) dropping, & § Ch. 8 56-74 Law, by Consent 11 Search & Electronic Surveillance Under State Annotation, (1984) (same); L.Rep. War Seizure 79-82 Permissible Statute, By rantless Surveillance Under State Communications Local Acting Officer, Law or One in Concert with Enforcement Officer (1984 Annotation, Supp.); Admissibility ALR 4th 449 & 1987 in Crimi by nal Secured or Electronic Prosecution Evidence Mechanical Device, (1964), Supp. Eavesdropping 97 ALR2d 1283 96-100 ALR2d (1983 Supp.); & Search Seizure 68 Am.Jur.2d 685 § (1973 ("Informers Listening Cum.Supp.) & Use of Concealed Device”); (1974 & Telecommunications 74 Am.Jur.2d 538 § (“Consent Cum.Supp.) Party of One to Communication that Another Hear”). May 5704 authorizes electronic extent that 18 partic- Pa.C.S.A. § ipant monitoring requiring prior without issuance judicial official of a upon probable cause, warrant based 11). statute is (Appellant's unconstitutional. Brief at agree I majority; with the Pa.C.S.A. does not § authorize electronic participant Rather, monitoring. statute merely exempts specified types electronic partici- pant monitoring from the statutory restrictions and limita- placed upon non-exempt tions wiretapping and electronic procedures. surveillance provides pertinent statute shall not be unlawful under chapter part, this “[i]t added). Thus, (Emphasis for — ” while 18 Pa.C.S.A. 5704(2) clearly establishes the absence of a statutory bar § participant monitoring electronic conducted in the case, instant provides the statute no authorization for such procedures and does not in any way insulate electronic monitoring compliance conducted with 18 5704(2) Pa.C.S.A. from constitutional scrutiny. §

II. Under the current construction of the Fourth Amendment Supreme Court, the United States warrantless participant monitoring by law enforcement personnel does not constitute a search or seizure because monitoring deemed not to have invaded a reasonable expectation Jacobsen, See United States v. privacy. 109, 466 U.S. 104 Caceres, 1652, (1984); United States v. 80 S.Ct. L.Ed.2d 85 supra 3, 3; United States v. 440 U.S. n. at 99 at n. S.Ct. White, 745, 1122, 401 U.S. (1971) 91 S.Ct. 28 L.Ed.2d 453 States, v. United (plurality); 458, 394 U.S. 89 S.Ct. Kaufer (per curiam), 1223, 22 aff'g L.Ed.2d 414 406 F.2d (2nd Cir.1969).4 550 Based upon authorities, the foregoing I States, 347, 507, 4. See also v. United 389 Katz U.S. 88 S.Ct. 19 L.Ed.2d (1967); States, 323, 429, 576 Osborn v. United 385 U.S. 87 S.Ct. 17 (1966); States, 293, 408, L.Ed.2d 394 v. United 385 U.S. 87 S.Ct. Hoffa (1966); States, 206, 17 L.Ed.2d 374 Lewis v. United 385 U.S. 87 S.Ct. 424, (1966); States, 427, 17 Lopez L.Ed.2d 312 v. United 373 U.S. 83 1381, (1963); States, S.Ct. 10 L.Ed.2d 462 Rathbun v. United 355 U.S. 107, 161, (1957); 78 States, S.Ct. 2 L.Ed.2d 134 On Lee v. United 343 747, 967, (1952); U.S. 72 S.Ct. 96 L.Ed. 1270 Kelly, United States v. that, “the Fourth conclusion majority’s with the agree to electronic applies requirement Amendment warrant the consent the without eavesdropping conducted conversation, apply does not but party of either conversation consents.” parties one the of where A.2d at Opinion, supra, Super, 370 Pa. at Majority omitted). (Citations 358.

III. contention, though, is that the elec- primary Appellant’s proscriptions monitoring participant violated tronic in Article searches and seizures against unreasonable Appellant Pennsylvania ar- 8 of the Constitution. Section Pennsylva- provision and seizure that the search gues to provide greater be construed so as nia Constitution must monitoring than against protections this conten- Amendment. The embrace majority the Fourth tion; me Judge My analysis it. leaves Rowley rejects positions. these two between

A. notes, proscription Pennsylvania As the majority antedates the against searches and seizures unreasonable provision. Majority Opinion, supra, federal Indeed, guarantees 361. 536 A.2d at each Bill of had its antecedents Rights contained the federal more colonial charters. one or of the state constitutions and Fisher, S. The Evolution the Constitution generally See 1897). being “Far from (Philadelphia the United States of the states, Bill Rights model for was federal against guarantees to meet demands for the same added against had government people the new central secured First, Linde, Things their own local officials.” First Redis- (3rd Cir.), F.2d 121 cert. denied U.S. 104 S.Ct. 78 L.Ed.2d (3rd Cir.), (1983); Santillo, United States v. 507 F.2d 629 cert. States, U.S. 95 S.Ct. denied sub nom. Buchert United Annotation, (1975); By Obtaining Evidence Use L.Ed.2d 457 see also Recording Eavesdropping Sound or Mechanical Electronic Of (“Bugging") as Violation Fourth Amendment —Federal of Device— Cases, (1979 Supp.). 59 L.Ed.2d 959 & 1986 236

covering Rights, State’s Bill 9 U.Balt.L.Rev. 381 of (1980). Eight of the thirteen original adopted states a state prohibition constitutional against unreasonable searches prior adoption and seizures of the Fourth Amend- ment. See Cuddihy, (Historical “Fourth Amendment Ori- gins),” in Encyclopedia the American Constitution of Fisher, see also S. 1987); ed. supra (Levy at 199-201. Moreover, appropriate it is to note that from 1776 until 1949 when the Fourth applied Amendment was first to the states Amendment, via the proscription Fourteenth against unreasonable searches and seizures in Pennsylvania Constitution, Amendment, and not the Fourth protected Pennsylvanians from unreasonable searches and seizures by state Commonwealth v. personnel. law enforcement Bruno, 203 Pa.Super. (1964); Common- 201 A.2d 434 Rubin, wealth v. 82 Pa.Super. accord (1923); Woodside, Law, Pennsylvania Constitutional at 116 (1985). Pa.

Clearly, Const. Art. sec. 8 has identity vitality separate Amendment; and distinct from that of the Fourth it remains therefore emphatically province duty Pennsylvania judiciary to declare its scope and limita- DeJohn, See tions. supra, Commonwealth 486 Pa. at 1289; Beck, 403 A.2d Pennsylvania Supreme Court 1982, 56 Temple (1983); Quarterly Law 708-10 Review— Roberts, Supreme The Pennsylvania: Court Constitu- Action, tional Government in Temple Quarterly Law (1981); see also The Brennen, Rights Bill the States: The Revival State Constitutions as Guardi- ans Rights, Individual (1986); N.Y.U.L.Rev. 535 Galie, Supreme Other Courts: Judicial Activism Among Courts, State Supreme Syracuse L.Rev.

However, proponents even of “new recognize federalism” case for an independent role for state courts “should not be read as a case unthinking activism. No judge, federal, state or knight is a errant whose only good. concern is to do Hence, the state judge, when

237 a of state develop body the invitation to presented some of the law, to consider pause should constitutional Howard, Courts and Con- State along way.” dangers 62 Burger County, the Day Rights stitutional (also phrase coining the “new- 873, 940-41 Va.L.Rev. sovereignty the use state to describe federalism” the fed- broader than protections state constitution insulate federal from protections review constitutional eral Interpretation: The courts); Berger, Theories New cf. Constitution, 47 1 Ohio St.L.J. Flight Activists’ from ap- the activist (Winter 1986) (analyzing critizing proaches). “expected are deal recognizes, we majority

As the explain and to opinion Court Supreme with a carefully reason required to find forthrightly why ourselves] [we 370 at Opinion, supra, differently.” Majority DeJohn, 190, v. 359, 536 Commonwealth A.2d at quoting Moreover, should A.2d 1289. it 403 at supra, Pa. recognition higher of a standard noted that law than under state constitutional searches and seizures set law one under federal constitutional required higher standard circumstances, require not that a does In in all other circumstances. Common- imposed should be (1985), our 509 Pa. 503 A.2d Gray, wealth v. interpret our own explained, we can Supreme Court “[w]hile greater protections than constitution to afford defendants does, v. e.g., the federal constitution see Commonwealth 63-64, (1967) (collecting Sell, 470 A.2d 504 Pa. cases), compelling a reason do so.” there should be added). 484-85, (Emphasis A.2d at 926. Pa. at B. right adopt undoubtedly have the

Pennsylvanians greater limitations on the provides state constitution which monitoring by warrantless use law pro- than the federal constitution personnel enforcement case, however, is in the instant question vides. whether but have Pennsylvanians may, already whether we done so.

The mere fact that Pa. Const. Art. sec. 8 antedates provide reason Fourth Amendment does not to construe it differently were than Fourth Amendment. Both direct- eliminating general ed toward same warrants evils — Hart, Wakely See writs of assistance. Binn. Rubin, Commonwealth v. supra, (1814);5 317-18 Pa.Su- also see V The Founder’s Constitution 319-20; per. at (1984) (tracing origins 219-44 the of the Fourth Amend- ment); Galloway, Fourth Amendment Ban General Seizures, Searches and 141, L.Rep. 10 Search and Seizure (1983); Marke, 141-48 “The Writs of Assistance Case and in in Essays Legal History Amendment,” the Fourth Frankfurter, Honor Felix (Forkosch 1966); at 351-72 ed. of White, Commentaries on the Constitution Pennsylva- of nia, 1907). at 157-59 (Philadelphia Moreover, are significant there no textual differences which a provide differing would reason for of construction v. Gray, supra, Commonwealth the clauses. 509 Pa. also see Commonwealth v. John- 485-86, 926; 503 A.2d at Hart, Wakley supra, Tilghman 5. explained: In v. Chief Justice insists, state, plaintiff by the constitution of [T]he this no arrest warrant, probable supported by without a issued on cause lawful IX, I, provisions [predecessor oath. The 7 of Article sec [...] Art. 8], warrants, only guard so against sec. far as concern their abuse cause, by issuing good general vague them without or so or form, may put power as of the officers who execute them persons pretense harass innocent suspicion; under the of if for allowed, officer, general warrants are it must be left to the on what said, person they things or are to be executed. But it is nowhere that there should be no arrest without warrant. have so To said endangered safety society. would have of Ryan, & C. 6 Binn. at 317-18 solemn the common illegal; tion The whole section indeed was abuses 783, agitation 21 Pa.D. & C. had great veto but as the 787-88 scarcely against decisions and the occasioned law, (emphasis ^[******] 457, subsided, practice this general powerful engine by (1934); and was the discussion of this original); nothing issuing warrants have against it Commonwealth v. them more than them thought see also despotism. had only been decided to prudent Commonwealth been an affirmance of modern important Street, ancient, enter 3 Pa.D. ques- date, v. ston, 515 Pa. (Hutchinson, 454, 472, 530 A.2d Platou, Commonwealth 455 Pa. concurring); J., cert. denied (1973), 417 U.S. A.2d 34 n. n. compare (1974); Const. U.S. 41 L.Ed.2d 94 S.Ct. Indeed, I,Art. and Pa.Const. sec. 8.6 the revision Amend. of 1776 in 1790 signifi Pennsylvania Constitution of the might reduced textual cantly which otherwise differences Pennsylvania construction supported a broader have significant It is provision.7 than the federal provision contemporane and unanimously made changes these were Fourth Amendment ratification ously is, in this Pennsylvania situation in The Pennsylvania.8 IV U.S. Const.Amend. 6. houses, persons, papers, right people to be secure in their The seizures, effects, against not be searches and shall and unreasonable cause, issue, violated; upon probable shall but and no warrants affirmation, describing particularly supported oath or searched, things persons seized. and the or to be place to be 8§ Const. Article Pa. houses, papers persons, people secure in their shall be seizures, and no war- possessions unreasonable searches from any person thing issue any place or to shall to search seize rant be, nearly may describing as nor without without them as cause, supported by by or affirmation subscribed the affiant. oath Rts., Const. Dec. of Cl. X 7. Pa. themselves, right people have a to hold their That Tenth. the seizure, houses, papers, possessions and free from search and and made, first without oaths or affirmations afford- therefore warrants them, whereby ing any or for and officer a sufficient foundation messenger required suspected may be commanded or search places, any person persons, property, or or their or to seize his contrary right, ought particularly are to that and not to be described granted. IX., (1790), Article Pa. Const. sec. 8 houses, persons, people be That shall secure in their Sec. 8. the seizures; possessions papers, from searches and unreasonable and any place, any person that no to search or to seize or and warrant be, issue, nearly things describing may nor shall without them as as cause, supported by oath or affirmation. without provision eventually the 8. James Madison included which became Rights proposed Fourth Amendment in the Bill of he submitted to the 8, Congress proposal approved States on June United 1789. was 17, August on as amended 1789. The Fourth Amendment was trans- by Washington to the for President on mitted states ratification 25, September 1789. respect, quite different from the situation by faced the Alaska, Montana, Louisiana, Florida, Hawaii, courts and to whose for majority guidance decisions look and 191, A.2d support. Majority Opinion, at 360. C. Glass,

State v. (Alaska 1978), 583 P.2d 872 by cited majority, interpretation did not involve the of a state consti- provision analogous tutional to the Fourth Amendment. Rather, Supreme 583 P.2d at 875. the Alaska ex- Court pressly based its holding required warrant was —that prior by use monitoring law personnel upon enforcement Alaska Art. sec. 22 Const. — provides: which right people privacy “[t]he 10, 1789, Pennsylvania On December Constitutional Convention "Resolved, That, unanimously commonwealth, part constitution of this rights called a declaration of the of the inhabitants of Pennsylvania, requires commonwealth state of alterations and amendments, rights people, such a manner as that reserved, excepted general, powers government, may out of the secured, accurately be more defined and and that the an same such may other alterations amendments in said constitution as on, 11, agreed correspond be made to with each other.” On December 1789, Hand, Miller, Delegates consisting Findley, a committee Wilson, Irvine, Lewis, Ross, Addison, Smith and were elected to report proposed a draft of a constitution to Convention. On IX, reported December 1789 a draft was which contained Article finally adopted. proposal sec. 8 in the form This was considered and approved unanimously February on A 1790. semicolon was sub- stituted February a comma between the "seizure” words and "and” on 1790. Pennsylvania The Fourth Amendment was ratified Act of the Legislature on March See 2 1790. Smith’s Laws 516 On 17, 1790, IX, August again Art. was sec. 8 considered the Conven- 2, 1790, approved September tion Pennsylvania without revision. On the new proclaimed. Constitution was ratified as a whole and Amendment, Rights, including The Bill of finally the Fourth was adopted Proceedings Calling December See 1791. Relative to the Conventions 1776 and The Minutes the Convention that of of Pennsylvania, Together Formed the Present Constitution with the of Penn, 1790, Charter to William the Constitutions 1776 and and A of 1776, Proceedings the View the Convention and the Council of of of Censors, 1825); passim (Harrisburg 762; Cuddihy, supra, at W. Hick- ey, America, (Phila- The Constitution the United States at 33-36 1854). delphia

241 A.2d at 874.9 infringed.” 583 and shall not be recognized upon United arguments the based state’s rejecting In White, supra, and cases, the Alas- v. States earlier federal not stated, should “those authorities Supreme Court ka right scope of Alaska’s as determinative regarded is con- amendment, right no such express since privacy at 875. U.S. Constitution.” A.2d the tained Brackman, 105, State v. 582 P.2d Likewise, Mont. its (1978), expressly based majority, also cited use of required to the holding prior warrant was —that monitoring by per- enforcement law electronic II, 10, provides, Mont. Art. sec. which upon Const. sonnel — being of a free right to is essential well privacy “[t]he infringed showing shall without a of a society and not be Indeed, state interest.” 582 P.2d 1220.10 compelling state and Supreme Court has stated that where Montana nearly are iden- provisions constitutional identical federal cases, ruling subsequent have that: the In the Alaska Courts held 9. applied only interceptions date of the is to be decision, made after the Glass State, 796, (Alaska 1981); Mossberg 624 P.2d 800-01 Glass v. place authorizing interception specify need not where a warrant occur, interception is to need not occur and service of warrant State, interception, 247-49 until after the Jones v. 646 P.2d (Alaska App.1982); requirement apply does not to discus- the warrant officer, Quinto, with a Juneau 684 P.2d 127 sions uniformed v. and, (Alaska 1984), (Alaska rev’g App.1983); warrantless 664 P.2d 630 are, Glass, recordings despite prosecutions, perjury admissible in State, (Alaska 1983). v. Wortham 666 P.2d 1042 cases, subsequent only is 10. In Montana Courts have held: a warrant participant monitoring, required for “face to consen- face” electronic interception telephone violate Article sual conversations does not II, Coleman, (1980) State v. and sec. 189 Mont. 616 P.2d 1090 Cannon, (Mont. 1984); v. a war- State P.2d 705 failure to obtain only recordings monitoring invalidates and rant officer’s Jackson, testimony, testify, participant may still State v. 180 Mont. likewise, (1979); acquired P.2d 1009 as a evidence or derived tainted, illegally meeting result of the monitored State v. Bassett, Hanley, 186 Mont. 608 P.2d and State and, (1980); authorizing 614 P.2d Mont. search warrant participant monitoring may upon be issued based infor- information, supplied may monitoring mant authorize of informant days, target specify for ten need not where monitor- location informant, ing (designation target, will occur duration of seized), sufficiently authorization to be describes communications Coleman, supra. State v. 242

tical, consistently the state will be construed provisions Supreme construing States Court decisions the fed- United Jackson, provisions. eral See State v. Mont. (1983); Finley, P.2d 255 State v. 173 Mont. 566 P.2d Thus, express of right absence II, sec. privacy provisions Mont.Const. Art. of II, (analogous I, Art. sec. 11 Pa. Art. MontConst. Const. Amendment) provide great- sec. 8 and the Fourth would no against protection participant monitoring er by personnel enforcement than the Fourth law Amendment. Collins, Emergence See The State Constitutional Law: Disaster, on State Constitutions —The Montana Reliance (1985)(analyzing criticizing 63 Tex.L.Rev. and Jackson Finley). and original Reeves, 6-1 decision in

Similarly, State v. (La.1982), the majority, So.2d noted was expressly upon based textual La. significant between differences I, Const. Art. sec. 5 and the Fourth Amendment.11 (which original became the majority minority rehearing) explained:

By its clear terms the expressly protects constitution every person’s ‘communications’ from unreasonable searches, seizures and ‘invasions of privacy,’ thereby affirmatively establishing right including a privacy person’s communications. The safeguard unlimited all person’s private and thus covers of a communications. Because expressly the constitution elevates communica- as a protected position equal tion interest to a stature interests, with other expressly protected invasions or interceptions them not be may conducted without Article provides: 11. 5 of the 1974 § Louisiana Constitution Every person person, property, shall be in his secure communica- tions, houses, papers, against and effects unreasonable searches seizures, privacy. or invasions No shall issue warrant without affirmation, supported by particularly oath cause or searched, describing seized, place persons things to be to be purpose Any person and the or reason search. lawful adversely affected a search or seizure conducted violation standing illegality this appropri- Section shall have to raise its ate court. (Emphasis added). cause, issued upon probable particularly warrant describ- invaded, the communication to ing the lawful interception. or reason for the purpose original at 404-05. The majority rejected So.2d White, supra, reasoning rationale of United States v. that, Amendment does not explicit Fourth contain these “[t]he White and, interpreted as guarantees plurality, sim- types does not address some of invasions of that ply privacy delegates and the people concerned of this State adopting the 1974 Louisiana Constitution.” 427 So.2d 409. rehearing, held majority

On new the defendants’ conversations were “communications” but that no “invasion had occurred. privacy” applying While Justice Harlan’s test, actual and expectation privacy reasonable the court Justice Harlan’s anecdotal expressly rejected argument that electronic participant monitoring “chilling will have a White, supra, 401 U.S. at 787-89; effect” on free speech, rehearing majority responded argument: to this oppose Those who warrantless consensual surveillance it will argue chilling have a effect on free and open among discourse members of This claim is society. spec- ulative at best. The fact that this type surveil- [...] lance system exists the federal or existed in our has jurisdiction society’s willingness frustrated trust others. Free open discourse has not been inhibited. (Footnote omitted).

427 So.2d at 418. Louisiana has since See reaffirmed holding rehearing majority. Terracina, State v. (La.1983) Lobrano, 430 So.2d 64 (per judges joining, with two three judges concurring and one Marks, State v. dissenting); 503 32 (La.App.1986); So.2d v. Taylor, State see also Wise, 232 (La.App.1986); So.2d State v. Reeves: Interpreting Louisiana’s to Priva Right cy, 44 La.L.Rev. 183 Lee, cites State v.

The also majority 67 Hawaii Lester, and State v. (1984), P.2d 64 Hawaii 649 P.2d (1982); however, neither of these support cases that a based on cause is consti- argument warrant prior participant to use of electronic tutionally required Indeed, personnel. despite law enforcement surveillance proscription against express an constitutional “invasion[s] Const. Art. sec. privacy,” Hawaii Hawaii held that consistently Court has Hawaii Con- Supreme greater protection against no warrantless provides stitution monitoring than the Fourth Amend- participant electronic Lee, v. supra, ment. State v. State 817-18; 686 P.2d at Okubo, State (1984); 682 P.2d Hawaii State v. Pilago, 22, 24, (1982); 649 P.2d 65 Hawaii Lester, supra, 649 P.2d at 352. Sarmiento, also cites State v. 397 So.2d 643 majority aff'g

(Fla.1981), (Fla.App.1979), 371 So.2d 1047 wherein the that, Supreme exigent Florida Court held absence of circumstances, monitor warrantless target’s in a own home violat ing private conversations express proscription inter against ed the “unreasonable in ceptions private of communications” Florida Const. Art. textual significant Again, sec. 12.12 account differences the difference in the construction of the state and federal provisions.

The fate of the Sarmiento rule, however, particularly instructive as to the risks and limitations of the activist the Sarmiento approach Following “new federalism.” decision, an active crusade was launched in the Florida Legislature passage following which resulted in the of the Sarmiento, supra, applied pending appeal, 12. was to cases but not finally prior filing to cases decided of the Sarmiento decision. State, State, (Fla. 1982); Williams v. 421 So.2d 512 Hoberman v. See (Fla.1981). rule was So.2d 758 The announced in Sarmiento narrowly participant monitoring confined "face to face" electronic Williams, target’s in the v. home. See State 443 So.2d (Fla.1983) (legality monitoring phone target’s of call home of ); Chiarenza, upheld, distinguishing Sarmiento State v. 406 So.2d 66 (Fla.App.1981) (legality monitoring upheld, in informant’s home ); State, (Fla. distinguishing Morningstar Sarmiento v. 405 So.2d 778 App.1981) (legality monitoring target’s place upheld, of business Sarmiento); State, distinguishing Padgett (Fla.App. v. 404 So.2d 151 1981) (same). provision of the con- place constitutional amendment strued Sarmiento: 12. Searches Seizures

§ right people persons, The to be secure their houses, against and effects unreasonable searches papers seizures, against interception the unreasonable means, communications shall not private by any be except upon proba- No shall be issued violated. warrant affidavit, cause, supported by particularly describing ble searched, person persons, or or place places seized, thing things to be the communication to be the nature of evidence to be intercepted, and obtained. be construed in right conformity This shall 4th Constitution, to the United States as in- Amendment Supreme the United States Court. Arti- terpreted by obtained in violation this right cles or information be admissible in evidence such articles or shall not if would be inadmissible under decisions of information Court Supreme construing the United States 4th Amendment to the United States Constitution. (as 2, 1982)

Fla. Art. sec. 12 amended November Const. provision). indicates text added to the former (emphasis provision has construed to have the effect of new been overruling prospectively, brought and to have Sarmiento majority Florida back into line with view as to moni constitutionality warrantless toring personnel. State, enforcement by law Madsen v. 1987); Hume, (Fla.App. So.2d State So.2d Ridenour, (Fla.App.1985); (Fla.App. 453 So.2d 193 State v. 1984); Wilks, “The New Federalism in see also Criminal Phoenix?,” in Developments Procedure: Death of the (Nat’l Constitutional Law at 166-193 Center for State 1986)(discussing popular repeal Courts of “new feder State amendments, alism” decisions state constitutional includ by ).13 ing Sarmiento Pennsylvania experience popular repeal

13. has had similar unpopular by state constitutional decisions state constitutional I, (as amendment. See Pa. Const. Art. sec. 9 amended November response Triplett, to Commonwealth 462 Pa. 341 A.2d upon foregoing,

Based I find any reliance by the upon Glass, Brackmun, majority Reeves, Lester, Lee, and misplaced. Sarmiento to be Each of those cases involved interpretation recently adopted state constitutional expressly providing amendment right a constitutional privacy above and beyond that afforded by the state consti- tution’s provision analogous to the Amendment; Fourth Pennsylvania’s constitution contains no such amendment.14 (1975) (holding confession obtained as the result of a violation of rights impeach Miranda could not be used to an accused's denial of trial)); Baxter, guilt Commonwealth v. 532 A.2d (1987) (analyzing effects of the 1984 amendment to Pa. Const. I, 9).

Art. sec. Indeed, 14. our most recent Constitutional Convention in 1968 was design powerless provisions Rights. alter the of our Declaration of 15, 1967, (“Providing See Act of March No. P.L. 2 for a constitution- powers”). al convention with Daily limited See abo 2 Journal 15 (December 5, 1967), reprinted Pennsylvania in I Debates Consti- 1969) (remarks (Harrisburg tutional Convention 1967-1968 of for- Fine, noting prohibition against mer Governor John S. revision of Thus, Rights). Alaska, our Declaration of while the conventions in Montana, Louisiana, Hawaii and Florida had been authorized and encouraged expand Rights, to alter and their state’s Bills of our purposefully power convention was denied the to do so. I note Pennsylvanians that the historical reluctance of to alter the provisions Rights adopted of the Declaration of in 1790 alluded to in Sell, 62-63, supra, Commonwealth v. 504 Pa. at 470 A.2d at eloquently explained by following Delegate remarks of Daniel Kaine to the Constitutional Convention of 1872-73: it, Rights, The Bill of passed as we have was framed in It 1790. through the single Convention of 1837-38 without the alteration of a word, crossing without dotting of a t or the of an i. We have had it as it city, came from the hands of the Convention in this was, signed proclaimed day as it Septem- here on the second ber, magna every 1790. It is our principle charter and in it that is farthing itself, Magna worth a is taken from Charter as was the 1776____ Rights appended Declaration of to the Constitution of There is not a Constitution this Union that has a Declaration of thereto, Rights appended perhaps exception with the of Massachu- setts, it, principle that has not some article or some taken from Rights Pennsylvania. that Declaration of of the State of It is one of perfect any the most articles in Constitution in the Union. It cannot bettered; therefore, upon principle, opposed chang- I am ing it. Constitution, right, in the first one, will stand the Bill of place, ^[******] to alter or Rights, believing integrity change of the old ninth article of the it; as I do that we have no that, in the second Lester, Moreover, Reeves, and Lee rejected proposition the of an despite presence herein urged by majority in the state constitution express right privacy to additional cases; of Florida people in those being construed so as to overrule Sarmiento. altered their constitution have I of expansive privacy I note that find the view Finally, and Montana to appellate courts Alaska by embraced public policy.15 Pennsylvania law be inconsistent with D. Commonwealth majority reliance

Any by mis- 424 N.E.2d 250 is also Thorpe, 384 Mass. Court re- Thorpe, Supreme In Massachusetts placed. as state and federal constitutional jected statutory as well derived from warrantless claims that evidence ought place, power, not do so. I would even if we have the we to say, language poets— of one of America’s sweetest Woodman, spare that tree! single bough! Touch not a me, youth In it sheltered protect And I’ll it now. 1873). (Harrisburg IV Debates the Convention 659- NettikSimmons, Right Privacy, generally 15. See Eliason and Note, (1987); Right Privacy Alaska’s to Ten Years Mont.L.Rev. 1-52 Developing Privacy, Ravin v. State: a Jurisdiction 2 Alaska After following pur L.Rev. 159-83 I note the for illustrative State, 1975), (Alaska poses. In 537 P.2d the Alaska Ravin v. Supreme right privacy Court declared that the to in Alaska included right marijuana personal possess an the home use. adult Smith, (Alaska 1972), analyzing In Breese v. P.2d which found public length regulations, unconstitutional school an Alaska Law hair Review article notes: significant by Two statements made the Brease court have had right development privacy influence on the First, in Alaska. the court noted that the state courts were not limited precedent construing similarly-worded federal when Alaska consti- provisions. duty tutional States have a to ‘move forward’ interpret provisions broadly state more than their counter- federal Moreover, parts. recognized judicial duty develop the court rights recognized additional under the Constitution. federal provide significant These two statements continue to foundation right privacy beyond for an extension of the Alaska constitutional precedent. the limits set federal Note, omitted, (Footnotes added). supra emphasis find at 163 I no Pennsylvania such mandate in the Constitution. monitoring of a uniformed officer’s con- suppressed. versations with the accused should be court declined to rule on the merits of the expressly minor- herein, and instead its urged view based decision ity 424 presented. facts N.E.2d at 258-59. Read in narrow context, that, Massachusetts Supreme Court’s dictum course, “the future and the most secure better course is for law enforcement officials to constitutionally, procure in cases where cause for surveillance can warrants shown, in cases it does appear and even where that requires the statute a case where it does not that appear warrant,” require applica- the statutes is no more than an dictum, expers tion of the ancient vis consili mole ruit sua (literally, good weight; force without sense falls its own valor). discretion is the 424 colloquially, part better 259; Kiehly, N.E.2d at see also Electronic Warrantless Massachusetts, 71 Surveillance in Mass.L.R. 183-93 1986) (Winter (analyzing Thorpe). Undoubtedly, securing a course, is the safest and constitutional- statutorily warrant However, here is ly. question not which is the safest course, question whether the course in is but constitution- issue, offers Thorpe only stony al. On this silence. Beavers, also cite 393 Mich. majority People v. (1975), 227 N.W.2d 511 cert. denied U.S. S.Ct. (1975), Michigan Supreme 46 L.Ed.2d wherein the that, circumstances, exigent Court held absence of war participant monitoring rantless electronic of a con private in the own home constituted an unreason target’s versation and under able search seizure Mich. Const. Art. sec. Amendment, I,Art. (analogous to the Fourth and Pa. Const. 8).16 Michigan’s express “right sec. constitution has no Glass, privacy” provision like those construed in Brack man, Reeves, Sarmiento; hence, Lester, the major- Lee Michigan holding Supreme 16. The Court limited the Beavers in two important respects: admissibility the court held that the of the infor- testimony way inadmissibility mant's monitoring was in no affected testimony; officer’s and the court held that the decision applied prospectively. was to be at N.W.2d 516. appropriate is more upon Beavers reliance ity’s respect. that, Beavers, Michigan Supreme recognized Court

In extensively through- monitoring practiced “[participant vitally important investi- country represents out enforcement,” found but warrant tool of law gative because: necessary was requirement society and the individual should The interests both unerring judgment the exercise of upon not rest enforcement officials. Our laws self-restraint law ordinary, law-abiding may ensure that the citizen must discourse, free to engage private speak continue to spontaneity uninhibited that is characteristic of our society. Mich, 566, I agree at 515. While that the N.W.2d currently discretion vested law enforcement

unrestricted legitimate privacy personnel Pennsylvania jeopardizes law-abiding protected by Pennsylva- citizens interests Constitution, agree application I cannot nia requirement necessary appropriate. warrant is fullblown

IV. relates to its My primary disagreement majority enforce “any balancing conclusion that of the needs of law against rights ment of the citizen has been already the framers of the constitution who conditioned done part prior approv searches and seizures for the most “the magistrate” al of a detached and neutral and that Opin standard cause.” probable Majority constitutional is (Empha ion, A.2d at 367. supra, added). sis

A. Dallas, once George President Polk’s vice M. president, that, is opined plain “the Constitution its words homebred, intelligible, unsophis- and it is meant for the 17 To of our fellow citizens.” understandings ticated nature, great there are however, very their contrary, constitution, feder- state or ambiguities any silences Maryland, v. (4 Wheat.) 316, al. Accord McCulloch U.S. Holmes, Jr., (1819). Justice Oliver Wendell 407, 4 L.Ed. 579 explained: do not of the Constitution establish great

The ordinances the more fields of and white. Even and divide black in a penumbra are found to terminate of them specific one extreme to the other. shading gradually from Islands, 277 U.S. Springer Philippine 189, 209, 48 S.Ct. added). (Emphasis 72 L.Ed. Amendment, provisions of the Fourth regard to With has observed: Professor LaFave brevity has the virtue of The Fourth Amendment probable cause It does not define ambiguity. vice of or indicate a warrantless for whether required warrants if made inevitably seizure is ‘unreasonable’ search or cause, required so that the factual basis without seizure is unclear. a constitutional search or relationship define the of the word amendment does not setting clause forth the conditions ‘unreasonable’ issue; unclear may it is thus when under which warrants must before an approval officer’s be obtained judicial as to uncertainty is made. There is also arrest or search re- to the amendment’s subject what official conduct straints, is, amount to ‘searches what actions just ‘right people threaten the of the to be and seizures’ and that concerning there is how Finally, ambiguity secure.’ enforced; right unlike the Fifth Amendment right is to be self-incrimination, barring is made of no mention against fruits of a violation of the amendment. from evidence the Am. Const. Encycl. in 4 LaFave, and Seizure” “Search of (1987). deleted). Professor LaFave’s ob- (Emphasis I,Art. sec. 8. equal force to Pa. Const. apply servations Lieberman, xxvii; Hickey, supra quoted in 17. Quoted in at n. also Law, Years American Ch. at 48 Milestones! Two Hundred of B.

In light ambiguous terms which Pa. Const. Art. I, drafted, unwilling I accept sec. 8 was am majority’s the dictum (and needs the enforcement society law general) already against rights have been balanced the individual to be free from searches and seizures. To I accept analysis, this black white would also have to be willing impose warrant requirement fullblown other non-traditional intrusions such as: airport metal de- searches; tector x-ray drug security searches; canine searches; systematic school locker driving drunk license registration check-point/roadblock stops. traffic examples Each of these undeniably involves a search and/or a seizure. If our state has constitution struck the already balance, then these too must fall under the “unreasonable per se” rule of the To majority. this line of I analysis, Commonwealth Leninsky, must dissent. Pa.Su- Cf. per. 49, 54-56, J.). 519 A.2d 987-88 (Kelly,

I find in rejecting balancing approach, majori ty Pa. impose upon Const. Art. sec. 8 a rigidity which our In Commonwealth v. John Supreme has rejected. Court ston, supra, Supreme our Court reasoned:

We present exigencies believe that case lacks the in Terry, important which were so reason, and for that the determination of whether there was a search cannot balancing be made by privacy interests of the individ- ual against the law enforcement objectives govern- ment, and in we disagree this with the majority’s analysis Place. As it, Mr. puts Justice Brennan the balance has already been struck Fourth by the Amendment itself. law, The issue then, under Pennsylvania and contrary Place, occurred, is not whether a search it is our did, view that it but whether search that occurred should implicate requirements usual warrant char- acteristic private searches areas. This question necessarily involves balancing analysis. Thus, while we are unwilling to the privacy balance expectations of against the individual the law enforce- for the of deter- government purpose interests of

ment search, there was a we the bal- mining whether find to whether this inquiry appropriate determine ancing search in these circumstances neces- kind particular requirements warrant sarily implicates fullblown puts searches. Professor LaFave most other way: this question totally is in terms whether a the issue If framed such in a dogs dragnet unrestrained use fashion one’s society, be tolerable in a answer would free so, If under the test earlier be no. then might likely Katz, under such use of appropriate as suggested to detect concealed contraband should be dogs trained Amendment search. Yet it held to constitute a Fourth particular technique this surveillance is clear that upon privacy, minor intrusion relatively amounts to involved, entry in the say, physical much than is less find a ransacking of a house an effort so, narcotics. Because this is and because quantity of tech- dogs trained is a valuable surveillance the use of if it could considerably hampered nique which would be cause and only upon utilized full hand, perspective push from this search warrant holding of a that the use of trained is the direction is not a search. dogs to detect concealed contraband question leads to the whether quite obviously This middle ground, there is some Fourth Amendment is, this law possible subject whether it so as to practice to some restraints enforcement ensure that it is not used in a or in dragnet fashion but not de- unprincipled fashion, yet a random or the limitations by imposing its all stroy effectiveness other, kinds applicable which are more traditional threatening priva- searches that are much more of cy security. (2d Ed.) 2.1(e), 315. p. I and Seizure Search § there is a Fourth Amendment middle We believe by po- conducted ground applicable investigations detection dogs. lice handlers of narcotics added). Thus, (Emphasis A.2d at 79. 515 Pa. to de inappropriate deemed approach is balancing a while search, constitutes a a bal activity an whether termine determining required nonetheless is ancing approach or unreasonable. reasonable search is a whether V. is, ground sec. middle Art. that a Pa. Const.

I believe that the agree majority I likewise, here. with applicable legitimate inadequate protect to are safeguards current of the law-abiding majority of the vast interests privacy safe- Nonetheless, that additional I believe with public. monitoring by participant electronic ensure that guards dragnet, in a arbi- not used is personnel enforcement law fashion, use electron- the warrantless capricious or trary, as federal state as well monitoring pass could participant ic war- imposing fullblown muster without constitutional specificity type I forth set requirement. rant first, minimally required I find to be safeguards additional this view adopting reasons my afterwards explain Judge Rowley’s or that of majority that of the rather than dissent.

A. substantially similar following safeguards, I find the in order for warrant- minimally required safeguards, to be found to be monitoring participant electronic less constitutional, under Pa. Const. reasonable, and therefore I, sec. 8: Art. or law

1) investigative one of the affidavit sworn 5701) (18 requesting officers Pa.C.S.A. enforcement § General, a District Attorney from the authorization Deputy General or Deputy Attorney or a Attorney, (here- in writing authorized Attorney, properly District par- to conduct authorizing attorney), inafter monitoring, setting forth: ticipant of the a) identity qualifications of the a statement enforcement officers for whom or law investigative monitoring sought; is participate authorization not an identity any person, of the b) statement officer, for whom or law enforcement investigative monitoring sought, in the is participate authorization known relevant to a determination any facts person’s participation; of said voluntariness giving facts rise to a reasonable c) a statement of 5708 has a crime listed Pa.C.S.A. suspicion § committed; been, being, or will be rise to a d) giving of facts reasonable a statement monitoring pro- the electronic belief such criminal material evidence of will secure posed activity; the facts known relevant to a deter-

e) a statement of the credibility or affiant’s reliability of the mination sources; and, person persons of the or

f) identity a statement of the monitored, and the communications are be whose dates, monitoring methods of the times, placed, and and, proposed; an authoriz-

2) signed by of authorization a memorandum setting forth: ing attorney, investigative or a) identity of the of each a statement the participate officer authorized law enforcement monitoring; electronic not an b) identity person, of the of each a statement officer authorized to investigative or law enforcement authorizing attorney has inter- whom the participate, authorizing attorney the personally and whom viewed participate to have consented to volun- has determined the autho- setting any by forth facts known tarily, and the determination that the relevant to rizing attorney voluntary; consent was

c) requesting the of the a statement affidavit authorizing reviewed the personally officer has been sufficiently has found to establish attorney and been suspicion reasonable that one of the offenses listed in been, has being, Pa.C.S.A. or will be § committed, and the reasonable belief participant monitoring authorized will secure material evidence of that criminal activity; d) the person a statement of or persons whose commu- times, monitored, dates, nications are to places, and methods of monitoring, any restrictions or requirements imposed minimization as a condition of authorization, which compliance shall include provisions 5714(a); and, Pa.C.S.A. § 3) a final form of report a sworn affidavit or series affidavits, signed sworn investigative each of the

or law enforcement officers who conducted the elec- tronic participant monitoring, forth: setting a) (if known) a statement containing identity of the person persons whose monitored, conversations were times, dates, places, and of the methods monitoring and a summary brief contents the communica- tions; and

b) a statement of occurrence or non-occurrence of any deviation from restrictions or conditions set forth in the memorandum of and any authorization relevant facts regarding the therefore; circumstances or reasons and,

4) the authorizing attorney required would be to secure

and preserve, intact, unaltered and the affidavit of the officer, requesting the of authorization, memorandum the report final the tapes and of the monitoring, and be further to required produce the when same lawfully directed to by do so a court of competent jurisdiction. I note that I do not find each component of the above safeguards to be individually constitutionally mandated; rather, I find adequate that the present restriction of unfet- tered discretion personnel vested law enforcement is constitutionally required, and that safeguards the above

collectively without the requirement imposing meet requirement.18 probable cause/warrant more restrictive B. (which herein majority the

According majority to view that a confident- subjective expectation, a criminal’s reject), credibly or accurately not able to turned-informant will be incriminating to of statements made the contents establish See legitimate nor reasonable. confidant, is neither supra. agree. I The risk Caceres, of disclosure Generally, to is parties private a communication of confidances communications; Benjamin as Franklin inherent to all such warned, enemy, from keep your your secret you would “[i]f participant monitoring state law enforce- 18. I note that electronic of the personnel the conditions outlined would have none ment under general of assistance and warrants characteristics writs offensive Case, against fiery oratory in Paxtons James Otis railed which (Mass.1761) Quincy and and which both Fourth Amendment veto 8 were intended to act as a "solemn Pa. Const. Art. sec. against." Wakely,supra. required person specify or be The authorization would monitored; not persons were be it would whose communications "universal,” against subjects." Only "all those be specifically or be directed participate permitted be to conduct authorized to would "negotiable one monitoring; would not be from the officer to another.” ordation of statements restricted as to the not authorize the anything the authorization authority rec it is conferred is limited informant, voluntarily disclosed to the and time, monitoring; place does and of the it method locks, bars, and or informant to “break shop way" target's or enter the home else his any person, not an search. A determination that conduct an to authorized to "compelled unlimited officer, investigative voluntarily enforcement has consented law person be be required a could participate would be before such monitoring; persons participate no would in the against their A sworn to assist in the search" will. establishing suspicion a listed in 18 reasonable crime affidavit been, being, as as had or will be committed well § Pa.C.S.A. 5708 be an offense will that material evidence such reasonable belief suspicion required; without an oath” would would be "bare secured Lastly, require final would not be sufficient. report the authorization authorizing attorney delivery tapes to who would of the upon responsible production tapes lawful be for the turn court; “perpetual" "with the authorization would order (C. 1850) Adams, ed. See Works John 523-25 Adams out return." (setting (Starkweather argument); 1900) 20-24 Otis’s I Orations American Orator’s forth Marke, (same); (analyzing supra ed. see also Amendment). argument to the Fourth Otis's and its relation Franklin, a friend.” Poor Richard’s Almanac tell it not to well-settled, majority undisputed by It is herein, statutory prohibition of a particular absence a confidant disclose the con- privilege), may marital (e.g.: police, communications to the and the private tents of Jacobson, (citing supra such disclosures. See may upon act cases). monitoring participant

I the notion that electronic reject more invasive than unmon significantly must be considered an ac disclosure because it eliminates itored challenge credibility or of an ability accuracy cused’s I disclosures. do not find that Pa. Const. Art. informant’s in the creation of I, 8 was intended to aid the accused sec. accuracy in minds of the to the or jurors doubts as false Rather, I find of an informant’s disclosures. credibility Art. sec. to prevent that Pa. Const. was intended and not to assist criminals in efforts to erect oppression, White, discovery supra, of the truth. barriers Cf. Furthermore, I at at 1126-27. note 401 U.S. S.Ct. regarding opportunity that while the create false doubts of tapes is removed the existence credibility accuracy by communication, is the opportunity of the disclosed so too such witnesses to remember and recount Commonwealth interest, through advocacy, communications filter of such communications will Tapes dispassionately bias. acquit guilty; respect, the innocent and convict the this participant monitoring protects rights electronic accused, as of society. as well those argue, though, general fear of majority “chilling ef- participant monitoring will have speech rights law-abiding public. fect” on the free Court, Supreme Like the Louisiana I find this anecdotal Reeves, argument highly speculative. supra, to be See 418; (state “chilling at 191 Kiehly, supra So.2d see also effect” is “muddled the effect of the analysis somewhat” standard; less restrictive federal an increase state re- chilling strictions not remove whatever effect general would standard). None- is caused less restrictive federal monitoring theless, participant I if electronic agree manner, the capricious or dragnet, arbitrary, used in a were lawabiding interests of legitimate privacy upon intrusion Thus, under LaFave be intolerable. citizens would Johnston, indiscriminate elec- supra, adopted analysis enforcement monitoring by personnel law participant tronic seizure, a search and albeit deemed to involve should be one. non-traditional in the statute to finds the restrictions Rowley

Judge Dissenting against abuse. safeguards provide sufficient 270-271, Opinion,per J., Rowley, Pa.Super. infra, rather, not; I find that 18 Pa.C.S.A. 400. I do A.2d at dragnet, 5704(2) safeguards prevent adequate lacks § participant of electronic monitor use arbitrary capricious monitoring may employed such be the statute ing. Under communication sus involving or oral intercept “to wire added). There are (Emphasis activity.” criminal pected suspicion required expressed as to level no limitations the use activity which would warrant type or the of criminal Moreover, under 18 monitoring. participant of electronic to monitored 5704(2)(i), participant when the Pa.C.S.A. § officer, no approval enforcement investigative or law is an is Common authorizing attorney required. See of an (1985). 255, 502 A.2d 1375 Clark, wealth v. Thus, statutory safeguards current under the attorney, could, authorizing of an approval or without monitoring target conduct extended electronic of a minor misde suspicion mere any upon citizen based such as this ab summary jaywalking; meanor or offense unfettered discre virtually demonstrates the example surd I find the in the officers in the field. currently tion vested discretion to be unreasonable. Com allowance of such Cf. 107, 112, 453 Pa. 307 A.2d Swanger, monwealth “absolute, discretion (disapproving unreviewable field); the officer in the Com the hands of authority” (same); Mar see Leninsky, supra generally monwealth v. tens, Police Dis The Fourth Amendment and Control of cretion, 17 U.Mich.J.L.Ref. believe, however,

I firmly imposition proba of a requirement cause/warrant by majority ble excessive right and the privacy possible chilling solicitous ly participant monitoring effect of the use on free I speech. any appreciable chilling do not believe that effect speech rights law-abiding on the free citizens would from the approval partici result warrantless electronic pant monitoring to be conducted with the safe consistently V, set forth at Part A. guards supra opines that, great is no majority burden on the “[i]t require they participant monitoring that restrict they cases where can show cause for a warrant.” at Majority Opinion, A.2d at 367. I agree. demonstrates, cannot As the case proba- instant the standard, cause applying ble even the of circum- totality test, stances constitutes a formidable barrier. IWhile with the sales of agree majority that two a small amount of marijuana suspect’s apart, home a week with the last being days prior request sale five for a warrant to home, suspect’s search the does not meet the burden of establishing probable cause for issuance of a au- warrant home, a search I thorizing why of the can see no reason those same facts should not form a predicate sufficient authorize properly participant monitoring. limited electronic

Because not all crimes are committed in bright light the day citizens, before swarms of and respected credible it is often for the necessary police to resort to the use of character, informants of dubious reliability, credibility. and crime, In organized many managers directors and of crimi- operations nal deal exclusively through such nefarious char- acters. Without tools such as electronic participant moni- toring informants, corroborate the disclosures of such suspicions might developed reasonable never be into proba- cause, arrest, ble lawful just conviction. I find that the risk of a chilling speech rights effect on free public general, the risk of upon unreasonable intrusions legitimate privacy interests of individuals are diminished and overcome by compelling countervailing societal inter- in bringing

ests criminals to justice approval when of elec- tronic participant monitoring by law enforcement personnel consistently is conducted with the safeguards set forth supra at Part V, Nonetheless, A. monitoring because the conducted the instant case was conducted accord- ance such I safeguards, agree that monitoring the constituted an unreasonable search and seizure under Pa. Const. Art. sec. 8.

VI. We must then determine what the effect of the constitu- tional has infirmity upon evidence derived from the monitoring. The majority conclude tapes of the electronic participant monitoring, officer, statements of monitoring and the fruits of the execution of the April 1984 search warrant should have arguendo, I suppressed. been find that assuming, even tapes monitoring officer’s statements should have been suppressed, suppression of the fruits of the execution of the search warrant was neither necessary nor appropriate. I Because would find the fruits of the admissible, search and because neither nor tapes statements of monitoring office were offered or admit- ted into evidence during appellant’s trial, bench I would affirm judgment of sentence. I Although find no need to decide the broader issue of whether a state constitutionally mandated rule exclusionary would have required suppres- sion of the tapes and the monitoring statements, officer’s purposes discussion, the assume I will suppres- of sion would required.19 note, however, Williams, 368,

19. I that in Commonwealth v. 454 Pa. (1973), Supreme 312 A.2d explained: our Court prophylactic exclusionary applied only rule is in extreme cases attempts where all compliance other proven secure have unsuc- Ohio, 643, generally 651-52, cessful. Mapp See v. 367 U.S. 81 S.Ct. 1684, 6 L.Ed.2d 1081 In this area there has been no showing widespread flagrant disregard justify formulation of such a rule at this time. 454 Pa. at given A.2d at 600. The construction Pa. Const. Art. majority imposes sec. 8 the in this case police limitations on powers Thus, heretofore unknown in this Commonwealth. while

A. monitor of the the redaction that with find majority support of the affidavit from the officer’s statements ing of the warrant, application and with search April Burke, v. in Commonwealth announced rule contains (1975), the affidavit 524, 527 42, 340 A.2d the to sustain probable cause establish facts to insufficient Opinion, Majority su See of the search warrant. validity Ap 373-375. 217-221, A.2d pra, 370 Pa.Super. at adopted Com test of circumstances totality the plying agree majority’s I with the Gray, supra,20 v. monwealth of circum totality the I note that point. on this reasoning affidavit of the redacted applied to test is to be stances Upon review as a not the record whole. cause and probable simply are affidavit, I find that there redacted of the of a warrant to issuance justify facts averred insufficient a home. search the determining that in agree majority

I also corners warrant, limited to the four we are validity of 2003(b). For this Pa.R.Crim.P. supporting affidavit. irrelevant whether absolutely it is purpose, limited police information to additional relayed informant that information relayed turn whether Morris, 368 Pa.Su issuing authority. Commonwealth A.2d 1044 & n. n. 240 & per. cause affidavit but

(information not contained may newly have been wide- of these announced limitations violations reasonably flagrant they as as until spread, could not be characterized authority day overwhelming weight such conduct to held this Consequently, prophylactic exclu- formulation of a be constitutional. appear sionary application to be in this case would not rule for reasoning justified Supreme Court’s in Williams. under our totality Adoption circumstances test has not diminished 20. necessity probable cause nor has it removed the the standard for hearsay establishing reasonably upon state- that the officer relied rather, acknowledges parties; merely that in some third it ments of party police may possess from third information circumstances test, rigid Aguilar-Spinelli but which would not meet the sources reasonably pru- of nevertheless would warrant the reliance which Sorrell, Gray, supra; v. 319 man. See see also Commonwealth dent Pa.Super. 1250, 103, 112, 465 A.2d 1253 issuing disclosed to does not affect authority validity warrant, it is relevant to the issue of but whether warrant). good acted faith reliance on an invalid must, therefore, be deemed invalid. warrant

B. remains, however, The fact the police took their of probable magis affidavit cause to a neutral and detached facially trate who examined it and issued a valid warrant the information upon based contained therein. Under fed law, good exception eral faith to the federal exclusion rule so ary apply permit would as to the admission of the fruits of the search upon which was based a facially valid warrant it later though even was determined to have been upon issued based an affidavit which failed to contain cause. See United sufficient facts to establish Leon, States v. 897, 3405, 468 U.S. 104 S.Ct. 82 L.Ed.2d 677 Krull, see also Illinois v. (1984); —, 480 U.S. 107 S.Ct. 1160, (1987) (Leon’s 94 L.Ed.2d 364 good faith exception applied where reliance on statute authorizing warrantless Mary reasonable); administrative search was objectively Garrison, land v. —, 1013, U.S. S.Ct. 94 L.Ed.2d (1987) (Leon’s good faith exception applied where execu tion of warrant which was later discovered to have been was, nonetheless, overly reasonable); broad objectively Massachusetts Sheppard, v. 468 U.S. 104 S.Ct. (1984) (Leon’s L.Ed.2d 737 good faith exception applied where officer’s reliance upon technically, facially, but defec Commonwealth tive warrant objectively reasonable); was Mason, 507 Pa. 405 n. 490 A.2d 426 n. Admissibility (summarizing rule); Annotation, federal in Criminal Case Evidence Obtained by Law Enforce ment Allegedly Relying Reasonably and in Good Officer Warrant, Faith on (1986 L.Ed.2d 1054 & 1987 Defective Supp.) (collecting cases); Kamisar, Introduc and analyzing tion: Trends and Developments with Respect to that Amendment “Central Enjoyment Other Guarantees The Bill Rights,” U.Mich.J.L.Ref. 409 n. 4 commending, or crit- (1984)(collecting analyzing, authorities “good exception). icizing Leon faith” find, faith however, type good that a The Leon majority exclusionary mandated constitutionally a state exception to se unrea- per in this because it was apply rule cannot case for the to believe 18 Pa.C.S.A. sonable § partici- electronic them to conduct warrantless authorized therefore, for it was unreasonable monitoring, pant warrant, to that the based in evidence part them believe valid. The note monitoring, majority was derived from prior in the case was issued to the warrant instant conclude that be- supra,21 decision panel Harvey, appellate court authorization was lack- express cause state agree; I cannot reliance was therefore unreasonable. ing, express appellate court authorization was indeed while state lacking, I reliance on the warrant to be nonetheless find eminently reasonable under the circumstances.

C. The date of the majority prior note that effective Act, and Electronic Surveillance warrantless Wiretapping monitoring by per law enforcement participant degree Majority Opin sonnel was a second misdemeanor. 184, A.2d at 356. ion, This supra, Pa.Super. fact, however, picture history an presents incomplete right regarding oral wire statutory privacy in Pennsylvania.22 communications panel prior 21. I note that it was also issued decision Common 253, (1984), Beauford, appeal wealth v. A.2d 783 319, (1985) (holding unconstitutional dismissed 508 Pa. A.2d 1143 “pen monitoring reg non-participant private via communications devices). ister” regarding subject passed Pennsylvania was 22. The first law this 331, 7, April The § 1851. Act of No. P.L. 612. 1851 act employee telegraph divulge made it a crime for a to use or telegraph dispatch contents "without or direction of consent party sending receiving,” dispatch either the was sent unless the added). penalties general publicity.” (Emphasis "with a view act increased Act of for violation of the 1851 were in 1860. March 374, 72, proscriptions No. P.L. 382. In the 1851 § persons provision were act extended connected with the tele- (non-wire) monitoring Electronic of oral com- personnel severely munications law enforcement was 3, 1978; limited February between 1975 and December comply procedures failure to with the then forth in any set 5705(c)(3) liability 18 Pa.C.S.A. could have resulted in § However, degree a second misdemeanor. February before services; phone exception for use or disclosure with "consent or party sending receiving" direction of either the July or Act remained. of 10, 330, 1, 1901, 2, No. P.L. 651. The 1901 act §§ was reenacted only changes penalty provisions and codified minor with to the in 24, 1939, 375, 688, 872; Act of P.L. § 1939. June No. 18 P.S. 4688. § (Such legislation apparently necessary acceptance was to foster of telegraph telephone private both the and the as a secure of means upon private I note communication. that the limitations disclosure of by parties information conduit to communica- incidental/commercial DeJohn, Beauford, recognized supra, in supra, tions alytically and involve an- considerations). implicit necessity similar economic 1957, legislature In a the enacted new statute which differed in 16, 1957, 411, respects predecessors. July material from its Act of No. act, 5701-5704, time, required P.L. 1482. The for the §§ of all first consent parties telegraph telephone or communication in order to the authorize use or disclosure of contents of the communication. time, statutory exclusionary for the Also first the act contained a rule 1972, applicable to information derived in violation act. In act was codified at 18 Pa.C.S.A. §§ 5701-5704 and entitled 334, 6, 1972, Privacy.” "Invasion Act of December No. §§ 5701- 5704, changes provisions P.L. No 1482. substantive were made to the act. 1974, 5701-5704, In amendments were made to 18 Pa.C.S.A. § which, time, divulgence brought for the first use or communi- oral by telephone telegraph cations other than those transmitted or under 27, 1974, 327, statutory 5701, restrictions. Act of December §§ No. 5703-5705, (effective 21, 1975). February P.L. 1007 Under the 1974 amendments, degree any it was a misdemeanor of the second electronic, person any to use intercept mechanical or other device to private parties. conversation without consent of all the 18 Pa.C.S.A. exception A participant § 5705. narrow was included for electronic monitoring by personnel personal law enforcement ensure the safety of an undercover law enforcement officer. Pa.C.S.A. 5705(c)(3). exception required by designated The § authorization official; approval judicial official and monitoring of a but not record- ing permitted exception. was under this legislature In Wiretapping enacted the and Electronic substantially regarding Surveillance Act which altered the law use and divulgence of both oral and wire communications. Act October 1978-164, (effective 3, 1978). Signifi- No. P.L. 831 December cantly, legislature 5704(2) which, adopted § Pa.C.S.A. under conditions, specified exempted participant monitoring by electronic personnel law statutory prohi- enforcement from and restrictions imposed bitions which had been 1957 acts. applied or prohibitions restrictions statutory no (non-wire) monitoring of oral commu- participant electronic 3, 1978, nications; moreover, electronic after December of ei- enforcement officials monitoring law participant any from exempted oral was wire or communications ther the monitor- prohibitions providing statutory restrictions compliance 5704. with Pa.C.S.A. was conducted ing § case, issuing Thus, authori- in the instant re- statutory that no believed ty reasonably correctly con- participant monitoring applied striction 5704. with 18 Pa.C.S.A. ducted accordance § D. April when correctly notes that majority involved in the instant participant monitoring

the electronic occurred, had Pennsylvania appellate no state court case monitoring lawby held that electronic expressly personnel accordance Pa.C.S.A. enforcement § 8. I Const. Art. sec. do was constitutional under Pa. however, believe, express appellate of such that the absence authority’s police’s issuing rendered the approval monitoring validity in and the legality belief unreasonable. the warrant 6, (when was April question the warrant in

By 1984 issued), deliv- Supreme already the United States Court had Caceres, Jacobson, White, opinions its in ered Kauffer. States v. United Supreme Court had cited Pennsylvania Glover, White, v. supra, Commonwealth as authority 492, 349, (1972), 498-99, Pa. 286 A.2d 352 and this Court 446 White a claim that applied rejecting partici- had electronic pant monitoring by personnel law enforcement violated v. Commonwealth rights. target’s constitutional federal Donnelly, 632, 396, 408-13, 336 Pa.Super. 233 A.2d 638-41 allocatur , (Pa.1975), (1975) 233 Pa.Super. xxxvi refused cert. denied 1477, 424 974, 96 S.Ct. 47 L.Ed.2d 744 U.S. (1976) in- Although appellate . neither state decision court a challenge constitutionality volved of warrantless I, participant monitoring under Pa. Const. Art. 266 8,

sec. it is significant that there is not slightest hint in those decisions that a different result would obtain under Indeed, Louisiana, state law. Supreme Courts of Michi construed Donnelly gan, Virginia and West bringing as v. See State Pennsylvania in line with the federal rule. Reeves, supra, 427 So.2d at People Drielick, v. 416; 400 559, 11, 619, (1977); Mich. 568 n. N.W.2d n. 11 State, Blackburn v. 22, (W.Va.1982). 290 S.E.2d More over, Pennsylvania appellate while state courts had not yet issue, addressed the a federal sitting district court in Pitts burgh had published opinion an analyzing Pennsylvania that concluding caselaw electronic participant monitor ing in accordance with 18 Pa.C.S.A. 5704 did not violate § Getter, 8. See United States v. Pa. Const. sec. Art. sub nom. Unit F.Supp. (E.D.Pa.1983); 1314-17 aff'd DeMaise, ed States v. cert. (3rd Cir.1984); 745 F.2d 49 denied U.S. S.Ct. 83 L.Ed.2d 780

I simply agree cannot the belief or the issuing authority the evidence derived from elec —that tronic participant monitoring was constitutionally obtained issued part and that the warrant evidence was valid —was unreasonable. After the search warrant was case, issued this separate panel five decisions of this Court reached the same conclusion regarding the constitu tionality warrantless electronic participant monitoring by Frank, Commonwealth v. law personnel. enforcement (1986) Wieand, 516 A.2d 64 (per J.; Beck and Watkins, JJ., join); Commonwealth v. Rodriguez, Pa. Super. (1986) 515 A.2d 27 (per Wickersham, J.; Brosky Watkins, JJ., join); Commonwealth v. Harvey, supra (per Wieand, J.; JJ., join); Com Johnson and Montgomery, monwealth Doty, 345 Pa.Super. 498 A.2d 870 Wieand, J.; (per Del join); Com Popovich, JJ., Sole and Hassine, monwealth v. 340 Pa.Super. 318, 490 A.2d 438 (1985) (per J.; Montemuro, P.J., Spaeth, J., and Popovich, join). While these decisions may erroneous, have been are we to find that they were also “unreasonable?” I certainly am unwilling do so.

267 valid upon facially officer’s reliance the police I find rea- objectively been to have 6, 1984 search warrant April an case of in the instant sonable. indication There no in the Had the rules announced to evade law. intent author) been known this (of majority case instant no the Commonwealth I have doubt suspected, or even would have obtained have and authorization could lawful search monitoring, a valid for the electronic kind of precisely the case involves Succinctly, this warrant. erroneous) facially on a (but reliance faith good reasonable the Leon exception faith good to which valid search warrant apply. intended was

E. Montgomery, 138, A.2d v. 518 Commonwealth 513 Pa. In Supreme Court stated: (1986), our Mason, 2, 490 v. In Commonwealth Pa. 406 n. reserved (1985), expressly n. 2 we A.2d itself, Pennsylvania Constitution of ‘whether question of evi- compel the exclusion would Article Section thereof, a state whether obtained violation dence [or] in a applied rule would be exclusionary constitutional This counterpart.’ its federal manner co-extensive with opportunity us appeared give at first blush to case important exclusionary rule issues. address these record, however, reveals that A careful review preserve did not exclusion- properly Commonwealth consid- issue, we from rule therefore are constrained ary it ering herein. see also Common 1199; 142-43, A.2d Pa. at Revtai, v. 53, 61,

wealth 516 Pa. 532 A.2d state constitutionally mandated scope existence and open question. in Pennsylvania rule remains an exclusionary indepen- considering In whether and to what extent an rule exclusionary state constitutionally dent mandated noted recognized should be it should be Pennsylvania, Ohio, prior Mapp 81 S.Ct. 367 U.S. (1961), refused to Pennsylvania steadfastly L.Ed.2d the adopt exclusionary federal rule as matter of state law. Voci, See v. Commonwealth 404, 393 Pa. 143 A.2d 652 Chaitt, v. (1958); Commonwealth 532, 112 380 Pa. A.2d 379 Bruno, supra, (1955); Commonwealth v. at (1964) n. 201 A.2d at n. (collecting pre- 557-59 441-448 Chaitt, Mapp supra, Commonwealth v. cases). In our Supreme stated: Court start with the principle

We fundamental common the of admissibility by law that evidence is affected of illegality by the the means which it was obtained. rule, That has persisted uninterruptedly which in the of jurisdictions Kingdom several the United and the Brit- ish of overwhelming Commonwealth Nations and an of number the States which have had to consider occasion question, the has also been entrenched in the firmly appellate decisions courts of our own Common- wealth. (footnote

380 Pa. at 112 A.2d at 381 collecting cases Ryan, see also Commonwealth v. supra omitted); at n. (1934) Commonwealth (collecting cases); 459-60 Street, supra at n. at 794-98 (exhaustively collect- authorities). ing analyzing early cases and arguendo, assuming, Even some con- that form state stitutionally exclusionary mandated rule will be eventually adopted Court, I Supreme our am unwilling to assume that the fruits of the execution of the April 1984 search warrant fall would within the ambit of such a rule. It would be if incongruous and ironic under banner “new federalism” this Commonwealth were to recognize state constitutionally exclusionary mandated rule broader than the federal rule we resolutely which resisted under the (states’ banner of “old rights) federalism” until we were it apply forced compulsion of the supremacy clause the federal constitution.

Based upon foregoing, I find that the trial court’s denial of the motion suppress the fruits of the execution April 1984 search warrant proper though was even the prior monitoring was unconstitu- tapes assume tional, if we and even suppressed must be testimony monitoring officer’s I find the Succinctly, invalid. itself was warrant warrant valid facially the upon reliance officer’s therefore, suppression find reasonable, and objectively inappropri- and unnecessary to be its execution fruits of the ate.

CONCLUSION participant the electronic majority with the agree I violated Pa. Const. in the instant case monitoring conducted 5704(2)(i) 18 Pa.C.S.A. I, provisions 8. The § Art. sec. in the hands discretion unrestricted (ii) virtually leave and 5704(2)(i)) prose- and (§ personnel the law enforcement partici- authorize designated to cuting attorney’s legit- 5704(2)(ii)), thereby imperil and monitoring (§ pant Pa. citizens which law-abiding interests of privacy imate Therefore, I designed protect. 8 is Art. sec. Const. in part. concur that a warrant

However, majority agree I do not cause is an upon probable officer based by judicial issued electron- use of to the constitutional prerequisite irreducible 8; I,Art. sec. under Pa. Const. monitoring participant ic V, in A of set forth Part rather, safeguards I would find the unconstitu- agree do I sufficient. Nor opinion this monitoring renders of the electronic tionality 6, 1984 search warrant of the April of the execution fruits Rather, I find that Pennsylvania law. inadmissible under reasonable, faith re- good objectively acted in warrant; (but defective) and there- facially on a valid liance execution of the warrant fore, the fruits of the exclusion of neither because inappropriate. Finally, unnecessary and is statements of monitoring any nor tapes of the during appellant’s bench admitted monitoring officer were that evidence trial, failing suppress any I find error doubt and would beyond harmless a reasonable have been Therefore, respectfully I of sentence. judgment affirm in part. dissent

BECK, Judge, concurring dissenting: I concur Part I opinion majority’s with the understanding that the opinion decides the issue of whether required warrant for “participant monitoring” only when such monitoring occurs inside a home.

I join dissenting opinion by Judge Olszewski as to his view that the question warrant satisfies the “totality of the circumstances” standard and was therefore properly issued.

ROWLEY, Judge, dissenting: I respectfully dissent. Unlike the I majority, am of the opinion that the Assembly General clearly and unambig intended, uously provided 5704(2)(ii), in 18 Pa.C.S. § the warrantless interception recording of oral communi cations consenting between a informant person and a third engaged suspected criminal activities. The words of a statute must be given plain their meaning. Com. v. Stan 498 ley, (1982). Pa. A.2d “When a statute is not ambiguous clear, and the wording then the letter of statute not may be circumvented on pretext the [the] pursuing spirit.” its Chesler v. Government Employees Co., 356, 361, Ins. 302 Pa.Super. 1080, 1082, 448 A.2d (1982), revd. on grounds other 503 Pa. (1983), A.2d 560 amended on other grounds Pa. (1984). 475 A.2d 102 not, therefore, I would I perceive circumvent what be the plain meaning 5704(2)(ii) in order to make the section § compatible with the majority’s construction of Pennsylvania Constitution, I,Art. 8.§

However, I am also of opinion the 5704(2)(ii),as I § it, read only does not the violate United States Constitu- tion, it but also does not violate Art. 8 of Pennsylva- the § nia 5704(2)(ii) Constitution. Section give does not unlimited and indiscriminate authority to law enforcement officials. On contrary, trigger the application 5704(2)(ii), of § there must suspected activity afoot, criminal the infor- mant must voluntarily consent to the interception and the Attorney General or District Attorney their respective give prior approval interception. must for the deputies, Furthermore, occurs, interception subject when it is 5714(a) and requirements custody of the recorded § General, is Attorney evidence to remain District Attorney, deputies. or their These limitations are sufficient the unlimited and indiscriminate use guard against interceptions such evidence obtained therefrom and adequate act as an deterrent to innappropriate police activi- Moreover, ty. drastically such limitations minimize the lawabiding legit- likelihood of an invasion of the citizen’s result, expectations privacy. imate As a I hold would that the trial court refused to properly suppress evi- dence obtained as a result of the consensual monitoring Therefore, I utilized this case. would affirm Judgment of Sentence for all of the reasons set forth in Harvey, Commonwealth v. 502 A.2d 679 however, Recognizing, that the majority has determined that a required warrant circumstances like those us, before were I to reach the question of whether there case, probable was cause to obtain the warrant in this I agree Judge would Beck and Judge Olszewski that the affidavit here adequately established cause. A.2d Pennsylvania

COMMONWEALTH GABRIELSON, Appellant. Vernon Stuart Superior Pennsylvania. Court of

Argued Sept. 1987.

Filed Jan. 1988. Appeal 9, 1988. for Allowance of Petition Denied June

Case Details

Case Name: Commonwealth v. Schaeffer

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 29, 1987

Citation: 536 A.2d 354

Docket Number: 228

Court Abbreviation: Pa.