After he was “charged in a police criminal complaint with
Possession of a Controlled Substance with Intent to Deliver in violation of 35
Pennsylvania Consolidated Statutes § 780-113(30)”, Wesley Spence filed a motion
to suppress evidence. Commonwealth v. Spence, Brief for
Appellant – the Commonwealth of Pennsylvania, 2013 WL 7176297. More on that motion in a moment.
First, though, I need to outline the relevant facts. This, according to the Appellant’s brief, is
how the prosecution arose from events that occurred on March 8, 2008, when,
Pennsylvania State Trooper Scott Miscannon
was working on a drug investigation.
The state police had arrested a man and recovered pills from him earlier that
day. At 9:00 p.m., Miscannon met with the man, who agreed to be a confidential
informant.
The informant told the trooper that an
individual named `Wes’ had sold controlled substances - prescription pills - to
him earlier in the evening at a nearby Wawa store. The informant said `Wes’ was
six feet tall, with a `chunky’ build and a bald head. He said `Wes’ lived in
Delaware and drove a green Honda with a Delaware registration. . . .
The informant had a cellular telephone
number for `Wes.’ At 10:54 p.m. that day, Miscannon instructed the informant to
use the informant's cellular telephone to call `Wes’ and order prescription
pills. Miscannon dialed the
number on the informant's phone. . . .
The informant turned on the speaker on
his phone, called `Wes,’ and ordered a quantity of prescription pills.
Miscannon listened . . . over the speaker. The trooper could tell the informant
and [Spence] had an ongoing buyer-seller relationship. . . .
Ten minutes later, the informant's
cellular phone rang. The caller was the same person the informant identified as
`Wes’ from the earlier call. `Wes’ confirmed that he would bring the pills and
arranged to meet the informant in 25 minutes at the nearby Wawa. The trooper
listened to this call over the speakerphone. . . .The informant did not tell [Spence]
during either call that he was using the speakerphone. . . .
The trooper went to the Wawa. The
trooper saw [Spence], who is a black male, in a green Honda Accord automobile. [Spence]
fit the physical description given by the informant. The automobile was registered
in Delaware in the name of `Wesley Spence.’ The trooper approached [Spence],
patted him down, felt a cellular telephone and a pill bottle, searched him, and found prescription
pills and a cell phone in the pocket of his sweatshirt. . . .
Brief for Appellant, supra.
After he was charged Spence, as noted above, filed a motion
to suppress. According to the
Pennsylvania Supreme Court’s opinion in the case, he moved to suppress the
entirety of the evidence against him
based upon alleged violation of the Wiretapping and Electronic Surveillance
Control Act (`the Act’).
Specifically, [Spence] argued that
Trooper Miscannon's conduct in placing the call, his directing the arrestee to
activate the speaker feature of the cell phone and to use coded language, and
his listening in on the conversation constituted an unlawful interception of
the conversation between [Spence] and the arrestee.
In opposition . . ., the Commonwealth
argued that a cell phone does not constitute a `device’ within the meaning of
the Act because the Act specifically excludes a telephone furnished by a
service provider from the definition of a `device.’ Following a hearing, the
trial court granted the motion to suppress, and the
Commonwealth appealed to Superior Court.
Commonwealth v. Spence,
2014 WL 1669795 (Pennsylvania Supreme Court 2014).
As Wikipedia explains, the five types of courts in
Pennsylvania are, in descending order of authority, the Supreme Court, the
Superior Court(s), the Commonwealth Courts, the Courts of Common Pleas and the
Magisterial District Courts.
The court that granted the motion to suppress was
the Delaware County Court of Common Pleas.
Commonwealth v. Spence, supra.
The Superior Court upheld the Common Pleas court’s ruling on
the motion to suppress:
Reviewing the Act's definitions of
`intercept [ion]’ and `device,’ the court rejected the Commonwealth's argument
that the cell phone did not fall within the definition of a `device’ under the
Act. While the court agreed that the cell phone was not a device with respect
to the arrestee, it opined that the phone was nevertheless a device with
respect to Miscannon because the service provider had not furnished it to him.
Accordingly, the court concluded that
Miscannon's dialing, direction to place the call on speaker mode, and listening
to the conversation constituted his use of the arrestee's cell phone, and,
because the trooper was not a furnished `subscriber or user’ of the cell phone,
this use was an unlawful interception under the provisions of the Act.
Commonwealth v. Spence,
supra (footnote omitted).
The Supreme Court agreed to decide this issue: “Did a state trooper violate the Wiretap Act
when he listened through the speaker on an informant's cellular telephone as
the informant arranged a drug deal with the defendant?” Commonwealth v. Spence, supra. The court began its analysis of the
issue by explaining that the state’s Wiretap Act
provides for exclusion of evidence
derived from intentional interception of a `wire, electronic or oral
communication’ without prior approval under procedures not employed in the
present case. 18 [Pennsylvania Consolidated Statutes] §§ 5703, 5721.1.
The Act defines `intercept[ion]’ as the
`acquisition of the contents of [such] communication through the use of any
electronic, mechanical, or other device.’ 18 [Pennsylvania Consolidated
Statutes] § 5702 The definition of `electronic, mechanical, or other device’,
in pertinent part, is as follows:
`Any
device or apparatus . . . that can be used to intercept a
communication other than . . . (1) Any telephone .
. . or any component thereof, furnished to the subscriber or user by
a provider of wire or electronic communication service in the ordinary course of
its business. . . .’
Commonwealth v. Spence,
supra.
On appeal, the Commonwealth (i.e., the prosecution)
challenged the Superior Court’s
conclusion that the cell phone was not
a `device’ with respect to the arrestee, yet nevertheless was a `device’ with
respect to Miscannon because the cell phone was not furnished to the trooper by
the carrier. The Commonwealth argues that the trooper did not violate the
Wieretap Act when he listened to an informant use his own cellular telephone,
with the speaker activated, to arrange a drug transaction with [Spence].
Because a telephone is specifically
excluded as a device under the Act, the Commonwealth argues that the arrestee's
cell phone fits plainly within the exception because it was furnished to the
arrestee, a subscriber, by the service provider. The Commonwealth argues that
Miscannon's conduct did not change the fact that the phone had been furnished
to the arrestee. Ergo, because the cellular telephone was not
a `device,’ the trooper did not “intercept” the communication.
Commonwealth v. Spence,
supra.
Spence, on the other hand, argued that
the arrestee did not actually consent
to the trooper's eavesdropping on the telephone conversation between the
arrestee and [him], and therefore that the Wiretap Act was violated. [Spence]
argues further that the Wiretap Act does not provide an exemption pursuant
to Section 5702 for the circumstance involved here, where the trooper
dialed a number and directed the arrestee to arrange a drug purchase over the
phone, while the trooper eavesdropped on the phone conversation.
Commonwealth v. Spence,
supra.
Since the parties were arguing about what the language used
in the Wiretap Act statutes actually meant, the case involved statutory
interpretation. As the Supreme Court
noted,
[s]tatutory interpretation is a matter
of law, and our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Wright, 609 Pa. 22, 14 A.3d
798, 814 (Pennsylvania Supreme Court 2011). Under the Statutory Construction
Act of 1972, 1 [Pennsylvania Consolidated Statutes] §§ 1501 et
seq., our paramount interpretative task is to give effect to the
intent of our General Assembly in enacting the particular legislation under
review.
The object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the
General Assembly. 1 [Pennsylvania Consolidated Statutes] § 1921(a).
Generally, the best indication of the General Assembly's intent may be found in
the plain language of the statute. Commonwealth v. Wright, supra.
Commonwealth v. Spence,
supra.
The Supreme Court then explained that, based upon its
analysis of
the statutory language employed by the
General Assembly in the definitional portion of the Wiretap Act, we see no
basis upon which to categorize the arrestee's cell phone as a device with
respect to him, but not as a device with respect to the Commonwealth.
The intent of the General Assembly may
be discerned from the plain language of the words employed in the statute. The
cell phone over which the trooper heard the conversations between the arrestee
and [Spence] clearly was a telephone furnished to the subscriber or user by a
provider of wire or electronic communication service in the ordinary course of
its business.
The language of the statute states that
telephones are exempt from the definition of device; the language of the
statute does not state that it is the use to which the telephone
is being put which determines if it is considered a device.
We reject the statement by the Superior
Court, that only certain uses of a telephone may exempt the
telephone from being considered a device, as being contrary to the plain
language contained in the definitional section of the Wiretap Act. See Memorandum
Opinion at 12 (emphasis in original).
Accordingly, we hold that a state
trooper does not violate the Wiretap Act when he listens through the speaker on
an informant's cellular telephone as the informant arranges a drug deal.
Commonwealth v. Spence,
supra (emphasis in the original).
The Supreme Court therefore reversed the lower court’s order
granting Spence’s motion to suppress and remanded the case back to that court
for further proceedings. Commonwealth v.
Spence, supra.
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