This post examines an opinion the Superior Court of Pennsylvania recently issued in a criminal case: Commonwealth
v. Diego, 2015 WL 3868639 (2015). The court begins its opinion by explaining
that the
Commonwealth appeals from the trial
court's order granting Curtis Doval Diego's . . . suppression motion based on
purported violations of the Wiretapping and Electronic Surveillance Control Act, 18 Pennsylvania Consolidated Statutes § 5701 et seq. (`Wiretap Act’
or the `Act’).
The Commonwealth contends that an iPad
is not a `device’ as that term is defined under the Wiretap Act, and that Appellee's
text messages were not `intercepted’ within the meaning of the Act. The
Commonwealth also argues that [Diego] lacks a reasonable expectation of privacy
in his text message communications. . . .
Commonwealth v. Diego,
supra. Here, “the Commonwealth”
basically refers to the prosecution, as in “State
v. Smith.”
The Superior Court then quoted from the trial court’s
“factual summary” of the events that resulted in this appeal:
Following an investigation of stolen guns
involving Gary Still, Detective James Moyer of the Swatara Police Department
went to Still's father's residence following Still's release from the hospital
on February 21, 2013. Detective Moyer had determined that Still was involved in
the theft of approximately twelve (12) firearms from the residence of 740 High
Street. Detective Moyer advised Still of his Miranda rights.
Still stated that he took numerous guns
over a period of eight (8) weeks, and told the officers that he purchased
heroin from [Diego]. Still `traded’ two of the guns he stole in exchange for
heroin. Still indicated that these transactions with [Diego] were set up on his
iPad, which had been seized earlier by the police as part of the firearms
investigation.
Commonwealth v. Diego,
supra.
The opinion then goes on to explain that Detective Moyer
`testified that he asked Still if he
would set up a heroin deal with [Diego]. Still was told by the officers that it
would be in his best interest to do so. Still agreed, telling the officers he would
use the text messaging service on his iPad. The transaction took place in the
basement of the police station and was set up with Still communicating directly
with [Diego] on the iPad. Still relayed to the detectives each response from [Diego].
In the room with Still were at least six (6) law enforcement officers.
Detective Moyer testified that Officer Corey Dickerson was sitting next to
Still during the communications and said it was possible that the officer
observed what Still was doing on the iPad.’
`Specifically, a transaction was set up
to take place at the Courtyard Marriot, and Still provided a description of [Diego]
and his car. When the time came for the deal, Still was on location with the
officers and pointed out [Diego]. [He] was found to be in possession of
multiple bundles of heroin and drug paraphernalia. [He] sought suppression of
these items, which was granted by this [c]ourt.’
Suppression Court Opinion, 3/16/15, at
1–2.
Following a suppression hearing
conducted on January 31 and February 20, 2014, during which the trial court
heard testimony from Detective Moyer and Gary Still, the trial court requested
that the parties brief the suppression-related issues. Both parties filed their
memorandums of law on April 4, 2014. Subsequently, on October 28, 2014, the
court granted [Diego’s] suppression motion.
Commonwealth v. Diego,
supra.
The Commonwealth appealed that ruling, raising these issues:
[1]. Whether the trial court erred in
granting [Diego’s] motion to suppress evidence because [his] te[x]t messages
were not `intercepted’ in violation of the Pennsylvania Wiretap Act?
[2]. Whether the trial court erred in
granting [Diego’s] motion to suppress evidence because [he] lacked a reasonable
expectation of privacy in his text message communications?
[3]. Whether the trial court erred in
granting [Diego’s] motion to suppress evidence because [his] iPad is not a
`Device’ as defined in the Pennsylvania Wiretap Act?
Commonwealth v. Diego,
supra.
The Superior Court noted that “[for ease of disposition, we
will address these issues in reverse order.”
Commonwealth v. Diego, supra. It also explained that when it reviews
the grant of a motion to suppress, we
are guided by the following standard of review:
`When the Commonwealth appeals from a
suppression order, we follow a clearly defined standard of review and consider
only the evidence from the defendant's witnesses together with the evidence of
the prosecution that, when read in the context of the entire record, remains
uncontradicted. The suppression court's findings of facts bind an appellate
court if the record supports those findings. The suppression court's
conclusions of law, however, are not binding on an appellate court, whose duty
is to determine if the suppression court properly applied the law to the facts.’
Commonwealth v. Scott, 916
A.2d 695 (Pennsylvania Superior Court 2007). . . Further, the construction of a
statute raises a question of law. On questions of law, our standard of review
is de novo, and our scope of review is plenary. Commonwealth v. Bavusa, 574
Pa. 620, 832 A.2d 1042 (Supreme Court of Pennsylvania 2003).
Commonwealth v. Diego,
supra.
The Superior Court then took up Diego’s third issue, i.e.,
whether his iPad was a `device’ as defined in the Pennsylvania Wiretap Act. Commonwealth
v. Diego, supra. It began by noting
that this was an issue of first impression, i.e., no Pennsylvania court had
issued an opinion addressing it. The
Commonwealth claimed it was not a device within the scope of the Pennsylvania
Wiretap Act. Commonwealth v. Diego,
supra.
The court began its analysis by explaining that the state
Wiretap act prohibits,
with certain exceptions, the
interception of `any wire, electronic or oral communication[.]’ (1)-(3). `Intercept’
is defined by the act as follows:
`Aural or other acquisition of the
contents of any wire, electronic or oral communication through the use of any
electronic, mechanical or other device. The term shall include the point at
which the contents of the communication are monitored by investigative or law
enforcement officers. The term shall not include the acquisition of the
contents of a communication made through any electronic, mechanical or other
device or telephone instrument to an investigative or law enforcement officer,
or between a person and an investigative or law enforcement officer, where the
investigative or law enforcement officer poses as an actual person who is the
intended recipient of the communication, provided that the Attorney General, a
deputy attorney general designated in writing by the Attorney General, a
district attorney or an assistant district attorney designated in writing by a
district attorney of the county wherein the investigative or law enforcement
officer is to receive or make the communication has reviewed the facts and is
satisfied that the communication involves suspected criminal activities and has
given prior approval for the communication.’ . . .
Commonwealth v. Diego,
supra.
The court went on to explain that the state Wiretap Act “defines
the intercepting `electronic, mechanical or other device’’ as:
`Any device or apparatus, including,
but not limited to, an induction coil or a telecommunication identification
interception device, that can be used to intercept a wire, electronic or oral
communication other than:
(1) Any telephone or telegraph
instrument, equipment or facility, 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, or furnished by such subscriber or user
for connection to the facilities of such service and used in the ordinary
course of its business, or being used by a communication common carrier in the
ordinary course of its business, or by an investigative or law enforcement
officer in the ordinary course of his duties.
(2) A hearing aid or similar device
being used to correct subnormal hearing to not better than normal.
(3) Equipment or devices used to
conduct interceptions under section 5704(15) (relating to exceptions to prohibition
of interception and disclosure of communications).’
18 Pennsylvania Consolidated Statutes §
5702.
Commonwealth v. Diego,
supra.
It also noted that the Commonwealth argued that Diego’s iPad
was
`not an intercepting “electronic,
mechanical or other device” under the Wiretap Act because it was being used as
the functional equivalent of a modern cellular phone, and telephones are
explicitly excluded from the definition of what constitutes a “device” under
the portion of Section 5702 cited immediately above.’
Commonwealth v. Diego,
supra.
The Superior Court did not agree:
First, [Diego’s] iPad was not an `electronic,
mechanical or other device’ under Section 5702 because it was not used `to
intercept a wire, electronic or oral communication.’ Indeed, there is not any
evidence of record that [Diego] used an iPad to communicate with Still.
Moreover, [his] text messaging device, whatever it was, was the origin of the
intercepted message, and not the device that purportedly intercepted that
message. Gary Still's iPad was purportedly used to intercept [Diego’s]
electronic communication. Accordingly, the Commonwealth's claim that [Diego’s] iPad
was not a `device within the meaning of the Wiretap Act is simply not relevant
to the merit of [Diego’s] suppression motion.
Nevertheless, the Commonwealth also
argues that Still's iPad was not an `electronic, mechanical or other device’
within the meaning of the Wiretap Act. In this regard, the Commonwealth again
argues that an iPad was the functional equivalent of a telephone under the
statutory definition set forth in Section 5702. The Commonwealth cites
Commonwealth v. Spence, 91 A.3d 44 (Pennsylvania Supreme Court 2014),
in support of this claim.
Commonwealth v. Diego,
supra.
It went on to explain that in Commonwealth v. Spence, supra, the
question before our Supreme Court was
whether a state trooper violated the Wiretap Act when he listened to Spence's
conversation with an informant via the speaker on the informant's cellular
telephone while the informant arranged a drug deal with Spence. The
Commonwealth argued on appeal that because telephones were explicitly excluded
under the definition of `electronic, mechanical, or other device[s]’ in the
Wiretap Act, the trooper had not violated the Act. Spence argued that the
informant's phone was not a phone under the Act with respect to the trooper
because the informant, and not the trooper, was a subscriber to the phone's
communication services.
Our Supreme Court rejected Spence's
argument, stating, `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.’ Commonwealth v.
Spence, supra. The Spence Court also held that: `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.’ Commonwealth v. Spence, supra.
Commonwealth v. Diego,
supra.
The Superior Court then returned to the question at issue in
this case, noting that the Commonwealth, which relied on the Spence decision, argued that
[i]n the instant case, Gary Still
utilized the text message feature of his iPad to communicate directly with [Diego],
who utilized a cell phone. These text messages were sent utilizing a cell phone
service, provided to Still in the ordinary course of business. Gary Still's
iPad should be categorized as a telephone since it was being utilized as such
in this case. In [Diego]'s own suppression brief, the defense conceded that
Still's iPad communications `should be treated the same as audible telephone
calls.’
Therefore, because Gary Still's iPad is
not a `device,’ there was no violation of the Pennsylvania Wiretap Act when
Still texted with [Diego] and relayed the responses to the surrounding
officers.
Commonwealth's Brief, at 18.
Commonwealth v. Diego,
supra. The Superior Court, though,
disagreed, noting that the
Spence decision did not in
any way broaden the telephone exception to the definition of what constitutes
an `electronic, mechanical, or other device’ under the Wiretap Act. An iPad is
not a telephone or telegraph instrument under a common understanding of the
relevant terms, and no reasonable person familiar with the now ubiquitous
technology of tablet computers would misidentify an iPad as a mere telephone.
The fact that an iPad or any other tablet computer can perform functions
similar or identical to a modern cellular phone is not dispositive, as the Spence Court's holding implies. The
trend of convergence between modern computers and telephones aside, at this
time the technologies in question remain different not only by degree, but also
in kind.
Commonwealth v. Diego,
supra. The Superior Court went on to
explain that the
policy decision embodied in adopting
such an expansive interpretation of the term ‘telephone’ under the Wiretap Act
is beyond the province of this Court. Indeed, if we were to extend the
Commonwealth's argument to its logical conclusions, any modern computer, in
tablet form or otherwise, would have be considered a telephone under the
Wiretap Act when it is used to transmit or receive an electronic communication.
We decline to so radically expand the
definition of `telephone’ under the Wiretap Act in this fashion without the
benefit of further legislative input. Furthermore, it is, at best, a dubious
proposition that the authors of the 1978 Wiretap Act intended “telephone” to
include iPads, as the first tablet computers were not invented until the late
1980's.
Finally, our reluctance to expand the
telephone exception is consistent with our policy to strictly construe the
provisions of the Wiretap Act. . . .
For each and all of the aforementioned
reasons, we conclude that an iPad is an “electronic, mechanical, or other
device” that does not fall within the telephone exception under the Wiretap
Act. As such, the Commonwealth's third claim lacks merit.
Commonwealth v. Diego,
supra.
It then took up Diego’s other two arguments, beginning with
his claim that he “had a reasonable expectation of privacy in his text message
communications”. Commonwealth v. Diego,
supra. (A reasonable expectation ofprivacy in a place of thing is essential if that place or thing is to be
protected by the 4th Amendment’s guarantee of privacy).
The Superior Court began its analysis of that argument by
noting that, in Commonwealth v. Proetto, 771 A.2d 823 (Pennsylvania
Superior Court 2001), it had held that
`[w]hile engaging in a conversation
over the telephone, a party would have no reason to believe that the other
party was taping the conversation. Any reasonably intelligent person, savvy
enough to be using the Internet, however, would be aware of the fact that
messages are received in a recorded format, by their very nature, and can be
downloaded or printed by the party receiving the message. By the very act of
sending a communication over the Internet, the party expressly consents to the
recording of the message.’
Commonwealth v. Diego,
supra (quoting Commonwealth v.
Proetto, supra).
The court therefore held that the
reasoning of the Proetto Court
equally applicable in this case. When [Diego] engaged in a text message
conversation with Gary Still, he knew, or should have known, that the
conversation was recorded. By the very act of engaging in the means of
communication at-issue, [Diego] risked that Gary Still would share the contents
of that conversation with a third party.
Commonwealth v. Diego,
supra.
And, finally, it took up the prosecution’s argument that Diego
“lacked a reasonable expectation of privacy in this text message
communications”. Commonwealth v. Diego,
supra. The Superior Court explained
that, as another court pointed out,
`E-mail transmissions are not unlike
other forms of modern communication. . . . [I]f a sender of first-class mail
seals an envelope and addresses it to another person, the sender can reasonably
expect the contents to remain private and free from the eyes of the police
absent a search warrant founded upon probable cause. However, once the
letter is received and opened, the destiny of the letter then lies in the
control of the recipient of the letter, not the sender, absent some legal
privilege. . . . Thus an e-mail message, like a letter, cannot be afforded a
reasonable expectation of privacy once that message is received.’
Commonwealth v. Diego,
supra (quoting U.S. v. Charbonneau,
979 F. Supp. 1177 (U.S. District Court for the Southern District of Ohio 1997)).
The Superior Court therefore found that
[t[his reasoning applies with equal
potency to the text messages at issue in this case. When an individual sends a
text message, he or she should know that the recipient, and not the sender,
controls the destiny of the content of that message once it is received.
Commonwealth v. Diego,
supra.
For these and other reasons, it held that
[i]n sum, we conclude that no Wiretap
Act violation occurred and, therefore, that the trial court erred when it
granted suppression on that basis. Furthermore, because [Diego] lacked any
reasonable expectation of privacy in his text messages after they were received
on Still's iPad, there was no constitutional violation of [his] privacy rights.
Commonwealth v. Diego,
supra. It therefore reversed the
order granting suppression and remanded the case for further proceedings. Commonwealth
v. Diego, supra.
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