                           [J-93-2016] [MO: Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


PENNSYLVANIA STATE POLICE,                      :    No. 25 MAP 2016
                                                :
                     Appellant                  :    Appeal from the Order of the
                                                :    Commonwealth Court dated July 7,
                                                :    2015 at No. 1146 CD 2014 affirming in
              v.                                :    part, reversing in part and remanding in
                                                :    part the Final Determination of the
                                                :    Office of Open Records at No. AP 2014-
MICHELLE GROVE,                                 :    0828 dated June 17, 2014.
                                                :
                     Appellee                   :    ARGUED: September 14, 2016


                                 CONCURRING OPINION


JUSTICE WECHT                                                     DECIDED: June 20, 2017
       I join the opinion of the learned Majority.

       I write separately to question this Court’s continued adherence to the proposition

that, for purposes of the Wiretapping and Electronic Surveillance Control Act (“Wiretap

Act”),1 “one cannot have an expectation of non-interception absent a finding of a

reasonable expectation of privacy.” Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998).

This rule reflects an erroneous conflation of statutory and constitutional standards, and

unduly restricts the scope of the interest that the Wiretap Act is intended to protect.

       An “oral communication,” the unauthorized interception of which is prohibited by

the Wiretap Act, is defined, in relevant part, as “[a]ny oral communication uttered by a

person possessing an expectation that such communication is not subject to

interception under circumstances justifying such expectation.”          18 Pa.C.S. § 5702.

1
       18 Pa.C.S. §§ 5701-82.
While the Fourth Amendment to the United States Constitution and Article I, Section 8

of the Pennsylvania Constitution protect one’s reasonable expectation of privacy in a

communication, the Wiretap Act, by its plain terms, protects a distinct interest—the

expectation that one’s utterances will not be surreptitiously intercepted. The conflation

of these concepts, which I believe to be unwarranted, derived from the statute’s

requirement that the expectation of non-interception be justifiable under the

circumstances. See Commonwealth v. Henlen, 564 A.2d 905, 907 (Pa. 1989).

      Before the statutory definition of an “oral communication” collapsed into the

constitutional analysis of the reasonable expectation of privacy, this Court decided

Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988). In that case, we confronted a

constitutional challenge to the Wiretap Act stemming from the recording of a murder

suspect’s conversation with a police informant, the latter having agreed to wear a “wire,”

which allowed police investigators to monitor and record the conversation. Id. at 85-86.

Although the interception of that conversation ostensibly was authorized by the Wiretap

Act, the defendant sought suppression of the recording, alleging that it was obtained in

violation of his constitutional right to be free from unreasonable searches and seizures.

Relying upon the decisions of the Supreme Court of the United States in United States

v. Caceres, 440 U.S. 741 (1979), and United States v. White, 401 U.S. 745 (1971)

(plurality), for the proposition that electronic surveillance conducted pursuant to the

consent of one party to a communication does not violate the Fourth Amendment, the

Blystone Court reasoned:

      Basically, the Supreme Court has recognized the simple fact that a thing
      remains secret until it is told to other ears, after which one cannot
      command its keeping. What was private is now on other lips and can no
      longer belong to the teller. What one choses [sic] to do with another’s
      secrets may differ from the expectation of the teller, but it is no longer his
      secret. How, when, and to whom the confidant discloses the confidence is




                           [J-93-2016] [MO: Dougherty, J.] - 2
       his choosing. He may whisper it, write it, or in modern times immediately
       broadcast it as he hears it.


Blystone, 549 A.2d at 87-88. Accordingly, this Court found “no constitutional defect in

the statute,” id. at 88, and concluded that the recording of the defendant’s conversation

did not violate his constitutional rights because he ceased to possess a reasonable

expectation of privacy in his words.

       Blystone plainly involved a constitutional analysis. The statutory definition of an

“oral communication” was not at issue. It was in Henlen that this Court began to blur

that statutory definition, allowing it to be subsumed into the constitution’s minimum

protection of one’s privacy interest. In Henlen, a defendant was charged with a Wiretap

Act violation when he secretly recorded an interview with a Pennsylvania State Police

trooper, and later provided the recording to that agency’s Internal Affairs Division,

alleging that the trooper had harassed him. Henlen, 564 A.2d at 905. Before this Court,

the defendant argued that, by recording the interview, he did not intercept any oral

communication within the meaning of the Wiretap Act because the trooper possessed

no reasonable expectation of privacy in his words during the interview. This Court

agreed. However, in so doing, we extended Blystone beyond its constitutional terms,

applying its reasoning to the statutory definition of an oral communication. Id. at 907.

Although we recognized that the statute protects a speaker’s expectation of non-

interception, we noted that the statute is “clear that such an expectation must be

justifiable under the circumstances.”     Id. (emphasis in original).   To that end, we

reasoned that “the broad principles of Blystone relating to the expectation of privacy in a

conversation are applicable in determining whether circumstances support a

conversant’s expectation that his or her conversation would not be intercepted.” Id.

       For a time, it was not settled that the statutory expectation of non-interception

was co-extensive with the constitutional expectation of privacy in every instance. The


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Superior Court addressed that question in Commonwealth v. McIvor, 670 A.2d 697 (Pa.

Super. 1996). Because this Court in Henlen stated that the principles relating to the

expectation of privacy in a conversation are “applicable” in evaluating the expectation of

non-interception under the Wiretap Act, the court in McIvor concluded that those

principles are merely a factor in the determination. Id. at 700. “Put another way,” the

Superior Court reasoned, “what the [Henlen Court] actually said was that we must

determine whether the parties had an expectation of non-interception, but that in making

this determination, we may employ the same principles used to determine whether there

is an expectation of privacy . . . .”   Id. (emphasis in original).    The Superior Court

observed that myriad situations could arise in which an individual possesses one

expectation but not the other:

       For instance, if one is being examined by his or her physician and knows
       from past experience that the doctor often carries a small tape recorder in
       a pocket to record patient interviews, one’s expectation of non-interception
       is nearly non-existent, but the expectation of privacy is still extremely high.
       On the other hand, if one is speaking with the town gossip at a public
       swimming pool under circumstances [e]nsuring that the gossip is not
       wearing a body wire, one’s expectation of non-interception is very high,
       but the expectation of privacy is very low. Thus, an expectation of privacy
       does not always carry a concomitant expectation of non-interception, and
       vice versa.


Id.

       If Henlen left any lingering doubts about this Court’s views regarding the

relationship between the statutory and constitutional expectations, our decision in

Agnew squarely resolved them. In Agnew, this Court considered whether a police chief

violated the Wiretap Act when he used a telephone intercom system to intercept

conversations between police officers taking place in a common area of the police

station. Agnew, 717 A.2d at 521. The dispositive question was whether the subject

conversations were oral communications within the meaning of the Wiretap Act, and if


                           [J-93-2016] [MO: Dougherty, J.] - 4
the correct standard for making that determination was “whether the speaker has a

justifiable expectation that his words will not be seized and carried away through the

use of a device, as opposed to whether or not the speaker had a justifiable expectation

of privacy.” Id. at 522. The Agnew Court recognized that, in evaluating whether an

utterance constitutes an “oral communication” under the Wiretap Act, “the proper

inquiries are whether the speaker had a specific expectation that the contents of the

discussion would not be intercepted, and whether that expectation was justifiable under

the existing circumstances.” Id. at 523. However, without qualification, we further held:

       In determining whether the expectation of non-interception was justified
       under the circumstances of a particular case, it is necessary for a
       reviewing court to examine the expectation in accordance with the
       principles surrounding the right to privacy, for one cannot have an
       expectation of non-interception absent a finding of a reasonable
       expectation of privacy.


Id. (emphasis added). Applying this holding to the facts of Agnew, we determined that,

because the conversations at issue could be overheard by other persons, the police

officer challenging the interception possessed no reasonable expectation of privacy in

his utterances.   As such, we concluded that he necessarily lacked a justifiable

expectation of non-interception, such that the conversations at issue did not involve

“oral communications” within the meaning of the Wiretap Act. Id. at 524.

       It was this “sweeping conclusion” that prompted Justice Nigro’s concurring

opinion in Agnew. Id. (Nigro, J., concurring). Justice Nigro opined that “the expectation

of non-interception and the expectation of privacy involve two distinct inquiries[,]” and

that “a speaker, under certain circumstances, may possess a reasonable expectation of

non-interception even in the absence of a reasonable expectation of privacy.” Id. at

525.   Endorsing the Superior Court’s reasoning in McIvor and the hypothetical

circumstances that it envisioned, Justice Nigro distanced himself from the Agnew



                           [J-93-2016] [MO: Dougherty, J.] - 5
majority’s conclusion that the “lack of a reasonable expectation of privacy automatically

ends the inquiry of whether a reasonable expectation of non-interception may have

existed.” Id.

       In my view, Justice Nigro’s concurring opinion in Agnew reflects the more

reasoned approach to interpreting the statutory definition of an “oral communication.”

To conclude, as this Court has, that the mere possibility of being overheard by a third

party effectively places an individual on notice that his or her words are subject to

interception and recordation defies a common-sense reading of the statute and unduly

restricts the scope of the interest that the Wiretap Act was meant to protect. A person

conversing with a friend at a restaurant, bar, or coffee shop may not be able to expect

that such a conversation will remain private when another patron of the establishment is

sitting a few tables away, easily within earshot. However, absent some indication to the

contrary, I find it perfectly reasonable for the speaker to believe that the potential

eavesdropper is not secretly recording the conversation with a hidden electronic device.

However, Agnew’s holding not only leaves this conversation unprotected from

interception by the nearby patron, but the presence of that patron, and the

corresponding loss of the speaker’s expectation of privacy, also ensures that no

violation of the Wiretap Act occurs when an individual in a building across the street

intercepts the conversation with a high-powered directional microphone. Even more

curiously, the speaker might regain her expectation of privacy when the third-party

patron exits the room to use the restroom, leaving no one nearby to overhear her

conversation. At that point, the snoop across the street is intercepting a protected “oral

communication” in violation of the Wiretap Act. However, when the third-party patron

returns, the speaker’s expectation of privacy is again lost, so that same interception

ceases to be a violation of the Wiretap Act.




                           [J-93-2016] [MO: Dougherty, J.] - 6
       The far more sensible construction of a communication “uttered by a person

possessing an expectation that such communication is not subject to interception under

circumstances justifying such expectation,” 18 Pa.C.S. § 5702, involves consideration of

precisely what the statute says, and nothing more. An utterance is protected if the

speaker can expect that the utterance is not being intercepted, and that expectation is

justified if the circumstances do not suggest otherwise. I have no trouble concluding

that this expectation is justifiable in the vast majority of instances in which people speak,

and becomes unjustifiable only in the presence of some indicia that one’s utterances

are being intercepted. It never was necessary or warranted to engraft the constitutional

standard for ascertaining a reasonable expectation of privacy onto this definition, and

doing so both contravened the statute’s plain language and limited the clear scope of

the elevated protection that it sought to provide, effectively rewriting the statute to

conform to a lower standard that the legislature did not choose to employ.

       That said, there is no question that Agnew is binding precedent, and the

Commonwealth Court in the instant case failed to apply its reasoning, or even to cite it.

Although the Commonwealth Court’s focus upon whether the individuals who were

recorded “had notice of the recording or any expectation that the interview was not

subject to recording,” Pennsylvania State Police v. Grove, 119 A.3d 1102, 1111 (Pa.

Cmwlth. 2015), better aligns with my view of the statute’s requirements, it is incorrect

under Agnew. Instead, the Commonwealth Court was required to assess whether any

reasonable expectation of privacy existed in the utterances captured by the recordings

at issue. As today’s Majority concludes, such a reasonable expectation was lacking.

See Maj. Op. at 41-42.

       In an appropriate case, I believe that this Court should reevaluate Agnew’s

holding. But today, Agnew controls the analysis, and I agree with the Majority that the




                            [J-93-2016] [MO: Dougherty, J.] - 7
Commonwealth Court erred in failing to apply the correct standard as set forth in that

case. As such, and in all other respects, I join the opinion of the learned Majority.

       Justice Todd joins this concurring opinion.




                           [J-93-2016] [MO: Dougherty, J.] - 8
