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                               2018 PA Super 166

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 DENNIS ANDREW KATONA                   :
                                        :
                   Appellant            :   No. 1995 WDA 2014

         Appeal from the Judgment of Sentence November 10, 2014
  In the Court of Common Pleas of Westmoreland County Criminal Division
                    at No(s): CP-65-CR-0002549-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.

DISSENTING OPINION BY LAZARUS, J.:                   FILED JUNE 14, 2018

     I respectfully dissent.     The Majority bases its holding on what it

characterizes as a “critical distinction between the voluntary disclosure of

information versus the recording of same.” Majority Opinion, at p. 14. The

Majority finds Appellant is seeking to suppress information, not the

recordings.   The Majority states: “[T]he search warrant did not rely upon

evidence derived from an unlawful wiretap, but rather the information

disclosed to the authorities, which happened to also be recorded.” Id. at 30.

The Majority, therefore, declines to reach the Appellant’s argument that the

Wiretap Act permits only a single, in-home nonconsensual intercept per order.

18 Pa.C.S. § 5704(2)(iv).

     Keeping in mind that the determination of whether information

supporting the issuance of the warrant is sufficiently reliable to establish

probable cause often hinges upon whether that information is corroborated, I
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agree that the affidavit of probable cause was arguably sufficient. However,

the search warrant was “irremediably tainted,” and application of the

“independent source doctrine” is not appropriate here. As our Supreme Court

stated in Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996),

“application of the ‘independent source doctrine’ is proper only in the very

limited circumstances where the `independent source’ is truly independent

from both the tainted evidence and the police or investigative team which

engaged in the misconduct by which the tainted evidence was discovered.”

Id. at 231. Such is not the case here. Thus, in my view, an analysis of the

propriety of the wiretap order is necessary.1

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1 I also note my disagreement with the Majority’s claim that if Appellant had
a reasonable expectation of privacy in the content of what he said to the CI,
then following this argument to its logical conclusion, the Commonwealth
would be required to obtain prior judicial approval before asking the CI to
enter Appellant’s home in the first instance. Majority Opinion, at 29. This
reasoning ignores the fact that it is the face-to-face communication in one’s
home that is constitutionally and legislatively protected from surreptitious
electronic seizure. Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), as
codified in 18 Pa.C.S. § 5704(2)(iv). Cf. Commonwealth v. Rekasie, 778
A.2d 624, 632 (Pa. 2001) (“[W]hile society may certainly recognize as
reasonable a privacy expectation in a conversation carried on face-to-face
within one’s home, we are convinced society would find that an expectation
of privacy in a telephone conversation with another, in which an individual has
no reason to assume the conversation is not being simultaneously listened to
by a third party, is not objectively reasonable.”). It also ignores the fact that
the subjective intentions of the authorities are of “little relevance to the
constitutional analysis.” Commonwealth v. Dunnavant, 107 A.3d 29, 31
(Pa. 2014) (per curiam) (Saylor, J., Opinion in Support of Affirmance). As our
Supreme Court recognized, “[o]f more relevance is the occupant’s expectation
of privacy in his home (along with society’s recognition of the reasonableness
of that expectation), and the fact that the confidential informant physically



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       In Pennsylvania, our Legislature has determined that although
       intercepting a communication to which one is a party may not be
       a violation of a constitutional privacy interest, it so threatens the
       private nature of social communication as to be considered
       unlawful in this Commonwealth. Recognizing this concern of the
       legislature, any analysis of what constitutes an oral
       communication under the Wiretap Act cannot be limited to an
       analysis on strict constitutional privacy grounds. The interest
       protected by the Wiretap Act is directed to a right not to
       have      one's     words      electronically       seized     under
       circumstances which are reasonably justified.

Commonwealth v. McIvor, 670 A.2d 697, 701 (Pa. Super. 1996) (en banc)

(emphasis added). Further, when it comes to the privacy interests one holds

within the four walls of one’s home, our Supreme Court in Brion held that “an

individual can reasonably expect that his right to privacy will not be violated

. . . through the use of any electronic surveillance.”     652 A.2d at 289. “If

nowhere else, an individual must feel secure in his ability to hold a private

conversation within the four walls of his home.” Id. In Brion, our Supreme

Court acknowledged that “[i]mplicit in any discussion of an expectation that a
____________________________________________


entered the home to secretly [record the conversation.]”. Id. (emphasis
added). Moreover, I note that the Majority’s statement in footnote 11, that
“[i]f the communication, i.e., the actual words said, are protected in their
entirety, then it is unclear why a CI sent inside the home by direction of the
Commonwealth can repeat the words said to him absent prior judicial approval
of the entry into the home[,]” again ignores the fact that it is the face-to-face
communication in one’s home that is constitutionally and legislatively
protected. Brion, supra. See also Commonwealth v. Rekasie, 778 A.2d
624, 629 (Pa. 2001) (“In finding a constitutionally-recognized expectation of
privacy, our court’s primary focus [in Brion] was on the zone of privacy in
the home and the face-to-face conversations taking place therein.”)
(emphasis added). In fact, the Majority recognizes this distinction, stating
that “[o]bviously, playing a recorded statement of Appellant’s own words, in
his own voice, is far more probative and damaging than offering a CI’s
testimony as to the substance of the conversation.” Majority, at 31.

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communication will not be recorded, is a discussion of the right to privacy.”

652 A.2d at 288. “For the right to privacy to mean anything, it must guarantee

privacy to an individual in his own home.”    Id. at 289.    Brion ended the

uncertainty surrounding police use of in-home body wires by conclusively

holding that Article I, Section 8 requires police to first obtain a judicial

determination of probable cause before engaging in a unilaterally consensual

interception of oral communications in a suspect's home pursuant to section

5704(2)(ii) of the Wiretap Act. Id.

      As the Majority correctly notes, the General Assembly codified our

Supreme Court’s holding in Brion at 18 Pa.C.S. § 5704(2)(iv), requiring

judicial approval if the oral interception “will take place in the home of the

nonconsenting party[.]” 18 Pa.C.S. § 5704(2)(iv). My reading of the Wiretap

Act, however, does not authorize unlimited in-home intercepts for a 30-day

period, as contemplated in the wiretap order in this case.

      The order, dated May 16, 2011, authorized consensual interception and

provided for intercepted conversations “between the date of this Order and

thirty (30) days thereafter, at the residence of [Appellant] or at any other

location within Westmoreland County where [Appellant] may have an

expectation of privacy such as one would have in one’s own home.” Order,

5/16/11, at ¶ 1 (emphasis added). But this is not a section 5712 wiretap; it

is a section 5704(2)(iv) consensual intercept.     The 30-day period is the

permissible length of a non-consensual interception under section 5712 of the

Wiretap Act, not section 5704.    See 18 Pa.C.S. § 5712(b). Based on my

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interpretation of section 5704 of the Wiretap Act, a separate finding of

probable cause is required for each in-home intercept, and the fact that

section 5704 includes no time frame indicates to me that this is what the

statutory language contemplates.

       Moreover, and contrary to the Commonwealth’s argument, the fact that

section 5704(2)(ii) does not set forth a specific length of time during which

the consent of the CI remains viable is not material to the issue here.      That

it is unnecessary for law enforcement to obtain a new consent from the CI

prior to each intercept has no bearing on the requirement of probable cause

prior to an in-home intercept. Rather, the issue is whether a single order can

allow for unlimited interceptions in Appellant’s home without additional

probable cause that an incriminating conversation will occur upon each entry.

The CI is not our concern; it is the Appellant’s expectation of privacy in the

words he utters in his home that is the focus of the protection. See Katz v.

United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)

(recognizing that “activities taking place inside the home, not within the plain

view   of   outsiders,”   are   entitled    to   Fourth   Amendment   protection);

Commonwealth v. Spangler, 809 A.2d 234 (Pa. 2002) (Pennsylvania’s

Wiretap Act emphasizes protection of privacy); cf. Commonwealth v.

Rekasie, 778 A.2d 624, 632 (Pa. 2001) (finding telephone call is

“[q]ualitatively different than a face-to-face interchange occurring solely

within the home in which an individual reasonably expects privacy and can

limit the uninvited ear[.]”).

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      Further, grammatically, the language in section 5704(2)(iv) speaks in

the singular:

      If an oral interception otherwise authorized under this paragraph
      will take place in the home of a nonconsenting party then, in
      addition to the requirements of subparagraph (ii), the interception
      shall not be conducted until an order is first obtained from the
      president judge, or his designee who shall also be a judge, of a
      court of common pleas, authorizing such in-home interception,
      based upon an affidavit by an investigative or law enforcement
      officer that establishes probable cause for the issuance of such an
      order. No such order or affidavit shall be required where probable
      cause and exigent circumstances exist. For the purposes of this
      paragraph, an oral interception shall be deemed to take place in
      the home of a nonconsenting party only if both the consenting and
      nonconsenting parties are physically present in the home at the
      time of the interception.

18 Pa.C.S. § 5704(2)(iv) (emphasis added).          I agree with Appellant’s

argument that nothing in this language suggests the legislature envisioned

anything more than a single interception per court order.        See Kyllo v.

United States, 533 U.S. 27, 40, (2001) (“Where ... the Government uses a

device that is not in general public use, to explore details of the home that

would previously have been unknowable without physical intrusion, the

surveillance is a `search’ and is presumptively unreasonable without a

warrant.”). Cf. Commonwealth v. Bruno, 352 A.2d 40, 45-46 (Pa. 1976)

(“Clearly, it would be unreasonable to allow the police to search the same

premises repeatedly for the same contraband on only one showing of probable

cause. Prior to each issuance of a warrant, the information presented to the

magistrate must be sufficient to persuade a reasonable person that probable



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cause exists to conduct the search.”), citing Spinelli v. United States, 393

U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964).

       And finally, as our Supreme Court explained in Spangler:

       Pennsylvania’s Wiretap Act emphasizes the protection of privacy,
       and, consistent with such emphasis, provides a statutory
       exclusionary rule that extends to non-constitutional violations.
       Because of this privacy concern, the provisions of the Wiretap Act
       are strictly construed.

Spangler, 809 A.2d at 237 (footnote and citations omitted). See Boettger

v. Miklich, 633 A.2d 1146, 1148 (Pa. 1993) (As Wiretap Act is statute “in

derogation of a constitutional right, the right of privacy[,]” it “must be strictly

construed.”).     See also Commonwealth v. Baumhammers, 960 A.2d 59

(Pa. 2008) (because Wiretap Act infringes upon constitutional right to privacy,

its provisions are strictly construed); Commonwealth v. Frant, 146 A.3d

1254 (Pa. Super. 2016) (provisions of Wiretap Act must be strictly construed);

Commonwealth v. Mickel, 142 A.3d 870 (Pa. Super. 2016) (same).

       Since the Wiretap Act requirements were not met, suppression is

mandated.2 The information gleaned is derivative evidence and is subject

to the Wiretap Act’s exclusionary rule.          See 18 Pa.C.S. §§ 5721.1(b)(6),


____________________________________________


2 See Commonwealth v. Katze, 658 A.2d 345, 350 (Pa. 1995) (Zappala, J.,
Opinion in Support of Reversal) (“The use of the harmless error analysis with
regard to a clear violation of the Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S. §§ 5701-5727, is repugnant to the individual right of
privacy and to the purposes underlying the Act.”).




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(c)(5).3 See Commonwealth v. Hashem, 584 A.2d 1378, 1382 (Pa. 1991)

(“Recognizing the vast potential for abuse in these extraordinary means of

inquiring into the private conversations of citizens, the General Assembly

provided within the Act itself for the remedy of suppression.”). The Wiretap

Act implicates fundamental constitutional concerns of the right to privacy and

the prohibition against unreasonable searches and seizures.

       In the words of Article I, § 25 of the Constitution of Pennsylvania,
       “except[ed] out of the general powers of government . . . [to]
       forever remain inviolate,” is the right of the people to “be secure
       in their persons, houses, papers and possessions from
       unreasonable searches and seizures[.] . . .” Article I, § 8. If the
       surveillance permitted by the Act is to meet the test of
       reasonableness, it is essential that, at a minimum, all the
       requirements directed by the Legislature be met. No violations of
       any provisions of the Act will be countenanced, nor will the failure
       of prosecutors to diligently follow the strict requirements of the
       Act be lightly overlooked. We must remain steadfast in this
       determination because there can be no greater infringement upon
       an individual’s rights than by an indiscriminate and unchecked use
       of electronic devices. Where, in the wisdom of the legislature,
       such devices may be authorized, as in the present act, that use
       will be strictly adhered to and jealously enforced; for the
       alternative, no privacy at all, is unthinkable.

Id. (emphasis in original).


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3 The Wiretap Act provides for exclusion of the contents “of any wire, electronic
or oral communication, or evidence derived therefrom” where “required
pursuant to section 5704(2)(iv), the interception was made without . . .
probable cause.” 18 Pa.C.S. § 5721.1(b)(6). With respect to exclusion claims
under this subsection, the Appellant had the burden of establishing by a
preponderance of the evidence that the interception took place in his home.
Once that burden is met, the burden shifts to the Commonwealth to
“demonstrate by a preponderance of the evidence that the interception was
in accordance with section 5704(2)(iv).” 18 Pa.C.S. § 5721.1(c)(6).

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         Accordingly, consistent with Brion, and consistent with a strict

construction of the limitations imposed by the Wiretap Act and its statutory

exclusionary rule, I would conclude that a separate finding of probable cause

was required for each in-home intercept under section 5704(2)(iv). Moreover,

and contrary to the Majority’s finding, I would conclude that the evidence

obtained as a result of the tainted search warrant was not subject to the

independent source doctrine.         As such, I would find suppression was

warranted and would vacate the judgment of sentence and remand for a new

trial.



         SHOGAN, J. joins this dissenting opinion.




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