J-A04019-16

                             2016 PA Super 269

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
              Appellee                     :
                                           :
      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:     FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.

DISSENTING OPINION BY: STRASSBURGER, J:FILED DECEMBER 02, 2016

      I disagree with the Majority’s determination that Brion requires orders

authorizing consensual interceptions to be “subject to the same probable

cause determinations as a traditional search warrant” in order to maintain

the level of privacy reasonably expected in face-to-face communications in

one’s home. Majority Opinion at 13. Accordingly, I respectfully dissent.

      As the Majority correctly notes, our General Assembly codified our

Supreme Court’s holding in Brion at 18 Pa.C.S. § 5704. Under that Section,

the requirements the Commonwealth must satisfy to obtain an order

authorizing a consensual interception are far less stringent than those which

must be satisfied in order to obtain a non-consensual 30-day wiretap. In

creating these new standards, the legislature had the opportunity to impose

a strict timeframe with respect to consensual interceptions. It did not do so.



*Retired Senior Judge assigned to the Superior Court.
J-A04019-16


      The Majority holds that the Brion court “did not anticipate that a prior

determination of probable cause by a neutral judicial authority for an

intercept taking place in the sanctity of one’s home could continue for 2

weeks, 30 days or even indefinitely.” Majority Opinion, at 13 (quotation

marks omitted). There is nothing in Brion to support this contention.

Rather, the Brion Court was well aware of controlling precedent surrounding

probable    cause   determinations   and       the    timeframes   in   which    the

Commonwealth was bound to execute nonconsensual wiretaps1 and failed to

place a limit on the applicable timeframe for consensual interception orders.

      Further, the Majority concluded that the Commonwealth has “failed to

assert that applying for additional orders based on probable cause to

intercept   conversation   each   time   the     CI   entered   appellant’s     home

throughout the 30-day period would have been burdensome or onerous.” Id.

The situation speaks for itself. The purpose of consensual interceptions is to

add credibility to an investigation by recording the target’s own words. This

should happen organically, in the course of normal conversation between the

CI and the target. Interruptions in the CI’s interaction with the target so the


1
  The Brion court specifically referenced the Wiretap Act in making its
pronouncement and had the opportunity to outline an applicable timeframe
and procedure for determining probable cause in these cases. “With respect
to oral communications occurring within one’s home, interception pursuant
to 18 Pa.C.S. § 5704(2)(ii) can only be deemed constitutional under Article
1, Section 8 if there has been a prior determination of probable cause by a
neutral, judicial authority.” Brion, 652 A.2d 287, 289 (Pa. 1994).



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Commonwealth can obtain a new authorization could serve to hinder the

investigation and compromise the safety of the CI. Suppose a CI is staying

in the target’s home. If the CI leaves for an hour to go to the store, or for

30 minutes to walk the dog, must the Commonwealth get a new

authorization each time the CI re-enters the home? Imposition of the rules

for search warrants, including a 48-hour execution period, is unnecessarily

restrictive and imposes a burden on the Commonwealth not intended by the

legislature, or outlined by the Supreme Court. The burden is especially harsh

when one considers the fact that the General Assembly, even after

consideration of the privacy arguments outlined in Brion, enacted a statute

with less stringent requirements for obtaining consensual orders. Had the

legislature intended to impose a particular timeframe, it would have done so.

      Nonetheless, for practical purposes, guidelines for the timing of

consensual interceptions must be considered. Consistent with the purpose,

legislative requirements and practical execution of consensual interception

orders, I believe the president judge authorizing such an order is in the best

position to determine an appropriate timeframe for its execution.      In my

view, the applicable timeframe in which to execute a consensual order

should be more than, or at least equal to, that imposed for nonconsensual

interceptions.

      Here, following the submission of an affidavit of probable cause, the

trial court granted the Commonwealth’s request for a 30-day order, as well


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as the Commonwealth’s requests for extensions of the original order.

Because I believe such an order was properly within the discretion of the

trial court, I would uphold the court’s ruling denying suppression and affirm

Appellant’s judgment of sentence.




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