Commonwealth v. Katona, D., Aplt. ( 2020 )

[J-83-2019] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 1 WAP 2019
:
Appellee : Appeal from the Order of the
: Superior Court entered June 14,
: 2018 at No. 1995 WDA 2014,
v. : affirming the Judgment of Sentence
: of the Court of Common Pleas of
: Westmoreland County entered
DENNIS ANDREW KATONA, : November 10, 2014 at No. CP-65-
: CR-0002549-2011
Appellant :
: ARGUED: October 15, 2019
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: OCTOBER 21, 2020
The Commonwealth received a consensual wiretap order that purported to
authorize unlimited in-home recordings in Katona’s residence pursuant to Section
5704(2)(iv) of the Wiretap Act, 18 Pa.C.S. § 5704(2)(iv), for a period of thirty days. I would
find that this order was illegal as the plain language only authorized one intercept. My
learned colleagues in the Majority avoid this aspect of the case by holding that any
illegality in that order and its attendant intercepts was irrelevant under the Independent
Source Doctrine due to the absence of “willful misconduct” or “malfeasance” on the part
of the police. That conclusion rests on an application of Commonwealth v. Henderson,
47 A.3d 797 (Pa. 2012), a case not cited by the court below nor the parties herein in their
principal briefs.1 While I agree that whether the doctrine applies presents a question of
law, Majority Op. at 13 n.10, as developed below I am unconvinced that Henderson
definitively resolves this case. I would limit our examination to the question presented on
appeal, which asked only whether the Superior Court’s application of the Independent
Source Doctrine was consistent with Commonwealth v. Melendez, 676 A.2d 226, 231
(Pa. 1996). The answer is no. And because I would conclude that the wiretap order was
illegal, I would reverse the order of the Superior Court.
I. Background
As the Majority aptly recounts, in 2009 the Pennsylvania State Police (“PSP”)
began working with a CI who was a member of the Irwin Chapter of the Pagan Motorcycle
Club. On May 16, 2011, the CI was at Katona’s home when Katona offered to sell him a
half-pound of cocaine for $5,000, for which the CI could pay later that evening. The CI
agreed, left Katona’s residence with the contraband, and immediately turned it over to the
PSP. Later that day, the Commonwealth, represented by the Office of the Attorney
General, applied for and received a consensual wiretap order that allowed for unlimited
intercepts within Katona’s home for a period of thirty days. Relying on this order, the PSP
sent the CI into Katona’s home on multiple occasions over the next thirty days. At each
visit, the CI wore a recording device and used pre-recorded money to pay for contraband
he received from Katona. The PSP surveilled Katona’s home during these visits and met
1 Henderson is cited and discussed in an amicus brief, which argues that Henderson was
inapplicable because “the police officers who discovered the constitutionally tainted
evidence are the same ones who purport to rely on independent evidence in applying for
a search warrant.” Amicus Brief of Public Defender Association of Pennsylvania at 27.
In Katona’s reply brief, he argued that in Henderson “there were two searches with two
separate search warrants. It is nothing like our situation.” Katona’s Reply Brief at 13.
The Commonwealth did not cite the case.
[J-83-2019] [MO: Dougherty, J.] - 2
with the CI immediately upon his departure to obtain the recordings. The majority of these
interactions occurred in Katona’s residence, and at all times the CI recorded their
conversations. Based on information gathered from these transactions, Trooper Matthew
Baumgard obtained a search warrant for Katona’s residence based on, inter alia,
interviews with the CI, the results of multiple controlled buys, surveillance, and retrieval
of the recording device used by the CI. See generally Majority Op. at 24-29.
Katona argued that the Wiretap Act only authorized the first recording. Because
the search warrant was based on information obtained from all of the recorded
conversations, Katona argued that the search warrant was invalid and sought
suppression of the items recovered, which included cocaine and methamphetamine.
Katona also sought suppression of the recordings themselves, again on the basis that
they were obtained in violation of the Wiretap Act.2 The trial court denied the request for
2 Katona also challenged the recordings that occurred outside of Katona’s residence as
violative of Section 5704(2)(ii) of the Wiretap Act, see Omnibus Pre-Trial Motion,
3/22/2012, at 5-6, which provides that
Any investigative or law enforcement officer or any person acting at the
direction or request of an investigative or law enforcement officer to
intercept a wire, electronic or oral communication involving suspected
criminal activities, including, but not limited to, the crimes enumerated in
Section 5708 (relating to order authorizing interception of wire, electronic or
oral communications), where:
***
(ii) one of the parties to the communication has given prior consent to such
interception. However, no interception under this paragraph shall be made
unless the Attorney General or a deputy attorney general designated in
writing by the Attorney General, or the district attorney, or an assistant
district attorney designated in writing by the district attorney, of the county
wherein the interception is to be initiated, has reviewed the facts and is
satisfied that the consent is voluntary and has given prior approval for the
interception; however, such interception shall be subject to the recording
[J-83-2019] [MO: Dougherty, J.] - 3
suppression. Katona argued on appeal that Section 5704(2)(iv) uses the term
“interception” in the singular and therefore an order issued thereunder authorizes only
one intercept. See Commonwealth v. Katona, 191 A.3d 8, 15 (Pa. Super. 2018) (en
banc), appeal granted, 200 A.3d 8 (Pa. 2019). He argued that construction was in accord
with Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), wherein this Court established
that citizens have an expectation of privacy in conversations that occur in their homes,
and that such conversations may not be intercepted without a prior determination of
probable cause by a neutral judicial authority. Id. at 289. The General Assembly
effectively codified our holding in Brion by enacting Section 5704(2)(iv). In Katona’s view,
interpreting Section 5704(2)(iv) to authorize more than one recording was akin to allowing
multiple executions of a single search warrant, and thus, every recording beyond the first
amounted to an unconstitutional search. 191 A.3d at 15.1 As relevant to the Majority’s
resolution of this case, the Commonwealth argued that, even if the interceptions were
invalid, the officers’ observations and the information relayed to the officers by the CI
without any reference to the recordings themselves established probable cause, thus
providing an independent, untainted source for the information that established the
probable cause. Id.
The Superior Court relied on a distinction not raised by the parties. The Superior
Court acknowledged that Brion established a “reasonable expectation of privacy that a
and record keeping requirements of Section 5714(a) (relating to recording
of intercepted communications) and that the Attorney General, deputy
attorney general, district attorney or assistant district attorney authorizing
the interception shall be the custodian of recorded evidence obtained
therefrom.
18 Pa.C.S. § 5704(2)(ii).
[J-83-2019] [MO: Dougherty, J.] - 4
citizen will not be recorded by his guests, and therefore the actual recordings are subject
to suppression.” Id. at 20. The en banc panel noted that Brion did not speak to whether
the information captured on the recordings, i.e. the words themselves, were subject to
suppression. The Superior Court then turned to a subsequent decision from this Court,
Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001), as evidence for the “crucial
distinction” between the use of a recording as substantive evidence versus reliance on
information captured on the recording to obtain a search warrant. Katona, 191 A.3d at
20. In Rekasie, this Court rejected the federal principle that no expectation of privacy
exists in information disclosed to another, and instead clarified that a constitutional
analysis under Article I, Section 8 requires a broader consideration of both the person’s
actual expectation of privacy and whether society recognizes that expectation as
reasonable. Id. at 20-21 (discussing Rekasie, 778 A.2d at 629-31).3 The Superior Court
concluded that the present case presents an issue not addressed by Brion or Rekasie:
whether a defendant is entitled to suppression of the substance of a conversation that
took place in his home, assuming arguendo that the simultaneous recording of the
conversation violated the defendant’s Article I, Section 8 rights. Id. at 22. The Superior
Court concluded that although Katona had a reasonable expectation that his in-home
conversations with the CI would not be recorded, he had no reasonable expectation of
privacy in the substance of those conversations. Id. Katona “took the risk that the CI was
3 Concurring in the decision reached in Rekasie, former-Chief Justice Castille
emphasized that the Court did not consider whether the substance of the telephone
conversations was subject to suppression, but only whether the recording itself is subject
to suppression, and further explained that in his view, this distinction was significant
because there is no expectation of privacy in information disclosed in conversation with
another, absent a recognized privilege. Katona, 191 A.3d at 21-22 (discussing Rekasie,
778 A.2d at 633-34).
[J-83-2019] [MO: Dougherty, J.] - 5
acting on behalf of the Commonwealth,” id. at 23, and therefore nothing prevented the
Commonwealth from using the contents of the conversations in the search warrant
application.
The court recognized that evidence that is potentially suppressible may be
admissible where the Commonwealth can prove that it was discoverable through an
independent source. Id. (citing Commonwealth v. Santiago, 160 A.3d 814, 827 (Pa.
Super. 2017), aff’d, 209 A.3d 912 (Pa. 2019)). It concluded that Katona’s voluntary
disclosures to the CI qualified as the independent source of information, and, further, that
the 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. In other words, it could not be presumed that the Commonwealth obtained its evidence
due to the recordings because “the Commonwealth knew the same information with or
without the recordings.” Id. Thus, it found that the trial court properly denied Katona’s
suppression motion. Id. at 24. Having reached this conclusion, the Superior Court
declined to address the substance of Katona’s challenge to the validity of the wiretap
order. Id. at 16.
We granted Katona’s petition seeking allowance of appeal to review two issues:
(1) whether the Superior Court’s application of the Independent Source Doctrine conflicts
with our decision in Melendez, and (2) whether the § 5704(2)(iv) consensual wiretap order
permitting interceptions for a period of thirty days was legal. See Commonwealth v.
Katona, 200 A.3d 8 (Pa. 2019) (per curiam).
[J-83-2019] [MO: Dougherty, J.] - 6
II. Katona Prevails on Question as Presented
The parties limit their arguments to the question as presented and accepted by this
Court. Katona contends that the Superior Court’s holding conflicts with Commonwealth
v. Mason, 637 A.2d 251 (Pa. 1993), and Melendez, which required “true independence”
when the Independent Source Doctrine is involved, with that term defined in terms of full
investigative separation. Katona argues that such separation is not present here because
the CI and PSP were part of the same “team.” Katona’s Brief at 17. Katona argues that
“any post interception discussions with the CI about the conversations, assuming such
discussions occurred, represent exploitation of the initial illegality.” Id. at 22. Addressing
the Superior Court’s assertion that the independent source was Katona’s voluntary
disclosures to the CI, Katona states that the CI was acting as an agent of the police.
Thus, the CI’s authority to concurrently learn of the information via Katona’s voluntary
disclosures cannot be divorced from the in-home recordings. Katona argues that applying
the Independent Source Doctrine to the voluntary disclosures is akin to citing the consent
exception to justify an illegal search if a suspect consented following an illegal warrantless
entry. The legal acquisition of Katona’s words cannot be divorced from the illegal
recordings.
The Commonwealth responds that Melendez should be read against its facts – the
seizure of physical evidence, which occurred “only once and by only one means.”
Commonwealth’s Brief at 11. The Commonwealth finds the present case more analogous
to Commonwealth v. Santiago, 209 A.3d 912 (Pa. 2019), which involved “law
enforcement’s acquisition of … information rather than physical evidence.” Id. The
Commonwealth argues that pursuant to Santiago, when the evidence at issue is of a non-
[J-83-2019] [MO: Dougherty, J.] - 7
physical nature, the critical inquiry is whether the challenged evidence was obtained by
exploitation of the initial illegality or by means “sufficiently distinguishable to be purged of
the taint” of the initial illegality. Id. at 13. Thus, according to the Commonwealth, the
standards and application of the Independent Source Doctrine differ depending on
whether the evidence4 at issue is tangible or intangible. Id. at 12-13. Where, as here,
the intangible information evidence is obtained via two sources - one legal (debriefing the
CI) and the other not (the recordings) – the Commonwealth contends that Santiago
instructs that suppression is not warranted, absent a showing that the legal source was
procured through an exploitation of the illegality. Id. at 13-14.
Addressing the parties’ arguments on their terms, I would hold that Katona is
entitled to relief. Katona’s argument heavily relies on Melendez and Mason, cases that
examined the application of the Independent Source Doctrine under Article I, Section 8.
Significantly, those cases declined to follow the United States Supreme Court’s approach
to the Independent Source Doctrine under the Fourth Amendment as established in
Murray v. United States, 487 U.S. 533 (1988). Murray resolved the question of whether
evidence seen in plain view upon an illegal entry could be lawfully recovered through a
valid search warrant issued after the illegal entry. In Murray, federal agents were
surveilling Murray and his co-conspirators. They observed Murray and another man drive
vehicles into a warehouse, with the two men leaving about twenty minutes later. Some
officers continued to watch the warehouse while others followed the vehicles. Murray
4 The Commonwealth uses the term “evidence” in this context to refer to the
conversations recorded by the CI as distinguished from the physical evidence of drugs
that occurred following execution of the search warrant which was based, in part, on the
informational “evidence.” See Commonwealth’s Brief at 11 n.3.
[J-83-2019] [MO: Dougherty, J.] - 8
and his companion turned the vehicles over to other drivers, who were arrested. A search
of the vehicles recovered marijuana. Upon learning this, the agents watching the
warehouse entered and observed “numerous burlap-wrapped bales that were later found
to contain marijuana.” Id. at 535. That search was unconstitutional and the agents did
not seize the evidence. Instead, they exited and kept the warehouse under surveillance
while other agents sought a warrant. That warrant, which did not mention the illegal entry
or anything learned upon the entry, was then executed and resulted in seizure of the bales
plus other evidence.
The Murray Court held that the illegal entry did not require suppression of the bales
on the basis that their recovery was separately justified by execution of the warrant as an
independent source. Its analysis on that point was tied to the high Court’s narrow view
of the exclusionary rule. A Fourth Amendment violation is complete when the unlawful
seizure or search occurs and suppression is not a constitutional right of the aggrieved
party. As a result, the exclusionary rule is designed “to safeguard Fourth Amendment
rights generally through its deterrent effect . . . .” United States v. Calandra, 414 U.S.
338, 348 (1974). Because suppressing evidence leads to the exclusion of evidence of
guilt, whether the exclusionary rule should apply reflects an exercise in weighing costs
and benefits. On one side of the ledger is the costs to society engendered by suppressing
evidence. On the other is the need to give the exclusionary rule teeth by ensuring that
police officers are not rewarded for performing unconstitutional searches.
The United States Supreme Court’s development of the Fourth Amendment’s
exclusionary doctrine places a heavy emphasis on the costs side of the equation. As far
as the Court is concerned, “[t]he exclusionary rule exists to deter police misconduct.”
[J-83-2019] [MO: Dougherty, J.] - 9
Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056, 2063 (2016) (citation omitted). And the
Court has made clear that it exists only for that purpose. “The rule’s sole purpose, we
have repeatedly held, is to deter future Fourth Amendment violations.” Davis v. United
States, 564 U.S. 229, 236 (2011). Indeed, the high Court has stated that but-for causality
“is only a necessary, not a sufficient, condition for suppression.” Hudson v. Michigan,
547 U.S. 586, 592 (2006). When weighing costs and benefits the question of whether an
officer will be deterred is only one part of the equation; the issue of whether exclusion
outweighs the costs must still be analyzed.
Because deterrence is the only purpose recognized by the high Court, the Murray
Court’s remedial analysis considered only whether suppressing the evidence would have
deterred the officers from conducting the illegal entry that resulted in their knowledge of
the bales. The petitioners asserted that applying the Independent Source Doctrine as an
exception to exclusion would incentivize officers to make an illegal entry to see if
incriminating evidence is actually there. If so, they could get a warrant; if not, they would
save time and expense. The Court disagreed, emphasizing that the illegal entry still
posed risks:
An officer with probable cause sufficient to obtain a search
warrant would be foolish to enter the premises first in an
unlawful manner. By doing so, he would risk suppression of
all evidence on the premises, both seen and unseen, since
his action would add to the normal burden of convincing a
magistrate that there is probable cause the much more
onerous burden of convincing a trial court that no information
gained from the illegal entry affected either the law
enforcement officers' decision to seek a warrant or the
magistrate's decision to grant it. Nor would the officer without
sufficient probable cause to obtain a search warrant have any
added incentive to conduct an unlawful entry, since whatever
he finds cannot be used to establish probable cause before a
magistrate.
[J-83-2019] [MO: Dougherty, J.] - 10
Id. at 540 (internal citation omitted).
As indicated by the reference to convincing a magistrate, a limitation on the
Independent Source Doctrine is that the purportedly independent source must be “in fact
a genuinely independent source of the information and tangible evidence at issue[.]” Id.
at 542. The Murray Court remarked that the warrant would not have been genuinely
independent if (1) the decision to seek the warrant was prompted by what the agents
observed during the illegal entry or (2) if information obtained during the illegal entry was
presented to the magistrate and affected the decision to issue the warrant.5 Id. If neither
condition is present, the evidence should not be suppressed because to do so would put
the police in a worse position than if no irregularity had occurred.
Murray required only “genuine” independence as opposed to “true” investigative
independence as the two searches in Murray were conducted by a joint task force
consisting of agents from both the Federal Bureau of Investigation and Drug Enforcement
Agency. Id. at 545 (Marshall, J., dissenting). The development of “true” independence
through Melendez and Mason is critical to Katona’s challenge. This Court initially followed
Murray in Commonwealth v. Brundidge, 620 A.2d 1115 (Pa. 1993), a case raising only a
Fourth Amendment claim. But in Mason and Melendez, both of which involved Article I,
Section 8 claims, we suggested, if not held, that “true” independence was required under
our constitution. Requiring that degree of independence as a necessary condition of
applying the Independent Source Doctrine under Article I, Section 8 resulted from this
Court’s markedly different view of what the Pennsylvania Constitution requires when
5 Murray remanded to the Court of Appeals with directions to remand to the District Court
for further fact finding on whether the officers would have sought a warrant had they not
entered the warehouse earlier. 487 U.S. at 543.
[J-83-2019] [MO: Dougherty, J.] - 11
analyzing whether evidence should be suppressed. That point was explicitly made in
Mason.
In Mason, police were surveilling a residence as part of an undercover drug
investigation and used a CI to arrange a purchase from Kenny Mitchem. Mitchem went
into a particular apartment and, twelve minutes later, came out and got in a car with the
CI and an undercover officer. Mitchem was arrested and informed the police that more
cocaine was present in the apartment “and that other persons were present making illegal
transactions.” 637 A.2d at 252. Based on this information and observations from their
surveillance, one officer left to obtain a search warrant for the residence while other
officers remained to continue surveillance. Before the officer could return with the
warrant, a member of the surveillance team broke down the door to the residence with a
battering ram. He testified at a suppression hearing that he feared word of Mitchem’s
arrest would reach the apartment and result in loss of evidence. Id. at 252-53. The
officers knocked for two minutes to no avail. They then used a battering ram and saw
Mason run into a bathroom with her hands in the toilet bowl, having flushed the toilet.
During a search of the apartment to ensure no one else was present, they observed drugs
and drug paraphernalia in plain view. Once the warrant arrived, the police searched the
residence, discovering more drugs, paraphernalia, and other indicia of drug trafficking.
We held that suppression was required based on a violation of Mason’s Article I,
Section 8 rights. Preliminarily, we acknowledged that if Mason’s claim were made under
federal law we would be constrained to find that suppression was not warranted. Id. at
254. Mason prevailed under the Pennsylvania Constitution because Article I, Section 8
[J-83-2019] [MO: Dougherty, J.] - 12
also protects the privacy of individuals and ensures that warrants issue only upon
probable cause.
If our sole purpose in applying Article I, Section 8 to the facts
of this case were to deter police misconduct, we would be
constrained to rule in favor of the Commonwealth, for in
balancing the interests, it is apparent that society's interest in
arresting those guilty of serious crime should not be thwarted
where police would inevitably and independently arrive at the
same evidence, but for their illegal conduct.
However, where our task is not merely to deter police
misconduct, but also to safeguard privacy and the
requirement that warrants shall be issued only upon probable
cause, our conclusion is different. Where the police battering
ram is at the door, without exigent circumstances and without
a warrant, it is plain that the violent shattering of the door
constitutes an unconstitutional invasion of privacy of which
every person in this Commonwealth may complain. The
requirement that warrants shall issue only upon probable
cause means nothing if police are free to batter down the
doors of persons who imagine themselves to be secure in
their own houses.
Id. at 256. In connection with this analysis, we said that Article I, Section 8 prioritizes
privacy higher than the need to secure convictions.
The ultimate distinction, then, between the federal and the
Pennsylvania analysis is not that the federal courts seek only
to deter police misconduct and the Pennsylvania courts seek
to protect certain rights, but that the federal courts place less
importance than do we on the right of privacy. Therefore, they
balance the interests differently and reach a different
conclusion as to the relative importance of privacy as against
securing criminal convictions.
Id. at 257 n.3.
Justice Cappy concurred, expressing his view that this Court should go further and
declare that the Independent Source Doctrine would apply only in “extraordinarily specific
circumstances[,]” id. at 258 (Cappy, J., concurring), which he deemed not present in
Mason. Justice Cappy feared that an expansive application of the doctrine would
[J-83-2019] [MO: Dougherty, J.] - 13
encourage officers to send for a warrant then make an illegal entry. “[E]very police officer
in this Commonwealth could rightfully conclude that if he or she first sent for a warrant
based upon probable cause, and that warrant were ultimately issued, no evidence seized
as a result of an illegal early entry and search without the warrant, would ever be
suppressed.” Id. at 257.
We adopted that principle in Melendez. In that case, multiple police officers
surveilled the defendant’s residence while another officer typed up an application for a
search warrant. Melendez, 676 A.2d at 227. Meanwhile, the defendant exited her
residence, entered a vehicle, and drove away. Id. The police immediately stopped her
and removed her from the car. A search of her purse revealed a handgun, a large amount
of cash and a paper tallying drug sales. Id. The officers took Melendez to her home and
used her keys to enter the residence. Id. As they entered, the officers observed a man
holding a bag of cocaine. They then secured the residence and waited for the search
warrant. After an hour-long wait, the search warrant was issued. The police then
searched the residence and recovered drugs, drug paraphernalia, and money among
other evidence. Id.
The Commonwealth argued that the inevitable discovery rule applied.6 We applied
the Independent Source Doctrine as analyzed in Mason and elected to adopt the limitation
6 We stated that “[t]he inevitable discovery rule, sometimes referred to as the
‘independent source rule,’ is that if the prosecution can demonstrate that the evidence in
question was procured from an independent origin, such evidence is admissible.”
Melendez, 676 A.2d at 230. The Murray Court explained that “[t]he inevitable discovery
doctrine, with its distinct requirements, is in reality an extrapolation from the independent
source doctrine: Since the tainted evidence would be admissible if in fact discovered
through an independent source, it should be admissible if it inevitably would have been
discovered.” Murray v. United States, 487 U.S. 533, 539 (1988).
[J-83-2019] [MO: Dougherty, J.] - 14
set forth by Justice Cappy’s Mason opinion. It was “clear that we place a greater
importance on privacy under the Pennsylvania Constitution than have recent federal
cases under the United States Constitution, and we noted that the facts in Mason were
importantly different from the facts in previous independent source cases in that they
involved the invasion of a dwelling place.” Id. at 231. We concluded that
The Pennsylvania Constitution does not allow police
intrusions exemplified by this case and Mason. Government
agents may not enter private dwellings through the use of
battering rams as in Mason, or by effecting illegal stops and
seizures as in this case, and secure the premises by detaining
those who occupy the premises while police wait to learn
whether their application for a warrant has been approved. It
is difficult to imagine practices more inimical to the
fundamental idea that no person shall be subject to
unreasonable searches and seizures.
Id. at 231–32.
Applying Mason and Melendez as the parties herein ask us to do, I would find that
Katona prevails. The Melendez test requires that a source be independent from both the
tainted evidence and the police who engaged in the misconduct. Even accepting that the
first requirement is met, the second requirement plainly is not. The CI was not
independent from the officers who engaged in the misconduct because he indisputably
acted as an agent of the PSP in his interactions with Katona. Because Melendez requires
dual independence of the source from both the tainted evidence and the police, even if
the CI’s description of his conversations with Katona could be deemed to be “truly
independent” of the recordings the Independent Source Doctrine would still not apply due
to the CI’s role as an agent of the PSP.7
7 The parties dispute whether the CI relayed the substance of his conversations with
Katona to the PSP. The Commonwealth contends that the CI recounted his
[J-83-2019] [MO: Dougherty, J.] - 15
Additionally, as previously noted, see supra at n.1, Henderson was discussed by
Katona only in his reply brief, arguing that Henderson is distinguishable because it
involved two separate search warrants. I agree. Mason, Melendez, Henderson, and
Murray all involved two actual searches that recovered the same evidence, with one of
the searches being illegal or otherwise incapable of justifying the recovered evidence. In
those cases, the analysis asks whether the second search was an independent source
of the same evidence notwithstanding the illegality of the other search. Here, however,
the Superior Court held, and no one has challenged, that all of the information learned
via Katona’s voluntary disclosures were not searches because he had no reasonable
expectation of privacy in what he told the CI. See Commonwealth v. Fulton, 179 A.3d
475, 487–88 (Pa. 2018) (“A search occurs when police intrude upon a constitutionally
conversations to the PSP. See Commonwealth’s Brief at 14. Katona states that the
affidavit of probable cause included multiple paragraphs outlining each instance in which
the CI entered Katona’s residence while wearing the recording device, but argues that in
all but one of these paragraphs there is no direct mention of any statements made by the
CI to the PSP. See Affidavit of Probable Cause, 6/29/2011, at 15-20.
The fact that the affidavit of probable cause references the recordings at all poses barriers
to applying the Independent Source Doctrine. Unlike the Majority, I find it impossible to
determine whether the officers decided to seek a warrant based on what they heard on
the recordings versus what the CI told them. Finely parsing the affidavit of probable cause
to answer that question is an exercise in futility. The very fact that the recordings are
mentioned in the affidavit at all signals to the issuing authority that the recordings
corroborated everything that the CI observed and told the officers. In addition to stating
that the troopers recovered the recording device from the CI at the end of each incident,
the affidavit states that the recordings corroborate the allegations. See Affidavit of
Probable Cause, 6/29/2011, at 16 at ¶ 33 (“On each of these occasions the payment of
the money to Katona by the CI was captured by the recording;) id. at ¶ 34 (“These
amounts were verified on the recording.”). Mentioning that the events discussed in the
affidavit are all on tape and that portions were confirmed suggests to the magistrate that
all of the information is accurate; it would be a foolhardy officer who made representations
that he or she knows will be contradicted by objective evidence that will be subject to
discovery. In this respect, the recordings served to establish the reliability of the CI by
improper means.
[J-83-2019] [MO: Dougherty, J.] - 16
protected area without the individual’s explicit or implicit permission.”). Thus,
Independent Source Doctrine cases are something of a doctrinal mismatch from the
outset when examining the search warrant as the Majority does. There is simply no
second search that resulted in acquisition of the same physical evidence.
Turning to the Commonwealth’s argument that this case is resolved by Santiago,
I disagree. Santiago, a case decided solely on Fourth Amendment grounds, began with
an officer engaged in a traffic stop. In the midst of the traffic stop, the suspect suddenly
sped away, injuring the officer and leaving behind a cell phone. Santiago, 209 A.3d at
915. The police recovered the cell phone and searched it, discovering the name “Angel
Santiago,” which they then used to obtain a photo of a man with that name. Id. When
shown the photograph, the injured officer identified the individual as Santiago. An arrest
warrant was then issued, and Santiago was arrested and charged with a number of
crimes. Id. Santiago sought suppression of the officer’s anticipated in-court identification,
arguing that pursuant to Fourth Amendment protections, any identification made by the
officer would be the product of the warrantless, and therefore unconstitutional, search of
his cell phone. Id. at 915-16. The trial court granted suppression, reasoning that but for
the illegal search of the cell phone, Santiago would not have become a suspect. Id. at
916.
The Superior Court reversed, and we granted appeal to consider whether the fruit
of the poisonous tree doctrine required suppression of an in-court identification by a police
officer who observed the defendant prior to an illegal search of the defendant’s cell phone.
Id. at 919. Tracing the development of the fruit of the poisonous tree and Independent
Source Doctrines under federal law, this Court identified the salient inquiry as “whether,
[J-83-2019] [MO: Dougherty, J.] - 17
assuming the primary illegality has been established, the challenged evidence has been
obtained by exploitation of that illegality, or instead, by means sufficiently distinguishable
to be purged of the taint of the primary illegality.” Id. at 924. Applying that standard, we
held that an identification made entirely as a result of an illegality (such as a warrantless
search) taints the identification and renders it inadmissible, but that an eyewitness
identification, based on observations that are made prior to and independent of the
subsequent illegal conduct, may be admissible. Id. at 929.
The Commonwealth reads Santiago to stand for the proposition that when the
evidence at issue is non-physical in nature, the applicable inquiry is whether the
challenged evidence was obtained by exploitation of the initial illegality or by means
“sufficiently distinguishable to be purged of the taint” of the initial illegality.
Commonwealth’s Brief at 13. However, the challenge in Santiago was raised only under
the Fourth Amendment, and so our consideration in that case did not include the
heightened Article 1, Section 8 privacy protections. As discussed, Article 1, Section 8
provides a broader protection of the right to privacy than does its federal counterpart and
our application of the Independent Source Doctrine is thus more circumscribed.8
8 Additionally, the nature of the contemporaneous acquisition of the knowledge, i.e. the
conversations, and making recordings of those conversations, further distinguishes the
case from Santiago. In that case, the discarded phone led to Santiago’s name. Here,
the information learned by the CI did not separately lead to additional information. The
voluntary disclosures were concurrent with the recording of that information. In Murray,
the high Court stated that “[k]nowledge that the marijuana was in the warehouse was
assuredly acquired at the time of the unlawful entry. But it was also acquired at the time
of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier
entry there is no reason why the independent source doctrine should not apply.” Murray
v. United States, 487 U.S. 533, 541 (1988). Here, there was no “later acquisition” of the
knowledge.
[J-83-2019] [MO: Dougherty, J.] - 18
III. Henderson does not apply
The Majority does not answer the question as presented and analyzed
hereinabove. Nor does the Court wholly embrace the Superior Court’s distinction
between information, i.e. what Katona told the CI, versus the search that resulted under
Brion when those conversations were recorded. See Majority Op. at 31 n.18. Instead,
the Majority finds that the question on which we granted review was incomplete by adding
the following language: “whether the Superior Court’s application of the Independent
Source Doctrine conflicts with our decision in Melendez, as refined by Henderson.” See
Majority Op. at 20 (“[T]his Court has occasionally refined the contours of the Independent
Source Doctrine’s applicability in this Commonwealth to account for novel factual
circumstances in claims arising under our state charter.”). The Majority finds that “the
parties and the Superior Court in this case have all overlooked” Henderson. Id.Henderson is part of our jurisprudence and I agree that we must apply the law as
we have developed it. However, I disagree with the premise that “Henderson is
dispositive of this matter.” Id. The Majority interprets Henderson to hold that the “true
independence” requirement still exists under Article I, Section 8, but is limited to cases
like Mason and Melendez, i.e., cases involving “willful misconduct” or “malfeasance.”
Respectfully, I submit that Henderson does not lend itself to the construction applied by
the Majority. To the extent that Henderson could be interpreted in the manner suggested
by the Majority, I would defer consideration of that question to a case in which that point
is subject to focused advocacy. Nothing prevents this Court from remarking that the
applicability of Henderson was not briefed by the parties. But because the Majority has
[J-83-2019] [MO: Dougherty, J.] - 19
opened that door, I respond to demonstrate that it is not at all clear that Henderson
governs this case.
The Henderson Court was concerned that the Mason/Melendez holdings swept
too broadly; we were “unwilling to enforce a ‘true independence’ rule in the absence of
police misconduct and on pain of the Commonwealth being forever barred from obtaining
non-evanescent evidence connecting [Henderson] with his crimes.” Henderson, 47 A.3d
at 804. Henderson was suspected of rape and kidnapping, and authorities sought his
DNA sample for comparison with genetic material recovered from the victim and a vehicle
used in the abduction. Id. at 798. A member of the police sexual assault unit, Detective
Johnson, prepared an affidavit of probable cause, obtained a warrant, and collected
samples of the defendant’s blood, hair and saliva. Based on the results, the defendant
was arrested and charged with multiple felonies. Id. When the defendant filed a motion
to suppress on the basis that Detective Johnson’s affidavit was insufficient to establish
probable cause, the Commonwealth decided to invoke the Independent Source Doctrine,
as defined by the Melendez rule, to obtain a second warrant. Id. To that end, a different
detective from the same sexual assault unit, Detective Evans, was assigned to conduct
a probable cause investigation. Detective Evans spoke with Detective Johnson and
reviewed the department’s existing case file, interviewed a witness, reviewed the victim’s
medical records, and conducted an investigation into the defendant’s background. Based
on information gleaned from these sources, Detective Evans applied for and obtained a
second warrant authorizing a second blood draw.
The defendant attempted to secure suppression of the second blood draw. Citing
Detective Evans’ reliance on information from Detective Johnson and materials obtained
[J-83-2019] [MO: Dougherty, J.] - 20
in connection with the first warrant, the defendant argued that the second warrant was
not based on information obtained from an independent source, and therefore retained
the taint of the illegality that infected the originally-seized evidence. Id. Following a
hearing, the trial court denied suppression, finding that Detective Evans’ investigation was
sufficiently separate from the initial investigation such that there was no “causal nexus”
between the first blood draw result and the affidavit of probable cause Detective Evans
submitted in connection with his warrant application. On appeal, the Superior Court
affirmed and we granted review.
The Commonwealth did not argue to this Court that Detective Evans’ investigation
met the “true independence” standard, and the majority agreed. “No one could seriously
contend that Detective Johnson's and Evans' investigations were ‘truly independent’
under a conventional understanding of those words, where the two conferred about the
case and the latter worked directly from the case file previously maintained by the former.”
Id. at 804. But see id. at 810 (Todd, J., concurring) (criticizing majority for “truncat[ing]
the Mason/Melendez rule in a sweeping and protective fashion” and opining that the
teams were truly independent). The Henderson Court elected to apply the federal Murray
standard, which we declared “strikes the appropriate balance between privacy and law
enforcement.” Id. at 805. The Majority holds that the same Murray balancing approach
applies here by discerning a wholesale “refinement” of the Independent Source Doctrine
as a result of Henderson. See Majority Op. at 24 (asserting that Henderson “confirms the
continued viability of the Melendez requirements but limits their application to cases of
‘willful misconduct’ or ‘malfeasance’”).
[J-83-2019] [MO: Dougherty, J.] - 21
The Superior Court’s invocation of the Independent Source Doctrine is ostensibly
correct under Henderson in that there is no suggestion that the police engaged in any
kind of misconduct, let alone egregious. But I do not interpret Henderson to foreclose a
“true independence” requirement in this circumstance where the focus of Katona’s
complaint--a violation of an Article I, Section 8 right recognized by Brion under the
Pennsylvania Constitution--simply has no parallel under the Fourth Amendment. If the
unlimited intercept order violated the Wiretap Act, then Katona’s Article I, Section 8 rights
were repeatedly violated. Yet no relief is forthcoming because the Majority holds that the
officers could have secured the same evidence even without the recordings. But the fact
remains that the authorities chose to encroach on the Article I, Section 8 rights guaranteed
by Brion. Article I, Section 8, unlike the Fourth Amendment, stands as a bulwark against
such privacy invasions by requiring suppression as the price to pay for the mistaken belief
that the unlimited intercept order was valid. At most, Henderson holds that the “true
independence” rule does not always apply when an Article I, Section 8 claim is raised.
That should not be confused with the proposition that it never applies except in cases of
“willful misconduct” or “malfeasance.”9 Without briefing on this point, we should not go
beyond the arguments presented.
Moreover, language in Henderson indicates that it did not announce a per se rule
that police misconduct is absolutely required before demanding “true independence.”
9 Applying Henderson’s logic, it is unclear why the Court even left those vestiges except
as perhaps a concession to stare decisis. The reason for Melendez and Mason’s
departures from the Murray standard was grounded in this Court’s different cost-benefits
approach to the exclusionary rule and did not rely on labels like “willful misconduct” or
“malfeasance.” Police misconduct was certainly a reason to require “true independence,”
but the Majority mistakenly reads Henderson to announce that misconduct is the only
condition triggering the higher Article I, Section 8 analytical framework.
[J-83-2019] [MO: Dougherty, J.] - 22
Henderson denounced the Melendez prophylactic per se rule of always requiring “true
independence” by observing that “the experience with broadly stated prophylactic rules
often has been that they cannot be sustained on their original terms.” Id. at 803. It is
hardly logical, though, to interpret a criticism of a prophylactic rule inuring to the detriment
of the Commonwealth as creating a per se rule that always operates to the
Commonwealth’s benefit. Cf. Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014)
(Saylor, J., concurring) (observing the “inconsistency in the courts' rejection of bright-line
rules restraining law enforcement as a means of protecting individual rights, while
simultaneously embracing such rules when they facilitate law enforcement,” and arguing
for “some clear and appropriate boundaries operating in both directions”) (footnote
omitted). I fail to see why Henderson should be read to replace one per se rule with
another, especially where the substituted prophylactic rule operates to the benefit of law
enforcement at the cost of individual privacy rights, which is precisely the type of
balancing that Article I, Section 8 rejects. Commonwealth v. Edmunds, 586 A.2d 887(Pa. 1991) (“The history of Article I, Section 8 . . . indicates that the purpose underlying
the exclusionary rule in this Commonwealth is quite distinct from the purpose underlying
the exclusionary rule under the 4th Amendment[.]”); Mason, 637 A.2d at 257 n.3
(“[F]ederal courts place less importance than we do on the right of privacy. Therefore,
they balance the interests differently and reach a different conclusion as to the relative
importance of privacy as against securing criminal convictions.”); Commonwealth v.
Brown, 996 A.2d 473, 476 (Pa. 2010) (“Article I, § 8 of the Pennsylvania Constitution . . .
generally provides greater protection than that provided by the Fourth Amendment,
because the core of its exclusionary rule is grounded in the protection of privacy while the
[J-83-2019] [MO: Dougherty, J.] - 23
federal exclusionary rule is grounded in deterring police misconduct.”) (quotation marks
and citation omitted); Commonwealth v. Britton, 229 A.3d 590, 611 n.8 (Pa. 2020) (Wecht,
J., concurring) (explaining that “we have reaffirmed that privacy, rather than deterrence,
is the primary reason for our exclusionary rule”) (collecting cases).
I add that in other circumstances in which this Court found it preferable to adopt a
federal approach across-the-board, we made our intentions in that regard explicit. See
Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014) (OAJC) (“Therefore, we hold that,
in this Commonwealth, the law governing warrantless searches of motor vehicles is
coextensive with federal law under the Fourth Amendment.”). Henderson contains no
similar pronouncement that Murray always applies in all circumstances other than willful
misconduct or malfeasance. In fact, the Henderson Court indicated that the particular
factual circumstances mattered a great deal:
In the present circumstances, we are unwilling to enforce a
“true independence” rule in the absence of police misconduct
and on pain of the Commonwealth being forever barred from
obtaining non-evanescent evidence connecting Appellant
with his crimes. In answer to the specific question presented,
we hold that suppression is not required on account of
Detective Evans' status as a member of the same police
department as Detective Johnson. Rather, in light of the
factual circumstances before the Court in both Melendez and
Mason, we deem it appropriate to limit the independent police
team requirement to situations in which the rule prevents
police from exploiting the fruits of their own willful misconduct.
Where such malfeasance is not present, we agree with the
superior Court that the Murray standard strikes the
appropriate balance between privacy and law enforcement.
Ultimately, we believe the “twin aims” of Article I, Section 8—
namely, the safeguarding of privacy and enforcement of the
probable-cause requirement—may be vindicated best, and
most stably, by taking a more conservative approach to the
departure this Court has taken from the established Fourth
Amendment jurisprudence.
Id. at 804–05 (footnote and citation omitted).
[J-83-2019] [MO: Dougherty, J.] - 24
“In the present circumstances” suggests that the holding is not as broad as
indicated by the later language. Clearly, the pronouncement “we deem it appropriate to
limit the independent police team requirement to situations in which the rule prevents
police from exploiting the fruits of their own willful misconduct,” is more expansive than
the limitation suggested by “the present circumstances.” But for all the foregoing reasons
I hesitate to read such language as embracing the expansive rule discerned by the
Majority, particularly given the fact that its interpretation of Henderson adopts, in direct
tension with this Court’s Article I, Section 8 jurisprudence, the federal balancing of privacy
rights against the societal interest in securing convictions except in extreme
circumstances. We should not be so quick to read the opinion so expansively. See
Commonwealth v. Resto, 179 A.3d 18, 22 n.3 (Pa. 2018) (“Judicial opinions are frequently
drafted in haste, with imperfect foresight, and without due regard for the possibility that
words or phrases or sentences may be taken out of context and treated as doctrines. . . .
No court . . . is obliged to treat a dictum of another court (or, for that matter, its own dicta)
as binding precedent.”) (quoting Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478,
490 (Pa. 2009)).
Finally, Mason and Melendez themselves rested on the discrete facts of the cases
and not on generic classifications like “willful misconduct” or “malfeasance.” For instance,
in Mason the Court was troubled by the use of a battering ram to enter a home. In
Melendez, we determined that “Melendez was not engaged in any activity at the time she
was stopped which would cause a person of reasonable caution to believe that she was
then engaged in criminal conduct,” 676 A.2d at 228, and we further found that her consent
to go back and search the apartment was invalid. “Government agents may not enter
[J-83-2019] [MO: Dougherty, J.] - 25
private dwellings through the use of battering rams as in Mason, or by effecting illegal
stops and seizures as in this case. . . .”. Id. at 231. Additionally, in terms of incentives
and deterrence, whether the officers were already in the process of obtaining a warrant
was a relevant factor. Mason, 637 A.2d at 257 n.2 (Cappy, J., concurring) (“As the officers
in the case sub judice sent for the warrant prior to their initial illegal entry of the house,
there was no risk of a ‘search first, pursue warrant later’ mentality”); Murray, 487 U.S. at
549 (Marshall, J., dissenting) (“The warrant was obtained immediately after the illegal
search, and no effort was made to obtain a warrant prior to the discovery of the marijuana
during the illegal search.”). The Majority’s extension of Henderson strips the ability of a
reviewing court to weigh the factual circumstances. “The proper scope of the independent
source exception, and guidelines for its application, cannot be divined in a factual
vacuum; instead, they must be informed by the nature of the constitutional violation and
the deterrent effect of exclusion in particular circumstances.” Murray, 487 U.S. at 545(Marshall, J., dissenting). Cf. Davis v. United States, 564 U.S. 229, 254 (2011) (“The
Court's ‘good faith’ exception (unlike, say, inevitable discovery, a remedial doctrine that
applies only upon occasion) creates ‘a categorical bar to obtaining redress’ in every case
pending when a precedent is overturned.”) (internal citation omitted). Applying the
Independent Source Doctrine should be a fact-bound inquiry and is poorly served by the
bright-line rule adopted and applied by the Majority today.
Indeed, this case demonstrates the danger in reflexively applying the federal
exclusionary rule’s purpose without any consideration of the underlying privacy right at
stake. Unlike Henderson this case involves a pure Article I, Section 8 claim because the
Fourth Amendment does not recognize the relevant privacy interest that was violated by
[J-83-2019] [MO: Dougherty, J.] - 26
the illegal wiretap order. Curiously, then, the Mason/Melendez rule, and its concomitant
application of Pennsylvania’s departure from the high Court regarding the exclusionary
rule, will not apply in the arena where its application is needed the most. Moreover,
applying Henderson under these circumstances would severely diminish the force of
Edmunds, which refused to adopt the “good faith” exception to the exclusionary rule under
Article I, Section 8.10 That issue is present here insofar as there is little doubt that the
officers acted with an objectively reasonable belief that the judicial court order was lawful.
If the good faith exception applied in this Commonwealth there is little chance that Katona
would prevail. But it does not apply. Consider the following argument in favor of affirming
the Superior Court:
It should also be remembered that there is a social cost to
employment of the exclusionary rule, which is intended to
deter police misconduct. Application of the doctrine results in
the inadmissibility of certain evidence, and the potential
release of the guilty. Thus, the fruit of the poisonous tree
doctrine, as an aspect of judicial "supervision" of police
practices, has always necessitated a delicate balance. Here,
the police sought and were granted a court order authorizing
an in -home recording, meaning they had sought and were
operating under what they believed to be valid authorization
for their activities. The observed or anticipated pattern of
rogue and/or bad faith conduct on the part of the police that
this Court was clearly so intent on stamping out in Melendez
through its restrictive interpretation of the independent source
doctrine is therefore not present here. The appropriate
balance would be struck by holding that the informant's legal
10 The Superior Court has held that precise pleading is outcome determinative when
Article I, Section 8 offers a remedy that the Fourth Amendment does not. Compare
Commonwealth v. Carper, 172 A.3d 613, 618 (Pa. Super. 2017) (declining to apply good
faith exception to warrantless blood draw conducted before decision in Birchfield v. North
Dakota, ––– U.S. ––––, 136 S.Ct. 2160 (2016) where Article I, Section 8 claim is raised)
with Commonwealth v. Updike, 172 A.3d 621, 623 (Pa. Super. 2017) (applying good faith
exception under federal law to permit evidence of blood draw conducted before Birchfield;
claim under Pennsylvania Constitution waived). In this case, Article I, Section 8 was
always at issue because this case involved an application of Brion.
[J-83-2019] [MO: Dougherty, J.] - 27
and credible recounting of what he saw and heard inside
Katona's home, combined with the other evidence spelled out
in the search warrant affidavit of probable cause, provided a
proper, Constitutional basis for the issuance of the search
warrant, regardless of whether any consensual audio
recordings were made inside the home or not. To hold
otherwise would confer undue benefit on a perpetrator of
illegal activities and impose an unfair penalty on law
enforcement and, by extension, society.
Commonwealth’s Brief at 22-23 (citation omitted).
A clearer invitation to simply ignore Edmunds is difficult to imagine. And the
Majority is regrettably enticed by this kind of thinking. See Majority Op. at 26 (“[I]t is . . .
hard to see precisely how the police engaged in any misconduct whatsoever when they
were operating pursuant to a court order; if anything, as in Henderson, the ‘error’ here
was ‘judicial”…). That is just an alternative way of saying that the officers acted in
objective reliance on the court order and should not be punished for their mistake. The
Commonwealth violated Katona’s Article I, Section 8 privacy rights by unlawfully
recording conversations in his home. Exclusion of the evidence is the price that must be
paid to protect those privacy rights.11
I would therefore apply the “true independence” requirement of Melendez to give
life to Brion’s recognition that “[i]f nowhere else, an individual must feel secure in his ability
to hold a private conversation within the four walls of his home. For the right to privacy
to mean anything, it must guarantee privacy to an individual in his own home.” Brion, 652
11 There is also a deterrent effect if the evidence is suppressed, as authorities would
know in the future that this Court will require suppression if authorities lose their roll of the
dice when they violate Article I, Section 8 rights. As discussed infra, the plain text of the
Wiretap Act establishes that only one in-home recording was authorized. The fact that
the authorities did not have to violate the Wiretap Act is why the evidence should be
suppressed.
[J-83-2019] [MO: Dougherty, J.] - 28
A.2d at 289. The evidence must be suppressed to protect those rights. “Although the
exclusionary rule may place a duty of thoroughness and care upon police officers and
district justices in this Commonwealth, in order to safeguard the rights of citizens under
Article I, Section 8, that is a small price to pay, we believe, for a democracy.” Edmunds,
586 A.2d at 906.
IV.
In light of its disposition, the Majority declines to address whether the order
authorizing unlimited in-home intercepts for thirty days was illegal under the Wiretap Act.
A predicate of the foregoing discussion is that the order was, in fact, illegal. I therefore
set forth my analysis of this issue.
A. Legality of the Duration of Wiretap Order
Issued Pursuant to 18 Pa.C.S. § 5704(2)(iv)
The Parties’ Arguments
Katona argues that the Wiretap Act does not permit an order, issued pursuant to
Section 5704(2)(iv), to authorize the interception of multiple communications over a
period of thirty days. Katona’s Brief at 44-45.12 All references in Section 5704(2)(iv) are
to the singular “interception,” which, Katona argues, indicates that our General Assembly
never contemplated “anything more than a single conversation being intercepted” by a
Section 5704(2)(iv) order. Id. at 45. Further, because orders issued pursuant to Section
5704(2)(iv) may not issue absent a probable cause determination by a neutral judicial
12 Katona also challenges the Order as violative of his Article I, Section 8 rights. See
Katona’s Brief at 43. This Court will not reach a question of constitutional dimension if
the case can be resolved on a non-constitutional basis. Commonwealth v. Foster, 214
A.3d 1240, 1247 n.8 (Pa. 2019). Because I would resolve this issue based upon statutory
interpretation, I do not address the constitutional aspect of Katona’s argument.
[J-83-2019] [MO: Dougherty, J.] - 29
authority, Katona analogizes such an order to search warrants. He contends that just as
a search warrant may be executed one time, a Section 5704(2)(iv) order permits the
interception of one conversation. Id. at 35, 39, 42. Katona allows that the Commonwealth
may have “confused” the process to obtain a Section 5704(2)(iv) order with the process
to obtain a non-consensual wiretap order, as non-consensual wiretap orders are
permitted, by statute, to be effective for a thirty-day duration. Id. at 34-35.
The Commonwealth responds that there is no specific statutory requirement that
the order be renewed for separate conversations. It contends that “[t]he suspect’s
interests are suitably protected by the requirement [of] a finding of probable cause, and
the issuing judge retains the power to limit the timeframe for interception as he or she
sees fit.” Commonwealth’s Brief at 26. The Commonwealth contends that because here,
the affidavit of probable cause established a “long-running and then-ongoing pattern of
joint criminal activity[,]” the totality of the circumstances suggest that the incriminating
conversations would continue over time. Id. The fact that Katona “fronted” the drugs to
the CI and expected payment in intervals meant “by definition’ that their criminal
interactions would continue. Id. In the absence of an express statutory restriction, the
Commonwealth suggests that we should interpret the statute to allow courts the discretion
to determine the duration of a Section 5704(2)(iv) order. Id.
Analysis
The interpretation of a statute is a question of law, over which our standard of
review is de novo and our scope of review is plenary. Whitmoyer v. Workers' Comp.
Appeal Bd. (Mountain Country Meats), 186 A.3d 947, 954 (Pa. 2018). Our analysis is
guided by the Statutory Construction Act, which instructs that our over-arching goal is to
[J-83-2019] [MO: Dougherty, J.] - 30
discern and give effect to the General Assembly’s intent. 1 Pa.C.S. § 1921(a). In pursuit
of this goal, we must attempt to give meaning to every word and provision of the statute.
Whitmoyer, 186 A.3d at 954. In so doing, we construe all provisions with reference to
each other and do not examine the language at issue in isolation. Commonwealth v.
Foster, 214 A.3d 1240, 1247-48 (Pa. 2019). This Court has long recognized that as a
matter of statutory interpretation, “although one is admonished to listen attentively to what
a statute says; one must also listen attentively to what it does not say.” See, e.g., Kmonk-
Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001). Furthermore,
because the Wiretap Act emphasizes the protection of constitutionally-recognized privacy
rights, its provisions are to be strictly construed. Commonwealth v. Spangler, 809 A.2d
234, 237 (Pa. 2002).
The purpose of the Wiretap Act is to protect the privacy rights of our citizens while
also providing an investigative tool for law enforcement authorities. Karoly v. Mancuso,
65 A.3d 301, 303 (Pa. 2013). Subchapter B of the Wiretap Act governs the interception
of wire, electronic, and oral communications.13 As enacted in 1978, the subchapter began
with Section 5703, which made it a third-degree felony if a person, inter alia, “intentionally
intercepts, endeavors to intercept, or procures any other person to intercept or endeavor
to intercept any wire, electronic or oral communication.” 18 Pa.C.S. § 5703(1). Section
5704 then set forth a large number of exceptions (now eighteen) to the general prohibition
in Section 5703. As initially enacted, none of the exceptions in Section 5704 required an
order of court to conduct interceptions. Of relevance here, the second exception listed in
13 Other subchapters address the use of other modes of surveillance, such as mobile
tracking devises, pen registers, trap and trace devices, and telecommunication
identification interception devices. See 18 Pa.C.S. §§ 5741-5775.
[J-83-2019] [MO: Dougherty, J.] - 31
5704 originally provided that an interception could take place if one of the parties to a
communication consented to the interception (sometimes referred to as “consensual
interceptions”):
(2) Any investigative or law enforcement officer or any person acting at the
direction or request of an investigative or law enforcement officer to
intercept a wire, electronic or oral communication involving suspected
criminal activities, including, but not limited to, the crimes enumerated in
section 5708 (relating to order authorizing interception of wire, electronic or
oral communications), where:
***
(ii) one of the parties to the communication has given prior
consent to such interception. However, no interception under
this paragraph shall be made unless the Attorney General or
a deputy attorney general designated in writing by the
Attorney General, or the district attorney, or an assistant
district attorney designated in writing by the district attorney,
of the county wherein the interception is to be initiated, has
reviewed the facts and is satisfied that the consent is voluntary
and has given prior approval for the interception; however,
such interception shall be subject to the recording and record
keeping requirements of section 5714(a) (relating to recording
of intercepted communications) and that the Attorney
General, deputy attorney general, district attorney or assistant
district attorney authorizing the interception shall be the
custodian of recorded evidence obtained therefrom;
18 Pa.C.S § 5704(2)(ii).
The 1978 enactment also included Section 5708, which permits the interception of
communications without consent of any party to the communication (“nonconsensual
interceptions”). Section 5708 authorizes the Attorney General or a district attorney, or
their designees, to “make written application to any Superior Court judge for an order
authorizing the interception of a wire, electronic or oral communication” to “provide
evidence aiding in the apprehension of the perpetrator or perpetrators of any of the
following offenses.” 18 Pa.C.S. § 5708 (emphasis added). Section 5708 then lists a
[J-83-2019] [MO: Dougherty, J.] - 32
substantial number of offenses under the Crimes Code, the Tax Reform Code of 1971,
the Controlled Substance, Drug, Device, and Cosmetic Act, and the Motor Vehicle Chop
Shop and Illegally Obtained and Altered Property Act.
To obtain a court order for a nonconsensual intercept under Section 5708, the
1978 version of Subchapter B also included Sections 5709 (“Application for order”),14
14 Section 5709 provides in relevant part as follows:
Each application for an order of authorization to intercept a wire, electronic
or oral communication shall be made in writing upon the personal oath or
affirmation of the Attorney General or a district attorney of the county
wherein the suspected criminal activity has been, is or is about to occur and
shall contain all of the following:
(1) A statement of the authority of the applicant to make such
application.
(2) A statement of the identity and qualifications of the
investigative or law enforcement officers or agency for whom
the authority to intercept a wire, electronic or oral
communication is sought.
(3) A sworn statement by the investigative or law enforcement
officer who has knowledge of relevant information justifying
the application, which shall include:
(i) The identity of the particular person, if known,
committing the offense and whose
communications are to be intercepted.
(ii) The details as to the particular offense that
has been, is being, or is about to be committed.
(iii) The particular type of communication to be
intercepted.
(iv) A showing that there is probable cause to
believe that such communication will be
communicated on the wire communication
facility involved or at the particular place where
the oral communication is to be intercepted.
[J-83-2019] [MO: Dougherty, J.] - 33
(v) The character and location of the
particular wire communication facility
involved or the particular place where the
oral communication is to be intercepted.
(vi) A statement of the period of time for which
the interception is required to be maintained,
and, if the character of the investigation is such
that the authorization for interception should not
automatically terminate when the described
type of communication has been first obtained,
a particular statement of facts establishing
probable cause to believe that additional
communications of the same type will occur
thereafter.
(vii) A particular statement of facts showing that
other normal investigative procedures with
respect to the offense have been tried and have
failed, or reasonably appear to be unlikely to
succeed if tried or are too dangerous to employ.
18 Pa.C.S. § 5709.
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5710 (“Grounds for entry of order”),15 and 5712 (“Issuance of order”).16 These provisions
contain the mechanisms and requirements necessary to obtain a wiretap order.
15 Section 5710 provides in relevant part as follows:
(a) Application.--Upon consideration of an application, the judge may enter
an ex parte order, as requested or as modified, authorizing the interception
of wire, electronic or oral communications anywhere within the
Commonwealth, if the judge determines on the basis of the facts submitted
by the applicant that there is probable cause for belief that all the following
conditions exist:
(1) the person whose communications are to be intercepted is
committing, has or had committed or is about to commit an
offense as provided in section 5708 (relating to order
authorizing interception of wire, electronic or oral
communications);
(2) particular communications concerning such offense may
be obtained through such interception;
(3) normal investigative procedures with respect to such
offense have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or to be too dangerous to
employ;
(4) the facility from which, or the place where, the wire,
electronic or oral communications are to be intercepted, is,
has been, or is about to be used, in connection with the
commission of such offense, or is leased to, listed in the name
of, or commonly used by, such person;
(5) the investigative or law enforcement officers or agency to
be authorized to intercept the wire, electronic or oral
communications are qualified by training and experience to
execute the interception sought, and are certified under
section 5724 (relating to training); and
(6) in the case of an application, other than a renewal or
extension, for an order to intercept a communication of a
person or on a facility which was the subject of a previous
order authorizing interception, the application is based upon
new evidence or information different from and in addition to
the evidence or information offered to support the prior order,
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regardless of whether such evidence was derived from prior
interceptions or from other sources.
18 Pa.C.S. § 5710.
16 Section 5712 provides in relevant part as follows:
(a) Authorizing orders.--An order authorizing the interception of any wire,
electronic or oral communication shall state the following:
(1) The identity of the investigative or law enforcement officers
or agency to whom the authority to intercept wire, electronic
or oral communications is given and the name and official
identity of the person who made the application.
(2) The identity of, or a particular description of, the person, if
known, whose communications are to be intercepted.
(3) The character and location of the particular communication
facilities as to which, or the particular place of the
communication as to which, authority to intercept is granted.
(4) A particular description of the type of the communication
to be intercepted and a statement of the particular offense to
which it relates.
(5) The period of time during which such interception is
authorized, including a statement as to whether or not the
interception shall automatically terminate when the described
communication has been first obtained.
(b) Time limits.--No order entered under this section shall authorize the
interception of any wire, electronic or oral communication for a period of
time in excess of that necessary under the circumstances. Every order
entered under this section shall require that such interception begin and
terminate as soon as practicable and be conducted in such a manner as to
minimize or eliminate the interception of such communications not
otherwise subject to interception under this chapter by making reasonable
efforts, whenever possible, to reduce the hours of interception authorized
by said order. In the event the intercepted communication is in a code or
foreign language and an expert in that code or foreign language is not
reasonably available during the interception period, minimization may be
accomplished as soon as practicable after such interception. No order
entered under this section shall authorize the interception of wire, electronic
or oral communications for any period exceeding 30 days. The 30-day
period begins on the day on which the investigative or law enforcement
officers or agency first begins to conduct an interception under the order, or
[J-83-2019] [MO: Dougherty, J.] - 36
In 1994, this Court issued its decision in Brion, which held that the exception for
consensual interceptions set forth in the second exception in 5704 was unconstitutional
if the interception took place in the home of the non-consenting participant, absent prior
determination of probable cause by a neutral, judicial authority. Brion, 652 A.2d at 289.
In Brion, the Court indicated that this probable cause determination could be obtained by
the same methods for obtaining a wiretap order under Section 5708 and the sections
following thereafter (including that the determination be made by a judge of the Superior
Court). Id. Rather than following this recommendation, the General Assembly enacted
Section 5704(2)(iv), which provides that in addition to the requirements for a consensual
interception under Section 5704(2)(ii) quoted above, an in-home consensual interception
requires an order from the president judge of a court of common pleas based upon an
affidavit by an investigative or law enforcement officer that establishes probable cause
for the issuance of such an order. It provides:
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
ten days after the order is entered, whichever is earlier. Extensions or
renewals of such an order may be granted for additional periods of not more
than 30 days each. No extension or renewal shall be granted unless an
application for it is made in accordance with this section, and the judge
makes the findings required by section 5710 (relating to grounds for entry
of order).
(c) Responsibility.--The order shall require the Attorney General or the
district attorney, or their designees, to be responsible for the supervision of
the interception.
18 Pa.C.S. § 5712.
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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).17
Because Section 5704(2)(iv) requires an “order”, and Sections 5709, 5710, and
5712 govern the issuance of orders for interceptions, we are faced with the question of
whether the requirements contained therein apply to orders sought under both Sections
5704(2)(iv) and 5708, or conversely, only for nonconsensual order pursuant to Section
5708. This question is significant for present purposes because Sections 5709(3)(vi) and
5712(b) permit a court to issue a wiretap order to extend up to thirty days (with extensions
upon application).
I begin by reiterating that Sections 5709, 5710, and 5712 follow immediately after
Section 5708 and all four sections were contained in the initial Wiretap Act enacted in
1974. In contrast, Section 5704(2)(iv) was enacted decades later, in response to our
1994 Brion decision. Moreover, and more importantly, the requirements set forth in
Sections 5709, 5710 and 5712 are fundamentally inconsistent with Section 5704(2)(iv).
For example, Section 5709 requires that an application for a wiretap order include “[a]
showing that there is probable cause to believe that such communication [related to
crimes enumerated in Section 5708] will be communicated” at the location where the
17 Section 5404(2)(iv) is the only subsection of Section 5704(2) that requires the
procurement of an order of court.
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interception is to take place. 18 Pa.C.S. § 5709(3)(iv). Likewise, Section 5710 provides
that an order may be entered where a judge finds probable cause that, inter alia, the
target of the interception has committed, or is about to commit, an offense as provided in
[S]ection 5708[.]” 18 Pa.C.S. § 5710(a)(1). However, Section 5704(2)(iv) does not limit
the broad grant of authority for consensual interception of communications by reference
to the specific offenses listed in Section 5708. See 18 Pa.C.S. § 5704(2)(ii) (requiring
that a consensual interception must involve “suspected criminal activities, including, but
not limited to, the crimes enumerated in [S]ection 5708.”) (emphasis added),
Likewise, pursuant to Section 5709, an order must be made “upon the personal
oath or affirmation of the Attorney General or a district attorney of the county wherein
the suspected criminal activity has been, is or is about to occur.” Section 5704(2)(iv), by
comparison, provides that an order authorizing a consensual in-home intercept may issue
based only upon an affidavit by an investigative or law enforcement officer
establishing probable cause of the suspected criminal activity. 18 Pa.C.S. § 5704(2)(iv).
These requirements are inconsistent with each other and in conflict.
Section 5709 requires that the application for an order contain “a showing that
there is probable cause to believe that the communication will be communicated on the
wire communication facility or at the particular place where the oral communication is to
be intercepted,” 18 Pa.C.S. § 5709(3)(iv), and Section 5710 requires, for entry of an order,
that the application must have shown that there is probable cause that “the person whose
communications are to be intercepted . . . has or had committed . . . an offense provided
in [S]ection 5708.” 18 Pa.C.S. § 5710(a)(1). This requirement to establish probable
cause makes sense in connection with a Section 5708 order, as that section standing
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alone does not mention probable cause at all. By contrast, the requirement of probable
cause is specifically referenced in 5704(2)(iv) – “the interception shall not be conducted
until an order is first obtained from the president judge . . . based upon an affidavit of
probable cause by an investigative or law enforcement officer that establishes probable
cause for the issuance of such an order.” 18 Pa.C.S. § 5704(2)(iv) (emphasis added).
All of these considerations drive my conclusion that Section 5704(2)(iv) is self-
contained and is not governed by Sections 5709, 5710, and 5712. Section 5704(2)(iv)
addresses a particular variation of consensual interception (in home), and all relevant
requirements for that variety of interception are set forth within that section.
As I have determined that the provisions governing nonconsensual interception
orders do not apply to Section 5704(2)(iv) orders, I would further conclude that a Section
5704(2)(iv) order may not be issued for a duration of thirty days. Unlike Section 5712(b)
governing a Section 5708 order, Section 5704(2)(iv) does not authorize the issuance of
an order for up to thirty days. 18 Pa.C.S. § 5712(b). A strict interpretation of this
language, which we are required to perform, Spangler, 809 A.2d at 237, leads to the
conclusion that a Section 5704(2)(iv) order is valid only for specific episodes.18 If the
18 Justice Mundy’s Concurring Opinion argues that it conflicts with the statutory
exceptions to require law enforcement to obtain a separate Section 5704(2)(iv) order for
each entry into a private home for a consensual intercept. Concurring Op. at 3 (Mundy,
J.).
Justice Mundy does not offer any detailed statutory interpretative analysis of the various
provisions of the Wiretap Act in support of this contention, including no discussion of the
substantial differences between Section 5704(2)(ii) and 5712(a) orders that preclude the
“borrowing” of the Section 5712(b) time limits provision for application in the Section
5704(2)(ii) context. The General Assembly’s clear intention in setting for the different
requirements for obtaining a Section 5704(2)(ii) order, including the decision not to permit
such orders to remain in place over an extended period of time, was to protect the
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General Assembly wanted to authorize the duration of in-home interceptions to parallel
Section 5712(b), it could have so stated when enacting Section 5704(2)(iv) by including
the timeframe in the otherwise self-contained enactment.19
The affidavit of probable cause in this case specifically addressed a meeting
between Katona and the CI that was to take place at eight in the evening on May 16,
2011. Thus, the order here was valid in so far as it authorized the interception of that
specific episode. All subsequent interceptions were therefore unauthorized and illegal.
When paired with my argument that the Independent Source Doctrine does not apply
under these circumstances, I would conclude that the Superior Court must be reversed.
I therefore respectfully dissent.
Justice Wecht joins this dissenting opinion.
constitutional rights of our citizens in their homes, not to minimize any “burdensome”
and/or “impractical” requirements for law enforcement.
Justice Mundy’s “plain language” reading of the relevant statutes is unconvincing, as it is
based upon nothing more than the recognition that two words, “communications” and
“contents,” are stated in the plural on one or more occasions. Concurring Op. at 3 (Mundy,
J.). From these plural words, Justice Mundy concludes that a single Section 5704(2)(ii)
order may be used to intercept multiple exchanges over a thirty-day period, rather than a
single episode. Id. A careful review of the statutory language at issue here, however,
demonstrates that the singular and plural forms of these terms depends solely on the
manner in which they are employed. Both Sections 5712(a) and (b), for example, which
together permit orders issued thereunder to remain effective for up to thirty days, uses
the term “communication” in both its singular and plural forms interchangeably. Moreover,
Justice Mundy offers no support for her contention that “communications” (plural) and/or
“contents” refer to multiple exchanges. A single conversation may include multiple
communications, as each utterance by the members of the conversation may fairly be
described as a separate “communication.” Similarly, there may be multiple “contents”
expressed in a single communication, depending, of course, on the nature and complexity
of that communication.
19 I note again that the General Assembly did not follow this Court’s invitation to rely on
the non-consensual wiretap provisions in the Wiretap Act.
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