Commonwealth v. Katona

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2018 PA Super 166COMMONWEALTH 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.
OPINION BY BOWES, J.: FILED JUNE 14, 2018
Dennis Andrew Katona appeals from the judgment of sentence of forty
to eighty months incarceration, imposed following his stipulated non-jury
trial convictions for two counts of possession with intent to deliver and two
counts of possession of a controlled substance. Appellant attacks the
constitutionality of the search warrant, which led to the recovery of drugs,
currency, and other items, as well as the sufficiency of the evidence. We
affirm.
The facts germane to Appellant’s issues largely concern the affidavit of
probable cause for the anticipatory search warrant, which was executed at
Appellant’s residence on June 29, 2011. That application set forth the
following. Beginning in 2009, the Pennsylvania State Police (“PSP”) utilized
a confidential informant (“CI”) who was a member of the Pagan Motorcycle
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Club, and who had previously provided reliable information. On April 28,
2011, the CI informed the lead investigator, Pennsylvania State Police
Trooper Matthew Baumgard, that Appellant, whom the CI identified as a
member of the Pagan Motorcycle Club, unexpectedly arrived at his home and
offered to sell him three one-half ounce packages of cocaine for $650 per
package. The CI declined, stating that he had just purchased cocaine from
“Tony” and was dissatisfied with the quality. The CI contacted the
authorities to report this development.
On May 16, 2011, the CI informed Trooper Baumgard that Appellant
had invited him to Appellant’s home. Upon arrival, Appellant showed the CI
one-half pounds of cocaine. Appellant said he obtained the package due to
the CI’s dissatisfaction with Tony’s product, and offered him the entire
package in exchange for $5,000 paid over time. The CI agreed and took the
cocaine, which he then turned over to the authorities.
Based on this information, the authorities applied for an order
authorizing a consensual wiretap of conversations occurring inside
Appellant’s residence pursuant to 18 Pa.C.S. § 5704(2)(iv), with the CI
agreeing to wear a recording device.1 The order was granted later that day,
and, significant to Appellant’s challenges on appeal, authorized continuous
____________________________________________
1 The statutory text is set forth in the writing, infra.
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interception of all in-home conversations for a period of thirty days. The
Commonwealth also obtained an extension of the order after the thirty days
expired.
Thereafter, the CI made several visits to Appellant’s home and
recorded the ensuing conversations. On May 16, 20, 25, and 31, 2011, the
CI went to Appellant’s home and delivered cash provided by the authorities
to Appellant in installments. Officers surveilled Appellant’s home during
each meeting, and met with the CI afterwards to discuss what occurred and
retrieve the recordings.
Next, on June 9, 2011, Appellant gave the CI two more ounces of
cocaine in exchange for his agreement to deliver payment over time.
Additionally, Appellant offered to sell the CI methamphetamine for $1,300
per ounce. Later that evening, Appellant arrived at the CI’s doorstep and
delivered the methamphetamine.
On June 13, 2011, the CI paid cash to Appellant for the cocaine that
was supplied on June 9, 2011. Additionally, on June 15, 2011, Appellant
supplied more cocaine, which the CI then paid for on June 20, 2011.2
Similarly, on June 22, 2011, Appellant gave the CI more cocaine at
Appellant’s residence.
____________________________________________
2 The June 15, 2011 delivery of cocaine occurred in a Home Depot parking
lot instead of Appellant’s residence.
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On June 27, 2011, the CI visited Appellant’s home and paid for the
cocaine received five days prior. During this meeting, Appellant indicated
that he would once again have a quantity of cocaine and methamphetamine
available for pickup on June 29, 2011. On the basis of the foregoing
information, Trooper Baumgard requested an anticipatory search warrant for
Appellant’s home, which was to be executed upon Appellant’s contact with
the CI on the 29th.
On June 29, 2011, Appellant called the CI and informed him that he
was at home. Trooper Baumgard authorized the execution of the search
warrant, which yielded the following items from the master bedroom: a
United American bank bag containing drugs, a briefcase containing drugs in
a separate bank bag, a digital scale, and a black accordion file next to the
bed containing documents and mail establishing that Appellant and his wife
lived at the home. A total of 84.2 grams of cocaine was seized in addition to
99.64 grams of methamphetamine. The parties stipulated to the recovery of
these items following the search warrant, as well as to expert testimony
that, based on all the circumstances, the drugs were possessed with the
intent to deliver. Appellant was found guilty of all charges and received the
aforementioned sentence. Appellant presents the following issues for our
review.
I. Whether the June 29, 2011 search warrant for Appellant's
home was rendered invalid because it relied almost exclusively
on an order or search warrant as described in Commonwealth
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v. Brion, 539 Pa. 256, 652 A.2d 287 (1994) and as codified in
18 Pa.C.S. § 5704(2)(iv) which order or warrant allowed for,
inter alia, unlimited intercepts over a period of thirty days, as
opposed to allowing only a single intercept?
II. Whether the June 29, 2011 search warrant was invalid
because it failed to meet the specific requirements of an
anticipatory warrant?
III. Whether the Commonwealth presented sufficient evidence of
possession to sustain the conviction against appellant?
Appellant’s brief at 3.
We address Appellant’s third issue first, since a successful sufficiency
of the evidence charge requires discharge. Commonwealth v. Toritto, 67
A.3d 29 (Pa.Super. 2013). Our standard of review is well-settled. Whether
the evidence was sufficient to sustain the charge presents a question of law.
Our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Walls, 144 A.3d 926 (Pa.Super. 2016). In conducting
our inquiry, we
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).
Herein, Appellant’s sufficiency challenge is limited to whether the
Commonwealth presented sufficient facts to sustain a finding that he
possessed the drugs beyond a reasonable doubt. Appellant argues that the
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evidence only establishes that he was present in the same residence where
the drugs were found. It is true that mere presence cannot sustain a finding
of possession. However, the Commonwealth is not required to show actual
physical possession of the drugs. Constructive possession is sufficient,
which
is an inference arising from a set of facts that possession of the
contraband was more likely than not. We have
defined constructive possession as “conscious dominion.” We
subsequently defined “conscious dominion” as the power to
control the contraband and the intent to exercise that control. To
aid application, we have held that constructive possession may
be established by the totality of the circumstances.
Commonwealth v. Muniz, 5 A.3d 345, 348–49 (Pa.Super. 2010) (citation
omitted); Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.Super. 2013)
(“In order to prove that a defendant had constructive possession of a
prohibited item, the Commonwealth must establish that the defendant had
both the ability to consciously exercise control over it as well as the intent to
exercise such control.”). The intent to exercise control over a piece of
contraband can be proven by circumstantial evidence and all the
circumstances in question. Muniz, supra.
Appellant argues that the Commonwealth could not establish
possession because he was merely present and “there is no evidence
regarding how long [Appellant] had been at the residence prior to law
enforcement’s arrival.” Appellant’s brief at 54 (emphasis in original). We do
not find that this fact precludes a finding of possession. It would be rather
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remarkable to conclude that an unknown party secreted, without Appellant’s
knowledge, approximately 200 grams worth of drugs in his master bedroom.
Additionally, Appellant highlights that his wife was present, suggesting that
she may have possessed the drugs without Appellant’s knowledge.
However, our law holds that two persons may constructively possess the
same item. See Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983)
(constructive possession in one defendant where both husband and wife had
equal access to an area where the contraband was found); Commonwealth
v. Valette, 613 A.2d 548, 550 (Pa. 1992) (“Constructive possession may be
found in one or more actors where the item in issue is in an area
of joint control and equal access.”). We find that, when viewed in the light
most favorable to the Commonwealth, the totality of the circumstances
established that Appellant constructively possessed the drugs.
We now address Appellant’s averment that the search warrant was
defective. “The ultimate issue in a suppression hearing is whether the police
officer affiants had probable cause at the time they applied for a search
warrant.” Commonwealth v. Luton, 672 A.2d 819 (Pa.Super. 1996).
[T]he Commonwealth has the burden of proving that the facts
presented to the magistrate demonstrate probable cause. The
standard for evaluating whether probable cause exists for the
issuance of a search warrant is the “totality of the
circumstances” test as set forth in Illinois v. Gates, 462 U.S.
213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which was adopted
by the Pennsylvania Supreme Court in Commonwealth v.
Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). A
magistrate is to make a “practical, common-sense decision
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whether, given all the circumstances set forth in the affidavit
before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.” The information offered to establish probable
cause must be viewed in a common sense, non-technical manner
and deference must be given to the issuing magistrate. It must
be remembered that probable cause is based on a finding of the
probability of criminal activity, not a prima facie showing of
criminal activity.
Id. at 821-22 (some citations omitted).
Appellant’s primary issue concerns whether the warrant application
could lawfully include the information learned from the in-home
conversations which were recorded by the CI. Appellant challenges the
statutory authorization for the consensual recordings, which Appellant
maintains were necessary to sustain the warrant. “When the . . .
paragraphs which specifically rely upon the illegal in-home intercepts are
redacted from the affidavit, no present probable cause exists[.]”
Appellant’s brief at 33 (emphasis in original).
We agree that if the information gleaned from Appellant’s
conversations with the CI was obtained in violation of Appellant’s
constitutional rights, those portions must be excised from the warrant. See
Commonwealth. v. Gindlesperger, 706 A.2d 1216, 1224 (Pa.Super.
1997), affirmed, 743 A.2d 898 (Pa. 1999) (use of thermal imaging device
was unconstitutional search and therefore that information must be omitted
when examining whether search warrant was valid). Appellant’s challenge
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to the recordings relies on both statutory and constitutional grounds. We
first turn our attention to the Wiretapping and Electronic Surveillance Control
Act (hereinafter “the Act”), 18 Pa.C.S. §§ 5701-5782.
I
The Wiretap Act
The Act prohibits the intentional interception of any oral
communication unless all parties consent to the recording. 18 Pa.C.S. §
5703. The Act sets forth a number of exceptions, including an exception for
consensual interceptions authorized by one party to the conversation,
subject to the following requirements:
It shall not be unlawful and no prior court approval shall be
required under this chapter for:
....
(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:
(i) Deleted.
(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
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the facts and is satisfied that the consent is voluntary and has
given prior approval for the interception[.]
....
(iv) the requirements of this subparagraph are met. 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[.]
18 Pa.C.S. § 5704 (emphasis added).3 Therefore, § 5704(2)(ii) permits the
recording of a conversation when only one party consents, if approved by an
authorized prosecutor. However, when that recording is to take place inside
a home, additional requirements are imposed as established by §
5704(2)(iv); namely, that the president judge of a court of common pleas
must authorize the intercept after probable cause has been established. We
have previously stated that this statutory amendment codified the holding of
Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), discussed in detail
infra. See Commonwealth v. Fetter, 770 A.2d 762, 766 (Pa.Super. 2001)
(“In response to Brion the Legislature amended the Wiretap Act to include §
5704(2)(iv)[.]”).
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3For ease of reference, we refer to the consensual recordings at issue as a
wiretap.
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In contrast, a nonconsensual intercept, i.e. one where all parties to the
conversation are ignorant of monitoring by law enforcement, is not an
exception to the Act and requires approval by the Superior Court of
Pennsylvania. Authorized prosecutors can make application with this Court
“for an order authorizing the interception of a wire, electronic or oral
communication . . . when such interception may provide evidence of the
commission” of certain enumerated offenses. 18 Pa.C.S. § 5708.
Additionally, orders permitting nonconsensual wiretaps pursuant to § 5708
require the Commonwealth to establish, inter alia, 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. Orders granted by this Court are
subject to the timing provisions set forth at 18 Pa.C.S. § 5712:
(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. . . . 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 ten days after the order is
entered, whichever is earlier.
18 Pa.C.S. § 5712 (emphasis added).4
____________________________________________
4 The Act refers to orders obtained under “this section.” In context, the
statute is referring to nonconsensual wiretap orders granted by the Superior
(Footnote Continued Next Page)
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II
The Parties’ Arguments
Appellant acknowledges that as a matter of statutory analysis, §
5704(2)(iv) imposes no time limit on consensual wiretaps. However, he
notes that the statute refers to an interception in the singular, and,
consistent with pronouncements from our Supreme Court, as well as from
the United States Supreme Court, he maintains that the Act therefore
authorizes only one intercept as a matter of both constitutional and statutory
law. “[T]he statute governing in-home consensual intercepts, like the
Supreme Court decision in Brion, intended the warrant/order to be for a
single intercept.” Appellant’s brief at 26 (emphasis added). As such, the
order authorizing the consensual wiretap permitted one recording, i.e., the
first recording.5 Appellant analogizes all recordings after the first to multiple
executions of one search warrant. Consequently, Appellant views each
subsequent recording as an unconstitutional search without prior judicial
approval.
(Footnote Continued) _______________________
Court. With respect to consensual wiretaps, like those at issue herein, those
recordings are deemed to “not be unlawful” and are considered exceptions to
the Act.
5 The trial court determined that the order was valid because it complied
with the statutory mandate, and addressed Appellant’s constitutional
challenge in cursory fashion.
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In supporting their respective positions, the parties’ briefs extensively
discuss Brion and the statutory differences between consensual and
nonconsensual wiretaps. For example, the Commonwealth argues that if the
Act permits a nonconsensual wiretap for thirty days, then it necessarily
follows that a consensual recording is likewise constitutionally permissible for
at least the same length. Moreover, the Commonwealth states that
Appellant’s interpretation places an onerous burden on law enforcement, as
the Commonwealth would have to seek new orders if the target happened to
exit and re-enter his residence while the consenting party was on site.
Appellant responds that the Commonwealth’s argument misses the mark,
since a nonconsensual wiretap order imposes more stringent requirements,
including the need for the Commonwealth to demonstrate that normal
investigative techniques have failed or are too dangerous to employ. In
Appellant’s view, the Commonwealth effectively obtained a § 5708 wiretap
order while sidestepping the requirements applicable to such orders.
Finally, the Commonwealth advances the position that the search
warrant does not rely on the actual recordings, and states that “even if no
recording device had been used in this case at all, the observations of the
Troopers and the information relayed to them by the CI . . . would still have
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established probable cause[.]” Commonwealth’s brief at 12.6 In response,
Appellant counters that “there is no way to ascertain to what extent the
affiant may have relied on what he heard on the illegally obtained and
recorded intercepts[.]” Appellant’s reply brief at 5.
We agree with the Commonwealth with respect to its latter position,
and affirm on that basis. See Commonwealth v. O'Drain, 829 A.2d 316,
322, n.7 (Pa.Super. 2003) (we may affirm if there is any basis on the record
to support the trial court's action, even if we rely on a different basis). In
reaching this conclusion, we find that the parties have largely overlooked a
critical distinction between the voluntary disclosure of information versus the
recording of same. In truth, Appellant seeks to suppress information, not
the recordings. For the reasons that follow, we find that this is not a mere
technical distinction and is outcome determinative. We therefore decline to
reach Appellant’s constitutional argument that the Act permits only one in-
home intercept.
III
Constitutional Protections
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6 The Commonwealth’s argument suggests that the affidavit of probable
cause was sufficient even in the absence of the statements as captured on
tape, whereas we find that we may consider Appellant’s statements. “The
portion of the affidavit that relied upon the contents of the in-home
recordings was almost vanishingly small and probable cause continues to
exist even if it is excised from the affidavit.” Commonwealth’s brief at 13.
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We begin by discussing whether and when citizens have a
constitutional interest in private conversations, as protected by the Fourth
Amendment to the United States Constitutions or Article I, Section 8 of the
Pennsylvania Constitution. Article I, Section 8 provides:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be, nor
without probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. Art. I, § 8. The Fourth Amendment’s text is similar, and
provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S. Const. Amend. IV. 7
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7 Appellant’s suppression motion exclusively raised constitutional grounds,
and he did not invoke statutory remedies under the Act. See 18 Pa.C.S. §
5721.1(e) (“The remedies and sanctions described in this subchapter with
respect to the interception of wire, electronic or oral communications are the
only judicial remedies and sanctions for nonconstitutional violations of this
subchapter involving such communications.”). In his brief, he states that
“[T]he statutory exclusionary rule as set forth in § 5721(a) and (b) applies,
as does the constitutional exclusionary rule.” Appellant’s brief at 30. His
substantive argument is limited to constitutional grounds and we therefore
limit our examination to those arguments.
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We separately analyze federal and state precedents with respect to
this issue, as “Although the wording of the Pennsylvania Constitution is
similar in language to the Fourth Amendment . . . we are not bound to
interpret the two provisions as if they were mirror images, even where the
text is similar or identical.” Commonwealth v. Edmunds, 586 A.2d 887,
895–96 (Pa. 1991) (footnote omitted).
A
Fourth Amendment
The United States Supreme Court has held that there is no Fourth
Amendment interest in information disclosed during conversations, even if
one of the citizens is actually an agent of the government. In Hoffa v.
United States, 385 U.S. 293 (1966), the Court was asked to overturn a
conviction on the basis of a Fourth Amendment violation. Briefly stated,
James Hoffa, the president of the International Brotherhood of Teamsters,
was on trial for another matter over a lengthy period of time. During that
trial, Edward Partin, a local Teamsters official, visited Hoffa’s hotel room.
Partin, who was under indictment for embezzlement, had agreed to act as an
informer for the Government. Partin engaged in multiple conversations with
Hoffa and his associates, which concerned schemes by Hoffa to bribe the
jury. Partin thereafter disclosed the contents of those conversations to
federal agents. These conversations occurred at various locations, including
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Hoffa’s hotel. Partin testified at a later trial, where Hoffa was convicted of
attempting to influence a juror.
Hoffa alleged that his Fourth Amendment rights were violated because
Partin failed to disclose his role as a government informer. Therefore, “by
listening to [Hoffa]’s statements Partin conducted an illegal ‘search’ for
verbal evidence.” Id. at 300. The Court disagreed, finding that Hoffa had
no Fourth Amendment interest in that which he voluntarily disclosed to
Partin.
[I]t is evident that no interest legitimately protected by the
Fourth Amendment is involved. It is obvious that the petitioner
was not relying on the security of his hotel suite when he made
the incriminating statements to Partin or in Partin's presence.
Partin did not enter the suite by force or by stealth. He was not a
surreptitious eavesdropper. Partin was in the suite by
invitation, and every conversation which he heard was
either directed to him or knowingly carried on in his
presence. The petitioner, in a word, was not relying on the
security of the hotel room; he was relying upon his misplaced
confidence that Partin would not reveal his wrongdoing. As
counsel for the petitioner himself points out, some of the
communications with Partin did not take place in the suite at all,
but in the ‘hall of the hotel,’ in the ‘Andrew Jackson Hotel lobby,’
and ‘at the courthouse.’
Neither this Court nor any member of it has ever expressed the
view that the Fourth Amendment protects a wrongdoer's
misplaced belief that a person to whom he voluntarily confides
his wrongdoing will not reveal it.
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Id. at 302 (emphasis added, footnote omitted). Thus, even within the
confines of the home, an individual has no privacy interest in whatever he
chooses to disclose voluntarily to his guests.8
Hoffa and other cases discussed within its body precede the seminal
case of Katz v. United States, 389 U.S. 347 (1967), wherein the High
Court held that the Fourth Amendment was violated when the police
installed a listening device to the outside of a phone booth, which captured
Katz’s side of the phone conversations. The Court rejected the notion that a
Fourth Amendment search can only occur if there is a physical intrusion into
a constitutionally protected area, and held that the Government “violated
the privacy upon which he justifiably relied . . . and thus constituted a
‘search and seizure’ within the meaning of the Fourth Amendment.” Id. at
353.9 Thus, Katz addressed whether the individual had a reasonable
expectation of privacy inside the phone booth, which necessarily included
privacy in the contents of his conversations. Compare Smith v. Maryland,
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8 Hoffa’s argument was, in part, that his consent for Partin’s presence in his
quarters was given with the expectation Partin was not working on behalf of
the government. The Court did not find that the statement was
“involuntary” as a result of that deception.
9 Justice Harlan’s concurring opinion, which was later adopted by a majority
of the Court, determined that an individual must demonstrate a reasonable
expectation of privacy, which requires an assessment of whether (1) the
individual exhibited a subjective expectation of privacy, and (2) whether that
expectation is one society is prepared to recognize as reasonable. Katz v.
United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
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442 U.S. 735, 741 (1979) (pen register device that captured dialed phone
numbers was not a Fourth Amendment search as there was no reasonable
expectation of privacy; “[A] pen register differs significantly from the
listening device employed in Katz, for pen registers do not acquire
the contents of communications.”) (emphasis in original).
Furthermore, the High Court has not definitively addressed whether
broadcasting an in-home conversation, as opposed to merely relating the
contents of the conversation as in Hoffa, violates the Fourth Amendment.
In United States v. White, 401 U.S. 745 (1971), a plurality of the Court
noted that “Hoffa . . . which was undisturbed by Katz, held that however
strongly a defendant may trust an apparent colleague, his expectations in
this respect are not protected by the Fourth Amendment when it turns out
that the colleague is regularly communicating with the authorities.” Id. at
749. White analyzed whether the outcome changes when an informer not
only records the conversations “but instantaneously transmits them
electronically to other agents equipped with radio receivers.” Id. at 750.
The plurality reexamined the prior precedents in light of Katz and concluded
that there was no constitutional difference between disclosing the contents
of the conversation and recording/transmitting the same. Hence, the
defendant did not have a reasonable expectation of privacy in what was said
to a willing informer. The Court reasoned that since Hoffa permits an agent
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to write down what he hears, it follows that he may both record and transmit
the conversations.
If the conduct and revelations of an agent operating without
electronic equipment do not invade the defendant's
constitutionally justifiable expectations of privacy, neither does a
simultaneous recording of the same conversations made by the
agent or by others from transmissions received from the agent
to whom the defendant is talking and whose trustworthiness the
defendant necessarily risks.
Our problem is not what the privacy expectations of particular
defendants in particular situations may be or the extent to which
they may in fact have relied on the discretion of their
companions. Very probably, individual defendants neither know
nor suspect that their colleagues have gone or will go to the
police or are carrying recorders or transmitters. Otherwise,
conversation would cease and our problem with these
encounters would be nonexistent or far different from those
now before us. Our problem, in terms of the principles
announced in Katz, is what expectations of privacy are
constitutionally ‘justifiable’—what expectations the Fourth
Amendment will protect in the absence of a warrant. So far, the
law permits the frustration of actual expectations of privacy by
permitting authorities to use the testimony of those associates
who for one reason or another have determined to turn to the
police, as well as by authorizing the use of informants in the
manner exemplified by Hoffa and Lewis. If the law gives no
protection to the wrongdoer whose trusted accomplice is
or becomes a police agent, neither should it protect him
when that same agent has recorded or transmitted the
conversations which are later offered in evidence to prove
the State's case.
Id. at 751–52 (emphasis added, citation omitted).
Appellant, on the other hand, apparently sees no constitutional
distinction between Hoffa and Katz. He cites the following quotation from
Berger v. New York, 388 U.S. 41 (1967), as applying to the issue at hand:
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“Few threats to liberty exist which are greater than that posed by the use of
eavesdropping devices.” Id. at 63. This quotation has no applicability to
this case. Whether the CI recorded the conversations or not, Appellant still
disclosed information to an informer, who was free to tell the authorities
what he had learned. “It would be a dubious service to the genuine liberties
protected by the Fourth Amendment to make them bedfellows with spurious
liberties improvised by farfetched analogies which would liken eavesdropping
on a conversation, with the connivance of one of the parties, to an
unreasonable search or seizure.” White, supra at 750 (quoting On Lee v.
United States, 343 U.S. 747 (1952)).
In summary, as a matter of Fourth Amendment law, there is no
constitutional issue when a person, such as the CI herein, enters the home
of a citizen and records the conversations. In those situations, the speaker
has voluntarily disclosed information, and the speaker cannot claim a
reasonable expectation of privacy in either the information or a
simultaneous recording of that information.10 Therefore, no search occurs
when the conversations are captured on a recording device.
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10 Some federal decisions have held that the further intrusion of capturing
video evidence of what occurred inside the home, as opposed to merely
recording conversations, is permissible. See e.g. United States v.
Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013) (en banc) (“We are
persuaded that it is not ‘constitutionally relevant’ whether an informant
utilizes an audio-video device, rather than merely an audio recording device,
(Footnote Continued Next Page)
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B
Article I, Section 8
The fact that the Fourth Amendment does not apply as a matter of
federal law does not end the matter. The States are free to impose greater
protections, and, as previously mentioned, our Supreme Court has directly
confronted the issue of in-home recordings under the Pennsylvania
Constitution in Brion, supra, which we now examine.
In Brion, the police, with prosecutorial approval, sent a consenting
confidential informant to purchase marijuana from Michael Brion at his
residence and record the conversation. The Commonwealth had relied upon
18 Pa.C.S. § 5704(2)(ii), which, as previously quoted, permitted
interceptions upon prosecutorial approval and where one party to the
conversation consents. Brion “filed a timely motion to suppress the tape
recording of the transaction between himself and the informant.” Id. at
287 (emphasis added). Our Supreme Court agreed, finding that compliance
with § 5704(2)(ii) under the circumstances resulted in an unconstitutional
search. First, the Court held that an individual has a reasonable expectation
of privacy with respect to the conversations under Article I, Section 8,
thereby departing from the foregoing federal precedents.
(Footnote Continued) _______________________
to record activities occurring inside a home, into which the informer has
been invited.”).
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[T]he instant case involves conversations taking place in the
sanctity of one's home. If 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. . . .
....
[W]e hold that an individual can reasonably expect that his right
to privacy will not be violated in his home through the use of any
electronic surveillance.
Id. at 289 (footnote omitted). With respect to the fact that the Act
authorized the intercept, Brion declined to find the section wholly
unconstitutional but applied the construction that “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.” Id. at 289. As quoted in the foregoing
discussion, the Act was thereafter amended in response to Brion. Fetter,
supra.Thus, Brion stands for the proposition that a citizen has a reasonable
expectation of privacy that his conversations will not be recorded by his
guests, and therefore the actual recordings are subject to suppression.
“Because there was no determination of probable cause by a neutral judicial
authority, the consensual body wire violated Article I, Section 8 and the tape
recording of the transaction in Brion's home should have been suppressed.”
Id. at 289.
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It does not, however, invariably follow that the information itself is
likewise subject to suppression. This concept was discussed in
Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001). Rekasie was not
cited by the parties, but we believe that the case highlights the crucial
distinction between using an actual recording as substantive evidence versus
relying on the information itself for purposes of a search warrant. In
Rekasie, a confidential informant, Thomas Tubridy, informed the police that
Vincent Rizzo, a Florida resident, supplied cocaine to Kirk Rekasie. A
prosecutor, without prior court approval, approved the recording of phone
conversations between Tubridy and Rekasie. The Court discussed whether
Rekasie had a reasonable expectation of privacy in his telephone
conversations with Tubridy, as the Commonwealth relied on the concept of
disclosure to rebut that expectation. Rekasie acknowledged that “[this]
analytic framework, which this court has applied in considering privacy
expectations . . . has been less than clear.” Id. at 628. Rekasie engaged
in a thorough analysis of disclosure, which rejected the analysis of White,
supra:This concept, that one does not have an expectation of privacy in
information voluntarily disclosed to another, has been
consistently applied by the federal high court in denying
assertions of expectations of privacy under the Fourth
Amendment; yet, our court has not followed federal
jurisprudence lock-step. While on occasion, this court has
utilized the disclosure concept to vitiate an assertion of a privacy
expectation, most notably in [Commonwealth v.]Blystone[,
549 A.2d 81 (1988)], more recent case law makes clear that our
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court has not strictly adhered to the federal tenet that an
individual maintains no expectation of privacy in information
disclosed to others. Thus, under Pennsylvania Constitutional
jurisprudence, it is manifest that a citizen's expectation of
privacy can extend, in some circumstances, to information
voluntarily disclosed to others.
....
In the context of a verbal communication, in Brion, our court
held that Article I, Section 8 prevents police from sending a
confidential informant into the home of an individual to
electronically record his conversation by use of a body wire
absent a prior determination of probable cause by a neutral
judicial authority. In finding a constitutionally-recognized
expectation of privacy, our court's primary focus was on the
zone of privacy in the home and the face-to-face conversations
taking place therein. The majority did not embrace an analysis
based on the disclosure of information, which, as described
above, and by the dissenters in Brion, would have resulted in no
recognized expectation of privacy. Thus, contrary to the analysis
utilized in White, our court, while still applying the Katz privacy
expectation construct, found a legitimate expectation of privacy
in face-to-face conversations conducted within one's home.
....
In summary, unlike the United States Supreme Court, our court
has declined to embrace a constitutional analysis under Article I,
Section 8 that relies primarily upon a principle of disclosure. For
over twenty years, our court has transcended such a limited
analysis and has focused, even when information is voluntarily
disclosed to another, on the test in Katz, i.e., both the person's
actual expectation of privacy and the societal recognition of such
an expectation of privacy as being reasonable-a construct which
in this Commonwealth takes into account the circumstances of
the situation surrounding the disclosure of information as well as
the individual's conduct. We now turn to application of this
standard.
Applying the Katz privacy expectation construct that has
evolved under this court's jurisprudence to the case sub
judice, we find that while Rekasie might have possessed an
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actual or subjective expectation of privacy in the telephone
conversation with Tubridy, because of the nature of telephonic
communication, it is not an expectation that society would
recognize as objectively reasonable.
Id. at 629–31 (footnotes omitted). The Court in Rekasie opined that Brion
did not warrant a contrary result, because phone calls are “[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[.]” Id. at 632. Therefore, Rekasie distinguished Brion and permitted
the introduction of the actual recorded conversations, based on the fact that
there was no reasonable expectation of privacy in the phone conversation.
While some language in Rekasie appears to broadly embrace the
notion that an individual retains an expectation of the privacy in the
information itself, as expressed in the quotation “it is manifest that a
citizen's expectation of privacy can extend, in some circumstances, to
information voluntarily disclosed to others,” id. at 630, that observation was
dicta due to the fact that the Court held that Rekasie had no reasonable
expectation of privacy that his phone conversations would not be recorded.
Then-Chief Justice Castille, joined by now-Chief Justice Saylor, authored a
concurring opinion distancing himself from that dicta:
My point of qualification concerns dicta in the majority opinion
concerning whether and when a person may retain a reasonable
expectation of privacy in the information itself that he discloses
to others. Majority Op. at 629-31. With respect to this
discussion, it is essential to recognize what is and is not at issue
in this case. This Court does not face a claim that
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the substance of appellant's telephone conversation with
Tubridy was subject to suppression; i.e., there is no claim that
Tubridy should be constitutionally precluded from repeating in
court the specific words that he recalled appellant saying to him
telephonically. Instead, here, as in Commonwealth v.
Brion, 539 Pa. 256, 652 A.2d 287 (1994), Commonwealth v.
Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd on other
grounds, Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct.
1078, 108 L.Ed.2d 255 (1990), and Commonwealth v.
Alexander, 551 Pa. 1, 708 A.2d 1251 (1998), the claim is that
a tape recording of that conversation, made with Tubridy's
express consent, should be excluded from evidence.
The distinction is significant. In my view, the teaching
in Commonwealth v. Blystone, respecting the nature of oral
communications, remains controlling as to the expectation of
privacy one may have in what one says to another. Citing with
approval to authority from the United States Supreme Court in
that Article I, § 8 case, Blystone noted that, “a thing remains
secret until it is told to other ears, after which one cannot
command its keeping. What was private is now on other lips and
can no longer belong to the teller. What one chooses to do with
another's secrets may differ from the expectation of the teller,
but it is no longer his secret.” 549 A.2d at 87. Implicit in this
observation about the very nature of privacy expectations in oral
communications was the recognition that one's listeners can, and
often do, repeat the content of a conversation to anyone they
choose. That reality, in turn, suggests that, at least in the
absence of some recognized privilege, the speaker cannot be
said to possess any reasonable expectation that the contents of
the conversation itself will remain private once the words are
related to another.
Id. at 633–34 (Castille, C.J., concurring) (emphases in original).
The instant case squarely presents the issue of whether a defendant is
entitled to preclude consideration of the substance of conversation,
assuming arguendo that the simultaneous recording of that conversation
occurred in violation of Appellant’s constitutional rights as set forth in Brion.
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IV
Validity of the Affidavit
More specifically, the question is whether the affidavit of probable
cause could lawfully include the information learned from Appellant’s
conversations with the CI, even if the conversations were unlawfully
recorded. We hold that the information itself was not subject to
suppression, and that remains true even if all recordings after the first
violated Appellant’s rights under Article I, Section 8.
Applying the foregoing precedents and principles, we find that the
Commonwealth received the information twice: once when the CI told the
officers that which Appellant voluntarily disclosed, and a second time when
the CI performed a search by capturing Appellant’s actual words on tape.
Brion and the Pennsylvania Constitution dictate that Appellant had a
reasonable expectation of privacy that his words would not be recorded, but
we find that Appellant had no reasonable expectation of privacy with respect
to the information itself, which he freely disclosed to the CI, who in turn
relayed the information to the authorities.
Brion, and the Act’s implementation of that case, addresses only
whether there is a reasonable expectation of privacy that Appellant’s
conversations would not be recorded by his guests. This is evident from the
fact that the issue in Brion was an attempt to suppress the recording itself
as substantive evidence. We decline to extend an expectation of privacy to
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the information itself. Appellant took the risk that the CI was acting on
behalf of the Commonwealth, and as a result had no reasonable expectation
of privacy in what he said and showed the CI. Hoffa, supra. To take
Appellant’s argument to its logical conclusion, i.e. that Appellant had a
reasonable expectation of privacy in the actual substance of his
conversations, then the Commonwealth needed prior judicial approval before
asking the CI to enter Appellant’s residence in the first instance. 11 That
result would remarkably expand the reach of Brion, and would
constitutionally prohibit the use of, inter alia, confidential informants and
undercover agents, without prior judicial approval.
Thus, when we remove the recordings themselves from the equation,
the Commonwealth lawfully obtained everything Appellant relayed to the
CI.12 “[E]vidence . . . is potentially suppressible as fruit of the poisonous
____________________________________________
11 The Dissent states that this conclusion is incorrect, because “it is the face-
to-face communication in one’s home that is constitutionally and legislatively
protected from surreptitious electronic seizure.” Dissenting Opinion, at 2
n.1. If the communications, 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. We draw a distinction between a
search of those words as contained within the recordings versus a “search”
occasioned by the confidential informant hearing the words. We find that
Appellant had no reasonable expectation of privacy in the actual substance
of his conversations.
12 To the extent that it matters whether the CI actually related the
information, as opposed to simply supplying the recordings for police review
(Footnote Continued Next Page)
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tree stemming from unconstitutional police conduct. However, . . . any such
evidence may be admitted where the Commonwealth sufficiently proves that
it was . . . discoverable through an independent source.” Commonwealth
v. Santiago, 160 A.3d 814, 827 (Pa.Super. 2017). The independent source
in this case was Appellant’s voluntary disclosures to the CI. Therefore, 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. Therefore, it is incorrect to posit that the Commonwealth
derived its evidence from an unlawful wiretap, since the Commonwealth
knew the same information with or without the recordings.
V
The Continuing Vitality of Brion
We are, of course, mindful of the fact that this Court has no authority
to overrule Pennsylvania Supreme Court precedent. In reaching our
conclusion, we do not hold that the multiple intercepts were consistent with
Brion and its interpretation of Article I, Section 8, an issue that both parties
ask us to reach. The parties presented reasoned arguments respecting that
issue. As Appellant notes, the Act was amended to codify Brion, and the
statutory language facially permits the Commonwealth to secure an open-
(Footnote Continued) _______________________
without debriefing, the affidavit of probable cause makes plain that the CI
frequently met with the investigating officers and discussed the contents of
his conversations, with certain details corroborated by the recordings.
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ended order authorizing in-home intercepts for an indefinite period of time.
On the other hand, Appellant’s proposed “one recording only” rule would
require the Commonwealth to secure a separate order if the target and the
consensual recorder happened to leave the home for a trip to the store and
returned to a residence. The lack of statutory direction on this point is a
matter for the Legislature.
We emphasize that in our holding today, we offer no opinion on
whether the recordings themselves violated Appellant’s constitutional rights
under Article I, Section 8. In the event that Appellant’s rights actually were
violated, suppression of the recordings themselves is no mere constitutional
consolation prize. Obviously, 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 conversations.
Therefore, Brion places a check on the Commonwealth’s ability to wield a
defendant’s own words against him, a check that remains in place following
our decision today. We are concerned here only with whether Appellant was
entitled to suppress what the Commonwealth learned.
Accordingly, for all the foregoing reasons, we decline to excise the
challenged material from the warrant, and the trial court did not err in
denying his motion.
VI
Whether the Anticipatory Warrant was Valid
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We now address the remaining claim, which is that the anticipatory
search warrant failed to comply with the Fourth Amendment even with
consideration of all the information. The standard of review for search
warrants, set forth supra, applies to these challenges. With respect to the
issue of anticipatory search warrants, the following additional principles
inform our analysis.
When considering whether an anticipatory search warrant was
supported by probable cause under the Fourth Amendment of
the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution, judicial review is confined to the
averments contained within the four corners of the affidavit of
probable cause. Further, “[w]hether a particular anticipatory
warrant should or should not be approved . . . will depend upon
the sufficiency of the averments in the individual case.”
Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012) (footnotes
and citations omitted). In United States v. Grubbs, 547 U.S. 90 (2006),
the High Court established that anticipatory search warrants are not per se
unconstitutional. The Court explained:
An anticipatory warrant is a warrant based upon an affidavit
showing probable cause that at some future time (but not
presently) certain evidence of crime will be located at a specified
place. Most anticipatory warrants subject their execution to
some condition precedent other than the mere passage of time—
a so-called “triggering condition.” The affidavit at issue here, for
instance, explained that execution of the search warrant will not
occur unless and until the parcel containing child pornography
has been received by a person(s) and has been physically taken
into the residence. If the government were to execute an
anticipatory warrant before the triggering condition occurred,
there would be no reason to believe the item described in the
warrant could be found at the searched location; by definition,
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the triggering condition which establishes probable cause has not
yet been satisfied when the warrant is issued.
Id. at 94 (cleaned up).13 As stated in Wallace, supra, the Grubbs decision
established two requirements which an affidavit of probable
cause in support of an anticipatory search warrant must meet
under the Fourth Amendment: (1) there is probable cause to
believe the triggering condition will occur; and (2) if the
triggering condition occurs there is a fair probability that
contraband or evidence of a crime will be found in a particular
place. The high Court also held that the supporting affidavit
must provide the magistrate with sufficient information to
evaluate both aspects of the probable-cause determination.
Id. at 1049 (cleaned up).
Appellant maintains that the instant application failed to establish the
first prong because there was no basis for a finding of probable cause that
“drugs might be on their way.” Appellant’s brief at 45. He argues that the
Commonwealth was required to establish the probability of a drug delivery
to Appellant’s residence. “The affiant therefore sought to establish that
appellant Katona would obtain drugs[.]” Id. (emphasis in original).
____________________________________________
13 “Cleaned up” is a new parenthetical designed to “tell readers that they
have removed extraneous material for readability and guarantee that
nothing removed was important.” See Metzler, Jack, Cleaning Up
Quotations (March 17, 2017). Journal of Appellate Practice and Process,
2018, Forthcoming. Available at http://dx.doi.org/10.2139/ssrn.2935374.
The superfluous material encompassed by the parenthetical includes
brackets, ellipses, quotation marks, internal citations, and footnote
references.
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We disagree. This case is not a typical anticipatory search warrant
case, since, as reflected in the foregoing quotations, the triggering condition
is usually the arrival of some illegal material, such as a package containing
child pornography or narcotics. However, Appellant’s argument proceeds
from a flawed premise, as the triggering condition was not the receipt of
the drugs, but rather Appellant’s signal that he would deliver drugs to the
CI.
Wallace, supra, establishes that anticipatory warrants are not limited
to the arrival of an item. Therein, our Supreme Court reviewed an
anticipatory search warrant regarding the sale of drugs from a particular
residence. The application for the search warrant relied upon information
from a CI that a black male known as Greg used a gold-colored Mercedes to
deliver narcotics. The application represented that the informant stated he
could purchase cocaine from Greg at a particular residence between the
hours of 7:00 p.m. and 10:00 p.m. The CI also provided Greg’s cell phone
number.
Based on this information, an officer sought an anticipatory search
warrant for that residence. The affidavit set forth that further investigation
revealed that Gregory Wallace lived at the particular home, and a criminal
background check revealed that Wallace had listed in his papers the same
phone number supplied by the CI. The affidavit further stated that the CI
had reliably provided information in the past. The search warrant was to be
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executed upon the triggering condition of the sale of drugs at the residence.
The warrant was issued, and, on that same day, the CI entered the
residence and returned several minutes later with two bags of cocaine.
Authorities then executed the search warrant.
Our Supreme Court determined that the anticipatory warrant
application amounted to little more than an assertion that the informant
could arrange a drug sale, which is insufficient. In other words, the fact that
drugs were actually sold to the CI from Wallace’s residence said nothing
about whether the magistrate could lawfully conclude ex ante that probable
cause existed that the sale would occur. In this vein, Wallace emphasized
that the search warrant application gave no indication that the drugs would
be inside Wallace’s residence. The CI’s information revealed only that “Greg”
sold cocaine from his car, not his home, and the warrant did not provide any
details of “Greg’s” prior sales. Moreover, the fact that the phone number
and address were linked to Wallace was of little value, as that information
was publicly available. Additionally, the police failed to confirm through their
own investigation that Wallace used his residence for selling drugs. Of note
to the issue at bar, the Court stated:
There was no factual basis in the affidavit which established that
the confidential informant had any past relationship with “Greg,”
ever witnessed “Greg” in possession of drugs, or, critically, had
been inside of Appellant's home recently and observed drugs
stored there. Furthermore, there were no facts in the affidavit
which suggested that the confidential informant had, at any
time, personally purchased drugs from “Greg,” or witnessed
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“Greg” selling drugs at any location, let alone at Appellant's
home. In short, the affidavit contained only the informant's bare
assertion that he could effectuate a controlled purchase at
Appellant's home at a particular time.
Id. at 1050 (emphasis in original). Notably, Wallace did not suggest that
the Commonwealth would have to establish that Wallace’s home would
receive the drugs which were then sold. The case implicitly endorsed the
notion that the sale of drugs from a home could serve as a triggering
condition if sufficiently supported.
In contrast to Wallace, the affidavit for the anticipatory search
warrant in this case supplied a wealth of information regarding the recent
presence of narcotics in Appellant’s residence, as well as Appellant’s prior
deliveries to the CI. The application sets forth the details of four prior
occasions where Appellant supplied drugs to the CI, two of which occurred at
Appellant’s residence. Each time, Appellant would supply more drugs when
the CI paid for the prior deliveries. The last three deliveries all occurred
within weeks of each other. Thus, the application established a pattern
whereby Appellant would provide a fresh delivery of drugs upon payment for
the previous deliveries.
Most significantly, the June 27, 2011 incident concluded with Appellant
telling the CI that additional drugs would be available on June 29, a
statement that was made after the CI provided payment for the last
delivery. We find that a reviewing magistrate could determine that “(1)
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there is probable cause to believe the triggering condition will occur; and (2)
if the triggering condition occurs there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Id. at 1049. While
the triggering condition largely overlaps with the second requirement, as
Appellant’s contact to the CI provided the basis to believe Appellant’s
residence contained the contraband, this is not a case, as in Wallace, where
the affidavit did little more than indicate that a drug sale could be arranged.
The search warrant application provided sufficiently specific information to
conclude there was probable cause to believe that Appellant would call the
CI on June 29, 2011, to supply more drugs. Therefore, we deny relief on
this ground.
Judgment of sentence affirmed.
Judge Olson, Judge Ott, Judge Stabile and Judge Dubow join this
opinion.
President Judge Gantman concurs in the result of this opinion.
Judge Lazarus files a dissenting opinion in which Judge Shogan joins.
President Judge Emeritus Bender did not participate in the consideration or
decision of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2018
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