The following story was originally published in the January 2012 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Reprinted here with permission of the Philadelphia Bar Association.
Pennsylvania Supreme Court Rules Wiretap Act Does Not Prohibit Fake Text Messages
In the latest decision on the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), the Pennsylvania Supreme Court holds there is no violation of the Wiretap Act where law enforcement lies to a suspect during an investigation. The case is Commonwealth v. Cruttenden, A.3d _, 2012 WL 6570210 (Pa. Dec. 17, 2012), and the opinion is written by Justice McCaffery, with a concurring opinion by Justice Baer with which Justice Todd joins.
In Cruttenden, there were two defendants, Cruttenden and Lanier. The facts are that Pennsylvania State Troopers stopped a car and uncovered 35 pounds of marijuana, methamphetamines, drug paraphernalia, a .45 caliber handgun and a Tracfone (a mobile telephone). One of the occupants of the car, Amodeo, told Trooper Richard Houk that he had been using the Tracfone to communicate with Defendant Stephen Lanier regarding the exchange of marijuana for $19,000. Amodeo permitted Trooper Houk to use the Tracfone to pose as Amodeo while exchanging text messages with Defendant Lanier. After so doing, Defendant Lanier and Trooper Houk agreed to rendezvous at a Holiday Inn parking lot to conduct the transaction.
The troopers arrived at the meeting place and approached Defendant Lanier, who was accompanied by Defendant Cruttenden, both of whom were in a parked car. The police arrested the defendants and recovered $20,000 from Lanier’s coat pocket. After obtaining a search warrant for the car, the police recovered, inter alia, the Tracfone used to text Amodeo.
The police charged the defendants with criminal attempt, criminal conspiracy, and dealing in proceeds of unlawful activities. Each defendant filed a pretrial suppression motion alleging that the warrantless “interception” of the text messages was illegal, and not subject to an exception under the Wiretap Act.
After a hearing, the trial court granted the suppression motions, and the Commonwealth appealed to the Pennsylvania Superior Court. The Superior Court affirmed the orders granting suppression, and the Commonwealth then sought allocator, which the Supreme Court granted.
In its opinion, the Pennsylvania Supreme Court agrees with the Commonwealth’s contention that Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001), controls. Proetto held that where a law enforcement officer posing as an underage female communicated with a suspected sexual offender in a chat room on the internet, no violation of the Wiretap Act occurred because the officer was a direct party to the communication, and thus there was no “interception” of a communication. The Supreme Court finds in its opinion that the Superior Court’s distinguishing of Proetto was misplaced, in that there was no illegal “‘interception’ of text messages between [Defendant] Lanier and Trooper Houk posing as Amodeo because the trooper was a direct party to the communication and the misrepresentation of his identity was an irrelevant factor for purposes of the Wiretap Act.”
Justice Baer’s concurring opinion agrees with the court’s opinion, but states that the case is more factually similar to Commonwealth v. Smith, 140 A.2d 347 (Pa. Super. 1958) and Commonwealth v. DiSilvio, 335 A.2d 785 (Pa. Super. 1975), which both involved police officers answering telephones on the premises of bookmaking operations and acting as accomplices who could take bets, than Proetto, which involved internet communications.
Why is Cruttenden important? It helps define what does not constitute an “interception” under the Wiretap Act. That is, when someone is an actual party to a communication, they are not intercepting a communication, regardless of whether they are misrepresenting who they are. For criminal practitioners, Cruttenden can provide an invaluable defense to a client charged with a violation of the Wiretap Act. The Wiretap Act does not draw a distinction between law enforcement and civilians in defining what constitutes an interception. Thus, the government can use Cruttenden to support its burden in a motion to suppress evidence based on a violation of the Wiretap Act, and individual defendants can use it as a defense if they are charged with a violation when they were an actual party to the underlying communication. As for civil practitioners, motions to exclude illegally-intercepted communications do arise from time to time, and preventing your opposition from excluding communications can help keep in important evidence at trial.
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