In two recent opinions on the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), 18 Pa.C.S. § 5701, et seq., the Pennsylvania Superior Court held that defendants must have a reasonable expectation of privacy to enjoy the evidentiary exclusionary rule provided by WESCA and that orders pursuant to WESCA serve as the functional equivalent of traditional search warrants. The cases are Commonwealth v. Arthur, ___ A.3d ___, 2013 WL 618798 (Pa. Super., Feb. 20, 2013) and Commonwealth v. Burgos, ___ A.3d ___, 2013 WL 618794 (Pa. Super., Feb. 20, 2013), a case of first impression as to the application of the United States Supreme Court opinion in United States v. Jones, 132 S.Ct. 945 (2012), which held that the installation of a GPS tracking device constitutes a search within the guarantee against unreasonable governmental searches and seizures under the Fourth Amendment to the United States Constitution. Philadelphia criminal lawyers must have a good grasp on search and seizure law and WESCA to litigate drug cases successfully.
Commonwealth v. Arthur
Central to the Superior Court’s holding in Arthur was the defendants’ failure to demonstrate a sufficient privacy interest in a car to which law enforcement attached a GPS tracking device. The salient facts follow, and the case ultimately involved consolidated appeals from a matter involving two co-defendants (a third co-defendant died during the pendency of the appeal).
A county detective received information from two confidential informants that Defendant Arthur was selling drugs, and one of the informants participated in a controlled buy. During the buy, the police saw Arthur drive to the meet location in a blue Ford Taurus. After the transaction, police saw Arthur return to the address listed on his drivers’ license, on Stanbridge Street. Based on that information, a county detective complied with WESCA and obtained a court order granting authorization to install and use a GPS tracking device on the Ford Taurus, pursuant to WESCA, specifically 18 Pa.C.S. § 5761 (Mobile Tracking Devices). Once the GPS tracking device was installed, there was a second controlled buy from Arthur. Arthur drove to that buy in the Ford Taurus, departing from an address on Sandy Street and returning there after the buy. A few hours after, he returned to the Stanbridge Street address. As a result of both the second controlled buy and information obtained from the GPS tracking device, law enforcement obtained and executed search warrants for both addresses and the Ford Taurus.
Upon search of the Stanbridge Street address, police seized numerous quantities of marijuana, drug paraphernalia, five guns and ammunition. At the time of that search, Defendant Ladson-Singleton (deceased) was found at the residence. Upon search of the Sandy Street address, police seized numerous quantities, drug trade documents, empty plastic baggies, nearly $20,000 in cash and a loaded gun. At the time of that search, Defendant Thompson was found at the residence.
All three defendants were arrested and charged with criminal conspiracy, various firearms offenses and various drug offenses, and all three cases were consolidated. The defendants filed motions to suppress evidence, and the trial court granted the motions to suppress. The Commonwealth appealed.
At the motions to suppress, there was no evidence that Defendant Arthur or Defendant Thompson had a privacy interest in the Ford Taurus. The evidence adduced at the suppression hearing with respect to Defendant Arthur was merely that he used the Ford Taurus during the first controlled buy. There was no evidence about the owner of the car, or that he had permission from the owner to use it. As to Defendant Thompson, she also was not the owner of the car, there was no evidence that she had any possessory interest in the car, that she ever drove the car or that she was a passenger in the car at the time the GPS tracking device was installed.
Pennsylvania law requires that a defendant, on a motion to suppress evidence, either through his or her own evidence, or through the evidence of the Commonwealth, demonstrate a privacy interest that has been infringed upon. The Superior Court cited several cases for the proposition that it would be hard pressed to find that a defendant had a reasonable expectation of privacy absent evidence of ownership or express permission to use a vehicle. Therefore, because the record did not establish ownership or permission to use the vehicle by either defendant, the Superior Court ruled that neither defendant established a reasonable expectation of privacy in the car, a threshold that must be met before a court can grant a motion to suppress.
Commonwealth v. Burgos
The Superior Court in Burgos had the opportunity to rule on the merits of a trial court’s granting of the defendant’s motion to suppress evidence seized as the result of the installation of a GPS tracking device – a case of first impression in Pennsylvania as to the application of United States v. Jones, 132 S.Ct. 945 (2012), which held that the installation of a GPS tracking device constitutes a search within the guarantee against unreasonable governmental searches and seizures under the Fourth Amendment to the United States Constitution.
In Burgos, the defendant was charged with possession of marijuana with intent to deliver, possession of a controlled substance and criminal conspiracy. Based on information received from two confidential informants, police detectives obtained information that the defendant had been supplying high-grade marijuana. The two confidential informants provided extensive evidence about the defendant, his vehicle and his residence. Their information was corroborated by conversations intercepted by court-ordered wiretaps of others, which referred to the supplier of their marijuana as the first name of the defendant, Edwin. Police surveillance verified the defendant’s residence and pickup truck, which contained a large toolbox, which was previously described by the two informants as being used to transport marijuana. The confidential informants had been reliable sources of information in past investigations.
Police obtained an order authorizing the installation and use of a GPS tracking device onto the defendant’s pickup truck, pursuant to WESCA, specifically 18 Pa.C.S. § 5761. The GPS tracking device was attached onto the pickup truck on March 28, 2011. On April 2, 2011, the defendant’s traveled from his home in Reading, PA, to a home in Allentown, PA. After that he made several stops in the Allentown area, and headed west and south, ultimately stopping near Dublin, VA, that evening. Early in the morning on the next day, on April 3, 2011, the pickup truck departed the location in Dublin, and traveled through North and South Carolina and into Georgia, stopping in the area of Midvale, GA. It stayed there until early in the morning of April 4, 2011. It then retraced its route through Georgia, South Carolina and North Carolina. During that time period, one of the confidential informants provided information to a police detective that the defendant was in South Carolina picking up marijuana to be returned to Berks County, PA and that the defendant’s wife was travelling with him. The informant also provided further information on the toolbox on the truck. The vehicle was tracked via the GPS device back to Pennsylvania, and it was ultimately stopped in southern Berks County. After the stop, police obtained a search warrant for it, and they recovered thirty-four black plastic bags containing marijuana from a special compartment in the toolbox of the truck. Also from this stop, police recovered three cellular telephones and approximately $188. After the search of the truck, police obtained a search warrant for the residence the defendant visited in Allentown, PA, on North Mohr Street, which yielded a cash-counting machine and a box of .38 caliber ammunition.
Burgos filed a motion to suppress evidence, in which the trial court ultimately granted. The trial court’s reasoning was that the recent United States Supreme Court opinion in United States v. Jones, 132 S.Ct. 945 (2012), required a search warrant based on a finding of probable cause to install a GPS tracking device onto a motor vehicle and that Section 5761 of WESCA was no longer applicable to GPS tracking device searches pursuant to Jones. In short, the US Supreme Court Jones held that the installation of a GPS tracking device constitutes a search within the meaning of the Fourth Amendment.
The Superior Court in Burgos disagreed with the trial court, holding that while probable cause is required for the installation of a GPS tracking device, wiretap orders pursuant to Section 5761 serve as the functional equivalent of traditional search warrants. Thus, a traditional search warrant is not required, only the mandates of WESCA must be complied with in order to lawfully obtain authorization for a GPS tracking device. The court noted that, because of the purpose of WESCA, and once an order is lawfully obtained through it, WESCA protects citizens’ legitimate expectation of privacy, while recognizing the needs of law enforcement to combat crime.
As of the date of this writing, March 19, 2013, according to Pennsylvania’s Unified Judicial System Web Portal, no party in Burgos has yet filed a petition for allowance of appeal to the Pennsylvania Supreme Court. However, criminal lawyers on behalf of Arthur filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on March 14, 2013.
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