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COMMONWEALTH PENNSYLVANIA v. VINCENT A. BENNETT (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
VINCENT A. BENNETT



Appeal from the Order of the Court of Common Pleas of Bucks County, Criminal Division granting the appellee's Petition to Suppress Evidence, dated February 28, 1975 at No. 2039, 1974 Sessions. No. 1002 October Term, 1975.

COUNSEL

Stephen B. Harris, First Assistant District Attorney, Warrington, for appellant.

Arthur R. Sagaskin, Assistant Public Defender, Doylestown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a concurring opinion. Van der Voort, J., files a concurring opinion. Hoffman, J., files a dissenting opinion in which Jacobs, J., joins. Spaeth, J., files a concurring and dissenting opinion.

Author: Price

[ 245 Pa. Super. Page 458]

The appellee was indicted on October 8, 1974, for violation of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Appellee's pretrial motion to suppress

[ 245 Pa. Super. Page 459]

    evidence was granted by the lower court on November 28, 1974, and the Commonwealth appeals that determination. We find the suppression was improperly granted and will, therefore, reverse the lower court's order.

The facts indicate that as part of a drug investigation, the Superior Court of New Jersey authorized a wiretap on a telephone terminal located within that state. This New Jersey investigation was initiated, in large part, on information supplied to New Jersey law enforcement officers by Pennsylvania State Police Officer Kenneth Anthony. The surveillance, conducted entirely within the boundaries of New Jersey, was in effect from February 8, 1974, until February 23, 1974, and all telephone conversations to and from the monitored terminal during this period were recorded. The order authorizing the wiretap also provided for full disclosure of information obtained to Pennsylvania law enforcement authorities who had aided in the investigation.

This New Jersey surveillance revealed that telephone calls were received from and made to appellee at his home address at 143 Walnut Terrace, Middletown Township, Bucks County, Pennsylvania. Based on this information, on February 25, 1974, Trooper Anthony secured a warrant to search appellee's house and automobile. The search uncovered a blue suitcase containing marijuana residue, cigarette papers, a plastic bag of marijuana, a "smoking" pipe, a small scale, a "hash" pipe, a red notebook containing a list of prices, a can containing marijuana, and a large note pad with notations, presumably relating to drug sales.

This case of first impression requires a determination of whether this information from a foreign jurisdiction may be used to support a search warrant in Pennsylvania. The answer to this question will, in turn, determine the admissibility of the evidence secured under the Pennsylvania search warrant. We must conclude that the use in this Commonwealth of information secured through a

[ 245 Pa. Super. Page 460]

    valid, legal, properly authorized wiretap in a foreign jurisdiction is not in contravention of the Pennsylvania anti-wiretapping statutes,*fn2 and that the evidence seized in Pennsylvania under such a warrant is admissible. To reach any other conclusion would result in an unwarranted extension of the exclusionary rule set forth in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The information in question was derived through a wiretap legally authorized by the Superior Court of New Jersey pursuant to the provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act.*fn3 While it is conceded that this information could not have been legally obtained under the laws of this Commonwealth had the wiretap occurred within our boundaries, this fact has no effect on information obtained in a sister state.

It is, of course, obvious that the courts of this Commonwealth have absolutely no power to control the activities of a sister state or to punish conduct occurring within that sister state. The legislature of New Jersey has determined that wiretapping, in appropriate circumstances and for proper cause shown, will be permitted within its borders. Thus, the information involved in the appeal before us was obtained by the New Jersey Police under a legal authorization. A conclusion that denies the exchange of information between law enforcement agencies of our Commonwealth and those of our sister states cannot be justified. The overriding public policy must be to allow such an exchange, for public policy, in the absence of legislative mandate, must favor the interest of the public by fostering its protection through the detection and apprehension of those who persist in

[ 245 Pa. Super. Page 461]

    defying our laws. This is particularly true in the case of major interstate drug dealers whose activities wreck the lives of so many people in this country today. We certainly must extend to all people the protection of constitutional safeguards, but to extend such protection, on the instant facts, would be an unwarranted extension allowing procedure to emerge victorious over justice.

It cannot be denied that the Pennsylvania anti-wiretapping statutes proscribe certain activities and declare illegal the evidence obtained from those specified activities within the borders of this Commonwealth. However, nowhere in these legislative enactments are we able to find, either specifically or by inference, a legislative mandate that extends to the activities before us. The legislature, by the enactment of these statutory proscriptions, has clearly spoken its intention. It is the duty of the courts of this Commonwealth to interpret and enforce that intention. It is not, however, a part of the judicial function to extend and amend the legislation here involved by drafting an amendment to that legislation which declares all wiretap information and evidence secured thereunder illegal wherever and however it may be obtained. Had the legislature so intended, it would have been a matter of no difficulty, by the use of a few simple words of English, to so declare it.

If the legislature of a sister state or foreign jurisdiction determines that wiretapping will be permitted within its borders, we will not, under the present laws of Pennsylvania, question that decision. Nor should we hinder our law enforcement agencies by needless restrictions upon their use of information and evidence that properly comes to their attention.

The case cited by the appellee as most closely resembling the appeal before us is People v. Jones, 30 Cal.App.3d 852, 106 Cal.Rptr. 749 (1973). In that case, the wiretaps were conducted by a United States Attorney in California under authorization granted by a Federal District

[ 245 Pa. Super. Page 462]

Court pursuant to a federal statute. Hence, the evidence was legally obtained under federal law. This evidence was turned over to a California district attorney, but was later ordered suppressed. The state court made the observation that the purpose of the federal law is not to circumvent state law, but to allow the states to supplement the law, provided the states do not make their requirements more permissive than the federal law. The California decision found the state statute to be more stringent than the federal law. It is important to note that all of the activities there considered occurred within the boundaries of California, and nowhere therein is an indication of California's direction on facts such as are now before us. We find this point sufficiently distinguishes Jones from the case at bar to make it inapposite as precedent.

No useful purpose whatsoever would be served by denying the Commonwealth the use of this information when applying for a search warrant. We would not chastise errant law enforcement agencies or officers and we are not dealing with scoundrels who would use this information to the detriment of our citizens. We would not influence future wiretaps in New Jersey. Pennsylvania police officers did not participate in any manner in the securing of this wiretap or in the resulting New Jersey surveillance. No law of this Commonwealth was violated, and the rights of our citizens were not infringed.

The order of the lower court suppressing the evidence is reversed.

[ 245 Pa. Super. Page 463]

CERCONE, Judge, concurring:

I join in the majority opinion, but I wish to expand on the discussion of some points raised in the dissenting opinion by Judge Hoffman. The dissent states that by barring the use of wiretap evidence lawfully obtained in another state, and the fruits thereof, we would secure the public policy of Pennsylvania which declares the use of wiretaps illegal as an intolerable encroachment upon our citizens' right to privacy. I fail to see how. In point of fact, the only interest which the result proposed by the dissent would protect is the criminal's interest in not having highly probative evidence used against him in a criminal prosecution. The dissent admits that today's decision can have no affect on New Jersey's continued use of its own wiretap statute, even with respect to Pennsylvania citizens; yet, the dissent persists with the notion that its decision would safeguard the right of privacy of Pennsylvania citizens. One's right to privacy is encroached upon when the wiretap occurs, not when criminally inculpatory evidence is used against him in a criminal proceeding. Even if the proposed dissent were adopted by the majority today, the news media certainly could use this suppressed information to declare to the world that Mr. Bennett trafficks in narcotics; but, we would be holding that the courts of law may not hear the evidence of that illegal conduct lest we encroach upon his privacy. Both practically and legally I see nothing to commend that conclusion.

Furthermore, the dissenting opinion's analysis distorts the policy of this Commonwealth to achieve a wholly undesirable result. Certainly, no one would suggest that we have an anti-wiretap law in order to safeguard the "right" of criminals to effectively carry out their criminal designs. Rather, what our legislature has determined

[ 245 Pa. Super. Page 464]

    is that there is no effective way to determine in every instance in advance whether a telephone conversation will relate wholly or even partially to criminal matters. Reading on in Mr. Fineman's speech before the legislature in 1957, quoted in part in the dissenting opinion, that point becomes altogether clear:

"Even the proponents of a modified form of wire tap admit that wiretapping is at best a dirty business. Although I recognize that we must strike some sort of balance, between the interests of the public and the right of the individual, no matter how delicate that balance may be we cannot sacrifice individual right when the end does not justify it.

"The thing that is most offensive about wire tapping is the fact that wire tapping has as a necessary result an extensive intrusion on the right of privacy of innocent persons. When a tap is placed on a wire, that tap is maintained day and night, 24 hours. Every conversation, no matter how foreign to the stated objective of the wire tap, is heard. Every conversation, no matter how confidential, how intimate, whether it concerns professional advice, business or confidential matters, is laid bare. Every conversation to the phone where the tap is placed is overheard. Every conversation from the phone where the tap is placed is overheard.

"I respectfully submit it would be a severe intrusion on our right of privacy to give the police even this limited right of wire ...


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