No. 3351 Philadelphia 1981, No. 247 Philadelphia 1982, No. 1136 Philadelphia 1982, No. 1763 Philadelphia 1982, No. 1798 Philadelphia 1982, No. 2666 Philadelphia 1982, APPEALS FROM JUDGMENTS OF SENTENCE, COURT OF COMMON PLEAS, DELAWARE COUNTY, CRIMINAL DIVISION AT NOS. 1198-81, 1523-81, 1197-81, 1199-81, 1521-81 and 1522-81.
Timothy J. Gorbey, Media, for appellants (at Nos. 3351, 247 & 1136).
John Rogers Carroll, Media, for appellants (at Nos. 1763, 1798 & 2666).
Sheldon Kovach, Assistant District Attorney, Media, for Com., appellee.
Cirillo, Johnson and Montemuro, JJ.
[ 327 Pa. Super. Page 255]
These consolidated, direct appeals raise an issue of first impression in this Commonwealth: whether the utilization by law enforcement agencies of pen registers or dialed number recorders (DNRs) requires a judicial order based upon probable cause. We hold that such an order is required, and reverse the judgments of sentence.
Each of the six appellants was arrested in March of 1981 after searches of their individual residences revealed various
[ 327 Pa. Super. Page 256]
illegal gambling paraphernalia and, as to certain appellants, controlled substances. After separate non-jury trials, each appellant was convicted of lotteries*fn1 and gambling.*fn2
Following their convictions, each appellant argued motions for a new trial, all of which were subsequently denied and sentences imposed. Notices of appeal were filed and appeals consolidated to this Court.
Viewing the evidence in the light most favorable to the verdict winner, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), the record discloses that an investigation into alleged illegal gambling activities in Delaware County during January of 1981 revealed that Cynthia O. Forcino was operating an illegal numbers operation from her residence in Drexel Hill. On February 10, 1981, the police submitted an application to the trial court for an order permitting the installation of a DNR on Forcino's telephone line to monitor the numbers dialed from that unit. The trial court granted the application on the same day.
On February 11, 1981 a confidential informant contacted the police with information concerning Forcino's numbers operation. The informant told of personally witnessing Forcino taking bets by telephone in her residence. The informant gave a description of Forcino, her address, telephone number, and the vehicles she drove and also stated that Forcino had eight to ten numbers writers with whom she kept in contact by telephone. Through subsequent checks the police substantially corroborated the informant's tips.
Thereafter, an order was secured from the trial court for DNR monitoring of the telephone number registered to appellant Karin Guinn, as police had subsequently received
[ 327 Pa. Super. Page 257]
information from the same informant stating that Forcino would be forwarding her incoming calls to that number.
On February 27 and March 2, 1981 the confidential informant spoke with police and informed them that Forcino had told him that she was moving her gambling operation telephone number. On each occasion the informant gave police the new number. Checks of the new telephone numbers by police revealed the names and addresses of the parties to whom these numbers were registered. Subsequent police surveillance also confirmed the presence of one of Forcino's vehicles parked outside those addresses. The authorities then secured orders for the installation of DNRs for those telephone numbers received from the informant.
As a result of monitoring the various DNRs, the evidence revealed substantial numbers of outgoing and incoming calls of short duration (one minute or less) between the hours of noon and 7:00 p.m., Monday through Saturday*fn3 among the various telephone lines used by Forcino and Guinn. The remaining four appellants were implicated by evidence of frequent calls made during the monitored time period from the Forcino and Guinn monitored telephones, to numbers registered to appellants.*fn4
Separate search warrants for each appellant were secured and executed on March 6, 1981, resulting in each appellant's arrest and the confiscation of gambling materials and, in the case of Forcino and Hayes, controlled substances.
[ 327 Pa. Super. Page 258]
Each appellant subsequently filed motions to suppress, which were denied.
Appellants raise various challenges to the searches and seizures conducted in this case, but the issue which most concerns us is the legality of the DNR monitoring which later led to the searches of appellants' residences. Appellants contend the monitoring was both constitutionally and statutorily unlawful.
Before explaining why we accept appellants' constitutional argument, we review the statutory argument to lay ...