Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County at No. 84-10, 589.
Peter T. Campana, Williamsport, for appellant.
Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellee.
Cirillo, President Judge, and Rowley, Olszewski, Del Sole, Montemuro, Beck, Tamilia, Kelly, and Popovich, JJ. Olszewski and Kelly, JJ., file concurring and dissenting opinions. Beck, J., files a concurring and dissenting statement. Rowley, J., files a dissenting statement.
[ 370 Pa. Super. Page 182]
This case concerns the legality of a technique of electronic surveillance known as "participant monitoring," or using a body wire to surreptitiously record a person's conversations. The issue is whether, under the Pennsylvania Constitution, the police need a search warrant based on probable cause to send a confidential informer into the home of an individual to electronically record his conversations and transmit them back to the police. We hold that article I, section 8 of our constitution, which protects the right of the people to be secure from unreasonable searches and seizures, requires a warrant based on probable cause for the electronic seizure of such communications. We therefore reverse the judgment of sentence and remand for a new trial at which the fruits of the warrantless electronic surveillance of the defendant will be excluded.
The appellant Schaeffer was convicted of possession with intent to deliver marijuana and three counts of simple
[ 370 Pa. Super. Page 183]
possession of controlled substances. The police had employed a confidential informant to make a controlled purchase of marijuana from Schaeffer in his home. A number of days later, they equipped the same informer with a body transmitter and sent him into the Schaeffer home to make another buy. As the transaction was occurring, the police monitored and recorded a conversation between Schaeffer and the informer indicating that Schaeffer would have additional marijuana for sale by the evening of a specified date. The day after that date, the police swore out a warrant to search Schaeffer's home, reciting as probable cause the controlled buys the informer had made and the contents of the conversation the police had overheard. The police executed the warrant and seized the drugs that formed the basis for the prosecution.
In a pre-trial suppression motion and in post-trial motions, Schaeffer challenged the constitutionality of the electronic eavesdropping procedure used by the police. The trial court denied the motions, and Schaeffer appealed, alleging that the search of his home violated both the federal and state constitutions.
After Schaeffer filed his appeal, a panel of this court issued an opinion holding that neither the federal nor the state constitution forbids the warrantless electronic interception, transmittal, and recording of a person's conversations in his home where the other party to the conversations has consented to the interception. Commonwealth v. Harvey, 348 Pa. Super. 544, 502 A.2d 679 (1985); accord Commonwealth v. Rodriguez, 356 Pa. Super. 543, 515 A.2d 27 (1986); see also Commonwealth v. Frank, 357 Pa. Super. 442, 448-49, 516 A.2d 64, 68 (1986). Due to the great importance of the issue involved, we ordered this case argued before the court en banc to re-examine whether Harvey correctly interpreted the Pennsylvania Constitution as affording no protection from the warrantless electronic seizure by a secret government agent of an individual's conversations in the privacy of his home.
[ 370 Pa. Super. Page 184]
Before December 3, 1978, the effective date of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701-5727, see Act of Oct. 4, 1978, No. 164, sec. 3, 1978 Pa.Laws 831, 848, electronic eavesdropping with one party's consent, which the Harvey court found not to implicate the state constitutional right to privacy, was a second-degree misdemeanor proscribed by an amendment to Chapter 57 of the Crimes Code, which at that time was entitled "Invasion of Privacy." See Act of Dec. 27, 1974, No. 327, 1974 Pa.Laws 1007 (repealed 1978). The remainder of that chapter banned wiretapping. See Act of Dec. 6, 1972, No. 334, sec. 1, §§ 5701-5704, 1972 Pa.Laws 1482, 1568-69 (repealed 1978); accord Act of July 16, 1957, No. 411, 1957 Pa.Laws 956 (repealed 1972).
The 1978 Act, while retaining and enhancing the criminal penalties for wiretapping and other electronic interceptions of communications, see 18 Pa.C.S. § 5703, carved out limited exceptions to these general prohibitions. Most significantly, the Act for the first time in the Commonwealth's history specifically authorized law enforcement officers to engage in wiretapping and electronic surveillance, subject to a stringent procedure for showing probable cause before a superior court judge. See generally id. §§ 5708-5726. The Act exempted certain other electronic surveillance techniques from these strictures. The technique used in this case is treated in subsection 5704(2):
§ 5704. Exceptions to prohibition on interception and disclosure of communications
It shall not be unlawful 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 or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communication; or
[ 370 Pa. Super. Page 185]
(ii) one of the parties to the communication has given prior consent to such interception . . . .
Id. § 5704(2); cf. 18 U.S.C.A. § 2511(2)(c)-(d) (West Supp. 1987).
The Harvey court, faced with the contention that 5704(2) was unconstitutional, noted the strong judicial presumption in favor of the constitutionality of a statute and held, among other things, that neither the fourth amendment to the United States Constitution nor article I, section 8 of the Pennsylvania Constitution requires a warrant for the type of electronic participant monitoring which 5704(2) permits. Accord Rodriguez; Commonwealth v. Hassine, 340 Pa. Super. 318, 490 A.2d 438 (1985). Although we concur with Harvey that the fourth amendment, as interpreted by the United States Supreme Court, imposes no limits on one-party consent eavesdropping, we disagree with its ruling that under the Pennsylvania Constitution the police may engage in such monitoring in a citizen's home without first obtaining a search warrant. We need not find section 5704(2) unconstitutional to arrive at this holding, because a reasonable construction of the Act allows the conclusion that the General Assembly's exemption of participant monitoring from the prohibitions and requirements of the Act was not necessarily a legislative declaration that the practice was free of state constitutional constraints as well.
As a matter of federal constitutional jurisprudence, the Harvey panel's conclusion that warrantless participant monitoring does not offend the fourth amendment prohibition on unreasonable searches and seizures is correct.
The United States Supreme Court first reviewed the practice in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), where an informer equipped with an electronic recorder and transmitter surreptitiously intercepted the defendant's statements in his laundry shop and transmitted them to a federal agent. The Court held there was no fourth amendment violation because the informer
[ 370 Pa. Super. Page 186]
had not trespassed on the defendant's premises when he entered them to converse with the defendant. The Court further found it a "farfetched analog[y] which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search and seizure." 343 U.S. at 753-54, 72 S.Ct. at 972; see also Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942) (warrantless electronic eavesdropping on telephone conversation from adjoining room not a fourth amendment violation); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (warrantless off-premises wiretapping not a fourth amendment violation).
In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), however, the Court laid the "trespass" theory of fourth amendment protection to rest, holding
the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
389 U.S. at 351-52, 88 S.Ct. at 511 (citations omitted). The Court found that the monitoring and recording of a defendant's words by means of an electronic bugging device attached to the outside of a public telephone booth "violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id. at 353, 88 S.Ct. at 512. The Court had already determined before Katz that electronic surveillance could be a "search" and conversations could be "seized" within the meaning of that amendment. See, e.g., Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (invalidating statute authorizing judicially-ordered electronic eavesdropping as violative on its face of fourth amendment requirement of search warrant particularity); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (warrantless
[ 370 Pa. Super. Page 187]
intrusion into house with "spike mike" violated fourth amendment, fruits of surveillance suppressed).
In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Supreme Court got the chance to reassess On Lee in light of the advances in fourth amendment doctrine bringing electronic eavesdropping within its scope. A divided Court reaffirmed the holding of On Lee, finding that warrantless eavesdropping on conversations between a suspect and an informant by means of a radio transmitter concealed on the informant's person did not violate the fourth amendment, any more than did a secret informer's reporting a suspect's words to the police or a government agent's secretly recording them, neither of which the Court had found to violate the Constitution. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (secret government informant may report suspect's conversations to the government); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (IRS agent could surreptitiously record defendant's bribe offer). Writing for a plurality of four Justices, Justice White reasoned:
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.
White, 401 U.S. at 751, 752, 91 S.Ct. at 1126, 1126 (plurality opinion). Justice Black concurred in the judgment based on the now-discredited view he had expressed in Katz, 389 U.S. at 364-74, 88 S.Ct. at 518-23 (Black, J., dissenting), that the
[ 370 Pa. Super. Page 188]
fourth amendment's prohibition on unreasonable searches and seizures did not apply to eavesdropping on conversations. White, 401 U.S. at 754, 91 S.Ct. at 1127 (Black, J., concurring).
An alternative holding of the White Court was that Katz did not apply retroactively to the pre- Katz bugging that took place in White. Id. at 754, 91 S.Ct. at 1127, 1128 (plurality opinion), 755 (Brennan, J., concurring); accord Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (plurality opinion) (Katz not retroactive). Justice Brennan concurred in the White result on the limited grounds of Katz 's non-retroactivity, but disagreed with the White plurality on the constitutionality of warrantless participant monitoring after Katz. Justices Douglas, Harlan, and Marshall each dissented in White and would have applied Katz retroactively and found the participant monitoring to have violated the fourth amendment.
In summary, after Katz and White, the fourth amendment warrant requirement applies to electronic eavesdropping conducted by the police without the consent of either party to the conversation, see Katz; Berger; cf. United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (warrantless monitoring of electronic beeper in home violated fourth amendment), but does not apply where one of the parties to the conversation consents. See White; Commonwealth v. Donnelly, 233 Pa. Super. 396, 408-13, 336 A.2d 632, 638-41 (following White under fourth amendment), allocatur refused, 233 Pa. Super. xxxvi (Pa. 1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976); see also United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).
Our authority, however, to diverge from the United States Supreme Court by recognizing a higher level of protection for individual rights under our state constitution is well settled. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489
[ 370 Pa. Super. Page 189]
(1977). "[I]t cannot be doubted that this state has the constitutional power to guard individual rights, including the right to be free from unreasonable searches and seizures, more zealously than the federal government does under the United States Constitution." Commonwealth v. Beauford, 327 Pa. Super. 253, 263, 475 A.2d 783, 788 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985); accord Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-67 (1983); Commonwealth v. Tarbert, 348 Pa. Super. 306, 309-11, 502 A.2d 221, 222-23 (1985), allowance of appeal granted, 511 Pa. 363, 513 A.2d 1381 (1986); In re Gartley, 341 Pa. Super. 350, 372, 491 A.2d 851, 863, allowance of appeal granted, 508 Pa. 352, 497 A.2d 610 (1985). "[T]he state," therefore, "has the power to impose standards on searches and seizures higher than those required by the Federal Constitution." Commonwealth v. DeJohn, 486 Pa. 32, 43, 403 A.2d 1283, 1288 (1979) (plurality opinion) (quoting Commonwealth v. Harris, 429 Pa. 215, 219 n. 2, 239 A.2d 290, 292 n. 2 (1968)), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980); accord Commonwealth v. Leninsky, 360 Pa. Super. 49, 519 A.2d 984, 986 (1986) (plurality opinion); Commonwealth v. Walsh, 314 Pa. Super. 65, 74, 460 A.2d 767, 771, allowance of appeal denied, 314 Pa. Super. 65, 460 A.2d 767 (Pa. 1983); see Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967).
In Sell, Justice (now Chief Justice) Nix quoted Justice Brennan's guidelines for state courts faced with deciding whether their own constitutions should be interpreted to provide broader protection of individual rights than the United States Supreme Court recognizes under the federal:
[T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional
[ 370 Pa. Super. Page 190]
decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.
504 Pa. at 49, 470 A.2d at 459 (quoting Brennan, supra, at 502). In DeJohn, which one observer has called "a model of state constitutional independence," Galie, The Pennsylvania Constitution and the Protection of Defendants' Rights 1969-1980: A Survey, 42 U.Pitt.L.Rev. 269, 287 (1981), our state high court provided further guidance on the deference owed to decisions of the United States Supreme Court:
For a state court interpreting a state constitution, opinions of the United States Supreme Court are like opinions of sister state courts or lower federal courts. While neither binding in a constitutional sense nor precedential in a jurisprudential one, they are entitled to whatever weight their reasoning and intellectual persuasiveness warrant. One would expect a state court to deal carefully with a Supreme Court opinion and to explain forth-rightly why it found itself constrained to reason differently. But such a difference in reasoning should be no more alarming than the differences which impel one judge to dissent from another's opinion, one court to disagree with another, or the judges of any court to disagree with a precedent established by their predecessors.
486 Pa. at 44, 403 A.2d at 1289 (plurality opinion) (quoting Falk, The State Constitution: A More Than "Adequate" Nonfederal Ground, 61 Calif.L.Rev. 273, 283-84 (1973)); accord Beauford, 327 Pa. Super. at 264-65, 475 A.2d at 789.
Having taken this counsel to heart, we reject the reasoning of the United States Supreme Court, followed by this court in Harvey, which finds that a citizen gives up the right to be free from warrantless electronic seizure of words spoken in his home simply because another party to the conversation has consented to the interception. In the
[ 370 Pa. Super. Page 191]
Commonwealth of Pennsylvania, no citizen should have to expect that the government may immediately and irrevocably seize his private thoughts every time he voices them to another person. Moreover, whatever the distinction between electronic eavesdropping done without consent and electronic eavesdropping done with the consent of a government informant, it does not support a rational conclusion that the first practice is a government "search and seizure" into the speaker's protected zone of privacy while the second practice is not. On the contrary, a more valid distinction for constitutional purposes is between the government's mere use of an informant to recount what someone has told him and its simultaneous electronic monitoring of a man's words spoken in his home, because the latter is a far graver intrusion on privacy and freedom of speech. Without a warrant, such intrusion is manifestly unreasonable, and therefore violative of article I, section 8 of the Pennsylvania Constitution, and we overrule Harvey and all other decisions of this court to the extent that they hold otherwise. Harvey, 348 Pa. Super. at 554-55, 502 A.2d at 683-84; Frank, 357 Pa. Super. at 448-49, 516 A.2d at 68; Rodriguez, 356 Pa. Super. at 551-54, 515 A.2d at 31-32; cf. Hassine, 340 Pa. Super. at 353-57, 490 A.2d at 456-59 (wiretap). We thus join the high courts of a small minority of jurisdictions that have parted ways with White and found that warrantless participant monitoring offends rights guaranteed by their state constitutions. See State v. Glass, 583 P.2d 872 (Alaska 1978); State v. Sarmiento, 397 So.2d 643 (Fla. 1981); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975); State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978); cf. State v. Lee, 67 Haw. 307, 686 P.2d 816 (1984) (3-2 decision holding one-party consensual monitoring not violative of state constitution); State v. Lester, 64 Haw. 659, 649 P.2d 346 (1982) (same, although Menor, J., concurring, would apply the warrant requirement to interceptions in the home); State v. Reeves, 427 So.2d 403 (La. 1982) (court originally held 6-1 that state constitution required warrant for one-party consent monitoring; on rehearing after accession
[ 370 Pa. Super. Page 192]
of three new justices, held 4-3 that it did not); Commonwealth v. Thorpe, 384 Mass. 271, 424 N.E.2d 250 (1981) (warrantless recording didn't violate state search and seizure provision in view of limited scope of surveillance done by policeman whom defendant knew to be such; court nevertheless advised police to obtain warrants for such monitoring where they had probable cause), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). But see State v. Ridenour, 453 So.2d 193 (Fla.Dist.Ct.App. 1984) (Sarmiento no longer good law after amendment to Fla.Const. art. I, § 12).
We begin by observing that our state constitution offers more protection to the right to privacy than exists in the federal regime, and hence it recognizes a greater right of the individual to exclude unreasonable impositions by government on private communications. The primary, though not the only, source of such protection in the Pennsylvania Constitution is article I, section 8, which 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. "Article I, section 8 of the Pennsylvania Constitution, as consistently interpreted by this court, mandates greater recognition of the need for protection from illegal government conduct offensive to the right of privacy." Sell, 504 Pa. at 67, 470 A.2d at 468 (emphasis added) (rejecting United States Supreme Court precedent and adopting rule of automatic standing to challenge searches involving possessory offenses in Pennsylvania). In Sell, the supreme court, through Justice Nix, offered a historical explanation for why the meaning of article I, section 8 could not be confined by narrow interpretations given to the fourth amendment:
[ 370 Pa. Super. Page 193]
[C]onstitutional protection against unreasonable searches and seizures existed in Pennsylvania more than a decade before the adoption of the federal Constitution, and fifteen years prior to the promulgation of the Fourth Amendment. Clause 10 of the Pennsylvania Constitution of 1776 afforded such a guarantee.
In construing Article I, section 8, we find it highly significant that the language employed in that provision does not vary in any significant respect from the words of its counterpart in our first constitution. The text of Article I, section 8 thus provides no basis for the conclusion that the philosophy and purpose it embodies today differs from those which first prompted the Commonwealth to guarantee protection from unreasonable governmental intrusion. Rather, the survival of the language now employed in Article I, section 8 through over 200 years of profound change in other areas demonstrates that the paramount concern for privacy first adopted as a part of our organic law in 1776 continues to enjoy the mandate of the people of this Commonwealth.
504 Pa. at 63, 65, 470 A.2d at 466, 467.
Therefore, in applying this guarantee against "unreasonable governmental intrusion," the Pennsylvania Supreme Court "has subjected searches and seizures to standards higher than those required under the Federal Constitution [and in doing so has] noted that 'the right to be free from unreasonable searches and seizures contained in Art. I, § 8 of the Pennsylvania Constitution is tied into the implicit right to privacy in this Commonwealth.'" Lunderstadt v. Pennsylvania House of Representatives, 513 Pa. 236, 247, 519 A.2d 408, 414 (1986) (plurality opinion) (quoting DeJohn, 486 Pa. at 49, 403 A.2d at 1291 (plurality opinion)) (emphasis ours).
Indeed, as this court observed in Beauford,
[ 370 Pa. Super. Page 194]
Embodied in the constitutional statement of the principle [in art. I, § 8] is a right to privacy older than either the federal or state constitution. Commonwealth v. Page 194} Palms, 141 Pa. Super. 430, 15 A.2d 481 (1940). The right to be free from unreasonable searches and seizures is at the foundation of our body politic, in direct line with "the proud boast of an Englishman that his home was his castle and that as long as he obeyed the law, the King and his army could not enter it against his will." Id., 141 Pa. Superior Ct. at 439, 15 A.2d at 485.
Beauford, 327 Pa. Super. at 261, 475 A.2d at 787; see also Silverman, 365 U.S. at 511, 81 S.Ct. at 682 ("The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.").
The right to privacy in Pennsylvania, and hence the right to exclude unreasonable government intrusion, encompasses freedom from disclosure of personal matters. See, e.g., Denoncourt v. Commonwealth, State Ethics Comm'n, 504 Pa. 191, 197-98, 470 A.2d 945, 948 (1983) (plurality opinion); In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 151, 415 A.2d 73, 77 (1980) (Eagen, C.J., joined by O'Brien & Kauffman, JJ; Larsen, J., & Flaherty, J., dissenting on other grounds, concurred in the holding) ("This privacy interest finds explicit protection in the Pennsylvania Constitution, Art. I, § 1 . . . ."). In Denoncourt, Justice Flaherty summarized some of the underpinnings of our constitutional right to privacy, drawing on the language used half a century earlier by Justice Brandeis to combat the view that warrantless wiretapping did not trench on that right:
[ 370 Pa. Super. Page 195]
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, Page 195} the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men.
504 Pa. at 199, 470 A.2d at 948-49 (plurality opinion) (quoting Olmstead v. United States, 277 U.S. at 478, 48 S.Ct. at 572 (Brandeis, J., dissenting) (emphasis added)); accord Commonwealth v. Murray, 423 Pa. 37, 50-51, 223 A.2d 102, 109-10 (1966) (plurality opinion) (Musmanno, J.).
When it comes to protecting this "most comprehensive of rights," moreover, the nation's High Court concedes that "the protection of a person's general right to privacy -- his right to be let alone by other people -- is, like the protection of his property and of his very life, left largely to the law of the individual states." Katz, 389 U.S. at 350-51, 88 S.Ct. at 510-11 (footnotes omitted).
In Commonwealth v. Beauford, this court took the first giant step towards recognizing a higher standard of protection from electronic surveillance under the Pennsylvania Constitution than the Federal Constitution provides. We there held that article I, section 8 prohibited the warrantless installation of a pen register on a telephone line to record the destination, time, and length of outgoing calls. We so held despite a provision of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5704(5), declaring it "not . . . unlawful under this chapter" for a law enforcement officer to use a pen register, and despite a ruling by the United States Supreme Court that warrantless use of pen registers does not offend the fourth amendment. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). We thus disagreed with the Supreme Court on the extent of the individual's "legitimate expectation of privacy" in cases of warrantless electronic surveillance.
Smith said that "[i]n determining whether a particular form of government-initiated electronic surveillance is a 'search' within the meaning of the Fourth Amendment, our lodestar is [ Katz ]," and that under Katz "the application of the Fourth Amendment depends on whether the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been
[ 370 Pa. Super. Page 196]
invaded by government action." 442 U.S. at 739-40, 99 S.Ct. at 2580 (footnote and citations omitted). Thus, to reach its holding that the fourth amendment did not extend to police use of pen registers, the Smith Court found that a caller had no "legitimate expectation of privacy" regarding the numbers he dialed on his phone. Id. at 742, 99 S.Ct. at 2581.
Beauford rejected the reasoning in Smith and found that under article I, section 8 an expectation of privacy in numbers dialed was legitimate and therefore constitutionally protected from government surveillance without a warrant. We relied heavily on DeJohn, wherein the Pennsylvania Supreme Court rejected the holding of the United States Supreme Court in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) that the fourth amendment did not prohibit the warrantless seizure of banking records, and found that a bank customer's expectation of privacy in her banking records was reasonable, legitimate, and constitutionally protected under article I, section 8. DeJohn, in turn, followed the precedent set in Burrows v. Superior Court, 13 Cal.3d 238, 529 P.2d 590, 118 Cal.Rptr. 166 (1974), where the California Supreme Court focussed on the sophisticated data-gathering and storage capabilities made possible by modern electronic means, and warned:
Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.
13 Cal.3d at 247, 529 P.2d at 596, 118 Cal.Rptr. at 172, quoted in DeJohn, 486 Pa. at 46, 403 A.2d at 1290 (plurality opinion). Our supreme court agreed, saying "[w]e believe the analysis of the California Supreme Court, in recognizing modern electronic realities, is more persuasive than the simplistic proprietary analysis supposedly rejected in
[ 370 Pa. Super. Page 197]
[ Katz ], used by the court in Miller." 486 Pa. at 47, 403 A.2d at 1290 (O'Brien, J., joined by Eagen, C.J., and Nix, J.; Manderino, J., dissenting on other grounds, concurred in the holding).
Our Beauford opinion, in finding the use of pen registers subject to the warrant requirement, also relied on the great caution with which this State has always regarded intrusions on privacy accomplished through electronic surveillance. 327 Pa. Super. at 267-68, 475 A.2d at 790-91; see, e.g., Commonwealth v. Papszycki, 442 Pa. 234, 275 A.2d 28 (1971); Murray, 423 Pa. at 50-51, 223 A.2d at 109-10 (plurality opinion) (eavesdropping on telephone conversation with one party's consent intruded on privacy rights guaranteed by Pa. Const. art. I, §§ 1, 8); see also Commonwealth v. Doty, 345 Pa. Super. 374, 392, 498 A.2d 870, 879 (1985); Pa. House Legislative Journal 3147 (1978) (statement of Rep. Rhodes).
Thus, the recent trend of decisions in Pennsylvania shows a marked refusal by our courts to accept the United States Supreme Court's premise that one gives up all constitutional rights to privacy in certain matters merely by disclosing them to selected other persons.
Of course, all the vaunted additional protection which the Pennsylvania Constitution extends to its citizens' privacy is of no moment in this case if one concludes that electronic eavesdropping through a government informant sent into a person's home does not invade a zone of privacy in which that person may justifiably claim protection. This the Harvey court concluded, relying, in our view, on a quite mechanical application of the reasoning employed by the Supreme Court plurality in White. The Harvey court acknowledged this state's constitutional power to impose higher standards on police searches and seizures than the federal government does under the United States Constitution, and acknowledged that in Beauford and DeJohn Pennsylvania courts had interpreted article I, section 8 to provide broader protection against unreasonable searches and seizures
[ 370 Pa. Super. Page 198]
than the fourth amendment provides. "Nevertheless," the Harvey court stated,
it is difficult under any interpretation of Article 1, Section 8, to find a justifiable expectation of privacy with respect to information disclosed during conversation with a third person. Disclosures made during conversation are entirely voluntary. If a citizen voluntarily discloses criminal involvement during conversation with a third person, the Pennsylvania constitutional guarantee against unreasonable searches and seizures does not prevent future disclosure thereof to law enforcement officials. Similarly, the constitutional guarantee does not extend to or prevent a recording of the conversation in order to preserve the same for use in law enforcement activity. Nothing in contemporary constitutional thinking suggests otherwise.
348 Pa. Super. at 555, 502 A.2d at 684.
With all due respect to the author of Harvey, whose judicial scholarship and expression of opinion are normally beyond reproach, there is a substantial body of "contemporary constitutional thinking," both judicial and scholarly, suggesting that one-party consensual electronic eavesdropping conducted in a suspect's home without a warrant invades his constitutionally protected sphere of privacy more intrusively than the practice of simply using an informer without a body transmitter to report on a suspect's words. In White, in fact, and in Lopez before that, four members of the Supreme Court were precisely of that opinion.
As Justice Brennan, one of the four on both occasions, wrote in Lopez:
It is not Agent Davis' deception that offends constitutional principles, but his use of an electronic device to probe and record words spoken in the privacy of a man's office. For there is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of
[ 370 Pa. Super. Page 199]
privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy.
373 U.S. at 465-66, 83 S.Ct. at 1402 (Brennan, J., joined by Douglas and Goldberg, JJ., dissenting). And as Justice Harlan, author of the Lopez majority, later recanted and said in White,
The impact of the practice of third-party bugging [must] be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of "informer" investigation upheld in [ Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)] and [ Hoffa v. United States ]. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.
[ 370 Pa. Super. Page 200]
White, 401 U.S. at 787, 91 S.Ct. at 1143-44 (Harlan, J., dissenting). And as a constitutional scholar put the distinction between mere informing and electronic monitoring, before the Supreme Court split asunder over the issue in White: "[T]he electronic portrayal is more profound -- since it includes deception as to one's capacity to reproduce the conversation accurately or transmit it simultaneously -- and more inclusive -- since the other participant's remarks are heard indiscriminately by, rather than reported selectively to, the nonparty." Greenawalt, The Consent Problem in Page 200} Wiretapping and Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in the Conversation, 68 Col.L.Rev. 189, 215 (1968).
Thus, the electronic seizure is more immediate, invasive, and total than mere oral repetition by an informant, and its effects on people's feelings that they are secure in their homes to speak in private are far more insidious. Electronic surveillance, with or without one party's consent, therefore forces the speaker to readjust completely his traditional privacy expectations. Whether such expectations remain societally "legitimate" in today's world is the question we must answer, but we would do well to remember that before the advent of electronic surveillance, society did recognize the legitimacy of the notion of private speech.
The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.*fn2 Under our system of government, he can never be compelled to express them (except when upon the witness-stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.
The Right to Privacy, 4 Harv.L.Rev. 193, 198 & n. 2 (1890) (authored by Samuel D. Warren & Louis D. Brandeis); see also Denoncourt, 504 Pa. at 197-200, 470 A.2d at 948-49 (plurality opinion); Murray, 423 Pa. at 50, 223 A.2d at 109 (plurality opinion) ("natural law . . . makes the robbery of one's words as much a crime as purloining his money or jewels"); A. Westin, Privacy and Freedom 7 (1967).
The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is
[ 370 Pa. Super. Page 201]
the essence of the idea of privacy inherent in the First and Fifth Amendments as well as in the Fourth.
White, 401 U.S. at 763, 91 S.Ct. at 1131 (Douglas, J., dissenting); see also Lopez, 373 U.S. at 452, 470-71, 83 S.Ct. at 1395, 1404-05 (dissenting opinion) ("Surely high government officials are not the only persons who find it essential to be able to say things 'off the record.'").
With electronic surveillance, this zone of privacy which allows a man to choose the range of his auditors is gone. The resulting disclosure to the government of private thoughts is not voluntary as the Harvey court found, but compelled. See Osborn v. United States, 385 U.S. 323, 351-52, 87 S.Ct. 429, 445, 17 L.Ed.2d 394 (1966) (Douglas, J., dissenting); Lopez, 373 U.S. at 450, 83 S.Ct. at 1393 (Brennan, J., dissenting). Every speaker knows and accepts as a "condition of human society" that his listener may go to the police, but he does not intend by speaking to give up the right to exclude the police from his home. But if the police are simultaneously recording every word, they are already there, in the home, uninvited, contrary to every reasonable expectation that most people in society still have. A person committing his views "to the sight of his friends" knows he risks misjudging his friends, but he doesn't forfeit the right to determine in the first place to whom he will directly speak. The body bug destroys that right of self-determination, and if people in society come to believe the practice is widespread and done without probable cause, they may begin to fall silent on many occasions when previously they would have felt free to speak, confident in the belief that they could challenge the credibility or memory of the trusted colleague who would betray them.
It is with good reason, therefore, that the main constitutional distinction many authorities draw between participant monitoring and the ordinary reporting of conversations is the far graver and more chilling threat that "body bugging" poses to freedom of speech:
Authority is hardly required to support the proposition that words would be measured a good deal more carefully
[ 370 Pa. Super. Page 202]
and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity -- reflected in frivolous, impetuous, sacrilegious, and defiant discourse -- that liberates daily life. Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.
White, 401 U.S. at 787-89, 91 S.Ct. at 1144 (Harlan, J., dissenting) (footnotes omitted).
[t]he differences between talking to a person enswathed in electronic equipment and one who is not are very real, and they cannot be reduced to insignificance by verbal legerdemain. All of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd. Few of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as he talks to a person.
[T]he state argues that there is no difference between talking to a friend who repeats what is told in confidence and talking to one with a transmitter or recorder. All one needs do to refute that statement is to ask the question of oneself; would it make a substantial difference to the speaker to assume the risk, not only that one's confidence will be betrayed by oral recollections, but also the risk that one's remarks will be secretly recorded or broadcast? Certainly, many of the casual,
[ 370 Pa. Super. Page 203]
the caustic, the irreverent remarks would be inhibited, as would criticism of individuals and policies. The employee could not with impunity point to shortcomings in his superiors or in the functions of his office. Families could not freely discuss the foibles of others. Clever prodding may elicit thoughtless comments about sex, religion, politics, acquaintances, personal finances and even one's innermost thoughts. One takes the risk that his friend may repeat what has been said. One shouldn't be required to take the additional risk of an entirely different character -- that his conversation is being surreptitiously transcribed or broadcast.
A confidence repeated by a false friend is received by third parties with the attendant circumstances of the "friend's" credibility and memory. One's ill-considered remarks are not thereby preserved for posterity on the reels of magnetic tape nor insulated from the faded memories inherent in the passage of time. Faced with the choice of silence or the risk that comments will be "etched in stone," a speaker may choose the former alternative, to the manifest diminution of the spontaneity which marks our daily discourse.
State v. Glass, 583 P.2d at 877-78; see also White, 401 U.S. at 762-63, 91 S.Ct. at 1131 (Douglas, J., dissenting); Lopez, 373 U.S. at 452, 470, 83 S.Ct. at 1394, 1404 (Brennan, J., dissenting); Holmes v. Burr, 486 F.2d at 65 (Hufstedler, J., dissenting); People v. Hall, 88 Mich.App. 324, 329-30, 276 N.W.2d 897, 898-99, leave to appeal denied, 406 Mich. 941 (1979); The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 200-03 (1967) (" The Threat to Privacy. . . . Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect on the willingness to voice critical and constructive ideas."), quoted in Berger v. New York, 388 U.S. at 125, 87 S.Ct. at 1917 (White, J., dissenting).
[ 370 Pa. Super. Page 204]
In this respect, the Harvey and White courts seriously misconceive the chilling effect that warrantless monitoring has on our citizens' rights by assuming that it forces only "wrongdoers" to engage in "self-censorship" in speaking about their "criminal activities." See Harvey, 348 Pa. Super. at 551, 502 A.2d at 682. If this were the only ill effect of such surveillance we would not hesitate to agree that "body bugging" intrudes on no privacy interest that Pennsylvania is prepared to recognize as reasonable. The point White and Harvey miss, however, is that the risk of warrantless electronic surveillance falls on innocents and criminals alike, because the very premise of a warrantless procedure is that the police can do it without demonstrating before a judicial officer that there is probable cause to believe they will find evidence of a crime.
[I]t is too easy to forget -- and, hence, too often forgotten -- that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its "risk analysis" solely in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities" ought to bear, the plurality opinion . . . misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk . . . . Abolition of On Lee would not end electronic eavesdropping. It would prevent public officials from engaging in that practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days,
[ 370 Pa. Super. Page 205]
months, or years after the conversation. Interposition of a warrant requirement is designed not to shield "wrongdoers," but to secure a measure of privacy and a sense of personal security throughout our society.
White, 401 U.S. at 789-90, 91 S.Ct. at 1144 (Harlan, J., dissenting).
We have, therefore, considered the legitimate needs of law enforcement to use clandestine means to combat crime, and we wholeheartedly agree with the statements of our Brother Tamilia in the case of Commonwealth v. Trignani, 334 Pa. Super. 526, 536, 483 A.2d 862, 867 (1984), where this court dealt with another facet of electronic surveillance, and said that the General Assembly's anti-wiretapping legislation was meant to protect "the right of privacy of law-abiding citizens," not "communications among criminal networks." While we again acknowledge that the police need access to the most modern and effective technological advances in the war on crime, such access without a warrant requirement leaves them free to train these powerful eavesdropping devices on you, me, and other law-abiding citizens as well as the criminal element. See Glass, 583 P.2d at 878. Any balancing of the needs of law enforcement against the rights of the citizen has already been done by the framers of the constitution who conditioned searches and seizures for the most part on the prior approval of a detached and neutral magistrate. It is no great burden on the police to require that they restrict participant monitoring to cases where they can show probable cause for a warrant. See Lopez, 373 U.S. at 469, 83 S.Ct. at 1404 (Brennan, J., dissenting); Greenawalt, supra, at 229.
"Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also of grave concern, not only to the individual, but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be
[ 370 Pa. Super. Page 206]
decided by a judicial officer, not by a policeman or ...