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COMMONWEALTH PENNSYLVANIA v. MICHAEL J. BRION (01/12/89)

filed: January 12, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MICHAEL J. BRION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal at No. 87-10,271.

COUNSEL

Amy L. Weber, Assistant District Attorney, Chambersburg, for Com., appellant.

Angela C. Lovecchio, Assistant Public Defender, Williamsport, for appellee.

Tamilia, Popovich and Hoffman, JJ.

Author: Popovich

[ 381 Pa. Super. Page 84]

This is an appeal from an order of the Lycoming County Court of Common Pleas which granted the appellee's motion for new trial and suppression of electronic surveillance evidence.

Herein, we are required to review recent developments in the law concerning the electronic surveillance technique of one-party warrantless consensual monitoring. The Commonwealth contends that "the court erred in granting a new trial on the basis that Article I, Section 8 of the Pennsylvania Constitution was violated by the Commonwealth's failure to obtain a search warrant based upon probable cause before sending a confidential informant into Appellee's home to electronically record his conversations and transmit them back to the police[.]" We agree.

The record reveals that, on March 13, 1984, the police sent a confidential informant to purchase approximately fifteen grams of marijuana from the appellee, Michael Brion, at his residence. During the purchase, the informant was wearing a consensual wire in order to record electronically any conversation. As a result of the investigation, the appellee was charged with one count of possession of marijuana and one count of delivery of marijuana.

Prior to trial, the appellee filed a timely motion to suppress the tape recording of the transaction between himself and the informant. After a hearing, the motion was denied, and the recording was introduced into evidence at trial. Following a bench trial on October 27, 1987, the appellant was found guilty on all charges. Post-verdict motions alleging that the lower court erred in failing to suppress the tape recording were filed. Relying on Commonwealth v. Schaeffer, 370 Pa. Super. 179, 536 A.2d 354 (1987), the trial court granted the appellee's motion for a new trial, and this appeal followed.

The Superior Court's en banc decision in Commonwealth v. Schaeffer, 370 Pa. Super. 179, 536 A.2d 354 (1987) directly

[ 381 Pa. Super. Page 85]

    addressed the legality of the technique of electronic surveillance know as "participant monitoring." We have since summarized the Schaeffer decision as follows:

In Commonwealth v. Schaeffer, an en banc panel of this Court held that the interception and recording of a person's words is a search and seizure. This Court in Schaeffer then proceeded to hold that Pennsylvania State Constitution requires a warrant for participant monitoring in the home. The home is regarded as a place in which a person's expectations of privacy are of the highest degree. A person speaking in his home certainly speaks in circumstances justifying a belief that the police are not listening ...


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