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COMMONWEALTH PENNSYLVANIA v. JOHN MELILLI (03/13/89)

decided*fn*: March 13, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOHN MELILLI, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. NICHOLAS DESTEFANO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. SHIRLEY DORANZO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. JOHN T. DEVLIN, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. RICHARD D. MASTRO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. SAMUEL M. DORAZIO, A/K/A SAMUEL DORANZO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. FRANK R. PERRI, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. LOUIS T. PISELLI, JR., APPELLANT



Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3147, 3148 Philadelphia, 1984 and 1121 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered October 29, 1984, at No. 84-03-1075-1079. Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3149, 3150 Philadelphia, 1984 and 1116 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered October 29, 1984, at No. 84-03-1405-1408. Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3151, 3152 Philadelphia, 1984 and 1118 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered October 29, 1984, at No. 84-03-1409-1413. Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3153, 3154 Philadelphia, 1984 and 1117 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered October 29, 1984, at No. 84-03-1424-1428. Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3155, 3156 Philadelphia, 1984 and 1120 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered October 29, 1984, at No. 84-03-1429-1433. Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3157, 3158 Philadelphia, 1984 and 1119 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered October 29, 1984, at No. 84-03-1434-1438. Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3161, 3162 Philadelphia, 1984 and 1122 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered October 29, 1984, at No. 84-03-1472-1476. Appeal from the Order of the Superior Court Entered on January 29, 1987, at Nos. 3159, 3160 Philadelphia, 1984 and 1123 Philadelphia, 1985 Reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered october 29, 1984, at No. 84-03-1444-1447. Pa. Superior Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., and Flaherty, J., concur in the result. McDermott, J., files a dissenting opinion.

Author: Papadakos

[ 521 Pa. Page 408]

OPINION OF THE COURT

Presented for consideration as the main issue in this appeal is whether our jurisprudence encompasses a good faith exception to the requirement of probable cause to support an application for the installation of pen registers. Because we hold that no such exception exists as yet in this Commonwealth, as based on these facts, we reverse the Superior Court and reinstate the decision of the suppression court disallowing all of the telephone evidence. We also determine as part of this analysis that the installation of pen registers must be supported by probable cause.

The criminal charges against the Appellants grew out of an investigation by the District Attorney of Philadelphia into organized illegal gambling operations. Based on confidential information, the authorities determined that the home of Appellant, Richard Mastro, was being used to conduct these operations over his phone. A court order issued at the request of the police authorized the Bell Telephone Company to install a pen register device on Mastro's line.*fn1 A separate confidential tip led to a second

[ 521 Pa. Page 409]

    order to place a pen register on the telephone line of Appellant, Nicholas DeStefano. Information obtained through the Mastro pen register led police to suspect Jerry DiJoseph, and his line also was subjected to a pen register based on probable cause.*fn2 Subsequently, court-authorized wiretaps then were installed on all three lines in order to record criminal conversations. Each wiretap application was supported by a separate affidavit stating probable cause. These investigations culminated in the issuance of search and seizure warrants for twenty-three locations, including each Appellant's residence. Police seized physical evidence of corrupt organizations and illegal gambling. In December, 1983, Appellants were charged with gambling offenses (lotteries, gambling, pool selling and bookmaking), conspiracy, and violations of the Corrupt Organization Act. Pursuant to pre-trial motions, the suppression court ruled that the Commonwealth lacked probable cause for the installation of the pen registers and, therefore, all evidence produced thereby, including wiretapped material seized by the police, was suppressed.

In a split decision, however, the Superior Court reversed on several grounds. First, it concluded that our law required probable cause for the installation of pen registers. Second, in spite of that requirement, the Commonwealth still was entitled to a good faith exception to the exclusionary rule, thereby allowing the evidence gained from the use of the pen registers under the facts of this case. Third, even without a good faith exception to the use of the pen registers, the separate wiretaps installed on the telephones of Mastro and DeStefano were independently reliable so as to confirm the existence of probable cause as to the evidence gained from those defendants.

[ 521 Pa. Page 410]

Adoption of the good faith exception rule by the Superior Court stemmed from a time-lag conflict over governing case law. At the time when all the pen registers were placed in 1983, the view regarding the need for a prior finding of probable cause to use pen registers was embodied in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that under federal law the use of a pen register was not a search under the Fourth and Fourteenth Amendments and that probable cause was not required.*fn3 Four years later, however, our Superior Court decided Commonwealth v. Beauford, 327 Pa. Superior Ct. 253, 475 A.2d 783 (1984), allocatur denied, 508 Pa. 319, 496 A.2d 1143 (1985), which held that Article 1, section 8 of the Pennsylvania Constitution was offended by the installation of a pen register device without probable cause to support the application -- a rejection of the federal standard. The Superior Court also held that Beauford applies retroactively, thereby controlling the instant case.

Drawing upon the suppression record, the Superior Court concluded further that "the orders authorizing installation and use of pen registers were not based upon findings of probable cause." The suppression judge "made no findings before issuing orders authorizing installation of the pen registers in question. The orders do not suggest that Judge Conroy ever considered whether probable cause existed." Commonwealth v. Melilli, et al, 361 Pa. Superior Ct. 429, 438-439, 522 A.2d 1107, 1111 (1987).

At the urging of the Commonwealth, nevertheless, the Superior Court approved the convictions by reading into our law the good faith exception doctrine of federal law announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The Superior Court's application of that doctrine to the case under review here is based on the following rationale:

[ 521 Pa. Page 411]

Suppression of the evidence obtained by the installation of the pen registers in the instant case cannot further the purposes of the exclusionary rule. At the time when the pen registers were installed, existing law explicitly told law enforcement officials that the use of pen registers did not constitute a search. Pursuant to the Constitution of the United States, according to Supreme Court interpretation, the use of pen registers did not require a prior showing of probable cause. See: Smith v. Maryland, supra. According to the law then in effect, therefore, law enforcement agencies were not required to obtain a court order or warrant in order to install and make use of a pen register. Nevertheless, in order to comply with telephone company requirements, police in the instant case went further than the law required and requested from a neutral magistrate an order authorizing installation of pen registers. The magistrate, who also acted pursuant to existing law, issued an order authorizing the use of pen registers without a showing of probable cause. It was not until later that the Superior Court, applying principles of state constitutional law, outlawed the use of pen registers without a prior showing of probable cause. It seems clear, therefore, that the use of pen registers by law enforcement authorities was accomplished in good faith, in accordance with statutory authority in the Commonwealth of Pennsylvania, and consistently with procedure explicitly approved by the Supreme Court of the United States. To suppress evidence obtained under these circumstances would not further any of the purposes intended to be served by the exclusionary rule. Indeed, to deprive the Commonwealth of the use of evidence obtained in good faith and in accordance with then existing law as determined by the highest court in the land, would not only fail to serve the purposes of the exclusionary rule but would tend to defeat a substantial public interest in law enforcement. Therefore, we agree with the Commonwealth that an exception to the exclusionary rule must be created which has application narrowly to situations in which law enforcement officials

[ 521 Pa. Page 412]

    have acted (1) in good faith; (2) in reasonable reliance upon a procedure expressly sanctioned by existing judicial decisions; (3) pursuant to authorization obtained from a neutral magistrate. Because those prerequisites have been met in the instant case, we reverse the orders suppressing the evidence obtained by the use of the pen registers.

We also reverse the order suppressing the evidence obtained through the telephone intercepts and the physical evidence seized pursuant to the search warrants. The suppression court's order was based upon its conclusion that absent the pen register evidence, the affidavits in support of the wiretap applications and search warrants were insufficient to establish probable cause. However, in light of our holding that the pen register evidence should not have been suppressed, it was unnecessary to discount that evidence when determining the existence of probable cause.

We first address the issue of whether Beauford was properly decided by the Superior Court. The Beauford court held that a pen register cannot be utilized by law enforcement authorities without an order based on probable cause, and we agree fully with that conclusion. The decision constituted an express rejection of federal law which, as already noted above in reference to Smith v. Maryland, held that the use of a pen register was not a search under the Fourth and Fourteenth Amendments. Beauford instead rested on state constitutional grounds, Article 1, ยง 8 of the Pennsylvania Constitution, which may be employed to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal government does under the Constitution of the United States by serving as an independent source of supplemental rights. Beauford, 327 Pa. Superior Ct. at 262, 475 A.2d at 788.

Precedent for this analysis in Beauford was supplied by our earlier case of Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), in which we rejected federal law by

[ 521 Pa. Page 413]

    deciding that under our own Constitution police can gain access to banking records "only through a warrant based on probable cause." Beauford extended "the DeJohn holding to information obtainable through the use of a pen register." Beauford, 327 Pa. Superior Ct. at 264, 475 A.2d at 789. "Moreover," the Court argued, "our constitutional interpretation derives independent support from Pennsylvania's long history of affording special protection to the privacy interest inherent in a telephone call," citing Commonwealth v. Papszycki, 442 Pa. 234, 275 A.2d 28 (1971), which construed legislative intent as requiring strict observance of privacy rights as to such intrusions into telephone conversations.*fn4 Also see, Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. den., 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). Cf. Commonwealth v. Stehley, 235 Pa. Superior Ct. 150, 338 A.2d 686 (1975) (expectation of privacy in regard to a pen register can be adequately protected by the Fourth Amendment and "we find no significant expectation of privacy to exist with respect to the destination of one's phone calls").

While we remain cognizant of the appearance that federal standards allow greater latitude in law enforcement, it is clear to us that Beauford represents the marked trend of our state law to bring intrusions into telephone communications within the confines of an expectation of privacy under the State Constitution and thereby ...


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