Appeal from the Order entered March 17, 2008, Court of Common Pleas, Luzerne County, Criminal Division at Nos. CP-40-CR-0002971-2007 & CP-40-CR-0002972-2007.
The opinion of the court was delivered by: Donohue, J.
Petition for Reargument Filed June 22, 2009
BEFORE: FORD ELLIOTT, P.J., STEVENS and DONOHUE, JJ.
¶ 1 The Commonwealth appeals from the order dated March 17, 2008 granting suppression motions filed by Jeffrey S. Cruttenden ("Cruttenden") and Stephen Lanier ("Lanier").*fn1 After careful consideration, we affirm.
¶ 2 The facts and procedural history of this case are as follows. On March 27, 2007, an officer of the Pennsylvania State Police stopped a speeding pickup truck with Arizona license plates on I-80 in Clearfield County. Daryl Taylor ("Taylor") was driving the vehicle and was discovered to have a suspended Arizona driver's license. Police identified Michael Amodeo ("Amodeo") as his passenger. After issuing Taylor a citation for driving with a suspended license and warning him of his excessive speed, the officer asked Taylor and Amodeo what their travel plans were. When the two men gave conflicting stories, the officer asked whether they were transporting firearms or narcotics. Taylor became nervous and stated that he had a weapon. The officer obtained Taylor's consent to search the vehicle. Using a canine unit, police uncovered approximately 35 pounds of marijuana, methamphetamines, drug paraphernalia, a .45 caliber handgun and a cellular "Tracfone." Taylor and Amodeo were arrested.
¶ 3 Taylor and Amodeo were transported to the Clearfield County police station for questioning. Officer Richard Houk ("Officer Houk") interviewed Amodeo. Amodeo told Officer Houk that he was approached by a man named "Steve" in Arizona who wanted to supply a friend in the Pennsylvania/New York area with marijuana. Although Amodeo did not know Steve's last name, he described him to police as a short, white male with blonde hair, a mustache and possible tattoos on his arms. Amodeo stated that Steve had agreed to buy 35 pounds of marijuana for $19,000. According to Amodeo, the plan entailed Steve flying cross-county to meet the friend/buyer while Amodeo drove the narcotics intending to meet him at an undisclosed location in Pennsylvania. Taylor accompanied Amodeo in exchange for $2,500. Amodeo told Officer Houk that Steve gave him the Tracfone to keep in contact with him and to arrange the final meeting place via text messages. Officer Houk obtained Amodeo's consent to use the Tracfone.
¶ 4 Subsequently, and without first obtaining an order of court, Officer Houk, posing as Amodeo, began text-messaging Steve. Because there was a lull in communication due to the arrest of Taylor and Amodeo, Steve was initially suspicious and asked a series of questions to which only Amodeo would know the answers. Officer Houk obtained those answers from Amodeo and relayed them via text-message to Steve. Apparently satisfied that he was still in contact with Amodeo, Steve gave directions to a Holiday Inn off of Interstate 80 where he wanted to meet to complete the transaction.
¶ 5 Police initiated a surveillance team to investigate the hotel parking lot. There they found Cruttenden sitting in a parked car with New York license plates. Police also observed Lanier enter the car, exit the car, and then walk around to the other side to talk to Cruttenden through the driver's side window. A uniformed police officer pulled a marked police car into the lot behind the suspect vehicle. The officer exited the car and asked if Lanier was named "Steve." Lanier responded affirmatively and the police officer commanded him to take his hands out of his pockets. When Lanier did not comply, the officer wrestled him to the ground and handcuffed him. A search of Lanier uncovered $20,000 in cash. Lanier and Cruttenden were both arrested.
¶ 6 Police subsequently obtained a search warrant for the vehicle in which Lanier and Cruttenden were found. Inside, police discovered two cellular phones, a cellular Tracfone (bearing the telephone number used by Steve to text-message Amodeo), a road map, internet driving directions, and a motel receipt.*fn2
¶ 7 Lanier and Cruttenden were both charged with criminal attempt, criminal conspiracy, and dealing in proceeds of unlawful activities.*fn3 Their cases were consolidated for trial. Lanier and Cruttenden filed pre-trial motions to suppress the evidence obtained, alleging that the warrantless interception of the text messages was illegal and not subject to an exception under the Pennsylvania Wiretapping and Electronic Surveillance Act, ("Wiretap Act"), 18 Pa.C.S.A. § 5701, et seq. Following an evidentiary hearing, the trial court agreed and granted the motions.
¶ 8 The Commonwealth appealed and presents the following issue for our review:
Did the lower court err in finding that the intercepted text messages were illegally obtained, thus suppressing all of the evidence that was obtained as a result of the illegal interception? Appellant's Brief at 4.
¶ 9 In reviewing the grant of a motion to suppress, we are guided by the following standard of review:
When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of facts bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.
Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (citations omitted). Because the Commonwealth challenges the trial court's interpretation of the Wiretap Act, it is a case of statutory construction and, thus, a question of law. Id. On questions of law, our ...