Appeal from the Opinion and Order of the Superior Court at No. 725 MDA 2008, dated June 8, 2009, affirming the Order of the Court of Common Pleas of Luzerne County at No. CP-40-CR-00002971-2007 and CP-40-CR-0002972-2007 dated March 17, 2008 976 A.2d 1176 (Pa.Super. 2009)
The opinion of the court was delivered by: Mr. Justice McCAFFERY
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
ARGUED: November 30, 2011
The issue in this discretionary appeal is whether a police officer violates the Pennsylvania Wiretapping and Electronic Surveillance Act ("Wiretap Act" or "Act"), 18 Pa.C.S. §5701, et seq., when he communicates directly with a suspect via cell phone text messages while pretending to be the suspect's accomplice.*fn1 Because an officer who directly communicates with another person by text-messaging is not eavesdropping or listening in on a conversation, but is himself engaging in the communication, and because for purposes of the Wiretap Act, it is irrelevant that an officer intentionally misrepresents his identity to the person with whom he communicates, we hold that no violation of the Wiretap Act occurred here pursuant to Commonwealth v. Proetto, 771 A.2d 823 (Pa.Super. 2001) (holding that where an officer posing as an underage female communicates with a suspected sexual offender in a chat room on the internet, no violation of the Wiretap Act occurs because the officer is a direct party to the communication, and thus there has been no "interception" of a communication).*fn2 The Superior Court in the case sub judice distinguished the factual circumstances in Proetto from the factual circumstances here, and erroneously concluded that "Proetto is inapplicable." Commonwealth v. Cruttenden, 976 A.2d 1176, 1181 (Pa.Super. 2009). The supposed factual dissimilarities perceived by that court, as will be explained infra, amount to distinctions without a difference and do not undermine the applicability of the Proetto rationale, which is dispositive. Accordingly, we reverse.
The facts in this matter are undisputed. In March 2007, Pennsylvania State Troopers stopped a vehicle bearing Arizona license plates for speeding along Interstate 80 in Clearfield County. During a consensual search of the vehicle, the troopers discovered 35 pounds of marijuana, methamphetamines, drug paraphernalia, a .45 caliber handgun, and a tracfone (a portable cell phone). Michael Amodeo, one of the occupants of the vehicle, told Trooper Richard Houk that he had been using the tracfone to communicate, via text messages, with Appellee Stephen Lanier regarding an exchange of the marijuana for $19,000. Trooper Houk obtained Amodeo's permission to use the tracfone and, posing as Amodeo, began text-messaging Lanier. Lanier, apparently suspicious, asked several questions to which only Amodeo knew the answers. Trooper Houk consulted with Amodeo and then correctly answered Lanier's questions. Satisfied that he was communicating with Amodeo, Lanier designated the parking lot of a Holiday Inn as a rendezvous spot to conduct the transaction.
Amodeo provided police with a physical description of Lanier and suggested Lanier's vehicle might bear New York license plates. Police arrived at the meeting place and approached Lanier and Appellee Jeffrey Cruttenden, who were located near and in, respectively, a parked vehicle with New York license plates. The police confirmed Lanier's identity, and when he refused to remove his hands from his pockets, police restrained him and recovered $20,000 cash from his coat pocket in a search incident to his arrest. The troopers obtained a search warrant for Appellees' vehicle, and discovered, among other things, a tracfone bearing the phone number that had been used to text-message Amodeo.
Appellees were subsequently charged with criminal attempt, criminal conspiracy, and dealing in proceeds of unlawful activities. Their cases were consolidated for trial, and each filed a pre-trial suppression motion alleging that the warrantless "interception" of the text messages was illegal and not subject to an exception under the Wiretap Act. Following an evidentiary hearing, the trial court granted the suppression motions, and the Commonwealth appealed to the Superior Court, pursuant to Pa.R.A.P. 311(d), arguing that resolution of the issue on appeal was controlled by the holding in Proetto, supra, and that under Proetto, reversal was required because no "interception" had taken place and thus, the Wiretap Act did not apply. The Superior Court disagreed, and affirmed the orders granting suppression, see Cruttenden, supra, and this Court granted allowance of appeal.
In Proetto an underage female reported to the Bristol Borough Police Department that the defendant had been engaging in sexually explicit communications with her in an internet chat room, expressing his desire to perform sexual acts with her despite knowing that she was underage. She also reported that the defendant had e-mailed her a photo of his erect penis. The underage female printed and delivered copies of the chat logs and photo to the police. A police detective told the female to cease all communication with the defendant but to alert police the next time she observed the defendant online.*fn3
A few days later, the female contacted the detective when she saw "CR907" in a chat room. The detective entered the chat room, using the screen name "Kelly15F," and initiated conversation with the defendant, posing as a fifteen year-old girl. The defendant suggested she make a nude video of herself and send it to him and he would send her nude photographs of himself. The detective made a log of the chat room conversation, and the defendant was subsequently arrested and charged with criminal solicitation, corruption of minors and related offenses. The defendant filed a motion seeking suppression of his communications with "Ellynn" and "Kelly15F," claiming they had been acquired in violation of the Wiretap Act. Proetto, 771 A.2d at 826-827. The trial court denied the motions, the defendant was convicted of the charges, and he appealed to the Superior Court.
The Superior Court set forth the relevant provisions of the Wiretap Act*fn4 and addressed the applicability of the Act to the communications with "Ellynn" and "Kelly15F" separately. The court determined that the Act did not apply to the defendant's communications with "Ellynn" because those communications had not been intercepted by the police. Id. at 829. The court noted that those communications had been received and saved by the underage female who subsequently made hard copies of the messages and delivered them to police. Id. The court reasoned that no interception took place because the police's acquisition of the content of the communications had not been contemporaneous with transmission of the communications. Id. "In other words, when the conversation took place, it was not contemporaneously recorded by the government." Id. (citing United States v. Turk, 526 F.2d 654, 658-659 (5th Cir. 1979)).
Additionally, the Superior Court determined that no violation of the Act had occurred by the female's saving, printing, and forwarding the communications because the communications had been made under the mutual consent exceptions contained in Section 5704 of the Act.*fn5 The court reasoned that "by the very act of sending a communication over the Internet, the party expressly consents to the recording of the message." Id. at 829.
Sending an e-mail or chat-room communication is analogous to leaving a message on an answering machine. The sender knows that by the nature of sending the communication[,] a record of the communication, including the substance of the communication, is made and can be downloaded, printed, saved, or, in some cases, if not deleted by the receiver, will remain on the receiver's system. Accordingly, [in] the act of [sending] an ...