Submitted November 19, 2013
Appeal from the Order of the Superior Court at No. 3307 EDA 2009, dated February 11, 2011, affirming the Order of the Delaware County Court of Common Pleas, Criminal Division, at No. CP-23-CR-0002445-2008 dated October 14, 2009. Trial Court Judge: Gregory M. Mallon, Judge. Intermediate Ct. John T. Bender, Judge, Judith F. Olson, Judge, Paula Francisco Ott, Judge.
For Commonwealth of Pennsylvania, Appellant: John Francis X. Reilly, Esq., John Joseph Whelan, Esq. Delaware County District Attorney's Office.
For Spence, Wesley Alfonso, Appellee: Robert Frederick Datner, Esq., Robert F. Datner, P.C.
JUDGES: MR. JUSTICE McCAFFERY. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Mr. Chief Justice Castille, Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.
MR. JUSTICE McCAFFERY
In the late afternoon of March 4, 2008, a high school student (" the arrestee" ) was involved in a traffic stop in Delaware County and was subsequently arrested for illegal possession of prescription drugs. Later that evening at the Media Barracks, Pennsylvania State Trooper Scott J. Miscannon met with the arrestee, who quickly agreed to become a confidential informant. The trooper proposed that the arrestee engage in a controlled buy in order to inculpate the arrestee's drug supplier. The arrestee agreed to participate and identified Appellee as his dealer named " Wes," provided a description of Wes's
appearance and his automobile, and indicated he could contact Wes via cell phone. The arrestee thereafter gave his cell phone to Trooper Miscannon, who dialed Appellee's telephone number and then returned the phone to the arrestee. At Trooper Miscannon's direction, the arrestee activated the speaker function on the phone and engaged in two calls with Appellee in order to arrange an immediate drug transaction at a convenience store. A half hour later, troopers arrested Appellee at the convenience store and recovered 54 tablets of various prescription drugs from his person.
The Commonwealth charged Appellee with three counts each of possession of a controlled substance, possession with intent to manufacture or deliver a controlled substance, and possession of drug paraphernalia. After certain procedural delays, Appellee filed a motion to suppress the entirety of the evidence against him based upon alleged violation of the Wiretapping and Electronic Surveillance Control Act (" the Act" ). Specifically, Appellee argued that Trooper Miscannon's conduct in placing the call, his directing the arrestee to activate the speaker feature of the cell phone and to use coded language, and his listening in on the conversation constituted an unlawful interception of the conversation between Appellee and the arrestee. In opposition to the motion, the Commonwealth argued that a cell phone does not constitute a " device" within the meaning of the Act because the Act specifically excludes a telephone furnished by a service provider from the definition of a " device." Following a hearing, the trial court granted the motion to suppress, and the Commonwealth appealed to Superior Court.
In a unanimous, unpublished memorandum opinion, the Superior Court affirmed the suppression of the evidence. Reviewing the Act's definitions of " intercept[ion]" and " device," the court rejected the Commonwealth's argument that the cell phone did not fall within the definition of a " device" under the Act. While the court agreed that the cell phone was not a device with respect to the arrestee, it opined that the phone was nevertheless a device with respect to Trooper Miscannon because the service provider had not furnished it to him. Accordingly, the court concluded that Trooper Miscannon's dialing, direction to place the call on speaker mode, and listening to the conversation constituted his use of the arrestee's cell phone, and, because the trooper was not a furnished " subscriber or user" of the cell phone, this use was an unlawful interception under the provisions of the Act.
This Court granted review of the following question:
Did a state trooper violate the Wiretap Act when he listened through the speaker on an ...