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Commonwealth v. Diego

Superior Court of Pennsylvania

June 23, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
CURTIS DOVAL DIEGO, Appellee

Argued May 12, 2015

Page 371

Appeal from the Order Entered October 28, 2014. In the Court of Common Pleas of Dauphin County. Criminal Division at No(s): CP-22-CR-0001203-2013.

Before EVANS, J.

For Commonwealth, APPELLANT: Brian L. Hokamp, Assistant District Attorney, Harrisburg.

For Curtis Doval Diego, APPELLEE: Ryan H. Lysaght, Public Defender, Harrisburg.

BEFORE: BENDER, P.J.E., JENKINSJENKINS, J., and STRASSBURGER, JJ.[*]

OPINION

Page 372

BENDER, P.J.E.

The Commonwealth appeals from the trial court's order granting Curtis Doval Diego's (Appellee) suppression motion based on purported violations of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq. (" Wiretap Act" or the " Act" ). The Commonwealth contends that an iPad is not a " device" as that term is defined under the Wiretap Act, and that Appellee's text messages were not " intercepted" within the meaning of the Act. The Commonwealth also argues that Appellee lacks a reasonable expectation of privacy in his text message communications. After careful review, we reverse the order granting suppression, and remand for further proceedings.

The trial court set forth the following factual summary:

Following an investigation of stolen guns involving Mr. Gary Still, Detective James Moyer of the Swatara Police Department went to Mr. Still's father's residence following Mr. Still's release from the hospital on February 21, 2013. Detective Moyer had determined that Mr. Still was involved in the theft of approximately twelve (12) firearms from the residence of 740 High Street. Detective Moyer advised Mr. Still of his Miranda rights. Mr. Still stated that he took numerous guns over a period of eight (8) weeks, and told the officers that he purchased heroin from [Appellee]. Mr. Still " traded" two of the guns he stole in exchange for heroin. Mr. Still indicated that these transactions with [Appellee] were set up on his iPad, which had been seized earlier by the police as part of the firearms investigation.
Detective Moyer testified that he asked Mr. Still if he would set up a heroin deal with [Appellee]. Mr. Still was told by the officers that it would be in his best interest to do so. Mr. Still agreed, telling the officers that he would use the text messaging service on his iPad. The transaction took place in the basement of the police station and was set up with Mr. Still communicating directly with [Appellee] on the iPad. Mr. Still relayed to the detectives each response from [Appellee]. In the room with Mr. Still were at least six (6) law enforcement officers. Detective Moyer testified that Officer Corey Dickerson was sitting next to Mr. Still during the communications and said that it was possible

Page 373

that the officer observed what Mr. Still was doing on the iPad. Specifically, a transaction was set up to take place at the Courtyard Marriot, and Mr. Still provided a description of [Appellee] and his car. When the time came for the deal, Mr. Still was on location with the officers and pointed out [Appellee]. [Appellee] was found to be in possession of multiple bundles of heroin and drug paraphernalia. [Appellee] sought suppression of these items, which was granted by this [c]ourt.

Suppression Court Opinion, 3/16/15, at 1-2.

Following a suppression hearing conducted on January 31 and February 20, 2014, during which the trial court heard testimony from Detective Moyer and Gary Still, the trial court requested that the parties brief the suppression-related issues. Both parties filed their memorandums of law on April 4, 2014. Subsequently, on October 28, 2014, the court granted Appellant's suppression motion.

The Commonwealth filed a timely notice of appeal on November 21, 2014, and a court-ordered Pa.R.A.P. 1925(b) statement on December 5, 2014. The trial court issued its Rule 1925(a) opinion on March 16, 2015.

The Commonwealth now presents the following questions for our review:

[1]. Whether the trial court erred in granting Appellee's motion to suppress evidence because Appellee's te[x]t messages were not " intercepted" in violation of the Pennsylvania Wiretap Act?
[2]. Whether the trial court erred in granting Appellee's motion to suppress evidence because Appellee lacked a reasonable expectation of privacy in his text message communications?
[3]. Whether the trial court erred in granting Appellee's motion to suppress evidence because Appellee's iPad is not a " Device" as defined in the Pennsylvania Wiretap Act?

Commonwealth's Brief, at 4 (unnecessary capitalization omitted). For ease of disposition, we will address these issues in reverse order.

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. Scott, 2007 PA Super 16, 916 A.2d 695, 696 (Pa. Super. 2007) (quotation omitted). Further, the construction of a statute raises a question of law. On questions of law, our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042, 1052 (2003).

Commonwealth v. Deck, 2008 PA Super 150, 954 A.2d 603, 606 (Pa. Super. 2008).

The Commonwealth contends that Appellee's iPad is not a 'device' within the meaning of the Wiretap Act. This is a matter of first impression.

The Wiretap Act prohibits, with certain exceptions, the interception of " any wire, electronic or oral communication[.]" 18 Pa.C.S. § 5703(1)-(3). " Intercept" is defined by the act as follows:

Page 374

Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device. The term shall include the point at which the contents of the communication are monitored by investigative or law enforcement officers. The term shall not include the acquisition of the contents of a communication made through any electronic, mechanical or other device or telephone instrument to an investigative or law enforcement officer, or between a person and an investigative or law enforcement officer, where the investigative or law enforcement officer poses as an actual person who is the intended recipient of the communication, provided that the Attorney General, a deputy attorney general designated in writing by the Attorney General, a district attorney or an assistant district attorney designated in writing by a district attorney of the county wherein the investigative or law enforcement officer is to receive or make the communication has reviewed the facts and is satisfied that the communication involves suspected criminal activities and has given prior approval for the communication.

18 Pa.C.S. § 5702 (emphasis added).

The Wiretap Act also defines the intercepting " electronic, mechanical or other device" as:

Any device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, ...

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