PENNSYLVANIA RECORD

In a significant ruling, the Pennsylvania Supreme Court has determined that a police

officer who communicates with a suspect through text messaging while pretending to be somebody else does not violate the commonwealth’s Wiretapping and Electronic Surveillance Act.

The latest ruling overturns a Pennsylvania Superior Court order from 2009, which had affirmed two Luzerne County Court of Common Pleas Court rulings from 2007 and 2008 respectively.

The two cases in question, which were consolidated on appeal, were Commonwealth of Pennsylvania v. Jeffrey S. Cruttenden and Commonwealth of Pennsylvania v. Stephen V. Lanier.

The appeal issue before the high court was whether a cop violates the Wiretap Act when he communicates directly with a suspect via cell phone text messages while pretending to be the suspect’s accomplice.

In their 10-page ruling, the justices determined that it does not.

“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 occurred here pursuant to Commonwealth v. Proetto,” the Supreme Court ruling states.

The Proetto case had to do with an officer posing as an underage female who communicated with a suspected sexual offender in an Internet chat room. The justices had determined that that, too, didn’t violate the Wiretap Act since the officer was a direct party to the communication, and thus there had been no “interception” of communication.

Pennsylvania is known as a two-party consent state, meaning both parties engaging in dialogue have to consent to audio recording.

There are certain exceptions to the rule. For example, a citizen may audio record a police officer who is engaged in his or her official duties because the officer has no expectation of privacy on the job and in public, the courts had previously ruled, according to local attorneys with whom the Pennsylvania Record has consulted.

The current appeal had to do with two cases dating back to the spring of 2007.

In March of that year, Pennsylvania troopers stopped a vehicle for speeding along Interstate 80 in Clearfield County.

During a consensual search of the vehicle, police located numerous drugs, weapons and a cell phone.

One of the occupants of the vehicle told a trooper that he had been using the phone to communicate, via text messages, with another man regarding a prospective marijuana exchange.

The trooper obtained the occupant’s permission to use the phone, posed as the man and engaged in text messaging conversations with the person with whom the vehicle occupants were scheduled to meet up for the drug exchange.

The two suspects, Michael Amodeo, who was in the vehicle that got pulled over, and Stephen Lanier, who was the prospective drug buyer, were each charged and had their criminal trials consolidated.

Each defendant had filed pre-trial suppression motions alleging that the warrantless “interception” of the text messages was illegal and not subject to an exception under the Wiretap Act.

Following a hearing, the trial court granted the suppression motion.

Prosecutors appealed to the Superior Court, which ultimately agreed with the trial court, and affirmed the lower court ruling granting suppression.

In the end, the high court determined that an officer, even one who misrepresents himself or herself, who engaged in direct communication with a suspect doesn’t violate state law because he or she was an actual party to the conversation, and not an eavesdropper.

“That a police officer does not identify him-or herself, or misrepresents his or her identity, does not change the fact that he or she is a direct party to the conversation, and by virtue of being a direct party to the conversation, is deemed the intended recipient of the conversation under whatever identity the officer has set forth.

“An officer is deemed the ‘intended recipient’ of a phone communication in which the officer is directly involved, even under circumstances in which the officer shields or misrepresents his or her identity, because the caller elects to talk to the officer who answered the phone.”

The opinion was penned by Justice Seamus McCaffery. Chief Justice Ronald Castille and Justices Thomas Saylor and J. Michael Eakin joined in the decision.

Justice Joan Orie Melvin, who is suspended from the bench pending corruption charges, did not participate.

Justices Max Baer and Debra Todd filed a concurring opinion in which the two say while they agree with the majority’s ruling that no violation of the Wiretap Act occurred in the underlying cases, they disagree with the majority’s reliance on Commonwealth v. Proetto, the case that dealt with the officer posing as an underage girl in order to communicate with a suspect in an Internet chat room.

Baer wrote that he believes the two underlying cases are factually distinct from Proetto.

In these two cases, Baer wrote, the text messaging was communication between defendant Lanier and a third party, Michael Amodeo.

The trooper, Baer wrote, was at no point the “intended recipient” of Lanier’s text messages, “either as himself or through the adoption of a ‘fictional identity.’”

Baer wrote that he believes the two underlying cases were more factually similar to Commonwealth v. Smith and Commonwealth v. DiSilvio, which involved police officers answering ringing phones on the premises of a bookmaking operation during law enforcement raids.

“By receiving the communication directly over the phone, the officers were in fact themselves ‘parties to the calls,’” Baer wrote. “Likewise, by answering Lanier’s text messages to Amodeo, [the trooper] here acted in the same manner as the police officers in Smith and DiSilvio. Lanier directly communicated with and ‘freely elected’ to continue the conversation with the person answering the text messages.”