Date: Sat, 1 Sep 2001 02:38:59 -0400 To: Matthew Gaylor <freematt@coil.com> From: Matthew Gaylor <freematt@coil.com> Subject: Pennsylvania High Court Rules Individuals Have No Privacy in Phone Calls Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by aztec.asu.edu id AAA24439©2001 Law.com Page printed from: http://www.law.com
http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=la w/View&c=Article&cid=ZZZHW8CDOQC&live=true&cst=1&pc=0&pa=0&s=News&ExpI gnore=true&showsummary=0Pennsylvania High Court Rules Individuals Have No Privacy in Phone Calls Danielle N. Rodier The Legal Intelligencer
August 22, 2001
In a decision that would make George Orwell glow with prescient delight, the Pennsylvania Supreme Court has ruled that individuals have no reasonable expectation of privacy in telephone calls made to their own homes.
Considering the methods of telephone communication widely used today -- including speakerphones and cordless phones -- a person has no idea who is listening in on the other line and therefore has no reason to believe the information discussed in the conversation will not be revealed, the majority said.
The decision in Commonwealth v. Rekasie came from a fractured court. Only three justices sided with majority opinion author Justice Ralph Cappy, who said the state constitution does not require the commonwealth to obtain a probable cause determination from a neutral judicial authority before one of its agents may initiate a telephone call made to a person's home and then tape that conversation.
"A telephone call received by or placed to another is readily subject to numerous means of intrusion at the other end of the call, all without the knowledge of the individual on the call. Extension telephones and speakerphones render it impossible for one to objectively and reasonably expect that he or she will be free from intrusion," Cappy said.
"The individual cannot take steps to ensure that others are excluded from the call."
The majority's decision drew fiery responses from the other members of the bench. Justice Stephen Zappala authored a dissenting opinion joined by Chief Justice John Flaherty. Justice Russell Nigro wrote his own dissenting opinion, which Zappala and Flaherty also joined. Zappala expressed shock that the majority seemingly considered the citizens' privacy interests to ride on technological advances in communication. "Our right to privacy does not rise and fall with technology, but rather is grounded in our state constitution, which has afforded the right to privacy the utmost protection," Zappala said in his dissent.
DRUG INVESTIGATION
The conversation at issue was taped as part of a drug investigation by the Pennsylvania Attorney General's Office and Pennsylvania's Cranberry Township Police Department. On June 23, 1992, agents of both entities seized a substantial amount of cocaine from Thomas Tubridy. Tubridy alleged that he received the drugs from a man named Vincent Rizzo in Florida and that Kirk Rekasie, the defendant in the case, was Rizzo's drug courier.
Tubridy, as a "cooperative informant," agreed to help with the investigation and have his telephone conversations with Rizzo and Rekasie taped. The officers contacted Linda Barr, the deputy attorney general designated to review requests for voluntary intercepts, in accordance with the Wiretapping and Electronics Surveillance Control Act. Barr approved the request, finding Tubridy consented to the taping of his phone conversations for a specified period of time.
A total of six conversations were intercepted between June 25, 1992, and June 30, 1992. Five were to Rizzo or Rekasie's homes, and the final conversation was intercepted while Tubridy wore a body wire while speaking with Rekasie at Tubridy's place of employment.
A search warrant was issued, based on the taped conversations, allowing the attorney general's office to seize and search Rekasie's luggage while he was disembarking a plane from Florida to Pittsburgh. Officers found the luggage contained 10 ounces of cocaine.
Rekasie and Rizzo were charged with possession with intent to deliver a controlled substance, possession of a controlled substance and criminal conspiracy. Both filed motions to suppress, claiming their constitutional rights were violated by the interceptions.
The trial court denied the motions, but on reconsideration it granted both on the basis of the 1994 state supreme court case Commonwealth v. Brion. The Brion court held that the state constitution requires a probable cause determination before the commonwealth can intercept a face-to-face conversation by a body wire worn by a person in one's home.
The Superior Court reversed, finding Brion only controlled body wires and not telephone conversations.
Brion also could not apply to the conversation taped by Tubridy's body wire, the intermediate appellate court said, as it occurred at a place of business. Because the trial court made no findings about the circumstances surrounding that interception in that instance, the court said it could not decide whether Rekasie had an expectation of noninterception. The Superior Court remanded to the suppression court for an evidentiary hearing on the sixth interception.
USE OF 'KATZ' STANDARDS OF PRIVACY
Cappy began the high court's analysis by determining whether Rekasie had a reasonable expectation of privacy in his telephone conversation with Tubridy. Only one conversation between Rekasie and Tubridy had been intercepted via telephone.
The commonwealth argued that once Rekasie said anything in the conversation, he lost any expectation that the information would remain private; therefore, it was not required to obtain a probable cause determination before intercepting the call.
In that vein, Cappy said, the U.S. Supreme Court has said in several cases that where oral conversations are concerned a person has no justifiable expectation that the person with whom he or she is speaking will not reveal that information to the police.
"This concept, that one does not have an expectation of privacy in information voluntarily disclosed to another, has been consistently applied by the federal high court in denying assertions of expectations of privacy under the Fourth Amendment; yet, our court has not followed federal jurisprudence lock-step," Cappy said.
For the past 20 years, Cappy said, Pennsylvania has embraced the test created in the 1967 U.S. Supreme Court case United States v. Katz. Under that standard, a court determining the areas in which a person has a reasonable expectation of privacy should consider whether the person has exhibited an actual expectation of privacy and whether that expectation is one that society would perceive as reasonable.
Applying that standard, Cappy said while Rekasie may have had an actual expectation of privacy in his phone calls with Tubridy, it was not one that society would consider reasonable.
Therefore, Cappy said, Rekasie had no expectation of privacy, and the commonwealth did not have to obtain a probable cause analysis before conducting the interception.
Rekasie argued Brion should control, but Cappy said there was a fundamental difference between the two cases. "Qualitatively different than a face-to-face interchange occurring solely within the home in which an individual reasonably expects privacy and can limit the uninvited ear, on a telephone call, an individual has no ability to create an environment in which he or she can reasonably be assured that the conversation is not being intruded upon by another party," Cappy said.
"On the telephone, one is blind as to who is on the other end of the line." Rekasie cited another state supreme court case in his defense, Commonwealth v. Melilli, from 1989. The Melilli court found individuals have a privacy interest in keeping their telephone numbers from being revealed.
Rekasie argued that if a privacy interest exists in the phone number a person dials, it should extend to the actual conversation. But the majority said the two cases were distinguishable. The Melilli court did not suggest a privacy interest in all telephone activity, the majority said. In a footnote, Cappy noted the majority's decision is limited to telephone communications and does not necessarily apply to other types of communication, such as encrypted communication.
Justice Ronald Castille issued a concurring opinion, joined by Justice Thomas Saylor, to relate his belief that there is nothing in the state constitution that ever requires the commonwealth to obtain a probable cause determination before one of its agents can make a "simple phone call" to a person's house and have it taped by police.
DISSOLVING PRIVACY INTERESTS
In his dissent, Zappala expressed fear for the sanctity of the privacy of one's home. "Today the majority holds that the Pennsylvania Constitution affords no protection against the government listening to, recording and reporting the details of our private telephone conversations," Zappala wrote.
"By holding that we have no expectation of privacy in the confidential messages and conversations transmitted from our telephones, it has placed the freedom of every citizen into the hands of the law enforcement authorities." Zappala said the decision could have dire practical effects.
"The scant protection provided by statute, i.e., the requirement of one-party consent, is rendered superfluous when viewing the right to privacy in this context," he said. "Following the majority's analysis to its logical conclusion, there is no constitutional precept preventing the government from tapping any individual's phone line for any reason."
Zappala also claimed the majority misinterpreted Brion. The main factor in that case, he said, was the fact that a conversation was recorded in a person's private residence, where he or she has an expectation of privacy, not the fact that it was intercepted by a body wire, he said. In his dissent, Nigro said he could not comprehend how the decision could be reconciled with Melilli.
"I am mystified by the fact that while an individual has a reasonable expectation of privacy in a dialed telephone number ... , that person, according to the majority has absolutely no privacy expectation in the content of his conversation," Nigro said.
The majority's decision also renders Brion moot, he said. He suggested that the commonwealth would not bother to send a person with a body wire into an individual's home if it is now so easy to record phone conversations.
Nigro also echoed Zappala's concerns over the majority's emphasis on technology. "Given the ever-increasing technological means for eavesdropping into private affairs, it appears, under the majority's rationale, that it is only a matter of time before there is no privacy anywhere or in anything," Nigro said.
"In my view, the constantly expanding ways in which the commonwealth is able to intrude upon our private affairs calls for heightened, rather than diminished, protection of our constitutional rights."
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