Commonwealth v. Fant, R., Aplt.

146 A.3d 1254, 637 Pa. 135, 2016 Pa. LEXIS 2187, 2016 WL 5462712
Supreme Court of Pennsylvania·Decided September 28, 2016·No. 66 MAP 2015·Published·Cited by 35 cases

Opinions

OPINION

JUSTICE DONOHUE

On October 22, 2013, Rahiem Cardel Fant (“Fant”) pled not guilty to various charges related to an incident during which he allegedly stabbed a man in the abdomen and arm. Awaiting trial, he was detained at the Clinton County Correctional Facility (the “Facility”). On or about February 20, 2014, approximately one week before his scheduled trial, Fant’s counsel received from the Commonwealth a production of recordings made at the Facility. All but two of the recordings consisted of conversations that occurred between Fant and his visitors in the Facility’s visitation room, where inmates converse with visitors, face-to-face, through a glass partition, using a telephone-like handset apparatus (“visit conversations”). As a result of these recorded visit conversations, law enforcement personnel retrieved additional evidence they sought to use at trial.

On February 21, 2014, Fant filed a motion in limine seeking to exclude at trial the visit conversation recordings and the evidence discovered as a result of them. He argued that the recordings violated Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (the “Wiretap Act” or the “Act”). The Commonwealth countered that Section 5704(14) of the Act permits these recordings because it authorizes county correctional facilities to record “any telephone calls from or to an inmate,” as long as certain conditions are met. Trial Court Opinion, 2/26/2014, at 2.

The Wiretap Act generally prohibits intercepting, using, or disclosing communications except pursuant to specified procedures.1 See 18 Pa.C.S.A. § 5703; see also Karoly v. [139]*139Mancuso, 619 Pa. 486, 65 A.3d 301, 303 (2013). It is designed to safeguard individual privacy while also giving law enforcement authorities a tool to combat crime. See Karoly, 65 A.3d at 303. Consistent with the Act’s emphasis on privacy, its provisions are to be strictly construed. See Boettger v. Miklich, 534 Pa. 581, 633 A.2d 1146, 1148-49 (1993) (cautioning that “[n]o violations of any provisions of the Act will be countenanced, nor will the failure of prosecutors to diligently follow the strict requirements of the Act be lightly overlooked”) (emphasis in original); see also Commonwealth v. Spangler, 570 Pa. 226, 809 A.2d 234, 237 (2002) (explaining that the Act provides an exclusionary remedy that extends to non-constitutional violations).

Section 5704 of the Wiretap Act provides eighteen exceptions to the general prohibition on intercepting communications, including an exception, the interpretation of which is at issue in the present case, allowing employees of county correctional facilities to monitor and record inmate “telephone calls” as long as inmates are notified in writing that such calls may be recorded and anyone calling into the facility is also told that their call may be monitored and recorded. 18 Pa.C.S. § 5704(14). Specifically, the Act provides:

It shall not be unlawful and no prior court approval shall be required under this chapter for:
(14) An investigative officer, a law enforcement officer or employees of a county correctional facility to intercept, record, monitor or divulge any telephone calls from or to an inmate in a facility under the following conditions:
[140]*140(i) The county correctional facility shall adhere to the following procedures and restrictions when intercepting, recording, monitoring or divulging any telephone calls from or to an inmate in a county correctional facility as provided for by this paragraph:
(A) Before the implementation of this paragraph, all inmates of the facility shall be notified in writing that, as of the effective date of this paragraph, their telephone conversations may be intercepted, recorded, monitored or divulged.
(B) Unless otherwise provided for in this paragraph, after intercepting or recording a telephone conversation, only the superintendent, warden or a designee of the superintendent or warden or other chief administrative official or his or her designee, or law enforcement officers shall have access to that recording.
(C) The contents of an intercepted and recorded telephone conversation shall be divulged only as is necessary to safeguard the orderly operation of the facility, in response to a court order or in the prosecution or investigation of any crime.
(ii) So as to safeguard the attorney-client privilege, the county correctional facility shall not intercept, record, monitor or divulge any conversation between an inmate and an attorney.
(iii) Persons who are calling into a facility to speak to an inmate shall be notified that the call may be recorded or monitored.
(iv) The superintendent, warden or a designee of the superintendent or warden or other chief administrative official of the county correctional system shall promulgate guidelines to implement the provisions of this paragraph for county correctional facilities.

18 Pa.C.S.A. § 5704(14).

During a suppression hearing on February 25, 2014, the Commonwealth presented testimony, in relevant part, from [141]*141Jackie Motter, Warden at the Facility (the “Warden”).2 The suppression court questioned the Warden as to how the visit conversation apparatus works.

The Court: [Visit conversations] is when I sit across the glass from you and pick it up?
The Witness: Yes.
The Court: Do you have to hit any number?
The Witness: Yes. You use your personal ID number.3
The Court: And it goes through there?
The Witness: Yes.
The Court: And it rings on the other side?
The Witness: I don’t think it rings. You just punch your number in and—
The Court: It activates it?
The Witness: Yes.
The Court: It doesn’t go through a telephone company?
The Witness: Well, if it’s on the computer they would have access. Oh, through a telephone company, no.

N.T., 2/25/2014, at 14 (footnote added).

Following the Warden’s testimony, the suppression court engaged in further discussion about the visit conversations with counsel for the Commonwealth, Karen Kuebler.

The Court: But it never hits a telephone company?
[142]*142Ms. Kuebler: It doesn’t—it doesn’t get recorded by the telephone company. It gets recorded by the inmate phone company. It doesn’t get recorded by Verizon.

Id. at 16.

Following the hearing, the suppression court granted Fant’s motion to suppress, making several findings of fact before concluding that the visit conversations were not “telephone calls” because the “every day common sense use of the word telephone does not include this scenario.”

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Commonwealth v. Fant, R., Aplt., 146 A.3d 1254, 637 Pa. 135, 2016 Pa. LEXIS 2187, 2016 WL 5462712 (Pa. 2016).

146 A.3d 1254 (Commonwealth v. Fant, R., Aplt.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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