Commonwealth v. Gardner

39 Pa. D. & C.3d 141, 1983 Pa. Dist. & Cnty. Dec. LEXIS 25
CourtPennsylvania Court of Common Pleas, Lebanon County
DecidedApril 22, 1983
Docketno. 65, 1983
StatusPublished

This text of 39 Pa. D. & C.3d 141 (Commonwealth v. Gardner) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lebanon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gardner, 39 Pa. D. & C.3d 141, 1983 Pa. Dist. & Cnty. Dec. LEXIS 25 (Pa. Super. Ct. 1983).

Opinion

GATES, P.J.,

Both of the above-captioned defendants were separately charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act of 1972, P.L. 233, §1, effective June 14, 1972, 35 P.S. §780-101 et seq. Both have filed motions to suppress evidence obtained by electronic surveillance. Additionally,’ defendant William Sholly had filed an omnibus pretrial motion not only to suppress the electronically obtained evidence, but to dismiss the information for violating defendant’s constitutionally protected right of privacy. .

By agreement the suppression motions were heard together before us on April 14, 1983.

At the hearing we learned that Pennsylvania Narcotics Agent Jeanne R. Berlin holds a class “A” certification to participate and utilize electronic surveillance having successfully completed the prescribed course of training as required by law.

[143]*143Further, we learned that the Attorney General of Pennsylvania has delegated to Deputy Attorney General Andrew Kramer, pursuant to the provisions of section 5704(2)(ii) of the Act of November 22, 1978, P.L. 18 P.S. §5701 et seq., authority to approve the interception of communications under the provisions of the act.

On April 30, 1982, the Acting Regional Director for the Bureau of Narcotics and Drug Control of the Commonwealth of Pennsylvania submitted a'written request for consensual investigations pursuant to section 5704(2) of the Wiretapping and Electronic Surveillance Control Act to the Director of the Bureau, of Narcotics Investigation and Control.

On May 3, 1982, Deputy Attorney General Andrew B. Kramer filed a written memorandum of approval for Jeanne R. Beilin and other agents to intercept oral or wire conversations from May 3, 1982 through May 15, 1982. He also reviewed the memorandum of consent signed by Richard Lee Leedy dated May 3, 1982 in which Leedy consented to the interception of oral conversations which might occur on or about May 3, 1982 through May 15, 1982. Additionally, he personally interviewed Leedy and was satisfied that his consent to so act was freely and voluntarily given.

The facts received by the Bureau of Narcotics Investigation and Drug Control were relative to the proposed consensual interceptions involving Richard Leedy and seven named individuals, “and others.”

Extension memorandums were obtained approving electronic surveillance from May 14 to May 24, 1982; May 25 through June 3, 1982 and June 4 through June 14, 1982.

Each extension was accompanied by a written memorandum of consent signed by Richard Leedy.

[144]*144Thus, we initially find as a fact that Richard L. Leedy gave his consent freely, voluntarily and willingly without threats or coercion to intercept and record conversations with the named targets as well as others in the criminal investigation of drug trafficking in Lebanon and Dauphin County.

Defendants contend, however, that inasmuch as they are not specifically identified in the memorandum of approval or the extensions and consents, the Commonwealth has violated the provisions of the Wiretapping and Electronic Surveillance Control Act, supra, and the rights afforded them by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution as well as Article 1, sections eight and nine of the Constitution of Pennsylvania.

On the other hand, the Commonwealth argues that they have meticulously complied with the provisions of the Wiretapping and Electronic Surveillance Control Act and that no protected constitutional rights of defendants havé been violated.

Prior to the adoption of the Wiretapping and Electronic Surveillance Control Act in 1978 there was no Pennsylvania statutory proscriptions against intercepting communications and the issue was governed by the applicable portion's of federal law. Commonwealth v. Donnelly, 233 Pa. Super. 396, 336 A.2d 632 (1975); Cf. U.S. ex rel. Mancini v. Rundle, 337 F.2d 268 (3d Cir. 1964). Further, addressing the alleged constitutional violation of the right of privacy by surreptitiously recording conversations without the use of a warrant and by the use of the intercepted communication against a non-consenting party, the federal law found no violations of a constitutional dimension.

The seminal case of Lopez v. United States, 373 U.S. 427, 10 L.Ed2d 462, 83 S. Ct. 1381 (1963), is [145]*145enlightening. In Lopez, an Internal Revenue agent, in an attempt to obtain evidence of an attempted bribe, wire-recorded his conversation with Lopez by a device carried on the agent’s person. In the instant case defendant’s conversation • with Richard L. Leedy, a person acting at the direction of law enforcement agent Jeanne Berlin, wire recorded his conversation with defendants in connection with the sale and purchase of controlled substances. In Lopez, the United States Supreme Court held that the transcriptions of conversations, which had been electronically seized without a warrant, were constitutionally admissible to corroborate the direct testimony of the informer, who had been a party to the conversation and who had consented to the interception. This holding was explained by the court as follows:

“The court has in the past sustained instances of ‘electronic eavesdropping’ against constitutional challenge, when devices-have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. See, e.g., Olmstead v. United States, 277 U.S. 438, 72 L.Ed. 944, 48 S. Ct. 546; Goldman v. United States, 316 U.S. 129, 86 L.Ed. 1322, 62 S. Ct. 933; It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States, 365 U.S. 505, 5 L.Ed.2d 734, 81 S. Ct. 679. The validity of these decisions is not in question here. Indeed this case involves no ‘eavesdropping’ whatever in any proper sense of that term. The government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the government’s own agent was a [146]*146participant and which that agent was .fully entitled to disclose.” 373 U.S. at 437.

Thus, it is evident that no federally protected constitutional right of these defendants has been violated. Surely a police agent may write down for official use his conversations with a defendant and testify - about them without a warrant authorizing his encounters with defendant and without otherwise violating the latter’s Fourth Amendment rights. For constitutional purposes, no different result is required if the agent; instead of immediately reporting and transcribing his conversation with a defendant, either by simultaneously recording them with electronic equipment which he is carrying on his person such as was done in this case, or even carries radio equipment which simultaneously transmits the conversation either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. Lopez, supra.; On Lee v.

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Related

Olmstead v. United States
277 U.S. 438 (Supreme Court, 1928)
Goldman v. United States
316 U.S. 129 (Supreme Court, 1942)
On Lee v. United States
343 U.S. 747 (Supreme Court, 1952)
Silverman v. United States
365 U.S. 505 (Supreme Court, 1961)
Lopez v. United States
373 U.S. 427 (Supreme Court, 1963)
United States v. Albert Haden
397 F.2d 460 (Seventh Circuit, 1968)
Commonwealth v. Donnelly
336 A.2d 632 (Superior Court of Pennsylvania, 1975)

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Bluebook (online)
39 Pa. D. & C.3d 141, 1983 Pa. Dist. & Cnty. Dec. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gardner-pactcompllebano-1983.