Commonwealth v. Melilli

555 A.2d 1254, 521 Pa. 405, 1989 Pa. LEXIS 105
CourtSupreme Court of Pennsylvania
DecidedMarch 13, 1989
StatusPublished
Cited by120 cases

This text of 555 A.2d 1254 (Commonwealth v. Melilli) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Melilli, 555 A.2d 1254, 521 Pa. 405, 1989 Pa. LEXIS 105 (Pa. 1989).

Opinions

OPINION OF THE COURT

PAPADAKOS, Justice.

Presented for consideration as the main issue in this appeal is whether our jurisprudence encompasses a good faith exception to the requirement of probable cause to support an application for the installation of pen registers. Because we hold that no such exception exists as yet in this Commonwealth, as based on these facts, we reverse the Superior Court and reinstate the decision of the suppression court disallowing all of the telephone evidence. We also determine as part of this analysis that the installation of pen registers must be supported by probable cause.

The criminal charges against the Appellants grew out of an investigation by the District Attorney of Philadelphia into organized illegal gambling operations. Based on confidential information, the authorities determined that the home of Appellant, Richard Mastro, was being used to conduct these operations over his phone. A court order issued at the request of the police authorized the Bell Telephone Company to install a pen register device on Mastro’s line.1 A separate confidential tip led to a second [409]*409order to place a pen register on the telephone line of Appellant, Nicholas DeStefano. Information obtained through the Mastro pen register led police to suspect Jerry DiJoseph, and his line also was subjected to a pen register based on probable cause.2 Subsequently, court-authorized wiretaps then were installed on all three lines in order to record criminal conversations. Each wiretap application was supported by a separate affidavit stating probable cause. These investigations culminated in the issuance of search and seizure warrants for twenty-three locations, including each Appellant’s residence. Police seized physical evidence of corrupt organizations and illegal gambling. In December, 1983, Appellants were charged with gambling offenses (lotteries, gambling, pool selling and bookmaking), conspiracy, and violations of the Corrupt Organization Act. Pursuant to pre-trial motions, the suppression court ruled that the Commonwealth lacked probable cause for the installation of the pen registers and, therefore, all evidence produced thereby, including wiretapped material seized by the police, was suppressed.

In a split decision, however, the Superior Court reversed on several grounds. First, it concluded that our law required probable cause for the installation of pen registers. Second, in spite of that requirement, the Commonwealth still was entitled to a good faith exception to the exclusionary rule, thereby allowing the evidence gained from the use of the pen registers under the facts of this case. Third, even without a good faith exception to the use of the pen registers, the separate wiretaps installed on the telephones of Mastro and DeStefano were independently reliable so as to confirm the existence of probable cause as to the evidence gained from those defendants.

[410]*410Adoption of the good faith exception rule by the Superior Court stemmed from a time-lag conflict over governing case law. At the time when all the pen registers were placed in 1983, the view regarding the need for a prior finding of probable cause to use pen registers was embodied in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that under federal law the use of a pen register was not a search under the Fourth and Fourteenth Amendments and that probable cause was not required.3 Four years later, however, our Superior Court decided Commonwealth v. Beauford, 327 Pa.Superior Ct. 253, 475 A.2d 783 (1984), allocatur denied, 508 Pa. 319, 496 A.2d 1143 (1985), which held that Article 1, section 8 of the Pennsylvania Constitution was offended by the installation of a pen register device without probable cause to support the application — a rejection of the federal standard. The Superior Court also held that Beauford applies retroactively, thereby controlling the instant case.

Drawing upon the suppression record, the Superior Court concluded further that “the orders authorizing installation and use of pen registers were not based upon findings of probable cause.” The suppression judge “made no findings before issuing orders authorizing installation of the pen registers in question. The orders do not suggest that Judge Conroy ever considered whether probable cause existed.” Commonwealth v. Melilli, et al, 361 Pa.Superior Ct. 429, 438-439, 522 A.2d 1107, 1111 (1987).

At the urging of the Commonwealth, nevertheless, the Superior Court approved the convictions by reading into our law the good faith exception doctrine of federal law announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The Superior Court’s application of that doctrine to the case under review here is based on the following rationale:

[411]*411Suppression of the evidence obtained by the installation of the pen registers in the instant case cannot further the purposes of the exclusionary rule. At the time when the pen registers were installed, existing law explicitly told law enforcement officials that the use of pen registers did not constitute a search. Pursuant to the Constitution of the United States, according to Supreme Court interpretation, the use of pen registers did not require a prior showing of probable cause. See: Smith v. Maryland, supra. According to the law then in effect, therefore, law enforcement agencies were not required to obtain a court order or warrant in order to install and make use of a pen register. Nevertheless, in order to comply with telephone company requirements, police in the instant case went further than the law required and requested from a neutral magistrate an order authorizing installation of pen registers. The magistrate, who also acted pursuant to existing law, issued an order authorizing the use of pen registers without a showing of probable cause. It was not until later that the Superior Court, applying principles of state constitutional law, outlawed the use of pen registers without a prior showing of probable cause. It seems clear, therefore, that the use of pen registers by law enforcement authorities was accomplished in good faith, in accordance with statutory authority in the Commonwealth of Pennsylvania, and consistently with procedure explicitly approved by the Supreme Court of the United States. To suppress evidence obtained under these circumstances would not further any of the purposes intended to be served by the exclusionary rule. Indeed, to deprive the Commonwealth of the use of evidence obtained in good faith and in accordance with then existing law as determined by the highest court in the land, would not only fail to serve the purposes of the exclusionary rule but would tend to defeat a substantial public interest in law enforcement. Therefore, we agree with the Commonwealth that an exception to the exclusionary rule must be created which has application narrowly to situations in which law enforcement officials [412]

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Bluebook (online)
555 A.2d 1254, 521 Pa. 405, 1989 Pa. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-melilli-pa-1989.