Commonwealth v. Schaeffer

536 A.2d 354, 370 Pa. Super. 179, 1987 Pa. Super. LEXIS 9912

• Court: Supreme Court of Pennsylvania
• Decided: December 29, 1987
• Docket: 228
• Status: Published

Opinions

CIRILLO, President Judge:

This case concerns the legality of a technique of electronic surveillance known as “participant monitoring,” or using a body wire to surreptitiously record a person’s conversations. The issue is whether, under the Pennsylvania Constitution, the police need a search warrant based on probable cause to send a confidential informer into the home of an individual to electronically record his conversations and transmit them back to the police. We hold that article I, section 8 of our constitution, which protects the right of the people to be secure from unreasonable searches and seizures, requires a warrant based on probable cause for the electronic seizure of such communications. We therefore reverse the judgment of sentence and remand for a new trial at which the fruits of the warrantless electronic surveillance of the defendant will be excluded.

The appellant Schaeffer was convicted of possession with intent to deliver marijuana and three counts of simple possession of controlled substances. The police had employed a confidential informant to make a controlled purchase of marijuana from Schaeffer in his home. A number of days later, they equipped the same informer with a body transmitter and sent him into the Schaeffer home to make another buy. As the transaction was occurring, the police monitored and recorded a conversation between Schaeffer and the informer indicating that Schaeffer would have additional marijuana for sale by the evening of a specified date. The day after that date, the police swore out a warrant to search Schaeffer’s home, reciting as probable cause the controlled buys the informer had made and the contents of the conversation the police had overheard. The police executed the warrant and seized the drugs that formed the basis for the prosecution.

In a pre-trial suppression motion and in post-trial motions, Schaeffer challenged the constitutionality of the electronic eavesdropping procedure used by the police. The trial court denied the motions, and Schaeffer appealed, alleging that the search of his home violated both the federal and state constitutions.

After Schaeffer filed his appeal, a panel of this court issued an opinion holding that neither the federal nor the state constitution forbids the warrantless electronic interception, transmittal, and recording of a person’s conversations in his home where the other party to the conversations has consented to the interception. Commonwealth v. Harvey, 348 Pa.Super. 544, 502 A.2d 679 (1985); accord Commonwealth v. Rodriguez, 356 Pa.Super. 543, 515 A.2d 27 (1986); see also Commonwealth v. Frank, 357 Pa.Super. 442, 448-49, 516 A.2d 64, 68 (1986). Due to the great importance of the issue involved, we ordered this case argued before the court en banc to reexamine whether Harvey correctly interpreted the Pennsylvania Constitution as affording no protection from the warrantless electronic seizure by a secret government agent of an individual’s conversations in the privacy of his home.

I

Before December 3, 1978, the effective date of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701-5727, see Act of Oct. 4, 1978, No. 164, sec. 3, 1978 Pa.Laws 831, 848, electronic eavesdropping with one party’s consent, which the Harvey court found not to implicate the state constitutional right to privacy, was a second-degree misdemeanor proscribed by an amendment to Chapter 57 of the Crimes Code, which at that time was entitled “Invasion of Privacy.” See Act of Dec. 27, 1974, No. 327, 1974 Pa.Laws 1007 (repealed 1978). The remainder of that chapter banned wiretapping. See Act of Dec. 6, 1972, No. 334, sec. 1, §§ 5701-5704, 1972 Pa.Laws 1482, 1568-69 (repealed 1978); accord Act of July 16, 1957, No. 411, 1957 Pa.Laws 956 (repealed 1972).

The 1978 Act, while retaining and enhancing the criminal penalties for wiretapping and other electronic interceptions of communications, see 18 Pa.C.S. § 5703, carved out limited exceptions to these general prohibitions. Most significantly, the Act for the first time in the Commonwealth’s history specifically authorized law enforcement officers to engage in wiretapping and electronic surveillance, subject to a stringent procedure for showing probable cause before a superior court judge. See generally id. §§ 5708-5726. The Act exempted certain other electronic surveillance techniques from these strictures. The technique used in this case is treated in subsection 5704(2):

§ 5704. Exceptions to prohibition on interception and disclosure of communications

It shall not be unlawful under this chapter for:

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:

(i) such officer or person is a party to the communication; or

(ii) one of the parties to the communication has given prior consent to such interception____

Id. § 5704(2); cf. 18 U.S.C.A. § 2511(2)(c)-(d) (West Supp. 1987).

The Harvey court, faced with the contention that 5704(2) was unconstitutional, noted the strong judicial presumption in favor of the constitutionality of a statute and held, among other things, that neither the fourth amendment to the United States Constitution nor article I, section 8 of the Pennsylvania Constitution requires a warrant for the type of electronic participant monitoring which 5704(2) permits. Accord Rodriguez; Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). Although we concur with Harvey that the fourth amendment, as interpreted by the United States Supreme Court, imposes no limits on one-party consent eavesdropping, we disagree with its ruling that under the Pennsylvania Constitution the police may engage in such monitoring in a citizen’s home without first obtaining a search warrant. We need not find section 5704(2) unconstitutional to arrive at this holding, because a reasonable construction of the Act allows the conclusion that the General Assembly’s exemption of participant monitoring from the prohibitions and requirements of the Act was not necessarily a legislative declaration that the practice was free of state constitutional constraints as well.

A

As a matter of federal constitutional jurisprudence, the Harvey panel’s conclusion that warrantless participant monitoring does not offend the fourth amendment prohibition on unreasonable searches and seizures is correct.

The United States Supreme Court first reviewed the practice in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), where an informer equipped with an electronic recorder and transmitter surreptitiously intercepted the defendant’s statements in his laundry shop and transmitted them to a federal agent. The Court held there was no fourth amendment violation because the informer had not trespassed on the defendant’s premises when he entered them to converse with the defendant. The Court further found it a “farfetched analog[y] which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search and seizure.” 343 U.S. at 753-54, 72 S.Ct. at 972; see also Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942) (warrantless electronic eavesdropping on telephone conversation from adjoining room not a fourth amendment violation); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (warrantless off-premises wiretapping not a fourth amendment violation).

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), however, the Court laid the “trespass” theory of fourth amendment protection to rest, holding

the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

389 U.S. at 351-52, 88 S.Ct. at 511 (citations omitted). The Court found that the monitoring and recording of a defendant’s words by means of an electronic bugging device attached to the outside of a public telephone booth “violated the privacy upon which he justifiably relied while using, the telephone booth and thus constituted a 'search and seizure’ within the meaning of the Fourth Amendment.” Id. at 353, 88 S.Ct. at 512. The Court had already determined before Katz that electronic surveillance could be a “search” and conversations could be “seized” within the meaning of that amendment. See, e.g., Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (invalidating statute authorizing judicially-ordered electronic eavesdropping as violative on its face of fourth amendment requirement of search warrant particularity); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (warrantless intrusion into house with “spike mike” violated fourth amendment, fruits of surveillance suppressed).

In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Supreme Court got the chance to reassess On Lee in light of the advances in fourth amendment doctrine bringing electronic eavesdropping within its scope. A divided Court reaffirmed the holding of On Lee, finding that warrantless eavesdropping on conversations between a suspect and an informant by means of a radio transmitter concealed on the informant’s person did not violate the fourth amendment, any more than did a secret informer’s reporting a suspect’s words to the police or a government agent’s secretly recording them, neither of which the Court had found to violate the Constitution. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (secret government informant may report suspect’s conversations to the government); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (IRS agent could surreptitiously record defendant’s bribe offer). Writing for a plurality of four Justices, Justice White reasoned:

If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

... If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when the same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.

White, 401 U.S. at 751, 752, 91 S.Ct. at 1126, 1126 (plurality opinion). Justice Black concurred in the judgment based on the now-discredited view he had expressed in Katz, 389 U.S. at 364-74, 88 S.Ct. at 518-23 (Black, J., dissenting), that the fourth amendment’s prohibition on unreasonable searches and seizures did not apply to eavesdropping on conversations. White, 401 U.S. at 754, 91 S.Ct. at 1127 (Black, J., concurring).

An alternative holding of the White Court was that Katz did not apply retroactively to the pre-Katz bugging that took place in White. Id. at 754, 91 S.Ct. at 1127, 1128 (plurality opinion), 755 (Brennan, J., concurring); accord Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (plurality opinion) (Katz not retroactive). Justice Brennan concurred in the White result on the limited grounds of Katz’s nonretroactivity, but disagreed with the White plurality on the constitutionality of warrantless participant monitoring after Katz. Justices Douglas, Harlan, and Marshall each dissented in White and would have applied Katz retroactively and found the participant monitoring to have violated the fourth amendment.

In summary, after Katz and White, the fourth amendment warrant requirement applies to electronic eavesdropping conducted by the police without the consent of either party to the conversation, see Katz; Berger; cf. United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (warrantless monitoring of electronic beeper in home violated fourth amendment), but does not apply where one of the parties to the conversation consents. See White; Commonwealth v. Donnelly, 233 Pa.Super. 396, 408-13, 336 A.2d 632, 638-41 (following White under fourth amendment), allocatur refused, 233 Pa.Super. xxxvi (Pa.1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976); see also United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).

B

Our authority, however, to diverge from the United States Supreme Court by recognizing a higher level of protection for individual rights under our state constitution is well settled. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L. Rev. 489 (1977). “[I]t cannot be doubted that this state has the constitutional power to guard individual rights, including the right to be free from unreasonable searches and seizures, more zealously than the federal government does under the United States Constitution.” Commonwealth v. Beauford, 327 Pa.Super. 253, 263, 475 A.2d 783, 788 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985); accord Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-67 (1983); Commonwealth v. Tarbert, 348 Pa.Super. 306, 309-11, 502 A.2d 221, 222-23 (1985), allowance of appeal granted, 511 Pa. 363, 513 A.2d 1381 (1986); In re Gartley, 341 Pa.Super. 350, 372, 491 A.2d 851, 863, allowance of appeal granted, 508 Pa. 352, 497 A.2d 610 (1985). “[T]he state,” therefore, “has the power to impose standards on searches and seizures higher than those required by the Federal Constitution.” Commonwealth v. DeJohn, 486 Pa. 32, 43, 403 A.2d 1283, 1288 (1979) (plurality opinion) (quoting Commonwealth v. Harris, 429 Pa. 215, 219 n. 2, 239 A.2d 290, 292 n. 2 (1968)), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980); accord Commonwealth v. Leninsky, 360 Pa.Super. 49, 519 A.2d 984, 986 (1986) (plurality opinion); Commonwealth v. Walsh, 314 Pa.Super. 65, 74, 460 A.2d 767, 771, allowance of appeal denied, 314 Pa.Super. 65, 460 A.2d 767 (Pa.1983); see Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967).

In Sell, Justice (now Chief Justice) Nix quoted Justice Brennan’s guidelines for state courts faced with deciding whether their own constitutions should be interpreted to provide broader protection of individual rights than the United States Supreme Court recognizes under the federal:

[ T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.

504 Pa. at 49, 470 A.2d at 459 (quoting Brennan, supra, at 502). In DeJohn, which one observer has called “a model of state constitutional independence,” Galie, The Pennsylvania Constitution and the Protection of Defendants’ Rights 1969-1980: A Survey, 42 U.Pitt.L.Rev. 269, 287 (1981), our state high court provided further guidance on the deference owed to decisions of the United States Supreme Court:

For a state court interpreting a state constitution, opinions of the United States Supreme Court are like opinions of sister state courts or lower federal courts. While neither binding in a constitutional sense nor precedential in a jurisprudential one, they are entitled to whatever weight their reasoning and intellectual persuasiveness warrant. One would expect a state court to deal carefully with a Supreme Court opinion and to explain forthrightly why it found itself constrained to reason differently. But such a difference in reasoning should be no more alarming than the differences which impel one judge to dissent from another’s opinion, one court to disagree with another, or the judges of any court to disagree with a precedent established by their predecessors.

486 Pa. at 44, 403 A.2d at 1289 (plurality opinion) (quoting Falk, The State Constitution: A More Than “Adequate" Nonfederal Ground, 61 Calif.L.Rev. 273, 283-84 (1973)); accord Beauford, 327 Pa.Super. at 264-65, 475 A.2d at 789.

Having taken this counsel to heart, we reject the reasoning of the United States Supreme Court, followed by this court in Harvey, which finds that a citizen gives up the right to be free from warrantless electronic seizure of words spoken in his home simply because another party to the conversation has consented to the interception. In the Commonwealth of Pennsylvania, no citizen should have to expect that the government may immediately and irrevocably seize his private thoughts every time he voices them to another person. Moreover, whatever the distinction between electronic eavesdropping done without consent and electronic eavesdropping done with the consent of a government informant, it does not support a rational conclusion that the first practice is a government “search and seizure” into the speaker’s protected zone of privacy while the second practice is not. On the contrary, a more valid distinction for constitutional purposes is between the government’s mere use of an informant to recount what someone has told him and its simultaneous electronic monitoring of a man’s words spoken in his home, because the latter is a far graver intrusion on privacy and freedom of speech. Without a warrant, such intrusion is manifestly unreasonable, and therefore violative of article I, section 8 of the Pennsylvania Constitution, and we overrule Harvey and all other decisions of this court to the extent that they hold otherwise. Harvey, 348 Pa.Super. at 554-55, 502 A.2d at 683-84; Frank, 357 Pa.Super. at 448-49, 516 A.2d at 68; Rodriguez, 356 Pa.Super. at 551-54, 515 A.2d at 31-32; cf. Hassine, 340 Pa.Super. at 353-57, 490 A.2d at 456-59 (wiretap). We thus join the high courts of a small minority of jurisdictions that have parted ways with White and found that warrantless participant monitoring offends rights guaranteed by their state constitutions. See State v. Glass, 583 P.2d 872 (Alaska 1978); State v. Sarmiento, 397 So.2d 643 (Fla.1981); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975); State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978); cf. State v. Lee, 67 Haw. 307, 686 P.2d 816 (1984) (3-2 decision holding one-party consensual monitoring not violative of state constitution); State v. Lester, 64 Haw. 659, 649 P.2d 346 (1982) (same, although Menor, J., concurring, would apply the warrant requirement to interceptions in the home); State v. Reeves, 427 So.2d 403 (La.1982) (court originally held 6-1 that state constitution required warrant for one-party consent monitoring; on rehearing after accession of three new justices, held 4-3 that it did not); Commonwealth v. Thorpe, 384 Mass. 271, 424 N.E.2d 250 (1981) (warrantless recording didn’t violate state search and seizure provision in view of limited scope of surveillance done by policeman whom defendant knew to be such; court nevertheless advised police to obtain warrants for such monitoring where they had probable cause), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). But see State v. Ridenour, 453 So.2d 193 (Fla.Dist.Ct.App.1984) (Sarmiento no longer good law after amendment to Fla. Const, art. I, § 12).

We begin by observing that our state constitution offers more protection to the right to privacy than exists in the federal regime, and hence it recognizes a greater right of the individual to exclude unreasonable impositions by government on private communications. The primary, though not the only, source of such protection in the Pennsylvania Constitution is article I, section 8, which provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const, art. I, § 8. “Article I, section 8 of the Pennsylvania Constitution, as consistently interpreted by this court, mandates greater recognition of the need for protection from illegal government conduct offensive to the right of privacy.” Sell, 504 Pa. at 67, 470 A.2d at 468 (emphasis added) (rejecting United States Supreme Court precedent and adopting rule of automatic standing to challenge searches involving possessory offenses in Pennsylvania). In Sell, the supreme court, through Justice Nix, offered a historical explanation for why the meaning of article I, section 8 could not be confined by narrow interpretations given to the fourth amendment:

[ C]onstitutional protection against unreasonable searches and seizures existed in Pennsylvania more than a decade before the adoption of the federal Constitution, and fifteen years prior to the promulgation of the Fourth Amendment. Clause 10 of the Pennsylvania Constitution of 1776 afforded such a guarantee.

In construing Article I, section 8, we find it highly significant that the language employed in that provision does not vary in any significant respect from the words of its counterpart in our first constitution. The text of Article I, section 8 thus provides no basis for the conclusion that the philosophy and purpose it embodies today differs from those which first prompted the Commonwealth to guarantee protection from unreasonable governmental intrusion. Rather, the survival of the language now employed in Article I, section 8 through over 200 years of profound change in other areas demonstrates that the paramount concern for privacy first adopted as a part of our organic law in 1776 continues to enjoy the mandate of the people of this Commonwealth.

504 Pa. at 63, 65, 470 A.2d at 466, 467.

Therefore, in applying this guarantee against “unreasonable governmental intrusion,” the Pennsylvania Supreme Court “has subjected searches and seizures to standards higher than those required under the Federal Constitution [and in doing so has] noted that ‘the right to be free from unreasonable searches and seizures contained in Art. I, § 8 of the Pennsylvania Constitution is tied into the implicit right to privacy in this Commonwealth.’ ” Lunderstadt v. Pennsylvania House of Representatives, 513 Pa. 236, 247, 519 A.2d 408, 414 (1986) (plurality opinion) (quoting DeJohn, 486 Pa. at 49, 403 A.2d at 1291 (plurality opinion)) (emphasis ours).

Indeed, as this court observed in Beauford,

Embodied in the constitutional statementf ] of the principle [in art. I, § 8] is a right to privacy older than either the federal or state constitution. Commonwealth v. Palms, 141 Pa.Super. 430, 15 A.2d 481 (1940). The right to be free from unreasonable searches and seizures is at the foundation of our body politic, in direct line with “the proud boast of an Englishman that his home was his castle and that as long as he obeyed the law, the King and his army could not enter it against his will.” Id., 141 Pa.Superior Ct. at 439, 15 A.2d at 485.

Beauford, 327 Pa.Super. at 261, 475 A.2d at 787; see also Silverman, 365 U.S. at 511, 81 S.Ct. at 682 (“The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”).

The right to privacy in Pennsylvania, and hence the right to exclude unreasonable government intrusion, encompasses freedom from disclosure of personal matters. See, e.g., Denoncourt v. Commonwealth, State Ethics Comm’n, 504 Pa. 191, 197-98, 470 A.2d 945, 948 (1983) (plurality opinion); In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 151, 415 A.2d 73, 77 (1980) (Eagen, C.J., joined by O’Brien & Kauffman, JJ; Larsen, J., & Flaherty, J., dissenting on other grounds, concurred in the holding) (“This privacy interest finds explicit protection in the Pennsylvania Constitution, Art. I, § 1____”). In Denoncourt, Justice Flaherty summarized some of the underpinnings of our constitutional right to privacy, drawing on the language used half a century earlier by Justice Brandéis to combat the view that warrant-less wiretapping did not trench on that right:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.

504 Pa. at 199, 470 A.2d at 948-49 (plurality opinion) (quoting Olmstead v. United States, 277 U.S. at 478, 48 S.Ct. at 572 (Brandéis, J., dissenting) (emphasis added)); accord Commonwealth v. Murray, 423 Pa. 37, 50-51, 223 A.2d 102, 109-10 (1966) (plurality opinion) (Musmanno, J.).

When it comes to protecting this “most comprehensive of rights,” moreover, the nation’s High Court concedes that “the protection of a person’s general right to privacy — his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual states.” Katz, 389 U.S. at 350-51, 88 S.Ct. at 510-11 (footnotes omitted).

In Commonwealth v. Beauford, this court took the first giant step towards recognizing a higher standard of protection from electronic surveillance under the Pennsylvania Constitution than the Federal Constitution provides. We there held that article I, section 8 prohibited the warrantless installation of a pen register on a telephone line to record the destination, time, and length of outgoing calls. We so held despite a provision of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5704(5), declaring it “not ... unlawful under this chapter” for a law enforcement officer to use a pen register, and despite a ruling by the United States Supreme Court that warrantless use of pen registers does not offend the fourth amendment. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). We thus disagreed with the Supreme Court on the extent of the individual’s “legitimate expectation of privacy” in cases of warrantless electronic surveillance.

Smith said that “[i]n determining whether a particular form of government-initiated electronic surveillance is a ‘search’ within the meaning of the Fourth Amendment, our lodestar is [Katz ],” and that under Katz “the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” 442 U.S. at 739-40, 99 S.Ct. at 2580 (footnote and citations omitted). Thus, to reach its holding that the fourth amendment did not extend to police use of pen registers, the Smith Court found that a caller had no “legitimate expectation of privacy” regarding the numbers he dialed on his phone. Id. at 742, 99 S.Ct. at 2581.

Beauford rejected the reasoning in Smith and found that under article I, section 8 an expectation of privacy in numbers dialed was legitimate and therefore constitutionally protected from government surveillance without a warrant. We relied heavily on DeJohn, wherein the Pennsylvania Supreme Court rejected the holding of the United States Supreme Court in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) that the fourth amendment did not prohibit the warrantless seizure of banking records, and found that a bank customer’s expectation of privacy in her banking records was reasonable, legitimate, and constitutionally protected under article I, section 8. DeJohn, in turn, followed the precedent set in Burrows v. Superior Court, 13 Cal.3d 238, 529 P.2d 590, 118 Cal.Rptr. 166 (1974), where the California Supreme Court focussed on the sophisticated data-gathering and storage capabilities made possible by modern electronic means, and warned:

Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.

13 Cal.3d at 247, 529 P.2d at 596, 118 Cal.Rptr. at 172, quoted in DeJohn, 486 Pa. at 46, 403 A.2d at 1290 (plurality opinion). Our supreme court agreed, saying “[w]e believe the analysis of the California Supreme Court, in recognizing modern electronic realities, is more persuasive than the simplistic proprietary analysis supposedly rejected in [Katz ], used by the court in Miller.” 486 Pa. at 47, 403 A.2d at 1290 (O’Brien, J., joined by Eagen, C.J., and Nix, J.; Manderino, J., dissenting on other grounds, concurred in the holding).

Our Beauford opinion, in finding the use of pen registers subject to the warrant requirement, also relied on the great caution with which this State has always regarded intrusions on privacy accomplished through electronic surveillance. 327 Pa.Super. at 267-68, 475 A.2d at 790-91; see, e.g., Commonwealth v. Papszycki, 442 Pa. 234, 275 A.2d 28 (1971); Murray, 423 Pa. at 50-51, 223 A.2d at 109-10 (plurality opinion) (eavesdropping on telephone conversation with one party’s consent intruded on privacy rights guaranteed by Pa. Const, art. I, §§ 1, 8); see also Commonwealth v. Doty, 345 Pa.Super. 374, 392, 498 A.2d 870, 879 (1985); Pa. House Legislative Journal 3147 (1978) (statement of Rep. Rhodes).

Thus, the recent trend of decisions in Pennsylvania shows a marked refusal by our courts to accept the United States Supreme Court’s premise that one gives up all constitutional rights to privacy in certain matters merely by disclosing them to selected other persons.

Of course, all the vaunted additional protection which the Pennsylvania Constitution extends to its citizens’ privacy is of no moment in this case if one concludes that electronic eavesdropping through a government informant sent into a person’s home does not invade a zone of privacy in which that person may justifiably claim protection. This the Harvey court concluded, relying, in our view, on a quite mechanical application of the reasoning employed by the Supreme Court plurality in White. The Harvey court acknowledged this state’s constitutional power to impose higher standards on police searches and seizures than the federal government does under the United States Constitution, and acknowledged that in Beauford and DeJohn Pennsylvania courts had interpreted article I, section 8 to provide broader protection against unreasonable searches and seizures than the fourth amendment provides. “Nevertheless,” the Harvey court stated,

it is difficult under any interpretation of Article 1, Section 8, to find a justifiable expectation of privacy with respect to information disclosed during conversation with a third person. Disclosures made during conversation are entirely voluntary. If a citizen voluntarily discloses criminal involvement during conversation with a third person, the Pennsylvania constitutional guarantee against unreasonable searches and seizures does not prevent future disclosure thereof to law enforcement officials. Similarly, the constitutional guarantee does not extend to or prevent a recording of the conversation in order to preserve the same for use in law enforcement activity. Nothing in contemporary constitutional thinking suggests otherwise.

348 Pa.Super. at 555, 502 A.2d at 684.

With all due respect to the author of Harvey, whose judicial scholarship and expression of opinion are normally beyond reproach, there is a substantial body of “contemporary constitutional thinking,” both judicial and scholarly, suggesting that one-party consensual electronic eavesdropping conducted in a suspect’s home without a warrant invades his constitutionally protected sphere of privacy more intrusively than the practice of simply using an informer without a body transmitter to report on a suspect’s words. In White, in fact, and in Lopez before that, four members of the Supreme Court were precisely of that opinion.

As Justice Brennan, one of the four on both occasions, wrote in Lopez:

It is not Agent Davis’ deception that offends constitutional principles, but his use of an electronic device to probe and record words spoken in the privacy of a man’s office. For there, is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy.

373 U.S. at 465-66, 83 S.Ct. at 1402 (Brennan, J., joined by Douglas and Goldberg, JJ., dissenting). And as Justice Harlan, author of the Lopez majority, later recanted and said in White,

The impact of the practice of third-party bugging [must] be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of “informer” investigation upheld in [Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) ] and [Hoffa v. United States ]. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.

White, 401 U.S. at 787, 91 S.Ct. at 1143-44 (Harlan, J., dissenting). And as a constitutional scholar put the distinction between mere informing and electronic monitoring, before the Supreme Court split asunder over the issue in White: “[T]he electronic portrayal is more profound — since it includes deception as to one’s capacity to reproduce the conversation accurately or transmit it simultaneously — and more inclusive — since the other participant’s remarks are heard indiscriminately by, rather than reported selectively to, the nonparty.” Greenawalt, The Consent Problem in Wiretapping and Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in the Conversation, 68 Col.L.Rev. 189, 215 (1968).

Thus, the electronic seizure is more immediate, invasive, and total than mere oral repetition by an informant, and its effects on people’s feelings that they are secure in their homes to speak in private are far more insidious. Electronic surveillance, with or without one party’s consent, therefore forces the speaker to readjust completely his traditional privacy expectations. Whether such expectations remain societally “legitimate” in today’s world is the question we must answer, but we would do well to remember that before the advent of electronic surveillance, society did recognize the legitimacy of the notion of private speech.

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.² Under our system of government, he can never be compelled to express them (except when upon the witness-stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.

The Right to Privacy, 4 Harv.L.Rev. 193, 198 & n. 2 (1890) (authored by Samuel D. Warren & Louis D. Brandéis); see also Denoncourt, 504 Pa. at 197-200, 470 A.2d at 948-49 (plurality opinion); Murray, 423 Pa. at 50, 223 A.2d at 109 (plurality opinion) (“natural law ... makes the robbery of one’s words as much a crime as purloining his money or jewels”); A. Westin, Privacy and Freedom 7 (1967).

The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy inherent in the First and Fifth Amendments as weli as in the Fourth.

White, 401 U.S. at 763, 91 S.Ct. at 1131 (Douglas, J., dissenting); see also Lopez, 373 U.S. at 452, 470-71, 83 S.Ct. at 1395, 1404-05 (dissenting opinion) (“Surely high government officials are not the only persons who find it essential to be able to say things ‘off the record.’ ”).

With electronic surveillance, this zone of privacy which allows a man to choose the range of his auditors is gone. The resulting disclosure to the government of private thoughts is not voluntary as the Harvey court found, but compelled. See Osborn v. United States, 385 U.S. 323, 351-52, 87 S.Ct. 429, 445, 17 L.Ed.2d 394 (1966) (Douglas, J., dissenting); Lopez, 373 U.S. at 450, 83 S.Ct. at 1393 (Brennan, J., dissenting). Every speaker knows and accepts as a “condition of human society” that his listener may go to the police, but he does not intend by speaking to give up the right to exclude the police from his home. But if the police are simultaneously recording every word, they are already there, in the home, uninvited, contrary to every reasonable expectation that most people in society still have. A person committing his views “to the sight of his friends” knows he risks misjudging his friends, but he doesn’t forfeit the right to determine in the first place to whom he will directly speak. The body bug destroys that right of self-determination, and if people in society come to believe the practice is widespread and done without probable cause, they may begin to fall silent on many occasions when previously they would have felt free to speak, confident in the belief that they could challenge the credibility or memory of the trusted colleague who would betray them.

It is with good reason, therefore, that the main constitutional distinction many authorities draw between participant monitoring and the ordinary reporting of conversations is the far graver and more chilling threat that “body bugging” poses to freedom of speech:

Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity — reflected in frivolous, impetuous, sacrilegious, and defiant discourse — that liberates daily life. Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.

White, 401 U.S. at 787-89, 91 S.Ct. at 1144 (Harlan, J., dissenting) (footnotes omitted).

[ t]he differences between talking to a person enswathed in electronic equipment and one who is not are very real, and they cannot be reduced to insignificance by verbal legerdemain. All of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd. New of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as he talks to a person.

Holmes v. Burr, 486 F.2d 55, 72 (9th Cir.) (Hufstedler, J., dissenting), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973).

[ T]he state argues that there is no difference between talking to a friend who repeats what is told in confidence and talking to one with a transmitter or recorder. All one needs do to refute that statement is to ask the question of oneself; would it make a substantial difference to the speaker to assume the risk, not only that one’s confidence will be betrayed by oral recollections, but also the risk that one’s remarks will be secretly recorded or broadcast? Certainly, many of the casual, the caustic, the irreverent remarks would be inhibited, as would criticism of individuals and policies. The employee could not with impunity point to shortcomings in his superiors or in the functions of his office. Families could not freely discuss the foibles of others. Clever prodding may elicit thoughtless comments about sex, religion, politics, acquaintances, personal finances and even one’s innermost thoughts. One takes the risk that his friend may repeat what has been said. One shouldn’t be required to take the additional risk of an entirely different character — that his conversation is being surreptitiously transcribed or broadcast.

A confidence repeated by a false friend is received by third parties with the attendant circumstances of the “friend’s” credibility and memory. One’s ill-considered remarks are not thereby preserved for posterity on the reels of magnetic tape nor insulated from the faded memories inherent in the passage of time. Faced with the choice of silence or the risk that comments will be “etched in stone,” a speaker may choose the former alternative, to the manifest diminution of the spontaneity which marks our daily discourse.

State v. Glass, 583 P.2d at 877-78; see also White, 401 U.S. at 762-63, 91 S.Ct. at 1131 (Douglas, J., dissenting); Lopez, 373 U.S. at 452, 470, 83 S.Ct. at 1394, 1404 (Brennan, J., dissenting); Holmes v. Burr, 486 F.2d at 65 (Hufstedler, J., dissenting); People v. Hall, 88 Mich.App. 324, 329-30, 276 N.W.2d 897, 898-99, leave to appeal denied, 406 Mich. 941 (1979); The President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 200-03 (1967) (“The Threat to Privacy____ Fear or suspicion that one’s speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect on the willingness to voice critical and constructive ideas.”), quoted in Berger v. New York, 388 U.S. at 125, 87 S.Ct. at 1917 (White, J., dissenting).

In this respect, the Harvey and White courts seriously misconceive the chilling effect that warrantless monitoring has on our citizens’ rights by assuming that it forces only “wrongdoers” to engage in “self-censorship” in speaking about their “criminal activities.” See Harvey, 348 Pa. Super, at 551, 502 A.2d at 682. If this were the only ill effect of such surveillance we would not hesitate to agree that “body bugging” intrudes on no privacy interest that Pennsylvania is prepared to recognize as reasonable. The point White and Harvey miss, however, is that the risk of warrantless electronic surveillance falls on innocents and criminals alike, because the very premise of a warrantless procedure is that the police can do it without demonstrating before a judicial officer that there is probable cause to believe they will find evidence of a crime.

[ I]t is too easy to forget — and, hence, too often forgotten — that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its “risk analysis” solely in terms of the expectations and risks that “wrongdoers” or “one contemplating illegal activities” ought to bear, the plurality opinion ... misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk.... Abolition of On Lee would not end electronic eavesdropping. It would prevent public officials from engaging in that practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield “wrongdoers,” but to secure a measure of privacy and a sense of personal security throughout our society.

White, 401 U.S. at 789-90, 91 S.Ct. at 1144 (Harlan, J., dissenting).

We have, therefore, considered the legitimate needs of law enforcement to use clandestine means to combat crime, and we wholeheartedly agree with the statements of our Brother Tamilia in the case of Commonwealth v. Trignani, 334 Pa.Super. 526, 536, 483 A.2d 862, 867 (1984), where this court dealt with another facet of electronic surveillance, and said that the General Assembly’s anti-wiretapping legislation was meant to protect “the right of privacy of law-abiding citizens,” not “communications among criminal networks.” While we again acknowledge that the police need access to the most modern and effective technological advances in the war on crime, such access without a warrant requirement leaves them free to train these powerful eavesdropping devices on you, me, and other law-abiding citizens as well as the criminal element. See Glass, 583 P.2d at 878. Any balancing of the needs of law enforcement against the rights of the citizen has already been done by the framers of the constitution who conditioned searches and seizures for the most part on the prior approval of a detached and neutral magistrate. It is no great burden on the police to require that they restrict participant monitoring to cases where they can show probable cause for a warrant. See Lopez, 373 U.S. at 469, 83 S.Ct. at 1404 (Brennan, J., dissenting); Greenawalt, supra, at 229.

“Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also of grave concern, not only to the individual, but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 1085, 75 L.Ed.2d 55 (1983) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948)).

We must therefore reject the dissent’s proposition that the limitations contained in 5704(2)(ii), i.e., that there be “suspected criminal activity afoot,” that the informant’s consent be voluntary, and that the prosecutor give prior approval for the interception, “act as an adequate deterrent to inappropriate police activity” and “drastically minimize the likelihood of an invasion of the law abiding citizen’s legitimate expectations of privacy.” At 400 (Rowley, J., dissenting). The language of 5704(2)(ii) is designed simply to ensure that the informant has indeed voluntarily consented to participate in the interception. See Commonwealth v. Clark, 516 Pa. 599, 533 A.2d 1376 (1987). This, coupled with the remaining requirements of 5704(2), necessitating that criminal activity be suspected and that the Attorney General, the District Attorney, or their respective deputies give their approval, in no way provides a sufficient guard to protect citizens from the unwarranted intrusions into their privacy which the constitution was designed to prevent. Under our constitution, prosecutors do not have the authority to approve searches, which would be tantamount to their issuing their own warrants. Law enforcement officers, “engaged in the ‘often competitive enterprise of ferreting out crime,’ ” Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979) (quoting Johnson, 333 U.S. at 14, 68 S.Ct. at. 369), are rarely appropriate parties to be determining the adequacy of grounds for a search, and their “suspicions” of criminal activity are not the standard which our constitutional system has chosen to safeguard the rights of citizens against arbitrary intrusions by the government. “Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that ‘common rumor or report, suspicion, or even “strong reason to suspect” was not adequate to support a warrant____’” Id. (quoting Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959)). The constitutional standard is probable cause,

[which] is designed to protect us from unwarranted and even vindictive incursions upon our privacy. It insulates us from dictatorial and tyrannical rule by the state, and preserves the concept of democracy that assures the freedom of its citizens. This concept is second to none in its importance in delineating the dignity of the individual living in a free society.

Commonwealth v. Miller, 513 Pa. 118, 127, 518 A.2d 1187, 1191-92 (1986) (Nix, C.J.) (citation omitted).

The question whether the Pennsylvania Constitution forbids warrantless participant monitoring ultimately boils down to whether society recognizes as reasonable and legitimate the ordinary expectation of the individual that his words are not being electronically recorded and transmitted beyond the four walls of his home or office. We find it perfectly reasonable and legitimate for an individual even in this day and age to expect that his words are not subject to warrantless government surveillance, whether or not it is the person spoken to who is doing the bugging. We fail to see how a person’s “reasonable expectations” change whether the government plants a bug in his house or sends someone walking into it with a body transmitter. In both cases, the speaker assumes the risk that the person to whom he is directly speaking will report to the police. But in neither case does he expect the added intrusion of the government’s recording or listening in on the conversation. The informant’s consent to the governmental surveillance can in no wise affect the societal “legitimacy” of the speaker’s expectation that he is not being bugged. See Lopez, 373 U.S. at 452, 83 S.Ct. at 1394 (Brennan, J., dissenting); Holmes v. Burr, 486 F.2d at 66 (Hufstedler, J., dissenting).

We take heed, moreover, that our supreme court in Sell, while applauding Katz’s result, see 504 Pa. at 57-58, 470 -64, criticized the “legitimate expectation of privacy” rationale which Justice Harlan’s concurrence in that case had spawned, see id., 504 Pa. at 56-60, 470 A.2d at 463-65, as a dangerous tool used in the hands of the Supreme Court to whittle away at citizens’ privacy rights through rulings that increasingly refuse to find “legitimacy” in subjective expectations of privacy. See id., 504 Pa. at 66-67, 470 A.2d at 468. Under article I, section 8, therefore, the court directed us to keep our focus trained squarely on “the critical element of unreasonable governmental intrusion,” id., in determining whether the means the police have used to obtain challenged evidence are illegal. Focussing on the unreasonableness of the governmental intrusion which warrantless electronic eavesdropping represents leads us to conclude that the supreme court would agree with us that the warrantless interception of Schaeffer’s conversation in his home violated his rights under the state constitution.

We need not speculate on whether our supreme court will ultimately reject the “legitimate expectation of privacy” as the touchstone of constitutional protection from unlawful search and seizure, because the idea that a person loses his legitimate expectation of privacy from electronic surveillance when he confides his words to someone who turns out to be a clandestine recorder for the police is demonstrably fallacious even under the rationale of the Court which has given this idea constitutional credence.

According to Katz v. United States, “What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection____” 389 U.S. at 351-52, 88 S.Ct. at 511 (emphasis added). But “[s]o long as a person seeks to preserve his effects as private, even if they are accessible to the public or to others, they are constitutionally protected.” Commonwealth v. Platou, 455 Pa. 258, 266-67, 312 A.2d 29, 34 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). The idea of Harvey and the White plurality that a speaker “knowingly” exposes his conversation to the public simply by speaking to another individual whom he wrongly assumes to be a private person is at odds with the reasoning behind Beauford, which rejected the Supreme Court’s reasoning that a person knowingly divulges the telephone numbers he dials to the public and therefore has no privacy interest in them simply because the telephone company has access to them in the regular course of business. The private conversation, just like the telephone number, is sought to be preserved as private, even when accessible to “others,” and therefore under the Katz “legitimate expectation of privacy” rationale deserves constitutional protection. The Supreme Court has plainly held that the fourth amendment prohibits warrantless governmental electronic monitoring where neither party to the conversation consents, see Berger v. New York; Katz v. United States, and in Katz, the Court illustrated one situation where an expectation of privacy from the government’s warrantless seizure of words was legitimate: “One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” 389 U.S. at 352, 88 S.Ct. at 511-512 (emphasis added). In the place where Schaeffer spoke, he had, if anything, an even greater expectation that his words would not be “broadcast to the world,” because he spoke in his home; and as our state high court has justly said, “Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978) (emphasis added) (quoting Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1220 (1977)); accord Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Silverman v. United States, 365 U.S. at 511-12 & n. 4, 81 S.Ct. at 683 & n. 4. The caller in Katz, no differently from those who spoke in their homes in White, Harvey, and this case, necessarily bore the risk that the person he spoke to would report what he said. Why, then, since' the words were subject to oral repetition, did the Court in Katz consider it an invasion of a protected sphere of privacy for the government to simultaneously seize the words without a warrant based on probable cause? The answer is that Katz, just like Schaeffer, spoke in circumstances justifying his belief that he could exclude “the uninvited ear,” 389 U.S. at 352, 88 S.Ct. at 511, and that the limited risk of oral betrayal “inherent in the conditions of human society” did not destroy the separate, legitimate expectation that the police could not directly seize the words of his conversation by electronic means without a warrant based on probable cause.

From the standpoint of a person enjoying this legitimate expectation, nothing changes when the party spoken to is an alter ego of the police who cooperates in the bugging. The consenting individual may have forfeited his own right to privacy, and he is free to report whatever he hears, but his actions simply can have no effect on the societal legitimacy of the speaker’s expectations that he is not being simultaneously recorded by the government. The risk of oral betrayal remains constant whether there is nonconsensual bugging, one-party consensual bugging, or no bugging at all. If risk of oral betrayal is allowed to defeat the speaker’s legitimate expectation of privacy from warrant-less electronic surveillance by the police, it must do so whether or not the other party has consented beforehand to the interception, because if the speaker has no right to rely on the trust reposed in his associate, there is no expectation left on which he can base his right to exclude the government. The logical consequence of this interpretation of a person’s “reasonable expectations” is that he enjoys no right to privacy in anything he says to anyone, and, therefore, must risk that he is speaking directly to the government any time he says anything to anyone. Under this “informer” theory of the constitutional right to privacy, a person who speaks to another must indeed expect that his words will be “broadcast to the world,” and therefore the only “residuum of true privacy” from warrantless electronic intrusion by the government is to speak only when alone, or to remain silent. When the luxury of unmonitored speech is thus constitutionally confined to moments of solitude, it will be just one small step to hold that speakers should expect the government to seize their words whenever they open their mouths. Beyond that, the courts will have nothing to do but await the technological advance which permits the instantaneous reading of the mind to determine whether the constitution recognizes a “legitimate expectation of privacy” in keeping one’s thoughts to one’s self. See Olmstead v. United States, 277 U.S. at 474, 48 S.Ct. at 571 (Brandéis, J., dissenting) (“Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions____ Can it be that the Constitution affords no protection against such invasions of personal security?”).

The most apocalyptic vision of the practice of participant monitoring is that, unconstrained by constitutional limitations, it threatens to become a police-state tool of a type totally inconsistent with the free democratic traditions of the American people. “Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny.” Lopez, 373 U.S. at 466, 83 S.Ct. at 1402 (Brennan, J., dissenting).

The practice of broadcasting private inside-the-house conversations through concealed radios is singularly terrifying when one considers how this snide device has already been used in totalitarian lands. Under Hitler, when it became known that the secret police planted Dictaphones in houses, members of families often gathered in the bathrooms to conduct whispered discussions of intimate affairs, hoping thus to escape the reach of the sending apparatus.

United States v. On Lee, 193 F.2d 306, 317 (1951) (Frank, J., dissenting), aff'd, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government____

Once electronic surveillance, approved in Lopez [v. United States] is added to the techniques of snooping which this sophisticated age has developed, we face the stark reality that the walls of privacy have broken down and all the tools of the police state are handed over to our bureaucracy on a constitutional platter.

The time may come when no one can be sure whether his words are being recorded for use at some future time; when everyone will fear that his most secret thoughts are no longer his own, but belong to the Government; when the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone. If a man’s privacy can be invaded at will, who can say he is free? If his every word is taken down and evaluated, or if he is afraid every word may be, who can say he enjoys freedom of speech? If his every association is known and recorded, if the conversations with his associates are purloined, who can say he enjoys freedom of association? When such conditions obtain, our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished.

Osborn v. United States, 385 U.S. 323, 341, 349, 353-54, 87 S.Ct. 429, 439, 444, 446, 17 L.Ed.2d 394 (1966) (Douglas, J., dissenting).

Not everyone shares Justice Douglas’s dire view of the risk we as a society take by condoning warrantless participant monitoring. For example, Greenawalt in The Consent Problem in Wiretapping, after a thorough and careful analysis, concludes that, although participant monitoring does impinge on privacy and freedom of speech, it is a lesser intrusion than that posed by electronic eavesdropping without the consent of any party. Yet even Greenawalt points out the perverse lengths to which the police presumably can go under the “consent” theory of permissible electronic eavesdropping:

Under the majority’s view [in On Lee v. United States ], the proprietor’s consent to a visitor’s presence, however mistaken he may be about his visitor’s true purpose, apparently extends, at least for purposes of the law of evidence, to whatever devices the visitor may bring to record or transmit what he hears — or, presumably, sees. It makes no difference what cause the police have to expect guilt or how serious the invasion of privacy is. If the police, engaged in a fishing expedition among persons whom they had only slight reason to suspect of a crime, equipped a suspect’s mistress with a miniature television transmitter, and then watched, as well as listened to, what happened in his bedroom, there would still be no trespass and no constitutional violation.

Greenawalt, supra, at 193-94.

Perhaps this passage best demonstrates the shortcomings of the constitutional theory that there is an exception to the warrant requirement in electronic surveillance cases if one party “consents” to the intrusion. Anyone who accepts the premise that there is a constitutionally protected right to privacy must recoil at the idea that the police can overhear and record the intimacies of a man’s bedroom without a warrant and without probable cause to believe the suspect has committed a crime, merely by obtaining the “consent” of the other party to the transaction. Yet that is precisely what the current Supreme Court jurisprudence on the fourth amendment ramifications of electronic surveillance apparently would permit. Cf. G. Orwell, 1984, 4 (“The telescreen”), quoted in United States v. On Lee, 193 F.2d at 317 (Frank, J., dissenting). But see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (“penumbras” of various provisions of the Bill of Rights combine to create a constitutionally protected sphere of privacy in the marital bedroom); State v. Solis, 693 P.2d 518 (Mont.1984) (surreptitious videotaping without a compelling state interest violates Montana Constitution). See generally Hodges, Electronic Visual Surveillance and the Fourth Amendment: The Arrival of Big Brother? 3 Hastings Const.L.Q. 261 (1976).

In 1984, a year which formed the title for a George Orwell novel foretelling the arrival of Big Brother and the governmental extinguishment of human freedom, we wrote in Beauford that the government could not use an electronic device to discover the telephone numbers a citizen dials without a warrant based on probable cause. The apocalyptic vision of Orwell’s 1984 has not, in the eyes of most calm observers, come to pass in this country, in part because the courts of this nation have always stood as a bulwark between the awesome powers of the state and the rights of the individual. Now, in 1987, the 200th anniversary of our nation’s Constitution, we are asked to determine that a man has no right to expect that he is not speaking directly into a government microphone every time he opens his mouth in the presence of another person. The supreme arbiters of the United States Constitution have held that an American enjoys no such right; we hold that a Pennsylvanian, speaking in the private sanctum of his home, does have that right, and that an adequate, independent, fundamental ground for it exists in the Pennsylvania Constitution, which itself has protected the privacy rights of the citizens of this Commonwealth since before the nation was founded.

C

The Wiretapping and Electronic Surveillance Control Act explicitly acknowledges that the target of participant monitoring has a legitimate expectation of privacy in his conversation. Section 5704(2)’s exemption of participant monitoring from the prohibitions and requirements of the Act refers to the interception of an “oral communication,” which the Act defines as: “Any oral communications uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 Pa.C.S. § 5702 (emphasis added); see also id. (definition of “intercept” as “[ajural acquisition of the contents of any wire or oral communication____” (emphasis added)). The definition of “oral communication” virtually mimics the Supreme Court’s definition of a constitutionally protected privacy interest as a “justifiable expectation of privacy.” See Smith, 442 U.S. at 739, 99 S.Ct. at 2580; Katz, 389 U.S. at 353, 88 S.Ct. at 512; cf., e.g., Platou, 455 Pa. at 267, 312 A.2d at 34. The General Assembly therefore could not, consistently with these definitions, have intended that participant monitoring be free of the warrant requirements of the state or federal constitutions.

Our conclusion that the state constitution requires a warrant for one-party consensual electronic eavesdropping therefore does not require us to strike down as unconstitutional subsection 5704(2) of the Act, which states only that that practice when done by law enforcement agents is “not ... unlawful” under the Act. Section 5704(2) therefore allows the police to “intercept” an “oral communication” with one party’s consent and the approval of an authorized Commonwealth attorney, see 18 Pa.C.S. § 5704(2)(ii), without complying with the “exacting standards” of sections 5708-5723 of the Act, see Commonwealth v. Checca, 341 Pa.Super. 480, 492, 491 A.2d 1358, 1364, allowance of appeal denied, 341 Pa.Super. 480, 491 A.2d 1358 (Pa.1985), and without risking the civil and criminal penalties that would apply to any other person engaging in such surveillance, see 18 Pa.C.S. §§ 5703, 5725-5726. This legislative scheme of exempting participant monitoring from the prohibitions and requirements of the Act cannot, however, be read as an attempt to authorize its practice without a warrant, because that would fly directly in the face of the Legislature’s recognition that such monitoring intrudes on a constitutionally protected zone of privacy. In Beauford, we similarly found that the Legislature’s exemption of the use of pen registers by the police from the Act’s strict requirements was not a legislative declaration that such devices were beyond the reach of the article I, section 8, limitation on warrantless searches and seizures, particularly given the Legislature’s desire to proceed cautiously in electronic eavesdropping after several years of prohibition and abuse. 327 Pa.Super. at 267-68, 475 A.2d 790-91 (quoting Pa. House Legislative Journal 3147 (1978) (statement of Rep. Rhodes)). In State ex rel. Arnold v. County Court, 51 Wis.2d 434, 187 N.W.2d 354 (1971), the court found that an almost identical statutory exemption making consent monitoring “not unlawful” did not “authorize” consent monitoring nor make its results admissible in evidence, cf. 18 Pa.C.S. § 5717(b) (“Any person who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication [may divulge or testify as to those contents]” (emphasis added)), and in State v. Ayres, 118 N.H. 90, 383 A.2d 87 (1978) the court found that a statute permitting participant monitoring did not allow introduction of its fruits into evidence, viewing the purpose of the exception as allowing the police to protect their undercover agent. See also State v. Brackman, 178 Mont. at 116-17, 582 P.2d at 1222.

These considerations and others may have been present to the General Assembly that enacted 5704(2), or it may simply have deferred to the courts on the constitutionality of warrantless participant monitoring, while taking care to enunciate that it was not a crime nor was a superior court order necessary to engage in it. See also Commonwealth v. Doty, 345 Pa.Super. 374, 392, 498 A.2d 870, 879 (1985) (Wieand, J.) (“It has generally been acknowledged that legislation which authorizes electronic surveillance infringes upon the right of privacy and, therefore, must be strictly construed.”), allowance of appeal denied, No. 232 M.D. Allocatur Dkt. 1985 (Pa. June 12, 1986), cert. denied, — U.S. —, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986).

We must presume, however, that the General Assembly intended not to violate the Pennsylvania Constitution in enacting subsection 5704(2), see 1 Pa.C.S. § 1922(3), and we must also apply “the well-established proposition that a court is not to rule on the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the issue before it.” Commonwealth v. Cacek, 358 Pa.Super. 381, 384, 517 A.2d 992, 993 (1986) (quoting Commonwealth v. Samuels, 354 Pa.Super. 128, 144-45, 511 A.2d 221, 230 (1986), rev’d, on other grounds, 516 Pa. 300, 532 A.2d 404 (1987)); see also United States v. Geller, 560 F.Supp. 1309, 1313 n. 2 (E.D.Pa.1983), aff'd per curiam sub nom. United States v. DeMaise, 745 F.2d 49 (3d Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985).

Our ruling that the police need a warrant to conduct one-party consensual electronic eavesdropping does not directly conflict with the statutory exemption stated in section 5704(2), and therefore there is no present need to affirmatively declare that statute unconstitutional.

Since the statute does exempt such activity, moreover, the “exacting” standards of the wiretap act do not necessarily apply to it, except insofar as they effectuate the constitutional guarantee that search warrants shall issue only upon probable cause, “supported by oath or affirmation subscribed to by the affiant.” Cf. Beauford, 327 Pa.Super. at 269 n. 7, 475 A.2d at 791 n. 7. On the other hand, search warrants to intercept conversations are not entirely similar to search warrants to seize tangible property, and therefore some analogies to the wiretap act may be useful. For example, orders authorizing interceptions should specify reasonable limitations as to time, place, and identity of the parties whose communications are to be intercepted. Cf. 18 Pa.C.S. § 5712(a)-(b).

II

The Commonwealth, in a contention raised for the first time at oral argument before the court en banc, maintains that the affidavit used to obtain the warrant to search Schaeffer’s home established sufficient probable cause to support the search even excluding the evidence overheard during the illegally intercepted conversation. We reject this contention.

“In deciding whether a warrant issued in part upon information obtained through exploitation of illegal police conduct is valid, we must consider whether, absent the information obtained through the illegal activity, probable cause existed to issue the warrant.” Commonwealth v. Shaw, 476 Pa. 543, 555, 383 A.2d 496, 502 (1978). Excising from the search warrant affidavit the information obtained through the illegal electronic surveillance, the evidence upon which the search warrant issued shows that:

1. Between the dates of March 18 and March 25, 1984, the informant bought marijuana from Schaeffer in his home.

2. Between the dates of April 1 and April 6, 1984, the informant again bought marijuana from Schaeffer in his home.

3. On both occasions the marijuana was in “small prepackaged plastic baggies.”

4. The affiant, through his extensive experience in drug investigations, “has learned that individuals who regularly traffic in Controlled Substances frequently pre-package Controlled Substances in small plastic bags, in preparation for sale____”

Even viewing this evidence in the “totality of the circumstances,” see Commonwealth v. Gray, 509 Pa. 476, 485, 503 A.2d 921, 926 (1985), and in a “common sense, nontechnical, ungrudging and positive manner,” Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984), as we are required to do, we must find this information insufficient to establish probable cause to believe that evidence of crime would be found in the suspect’s home on April 6, the date of the search. Evidence of previous criminal activity will not support a finding of probable cause to search a home unless it is also shown that the activity continued up to or about the time of the issuance of the warrant. Id., 506 Pa. at 269, 484 A.2d at 1387; Commonwealth v. Tolbert, 492 Pa. 576, 580, 424 A.2d 1342, 1344 (1981); Commonwealth v. Jackson, 461 Pa. 632, 639-40, 337 A.2d 582, 585, cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth v. Shaw, 444 Pa. 110, 113-14, 281 A.2d 897, 899 (1971). In determining whether the Commonwealth’s evidence of drug sales from Schaeffer’s home preceding issuance of the warrant was stale or whether it showed the probability of criminal activity continuing up to or about the time of the search, we must consider the rule stated by this court in Commonwealth v. Novak, 233 Pa. Super. 236, 238-39, 335 A.2d 773, 774-75, allocatur refused, 236 Pa.Super. xxxv (Pa.1975), for situations where a magistrate or a reviewing court is forced to assume when “within” a stated period a given transaction occurred:

Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period. See 100 A.L.R.2d 532. The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made”, rather than “a dozen purchases were made in the first week of January”.

Accord United States v. Button, 653 F.2d 319, 324-25 (8th Cir.1981); Commonwealth v. Burke, 235 Pa.Super. 36, 42, 340 A.2d 524, 527 (1975). Accordingly, having placed Schaeffer’s drug sales to the Commonwealth informant at the remotest part of the recited periods, the Commonwealth’s affidavit establishes that on March 18 and on April 1, Schaeffer sold marijuana to the informant in his home; the affidavit does not reveal the quantities sold on either occasion, except that on both occasions the marijuana was in a “small” “pre-packaged” baggie. This information does not allow the conclusion that the police would probably find evidence of drug sales in Schaeffer’s home on April 6th.

The Commonwealth presents us with several cases where our courts have found evidence of “continuing” criminal activity sufficient to support a finding of probable cause, but each case is distinguishable. For example, in Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), which the Commonwealth finds “nearly identical” to this case, the defendant had made “many” sales of T.H.C. to the informant in the past, was seen possessing the drug between March 5th and March 12th, sold the drug to the informant under police surveillance on separate occasions, and told the informant he was expecting a “large quantity” of the drug on March 11th or 12th; a search warrant was executed on the 12th. In Schaeffer’s case, however, excising the illegally monitored conversation from the warrant removes precisely that information which the court in Baker found most supportive of the magistrate’s finding of probable cause: that is, that the defendant was expecting a delivery of drugs on the day before the search. Cf. also Gray (informant saw twenty pounds of marijuana in suspect’s home within four days of warrant, then confirmed with suspect within two days of warrant that he still had marijuana); Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981) (plurality opinion) (warrant executed within two weeks of observation of defendant preparing to sell thirteen “bundles” of heroin wasn’t stale; affiant also monitored two short visits to subject premises on day before search); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984) (combination of controlled buy, observation of more drugs on premises, defendant’s record of drug arrests, and known addicts’ visiting premises established probable cause for search). Perhaps the decision most helpful to the Commonwealth’s position is Commonwealth v. Toner, 289 Pa. Super. 200, 433 A.2d 25 (1981) (2-1 decision), where this court held that a five-day-old tip alerting the police to the presence and use of marijuana on the premises, confirmed four days before the search by a police officer’s detection of a strong odor of marijuana coming from the premises, sufficiently established probable cause for the search. However, even in Toner the five-day-old observation involved a “large quantity” of marijuana, a factor totally absent from the affidavit used to justify the search of Schaeffer’s quarters.

In a last-ditch effort to save the warrant, the Commonwealth also contends that we should infer that the informant orally reported the contents of Schaeffer’s conversation to the police affiant, so that the information overheard through the electronic monitoring was not the only source from which the affiant knew that Schaeffer was expecting to have marijuana on the evening of April 5. However, if the trooper did learn of the expected shipment elsewhere than from the interception, he did not attest to this fact in the affidavit sworn to before the magistrate. If anything is settled in Pennsylvania’s law of search and seizure, it is that probable cause for the issuance of a warrant must appear within the four corners of the supporting affidavit. See Stamps, 493 Pa. at 535-36, 427 A.2d at 143 (plurality opinion); Commonwealth v. Simmons, 450 Pa. 624, 626, 301 A.2d 819, 820 (1973); Commonwealth v. Way, 342 Pa.Super. 341, 346-47, 492 A.2d 1151, 1154 (1985) (Olszewski, J.); Beauford, 327 Pa.Super. at 269 n. 7, 475 A.2d at 791 n. 7; Commonwealth v. Gannon, 308 Pa.Super. 330, 341-42, 454 A.2d 561, 567 (1982); Pa.R.Crim.P. 2003(a)-(b). It would be sheer speculation for us to conclude, in the absence of a sworn written statement or indeed any statement at all to that effect, both that (1) the informant orally reported his conversation to the affiant and (2) the affiant relayed this fact to the magistrate. We therefore find that without the tainted fruits of the warrantless electronic surveillance, the police had no probable cause to search Schaeffer’s home.

Ill

The final issue we must determine is whether the recently adopted “good faith” exception to the exclusionary rule would entitle the Commonwealth to admit the drugs seized during the unlawful search of Schaeffer’s house. We conclude that the good-faith exception does not apply to the seizure of drugs which was premised on the Commonwealth’s warrantless interception of Schaeffer’s conversation, and therefore order suppression of the evidence seized pursuant to the unlawful warrant.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that unreasonable searches and seizures under the fourth amendment would no longer be subject to the rule excluding the fruits of the illegal search or seizure where the police had acted in good-faith reliance on an apparently valid warrant later found not to establish probable cause. See also Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In Commonwealth v. Melilli, 361 Pa.Super. 429, 522 A.2d 1107 (1987), this court applied the “good faith” exception to a search found illegal under the Pennsylvania Constitution, and held that the Commonwealth could admit evidence seized pursuant to a warrant based in part on evidence obtained from pen registers installed without probable cause on the telephone lines of the defendants, a practice which, after the police had acted in Melilli, we found violative of the state constitutional prohibition on unreasonable searches and seizures in Beauford. The Melilli court recognized a state constitutional exception to the exclusionary rule “which has application narrowly to situations in which law enforcement officials have acted (1) in good faith; (2) in reasonable reliance upon a procedure expressly sanctioned by existing judicial decisions; and (3) pursuant to authorization obtained from a neutral magistrate.” Melilli, 361 Pa.Superior Ct. at 440, 522 A.2d at 1112; cf. Sell (finding evidence subject to suppression under art. I, § 8 of Pennsylvania Constitution); DeJohn (same); Tarbert (same); Commonwealth v. O’Shea, 328 Pa.Super. 104, 117, 476 A.2d 911, 918 (1984) (dictum) (declining to find good faith exception to exclusionary rule under Pennsylvania Constitution), allowance of appeal denied, 328 Pa.Super. 104, 476 A.2d 911 (Pa.1985).

We believe, however, that the good-faith exception to the exclusionary rule announced in Leon, even if we were to follow Melilli in adopting it as a matter of state constitutional law (an issue we do not decide), does not exempt the state from the exclusionary consequences of an illegal search and seizure where, as here, the police have acted on the basis of a statute which they interpreted to authorize a warrantless search and seizure without probable cause. The good faith exception cannot apply in such a situation because it is per se unreasonable for the police to believe that a statute confers upon them the authority to conduct searches and seizures in the homes of citizens on less than probable cause. As the Supreme Court explained in Leon,

We have held, however, that the exclusionary rule requires suppression of evidence obtained in searches carried out pursuant to statutes, not yet declared unconstitutional, purporting to authorize searches and seizures without probable cause or search warrants. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 62 L.Ed.2d 238, 100 S.Ct. 338 (1979); Torres v. Puerto Rico, 442 U.S. 465, 61 L.Ed.2d 1, 99 S.Ct. 2425 (1979); Almeida-Sanchez v. United States, 413 U.S. 266, 37 L.Ed.2d 596, 93 S.Ct. 2535 (1973); Sibron v. New York, 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889, 44 Ohio Ops 2d 402 (1968); Berger v. New York, 388 U.S. 41, 18 L.Ed.2d 1040, 87 S.Ct. 1873 (1967). “Those decisions involved statutes which, by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable-cause requirements of the Fourth Amendment.” Michigan v. DeFillippo, 443 U.S. 31, 39, 61 L.Ed.2d 343, 99 S.Ct. 2627 [2633] (1979). The substantive Fourth Amendment principles announced in those cases are fully consistent with our holding here.

468 U.S. at 912 n. 8, 104 S.Ct. at 3414-15 n. 8. We note also that the surveillance in this case was not “expressly sanctioned” by existing judicial decisions interpreting the Pennsylvania Constitution, because it occurred before the Harvey case first decided that question favorably to the Commonwealth’s position.

The good faith exception on the federal level, moreover, apparently does not affect the “fruit of the poisonous tree” doctrine, i.e., the police cannot use unconstitutionally seized evidence to support a search warrant and then claim good faith reliance on the validity of that warrant. See United States v. Karo, 468 U.S. 705, 104 S.Ct. 8296, 82 L.Ed.2d 530 (1984) (fruits of illegal warrantless electronic surveillance had to be excised from search warrant in assessing probable cause) (decided two days before Leon).

Accordingly, regardless of whether a “good faith” exception to the exclusionary rule exists for unreasonable searches and seizures under the Pennsylvania Constitution, we find no grounds for applying it to the fruits of the body wire surveillance that occurred in this case.

We therefore reverse the judgment of sentence and remand for a new trial with all fruits of the illegal electronic surveillance suppressed.

OLSZEWSKI and KELLY, JJ., file concurring and dissenting opinions. BECK, J., files a concurring and dissenting statement. ROWLEY, J., files a dissenting statement.

2 "It is certain every man has a right to keep his own sentiments if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends.” Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379 (1769).