It is not a violation of the Wiretap Act for a police officer to pose as an accomplice and communicate with a suspect via text messages, the state Supreme Court ruled.
The court’s ruling makes applicable for existing cases what recent amendments to the Pennsylvania Wiretapping and Electronic Surveillance Control Act will do for prospective cases when the amendments go into effect later this month.
In writing for the majority in Commonwealth v. Cruttenden and Commonwealth v. Lanier, Justice Seamus P. McCaffery said the officer posing as an accomplice was not eavesdropping on a conversation and, therefore, did not violate the Pennsylvania Wiretapping and Electronic Surveillance Control Act regardless of whether the officer intentionally misrepresented himself.
The Supreme Court rejected the Pennsylvania Superior Court’s interpretation that Commonwealth v. Proetto — which found an officer posing as a fictitious underage teen in a chat room was not a violation of the Wiretap Act — did not apply to the cases of Jeffrey S. Cruttenden and Stephen V. Lanier.
"That a police officer does not identify him or herself, or misrepresents his or her identity, does not change the fact that he or she is a direct party to the conversation, and by virtue of being a direct party to the conversation, is deemed the intended recipient of the conversation under whatever identity the officer has set forth," McCaffery said.
The justice said the applicability of the Wiretap Act does not rest on whether the caller’s presumption of the person on the other line, or in this case, the party sending the texts, is accurate.
A panel of the Superior Court ruled in June 2009 that it was "constrained" to uphold a trial court’s grant of Cruttenden and Lanier’s motion to suppress evidence in the criminal cases against them.
The Superior Court’s ruling in Cruttenden and Lanier led the Pennsylvania District Attorneys Association to push for an amendment to the Wiretap Act that would allow for police to pose as accomplices without a warrant if a dedicated prosecutor determines the proposed communications will involve criminal activity. The amendment, referred to as the Cruttenden Amendment, was signed into law along with a number of other changes to the act in late October.
According to the Supreme Court’s opinion in the consolidated cases of Cruttenden and Lanier, Pennsylvania State Police stopped a speeding pickup truck with Arizona plates on I-80 in Clearfield County, Pa., on March 27, 2007. Daryl Taylor was driving the vehicle and Michael Amodeo was his passenger. Taylor had a suspended Arizona driver’s license.
The officer asked the two what their travel plans were. When he got conflicting stories, the officer asked if they were transporting weapons or drugs and Taylor said he had a weapon. After getting Taylor’s consent to search the vehicle, police found about 35 pounds of marijuana, methamphetamine, drug paraphernalia, a .45 caliber handgun and a cellular "TracFone," according to the opinion.
The two were arrested and upon questioning, Amodeo said he was approached by a man named "Steve" in Arizona who wanted to supply a friend in the Pennsylvania/New York area with marijuana. Amodeo described Steve as a short, white male with blonde hair, a mustache and possible tattoos on his arms, according to court documents.
Amodeo said Steve agreed to buy 35 pounds of marijuana for $19,000. The plan was for Steve to fly cross-country to meet the buyer while Amodeo drove the narcotics to an undisclosed location in Pennsylvania. Amodeo said Steve gave him the phone to keep in contact and arrange a final meeting place via text message, according to the opinion.
The officer got permission to use the TracFone and, without an order of the court, posed as Amodeo and began text-messaging Steve, who ultimately gave directions to a Holiday Inn where he wanted to meet and complete the transaction, according to court papers.
Police put a surveillance team at the hotel parking lot and saw Cruttenden sitting in a parked car with New York license plates and saw Lanier get out of the car and walk around the other side to talk to Cruttenden through the driver’s side window. A uniformed police officer pulled a marked car behind the suspect vehicle, got out and asked Lanier if his name was Steve. Lanier said it was and the officer asked him to take his hands out of his pockets. When Lanier refused, the officer restrained and handcuffed Lanier. The officer uncovered $20,000 in cash during a search of Lanier and both Lanier and Cruttenden were arrested, according to the opinion.
Police obtained a search warrant for the vehicle and discovered two cellphones, a cellular TracFone with the number used by Steve to text Amodeo, a road map, Internet driving directions and a motel receipt. The two were charged with various crimes.
In their motion to suppress, Lanier and Cruttenden argued the warrantless interception of the text messages was illegal and not subject to an exception under the Pennsylvania Wiretapping and Electronic Surveillance Control Act. The Luzerne County trial court agreed and granted the motion to suppress, finding the state cited no authority allowing the police to intercept the text messages without a warrant. On appeal, the Superior Court ruled that text messages are in fact electronic communications under the Wiretap Act.
On appeal to the Supreme Court, the state argued that there could not have been a violation of the Wiretap Act when nothing was intercepted by the officer, but rather he was a party to the conversation. The state relied on Proetto.
In Proetto, the court ruled the Wiretap Act did not apply to communications between a suspect and an officer posing in a chat room as an underage girl because the officer was a direct party to the conversation.
The Superior Court in Cruttenden and Lanier differentiated Proetto because in Proetto, the police officer set up a new account, rather than going under the name of someone the suspect already knew or spoke with. In Cruttenden and Lanier, the Superior Court said, the officer posed as someone known to the suspect — Amodeo — and it was Amodeo who was the intended recipient.
"In essence, the court concluded that although the Wiretap Act does not apply and is not violated in situations where a police officer misrepresents his or her identity as that of a fictional person while a direct party to a conversation, the Wiretap Act does apply and is violated in situations where a police officer misrepresents his or her identity as that of an actual person while a direct party to a conversation," McCaffery said in the Supreme Court’s majority opinion. "The Proetto rationale made no such distinction."
McCaffery said Lanier elected to communicate with the person answering the communication and that communication was direct. The court reversed the lower court’s ruling and remanded for further proceedings. Chief Justice Ronald D. Castille and Justices Thomas G. Saylor and J. Michael Eakin joined McCaffery in the majority.
Justice Max Baer wrote a concurring opinion in which Justice Debra M. Todd joined.
Baer said he agreed with the majority that there was no interception pursuant to the Wiretap Act, but he said he agreed with the Superior Court that Proetto was factually distinguishable from the cases before them. In Proetto, there was no third-party intended recipient as the officer was acting as the underage girl. In Cruttenden and Lanier, the intended recipient was Amodeo, Baer said. But because Lanier freely elected to continue the conversation with the person responding to the text messages, there was no illegal interception, Baer said, ultimately concurring with the majority.
Luzerne County Chief Public Defender Al Flora Jr. represented Lanier. Joseph F. Sklarosky of Forty Fort, Pa., represented Cruttenden. The Luzerne County District Attorney’s Office, with assistance from Hugh J. Burns Jr., the chief of appeals for the Philadelphia District Attorney’s Office, represented the state. The Pennsylvania District Attorneys Association filed an amicus brief on behalf of the state.
Luzerne County Assistant District Attorney Jim McMonagle, who worked on the case for the state, said the Supreme Court affirmed his office’s belief that these cases were no different than Proetto and the cases that came before it.