In Commonwealth v. Cruttenden, No. 58 MAP 2011, 2012 Pa. LEXIS 2906 (December 17, 2012), the Pennsylvania Supreme Court held that a law enforcement officer, in possession of a suspect’s cellphone, did not perform an “interception” under Pennsylvania’s Wiretap Act when the officer, pretending to be the suspect, exchanged text messages with a co-defendant. The holding certainly has consequences regarding Pennsylvania’s Wiretap Act and the interpretation of that act by Pennsylvania courts, which generally view wiretap issues and privacy issues differently than the U.S. Supreme Court.
The more interesting question is whether it signals a step back from the court’s tendency to rule more liberally in criminal procedure and privacy matters than has the U.S. Supreme Court in recent years.
Texting and the Wiretap Act
In Cruttenden, Pennsylvania state troopers stopped a vehicle bearing Arizona license plates for speeding along Interstate 80. A consensual search of the vehicle revealed 35 pounds of marijuana, other drugs and paraphernalia, a .45 caliber handgun and a cellphone. Michael Amodeo, one of the vehicle’s occupants, told a trooper that he had been texting appellee Stephen Lanier regarding exchanging the marijuana for $19,000. The trooper secured Amodeo’s permission to use the cellphone and, posing as Amodeo, began texting Lanier. Suspicious, Lanier asked several questions to which only Amodeo knew the answers. The trooper relayed the correct answers he obtained from Amodeo, after which Lanier designated the meeting location. Amodeo described Lanier to the troopers and suggested that Lanier’s vehicle might bear New York license plates.
Troopers arrived at the meeting place and saw a car with New York plates; inside was a person fitting Lanier’s description, along with appellee Jeffrey Cruttenden. The troopers approached the vehicle and confirmed Lanier’s identity; when he refused to remove his hands from his pockets, they arrested him and recovered $20,000 cash from his coat pocket. They then obtained a search warrant for the vehicle and discovered, among other things, a cellphone bearing the phone number that had been used to text Amodeo.
The appellees were charged with criminal conspiracy and related offenses. Each moved to suppress the text messages, alleging that their warrantless “interception” was illegal and not subject to an exception under the Wiretap Act, 18 Pa.C.S. §5701, et seq. The trial court granted the suppression motions and the state appealed to the Superior Court, which affirmed. Both courts did so because they held that, while Section 5704(4) allowed for interceptions of electronic communications (such as texting) “where all parties to the communication have given prior consent to such interception,” Lanier had not given consent because he was misled into thinking he was texting Amodeo when he was, in fact, texting a state trooper.
The courts relied upon Commonwealth v. Proetto, 771 A.2d 823 (Pa.Super. 2001), affirmed on the basis of the Superior Court opinion, 837 A.2d 1163 (Pa. 2003), which held that, where a police officer posed online as an underage female and chatted with a suspected sexual offender in an Internet chatroom, the officer was a direct party to the communication, and thus there had been no “interception” of a communication under the Wiretap Act. The Supreme Court, however, disagreed with the lower courts’ interpretation of Proetto. In light of that important disagreement, a more detailed discussion of Proetto is in order.
The investigation in Proetto occurred because a potential victim, an underage female using the screen name “Ellynn,” had been contacted by defendant Robert Proetto, using the screen name “CR907,” in an Internet chatroom. Even knowing her age, he told her of his desire to perform sexual acts with her and emailed her a photo of his erect penis. The female logged the chats, printed those logs and a copy of the photo and gave them to the police. A few days thereafter, the female noticed CR907 again in the chatroom and contacted police. A detective, using the screen name “Kelly15F,” entered the chat room and chatted with the defendant, who suggested that the detective make a nude video of “herself” and send it to him, and he would, in turn, send nude photographs of himself to “her.” The detective logged the chat.
The defendant was arrested and moved to suppress the communications between himself and both Ellynn and Kelly15F. The trial court denied the motion, the defendant was convicted and appealed and the Superior Court affirmed.
The Proetto court first determined that the Wiretap Act did not apply to communications with Ellynn because the police had not intercepted those communications, as they had been received and saved by the underage female, not the police, and the police’s acquisition of the content of the communications had not been contemporaneous with transmission of them. The court noted that Section 5703 of the Wiretap Act defines “intercept” as “acquisition of the contents of any … electronic … communication through the use of any electronic, mechanical or other device.” The court further noted that “no violation of the act had occurred by the female’s saving, printing and forwarding the communications, because the communications had been made under the mutual consent exceptions,” i.e., Section 5704(4). The court reasoned that “by the very act of sending a communication over the Internet, the party expressly consents to the recording of the message.” The court explained:
“Sending an email or chatroom communication is analogous to leaving a message on an answering machine. The sender knows that by the nature of sending the communication, a record of the communication, including the substance of the communication, is made and can be downloaded, printed, saved or, in some cases, if not deleted by the receiver, will remain on the receiver’s system. Accordingly, [in] the act of [sending] an email or communication via the Internet, the sender expressly consents by conduct to the recording of the message.”
The court then focused on the chats between Proetto and Kelly15F (the detective) and shifted its emphasis from whether the interception was consensual to whether it was an interception at all. As the Cruttenden court emphasized, the Proetto court found that no interception had, indeed, taken place. The Cruttenden court noted first that the Proetto court found that “where a party receives information from a communication as a result of being a direct party to the communication, there is no interception.” The Proetto court cited Commonwealth v. Smith, 140 A.2d 347 (Pa.Super. 1958), where, “after initiating a raid” at a bookmaking establishment, “officers answered incoming telephone calls.” Testimony regarding these acts was admitted, despite the defendants’ contentions that the Wiretap Act was applicable. The Smith court held that the act did not apply because the police did not intercept within the meaning of the act, because “the conversations between the callers and the police officers were direct and the callers elected to talk to the officers who answered the phone.”
The Proetto court also cited to Commonwealth v. DiSilvio, 335 A.2d 785 (Pa. Super. 1975), a case with facts “similar to [those] in Smith.” In DiSilvio, the court had held that no interception under the act took place because the callers “‘freely elected to talk to the officers, whether or not they were informed of the identity and occupation of the recipients of the calls. By receiving the communication directly over the means of transmission employed, the officers were in fact themselves parties to the call.’”
The detective in Proetto, the Cruttenden court observed, was “a direct party to the communications from” Proetto. “There was no eavesdropping or wiretapping.” The detective “obtained the information because he was a party to the communication”; the fact that he “did not identify himself as a police officer” was of “no effect.” The Wiretap Act, the court reasoned, was “not intended to prevent a telephone user from misrepresenting his or her identity.” The defendant in Proetto “freely elected to talk to” the detective “regardless of whether he was informed of Kelly15F’s true identity. Therefore, the communications received” by the officer should not have been “suppressed on the grounds that the means of obtaining this information was in violation” of the Wiretap Act.
Turning back to the instant matter, the Cruttenden court reasoned that, following Proetto, there was no interception because the trooper, posing as Amodeo, “was a direct party to the communication and the misrepresentation of his identity was an irrelevant factor for purposes of the Wiretap Act.”
The Cruttenden court pointed to the Superior and trial courts’ misreadings of Proetto as a reason for, or at least evidence of, their confusion on this point. The Superior Court in Cruttenden had wrongly focused on the fact that, in Proetto, the detective had created his own screen name as the salient factor in determining that “the detective was a direct party to the communication with the defendant,” and so “there was no eavesdropping or wiretapping” under the Wiretap Act.
The “underlying basis of the holding in Proetto,” the Cruttenden court explained, “was that no interception occurred and no eavesdropping or listening in on a conversation took place because the detective was a direct party to the communication.” That the law enforcement officer had misrepresented his identity was of no moment; such is what had taken place in DiSilvio and Smith, the cases cited in and relied upon in Proetto. With Proetto properly explicated, the Cruttenden court could then reverse the Superior and trial courts and remand the matter for trial, with all of the evidence now admissible.
Cruttenden’s importance to wiretap matters is obvious. What is by no means obvious is whether the opinion signals a change in direction by the court, away from its penchant, over the last 30-plus years, to rule more liberally in matters of criminal procedure and find more rights of privacy than the U.S. Supreme Court has.
In broad strokes, when the Burger court either cut back, or refused to extend, the rights of privacy and of criminal defendants found by the Warren court, the Pennsylvania Supreme Court found those rights in the Pennsylvania Constitution. To pick but one example, while in United States v. Miller, 425 U.S. 435 (1976), the Supreme Court found that a bank customer had no reasonable expectation of privacy under the Fourth Amendment in his bank records, because those records were held by a third party (the bank) and not the customer, in Commonwealth v. DeJohn, 486 Pa. 32 (1979), the Pennsylvania Supreme Court found that Article I, Section 8 of the Pennsylvania Constitution (Pennsylvania’s “Fourth Amendment”) created a “zone of privacy” for the customer into which such records fell.
To pick another, while in Rakas v. Illinois, 438 U.S. 128 (1978), the Supreme Court held that it was the defendant’s burden to prove he had a reasonable expectation of privacy in a place searched in order to challenge the search of that place under the Fourth Amendment, in Commonwealth v. Sell, 504 Pa. 46 (1983), the Pennsylvania Supreme Court held that Article I, Section 8 provided a defendant with “automatic standing” to challenge a search, thus allowing a defendant, for example, to claim his right of privacy was violated when the police searched his home, and then at trial deny that the place searched was, in fact, his home.
The Pennsylvania Supreme Court certainly has taken the same tack with regard to the Wiretap Act and related matters. Smith v. Maryland, 442 U.S. 735 (1979), for example, held that the Fourth Amendment did not protect “pen register” information — that is, the information regarding the transaction of a communication, such as from and to whom it was sent, when it was sent, how long the communication lasted, etc. The federal Wiretap Act did not jump in to create a right of privacy; under it, all a law enforcement officer need to do to get an order allowing for the interception of pen register information is to aver that the interception will be in furtherance of a criminal investigation.
Nevertheless, in Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), the Pennsylvania Supreme Court held that Article I, Section 8 required law enforcement to demonstrate probable cause in order to obtain a pen register order.
Under federal law, the issue in Cruttenden would never have arisen because, regardless of whether what took place was an interception, federal law allows interceptions of electronic communications where only one party gives consent to the interception. Pennsylvania law, however, requires all parties to consent, save for limited exceptions that would not have applied. Thus, had the court agreed with the Superior and trial courts that an interception had taken place because the texting was done while the trooper had misrepresented his identity, the texts would have been inadmissible as having been intercepted without proper authority, as would have been the evidence later seized, the latter being the infamous “fruit of the poisonous tree.”
The Supreme Court’s holding in Cruttenden, then, is by no means revolutionary, but it may be telling. In numerous cases, the Pennsylvania Supreme Court has gone to great lengths to justify, intellectually and morally, the recognition of privacy (and other) rights not recognized under the U.S. Constitution, at the expense of both freeing dangerous criminals in the particular cases (DeJohn, for example, was a murder conviction) and restricting law enforcement from investigating crimes generally. Cruttenden may signal that the Supreme Court is no longer interested in drawing subtle, and often dubious, distinctions in order to discover in Pennsylvania’s constitution rights not to be found in the U.S. Constitution. •
Leonard Deutchman is general counsel and administrative partner of LDiscovery, a firm with offices in New York City, Fort Washington, Pa., McLean, Va., Chicago, San Francisco and London that specializes in electronic digital discovery and digital forensics.