The state Supreme Court has agreed to hear arguments over whether a state trooper violated the state Wiretapping and Electronic Surveillance Control Act when he listened in while an informant set up a drug deal with the defendant on speakerphone.

In Commonwealth v. Spence, a three-judge Superior Court panel unanimously affirmed a Delaware County trial judge’s ruling suppressing evidence obtained when the trooper eavesdropped on the informant’s phone call to the defendant.

In an unsigned memorandum opinion issued February 11, 2011, the Superior Court panel — Judges John T. Bender, Judith Ference Olson and Paula Francisco Ott — ruled that, by listening in on the phone conversation without the defendant knowing, the unnamed trooper violated the Wiretap Act.

The justices granted allocatur in Spence onMonday.

In Spence, according to the Superior Court’s opinion, a trooper with the Pennsylvania State Police, Philadelphia Vice Narcotics Unit, enlisted a high school student — referred to throughout the opinion as "C.I." — recently arrested for illegal possession of prescription drugs to serve as an informant in an attempt to apprehend the person who sold him the narcotics.

C.I. told the trooper that the dealer was defendant Wesley Alfonso Spence and gave him Spence’s cellphone number, according to the opinion.

The trooper then devised a plan in which he instructed C.I. to call Spence and order Percocet, OxyContin and Xanax, the opinion said.

The trooper dialed Spence’s number on C.I.’s phone and then handed the phone to C.I., instructing him to place it on speakerphone, according to the opinion.

The trooper did not speak during C.I.’s conversation with Spence and Spence was never informed that a third party was listening in, the opinion said.

C.I. and Spence arranged to meet at a Wawa parking lot. When Spence arrived, troopers were waiting for him and he was arrested and found to be in possession of nine pills of suspected Percocet, 20 pills of suspected OxyContin and 25 pills of suspected Xanax, according to the opinion.

Spence was charged with three counts each of possession of a controlled substance and possession of a controlled substance with the intent to manufacture or deliver, along with one count of possession of drug paraphernalia, the opinion said.

Spence went to trial January 7, 2009, but, on the first day, the prosecution unexpectedly determined it would be forced to call C.I. as a witness and Spence requested a mistrial so that he could have time to prepare for C.I.’s testimony, according to the opinion.

The mistrial was granted and a new trial was scheduled, the opinion said.

But before the new trial could begin, Spence filed a motion to suppress the state’s evidence, arguing that the trooper violated the Wiretap Act by intercepting a wire communication without first obtaining a warrant or the approval of the state attorney general or a district attorney. Delaware County Court of Common Pleas Judge Gregory M. Mallon agreed, according to the opinion.

On October 14, 2009, the opinion said, Mallon entered an order granting Spence’s motion to suppress with regard to "’all statements made by [Spence] and [all] derivative evidence obtained from the unlawful interceptions.’"

On appeal to the Superior Court, the state argued that the trooper could not have intercepted a wire transfer by merely listening to a conversation being conducted via C.I.’s phone, the opinion said.

The Wiretap Act bars the interception of "any wire, electronic or oral communication through the use of any electronic, mechanical or other device."

The act, however, provides an exception for communications intercepted by "any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business, or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties."
According to the court, the state implicitly argued that C.I.’s cellphone was exempted under the Wiretap Act because C.I. was the subscriber or user.

But the Superior Court disagreed, reasoning in its opinion that "the trooper’s initiation of the call and his control over the content of the conversation require us to conclude that, at the same time C.I. was using his telephone, the trooper was also using C.I.’s telephone."

"Therefore, and contrary to the commonwealth’s argument, the mere fact that C.I. used his own cellular telephone does not prohibit the telephone from being a ‘device’ with respect to the trooper," the court said.

In addition, the court said the trooper did more than merely stand by and listen to C.I.’s conversation with Spence.

Instead, the trooper "thoroughly controlled C.I.’s conversation," by dialing the phone himself and directing C.I. as to what to say, according to the court.

"The trooper was, however, not a furnished ‘subscriber or user’ of C.I.’s telephone," the court said. "Hence, as to the trooper, C.I.’s telephone did not fall under the above statutory exception."

The court further noted that the state declined to argue in the alternative that the trooper’s use of C.I.’s phone was exempted under the Wiretap Act as use by "’an investigative or law enforcement officer in the ordinary course of his duties.’"

In fact, the court said, the state went so far as to characterize this exemption as "’inapplicable’" to Spence.

Counsel for Spence, Lansdowne, Pa.-based Robert F. Datner, said a ruling by the Supreme Court in the case would "certainly set the standard for how electronic media interplays with police activity."

John Francis X. Reilly of the Delaware County District Attorney’s Office could not be reached for comment at press time.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.