IV. Law and Argument: Pennsylvania Law Controls
The law regarding electronic eavesdropping in California is substantially different than the law in Pennsylvania. Therefore, the Court must decide which law applies to the analysis of the tapes and/or transcripts in the instant case. Contrary to the Commonwealth’s position, Pennsylvania law controls.
The defendants agree that the Commonwealth has articulated the appropriate standard in its brief regarding analysis of conflict of laws. This matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrison, 2000 Pa 111, 750 A.2d 895 (2000) (holding that an conflict question between New York and Pennsylvania wiretap statutes involved substantive law.)
“In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. United Airlines, 416 Pa.1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal Issues arising from a particular factual context, thereby allowing the forum to apply the policy of the JurIsdiction most intimately concerned with the outcome. ld. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez, et a!, 552 Pa. 570, 576, 716 A.2d 1221, 1224 (1998) (Emphasis supplied).
Therefore, this Court must determine which state, California or Pennsylvania, has the most interest in the outcome and apply that state’s law. This analysis compels the result that Pennsylvania law should apply.
The Commonwealth cites to Larrison, supra, Sanchez, supra, and United States v. Geller, 560 F.Supp. 1309 (E.D. Pa. 1963) as support for their position that California law controls. The Commonwealth is wrong. The facts in the cases they cite are distinguishable from the facts in this case in determining which state has the most interest in the outcome.
In Larrison, a New York resident tape recorded a phone conversation with a Pennsylvania resident which was later admitted into evidence in a custody trial against the Pennsylvania resident. Larrison, 750 A.2d at 897. In New York, a resident who receives a telephone call may tape record the conversation without violating New York’s wiretap law. ld. at 898. Such recording would be a violation of Pennsylvania’s wiretap law, ld.
The Larrison recording was made by a private individual in her own residence in New York using her own recording device, not at the behest of or supervised by another state’s law enforcement officers using a concealed electronic eavesdropping device. The purpose of the Larrison recording was not to seek evidence related to an anticipated homicide prosecution, as is the instant case. Pennsylvania was not involved in the recording. Pennsylvania only came upon the recording after it had already occurred.
These are core differences between the Larrison case and the instant case. In arriving at the conclusion that New York law applied in Larrison, the court stated that in that circumstance, Pennsylvania, “ha[s] no power to control the activities that occur within a sister state.” Larrison at 888. In the instant case, Pennsylvania law enforcement officials from both the Luzerne County District Attorney’s Office and the Pennsylvania State Police were intimately involved in both electronic intercepts occurring in California. As representatives of Pennsylvania, they concocted the plan to intercept, initiated the intercepts, assembled the team to conduct the intercepts, solicited the informant, determined the method and location in which the intercepts would occur, supervised the intercepts, anticipating that prosecution would occur in Pennsylvania and eventually, they used the intercepts to support the charges filed against the defendant in Pennsylvania. It is only because the informant lives in California that the intercepts occurred in that state.
Because Pennsylvania initiated and orchestrated the electronic eavesdropping and because the result of the eavesdropping was a Pennsylvania prosecution, Pennsylvania has the greatest interest in the outcome.
The Sanchez case makes this distinction even more clear. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. ld. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania ld. at 1224.
In reaching this conclusion, the Sanchez court reasoned:
No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved In the canine sniff.
* * *
Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state.
ld. at 1224, 1225. (Emphasis supplied)
An analysis of the cases in this context compels the result that Pennsylvania law should be applied to the instant case. The involvement of Pennsylvania authorities from the planning stage of the intercept until its completion demonstrates Pennsylvania’s interest. As such, it was incumbent on Pennsylvania authorities to have a government attorney engage in an analysis of the facts surrounding the intercept and the circumstances surrounding the informant’s consent before the intercepts occurred and give prior approval for the interception. Further, the authorized government attorney should have met with and/or spoke to the consenting party personally throughout the period of surveillance and before obtaining consent for each new period of surveillance. See Clark, 542 A.2d at 1039.
Because the appropriate Pennsylvania procedure was not followed, the tapes and/or transcripts of the electronic intercepts from both April 27 and 28, 2007 should be suppressed by this Court.
In anticipation of filing homicide charges because of the death of a Luzerne County resident, it is unbelievable that the Luzerne County District Attorney’s Office would assign one of its detectives to initiate and supervise this intercept without first familiarizing itself with Pennsylvania electronic intercept procedure and, in an abundance of caution, sending an assistant district attorney to follow Pennsylvania procedure in case admissibility issues are raised. The Commonwealth now asks this Court to remedy its failure when a human being’s very life is at stake.
5 The defendant is aware that this issue is arguable. In his dissenting opinion in Commonwealth v. Sanchez, 552 Pa. 570, 716 A 1221 (1998), Justice Nigro argued that the canine sniff at issue in that case raised issues of procedural and not substantive law. Justice Nigro quoted Commonwealth v. Dennis, 421 Pa.Super 600, 616, 618 A 972, 980 (1992) on the issue: “It is a fundamental principal (sic) of the conflicts of laws that a court employs its own procedural rules. That is true in both civil in criminal cases, but especially in criminal cases as a sort of corollary to the local nature of substantive criminal law. . . The law of evidence, including the admissibility of specifically offered evidence, has traditionally been characterized as procedural law.” If this Court believes that, in the instant case, the electronic eavesdropping is a matter of procedural law, no further analysis is necessary as the seizure clearly did not comport with Pennsylvania law on the issue. “In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state.” Sanchez at 1223 The Pennsylvania procedure regarding electronic eavesdropping was clearly not followed here. Suppression would therefore be required.
6. ln its brief, the Commonwealth misstates the holding of Sanchez. Offering no analysis, the Commonwealth drops a comparative cite to Sanchez and summarizes its holding, conveniently omitting the operative language boldfaced above The limiting language in the Sanchez holding makes it clear that another state’s search and seizure laws apply in Pennsylvania only when no Pennsylvania officer is involved in the search or seizure. Such is not the case here, as Detective Yursha and Corporal Hannon initiated and were intimately involved in the electronic eavesdrop at issue.
The Commonwealth’s third cited case, United States v. Geller, 560 F.Supp. 1309 (E.D.Pa. 1983) (which the Commonwealth actually uses to quote Commonwealth v. Bennett, 245 Pa Super 457, 369 A 2d 493 (1976)) similarly offers no assistance to them as the wiretap in that case was conducted in New Jersey by New Jersey authorities. The Commonwealth cites two other cases which simply apply Bennett.
The law regarding electronic eavesdropping in California is substantially different than the law in Pennsylvania. Therefore, the Court must decide which law applies to the analysis of the tapes and/or transcripts in the instant case. Contrary to the Commonwealth’s position, Pennsylvania law controls.
The defendants agree that the Commonwealth has articulated the appropriate standard in its brief regarding analysis of conflict of laws. This matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrison, 2000 Pa 111, 750 A.2d 895 (2000) (holding that an conflict question between New York and Pennsylvania wiretap statutes involved substantive law.)
“In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. United Airlines, 416 Pa.1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal Issues arising from a particular factual context, thereby allowing the forum to apply the policy of the JurIsdiction most intimately concerned with the outcome. ld. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez, et a!, 552 Pa. 570, 576, 716 A.2d 1221, 1224 (1998) (Emphasis supplied).
Therefore, this Court must determine which state, California or Pennsylvania, has the most interest in the outcome and apply that state’s law. This analysis compels the result that Pennsylvania law should apply.
The Commonwealth cites to Larrison, supra, Sanchez, supra, and United States v. Geller, 560 F.Supp. 1309 (E.D. Pa. 1963) as support for their position that California law controls. The Commonwealth is wrong. The facts in the cases they cite are distinguishable from the facts in this case in determining which state has the most interest in the outcome.
In Larrison, a New York resident tape recorded a phone conversation with a Pennsylvania resident which was later admitted into evidence in a custody trial against the Pennsylvania resident. Larrison, 750 A.2d at 897. In New York, a resident who receives a telephone call may tape record the conversation without violating New York’s wiretap law. ld. at 898. Such recording would be a violation of Pennsylvania’s wiretap law, ld.
The Larrison recording was made by a private individual in her own residence in New York using her own recording device, not at the behest of or supervised by another state’s law enforcement officers using a concealed electronic eavesdropping device. The purpose of the Larrison recording was not to seek evidence related to an anticipated homicide prosecution, as is the instant case. Pennsylvania was not involved in the recording. Pennsylvania only came upon the recording after it had already occurred.
These are core differences between the Larrison case and the instant case. In arriving at the conclusion that New York law applied in Larrison, the court stated that in that circumstance, Pennsylvania, “ha[s] no power to control the activities that occur within a sister state.” Larrison at 888. In the instant case, Pennsylvania law enforcement officials from both the Luzerne County District Attorney’s Office and the Pennsylvania State Police were intimately involved in both electronic intercepts occurring in California. As representatives of Pennsylvania, they concocted the plan to intercept, initiated the intercepts, assembled the team to conduct the intercepts, solicited the informant, determined the method and location in which the intercepts would occur, supervised the intercepts, anticipating that prosecution would occur in Pennsylvania and eventually, they used the intercepts to support the charges filed against the defendant in Pennsylvania. It is only because the informant lives in California that the intercepts occurred in that state.
Because Pennsylvania initiated and orchestrated the electronic eavesdropping and because the result of the eavesdropping was a Pennsylvania prosecution, Pennsylvania has the greatest interest in the outcome.
The Sanchez case makes this distinction even more clear. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. ld. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania ld. at 1224.
In reaching this conclusion, the Sanchez court reasoned:
No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved In the canine sniff.
* * *
Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state.
ld. at 1224, 1225. (Emphasis supplied)
An analysis of the cases in this context compels the result that Pennsylvania law should be applied to the instant case. The involvement of Pennsylvania authorities from the planning stage of the intercept until its completion demonstrates Pennsylvania’s interest. As such, it was incumbent on Pennsylvania authorities to have a government attorney engage in an analysis of the facts surrounding the intercept and the circumstances surrounding the informant’s consent before the intercepts occurred and give prior approval for the interception. Further, the authorized government attorney should have met with and/or spoke to the consenting party personally throughout the period of surveillance and before obtaining consent for each new period of surveillance. See Clark, 542 A.2d at 1039.
Because the appropriate Pennsylvania procedure was not followed, the tapes and/or transcripts of the electronic intercepts from both April 27 and 28, 2007 should be suppressed by this Court.
In anticipation of filing homicide charges because of the death of a Luzerne County resident, it is unbelievable that the Luzerne County District Attorney’s Office would assign one of its detectives to initiate and supervise this intercept without first familiarizing itself with Pennsylvania electronic intercept procedure and, in an abundance of caution, sending an assistant district attorney to follow Pennsylvania procedure in case admissibility issues are raised. The Commonwealth now asks this Court to remedy its failure when a human being’s very life is at stake.
5 The defendant is aware that this issue is arguable. In his dissenting opinion in Commonwealth v. Sanchez, 552 Pa. 570, 716 A 1221 (1998), Justice Nigro argued that the canine sniff at issue in that case raised issues of procedural and not substantive law. Justice Nigro quoted Commonwealth v. Dennis, 421 Pa.Super 600, 616, 618 A 972, 980 (1992) on the issue: “It is a fundamental principal (sic) of the conflicts of laws that a court employs its own procedural rules. That is true in both civil in criminal cases, but especially in criminal cases as a sort of corollary to the local nature of substantive criminal law. . . The law of evidence, including the admissibility of specifically offered evidence, has traditionally been characterized as procedural law.” If this Court believes that, in the instant case, the electronic eavesdropping is a matter of procedural law, no further analysis is necessary as the seizure clearly did not comport with Pennsylvania law on the issue. “In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state.” Sanchez at 1223 The Pennsylvania procedure regarding electronic eavesdropping was clearly not followed here. Suppression would therefore be required.
6. ln its brief, the Commonwealth misstates the holding of Sanchez. Offering no analysis, the Commonwealth drops a comparative cite to Sanchez and summarizes its holding, conveniently omitting the operative language boldfaced above The limiting language in the Sanchez holding makes it clear that another state’s search and seizure laws apply in Pennsylvania only when no Pennsylvania officer is involved in the search or seizure. Such is not the case here, as Detective Yursha and Corporal Hannon initiated and were intimately involved in the electronic eavesdrop at issue.
The Commonwealth’s third cited case, United States v. Geller, 560 F.Supp. 1309 (E.D.Pa. 1983) (which the Commonwealth actually uses to quote Commonwealth v. Bennett, 245 Pa Super 457, 369 A 2d 493 (1976)) similarly offers no assistance to them as the wiretap in that case was conducted in New Jersey by New Jersey authorities. The Commonwealth cites two other cases which simply apply Bennett.
