Wednesday, August 6, 2008

Law and Argument: Pennsylvania Electronic Eavesdropping Law

III. Law and Argument: Pennsylvania Electronic Eavesdropping Law

Title 18 PaC § 5704 regarding Exceptions to Prohibition of interception and Disclosure of Communications states:

It shall not be unlawful and no prior court approval shall be required 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, electronic or oral communication involving suspected criminal activities. where:

(ii) one of the parties to the communication has given prior consent to such interception. However, no Interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General or the district attorney, or an assistant district attorney designated In writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the Interception...

in Pennsylvania, one of the government attorneys enumerated above engages in an analysis of the facts surrounding the intercept and the circumstances surrounding the informant’s consent before electronic eavesdropping occurs. The eavesdropping can only occur if the government attorney gives prior approval for the interception. Further, our courts have imposed an affirmative duty for an authorized government attorney to meet with and/or speak to the consenting party personally throughout the period of surveillance and before obtaining consent for each new period of surveillance. See Commonwealth v. Clark, 374 Pa.Super. 308, 313, 542 A 1036, 1039 (1988). The Commonwealth’s attorneys cannot rely on information supplied by others to ascertain the informant’s consent. See Id. at 1040.

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In the instant case, the electronic intercepts were conducted by a team of law enforcement officials that did not contain a government attorney. No government attorney reviewed the facts surrounding the intercept or the circumstances surrounding the purported consent of the informant, Grant Roy, prior to the eavesdrop. No government attorney met with Grant Roy at all before or during the electronic eavesdrop to discuss the facts and determine if his consent was voluntary.

Here, the Court must determine whether California or Pennsylvania law controls the electronic intercept. It is the defendants’ contention that Pennsylvania law controls this situation, Pennsylvania electronic eavesdrop procedure was not followed and therefore the tapes and or transcripts of the electronic eavesdrops should be suppressed. However, if this Court ultimately concludes that California law controls, the defendants assert that the informant Grant Roy was acting at the direction of the appropriate law enforcement officials, but his consent was not voluntary and the communication was intended to be confidential and therefore the tapes and/or transcripts of the electronic eavesdrops should be suppressed.