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January 7, 2013

Pennsylvania Supreme Court Holds That No Interception Occurred Where Police Read and Replied to Defendant's Text Messages

899402_you_have_mail.jpgWhen it comes to wiretapping, Pennsylvania is a two-party consent state--meaning both parties to a conversation must consent before a wire, electronic or oral communication is intercepted for the interception to be lawful. Although there are exceptions available, sometimes the "two-party" requirement in the Pennsylvania Wiretapping and Electronic Surveillance Act ("Wiretap Act") presents difficult issues for law enforcement. But in order for the Wiretap Act to even apply, there must be an interception of a communication. In Commonwealth v. Cruttenden, decided on December 17, the Pennsylvania Supreme Court narrowed the circumstances in which an interception occurs.

Cruttenden started out as an ordinary car stop along interstate 80 in Clearfield County. After the Pennsylvania State Troopers obtained consent to search the car, they found 35 pounds of marijuana, methamphetamines, drug paraphernalia, a .45 caliber handgun, and a cell phone. One of the car's occupants told the troopers that he had been using the cell phone to text one of the two defendants concerning an exchange of the marijuana for $19,000. The trooper, posing as the supplier, used the phone to text that defendant, and a meeting was set up. The two defendants arrived at the meeting place to conduct the transaction and were arrested. Both defendants were charged with attempt and conspiracy, and both filed motions to suppress the texts, claiming that the texts had been unlawfully intercepted under the Wiretap Act.

The trial granted the suppression motion. On appeal to the Superior Court, the Commonwealth argued that under a Superior Court case called Commonwealth v. Proetto, no interception had taken place and therefore the Wiretap Act did not apply. The Superior Court disagreed and affirmed the suppression order.
In Proetto, an officer, posing as an underage female, communicated with a suspected sexual offender in an Internet chat room using the screen name "Kelly15F." The Superior Court held that because the officer was a direct party to the conversation in the chat room, there was no interception and the Wiretap Act did not apply. But in Cruttenden, the Superior Court distinguished Proetto, on the basis that in the chat room the officer, rather than posing as an actual person, created an entirely separate computer profile, misrepresenting himself as a fictional person, "Kelly15F," while in Cruttenden the officer misrepresented himself as the intended recipient of the communication, namely the defendant's drug supplier. In effect, the Superior Court seemed to be saying, "if you pose as the intended recipient, as opposed to creating a totally separate identity, you have intercepted the communication and the Wiretap Act is violated."

The Supreme Court disagreed and reversed the Superior Court, calling the respective factual circumstances in the two cases "distinctions without a difference." It does not matter, the Supreme Court held, who the intended recipient of the communication is--"the fact which takes the case out of the purview of the Act is that [the defendant] elected to communicate with the person answering the call and that the communication was direct. Therefore, there was no eavesdropping or listening in, and no interception took place."

The effect of the Cruttenden decision is significant, particularly given the ease with which people today text each other. Any time a person texts, he or she is taking a risk that the person on the other end is a police officer. In Cruttenden, the defendant involved in the texts was suspicious and texted questions that only his drug supplier would know. When he got the right answers, he thought he was in the clear and proceeded to set up the rendezvous spot. What he didn't know was that his supplier was feeding the trooper the answers. After Cruttenden, the Pennsylvania Wiretap Act will not save the casual texter.