Your IPAD and Text Communications…No Expectation of Privacy…Sanctioned Police Conduct

This blog addresses a significant development in Pennsylvania Court’s judicial approval of a new police investigation method involving iPads and text communications. The recent case of Commonwealth v Diego, reviewed and sanctioned police departments ease dropping on a Pennsylvania citizen’s electronic communications conducted over Skype, a Wi-Fi signal, or on an iPad without a warrant.

I have written extensively on this topic as it pertains to Pennsylvania Wire Tap Act, 18 Pa. C.S.A. § 5702. My articles  are located on my website publications page, http://www.phila-criminal-lawyer.com/Publications/New-Wire-Tap-Act.shtml , and HB 2400 Balances Privacy Interests and Law Enforcement Needs, http://www.phila-criminal-lawyer.com/Publications/Cell-Phones.shtml.   I have written about the federal counterpart, the Stored Communications Act. That article is found at High Court’s GPS Ruling May Have Minimal Impact

 

 

 

​In ​Diego, the issue is was is an “interception” of an electronic communication – a text message.  Diego unknowingly planned criminal activity with a police confidential informant (“CI”) through text messages.  The CI received Diego’s texts regarding a drug transaction on his personal iPad while in the basement of the local police department with several detectives in the room. The CI engaged in the texting with Diego, who was organizing and scheduling a drug transaction.  Importantly, the CI then either relayed the information in the texts to the officers or they watched the texts in real time.  The drug transaction was then executed and Diego was arrested.  The police did not secure judicial or district attorney approval under the Wire Tap Act to engage any the conduct described.  They simply placed the CI in their office and had him text Diego.

After his arrest and securing discovery, Diego filed a motion to suppress, seeking to preclude introduction into evidence his phone number and thus identity and his text messages. Diego argued that the police department “intercepted” his iPad communications to a third person without a warrant. Diego maintained that the police department’s warrant-less observations of his text messages – a wired, electronic, or oral communication – to the CI were in violation of Pennsylvania’s Wire Tap Act. The Commonwealth claimed texts were not an electronic communication, an IPAD is not covered by the Wire Tap Act, and, alternatively, even if so, Diego did not have a reasonable expectation of privacy in the text messages he sent to the CI. The trial court disagreed and found the police needed a warrant to engage in the conduct and suppressed the evidence.  The Commonwealth appealed.

Superior Court disagreed with the Commonwealth on the first two issues, finding that an iPad is an electronic, mechanical or other device, rendering the Wire Tap Act applicable to the Commonwealth’s use and/or activities of securing information from an electronic device. The Court also found that text messages are electronic communications covered under the Act.

​However, the Diego Court agreed that Diego lacked a reasonable expectation of privacy in the contents of the text message conversation that he conducted with the unknown CI.  “Diego knew or should have known that the conversation was being recorded.” The very act of engaging in a text message communication risks each recipient sharing the contents of that conversation with a third party. For example, leaving a telephone message on an answering machine, sending an email to a chat room communication, or engaging in a group text message necessarily involves less expectation of privacy in that communication because the sender does not know who will be present when the message is retrieved.

​The Court further held that text messages are not private, whether received on an a smartphone or iPad, because the text messaging process does not include an automatic deleting protocol after receipt and review.  The court ruled the sender has a lower expectation of privacy in the text messages because a text message can remain in a recipient’s smart phone indefinitely, regardless of whether the recipient may or may not delete it,  The fact that the messages can or may be deleted is not the operative issue. Rather, it is the fact that they may not be deleted and can remain on the recipient’s electronic device.

The court analogized this factual scenario to a previous ruling in Commonwealth v. DeMarco, 578 A.2d 942 (Pa. Super. 1990).  That case states any reasonable and intelligent person leaving a message on an ordinary answering machine would have to be aware of and consent by conduct to the recording of the message on the answering machine tape. “​Absence some special showing of unique attributes of a particular answering machine cloaking its identity as an answering machine, we cannot imagine how one would not know an intended the message placed upon the answering machine message tape, be taped and by the very act of leaving of the message, expressly consents by conduct to the taping of the message.” This creates a lower expectation of privacy similar to Diego’s text messaging.

​The Diego court differentiated its the facts to those in Riley v. California, 134 S.CT. 2473 (US S.Ct. 2014). There, the Court held that the police cannot search the contents of a “a Smart phone” without obtaining the warrant. The Diego court emphasized that the local police department did not obtain the contents of Diego’s text messaging conversation by searching the CI’s phone incident to arrest. Rather, the CI gave authority to the police to observe the communications in question.

​This is consistent with Pennsylvania decisions in Commonwealth v Cruttenden, 58 A.3d 95 (Pa. 2012) and Commonwealth v Proetto, 771 A.2d 823, (Pa. Super 2001). These cases judicially sanction the police investigatory technique of having a CI or a police officer – posing as a person engaging in criminal activity – use an electronic device without a warrant to communicate directly with a person planning a criminal act.  No “interception” of a communication takes place under either Pennsylvania’s Wire Tap Act or the Federal Stored Communications Act because the target or perpetrator is communicating directly with the intended recipient. In Proetto and Cruttenden, police officers directly communicated with the defendant (cops acting as a criminal too or posing as a potential victim). These courts determined that such was specifically exempted as an intercept under the statute.  This makes sense because new electronic surveillance laws allow police to act without a warrant as a party engaging in criminal activity in order to trick, bait, or entice people to engage in such as part of an investigation.

The real issue in Diego, however, is how the CI gave the police Diego’s texts.  Factually, the court found that the CI engaged in the communication directly with Diego and then merely related the contents of that conversation to the police who were standing across the table from him and not watching the texts as they arrived on his phone.  The court stated this is not an interception under the plain meaning of the Pennsylvania’s Wiretap Act.

The Diego court allows police receive “historical” information in a text message communications from a CI posing as regular citizen engaging in criminal activity with a targeted defendant.  The court instructed that the police CAN NOT, without a warrant, observe real time text messages as such may constitute an interception under Pennsylvania law.

Unfortunately, police participate in CI real-time texting all the time.  It is what probably occurred (but the police lied under oath about it) in the Diego case.  The court ignored reality.  To accept as credible police testimony that their “CI was not typing what they told him and they did not watch real time as Diego’s texts were received in that basement investigation room” is to ignore basic police tactics.  Splitting this investigatory hair to allow police to use a CI to engage in texting, “but not watch the texts as they are received on a CI’s phone”, and have the CI “tell them what the text say,” is a a ridiculous result.  The police did not secure a warrant and the court did not want to suppress the evidence of Diego’s incriminating texts or identity on the Smart Phone

​As long as the police do not directly observe the text message communications, but rather receive them from their confidential informants, Diego now permits this type of police activity.

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More Examples Why Counsel is Important in Licensing Cases

This week I wrote a blog about the importance of having an attorney handle your professional disciplinary license case. On July 9 & 10, 2015 two more Commonwealth Court cases were handed down affirming my opinion.  Each case magnifies the importance of my blogs on why licensees need an attorney at all times in these professional disciplinary cases.  The cases are Gray v. Bureau of Professional and Occupational Affairs and Tarapchak v Bureau of Professional and Occupational Affairs.

Gray is an applicant who answered yes to having a prior criminal conviction on the state Board of Medicine application. Gray sought a behavior specialist license. Grey acknowledged a 1977 burglary conviction and a February 2008 simple assault, reckless endangering another person, terroristic threats conviction for which he was still on probation in  2012 when he applied for licensure. Gray was provisionally denied a license due to character and fitness deficiencies and timely appealed.

Grey attended the hearing without counsel and attempted to present certain evidence at the hearing that was not properly authenticated or admissible. The precluded evidence was Gray’s letters attesting to his moral character and fitness. In every application case for which someone is denied licensure due to character and fitness, evidence of good character and rehabilitation is paramount.

This evidence must be presented via live testimony with individuals appearing in court.  Gray, not having counsel, did not properly anticipate this issue and did not come prepared with live witnesses to testify on his behalf. As a application case addressing fitness, character, and morals, his fate was sealed before the hearing began.

The attorney prosecuting the case, an experienced litigator, Joan Miller, Esquire, properly objected to the proposed hearsay evidence. The hearing officer for the Medical Board properly sustained the objections and Gray’s letters of reference were excluded. He lost his case before it began. Absent counsel, Gray did not know this and suffered the legal consequences for his lapse.

Tarapchak, acting without counsel, appealed a decision indefinitely suspending her license to practice osteopathic medicine and surgery for no less than three years, retroactive for 18 months.  Tarapchak’s disciplinary matters started in 2010 when, as an osteopathic physician and surgeon,  a petition to compel a mental and physical evaluation addressing her fitness to practice medicine was filed against her.

Similar to a Dr. Woody mental and physical evaluation, the medical board chose Pogos Voskanian, M.D., a psychiatrist, to conduct the evaluation.  He determined that Tarapchak suffered from a drug or alcohol or mental health impairment that rendered her unable to practice osteopathic medicine with reasonable skill and safety absent an increased level of monitoring and a higher degree of treatment.  Tarapchak, without counsel objected to this conclusion, which was overruled and required her to enter the monitoring program.

Tarapchak relented and agreed, signing a consent agreement and order in 2011. Prior blogs address the importance of having counsel prepare every licensee for and attendance with the licensee at these mental and physical evaluations. It does not appear Tarapchak had counsel at that evaluation.

Once Tara was fully enrolled (meaning a final consent agreement was entered by the Board)  in the monitoring program, she violated its terms.  Tarapchak failed to 1) submit to an assessment, 2) provide drug specimens, 3) make timely payment of costs, and 4) cooperate with the PHMP caseworker.  The prosecutor eventually filed a petition for relief, seeking to have Tarapchak kicked out of the monitoring program and indefinitely suspend her license. Tarapchak’s noncompliance with the monitoring programs strict protocols was the issue.

Unfortunately, Tarapchak then began engaging in a series of legal petitions that were both a waste of time and did not have legal merit.  The primary issue of which she tried to address I have written on many occasions; she had “buyers remorse” for signing a consent agreement that bound her to the terms of the PHP/PHMP monitoring program. Tarapchak did not realize the significance of what “cooperation” meant. One of my spring 2015 blogs clearly defines these terms.  Once Tarapchak was stripped of her license and compelled PHMP enrollment, she ran out of money.

The importance of this case is clear. Do not attend a mental and physical evaluation without having counsel properly prepare you for the expert evaluation.  DO NOT GO TO ANY ASSESSMENT WITHOUT COUNSEL PREPARATION.  Absent counsel and a clear understanding of the importance of attending the mental and physical evaluation, and being properly prepared for the evaluation, Tarapchak really lost her license in 2010. While the appellate court case is dated July 2015, Tarapchak effectively lost her license in 2010 when the decision for monitoring was issued by the expert who conducted the mental and physical valuation. The next five years of her professional existence simply focused on not complying with its terms and then struggling with the consequences of not being prepared at that mental and physical evaluation.

Please call me to discuss your case.

Legal Counsel is Important in Every Licensing Case

I write several times a year about the importance of having legal counsel represent licensed professionals before any Pennsylvania professional board during a disciplinary process. From time to time I also write about individual cases that highlight unique issues, changes in prosecution legal strategy, or how cases are being handled differently.  This summer I have a come across several instances in which prosecution legal strategy would have changed significantly  (if an attorney was handling the case) or will because I was hired to handle the settlement negotiations. These developments more than ever highlight the importance of hiring an attorney to assist every professional in these matters.

The three instances span several areas of the disciplinary process, the first being the most typical.  Several highly trained medical practitioners contacted me to discuss, after the fact, their complex PHP/PHMP contract into which they were being forced to enter but had already complied by going to an assessment.  (See my Spring 2015 blog about why not to do this.)  Each professional thought it was in their best interest to consult their hospital compliance officer, rather than an experienced independent attorney, when confronted with a “Letter of Concern” and a PHP/PHMP agreement. Thinking the corporate/regulatory compliance was their “medical friend,” they divulged their alcohol use, current PHP assessment, and the PHMP VRP recommendation. Wrong thing to do!!!!!

These doctors are now being compelled to go into the monitoring program by their employer, and not just the PHP, to save their job. They regret this decision and did not properly contemplate the rigors of the program into which they were “voluntarily” entering. Thinking about their singular job versus a lifetime license was wrong.

The importance of legal counsel is next displayed in a recent pharmacy board trial I handled. I represent one pharmacists in a disciplinary matter that also involves the owner of the same pharmacy, and two other pharmacies, in an independent but related disciplinary action. The owner/pharmacist chose not to have an attorney at his disciplinary hearing. At that hearing, the prosecution introduced into evidence 350 pages of internal drug supplier/company documents regarding his three pharmacies. The hearing officer utilized those documents and the legal conclusions contained therein to discipline the owner/pharmacist.

Conversely, knowing the documents of the other two pharmacies were not admissible in a court of law under basic evidentiary rules, I objected to same documents being introduced against my client at her pharmacy hearing. I also objected to the prosecutor’s expert giving her legal opinion of my client’s alleged rule violations as such was based upon many of the documents now precluded. The pharmacy board hearing officer agreed and stripped the Commonwealth of 9/10 of the evidence in their case against my client. The expert was also precluded from rendering an opinion based upon much of the excluded documents. Solely due to having an attorney, the disciplinary result will be significantly better for my client then the suspension proposed against the pharmacy owner/pharmacist who had no attorney.

A third and more devious example of why an attorney needs to assist licensees in any board matter presented itself in a recent, unique settlement agreement I reviewed. My client successfully presented herself at a mental and physical evaluation after a A Rule to Show Cause requiring the evaluation was filed against her. I was hired to prepare her for that evaluation. The expert found that she did not suffer from any drug or alcohol addiction that rendered her an impaired professional warranting monitoring. This is great.

Nonetheless, some of the facts in the case suggest she should secure additional continuing education credits beyond the standard 24 per cycle. To this end, the prosecutor proposed a “non-public, non-disciplinary” settlement agreement. An unrepresented professional would probably sign the agreement without objection assuming additional education credits was the sole determining factor of the probation term.

However, the agreement’s clauses state probation will terminate only upon approval of a disciplinary type probation officer. The language states “at least” six months probation. The agreement also includes the clause “reinstatement upon approval of either the board or probation officer.” Another clause states the probation officer could seek another evaluation for clearance to confirm public safety before terminating probation.

This new and unique settlement agreement sought to evade the Commonwealth’s chosen expert’s determination of no monitoring. The settlement agreement as drafted would allow the Commonwealth another opportunity for an evaluation in the future to determine if monitoring would be necessary for “public safety.”  As counsel, I objected to each open ended and clearly ambiguous contingency type clauses in a continuing education settlement agreement.

Counsel is important.  Licensees focusing on their profession, paying bills, raising their children, or simply patient safety do not understand the contingent nature of these settlement clauses.  Licensees appearing at hearings without counsel do not know how and why to object to certain documents being presented to the hearing officer.  A medical professionals seeing 15 to 20 patients a day, focusing on their “J.O.B.”, will not perceive the long term importance of the legal admissions contained in monitoring agreements and the future restrictions such imposed upon their licenses.

All professionals are focusing on maintaining the status quo. They will do anything necessary to keep working and not shake the apple cart. Do not do this. Do not sign agreements without an attorney. Do not go to hearings without an attorney. Do not contact compliance officers to discuss PHP/PHMP contracts.  Any suggestion of an impairment will necessarily alter any and every employer/hospital impressions of a licensed professional. Insurance priorities, attending privileges, hospital malpractice issues will become overriding concerns. Impaired or allegedly impaired doctors or professionals will be given short shrift and hung out to dry by any and every compliance officer.

Call me to discuss your case.

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