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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