Pennsylvania v. Spence (majority)
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In 2008, a high school student was involved in a traffic stop and was subsequently arrested for illegal possession of prescription drugs. Later that evening, Pennsylvania State Trooper Scott Miscannon met with the student, who quickly agreed to become a confidential informant. The trooper proposed that the student engage in a controlled buy in order to inculpate the arrestee's drug supplier. The student agreed to participate and identified Appellee as his dealer named "Wes," provided a description of Wes's appearance and his automobile, and indicated he could contact Wes via cell phone. The Commonwealth charged Appellee with three counts each of possession of a controlled substance, possession with intent to manufacture or deliver a controlled substance, and possession of drug paraphernalia. Appellee filed a motion to suppress the entirety of the evidence against him based upon alleged violation of the Wiretapping and Electronic Surveillance Control Act. Following a hearing, the trial court granted the motion to suppress, and the Commonwealth appealed to Superior Court. In a unanimous, unpublished memorandum opinion, the Superior Court affirmed the suppression of the evidence. Reviewing the Act's definitions of "intercept[ion]" and "device," the court rejected the Commonwealth's argument that the cell phone did not fall within the definition of a "device" under the Act. While the court agreed that the cell
phone was not a device with respect to the student, it opined that the phone was nevertheless a device with respect to Trooper Miscannon because the service provider had not furnished it to him. Accordingly, the court concluded that Trooper Miscannon's dialing, direction to place the call on speaker mode, and listening to the conversation constituted his use of the student's cell phone, and, because the trooper was not a furnished "subscriber or user" of the cell phone, this use was an unlawful interception under the provisions of the Act. Analyzing the statutory language employed by the General Assembly in the definitional portion of the Wiretap Act, the Supreme Court saw "no basis upon which to categorize the [student's] cell phone as a device with respect to him, but not as a device with respect to the Commonwealth." Accordingly the Superior Court's order was reversed.
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