For the Defense - Vol. 4, Issue 2 - 14

collar prosecutions. For example, this exception
would apply to the many "consensually recorded"
conversations identified in the supporting affidavits
in the college admissions scandal.
To satisfy the single-party consent exception, a
CI's consent to the recording must be voluntary,
which means that it is "the 'product of an essentially
free and unconstrained choice by the maker.'"27
Courts reviewing the voluntariness of a CI's consent
make a factual inquiry and consider the totality of
the circumstances to ensure that the CI's will was
not overcome, his ability to make decisions was not
impaired, and his consent was not the product of
coercion or duress.28 The Attorney General or district
attorney for the jurisdiction where the interception
is to be initiated, who is required to give prior
approval to interceptions under this exception,
"must review[] the facts and [be] satisfied that the
consent is voluntary."29
If the CI is to record a conversation that occurs
when both he and the non-consenting party are
physically present in the non-consenting party's
home, where privacy expectations are heightened,
the court also must authorize the in-home
interception before the recording is made.30 An
order authorizing such an interception must be
issued by a Court of Common Pleas president
judge or his designee who has made a probable
cause determination, based on a supporting law
enforcement affidavit.31 This rule also must be
complied with even if law enforcement did not
anticipate that the CI would enter the defendant's
home or even intended that the recorded
conversations would occur outside of the home.32
Under this exception, if a law enforcement officer
meets in person with a suspected felon and records
their conversation using a concealed device, this
recording is of limited utility and can only be used
in prosecutions involving harm done to the officer.33
However, law enforcement officials can meet
and record in-person conversations with suspects
by obtaining an authorizing court order under
Section 570834 or pursuant to other less frequently
applicable exceptions.35

Limitations on Disclosure and Use of
Intercepted Communications
Disclosure of properly-obtained interceptions
and any evidence derived from them is authorized
in the law enforcement context. These materials

14

For The Defense

l

Vol. 4, Issue 2

can be shared among law enforcement officials
in the course their duties and used by officers
"to the extent such use is appropriate" to the
performance of their official duties.36 They also
can be disclosed by anyone to law enforcement
or in any criminal, quasi-criminal, forfeiture,
administrative enforcement, or professional
disciplinary proceeding, in Pennsylvania or any
federal or state jurisdiction.37 They cannot be
disclosed in purely civil proceedings.38 This narrow
range of permitted disclosures is consistent
with Pennsylvania's recognition of the right to
privacy as a fundamental constitutional right,
which is invaded when a party's confidential oral
communications are recorded and published
without his consent.39
The Wiretap Act specifically authorizes
"motions to exclude" recordings from admission
as evidence at trial. A defendant may move to
exclude the contents of the recording or any
evidence derived from it by establishing either
that: (1) the recording was not made in accordance
with any of the Wiretap Act's exceptions;
(2) sufficient consent was not given-either
because it was not obtained from the defendant
or because the CI was coerced; or (3) if the
recording was made when both parties were
physically present in the defendant's home or
the recording was made by a law enforcement
officer, that the necessary court order was not
obtained or the probable cause determination was
inaccurate.40
Exclusion is the sole remedy available for
attempted introduction of improperly-obtained
intercepted conversations,41 and a defendant
does not have to establish prejudice to prevail
on the exclusion motion.42 However, even if the
communication is excluded, evidence derived from
it will not be excluded if the Commonwealth or
respondent can establish that the evidence was
subject to inevitable discovery or an independent
basis existed for discovering the evidence. 43
In a case currently on appeal to the
Pennsylvania Supreme Court, the Superior Court
considered the contours of the independent
source rule and held that a probable cause
affidavit for a search warrant could lawfully
include the information learned from defendant's
conversations with a CI, even though the CI's
recordings of the conversations were illegal.44 In
Commonwealth v. Katona, the court reasoned



For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2

Contents
For the Defense - Vol. 4, Issue 2 - 1
For the Defense - Vol. 4, Issue 2 - 2
For the Defense - Vol. 4, Issue 2 - Contents
For the Defense - Vol. 4, Issue 2 - 4
For the Defense - Vol. 4, Issue 2 - 5
For the Defense - Vol. 4, Issue 2 - 6
For the Defense - Vol. 4, Issue 2 - 7
For the Defense - Vol. 4, Issue 2 - 8
For the Defense - Vol. 4, Issue 2 - 9
For the Defense - Vol. 4, Issue 2 - 10
For the Defense - Vol. 4, Issue 2 - 11
For the Defense - Vol. 4, Issue 2 - 12
For the Defense - Vol. 4, Issue 2 - 13
For the Defense - Vol. 4, Issue 2 - 14
For the Defense - Vol. 4, Issue 2 - 15
For the Defense - Vol. 4, Issue 2 - 16
For the Defense - Vol. 4, Issue 2 - 17
For the Defense - Vol. 4, Issue 2 - 18
For the Defense - Vol. 4, Issue 2 - 19
For the Defense - Vol. 4, Issue 2 - 20
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For the Defense - Vol. 4, Issue 2 - 24
For the Defense - Vol. 4, Issue 2 - 25
For the Defense - Vol. 4, Issue 2 - 26
For the Defense - Vol. 4, Issue 2 - 27
For the Defense - Vol. 4, Issue 2 - 28
For the Defense - Vol. 4, Issue 2 - 29
For the Defense - Vol. 4, Issue 2 - 30
For the Defense - Vol. 4, Issue 2 - 31
For the Defense - Vol. 4, Issue 2 - 32
For the Defense - Vol. 4, Issue 2 - 33
For the Defense - Vol. 4, Issue 2 - 34
For the Defense - Vol. 4, Issue 2 - 35
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For the Defense - Vol. 4, Issue 2 - 37
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For the Defense - Vol. 4, Issue 2 - 41
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For the Defense - Vol. 4, Issue 2 - 44
For the Defense - Vol. 4, Issue 2 - 45
For the Defense - Vol. 4, Issue 2 - 46
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