Jun 25

Don’t Text with an Informant and iPads are Not Phones

While Dora the Explorer’s cousin, Diego, may proudly proclaim that “helping out each other is good for everyone,” apparently defendant Curtis Diego’s “friend,” Gary Still, had no such interest.

Mr. Still, when confronted by police about his suspected theft of numerous firearms, quickly confessed to the thefts and became an informant against Diego.  Still told the police that he exchanged two of the stolen guns for heroin from Diego.  Sitting in police headquarters and surrounded by police officers, Still used his iPad to text with Diego to set up a drug transaction.  Not surprisingly, when the police showed up at the arranged location, they found Diego with drugs and made an arrest.  Diego then filed a motion to suppress based upon an improper wiretap arising out of the texts from the police station.  The trial court granted the motion. In Commonwealth v. Diego, issued Tuesday, the Superior Court reversed.

The Superior Court first rejected the Commonwealth’s argument that texting on an iPad somehow is the same thing as using a telephone.  As we’ve blogged about before, the Pennsylvania Wiretapping and Electronic Surveillance Control Act prohibits interception of “any wire, electronic or oral communication.”  18 Pa.C.S. § 5702.  The statute, however, excludes from the definition of “intercept” the use of any telephone.  In Commonwealth v. Spence, the Pennsylvania Supreme Court confirmed that interceptions using a telephone are not prohibited by the Wiretap Act.  Here, the Supreme Court didn’t buy the Commonwealth’s argument that the use of a text messaging function on an iPad was the functional equivalent of a telephone:

An iPad is not a telephone or telegraph instrument under a common understanding of the relevant terms, and no reasonable person familiar with the now ubiquitous technology of tablet computers would misidentify an iPad as a mere telephone. The fact that an iPad or any other tablet computer can perform functions similar or identical to a modern cellular phone is not dispositive, as the Spence Court’s holding implies. The trend of convergence between modern computers and telephones aside, at this time the technologies in question remain different not only by degree, but also in kind.

Commonwealth v. Diego, 2015 PA Super 143, slip op. at 7-8 (Pa. Super. 2015).  Take that, Commonwealth.

But not so fast.  Just because an iPad is not a telephone – and therefore the text messages were not subject to the Wiretap Act’s telephone exception – did not mean that the texting evidence should be suppressed.  The court then turned to whether there was a reasonable expectation of privacy in the text messages and whether or not there was even an “intercept” in the first place.  This is where things began to crumble for Mr. Diego.

The Superior Court held that the very nature of texting, much like drafting an e-mail or posting on a chat room, recorded the text message for posterity.  Unlike an oral communication, for which one would expect no record of what was said, a text message, like an e-mail message or a post, is recorded for all time (or at least, for some time, until someone hits “delete”).  As the court noted, “by the very act of engaging in the means of communication at-issue, Appellee risked that Gary Still would share the contents of that conversation with a third party.”  Id. at 10.

The Superior Court also rejected Diego’s reliance on Riley v. California, which involved a cell phone that was seized and searched incident to an arrest for a firearms offense (and which we’ve discussed here and here).  The court distinguished between police searching a cell phone incident to arrest with the use of an informant to engage in a text conversation with a defendant.

Then, the court concluded that there was no interception at all.  The court noted that the informant voluntarily cooperated with the police and communicated with the defendant.  Once the defendant sent the messages, that was it and what the informant did with the information received from the defendant was, according to the court, irrelevant.  A government “interception” must occur either “during the transmission of the message or at least simultaneous to the receipt of the message.”  Id. at 19.

Ultimately, the court focused on the specific factual circumstances before it:  the police, although with the defendant in a basement holding cell and present during the transmission of the text messages setting up the fateful transaction, did not observe the actual texts.  Had that been the case, the court explained “it would then be plausible to argue that the police may have observed the content of the text messages before Still had received them. However, because that particular factual scenario is not before this Court at this time, we need not address it.”  Id. at 21.

The court explained in a lengthy footnote how this was not a circumstance involving police who saw / “intercepted” the text messages.  But this seems to draw a fine line between six police officers standing around an informant in a basement room of a police station setting up an illegal transaction (drugs. . . or fraud, or bid rigging, or whatever) and the same scenario but in which at least one officer glances at the iPad screen and sees the texts in real (or near) time.  For now, perhaps, the answer is, “don’t text with an informant,” but this shifts the focus to citizens to remain vigilant from government overreaching, rather than on the government to uphold its obligations.

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