Ruling on a case of government eavesdropping, the Pennsylvania Supreme Court has ruled that individuals have “no reasonable expectation of privacy” when answering telephone calls made to their own home, according to a legal industry newsletter.
The “Legal Intelligencer,” in a story carried on the website Law.com, said that the state’s high court, in a “fractured” 4-3 ruling, noted that “the methods of telephone communication widely used today” – including speakerphones and cordless phones – precluded any privacy expectations.
The majority said that a person has no idea who may be listening in on the other end of the phone line and, therefore, cannot believe the information being discussed won’t be revealed.
“A telephone call received by or placed to another is readily subject to numerous means of intrusion at the other end of the call, all without the knowledge of the individual on the call,” wrote Pennsylvania Supreme Court Justice Ralph Cappy for the majority. “Extension telephones and speakerphones render it impossible for one to objectively and reasonably expect that he or she will be free from intrusion. The individual cannot take steps to ensure that others are excluded from the call.”
Justice Stephen Zappala, the legal newsletter reported, authored one of two dissenting opinions. He was joined by Chief Justice John Flaherty.
“Our right to privacy does not rise and fall with technology, but rather is grounded in our state constitution, which has afforded the right to privacy the utmost protection,” Zappala wrote.
Justice Russell Nigro wrote his own dissent; he was joined by Flaherty and Zappala, the Legal Intelligencer reported.
At issue was a conversation that was taped as part of a drug investigation by the state’s attorney general’s office and the Cranberry Township Police Department, said the publication.
On June 23, 1992, “agents of both entities seized a substantial amount of cocaine from Thomas Tubridy,” the newsletter said. “Tubridy alleged that he received the drugs from a man named Vincent Rizzo in Florida, and that Kirk Rekasie, the defendant in the case, was Rizzo’s drug courier.”
Tubridy agreed to help authorities with their investigation. In part, he agreed to have his telephone conversations with Rizzo and Rekasie taped.
Linda Barr, the state’s deputy attorney general designated to review requests for voluntary intercepts, approved the request of officers to tape Tubridy’s phone conversations “for a specified period of time,” the newsletter said – ostensibly in compliance with the Wiretapping and Electronics Surveillance Act.
Six conversations in all were taped from June 25-30, 1992. A search warrant was issued based on the taped conversations.
The attorney general’s office seized Rekasie’s luggage as he was getting off a plane from Florida to Pittsburgh, which officers found contained 10 ounces of cocaine.
Cappy, in his opinion, noted that the U.S. Supreme Court has said in several cases that where oral conversations are concerned, people have no justifiable expectation that a party or parties on the other end of the line will not reveal information exchanged in conversation to police.
“This concept, that one does not have an expectation of privacy in information voluntarily disclosed to another, has been consistently applied by the federal high court in denying assertions of expectations of privacy under the [U.S. Constitution’s] Fourth Amendment,” Cappy wrote. “Yet, our court has not followed federal jurisprudence lock-step.”
The Legal Intelligencer said that Cappy used the 1967 U.S. Supreme Court case United States v. Katz as his guide.
“Under that standard,” the newsletter said, “a court determining the areas in which a person has a reasonable expectation of privacy should consider whether the person has exhibited an actual expectation of privacy and whether that expectation is one that society would perceive as reasonable.”
Cappy argued in his opinion that while Rekasie may have had an actual expectation of privacy in his phone calls with Tubridy, it was not one that society would consider reasonable.
“On the telephone, one is blind as to who is on the other end of the line,” he wrote.
Justice Ronald Castille, along with Justice Thomas Saylor, issued concurring opinions.
But in his dissent, Zappala assailed his colleagues over what he believes is a hit against the sanctity of privacy in one’s own home.
“Today the majority holds that the Pennsylvania Constitution affords no protection against the government listening to, recording and reporting the details of our private telephone conversations,” he wrote. “By holding that we have no expectation of privacy in the confidential messages and conversations transmitted from our telephones, it has placed the freedom of every citizen into the hands of the law enforcement authorities.”
He also believes the high court’s decision could have long-term dire effects.
“The scant protection provided by statute – i.e., the requirement of one-party consent – is rendered superfluous when viewing the right to privacy in this context,” he wrote. “Following the majority’s analysis to its logical conclusion, there is no constitutional precept preventing the government from tapping any individual’s phone line for any reason.”
In his separate dissent, Nigro wrote that he could not understand the decision, even in comparison to other cases.
“I am mystified by the fact that while an individual has a reasonable expectation of privacy in a dialed telephone number … that person, according to the majority, has absolutely no privacy expectation in the content of his conversation,” Nigro wrote.
“Given the ever-increasing technological means for eavesdropping into private affairs, it appears, under the majority’s rationale, that it is only a matter of time before there is no privacy anywhere or in anything,” he added.
“In my view,” Nigro concluded, “the constantly expanding ways in which the commonwealth is able to intrude upon our private affairs calls for heightened, rather than diminished, protection of our constitutional rights.”
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