Pa. justices: Fake texts don't violate Wiretap Act

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It is not a violation of the state's wiretap act for a police officer to pose as an accomplice and communicate with a suspect via text messages, the state Supreme Court has ruled.

The court's ruling makes applicable for existing cases what recent amendments to the Pennsylvania Wiretapping and Electronic Surveillance Control Act will do for future cases when the amendments go into effect later this month.

In writing for the majority in Commonwealth v. Cruttenden and Commonwealth v. Lanier, Justice Seamus P. McCaffery said the officer posing as an accomplice was not eavesdropping on a conversation and, therefore, did not violate the Pennsylvania Wiretapping and Electronic Surveillance Control Act regardless of whether the officer intentionally misrepresented himself.

The Supreme Court rejected the Pennsylvania Superior Court's interpretation that Commonwealth v. Proetto -- which found an officer posing as a fictitious underage teen in a chat room was not a violation of the Wiretap Act -- did not apply to the cases of Jeffrey S. Cruttenden and Stephen V. Lanier.

"That a police officer does not identify him or herself, or misrepresents his or her identity, does not change the fact that he or she is a direct party to the conversation, and by virtue of being a direct party to the conversation, is deemed the intended recipient of the conversation under whatever identity the officer has set forth," Justice McCaffery said.

The justice said the applicability of the Wiretap Act does not rest on whether the caller's presumption of the person on the other line, or in this case, the party sending the texts, is accurate.

A panel of the Superior Court ruled in June 2009 that it was "constrained" to uphold a trial court's grant of Mr. Cruttenden's and Mr. Lanier's motions to suppress evidence in the criminal cases against them.

The Superior Court's ruling in Cruttenden and Lanier led the Pennsylvania District Attorneys Association to push for an amendment to the Wiretap Act that would allow for police to pose as accomplices without a warrant if a dedicated prosecutor determines the proposed communications will involve criminal activity.

The amendment, referred to as the Cruttenden Amendment, was signed into law along with a number of other changes to the act in late October.

According to the Supreme Court's opinion, in the consolidated cases of Cruttenden and Lanier, Pennsylvania State Police stopped a speeding pickup truck with Arizona plates on I-80 in Clearfield County, Pa., on March 27, 2007. Daryl Taylor was driving the vehicle and Michael Amodeo was his passenger. Mr. Taylor had a suspended Arizona driver's license.

The officer asked the two what their travel plans were. When he got conflicting stories, the officer asked if they were transporting weapons or drugs and Mr. Taylor said he had a weapon. After getting Mr. Taylor's consent to search the vehicle, police found about 35 pounds of marijuana, methamphetamine, drug paraphernalia, a .45 caliber handgun and a cellular "TracFone," according to the opinion.

The two were arrested and upon questioning, Mr. Amodeo said he was approached by a man named "Steve" in Arizona who wanted to supply a friend in the Pennsylvania and New York areas with marijuana. Mr. Amodeo described Steve as a short, white male with blonde hair, a mustache and possible tattoos on his arms, according to court documents.

Mr. Amodeo said Steve agreed to buy 35 pounds of marijuana for $19,000. The plan was for Steve to fly cross-country to meet the buyer while Mr. Amodeo drove the narcotics to an undisclosed location in Pennsylvania. Mr. Amodeo said Steve gave him the phone to keep in contact and arrange a final meeting place via text message, according to the opinion.

The officer got permission to use the TracFone and, without an order of the court, posed as Mr. Amodeo and began text-messaging "Steve" -- Stephen Lanier -- who ultimately gave directions to a Holiday Inn where he wanted to meet and complete the transaction, according to court papers.

Mr. Lanier was subsequently arrested, as was Mr. Cruttenden, in the hotel parking lot.

In their motion to suppress, Mr. Lanier and Mr. Cruttenden argued the warrantless interception of the text messages was illegal -- the Luzerne County trial court agreed, as did the Superior Court.

On appeal to the Supreme Court, the state argued that there could not have been a violation of the Wiretap Act when nothing was intercepted by the officer, but rather he was a party to the conversation.

Justice Max Baer wrote a concurring opinion in which Justice Debra M. Todd joined.


Gina Passarella: or 1-215-557-2494. To read more articles like this, visit


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