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CONSENSUAL WIRE INTERCEPTS IN A PERSON’S HOME REQUIRE PROBABLE CAUSE FOR EACH INTERCEPTION

As a matter of first impression, the PA Superior Court has decided the case of Commonwealth v. Katona, No. 1995 WDA 2014 (December 2, 2016), holding that in order for a consensual wire interception to be used in someone’s home over an extended period of time, there must be separate finding of probable cause for each in-home intercept.

FACTS

Dennis Andrew Katona was convicted in Westmoreland County for two counts each of possession with intent to deliver (“PWID”) and possession of a controlled substance.

Katona’s charges were the result of the execution of a search warrant at his home on June 29, 2011. Following the denial of his motion to suppress the contraband discovered in the search, Katona was convicted of the aforementioned offenses on November 10, 2014. That same day, the trial court sentenced him to an aggregate term of 40 to 80 months’ imprisonment.

The crux of Katona’s suppression claim is whether the June 29th search was unconstitutional because it was based on a May 16, 2011 order signed by the Court authorizing consensual intercepts by a confidential informant (“CI”) over a 30-day period in Katona’s home. As a result of the numerous in-home intercepts authorized by that order, probable cause was established for the full search of Katona’s home.

ISSUE

Whether a Court Order permitting unlimited intercepts in a person’s home over a period of 30 days is lawful?

HOLDING

A separate finding of probable cause is required for each in-home intercept. Katona’s sentence was vacated and the case remanded.

REASONING

The Superior Court announced that Katona’s case presented an issue of first impression, noting that it would ultimately be resolved by the Pennsylvania Supreme Court or the legislature.

In the arguments presented by the parties, both Katona and the Commonwealth cited and discussed the case of Brion  where the PA Supreme Court considered a case in which an informant agreed to wear a body wire when he purchased marijuana from Mr. Brion in his home. In Brion, the Court held that “because the right to privacy in one’s domain is sacrosanct … Article 1 § 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record his conversations.” The Brion Court further held that “interception pursuant to [the PA Wiretapping Statute] can only be deemed constitutional under Article 1, Section 8 if there has been a prior determination of probable cause by a neutral, judicial authority.” This holding was subsequently codified as part of the PA Wiretapping statute.

With this precedent, the Superior Court determined that the issue presented by Katona’s appeal was whether a separate finding of probable cause was required each time the CI intercepted a conversation with Katona in his home or whether permitting unlimited intercepts over a 30-day period was constitutional.

In applying the holding of Brion to Katona’s case, the Superior Court concluded that the probable cause determinations lacked constitutional grounding because they were based upon unfettered wire-interception orders spanning an extended duration of time and, therefore, could not stand.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-A04019-16o%20-%2010290438314537317.pdf?cb=1

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