Commonwealth v. Brachbill

STOUT, Justice,

dissenting.

Because I disagree with the majority’s treatment of whether an extension telephone is an “intercepting device” under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.Cons.Stat.Ann §§ 5701-5727 (Purdon 1983 & Supp.1988) [hereinafter Wiretap Act], I dissent.

Appellants argue that because Corporal Hoffmaster did not obtain prior review of Riggleman’s consent to the eavesdropping as required by section 5704(2)(ii) of the Wiretap Act, Hoffmaster illegally intercepted the call and its contents should have been supressed. Whether Appellants’ argument is correct depends upon whether Hoffmaster “intercepted” the conversation when he listened over the extension phone, or, stated in the alternative, whether an extension phone is an intercepting device and therefore ah object by which one can intercept a call under section 5703 of the Wiretap Act.

Preliminarily, I note that the Wiretap Act is written in language almost identical to that of the Wire Interception and Interception of Oral Communications Act of 1968, 18 *550 U.S.C. § 2510 et seq. [hereinafter Wire Interception Act]. 1 One can turn, therefore, to the legislative history of the federal statute to determine the guidance the federal act gives.

The Wire Interception Act derived from Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1970). It is clear from the legislative history of the Wire Interception Act that the problem which Congress sought to correct was not eavesdropping over an extension telephone but electronic surveillance, the use of wiretaps and “bugs.” See S.Rep. No. 1097, 90th Cong.2d Sess., reprinted in 1968 U.S.Code Congressional and Administrative News, 2112, 2155-56. The problem is outlined in the legislative history as follows:

The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance. Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man’s personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor’s advantage.

Id. at 2154 .

Since our Wiretap Act so closely parallels that of the federal government, one may assume it was enacted with the same legislative purpose.

This view is supported also by definitions in the field of electronics.

*551 A tap is a connection made to an intermediate point on a coil, resistor or other device. R. Turner & S. Gibilisco, The Illustrated Dictionary of Electronics 557 (3d ed. 1985), or a connection made at some point other than the ends of a resistor or coil. J. Markus, Electronic Dictionary 711 (4th ed. 1978). Wiretapping, according to Turner and Gibilisco, is “the (usually illicit) act of making direct or indirect connections to a communications line for the purpose of overhearing or recording a conversation.” According to Markus, a wiretap is a secretly made and concealed connection to a telephone line, office intercommunication line, or other wiring system, for monitoring conversations and activities in a room from a remote location without knowledge of the participants, legally or illegally. The use of an extension telephone does not fulfill the definitional requirements of wiretapping or electronic surveillance.

In rejecting Appellants’ arguments, the Superior Court cited its decision in Commonwealth v. Hammond, 308 Pa.Super. 139, 144 , 454 A.2d 60, 62 (1982), which, I believe, correctly held that an extension telephone is not an intercepting device and, therefore, one using an extension telephone cannot “intercept.” In Hammond , the eavesdropper was the victim’s sister. Appellants argue that a different result should obtain when the eavesdropper is an officer of the law. Nonetheless, the Hammond result has been reached under section 605 of the Federal Communications Act, 47 U.S.C. § 605 (1982), 2 where the eavesdroppers were police officers. Rathbun v. United States, 355 U.S. 107 , 78 S.Ct. 161 , 2 L.Ed.2d 134 (1957). See United States v. Kountis, 350 F.2d 869 (7th Cir.1965), cert. denied, 382 U.S. 980 , 86 S.Ct. 554 , 15 L.Ed.2d 470 (1966). 3

Other state courts have held that the use of an extension telephone is not the use of an electronic, mechanical or *552 other device so as to constitute an interception. See Adams v. State, 43 Md.App. 528 , 406 A.2d 637 (1979), aff'd, 289 Md. 221 , 424 A.2d 344 (1981); State v. Page, 386 N.W.2d 330 (Minn.Ct.App.1986); State v. McDermott, 167 N.J.Super. 271 , 400 A.2d 830 (1979); State v. Bonilla, 23 Wash.App. 869 , 598 P.2d 783 (1979). Although mindful that these federal and state authorities are not binding on this Court, I believe that they reflect the correct analysis of extension telephones and “intercepting devices.” For this reason I dissent from the majority’s holding to the contrary.

McDERMOTT, J., joins in this dissenting opinion.

. The Wire Interception Act was amended in 1986 and is now known as the Wire and Electronic Communications Interception and Interception of Oral Communications Act.

. Section 605 provides, in relevant part, that "no person not being authorized by the sender shall intercept any communication.”

. See Annotation, What Constitutes an “Interception” of a Telephone or Similar Communication Forbidden by the Federal Communications Act [ 47 USC sec. 605 ] or Similar State Statutes, 9 A.L.R.3d 423, § 3(a) at 426-29, § 5(a) at 434-42 (1966 & Supp.1987).