A defendant lacked a reasonable expectation of privacy in the contents of a text message conversation he had with a police informant, the Pennsylvania Superior Court held in Com. v. Diego, __ A.3d __ (No. 1989 MDA 2014, filed June 23, 2015). The Court also held that an iPad or other tablet device is not the equivalent of a “telephone” under the Wiretap and Electronic Surveillance Control Act, 18 Pa. C.S. §5701-5782.
During an investigation of stolen guns involving Gary Still, officers learned that Still traded guns with the appellee, Curtis Diego, in exchange for heroin. At the officers’ request, Still used a text messaging service on his iPad to set up a heroin deal with Diego. The transaction occurred at the police station, with Still relaying each of Diego’s response to the officers in the room. Following his subsequent arrest on drug-related charges, Diego sought suppression of heroin and drug paraphernalia seized from his possession. The suppression court granted the motion and the Commonwealth appealed.
The Superior Court reversed in an opinion authored by President Judge Emeritus Bender. The Court first rejected the Commonwealth’s argument that Still’s iPad was akin to a cellular telephone and, therefore, an “electronic, mechanical or other device” within the Wiretap Act’s telephone exception. The Court noted that just because a tablet computer can perform the functions of a cell phone is not dispositive; it is for the legislature to expand the definition of “telephone” to include tablets. The Court held, however, that Diego lacked a reasonable expectation of privacy in the contents of the text messages he sent to Still. Comparing text messages to emails, the Court observed that “it is the sender’s knowledge that the communication will automatically be recorded, surmised from the very nature of the selected means of transmission, that is dispositive of the sender’s lack of an expectation of privacy.” Finally, the Court held that no “intercept” occurred in this case because Still was a party to the conversation. That he relayed the contents of the conversation to the police did not render either his or the police’s conduct an “interception” under the Wiretap Act. The Court noted that the outcome may have been different if the officers had actually observed the text message conversation as it occurred.