Title 210--APPELLATE PROCEDURES PART II. INTERNAL OPERATING PROCEDURES [210 PA. CODE CH. 65] Consensual Participant Monitoring of Oral Communications Within Private Home [26 Pa.B. 2985] On May 6, 1996, the Superior Court of Pennsylvania, pursuant to Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), adopted the following Internal Operating Procedures governing Consensual Participant Monitoring of Oral Communications Within Private Home.
591. Authority for Application for Consensual Participant Monitoring of Oral Communication within a Suspect's Residence.
The Supreme Court of Pennsylvania, in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), held that the probable cause determination and warrant requirement for participant monitoring of oral communications within a private home, pursuant to 18 Pa.C.S. § 5704(2), should follow the same procedures set forth in the Wiretap Act, 18 Pa.C.S. § 5701 et seq., for other probable cause determinations.
592. Content of Application for Order Authorizing Consensual Participant Monitoring under Brion.
The application for an order authorizing consensual participant monitoring of an oral communication must be made upon the personal oath or affirmation of the Attorney General (or a deputy attorney general designated in writing by the Attorney General) or the district attorney of the county where the interception is to be accomplished, (or an assistant district attorney designated in writing by the district attorney) and must contain the following:
A. A statement of the applicant's authority to make the application;
B. A statement by the applicant that he or she has reviewed the facts, interviewed the consenting participant, obtained his or her written consent to the monitoring, and is satisfied that the consent of the participant has been provided voluntarily;1
C. A statement of the identity and qualifications of the investigative or law enforcement officer who will supervise the conduct of the participant monitoring, and the identity of the agency which will conduct the monitoring;
D. A statement that the applicant is seeking authorization to intercept oral communications of the subject(s) of an investigation concerning one or more of the offenses listed in 18 Pa.C.S. § 5708.
Comment: See: Commonwealth v. Birdseye, Pa. , A.2d (1996);
E. A statement that the applicant has discussed, with the officer who has conducted the investigation to date, all of the facts and circumstances surrounding the targeted offenses and has reviewed the investigating officer's affidavit or probable cause prior to attaching it to the application. The officer's affidavit should contain all of the information required by 18 Pa.C.S. § 5709;
F. A statement of the proposed investigative plan for the participant monitoring including the nature of the device to be used, how it will be used and/or concealed, where the conversations will take place, and the intended and expected content of the conversations which will be intercepted;
G. A statement of the plan for, and method of, monitoring and recording the participant conversations setting forth the method of compliance with the recordkeeping requirements of 18 Pa.C.S. § 5714(a);
H. A request that, based upon the facts and circumstances set forth in the application and the attached affidavit of probable cause, the Superior Court issue an order authorizing the interception of oral communications via participant monitoring for a period of thirty (30) days or less;
I. The applicant should state that, in order to accomplish the purposes of the Act, it is reasonably necessary that the cooperating participant be authorized to enter the residence of one or more of the subjects of the investigation and to engage therein in monitored, recorded conversations with one or more of the targets of the investigation; and
J. The application should state that the recording and recordkeeping requirements of 18 Pa.C.S. § 5714(a), as incorporated in 18 Pa.C.S. § 5704(2)(ii), will be supervised by the applicant deputy attorney general or assistant district attorney who will be the custodian of all recorded evidence obtained pursuant to the order and all records relating thereto.
K. See Appendix, Proposed Form Application for an Order Authorizing the Consensual Interception of Oral Communications in a Home.
593. Content of Affidavit in Support of Application for Consensual Participant Monitoring.
Section 5709(3) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5709(3), provides that the investigative or law enforcement officer shall execute an affidavit setting forth facts which justify the application and containing the following information:
A. The affiant's title, pertinent employment history, authority to conduct investigations, and experience in conducting investigations of similar offenses;
B. The name of the agency and the names and qualifications of each of the officers who will supervise and conduct the participant monitoring;
C. A statement by the affiant setting forth facts which establish probable cause to believe that evidence of one of the crimes enumerated in 18 Pa.C.S. § 5708 will be obtained via the participant monitoring as well as all facts necessary to establish the reliability of the information contained in the affidavit;
D. The identity of the person or persons, if known, who are believed to be committing one or more of the crimes enumerated in 18 Pa.C.S. § 5708;
E. The particular type of information to be intercepted, e.g., in a drug case, discussions concerning the purchase/sale of illegal drugs, etc.;
F. The location and description of the particular place or places where the participant monitoring will be conducted, and the identity of the consenting participant;
G. A detailed statement of the facts and circumstances establishing probable cause to believe that:
1. The subject(s) has committed, is committing, or will commit one of the crimes enumerated in 18 Pa.C.S. § 5708;
2. Pertinent conversations concerning the enumerated offenses may be obtained through the proposed participant monitoring;
3. There is necessity for the consenting participant to enter the residence of the subject(s) in order to engage in pertinent conversations regarding an enumerated offense;
4. The location where the oral communications are expected to be intercepted is, or has been, owned, leased to, or commonly used by such subject(s);
H. The period of time (not to exceed thirty (30) days) necessary to obtain the interceptions, and for which the cooperating participant has provided his or her written consent.
594. Order: Probable Cause Statement.
A proposed order should be submitted by the applicant to the Court, and should state that based upon the application, the Court finds probable cause to believe the following:
A. The person(s) whose communication is to be intercepted is committing, has committed, or is about to commit the offense(s) set forth in the application;
B. Particular communications concerning such offense(s) may be obtained through the proposed consensual interception;
C. The location where the oral communications are expected to be intercepted, is, or has been owned, leased to, or commonly used by the subject(s);
D. The investigative or law enforcement officers or agency to be authorized to supervise the interception are qualified by training and experience to execute the interception sought;
E. The consent of the participant is voluntary and is given without any coercion or undue influence.
595. Order: Factual Statement.
After reciting the above facts, the order must set forth the following:
A. The identity of the investigative or law enforcement officers or agency to whom authority to intercept is given;
B. The identity of the person who made application for authority to intercept;
C. The identity of, or a particular description of, the person(s), if known, whose communications are to be intercepted;
D. The location of and description of the particular place or places where the participant monitoring will be conducted and the identity of the consenting participant;
E. A particular description of the type of communications to be intercepted and a statement of the particular offense(s) to which they relate;
F. The period of time during which such interception is authorized (not to exceed thirty (30) days);
G. The order shall require the Attorney General or the District Attorney or their designees to supervise the interception and provide for the original tapes to be maintained by the Supervising Attorney;
H. The order may require periodic progress reports, if so desired by the issuing judge, indicating the progress made toward achieving the objective of the interception and the need for continued interception; and
I. The order shall require a final report to be filed with the Court at the time the authorized consensual interception is terminated. Pursuant to 18 Pa.C.S. § 5712(e), the report shall consist of the date(s) the interception was conducted, and a complete written list of names of participants and evidence of offenses discovered;
J. See Appendix, Proposed Form Order Authorizing the Consensual Interception of Oral Communications in a Home.
The Application Procedure 601. In General.
The procedures relating to the Application for Consensual Participant Monitoring shall follow the procedures set forth in I.O.P 511--518 and 520--521 relating to other applications under the Wiretapping and Electronic Surveillance Control Act.
Reporting Requirements: Reports to be Made to the Issuing Judge 611. Progress Reports.
Pursuant to section 5712(d) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5712(d), the issuing judge may require periodic progress reports during the course of the participant monitored interception. These reports should explain to the Court the progress being made toward achieving the objectives of the interception and should explain the need for continued participant monitored interception. Such reporting requirements are entirely discretionary with the issuing judge, who may establish the time period for the filing of the reports within the order authorizing consensual interception. See I.O.P. 551.
612. Content of Final Report.
Pursuant to section 5712(e) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5712(e), at the termination of the consensual participant monitoring, the Supervising Attorney must submit a final report consisting of the date(s) the interception was conducted, and a complete written list of names of persons intercepted (if known) and evidence of the offenses discovered.
613. Submission and Sealing of Final Report.
Pursuant to sections 5712(e) and 5715 of the Wiretapping and Electronics Surveillance Control Act, 18 Pa.C.S. § 5712(e) and § 5715, the Supervising Attorney should, immediately upon the expiration of the order or the termination of the interception, submit the final report to the issuing judge for sealing. Section 5714(b) of the act, concerning the sealing and transfer to the issuing judge of all monitoring records, tapes and other recordings, is inapplicable to consensual monitoring interceptions since § 5704(2)(ii) provides that the Attorney General, District Attorney, or their deputy/assistant, shall be custodian of recorded evidence obtained from such an interception. However, sealing of the final report, application and orders should be in the format provided by I.O.P. 555.
614. Service of Inventory.
The service of inventory required by Section 5716(a) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5716(a), is inapplicable to consensual participant monitoring orders.
IN THE SUPERIOR COURT OF PENNSYLVANIAIN THE MATTER OF THE APPLICATION : No. _____ Misc. Conf. OF _________________ , : Dkt-PM-ED 199__ ATTORNEY GENERAL OF THE : COMMONWEALTH OF PENNSYLVANIA : (OR _________________ , : DISTRICT ATTORNEY OF THE COUNTY : OF ______,) FOR AN : ORDER AUTHORIZING THE : CONSENSUAL INTERCEPTION OF : ORAL COMMUNICATIONS : APPLICATION FOR AN ORDER AUTHORIZING THE CONSENSUAL INTERCEPTION OF ORAL COMMUNICATIONS IN A HOME Deputy Attorney General/Assistant District Attorney _________________ , being duly sworn according to law, states:
1. I am a Deputy Attorney General/Assistant District Attorney with the Pennsylvania Office of Attorney General/ _________________ County District Attorney's Office. I am designated in writing by the Attorney General/District Attorney to authorize consensual interceptions pursuant to Section 5704(2) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5704(2), and have attached a copy of that authorization hereto, marked as ''Exhibit A''. I am familiar with an investigation presently pending involving the criminal activities of (name of suspect(s)) and others known and unknown in and around the County(ies) of _________________.
2. I have been authorized to request an order, pursuant to Section 5704(2) of the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S. § 5704(2) and Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), authorizing the consensual interception of the oral communications of (name of consenting party(ies), suspect(s)) and others at a home(s) located at _________________, ______County, Pennsylvania, or any other home wherein oral communications may occur relating to the same consenting party and participants in the herein-referenced criminal activities.
3. The facts and circumstances set forth herein provide your Applicant with probable cause to believe that criminal activity involving the offense(s) of _________________, has been, is, or will be in progress, and that the consensual interception of oral communications at the above-referenced location(s) will yield evidence relevant to this ongoing criminal investigation.
4. (Name of investigative officer) of the (name of investigative agency) is an ''investigative or law enforcement officer'' as defined by Section 5702 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5702, and has prepared an affidavit which sets forth the facts and circumstances which provide probable cause to believe that the consensual interception of oral communications at the above-referenced location will involve the above-described criminal activities. The affidavit of probable cause of (name of investigative officer) is attached hereto and incorporated by reference as ''Exhibit B''.
5. Your applicant has discussed with (name of investigating officer) all of the facts and circumstances surrounding the targeted offenses and has reviewed the affidavit of probable cause of (name of investigating officer) prior to attaching it to this application.
6. Your Applicant certifies that, pursuant to the requirements of Section 5704(2) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5704(2), it has been determined that (name of consenting party) has knowingly, intelligently, and voluntarily consented to have his oral communications, relating to the herein-referenced criminal activity, with (name of suspect(s)) and others monitored and recorded, and that said criminal activity has been, is, or will be in progress. Documentation of these averments is set forth in the ''Officer's Memorandum of Request'', ''Memorandum of Consent'', and ''Memorandum of Approval'', true and correct copies of which are attached hereto and incorporated by reference as ''Exhibit C'', ''Exhibit D'', and ''Exhibit E'' respectively.
7. The recording and recordkeeping requirements of 18 Pa.C.S. § 5714(A) as incorporated in 18 Pa.C.S. § 5704(2)(ii) will be supervised by (name of applicant), who will be the custodian of all recorded evidence obtained pursuant to the order and all records relating thereto.
WHEREFORE, on the basis of those matters set forth above, it is respectfully requested that this Court enter an order authorizing the consensual interception of oral communications of (Name of consenting party, name of suspect(s)) and others occurring within the home(s) located at _________________ County, Pennsylvania, or any other home or location wherein oral communications may occur relating to the same consenting party(ies) and participants and the above-described criminal activity, for a period of ______ (not to exceed 30) days from the date of this application/order.
IT IS FURTHER requested that this Application and the Court's Order be sealed until otherwise directed by the Court.
_________________
(Name of Applicant)Signed and sworn before me
this ____ day of ______ ,
1996, at ____ __ .m.
_________________
J.
COMMONWEALTH OF PENNSYLVANIA : : SS: COUNTY OF _________________ : AFFIDAVIT Before me, the undersigned official, personally appeared who being by me first duly sworn did depose and say that the facts set forth in the foregoing Application are true and correct to the best of his knowledge, information, and belief.
_________________
(Name of Deputy Attorney General/
Assistant District Attorney)Signed and sworn before me
this ____ day of ______ ,
1996, at ____ __ .m.
_________________
Notary Public
IN THE SUPERIOR COURT OF PENNSYLVANIA IN THE MATTER OF THE APPLICATION : No. _____ Misc. Conf. OF _________________ , : Dkt-PM-ED 199__ ATTORNEY GENERAL OF THE : COMMONWEALTH OF PENNSYLVANIA : (OR _________________ , : DISTRICT ATTORNEY OF THE COUNTY : OF ______,) FOR AN ORDER : AUTHORIZING THE CONSENSUAL : INTERCEPTION OF ORAL : COMMUNICATIONS : ORDER AUTHORIZING THE CONSENSUAL INTERCEPTION OF ORAL COMMUNICATIONS IN A HOME AND NOW, this ______ day of ______ , 199 __ , Application under oath having been made by (Deputy Attorney General or Assistant District Attorney) , an authorized officer within the meaning of section 5709 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5709, (hereinafter ''the Act''), for an Order Authorizing the Interception of Oral Communications via Participant Monitoring, and upon full consideration of the matters set forth therein, including the sworn Affidavit of _________________ , a law enforcement officer as defined in Section 5702 of the Act, 18 Pa.C.S. § 5702, this Court finds that:
(a) The name of the consenting party is _________________ ;
(b) The home wherein consensual interception of oral communications is authorized is located at ______ , ______ County, __ and is owned, has been or will be leased to, or commonly used by (suspects(s)) ;
(c) There is probable cause to believe that (suspect(s)) and others as yet unknown, have committed and are committing an offense(s) involving the _________________ in violation of the ______ , and conspiracy to commit said offenses, in violation of Section 903 of the Crimes Code, 18 Pa.C.S. § 903;
(d) There is probable cause to believe that particular communications between (cooperating participant) and (suspect(s)) will be obtained via the participant monitoring herein authorized, and that these communications will concern the details of the involvement of (suspect(s)) and others in the offense(s) specified, the methods of operation, and the dates, times and places that transactions involving the enumerated offenses(s) are to occur as well as other information concerning the ongoing criminal conspiracy, the object of which is _________________ ;
(e) There is probable cause to believe that information relevant to this ongoing criminal investigation will be obtained through the interception of pertinent communication between (cooperating participant) and (suspect(s)) , and that it may be necessary for the pertinent conversations to be intercepted during conversations occurring within the residence(s) of _________________ , located at _________________ ;
(f) There is probable cause to believe that the consent provided by (cooperating participant) is voluntary and was given without any coercion or undue influence;
(g) The investigative or law enforcement officers authorized to supervise the participant monitoring of the aforesaid oral communications, whether the conversations are obtained in public places or inside the residence(s) of _________________ , are: _________________ .
AND, following due consideration of the Application of (Deputy Attorney General or Assistant District Attorney) and as a result of the foregoing findings,
IT IS ORDERED THAT (investigative or law enforcement officer(s) or agency) is authorized to:
1. Intercept conversations between (cooperating participant) and (suspect(s)) which may occur between the date of this Order and ______ , 199 __ , at the residence(s) of _________________ . The type of communications to be intercepted will concern the commission of offenses involving (offense description) in violation of (statute) .
2. Engage in such participant monitoring interception pursuant to Section 5704(2) of the Act, 18 Pa.C.S. § 5704(2), based upon the facts contained in the Application and Affidavit establishing probable cause to believe that additional communications of the same type may be obtained thereafter, and due to the character of the investigation, such interception need not automatically terminate when the type of communication described above in paragraph (1) has first been obtained but may continue monitoring such conversations with the consent of the participant until communications are intercepted which establish and reveal the complete manner in which (suspect(s)) and others as yet unknown, conduct the criminal enterprise in violation of (statute) and the identities of confederates, places and manner of operation, and the nature of the conspiracy involved therein, or at diverse times during the period of thirty (30) days from the date of this order.
3. Such monitoring shall begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of any communications not otherwise subject to interception under the Act.
4. (Name) shall be responsible for the supervision of the participant monitoring. (Name) is designated as authorized to assist him in the supervision of the participant monitoring.
5. Custody and control of any resultant original tapes shall be maintained by (Name) , as required by section 5704(2)(ii) of the Act, 18 Pa.C.S. § 5704(2), the attorney who shall also be responsible for filing with the Court a final report, which shall consist of the date(s) the interception was conducted and a complete list of all participants and evidence of offenses discovered. [If desired by Court, interim report requirement should be place here].
IT IS FURTHER ORDERED THAT the Application and Affidavit in the above-captioned matter, along with this Order, be sealed until further Order of this Court.
SO ORDERED this ____ day of ______ , 199 __ , at ____ __ .M. at ______ , Pennsylvania.
_________________
SUPERIOR COURT
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING AT _________________ IN RE: The Matter of the Application of ______ Docket No ______ _________________ _________________ _________________ _________________ SEALING ORDER AND NOW, to-wit, this ______ day of ______ , 19 ____ , the following shall hereby be ordered:
1. That the contents of this envelope consisting of an application, affidavit and order _________________ relating to the above captioned matter shall be maintained under this seal until such time as this Court shall direct removal of the seal.
2. These sealed items shall be maintained in the Office of the Prothonotary of the Superior Court, Philadelphia, Pennsylvania. It is so ordered.
Judge's signature _________________
Date _________________
Time _________________
IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING AT _________________ IN RE: The Matter of the Application of ______ Docket No ______ _________________ _________________ _________________ _________________ SEALING ORDER AND NOW, to-wit, this ______ day of ______ , 19 ____ , the following shall hereby be ordered:
1. That the contents of this package consisting of:
__________
__________
relating to the above captioned matter shall be maintained under this seal until such time as this Court shall direct removal of the seal.
2. These sealed items shall be maintained in the Office of the Prothonotary of the Superior Court, Philadelphia, Pennsylvania. It is so ordered.
Judge's signature _________________
Date _________________
Time _________________
OFFICER'S MEMORANDUM OF REQUEST Investigation No. ______
The person freely and voluntarily consenting to the proposed interception is (Name) , (Age) , (Born, D.O.B.) .
Based on the above and the attached Memorandum of Consent, I request that approval be given by the Office of the (District Attorney of County or the Attorney General of Pennsylvania) for the proposed interception pursuant to Section 5704 of the Crimes Code, and related sections of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, and that the necessary equipment for the interception be issued to the following person or persons who will conduct the interception.
(NAME) (AGENCY)
__________
SIGNATURE OF APPLICANT/OFFICER
______ _____
DATE TIME
Exhibit ''C''
MEMORANDUM OF APPROVAL Investigation No. ______
I, (Assistant District Attorney or Deputy Attorney General), (Address) , Pennsylvania, having been officially designated by (District Attorney of County or Attorney General of Pennsylvania) pursuant to Section 5704 and related sections of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5704, have reviewed the Memorandum of (Investigating Officer or Trooper) of (Agency) , dated _____ and the Memorandum of Consent signed by ______ , dated ______ . In order to determine whether the Consent of the person named above was freely and voluntarily given, I have also interviewed him/her in person and discussed:
1) The purpose of the interview;
2) Prior participation in wiretaps;
3) Reason for cooperation;
4) Relationship to any party to be intercepted;
5) Equipment;
6) Nature and purpose of intended interception;
7) Time limits;
8) Right to withdraw at any time;
9) Any threats or promises; and
10) Any drugs or alcohol within the last 24 hours.
I also offered to answer any questions concerning the interception.
As a result of all the foregoing, I find that the Consent of the person named above was freely and voluntarily given and that the proposed interception involves suspected criminal activities and appears to be otherwise in accord with the law. The proposed interception is approved and the authorization is given for the issuance of such devices as are necessary to accomplish the interception in the manner described in the officer's Memorandum.
In regard to persons under criminal charges, particular care must be exercised to avoid the interception of any conversation of that person which pertains to his culpability in relation to his pending charges or the strategy which he contemplates using in his defense.
__________
SIGNATURE
______ _____
DATE TIMEEXHIBIT ''D''
MEMORANDUM OF CONSENT Investigation No. __________
I, (Name of consenting party) , Age ______ , Born D.O.B. , do freely and voluntarity consent to the interception and recording by the (Name of Agency) of my communications with (Name or names of proposed interceptees) and anyone else contacted during attempts to reach the persons named above, or present during conversations with the above-named persons which may occur on or about ______.
_________________ _________________ WITNESS SIGNATURE OF CONSENTING PARTY _________________ ______ _____ DATE TIME EXHIBIT ''E''
[Pa.B. Doc. No. 96-1044. Filed for public inspection June 28, 1996, 9:00 a.m.] _______
1 The applicant should also attach to the application the investigating officer's memorandum signed by the officer, the memorandum of approval signed by the authorized assistant district attorney or deputy attorney general, and the signed memorandum of consent form. See: Commonwealth v. Spence, 428 Pa. Super. 548, 631 A.2d 666 (1993).
