PRINTER'S NO. 1779
No. 1466 Session of 1983
INTRODUCED BY SWEET, PICCOLA, DAWIDA, HOEFFEL, FREIND, NOYE,
VAN HORNE, PRATT, MRKONIC, SAURMAN, CALTAGIRONE, GREENWOOD,
POTT, KOWALYSHYN, SCHEETZ, FISCHER, KOSINSKI, WACHOB,
MADIGAN, BATTISTO, CLYMER, GANNON, WOGAN, PUNT, SEMMEL,
FLICK, KASUNIC AND BALDWIN, SEPTEMBER 21, 1983
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 21, 1983
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, further providing for the interception
3 of wire or oral communications; and making editorial changes.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Sections 5708, 5709, 5712(e), 5713(a), 5715,
7 5717, 5718, 5720 and 5721 of Title 18 of the Pennsylvania
8 Consolidated Statutes are amended to read:
9 § 5708. Order authorizing interception of wire or oral
10 communications.
11 The Attorney General, or, during the absence or incapacity of
12 the Attorney General, a deputy attorney general designated in
13 writing by the Attorney General or the district attorney or,
14 during the absence or incapacity of the district attorney, an
15 assistant district attorney designated in writing by the
16 district attorney of the county wherein the interception is to
17 be made, may make written application to any Superior Court
1 judge for an order authorizing the interception of a wire or
2 oral communication by the investigative or law enforcement
3 officers or agency having responsibility for an investigation
4 involving suspected criminal activities when such interception
5 may provide evidence of the commission of any of the following
6 offenses, or may provide evidence aiding in the apprehension of
7 the perpetrator or perpetrators of any of the following
8 offenses:
9 (1) Under this title:
10 Section 2501 (relating to criminal homicide)
11 Section 2502 (relating to murder)
12 Section 2503 (relating to voluntary manslaughter)
13 Section 2706 (relating to terroristic threats)
14 Section 2901 (relating to kidnapping)
15 Section 3121 (relating to rape)
16 Section 3123 (relating to involuntary deviate sexual
17 intercourse)
18 Section 3301 (relating to arson and related offenses)
19 Section 3302 (relating to causing or risking
20 catastrophe)
21 Section 3502 (relating to burglary)
22 Section 3701 (relating to robbery)
23 Section 3921 (relating to theft by unlawful taking or
24 disposition)
25 Section 3922 (relating to theft by deception)
26 Section 3923 (relating to theft by extortion)
27 Section 4701 (relating to bribery in official and
28 political matters)
29 Section 4702 (relating to threats and other improper
30 influence in official and political matters)
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1 Section 5512 (relating to lotteries, etc.)
2 Section 5513 (relating to gambling devices, gambling,
3 etc.)
4 Section 5514 (relating to pool selling and
5 bookmaking)
6 (2) Under this title, where such offense is dangerous to
7 life, limb or property and punishable by imprisonment for
8 more than one year:
9 Section 3925 (relating to receiving stolen property)
10 Section 3926 (relating to theft of services)
11 Section 3927 (relating to theft by failure to make
12 required disposition of funds received)
13 Section 4108 (relating to commercial bribery and
14 breach of duty to act disinterestedly)
15 Section 4109 (relating to rigging publicly exhibited
16 contest)
17 Section 4902 (relating to perjury)
18 [Section 4907 (relating to tampering with witnesses
19 and informants)]
20 Section 4909 (relating to witness or informant taking
21 bribe)
22 Section 4911 (relating to tampering with public
23 records or information)
24 Section 4952 (relating to intimidation of witnesses
25 or victims)
26 Section 4953 (relating to retaliation against witness
27 or victim)
28 Section 5101 (relating to obstructing administration
29 of law or other governmental function)
30 Section 5504 (relating to harassment by communication
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1 or address)
2 Section 5902 (relating to prostitution and related
3 offenses)
4 (3) Under the act of July 22, 1970 (P.L.513, No.178),
5 known as the "Pennsylvania Cigarette Tax Act," where such
6 offense is dangerous to life, limb or property and punishable
7 by imprisonment for more than one year:
8 Section 902. Sales of unstamped cigarettes.
9 Section 903. Possession of unstamped cigarettes.
10 Section 904. Counterfeiting.
11 (4) Any offense set forth under section 13(a) of the act
12 of April 14, 1972 (P.L.233, No.64), known as "The Controlled
13 Substance, Drug, Device and Cosmetic Act," not including the
14 offense described in clause (31) of section 13(a).
15 (5) Any offense set forth under the act of November 15,
16 1972 (P.L.1227, No.272).
17 (6) Any conspiracy to commit any of the offenses set
18 forth in this section.
19 § 5709. Application for order.
20 Each application for an order of authorization to intercept a
21 wire or oral communication shall be made in writing upon the
22 personal oath or affirmation of the Attorney General or his
23 designee or a district attorney or his designee of the county
24 wherein the interception is to be made and shall contain all of
25 the following:
26 (1) A statement of the authority of the applicant to
27 make such application.
28 (2) A statement of the identity and qualifications of
29 the investigative or law enforcement officers or agency for
30 whom the authority to intercept a wire or oral communication
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1 is sought.
2 (3) A sworn statement by the investigative or law
3 enforcement officer who has knowledge of relevant information
4 justifying the application, which shall include:
5 (i) The identity of the particular person, if known,
6 committing the offense and whose communications are to be
7 intercepted.
8 (ii) The details as to the particular offense that
9 has been, is being, or is about to be committed.
10 (iii) The particular type of communication to be
11 intercepted.
12 (iv) A showing that there is probable cause to
13 believe that such communication will be communicated on
14 the wire communication facility involved or at the
15 particular place where the oral communication is to be
16 intercepted.
17 (v) The character and location of the particular
18 wire communication facilities involved or the particular
19 place where the oral communication is to be intercepted.
20 (vi) A statement of the period of time for which the
21 interception is required to be maintained, and, if the
22 character of the investigation is such that the
23 authorization for interception should not automatically
24 terminate when the described type of communication has
25 been first obtained, a particular statement of facts
26 establishing probable cause to believe that additional
27 communications of the same type will occur thereafter.
28 (vii) A particular statement of facts showing that
29 other normal investigative procedures with respect to the
30 offense have been tried and have failed, or reasonably
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1 appear to be unlikely to succeed if tried or are too
2 dangerous to employ.
3 (4) Where the application is for the renewal or
4 extension of an order, a particular statement of facts
5 showing the results thus far obtained from the interception,
6 or a reasonable explanation of the failure to obtain such
7 results.
8 (5) A complete statement of the facts concerning all
9 previous applications, known to the applicant made to any
10 court for authorization to intercept a wire or oral
11 communication involving any of the same facilities or places
12 specified in the application or involving any person whose
13 communication is to be intercepted, and the action taken by
14 the court on each such application.
15 (6) A proposed order of authorization for consideration
16 by the judge.
17 (7) Such additional testimony or documentary evidence in
18 support of the application as the judge may require.
19 § 5712. Issuance of order and effect.
20 * * *
21 (e) Final report.--Whenever a surveillance is authorized
22 pursuant to this section, a complete written list of names of
23 participants in the offenses and evidence of offenses
24 discovered, including those not stated in the application for
25 order, shall be filed with the court at the time the authorized
26 surveillance is terminated.
27 * * *
28 § 5713. Emergency situations.
29 (a) Application.--Whenever, upon informal application by the
30 Attorney General or a designated attorney general authorized in
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1 writing by the Attorney General or a district attorney or an
2 assistant district attorney authorized in writing by the
3 district attorney of a county wherein the interception is to be
4 made, a judge determines there are grounds upon which an order
5 could be issued pursuant to this chapter, and that an emergency
6 situation exists with respect to the investigation of an offense
7 designated in section 5708 (relating to order authorizing
8 interception of wire or oral communications), and involving
9 conspiratorial activities characteristic of organized crime
10 [and] or a substantial danger to life or limb, dictating
11 authorization for immediate interception of wire or oral
12 communication before an application for an order could with due
13 diligence be submitted to him and acted upon, the judge may
14 grant oral approval for such interception without an order,
15 conditioned upon the filing with him, within 48 hours
16 thereafter, of an application for an order which, if granted,
17 shall recite the oral approval and be retroactive to the time of
18 such oral approval. Such interception shall immediately
19 terminate when the communication sought is obtained or when the
20 application for an order is denied, whichever is earlier. In the
21 event no application for an order is made, the content of any
22 wire or oral communication intercepted shall be treated as
23 having been obtained in violation of this chapter.
24 * * *
25 § 5715. Sealing of applications, orders and supporting papers.
26 Applications made, final reports, and orders granted pursuant
27 to this chapter and supporting papers and monitor's records
28 shall be sealed by the court and shall be held in custody as the
29 court shall direct and shall not be destroyed except on order of
30 the court and in any event shall be kept for ten years. They may
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1 be disclosed only upon a showing of good cause before a court of
2 competent jurisdiction except that any investigative or law
3 enforcement officer may disclose such applications, orders and
4 supporting papers and monitor's records to investigative or law
5 enforcement officers of this or another state, any of its
6 political subdivisions, or of the United States to the extent
7 that such disclosure is appropriate to the proper performance of
8 the official duties of the officer making or receiving the
9 disclosure. In addition to any remedies and penalties provided
10 by this chapter, any violation of the provisions of this section
11 may be punished as contempt of the court.
12 § 5717. Disclosure or use of contents of wire or oral
13 communications or derivative evidence.
14 (a) Investigative activities.--Any investigative or law
15 enforcement officer who, by any means authorized by this
16 chapter, has obtained knowledge of the contents of any wire or
17 oral communication, or evidence derived therefrom, may disclose
18 such contents or evidence to another investigative or law
19 enforcement officer of the Commonwealth or any of its political
20 subdivisions or any other state or the United States and to the
21 defendant's counsel or make use of such contents or evidence to
22 the extent that such disclosure or use is appropriate to the
23 proper performance of the official duties of the officer making
24 or receiving the disclosure.
25 (b) Evidence.--Any person who, by any means authorized by
26 this chapter, has obtained knowledge of the contents of any wire
27 or oral communication, or evidence derived therefrom, may
28 disclose such contents or evidence to an investigative or law
29 enforcement officer of the Commonwealth or any of its political
30 subdivisions or any other state or the United States and to the
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1 defendant's counsel and may disclose such contents or evidence
2 while giving testimony under oath or affirmation in any criminal
3 proceeding in any court of this Commonwealth or of another state
4 or of the United States or before any state or Federal grand
5 jury or investigating grand jury.
6 (c) Otherwise authorized personnel.--Any person who, by any
7 means authorized by the laws of another state or the Federal
8 Government, has obtained knowledge of the contents of any wire
9 or oral communication, or evidence derived therefrom, may
10 disclose such contents or evidence to an investigative or law
11 enforcement officer of the Commonwealth or any of its political
12 subdivisions or any other state or the United States and to the
13 defendant's counsel and may disclose such contents or evidence
14 where otherwise admissible while giving testimony under oath or
15 affirmation in any proceeding in any court of this Commonwealth.
16 § 5718. Interception of communications relating to other
17 offenses.
18 When an investigative or law enforcement officer, while
19 engaged in court authorized interceptions of wire or oral
20 communications in the manner authorized herein, intercepts wire
21 or oral communications relating to offenses other than those
22 specified in the order of authorization or approval, the
23 contents thereof, and evidence derived therefrom, may be
24 disclosed or used as provided in section 5717(a) (relating to
25 disclosure or use of contents of wire or oral communications or
26 derivative evidence). Such contents and evidence may be
27 disclosed in testimony under oath or affirmation in any criminal
28 proceeding in any court of this Commonwealth or of another state
29 or of the United States or before any state or Federal grand
30 jury when [in advance of such disclosure and on application to a
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1 court, the court finds that the contents were listed in the
2 final report, pursuant to section 5712(e) (relating to issuance
3 of order and effect), and] authorized or approved by a judge of
4 competent jurisdiction where such judge finds on subsequent
5 application that the contents were otherwise intercepted in
6 accordance with the provisions of this chapter. Such application
7 shall be made as soon as practicable.
8 § 5720. Service of copy of order and application before
9 disclosure of intercepted communication in trial,
10 hearing or proceeding.
11 The contents of any wire or oral communication intercepted in
12 accordance with the provisions of this chapter, or evidence
13 derived therefrom, shall not be disclosed in any trial, hearing,
14 or other adversary proceeding before any court of the
15 Commonwealth unless not less than ten days before [the trial,
16 hearing or proceeding] its use the parties to the action have
17 been served with a copy of the order, the accompanying
18 application and the final report under which the interception
19 was authorized or, in the case of an interception under section
20 5704 (relating to exceptions to prohibition on interception and
21 disclosure of communications), notice of the fact and nature of
22 the interception. The service of inventory, order, application,
23 and final report required by this section may be waived by the
24 court only where it finds that the service is not feasible and
25 that the parties will not be prejudiced by the failure to make
26 the service.
27 § 5721. Suppression of contents of intercepted communication or
28 derivative evidence.
29 (a) Motion to suppress.--Any aggrieved person in any trial,
30 hearing, or other adversary proceeding in or before any court of
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1 common pleas or other authority of this Commonwealth may move to
2 suppress the contents of any intercepted wire or oral
3 communication, or evidence derived therefrom, on any of the
4 following grounds:
5 (1) The communication was unlawfully intercepted.
6 (2) The order of authorization if required is
7 insufficient on its face.
8 (3) The interception unless made in accordance with
9 section 5704 (relating to exceptions to prohibition on
10 interception and disclosure of communications) was not made
11 in conformity with the order of authorization or in
12 accordance with the requirements of section 5712 (relating to
13 issuance of order and effect).
14 (b) Procedure.--The motion shall be made [at least ten days]
15 before the trial, hearing, or other adversary proceeding unless
16 there was no opportunity to make the motion or the moving party
17 was not aware of the grounds for the motion as prescribed by
18 general rules. Motions by co-indictees are to be heard in a
19 single consolidated hearing. The court, upon the filing of such
20 motion by the aggrieved person, shall make available to the
21 aggrieved person or his counsel the intercepted communication
22 and evidence derived therefrom. If the motion is granted, the
23 entire contents of all intercepted wire or oral communications
24 obtained during or after any interception which is determined to
25 be in violation of this chapter under subsection (a) or evidence
26 derived therefrom, shall not be received in evidence in the
27 trial, hearing or other adversary proceeding.
28 (c) Appeal.--In addition to any other right to appeal, the
29 Commonwealth shall have the right to appeal from an order
30 granting a motion to suppress if the official to whom the order
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1 authorizing the intercept was granted shall certify to the court
2 that the appeal is not taken for purposes of delay. The appeal
3 shall be taken in accordance with the provisions of Title 42
4 (judiciary and judicial procedure).
5 Section 2. This act shall take effect in 60 days.
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