PRINTER'S NO. 1203
No. 1045 Session of 1985
INTRODUCED BY SWEET, PICCOLA, DAWIDA, WOGAN, BLAUM, JOHNSON,
D. R. WRIGHT, NOYE, RYBAK, OLIVER, PITTS, STEWART, MORRIS,
STABACK, COY, AFFLERBACH, GREENWOOD, DORR, BUSH, LESCOVITZ,
DALEY, MICOZZIE, FOX, DeLUCA, CLYMER, BALDWIN, E. Z. TAYLOR,
TRELLO, PISTELLA, PRESTON, FARGO, GANNON, BOWSER, FISCHER,
D. W. SNYDER, SAURMAN, MACKOWSKI, MICHLOVIC AND HAGARTY,
APRIL 29, 1985
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 29, 1985
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 (a) Authorization.--Except in cases referred to in
12 subsection (b), the Attorney General, or, during the absence or
13 incapacity of the Attorney General, a deputy attorney general
14 designated in writing by the Attorney General or the district
15 attorney or, during the absence or incapacity of the district
16 attorney, an assistant district attorney designated in writing
1 by the district attorney of the county wherein the interception
2 is to be made, may make written application to any Superior
3 Court judge for an order authorizing the interception of a wire
4 or oral communication by the investigative or law enforcement
5 officers or agency having responsibility for an investigation
6 involving suspected criminal activities when such interception
7 may provide evidence of the commission of any of the following
8 offenses, or may provide evidence aiding in the apprehension of
9 the perpetrator or perpetrators of any of the following
10 offenses:
11 (1) Under this title:
12 Section 911 (relating to corrupt organizations)
13 Section 2501 (relating to criminal homicide)
14 Section 2502 (relating to murder)
15 Section 2503 (relating to voluntary manslaughter)
16 Section 2706 (relating to terroristic threats)
17 Section 2901 (relating to kidnapping)
18 Section 3121 (relating to rape)
19 Section 3123 (relating to involuntary deviate sexual
20 intercourse)
21 Section 3301 (relating to arson and related offenses)
22 Section 3302 (relating to causing or risking
23 catastrophe)
24 Section 3502 (relating to burglary)
25 Section 3701 (relating to robbery)
26 Section 3921 (relating to theft by unlawful taking or
27 disposition)
28 Section 3922 (relating to theft by deception)
29 Section 3923 (relating to theft by extortion)
30 Section 4701 (relating to bribery in official and
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1 political matters)
2 Section 4702 (relating to threats and other improper
3 influence in official and political matters)
4 Section 5512 (relating to lotteries, etc.)
5 Section 5513 (relating to gambling devices, gambling,
6 etc.)
7 Section 5514 (relating to pool selling and
8 bookmaking)
9 (2) Under this title, where such offense is dangerous to
10 life, limb or property and punishable by imprisonment for
11 more than one year:
12 Section 3925 (relating to receiving stolen property)
13 Section 3926 (relating to theft of services)
14 Section 3927 (relating to theft by failure to make
15 required disposition of funds received)
16 Section 4108 (relating to commercial bribery and
17 breach of duty to act disinterestedly)
18 Section 4109 (relating to rigging publicly exhibited
19 contest)
20 Section 4902 (relating to perjury)
21 [Section 4907 (relating to tampering with witnesses
22 and informants)]
23 Section 4909 (relating to witness or informant taking
24 bribe)
25 Section 4911 (relating to tampering with public
26 records or information)
27 Section 4952 (relating to intimidation of witnesses
28 or victims)
29 Section 4953 (relating to retaliation against witness
30 or victim)
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1 Section 5101 (relating to obstructing administration
2 of law or other governmental function)
3 Section 5504 (relating to harassment by communication
4 or address)
5 Section 5902 (relating to prostitution and related
6 offenses)
7 (3) Under [the act of July 22, 1970 (P.L.513, No.178),
8 known as the "Pennsylvania Cigarette Tax Act,"] Article XII
9 of the act of March 4, 1971 (P.L.6, No.2), known as the Tax
10 Reform Code of 1971, where such offense is dangerous to life,
11 limb or property and punishable by imprisonment for more than
12 one year:
13 Section [902] 1272. Sales of unstamped cigarettes.
14 Section [903] 1273. Possession of unstamped
15 cigarettes.
16 Section [904] 1274. Counterfeiting.
17 (4) Any offense set forth under section 13(a) of the act
18 of April 14, 1972 (P.L.233, No.64), known as ["]The
19 Controlled Substance, Drug, Device and Cosmetic Act,["] not
20 including the offense described in clause (31) of section
21 13(a).
22 (5) [Any offense set forth under the act of November 15,
23 1972 (P.L.1227, No.272).
24 (6)] Any conspiracy to commit any of the offenses set
25 forth in this section.
26 (b) Exception.--Whenever the interception of wire or oral
27 communication is to be made by an investigative officer employed
28 by the Pennsylvania Crime Commission, the application for the
29 authorizing order shall be made by the Attorney General.
30 § 5709. Application for order.
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1 Each application for an order of authorization to intercept a
2 wire or oral communication shall be made in writing upon the
3 personal oath or affirmation of the Attorney General or his
4 designee or a district attorney or his designee of the county
5 wherein the interception is to be made and shall contain all of
6 the following:
7 (1) A statement of the authority of the applicant to
8 make such application.
9 (2) A statement of the identity and qualifications of
10 the investigative or law enforcement officers or agency for
11 whom the authority to intercept a wire or oral communication
12 is sought.
13 (3) A sworn statement by the investigative or law
14 enforcement officer who has knowledge of relevant information
15 justifying the application, which shall include:
16 (i) The identity of the particular person, if known,
17 committing the offense and whose communications are to be
18 intercepted.
19 (ii) The details as to the particular offense that
20 has been, is being, or is about to be committed.
21 (iii) The particular type of communication to be
22 intercepted.
23 (iv) A showing that there is probable cause to
24 believe that such communication will be communicated on
25 the wire communication facility involved or at the
26 particular place where the oral communication is to be
27 intercepted.
28 (v) The character and location of the particular
29 wire communication facilities involved or the particular
30 place where the oral communication is to be intercepted.
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1 (vi) A statement of the period of time for which the
2 interception is required to be maintained, and, if the
3 character of the investigation is such that the
4 authorization for interception should not automatically
5 terminate when the described type of communication has
6 been first obtained, a particular statement of facts
7 establishing probable cause to believe that additional
8 communications of the same type will occur thereafter.
9 (vii) A particular statement of facts showing that
10 other normal investigative procedures with respect to the
11 offense have been tried and have failed, or reasonably
12 appear to be unlikely to succeed if tried or are too
13 dangerous to employ.
14 (4) Where the application is for the renewal or
15 extension of an order, a particular statement of facts
16 showing the results thus far obtained from the interception,
17 or a reasonable explanation of the failure to obtain such
18 results.
19 (5) A complete statement of the facts concerning all
20 previous applications, known to the applicant made to any
21 court for authorization to intercept a wire or oral
22 communication involving any of the same facilities or places
23 specified in the application or involving any person whose
24 communication is to be intercepted, and the action taken by
25 the court on each such application.
26 (6) A proposed order of authorization for consideration
27 by the judge.
28 (7) Such additional testimony or documentary evidence in
29 support of the application as the judge may require.
30 § 5712. Issuance of order and effect.
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1 * * *
2 (e) Final report.--Whenever a surveillance is authorized
3 pursuant to this section, a complete written list of names of
4 participants in the offenses and evidence of offenses
5 discovered, including those not stated in the application for
6 order, shall be filed with the court at the time the authorized
7 surveillance is terminated.
8 * * *
9 § 5713. Emergency situations.
10 (a) Application.--Whenever, upon informal application by the
11 Attorney General or a designated attorney general authorized in
12 writing by the Attorney General or a district attorney or an
13 assistant district attorney authorized in writing by the
14 district attorney of a county wherein the interception is to be
15 made, a judge determines there are grounds upon which an order
16 could be issued pursuant to this chapter, and that an emergency
17 situation exists with respect to the investigation of an offense
18 designated in section 5708 (relating to order authorizing
19 interception of wire or oral communications), and involving
20 conspiratorial activities characteristic of organized crime
21 [and] or a substantial danger to life or limb, dictating
22 authorization for immediate interception of wire or oral
23 communication before an application for an order could with due
24 diligence be submitted to him and acted upon, the judge may
25 grant oral approval for such interception without an order,
26 conditioned upon the filing with him, within 48 hours
27 thereafter, of an application for an order which, if granted,
28 shall recite the oral approval and be retroactive to the time of
29 such oral approval. Such interception shall immediately
30 terminate when the communication sought is obtained or when the
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1 application for an order is denied, whichever is earlier. In the
2 event no application for an order is made, the content of any
3 wire or oral communication intercepted shall be treated as
4 having been obtained in violation of this chapter.
5 * * *
6 § 5715. Sealing of applications, orders and supporting papers.
7 Applications made, final reports, and orders granted pursuant
8 to this chapter and supporting papers and monitor's records
9 shall be sealed by the court and shall be held in custody as the
10 court shall direct and shall not be destroyed except on order of
11 the court and in any event shall be kept for ten years. They may
12 be disclosed only upon a showing of good cause before a court of
13 competent jurisdiction except that any investigative or law
14 enforcement officer may disclose such applications, orders and
15 supporting papers and monitor's records to investigative or law
16 enforcement officers of this or another state, any of its
17 political subdivisions, or of the United States to the extent
18 that such disclosure is appropriate to the proper performance of
19 the official duties of the officer making or receiving the
20 disclosure. In addition to any remedies and penalties provided
21 by this chapter, any violation of the provisions of this section
22 may be punished as contempt of the court.
23 § 5717. Disclosure or use of contents of wire or oral
24 communications or derivative evidence.
25 (a) Investigative activities.--Any investigative or law
26 enforcement officer who, by any means authorized by this
27 chapter, has obtained knowledge of the contents of any wire or
28 oral communication, or evidence derived therefrom, may disclose
29 such contents or evidence to another investigative or law
30 enforcement officer of the Commonwealth or any of its political
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1 subdivisions or any other state or the United States and to the
2 defendant's counsel or make use of such contents or evidence to
3 the extent that such disclosure or use is appropriate to the
4 proper performance of the official duties of the officer making
5 or receiving the disclosure.
6 (b) Evidence.--Any person who, by any means authorized by
7 this chapter, has obtained knowledge of the contents of any wire
8 or oral communication, or evidence derived therefrom, may
9 disclose such contents or evidence to an investigative or law
10 enforcement officer of the Commonwealth or any of its political
11 subdivisions or any other state or the United States and to the
12 defendant's counsel and may disclose such contents or evidence
13 while giving testimony under oath or affirmation in any criminal
14 proceeding in any court of this Commonwealth or of another state
15 or of the United States or before any state or Federal grand
16 jury or investigating grand jury.
17 (c) Otherwise authorized personnel.--Any person who, by any
18 means authorized by the laws of another state or the Federal
19 Government, has obtained knowledge of the contents of any wire
20 or oral communication, or evidence derived therefrom, may
21 disclose such contents or evidence to an investigative or law
22 enforcement officer of the Commonwealth or any of its political
23 subdivisions or any other state or the United States and to the
24 defendant's counsel and may disclose such contents or evidence
25 where otherwise admissible while giving testimony under oath or
26 affirmation in any proceeding in any court of this Commonwealth.
27 § 5718. Interception of communications relating to other
28 offenses.
29 When an investigative or law enforcement officer, while
30 engaged in court authorized interceptions of wire or oral
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1 communications in the manner authorized herein, intercepts wire
2 or oral communications relating to offenses other than those
3 specified in the order of authorization or approval, the
4 contents thereof, and evidence derived therefrom, may be
5 disclosed or used as provided in section 5717(a) (relating to
6 disclosure or use of contents of wire or oral communications or
7 derivative evidence). Such contents and evidence may be
8 disclosed in testimony under oath or affirmation in any criminal
9 proceeding in any court of this Commonwealth or of another state
10 or of the United States or before any state or Federal grand
11 jury when [in advance of such disclosure and on application to a
12 court, the court finds that the contents were listed in the
13 final report, pursuant to section 5712(e) (relating to issuance
14 of order and effect), and] authorized or approved by a judge of
15 competent jurisdiction where such judge finds on subsequent
16 application that the contents were otherwise intercepted in
17 accordance with the provisions of this chapter. Such application
18 shall be made as soon as practicable.
19 § 5720. Service of copy of order and application before
20 disclosure of intercepted communication in trial,
21 hearing or proceeding.
22 The contents of any wire or oral communication intercepted in
23 accordance with the provisions of this chapter, or evidence
24 derived therefrom, shall not be disclosed in any trial, hearing,
25 or other adversary proceeding before any court of the
26 Commonwealth unless, not less than ten days before [the trial,
27 hearing or proceeding] its use, the parties to the action have
28 been served with a copy of the order, the accompanying
29 application and the final report under which the interception
30 was authorized or, in the case of an interception under section
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1 5704 (relating to exceptions to prohibition on interception and
2 disclosure of communications), notice of the fact and nature of
3 the interception. The service of inventory, order, application,
4 and final report required by this section may be waived by the
5 court only where it finds that the service is not feasible and
6 that the parties will not be prejudiced by the failure to make
7 the service.
8 § 5721. Suppression of contents of intercepted communication or
9 derivative evidence.
10 (a) Motion to suppress.--Any aggrieved person in any trial,
11 hearing, or other adversary proceeding in or before any court of
12 common pleas or other authority of this Commonwealth may move to
13 suppress the contents of any intercepted wire or oral
14 communication, or evidence derived therefrom, on any of the
15 following grounds:
16 (1) The communication was unlawfully intercepted.
17 (2) The order of authorization if required is
18 insufficient on its face.
19 (3) The interception unless made in accordance with
20 section 5704 (relating to exceptions to prohibition on
21 interception and disclosure of communications) was not made
22 in conformity with the order of authorization or in
23 accordance with the requirements of section 5712 (relating to
24 issuance of order and effect).
25 (b) Procedure.--The motion shall be made [at least ten days]
26 before the trial, hearing, or other adversary proceeding unless
27 there was no opportunity to make the motion or the moving party
28 was not aware of the grounds for the motion as prescribed by
29 general rules. Motions by co-indictees are to be heard in a
30 single consolidated hearing. The court, upon the filing of such
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1 motion by the aggrieved person, shall make available to the
2 aggrieved person or his counsel the intercepted communication
3 and evidence derived therefrom. If the motion is granted, the
4 entire contents of all intercepted wire or oral communications
5 obtained during or after any interception which is determined to
6 be in violation of this chapter under subsection (a) or evidence
7 derived therefrom, shall not be received in evidence in the
8 trial, hearing or other adversary proceeding.
9 (c) Appeal.--In addition to any other right to appeal, the
10 Commonwealth shall have the right to appeal from an order
11 granting a motion to suppress if the official to whom the order
12 authorizing the intercept was granted shall certify to the court
13 that the appeal is not taken for purposes of delay. The appeal
14 shall be taken in accordance with the provisions of Title 42
15 (relating to judiciary and judicial procedure).
16 Section 2. This act shall take effect in 60 days.
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