PRINTER'S NO. 3474
No. 2601 Session of 1978
INTRODUCED BY RHODES, SCIRICA, IRVIS, SELTZER, BERSON, SPENCER,
RYAN, BROWN, DeWEESE, LEVIN, PRATT, OLIVER, WILLIAMS, FISHER,
GREENLEAF, HASKELL, W. D. HUTCHINSON, MOEHLMANN, WAGNER,
BENNETT, BURNS, CALTAGIRONE, COWELL, DAVIES, DORR, FEE,
FISCHER, FREIND, GALLAGHER, GLEESON, GRIECO, HARPER,
D. S. HAYES, HOEFFEL, KERNICK, McCLATCHY, MADIGAN, MEBUS,
MELUSKEY, O'KEEFE, PYLES, QUEST, REED, L. E. SMITH,
STAPLETON, SWEET, TENAGLIO, WEIDNER AND WISE, JUNE 21, 1978
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 21, 1978
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, making certain repeals and adding new
3 provisions relating to wiretapping and electronic
4 surveillance.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Chapter 57 of Title 18, act of November 25, 1970
8 (P.L.707, No.230), known as the Pennsylvania Consolidated
9 Statutes, is repealed.
10 Section 2. Title 18 is amended by adding a chapter to read:
11 CHAPTER 57
12 WIRETAPPING AND ELECTRONIC SURVEILLANCE
13 Sec.
14 5701. Short title.
15 5702. Definitions.
16 5703. Interception, disclosure or use of wire or oral
1 communications.
2 5704. Exceptions to prohibition on interception and disclosure
3 of communications.
4 5705. Possession, sale, distribution, manufacture or
5 advertisement of intercepting devices.
6 5706. Exceptions to prohibitions in possession, sale,
7 distribution, manufacture or advertisement of
8 intercepting devices.
9 5707. Seizure and forfeiture of intercepting devices.
10 5708. Order authorizing interception of wire or oral
11 communications.
12 5709. Application for order.
13 5710. Grounds for entry of order.
14 5711. Privileged communications.
15 5712. Issuance of order and effect.
16 5713. Emergency situations.
17 5714. Recording of intercepted communications.
18 5715. Sealing of applications, orders and supporting papers.
19 5716. Service of inventory and inspection of intercepted
20 communications.
21 5717. Disclosure or use of contents of wire or oral
22 communications or derivative evidence.
23 5718. Interception of communications relating to other
24 offenses.
25 5719. Unlawful use or disclosure of existence of order
26 concerning intercepted communication.
27 5720. Service of copy of order and application before
28 disclosure of intercepted communication in trial,
29 hearing or proceeding.
30 5721. Suppression of contents of intercepted communication or
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1 derivative evidence.
2 5722. Report by issuing or denying judge.
3 5723. Annual reports and records of Attorney General and
4 district attorneys.
5 5724. Training.
6 5725. Rules and regulations.
7 5726. Civil action for unlawful interception, disclosure
8 or use of wire or oral communication.
9 5727. Action for removal from office or employment.
10 5728. Good faith reliance on a court order as defense.
11 § 5701. Short title.
12 This chapter shall be known and may be cited as the
13 "Wiretapping and Electronic Surveillance Control Act."
14 § 5702. Definitions.
15 As used in this chapter, the following words and phrases
16 shall have the meanings given to them in this section unless the
17 context clearly indicates otherwise:
18 "Aggrieved person." A person who was a party to any
19 intercepted wire or oral communication or a person against whom
20 the interception was directed.
21 "Communication common carrier." Any person engaged as a
22 common carrier for hire, in intrastate, interstate or foreign
23 communication by wire or radio or in intrastate, interstate or
24 foreign radio transmission of energy; however, a person engaged
25 in radio broadcasting shall not, while so engaged, be deemed a
26 common carrier.
27 "Contents." As used with respect to any wire or oral
28 communication, is any information concerning the identity of the
29 parties to such communication or the existence, substance,
30 purport, or meaning of that communication.
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1 "Court." The Commonwealth Court.
2 "In-progress trace." The determination of the origin of a
3 telephonic communication to a known telephone during an
4 interception.
5 "Intercept." Aural acquisition of the contents of any wire
6 or oral communication through the use of any electronic,
7 mechanical or other device.
8 "Intercepting device." Any device or apparatus, including an
9 induction coil, that can be used to intercept a wire or oral
10 communication other than:
11 (1) any telephone or telegraph instrument, equipment or
12 facility, or any component thereof, furnished to the
13 subscriber or user by a communication common carrier in the
14 ordinary course of its business, or purchased by any person,
15 and being used by the subscriber, user, or person in the
16 ordinary course of its business; or being used by a
17 communication common carrier in the ordinary course of its
18 business, or by an investigation or law enforcement officer
19 in the ordinary course of his duties; or
20 (2) a hearing aid or similar device being used to
21 correct sub-normal hearing to not better than normal.
22 "Investigative or law enforcement officer." Any officer of
23 the United States or of the Commonwealth or political
24 subdivision thereof, who is empowered by law to conduct
25 investigations of or to make arrests for offenses enumerated in
26 this chapter, and any attorney authorized by law to prosecute or
27 participate in the prosecution of such offense. The term shall
28 include, but not be limited to, employees of the Pennsylvania
29 Crime Commission, authorized to investigate crimes enumerated in
30 § 5708 (relating to order authorizing interception of wire or
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1 oral communications).
2 "Judge." As referring to a judge authorized to receive
3 applications for, and to enter, orders authorizing interceptions
4 of wire or oral communications pursuant to this chapter, any
5 judge of the Commonwealth Court.
6 "Oral communication." Any oral communications uttered by a
7 person possessing an expectation that such communication is not
8 subject to interception under circumstances justifying such
9 expectation.
10 "Organized crime."
11 (1) The unlawful activity of an association trafficking
12 in illegal goods or services, including but not limited to,
13 gambling, prostitution, loan sharking, narcotics, labor
14 racketeering, or other unlawful activities; or
15 (2) Any continuing criminal conspiracy or other unlawful
16 practice which has as its objective,
17 (i) large economic gain through fraudulent
18 practices; or
19 (ii) improper governmental influence.
20 "Person." Any employee, or agent of the United States or any
21 state or political subdivision thereof, and any individual,
22 partnership, association, joint stock company, trust or
23 corporation.
24 "Wire communications." Any communication made in whole or in
25 part through the use of facilities for the transmission of
26 communications by wire, cable or other like connection between
27 the point of origin and the point of reception furnished or
28 operated by a telephone, telegraph or radio company for hire as
29 a communication common carrier.
30 § 5703. Interception, disclosure or use of wire or oral
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1 communications.
2 Except as otherwise provided in § 5704 (relating to
3 exceptions to prohibition on interception and disclosure of
4 communications), a person is guilty of a felony of the third
5 degree if he:
6 (1) willfully intercepts, endeavors to intercept, or
7 procures any other person to intercept or endeavor to
8 intercept any wire or oral communication;
9 (2) willfully discloses or endeavors to disclose to any
10 other person the contents of any wire or oral communication,
11 or evidence derived therefrom, knowing or having reason to
12 know that the information was obtained through the
13 interception of a wire or oral communication; or
14 (3) willfully uses or endeavors to use the contents of
15 any wire or oral communications, or evidence derived
16 therefrom, knowing or having reason to know, that the
17 information was obtained through the interception of a wire
18 or oral communication.
19 § 5704. Exceptions to prohibition on interception and
20 disclosure of communications.
21 It shall not be unlawful under this chapter for:
22 (1) An operator of a switchboard, or an officer, agent
23 or employee of a communication common carrier, whose
24 facilities are used in the transmission of a wire
25 communication, to intercept, disclose or use that
26 communication in the normal course of his employment while
27 engaged in any activity which is a necessary incident to the
28 rendition of his service or to the protection of the rights
29 or property of the carrier of such communication. However, no
30 communication common carrier shall utilize service observing
19780H2601B3474 - 6 -
1 or random monitoring except for mechanical or service quality
2 control checks.
3 (2) Any investigative or law enforcement officer or any
4 person acting at the direction or request of an investigative
5 or law enforcement officer to intercept a wire or oral
6 communication involving suspected criminal activities where:
7 (i) such officer or person is a party to the
8 communication; or
9 (ii) one of the parties to the communication has
10 given prior consent to such interception.
11 However, no such interception shall be made unless the Attorney
12 General or a deputy Attorney General designated in writing by
13 the Attorney General, or the district attorney, or an assistant
14 district attorney designated in writing by the district
15 attorney, of the county wherein the interception is to be made,
16 has reviewed the facts and is satisfied that the consent is
17 voluntary and has given prior approval for the interception.
18 (3) Police and emergency communications systems to
19 record telephone communications coming into and going out of
20 the communications system of a police department, fire
21 department, or county emergency center, if:
22 (i) the telephones thereof are limited to the
23 exclusive use of the communication system for
24 administrative purposes and provided the communication
25 system employs a periodic warning which indicates to the
26 parties to the conversation that the call is being
27 recorded;
28 (ii) all recordings made pursuant to this clause,
29 all notes made therefrom, and all transcriptions thereof
30 shall be destroyed within two years after said call has
19780H2601B3474 - 7 -
1 been recorded, except as required with regard to a
2 pending matter.
3 (4) A person, to intercept a wire or oral communication,
4 where all parties to the communication have given prior
5 consent to such interception.
6 § 5705. Possession, sale, distribution, manufacture or
7 advertisement of intercepting devices.
8 Except as otherwise specifically provided in section 5706
9 (relating to exceptions to prohibitions in possession, sale,
10 distribution, manufacture or advertisement of intercepting
11 devices), a person is guilty of a felony of the third degree if
12 he does any of the following:
13 (1) Willfully possesses an intercepting device, knowing
14 or having reason to know that the design of such device
15 renders it primarily useful for the purpose of the
16 surreptitious interception of a wire or oral communication.
17 (2) Willfully sells, transfers or distributes an
18 intercepting device, knowing or having reason to know that
19 the design of such device renders it primarily useful for the
20 purpose of the surreptitious interception of a wire or oral
21 communication.
22 (3) Willfully manufactures or assembles an intercepting
23 device, knowing or having reason to know that the design of
24 such device renders it primarily useful for the purpose of
25 the surreptitious interception of a wire or oral
26 communication.
27 (4) Willfully places in any newspaper, magazine,
28 handbill, or other publication any advertisement of any
29 intercepting device, knowing or having reason to know that
30 the design of such device renders it primarily useful for the
19780H2601B3474 - 8 -
1 purpose of the surreptitious interception of a wire or oral
2 communication or of any intercepting device where such
3 advertisement promotes the use of such device for the purpose
4 of the surreptitious interception of a wire or oral
5 communication.
6 § 5706. Exceptions to prohibitions in possession, sale,
7 distribution, manufacture or advertisement of
8 intercepting devices.
9 It shall not be unlawful under this chapter for:
10 (1) a communication common carrier or an officer, agent
11 or employee of, or a person under contract with a
12 communication common carrier, in the usual course of the
13 communication common carrier's business; or
14 (2) a person under contract with the United States, a
15 state or a political subdivision thereof, or an officer,
16 agent or employee of a state or a political subdivision
17 thereof,
18 to possess, sell, distribute, manufacture, assemble or advertise
19 any intercepting device, while acting in furtherance of the
20 appropriate activities of the United States, a state or a
21 political subdivision thereof or a communication common carrier.
22 § 5707. Seizure and forfeiture of intercepting devices.
23 Any intercepting device possessed, used, sent, distributed,
24 manufactured, or assembled in violation of this chapter is
25 hereby declared to be contraband and may be seized and forfeited
26 to the Commonwealth.
27 § 5708. Order authorizing interception of wire or oral
28 communications.
29 The Attorney General or the district attorney of the county
30 wherein the interception is to be made, may make written
19780H2601B3474 - 9 -
1 application to any Commonwealth Court judge for an order
2 authorizing the interception of a wire or oral communication by
3 the investigative or law enforcement officers or agency having
4 responsibility for an investigation involving suspected criminal
5 activities when such interception may provide evidence of the
6 commission of any of the following offenses, or may provide
7 evidence aiding in the apprehension of the perpetrator or
8 perpetrators of any of the following 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 5513 (relating to gambling devices, gambling,
2 etc.)
3 Section 5514 (relating to pool selling and
4 bookmaking)
5 (2) Under this title, where such offense is dangerous to
6 life, limb or property and punishable by imprisonment for
7 more than one year:
8 Section 3925 (relating to receiving stolen property)
9 Section 3926 (relating to theft of services)
10 Section 3927 (relating to theft by failure to make
11 required disposition of funds received)
12 Section 4108 (relating to commercial bribery and
13 breach of duty to act disinterestedly)
14 Section 4109 (relating to rigging publicly exhibited
15 contest)
16 Section 4902 (relating to perjury)
17 Section 4907 (relating to tampering with witnesses
18 and informants)
19 Section 4909 (relating to witness or informant taking
20 bribe)
21 Section 4911 (relating to tampering with public
22 records or information)
23 Section 5101 (relating to obstructing administration
24 of law or other governmental function)
25 Section 5504 (relating to harassment by communication
26 or address)
27 Section 5902 (relating to prostitution and related
28 offenses)
29 (3) Under the act of July 22, 1970 (P.L.513, No.178),
30 known as the "Pennsylvania Cigarette Tax Act," where such
19780H2601B3474 - 11 -
1 offense is dangerous to life, limb or property and punishable
2 by imprisonment for more than one year:
3 Section 902 Sales of Unstamped Cigarettes
4 Section 903 Possession of Unstamped Cigarettes
5 Section 904 Counterfeiting
6 (4) Any offense set forth under section 13(a) of the act
7 of April 14, 1972 (P.L.233, No.64), known as "The Controlled
8 Substance, Drug, Device and Cosmetic Act," not including the
9 offense described in clause (31) of section 13(a).
10 (5) Any offense set forth under the act of November 15,
11 1972 (P.L.1227, No.272).
12 (6) Any conspiracy to commit any of the offenses set
13 forth in this section.
14 § 5709. Application for order.
15 Each application for an order of authorization to intercept a
16 wire or oral communication shall be made in writing upon the
17 personal oath or affirmation of the Attorney General or a
18 district attorney of the county wherein the interception is to
19 be made and shall contain all of the following:
20 (1) A statement of the authority of the applicant to
21 make such application.
22 (2) A statement of the identity and qualifications of
23 the investigative or law enforcement officers or agency for
24 whom the authority to intercept a wire or oral communication
25 is sought.
26 (3) A sworn statement by the investigative or law
27 enforcement officer who has knowledge of relevant information
28 justifying the application, which shall include:
29 (i) The identity of the particular person, if known,
30 committing the offense and whose communications are to be
19780H2601B3474 - 12 -
1 intercepted.
2 (ii) The details as to the particular offense that
3 has been, is being, or is about to be committed.
4 (iii) The particular type of communication to be
5 intercepted.
6 (iv) A showing that there is probable cause to
7 believe that such communication will be communicated on
8 the wire communication facility involved or at the
9 particular place where the oral communication is to be
10 intercepted.
11 (v) The character and location of the particular
12 wire communication facilities involved or the particular
13 place where the oral communication is to be intercepted.
14 (vi) A statement of the period of time for which the
15 interception is required to be maintained, and, if the
16 character of the investigation is such that the
17 authorization for interception should not automatically
18 terminate when the described type of communication has
19 been first obtained, a particular statement of facts
20 establishing probable cause to believe that additional
21 communications of the same type will occur thereafter.
22 (vii) A particular statement of facts showing that
23 other normal investigative procedures with respect to the
24 offense have been tried and have failed, or reasonably
25 appear to be unlikely to succeed if tried or are too
26 dangerous to employ.
27 (4) Where the application is for the renewal or
28 extension of an order, a particular statement of facts
29 showing the results thus far obtained from the interception,
30 or a reasonable explanation of the failure to obtain such
19780H2601B3474 - 13 -
1 results.
2 (5) A complete statement of the facts concerning all
3 previous applications, known to the applicant made to any
4 court for authorization to intercept a wire or oral
5 communication involving any of the same facilities or places
6 specified in the application or involving any person whose
7 communication is to be intercepted, and the action taken by
8 the court on each such application.
9 (6) Such additional testimony or documentary evidence in
10 support of the application as the judge may require.
11 § 5710. Grounds for entry of order.
12 (a) Application.--Upon consideration of an application, the
13 judge may enter an ex parte order, as requested or as modified,
14 authorizing the interception of a wire or oral communication
15 anywhere within the Commonwealth, if the judge determines on the
16 basis of the facts submitted by the applicant that there is
17 probable cause for belief that the following conditions exist:
18 (1) The person whose communication is to be intercepted
19 is engaging or was engaged over a period of time as a part of
20 a continuing criminal activity or is committing, has or had
21 committed or is about to commit an offense as provided in
22 section 5708 (relating to order authorizing interception of
23 wire or oral communications).
24 (2) Particular communications concerning such offense
25 may be obtained through such interception.
26 (3) Normal investigative procedures with respect to such
27 offense have been tried and have failed or reasonably appear
28 to be unlikely to succeed if tried or to be too dangerous to
29 employ.
30 (4) The facilities from which, or the place where, the
19780H2601B3474 - 14 -
1 wire or oral communications are to be intercepted, are, have
2 been, or are about to be used, in connection with the
3 commission of such offense, or are leased to, listed in the
4 name of, or commonly used by, such individual.
5 (5) The investigative or law enforcement officers or
6 agency to be authorized to intercept the wire or oral
7 communication are qualified by training and experience to
8 execute the interception sought, and are certified under
9 section 5724 (relating to training).
10 (6) In the case of an application, other than a renewal
11 or extension, for an order to intercept a communication of a
12 person or on a facility which was the subject of a previous
13 order authorizing interception, the application is based upon
14 new evidence or information different from and in addition to
15 the evidence or information offered to support the prior
16 order, regardless of whether such evidence was derived from
17 prior interceptions or from other sources.
18 (b) Corroborative evidence.--As part of the consideration of
19 an application in which there is no corroborative evidence
20 offered, the judge shall inquire in camera as to the identity of
21 any informants or any other additional information concerning
22 the basis upon which the investigative or law enforcement
23 officer or agency has applied for the order of authorization
24 which the judge finds relevant in order to determine if there is
25 probable cause pursuant to this section.
26 § 5711. Privileged communications.
27 No otherwise privileged communication intercepted in
28 accordance with, or in violation of, the provisions of this
29 chapter shall lose its privileged character.
30 § 5712. Issuance of order and effect.
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1 (a) Authorizing orders.--Each order authorizing the
2 interception of any wire or oral communication shall state the
3 following:
4 (1) The identity of the investigative or law enforcement
5 officers or agency to whom the authority to intercept a wire
6 or oral communication is given and the identity of the
7 official who authorized the application.
8 (2) The identity of, or a particular description of, the
9 person, if known, whose communications are to be intercepted.
10 (3) The character and location of the particular
11 communication facilities as to which, or the particular place
12 of the communication as to which, authority to intercept is
13 granted.
14 (4) A particular description of the type of the
15 communication to be intercepted and a statement of the
16 particular offense to which it relates.
17 (5) The period of time during which such interception is
18 authorized, including a statement as to whether or not the
19 interception shall automatically terminate when the described
20 communication has been first obtained.
21 (b) Time limits.--No order entered under this section shall
22 authorize the interception of any wire or oral communication for
23 a period of time in excess of that necessary under the
24 circumstances. Every order entered under this section shall
25 require that such interception begin and terminate as soon as
26 practicable and be conducted in such a manner as to minimize or
27 eliminate the interception of such communications not otherwise
28 subject to interception under this act by making reasonable
29 efforts, whenever possible, to reduce the hours of interception
30 authorized by said order. Except as provided in subsection (c),
19780H2601B3474 - 16 -
1 no order entered under this section shall authorize the
2 interception of wire or oral communications for any period
3 exceeding 20 days. An extension or renewal of such an order may
4 be granted for one additional period of not more than 20 days.
5 No extension or renewal shall be granted unless an application
6 for it is made in accordance with this section, and the judge
7 makes the findings required by section 5710 (relating to grounds
8 for entry of order).
9 (c) Continuing conspiracy, organized crime and political
10 corruption.--Notwithstanding subsection (b), extensions of 30
11 days each may be granted if, upon application, the judge makes
12 the findings required by section 5710, and in addition finds
13 probable cause to believe that the crime being investigated is
14 related to organized crime.
15 (d) Progress reports.--Whenever an order authorizing an
16 interception is entered, the order may require reports to be
17 made to the judge who issued the order showing what progress has
18 been made toward achievement of the authorized objective and the
19 need for continued interception. The reports shall be made at
20 such intervals as the judge may require.
21 (e) Final report.--Whenever a surveillance is authorized
22 pursuant to this section, a complete written list of names of
23 participants and evidence of offenses discovered, including
24 those not stated in the application for order, shall be filed
25 with the court at the time the authorized surveillance is
26 terminated.
27 (f) Assistance.--An order authorizing the interception of a
28 wire or oral communication shall, upon request of the applicant,
29 direct that a communication common carrier shall furnish the
30 applicant forthwith all information, facilities and technical
19780H2601B3474 - 17 -
1 assistance necessary to accomplish the interception
2 unobtrusively and with a minimum of interference with the
3 services that such carrier is affording the person whose
4 communications are to be intercepted. The obligation of a
5 communication common carrier under such an order may include but
6 is not limited to conducting an in-progress trace during an
7 interception. Any communication common carrier furnishing such
8 facilities or technical assistance shall be compensated
9 therefore by the applicant at the prevailing rates. Said carrier
10 shall be immune from civil and criminal liability for any
11 assistance rendered to the applicant pursuant to this section.
12 (g) Entry by law enforcement officers.--An order authorizing
13 the interception of a wire or oral communication may upon
14 request of the applicant authorize the entry of premises
15 specified in subsection (a)(3), by the law enforcement officers
16 specified in subsection (a)(1), for the purpose of installing an
17 intercepting device or devices provided that such entry is
18 reasonably necessary to accomplish the purposes of this chapter.
19 § 5713. Emergency situations.
20 (a) Application.--Whenever, upon informal application by the
21 Attorney General or a designated Attorney General authorized in
22 writing by the Attorney General or a district attorney or an
23 assistant district attorney authorized in writing by the
24 district attorney of a county wherein the exception is to be
25 made, a judge determines there are grounds upon which an order
26 could be issued pursuant to this chapter, and that an emergency
27 situation exists with respect to the investigation of an offense
28 designated in section 5708 (relating to order authorizing
29 interception of wire or oral communications), and involving a
30 felony or a substantial danger to life or limb, dictating
19780H2601B3474 - 18 -
1 authorization for immediate interception of wire or oral
2 communication before an application for an order could with due
3 diligence be submitted to him and acted upon, the judge may
4 grant verbal approval for such interception without an order,
5 conditioned upon the filing with him, within 48 hours
6 thereafter, or an application for an order which, if granted,
7 shall recite the verbal approval and be retroactive to the time
8 of such verbal approval. Such interception shall immediately
9 terminate when the communication sought is obtained or when the
10 application for an order is denied, whichever is earlier. In the
11 event no application for an order is made, the content of any
12 wire or oral communication intercepted shall be treated as
13 having been obtained in violation of this chapter.
14 (b) Further proceedings.--In the event no application is
15 made or an application made pursuant to this section is denied,
16 the court shall cause an inventory to be served as provided in
17 section 5716 (relating to service of inventory and inspection of
18 intercepted communications) and shall require the tape or other
19 recording of the intercepted communication to be delivered to,
20 and sealed by, the court. Such evidence shall be retained by the
21 court in accordance with section 5714 (relating to recording of
22 intercepted communications) and the same shall not be used or
23 disclosed in any legal proceeding except in a civil action
24 brought by an aggrieved person pursuant to section 5726
25 (relating to civil action for unlawful interception, disclosure
26 or use of wire or oral communication) or as otherwise authorized
27 by court order. In addition to other remedies and penalties
28 provided by this chapter, failure to effect delivery of any such
29 tape or other recording shall be punishable as contempt by the
30 court directing such delivery. Evidence of verbal authorization
19780H2601B3474 - 19 -
1 to intercept an oral or wire communication shall be a defense to
2 any charge against the investigating or law enforcement officer
3 for engaging in unlawful interception.
4 § 5714. Recording of intercepted communications.
5 (a) Recording and monitoring.--Any wire or oral
6 communication intercepted in accordance with this chapter shall,
7 if practicable, be recorded by tape or other comparable method.
8 The recording shall be done in such a way as will protect it
9 from editing or other alteration. Whenever an interception is
10 being monitored, the monitor shall be an investigative or law
11 enforcement officer, and where practicable, keep a signed,
12 written record which shall include the following:
13 (1) The date and hours of surveillance.
14 (2) The time and duration of each intercepted
15 communication.
16 (3) The participant, if known, in each intercepted
17 conversation.
18 (4) A summary of the content of each intercepted
19 communication.
20 (b) Sealing of recordings.--Immediately upon the expiration
21 of the order or extensions or renewals thereof, all monitor's
22 records, tapes and other recordings shall be transferred to the
23 judge issuing the order and sealed under his direction. Custody
24 of the tapes, or other recordings shall be maintained wherever
25 the court directs. They shall not be destroyed except upon an
26 order of the court and in any event shall be kept for ten years.
27 Duplicate tapes, or other recordings may be made for disclosure
28 or use pursuant to section 5717 (relating to disclosure or use
29 of contents of wire or oral communications or derivative
30 evidence). The presence of the seal provided by this section, or
19780H2601B3474 - 20 -
1 a satisfactory explanation for its absence, shall be a
2 prerequisite for the disclosure of the contents of any wire or
3 oral communication, or evidence derived therefrom, under section
4 5717(b).
5 § 5715. Sealing of applications, orders and supporting papers.
6 Applications made, final reports, and orders granted pursuant
7 to this chapter and supporting papers and monitor's records
8 shall be sealed by the court and shall be held in custody as the
9 court shall direct and shall not be destroyed except on order of
10 the court and in any event shall be kept for ten years. They may
11 be disclosed only upon a showing of good cause before a court of
12 competent jurisdiction except that any investigative or law
13 enforcement officer may disclose such applications, orders and
14 supporting papers to investigative or law enforcement officers
15 of this or another state, any of its political subdivisions, or
16 of the United States to the extent that such disclosure is
17 appropriate to the proper performance of the official duties of
18 the officer making or receiving the disclosure. In addition to
19 any remedies and penalties provided by this chapter, any
20 violation of the provisions of this section may be punished as
21 contempt of the court.
22 § 5716. Service of inventory and inspection of intercepted
23 communications.
24 (a) Service of inventory.--Within a reasonable time but not
25 later than 90 days after the termination of the period of the
26 order or of extensions or renewals thereof, or the date of the
27 denial of an order applied for under section 5713 (relating to
28 emergency situations), the issuing or denying judge shall cause
29 to be served on the persons named in the order, application, or
30 final report an inventory which shall include the following:
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1 (1) Notice of the entry of the order or the application
2 for an order denied under section 5713.
3 (2) The date of the entry of the order or the denial of
4 an order applied for under section 5713.
5 (3) The period of authorized or disapproved
6 interception.
7 (4) The fact that during the period wire or oral
8 communications were or were not intercepted.
9 (b) Postponement.--On an ex parte showing of good cause to
10 the issuing or denying judge the service of the inventory
11 required by this section may be postponed for a period of 30
12 days. Additional postponements may be granted for periods of not
13 more than 30 days on an ex parte showing of good cause to the
14 issuing or denying judge.
15 (c) Inspections.--The court, upon the filing of a motion,
16 shall make available to such persons or their attorneys for
17 inspection, the intercepted communications and monitor's records
18 to which the movant was a participant and the applications and
19 orders.
20 § 5717. Disclosure or use of contents of wire or oral
21 communications or derivative evidence.
22 (a) Investigative activities.--Any investigative or law
23 enforcement officer who, by any means authorized by this
24 chapter, has obtained knowledge of the contents of any wire or
25 oral communication, or evidence derived therefrom, may disclose
26 such contents or evidence to another investigative or law
27 enforcement officer or make use of such contents or evidence to
28 the extent that such disclosure or use is appropriate to the
29 proper performance of the official duties of the officer making
30 or receiving the disclosure.
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1 (b) Evidence.--Any person who, by any means authorized by
2 this chapter, has obtained knowledge of the contents of any wire
3 or oral communication, or evidence derived therefrom, may
4 disclose such contents or evidence to an investigative or law
5 enforcement officer and may disclose such contents or evidence
6 while giving testimony under oath or affirmation in any criminal
7 proceeding in any court of this Commonwealth or of another state
8 or of the United States or before any state or Federal grand
9 jury or investigating grand jury.
10 (c) Otherwise authorized personnel.--Any person who, by any
11 means authorized by the laws of another state or the Federal
12 Government, has obtained knowledge of the contents of any wire
13 or oral communication, or evidence derived therefrom, may
14 disclose such contents or evidence to an investigative or law
15 enforcement officer and may disclose such contents or evidence
16 while giving testimony under oath or affirmation in any criminal
17 proceeding in any court of this Commonwealth.
18 § 5718. Interception of communications relating to other
19 offenses.
20 When an investigative or law enforcement officer, while
21 engaged in court authorized interceptions of wire or oral
22 communications in the manner authorized herein, intercepts wire
23 or oral communications relating to offenses other than those
24 specified in the order of authorization, the contents thereof,
25 and evidence derived therefrom, may be disclosed or used as
26 provided in section 5717(a) (relating to disclosure or use of
27 contents of wire or oral communications or derivative evidence).
28 Such contents and evidence may be disclosed in testimony under
29 oath or affirmation in any criminal proceeding in any court of
30 this Commonwealth or of another state or of the United States or
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1 before any state or Federal grand jury when in advance of such
2 disclosure and on application to a court, the court finds that
3 the contents were listed in the final report, pursuant to
4 section 5712(d) (relating to issuance of order and effect), and
5 were otherwise intercepted in accordance with the provisions of
6 this chapter. Such application shall be made as soon as
7 practicable.
8 § 5719. Unlawful use or disclosure of existence of order
9 concerning intercepted communication.
10 Except as specifically authorized pursuant to this chapter
11 any person who uses or discloses the existence of an order
12 authorizing interception of a wire or oral communication is
13 guilty of a felony of the third degree.
14 § 5720. Service of copy of order and application before
15 disclosure of intercepted communication in trial,
16 hearing or proceeding.
17 The contents of any wire or oral communication intercepted in
18 accordance with the provisions of this chapter, or evidence
19 derived therefrom, shall not be disclosed in any trial, hearing,
20 or proceeding before any court of the Commonwealth unless not
21 less than 20 days before the trial, hearing or proceeding the
22 parties to the action have been served with a copy of the order,
23 the accompanying application and the final report under which
24 the interception was authorized or, in the case of an
25 interception under section 5704 (relating to exceptions to
26 prohibition on interception and disclosure of communications),
27 notice of the fact and nature of the interception. The service
28 of inventory, order, application, and final report required by
29 this section may be waived by the court only where it finds that
30 the service is not feasible and that the parties will not be
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1 prejudiced by the failure to make the service.
2 § 5721. Suppression of contents of intercepted communication or
3 derivative evidence.
4 (a) Motion to suppress.--Any aggrieved person in any trial,
5 hearing, or proceeding in or before any court or other authority
6 of this Commonwealth may move to suppress the contents of any
7 intercepted wire or oral communication, or evidence derived
8 therefrom, on any of the following grounds:
9 (1) The communication was unlawfully intercepted.
10 (2) The order of authorization is insufficient on its
11 face.
12 (3) The interception was not made in conformity with the
13 order of authorization or in accordance with the requirements
14 of section 5712 (relating to issuance of order and effect).
15 (b) Procedure.--The motion shall be made at least ten days
16 before the trial, hearing, or proceeding unless there was no
17 opportunity to make the motion or the moving party was not aware
18 of the grounds for the motion. Motions by co-indictees are to be
19 heard in a single consolidated hearing. The court, upon the
20 filing of such motion by the aggrieved person, shall make
21 available to the aggrieved person or his counsel the intercepted
22 communication and evidence derived therefrom. If the motion is
23 granted, the entire contents of all intercepted wire or oral
24 communications obtained during or after any interception which
25 is determined to be in violation of this chapter under
26 subsection (a) or evidence derived therefrom, shall not be
27 received in evidence in the trial, hearing or 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
19780H2601B3474 - 25 -
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 § 5722. Report by issuing or denying judge.
6 Within 30 days after the expiration of an order or an
7 extension or renewal thereof entered under this chapter or the
8 denial of an order confirming verbal approval of interception,
9 the issuing or denying judge shall make a report to the
10 Administrative Office of Pennsylvania Courts stating the
11 following:
12 (1) That an order, extension or renewal was applied for.
13 (2) The kind of order applied for.
14 (3) That the order was granted as applied for, was
15 modified, or was denied.
16 (4) The period of the interceptions authorized by the
17 order, and the number and duration of any extensions or
18 renewals of the order.
19 (5) The offense specified in the order, or extension or
20 renewal of an order.
21 (6) The identity of the official authorizing the
22 application and of the investigative or law enforcement
23 officer and agency for whom it was made.
24 (7) The character of the facilities from which or the
25 place where the communications were to be intercepted.
26 § 5723. Annual reports and records of Attorney General and
27 district attorneys.
28 (a) Judges.--In addition to reports required to be made by
29 applicants pursuant to Title 18 U.S.C. § 2519, all judges who
30 have issued orders pursuant to this title shall make annual
19780H2601B3474 - 26 -
1 reports on the operation of this chapter to the Administrative
2 Office of Pennsylvania Courts. The reports by the judges shall
3 contain the following information:
4 (1) The number of applications made.
5 (2) The number of orders issued.
6 (3) The effective periods of such orders.
7 (4) The number and duration of any renewals thereof.
8 (5) The crimes in connection with which the orders were
9 sought.
10 (6) The names and official identity of the applicants.
11 (7) Such other and further particulars as the
12 Administrative Office of Pennsylvania Courts may require.
13 (b) Attorney General.--In addition to reports required to be
14 made by applicants pursuant to Title 18 U.S.C. § 2519, the
15 Attorney General shall make annual reports on the operation of
16 this chapter to the Administrative Office of Pennsylvania
17 Courts. The reports by the Attorney General shall contain the
18 following information:
19 (1) The number of applications made.
20 (2) The number or orders issued.
21 (3) The effective periods of such orders.
22 (4) The number and duration of any renewals thereof.
23 (5) The crimes in connection with which the
24 conversations were sought.
25 (6) The name of the applicants.
26 (7) The number of indictments resulting from each
27 application.
28 (8) The crime or crimes which each indictment charges.
29 (9) The disposition of each indictment.
30 (c) District attorneys.--Each district attorney shall
19780H2601B3474 - 27 -
1 annually provide to the Attorney General all of the foregoing
2 information with respect to all applications authorized by that
3 district attorney on forms prescribed by the Attorney General.
4 (d) Other reports.--The Chief Justice of the Supreme Court
5 and the Attorney General shall annually report to the Governor
6 and the General Assembly on such aspects of the operation of
7 this chapter as they deem appropriate and make any
8 recommendations they feel desirable as to legislative changes or
9 improvements to effectuate the purposes of this chapter and to
10 assure and protect individual rights.
11 § 5724. Training.
12 The Attorney General and the Commissioner of the Pennsylvania
13 State Police shall establish a course of training in the legal
14 and technical aspects of wiretapping and electronic
15 surveillance, shall establish such regulations as they find
16 necessary and proper for such training program and shall
17 establish minimum standards for certification and periodic
18 recertification of Commonwealth investigative or law enforcement
19 officers as eligible to conduct wiretapping or electronic
20 surveillance under this chapter. The Pennsylvania State Police
21 shall charge each investigative or law enforcement officer who
22 enrolls in this training program a reasonable enrollment fee to
23 offset the costs of such training.
24 § 5725. Rules and regulations.
25 The Attorney General shall promulgate written rules and
26 regulations establishing procedures for the Attorney General and
27 district attorneys to approve, and to apply for the
28 authorization of, interceptions of wire or oral communications
29 pursuant to this chapter, which rules and regulations shall be
30 binding upon the Attorney General and the district attorneys or
19780H2601B3474 - 28 -
1 their designees in reviewing requests to them from investigative
2 or law enforcement officers for prior approval to engage in any
3 such interceptions. Such rules and regulations shall prescribe
4 those situations in which such interceptions may be approved, or
5 applied for, and the methods that may be employed in executing
6 such interceptions.
7 § 5726. Civil action for unlawful interception, disclosure or
8 use of wire or oral communication.
9 (a) Cause of action.--Any person whose wire or oral
10 communications is intercepted, disclosed or used in violation of
11 this chapter shall have a civil cause of action against any
12 person who intercepts, discloses or uses or procures any other
13 person to intercept, disclose or use, such communication; and
14 shall be entitled to recover from any such person:
15 (1) Actual damages, but not less than liquidated damages
16 computed at the rate of $100 a day for each day of violation,
17 or $1,000, whichever is higher.
18 (2) Punitive damages.
19 (3) A reasonable attorneys' fee and other litigation
20 costs reasonably incurred.
21 (b) Waiver of sovereign immunity.--To the extent that the
22 Commonwealth and any of its officers, officials or employees
23 would be shielded from liability under this section by the
24 doctrine of sovereign immunity, such immunity is hereby waived
25 for the purposes of this section.
26 § 5727. Action for removal from office or employment.
27 Any person shall have the right to bring on an action in
28 Commonwealth Court against any investigative or law enforcement
29 officer, public official or public employee seeking the
30 officer's, official's or employee's removal from office or
19780H2601B3474 - 29 -
1 employment on the grounds that the officer, official or employee
2 has willfully violated the provisions of this chapter. If the
3 court shall conclude that such officer, official or employee has
4 in fact willfully violated the provisions of this chapter, the
5 court shall order the dismissal or removal from office of said
6 officer, official or employee and the forfeiture of said
7 officer, official or employee's pension benefit entitlements, if
8 any.
9 § 5728. Good faith reliance on a court order as defense.
10 A good faith reliance on a court order authorizing the
11 interception shall constitute a complete defense to a civil or
12 criminal action brought under this chapter or to administrative
13 proceedings brought against a law enforcement officer.
14 Section 3. This act shall take effect in 60 days.
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