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The Pennsylvania Supreme Court recently accepted the case of Commonwealth vs. Spence, on appeal from the Superior Court.  This criminal case involves the issue of whether eavesdropping on a speaker-phone telephone call constitutes a violation of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.  The outcome of this case will have a significant impact on the introduction of electronic communication evidence in all types of cases, including family law cases.

In this situation, the confidential informant was a high school student arrested for illegal possession of prescription drugs.  The student was enlisted as an informant to try to arrest the dealer.  In doing so, a Pennsylvania State Trooper with the Philadelphia Vice Narcotics Unit had the C.I. call the dealer; put the phone on speakerphone in the trooper’s presence and order Percocet, OxyCotin, and Xanax.  The dealer was to deliver them in person to a local Wawa.  Upon the dealer’s arrival, the police were waiting and he was arrested for possession of a controlled substance with intent to manufacture or deliver, as well as a count of possession of drug paraphernalia.

At the criminal trial, the Delaware County Prosecutor had asked for a mistrial because they realized they needed to utilize the direct testimony of the confidential informant.  During that break between trials, the defendant filed a Motion to Suppress the evidence on the basis that the State Trooper had violated the Wiretap Act and that any evidence derived from that violation was barred from introduction into evidence.  The trail court judge agreed; the District Attorney’s office appealed and the Superior Court judges agreed with the trial court, leading to another appeal to the Pennsylvania Supreme Court.

The impact of this decision will reach beyond criminal cases.  A decision upholding the suppression of this evidence would mean that any time a person overhears a conversation on speakerphone that the potential would exist that that information could be suppressed presumably due to the speaker’s lack of knowledge or consent to expose the info beyond the intended recipient.  Family law litigation often employs the testimony and evidence from individuals who have overheard conversations or recorded conversations (in person) with an unknowing speaker.  The difference between a legal recording and an illegal recording can be a very fine line; the outcome of this case will further shape how electronic recordings are used and whether they will remain a legally reliable method for collecting evidence.

Additional information about this case can be found in "The Legal Intelligencer," May 3, 2013, Volume 247, No. 86.