Wiretap Act; Jailhouse Communications
Commonwealth v. Byrd, 185 A.3d 1015 (Pa. Super. 2018), allocatur granted Sept. 19, 2018, appeal docket 36 WAP 2018
James Byrd was charged with persons not to possess firearms, carrying a firearm without a license, three counts of possession with intent to deliver, and three counts of possession of controlled substance. Subsequently, the Commonwealth notified Byrd of its intent to present certain evidence against him that was obtained by recording his conversations with visitors at the Allegheny County Jail. Byrd responded by filing a motion to suppress arguing these jail recordings violated his constitutional rights and the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“the Wiretap Act”).
The Court of Common Pleas of Allegheny County granted Byrd’s motion to suppress in part, finding that certain jail visitation recordings were made in violation of the Wiretap Act and the two-party consent exception did not apply because the Commonwealth failed to prove that Byrd heard the recording warning which was played each time an inmate used the phone system to talk to a visitor.
The Commonwealth appealed to Superior Court, arguing that the trial court erred in rejecting its argument that Byrd’s jail visit recordings were permitted under the two-party consent exception to the Wiretap Act. Additionally, the Commonwealth argued that in several conversations between Byrd and his visitors, they “actually intimated that they knew they were being recorded.”
Superior Court determined that, based on the environment in which Byrd conversed with his visitors – an open visitation area in the jail – he should have known that their conversations could be recorded; therefore, the mutual consent exception permitted interception of Byrd’s jailhouse conversations. Furthermore, the Superior Court reasoned:
The trial court’s hyper-technical analysis requires that in these instances, the Commonwealth must always establish on the record that the inmate had the telephone to his ear, listened to the message that announced the conversation may be recorded, and then consented to the message. This type of requirement is unreasonable because under such scrutiny and logic, an inmate could easily avoid the consent element by simply holding the phone away from his ear for a period of time prior to speaking with a visitor, in order to evade hearing that message.
Therefore, the Superior Court concluded that the trial court erred when it granted the suppression of Byrd’s jailhouse communications.
The Supreme Court granted allocatur on the following issues:
(1) Where an inmate defendant seeks to suppress recordings of his jail visit communications in a criminal proceeding, must the Commonwealth demonstrate that the inmate had actual knowledge that he was being recorded to satisfy the “prior consent” requirement of the two-party consent exception to the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), 18 Pa. C.S. § 5704(4)?
(2) If actual knowledge is required by the statute, did the Superior Court err in concluding that Byrd had actual knowledge that he was being recorded?