Search Warrants; Independent Source Doctrine

Commonwealth v. Katona,191 A.3d 8 (Pa. Super. 2018), allocatur granted Jan. 3, 2019, appeal docket 1 WAP 2019

Dennis Andrew Katona was convicted of two counts of possession with intent to deliver and two counts of possession of a controlled substance. The issue involves the underlying search warrant that led to the arrest which used a confidential informant’s statements and a recording device the informant wore to record multiple subsequent conversations within Katona’s home. The authorities were granted an order under 18 Pa.C.S. § 5704(2)(iv) permitting “continuous interception of all in-home conservations for a period of thirty days,” and were granted an extension after the initial thirty-day period.

Before the Superior Court, Katona argued that Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994) interpreted the statute governing in-home consensual intercepts and held such orders to be valid only for a single intercept, thus authorizing only the first recording in this case. Katona argued Brion would make all subsequent recordings an unconstitutional search without prior judicial approval. In contrast, the Commonwealth argued that the Act permits a nonconsensual wiretap for thirty days, it necessarily follows that a consensual recording is permissible for at least the same length. The Commonwealth also argued that requiring a new warrant for each event of exit and re-entry would create an onerous burden on law enforcement.

The Superior Court agreed with the Commonwealth but affirmed on the different basis relying on the critical distinction between the voluntary disclosure of information versus the recording of the information. The Court saw that the Katona seeks to suppress information, not recordings, a technical distinction which is outcome determinative, and therefore declined to reach Katona’s constitutional argument that the Act permits only one in-home intercept. The Superior Court held that, even when removing the recordings themselves from the equation, the Commonwealth lawfully obtained information sufficient to establish probable cause for the warrant from the confidential informant, an independent source of the information.

Judge Lazarus filed a dissenting opinion, drawing issue with the reality of the “independent source” relied upon by the Majority. The dissent argued that the warrant was “irremediably tainted” and the application of the independent source doctrine laid out in Commonwealth v. Melendez, 544 Pa. 323 (1996) is only proper in limited circumstances not appropriate here where the information from the informant and the recordings of the same information do not meet the Melendez standard. The dissent further opined that Brion and a strict construction of the statute requires a separate finding of probable cause for each in-home intercept under 18 Pa.C.S. § 5704(2)(iv), thus invalidating subsequent recordings gathered by the confidential informant.

The Supreme Court granted allocatur on the following issues:

  1. Whether this Court should grant allowance of appeal to determine if the [e]n [b]anc Superior Court decision conflicts with and renders meaningless this Court’s definition of the Independent Source Doctrine as set forth in Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996).
  2. Whether, assuming this Court agrees that in Issue [1], the [e]n [b]anc Superior Court clearly misapplied the Independent Source Doctrine and thus failed to address the primary issue in this case, allowance of appeal should be granted to determine: – as a matter of first impression – if Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994) and 18 Pa.C.S.A. § 5704(2)(iv), require prior judicial approval (i.e. a separate search warrant or order) for each separate entry of either a law enforcement agent or CI who is seeking to record private conversations within a defendant’s residence.