Warrantless Interception of Text Messages Violates Wiretap Act

Pending final word from the Pennsylvania Supreme Court, police officers cannot legally use phone confiscated from a suspected drug dealer to send text messages to another dealer and later use the text messages to prove their case against both dealers in court.  The Pennsylvania Superior Court, a state level appellate court, has issued an opinion that the use by police of lawfully confiscated phones to text suspected drug dealers violates the Pennsylvania Wiretrap Act (the Act).  The Act generally requires law enforcers to undertake a time-consuming and extensive process to procure the issuance of a court order before they can surreptitiously use telephones to investigate criminal activity.

In the case, police stopped a speeding pickup truck and questioned the driver and passenger. ¬†Because the driver and the passenger had inconsistent stories about where they were going, the police asked for permission to search the vehicle, and the driver consented. ¬†The police found 35 pounds of marijuana, a firearm, and a cell phone in the truck. ¬†The driver claimed that he had only been hired to drive drugs, that he had never met the recipients and that he had been given the cell phone with instructions to text a phone number stored in the phone for final directions regarding the delivery point. ¬†The driver agreed to let the police text for the delivery location information; the driver then assisted the police in the process, answering several crucial identifying questions that the police would not have been able to answer to the satisfaction of the recipients without the driver’s help.

Apparently satisfied that they were in touch with the driver, the drug recipients gave final directions to a Holiday Inn parking lot.  There the police surprised them and arrested them for attempted drug dealing.

The superior court threw the criminal cases against the drug recipients out, finding that the police had been obliged to comply with the Act’s requirements for a court order before texting the recipients drug dealers. ¬†The court noted that police officers can use e-mail messages and text messages as evidence in court but that they cannot contemporaneously engage in an exchange of text messages with a criminal suspect by subterfuge unless they have first obtained a search warrant.

The Pennsylvania Supreme Court may disagree; that Court has final word on all issues of Pennsylvania judicial law and has decided to review the case. ¬†Until the case has worked its way through that process, law enforcers can’t masquerade via text messages to investigate a crime unless they have specific wiretap court orders that permit them to do so.


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