Commonwealth v. Katona

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellee v. DENNIS ANDREW KATONA, Appellant

Court: SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

Date published: Oct 21, 2020

240 A.3d 463 (Pa. 2020)

Opinion

No. 1 WAP 2019

10-21-2020

COMMONWEALTH of Pennsylvania, Appellee v. Dennis Andrew KATONA, Appellant

JUSTICE DOUGHERTY

OPINION

¹

1 This matter was reassigned to this author.

We granted discretionary review in this case to consider the Superior Court's application of the Independent Source Doctrine as a basis for upholding the trial court's order denying the suppression motion filed by appellant Dennis Andrew Katona. We also granted review to consider, as a secondary matter, the validity of an intercept order issued under Section 5704(2)(iv) of the Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"),² which permits the recording of in-home conversations when only one party consents, so long as the intercept is approved by an authorized prosecutor and the president judge of a court of common pleas finds that probable cause supports the order. Upon review, we conclude the Superior Court properly invoked the Independent Source Doctrine, and therefore do not reach the various statutory and constitutional challenges appellant raises relative to the Wiretap Act.

2 18 Pa.C.S. §§ 5701 -5782.

I. Background

As appellant's claims concern only the admissibility of the evidence discovered as a result of the execution of a search warrant at his residence on June 29, 2011, we focus our discussion on the facts as set forth in the affidavit of probable cause supporting the issuance of the warrant. That affidavit, which is twenty-one pages long and divided into forty-seven numbered paragraphs, established the following.

In 2009, the Pennsylvania State Police ("PSP") began working with a confidential informant ("CI") who was a member of the Pagan Motorcycle Club. The CI, who had previously provided reliable evidence in other criminal investigations, informed Trooper Matthew Baumgard that appellant was also a member of the Pagans, including serving as its National President in 2009. This information corroborated PSP's own knowledge of appellant as a longtime member of the Pagans who had previously been convicted for organizing an attack in Long Island, New York, against a rival motorcycle club known as Hells Angels.

On April 28, 2011, the CI contacted Trooper Baumgard to alert him appellant had unexpectedly arrived at his house that evening and offered to sell him three one-half ounce packages of cocaine for $650 per package. The CI declined the offer, informing appellant he had just purchased cocaine from "Tony" and that he was dissatisfied with the price and quality of that purchase. The following day, the CI again reached out to Trooper Baumgard, this time to inform him appellant had made a similar unsolicited stop at another Pagan member's house in an attempt to sell the cocaine.

Several weeks later, on May 16, 2011, the CI phoned Trooper Baumgard to inform him appellant had invited the CI to appellant's home. Shortly after arriving, appellant told the CI he had something to show him and directed the CI to a bedroom at the top of the stairs. There, appellant retrieved a package containing one-half pound of cocaine from a dresser drawer, and explained to the CI he had obtained it specifically for him given his dissatisfaction with "Tony's" product. Appellant offered the entire package to the CI in exchange for $9,800, with the expectation he would pay $5,000 for it later that night with the remainder to be paid over time. The CI took the cocaine, left appellant's home, immediately called Trooper Baumgard and turned it over to the PSP.

Based on this information and the fact the product tested positive for cocaine, the Commonwealth, represented by the Office of the Attorney General ("OAG"), applied for an order authorizing a consensual wiretap that would allow the CI to wear a recording device inside appellant's residence, pursuant to 18 Pa.C.S. § 5704(2)(iv).³ The Honorable John Blahovec of the Court of Common Pleas of Westmoreland County granted the order later that day. Of relevance here, the order authorized continuous interceptions of all in-home conversations for a period of thirty days. See Order Authorizing the Consensual Interception of Oral Communications in a Home, 5/16/2011, at 4.

3 We set forth the statutory text of this provision infra .

Pursuant to the wiretap order, the CI visited appellant in his home multiple times over the following month and a half and recorded the ensuing conversations.⁴ On May 16, 20, 25, and 31, 2011, the CI made various controlled payments to appellant in his home, with the cash having been provided to the CI by the authorities. During each encounter, Trooper Baumgard and his team surveilled appellant's home and, thereafter, met with the CI to retrieve the recording device.

4 The Commonwealth obtained an extension of the wiretap order after the initial thirty-day period expired.

On June 9, 2011, the CI met with appellant to purchase Pagan T-shirts; Trooper Baumgard asked the CI to inquire during that meeting about purchasing two additional ounces of cocaine. Following the encounter, the CI produced several Pagan T-shirts and a clear vacuum sealed bag containing a white powdery substance which was later confirmed to be cocaine. The CI related to Trooper Baumgard that he had purchased the T-shirts from appellant and that, during their conversation, appellant retrieved the two ounces of cocaine and requested $2,200 for it. Additionally, the CI indicated to Trooper Baumgard that appellant had offered to sell him an ounce of methamphetamine for $1,300. Later that evening appellant arrived at the CI's home, which was under surveillance, and delivered an ounce of methamphetamine in exchange for $1,300.

Similar transactions occurred over the following weeks. On June 13, 2011, the CI made a controlled payment of $1,100 to appellant for the cocaine that was "fronted" on June 9, 2011. On June 15, 2011, in addition to paying another installment for the cocaine supplied on June 9, 2011, the CI purchased two more ounces of cocaine. Although this delivery occurred in a Home Depot parking lot, the CI subsequently paid for the product at appellant's home on June 20, 2011. On June 22, 2011, appellant provided the CI with still more cocaine. Immediately after the CI left appellant's home on this occasion, he provided Trooper Baumgard with four vacuum sealed bags containing two ounces of cocaine, which the CI explained had just been provided to him by appellant.

Finally, on June 27, 2011, the CI made contact with appellant via text message and in the presence of Trooper Baumgard. Arrangements were made for the CI to make a controlled payment of $1,100 for the cocaine that had been fronted to him by appellant on June 22, 2011. Following this meeting in appellant's home, the CI advised Trooper Baumgard that appellant had made statements indicating he would have a quantity of cocaine and methamphetamine in his home on June 29, 2011. On the basis of all this information — "including interviews conducted with the CI, purchases of controlled substances, controlled monetary payments and information received from members of the [PSP] involved with this investigation and others with expertise in the field of narcotics investigations," Affidavit of Probable Cause, 6/29/2011, at ¶47 — Trooper Baumgard requested and obtained an anticipatory search warrant for appellant's home.

The PSP executed the warrant at appellant's home on June 29, 2011. The search yielded 84.2 grams of cocaine and 99.64 grams of methamphetamine recovered from a United American bank bag and a briefcase located in the master bedroom, as well as an electronic digital scale and documentary proof establishing appellant lived at the home. Appellant was subsequently charged with two counts each of possession of a controlled substance and possession of a controlled substance with intent to deliver.⁵

5 35 P.S. §§ 780-113(a)(16), (30).

II. Procedural History

Appellant filed an omnibus pre-trial motion seeking suppression of all evidence recovered from his home. Among a host of arguments raised in support of that endeavor, appellant argued the wiretap order allowing the in-home recordings of his conversations with the CI was invalid because it impermissibly permitted interception of conversations for a thirty-day period, whereas, in his view, Section 5704(2)(iv) of the Wiretap Act allows for only one intercept per authorizing order. See Omnibus Pre-Trial Motion, 3/22/2012, at 3. As such, appellant further argued that "[a]ny alleged probable cause related to the issuance of the search warrant in question was fatally tainted by the inclusion of evidence related to the illegally ... monitored conversations[.]" Id . at 6. The trial court denied appellant's suppression motion and the case proceeded to a stipulated non-jury trial. Thereafter, the trial court found appellant guilty of all charges and sentenced him to forty to eighty months' incarceration.

Appellant challenged the denial of his suppression motion on direct appeal. See Commonwealth v. Katona , 191 A.3d 8, 11 (Pa. Super. 2018) (en banc ), appeal granted , 650 Pa. 323, 200 A.3d 8 (2019) (per curiam ). As he did in his written motion, appellant argued that since Section 5704(2)(iv) ⁶ uses the term "interception" as phrased in the singular, an order issued pursuant to that section authorizes only one intercept, as a matter of both statutory and constitutional law. Id . at 15. With respect to this latter constitutional assertion, appellant relied heavily on our decision in Commonwealth v. Brion , 539 Pa. 256, 652 A.2d 287, 289 (1994) (declaring citizens have an expectation of privacy in conversations that occur in their homes and that such conversations may not be intercepted without a prior determination of probable cause by a neutral judicial authority).⁷ In appellant's view, the interception of each communication after the first one was analogous to multiple executions of a single search warrant and, thus, amounted to an unconstitutional search. Katona , 191 A.3d at 15.

6 Section 5704 provides as follows, in relevant part:

§ 5704. Exceptions to prohibition of interception and disclosure of communications

It shall not be unlawful and no prior approval shall be required under this chapter for:

...

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities, including, but not limited to, the crimes enumerated in section 5708 (relating to order authorizing interception of wire, electronic or oral communications), where:

...

(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be initiated, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however, such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom;

...

(iv) [or] the requirements of this subparagraph are met. If an oral interception otherwise authorized under this paragraph will take place in the home of a nonconsenting party, then, in addition to the requirements of subparagraph (ii), the interception shall not be conducted until an order is first obtained from the president judge, or his designee who shall also be a judge, of a court of common pleas, authorizing such in-home interception, based upon an affidavit by an investigative or law enforcement officer that establishes probable cause for the issuance of such an order. No such order or affidavit shall be required where probable cause and exigent circumstances exist. For the purposes of this paragraph, an oral interception shall be deemed to take place in the home of a nonconsenting party only if both the consenting and nonconsenting parties are physically present in the home at the time of the interception.

18 Pa.C.S. § 5704(2).

7 The Superior Court has previously explained that Section 5704(2)(iv) of the Wiretap Act was added as a direct response to our opinion in Brion . Commonwealth v. Fetter , 770 A.2d 762, 766 (Pa. Super. 2001). We agree with this assessment.

The OAG disagreed with appellant on all fronts. As the OAG saw it, a proper statutory analysis leads to the conclusion that a wiretap authorized under Section 5704(2)(iv) is effective for the same duration as a nonconsensual wiretap authorized under Section 5708 of the Wiretap Act, which shall not exceed a period of thirty days. 18 Pa.C.S. § 5712(b). From the OAG's perspective, since the Wiretap Act permits a nonconsensual wiretap for thirty days, it necessarily follows that a consensual recording is constitutionally permissible for at least the same length. Katona , 191 A.3d at 15. The OAG also highlighted the impracticalities of appellant's interpretation, arguing it would place an onerous burden on law enforcement by requiring them to seek a new order each time the target of an investigation happened to momentarily step outside his residence while the consenting party remained present. Id . Alternatively, the OAG maintained that even if all interceptions made after the initial one were invalid, the search warrant was still supported by probable cause wholly independent of the intercepted conversations. See id . ("even if no recording device had been used in this case at all, the observations of the Troopers and the information relayed to them by the CI ... would still have established probable cause") (internal quotations and citation omitted). In other words, the OAG believed that the firsthand observations of law enforcement and the CI provided an independent, untainted source for the probable cause basis supporting the warrant.

Ultimately, the Superior Court determined the parties' focus on the statutory text of Section 5704(2)(iv) and our opinion in Brion overlooked a critical distinction: the fact that appellant "seeks to suppress information , not the recordings." Id . at 16 (emphasis in original). After surveying the relevant federal law, the court explained that, for purposes of the Fourth Amendment, "there is no constitutional issue when a person, such as the CI herein, enters the home of a citizen and records the conversations" because "the speaker has voluntarily disclosed information, and the speaker cannot claim a reasonable expectation of privacy in either the information or a simultaneous recording of that information." Id . at 19 (emphasis in original); see also id . at 16-19 (discussing Hoffa v. United States , 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and United States v. White , 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) ).

The Superior Court then considered the greater protections afforded by Article I, Section 8 of the Pennsylvania Constitution and, more specifically, our pronouncement in Brion that there is an expectation of privacy in conversations that take place within one's home, such that they may be recorded only after a finding of probable cause by a neutral judicial authority. See id . at 19-20. In this regard, the court deemed it significant that, in contrast to the present appeal, Brion filed a timely motion to suppress the tape recording of the transaction between himself and the informant in that case. See id . at 19. Given this distinction, the Superior Court determined that, while Brion stands for the proposition that a citizen has a reasonable expectation of privacy that his conversations will not be recorded by his guests and that the actual recordings are thus subject to suppression, it does not "invariably follow that the information itself is likewise subject to suppression." Id . at 20.

To bolster its position, the Superior Court relied upon our subsequent decision in Commonwealth v. Rekasie , 566 Pa. 85, 778 A.2d 624 (2001), wherein we "distinguished Brion and permitted the introduction of the actual recorded conversations, based on the fact that there was no reasonable expectation of privacy in the phone conversation." Katona , 191 A.3d at 21 ; accord Rekasie , 778 A.2d at 632 (phone calls are "[q]ualitatively different than a face-to-face interchange occurring solely within the home in which an individual reasonably expects privacy and can limit the uninvited ear"). In the Superior Court's view, the present appeal presents an issue not addressed in Rekasie : whether a defendant is entitled to suppression of the substance of a conversation that took place in his home, assuming arguendo that the simultaneous recording of that conversation violated the defendant's constitutional rights as established in Brion . See id . at 22 ; see also id . ("More specifically, the question is whether the affidavit of probable cause could lawfully include the information learned from [a]ppellant's conversations with the CI, even if the conversations were unlawfully recorded.") (emphasis in original). The Superior Court answered that question in the negative:

[W]e find that the Commonwealth received the information twice: once when the CI told the officers that which [a]ppellant voluntarily disclosed, and a second time when the CI performed a search by capturing [a]ppellant's actual words on tape. Brion and the Pennsylvania Constitution dictate that [a]ppellant had a reasonable expectation of privacy that his words would not be recorded, but we find that [a]ppellant had no reasonable expectation of privacy with respect to the information itself, which he freely disclosed to the CI, who in turn relayed the information to the authorities.

Id . In short, the Superior Court "decline[d] to extend an expectation of privacy to the information itself" because appellant "took the risk that the CI was acting on behalf of the Commonwealth, and as a result had no reasonable expectation of privacy in what he said and showed the CI." Id . at 22-23 (citation omitted).

Having concluded the information itself was not suppressible, the Superior Court proceeded to consider whether, after removing the allegedly illegal recordings from the equation, the Commonwealth lawfully obtained everything else appellant relayed to the CI — i.e. , whether the information served as an independent source for the search warrant. See id . at 23, citing Commonwealth v. Santiago , 160 A.3d 814, 827 (Pa. Super. 2017), aff'd , 209 A.3d 912 (Pa. 2019). Because the search warrant "did not rely upon evidence derived from an unlawful wiretap, but rather the information disclosed to the authorities, which happened to also be recorded[,]" the court found appellant's voluntary disclosures to the CI properly served as an independent source. Id . at 23. Consequently, the Superior Court held suppression of the evidence was unwarranted.⁸ The Honorable Anne E. Lazarus, joined by the Honorable Jacqueline O. Shogan, dissented. The dissent argued that the en banc majority's application of the Independent Source Doctrine was not appropriate because this Court has held that application of the doctrine " ‘is proper only in the very limited circumstances where the "independent source" is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.’ " Id . at 27 (Lazarus, J., dissenting), quoting Commonwealth v. Melendez , 544 Pa. 323, 676 A.2d 226, 231 (1996). Given its determination that the present circumstances do not satisfy the demands of Melendez , the dissent proceeded to analyze the propriety of the consensual wiretap order and concluded a separate finding of probable cause was required for each in-home intercept under Section 5704(a)(iv). See id . at 30.

8 In reaching its conclusion, the Superior Court was careful to note it was not holding that the multiple intercepts were consistent with Brion ; given the court's disposition, it also declined to resolve the statutory issue concerning Section 5704(2)(iv). Instead, the court merely acknowledged that the parties presented reasoned arguments respecting the statutory issue and opined that the "lack of statutory direction on this point is a matter for the Legislature." Katona , 191 A.3d at 23.

We granted discretionary review to consider two issues: (1) whether the en banc Superior Court's decision "conflicts with and renders meaningless this Court's definition of the Independent Source Doctrine as set forth in [ Melendez ]"; and (2) if so, whether our decision in Brion or Section 5704(2)(iv) of the Wiretap Act "require judicial approval (i.e. a separate 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." Commonwealth v. Katona , 650 Pa. 323, 200 A.3d 8 (2019) (per curiam ).

III. Discussion

a. Arguments of the Parties

Appellant first argues the Superior Court's application of the Independent Source Doctrine to the facts of his case not only exceeds the bounds of the doctrine as previously embraced by this Court's precedents, but constitutes an "unwarranted expansion" of the doctrine altogether. Appellant's Brief at 17.⁹ Echoing Judge Lazarus's dissent below, appellant emphasizes the fact that Melendez requires that the proposed alternative source of evidence must be independent from both the tainted evidence and the police or investigative team that engaged in the misconduct. See id . at 18-20 (discussing Melendez , 676 A.2d at 231 ). Appellant finds it "difficult to see" how the Superior Court could have determined the Melendez standard was met where "the same police who sent the CI into [his] home to illegally record the multiple conversations were then allegedly involved in debriefing the same CI[.]" Id. at 19-20. On a related note, appellant submits the lower court was incorrect in its assertion that the record reflects that the CI was debriefed by Trooper Baumgard or otherwise independently relayed any information relating to the drug transactions that occurred in appellant's home. See id . at 25-26. In appellant's telling, none of the paragraphs in the affidavit of probable cause, save for one, "make a single reference to the CI discussing with the police what was said to him" while present in appellant's home. Id . at 26-27. The OAG broadly counters that, regardless of the presence or absence of the recordings, the warrant was supported by an independent probable cause basis as reflected on the face of the affidavit. See OAG's Brief at 9. With respect to Melendez in particular, the OAG posits that, since that case dealt with the seizure of tangible evidence which "can be seized only once and by only one means[,]" it is not an apt analogy to the present circumstances. Id . at 11. Instead, the OAG directs us to our recent decision in Santiago , supra , which the OAG reads to "stand for the proposition that if a piece of information is obtained in two different ways, one of which is deemed permissible and one of which is not, absent a showing that the improperly obtained information somehow contaminated the untainted, suppression of this underlying information is not warranted." Id . at 13-14. Applying that understanding here, the OAG argues that while an illegal wiretap could rightfully be excluded, "there is no basis for a blanket exclusion of the information itself merely because one of multiple avenues by which it came into the Commonwealth's possession is subsequently deemed to have been improper." Id . at 14; see id . at 21 ("The fact that the [CI]'s interactions with [appellant] were also covertly recorded pursuant to a court order should not be held to somehow retroactively strip the police of the authority they undoubtedly had to send in an unwired informant if the court order is subsequently deemed to have been improper."). Finally, the OAG refutes appellant's claim that the affidavit does not independently establish probable cause when stripped of all references to the recordings. According to the OAG, the affidavit "makes clear not only that the [CI] did, in fact, verbally relay to law enforcement what was told to him by [appellant] during their meetings, but that the [CI] also produced corroborating physical evidence that he had obtained from [appellant]." Id . at 17. To that end, the OAG points us to several paragraphs in the affidavit which it believes appellant has apparently overlooked, and it concludes those paragraphs "clearly establish a nexus between [appellant]'s residence and illegal activity." Id . at 17-19.

9 For purposes of his first issue, appellant presumes his challenge to the validity of the wiretap order is meritorious. We do the same.

b. Analysis ¹⁰

10 Whether the Independent Source Doctrine presents a viable basis for affirming the denial of appellant's suppression motion presents a pure question of law over which our standard of review is de novo and our scope of review is plenary. Santiago , 209 A.3d at 919.

In the first quarter of the twentieth century, the United States Supreme Court announced what is now known as the Independent Source Doctrine. See Silverthorne Lumber Co. v. United States , 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) (evidence discovered through illegal means does not render the facts thus obtained "sacred and inaccessible"; rather, "[i]f knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed"). Since then, the High Court has repeatedly reaffirmed the doctrine's sustainability, see, e.g. , Nardone v. United States , 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939), and, more recently, has described its underlying rationale as follows:

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent

source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.

Nix v. Williams , 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (internal citations and footnote omitted); see also Murray v. United States , 487 U.S. 533, 542, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (Independent Source Doctrine rests "upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied"). To enforce that purpose, the Court has explained that "[s]o long as a later, lawful seizure is genuinely independent of an earlier, tainted one ... there is no reason why the independent source doctrine should not apply." Murray , 487 U.S. at 542, 108 S.Ct. 2529.

Our most firm initial approval of the Independent Source Doctrine in Pennsylvania appears in Commonwealth v. Melilli , 521 Pa. 405, 555 A.2d 1254 (1989). There, citing Silverthorne Lumber , we briefly stated that "[i]f the prosecution can demonstrate that the allegedly tainted evidence was procured from an independent origin — a means other than the tainted sources — the evidence will be admissible." Melilli , 555 A.2d at 1262. It was not until four years later, however, that we cemented the Independent Source Doctrine's place in our jurisprudence and adopted the specific teachings of Murray .

In Commonwealth v. Brundidge , 533 Pa. 167, 620 A.2d 1115 (1993), a motel manager allowed a state trooper to enter a guest room after the occupant's registration had expired and a housekeeper discovered a suspicious diagram of the motel's floor plan on the bed. Once inside, the trooper observed indicia of criminal activity in plain sight. He then proceeded to search the pockets of a jacket found inside of a protective bag in a closet. After finding cocaine in one of the pockets, the trooper sought a warrant based on what he observed in plain sight only. The warrant subsequently issued and the trooper seized the items he observed in plain sight as well as the cocaine. The trial court denied Brundidge's motion to suppress the cocaine, and he was convicted of multiple drug-related crimes. The Superior Court reversed, finding that although the entry into the motel room did not infringe on Brundidge's Fourth Amendment rights, the warrantless search of the jacket did.

On appeal, we agreed with the Superior Court that while a guest in a motel or hotel room has a legitimate expectation of privacy during the period of time it is rented, no such expectation exists in the room or in any item in plain view to anyone readying the room after checkout time for the next occupant. However, we also agreed that a motel guest has a reasonable expectation of privacy in the contents of concealed personal effects found in the room even after checkout time. Still, we refused to suppress the cocaine, concluding that it was admissible under the Independent Source Doctrine as defined in Murray . We explained that Murray devised a two-prong inquiry for determining whether evidence is admissible under the Independent Source Doctrine: "(1) whether the decision to seek a warrant was prompted by what was seen during the initial entry; and, (2) whether the [issuing] magistrate was informed at all of the information." Brundidge , 620 A.2d at 1119. Because the trooper did not mention the cocaine in the affidavit of probable cause in support of the warrant, we concluded the cocaine would have been discovered by a source independent of the initial illegality — i.e. , the trooper's execution of the valid search warrant. To hold otherwise, we remarked, "would put the police in a worse position than they would have occupied if no violation had occurred." Id . at 1120.

Shortly after we decided Brundidge , we considered the application of the Murray standard in the context of an Article I, Section 8 challenge based on the warrantless search of a residence. In Commonwealth v. Mason , 535 Pa. 560, 637 A.2d 251 (1993), officers surveilling an apartment as part of an undercover investigation into drug trafficking sent a CI into the apartment to make a controlled purchase of cocaine. Upon his return, the CI told the officers that he successfully completed the purchase, that there was more cocaine present inside, and that multiple other persons were in the apartment making similar illegal transactions. Based on this information, one officer left to obtain a search warrant for the apartment while the others remained to continue their surveillance. Before the officer returned with the warrant, another officer directed the team to forcibly enter the apartment in order to secure the occupants and any evidence which might be present. The officers found Mason inside the bathroom with her hands in the toilet bowl, next to which they observed various drug paraphernalia. The officers also discovered cocaine in plain view in one of the bedrooms. After the warrant arrived, the officers searched the residence more thoroughly, discovering additional drugs, paraphernalia, and other indicia of drug trafficking.

We granted review to consider whether the trial court properly rejected Mason's request for suppression based on a purported violation of Article I, Section 8. In that vein, Mason urged that if we were inclined to recognize the Independent Source Doctrine in our jurisprudence, we should impose "special limitations" on the doctrine "where private dwellings are concerned and where police conduct is undertaken in bad faith." Mason , 637 A.2d at 253. For its part, the Commonwealth countered that the Independent Source Doctrine is compatible with the Pennsylvania Constitution and that we have previously so held. Id . Moreover, the Commonwealth claimed the doctrine clearly applied to the factual circumstances at hand because the initial police entry did not taint the subsequent search with the warrant, as the warrant was obtained through probable cause independent of the initial police entry. Id .

Preliminarily, we agreed with the Commonwealth that the Independent Source Doctrine applies in Pennsylvania, and we acknowledged that if Mason's claim were made strictly under the Fourth Amendment, we would be constrained to find that suppression was not warranted. See id . at 254, citing Segura v. United States , 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (where police forcefully entered a dwelling without a warrant and observed contraband in plain view, suppression of the contraband not required where it was later seized pursuant to a warrant obtained based on information which had nothing to do with the warrantless entry; "it is clear from our prior holdings that ‘the exclusionary rule has no application [where] the Government learned of the evidence "from an independent source." ’ ") (quoting Wong Sun v. United States , 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). However, we also recognized the precise question presented was whether the doctrine was applicable "to these facts ." Id . at 255 (emphasis added). In that regard, we noted it is "axiomatic ... that once a judicially created rule is promulgated, the common law system requires that appellate courts consider this rule in its various factual guises and expand or contract the rule as justice requires." Id . Along those lines, we further explained how the exact significance of varying factual situations from case to case "is apparent only upon a more detailed consideration of Pennsylvania's view of the protections which have traditionally been associated with the Fourth Amendment." Id .

Our focus ultimately fell on the enhanced protections afforded by Article I, Section 8 of the Pennsylvania Constitution. We explained that unlike its federal counterpart, which has a singular purpose of deterring police misconduct, Article I, Section 8 goes further by "safeguard[ing] privacy and the requirement that warrants shall be issued only upon probable cause[.]" Id . at 256. Taking into account the aims of Article I, Section 8 and the vastly different factual scenario presented,¹¹ we held that "where police seize evidence in the absence of a warrant or exigent circumstances by forcibly entering a dwelling place, their act constitutes a violation of Article I, Section 8 ... and items seized pursuant to their illegal conduct may not be introduced into evidence in a subsequent criminal prosecution." Id . at 257 ; see id . at 256 ("Where the police battering ram is at the door, without exigent circumstances and without a warrant, it is plain that the violent shattering of the door constitutes an unconstitutional invasion of privacy of which every person in this Commonwealth may complain.").

11 Notably, we found "significant factual differences" between Brundidge and Mason :

First, in the present case, the place of invasion is a dwelling place, whereas in Brundidge it was a motel room for which registration had expired; second, the mode of entry in the present case was a battering ram, but in the Brundidge case, the trooper simply walked through the open door; third, in the present case, there was no reasonable explanation for battering down the door before the warrant arrived, but in the Brundidge case, the trooper entered the motel room after checkout time at the invitation of the manager.

Mason , 637 A.2d at 255 (footnote omitted).

Then-Justice Cappy concurred and wrote separately to express his continuing disagreement with our prior decision in Brundidge , in which he dissented. In his view, an expansive application of the Independent Source Doctrine contravenes the clear purpose of Article I, Section 8 and "undermines the fundamental principle that the admissibility of evidence discovered during a warrantless entry without exigent circumstances is the exception to the rule rather than the rule itself." Id . at 257 (Cappy, J., concurring) (emphasis in original). According to Justice Cappy, the Independent Source Doctrine should apply only in "the very limited circumstances where the ‘independent source’ is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered." Id . at 257-58 (emphasis omitted). "Only such limitations on the doctrine," he argued, "can effectively protect from the possibility that police might engage in misconduct without fear of consequence." Id . at 258.

Only three years later, in Melendez , we revisited the application of the Independent Source Doctrine in the context of a warrantless entry of a residence. In that case, as a result of a three-week investigation into possible drug activity occurring within Melendez's house, officers at the scene communicated with officers at another location in an effort to secure a search warrant for the premises. Before the warrant was obtained, Melendez left the house, entered a vehicle, and began to drive away. The officers stopped her and removed her from the car. A search of her purse revealed a handgun, a large amount of cash, and what the officers described as a drug tally sales sheet. The officers then transported Melendez back to her house and used her keys to gain entrance. Inside they observed a man holding a bag of cocaine. The officers secured the residence and waited for the search warrant for approximately an hour. When the warrant finally arrived, the officers searched the house and found drugs, cash, and other evidence of criminal activity. Melendez was subsequently convicted of various drug and gun charges after the trial court denied her motion to suppress the evidence.

Melendez argued on appeal that the warrantless entry into her home was illegal, thus requiring suppression of all evidence obtained pursuant to the search warrant. Relevant for our purposes, the Superior Court held the evidence was admissible under the Independent Source Doctrine. On further review, we disagreed. Citing Mason , we explained that although our precedents recognize the Independent Source Doctrine, the forcible entry into a dwelling place without a warrant or exigent circumstances violates Article I, Section 8. Melendez , 676 A.2d at 231. We further saw fit to adopt the limitations proposed by Justice Cappy in Mason , and held that application of the Independent Source Doctrine is proper only " ‘in the very limited circumstances where the "independent source" is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.’ " Id ., quoting Mason , 637 A.2d at 257-58. Applying that new rule to the facts in Melendez , we concluded the Independent Source Doctrine did not apply, as there was no source of evidence that was truly independent of either the tainted evidence or the police who engaged in the misconduct. We explained,

Government agents may not enter private dwellings through the use of battering rams as in Mason , or by effecting illegal stops and seizures as in this case, and secur[ing] the premises ... while police wait to learn whether their application for a warrant has been approved. It is difficult to imagine practices more inimical to the fundamental idea that no person shall be subject to unreasonable searches and seizures.

Id . at 231-32.

As the above cases demonstrate, this Court has occasionally refined the contours of the Independent Source Doctrine's applicability in this Commonwealth to account for novel factual circumstances in claims arising under our state charter. While we initially paralleled the federal analysis, through our decisions in Mason and Melendez , we have imposed additional constraints on the doctrine's applicability to safeguard our citizens' right to privacy in their dwellings, particularly where police violate those rights though intentional misconduct. However, the parties and the Superior Court in this case have all overlooked yet another important decision in this evolving line of jurisprudence: our decision in Commonwealth v. Henderson , 616 Pa. 277, 47 A.3d 797 (2012). For the reasons that follow, we conclude our decision in Henderson is dispositive of this matter.

The circumstances in Henderson involved application for a search warrant to obtain DNA from the defendant, Calvin Henderson, a suspect in a violent rape-kidnapping case. A detective with the sexual assault unit prepared an affidavit in support of probable cause, secured a magistrate's approval of a search warrant, and collected samples of Henderson's DNA, which ultimately implicated him in the crimes. After his arrest, Henderson lodged a pretrial motion to suppress on the ground that the detective's affidavit was insufficient to establish probable cause. The motion evidently raised concerns on the prosecution's part, as a decision was made to secure a second warrant with the intent of invoking the Independent Source Doctrine. To that end, another detective within the sexual assault unit was tasked with undertaking a probable-cause investigation to support a second search warrant. The second detective spoke with the first detective, reviewed the existing case file and medical records, inquired into Henderson's background, and interviewed one collateral witness. He then applied for and secured a second warrant to seize additional blood samples from Henderson. Henderson responded by filing a second suppression motion in which he alleged the second warrant was not the product of an independent source. After the trial court denied suppression, Henderson was convicted of the charged offenses and the Superior Court affirmed on appeal.

We granted review to consider "whether the independent source doctrine validates a serial search warrant obtained from a second investigation conducted by a police officer from the same department." Henderson , 47 A.3d at 800. The Court, in an opinion authored by then-Justice (now-Chief Justice) Saylor and joined in full by former Chief Justice Castille and former Justices Eakin and McCaffery,¹² noted the Commonwealth did not contest that the second investigation failed to meet the Melendez requirement of "true independence," but nevertheless "advocate[d] the application of a less exacting standard to circumstances that do not involve a knowing circumvention of a suspect's constitutional rights through intentional police misconduct." Id . at 802. The Commonwealth urged us to conclude the appropriate standard in the absence of police misconduct is the two-part inquiry initially set forth in Murray and adopted by this Court in Brundidge. See Brundidge , 620 A.2d at 1119 (application of Independent Source Doctrine depends on "(1) whether the decision to seek a warrant was prompted by what was seen during the initial entry; and, (2) whether the magistrate was informed at all of the information").

12 As discussed in more detail infra , Justice Todd concurred in the result and authored a concurring opinion in which Justice Baer joined. Former Justice Orie Melvin did not participate in the consideration or decision of the case.

In considering the Commonwealth's request for refinement of the Melendez standard, the Court first acknowledged that former Chief Justice Cappy, the architect of the independent-investigative-team requirement, plainly intended "the requirement of true independence ... to have meant just that." Henderson , 47 A.3d at 803. The Court also recognized the "sincere intentions underlying the innovation" of the rule, which was bred out of "a heartfelt desire to vindicate the privacy interests of Pennsylvania citizens against unlawful government conduct." Id. Nevertheless, the Court explained that since "the independent source doctrine lies outside the terms of the Pennsylvania Constitution, the embellishments of Mason and Melendez represented a form of prophylactic judicial lawmaking[.]" Id . ; see also Mason , 637 A.2d at 255 ("It is axiomatic, of course, that once a judicially created rule is promulgated, the common law system requires that appellate courts consider this rule in its various factual guises and expand or contract the rule as justice requires."). As such, the Court determined it was free "to consider whether the broader pronouncements made there are as sensibly applied elsewhere, as new fact patterns are presented diverging from those before the Court in Mason and Melendez ." Id . ; see id. ("the experience with broadly stated prophylactic rules often has been that they cannot be sustained on their original terms").

The Court proceeded to reassess the value of the Melendez requirements as applied to the facts in Henderson , and concluded it was "unwilling to enforce a ‘true independence’ rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting [the defendant] with his crimes." Id . at 804. The Court held:

[I]n light of the factual circumstances before the Court in both Melendez and Mason , we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. Ultimately, we believe the ‘twin aims’ of Article I, Section 8 — namely, the safeguarding of privacy and enforcement of the probable-cause requirement — may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

Id . at 805 (internal citations and footnote omitted). In reaching this conclusion, the Court explained "[t]he greatest difficulty in the enforcement of a prophylactic rule intended to guard individual liberties is on account of the competing value in society's interest in identifying and punishing wrongdoers[,]" which, among other ways, "is manifested in the context of the independent source rule in the courts' reluctance to put police in a worse position than they were in prior to an irregularity." Id . at 804.¹³

13 As noted, Justice Todd authored an opinion concurring in the result but departing from the majority's decision to "radically constrict the applicable scope of [the Melendez ] rule to only those limited instances in which police engage in the specific egregious police misconduct which was exhibited in those cases — namely, battering down the door of an apartment with a battering ram without probable cause (Mason ), or unlawfully seizing the owner of a house and using her key to gain entry to her house (Melendez )." Henderson , 47 A.3d at 809 ; see also id . at 810 ("the majority has truncated the Mason /Melendez rule in a sweeping and prospective fashion so that it will henceforth apply only to those narrow subset of cases in which police conduct amounts to ‘willful misconduct’ or ‘malfeasance’ "). In Justice Todd's view, the second blood tests obtained through the execution of that warrant were admissible even under the Melendez rule and, therefore, there was "no justification to re-assess this rule, as the majority has done." Id . at 817.
Former Chief Justice Castille authored a separate concurring opinion which he explained was "primarily to respond to" Justice Todd's concurring opinion and her support for "extension of the Melendez rule ... to embrace factual circumstances ... where there was no police misconduct." Henderson , 47 A.3d at 806 (Castille, C.J., concurring). In this regard, Chief Justice Castille expressed his view that there was no police violation or misconduct at all because "[a] judicial officer erred, as judicial officers occasionally do, in assessing probable cause for the first warrant. That judicial error did not operate to taint the police ‘investigative team.’ " Id . at 808. Moreover, Chief Justice Castille argued that, to the extent Melendez purported to speak to circumstances not involving police misconduct (such as those in Henderson ), "its prophylactic rule was, by definition, obiter dicta ." Id . at 807.

In sum, Henderson confirms the continued viability of the Melendez requirements but limits their application to cases of "willful misconduct" or "malfeasance"; absent such circumstances, "the Murray standard strikes the appropriate balance between privacy and law enforcement." Id . at 805.¹⁴ The relevant question we must answer first, then, is whether the conduct at issue herein constitutes "willful misconduct" or "malfeasance" on the part of the police, thereby bringing this case under the purview of the Melendez requirements. Id . We conclude it does not.

14 The dissent goes to great pains to resist Henderson 's application to this case. Among other things, the dissent: implies we have strayed from the proper bounds of the question presented, see, e.g. , Dissenting Op. at 497 ("[t]he Majority does not answer the question as presented"); casts doubt on the reach of Henderson 's limitation on Melendez , while at the same time offering veiled criticisms of the former's underlying rationale, see, e.g. , id . at 499 ("I fail to see why Henderson should be read to replace one per se rule with another"); remarks we have "exten[ded]" Henderson 's holding and adopted a new bright-line rule, id. at 500–01; suggests Henderson is merely distinguishable from the instant case, see, e.g. , id . at 501 ("[u]nlike Henderson this case involves a pure Article I, Section 8 claim"); and contends our decision is at odds with our prior rejection of the good faith exception to the exclusionary rule, see, e.g. , id . at –––– ("applying Henderson under these circumstances would severely diminish the force of [Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 899 (1991) ], which refused to adopt the ‘good faith’ exception to the exclusionary rule under Article I, Section 8"). Respectfully, we find this litany of arguments unpersuasive.
Initially, as the dissent itself concedes, whether the Independent Source Doctrine applies presents a question of law, see id . at 497, and since "Henderson is part of our jurisprudence ... we must apply the law as we have developed it." Id . at 497. We therefore reject the notion we have somehow exceeded the proper bounds of review by invoking Henderson . We likewise reject the dissent's attempts to minimize, discredit, and distinguish the rule announced in Henderson . The Henderson majority, over a forceful concurring opinion authored by Justice Todd, unequivocally "deem[ed] it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct." 47 A.3d at 805 ; see id . at 804 ("[W]e are unwilling to enforce a ‘true independence’ rule in the absence of police misconduct[.]"). Although the dissent would have us hold these statements do not rise to the level of a categorical rule because earlier in the opinion we used the phrase "[i]n the present circumstances," id ., there is nothing limiting or remarkable about such a statement; it merely reflects the reality that, as in most search and seizure matters, our understanding of the law is shaped by the particular facts at hand. See generally Commonwealth v. Smith , 621 Pa. 218, 77 A.3d 562, 571 (2013) (recognizing "the very wording of the constitutional protection lends itself to examinations of particular facts and circumstances in individualized cases"). As such, the dissent's portrayal of our decision herein as extending Henderson or adopting a new bright-line rule, is mistaken.
More foundationally, the dissent's various arguments concerning the exclusionary rule, the good faith exception rejected by this Court in Edmunds , and principles of deterrence all completely miss the legal mark. The reason is simple: "[T]he exclusionary rule has no application [when] the Government learn[s] of the evidence ‘from an independent source[.]’ " Wong Sun v. United States , 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (emphasis added), quoting Silverthorne Lumber Co. v. United States , 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See also Henderson , 47 A.3d at 806 n.2 (Castille, C.J., concurring) ("The independent source doctrine does not involve an exclusionary rule ‘exception,’ such as the good faith exception, but a question of taint from prior illegality, which implicates principles of independence and attenuation. It is not an ‘exception’ to the exclusionary rule to admit untainted evidence; no rational application of an exclusionary rule would exclude untainted evidence."). It should therefore go without saying that if the exclusionary rule has no application to this case, then it matters not that " ‘privacy, rather than deterrence, is the primary reason for our exclusionary rule.’ " Dissenting Op. at 499, quoting Commonwealth v. Britton , ––– Pa. ––––, 229 A.3d 590, 611 n.8 (2020) (Wecht, J., concurring). Along those lines, we disagree with the dissent that our decision in Henderson , or in this matter, ignores the holding in Edmunds . See State v. Betancourth , 190 Wash.2d 357, 413 P.3d 566, 574 (2018) (expressly rejecting a claim that the Independent Source Doctrine operates as some sort of "guise for importing a good faith" test into state constitutional analyses); see also Commonwealth v. Ruey , 586 Pa. 230, 892 A.2d 802, 819 n.3 (2006) (Saylor, J., concurring, joined by Castille, C.J.) (applying the Independent Source Doctrine under the particular circumstances was not "in conflict with this Court's decisions eschewing a generalized good faith exception to the exclusionary rule[,]" even though it appeared to contain a good faith component). On a final related note, we disagree with the dissent that "this case involves a pure Article I, Section 8 claim[,]" id . at 501, and that "Article I, Section 8 was always at issue[.]" Id . at 501 n.10. Our review of the record reveals appellant has never suggested Article I, Section 8 constrains our application of the Independent Source Doctrine — at least not beyond those prophylactic limitations discussed in the cases above. Through its failure to acknowledge this point, the dissent erroneously minimizes the Fourth Amendment's relevance to its analysis while simultaneously overemphasizing Article I, Section 8's heightened privacy protections.

The only "misconduct" appellant alleges in this case is that "six separate ‘seizures’ or intercepts were made at [his] home on six separate dates over a period of six weeks on the basis of one showing of probable cause[.]" Appellant's Brief at 11. As earlier noted, these recordings were made pursuant to a judicially-authorized order following a probable cause determination. From appellant's perspective, this order "was invalid" because Section 5704(2)(iv) of the Wiretap Act supposedly only authorizes one intercept per showing of probable cause. Appellant's Brief at 18. Thus, appellant reasons, the six recordings made after the initial recording were unauthorized, "[a]nd it was these several constitutionally and statutorily improperly recorded events ... that provide[d] essentially all of any relevant probable cause contained in the search warrant affidavit for [his] home[.]" Appellant's Brief at 37.¹⁵

15 Specifically, appellant claims the recordings made on the following dates were unauthorized: May 20, May 25, May 31, June 9, June 22, and June 27, 2011; he does not challenge the first recording made on May 16, 2011. See Appellant's Brief at 11.

Plainly, the "misconduct" alleged in this case is not remotely within striking distance of the egregious misconduct at issue in Mason and Melendez . Cf. Henderson , 47 A.3d at 802 n.9 (" Mason involved an illegal invasion into a private dwelling via the use of a battering ram. Melendez strongly disapproved a police strategy of creating an ‘exigency’ by arresting one person outside of a home, then using the arrest as an excuse to enter the premises illegally[.]") (internal citations omitted). In fact, even assuming arguendo that appellant's interpretation of Section 5704(2)(iv) is the correct one, it is still hard to see precisely how the police engaged in any misconduct whatsoever when they were operating pursuant to a court order; if anything, as in Henderson , the "error" here was "judicial," insofar as a court order explicitly permitted unlimited interceptions of appellant's communications for a period of thirty days. See id . at 808 (Castille, C.J., concurring) (positing that judicial errors do not "taint the police ‘investigative team’ "). But regardless of whether the alleged error here falls at the feet of the judiciary or law enforcement, the fact remains that this case does not involve any "willful misconduct" or "malfeasance" at all. Instead, as the OAG succinctly explains,

the police sought and were granted a court order authorizing an in-home recording, meaning they had sought and were operating under what they believed to be a valid authorization for their activities. The observed or anticipated pattern of rogue and/or bad faith conduct on the part of the police that this Court was clearly so intent on stamping out in Melendez through its restrictive interpretation of the independent source doctrine is therefore not present here.

OAG's Brief at 22. Consequently, since this matter does not fall into the narrow subset of cases involving police conduct which amounts to "willful misconduct" or "malfeasance," the Melendez requirements are inapplicable.¹⁶ Harkening back to the Murray standard, we must now determine "(1) whether the decision to seek a warrant was prompted by what was seen during the initial entry; and, (2) whether the magistrate was informed at all of the information." Brundidge , 620 A.2d at 1119 ; accord Murray , 487 U.S. at 542, 108 S.Ct. 2529 ("The ultimate question ... is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.") (footnote omitted). To answer these questions, we need not look beyond the four corners of the affidavit of probable cause.

16 The dissent at one point asserts that "[e]xclusion of the evidence is the price that must be paid to protect [appellant's] privacy rights." Dissenting Op. at 502; see also id . at 498 (arguing "no relief is forthcoming because the Majority holds that the officers could have secured the same evidence even without the recordings"). We stress that the issue in this appeal concerns the Independent Source Doctrine and, in particular, its application with respect to the search warrant , not the recordings themselves . Below, the en banc Superior Court majority appreciated this distinction, as well as the fact that if appellant's Article I, Section 8 rights were actually violated (a question not reached by that court), he would undoubtedly be entitled to suppression of the recordings themselves, which "is no mere constitutional consolation prize." Katona , 191 A.3d at 24 ; see also id . ("playing a recorded statement of [a]ppellant's own words, in his own voice, [would be] far more probative and damaging than offering a [confidential informant's] testimony as to the substance of the conversations"). Since it is apparent that there already exists a full remedy for those purported violations, the real result of the dissent's view is that it would double those consequences — it would require suppression of not only the recordings themselves, but also of any evidence discovered pursuant to the search warrant, even if, as we conclude below, the warrant served as an untainted and independent source.

As noted at the outset, the affidavit in this case is exceedingly long and detailed. Given its length, it is not practical to reproduce the entirety of it here. In any event, doing so is unnecessary as the last few paragraphs alone are illustrative of the affidavit as a whole and dispositive of the questions above. For example, the affidavit states:

42. On June 22, 2011, Trooper James Aughinbaugh and Trooper Jeff Mermon met with the CI. Preparations were made with the CI to make a controlled payment of $1100.00 to [appellant] for the Cocaine fronted to the CI on June 15, 2011. In addition this meeting was also to prepare the CI to make another 2 (two) ounce quantity purchase of Cocaine from [appellant]. In the presence of [ ] Trooper Jeff Mermon, the CI made contact with [appellant] by sending him a text message. A response received from [appellant] lead [sic] investigators to believe that he would be at home. After searching the CI and his vehicle, he was provided with $1100.00 in Official Funds, provided with a recording device and followed to [appellant]'s residence at 113 Ember Lane Hermine PA. Surveillance was conducted in the area by members of PSP during the time of the payment and purchase of Cocaine at [appellant]'s residence. After leaving [appellant]'s residence the CI was followed to a predetermined location. Once there the recording device was retrieved from the CI. Additionally the CI produced 4 (four) vacuum sealed plastic bags containing a white substance, which the CI identified as 2 (two) ounces of Cocaine provided to him by [appellant]. A search of the CI and his vehicle was conducted prior to departing.

...

44. On June 27, 2011 your affiant and Trooper Aughinbaugh met with the CI. Preparations were made with the CI to make a controlled payment of $1100.00 to [appellant] for the Cocaine fronted to the CI on June 22, 2011. In the presence of your affiant, the CI made contact with [appellant] by sending him a text message. A response received from [appellant] lead [sic] investigators to believe that he would be at home. After searching the CI and his vehicle, he was provided with $1100.00 in Official Funds, provided with a recording device and followed to [appellant]'s residence at 113 Ember Lane Herminie PA. Surveillance was conducted in the area by members of PSP during the time of the payment at [appellant's] residence.

After leaving [appellant]'s residence the CI was followed to a predetermined location. Once there the recording device was retrieved and a search of the CI and his vehicle was conducted. The CI advised that in addition to other conversation [appellant] made statements leading him to believe that he ( [appellant] ) would be have [sic] a quantity of Cocaine and Methamphetamine at his ( [appellant]'s) house on Wednesday (6/29/11) .

...

47. Based on the aforementioned information, including interviews conducted with the CI, purchases of controlled substances, controlled monetary payments and information received from members of the Pennsylvania State Police involved with this investigation and others with expertise in the field of narcotics investigations, which is believed to be true and correct, your affiant believes there is probable cause supporting the fact that [appellant] is involved with the possession, sale, and distribution of controlled substances particularly Cocaine and Methamphetamine, from his residence of 113 Ember Lane Herminie PA.

Affidavit of Probable Cause, 6/29/2011 (underlining and bolding added).

With respect to whether the Commonwealth's decision to seek a search warrant was prompted by what it learned from the allegedly improper recordings, see Brundidge , 620 A.2d at 1119, that question is squarely answered by the bolded contents in paragraph 47 of the affidavit. Notably, Trooper Baumgard explicitly stated he was seeking the warrant based on, inter alia , interviews with the CI and the results of multiple controlled buys that he and his team had conducted over the course of more than a month. Even more pointedly, paragraph 44 explains that on June 27, 2011, the CI "advised" Trooper Baumgard, i.e. , personally told him, that appellant had made statements indicating he was going to have drugs at his house on June 29, 2011. Trooper Baumgard's own attestations therefore prove the decision to obtain a search warrant for appellant's home on June 29, 2011, was prompted not by any recording made by the CI, but instead by the totality of the evidence he and his team collected over the course of their long-running investigation. As further support, we observe that earlier portions of the affidavit also explain that Trooper Baumgard and his team began investigating appellant for suspected drug dealing prior to the CI making any recordings. See id . at ¶22 ("in the days leading up to the events of May 16, 2011 several instances became known which suggested that [appellant] was currently involved with the sale and distribution of Cocaine"). In light of these various averments, it simply cannot be said that the Commonwealth's decision to seek a search warrant was prompted by the allegedly illegal recordings made by the CI. See Murray , 487 U.S. at 542 n.3, 108 S.Ct. 2529 ("To determine whether the warrant was independent of [the alleged illegality], one must ask whether it would have been sought even if what actually happened had not occurred[.]").

Resolving the next inquiry — whether the magistrate was informed at all of the allegedly improper recordings, see Brundidge , 620 A.2d at 1119 — is a marginally more difficult task. As the underlined portions in paragraphs 42 and 44 above demonstrate, at times the affidavit did reveal to the magistrate that the CI recorded certain conversations with appellant. But, it seems obvious from the underlined passages that such references merely relayed the factual progression of the investigation from the vantage point of Trooper Baumgard, and the affidavit did not otherwise purport to set forth the contents of any of those recorded conversations. Indeed, the only conversations detailed in the affidavit are those that the CI personally relayed to Trooper Baumgard or other members of his investigative team. See, e.g. , ¶26 ("The CI said he then left [appellant]'s residence and immediately called to inform your affiant of the situation"); id . at ¶34 ("The CI related that he purchased the ‘Pagan’ shirts from [appellant] and during their conversation [appellant] retrieved the clear bag that contained two ounces of Cocaine from a blue ‘money bag.’ The CI went on to relate that [appellant] told him he wanted $1100.00 per ounce for a total of $2,200 for the Cocaine."); id . at ¶42 ("Additionally the CI produced 4 (four) vacuum sealed plastic bags containing a white substance, which the CI identified as 2 (two) ounces of Cocaine provided to him by [appellant]."); id . at ¶44 ("The CI advised that ... [appellant] made statements leading him to believe" appellant would have drugs at his "house on Wednesday (06/29/11).").¹⁷ Under these circumstances, it would be unreasonable to conclude the vague and brief references to the CI being "provided with a recording device" and law enforcement subsequently "retrieving" those recordings, in any way "affected [the magistrate's] decision to issue the warrant." Murray , 487 U.S. at 542, 108 S.Ct. 2529. Accordingly, we conclude the second prong of Murray is also met.

17 These quotations directly refute appellant's claim that in all but one paragraph of the affidavit there is not "a single reference to the CI discussing with the police what was said to him in his meeting[s] ... at [appellant]'s house." Appellant's Brief at 26-27.

As the two-part inquiry established in Murray has been satisfied, we agree with the Superior Court that the Independent Source Doctrine may provide a basis for affirming the trial court's denial of appellant's motion to suppress the evidence recovered from his house.¹⁸ The only question that remains is whether the affidavit, when stripped of all references to the allegedly improper recordings, provided the magistrate with probable cause to issue the warrant. See, e.g. , Edmunds, 586 A.2d at 899 ("The linch-pin that has been developed to determine whether it is appropriate to issue a search warrant is the test of probable cause.") (internal citation and quotation omitted); see also Commonwealth v. Weidenmoyer , 518 Pa. 2, 539 A.2d 1291, 1296 (1988) ("the presence of some improper information in [an] affidavit is not enough to invalidate the search warrant if the warrant is also based upon other competent sources and is sufficient to constitute probable cause") (citations omitted). The parties dispute whether this standard has been met. Compare Appellant's Brief at 46-47 ("[w]hen [paragraphs 30-34, 38, and 41-44] are redacted from the affidavit, no present probable cause exists") with OAG's Brief at 17-19 (contending paragraphs 23, 26, 34, 42, 44, and 47 "clearly establish a nexus between [appellant]'s residence and illegal activity"). We have little hesitation in agreeing with the OAG that the affidavit, even absent all references to the recordings, provided ample probable cause supporting issuance of the search warrant.

18 We do, however, depart from the Superior Court's analysis in some respects. Whereas the Superior Court "dr[e]w a distinction between a search of those words as contained within the recordings versus a ‘search’ occasioned by the [CI] hearing the words" and concluded appellant had no reasonable expectation of privacy in the actual substance of his conversations, Katona , 191 A.3d at 23 n.11, we find it unnecessary to explore this issue further for purposes of this appeal. While the Superior Court's discussion of our decisions in Brion and Rekasie presents a thoughtful and compelling rationale in support of its view, the instant matter can more simply be resolved through a straightforward application of Henderson and Murray .

As previously noted, multiple paragraphs reveal that the CI successfully completed controlled drug buys at appellant's house, after which the CI turned over the drugs to the police, who had surveilled the encounters. See, e.g., Affidavit of Probable Cause, 6/29/2011, at ¶¶34, 42. Other paragraphs disclose that the CI personally informed the investigative team of the conversations he had with appellant concerning the drug buys. See, e.g. , ¶¶34, 44. As well, and as appellant rightfully concedes, all evidence pertaining to the events occurring on May 16, 2011 — the first date on which the CI recorded his interaction with appellant — was properly obtained and therefore must also be considered in the probable cause analysis. Relevantly, the affidavit provides:

26. The CI described the location of the bedroom as being in front of them as they reached the top of the steps. Once inside the bedroom the CI described a dresser on the right side of the room; [appellant] reached into the third drawer of the dressed and produced a yellowish colored envelope with two plastic ziplock bags inside. The CI asked [appellant] what as in the bag and [appellant] responded by saying "a ½ pound of coke." The CI told [appellant] that he/she would take two of those (meaning two ounces of cocaine) and [appellant] told him/her to take all of it. The CI recalled [appellant] saying something to the effect of "I just got this for you cause I knew you were unhappy with Tony's stuff being too expensive and ‘whacked.’ " The CI added that he told [appellant] that they did not want that much cocaine at one time but instead only wanted a couple of ounces. [Appellant] told the CI to take it anyway. The CI said [appellant] quoted the price of $9800.00 for the cocaine. Additionally the CI said the two spoke about the CI's ability to pay [appellant] for the cocaine. [Appellant] said he wanted $4000.00 or $5000.00, preferably $5000.00 paid to him later that night because he was leaving town. Additionally [appellant] said he would let the rest "ride" for a little while. (Meaning, he agrees to be paid at a later date.) The CI said he then left [appellant]'s residence and immediately called to inform your affiant of the situation.

Id . at ¶26. And, perhaps most importantly, Trooper Baumgard attested in paragraph 44 that the CI "advised that ... [appellant] made statements leading him to believe" appellant would have drugs at his "house on Wednesday (06/29/11)." Id . at ¶44. The totality of this information was easily sufficient to establish probable cause for an anticipatory search warrant of appellant's home.

In conclusion, we reaffirm Henderson 's limitation on Melendez . That limitation is particularly warranted as applied to the factual circumstances of this case so as to avoid "put[ting] police in a worse position than they were in prior to an irregularity." Henderson , 47 A.3d at 804 ; see also Sutton v. United States , 267 F.2d 271, 272 (4th Cir. 1959) ("It is one thing to say that officers shall gain no advantage from violating the individual's rights; it is quite another to declare that such a violation shall put him beyond the law's reach even if his guilt can be proved by evidence that has been obtained lawfully."). As the OAG persuasively offers, "[t]o hold otherwise would confer undue benefit on a perpetrator of illegal activities and impose an unfair penalty on law enforcement and, by extension, society." OAG's Brief at 23. We agree and therefore affirm the Superior Court's application of the Independent Source Doctrine in this matter.¹⁹

19 Given our conclusion that the search warrant was valid and served as an independent source for the evidence obtained from appellant's house, we do not reach the issue of whether an order obtained under Section 5704(2)(iv) of the Wiretap Act permits unlimited interceptions for a period of thirty days. In this respect, we reiterate that appellant has raised both statutory and constitutional grounds in support of that claim. See, e.g. , Appellant's Brief at 15. Like the en banc Superior Court majority, we find that resolution of this second issue — on either statutory or constitutional grounds — is unwarranted in light of our disposition of the first issue. At the same time, however, we note that we too share in the Superior Court's observation that there is a certain lack of statutory direction on this point, and that additional legislative guidance in this area would be beneficial.

Chief Justice Saylor and Justices Baer and Todd join the opinion.

Justice Mundy files a concurring opinion.

Justice Donohue files a dissenting opinion in which Justice Wecht joins.

JUSTICE MUNDY, concurring

I join the majority's opinion in full, but I write separately to express my opinion regarding the statutory interpretation of 18 Pa.C.S. § 5704(2)(iv) of the Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"), which the majority declines to address. In my view, Section 5704(2)(iv) does not preclude issuing orders that permit the interception of communications for thirty days when based on probable cause.

Section 5704 provides numerous exceptions to the prohibition against intercepting wire, electronic or oral communications. See 18 Pa.C.S. § 5704. Section 5704(2)(iv), the exception at issue in this matter, was enacted in response to our decision in Commonwealth v. Brion , 652 A.2d 287 (Pa. 1994). The issue in Brion was "whether, under the Pennsylvania Constitution, the police can send a confidential [informant] into the home of an individual to electronically record his conversations and transmit them back to police." Id. at 287. We explained that unlike other locations, recording communications inside one's home involves increased privacy concerns. Id. at 289 ("For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home."). As a result, we held that, absent a determination of probable cause by a neutral judicial authority, such recordings inside the home violate Article I, Section 8 of the Pennsylvania Constitution. Id. Brion did not provide any parameters concerning time limitations on such orders.

In response to Brion , the legislature enacted Section 5704(2)(iv), and in my view, its objective was to make clear that law enforcement officers seeking to intercept communications in a suspect's home through the use of a confidential informant must secure an order supported by probable cause from a neutral judicial authority. I do not believe that the legislature's silence with respect to duration of the order compels the conclusion that it must be limited to specific episodes. Rather, the common-sense conclusion would be to apply the general time limitations for intercepting communications outlined in Section 5712(b), which provides as follows:

(b) Time limits. No order entered under this section shall authorize the interception of any wire, electronic or oral communication for a period of time in excess of that necessary under the circumstances .... No order entered under this section shall authorize the interception of wire, electronic or oral communications for any period exceeding 30 days. The 30-day period begins on the day on which the investigative or law enforcement officers or agency first begins to conduct an interception under the order, or ten days after the order is entered, whichever is earlier. Extensions or renewals of such an order may be granted for additional periods of not more than 30 days each. ...

18 Pa.C.S. § 5712(b). Indeed, our rules of statutory interpretation direct us to construe statutes or parts of statutes relating to the same persons or things or to the same class of persons of things together as one statute when possible. 1 Pa.C.S. § 1932. This necessarily applies to the statutes encompassed in Chapter 54, which all address wiretapping and electronic surveillance. Because this general provision authorizes the interception of communications for thirty days, I would conclude that the instant order permitting the same was lawful.

This conclusion is also consistent with a plain language interpretation of the statute. See 1 Pa.C.S. § 1921(b) ; Commonwealth v. Mock , 219 A.3d 155 (Pa. 2019) ("The best indication of legislative intent is most often the plain language of the statute."). The title of Section 5704 refers to the interception of communications. The use of the plural "communications" in this provision signals that a single order may be used to intercept multiple exchanges, as opposed to single episodes. Moreover, the definition of "intercept" provided in Section 5702 refers to the plural "contents" of any wire, electronic or oral communication, further suggesting multiple exchanges are permissible.

Finally, I note that interpreting Section 5704(2)(iv) as allowing for interception of specific episodes is in conflict with the exceptions outlined in the statute, as the circumstances of this case demonstrate. Katona's arrangement with the confidential informant did not involve carrying out a completed drug sale during a single visit to the home. Instead, Katona would "front" contraband to the confidential informant, who would then make payments over a period of time. The instant order reflects the reality of this agreement by providing a window in which communications could be intercepted. If Section 5704(2)(iv) orders permit interception only for specific episodes, law enforcement would be unable to record the entirety of such a transaction without seeking an additional order based on the same information relayed at the time the first was issued.^{1 1} Such a limited interpretation would also preclude interception of communications in a situation where a confidential informant and a suspect initially enter the home, briefly retreat outside, and then reenter the home. The point of reentry would seem to constitute a new episode, requiring law enforcement to secure an additional order. The legislature cannot have envisioned a rule where every single entry into a home for a consensual interception would require a separate warrant when it enacted Section 5704(2)(iv).

1 This is not to say that an order issued pursuant to Section 5704(2)(iv) permitting interception of communications for an extended period of time may nonetheless be illegal where the affidavit of probable cause does not support a multi-day operation.

1 Henderson is cited and discussed in an amicus brief, which argues that Henderson was inapplicable because "the police officers who discovered the constitutionally tainted evidence are the same ones who purport to rely on independent evidence in applying for a search warrant." Amicus Brief of Public Defender Association of Pennsylvania at 27. In Katona's reply brief, he argued that in Henderson "there were two searches with two separate search warrants. It is nothing like our situation." Katona's Reply Brief at 13. The Commonwealth did not cite the case.

In response to the dissent's suggestion that the above analysis is not adequately detailed, I submit no further examination is necessary. The dissent engages in a narrow, outcome-driven analysis, and as a result arrives at the tenuous conclusion that Section 5704(2)(iv) is "self-contained." Dissenting Op. at 508. In addition to ignoring the plain wording of the Wiretap Act outlined above, the dissent's conclusion also fails to acknowledge that if the General Assembly thought to distinguish between orders for consensual and nonconsensual intercepts, it would have plainly done so. Under the tenets of statutory construction, this Court must presume the General Assembly deliberately chose the words it included in its 1994 amendment. See, e.g. , Commonwealth v. Scolieri , 813 A.2d 672, 673 (Pa. 2002) ("we must accept that when the General Assembly selects words to use in a statute, it has chosen them purposefully."). Presently, the General Assembly made no indication that Section 5704(2)(iv) is "self-contained," nor did it indicate orders for consensual and nonconsensual intercepts should be treated differently. Rather, the legislature referred to orders of both types without distinction throughout the statute. In this way, the dissent is correct to point out that we must pay attention to what the statute says, as well as what it does not. See Dissenting Op. at 503 (citing Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co. , 788 A.2d 955, 962 (Pa. 2001) ). Unlike the afflicted reading of the relevant statutes offered by the dissent, the above analysis reveals their clear import: consensual intercepts issued pursuant to Section 5704(2)(iv) and supported by probable cause are subject to the thirty day time limit outlined in Section 5712(b).

JUSTICE DONOHUE, dissenting

The Commonwealth received a consensual wiretap order that purported to authorize unlimited in-home recordings in Katona's residence pursuant to Section 5704(2)(iv) of the Wiretap Act, 18 Pa.C.S. § 5704(2)(iv), for a period of thirty days. I would find that this order was illegal as the plain language only authorized one intercept. My learned colleagues in the Majority avoid this aspect of the case by holding that any illegality in that order and its attendant intercepts was irrelevant under the Independent Source Doctrine due to the absence of "willful misconduct" or "malfeasance" on the part of the police. That conclusion rests on an application of Commonwealth v. Henderson , 47 A.3d 797 (Pa. 2012), a case not cited by the court below nor the parties herein in their principal briefs.¹ While I agree that whether the doctrine applies presents a question of law, Majority Op. at 478 n.13, as developed below I am unconvinced that Henderson definitively resolves this case. I would limit our examination to the question presented on appeal, which asked only whether the Superior Court's application of the Independent Source Doctrine was consistent with Commonwealth v. Melendez , 676 A.2d 226, 231 (Pa. 1996). The answer is no. And because I would conclude that the wiretap order was illegal, I would reverse the order of the Superior Court.

I. Background

As the Majority aptly recounts, in 2009 the Pennsylvania State Police ("PSP") began working with a CI who was a member of the Irwin Chapter of the Pagan Motorcycle Club. On May 16, 2011, the CI was at Katona's home when Katona offered to sell him a half-pound of cocaine for $5,000, for which the CI could pay later that evening. The CI agreed, left Katona's residence with the contraband, and immediately turned it over to the PSP. Later that day, the Commonwealth, represented by the Office of the Attorney General, applied for and received a consensual wiretap order that allowed for unlimited intercepts within Katona's home for a period of thirty days. Relying on this order, the PSP sent the CI into Katona's home on multiple occasions over the next thirty days. At each visit, the CI wore a recording device and used pre-recorded money to pay for contraband he received from Katona. The PSP surveilled Katona's home during these visits and met with the CI immediately upon his departure to obtain the recordings. The majority of these interactions occurred in Katona's residence, and at all times the CI recorded their conversations. Based on information gathered from these transactions, Trooper Matthew Baumgard obtained a search warrant for Katona's residence based on, inter alia, interviews with the CI, the results of multiple controlled buys, surveillance, and retrieval of the recording device used by the CI. See generally Majority Op. at 478-82.

Katona argued that the Wiretap Act only authorized the first recording. Because the search warrant was based on information obtained from all of the recorded conversations, Katona argued that the search warrant was invalid and sought suppression of the items recovered, which included cocaine and methamphetamine. Katona also sought suppression of the recordings themselves, again on the basis that they were obtained in violation of the Wiretap Act.² The trial court denied the request for suppression. Katona argued on appeal that Section 5704(2)(iv) uses the term "interception" in the singular and therefore an order issued thereunder authorizes only one intercept. See Commonwealth v. Katona , 191 A.3d 8, 15 (Pa. Super. 2018) (en banc), appeal granted , 200 A.3d 8 (Pa. 2019). He argued that construction was in accord with Commonwealth v. Brion , 652 A.2d 287 (Pa. 1994), wherein this Court established that citizens have an expectation of privacy in conversations that occur in their homes, and that such conversations may not be intercepted without a prior determination of probable cause by a neutral judicial authority. Id . at 289. The General Assembly effectively codified our holding in Brion by enacting Section 5704(2)(iv). In Katona's view, interpreting Section 5704(2)(iv) to authorize more than one recording was akin to allowing multiple executions of a single search warrant, and thus, every recording beyond the first amounted to an unconstitutional search. 191 A.3d at 15. As relevant to the Majority's resolution of this case, the Commonwealth argued that, even if the interceptions were invalid, the officers' observations and the information relayed to the officers by the CI without any reference to the recordings themselves established probable cause, thus providing an independent, untainted source for the information that established the probable cause. Id.

2 Katona also challenged the recordings that occurred outside of Katona's residence as violative of Section 5704(2)(ii) of the Wiretap Act, see Omnibus Pre-Trial Motion, 3/22/2012, at 5-6, which provides that

Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities, including, but not limited to, the crimes enumerated in Section 5708 (relating to order authorizing interception of wire, electronic or oral communications), where:

* * *

(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be initiated, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however, such interception shall be subject to the recording and record keeping requirements of Section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.C.S. § 5704(2)(ii).

The Superior Court relied on a distinction not raised by the parties. The Superior Court acknowledged that Brion established a "reasonable expectation of privacy that a citizen will not be recorded by his guests, and therefore the actual recordings are subject to suppression." Id. at 20. The en banc panel noted that Brion did not speak to whether the information captured on the recordings, i.e. the words themselves, were subject to suppression. The Superior Court then turned to a subsequent decision from this Court, Commonwealth v. Rekasie , 778 A.2d 624 (Pa. 2001), as evidence for the "crucial distinction" between the use of a recording as substantive evidence versus reliance on information captured on the recording to obtain a search warrant. Katona , 191 A.3d at 20. In Rekasie , this Court rejected the federal principle that no expectation of privacy exists in information disclosed to another, and instead clarified that a constitutional analysis under Article I, Section 8 requires a broader consideration of both the person's actual expectation of privacy and whether society recognizes that expectation as reasonable. Id. at 20-21 (discussing Rekasie , 778 A.2d at 629-31 ).³ The Superior Court concluded that the present case presents an issue not addressed by Brion or Rekasie : whether a defendant is entitled to suppression of the substance of a conversation that took place in his home, assuming arguendo that the simultaneous recording of the conversation violated the defendant's Article I, Section 8 rights. Id. at 22. The Superior Court concluded that although Katona had a reasonable expectation that his in-home conversations with the CI would not be recorded, he had no reasonable expectation of privacy in the substance of those conversations. Id. Katona "took the risk that the CI was acting on behalf of the Commonwealth," id . at 23, and therefore nothing prevented the Commonwealth from using the contents of the conversations in the search warrant application.

3 Concurring in the decision reached in Rekasie , former-Chief Justice Castille emphasized that the Court did not consider whether the substance of the telephone conversations was subject to suppression, but only whether the recording itself is subject to suppression, and further explained that in his view, this distinction was significant because there is no expectation of privacy in information disclosed in conversation with another, absent a recognized privilege. Katona , 191 A.3d at 21-22 (discussing Rekasie , 778 A.2d at 633-34 ).

The court recognized that evidence that is potentially suppressible may be admissible where the Commonwealth can prove that it was discoverable through an independent source. Id. (citing Commonwealth v. Santiago , 160 A.3d 814, 827 (Pa. Super. 2017), aff'd , 209 A.3d 912 (Pa. 2019) ). It concluded that Katona's voluntary disclosures to the CI qualified as the independent source of information, and, further, that the search warrant "did not rely upon evidence derived from an unlawful wiretap, but rather the information disclosed to the authorities, which happened to also be recorded." Id. In other words, it could not be presumed that the Commonwealth obtained its evidence due to the recordings because "the Commonwealth knew the same information with or without the recordings." Id. Thus, it found that the trial court properly denied Katona's suppression motion. Id. at 24. Having reached this conclusion, the Superior Court declined to address the substance of Katona's challenge to the validity of the wiretap order. Id. at 16.

We granted Katona's petition seeking allowance of appeal to review two issues: (1) whether the Superior Court's application of the Independent Source Doctrine conflicts with our decision in Melendez , and (2) whether the § 5704(2)(iv) consensual wiretap order permitting interceptions for a period of thirty days was legal. See Commonwealth v. Katona , 200 A.3d 8 (Pa. 2019) (per curiam).

II. Katona Prevails on Question as Presented

The parties limit their arguments to the question as presented and accepted by this Court. Katona contends that the Superior Court's holding conflicts with Commonwealth v. Mason , 637 A.2d 251 (Pa. 1993), and Melendez , which required "true independence" when the Independent Source Doctrine is involved, with that term defined in terms of full investigative separation. Katona argues that such separation is not present here because the CI and PSP were part of the same "team." Katona's Brief at 17. Katona argues that "any post interception discussions with the CI about the conversations, assuming such discussions occurred, represent exploitation of the initial illegality." Id . at 22. Addressing the Superior Court's assertion that the independent source was Katona's voluntary disclosures to the CI, Katona states that the CI was acting as an agent of the police. Thus, the CI's authority to concurrently learn of the information via Katona's voluntary disclosures cannot be divorced from the in-home recordings. Katona argues that applying the Independent Source Doctrine to the voluntary disclosures is akin to citing the consent exception to justify an illegal search if a suspect consented following an illegal warrantless entry. The legal acquisition of Katona's words cannot be divorced from the illegal recordings.

The Commonwealth responds that Melendez should be read against its facts – the seizure of physical evidence, which occurred "only once and by only one means." Commonwealth's Brief at 11. The Commonwealth finds the present case more analogous to Commonwealth v. Santiago , 209 A.3d 912 (Pa. 2019), which involved "law enforcement's acquisition of ... information rather than physical evidence." Id . The Commonwealth argues that pursuant to Santiago , when the evidence at issue is of a non-physical nature, the critical inquiry is whether the challenged evidence was obtained by exploitation of the initial illegality or by means "sufficiently distinguishable to be purged of the taint" of the initial illegality. Id. at 13. Thus, according to the Commonwealth, the standards and application of the Independent Source Doctrine differ depending on whether the evidence⁴ at issue is tangible or intangible. Id. at 12-13. Where, as here, the intangible information evidence is obtained via two sources - one legal (debriefing the CI) and the other not (the recordings) – the Commonwealth contends that Santiago instructs that suppression is not warranted, absent a showing that the legal source was procured through an exploitation of the illegality. Id. at 13-14.

4 The Commonwealth uses the term "evidence" in this context to refer to the conversations recorded by the CI as distinguished from the physical evidence of drugs that occurred following execution of the search warrant which was based, in part, on the informational "evidence." See Commonwealth's Brief at 11 n.3.

Addressing the parties' arguments on their terms, I would hold that Katona is entitled to relief. Katona's argument heavily relies on Melendez and Mason , cases that examined the application of the Independent Source Doctrine under Article I, Section 8. Significantly, those cases declined to follow the United States Supreme Court's approach to the Independent Source Doctrine under the Fourth Amendment as established in Murray v. United States , 487 U.S. 533 (1988). Murray resolved the question of whether evidence seen in plain view upon an illegal entry could be lawfully recovered through a valid search warrant issued after the illegal entry. In Murray , federal agents were surveilling Murray and his co-conspirators. They observed Murray and another man drive vehicles into a warehouse, with the two men leaving about twenty minutes later. Some officers continued to watch the warehouse while others followed the vehicles. Murray and his companion turned the vehicles over to other drivers, who were arrested. A search of the vehicles recovered marijuana. Upon learning this, the agents watching the warehouse entered and observed "numerous burlap-wrapped bales that were later found to contain marijuana." Id . at 535. That search was unconstitutional and the agents did not seize the evidence. Instead, they exited and kept the warehouse under surveillance while other agents sought a warrant. That warrant, which did not mention the illegal entry or anything learned upon the entry, was then executed and resulted in seizure of the bales plus other evidence.

The Murray Court held that the illegal entry did not require suppression of the bales on the basis that their recovery was separately justified by execution of the warrant as an independent source. Its analysis on that point was tied to the high Court's narrow view of the exclusionary rule. A Fourth Amendment violation is complete when the unlawful seizure or search occurs and suppression is not a constitutional right of the aggrieved party. As a result, the exclusionary rule is designed "to safeguard Fourth Amendment rights generally through its deterrent effect ...." United States v. Calandra , 414 U.S. 338, 348 (1974). Because suppressing evidence leads to the exclusion of evidence of guilt, whether the exclusionary rule should apply reflects an exercise in weighing costs and benefits. On one side of the ledger is the costs to society engendered by suppressing evidence. On the other is the need to give the exclusionary rule teeth by ensuring that police officers are not rewarded for performing unconstitutional searches.

The United States Supreme Court's development of the Fourth Amendment's exclusionary doctrine places a heavy emphasis on the costs side of the equation. As far as the Court is concerned, "[t]he exclusionary rule exists to deter police misconduct." Utah v. Strieff , ––– U.S. ––––, 136 S. Ct. 2056, 2063 (2016) (citation omitted). And the Court has made clear that it exists only for that purpose. "The rule's sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations." Davis v. United States , 564 U.S. 229, 236 (2011). Indeed, the high Court has stated that but-for causality "is only a necessary, not a sufficient, condition for suppression." Hudson v. Michigan , 547 U.S. 586, 592 (2006). When weighing costs and benefits the question of whether an officer will be deterred is only one part of the equation; the issue of whether exclusion outweighs the costs must still be analyzed.

Because deterrence is the only purpose recognized by the high Court, the Murray Court's remedial analysis considered only whether suppressing the evidence would have deterred the officers from conducting the illegal entry that resulted in their knowledge of the bales. The petitioners asserted that applying the Independent Source Doctrine as an exception to exclusion would incentivize officers to make an illegal entry to see if incriminating evidence is actually there. If so, they could get a warrant; if not, they would save time and expense. The Court disagreed, emphasizing that the illegal entry still posed risks:

An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it. Nor would the officer without sufficient probable cause to obtain a search warrant have any added incentive to conduct an unlawful entry, since whatever he finds cannot be used to establish probable cause before a magistrate.

Id . at 540 (internal citation omitted).

As indicated by the reference to convincing a magistrate, a limitation on the Independent Source Doctrine is that the purportedly independent source must be "in fact a genuinely independent source of the information and tangible evidence at issue[.]" Id . at 542. The Murray Court remarked that the warrant would not have been genuinely independent if (1) the decision to seek the warrant was prompted by what the agents observed during the illegal entry or (2) if information obtained during the illegal entry was presented to the magistrate and affected the decision to issue the warrant.⁵ Id . If neither condition is present, the evidence should not be suppressed because to do so would put the police in a worse position than if no irregularity had occurred.

5 Murray remanded to the Court of Appeals with directions to remand to the District Court for further fact finding on whether the officers would have sought a warrant had they not entered the warehouse earlier. 487 U.S. at 543.

Murray required only "genuine" independence as opposed to "true" investigative independence as the two searches in Murray were conducted by a joint task force consisting of agents from both the Federal Bureau of Investigation and Drug Enforcement Agency. Id . at 545 (Marshall, J., dissenting). The development of "true" independence through Melendez and Mason is critical to Katona's challenge. This Court initially followed Murray in Commonwealth v. Brundidge , 620 A.2d 1115 (Pa. 1993), a case raising only a Fourth Amendment claim. But in Mason and Melendez , both of which involved Article I, Section 8 claims, we suggested, if not held, that "true" independence was required under our constitution. Requiring that degree of independence as a necessary condition of applying the Independent Source Doctrine under Article I, Section 8 resulted from this Court's markedly different view of what the Pennsylvania Constitution requires when analyzing whether evidence should be suppressed. That point was explicitly made in Mason .

In Mason , police were surveilling a residence as part of an undercover drug investigation and used a CI to arrange a purchase from Kenny Mitchem. Mitchem went into a particular apartment and, twelve minutes later, came out and got in a car with the CI and an undercover officer. Mitchem was arrested and informed the police that more cocaine was present in the apartment "and that other persons were present making illegal transactions." 637 A.2d at 252. Based on this information and observations from their surveillance, one officer left to obtain a search warrant for the residence while other officers remained to continue surveillance. Before the officer could return with the warrant, a member of the surveillance team broke down the door to the residence with a battering ram. He testified at a suppression hearing that he feared word of Mitchem's arrest would reach the apartment and result in loss of evidence. Id. at 252-53. The officers knocked for two minutes to no avail. They then used a battering ram and saw Mason run into a bathroom with her hands in the toilet bowl, having flushed the toilet. During a search of the apartment to ensure no one else was present, they observed drugs and drug paraphernalia in plain view. Once the warrant arrived, the police searched the residence, discovering more drugs, paraphernalia, and other indicia of drug trafficking.

We held that suppression was required based on a violation of Mason's Article I, Section 8 rights. Preliminarily, we acknowledged that if Mason's claim were made under federal law we would be constrained to find that suppression was not warranted. Id. at 254. Mason prevailed under the Pennsylvania Constitution because Article I, Section 8 also protects the privacy of individuals and ensures that warrants issue only upon probable cause.

If our sole purpose in applying Article I, Section 8 to the facts of this case were to deter police misconduct, we would be constrained to rule in favor of the Commonwealth, for in balancing the interests, it is apparent that society's interest in arresting those guilty of serious crime should not be thwarted where police would inevitably and independently arrive at the same evidence, but for their illegal conduct.

However, where our task is not merely to deter police misconduct, but also to safeguard privacy and the requirement that warrants shall be issued only upon probable cause, our conclusion is different. Where the police battering ram is at the door, without exigent circumstances and without a warrant, it is plain that the violent shattering of the door constitutes an unconstitutional invasion of privacy of which every person in this Commonwealth may complain. The requirement that warrants shall issue only upon probable cause means nothing if police are free to batter down the doors of persons who imagine themselves to be secure in their own houses.

Id . at 256. In connection with this analysis, we said that Article I, Section 8 prioritizes privacy higher than the need to secure convictions.

The ultimate distinction, then, between the federal and the Pennsylvania analysis is not that the federal courts seek

only to deter police misconduct and the Pennsylvania courts seek to protect certain rights, but that the federal courts place less importance than do we on the right of privacy. Therefore, they balance the interests differently and reach a different conclusion as to the relative importance of privacy as against securing criminal convictions.

Id . at 257 n.3.

Justice Cappy concurred, expressing his view that this Court should go further and declare that the Independent Source Doctrine would apply only in "extraordinarily specific circumstances[,]" id . at 258 (Cappy, J., concurring), which he deemed not present in Mason . Justice Cappy feared that an expansive application of the doctrine would encourage officers to send for a warrant then make an illegal entry. "[E]very police officer in this Commonwealth could rightfully conclude that if he or she first sent for a warrant based upon probable cause, and that warrant were ultimately issued, no evidence seized as a result of an illegal early entry and search without the warrant, would ever be suppressed." Id . at 257.

We adopted that principle in Melendez . In that case, multiple police officers surveilled the defendant's residence while another officer typed up an application for a search warrant. Melendez , 676 A.2d at 227. Meanwhile, the defendant exited her residence, entered a vehicle, and drove away. Id. The police immediately stopped her and removed her from the car. A search of her purse revealed a handgun, a large amount of cash and a paper tallying drug sales. Id. The officers took Melendez to her home and used her keys to enter the residence. Id. As they entered, the officers observed a man holding a bag of cocaine. They then secured the residence and waited for the search warrant. After an hour-long wait, the search warrant was issued. The police then searched the residence and recovered drugs, drug paraphernalia, and money among other evidence. Id.

The Commonwealth argued that the inevitable discovery rule applied.⁶ We applied the Independent Source Doctrine as analyzed in Mason and elected to adopt the limitation set forth by Justice Cappy's Mason opinion. It was "clear that we place a greater importance on privacy under the Pennsylvania Constitution than have recent federal cases under the United States Constitution, and we noted that the facts in Mason were importantly different from the facts in previous independent source cases in that they involved the invasion of a dwelling place." Id . at 231. We concluded that

6 We stated that "[t]he inevitable discovery rule, sometimes referred to as the ‘independent source rule,’ is that if the prosecution can demonstrate that the evidence in question was procured from an independent origin, such evidence is admissible." Melendez , 676 A.2d at 230. The Murray Court explained that "[t]he inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." Murray v. United States , 487 U.S. 533, 539 (1988).

The Pennsylvania Constitution does not allow police intrusions exemplified by this case and Mason. Government agents may not enter private dwellings through the use of battering rams as in Mason, or by effecting illegal stops and seizures as in this case, and secure the premises by detaining those who occupy the premises while police wait to learn whether their application for a warrant has been approved. It is difficult to imagine practices more inimical to the fundamental idea that no person shall be

subject to unreasonable searches and seizures.

Id . at 231–32.

Applying Mason and Melendez as the parties herein ask us to do, I would find that Katona prevails. The Melendez test requires that a source be independent from both the tainted evidence and the police who engaged in the misconduct. Even accepting that the first requirement is met, the second requirement plainly is not. The CI was not independent from the officers who engaged in the misconduct because he indisputably acted as an agent of the PSP in his interactions with Katona. Because Melendez requires dual independence of the source from both the tainted evidence and the police, even if the CI's description of his conversations with Katona could be deemed to be "truly independent" of the recordings the Independent Source Doctrine would still not apply due to the CI's role as an agent of the PSP.⁷

7 The parties dispute whether the CI relayed the substance of his conversations with Katona to the PSP. The Commonwealth contends that the CI recounted his conversations to the PSP. See Commonwealth's Brief at 14. Katona states that the affidavit of probable cause included multiple paragraphs outlining each instance in which the CI entered Katona's residence while wearing the recording device, but argues that in all but one of these paragraphs there is no direct mention of any statements made by the CI to the PSP. See Affidavit of Probable Cause, 6/29/2011, at 15-20.
The fact that the affidavit of probable cause references the recordings at all poses barriers to applying the Independent Source Doctrine. Unlike the Majority, I find it impossible to determine whether the officers decided to seek a warrant based on what they heard on the recordings versus what the CI told them. Finely parsing the affidavit of probable cause to answer that question is an exercise in futility. The very fact that the recordings are mentioned in the affidavit at all signals to the issuing authority that the recordings corroborated everything that the CI observed and told the officers. In addition to stating that the troopers recovered the recording device from the CI at the end of each incident, the affidavit states that the recordings corroborate the allegations. See Affidavit of Probable Cause, 6/29/2011, at 16 at ¶ 33 ("On each of these occasions the payment of the money to Katona by the CI was captured by the recording;) id . at ¶ 34 ("These amounts were verified on the recording."). Mentioning that the events discussed in the affidavit are all on tape and that portions were confirmed suggests to the magistrate that all of the information is accurate; it would be a foolhardy officer who made representations that he or she knows will be contradicted by objective evidence that will be subject to discovery. In this respect, the recordings served to establish the reliability of the CI by improper means.

Additionally, as previously noted, see supra at n.1, Henderson was discussed by Katona only in his reply brief, arguing that Henderson is distinguishable because it involved two separate search warrants. I agree. Mason , Melendez , Henderson , and Murray all involved two actual searches that recovered the same evidence, with one of the searches being illegal or otherwise incapable of justifying the recovered evidence. In those cases, the analysis asks whether the second search was an independent source of the same evidence notwithstanding the illegality of the other search. Here, however, the Superior Court held, and no one has challenged, that all of the information learned via Katona's voluntary disclosures were not searches because he had no reasonable expectation of privacy in what he told the CI. See Commonwealth v. Fulton , 179 A.3d 475, 487–88 (Pa. 2018) ("A search occurs when police intrude upon a constitutionally protected area without the individual's explicit or implicit permission."). Thus, Independent Source Doctrine cases are something of a doctrinal mismatch from the outset when examining the search warrant as the Majority does. There is simply no second search that resulted in acquisition of the same physical evidence. Turning to the Commonwealth's argument that this case is resolved by Santiago , I disagree. Santiago , a case decided solely on Fourth Amendment grounds, began with an officer engaged in a traffic stop. In the midst of the traffic stop, the suspect suddenly sped away, injuring the officer and leaving behind a cell phone. Santiago , 209 A.3d at 915. The police recovered the cell phone and searched it, discovering the name "Angel Santiago," which they then used to obtain a photo of a man with that name. Id. When shown the photograph, the injured officer identified the individual as Santiago. An arrest warrant was then issued, and Santiago was arrested and charged with a number of crimes. Id. Santiago sought suppression of the officer's anticipated in-court identification, arguing that pursuant to Fourth Amendment protections, any identification made by the officer would be the product of the warrantless, and therefore unconstitutional, search of his cell phone. Id. at 915-16. The trial court granted suppression, reasoning that but for the illegal search of the cell phone, Santiago would not have become a suspect. Id. at 916.

The Superior Court reversed, and we granted appeal to consider whether the fruit of the poisonous tree doctrine required suppression of an in-court identification by a police officer who observed the defendant prior to an illegal search of the defendant's cell phone. Id. at 919. Tracing the development of the fruit of the poisonous tree and Independent Source Doctrines under federal law, this Court identified the salient inquiry as "whether, assuming the primary illegality has been established, the challenged evidence has been obtained by exploitation of that illegality, or instead, by means sufficiently distinguishable to be purged of the taint of the primary illegality." Id. at 924. Applying that standard, we held that an identification made entirely as a result of an illegality (such as a warrantless search) taints the identification and renders it inadmissible, but that an eyewitness identification, based on observations that are made prior to and independent of the subsequent illegal conduct, may be admissible. Id. at 929.

The Commonwealth reads Santiago to stand for the proposition that when the evidence at issue is non-physical in nature, the applicable inquiry is whether the challenged evidence was obtained by exploitation of the initial illegality or by means "sufficiently distinguishable to be purged of the taint" of the initial illegality. Commonwealth's Brief at 13. However, the challenge in Santiago was raised only under the Fourth Amendment, and so our consideration in that case did not include the heightened Article 1, Section 8 privacy protections. As discussed, Article 1, Section 8 provides a broader protection of the right to privacy than does its federal counterpart and our application of the Independent Source Doctrine is thus more circumscribed.⁸ III. Henderson does not apply

8 Additionally, the nature of the contemporaneous acquisition of the knowledge, i.e. the conversations, and making recordings of those conversations, further distinguishes the case from Santiago . In that case, the discarded phone led to Santiago's name. Here, the information learned by the CI did not separately lead to additional information. The voluntary disclosures were concurrent with the recording of that information. In Murray , the high Court stated that "[k]nowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply." Murray v. United States , 487 U.S. 533, 541 (1988). Here, there was no "later acquisition" of the knowledge.

The Majority does not answer the question as presented and analyzed hereinabove. Nor does the Court wholly embrace the Superior Court's distinction between information, i.e. what Katona told the CI, versus the search that resulted under Brion when those conversations were recorded. See Majority Op. at 483 n.18. Instead, the Majority finds that the question on which we granted review was incomplete by adding the following language: "whether the Superior Court's application of the Independent Source Doctrine conflicts with our decision in Melendez , as refined by Henderson ." See Majority Op. at 476 ("[T]his Court has occasionally refined the contours of the Independent Source Doctrine's applicability in this Commonwealth to account for novel factual circumstances in claims arising under our state charter."). The Majority finds that "the parties and the Superior Court in this case have all overlooked" Henderson . Id .

Henderson is part of our jurisprudence and I agree that we must apply the law as we have developed it. However, I disagree with the premise that "Henderson is dispositive of this matter." Id . The Majority interprets Henderson to hold that the "true independence" requirement still exists under Article I, Section 8, but is limited to cases like Mason and Melendez , i.e., cases involving "willful misconduct" or "malfeasance." Respectfully, I submit that Henderson does not lend itself to the construction applied by the Majority. To the extent that Henderson could be interpreted in the manner suggested by the Majority, I would defer consideration of that question to a case in which that point is subject to focused advocacy. Nothing prevents this Court from remarking that the applicability of Henderson was not briefed by the parties. But because the Majority has opened that door, I respond to demonstrate that it is not at all clear that Henderson governs this case.

The Henderson Court was concerned that the Mason /Melendez holdings swept too broadly; we were "unwilling to enforce a ‘true independence’ rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting [Henderson] with his crimes." Henderson , 47 A.3d at 804. Henderson was suspected of rape and kidnapping, and authorities sought his DNA sample for comparison with genetic material recovered from the victim and a vehicle used in the abduction. Id. at 798. A member of the police sexual assault unit, Detective Johnson, prepared an affidavit of probable cause, obtained a warrant, and collected samples of the defendant's blood, hair and saliva. Based on the results, the defendant was arrested and charged with multiple felonies. Id. When the defendant filed a motion to suppress on the basis that Detective Johnson's affidavit was insufficient to establish probable cause, the Commonwealth decided to invoke the Independent Source Doctrine, as defined by the Melendez rule, to obtain a second warrant. Id. To that end, a different detective from the same sexual assault unit, Detective Evans, was assigned to conduct a probable cause investigation. Detective Evans spoke with Detective Johnson and reviewed the department's existing case file, interviewed a witness, reviewed the victim's medical records, and conducted an investigation into the defendant's background. Based on information gleaned from these sources, Detective Evans applied for and obtained a second warrant authorizing a second blood draw.

The defendant attempted to secure suppression of the second blood draw. Citing Detective Evans' reliance on information from Detective Johnson and materials obtained in connection with the first warrant, the defendant argued that the second warrant was not based on information obtained from an independent source, and therefore retained the taint of the illegality that infected the originally-seized evidence. Id. Following a hearing, the trial court denied suppression, finding that Detective Evans' investigation was sufficiently separate from the initial investigation such that there was no "causal nexus" between the first blood draw result and the affidavit of probable cause Detective Evans submitted in connection with his warrant application. On appeal, the Superior Court affirmed and we granted review.

The Commonwealth did not argue to this Court that Detective Evans' investigation met the "true independence" standard, and the majority agreed. "No one could seriously contend that Detective Johnson's and Evans' investigations were ‘truly independent’ under a conventional understanding of those words, where the two conferred about the case and the latter worked directly from the case file previously maintained by the former." Id . at 804. But see id . at 810 (Todd, J., concurring) (criticizing majority for "truncat[ing] the Mason/Melendez rule in a sweeping and protective fashion" and opining that the teams were truly independent). The Henderson Court elected to apply the federal Murray standard, which we declared "strikes the appropriate balance between privacy and law enforcement." Id . at 805. The Majority holds that the same Murray balancing approach applies here by discerning a wholesale "refinement" of the Independent Source Doctrine as a result of Henderson . See Majority Op. at 478 (asserting that Henderson "confirms the continued viability of the Melendez requirements but limits their application to cases of ‘willful misconduct’ or ‘malfeasance’ ").

The Superior Court's invocation of the Independent Source Doctrine is ostensibly correct under Henderson in that there is no suggestion that the police engaged in any kind of misconduct, let alone egregious. But I do not interpret Henderson to foreclose a "true independence" requirement in this circumstance where the focus of Katona's complaint--a violation of an Article I, Section 8 right recognized by Brion under the Pennsylvania Constitution--simply has no parallel under the Fourth Amendment. If the unlimited intercept order violated the Wiretap Act, then Katona's Article I, Section 8 rights were repeatedly violated. Yet no relief is forthcoming because the Majority holds that the officers could have secured the same evidence even without the recordings. But the fact remains that the authorities chose to encroach on the Article I, Section 8 rights guaranteed by Brion . Article I, Section 8, unlike the Fourth Amendment, stands as a bulwark against such privacy invasions by requiring suppression as the price to pay for the mistaken belief that the unlimited intercept order was valid. At most, Henderson holds that the "true independence" rule does not always apply when an Article I, Section 8 claim is raised. That should not be confused with the proposition that it never applies except in cases of "willful misconduct" or "malfeasance."⁹ Without briefing on this point, we should not go beyond the arguments presented.

9 Applying Henderson 's logic, it is unclear why the Court even left those vestiges except as perhaps a concession to stare decisis. The reason for Melendez and Mason 's departures from the Murray standard was grounded in this Court's different cost-benefits approach to the exclusionary rule and did not rely on labels like "willful misconduct" or "malfeasance." Police misconduct was certainly a reason to require "true independence," but the Majority mistakenly reads Henderson to announce that misconduct is the only condition triggering the higher Article I, Section 8 analytical framework.

Moreover, language in Henderson indicates that it did not announce a per se rule that police misconduct is absolutely required before demanding "true independence." Henderson denounced the Melendez prophylactic per se rule of always requiring "true independence" by observing that "the experience with broadly stated prophylactic rules often has been that they cannot be sustained on their original terms." Id . at 803. It is hardly logical, though, to interpret a criticism of a prophylactic rule inuring to the detriment of the Commonwealth as creating a per se rule that always operates to the Commonwealth's benefit. Cf. Commonwealth v. Gary , 91 A.3d 102, 138 (Pa. 2014) (Saylor, J., concurring) (observing the "inconsistency in the courts' rejection of bright-line rules restraining law enforcement as a means of protecting individual rights, while simultaneously embracing such rules when they facilitate law enforcement," and arguing for "some clear and appropriate boundaries operating in both directions") (footnote omitted). I fail to see why Henderson should be read to replace one per se rule with another, especially where the substituted prophylactic rule operates to the benefit of law enforcement at the cost of individual privacy rights, which is precisely the type of balancing that Article I, Section 8 rejects. Commonwealth v. Edmunds , 586 A.2d 887 (Pa. 1991) ("The history of Article I, Section 8 ... indicates that the purpose underlying the exclusionary rule in this Commonwealth is quite distinct from the purpose underlying the exclusionary rule under the 4th Amendment[.]"); Mason , 637 A.2d at 257 n.3 ("[F]ederal courts place less importance than we do on the right of privacy. Therefore, they balance the interests differently and reach a different conclusion as to the relative importance of privacy as against securing criminal convictions."); Commonwealth v. Brown , 996 A.2d 473, 476 (Pa. 2010) ("Article I, § 8 of the Pennsylvania Constitution ... generally provides greater protection than that provided by the Fourth Amendment, because the core of its exclusionary rule is grounded in the protection of privacy while the federal exclusionary rule is grounded in deterring police misconduct.") (quotation marks and citation omitted); Commonwealth v. Britton, 229 A.3d 590, 611 n.8 (Pa. 2020) (Wecht, J., concurring) (explaining that "we have reaffirmed that privacy, rather than deterrence, is the primary reason for our exclusionary rule") (collecting cases).

I add that in other circumstances in which this Court found it preferable to adopt a federal approach across-the-board, we made our intentions in that regard explicit. See Commonwealth v. Gary , 91 A.3d 102, 138 (Pa. 2014) (OAJC) ("Therefore, we hold that, in this Commonwealth, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment."). Henderson contains no similar pronouncement that Murray always applies in all circumstances other than willful misconduct or malfeasance. In fact, the Henderson Court indicated that the particular factual circumstances mattered a great deal:

In the present circumstances, we are unwilling to enforce a "true independence" rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans' status as a member of the same police department as Detective Johnson. Rather, in light of the factual circumstances

before the Court in both Melendez and Mason, we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. Ultimately, we believe the "twin aims" of Article I, Section 8 —namely, the safeguarding of privacy and enforcement of the probable-cause requirement—may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

Id . at 804–05 (footnote and citation omitted).

"In the present circumstances" suggests that the holding is not as broad as indicated by the later language. Clearly, the pronouncement "we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct," is more expansive than the limitation suggested by "the present circumstances." But for all the foregoing reasons I hesitate to read such language as embracing the expansive rule discerned by the Majority, particularly given the fact that its interpretation of Henderson adopts, in direct tension with this Court's Article I, Section 8 jurisprudence, the federal balancing of privacy rights against the societal interest in securing convictions except in extreme circumstances. We should not be so quick to read the opinion so expansively. See Commonwealth v. Resto , 179 A.3d 18, 22 n.3 (Pa. 2018) ("Judicial opinions are frequently drafted in haste, with imperfect foresight, and without due regard for the possibility that words or phrases or sentences may be taken out of context and treated as doctrines. ... No court ... is obliged to treat a dictum of another court (or, for that matter, its own dicta) as binding precedent.") (quoting Maloney v. Valley Med. Facilities, Inc. , 984 A.2d 478, 490 (Pa. 2009) ).

Finally, Mason and Melendez themselves rested on the discrete facts of the cases and not on generic classifications like "willful misconduct" or "malfeasance." For instance, in Mason the Court was troubled by the use of a battering ram to enter a home. In Melendez , we determined that "Melendez was not engaged in any activity at the time she was stopped which would cause a person of reasonable caution to believe that she was then engaged in criminal conduct," 676 A.2d at 228, and we further found that her consent to go back and search the apartment was invalid. "Government agents may not enter private dwellings through the use of battering rams as in Mason, or by effecting illegal stops and seizures as in this case. ...". Id . at 231. Additionally, in terms of incentives and deterrence, whether the officers were already in the process of obtaining a warrant was a relevant factor. Mason , 637 A.2d at 257 n.2 (Cappy, J., concurring) ("As the officers in the case sub judice sent for the warrant prior to their initial illegal entry of the house, there was no risk of a ‘search first, pursue warrant later’ mentality"); Murray , 487 U.S. at 549 (Marshall, J., dissenting) ("The warrant was obtained immediately after the illegal search, and no effort was made to obtain a warrant prior to the discovery of the marijuana during the illegal search."). The Majority's extension of Henderson strips the ability of a reviewing court to weigh the factual circumstances. "The proper scope of the independent source exception, and guidelines for its application, cannot be divined in a factual vacuum; instead, they must be informed by the nature of the constitutional violation and the deterrent effect of exclusion in particular circumstances." Murray , 487 U.S. at 545 (Marshall, J., dissenting). Cf. Davis v. United States , 564 U.S. 229, 254 (2011) ("The Court's ‘good faith’ exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates ‘a categorical bar to obtaining redress’ in every case pending when a precedent is overturned.") (internal citation omitted). Applying the Independent Source Doctrine should be a fact-bound inquiry and is poorly served by the bright-line rule adopted and applied by the Majority today.

Indeed, this case demonstrates the danger in reflexively applying the federal exclusionary rule's purpose without any consideration of the underlying privacy right at stake. Unlike Henderson this case involves a pure Article I, Section 8 claim because the Fourth Amendment does not recognize the relevant privacy interest that was violated by the illegal wiretap order. Curiously, then, the Mason /Melendez rule, and its concomitant application of Pennsylvania's departure from the high Court regarding the exclusionary rule, will not apply in the arena where its application is needed the most. Moreover, applying Henderson under these circumstances would severely diminish the force of Edmunds , which refused to adopt the "good faith" exception to the exclusionary rule under Article I, Section 8.¹⁰ That issue is present here insofar as there is little doubt that the officers acted with an objectively reasonable belief that the judicial court order was lawful. If the good faith exception applied in this Commonwealth there is little chance that Katona would prevail. But it does not apply. Consider the following argument in favor of affirming the Superior Court:

10 The Superior Court has held that precise pleading is outcome determinative when Article I, Section 8 offers a remedy that the Fourth Amendment does not. Compare Commonwealth v. Carper , 172 A.3d 613, 618 (Pa. Super. 2017) (declining to apply good faith exception to warrantless blood draw conducted before decision in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160 (2016) where Article I, Section 8 claim is raised) with Commonwealth v. Updike , 172 A.3d 621, 623 (Pa. Super. 2017) (applying good faith exception under federal law to permit evidence of blood draw conducted before Birchfield ; claim under Pennsylvania Constitution waived). In this case, Article I, Section 8 was always at issue because this case involved an application of Brion .

It should also be remembered that there is a social cost to employment of the exclusionary rule, which is intended to deter police misconduct. Application of the doctrine results in the inadmissibility of certain evidence, and the potential release of the guilty. Thus, the fruit of the poisonous tree doctrine, as an aspect of judicial "supervision" of police practices, has always necessitated a delicate balance. Here, the police sought and were granted a court order authorizing an in-home recording, meaning they had sought and were operating under what they believed to be valid authorization for their activities. The observed or anticipated pattern of rogue and/or bad faith conduct on the part of the police that this Court was clearly so intent on stamping out in Melendez through its restrictive interpretation of the independent source doctrine is therefore not present here. The appropriate balance would be struck by holding that the informant's legal and credible recounting of what he saw and heard inside Katona's home, combined with the other evidence spelled out in the search warrant affidavit of probable cause, provided a proper, Constitutional basis for the issuance of the search warrant, regardless of whether any consensual audio

recordings were made inside the home or not. To hold otherwise would confer undue benefit on a perpetrator of illegal activities and impose an unfair penalty on law enforcement and, by extension, society.

Commonwealth's Brief at 22-23 (citation omitted).

A clearer invitation to simply ignore Edmunds is difficult to imagine. And the Majority is regrettably enticed by this kind of thinking. See Majority Op. at 480 ("[I]t is ... hard to see precisely how the police engaged in any misconduct whatsoever when they were operating pursuant to a court order; if anything, as in Henderson , the ‘error’ here was ‘judicial’ "...). That is just an alternative way of saying that the officers acted in objective reliance on the court order and should not be punished for their mistake. The Commonwealth violated Katona's Article I, Section 8 privacy rights by unlawfully recording conversations in his home. Exclusion of the evidence is the price that must be paid to protect those privacy rights.¹¹

11 There is also a deterrent effect if the evidence is suppressed, as authorities would know in the future that this Court will require suppression if authorities lose their roll of the dice when they violate Article I, Section 8 rights. As discussed infra, the plain text of the Wiretap Act establishes that only one in-home recording was authorized. The fact that the authorities did not have to violate the Wiretap Act is why the evidence should be suppressed.

I would therefore apply the "true independence" requirement of Melendez to give life to Brion 's recognition that "[i]f nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home." Brion , 652 A.2d at 289. The evidence must be suppressed to protect those rights. "Although the exclusionary rule may place a duty of thoroughness and care upon police officers and district justices in this Commonwealth, in order to safeguard the rights of citizens under Article I, Section 8, that is a small price to pay, we believe, for a democracy." Edmunds , 586 A.2d at 906.

IV.

In light of its disposition, the Majority declines to address whether the order authorizing unlimited in-home intercepts for thirty days was illegal under the Wiretap Act. A predicate of the foregoing discussion is that the order was, in fact, illegal. I therefore set forth my analysis of this issue.

A. Legality of the Duration of Wiretap Order Issued Pursuant to 18 Pa.C.S. § 5704(2)(iv)

The Parties' Arguments

Katona argues that the Wiretap Act does not permit an order, issued pursuant to Section 5704(2)(iv), to authorize the interception of multiple communications over a period of thirty days. Katona's Brief at 44-45.¹² All references in Section 5704(2)(iv) are to the singular "interception," which, Katona argues, indicates that our General Assembly never contemplated "anything more than a single conversation being intercepted" by a Section 5704(2)(iv) order. Id. at 45. Further, because orders issued pursuant to Section 5704(2)(iv) may not issue absent a probable cause determination by a neutral judicial authority, Katona analogizes such an order to search warrants. He contends that just as a search warrant may be executed one time, a Section 5704(2)(iv) order permits the interception of one conversation. Id. at 35, 39, 42. Katona allows that the Commonwealth may have "confused" the process to obtain a Section 5704(2)(iv) order with the process to obtain a non-consensual wiretap order, as non-consensual wiretap orders are permitted, by statute, to be effective for a thirty-day duration. Id. at 34-35.

12 Katona also challenges the Order as violative of his Article I, Section 8 rights. See Katona's Brief at 43. This Court will not reach a question of constitutional dimension if the case can be resolved on a non-constitutional basis. Commonwealth v. Foster , 214 A.3d 1240, 1247 n.8 (Pa. 2019). Because I would resolve this issue based upon statutory interpretation, I do not address the constitutional aspect of Katona's argument.

The Commonwealth responds that there is no specific statutory requirement that the order be renewed for separate conversations. It contends that "[t]he suspect's interests are suitably protected by the requirement [of] a finding of probable cause, and the issuing judge retains the power to limit the timeframe for interception as he or she sees fit." Commonwealth's Brief at 26. The Commonwealth contends that because here, the affidavit of probable cause established a "long-running and then-ongoing pattern of joint criminal activity[,]" the totality of the circumstances suggest that the incriminating conversations would continue over time. Id. The fact that Katona "fronted" the drugs to the CI and expected payment in intervals meant "by definition' that their criminal interactions would continue. Id. In the absence of an express statutory restriction, the Commonwealth suggests that we should interpret the statute to allow courts the discretion to determine the duration of a Section 5704(2)(iv) order. Id.

Analysis

The interpretation of a statute is a question of law, over which our standard of review is de novo and our scope of review is plenary. Whitmoyer v. Workers' Comp. Appeal Bd. (Mountain Country Meats) , 186 A.3d 947, 954 (Pa. 2018). Our analysis is guided by the Statutory Construction Act, which instructs that our over-arching goal is to discern and give effect to the General Assembly's intent. 1 Pa.C.S. § 1921(a). In pursuit of this goal, we must attempt to give meaning to every word and provision of the statute. Whitmoyer , 186 A.3d at 954. In so doing, we construe all provisions with reference to each other and do not examine the language at issue in isolation. Commonwealth v. Foster , 214 A.3d 1240, 1247-48 (Pa. 2019). This Court has long recognized that as a matter of statutory interpretation, "although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say." See, e.g. , Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co ., 788 A.2d 955, 962 (Pa. 2001). Furthermore, because the Wiretap Act emphasizes the protection of constitutionally-recognized privacy rights, its provisions are to be strictly construed. Commonwealth v. Spangler , 809 A.2d 234, 237 (Pa. 2002).

The purpose of the Wiretap Act is to protect the privacy rights of our citizens while also providing an investigative tool for law enforcement authorities. Karoly v. Mancuso , 65 A.3d 301, 303 (Pa. 2013). Subchapter B of the Wiretap Act governs the interception of wire, electronic, and oral communications.¹³ As enacted in 1978, the subchapter began with Section 5703, which made it a third-degree felony if a person, inter alia, "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication." 18 Pa.C.S. § 5703(1). Section 5704 then set forth a large number of exceptions (now eighteen) to the general prohibition in Section 5703. As initially enacted, none of the exceptions in Section 5704 required an order of court to conduct interceptions. Of relevance here, the second exception listed in 5704 originally provided that an interception could take place if one of the parties to a communication consented to the interception (sometimes referred to as "consensual interceptions"):

13 Other subchapters address the use of other modes of surveillance, such as mobile tracking devises, pen registers, trap and trace devices, and telecommunication identification interception devices. See 18 Pa.C.S. §§ 5741 -5775.

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities, including, but not limited to, the crimes enumerated in section 5708 (relating to order authorizing interception of wire, electronic or oral communications), where:

* * *

(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be initiated, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however, such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom;

18 Pa.C.S § 5704(2)(ii).

The 1978 enactment also included Section 5708, which permits the interception of communications without consent of any party to the communication ("nonconsensual interceptions"). Section 5708 authorizes the Attorney General or a district attorney, or their designees, to "make written application to any Superior Court judge for an order authorizing the interception of a wire, electronic or oral communication" to "provide evidence aiding in the apprehension of the perpetrator or perpetrators of any of the following offenses." 18 Pa.C.S. § 5708 (emphasis added). Section 5708 then lists a substantial number of offenses under the Crimes Code, the Tax Reform Code of 1971, the Controlled Substance, Drug, Device, and Cosmetic Act, and the Motor Vehicle Chop Shop and Illegally Obtained and Altered Property Act.

To obtain a court order for a nonconsensual intercept under Section 5708, the 1978 version of Subchapter B also included Sections 5709 ("Application for order"),¹⁴ 5710 ("Grounds for entry of order"),¹⁵ and 5712 ("Issuance of order").¹⁶ These provisions contain the mechanisms and requirements necessary to obtain a wiretap order.

14 Section 5709 provides in relevant part as follows:

Each application for an order of authorization to intercept a wire, electronic or oral communication shall be made in writing upon the personal oath or affirmation of the Attorney General or a district attorney of the county wherein the suspected criminal activity has been, is or is about to occur and shall contain all of the following:

(1) A statement of the authority of the applicant to make such application.

(2) A statement of the identity and qualifications of the investigative or law enforcement officers or agency for whom the authority to intercept a wire, electronic or oral communication is sought.

(3) A sworn statement by the investigative or law enforcement officer who has knowledge of relevant information justifying the application, which shall include:

(i) The identity of the particular person, if known, committing the offense and whose communications are to be intercepted.

(ii) The details as to the particular offense that has been, is being, or is about to be committed.

(iii) The particular type of communication to be intercepted.

(iv) A showing that there is probable cause to believe that such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be intercepted.

(v) The character and location of the particular wire communication facility involved or the particular place where the oral communication is to be intercepted.

(vi) A statement of the period of time for which the interception is required to be maintained, and, if the character of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter.

(vii) A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed, or reasonably appear to be unlikely to succeed if tried or are too dangerous to employ.

18 Pa.C.S. § 5709.

15 Section 5710 provides in relevant part as follows:

(a) Application.--Upon consideration of an application, the judge may enter an ex parte order, as requested or as modified, authorizing the interception of wire, electronic or oral communications anywhere within the Commonwealth, if the judge determines on the basis of the facts submitted by the applicant that there is probable cause for belief that all the following conditions exist:

(1) the person whose communications are to be intercepted is committing, has or had committed or is about to commit an offense as provided in section 5708 (relating to order authorizing interception of wire, electronic or oral communications);

(2) particular communications concerning such offense may be obtained through such interception;

(3) normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ;

(4) the facility from which, or the place where, the wire, electronic or oral communications are to be intercepted, is, has been, or is about to be used, in connection with the commission of such offense, or is leased to, listed in the name of, or commonly used by, such person;

(5) the investigative or law enforcement officers or agency to be authorized to intercept the wire, electronic or oral communications are qualified by training and experience to execute the interception sought, and are certified under section 5724 (relating to training); and

(6) in the case of an application, other than a renewal or extension, for an order to intercept a communication of a person or on a facility which was the subject of a previous order authorizing interception, the application is based upon new evidence or information different from and in addition to the evidence or information offered to support the prior order, regardless of whether such evidence was derived from prior interceptions or from other sources.

18 Pa.C.S. § 5710.

16 Section 5712 provides in relevant part as follows:

(a) Authorizing orders.--An order authorizing the interception of any wire, electronic or oral communication shall state the following:

(1) The identity of the investigative or law enforcement officers or agency to whom the authority to intercept wire, electronic or oral communications is given and the name and official identity of the person who made the application.

(2) The identity of, or a particular description of, the person, if known, whose communications are to be intercepted.

(3) The character and location of the particular communication facilities as to which, or the particular place of the communication as to which, authority to intercept is granted.

(4) A particular description of the type of the communication to be intercepted and a statement of the particular offense to which it relates.

(5) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(b) Time limits. --No order entered under this section shall authorize the interception of any wire, electronic or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this chapter by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by said order. In the event the intercepted communication is in a code or foreign language and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception. No order entered under this section shall authorize the interception of wire, electronic or oral communications for any period exceeding 30 days. The 30-day period begins on the day on which the investigative or law enforcement officers or agency first begins to conduct an interception under the order, or ten days after the order is entered, whichever is earlier. Extensions or renewals of such an order may be granted for additional periods of not more than 30 days each. No extension or renewal shall be granted unless an application for it is made in accordance with this section, and the judge makes the findings required by section 5710 (relating to grounds for entry of order).

(c) Responsibility. --The order shall require the Attorney General or the district attorney, or their designees, to be responsible for the supervision of the interception.

18 Pa.C.S. § 5712.

In 1994, this Court issued its decision in Brion , which held that the exception for consensual interceptions set forth in the second exception in 5704 was unconstitutional if the interception took place in the home of the non-consenting participant, absent prior determination of probable cause by a neutral, judicial authority. Brion , 652 A.2d at 289. In Brion , the Court indicated that this probable cause determination could be obtained by the same methods for obtaining a wiretap order under Section 5708 and the sections following thereafter (including that the determination be made by a judge of the Superior Court). Id. Rather than following this recommendation, the General Assembly enacted Section 5704(2)(iv), which provides that in addition to the requirements for a consensual interception under Section 5704(2)(ii) quoted above, an in-home consensual interception requires an order from the president judge of a court of common pleas based upon an affidavit by an investigative or law enforcement officer that establishes probable cause for the issuance of such an order. It provides:

If an oral interception otherwise authorized under this paragraph will take place in the home of a nonconsenting party, then, in addition to the requirements of subparagraph (ii), the interception shall not be conducted until an order is first obtained from the president judge, or his designee who shall also be a judge, of a court of common pleas, authorizing such in-home interception, based upon an affidavit by an investigative or law enforcement officer that establishes probable cause for the issuance of such an order. No such order or affidavit shall be required where probable cause and exigent circumstances exist. For the purposes of this paragraph, an oral interception shall be deemed to take place in the home of a nonconsenting party

only if both the consenting and nonconsenting parties are physically present in the home at the time of the interception.

18 Pa.C.S. § 5704(2)(iv).¹⁷

17 Section 5404(2)(iv) is the only subsection of Section 5704(2) that requires the procurement of an order of court.

Because Section 5704(2)(iv) requires an "order", and Sections 5709, 5710, and 5712 govern the issuance of orders for interceptions, we are faced with the question of whether the requirements contained therein apply to orders sought under both Sections 5704(2)(iv) and 5708, or conversely, only for nonconsensual order pursuant to Section 5708. This question is significant for present purposes because Sections 5709(3)(vi) and 5712(b) permit a court to issue a wiretap order to extend up to thirty days (with extensions upon application).

I begin by reiterating that Sections 5709, 5710, and 5712 follow immediately after Section 5708 and all four sections were contained in the initial Wiretap Act enacted in 1974. In contrast, Section 5704(2)(iv) was enacted decades later, in response to our 1994 Brion decision. Moreover, and more importantly, the requirements set forth in Sections 5709, 5710 and 5712 are fundamentally inconsistent with Section 5704(2)(iv). For example, Section 5709 requires that an application for a wiretap order include "[a] showing that there is probable cause to believe that such communication [related to crimes enumerated in Section 5708 ] will be communicated" at the location where the interception is to take place. 18 Pa.C.S. § 5709(3)(iv). Likewise, Section 5710 provides that an order may be entered where a judge finds probable cause that, inter alia, the target of the interception has committed, or is about to commit, an offense as provided in [S]ection 5708[.]" 18 Pa.C.S. § 5710(a)(1). However, Section 5704(2)(iv) does not limit the broad grant of authority for consensual interception of communications by reference to the specific offenses listed in Section 5708. See 18 Pa.C.S. § 5704(2)(ii) (requiring that a consensual interception must involve "suspected criminal activities, including, but not limited to , the crimes enumerated in [S]ection 5708.") (emphasis added),

Likewise, pursuant to Section 5709, an order must be made "upon the personal oath or affirmation of the Attorney General or a district attorney of the county wherein the suspected criminal activity has been, is or is about to occur." Section 5704(2)(iv), by comparison, provides that an order authorizing a consensual in-home intercept may issue based only upon an affidavit by an investigative or law enforcement officer establishing probable cause of the suspected criminal activity. 18 Pa.C.S. § 5704(2)(iv). These requirements are inconsistent with each other and in conflict.

Section 5709 requires that the application for an order contain "a showing that there is probable cause to believe that the communication will be communicated on the wire communication facility or at the particular place where the oral communication is to be intercepted," 18 Pa.C.S. § 5709(3)(iv), and Section 5710 requires, for entry of an order, that the application must have shown that there is probable cause that "the person whose communications are to be intercepted ... has or had committed ... an offense provided in [S]ection 5708." 18 Pa.C.S. § 5710(a)(1). This requirement to establish probable cause makes sense in connection with a Section 5708 order, as that section standing alone does not mention probable cause at all. By contrast, the requirement of probable cause is specifically referenced in 5704(2)(iv) – "the interception shall not be conducted until an order is first obtained from the president judge ... based upon an affidavit of probable cause by an investigative or law enforcement officer that establishes probable cause for the issuance of such an order." 18 Pa.C.S. § 5704(2)(iv) (emphasis added).

All of these considerations drive my conclusion that Section 5704(2)(iv) is self-contained and is not governed by Sections 5709, 5710, and 5712. Section 5704(2)(iv) addresses a particular variation of consensual interception (in home), and all relevant requirements for that variety of interception are set forth within that section.

As I have determined that the provisions governing nonconsensual interception orders do not apply to Section 5704(2)(iv) orders, I would further conclude that a Section 5704(2)(iv) order may not be issued for a duration of thirty days. Unlike Section 5712(b) governing a Section 5708 order, Section 5704(2)(iv) does not authorize the issuance of an order for up to thirty days. 18 Pa.C.S. § 5712(b). A strict interpretation of this language, which we are required to perform, Spangler , 809 A.2d at 237, leads to the conclusion that a Section 5704(2)(iv) order is valid only for specific episodes.¹⁸ If the General Assembly wanted to authorize the duration of in-home interceptions to parallel Section 5712(b), it could have so stated when enacting Section 5704(2)(iv) by including the timeframe in the otherwise self-contained enactment.¹⁹

18 Justice Mundy's Concurring Opinion argues that it conflicts with the statutory exceptions to require law enforcement to obtain a separate Section 5704(2)(iv) order for each entry into a private home for a consensual intercept. Concurring Op. at 486 (Mundy, J.).
Justice Mundy does not offer any detailed statutory interpretative analysis of the various provisions of the Wiretap Act in support of this contention, including no discussion of the substantial differences between Section 5704(2)(ii) and 5712(a) orders that preclude the "borrowing" of the Section 5712(b) time limits provision for application in the Section 5704(2)(ii) context. The General Assembly's clear intention in setting for the different requirements for obtaining a Section 5704(2)(ii) order, including the decision not to permit such orders to remain in place over an extended period of time, was to protect the constitutional rights of our citizens in their homes, not to minimize any "burdensome" and/or "impractical" requirements for law enforcement.
Justice Mundy's "plain language" reading of the relevant statutes is unconvincing, as it is based upon nothing more than the recognition that two words, "communications" and "contents," are stated in the plural on one or more occasions. Concurring Op. at 486 (Mundy, J.). From these plural words, Justice Mundy concludes that a single Section 5704(2)(ii) order may be used to intercept multiple exchanges over a thirty-day period, rather than a single episode. Id. A careful review of the statutory language at issue here, however, demonstrates that the singular and plural forms of these terms depends solely on the manner in which they are employed. Both Sections 5712(a) and (b), for example, which together permit orders issued thereunder to remain effective for up to thirty days, uses the term "communication" in both its singular and plural forms interchangeably. Moreover, Justice Mundy offers no support for her contention that "communications" (plural) and/or "contents" refer to multiple exchanges. A single conversation may include multiple communications, as each utterance by the members of the conversation may fairly be described as a separate "communication." Similarly, there may be multiple "contents" expressed in a single communication, depending, of course, on the nature and complexity of that communication.

19 I note again that the General Assembly did not follow this Court's invitation to rely on the non-consensual wiretap provisions in the Wiretap Act.

The affidavit of probable cause in this case specifically addressed a meeting between Katona and the CI that was to take place at eight in the evening on May 16, 2011. Thus, the order here was valid in so far as it authorized the interception of that specific episode . All subsequent interceptions were therefore unauthorized and illegal. When paired with my argument that the Independent Source Doctrine does not apply under these circumstances, I would conclude that the Superior Court must be reversed. I therefore respectfully dissent.

Justice Wecht joins this dissenting opinion.