Commonwealth v. Pacheco

263 A.3d 626

COMMONWEALTH of Pennsylvania, Appellee

v.David PACHECO, Appellant

No. 42 MAP 2020

Supreme Court of Pennsylvania.

Argued: March 9, 2021

Decided: November 17, 2021

Gopalakrishnan Balachandran, Esq., Penn State Dickinson Law, for Amicus Curiae Public Defender Association of Pennsylvania.

Hugh J. Burns Jr., Esq., Philadelphia, Joshua D. Shapiro, Esq., Harrisburg, Josh Shapiro, Attorney General of the Commonwealth of Pennsylvania, for Amicus Curiae Office of the Attorney General.

Andrew Chapman Christy, Esq., ACLU of Pennsylvania, for Amicus Curiae ACLU of Pennsylvania, Electronic Frontier Foundation, ACLU.

Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, Pittsburgh, Michael F. J. Piecuch, Esq., Snyder County District Attorney's Office, for Amicus Curiae PA District Attorney's Association.

Jerome Michael Brown, Esq., Philadelphia, John I. McMahon Jr., Esq., Norristown, McMahon, McMahon & Lentz, Brooks Thomas Thompson, Esq., McMahon, Lentz & Thompson, Norristown, for Appellant.

Robert Martin Falin, Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, Norristown, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE BAER

We granted allowance of appeal to determine whether trial court orders that authorized the disclosure of Appellant David Pacheco's real-time cell site location information ("CSLI") were the functional equivalent of search warrants and satisfied the requisites of the Fourth Amendment pursuant to the United States Supreme Court's decision in Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). For the reasons set forth herein, we hold that the challenged orders were the functional equivalent of search warrants and complied with the Fourth Amendment. Accordingly, we affirm the judgment of the Superior Court, which affirmed Appellant's judgment of sentence.

I. Background Summary

The record establishes that in 2015, the Narcotics Enforcement Team of the Montgomery County District Attorney's Office ("Commonwealth"), working with the Federal Drug Enforcement Agency ("DEA"), learned that a large Mexican drug-trafficking organization was smuggling heroin into the United States for distribution, and that Appellant, a resident of Norristown, Pennsylvania, played a significant role in the operation by retrieving the heroin in Atlanta, Georgia, and transporting it to wholesale buyers in New York City.

At various times throughout the nearly year-long investigation, the Commonwealth applied for and obtained several orders pursuant to the Pennsylvania Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"), 18 Pa.C.S. §§ 5701 -82. The orders at issue in this appeal are those entered pursuant to Subchapter E of the Wiretap Act ("Pen Registers, Trap and Trace Devices, and Telecommunication Identification Interception Devices"), 18 Pa.C.S. §§ 5771 -75.¹ A brief discussion of the statute is helpful to facilitate an understanding of the case.

Relevant here, Section 5772 sets forth the requirements for an application requesting an order authorizing the disclosure of mobile communications tracking information.² This section permits the Attorney General or a district attorney to make an application for mobile communications tracking information to either a court of common pleas having jurisdiction over the offense under investigation or to a Superior Court judge when an application for an order has already been made for the targeted phone in that court. 18 Pa.C.S. § 5772(a).

Notably, Section 5772 requires that the application include: (1) the identity of both the attorney making the application and the investigative agency conducting the investigation; (2) the applicant's certification that "the information likely to be obtained is relevant to an ongoing criminal investigation conducted by that agency;" and (3) an affidavit by an investigative or law enforcement officer "which establishes probable cause for the issuance of an order under section 5773." Id. at § 5772(b).

Section 5773 addresses the issuance of an order thereunder and provides, in relevant part, that upon application under Section 5772, the court shall enter an ex parte order authorizing the disclosure of mobile communications tracking information "if the court finds that there is probable cause to believe that information relevant to an ongoing criminal investigation will be obtained by such installation and use on the targeted telephone." 18 Pa.C.S. § 5773(a).

The statute further directs that an order issued under that section shall specify:

(i) That there is probable cause to believe that information relevant to an ongoing criminal investigation will be obtained from the targeted telephone.

(ii) The identity, if known, of the person to whom is leased or in whose name is listed the targeted telephone, or, in the case of the use of a telecommunication identification interception device, the identity, if known, of the person or persons using the targeted telephone.

(iii) The identity, if known, of the person who is the subject of the criminal investigation.

(iv) In the use of pen registers and trap and trace devices only, the physical location of the targeted telephone.

(v) A statement of the offense to which the information likely to be obtained by the pen register, trap and trace device or the telecommunication identification interception device relates.

18 Pa.C.S. § 5773(b)(1).

Additionally, Section 5773 sets forth a maximum 60-day limit on orders entered under that provision, with extensions permissible upon satisfaction of the criteria for obtaining an initial order. Id. at § 5773(c). Finally, Section 5773 provides that orders entered under that provision shall be sealed unless otherwise ordered by the court. Id. at § 5773(d).

Consistent with these statutory provisions, on or about August 28, 2015,³ the Commonwealth filed in the Montgomery County Court of Common Pleas ("trial court") an application and affidavit along with a proposed order pursuant to Section 5772, seeking, inter alia , the disclosure of mobile communications tracking information relating to a specific telephone number. The application averred that members of the Pennsylvania State Police, the Commonwealth, and the DEA were investigating heroin trafficking in Montgomery County and they believed that Appellant was an integral part of the heroin distribution organization. Application of Montgomery County Assistant District Attorney Kelly Lloyd, DA-166-2015, at 0-1.⁴ The Commonwealth asserted that Appellant utilized the mobile cellular telephone bearing the number enumerated in the application, and that it had become necessary to track or otherwise maintain the physical location of the cell phone. Id. at 1.

The application further stated that Montgomery County Detective Michael J. Reynolds had prepared an attached affidavit setting forth specific and articulable facts that established probable cause to believe that information relevant to an ongoing criminal investigation would be obtained from the enumerated cell phone or on any replacement telephone number billed to the same subscriber for the upcoming 60-day period. Id. at 1, ¶ 3. The application also averred that the information which would likely be obtained would relate to violations of the Crimes Code including, but not limited to, the manufacture, delivery, and/or possession with the intent to deliver a controlled substance, 35 P.S. § 780-113, criminal conspiracy, 18 Pa.C.S. § 903 ; and criminal use of communication facility, 18 Pa.C.S. § 7512. Id. at 2, ¶ 4. Additionally, the application requested the court to direct the telecommunication service providers to initiate a signal to determine the location of the subject's mobile device on the provider's network and disclose those signals as mobile communications tracking information at such intervals and times as directed by the law enforcement agent serving the order. Id. at 6. The application also requested that the order be without geographical limitations, so long as the results of the disclosure of mobile communications tracking information is monitored within the jurisdiction of the court. Id. at 7. Finally, the application requested that the order be sealed. Id.

Attached to the application was a 29-page affidavit of probable cause completed by Detective Reynolds.⁵ Identifying Appellant as the target of the criminal investigation, the affidavit set forth Detective Reynold's experience and education in investigating drug trafficking and his beliefs regarding the use of cell phones in drug trafficking and the distribution of drugs from source countries, including Mexico. Affidavit of Probable Cause of Montgomery County Detective Michael J. Reynolds, dated August 28, 2015, at 1-6. Significantly, the affidavit states that the facts alleged establish probable cause to believe that Appellant, and others known and as of yet unknown, are committing and will continue to commit offenses including, but not limited to, manufacture, delivery, and/or possession with the intent to deliver a controlled substance, 35 P.S. § 780-113, criminal conspiracy, 18 Pa.C.S. 903, dealing in proceeds of unlawful activities, 18 Pa.C.S. § 5111, and criminal use of communication facility, 18 Pa.C.S. § 7512. Id. at 4.

The affidavit bases its assertion of probable cause on various sources, including information provided by other investigators and law enforcement agencies, as well as three separate confidential informants who had participated in previous drug-trafficking investigations that led to the arrest of two individuals. Id. at 6-25. These confidential informants had personal knowledge that Appellant played a pivotal role in the Mexican drug cartel's activities under investigation.

The trial court issued orders on August 28, 2015, authorizing the requested forms of electronic surveillance pursuant to Section 5773 of the Wiretap Act.⁶ Based upon the aforementioned application and...