Syracuse Child Sex Abuse Allegations: Is It Legal to Record Telephone Conversations in Pennsylvania?
November 27, 2011
The Child Sex Abuse Scandal surrounding the associate head coach of Syracuse University’s men’s basketball, Bernie Fine, presented an unexpected twist this weekend with the release of a taped telephone conversation between one of the alleged victims and Fine’s wife, Laurie. The recorded telephone call seems to establish that Laurie Fine knew her husband had molested many boys, not just the alleged victim on the telephone. She states that she addressed the issue with her husband, but he refused to acknowledge that he had a problem. The call also touches upon an incident where Mrs. Fine actually witnessed the sexual abuse of the victim in her home, as well as the fact that she had a sexual relationship of her own with the victim.
This situation, however, presents an opportunity to discuss a question routinely raised by our clients. Is it legal to record a telephone conversation in Pennsylvania? The question appears in many contexts, regardless of whether you practice in Workers’ Compensation, Real Estate, or Business Law. For me, the question most often arises in Family Law when a spouse or parent wants to secretly record a conversation with the other spouse/parent in order to aid our case at trial. The spouse or parent may want to record admissions of wrong-doing or infidelity, as well as to gain proof of verbal and emotional abuse.
It is important to know, however, that, generally speaking, it is ILLEGAL to record a telephone call IN PENNSYLVANIA without the consent of all participants to the call. The telephone call in the Fine case is legal because both Utah and New York (where each party was located during the telephone call) require the consent of only one participant to the call. In Pennsylvania , the restriction is not limited to just telephone calls. It applies to all electronic survelliance. The Attorney General’s office explains that electronic surveillance includes “the interception (to include recording) of electronic (digital pagers, computers/e-mail, fax machines), oral (face-to-face conversations where there is an expectation of privacy/non-interruption) and wire (telephone conversations) communications. ” Again, while there are limited exceptions to the general rule, the general rule is that recording a communication without the consent of each party is illegal and a felony in the third degree.
If you have any questions concerning Pennsylvania’s wiretapping law or may be the victim of a violation of the state’s wiretapping law, we welcome to call our office and schedule a free initial consultation to discuss the issue with one of our experienced attorneys.
Heart of the Penn State Scandal: 23 Pa.C.S. § 6311 – Persons Required to Report Suspected Child Abuse and § 6313 – Reporting Procedure
November 9, 2011
The current scandal engulfing Penn State raises a lot of difficult questions. These questions include: Who knew what? Who did what? and What were the persons involved required to do – both morally and legally? The answer to the question of what they were legally required to do is found in Chapter 63 of the Title 23: Domestic Relations of the Pennsylvania Statutes. More specifically, the requirements are contained in 23 Pa.C.S. § 6311 – Persons Required to Report Suspected Child Abuse and § 6313 – Reporting Procedure. The following is a breakdown of the statutory requirements.
WHAT CONSTITUTES CHILD ABUSE: § 6311 requires that suspected child abuse be properly reported. In short, “child abuse” is defined as (a) “any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years old;” (b) “an act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age;” (c) any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age;” and (d) “serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child’s life or development or impairs the child’s functioning.” Exceptions are provided under limited circumstances for religious beliefs and environmental factors.
WHO MUST REPORT: § 6311 requires that a person “who, in the course of employment, occupation or practice of a profession, comes into contact with children” is a mandatory reporter of child abuse. The statute provides a non-exhaustive list, which includes: licensed physicians, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, day-care center worker or any professional, peace officer, or law enforcement official. Limited exceptions are provided for clergy and attorneys.
WHEN MUST THEY REPORT: When the mandatory reporter has reasonable cause to suspect that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse. The mandatory reporter is required to rely on medical, professional or other training and experience in evaluating “reasonable cause.”
WHAT REPORT MUST BE MADE: If the mandatory reporter is a member of the staff, that person shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge [here, Joe Paterno and Mike McQueary]. Within 48 hours of notification, the person in charge of the institution, school, facility or the designated agent must report the suspected child abuse, orally or in writing, to the appropriate county agency (e.g., police department or children and youth services) [where the PSU officials went wrong - criminally speaking].
WHAT MUST BE REPORTED: The following must reported: (1) names and addresses for the child and parents/guardians; (2) where the suspected abuse occurred; (3) age and sex of the subjects of the report; (4) nature and extent of the suspected child abuse, including any evidence of prior abuse; (5) name and relationship of the person or persons responsible for causing the abuse and any evidence; (6) family composition, if known; (7) source of the report; (8) person making the report and where that person can be reached; (9) summary of the actions taken by the reporting source; and (10) any other information which the department may require by regulation. Note: oral reports must be confirmed in writing with the agency within 48 hours of the oral report.
Non-Citizens and Criminal Cases
September 12, 2011
Many visa holders and permanent residents do not realize that a criminal charge can lead to losing legal status in the United States. It is true that even Protection From Abuse violations and some misdemeanors can lead to deportation. It is extremely important that a non-citizen facing criminal charges educate themselves about the immigration consequences of the criminal charge.
Prior to March 2010, criminal defense attorneys were not required to inform a criminal defendant of the immigration consequences of a plea. In March 2010, the U.S. Supreme Court decided Padilla v. Kentucky, which now requires all criminal defense attorneys to tell their clients the immigration consequences of a plea.
Given the recent change in the law, many criminal defense attorneys know very little about immigration. Additionally, immigration law changes fairly regularly. An experienced immigration attorney should be able to tell you whether a plea will definitely result in deportation, whether the plea will definitely not result in deportation, or whether the case is unclear under the law. There are many serious misdemeanor charges and non-violent felony charges for which there is presently no clear answer as to whether deportation will occur.
An experienced immigration attorney can also suggest a plea bargain that will avoid deportation. Sometimes, a minor change in the length of probation may be the difference between staying in the country and being deported.
I have had too many cases where a non-citizen has told me that their defense attorney did not tell them that they would be deported for pleading guilty to a crime. A non-citizen facing charges should ask their criminal defense attorney about the attorney’s training and experience in immigration. If the attorney does not have significant training, get a second opinion.
Undoing a guilty plea is a difficult task. It is better to understand everything in advance.
I am happy to advise you as to the immigration consequences of a guilty plea, and am also experienced in withdrawing guilty pleas. Please contact Prince Law Offices for a consultation.
So, okay, we’ve established probable cause. What does probable cause entitle the police to do?
Well, for one thing, it can serve as a necessary condition for a search. In order to get a search warrant, among other things, probable cause must be established. The probable cause affidavit submitted by the police as a basis for a search warrant must contain facts specific enough to allow a “neutral and detached magistrate” (i.e., one not working for or allied with either side), such as a magisterial district judge, to make an independent judgement that the evidence the police are seeking will be present at the place or in the possession of the person. I had a case in which the police got a search warrant to search a Rastafarian’s room. The search disclosed a quarter pound of marijuana in his room. Unfortunately for the police, the probable cause for the search had been gotten by an illegal earlier warrantless search of the room by an officer exercising his “plain view” from inside the room. As a result, the search warrant was defeated, and the evidence was not permitted to be used.
Further, it can be used as the basis of an arrest. Before the police are able to get a warrant of arrest for a person, they must have a complaint supported by a probable cause “affidavit” approved by a magistrate. While a warrantless arrest may be made, it must still be supported by probable cause. So probable cause, and its requirements, are vital concepts for citizens to understand if they are to fully appreciate their rights. A good criminal defense team can ensure that your rights are safeguarded. The criminal defense team at Prince Law Offices stands ready to aid you should you need us.
“Probable Cause”: How is it established?
July 20, 2011
Following up on the definition of “probable cause,” it is important to note some of the facts or circumstances that have been held to, or not to, establish probable cause.
For example, running away or “flight” does not, by itself, establish probable cause. Neither do “furtive” hand or head movements in a vehicle. Nervousness, inconsistent answers to questions by police, gatherings on street corners, presence in a “high drug area ” throwing away items in your possession, a “transaction” on the street, looking at police (or looking away from them), refusing to “cooperate” or consent to a police activity, or mere presence with others allegedly involved in crime do not, either. A police officer’s “chanced” observation of a “single, isolated exchange of some currency for some unidentified item or items, taking place on a public street at midday,” was not sufficient to establish probable cause even where the suspect also fled from police. I actually had a case where a client was pulled over because he avoided eye contact with the police at an intersection. It turned out that staring at the officer would have also furnished reason for him to pull my client over!
However, the cases in Pennsylvania conflict regarding how many of the above factors must be present to establish probable cause. In one case, a transaction that occurred on the street at night in a high drug trafficking area. Ordinarily, this would not be enough. But the Pennsylvania Supreme Court has ruled that when such evidence is viewed through the lens of police experience, and the testifying officer is able to explain and justify the arrest in light of his or her experience and the conduct observed, then probable cause may be found. However, an exchange of objects and flight, two suspects speaking with each other on the sidewalk in a high drug area, and a transaction by itself are not sufficient to establish probable cause (although they may establish reasonable suspicion!)
If all of this sounds confusing, it is. This is a good reason why you need an experienced criminal defense attorney in your corner when you find yourself in trouble with the authorities. The criminal defense team at Prince Law Offices stands ready to aid you should you need us.
“Probable Cause”: What Does It Mean?
July 13, 2011
There are many terms thrown around in the legal “biz” that confuse ordinary people. One of these terms is “probable cause.” What is “probable cause” in Pennsylvania and what does having it entitle the authorities to do?
“Probable cause” is defined as “facts available to the officers at the moment of the arrest which ‘would warrant a man of reasonable caution in the belief’ that the individual arrested has committed an offense,” as well as there being contraband, or weapons, or evidence on a premises or in the possession of an individual.
“Probable cause,” as can be seen above, is very fact dependent and depends on a determination as to whether a prudent person acting on a “totality of the circumstances” existing at the time would believe something illegal occurred. Further, the belief must be based on something specific and “articulable,” not a mere hunch or suspicion.
If you have been arrested based upon “probable cause,” you require an experienced criminal defense team to help. The criminal defense team at Prince Law Offices stands ready to aid you should you need us.
Automobile Searches
June 14, 2011
Can the police search your car?
The general rule in Pennsylvania for any search is that a search warrant is required. However, this requirement is subject to several exceptions. In addition to normal exceptions such as “plain view” (the incriminating evidence or contraband is within the “plain view” of the police while standing in an area they are authorized to be in), an exception to a search warrant for an automobile search is “exigent circumstances”, that is, to prevent destruction of evidence or danger to the police. Unless these circumstances exist, police may not search a car without a search warrant or the person’s consent.
“Consent” Searches
June 8, 2011
A “consent” search is nothing more than a search conducted after a person gives consent to search his or her property to police.
A search warrant requires the police to justify a search with probable cause and to describe the area and the materials sought with particularity. A consent search gives the police the ability to search the area for anything.
Where the police rely on consent to conduct a search, they must show that the person that gave consent did so knowingly and voluntarily. The fact that the person “went along with” or acquiesced to police demands after threats or a show of authority or force is not enough. Even though the police are not required to show that they warned a person of a right to refuse a search, the absence of such a warning and of the knowledge of the right to refuse a search may be a factor considered in determining if valid consent was given, particularly if the person was in police custody at the time.
The Pennsylvania Supreme Court has held that consent must be intentionally given so merely allowing the police to search without affirmatively doing so is not sufficient. Further, the consent must be the relinquishment of a known right.
I counsel all of my clients to refuse consent. If the police really think they have something, let them get a warrant.
Search and Seizure: “Terry Stops”
May 31, 2011
Another type of stop that fits under the definitiion of “investigative detention” is the “Terry stop.” Named after the United States Supreme court case that defined it, a Terry stop is a search limited under Pennsylvania law by reasonable suspicion regarding activites personally observed by the officer and a reasonable belief that the suspect is armed and dangerous. Further, past criminal activity is not enough for the stop; it must be an “immediate” suspicion of current illegal conduct.
The purpose of the Terry stop is to allow an officer to conduct a pat down search to determine whether the person is carrying weapon. The issue is not the discovery of evidence, but to allow the officer to pursue his investigation without fear of violence. Thus, to conduct a Terry stop, the officer must reasonably believe that his safety or the safety of others is threatened. If either the seizure (the initial stop) or the search (the frisk) is found to be unreasonable, the remedy is to exclude all evidence derived from the illegal government activity.
Of course, despite all of the rhetoric regarding officer safety, the “frisk” component has, over the years, morphed into the permitting of a “plain feel” exception to the search warrant requirement in Pennsylvania. Thus, the appellate courts have sustained a seizure where the police, with reasonable suspicion to belief that a person was involved in a drug transaction, felt an object having the “’consistency of a bundle of caps’ [cocaine vials].” However, a frisk is only legal if it is directed toward weapons. The Superior Court has also held that one may not justify a frisk based on a rationale that “guns and drugs go together,” or that one may search items that could not be dangerous (foil, plastic bags, etc.).
Police interactions with the public are defined as “mere encounters,” “investigative detentions,” or “arrests.”
Constitutional protections against unreasonable “searches and seizures” extend only to those instances in which a “seizure” of the individual has occurred. A “seizure” occurs only when a reasonable individual would not fee “free to leave.” Any interaction where a reasonable individual would feel free to leave or where the police engage in conduct not amounting to a search, such as observing something in plain sight does not require a legal basis for the police activity.
An interaction during which a reasonable person feels free to leave is a “mere encounter.” Of course,”reasonable” varies a great deal between individuals. In Pennsylvania,a seizure is established whenever the police restrict movement, request identification, or ask about crime or criminal conduct. For example, a safety check or rendering assistance is a mere encounter, not a seizure.
In order for the police to engage in the next level of interaction, the “investigative detention,” there must be a level of articulable reasonable suspicion on the part of the police. Thus, a mere encounter may turn into an “investigative detention” if the police can articulate a level of reasonable suspicion. A circumstance under which this may occur is if an officer stops you and asks for identification. The Superior Court has held that asking for identification creates an investigative detention that must be supported by reasonable suspicion. However, in the everyday course of events, most normal people will not refuse. If you do, the police may detain you until identification can be made. Since this is an inconvenient for which there is usually no vindication unless you are really doing something wrong, I always advise to carry ID. If everything checks out, the police will usually advise that you are “free to leave.” They tell you this because, having no reasonable suspicion, they cannot hold you unless you create another basis for reasonable suspicion. And you must be “free” to create one. Walk away and give them no reason to stop you again.
