On Tuesday, Montgomery County Judge Steven T. O’Neill, in Commonwealth v. Enos , suppressed a video taken by a confidential informant during a controlled buy inside of an automobile.
In Enos, a Pottstown detective worked with a CI to set up a controlled buy in which the CI was supplied with a hidden body camera. The CI waited for the defendant to pick him up in a parking lot, which he eventually did. The defendant subsequently drove roughly one half of a block down the street and conducted the transaction. The CI was in the car for roughly two or three minutes. Officers observed the situation from roughly 45 feet away in plain clothes and an unmarked car, but were unable to discern the defendant’s license plate or identify the driver due to tinted windows. The CI returned to the officers after the transaction and handed them the drugs. The defendant was not stopped at this time, but the video was later used to identify and charge the defendant roughly two months later when he was arrested on an unrelated bench warrant.
In reaching the decision to suppress the video, Judge O’Neill extrapolated the holding of Commonwealth v. Dunnavant, 63 A.3d 1252 (Pa. Super. 2013). In Dunnavant, a video taken by a CI in the defendant’s home was suppressed despite arguments from the Commonwealth that the defendant had waived his expectation of privacy by inviting the CI into his home. The Superior Court held that no exceptions to the warrant requirement applied here, and thus the video had to be suppressed. In Enos, it was established that the video taken by the CI constituted a search, and that there was no plain-view exception to the warrant requirement because the defendant’s tinted windows increased his expectation of privacy. The automobile exception was also discussed, but that exception still requires probable cause, which did not exist in this case until after the transaction had occurred. In other words, law enforcement can not establish probable cause by bringing a camera into a car beforehand to film the incriminating activity. The prosecutor handling this case stated that she will file an interlocutory appeal regarding this issue.
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