Prison Conversations Can’t Be Recorded Under the Wiretap Act

Filed under: Criminal Law by Contributor @ November 1, 2016


Last year the Pennsylvania Supreme Court had agreed to take up a case of first impression to determine whether certain “visit communications” between inmates and their visitors fall within the exceptions to Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.

Pennsylvania’s Wiretap Act generally prohibits intercepting, using or disclosing communications. The Act contains 18 exceptions to the general prohibition on intercepting communications. In Commonwealth v. Fant , the Pennsylvania Supreme Court held that “visit communications,” conversations that occur between an inmate and his visitor using a “telephone-like apparatus” are not subject to the correctional facility telephone exception under the Wiretap Act.

In October of 2013, Raheim Fant pled not guilty to various charges stemming from an incident during which he allegedly stabbed a man. While awaiting trial he was detained in a county correctional facility. The Commonwealth planned on entering into evidence audio recordings from the correctional facility. All but two of the recordings were conversations between Fant and his visitors in the facility’s visitation room.

Once Fant received the recordings from the Commonwealth, he filed a motion to exclude the visit conversations and any evidence recovered as a result of the conversations. The Suppression Court granted Fant’s motion concluding that the visit conversations were not “telephone calls” because the “everyday common sense use of the word telephone does not include this [type of] scenario.” The Suppression Court based its decision on the fact that visit conversations utilize an apparatus that resembles a telephone and requires an inmate to punch in ID numbers. The Suppression Court further stated that the conversations did not involve the use of a telephone company, telephone lines or equipment outside of the facility.

Disagreeing with the decision, the Commonwealth appealed and the Superior Court reversed. The Superior Court concluded that “under any common meaning … the apparatus in question is a telephone,” and therefore would fall within the purview of the correctional facility exception to the prohibition of intercepting communications.

The Supreme Court focused its analysis on determining the meaning of “telephone” under the Wiretap Act since the Act does not define the term. When a term is not defined in a statute, courts are generally required to give the term its ordinary meaning. The Court notes that ordinarily, “a person would not consider a face-to-face conversation at a prison between an inmate and a visitor to be a telephone call.”

In addressing the question of what is a telephone call, the Court interprets the word “telephone” in the context of the surrounding words. The biggest distinction the Court makes between telephone calls and visitation conversations is that the word “calls” alongside “telephone” indicates the meaning of telephone is a “device capable of making calls.” In order to make these “calls” telephone companies are involved to connect the caller to the receiver and for this to happen, the caller must dial a telephone number.

The Court came to the conclusion that the plain meaning of a “telephone call” is a type of communication that has three requirements: (1) involves the dialing of a telephone number; (2) involves a device that is connected to a telephone company; and (3) permits a caller to converse with a recipient whose similar device is associated with the dialed telephone number. Since the “telephone” used during the facility visits did not connect to a telephone company nor did it require dialing a telephone number to connect with the visitor, the majority held that the decision to suppress the visit conversations was proper.

Justice Baer along with Justice Mundy had a differing view that communications between an inmate and his visitor at a correctional facility are telephone calls and fall within the exception. The purpose of authorizing the interception of inmate’s telephone calls is to “safeguard the orderly operation of the facility and the prosecution and investigation of a case.” The dissent was concerned that if a visitor telephone call could not be monitored or recorded, inmates could freely use these types of conversations to conspire with others.

Without the exception, law enforcement would be required to get a warrant for a wiretap. This exception removes the need for court approval with respect to intercepting telephone calls to and from an inmate.

Even though the Court held that visit conversations cannot be recorded, inmates should be reminded that anything they say and do while imprisoned may be used against them. Do you agree with the majority opinion that visitation communications are not telephone calls or do you agree with Justice Baer that “an instrument that resembles a telephone and acts as a telephone … is a telephone?”

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