On December 2, 2016 a PA Superior Court overturned the conviction of Dennis Katona, identified by authorities as a former member of the Pagans Motorcycle Club.

OFF THE WIRE

Why Conviction of Pagans MC Member was Overturned

On December 2, 2016 a Pennsylvania Superior Court Order overturned the conviction and sentence of Dennis Katona, identified by authorities as a former member of the Pagans Motorcycle Club convicted for possession and the intent to distribute a controlled substance. Despite Katona’s connection, prosecutors claim he was acting alone and without the club’s involvement. ¹

Essentially the court determined that evidence obtained from the search of Katona’s home was inadmissible because independent probable cause is required for each intercept of a conversation occurring in a private residence. Therefore, a warrant allowing consensual intercepts of an individual in his home over a 30 day period violates both the US and Pennsylvania constitutions.²

The Superior Court’s Decision

In a 2-1 decision, the Court majority overturned Kastona’s conviction based on the state’s Supreme Court precedent case Commonwealth v. Brion decided in 1994. The Court argued that the constitution requires a judge to approve a search warrant when a wired informant enters someone’s home as opposed to meeting them on the street, in a car or in a restaurant. In Brion, the court held:

“Because the right to privacy in one’s domain is sacrosanct, we hold that Article 1 § 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record his conversations.” ³

The Superior Court reasoned that a clear and unambiguous reading of both Supreme Court precedent and enacted legislation requires independent probable cause for every intercept in a private residence under both the state and federal constitutions. ⁴

“Because society places a higher expectation of privacy in a face-to-face conversation taking place within an individual’s home compared to a telephone conversation, a 30-day period of time in which to obtain such in-home intercepted communications does not comport with the protections afforded by the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.” ⁵

Although the Superior Court’s decision is positive for advancing protections against illegal search and seizures, the decision will likely be appealed.

What Happens Next?

Deputy State Attorney General Michael M. Ahwesh, who prosecuted the case reports, “I fully anticipate we will file an appeal.” ⁶  The state has two appeal options — requesting a new hearing before a nine-judge panel of the Superior Court or requesting a hearing before the state Supreme Court. ⁷

The Katona court prefers a state Supreme Court review. The court concluded by writing, “we are cognizant of the fact that this court will not be the final word on this issue. We strongly advocate that our Supreme Court review this case and determine whether our interpretation is in line with its seminal decision in Brion. We recognize this decision has broad ramifications for law enforcement.” ⁸

Katona, who is currently serving 40 to 80 months in prison for his 2014 conviction on drug charges, could ask a judge to release him on bail pending an appeal. ⁹

Conclusions

Although dissenting Judge Eugene B. Strassburger argued that “requiring police to seek a judge’s approval each time they sent the informant into the home would be a burden”, most constitutional protections, “including the right to be free from unreasonable search and seizures, are supposed to be burdensome,” says Katona’s attorney Paul Boas. “It is burdensome to get a warrant, read a suspect the Miranda warnings, pick a jury and hold a trial.”

“This is a democracy. It’s not supposed to be easy. We’re in big trouble the day law enforcement stops complaining about how hard it is for them.” ¹⁰

Footnotes

¹ Pittsburgh Action News 4, Nov.11, 2014, Former Pagans head guilty, sentenced for drugs. Deputy Attorney General says it appears Katona was dealing the drugs “on his own. We don’t think the club was involved.”

² Com. v. Katona, D. No. 1995 WDA 2014, 2016 PA Super 269. p.3  “The crux of appellant’s suppression claim is whether the June 29th search was unconstitutional because it was based on a May 16, 2011 order signed by Judge John Blahovic that authorized consensual intercepts by a confidential informant (“CI”) over a 30-day period in appellant’s home. Specifically, as a result of numerous in-home intercepts, probable cause was established for the full search of appellant’s home. Appellant asserts that the May 16th order violated our Supreme Court’s decision in Brion, in that it allowed for unlimited intercepts in his home over a period of 30 days.”

³ Commonwealth v. Brion, [652 A.2d 287 (Pa. 1994),] and as codified in 18 Pa.C.S.[A.] § 5704(2)(iv)

⁴ See Supra Note 1 at p.10  “We find that, based on a clear reading and the intent of both the Brion decision and the statute, a separate finding of probable cause was required for each in-home intercept.”

⁵ See Supra Note 1 at p.13

⁶ Tribune Review Live, Court overturns conviction, sentence of former leader of Pagans, Dec.2, 2016. http://triblive.com/local/westmoreland/11578375-74/state-judge-court

⁷ Id

⁸ See Supra Note 1 at p.14