SMETHPORT — The Pennsylvania Superior Court has reversed a ruling by a McKean County judge that had suppressed wiretap evidence in a 2021 Bradford drug case.
The case was against Michael Lissmore, 45, of Buffalo, N.Y. Detective Kolin Strawcutter of the McKean County Drug Task Force filed charges against Lissmore in 2022 for delivery of a controlled substance. Defense counsel, Douglas Sullivan of Erie, filed a motion to suppress evidence obtained by use of a wire.
President Judge John Pavlock agreed, and suppressed the evidence. District Attorney Stephanie Vettenburg-Shaffer appealed to the state Superior Court.
“The crux of the appeal is whether the Wiretap Act allows a person, acting with law enforcement, to agree to record over a period of time conversations involving suspected criminal activity or whether they can only agree to record one conversation at a time,” Shaffer said.
She argued that one party to the conversation can consent to recordings that are to occur during a set period of time during a criminal investigation, which occurred in this case. The defense said there was nothing on record that showed consent had been given voluntarily and without coercion.
In the Superior Court memorandum and opinion, the justices indicated that Pavlock found that Shaffer followed correct procedure. However, he granted Lissmore’s motion because the confidential informant’s consent to be recorded “occurred weeks prior to the interception of the CI’s call to (Lissmore) and did not focus upon that particular recording.”
The Superior Court overturned Pavlock’s ruling, saying there’s no mandate that each recording be specifically authorized, the memorandum stated.
Shaffer explained Tuesday, “In essence, the (Wiretap) Act does not require a person to consent to record a specific conversation but, rather, they can agree to record conversations as part of a criminal investigation over a period of time. The Court summarized, ‘There is no statutory requirement that consent be authorized prior to every conversation.’”
Shaffer responded to the opinion.
“Wiretap evidence is critical in major drug investigations and use of them is considered the norm in McKean County, if not nearly a requirement, under the exacting standards of our detectives,” she said. “Many of the detectives with the McKean County Drug Task Force have attended special training to become wiretap-certified, meaning they are permitted to obtain evidence with a recording device.”
She continued, explaining that in Pennsylvania it is generally against the law to record another person without that person’s knowledge. The police are an exception when the recording is done in cooperation with a prosecutor, and when the prosecutor can make sure the confidential informant is consenting to “record conversations of suspected criminal activity. These safeguards are in place to ensure that law enforcement is able to obtain evidence by use of a recording device while ensuring oversight by the prosecutor,” Shaffer said.
She added that her office follows strict standards for recording people.
“I am pleased that the Superior Court agreed with these standards and the protocols we have in place,” she said.
According to the criminal complaint in the case against Lissmore, on Oct. 4, 2021, he communicated with an informant of the task force to arrange for the delivery of cocaine for $260. He had the informant go to his vehicle on Bushnell Street in Bradford to make the purchase, the complaint stated.
Lissmore remains free on $10,000 bail.
