¶1concurring.
¶2I join the Majority Opinion and agree that the police properly obtained the approval of the District Attorney’s designee before conducting the one-party consensual wiretap in Alexander’s office.
¶3However, I write this Concurring Opinion to discuss the requirements of the Wiretapping and Electronic Surveillance Act
¶4REQUIREMENTS IN THE ACT
¶5Generally, Section 5709 of the Act requires the police, through the Attorney General or District Attorney, to apply for an Order from a Superior Court Judge before intercepting any wire, electronic or oral communication. Once police obtain consent from one of the parties to the conversation for a consensual interception of wire, electronic or oral communications, the police do not need to obtain an order from a Superior Court judge before conducting such a surveillance. Instead, the Act only requires that they obtain the approval of the Attorney General, the District Attorney or one of their designees. Thus, I would agree with the Majority that the police in this case complied with the Act by applying to Barbieri to approve their wiretap.
¶6ANALYSIS OF COMMONWEALTH v. SCHAEFFER
¶7Barbieri testified that the Commonwealth was attempting to comply with the requirements of the Superior Court’s decision in Schaefferwhen it obtained judicial approval of this wiretap. In that case, the Superior Court held that Article I, Section 8 of the Pennsylvania Constitution requires police to obtain a *21search warrant before conducting one-party consensual interceptions of wire, electronic or oral communications. The Superior Court held that the warrant would not have to comply with the exacting standards of the Act, except that the warrant should only issue upon a finding of probable cause supported by an affidavit. The court also acknowledged that:
search warrants to intercept conversations are not entirely similar to search warrants to seize tangible property, and therefore some analogies to the wiretap act may be useful. For example, orders authorizing interceptions should specify some reasonable limitations as to time, place, and identity of the parties whose communications are to intercepted. Cf. 18 Pa.C.S. § 5712(a)-(b).
¶8Schaeffer, 370 Pa.Super. at 217, 536 A.2d at 373. The Superior Court provided no further guidance to the police and the District Attorneys concerning what type of warrant was needed and how a search warrant would satisfy the provisions of the Act. On appeal, this Court, in a plurality opinion, affirmed the Superior Court. Commonwealth v. Schaeffer, 539 Pa. 272, 652 A.2d 294 (1994).
¶9The Schaeffer opinion is problematic because it fails to provide sufficient guidance to law enforcement officials. For example, Barbieri testified here that he felt strictly applying the Schaeffer search warrant requirement would defeat the purpose of the one-party consensual wiretap. In particular, he noted that the service requirement of Pa.R.Crim.P.2004 would alert the unknowing party that their conversation was being recorded. In an effort to bypass this problem while still complying with the law, Barbieri interpreted the intent of the Schaeffer opinion to be the determination of probable cause by a neutral judicial authority. Notes of testimony, March 29, 1990, at__ (R.R. 74A). Therefore, he applied for an Order from the Court of Common Pleas authorizing the search based on Judge Abraham’s determination of probable cause. However, I note that there is no provision in the Wiretap Act for judges of the Courts of Common Pleas to authorize wiretaps. Although the Commonwealth was attempting to follow the requirements of Schaeffer, the Superior Court’s Opinion in *22that case did not offer sufficient guidance to law enforcement officers concerning how to comply with the so-called warrant requirement. Moreover, as Barbieri conceded, Judge Abraham’s Order did not comply with the requirements for a search warrant; for example it was not limited in time to two days and it was not served on Alexander. Schaeffer does not explain whether these deficiencies are fatal to the constitutionality of the search.
¶10As this case demonstrates, the search warrant requirement makes this area of the law perplexing and impedes the effectiveness of law enforcement. It is nonfunctional and therefore unnecessary. I would explicitly overrule the Schaeffer search warrant requirement and uphold the wiretap in this case based solely on police compliance with Section 5704(2) of the Act, which required the police to secure an authorized District Attorney or Attorney General or their designee’s approval before conducting a one-party consensual wiretap.
¶11WHETHER ALEXANDER HAD A REASONABLE EXPECTATION OF PRIVACY IN ORAL COMMUNICATIONS WITHIN AN OFFICE
¶12In addition, I feel compelled to note in greater detail why I believe that Alexander’s argument that a person has a similar expectation of privacy in an office as in a home is not persuasive.
¶13Moreover, the Act protects any privacy interest that a person may have to a conversation in an office by requiring the police to obtain written authorization from a District Attorney or Attorney General or their designee before conducting a one-party consensual wiretap. I would find that, with these provisions, the Act sufficiently protects a person’s limited privacy interests in an office.
¶14Finally, we should be cautious before adding to the judicially created requirements of the Act. I agree with Justice White of the United States Supreme Court who opined:
[We should not] be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat of injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony.
¶15U.S. v. White, 401 U.S. 745, 753, 91 S.Ct. 1122, 1126-27, 28 L.Ed.2d 453 (1971).
¶16. 18 Pa.C.S. § 5701 et seq.
¶17. Brion may have implicitly overruled the Schaeffer search warrant requirement by requiring a Superior Court judge to make probable cause determinations for interceptions of oral communications in a home. However, I would have explicitly overruled the search warrant language.
¶18. I note that Alexander used his office to sell prescriptions for drugs later sold on the street. He is now making this unconvincing comparison of an office to a home to shield his abandonment of his professional oath and his abuse of the physician’s privilege to prescribe medications.
¶19. I have, however, repeatedly stated that the use of a residence for illegal activity, such as the sale of drugs, should deprive even the occupants of a home of their traditional expectation of privacy. Commonwealth v. Selby, 547 Pa. 31, 688 A.2d 698 (1996) (Newman, J., dissenting).
¶20. In White, the Supreme Court of the United States held that a warrant-less wiretap conducted with the consent of one party to the recorded conversation did not violate the Fourth Amendment. While I recognize that we are deciding this case pursuant to Article I, Section 8 of the Pennsylvania Constitution, not the Fourth Amendment of the United States Constitution, I find the reasoning in Whitepersuasive.