382 Pa. Superior Ct. 587 (1989) 556 A.2d 374

COMMONWEALTH of Pennsylvania
v.
Daniel KEAN, Appellant.
COMMONWEALTH of Pennsylvania
v.
Lucile Mae KEAN, Appellant.

Supreme Court of Pennsylvania.

Argued May 4, 1988. Filed March 16, 1989.

*590 David P. Truax, Meadville, for appellants.

Douglass W. Ferguson, Assistant District Attorney, Meadville, for Com., appellee.

Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.

BECK, Judge:

This case presents what the trial court described as a "strange search and seizure issue . . . which may be unique in the annals of the criminal justice system. . . ." The issue is whether the appellants' rights under the federal and state constitutions were violated when the court refused to suppress a videotape which showed the appellants participating in sexual activities in the bedroom of their home. This videotape had been surreptitiously recorded by two juveniles and was subsequently given to the police by the mother of one of them. The videotape was then viewed by the police without a search warrant. We find that under the Pennsylvania Constitution, appellants had a protected privacy interest in the images which had been secretly captured on the videotape. We conclude, nonetheless, that under all the facts of this case, the police did not act improperly when they viewed the tape without first obtaining *591 a warrant. We therefore affirm the appellants' judgments of sentence.

I.

In reviewing a trial court's denial of a motion to suppress, we consider the evidence of the prosecution and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Lemanski, 365 Pa.Super. 332, 341-344, 529 A.2d 1085, 1089-1090 (1987); Commonwealth v. Weik, 360 Pa. Super. 560, 562, 521 A.2d 44, 45 (1987). Viewed in this light, the facts of the case are as follows.

The appellants, Daniel and Lucile Kean, are husband and wife. They are nearly sixty years of age and for many years they were highly respected members of the community. In 1986, Lucile Kean began to have sexual relations with two male juveniles with her husband's knowledge and approval. The juveniles, Alan and Steve, lived in the same neighborhood as the appellants and were under sixteen years of age when sexual contact was initiated. Alan lived next door to the appellants and resided with his half-sister and her husband, Kevin Kean; Kevin Kean was both Alan's brother-in-law and the appellants' son. Steve lived in a separate residence with his step-father and his mother. On several occasions, Alan and Steve arrived together at the appellants' house and proceeded to have sex with Lucile Kean while Daniel Kean watched.

Eventually, relations between the juveniles and the appellants took a turn for the worse. Alan and Steve borrowed the Keans' car without their permission and then became concerned that the Keans might notify the police. Alan and Steve were also afraid that Lucile Kean might falsely claim that the boys had forced her to participate in their sexual activities. Sometime during the summer of 1986, the boys decided to videotape one of their sexual encounters with the Keans. In this way, they hoped to gather evidence that Mrs. Kean's participation was consensual. They also reasoned *592 that they could use the tape to blackmail the Keans into not reporting the unauthorized use of their vehicle.

In order to accomplish their objective, the boys removed a videocamera equipped with videotape from Kevin Kean's home. The camera and tape belonged to Kevin and were taken without his knowledge or permission. The boys then broke into the appellants' house when no one was home and planted the videocamera in the bedroom. They carefully concealed the camera under a pile of clothing so that only the lens protruded, and they focused the lens on appellants' bed. At midnight, the boys returned and were admitted into the house by the appellants. When the boys entered the bedroom, they secretly triggered the camera's recording mechanism before performing sexual acts with Mrs. Kean.

The following day, the boys once again broke into the appellants' home, this time to retrieve the camera. They took the camera back to Kevin's house where they watched the tape and made a duplicate by recording over another videotape which belonged to Kevin. The tape was approximately forty minutes long and showed Mr. Kean lying in bed next to Mrs. Kean while Mrs. Kean had sexual intercourse and oral sex with both Alan and Steve. Alan kept one copy of the tape for himself; this copy was later found by Kevin and erased. Alan gave the other copy to Steve who took it back to his own home.

Alan could not resist screening his copy of the videotape for two of his friends before his copy was erased. Perhaps as a result of this exposure, rumors concerning the existence of the tape began to circulate in the community. Steve's mother, Cherelynn, heard about the tape. When she asked Steve about it, Steve admitted without hesitation that he had his own copy. Cherelynn could not bear to watch the tape herself, so she asked her father Arthur to view the tape and tell her what was on it. Steve, without protest, handed the tape over to Arthur. Arthur took the tape to his house and viewed it on his own videorecorder. He then returned the tape to Cherelynn and informed her of its contents. Cherelynn then contacted a district justice *593 who told her that the matter was outside his jurisdiction. At this point, Cherelynn placed the tape in her attic where it remained for the next several weeks. She later stated at the suppression hearing: "I wanted to make sure [the tape] got in the right hands, and I didn't know who to turn to." R.R. at 121.

Meanwhile, the Crawford County Children and Youth Services had received an anonymous report concerning the sexual activities of the appellants. The agency referred the matter to Officer Lloyd of the Pennsylvania State Police who interviewed Alan and Steve. Alan and Steve told Officer Lloyd about the tape. On October 24, 1986, Officer Lloyd came to Cherelynn's home and asked her if he could have the tape. Cherelynn voluntarily handed the tape over to Officer Lloyd. At this time, the tape contained no outer markings or labels and it was not possible to examine the contents of the tape with the naked eye. Without first securing a search warrant, Lloyd took the tape to the office of the district attorney where he and the district attorney played it on a videorecorder. After viewing the contents, Lloyd swore out a criminal complaint against the appellants.

Lucile Kean was charged with two counts of involuntary deviate sexual intercourse.^[1] In addition, Lucile Kean and Daniel Kean were each charged with two counts of conspiracy to commit involuntary deviate sexual intercourse and two counts of corruption of minors. Defense counsel for the Keans filed a pretrial motion to suppress the videotape which was denied. The Keans were jointly tried before a jury. Alan and Steve testified as Commonwealth witnesses, and the videotape was introduced into evidence and played at trial. On March 17, 1987, appellants were found guilty *594 on all counts. Following the denial of post-trial motions, Lucile Kean was sentenced to a total of five to fifteen years imprisonment and Daniel Kean was sentenced to a total of twenty-three to seventy-two months imprisonment. Both parties filed timely notices of appeal from their judgments of sentence and the appeals were consolidated for review by this court.

The Keans raise two issues on appeal: 1) whether the admission of the videotape into evidence violated their constitutional rights; and 2) whether the trial court erred by failing to declare a mistrial after the assistant district attorney allegedly made certain improper and prejudicial remarks during closing argument. We find that the prosecutorial misconduct claim is meritless for the reasons stated in the opinion of the trial court. Trial Court Op. at 5-8. Although the suppression claim requires careful consideration, we conclude that the judgments of sentence must be affirmed.

II.

Appellants base their challenge to the admission of the videotape on both the fourth amendment of the United States Constitution and on article 1, section 8 of the Pennsylvania Constitution. We begin our analysis by reviewing the scope of these provisions, especially insofar as they relate to the conduct of private citizens.

The fourth amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In his influential concurring opinion in Katz v. United States, 389 U.S. 347, 360-62, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967), Justice Harlan interpreted the amendment as prohibiting unreasonable searches of areas and objects in which a defendant manifests a "reasonable expectation *595 of privacy." Harlan defined this phrase with reference to a two-part standard: 1) whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy" and 2) whether this subjective expectation is "one that society is prepared to recognize as `reasonable'". Id. at 361, 88 S.Ct. at 516. This standard was later explicitly adopted by the United States Supreme Court and is now recognized as the central concept in federal search and seizure jurisprudence. See, e.g., Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979).

Article I, section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Like the fourth amendment, this provision has been interpreted as protecting "those zones where one has a reasonable expectation of privacy." Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). See also Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988).^[2] This court, however, is not bound by fourth amendment precedents when construing claims raised under article 1, section 8. The Pennsylvania Constitution provides broader coverage than its federal counterpart, and an expectation of privacy which is deemed unreasonable by federal courts may be recognized as legitimate in this jurisdiction. See Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987); Commonwealth v. Sell, supra n. 2; Commonwealth v. DeJohn, supra; Commonwealth v. Beauford, *596 327 Pa.Super. 253, 475 A.2d 783 (1984) (extending protection afforded under article 1, section 8 beyond limits of fourth amendment).

Nevertheless, both the fourth amendment and article 1, section 8 were designed to serve the same vital function — to prevent government officials from unjustifiably invading the privacy of individuals. Thus, both state and federal constitutional limitations on "unreasonable searches and seizures" apply exclusively to the conduct of persons who are acting as instruments or agents of the state. Commonwealth v. Goldhammer, 322 Pa.Super. 242, 469 A.2d 601 (1983), aff'd 507 Pa. 236, 489 A.2d 1307, rev'd sub nom. on other grounds, Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985). The federal courts have clearly established that the fourth amendment does not provide a remedy for the victims of unreasonable private searches. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). Similarly, we have held that article I, section 8 does not require the exclusion of evidence wrongfully obtained by a private party. Commonwealth v. Dingfelt, 227 Pa.Super. 380, 323 A.2d 145 (1974). See also Simpson v. Unemployment Compensation Board, 69 Pa. Commw. 120, 450 A.2d 305 (1982), cert. denied, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 97 (1983).

In the case sub judice, the Commonwealth's chief exhibit was a videotape which would never have been created if not for an extraordinary invasion of the appellants' privacy. This invasion, however, was carried out by two juveniles who were clearly not acting at the behest of any government authority. We conclude that no constitutional violation occurred when Alan and Steve broke into appellants' home and concealed a video camera in the bedroom. Although we in no way condone the juveniles' actions, this *597 private misconduct did not render the evidence inadmissible.^[3]

Appellants, however, maintain that their constitutional rights were infringed by Officer Lloyd, while Lloyd was acting in his official capacity as a police investigator. In their motion to suppress, in post-trial motions, and on appeal to this court, appellants have specifically argued that Lloyd conducted an unreasonable search when he played the videotape on a videorecorder in the District Attorney's Office. This visual inspection of the film was a form of state action and as such was subject to constitutional constraints. We must therefore proceed to determine if this inspection was prohibited by the federal or state constitutions.

III.

Appellants concede that Lloyd had probable cause to believe that the tape would reveal that appellants had committed several criminal offenses. They claim that Lloyd should have obtained a search warrant before viewing any images on the videotape which could not be seen with the *598 naked eye. In support of this claim, they primarily rely on Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).

The petitioners in Walter owned several hundred pornographic films which were shipped on consignment by a private carrier from St. Petersburg, Florida to Atlanta, Georgia. The carrier misdelivered twelve cartons of films to a private company which had no connection with the petitioners' business. After opening the cartons, employees of the company observed that the films were stored in boxes which were labeled with explicit descriptions of homosexual activities. One employee attempted without success to view the content of the films by holding them up to the light. The company then contacted agents of the Federal Bureau of Investigation who screened several of the films on a projector without the benefit of a warrant. Petitioners were tried and convicted of violating federal obscenity laws and the convictions were overturned by the United States Supreme Court. In the opinion announcing the judgment of the Court, Justice Stevens concluded that ". . . the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutional interest in privacy." 447 U.S. at 654, 100 S.Ct. at 2400. Thus, the films should not have been admitted into evidence. See also Stanley v. Georgia, 394 U.S. 557, 571-572, 89 S.Ct. 1243, 1251-1252, 22 L.Ed.2d 542 (1969) (Stewart, J., concurring) (expressing view that warrantless screening of film violated fourth amendment rights of film owner); United States v. Haes, 551 F.2d 767 (8th Cir. 1977) (holding that warrantless screening of film violated fourth amendment rights of film owner).

We agree with appellants that if they had a constitutionally protected privacy interest in the videotape, an examination of the videotape by the police with the aid of a videorecorder would have been a search subject to the warrant requirement. However, we must determine at the outset whether appellants had a privacy interest in the videotape at the time it was viewed by Officer Lloyd. As to *599 this issue, Walter offers limited guidance since Walter addressed the privacy rights of a film owner. It is undisputed that appellants neither owned the videotape nor were aware of its existence until after it had been removed from their home and repeatedly viewed by private parties.

We shall explore the nature of appellant's privacy interest in the videotape by adopting a three part analysis. In subsection A, we find that appellants had a reasonable expectation of privacy in the place which was videotaped — the bedroom of their home. In subsection B, we find that this expectation of privacy was transferred to the videotape itself at the time of its creation. In subsection C, we consider whether this expectation of privacy was frustrated by events which occurred between the time the tape was created and the time that the tape was examined by the police. We find that appellants' privacy interest in the tape was not substantially eroded when the tape was viewed by private parties before coming into police custody. We conclude, however, that appellants' privacy interest in the tape was extinguished when the mother of one of the juveniles handed the tape over to the police.

A.

A videotape is a precise visual recreation of events in particular locations. We will consider at the outset whether the location depicted on the videotape which appellants sought to suppress merits constitutional protection.

Although a wide variety of locations may qualify as private for constitutional purposes, including offices and places of business, hotel rooms, telephone booths, and public bathrooms, nowhere is the right to privacy more firmly established than in a private residence. See generally Wasserbly, Pennsylvania Criminal Practice § 19.03 (1981). "Protection of privacy in the home is the heart of the Fourth Amendment. . . . [T]he [United States Supreme] Court since the enactment of the Fourth Amendment has stressed `the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins *600 of the Republic.'" Commonwealth v. Lemanski, 365 Pa. Super. at 347, 529 A.2d at 1092 (citing Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984)). Thus, "[u]pon closing the door of one's home to the outside world, a person may legitimately expect the highest degree of privacy known to society." Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978). Furthermore, if there is any place within the home which must be regarded as an inner sanctum of privacy, that place would be a bedroom shared by husband and wife, since the bedroom is the place primarily associated with the intimacies of married life. Cf. Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 1682-83, 14 L.Ed.2d 510 (1965) (police searches to enforce law against contraception repulsive to notions of privacy surrounding sacred precincts of marital bedrooms).

At the risk of belaboring the obvious, men and women are ordinarily justified in assuming that what happens in the bedroom will not be observed by uninvited spectators. The Commonwealth argues, however, that in the instant case, appellants forfeited their right to privacy when they admitted Alan and Steve into their home. The Commonwealth maintains that "[o]nce [the Keans] engaged in illegal sexual activities with the victims, they had no right to believe the boys would not tell someone what they were doing, or record their activities." Appellee's Brief at 11.^[4] We can readily agree that appellants assumed the risk that the juveniles might talk about their sexual experiences. Whether appellants also assumed the risk that the juveniles would plant a videocamera in the bedroom and create a permanent record of these experiences is a far different question.

*601 The Commonwealth position is supported to some extent by the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Blystone, supra. In Blystone, the defendant discussed the details of a murder he had committed with a police informant who had been equipped with a hidden tape recorder. Prior to trial, the defendant unsuccessfully sought to suppress the tape on the grounds that the warrantless recording of his conversation violated the federal and state constitutions. On appeal to the Pennsylvania Supreme Court, five of the seven justices voted to affirm the judgment of sentence.

The Blystone majority first noted that the United States Supreme Court has held that wire interceptions with the consent of only one of the parties are not forbidden by the fourth amendment. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Turning to the state constitutional question, the majority acknowledged that state courts are free to interpret article I, section 8 as providing a higher level of protection for personal privacy. The majority concluded, however, that once the defendant voluntarily disclosed his secrets to the informant, his words were no longer private and could therefore be recorded without a warrant. See also Commonwealth v. Rodriquez, 519 Pa. 415, 548 A.2d 1211 (1988) (following Blystone). In this regard, the Court cited with approval the following passage from Justice White's plurality opinion in United States v. White:

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S. [293] at 300-303 [87 S.Ct. 408, at 412-414, 17 L.Ed.2d 374 (1966)]. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either *602 (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra [343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)]. If the conduct and revelations made of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

401 U.S. 745, 751, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (cited in Commonwealth v. Blystone, 519 Pa. at 463, 549 A.2d at 88).^[5]

We find, however, that the case sub judice differ significantly from Blystone, as well as from the situation discussed in White. The Pennsylvania Supreme Court has not previously considered whether the same policies which relate *603 to the interception of conversations apply with equal force to the secret filming of events. The Commonwealth argues that there is no relevant distinction between the covert use of audiotape and the covert use of videotape. We cannot agree.

As White makes clear, there is no constitutional bar which prevents an informer from writing down a private conversation and later reading his notes in open court. If the informer instead tape records the conversation, an additional element is added — the defendant's voice. A voice is not essentially private in nature; we expose our voices to the general public every day in order to conduct our affairs. Thus, the distinction between transcribing a conversation and recording a conversation is of limited importance.

An informer, of course, is also free to write down a description of events which occur in the defendant's home and to read that description in open court. If the informer instead videotapes his encounter with the defendant, an additional element is added — an image of the interior of the defendant's home. Unlike a voice, this image is a reflection of that which is most private in our society; we do not expose our homes to the general public but only to select guests. Moreover, the image is likely to contain a richness of detail which could not be successfully communicated by even the most articulate of observers. One does not need a law degree in order to understand that a picture is worth a thousand words.

The uniquely invasive nature of surreptitious videotaping is particularly well illustrated by the facts of the instant case. Appellants were videotaped while nude and in bed and while Mrs. Kean engaged in sexual intercourse and oral sex. One can imagine the sense of violation and outrage which appellants must have felt when they learned that the videotape existed. There is something deep in the roots of our civilization which leads us to associate nudity with privacy and to shield our bodies from the uninvited eye. Even many who feel comfortable with openly discussing the details of their sex lives would rebel at the thought of *604 having sex while being watched by a hidden intruder. One cannot pretend that the Keans would have suffered as great an invasion of their privacy if the juveniles had merely bragged about their exploits. We believe that the Keans expected that whatever else might come to pass, they would not be videotaped in bed, and we believe that society is prepared to recognize that expectation as reasonable.

We need express no opinion regarding the impact of the fourth amendment on the present case. We conclude that under article I, section 8 of the Pennsylvania Constitution, a citizen of this Commonwealth may maintain a legitimate expectation of privacy in the home notwithstanding the fact that the interior of the home is secretly videotaped by a guest. We therefore find that the Keans did not waive their constitutionally protected interest in privacy when they admitted Alan and Steve into their bedroom.

B.

We must next determine whether the appellants' legitimate expectation of privacy in their home attached to the videotape of their home which was introduced into evidence against them. The Commonwealth notes that appellants did not own the videotape they sought to suppress. The Commonwealth also emphasizes that appellants were not even aware that the videotape existed until sometime after it had been removed from their bedroom by Alan and Steve. The Commonwealth would therefore have us conclude, as the suppression court concluded, that appellants had no legal interest in the videotape itself. We could subscribe to this reasoning if the videotape were nothing more than a blank strip of celluloid wound tightly about a plastic reel. Yet, we cannot overlook the fact that the videotape has a content, and that this content was a visual recreation of one of the most private things imaginable: appellants' naked bodies in the bedroom of their own home.

As we have already noted, a legitimate expectation of privacy ordinarily requires both a subjective expectation of *605 privacy and a societal recognition that this subjective expectation is justifiable. See Katz v. United States, supra. The Commonwealth forcefully asserts that appellants could not have expected that the videotape would remain private since they were not aware that they had been videotaped. To say this is to look only at the surface of things. The value of the videotape as a prosecution exhibit was that it embodied images of and information concerning what went on inside the appellants' residence and it was these images and this information that the appellants sought to keep private when they excluded the general public from their home. Moreover, the very nature of the videotape was such that a screening of the tape was a visual inspection of the home — a visual inspection which was at least as revealing as an actual entry into the home on the night of appellants' crime would have been. For purposes of the law of search and seizure, the videotape cannot be considered wholly apart from the place whose imprint it bears; an examination of the videotape was a search of the home. Since appellants had a constitutionally protected privacy interest in the home, we think it follows that this privacy interest could have been infringed upon when the police peered into the recesses of their home by means of playing the videotape.

In urging a contrary conclusion, the Commonwealth relies heavily on the fact that appellants had no proprietary interest in the videotape cassette. Yet, the issue of whether an illegal search has taken place is distinct from the issue of whether the government has interfered with the defendant's right to control his own property. Cf. United States v. Karo, 468 U.S. 705, 712-713, 104 S.Ct. 3296, 3301-3302, 82 L.Ed.2d 530 (1984) (common law trespass neither necessary nor sufficient to establish fourth amendment violation). In the landmark case of Katz v. United States, supra, FBI agents investigating an illegal gambling operation monitored a phone conversation by placing a recording device on the outside of a public telephone booth. Mr. Katz owned neither the phone booth, nor the phone, nor *606 the telephone company's transmission wires, yet the Court held that by listening in on his conversation, the government exceeded the limits of the fourth amendment. If a legitimate expectation of privacy can exist in a conversation conducted over a third party's wires, we see no reason why a legitimate expectation of privacy cannot exist in an image projected from a third party's videotape. To require that the defendant own the videotape which bears the image of her naked body in order to assert a privacy claim would be to treat privacy as a commodity that must be purchased, rather than as a central aspect of liberty.

The Commonwealth also stresses that appellants had no idea that they were being videotaped while they were in bed with the juveniles. This is true, but we can safely assume that Mr. Katz had no idea that he was being tape recorded when he placed bets over the public telephone. There is no requirement that in order to demonstrate a legitimate expectation of privacy, a defendant must consciously guard against the precise threat to privacy which materialized. When Katz closed the door of the telephone booth and picked up the phone, he had the right to assume that the police would not later listen to his words on a tape recorder. When appellants admitted the juveniles to their home and closed the door behind them, they had the right to assume that the police would not later watch their images on a videotape.

Finally, although we are aware of no precise analogy to the facts of the case sub judice, we note that the Pennsylvania Supreme Court has implicitly recognized that a defendant may have a legitimate expectation of privacy in an object which is created by a private party and later obtained by the police. In Commonwealth v. DeJohn, supra, police investigators served two invalid court subpoenas on a bank: one demanded production of original records relating to defendant's bank accounts, and the other demanded production of copies of records and other information relating to defendant's bank accounts. The defendant argued that she had a reasonable expectation of privacy in all of these *607 documents. Although the United States Supreme Court had previously rejected a similar claim in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the Pennsylvania Supreme Court held that article I, section 8 of the state constitution prohibits the warrantless seizure of financial records pertaining to a defendant depositor. In reaching this conclusion, the Court made no effort to distinguish between those papers which the defendants had created and those papers which had been created by the bank. Instead, the Court ordered suppression of all the documents seized, and quoted with approval the following passage from a California Supreme Court opinion:

Cases are legion that condemn violent searches and invasions of an individual's right to privacy in his dwelling. The imposition upon privacy, although perhaps not so dramatic, may be equally devastating when other methods are employed. Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently, judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by th