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I regularly warn clients (and potential clients, and friends, and sometimes acquaintances or strangers) about the Massachusetts wiretap act. Many, many people want to secretly record calls or meetings, whether to have a record of their own statements during an investigative interview, to document a boss or coworker’s discriminatory or offensive remarks, or to try to secure evidence from witnesses who might be reluctant to testify. In some states, that would be fine! But in Massachusetts, the wiretap act makes it a felony to record audio of another person without that person’s consent. (There are circumstances in which the statute cannot be constitutionally applied, as when someone records the police; those are outside the scope of this post.)
The statute authorizes law enforcement to use wiretaps if they have a warrant to do so, or if they are investigating a “designated offense” committed in connection with organized crime and have the consent of one party to a transaction to record it. (“Designated offenses” include a large variety of violent crimes and crimes otherwise associated with organized crime, such as illegal gaming.) In essence, this provision permits the police to do things like record calls between a witness or undercover agent and members of organized criminal investigations. But the statute also provides that a recording obtained in violation of the statute must be excluded from evidence in a court case. Its application to police activity has often been a troubling issue for the courts.
Last week, the Appeals Court considered one instance of police secretly recording a defendant in Commonwealth v. Du. Undercover officers used a cell phone application to transmit essentially a livestream of their interactions with the defendant, from whom they purchased drugs. Other officers watched and listened to the transactions live, and a recording was also transmitted and saved in the cloud. This was, of course, all without the defendant’s consent or knowledge. When he was charged criminally, he moved to suppress the recordings—not on any constitutional grounds, but because they violated the wiretap statute. The trial court suppressed the audio but not the video portion of the recordings. The Appeals Court agreed that the recording violated the wiretap statute, holding that the recording was secret; that the defendant plainly did not consent to it; and that although the drug crime in question was a “designated offense,” the Commonwealth failed to prove a nexus to organized crime. The Appeals Court also went a step further than the trial court, and held that the entire recording had to be suppressed, not just the audio. In a footnote, the Appeals Court encouraged police to seek a warrant in the future before using “a novel surveillance tool.”
This holding seems plainly right. The recording here was exactly the kind of recording that Massachusetts lawyers are perpetually warning clients against. The only way it could have been justified was by a warrant—which police did not have—or by the exception for organized crime, which pretty clearly did not apply to the defendant, a street-level dealer selling small quantities.
Even so, I was relieved to see the decision go this way—mostly because the Supreme Judicial Court (the highest court in Massachusetts) has not always held law enforcement to the same standards as the public when it comes to secret recording. For example, earlier this year the SJC decided a case, Commonwealth v. Rainey, in which police used their body cameras to record statements by the victim of a domestic assault, and the trial court admitted and relied upon that footage at a hearing revoking his probation. The court held that, first, the exclusionary remedy in the statute did not apply in a probation violation hearing. But more broadly, it held that where the recording “captured the victim’s voluntary statement to police officers, which she knew was being memorialized by them in writing,” the statute did not apply. I find that holding very frustrating. I have clients participate in investigative meetings all the time that my client or I would be subject to prosecution for recording, even though typically the investigator and I are both openly memorializing everything said in writing. Whether the speaker knows that some record is being made of her words should not be the test for whether a secret recording can be used in court.
It seems to me that if the defendant is recorded in circumstances like those in Rainey—if, for example, an officer responding to an active report of a crime turns on his body camera and records the defendant rather than an alleged victim—he still might have a claim for suppression of the recording. Certainly if I were representing a client in that position, I would try to distinguish Rainey. But at a minimum, when police are acting undercover, Du reaffirms at least that there is some line that the courts won’t let them cross without a warrant.
