Massachusetts residents aren’t legally allowed to audio record a conversation without the other person’s consent. Can police do it without a warrant?
The Massachusetts Supreme Judicial Court will decide.
Oral arguments are scheduled for Friday, September 6 in Commonwealth v. Du, an appeal which involves surreptitious audio and visual recordings police made in November and December 2019 of a suspect later charged with dealing heroin or fentanyl.
Prosecutors want to keep both audio recordings as evidence — – or, if the audio is tossed, at least keep the video. The defense wants both the audio and the video suppressed.
During the investigation in 2019, an undercover Boston police officer who made drug buys used a cell phone app called Callyo, “which allowed him to make and transmit real-time audio-video recordings on the phone,” according to a brief from Suffolk County prosecutors.
“He was thus able to record his conversation with the defendant that day and to transmit it live to other officers,” the prosecutors, Suffolk County district attorney Kevin Hayden and assistant district attorney Paul Linn, wrote in their April 2024 brief.
A trial court judge suppressed the evidence, finding that the way police got it violates the state’s wiretap law.
The statute (Massachusetts General Laws, Chapter 272, Section 99(A)), bans what it calls an “interception” of a communication, which it defines as “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” Police ordinarily need a warrant issued by a judge to secretly record conversations, under court interpretations of the law.
Prosecutors argue in their brief that the state law shouldn’t be interpreted to require that another person knows he’s being recorded, saying such a standard “would pose a real danger to American citizens in the 2020s, who, according to the Pew Research Center, collectively own over three hundred million small ‘intercepting devices,’ better known as cellphones.”
“To apply the actual-knowledge standard … to civilians would be disastrous, as it would apply even to an openly made recording of a public event that happens to capture the words of a person who is unaware of the recording,” the prosecutors’ brief states.
As an example, prosecutors cited a video in June 1992 of then-Boston city councilor Albert “Dapper” O’Neil (1920-2007), who during a Dorchester Day parade said to a deputy police superintendent after passing through a largely Vietnamese neighborhood “I thought I was in Saigon” and “I told them I’d come back tomorrow with the checks,” a reference to welfare checks, as The Boston Globereported at the time.
The video was broadcast on WCVB-TV Channel 5 and caused a media firestorm at the time. (O’Neil survived; he served another seven years on the city council.)
Prosecutors point out that O’Neil “obviously did not know that he was being recorded,” but that the unidentified person who took the video in a public place shouldn’t be held accountable “simply because O’Neil did not notice the camera or realize that it recorded sound.”
Dispute Over Key Fact
The prosecution and defense in the drug investigation case agree that the suspect didn’t know he was being recorded but they clash on an important fact – could the defendant see the cell phone?
Prosecutors say he could.
The undercover officer “was openly holding the cellphone he was using to record his conversations with the defendant” during drug buys in the East Boston and Brighton neighborhoods of Boston, prosecutors said in their brief.
The defendant’s lawyer says there’s no evidence of that, and she notes in their brief that the Massachusetts Appeals Court agreed.
The state Appeals Court decision in October 2023 said in a footnote that “there was no evidence below as to how the cell phone was displayed by the undercover officer, and our independent review of the videos does not lead us to conclude that it was displayed in plain view in a manner that would lead the defendant to be on notice that he was being recorded.”
The decision was written by Gabrielle Wolohojian, who was a member of the state Appeals Court at the time but is now one of the seven members of the Massachusetts Supreme Judicial Court, having joined in April 2024 after being nominated by Governor Maura Healey, her former longtime domestic partner, in February.
Background of the Wiretap Law
The state’s wiretap statute was enacted in July 1968 — a time of gang wars and rampant organized crime in Boston. State legislators were trying to balance privacy with a perceived need to gather evidence against organized crime figures.
The statute includes a 232-word preamble that says in part “the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth,” and that therefore “the secret use of such devices by private individuals must be prohibited.”
“The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime,” the preamble states.
The defense argues that the statute doesn’t cover the drug investigation of 2019, noting that the defendant isn’t accused of participating in organized crime, but rather of acting as a street-level drug dealer.
The state’s wiretap law was enacted more 40 years before the appearance in 2009 of cell phones that could record video.
But that shouldn’t matter as a matter of law, the defense lawyer said.
“That the Legislature could not foresee the development of the cell phone capable of both audio and video recording does not mean that recordings made with this modern technology are excluded from consideration as ‘contents’ of prohibited interceptions,” the defense lawyer, public defender Nancy Dolberg, said in her May 2024 brief.
The defense wants both the audio recording and the video recording suppressed, “to deter future vi[1]olations of the statute by the police,” Dolberg wrote.
Future Police Activity
At stake is the future of drug investigations in Massachusetts. Nine district attorneys in the state have signed onto a friend-of-the-court brief filed in June 2024 in the case.
The district attorneys encourage the state Supreme Judicial Court to define the term “secret” in the state statute so as not to cover situations where a person out to be able to make a reasonable inference that the person may be being taped, “even without an explicit advisory that the communication is being recorded.”
The Massachusetts Association of Criminal Defense Attorneys also filed a friend-of-the-court brief in the case, on August 16, 2024, arguing that the state’s highest court should throw out both the audio and the video. The brief cited what it called the state Supreme Judicial Court’s “commendable track record of safeguarding privacy … against ever-encroaching electronic surveillance methods.”
CommonWealth Beacon reported the case and the upcoming oral arguments in a story published on Thursday, August 29.
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