Secretly recorded video that police take without a warrant can’t be used at trial against a suspect in Massachusetts, the state’s highest court has ruled.
Prosecutors in a drug case in East Boston and Brighton were hoping to use at least the video without the audio recording of what was said, but the Massachusetts Supreme Judicial Court decided that in light of a state statute that bans surreptitious recordings both must be tossed.
“We conclude that, where the police secretly make such a warrantless audio-visual recording of a defendant’s oral communication in violation of the wiretap act, the video footage must be suppressed together with the audio component,” Justice Bessie Dewar wrote in the 6-0 decision.
“This result is also consistent with the Legislature’s stated purposes in providing a strong remedy for violations of the wiretap act,” the court’s opinion states.
Boston police began investigating the suspect, Thanh Du, after determining from a deceased drug user’s cell phone that Du had supplied him the drugs that led to his death, according to court papers.
An undercover police officer made three separate purchases of an opioid known as “brown” — either fentanyl or heroin — from Du in November and December 2019 in two sections of the city of Boston — one in East Boston, one in Brighton, and another in East Boston, according to the prosecutors’ brief. The first purchase, which took place outside a laundromat in Maverick Square, was for $100.
The undercover police officer used an app called Callyo to record the purchases and simultaneously transmit the recordings to other police officers. After the third purchase, police arrested Du and charged him with drug dealing.
A Boston police sergeant who viewed the transmissions at the time later testified that the undercover officer “would not necessarily have concealed the cellphone he was using to record the defendant … but acknowledged that it would be pointless to record a suspected drug dealer who knew he was being recorded,” according to the prosecutors’ brief.
“The police absolutely admitted that this was a recording that they wanted to be secret, and I do not doubt the defendant’s assertion that he was unaware of it. But it is past time to retire the phrase ‘actual knowledge’ in connection with the wiretap statute,” Suffolk County assistant district attorney Paul Linn said during oral arguments September 6.
Recent state and federal court decisions, he said, make it clear that “the standard is whether there are objective circumstances that put the defendant on notice” that he might be being recorded.
That led to an exchange between the prosecutor and one of the justices, Serge Georges Jr., during oral arguments.
George challenged the prosecutor on what he called “Your proposition that we should now take the view that just because all of these phones have recording capabilities, it means that the wiretap statute really doesn’t mean anything anymore.”
“That is a sad fact more than the Commonwealth’s position,” Linn responded. “It is true that virtually everything we do and say these days is record[ed].”
Linn also argued that the angle of the video makes it clear that the undercover police officer was holding the cell phone in his hand and that therefore the defendant could see the cell phone and was on reasonable notice that he might be being recorded.
In its decision, the state Supreme Judicial Court sidestepped that argument, noting that prosecutors didn’t make such arguments at the lower court level, so therefore “they are waived.”
Background of the State’s Wiretap Law
A state district court judge suppressed the audio recordings but allowed the video images as evidence. On appeal, the Massachusetts Appeals Court, which is the state’s second highest court, tossed both the video and the audio.
The Appeals Court decision in October 2023 was written by Gabrielle Wolohojian, who on April 22, 2024 became a member of the state Supreme Judicial Court, after being nominated earlier this year by Governor Maura Healey, her former longtime domestic partner. Wolohojian did not participate in the state Supreme Judicial Court’s consideration of the case.
As New Boston Post reported in August, a state 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.”
The state’s wiretap statute was enacted in July 1968, more than 40 years before the appearance in 2009 of cell phones that could record video. State legislators at the time were trying to balance privacy with a perceived need to gather evidence against organized crime figures, at a time when recording devices were far less common.
The statute includes a preamble saying that “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.
Police in Massachusetts therefore ordinarily need a warrant to secretly record conversations.
Lots of Interest
A state district court judge suppressed the audio recordings but allowed the video images as evidence. On appeal, the Massachusetts Appeals Court, which is the state’s second highest court, tossed both the video and the audio.
The Appeals Court decision in October 2023 was written by Gabrielle Wolohojian, who is now a member of the state Supreme Judicial Court, after being nominated earlier this year by Governor Maura Healey, her former longtime domestic partner. Wolohojian did not participate in the state Supreme Judicial Court’s consideration of the case.
The Du case drew attention from nine other district attorneys in Massachusetts, who submitted to the state’s highest court a friend-of-the-court brief arguing that at least the video should be admitted as evidence, on the grounds that the state legislature “did not prohibit
secret video-recordings,” but only secret audio recordings.
On the other side, the Massachusetts Association of Criminal Defense Attorneys also filed a friend-of-the-court brief arguing that both the audio and the video should be tossed as safeguard “against ever-encroaching electronic surveillance methods.”
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