Massachusetts Appeals Court Protects Privacy Rights, Strikes Down Warrantless Secret Recordings by Law Enforcement

Oct 06, 2023.

InCommonwealth v. Du, 103 Mass. App. Ct. 469 (2023), the Massachusetts Appeals Court threw out of court secret audio-visual recordings of drug purchases from the defendant, made without his knowledge or consent and without obtaining a warrant, because the Massachusetts wiretap statute, G.L. ch. 272, § 99, requires that all parties consent to interception of wire and oral communications.

Our Take:

Du represents the front lines of the battle to preserve the people’s right to communicate their thoughts and beliefs without the fear of secret government surveillance and recording.  The relentless encroach of sophisticated surveillance technology represents one of the greatest threats to a free society.  The Appeals Court recognized this danger by fortifying the protections the people of Massachusetts deemed paramount in the adoption of G.L. c. 272, s. 99.

There is little novelty in the Court’s disposition of the secret recording in Du.  This case obviously did not involve “a continuing conspiracy among highly organized and disciplined groups.”  It involved a street dealer selling small quantities of drugs.  It is important that the Court recognized this distinction.  A conspiracy is not enough to trigger the organized crime exception.  Only when the conspiracy involves high degrees of discipline and organization can one party consent suffice under the statute.

Another important aspect of the decision is the implication that video recordings of conversations – even without audio – constitute wire interceptions.  The Court properly recognized that the statute defines the “contents” of communications broadly to include evidence that the interception occurred  and the identity of the parties to that communication.

It will be interesting to see how the trial unfolds on remand.  While the Court took care to point out that the undercover officer can testify as to his recollection of the communications, defense counsel should be vigilant to ensure that none of that recollection flows from the recording itself.  Counsel should request a voir dire hearing to determine whether his recollection was aided – even in part – by the illegal interception.  If it was, his testimony should be excluded entirely as it would otherwise serve to backdoor the “contents” of the illegal interception.  

This is of course assuming that the officer does in fact testify.  The statute creates criminal penalties and civil liability for illegal interceptions.  The undercover officer should be made aware that his testimony will incriminate him in criminal conduct, and permitted to exercise his Fifth Amendment right not to testify.  The Commonwealth should also make an arms length determination (perhaps best determined by an independent special prosecutor) as to whether that officer should be prosecuted for his criminal conduct.  A police officer should, at a minimum, be held to the same standards of behavior as ordinary citizens of the Commonwealth.  His violation of the criminal law should not be ignored, as to do so will be to give short-shrift to the legislature’s policy choices and erode confidence in the impartiality of the executive.

As the Appeals Court makes clear, the legislature struck a careful balance between the needs of law enforcement and the sanctity of the private lives of our citizenry.  The statute makes clear that police are free to conduct secret interceptions by simply obtaining a warrant.  As a consequence, the Commonwealth can avoid entirely the implications of this decision through the preferred means of obtaining evidence of criminal conduct: a warrant issued by a neutral and detached magistrate.