Commonwealth v. Du ( 2023 )

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22-P-870 Appeals Court
COMMONWEALTH vs. THANH DU.
No. 22-P-870.
Suffolk. June 7, 2023. - October 6, 2023.
Present: Wolohojian, Singh, & Hand, JJ.
Controlled Substances. Electronic Surveillance. Cellular
Telephone. Search and Seizure, Electronic surveillance.
Evidence, Wiretap. Statute, Construction. Practice,
Criminal, Motion to suppress. Words, "Oral communication,"
"Wire communication," "Interception," "Secretly,"
"Contents."
Indictments found and returned in the Superior Court
Department on January 8, 2020.
A pretrial motion to suppress evidence was heard by
Catherine H. Ham, J.
Applications for leave to prosecute an interlocutory appeal
were allowed by Dalila Argaez Wendlandt, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeals were
reported by her to the Appeals Court.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
Nancy Dolberg, Committee for Public Counsel Services, for
the defendant.
2
WOLOHOJIAN, J. An undercover Boston police officer, using
a cell phone, made surreptitious audio-visual recordings of
three purchases of drugs from the defendant. Each recording was
made without the defendant's knowledge or consent, and without
obtaining a warrant. The question presented in these
interlocutory cross appeals is whether the Massachusetts
communications interception statute (statute or wiretap
statute),1 G. L. c. 272, § 99, requires that the recordings be
suppressed. We conclude that it does.
The facts are undisputed.2 Each of the three drug
transactions at issue followed the same pattern. Before meeting
with the defendant, an undercover officer used a software
1 In Commonwealth v. Thorpe, 384 Mass. 271, 272 (1981),
cert. denied, 454 U.S. 1147 (1982), the Supreme Judicial Court
referred to the statute as the "Massachusetts communications
interception statute," which more accurately describes the
statute than the more commonly used colloquial shorthand
"wiretap statute," because the statute's scope extends to the
secret interception of communications by a variety of electronic
means, not simply wiretaps. See, e.g., Commonwealth v. Yusuf,
488 Mass. 379 (2021) (stored body camera video footage);
Commonwealth v. Moody, 466 Mass. 196 (2013) (text messages
transmitted over cellular network); Commonwealth v. Tavares, 459
Mass. 289 (2011) (concealed recording device). Accordingly,
although we sometimes refer in this opinion to the statute as
the "wiretap statute," we do so without intending to suggest any
narrowing of its reach.
2 We recite the facts as found by the judge, supplemented by
undisputed testimony of the officer who testified at the
suppression hearing and by our own observations of the three
recordings, which were admitted at the evidentiary hearing and
are part of the appellate record.
3
application3 on his cell phone to begin an audio-visual
communication (call)4 with officers who were located nearby
conducting surveillance (remote officers). This software
application was designed to enable (and did, in fact, cause) the
undercover officer's cell phone to transmit to the remote
officers all audio and video captured by the undercover
officer's cell phone during the call. The remote officers could
(and did) observe and listen "live" to the calls as they were
being transmitted. At the same time, the undercover officer's
cell phone also transmitted the audio-visual recordings to the
3 The application is called Callyo, which was described at
oral argument as an electronic tool designed to aid law
enforcement in a variety of investigatory ways. Examples of the
uses to which Callyo has been put in police investigations can
be found in United States vs. Powell, U.S. Dist. Ct., No. 18-CR-
30042 (S.D. Ill. Mar. 17, 2020) (recording, storage, and
download of call involving confidential informant); People v.
Lewis, 2020 IL App (2d) 170900, aff'd, 2022 IL 126705(interception and recording of text messages); State v. Bilgi,
19 Wash. App. 2d 845 (2021) (interception and recording of text
messages).
4 On the first and second occasions, the call began over ten
minutes before the undercover officer met the defendant; on the
third, it began two minutes before. During these periods, the
undercover officer would report information such as where the
defendant told him to meet, that the defendant was approaching,
or what the defendant was wearing. The video captured the
officer's location and surroundings as he either stood waiting
or while walking to meet the defendant.
4
"cloud,"5 where they were stored. The participating officers
knowingly consented to this arrangement.
The drug purchases were made in public places chosen by the
defendant, who arrived on foot. Two of the transactions took
place on sidewalks, and the other took place in a store parking
lot. On each occasion, the officer purchased one hundred
dollars' worth of narcotics from the defendant,6 a suspected
street dealer.7 When the defendant arrived within range of the
undercover officer's cell phone, his voice and image were
recorded and transmitted without his knowledge or consent.
Although the defendant knew that he was orally communicating
with a drug purchaser, he did not know that (1) the purchaser
was also an undercover police officer, (2) the undercover
officer was audio-visually recording the interaction, (3) the
"Cloud computing" is "the practice of storing regularly
5
used computer data on multiple servers that can be accessed
through the Internet." Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/cloud%20computing
[https://perma.cc/D6VT-G8GG]. See Commonwealth v. Gelfgatt, 468
Mass. 512, 536 (2014) (Lenk, J., dissenting) (definition of
cloud computing); G. Jacobs & K. Laurence, Professional
Malpractice § 17.1 n.8 (Supp. 2022).
On the first occasion, the undercover officer bought three
6
bags of drugs (one cocaine, one fentanyl, one inconclusive); on
the second and third occasions, the officer purchased two bags
of fentanyl.
Based on text messages stored on the cell phone of a
7
person who had died of an overdose, the police "cold called" the
defendant to see if he would sell them drugs.
5
audio-visual recording was being transmitted to the remote
officers, who were observing and listening live, or (4) the
recording was also being transmitted to the cloud, where it was
being intercepted, recorded, and stored. As would naturally be
expected in the context of an undercover investigation, the
police kept all of these matters secret from the defendant.
Once the drug purchases were finished and the defendant had
walked away, the undercover officer used a verbal code to report
to the remote officers that the transaction had been completed.
Each recording was then terminated. Later, one of the remote
officers downloaded copies of the recordings from the cloud onto
a disc. Although it is not stated explicitly in the record, it
is self-evident that the further recording onto a disc also
happened without the defendant's knowledge or consent.
The defendant was charged with multiple counts of
distributing class A and B substances as a subsequent offender,
in violation of G. L. c. 94C, §§ 32 (a), (b), and 32A (a), (b).
He moved to suppress the recordings on the ground that they
violated the wiretap statute, G. L. c. 272, § 99; he did not
raise any constitutional ground for suppressing the recordings.
The Commonwealth made two arguments in opposition. First, it
argued that the recordings fell within the exception to the
wiretap statute where police have a reasonable suspicion that
the defendant is engaged in a designated offense in connection
6
with organized crime. See G. L. c. 272, § 99 B 4, 7. Second,
it argued that the defendant had no reasonable expectation of
privacy in public places.
After an evidentiary hearing at which the only witness was
the remote officer who downloaded the recordings, whose
testimony the judge credited, the judge suppressed the audio
portion of the recordings but did not suppress the video
portion. The judge concluded that the video portion need not be
suppressed because the defendant did not move to suppress it;
this was incorrect -- the defendant's motion was not so limited.
As to the audio portion of the recordings, the judge found that
the defendant had a reasonable expectation of privacy, under
art. 14 of the Massachusetts Declaration of Rights, in his "low-
volume" one-on-one conversations with the undercover officer,
even though they occurred in public settings. The judge then
analyzed the evidence to determine whether the Commonwealth had
proven a reasonable suspicion that the defendant was selling
drugs as part of organized crime, and concluded that it had not:
"Here, except for [the defendant], the police did not know
the identity of any other members of [a] narcotics
distribution organization. There is an assumption by the
police that [the defendant] is working with others to
distribute narcotics. There is no evidence that [the
defendant] is working with anyone. Therefore, there is no
organized conspiracy to distribute narcotics, as only one
person cannot conspire with himself. Where the
Commonwealth has not met its burden that the crime [was]
engaged in by multiple players, although drug dealing can
7
be [a] nexus to organized crime, the statute['s] exception
has not been met."
Accordingly, the judge suppressed the audio portion of the
recordings, expressly noting that the undercover officer would
be permitted to testify to his own recollections of the
transactions at trial. Both the Commonwealth and the defendant
sought leave to pursue interlocutory appeals from the judge's
decision. These were allowed by a single justice of the Supreme
Judicial Court, who referred the appeal to this court.8 It is in
this posture that the case is now before us.
Discussion. It is important to note at the outset that the
defendant did not below -- nor does he here -- argue that the
surreptitious recordings should be suppressed under the Fourth
Amendment to the United States Constitution or art. 14.
Instead, the defendant argues that the recordings must be
suppressed under G. L. c. 272, § 99 P, which has its own
exclusionary provision. The statute provides for the exclusion
from evidence of "the contents of any intercepted wire or oral
communication or evidence derived therefrom," if the
communication was intercepted in violation of the statute.
G. L. c. 272, § 99 P. Thus, the core question presented in this
8 The single justice denied the defendant's petition to the
extent it sought interlocutory review of the judge's decision
not to suppress the fruits of a warrantless search and seizure.
8
appeal is whether the audio-visual recordings violate the
statute. If they do, then their "contents" -- as that term is
defined by the statute -- are to be suppressed under § 99 P.
See Commonwealth v. Gonzalez, 426 Mass. 313, 315 (1997)
(recordings made in violation of wiretap statute "are not
admissible in criminal trials for the Commonwealth"). The term
"contents" is broadly defined to mean "any information
concerning the identity of the parties to such communication or
the existence, contents, substance, purport, or meaning of that
communication." G. L. c. 272, § 99 B (5).
The history, purpose, and evolution of the wiretap statute
have been extensively explained by the Supreme Judicial Court,
see, e.g., Commonwealth v. Rainey, 491 Mass. 632, 645-647
(2023); Commonwealth v. Tavares, 459 Mass. 289, 294-296 (2011),
and we need not repeat them here. For purposes of this case, we
need only note that in 1968,9 concerned about the "uncontrolled
9 Vast changes in technology have occurred since 1968, but
they have not prompted the Legislature to amend the statute. By
contrast, other jurisdictions have updated their wiretap
statutes with more regularity to account for technological
advances. See, e.g., Electronic Communications Privacy Act of
1986, Pub. L. No. 99-508, Title 1, § 101(c), 100 Stat. 1848,
1851 (adding prohibition on interceptions of "electronic
communications" to existing prohibitions on interceptions of
"wire" and "oral" communications); 1999 Ill. Laws 657 (defining
"electronic communication" as "any transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature
transmitted in whole or part by a wire, radio, pager, computer,
electromagnetic, photo electronic or photo optical system");
2021 Or. Laws 357 (defining "[v]ideo conferencing program" as
9
development and unrestricted use of modern electronic
surveillance devices," the Legislature decided that
Massachusetts should be among the minority of States10 requiring
that all parties consent to the interception of wire and oral
communications.11 G. L. c. 272, § 99 A, third par. "[T]he
Legislature was concerned principally with the investigative use
of surveillance devices by law enforcement officials to
eavesdrop surreptitiously on conversations." Rainey, supra at
645. See Commonwealth v. Morris, 492 Mass. 498, 505 (2023)
(legislative focus of wiretap statute is on deterrence of
invasion of privacy rights by "law enforcement officers'
surreptitious eavesdropping as an investigative tool" [citation
"software or an application for a computer or cellular telephone
that allows two or more persons to communicate via simultaneous
video transmission").
The other jurisdictions are California, Delaware,
10
Florida, Illinois, Maryland, Montana, New Hampshire, Oregon,
Pennsylvania, and Washington. See Cal. Penal Code § 632(a);
Del. Code Ann. tit. 11, § 1335(a)(4); Fla. Stat. § 934.03(2)(d);
720 Ill. Comp. Stat. 5/14-2(a)(1); Md. Code Ann., Cts. & Jud.
Proc. § 10-402(c)(3); Mont. Code Ann. § 45-8-213(1)(c); N.H.
Rev. Stat. Ann. § 570-A:2(I); Or. Rev. Stat. § 165.540(1)(c); 18
Pa. Cons. Stat. § 5704(4); Wash. Rev. Code § 9.73.030(1).
Massachusetts is often colloquially referred to as a
11
"two-party consent" jurisdiction, but it is more accurate to
describe it as an all-party consent jurisdiction. See Ferch,
Secretly Recording Public Officials: Challenges to the
Massachusetts Wiretap Act, 65 Bos. B.J. 43, 43 (Summer 2021).
10
omitted]); Commonwealth v. Gordon, 422 Mass. 816, 833 (1996)
(same).
With a few exceptions contained in G. L. c. 272, § 99 D,12
none of which are invoked in this case, the statute prohibits
12 That subsection provides as follows:
"D. Exemptions.
"1. Permitted interception of wire or oral
communications.
It shall not be a violation of this section –-
"a. for an operator of a switchboard, or an officer,
employee, or agent of any communication common carrier, whose
facilities are used in the transmission of a wire
communication, to intercept, disclose, or use that
communication in the normal course of his employment while
engaged in any activity which is a necessary incident to the
rendition of service or to the protection of the rights or
property of the carrier of such communication, or which is
necessary to prevent the use of such facilities in violation
of section fourteen A of chapter two hundred and sixty-nine of
the general laws; provided, that said communication common
carriers shall not utilize service observing or random
monitoring except for mechanical or service quality control
checks.
"b. for persons to possess an office intercommunication
system which is used in the ordinary course of their business
or to use such office intercommunication system in the
ordinary course of their business.
"c. for investigative and law enforcement officers of
the United States of America to violate the provisions of this
section if acting pursuant to authority of the laws of the
United States and within the scope of their authority.
"d. for any person duly authorized to make specified
interceptions by a warrant issued pursuant to this section.
11
the "interception" of "any wire or oral communication." G. L.
c. 272, § 99 C 1. Because each of these terms bears on the
analysis of this case, we pause to examine them in detail before
proceeding further.
An "oral communication" is defined as "speech, except such
speech as is transmitted over the public air waves by radio or
other similar device." G. L. c. 272, § 99 B 2. A "'wire
communication' means any communication made in whole or in part
through the use of facilities for the transmission of
communications by the aid of wire, cable, or other like
connection between the point of origin and the point of
reception." G. L. c. 272, § 99 B 1. The term "wire
communication" includes transmissions made over cellular
networks, and "is broad enough to cover non-oral electronic
"e. for investigative or law enforcement officers to
violate the provisions of this section for the purposes of
ensuring the safety of any law enforcement officer or agent
thereof who is acting in an undercover capacity, or as a
witness for the commonwealth; provided, however, that any such
interception which is not otherwise permitted by this section
shall be deemed unlawful for purposes of paragraph P.
"f. for a financial institution to record telephone
communications with its corporate or institutional trading
partners in the ordinary course of its business; provided,
however, that such financial institution shall establish and
maintain a procedure to provide semi-annual written notice to
its corporate and institutional trading partners that
telephone communications over designated lines will be
recorded."
12
transmissions." Commonwealth v. Moody, 466 Mass. 196, 208
(2013).
"The term 'interception' means 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," G. L.
c. 272, § 99 B 4, except where the interception is made by a law
enforcement officer in the course of investigating a "designated
offense,"13 see G. L. c. 272, § 99 B 7, committed in connection
with organized crime "if the officer is a party to such
communication or has been given prior authorization to record or
transmit the communication by such a party" (one-party consent
exception). G. L. c. 272, § 99 B 4. "Organized crime . . .
consists of a continuing conspiracy among highly organized and
disciplined groups to engage in supplying illegal goods and
services." G. L. c. 272, § 99 A, first par.
13Designated offenses are "arson, assault and battery with
a dangerous weapon, extortion, bribery, burglary, embezzlement,
forgery, gaming in violation of [G. L. c. 271], intimidation of
a witness or juror, kidnapping, larceny, lending of money or
things of value in violation of the general laws, mayhem,
murder, any offense involving the possession or sale of a
narcotic or harmful drug, perjury, prostitution, robbery,
subornation of perjury, any violation of this section, being an
accessory to any of the foregoing offenses and conspiracy or
attempt or solicitation to commit any of the foregoing
offenses." G. L. c. 272, § 99 B 7.
13
"To show a nexus to organized crime, there must be some
evidence of an ongoing illegal business operation. The
Commonwealth also must demonstrate a high degree of
discipline and organization among the suspected members of
the criminal enterprise. However, facts suggesting
coordination of efforts among cohorts standing alone is
insufficient. . . . For a conspiracy to commit an offense
enumerated in G. L. c. 272, § 99 B 7, to rise to the level
of organized crime, there must, at the very least, be an
organized plan from which one reasonably may infer the
existence of an ongoing criminal operation. Finally, the
Commonwealth must show that the designated offense was
committed to promote the supply of illegal goods and
services or the furtherance of an ongoing criminal business
operation." (Quotations and citations omitted.)
Commonwealth v. Burgos, 470 Mass. 133, 140 (2014). See Tavares,
459 Mass. at 299-300.
Our cases have found this standard to be met where there
was evidence of an ongoing coordinated effort among multiple
people to engage in one of the statute's designated offenses,
see note 13, supra, for the group's financial gain or goals.
Thus, for example, in Commonwealth v. Lykus, 406 Mass. 135, 142
(1989), a group of people made a coordinated effort to extort
ransom money from the family of a person who had disappeared.
By way of further example, in Commonwealth v. Thorpe, 384 Mass.
271, 278 (1981), cert. denied, 454 U.S. 1147 (1982), there was a
continuing conspiracy among multiple people to supply illegally
the civil service examination. Similarly, in Commonwealth v.
Fernandes, 492 Mass. 469 (2023), Commonwealth v. Mitchell, 468
Mass. 417 (2014), Commonwealth v. Hearns, 467 Mass. 707 (2014),
and Commonwealth v. Davis, 83 Mass. App. Ct. 484 (2013), there
14
was an organized network of individuals engaged in selling
contraband, often involving large quantities (more than a
kilogram) of drugs. By contrast, where the evidence did not
establish a nexus between a disciplined network's "organized
efforts to supply illicit goods or services" and a designated
offense under the statute, the requirements of the statute have
been held to have not been satisfied. Tavares, 459 Mass. at
302. See Burgos, 470 Mass. at 142; Commonwealth v. Long, 454
Mass. 542, 557-558 (2009).
Finally, we examine the word "secretly" as it is used in
the definition of "interception." G. L. c. 272, § 99 B 4.
"Secretly" does not "encompass[] only those situations where an
individual has a reasonable expectation of privacy."
Commonwealth v. Jackson, 370 Mass. 502, 506 (1976). The wiretap
statute's protections are not "coextensive with the Fourth
Amendment and art. 14," nor are they limited "only [to]
communications as to which the speaker maintains a reasonable
expectation of privacy." Rainey, 491 Mass. at 644 n.21. See
Morris, 492 Mass. at 506. For this reason, the Commonwealth's
argument that the statute cannot be violated absent a reasonable
expectation of privacy misses the mark, as did the judge's
approach of engrafting art. 14 concepts onto the statute.
Although a surreptitious recording may in certain circumstances
be suppressed under art. 14, see, e.g., Commonwealth v. Yusuf,
15
488 Mass. 379, 393-394 (2021); Commonwealth v. Blood, 400 Mass.
61, 77 (1987), as well as under the wiretap statute, the two
avenues of analysis do not rise and fall together.14 The Supreme
Judicial Court has explained that if we "were to interpret
'secretly' as encompassing only those situations where an
individual has a reasonable expectation of privacy," it "would
render meaningless the Legislature's careful choice of words" in
§ 99. Jackson, supra. See Morris, 492 Mass. at 506 n.10
("wiretap statute evinces the Legislature's intent to provide
broader protections than those provided by the State and Federal
Constitutions").
For purposes of the statute, a recording is made "secretly"
when it is made without the actual knowledge of the person being
recorded. Jackson, 370 Mass. at 507. See Commonwealth v. Hyde,
434 Mass. 594, 595-601 (2001); Project Veritas Action Fund v.
Rollins, 982 F.3d 813, 819 (1st Cir. 2020) (construing wiretap
14A good example of this principle in action can be found
by comparing Moody, 466 Mass. 196, and Commonwealth v. Delgado-
Rivera, 487 Mass. 551 (2021), cert. denied, 142 S. Ct. 908
(2022). In Moody, the defendant argued that the secret
interception of text messages violated the statute and
accordingly should be suppressed under the statute's
exclusionary provision. The court agreed. By contrast, in
Delgado-Rivera, the defendant argued that the search of another
person's cell phone violated the defendant's expectation of
privacy in his own text messages, such that suppression was
required under the Fourth Amendment and art. 14. The court
disagreed.
16
statute); Glik v. Cunniffe, 655 F.3d 78, 86-87 (1st Cir. 2011).
The Commonwealth may prove actual knowledge "where there are
clear and unequivocal objective manifestations of knowledge [on
the part of the person being recorded], for such indicia are
sufficiently probative of a person's state of mind as to allow
an inference of knowledge and to make unnecessary any further
requirement that the person recording the conversation confirm
the caller's apparent awareness by acknowledging the fact of the
intercepting device." Jackson, supra.
With these concepts in hand, we turn now to the audio-
visual recordings at issue in this case. As an initial matter,
we consider whether there was an "interception" within the
meaning of the statute. As we have already noted, "[t]he term
'interception' means to secretly hear, secretly record, or aid
another to secretly hear or secretly record the contents of any
wire or oral communication." G. L. c. 272, § 99 B 4. "Record,"
for purposes of the wiretap statute, means "to cause (sound,
visual images) to be transferred to and registered on something
[by] electronic means in such a way that the thing so
transferred and registered can . . . be subsequently
reproduced"15 (citation omitted). Moody, 466 Mass. at 209.
15It is clear that the reference in Moody to sound and
visual images includes electronic signals created from sound or
visual images.
17
Rainey, 491 Mass. at 644 n.22. A single communication can be
intercepted at more than one point in time or place. Cf. Yusuf,
488 Mass. at 390-392 (body camera recording assessed, for art.
14, both at moment of recording and as of moment two weeks later
when footage was reviewed for a different investigatory
purpose). Here, there were four interceptions of each encounter
between the undercover officer and the defendant: (1) the
undercover officer's audio-visual recording of his encounter
with the defendant; (2) the remote officers' hearing of the
audio-visual transmission of the encounter; (3) the storing of
the audio-visual recording in the cloud; and (4) the downloading
of the audio-visual recording from the cloud to a disc. The
first of these audio-visually intercepted the contents of an
oral communication between the undercover officer and the
defendant; the remaining three intercepted wire communications.
See Moody, 466 Mass. at 208 (text communication over cellular
network constitutes wire communication).
All four of the interceptions were made "secretly" within
the meaning of the statute because the Commonwealth produced no
evidence either of the defendant's actual knowledge or of "clear
and unequivocal objective manifestations of knowledge" on his
part. Jackson, 370 Mass. at 507. The testifying officer
frankly acknowledged that the recordings were made secretly and
that, as a matter of common sense, one would expect that to be
18
the case in the context of an undercover investigation. We have
reviewed the recordings ourselves and see nothing to indicate
the defendant knew he was being recorded.16 It is undisputed
that the defendant did not consent. This is not a situation
where an audio-visual recording was made openly, or for a
noninvestigative purpose untargeted to a particular suspect, or
while knowing one is voluntarily speaking with police who are
taking the statement down. Contrast Morris, 492 Mass. at 506
(station-house recording of police interrogation where defendant
knew his voluntary statement was being preserved by police);
Rainey, 491 Mass. at 643-644 (voluntary victim statement to
police officer wearing body camera); Commonwealth v. Rivera, 445
Mass. 119, 123-125 (2005) (in-store surveillance camera);
Gordon, 422 Mass. at 833 (administrative booking video).
As to the one-party consent exception, although the
Commonwealth established one of the statute's "designated
offenses" -- namely, an "offense involving the possession or
sale of a narcotic or harmful drug," G. L. c. 272, § 99 B 7 --
16The Commonwealth argues that the defendant should have
been on notice that a cell phone could be used for such purposes
and that the videos show that the cell phone was in plain view.
Setting aside that the Commonwealth did not preserve the issue
for appeal by raising it below, see Commonwealth v. Bettencourt,
447 Mass. 631, 633 (2006), 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.
19
it failed to prove a nexus to organized crime. As the judge
correctly found, there was no evidence that the defendant, an
apparent street dealer, was acting in concert with others as
part of an organized criminal enterprise. Nor did the
particulars of the three transactions, which involved small
amounts, give rise to such an inference. Contrast Mitchell, 468
Mass. at 426; Hearns, 467 Mass. at 715-716; Davis, 83 Mass. App.
Ct. at 490-491.
For these reasons, we conclude that the interceptions in
this case violated the statute. We accordingly turn to the
statute's exclusionary provision to consider the appropriate
remedy. Where, as here, an oral or wire communication has been
unlawfully intercepted, the statute permits a criminal defendant
to "move to suppress the contents of any intercepted wire or
oral communication or evidence derived therefrom." G. L.
c. 272, § 99 P. "Contents" is broadly defined as "any
information concerning the identity of the parties to such
communication or the existence, contents, substance, purport, or
meaning of that communication." G. L. c. 272, § 99 B 5. The
definition extends beyond the words of the communication itself
or an aural recording of it.17 It may "mean simply that not only
17This is one of several points of distinction between the
wiretap statute and Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 211
(1968) (Title III). Unlike our Legislature, Congress has
20
must the recording of an unlawfully intercepted conversation be
suppressed, but also any evidence that the conversation was
recorded: for example, any transcripts or summaries of, or
references to, the recording; or the testimony of a third person
(not a party to the conversation) who either monitored the
conversation at the time it took place or listened to a
recording of it later." Commonwealth v. Jarabek, 384 Mass. 293,
298 (1981). The same definition of "contents" applies to both
oral and wire communications.
Where, as here, the audio and visual components were
captured during a unitary audio-visual recording, nothing in the
statute suggests that they should be considered separately to
determine whether they constitute "contents" as defined by the
statute.18 But even considering them separately, both fall
within the statutory definition. The audio portion of the
recordings does so because it is information concerning the
existence, contents, and substance of the defendant's oral
"purposefully narrowed the definition of 'wire communication'
under Title III to include only 'aural transfer'" (citation
omitted). Moody, 466 Mass. at 207. See United States v.
Larios, 593 F.3d 82, 90 (1st Cir.), cert. denied, 560 U.S. 935(2010) (Title III applies only to aural wire communications).
18This case does not involve a video-only recording of a
communication or a video recording of communication that was
audio recorded separately. Nor do we consider or decide whether
the contents of such video recordings may fall within the
statute.
21
communications with the undercover officer. The video portion
of the recordings does so because it is evidence that the
conversations were recorded, and because it shows the defendant
while he was having those oral communications with the
undercover officer and, accordingly, is "information concerning
the identity of the parties to such communication."19 G. L.
c. 272, § 99 B 5. Given the Legislature's broad definition of
"contents," both the audio and video aspects of the audio-visual
recordings should have been suppressed. Because the definition
of "contents" is the same for both wire and oral communications,
the outcome is the same whether we look only to the undercover
officer's initial audio-visual recording of the oral
communications with the defendant, or to the subsequent
interceptions of the wire communications from the undercover
officer.
The Commonwealth counters that, despite the definition of
"contents," the video portion of the recordings should not be
suppressed because the defendant had no reasonable expectation
of privacy in public places. But this argument impermissibly
imports art. 14 considerations into the wiretap statute. As we
have already explained, the Legislature deliberately did not
19Neither party briefed the question whether the portions
of the recordings when the defendant was not in audio-visual
range of the undercover officer's cell phone violated the
statute, and we therefore do not consider the issue here.
22
incorporate art. 14 analysis into the statute, but instead
carefully crafted a scheme that rests instead on whether a
recording is made "secretly."
At oral argument, both sides expressed concerns regarding
the possible consequence of any decision we might reach. On the
one hand, counsel for the defendant represented that Callyo (the
software application used by the officers here) is being adopted
by police departments across the country to conduct
surreptitious surveillance on ordinary citizens. Even accepting
this representation and accounting for the sophisticated
investigatory uses to which Callyo is being put elsewhere as
described in reported cases from other jurisdictions, see note
3, supra, the Legislature has created a strong bulwark against
secret surveillance by law enforcement in this Commonwealth.
General Laws c. 272, § 99, is among the most protective of
electronic surveillance statutes in the country, see note 10,
supra, and more protective than Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82Stat. 211 (1968). As demonstrated in the outcome we reach here,
the statute is adequately designed to deal even with a
sophisticated and novel surveillance tool such as Callyo.
On the other hand, the Commonwealth raises the fear that
police officers will be exposed to criminal and civil liability
should they be found to have violated the statute. The statute
23
does indeed provide for criminal penalties and civil remedies.
See G. L. c. 272, § 99 C 1 (criminal penalty), Q (civil remedy).
But the statute allows the Commonwealth to insulate itself
prophylactically from liability by obtaining a warrant. See
G. L. c. 272, § 99 D 1 d; note 12, supra. In addition, the
statute protects investigative and law enforcement officers from
criminal and civil liability if they violate the statute "for
the purposes of ensuring [officer] safety" while operating
undercover. G. L. c. 272, § 99 D 1 e. In such circumstances,
although the officers will be insulated from liability, the
contents of the unlawful interceptions are nonetheless excluded
from evidence. See G. L. c. 272, § 99 D 1 e. In sum, the
statute reflects the Legislature's careful balancing of
competing concerns.20
The portion of the order allowing the motion to suppress
the audio portion of the recordings is affirmed. So much of
that order as denied the defendant's motion to suppress the
video portion of the recordings is reversed. Nothing in this
opinion is to be read to limit the undercover officer's
testimony at trial as to what was said during the three
20When police wish to use a novel surveillance tool such as
Callyo, we encourage them to seek a search warrant beforehand.
Because our statutes and Declaration of Rights may be more
protective of individual privacy rights than similar laws in
some other States, the police should not simply rely on the fact
that the tool has been used in other jurisdictions.
24
transactions or what he observed during them. See Jarabek, 384
Mass. at 293, 299.
So ordered.