Commonwealth v. Price ( 1990 )

Wilkins, J.

In July, 1986, Massachusetts State troopers secretly made videotapes of conversations held in a Woburn motel room between the defendant or his associates and certain State police officers, operating undercover, during which was discussed the sale of a large quantity of marihuana for $121,000 in cash. The defendant was indicted for attempted trafficking in marihuana, for conspiracy to violate the controlled substances act by trafficking in marihuana, and for possession of a class C controlled substance (tetrahydrocannabinols).

The defendant moved to suppress the surveillance tapes, and, after numerous continuances, the defendant and the Commonwealth stipulated to the facts bearing on the motion to suppress. The motion judge reported four questions to the Appeals Court, and we allowed the parties’ joint application for direct appellate review.

The questions, which are set forth in the margin,¹ concern the standing of the defendant to challenge the admissibility of the surveillance videotapes and, to the extent that the defendant has standing, whether there is a constitutional bar to the admission in evidence, respectively, of the audio and video components of the surveillance tapes. We conclude that the defendant lacked standing to challenge the admissibility of either component of the videotapes. Although not necessary to our opinion, we point out that, even if the defendant had standing, at least the audio portion of the tapes, which was obtained pursuant to a valid search warrant, would still be admissible because the search did not violate the prohibition of art. 14 of the Massachusetts Declaration of Rights against unreasonable searches and seizures.

We set forth the relevant facts. In the middle of July, 1986, State police officer John McCabe, acting undercover as a large scale marihuana distributor, entered into negotiations with three men, including Steven Smith and Lester Davis, to sell a large quantity of marihuana. The parties agreed that the sale would take place at a hotel room. McCabe then hired Room 248 of the Ramada Inn in Woburn for the meeting, and Room 250, from which other State police officers could monitor the transaction.

On July 16, 1986, with the assistance of two assistant district attorneys and a fellow State trooper, John Sprague, Mc-Cabe prepared an application for a search warrant pursuant to G. L. c. 276, §§ 1-7 (1988 ed.), and on that day a Superior Court judge authorized the issuance of a warrant to search for and seize “ [conversation between John McCabe, Steven Smith and any other individual accompanying Steven Smith for the purposes of purchasing marijuana, regarding the purchase of marijuana. Rm. 248, Ramada Inn, Woburn.” The application was accompanied by a ten-page affidavit and a consent to the interception of oral communications signed by McCabe.

On that same day, State police personnel installed a hidden microphone and video camera in Room 248. Wires from the microphone and video camera were run to Room 250, where a recorder could produce a videocassette tape with audio and video components and where a monitor allowed State police officers to see activities and hear conversations in Room 248.

At approximately 3 p.m. on July 16, McCabe telephoned Smith and told him to come to Room 248 at 7:30 p.m. to complete the sale of the marihuana. Monitoring and recording of activity in Room 248 began prior to 7:30 p.m.. Troopers McCabe and Sprague were in the room at that time. Smith, however, did not arrive at the room until 9:20 p.m., accompanied by Davis. Smith told McCabe and Sprague that “Al,” who had the money for the marihuana, was waiting in the lobby. Smith and Davis left the room, and returned a short time later with “Al,” who is the defendant. The defendant told McCabe and Sprague that he had brought $65,000 in cash, showed them his money, and stated that he could get more if additional marihuana were available. The defendant and the troopers agreed that the defendant would buy 185 pounds of marihuana, for $121,000. The defendant left with McCabe to inspect the marihuana, leaving Smith and Sprague in the room.

The defendant returned shortly, apparently satisfied with the quality of the marihuana, and told McCabe and Sprague that he would drive to his home in Lowell to get the extra money. The defendant brought Davis and one Leslie Anderson up from the hotel lounge to stay in the room with the $65,000 and the troopers while he left with Smith. Approximately one hour later, the defendant and Smith returned with a bag of money. On a prearranged signal, other police officers involved in the investigation arrested the defendant and the others. The electronic surveillance was stopped shortly thereafter.

The first question asks generally about the standing of the defendant to challenge the admissibility of the videotapes. We construe that question to be asking whether the defendant has standing to raise the constitutional search and seizure issues presented in questions three and four.²

The defendant relies on the standing test that is normally applied under both art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution. Under this test, to have standing, the defendant must have had a subjective expectation of privacy in the recorded conversations and society must be willing to recognize that expectation as reasonable. See California v. Ciraolo, 476 U.S. 207, 211 (1986), citing Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring); Commonwealth v. Panetti, 406 Mass. 230, 231-232 (1989); Commonwealth v. Blood, 400 Mass. 61, 68 (1987).

We shall assume that the defendant had an expectation of privacy in his conversations in the motel room. Society is not prepared, however, to accept any such expectation as reasonable. The defendant and his associates were engaged in negotiating a major business transaction with people whom he had just met, and whom his associates had first met the day before. Nevertheless, he brought $121,000 in cash to a motel room that was not registered in his name, but rather in the name of someone about whom he knew almost nothing. He engaged in an arm’s length business negotiation with strangers in a place over which he had neither control nor a right to control and which had been selected by the strangers.

The facts of this case are meaningfully different from a warrantless transmission and recording of private conversations in a person’s home. See Commonwealth v. Blood, supra. There is in this Commonwealth a strong tradition of constitutionally based protection of citizens from governmental intrusion into their homes. There is no similar tradition that protects against recording business conversations in strangers’ motel and hotel rooms. As Justice Liacos presciently wrote for the court in Commonwealth v. Blood, supra at 73, “a distinction lies in the disparity between that sense of security which is felt among trusted friends and the feelings of hostility encountered among competitors or combatants.” A viewing of the videotapes shows that the transaction was an arm’s length one with manifestations of suspicion and distrust. Because, in these circumstances, society will not recognize the defendant’s expectation of privacy as reasonable, the defendant did not have standing under the traditional standing test.

There are certain circumstances in which this court has recognized a defendant’s standing, or possible standing, without consideration of the defendant’s expectation of privacy. In Commonwealth v. Amendola, 406 Mass. 592, 601 (1990), we adopted an “automatic standing” rule for one who seeks to contest the legality of the search and seizure of evidence if possession of that seized evidence is an essential element of the crime charged. That decision to confer standing was based largely on a concern that the Commonwealth not be permitted to argue that a defendant had possession for the purposes of establishing his guilt but that he lacked sufficient connection with the contraband to have standing to challenge its seizure. Id. at 600. The automatic standing rule does not aid the defendant here because the items he seeks to suppress (the videotapes) are not contraband with whose unlawful possession he is charged. In Commonwealth v. Manning, 406 Mass. 425, 429 (1990), we discussed the theory of “target standing” whereby an individual would gain standing to challenge the search of another, not to protect any reasonable expectation of privacy, but to deter police misconduct. We did not decide whether to recognize target standing in the Manning case because the record did not show that the police had intentionally engaged in a violation of someone else’s constitutional rights in order to obtain evidence against the defendants.

This case does not present any reasonable basis for granting the defendant standing to challenge the admission of the videotapes, even though he lacked standing on the basis of a reasonable expectation of privacy. A recognition of standing in other circumstances must have a foundation in serious police misconduct (such as described in the Manning opinion) or in fundamental unfairness (such as is discussed in the Amendola opinion). No police misconduct or basic unfairness is involved here. The police obtained a search warrant that authorized them to record the audio portion of the conversations. The affidavit in support of issuance of the search warrant demonstrated ample probable cause to authorize the recording of the conversations. As we have said (see note 2 above), G. L. c. 272, § 99, has no application to art. 14 issues. If we needed to reach question three, we would answer it in the affirmative, upholding the admissibility of the audio portion of the videotapes under art. 14 principles.³

The fact that the police proceeded pursuant to a warrant authorizing the recording of the conversations in the motel room eliminates any logical basis for granting standing on the ground of police misconduct or basic unfairness. We need not, of course, decide how we would answer questions one and three if the police had not obtained a search warrant. The absence of a warrant authorizing the seizure of the video portion of the tapes, a relatively minor intrusion beyond the warranted audio recording, is not so egregious as to confer special standing to challenge the video portion of the tapes.

Although we have recognized that in certain circumstances art. 14 rights extend beyond those stated in the Fourth Amendment in order to protect against improper government conduct, the adoption of an exclusionary rule concerning the videotapes in this case could have a materially adverse effect on the truth-finding function. The police officers will be permitted to testify concerning the conduct and conversations in the motel room and would be entitled to do so even if we were to suppress the videotapes in full. Commonwealth v. Blood, supra at 77-78. Any rule that would exclude objective evidence, presumably more accurate than human memory, of events happening and words spoken in the motel room should have a strong justification. A warrantless electronic surveillance in a person’s home, even with the consent of one participant in the conversations, can provide that justification (Commonwealth v. Blood, supra), and, even there, not everyone agrees (id. at 78, Nolan, J., dissenting, joined by Lynch, J.). The circumstances of this case, however, provide no reasonable justification for excluding relevant, instructive, unbiased, and seemingly accurate evidence bearing on the guilt or innocence of the defendant.

We answer question one in the negative: the defendant lacks standing to challenge the admissibility of the surveillance videotapes. The answer to question two is, of course, “No.” Questions three and four need no answers because they are asked on the assumption that the defendant has standing.

1 "1. Based on the facts of this case, does the defendant have standing to challenge the admissibility of the surveillance videotape?

“2. Based on the facts of this case, does the defendant have standing to challenge the admissibility of those portions of the surveillance videotape in which he is not present?

“3. As to any portions of the surveillance videotape which the defendant has standing to challenge, is the audio component of the surveillance videotape, made with the consent of a participating police officer and pursuant to a search warrant prepared on a form issued under G.L. c. 276, §§1-7, but not issued under G.L. c. 272, §99, admissible under article 14 of the Massachusetts Declaration of Rights?

“4. As to any portions of the videotape which the defendant has standing to challenge, is the video component of the tape, made without a search warrant, admissible under the Fourth Amendment and article 14 of the Massachusetts Declaration of Rights?”

2 The judge has asked no substantive question concerning the possible exclusion of the videotapes because they may have been obtained in violation of the Massachusetts electronic surveillance statute (G. L. c. 272, § 99 [1988 ed.]). Section 99 P grants a defendant a right to move to suppress the contents of an intercepted communication in certain circumstances. It is doubtful, however, that § 99 is applicable here. It appears, but we do not decide, that there was no “interception” within the meaning of § 99 B 4 because Trooper McCabe consented to the recording and the investigation involved a major drug sale. See Commonwealth v. Davis, 407 Mass. 1001 (1990). In any event, the wiretap statute presents issues entirely separate from art. 14 issues. We have not incorporated the requirements and procedures of § 99 into art. 14. Commonwealth v. Davis, supra at 1002.

In the application for a search warrant, Trooper McCabe explicitly noted that the offenses he was investigating were “designated offenses” under § 99 B 7, a circumstance that, if true, would make § 99 inapplicable when coupled with McCabe’s consent to the interception. The defendant makes no claim that, if § 99 is inapplicable, the police lacked authority to obtain the warrant.

3 No warrant would be needed under Fourth Amendment principles because of the consent of Trooper McCabe. See United States v. Caceres, 440 U.S. 741, 749-751 (1979); United States v. White, 401 U.S. 745, 751-753 (1971); Commonwealth v. Thorpe, 384 Mass. 271, 282 (1981), cert, denied, 454 U.S. 1147 (1982). Question three asks only about art. 14.