In re Grand Jury Subpoena

Ireland, J.

This case requires us to decide whether the constitutionally protected privacy rights of a pretrial detainee or an inmate are violated where, in response to a grand jury subpoena, a sheriff provides to a grand jury recordings of telephone calls made by such a detainee or inmate.¹ A Superior Court judge denied a motion to quash made by the sheriff, and entered a finding of contempt when the sheriff declined to turn over the subpoenaed recordings. Because we conclude on the record before us that the detainee or inmate could have no objectively reasonable expectation of privacy in the recorded telephone conversations where all parties have notice that calls are subject to monitoring and recording and, further, where the recording and monitoring is justified by legitimate penological interests, we affirm the finding of contempt against the sheriff and the denial of her motion to quash the subpoena.

1. Background. The facts are not in dispute. The monitoring and recording of telephone calls made by detainees and inmates held by the Suffolk County sheriff’s department (sheriff) is governed by a policy that provides, among other things, that all detainees and inmates are to be “informed at the time of admission that telephone calls are subject to monitoring and recording.”² In accordance with the policy, each detainee and inmate at the jail is assigned a personal identification number (PIN), which must be entered in order to place a telephone call. Parties to telephone calls made by detainees and inmates receive a voice prompt to select one of four languages, English, Russian, Spanish, or Vietnamese, and are then advised by a prerecorded announcement, made in the language selected, that the call is originating from the jail and that it is being recorded and is subject to monitoring. Moreover, in addition to advising detainees and inmates during their orientation to the jail of the monitoring and recording of their telephone calls, the sheriff distributes a written guide to detainees and inmates that states that the sheriff “records all inmate telephone conversations, except calls to at-tomeys and legal services organizations,” and signs are posted on or near all telephones explaining to detainees and inmates in English and Spanish that all calls are subject to monitoring and recording. Detainees’ and inmates’ calls to attorneys are not monitored or recorded.

In May, 2008, the sheriff was subpoenaed to provide certain records to a Suffolk County grand jury, including recordings of all telephone calls made by a particular pretrial detainee or inmate being held at the jail, for use in an investigation. The sheriff moved to quash on the sole ground that the recent allowance of a motion to suppress by a judge in the Superior Court in an unrelated case had called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees’ and inmates’ telephone calls.³ A Superior Court judge denied the motion. The sheriff indicated to the judge that, in order to seek review of the issue by this court, she would not comply with the subpoena and intended to appeal from an order of contempt that would enter against her as a result. The judge entered a finding of contempt but contemporaneously stayed the order pending the sheriff’s anticipated appeal. Mass. R. A. R 6, as appearing in 378 Mass. 932 (1979). The sheriff appealed; we then granted an application for direct appellate review of the district attorney for the Suffolk district, and we now affirm the denial of the motion to quash.⁴

2. Discussion. Although the sheriff appeals from the order of contempt, we in effect review the judge’s denial of the motion to quash. See Matter of a Grand Jury Subpoena, 411 Mass. 489,492-493 (1992) (orders denying motions to quash subpoenas are not final decisions and are not appealable; usual way of challenging such orders is to disobey them and appeal from subsequent contempt order).

The sheriff asks us to conclude that the constitutional privacy rights of the pretrial detainee or inmate will not be violated where, in response to a grand jury subpoena, the sheriff provides recordings of the detainee’s or inmate’s telephone calls to the grand jury.^{5 6} We conclude that, where the sheriff’s policy of monitoring and recording detainees’ and inmates’ telephone calls is preceded by notice to all parties and, further, where the recording and monitoring is justified by legitimate penological interests, no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.

Privacy interests protected by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights exist where “it is shown ‘that a person [has] exhibited an actual (subjective) expectation of privacy,’ and when that ‘expectation [is] one that society is prepared to recognize as “reasonable.” ’ ” Commonwealth v. Blood, 400 Mass. 61, 68 (1987), quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). The Federal courts have concluded that, where inmates have notice that their telephone conversations are monitored and recorded, such monitoring and recording does not violate the Fourth Amendment, because there could be no subjective expectation of privacy that society is prepared to recognize as reasonable. See, e.g., United States v. Van Poyck, 11 F.3d 285, 290-291 (9th Cir.), cert, denied, 519 U.S. 912 (1996); United States v. Amen, 831 F.2d 373, 379-380 (2d Cir. 1987), cert, denied sub nom. Abbamonte v. United States, 485 U.S. 1021 (1988). See also Bell v. Wolfish, 441 U.S. 520, 537 (1979) (loss of privacy inherent incident of confinement for pretrial detainee). Cf. Hudson v. Palmer, 468 U.S. 517, 525-530 (1984) (society not prepared to recognize as legitimate any subjective expectation of privacy that prisoner might have in prison cell). Moreover, in Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 772-773 (1996), we held that regulations promulgated by the Department of Correction, governing the monitoring and recording of inmates’ telephone calls (and identical in all material respects to the sheriff’s policy here), did not violate art. 14 where the inmates were made aware of the procedure and its requirements.

Here, there is no question that detainees and inmates have notice that telephone calls, other than those made to attorneys, are subject to monitoring and are recorded. When considered in light of the loss of privacy that is one of the “inherent incidents of confinement” during detention, whether pretrial or after sentencing, Bell v. Wolfish, supra, the detainee or inmate could have no subjective expectation of privacy in the recorded conversations that society would be prepared to recognize as reasonable. See Cacicio v. Secretary of Pub. Safety, supra. Cf. Commonwealth v. Eason, 427 Mass. 595, 600 (1998) (any expectation of privacy in telephone conversation not objectively reasonable because person not reasonably entitled to assume that no one listening in on extension telephone). Nor do we think that society would be prepared to recognize as reasonable an expectation of privacy held by a detainee or inmate that recordings of his telephone calls, which were made by the sheriff with notice given to all parties to the calls, might not be shared with law enforcement authorities.⁶

We also consider whether the sheriff’s policy, as to both the recording of calls and the providing of those recorded calls to a grand jury in response to a subpoena, impinges in some fashion on the detainee’s or inmate’s art. 14 rights. We conclude that valid penological interests justify the sheriff’s policy and therefore the policy does not violate art. 14. Our analysis in this regard is controlled by our decision in Cacicio v. Secretary of Pub. Safety, supra at 772-773, where we adopted the deferential standard of review for constitutional challenges to prison regulations and policies established by the United States Supreme Court in Turner v. Safley, 482 U.S. 78, 89 (1987) (“when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate peno-logical interests”). Applying the Turner decision’s four-factor inquiry to determine the validity of the regulations of the Department of Correction governing the recording and monitoring of inmate telephone calls, we concluded that the regulations were justified by valid penological interests and did not violate art. 14. Cacicio v. Secretary of Pub. Safety, supra at 770-773.⁷

On the record before us here, we reach the same conclusion as we did in the Cacicio decision, i.e., that the sheriffs policy does not violate the detainee’s or inmate’s art. 14 rights.⁸ Although it is not clear whether the recorded telephone calls at issue here were made by a detainee or an inmate, the distinction does not affect our analysis.⁹ The sheriff’s policy of recording pretrial detainees’ telephone calls, and providing those recordings in response to grand jury subpoenas, is justified by the same valid penological interests, i.e., the detection and deterrence of criminal activity occurring within the institution itself or which is being facilitated through the use of the institution’s telephone system, see note 7, supra, that justify the recording of those telephone calls and providing the recordings in response to grand jury subpoenas. Cacicio v. Secretary of Pub. Safety, supra.

We therefore turn to whether, where the detainee or inmate has no actual, objectively reasonable expectation of privacy in the recorded telephone conversations, and where, furthermore, the sheriff’s policy of recording detainee or inmate telephone calls is valid because it is reasonably related to legitimate peno-logical interests, the constitutional rights of the detainee or inmate are nonetheless violated when the sheriff provides the recordings in response to a grand jury subpoena. We conclude that there is no constitutional violation.

As an investigatory body with broad powers and substantial discretion to “inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred,” the grand jury plays a unique role in our criminal justice system. Commonwealth v. Williams, 439 Mass. 678, 683 (2003), quoting Matter of a Grand Jury Investigation, 427 Mass. 221, 226, cert, denied sub nom. A.R. v. Massachusetts, 525 U.S. 873 (1998). However, we have recognized in the context of discovery conducted in the course of certain investigations other than grand jury investigations that even where relevant evidence is sought as part of a legitimate investigation, “privacy interests of the [witness] and possibly of others should be considered.” Matter of the Enforcement of a Subpoena, 436 Mass. 784, 793-796 (2002), quoting Ward v. Peabody, 380 Mass. 805, 819 (1980). Grand juries “may not override constitutional rights, such as the right against self-incrimination (Powers v. Commonwealth, 387 Mass. 563, 564-565 [1982]), and may not issue unreasonable orders to produce documents (Hale v. Henkel, 201 U.S. 43, 76 [1906]).” Commonwealth v. Doe, 408 Mass. 764, 768 (1990).

Here, where all parties to the recorded telephone calls had notice that their conversations were not private, and where the detainee or inmate had no objectively reasonable expectation of privacy, any privacy interest in those conversations must be given little, if any, weight. Many types of records that are subject to grand jury subpoenas, such as private letters and electronic mail correspondence, may have been communicated initially without prior notice to the author and recipient that others might read them. There is no constitutional bar to the production of private documents or things to a grand jury, and in the absence of a recognized common-law or statutory restriction, there is no limitation on their admissibility as evidence at trial.

There is no question that the recordings of the detainee’s or inmate’s telephone calls come within the permissible scope of the grand jury’s investigation, because they may reveal, among other things, pertinent admissions or evidence of consciousness of guilt. Where the detainee or inmate lacked any objectively reasonable expectation of privacy in the recorded telephone calls, they cannot be considered so peculiarly private that, under art. 14, judicial approval would be required for a grand jury to subpoena them.¹⁰

3. Conclusion. For the foregoing reasons, we affirm the finding of contempt, affirm the denial of the motion to quash, and remand the case for further proceedings consistent with this decision.

So ordered.

1 The record before us is very limited. It is not clear from the record whether the person being held in the custody of the Suffolk County sheriff’s department, and who made the telephone calls, the recordings of which are the subject of the grand jury subpoena in this case, is a pretrial detainee or an inmate. Because the conclusion we reach in this case applies to pretrial detainees as well as to inmates, and the status of the person therefore does not affect our analysis, we shall use both terms to refer to the person.

2 It is not clear from the record before us whether the policy itself is either provided to detainees and inmates or made available to them.

3 The sheriff’s policy regarding detainee and inmate telephone use provides that “[information obtained from inmate telephone calls can be disclosed only as reasonably necessary to promote legitimate operational standards, law enforcement or public safety purposes,” and that “[c]opies of inmate phone call logs and recorded phone calls will be provided in response to legally issued subpoenas or court orders." The sheriff’s department generally does not listen to the recordings of detainee or inmate calls before providing them in response to subpoenas.

4 We acknowledge the amicus briefs filed by the sheriff of Plymouth County and the Committee for Public Counsel Services, Massachusetts Correctional Legal Services, the Massachusetts Association of Criminal Defense Attorneys, the American Civil Liberties Union of Massachusetts, the Youth Advocacy Project, and the Children’s Law Center of Massachusetts.

5 The sheriff states that she is satisfied that the subpoena appears facially valid.

6 AIthough we previously said that “[i]t would appear reasonable to expect that a government agency, to which a citizen is required to submit certain materials, will use those materials solely for the purposes intended and not disclose them to others in ways that are unconnected with those intended purposes,” we were considering whether a high school student might have a reasonable expectation of privacy in his or her school papers that were handed in to teachers. Commonwealth v. Buccella, 434 Mass. 473, 485 (2001), cert, denied, 534 U.S. 1079 (2002). The circumstances here are readily distinguishable. Although detainees and inmates are required to submit their conversations to recording if they choose to use the institution’s telephone system to communicate, the recordings of their conversations are made for the purpose of ensuring penological security. Because the sheriff records and monitors detainees’ and inmates’ calls in order to detect and deter criminal activity occurring within or without the facility that is being facilitated through use of the facility’s telephone system, it would not be reasonable to expect that evidence of criminal activity in those recordings might not be provided to law enforcement authorities — regardless whether the sheriff does so on her own initiative in order that such criminal activity might be investigated, or whether she does so in response to an investigation being conducted by a grand jury, as was the case here.

7 Our analysis of the four-factor inquiry identified in Turner v. Safley, 482 U.S. 78, 89-91 (1987), concluded that (1) the department enacted the regulations for the legitimate purpose of improving the security of the correctional system and the regulations logically advance that goal; (2) inmates have alternate means of exercising their rights, such as through mail or personal visits; (3) invalidating or limiting the regulations would have a substantial effect on the allocation of prison resources; and (4) there were no alternative solutions to accommodate the rights of inmates at a de minimis cost to the department’s valid penological goals. Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 770-771 (1996).

8 In Cacicio v. Secretary of Pub. Safety, supra at 765-766, we considered a much broader challenge, premised on several Federal and State constitutional grounds, to the facial validity of the regulations of the Department of Correction governing the monitoring and recording of inmates’ telephone calls. Here, we limit our consideration of the sheriff’s policy under the Turner inquiry (which we adopted in Cacicio) to the sole question whether the detainee’s or inmate’s rights under art. 14 of the Massachusetts Declaration of Rights are somehow impinged on — despite the lack of a reasonable expectation of privacy in the calls — and, if so, whether those rights are violated. No direct challenge is made here to the sheriffs policy of recording the telephone calls, but rather the challenge is directed to the sheriff’s policy of providing the recordings, in response to a subpoena, to a grand jury.

We have little difficulty concluding that a valid and rational connection exists between the policy of providing the recordings in response to a grand jury subpoena and the sheriff’s legitimate and neutral concerns for institutional security. It is the same connection that exists between the policy of recording the calls themselves and the sheriff’s institutional security concerns, and which we held to be valid in the Cacicio decision: the detection and deterrence of criminal activity within or without the correctional institution that is being facilitated through the use of the institution’s telephone system. If criminal activity is discovered through the monitoring and recording of telephone calls, the sheriff could be expected to turn over that information, as well as any recordings, to law enforcement authorities, as discussed at note 6, supra. The sheriff may provide recordings of telephone calls in response to a grand jury subpoena because the grand jury might be investigating criminal activity within the institution or which has been facilitated through the use of its telephone system. It is not for the sheriff to determine what type of criminal activity is being investigated as a basis for deciding whether to provide recordings in response to a grand jury subpoena. Turning to the question whether alternative means exist for detainees or inmates to exercise the challenged right, our conclusion is the same as it was in Cacicio v. Secretary of Pub. Safety, supra at 771. As to the third factor, whether there might be a significant “ripple effect” on the allocation of prison resources were the sheriff to be required to determine which of the vast number of recorded telephone calls could be provided to a grand jury, Turner v. Safley, supra at 90, it is clear that the sheriff’s department would not be capable of bearing the burden. Nor, considering the related fourth factor, has any alternative solution been proposed that would avoid the use of substantial resources by the sheriff were the sheriff to cease complying with all facially valid subpoenas and instead determine what calls could be provided in response to a particular subpoena.

9 The United States Court of Appeals for the Second Circuit held in United States v. Cohen, 796 F.2d 20, 24 (2d Cir.), cert, denied, 479 U.S. 854 (1986), and cert, denied sub nom. Barr v. United States, 479 U.S. 1055 (1987), that a pretrial detainee retains limited rights under the Fourth Amendment to the United States Constitution against an investigative search of his prison cell initiated by the prosecution and, in a subsequent case, limited the reach of its decision to pretrial detainees rather than inmates. See Willis v. Artuz, 301 F.3d 65, 68 (2d Cir. 2002). The Cohen decision does not affect our analysis because here the sheriff, rather than prosecutors or the police (as was the case in Cohen), conducts the monitoring and recording of telephone calls made by detainees and inmates, and the recording is done for the purpose of serving the sheriff’s legitimate penological security interests.

10 In Commonwealth v. Doe, 408 Mass. 764, 769 (1990), we held that a judge must decide whether it is reasonable to direct a person to appear at a lineup sought by a grand jury, because the intrusiveness of such an order “is sufficiently great so as to require that there be a reasonable basis for issuing and enforcing such an order.” That particular concern is lacking here. The sheriff’s policy of providing detainees’ and inmates’ recorded telephone calls in response to a grand jury subpoena does not implicate the same concern for intrusiveness. Here, as discussed supra, all parties to detainees’ and inmates’ telephone calls are aware that the calls are recorded. Nor does providing the telephone call recordings to a grand jury involve the type of social stigma, personal risk, and humiliation involved in a lineup appearance. See id. at 770 n.8.