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Massachusetts State Police Facing Possible Class Action Lawsuit for Illegal Recordings

The Massachusetts State Police (“MSP”) is the defendant in a potential class action lawsuit alleging that troopers secretly recorded nearly 200 individuals during criminal investigations, many of them drug cases. These recordings made by a phone app called Callyo violate federal and state laws and potentially jeopardize criminal cases across the state.

The lawsuit, filed against the state police and Motorola on February 23, 2024, claims that troopers violated the state’s two-party consent law by covertly recording interactions with at least 181 arrestees and then failed to disclose these recordings in court, denying the plaintiffs due process. Jason Courtemanche, Brett Foresman, Juan Rios, and Dennis Williams said in the complaint filed in U.S. District Court in Worcester that they were secretly recorded by state police using Motorola Solutions devices.

The recordings were added to a database maintained by Callyo, a law enforcement software company acquired by Motorola in 2020. The state wiretapping law prohibits recording audio without consent, except in cases related to organized crime investigations, which did not apply to the plaintiffs in this instance.

The ease of using the technology more than likely contributed to its widespread misuse. Callyo is a phone-based recording app commonly used by law enforcement and makes secret recordings without the complexities of traditional bugs and wiretapping. While Motorola is not directly responsible, in an ideal world, the company would monitor customers and prevent unlawful use of its product.

The troopers claim they used the app for “officer safety” during drug buys. However, they failed to obtain warrants required under Massachusetts law for covert recordings. Judge Timothy LoConto, presiding over one case, called their justifications “shocking” and questioned why recordings used for investigative purposes were initially claimed to be solely for officer safety.

The troopers and state police officials have offered conflicting explanations and deflected responsibility. They blamed each other and different drug unit practices for the lack of proper training, policy guidelines, and evidence handling. Judge LoConto expressed frustration at their lack of accountability, stating, “These are relatively simple tasks to complete. Producing evidence, turning over evidence. It’s very simple. And no one’s in charge, and no one’s responsible.”

TechDirt points out that it serves the MSP well not to have someone in charge or make anyone responsible for the Callyo database, because either one of those accountability measures would create a paper trail for the illegal recordings and eliminate any form of plausible deniability.

During court hearings, it was revealed that troopers received minimal training on how Callyo worked. The software defaults to recording audio, and features like “Body Bug” allow audio transmission without visibility. Informants involved in drug buys were allegedly coerced with monetary “tips” and subjected to illegal searches of their phones.

The lawsuit, led by Fitchburg criminal defense attorney Christopher Batinsey, seeks class status for those recorded, compensation for affected individuals, legal costs, fines, and the appointment of a special master to oversee the case. This legal action adds to recent scandals in Massachusetts involving the state police, including a bribery scheme and overtime fraud.

The legal consequences for the state troopers remain unclear. While one case may be dismissed due to the illegal recordings, the state police are likely to contest the remaining hundreds of potential violations, at taxpayers’ expense, of course.   

 

Sources: Patch, TechDirt, Worcester Telegram & Gazette

 

 

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