by Douglas Ankney

The Supreme Judicial Court of Massachusetts held that when police secretly make a warrantless audiovisual recording of a suspect’s oral communication in violation of the state wiretap act, G.L.c. 272, § 99 P, the video footage must also be suppressed, not just the audio component, because the remedy prescribed by the Legislature includes suppression of “any information concerning the identity of the parties to such communication or the existence … of that communication,” G.L.c. 272, § 99 B 5, and the video component communicates “information” in both of those forms.

Background

A Boston police detective purchased heroin and fentanyl from Than Du in three transactions on three separate occasions. Without obtaining a warrant beforehand and using an application on his department-issued cellphone known as “Callyo,” the detective made audiovisual recordings of each transaction. In the recordings of the second and third transactions, Du’s face can be clearly seen in the video. After the third transaction, Du was arrested and charged with, inter alia, three counts of distributing a class A substance and one count of distributing a class B substance.

Procedural History

Du moved to suppress the recordings of the three transactions, arguing that these warrantless interceptions of his oral communications violated the state wiretap act. The motion judge issued a memorandum and order granting Du’s motion in part—the judge suppressed “the audio recording” but ruled that the “video recording, without the audio, is still permissible evidence,” under the wiretap act.

Both parties were granted leave to take an appeal to the Appeals Court, which affirmed the motion judge’s decision that the audio component must be suppressed. But the Appeals Court reversed the motion judge’s decision that the video footage was still admissible and ruled that both the audio and the video components must be suppressed under the wiretap act.

Analysis

The Supreme Judicial Court granted the Commonwealth’s application for further appellate review to determine the scope of the remedy for violating the wiretap statute. The Court observed that its “primary goal in interpreting a statute is to effectuate the intent of the Legislature.” Commonwealth v. Rainey, 205 N.E.3d 1090 (Mass. 2023). A statute’s plain language is “the best indication of the Legislature’s ultimate intent.” Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001). The Court attempts to determine intent from “all [the statute’s] words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Id.

“The wiretap statute makes it a crime to willfully commit an interception … of any … [wire or] oral communication.” Commonwealth v. Morris, 212 N.E.3d 812 (Mass. 2023), quoting G.L.c. 272, § 99 C 1. The Court stated that, with certain exceptions not applicable to present case, “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.” G.L.c., 272, § 99 B 4. The statute generally prohibits interceptions by both private citizens and law enforcement, but the statute sets forth a process through which, upon sufficient showing, law enforcement officers may obtain a warrant to make specified interceptions. G.L.c. 272, § 99 D 1 d, E-N.

The Court observed that the issue in the present case involves the scope of the suppression remedy for when law enforcement violates the wiretap statute. In criminal cases, the statute provides a suppression remedy for the defendants. G.L.c. 272, § 99 P. Defendants can seek to suppress the “contents of any intercepted wire or oral communication or evidence derived therefrom” if the “communication was unlawfully intercepted.” Id. The Court stated that “contents” is broadly defined by the statute as “any information concerning the identity of the parties to [the wire or oral] communications or the existence, contents, substance, purport, or meaning of that communication.” G.L.c 272, § 99 B 5.

The Court held that the audiovisual recording of the unlawfully intercepted communication—showing Du as a party to it—is subject to suppression, and “the statute’s suppression remedy extends to the recording in its entirety, including the video footage.” See Commonwealth v. Jarabek, 424 N.E.2d 491 (Mass. 1981) (admissibility under the wiretap statute “must turn … on the legislative intent expressed in the statute”).

The Court explained that under the statute’s expansive definition of “contents” of the oral communication that must be suppressed—G.L.c. 272, § 99 B 5, P—the video component of the audiovisual recording constitutes “contents” for two reasons. First, the recording in question shows Du as one of the speakers, which means the video footage contains “information concerning the identity” of one of the parties to the unlawfully intercepted oral communication. Second, the video footage shows Du as a party to the unlawfully intercepted oral communication, so it contains “information concerning … the existence … of that communication.” The Court further explained that “suppression of the video footage in these circumstances furthers the deterrence policy consistent with the breadth of the term ‘contents’ in the wiretap act.” Thus, the Court held that the plain language of the wiretap statute “requires suppression of the video footage as ‘contents’ of the oral communication.”

Conclusion

Accordingly, the Court affirmed the part of the motion judge’s order suppressing the audio component of the audiovisual recordings but reversed the part of the order that denied the suppression of the video recordings. See: Commonwealth v. Du, 245 N.E.3d (Mass. 2024).  

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