Commonwealth v. Du

103 Mass.App.Ct. 469

219 N.E.3d 843

COMMONWEALTH

v.Thanh DU.

No. 22-P-870

Appeals Court of Massachusetts, Suffolk.

Argued June 7, 2023

Decided October 6, 2023

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Nancy Dolberg, Committee for Public Counsel Services, for the defendant.

Present: Wolohojian, Singh, & Hand, JJ.

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 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 "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 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 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 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 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, 688 N.E.2d 455 (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, 205 N.E.3d 1090 (2023) ; Commonwealth v. Tavares, 459 Mass. 289, 294-296, 945 N.E.2d 329 (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 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, 205 N.E.3d 1090. See Commonwealth v. Morris, 492 Mass. 498, 505, 212 N.E.3d 812 (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 omitted]); Commonwealth v. Gordon, 422 Mass. 816, 833, 666 N.E.2d 122 (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 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 transmissions." Commonwealth v. Moody, 466 Mass. 196, 208, 993 N.E.2d 715 (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...