Suffolk County prosecutors will not be able to use audio and video from a police officer's phone against the man he arrested for drug distribution on an East Boston street in 2019, the Massachusetts Appeals Court ruled today.
The court ruled that the audio and video recordings - made during three separate alleged drug purchases without a warrant - violated the state's wiretapping law, which which the court said is "among the most protective of electronic surveillance statutes in the country" and which requires the consent of somebody who is being recorded.
The law has an exception for investigations into organized crime but the court said that neither applied in the arrest of Thanh Du on Chelsea Street in Maverick Square around 11:25 a.m. on Dec. 4, 2019, because prosecutors had presented no evidence that Du had conspired with anybody else to sell the drugs.
The court added that although the recordings cannot be used at trial, the detective who arrested Du can testify as to what he saw and heard during his interactions with him. Du was indicted the following month in Suffolk Superior Court on one count of distribution of cocaine and three counts of distribution of a class A substance, all as a subsequent offense, and has yet to come to trial.
A Suffolk Superior Court judge had earlier ruled that prosecutors could not use any audio recorded via a phone app called Callyo because audio is specifically referenced in the wiretapping law as requiring consent, but said prosecutors could use the video because it showed activities in public, where people have little expectation of privacy.
But the appeals court tossed the video as well, saying that invoking privacy issues, even that way would mean bringing up Article 14 of the state constitution, which limits intrusions on people's privacy, and Du's appeal very pointedly only referenced the wiretap law, not that portion of the state constitution, so it doesn't apply here.
[T]he Legislature deliberately did not incorporate art. 14 analysis into the statute, but instead carefully crafted a scheme that rests instead on whether a recording is made "secretly."
The court acknowledged the fear expressed by the DA's office that "police officers will be exposed to criminal and civil liability should they be found to have violated the statute." But the justices said there's a simple way to prevent that: Get a warrant first, which requires proving to a judge why the recording is needed.
In addition, the statute protects investigative and law enforcement officers from criminal and civil liability if they violate the statute "for the purposes of ensuring [officer] safety" while operating undercover.
In such a case, the recordings might still be tossed as evidence, but the officers would be protected from lawsuits or criminal charges, the court said.
Briefs, oral arguments in the case.