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Prosecutors can't use undercover cop's video of an alleged drug dealer making sales in East Boston and Brighton because police didn't have a warrant to record him

The Supreme Judicial Court ruled today that the state wiretap law bars Suffolk County prosecutors from using video recorded by an undercover cop buying drugs from an alleged dealer in East Boston and Brighton because the cop didn't get a warrant first.

The video - and audio that a lower-court judge had earlier dismissed as evidence - were taken in 2020 of alleged sales by Thanh Du, whom Boston Police began investigating after a drug user died and, with the agreement of that user's family, officers searched his phone and found text messages with Du arranging drug purchases.

According to the court's summary of the case:

In transactions arranged using this telephone number, an undercover officer made purchases from the defendant on three occasions. Each time, the defendant approached the officer on foot at the agreed-upon public place, spoke with the officer, and then sold him packages of purported heroin or fentanyl in exchange for one hundred dollars.

On each occasion, prior to the defendant's arrival, the undercover officer activated an application called "Callyo" on his department-issued cellular telephone to create an audio-visual recording of his interaction with the defendant. In the recording of the first transaction, the defendant can briefly be observed approaching the undercover officer, and the two then discuss the sale while the camera is pointed down at the sidewalk for most but not all of the discussion. The recordings of the second and third transactions more clearly show the defendant's face, and the defendant again can be heard discussing each transaction with the undercover officer. After the third transaction, police arrested the defendant.

Two of the sales were in a laundromat on Paris Street in East Boston, the other in the parking lot of a CVS on Market Street in Brighton, according to a summary of the case by Suffolk County prosecutors.

Du was charged with three counts of distributing class A drugs.

His lawyer moved to have the phone recordings because they were "warrantless interceptions of his oral communications in violation of the wiretap act."

In its ruling today, the SJC agreed, saying the law, which prohibits "secret" recordings applies despite an argument by the Suffolk County District Attorney's office that the recordings were hardly secret because the undercover officer held his phone in his hand as he recorded and so "the cell phone would therefore have been visible to the defendant." Prosecutors cited a federal case in which a lawyer recording police making an arrest on the Common had his own arrest and charges voided after a court ruled he had made it clear to officers he was recording them openly.

But the court noted prosecutors didn't make that argument before the Suffolk Superior Court judge who heard the initial evidence-suppression request and wrote that an appeal to the state's highest court was the wrong place to make a novel argument like that in the case.

The court also noted that the wiretap law has an exception for law-enforcement officers who first get a warrant to make recordings - but that the officer didn't do that in this case.

"[T]he Commonwealth has presented no other basis for disturbing the motion judge's conclusion that the defendant was secretly recorded in violation of the wiretap act," so the only question for the justices to consider was whether to disallow the use of video from the recordings - the lower-court judge said prosecutors could use it, but not the audio.

The court concluded that prosecutors could not use the video, either, because portions of it show Du's face, which could be used to identify him, and the law prohibits the use of "contents" that includes "any information concerning the identity of the parties to [the wire or oral] communication or the existence, contents, substance, purport, or meaning of that communication."

The recordings in the case clearly violate that, the court concluded:

First, the footage shows one of the speakers - here, the defendant - meaning that the footage contains "information concerning the identity" of a party to the communication. ... Second, the footage shows the person engaging in the unlawfully intercepted oral communication and therefore contains "information concerning . . . the existence . . . of that communication." Id. The wiretap act's plain language thus requires suppression of the video footage as "contents" of the oral communication; "[i]t is not our function to craft unwarranted judicial exceptions to a statute that is unambiguous on its face." Hyde, 434 Mass. at 604.

Case docket - Includes written arguments by prosecutors and Du's attorneys and amicus briefs.

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Comments

Suffolk County District Attorney's office that the recordings were hardly secret because the undercover officer held his phone in his hand as he recorded and so "the cell phone would therefore have been visible to the defendant."

You know goddamn well that if your lawyer argued that you "had your cell phone in your hand visible to the officer" therefore the recording is "hardly secret" when cops came over to arrest you for videoing an arrest they were making on someone else...

...that same DA would be like "what a bullshit argument, your honor!".

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It’s been legal to surreptitiously record police officers in public for more than 5 years. Try to keep up.

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because in MA there is a specific carveout (in caselaw) for right to record the police without consent or notice. So the lawyer should use that argument instead. :-)

(There might be some nuance regarding the person they're arresting also being recorded. You'd have to ask an actual lawyer about that!)

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Anyone can record anything they see from public. This is a 1st Amendment protected activity. No one needs permission from the police, or anyone else for that matter, to record them in public.

Freedom of the press stands tall for all.

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Audio and visual recording have different laws. Audio recording in Massachusetts generally requires all recorded parties to *know* they are being recorded. I believe this wouldn't apply to someone shouting through a megaphone, but it would certainly apply to people having a one-on-one interaction in public. Just because it's happening in public doesn't mean you can record audio of it.

(Visual recording is less protected, and instead falls back to things like "reasonable expectation of privacy".)

You are 100% wrong here.

The key factor here is being in a public space. Anyone can record in a public space without consent from others. If you can see it from public you can film & record it. This is a Constitutionally protected activity under the 1st Amendment. There is no expectation of privacy in public.

This has been ruled on many times.

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The Mass statute prohibits "secretly" recording someone's conversation w/o their consent. Whether it's a public space or not is irrelevant.

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The actual key factor here is that it was the government doing the recording secretly. This is why there are signs when you enter a government building stating that they are recording. A private citizen in public can record all they want in secret.

No, Massachusetts has a very restrictive wiretapping statute. Most government facilities in MA have no such signage because video surveillance is not covered by the MA wiretapping statute. The city and state governments now have video cameras on every corner.

It's audio that's at issue here. Specifically secret audio recordings that target a specific conversation are prohibited. Someone video and audio recording with their phone on city hall plaza wouldn't be in violation of the statute unless they were secretly recording their conversation with someone. Similarly, if all parties are aware of the recording it's not prohibited. Law enforcement are exempt from this statute under various provisions.

Citizens are allowed to record public officials performing their official duties. They are free to audio record in public as long as they aren't targeting a person in a conversation. They are not allowed to secretly record their conversations with others (in Massachusetts), regardless of where they may be standing.

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There are things that you can see from a public place that you are not allowed to film, such as through someone's window at night, or up someone's skirt on an escalator.

So, that's for *visual things*, which I'm focusing on because you used the word "see".

In contrast, the wiretap laws have nothing to do with things that can be seen, but instead things that can be heard.

And audio-recording a conversation some people are having in public, without their awareness, is illegal in Massachusetts. Even if they're on a park bench. (But photographing them would be fine!)

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Sleepwalking towards a surveillance state.
So, if no one within earshot is in view and me and a friend are having a conversation on a sidewalk are these Ring surveillance systems and the like violating the very basic norm of the right to speak freely, privately?

Is there intent to record the conversation you're having? I doubt it. Also, most security surveillance systems do not record audio. Either way, Ring systems are usually out in the open. You can choose to take that chance or not take that chance. It's not a secret if it's mounted on the front of the building. We aren't walking towards a surveillance state, we've reached the destination.