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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Ennis. 439
Present:
Indictment found and returned in the Superior Court Department on
A pretrial motion to suppress evidence was heard by John A. Tierney, J.
An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the
Robert C. Thompson, Assistant District Attorney, for the Commonwealth.
Craig S. Havel (Jon C. Taylor with him) for the
defendant.
MARSHALL, C.J.
The issue in this interlocutory appeal is
whether an audiotape recording by the Department of Correction (department) of
a three-way telephone conversation among an inmate at the Plymouth County house
of correction, the defendant and a codefendant must be suppressed pursuant to
G. L. c. 272, § 99 P,[1] where
the inmate and the codefendant knew that the conversation was being recorded,
but the defendant did not. We conclude that the recording need not be
suppressed.
1. Background. On
2. Discussion. We first summarize the relevant uncontested findings of the
motion judge. On
Knight placed two collect telephone calls to Williams that day. See 103
Knight then telephoned Williams a second time. Williams's girl friend again
answered the telephone, but this time, both Williams and Knight heard an
automated announcement to the effect that a collect telephone call was being
placed by an inmate, that the call was being recorded, and that the call would
disconnect if the recipient attempted to activate a three-way or conference
call feature. See 103
Williams and Ennis are codefendants in the underlying murder case. In allowing
Ennis's motion, the judge "deem[ed] the interception of the telephone
conversation unlawful" because, he ruled, there was no evidence that Ennis
knew that the conversation was being recorded.
Section 99 P of the
The wiretap act does not explicitly define these terms, but makes clear that a
person "intercepting" an oral communication commits an
"offense" only when he or she acts "willfully." See note 6,
supra. This requirement is consistent with the wiretap act's purposes to
circumscribe purposeful "electronic eavesdropping," i.e., secret
recordings of conversations, except as specifically authorized by the
Legislature. In enacting the wiretap act the Legislature sought to curtail two
"grave dangers": (1) "the increasing activities of organized
crime" and (2) "the uncontrolled development and unrestricted use of
modern electronic surveillance devices," which the Legislature termed a
danger "to the privacy of all citizens." G. L. c. 272, § 99 A.[9]
As to the first, the Legislature determined that to combat organized crime, law
enforcement officials should be permitted to engage in electronic surveillance,
but only if judicially authorized. See id. Second, the Legislature sought to
prohibit all "secret" electronic eavesdropping by "private
individuals," id.,[10] but provided
that such conduct is an "offense" subject to criminal sanction only
if done "willfully." G. L. c. 272, § 99 C 1. Thus, not
every recording of an oral communication without the knowledge of all
participants is an "offense," nor is every such recording
"unlawful" or "illegal."
In this case, the department did not wilfully record
any oral communication of Ennis, secretly or otherwise. The department did wilfully record inmate Knight's telephone call to Williams,
announcing to both parties that their conversation would be recorded. But the
department affirmatively sought to prevent any additional party from being
added to that two-party telephone conversation. See 103
As to the third ground for suppression claimed by Ennis, as noted above the
Commonwealth has conceded that there was an "interception" and does
not argue that the interception was "in accordance with the terms of this
section." G. L. c. 272, § 99 P 2. General Laws c.
272, § 99 D, sets forth the circumstances in which an "interception"
is affirmatively authorized, none of which is relevant to the department's
recording in this case. However, even where the recording is an
"interception," see note 6, supra, and is not "in accordance
with" the wiretap act, suppression is not automatically warranted. The
exclusionary rule is designed "to deter future police conduct in violation
of constitutional or statutory rights." Commonwealth v.
Santoro, 406
The order of suppression is reversed.
So ordered.
FOOTNOTES:
[1] General Laws c. 272, § 99, is the
[2] Title 103
Title 103
[3] The transcript of the telephone call states
"[p]hone ringing (for three way call)," just after Williams tells
Knight to "hold on, hold on."
[4] The term "interception" is defined in
G. L. c. 272, § 99 B 4, which provides, in pertinent part:
"'[I]nterception' 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." An "intercepting device" is defined, in
pertinent part, as "any device or apparatus which is capable of
transmitting, receiving, amplifying, or recording a wire or oral
communication." G. L. c. 272, § 99 B 3.
[5] Modern technology has made routine the sequential
adding of additional parties to a two-party telephone call, a development
apparently not contemplated by the wiretap act. Order-by-telephone retailers,
telemarketers, and financial institutions, among others, commonly record
telephone calls after first informing the person answering the telephone that
the call may be recorded. The announcement of the recording may be, as in this
case, automated. The party receiving the telephone call hears the announcement,
but may then add a third party without the knowledge or consent of the person
making the recording. Because the Commonwealth does not dispute the issue, we
need not decide whether a person recording a telephone call (here the
department) commits an "interception" where the original parties to
the call (here Knight and Williams) are informed that the call is being
recorded and where the addition of a sequential party (here Ennis) is beyond
the recorder's knowledge or control.
[6] General Laws c. 272, § 99 C, provides, in
pertinent part: "Offenses. 1. Interception, oral communications
prohibited. Except as otherwise specifically provided in this section any
person who -- willfully commits an interception, attempts to commit an
interception, or procures any other person to commit an interception or to
attempt to commit an interception of any wire or oral communication shall be
fined. . . or imprisoned . . . or both . . ." (emphasis added).
[7] General Laws c. 272, § 99 P, provides, in
pertinent part: "Any person who is a defendant in a criminal trial in a
court of the commonwealth may move to suppress the contents of any intercepted
wire or oral communication or evidence derived therefrom,
for the following reasons: (1) [t]hat the communication was unlawfully
intercepted[;] (2) [t]hat the communication was not intercepted in accordance
with the terms of this section . . . (5) [t]hat the evidence sought to be
introduced was illegally obtained." The three other enumerated grounds
each concern interceptions made pursuant to a warrant, and are not at issue
here. See G. L. c. 272, § 99 P 3, 4, and 6.
[8] It is unclear whether, on appeal, Ennis continues
to rely on all three grounds for suppression. In his brief, Ennis cites to
subsections P 1 and P 2 only, but at oral argument, Ennis referenced subsection
P 5. Because all three grounds were argued below and because it is the
Commonwealth, and not Ennis pursuing this appeal, we consider all three
grounds.
[9] The first version of the wiretap act was enacted
in 1920. See
[10] The special commission's report suggests at
least two reasons for the latter concern. First, the commission heard testimony
that newly developed inventions, "eavesdropping devices" and
"bugs," could be easily concealed and used to monitor private
conversations secretly and continuously. 1967 Sen. Doc. No.
1198, at 3. The commission feared that "[a] person with a minimal
education in electronics [could] easily install these commercially available
devices for purposes of illegally intercepting wire or oral
communications." 1968 Sen. Doc. No. 1132, at 6.
Second, the commission was informed that New England Telephone and Telegraph
Company had been conducting "service observations," during which the
company would secretly record private telephone calls to monitor service and
customer perceptions of service. See id. at 6-7; 1967
Sen. Doc. No. 1198, at 14.
[11] Ennis argues that the department promulgated
the regulatory prohibition on three-way and conference calling "to ensure
compliance with [the wiretap act]." To the contrary, the "department
promulgated these telephone regulations to prevent inmates from using the
telephone system for illegal activities such as planning escapes, organizing
drug trafficking, orchestration of criminal activities, solicitations to
murder, and fraudulent use of third-party calls or telephone credit cards . . .
[and] for the legitimate purpose of improving the security of the Massachusetts
correctional system." Cacicio v. Secretary of Pub. Safety, 422
[12] The motion judge noted that "for some
unknown reason, the [telephone] did not disconnect" when Ennis was added
to the telephone call. The judge also stated that the "government system .
. . did not properly operate" and that Ennis's conversation was recorded
"due to the failure of the Commonwealth's system." There is no
evidence that the system failed, rather than being by-passed or circumvented in
some way by Williams. Nor, even if there was some form of equipment or system
failure, is there any evidence to indicate whether it was the department's
equipment or system that failed as opposed to some failure on the part of the
telephone company's equipment or system. Notably, the system functioned
properly earlier that day, when it disconnected Williams's first attempt to add
Ennis to the conversation.
[13] We reject the judge's conclusion that the
"[f]uture failure of the [Commonwealth's]
telephone system ought to be deterred." As noted above, the record does
not establish that the Commonwealth's system "failed" or that
"future failure" is within the department's control and could be
"deterred."