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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. Price, 408
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Catherine E. Sullivan, Asst. Dist. Atty., for the
Com.
Judi M. Sanzo,
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH,
NOLAN, O'CONNOR and GREANEY, JJ.
WILKINS, Justice.
In July,
1986, Massachusetts State troopers secretly made videotapes of conversations
held in a Woburn motel room between the defendant or his associates and certain
State police officers, operating undercover, during which was discussed the
sale of a large quantity of marihuana for
[408 Mass. 669] $121,000 in
cash. The defendant was indicted for
attempted trafficking in marihuana, for conspiracy to violate the controlled
substances act by trafficking in marihuana, and for possession of a class C
controlled substance (tetrahydrocannabinols).
The
defendant moved to suppress the surveillance tapes, and, after numerous
continuances, the defendant and the Commonwealth stipulated to the facts
bearing on the motion to suppress. The
motion judge reported four questions to the
The
questions, which are set forth in the margin, (FN1) concern the standing of the
defendant to challenge the admissibility of the surveillance videotapes and, to
the extent that the defendant has standing, whether there is a constitutional
bar to the admission in evidence, respectively, of the audio and
video components of the surveillance tapes.
We conclude that the defendant lacked standing to challenge the
admissibility of either component of the videotapes. Although not necessary to our opinion, we
point out that, even if the defendant had standing, at least the audio portion
of the tapes, which was obtained pursuant to a valid search warrant, would
still be admissible because the search did not violate the prohibition of art.
14 of the Massachusetts Declaration of Rights against unreasonable searches and
seizures.
[408
On July
16, 1986, with the assistance of two assistant district attorneys and a fellow
State trooper, John Sprague, McCabe prepared an application for a search
warrant pursuant to G.L. c. 276, §§ 1‑7 (1988 ed.), and on that day a
Superior Court judge authorized the issuance of a warrant to search for and
seize "[c]onversation between John McCabe, Steven Smith and any other
individual accompanying Steven Smith for the purposes of purchasing marijuana,
regarding the purchase of marijuana. Rm.
248, Ramada Inn, Woburn." The
application was accompanied by a ten‑page affidavit and a consent to the
interception of oral communications signed by McCabe.
On that
same day, State police personnel installed a hidden microphone and video camera
in Room 248. Wires from the microphone
and video camera were run to Room 250, where a recorder could produce a
videocassette tape with audio and video components and where a monitor allowed
State police officers to see activities and hear conversations in Room 248.
At
approximately 3 P.M. on July 16, McCabe telephoned Smith and told him to come
to Room 248 at 7:30 P.M. to complete the sale of the marihuana. Monitoring and recording of activity in Room
248 began prior to 7:30 P.M. Troopers
McCabe and Sprague were in the room at that time. Smith, however, did not arrive at the room
until 9:20 P.M., accompanied by Davis.
Smith told McCabe and Sprague that "Al," who had the money for
the marihuana, was waiting in the lobby.
Smith and Davis left the room, and returned a short time later with
"Al," who is the defendant. [408 Mass. 671] The defendant told McCabe and Sprague that he had brought $65,000
in cash, showed them his money, and stated that he could get more if additional
marihuana were available. The defendant
and the troopers agreed that the defendant would buy 185 pounds of marihuana
for $121,000. The defendant left with
McCabe to inspect the marihuana, leaving Smith and Sprague in the room.
The
defendant returned shortly, apparently satisfied with the quality of the
marihuana, and told McCabe and Sprague that he would drive to his home in
Lowell to get the extra money. The
defendant brought Davis and one Leslie Anderson up from the hotel lounge to stay
in the room with the $65,000 and the troopers while he left with Smith. Approximately one hour later, the defendant
and Smith returned with a bag of money.
On a prearranged signal, other police officers involved in the
investigation arrested the defendant and the others. The electronic surveillance was stopped
shortly thereafter.
[1] The
first question asks generally about the standing of the defendant to challenge
the admissibility of the videotapes. We
construe that question to be asking whether the defendant has standing to raise
the constitutional search and seizure issues presented in questions three and
four. (FN2)
[408
Mass. 672] The defendant relies on
the standing test that is normally applied under both art. 14 of the
Massachusetts Declaration of Rights and the Fourth Amendment to the United
States Constitution. Under this test, to
have standing, the defendant must have had a subjective expectation of privacy
in the recorded conversations and society must be willing to recognize that
expectation as reasonable. See California v. Ciraolo, 476 U.S. 207,
211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986), citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19
L.Ed.2d 576 (1967) (Harlan, J., concurring); Commonwealth v. Panetti, 406 Mass. 230,
231‑232, 547 N.E.2d 46 (1989); Commonwealth v. Blood, 400 Mass. 61, 68,
507 N.E.2d 1029 (1987).
We shall
assume that the defendant had an expectation of privacy in his conversations in
the motel room. Society is not prepared,
however, to accept any such expectation as reasonable. The defendant and his associates were engaged
in negotiating a major business transaction with people whom he had just met,
and whom his associates had first met the day before. Nevertheless, he brought $121,000 in cash to
a motel room that was not registered in his name, but rather in the name of
someone about whom he knew almost nothing.
He engaged in an arm's length business negotiation with strangers in a
place over which he had neither control nor a right to control and which had
been selected by the strangers.
The facts
of this case are meaningfully different from a warrantless transmission and
recording of private conversations in a person's home. See
Commonwealth v. Blood, supra. There
is in this Commonwealth a strong tradition of constitutionally based protection
of citizens from governmental intrusion into their homes. There is no similar tradition that protects
against recording business conversations in strangers' motel and hotel rooms. As Justice Liacos presciently wrote for the
court in Commonwealth v. Blood, supra,
400 Mass. at 73, 507 N.E.2d 1029, "a distinction lies in the disparity
between that sense of security which is felt among trusted friends and the
feelings of hostility encountered among competitors or combatants." A viewing of the videotapes shows that the
transaction was an arm's length one with manifestations of suspicion and
distrust. Because, in these
circumstances, society will not [408
Mass. 673] recognize the defendant's
expectation of privacy as reasonable, the defendant did not have standing under
the traditional standing test.
[2] There
are certain circumstances in which this court has recognized a defendant's
standing, or possible standing, without consideration of the defendant's
expectation of privacy. In Commonwealth v. Amendola, 406 Mass.
592, 601, 550 N.E.2d 121 (1990), we adopted an "automatic standing"
rule for one who seeks to contest the legality of the search and seizure of
evidence if possession of that seized evidence is an essential element of the
crime charged. That decision to confer
standing was based largely on a concern that the Commonwealth not be permitted
to argue that a defendant had possession for the purposes of establishing his
guilt but that he lacked sufficient connection with the contraband to have
standing to challenge its seizure. Id., 406 Mass. at 600, 550 N.E.2d
121. The automatic standing rule does
not aid the defendant here because the items he seeks to suppress (the
videotapes) are not contraband with whose unlawful possession he is
charged. In Commonwealth v. Manning, 406 Mass. 425, 429, 548 N.E.2d 1223
(1990), we discussed the theory of "target standing" whereby an
individual would gain standing to challenge the search of another, not to
protect any reasonable expectation of privacy, but to deter police
misconduct. We did not decide whether to
recognize target standing in the Manning
case because the record did not show that the police had intentionally engaged
in a violation of someone else's constitutional rights in order to obtain
evidence against the defendants.
[3] This
case does not present any reasonable basis for granting the defendant standing
to challenge the admission of the videotapes, even though he lacked standing on
the basis of a reasonable expectation of privacy. A recognition of standing in other
circumstances must have a foundation in serious police misconduct (such as
described in the Manning opinion) or
in fundamental unfairness (such as is discussed in the Amendola opinion). No
police misconduct or basic unfairness is involved here. The police obtained a search warrant that
authorized them to record the audio portion of the conversations. [408
Mass. 674] The affidavit in support of issuance of the
search warrant demonstrated ample probable cause to authorize the recording of
the conversations. As we have said (see
n. 2 above), G.L. c. 272, § 99, has no application to art. 14 issues. If we needed to reach question three, we
would answer it in the affirmative, upholding the admissibility of the audio
portion of the videotapes under art. 14 principles. (FN3)
The fact
that the police proceeded pursuant to a warrant authorizing the recording of
the conversations in the motel room eliminates any logical basis for granting
standing on the ground of police misconduct or basic unfairness. We need not, of course, decide how we would
answer questions one and three if the police had not obtained a search
warrant. The absence of a warrant
authorizing the seizure of the video portion of the tapes, a relatively minor
intrusion beyond the warranted audio recording, is not so egregious as to
confer special standing to challenge the video portion of the tapes.
Although
we have recognized that in certain circumstances art. 14 rights extend beyond those
stated in the Fourth Amendment in order to protect against improper government
conduct, the adoption of an exclusionary rule concerning the videotapes in this
case could have a materially adverse effect on the truthfinding function. The police officers will be permitted to
testify concerning the conduct and conversations in the motel room and would be
entitled to do so even if we were to suppress the videotapes in full.
Commonwealth v. Blood, supra, 400 Mass. at 77‑78, 507 N.E.2d
1029. Any rule that would exclude
objective evidence, presumably more accurate than human memory, of events
happening and words spoken in the motel room should have a strong
justification. A warrantless electronic
surveillance in a person's home, even with the consent of one participant in
the conversations, can provide that justification (Commonwealth v. Blood, supra ), and, even there, not everyone[408 Mass. 675] agrees (id., 400 Mass. at 78, 507 N.E.2d 1029,
Nolan, J., dissenting, joined by Lynch, J.).
The circumstances of this case, however, provide no reasonable
justification for excluding relevant, instructive, unbiased, and seemingly
accurate evidence bearing on the guilt or innocence of the defendant.
We answer
question one in the negative: the
defendant lacks standing to challenge the admissibility of the surveillance
videotapes. The answer to question two
is, of course, "No."
Questions three and four need no answers because they are asked on the
assumption that the defendant has standing.
LIACOS,
Chief Justice (dissenting).
The court
today holds that the defendant lacks standing to challenge the admissibility of
covertly obtained videotapes which show the defendant purchasing marihuana from
undercover State troopers. The analysis
adopted by the court to reach this result, however, could be applied just as
easily to deny standing to challenge secret videotapes of any number of legal
activities undertaken by citizens of this Commonwealth each day. Furthermore, the court's opinion will
encourage the police to engage in surreptitious videotaping without a warrant
specifically authorizing such activity.
The warrant in this case on which the court relies to justify the secret
videotaping activity, as well as the secret audio recording, is inappropriate
for both these forms of electronic surveillance. I am concerned that the impact of today's
decision will be to sanction unregulated covert electronic surveillance,
thereby diminishing the privacy rights of the people of this Commonwealth. Accordingly, I dissent.
The court
bases its denial of standing on the conclusion that the defendant could not
have had a reasonable expectation of privacy in his conversations in the motel
room. In support of this conclusion, the
court notes that: (1) the defendant was
negotiating a major business transaction with people he and his associates had
just met; (2) the negotiations took
place in a motel room which was registered in the name of a [408 Mass. 676] person
about whom the defendant knew almost nothing;
and (3) the transaction between the defendant and the State troopers was
conducted at "arm's length," with "manifestations of suspicion
and distrust." Ante at 1358. My difficulty with the court's analysis in
this regard is that the factors it considers in rejecting the defendant's
expectation of privacy as unreasonable would appear to apply with equal force
to a legitimate business meeting conducted in a hotel suite or conference
room. Many lawful business transactions
are carried out between strangers and in surroundings over which at least one
party may have no control. Furthermore,
it should surprise no one that many, if not most, legitimate business
negotiations are conducted at "arm's length" and involve "manifestations
of suspicion and distrust." Would
not society accept as reasonable, for example, a real estate buyer's
expectation that confidential negotiations regarding the sale of land conducted
in a hotel conference room rented by the seller would remain private? The reasonable expectation of privacy analysis
laid out by the court provides no guidance as to how this situation is
distinguished from that of the defendant.
If I am correct in my assessment of the court's opinion, the right of
our citizens to challenge covert electronic surveillance of legitimate private
activity will be improperly diminished.
The court
appears confident that privacy rights will not suffer as a result of its
opinion in part because the State troopers conducting the electronic
surveillance in this case had a search warrant.
The court recognizes that the warrant authorized only audio
surveillance, and not video surveillance, but concludes that the additional
unwarranted video surveillance was "a relatively minor intrusion beyond the
warranted audio recording." Ante at 1359. As an initial matter, I suggest that this
court should tread with extreme caution in approving the seizure of items not
specifically described in a search warrant.
Article 14 of the Massachusetts Declaration of Rights specifically
requires that all search warrants "be ... accompanied with a special
designation of the persons or objects of search, arrest, or seizure." See [408
Mass. 677] Commonwealth v. Rutkowski, 406 Mass. 673, 675‑676, 550
N.E.2d 362 (1990); Commonwealth v. Taylor, 383 Mass. 272, 275,
418 N.E.2d 1226 (1981). See also G.L. c.
276, § 2 ("[s]earch warrants ... shall particularly describe the property
or articles to be searched for").
The fact that a judge issued a warrant authorizing the State troopers in
this case to search for, and seize, one type of evidence should not be taken as
providing the police carte blanche to seize any evidence they can lay their
hands on. This court should be particularly sensitive to
the particularity requirement of art. 14 when the unwarranted search involves
electronic surveillance. Video
surveillance has been described as "exceedingly intrusive, especially in
combination ... with audio surveillance, and inherently indiscriminate, and ...
could be grossly abused‑‑to eliminate personal privacy as, understood
in modern Western nations." United States v. Torres, 751 F.2d 875,
882 (7th Cir.1984), cert. denied, 470
U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985). See
United States v. Cuevas‑Sanchez, 821 F.2d 248, 250 (5th Cir.1987)
(videotape surveillance described as a "potentially indiscriminate and
most intrusive method of surveillance"); Application for Order
Authorizing Interception of Oral Communications & Videotape Surveillance,
513 F.Supp. 421, 422 (D.Mass.1980) (combination of videotape and audio
surveillance described as "extraordinarily intrusive"). Given the exceptionally intrusive nature of
video surveillance, this court should be loath to allow the admission of covert
videotapes in the absence of a warrant specifically authorizing their use for a
particular purpose.
I am also
concerned with the court's conclusion that the audio surveillance in this case
was properly authorized by a warrant. Ante at 1356, 1359. The troopers recorded and seized the
conversations in the motel room pursuant to a search warrant obtained under
G.L. c. 276, §§ 1‑7 (1988 ed.), which provides in general for search
warrants. However, the Legislature has
provided a special procedure to obtain audio surveillance search warrants under
G.L. c. 272, § 99 (1988 ed.), which differs substantially from the terms of
G.L. c. 276, §§ 1‑7. The most
significant difference between the [408
Mass. 678] warrant procedures of the
two statutes is that under G.L. c. 272, § 99 E 3, a warrant applicant must show
that "normal investigative procedures have been tried and have failed or
reasonably appear unlikely to succeed if tried." This requirement demonstrates the
Legislature's intention that electronic surveillance of citizens by law enforcement
officials in this Commonwealth be the exception, and not the rule. This requirement, it would appear, is
directly linked to the Legislature's conclusion that "the uncontrolled
development and unrestricted use of modern electronic surveillance devices pose
grave dangers to the privacy of all citizens of the commonwealth." G.L. c. 272, § 99 A.
While a
warrant under G.L. c. 272, § 99, takes into account the Legislature's concern
with the dangers of electronic surveillance, a warrant to conduct electronic
surveillance under G.L. c. 276, §§ 1‑7, incorporates no such
concern. A c. 276 warrant could issue
irrespective of the fact that the evidence to be obtained through electronic
surveillance could be gathered easily through standard police procedures. Surreptitious electronic surveillance conducted
pursuant to c. 276 warrants could become a routine occurrence, unwarranted by
any particular need for the unique characteristics of electronic
surveillance. Such a result would be
likely to raise serious conflicts with the right to privacy guaranteed by art.
14. See, e.g., Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029 (1987). It is my opinion that a search warrant issued
under G.L. c. 276, §§ 1‑7, is inadequate to protect the privacy rights of
the citizens of this Commonwealth against the dangers of electronic
surveillance. Therefore, I would hold
that the warrant was inadequate to justify the audio or video surveillance of
the defendant in the present case. Accordingly,
I would exclude the audio and video recordings as the products of an
impermissible warrantless search.
"Since
it is the task of the law to form and protect, as well as mirror and reflect,
we should not, as judges, merely recite the expectations and risks without
examining the desirability of saddling them upon society. The critical question, therefore, is whether
under our system of government, as reflected [408 Mass. 679] in the
Constitution, we should impose on our citizens the risks of the electronic
listener or observer without at least the protection of a warrant requirement."
United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28
L.Ed.2d 453 (1971) (Harlan, J., dissenting).
The citizens of this Commonwealth should not have to live with the fear that at any given
moment they might be the subject of unauthorized covert electronic surveillance
by the police.
This court
previously has recognized the threat that electronic surveillance poses to an
individual's right of privacy. In Commonwealth v. Blood, supra, 400 Mass.
at 70, 507 N.E.2d 1029, we noted that "because the peculiar virtues of
[electronic eavesdropping] techniques are ones which threaten the privacy of
our most cherished possessions, our thoughts and emotions, these techniques are
peculiarly intrusive upon that sense of personal security which art. 14
commands us to protect." When
faced with the unique dangers of electronic surveillance, we should not allow
the fate of the privacy rights of the citizens of this Commonwealth to rest
upon the calculation of a standard as "manipulable" as expectation of
privacy analysis. See Commonwealth v. Amendola, 406 Mass.
592, 601, 550 N.E.2d 121 (1990). I would
hold that, regardless of an individual's expectation of privacy, art. 14
forbids the covert use of electronic surveillance by the police in the absence
of an appropriate warrant specifically authorizing such activity. In my view, such a holding would be
consistent also with the clear limitations on electronic surveillance set by
the Legislature by enacting G.L. c. 272, § 99.
This landmark statute, more restrictive than Federal law, see 18 U.S.C.
§§ 2510 et seq. (1970), and Commonwealth v. Thorpe, 384 Mass. 271,
288‑289, 424 N.E.2d 250 (1981) (Liacos, J., dissenting), cert. denied,
454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982), should be viewed as a
manifestation of the Legislature's attempt to meet its own constitutional
responsibility to carry out the mandate of art. 14. Were we to take this view, electronic
surveillance procedures would be available to law enforcement officials while
still subject to judicial review to prevent the unnecessary violation of art.
14 privacy rights. "It is the
purpose of the warrant requirement in art. 14 to [408 Mass. 680] subject
police suspicions to the scrutiny of 'a neutral and detached magistrate instead
of [leaving them to be] judged by the officer engaged in the often competitive
enterprise of ferreting out crime.' " Commonwealth v. Blood, supra, 400 Mass.
at 72‑73, 507 N.E.2d 1029, quoting
Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436
(1948). I dissent.
(FN1.) "1. Based on the facts of this
case, does the defendant have standing to challenge the admissibility of the
surveillance videotape?
"2.
Based on the facts of this case, does the defendant have standing to challenge
the admissibility of those portions of the surveillance videotape in which he
is not present?
"3.
As to any portions of the surveillance videotape which the defendant has
standing to challenge, is the audio component of the surveillance videotape,
made with the consent of a participating police officer and pursuant to a
search warrant prepared on a form issued under G.L. c. 276, §§ 1‑7, but
not issued under G.L. c. 272, § 99, admissible under article 14 of the
Massachusetts Declaration of Rights?
"4.
As to any portions of the videotape which the defendant has standing to
challenge, is the video component of the tape, made without a search warrant,
admissible under the Fourth Amendment and article 14 of the Massachusetts
Declaration of Rights?"
(FN2.) The judge has asked no substantive
question concerning the possible exclusion of the videotapes because they may
have been obtained in violation of the Massachusetts electronic surveillance
statute (G.L. c. 272, § 99 [1988 ed.] ).
Section 99 P grants a defendant a right to move to suppress the contents
of an intercepted communication in certain circumstances. It is doubtful, however, that § 99 is
applicable here. It appears, but we do
not decide, that there was no "interception" within the meaning of § 99
B 4 because Trooper McCabe consented to the recording and the investigation
involved a major drug sale. See Commonwealth v. Davis, 407 Mass. 1001,
551 N.E.2d 1201 (1990). In any event,
the wiretap statute presents issues entirely separate from art. 14 issues. We have not incorporated the requirements and
procedures of § 99 into art. 14. Commonwealth v. Davis, supra, 407 Mass.
at 1002, 551 N.E.2d 1201.
In
the application for a search warrant, Trooper McCabe explicitly noted that the
offenses he was investigating were "designated offenses" under § 99 B
7, a circumstance that, if true, would make § 99 inapplicable when coupled with
McCabe's consent to the interception.
The defendant makes no claim that, if § 99 is inapplicable, the police
lacked authority to obtain the warrant.
(FN3.)
No warrant would be needed under Fourth Amendment principles because of the
consent of Trooper McCabe. See United States v. Caceres, 440 U.S. 741,
749‑751, 99 S.Ct. 1465, 1470‑71, 59 L.Ed.2d 733 (1979);
United States v. White, 401 U.S. 745, 751‑753, 91 S.Ct. 1122,
1125‑27, 28 L.Ed.2d 453 (1971); Commonwealth v. Thorpe, 384 Mass. 271,
282, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71
L.Ed.2d 300 (1982). Question three asks
only about art. 14.