-: SJC-13285 Commonwealth V. Charee R. Rainey.
Staff: General McKenna.
-: Good afternoon.
If it please the court, Gail McKenna for Mr. Rainey.
There are three issues raised in this case.
The first being whether or not it was proper
to admit the illegal wire tap against the probationer
in this case.
I think this is a place where the statute
is abundantly clear and that it is illegal to disseminate
an illegal recording.
-: [Justice Wendlandt] Why does your client
have standing to assert the statute?
-: Well, you know,
the interesting thing is in the statute it talks
about standing and being an aggrieved party.
And in terms of being an aggrieved party,
that's to bring a civil action against
whoever made the illegal recording.
-: Right, so the statute set's forth at least that remedy.
Gail: However-
-: That's not available to your client.
-: No, and I agree with that.
However, I would contend that
submitting illegally recorded evidence,
which a statute specifically says cannot be disseminated,
that the client would have standing to object to that,
that it shouldn't have ever been admitted at all.
It's just a clear violation of the law.
It's just clearly illegal.
And it impinges on the judicial process
when we have something that is so highly protected
to suddenly come into evidence.
Where the counsel was ineffective in failing to object
or the court should have recognized it,
or the government never should have offered it
in the first place.
It should never have come into evidence.
So I would contend that it was simply, completely illegal.
It would be like-
-: Is it illegal for us to review the footage?
-: You know, that's a wonderful question.
-: Well, for one, I'd like an answer to it.
Gail: I believe-
-: Is that your client's position
that by viewing the footage,
the SJC has subjected itself to fines
and potential imprisonment?
-: Well, you know,
I think you can decide the case
without reviewing the recording.
Here we know the judge below did review the recording.
It's not impounded.
-: [Justice Wendlandt] So you're saying the judge below
is subject to fines
and imprisonment.
That that was the legislative intent.
-: That's what the legislature said.
And the reason that the legislature is so firm
on some of these things is that Massachusetts has
very stringent privacy laws.
And here we're protecting the privacy of a homeowner
from somebody coming in and recording.
Justice Kafker: She's invited the cops in
to protect her, right?
Gail: She has, but she-
-: She's invited 'em to protect her.
She wants obviously them to, you know,
hear her story and act on it,
take down what she's saying seriously.
Is this really a secret intercept?
Gail: Yes it is.
-: How can, how can that be?
This is, this is, this is basically,
a totally different situation than that.
The police have been invited in.
They're, they're doing,
they're not secretly doing anything except for he,
and he's announced, one thing I can't figure out factually,
he said he's recording,
but she may not have heard it, right?
What is the record on his, the police officer's announcement
of recording.
-: It's very late along in the tape,
where he's already taken the statement.
He's already spoken to the little girl
and then he's over in another side of the apartment,
and EMTs, and other people have started to arrive.
And at that point he says, really kind of surreptitiously,
"I'm recording."
Now, this is a very simple.
Justice Kafker: That little gloss-
-: [Justice Wendlandt] How can you say that surreptitiously.
(Judges chuckles)
-: He mumbled it to- -: Well,
he didn't say it loud enough
for everyone to hear and nod
and at that point it would've been too late anyway.
He's already done the recording.
-: Speaking of surreptitiously,
the one thing about the statute,
it does require that secretly hearing, secretly recording,
but here we've got the officer who is right there,
seeing it himself.
So if you were right,
would we just suppress the recording
but let the officer's observations in?
-: No, because the judge didn't credit them.
I mean the Commonwealth gets one shot at this,
and the judge relied specifically on the illegal recording.
And I do wanna get back to-
-: No, don't, I mean, you know,
your sisters out there and brothers normally are arguing,
"Wow, we really, we wanna make sure the police are not,
you know, lying to us."
And what better way of showing that than to
actually show exactly what they said because it's recorded.
-: But what is the simplest thing that one can do?
"May I record you?"
It's so simple, -: Yeah, I understand,
that's all he had to do. this may have violated the,
the BPS policy.
That's because he doesn't say it right when
he walks in, apparently.
He should have,
but that doesn't mean it's a secret intercept.
It may mean it's a violation of BPS's, you know,
tell people you've turned on your recorder, right.
-: Well and get permission.
But I think that we have to look at
the statute in terms of the case law.
We've had cases like Blood that tie this into
the "Declaration of Rights," and the privacy right,
the constitutional right.
We've had cases like, I believe it's Jackson,
where somebody recorded a kidnapper
and that was excluded because it was illegal.
-: But it was a secret intercept.
Gail: Right.
-: All those cases, except for I think, what is it, Hyde,
the case where the one with the first circuit reverses us.
Gail: Part. Yeah.
-: Excuse me.
Gail: They reversed you in part.
-: Yeah, that's the only case
that's not really an intercept case, right.
The cases that are more like this are the Booking case
and the decision Justice Fecteau wrote
for the appeals court.
Those are directly on point, right?
-: I'm sorry, which case?
-: [Justice Wendlandt] The Ashley Case.
-: Yeah, I just, all I remember is Judge Fecteau
wrote the case for the appeals court.
I can't remember,
I think Justice Wendlandt gave you the the citation.
Gail: Yeah, I-
-: [Justice Wendlandt] It's Ashley.
-: Oh, Ashley, right.
Ashley, where the defendant was recorded while he's
being interrogated. -: Right.
I mean, the point of the matter here is that
coming into someone's home,
recording them without telling them,
whether they're a victim, whether they've invited you in,
there's just no constitutional right or statutory right
that allows somebody to record you in those circumstances.
And the solution is very simple
and that's to ask permission.
I mean, it's not as though that, you know,
if this court rules that this
in particular was an illegal recording,
that it's going to subvert all of the good things
that have been done with body cams.
All it means is that when you go in someone's house
and you're talking to them,
you have to tell them that you've recorded them.
People don't expect anyone to come in their house
and start recording them, even police.
I mean, it's just a pure violation of the statute.
-: And obviously you want them taking notes.
You want them taking notes of everything you said, right.
You want them to accurately get it down.
-: Well, you know, the question here isn't about accuracy
or not accuracy.
The question here is that we have a statute
that also on the Blood and the "Declaration of Rights"
has been shown to have privacy implications
and that the statute is entitled to be enforced.
I mean this is pure and simple,
a surreptitious illegal recording
that then was presented in court without anyone
sort of alerting to the fact that the dissemination of this
is completely against the statute.
Now, there may be better policies out there,
but those policy determinations on whether
or not the statute should apply to body cameras
is best left for the legislature.
And I-
-: What do we do, -: Counsel, can I-
with the fact that the legislature has told us why
it's passing the wiretap statute in the written preamble.
That is too allow, -: Correct.
law enforcements to use these tools for purposes
of investigating organized crime,
and at the same time prevent private individuals
from using these intercepting devices
for their own private purposes,
that's actually built into the statute.
So it's not legislative history,
it's the written terms of the statute.
And then, you know,
you're trying to read the criminal aspects
or the sort of the civil fines, criminal aspects
in isolation, right.
But here we have a statute that in writing says,
"These are our purposes, in light of these purposes,
we're going to preclude secret recording
of oral communication."
-: Except that the statute goes on to say
that the only two times the police
can do a recording like this is with a warrant,
with judicial authority,
and in very limited one-party consent situations,
which involve, say an exigency
where somebody who's undercover is in danger,
that's specifically in the statute.
And that's what this court has enforced
throughout the history of the act,
which is those two things have to happen.
And in the instance where there is a warrant
and the Commonwealth is gonna present at a trial,
this type of evidence,
that the statute lays out what the Commonwealth needs to do
to even use this at trial.
And that starts with, they have to send it to the defendant.
The defendant gets to look at it,
and then the defendant has a right
under the statute to suppress,
which includes suppressing based on the lack of a warrant.
-: Yeah, and that brings me back to the standing issue.
It's like the statute itself has at least two remedies,
one's a civil remedy, which we've discussed before.
And then there's the motion to suppress in a criminal trial.
Why do you think the statute also applies
to probation revocation?
What in the statute,
given that it does have these two remedies,
gives your client the remedy of precluding
its use in connection
with a probation revocation proceeding.
-: It's completely and thoroughly forbidden. That's it.
-: [Justice Wendlandt] So your review of this videotape
would subject you to criminal fines
and potentially two years in the house of correction.
-: It would. It would.
I mean, I didn't alert on the issue
until I got into the case and I'd already watched the video.
But you know, that's one of the scary things
about dealing with this and that why-
-: [Justice Wendlandt] You think
that's what the legislature intended?
-: Yes, I do.
-: That you would be subject to civil fines
and possible imprisonment.
-: I do. -: Okay.
-: Counsel, I need to go back
to Justice Kafka's earlier point because I just,
my memories, I just disagree with you on this.
Assume for the sake of argument,
that it does apply to a probation revocation hearing.
And say the judge in this case
should not have relied on the tape.
The judge, if I remember correctly,
very distinctly made findings based on Hartfield,
on the record, that he credited the testimony
of the officer as to what the officer said
about what the mother said and what the daughter said.
He testified to what they said to him
about it was a verbal altercation,
it turned physical, and I asked the daughter
to call the police,
and the phone was knocked out of her hand.
All of those things the judge said he credited
based on the Hartfield factors.
So even if the recording itself
were not proper to be reviewed,
why couldn't the revocation be based on the testimony
of the same thing?
-: My memory is that
he didn't mention the office's testimony,
and that when he made his findings,
he relied specifically on the tape and what he had observed
and watched on the tape. -: When he was recounting,
the Hartfield factors then what was he going to?
-: The tape. -: The hearsay of the tape?
-: Correct. The hearsay of the tape.
And so, you know,
speaking about hearsay and the admission of hearsay
at hearings like this,
I would suggest to you that the Hartfield factors
are so broad that they virtually let anything at all in
and that they themselves don't result
in substantially reliable evidence being
before the court to make an accurate determination.
And I did suggest in my brief, as I will now too,
that the Rules of Evidence ought to apply.
There's no way that this would've been admitted anywhere
had the rules of evidence been applied.
And I think that there's been changes in the law
that sort of, we should be moving with, you know.
Crawford, Melendez-Diaz, cases that talk about
viewing evidence in different ways.
And I would suggest to the court that the Hartfield fact
is just, aren't a measure of reliability.
The measure of reliability that we have here
in the Commonwealth are the time tested
rules of evidence that we apply all the time.
The other problem is that if a defendant
doesn't really have notice of what Hartfield factors
are out there or what evidence is gonna come in.
Does he really have a due process notice
of what the evidence will be against him?
Because that determination is only made at the end
when the judge makes a determination whether or not
it was substantially reliable.
I also make an argument in the brief about suppression
in hearings like this.
And I would just say briefly,
'cause I see my time is running out,
that, you know, unfortunately,
because the probation surrender comes first,
unlike in Morrissey V. Brewer or Duling,
if someone is found to be in violation of their probation,
they are then sentenced.
And so that drives the result in the criminal case
within this pressure to plea out,
in order to get concurrent time.
So in effect, the illegality of evidence
or collection of evidence never gets tested at all
in the Commonwealth.
And it is just more fear to allow
suppression in these types of, in a probation surrender.
And that happened in Morrissey V. Brewer,
which the court found that there was
a questionable confession
and that was part of the driving force
in Morrissey V. Brewer.
So unless there's any other questions,
thank you all for your kind attention
and for rescheduling for me, I'm very appreciative.
And I would otherwise rest on the papers.
-: Thank you, Ms. McKenna.
-: Brooke Hartley.
-: Good morning and may it please the court,
Brooke Hartley for the Commonwealth.
This court should affirm
the revocation of the defendant's probation
for three reasons.
First, the wiretap statute does not apply
to a police officer using a body worn camera responding
to a domestic violence call.
Second, even if the wiretap statute did apply here,
the recording would be admissible
at a probation revocation hearing.
And third, even if the body worn camera was excluded,
in this case, revocation was still proper
because I disagree with my sister,
the judge did credit the officer's testimony
and that was sufficient here.
Unless the court has specific questions,
I'll start with the wiretap issue,
which my sister seemed to focus on.
So the purpose of the statute is to allow police
to investigate organized crime with technology,
but to generally protect this very narrow privacy right,
which is a private right to private communications.
And the statute was not intended
to protect conversations
that were not meant to be private.
-: How about our Hyde case?
Is Hyde the case where somebody records the police-
Brooke: The police officer, yes.
-: It seems it's a little out of your sort of core
that you just described, isn't it?
I just can't tell. Was that just wrong, Hyde?
Was our case wrong?
-: So I think the exception,
you mean Hyde was ultimately reversed?
-: Well, Hyde's reversed on other grounds,
but First Amendment grounds.
But is Hyde a misinterpretation of what an intercept is?
-: No, I don't think so.
So an interception,
the critical question in determining
whether there was interception
is whether there was a surreptitious recording
and that's what this court discussed in Gordon
and what the appeals court in the context of a-
Justice Kafker: Was Hyde surreptitious or not?
I just don't remember.
-: Yes, it was.
-: He- -: How was it surreptitious?
-: He was secretly recording on his phone.
And I think in Hyde,
the court said it would've been a different case if,
for example, he was holding his phone out
or it was clear that he was using a recording device,
but it wasn't in Hyde.
So it was in fact a surreptitious recording.
So a-
Justice Kafker: That's the key element here that.
-: Yes, yes, and- -: Okay.
-: And why is it not secret here?
'Cause he doesn't tell her that he's recording,
and I guess these things don't light up.
So why is this not secret, I guess?
-: Well, so first of all,
I would just point out that I think this
is a very difficult case to even reach this issue on.
The court doesn't need to reach the wiretap issue.
But it's a very difficult case to-
-: Well, now if we don't,
if it's illegal to do this,
and it's a key component of what the judge relies on,
which it is, you're in trouble.
Brooke: Well-
Justice Cypher: Doesn't the exclusionary rule,
it doesn't apply in probation.
-: It doesn't apply.
That's where I was going with that.
But even still, I would just note
that it's difficult because this wasn't raised below.
So we don't have anything in the record below about notice.
Now the-
-: Don't know if it was like this big or this big
or where it is. -: Correct.
-: We don't know if there was a red light on, we don't know,
for instance, if the other officer came in before and said,
"My officer's coming behind me,
he's gonna be recording you."
There was nothing in the record.
No one was asked about notice.
But of course the Commonwealth's position is that
notice wasn't required here
because it wasn't a surreptitious recording.
And I-
-: Again, just help me out here
'cause I agree with you
this isn't what the legislature intended.
But I don't quite know why this isn't secret
based on this record.
That's because she wasn't, how do we get over that here?
I mean-
-: So I think Gordon is instructive or excuse me,
I think Gordon is instructive,
but also Ashley is instructive here.
And there, the court found that the statute was not violated
by a recording of a police interrogation,
despite the fact that the judge found
that the defendant did not know that he was-
-: Is he the same as the civilian in Hyde
holding up his phone.
Right, if we said that the civilian holding up
his phone wasn't surreptitious,
this is a recording out in the open.
-: Certainly, I think that's a possibility.
But again, I think we just don't have the facts
from the hearing because it wasn't raised below.
So we don't have anything from the victim
about whether she saw the camera, or how big it was,
or anything like that.
But it's certainly very possible that it was obvious
and notice isn't an issue,
even if the wiretap statute were implicated.
-: Which way does that cut?
The fact that the record is devoid
of any information from which we can garner
whether or not the victim knew that she was being recorded.
-: So in this case, I think we can speak in generalities
about it without having that information because again,
because this was not intended to be a private conversation
and therefore was not a surreptitious recording.
I don't think we even need to talk about notice.
And I would also-
-: But the statute applies to secret hearing
and also secret recording, both.
Brooke: Correct.
-: So if she, if the record is devoid
from any information from which we can garner whether
or not she knew she was being recorded,
literally under the terms of the statute,
if we read it literally, it violated the statute.
-: I'm not sure that's true because of the way this court
and Ashley have interpreted that language
about what an interception is.
-: Well it was, if she didn't know she was being recorded,
it's almost by definition a surreptitious recording.
Brooke: No, I think I would disagree with that,
Your Honor. -: Explain that.
-: Yeah, so the statute prohibits an interception
and under B, 4, that is defined as,
like Your Honor said,
"To secretly hear, secretly record
through an intercepting device by any person
other than the person given prior authority."
And so this court and the appeals court
have interpreted this language to specifically refer
to a surreptitious eavesdropping.
So even if she didn't have notice,
that doesn't necessarily mean
that it was a surreptitious eavesdropping
because a surreptitious eavesdropping would need to be
a secret recording of a conversation
that was intended to be private.
-: You're just saying that the secret recording,
you're analyzing the person recording,
not the person who's being recorded.
-: Yes, I think that's right, Your Honor.
-: I think if we can go just back
to Justice Wendlandt's question though,
when the record is devoid of that,
who does that help and hurt?
Because one way to look at it would be
that the foundation wasn't laid to put in the recording
and another way to look at it would be no,
there was no objection based on the lack of foundation.
So who has that burden of production?
-: So again, because it's a probation revocation hearing,
I'm not sure that would be an issue here.
-: No, I'm obviously if there's no suppression,
even if it was illegal,
you don't have to worry about a question like this.
Brooke: Okay.
-: But, well maybe you do.
Maybe you do because the question is to that is,
what's the foundation required to put it in?
Can probation just put in the recording
and if the probation or objects
they have to raise the objection?
Or is it part of the requirement
to put in the recording that you've satisfied
that it's not secretly recorded and secretly heard.
-: I think probation can just put in the recording.
I don't think it's necessary to satisfy
that element where the wiretap statute
isn't implicated at all.
-: But so let's deal with the case that's really close,
which is Jackson. -: Sure.
Right, the defendant in that case was recorded
and the court, this court, not the appeals court,
this court held that the secret recording violated
the wiretap statute.
Now the evidence ultimately came in
because the defendants had said,
"I know you're recording this."
But here we don't have the victim saying,
"I know you're recording this."
-: So, and in Jackson that was a different situation
because it was a phone call being recorded,
-: [Justice Wendlandt] Yeah.
-: And it was a surreptitious recording.
This is a case where you have the victim,
who called the police,
who invited the officer into her home.
-: Oh, so to just to stop you there.
So here in that case, the defendant called the ransom.
So there's the same, right.
The victim called here and did Jackson,
the defendant called the phone.
-: Correct. -: Yeah.
I think the distinction there is
that the victim called the police.
And she called the police to report a crime.
And she called the police to give them information
to help them in an investigation
that presumably is going to be memorialized
in a police report and used in the investigation
of this defendant.
-: Does the word interception help you?
I mean, again, I have two football players here,
but usually you're intercepting something directed
to somebody else, right?
This is talking directly to you.
I'm just wondering is the word interception
add another element to this
that we should be focusing in on?
Which is you're getting in between a communication
between two-
-: I'm not sure.
If you look at Jackson,
I'm not sure that holds true
because they're the person recording
is the person receiving the information.
So I think again, I sound like a broken record,
but the critical question is whether it was surreptitious.
-: I'm a bit confused.
So if the police went in there
and suppose the police officer had an old fashioned bug,
which is what this statute started out as,
hidden in his clothing,
and he recorded the person making the complaint,
is it your position
that it wouldn't be a surreptitious contraception?
Brook: Yes.
-: Because it's a complaint to a police officer.
That's your bottom line. -: Yes, yes.
Where is that in the statute?
-: I'm sorry, Your Honor.
Justice Gaziano: Where is that in the statute?
-: So I think that falls
under the definition of interception,
which is, it's not a surreptitious recording
because this is a person giving information
to a police officer that's,
she does not intend for this police officer
to keep it private or for this conversation
to be kept private.
Now, it might be a different situation
if the police officer came to the door,
and was waiting outside, and turned on his body camera,
and started recording a conversation
she was having in the home.
I think that would be a surreptitious recording.
But that's very different than what we have here.
-: You invite somebody to your home,
you expect them to record you, the police?
-: Well, she was speaking to him,
and she was giving him information.
So I, and I don't,
I think this is completely separate
and apart from a Fourth Amendment,
reasonable expectation of privacy analysis.
We know-
-: But you're limiting the wiretap statute,
at least you're reading of it to that Fourth Amendment,
reasonable expectation of privacy.
Brooke: No, Your Honor. No, Your Honor.
-: I thought that was your point.
That she invited the police to her home
to report to the police what had happened to her.
-: No, I don't think that's true.
I think there are certainly situations
where an individual would have a reasonable expectation
of privacy and there would be a violation
of the wiretap statute and vice versa.
And I think that's very obvious from this court's decisions-
-: I don't have the statute in front of me,
do the words, "Private conversation," appear in the statute?
-: No, your Honor.
That is taken from this court
and the Massachusetts Appeals Court's interpretation
of the meaning of interception,
and that's Gordon and that's Ashley.
So those words are not in the statute, no.
-: But both of those cases are not
about the meaning of interception.
Both of those cases are about,
we don't think the legislature intended this.
-: Yeah, it's a book and photo.
It's the book and room and it's a-
-: Yeah, it, yeah.
Not about interpreting -: So I think it is about-
the language of the statute.
They're saying, in the context,
literally the statute could read on this.
But we're not gonna,
the legislature's got more commonsense than that.
That might be your strongest argument,
not the literal words -: I think,
of the statute. -: those two things
are related.
I think that's absolutely true
that this is not what the legislature was intending
to protect.
And I do think that those cases, Ashley and Gordon,
do talk about the meaning of interception.
-: And they say plainly, if you just read the words.
They're included. -: Yes,
a technical application of the statute
might yield different results,
but that could not have been the legislature's intent.
-: Right, and so that's why I'm suggesting
that might be your strongest argument.
It's not the legislature.
Well, unless the legislature tells us,
we intend your co-counsel to be subject to fines
and criminal penalties in the house of correction,
we're not gonna assume that this language means
what it literally means.
-: I think that's true.
And again, I think that's because
of what interception means,
but what the court has interpreted interception to mean.
-: So if the person who annoys me
on the Commuter Rail speaks on a cell phone, right?
And I take out my cell phone, I start recording that person,
that's not a wiretap violation
because the person's blabbing in the public?
-: So again, I think we have to separate
the reasonable expectation of privacy and-
-: Nope, nope, we're going statutory language.
-: Yes, so I think it's possible that it would be a violation
of the wiretap statue
if, if it's, well, actually I take that back.
I think the person is not intending that that speech
to be kept private if they're blabbing right next to you
on a train full of other people.
-: The recording?
-: Yes, so I think if this happened somewhere else,
it's possible.
You know, if two people were having a conversation
on the street and there was-
-: If two people in front of me in the Commuter Rail,
are having a quiet conversation,
and I take my cell phone out
and I record them 'cause I'm a creep.
Is that a interception?
-: I think we would have to look carefully
at the facts there,
but I think it's possible that it would be an interception
if that was a conversation intended to be kept private.
-: Right, I don't get this distinction,
but we'll figure it out.
(everyone chuckles)
-: If the court has further questions on the wiretap statute,
I'm happy to answer.
Otherwise, I see that I'm out of time.
Would the court like me to briefly address
the other two points? -: I think we're all set.
-: Yeah, we're all set. -: Okay.