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<v ->SJC-13285 Commonwealth V. Charee R. Rainey.</v>

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<v Staff>General McKenna.</v>

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<v ->Good afternoon.</v>

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If it please the court, Gail McKenna for Mr. Rainey.

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There are three issues raised in this case.

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The first being whether or not it was proper

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to admit the illegal wire tap against the probationer

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in this case.

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I think this is a place where the statute

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is abundantly clear and that it is illegal to disseminate

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an illegal recording.

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<v ->[Justice Wendlandt] Why does your client</v>

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have standing to assert the statute?

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<v ->Well, you know,</v>

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the interesting thing is in the statute it talks

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about standing and being an aggrieved party.

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And in terms of being an aggrieved party,

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that's to bring a civil action against

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whoever made the illegal recording.

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<v ->Right, so the statute set's forth at least that remedy.</v>

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<v Gail>However-</v>

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<v ->That's not available to your client.</v>

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<v ->No, and I agree with that.</v>

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However, I would contend that

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submitting illegally recorded evidence,

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which a statute specifically says cannot be disseminated,

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that the client would have standing to object to that,

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that it shouldn't have ever been admitted at all.

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It's just a clear violation of the law.

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It's just clearly illegal.

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And it impinges on the judicial process

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when we have something that is so highly protected

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to suddenly come into evidence.

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Where the counsel was ineffective in failing to object

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or the court should have recognized it,

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or the government never should have offered it

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in the first place.

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It should never have come into evidence.

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So I would contend that it was simply, completely illegal.

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It would be like-

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<v ->Is it illegal for us to review the footage?</v>

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<v ->You know, that's a wonderful question.</v>

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<v ->Well, for one, I'd like an answer to it.</v>

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<v Gail>I believe-</v>

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<v ->Is that your client's position</v>

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that by viewing the footage,

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the SJC has subjected itself to fines

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and potential imprisonment?

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<v ->Well, you know,</v>

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I think you can decide the case

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without reviewing the recording.

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Here we know the judge below did review the recording.

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It's not impounded.

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<v ->[Justice Wendlandt] So you're saying the judge below</v>

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is subject to fines

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and imprisonment.

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That that was the legislative intent.

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<v ->That's what the legislature said.</v>

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And the reason that the legislature is so firm

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on some of these things is that Massachusetts has

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very stringent privacy laws.

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And here we're protecting the privacy of a homeowner

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from somebody coming in and recording.

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<v Justice Kafker>She's invited the cops in</v>

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to protect her, right?

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<v Gail>She has, but she-</v>

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<v ->She's invited 'em to protect her.</v>

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She wants obviously them to, you know,

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hear her story and act on it,

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take down what she's saying seriously.

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Is this really a secret intercept?

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<v Gail>Yes it is.</v>

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<v ->How can, how can that be?</v>

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This is, this is, this is basically,

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a totally different situation than that.

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The police have been invited in.

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They're, they're doing,

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they're not secretly doing anything except for he,

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and he's announced, one thing I can't figure out factually,

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he said he's recording,

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but she may not have heard it, right?

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What is the record on his, the police officer's announcement

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of recording.

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<v ->It's very late along in the tape,</v>

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where he's already taken the statement.

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He's already spoken to the little girl

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and then he's over in another side of the apartment,

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and EMTs, and other people have started to arrive.

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And at that point he says, really kind of surreptitiously,

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"I'm recording."

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Now, this is a very simple.

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<v Justice Kafker>That little gloss-</v>

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<v ->[Justice Wendlandt] How can you say that surreptitiously.</v>

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(Judges chuckles)

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<v ->He mumbled it to-</v>
<v ->Well,</v>

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he didn't say it loud enough

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for everyone to hear and nod

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and at that point it would've been too late anyway.

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He's already done the recording.

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<v ->Speaking of surreptitiously,</v>

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the one thing about the statute,

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it does require that secretly hearing, secretly recording,

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but here we've got the officer who is right there,

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seeing it himself.

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So if you were right,

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would we just suppress the recording

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but let the officer's observations in?

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<v ->No, because the judge didn't credit them.</v>

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I mean the Commonwealth gets one shot at this,

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and the judge relied specifically on the illegal recording.

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And I do wanna get back to-

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<v ->No, don't, I mean, you know,</v>

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your sisters out there and brothers normally are arguing,

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"Wow, we really, we wanna make sure the police are not,

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you know, lying to us."

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And what better way of showing that than to

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actually show exactly what they said because it's recorded.

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<v ->But what is the simplest thing that one can do?</v>

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"May I record you?"

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It's so simple,
<v ->Yeah, I understand,</v>

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that's all he had to do.
this may have violated the,

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the BPS policy.

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That's because he doesn't say it right when

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he walks in, apparently.

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He should have,

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but that doesn't mean it's a secret intercept.

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It may mean it's a violation of BPS's, you know,

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tell people you've turned on your recorder, right.

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<v ->Well and get permission.</v>

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But I think that we have to look at

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the statute in terms of the case law.

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We've had cases like Blood that tie this into

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the "Declaration of Rights," and the privacy right,

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the constitutional right.

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We've had cases like, I believe it's Jackson,

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where somebody recorded a kidnapper

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and that was excluded because it was illegal.

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<v ->But it was a secret intercept.</v>

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<v Gail>Right.</v>

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<v ->All those cases, except for I think, what is it, Hyde,</v>

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the case where the one with the first circuit reverses us.

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<v Gail>Part. Yeah.</v>

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<v ->Excuse me.</v>

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<v Gail>They reversed you in part.</v>

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<v ->Yeah, that's the only case</v>

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that's not really an intercept case, right.

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The cases that are more like this are the Booking case

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and the decision Justice Fecteau wrote

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for the appeals court.

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Those are directly on point, right?

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<v ->I'm sorry, which case?</v>

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<v ->[Justice Wendlandt] The Ashley Case.</v>

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<v ->Yeah, I just, all I remember is Judge Fecteau</v>

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wrote the case for the appeals court.

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I can't remember,

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I think Justice Wendlandt gave you the the citation.

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<v Gail>Yeah, I-</v>

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<v ->[Justice Wendlandt] It's Ashley.</v>

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<v ->Oh, Ashley, right.</v>

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Ashley, where the defendant was recorded while he's

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being interrogated.
<v ->Right.</v>

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I mean, the point of the matter here is that

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coming into someone's home,

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recording them without telling them,

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whether they're a victim, whether they've invited you in,

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there's just no constitutional right or statutory right

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that allows somebody to record you in those circumstances.

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And the solution is very simple

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and that's to ask permission.

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I mean, it's not as though that, you know,

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if this court rules that this

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in particular was an illegal recording,

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that it's going to subvert all of the good things

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that have been done with body cams.

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All it means is that when you go in someone's house

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and you're talking to them,

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you have to tell them that you've recorded them.

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People don't expect anyone to come in their house

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and start recording them, even police.

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I mean, it's just a pure violation of the statute.

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<v ->And obviously you want them taking notes.</v>

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You want them taking notes of everything you said, right.

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You want them to accurately get it down.

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<v ->Well, you know, the question here isn't about accuracy</v>

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or not accuracy.

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The question here is that we have a statute

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that also on the Blood and the "Declaration of Rights"

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has been shown to have privacy implications

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and that the statute is entitled to be enforced.

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I mean this is pure and simple,

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a surreptitious illegal recording

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that then was presented in court without anyone

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sort of alerting to the fact that the dissemination of this

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is completely against the statute.

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Now, there may be better policies out there,

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but those policy determinations on whether

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or not the statute should apply to body cameras

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is best left for the legislature.

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And I-

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<v ->What do we do,</v>
<v ->Counsel, can I-</v>

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with the fact that the legislature has told us why

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it's passing the wiretap statute in the written preamble.

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That is too allow,
<v ->Correct.</v>

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law enforcements to use these tools for purposes

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of investigating organized crime,

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and at the same time prevent private individuals

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from using these intercepting devices

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for their own private purposes,

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that's actually built into the statute.

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So it's not legislative history,

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it's the written terms of the statute.

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And then, you know,

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you're trying to read the criminal aspects

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or the sort of the civil fines, criminal aspects

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in isolation, right.

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But here we have a statute that in writing says,

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"These are our purposes, in light of these purposes,

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we're going to preclude secret recording

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of oral communication."

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<v ->Except that the statute goes on to say</v>

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that the only two times the police

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can do a recording like this is with a warrant,

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with judicial authority,

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and in very limited one-party consent situations,

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which involve, say an exigency

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where somebody who's undercover is in danger,

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that's specifically in the statute.

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And that's what this court has enforced

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throughout the history of the act,

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which is those two things have to happen.

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And in the instance where there is a warrant

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and the Commonwealth is gonna present at a trial,

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this type of evidence,

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that the statute lays out what the Commonwealth needs to do

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to even use this at trial.

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And that starts with, they have to send it to the defendant.

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The defendant gets to look at it,

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and then the defendant has a right

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under the statute to suppress,

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which includes suppressing based on the lack of a warrant.

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<v ->Yeah, and that brings me back to the standing issue.</v>

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It's like the statute itself has at least two remedies,

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one's a civil remedy, which we've discussed before.

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And then there's the motion to suppress in a criminal trial.

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Why do you think the statute also applies

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to probation revocation?

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What in the statute,

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given that it does have these two remedies,

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gives your client the remedy of precluding

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its use in connection

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with a probation revocation proceeding.

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<v ->It's completely and thoroughly forbidden. That's it.</v>

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<v ->[Justice Wendlandt] So your review of this videotape</v>

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would subject you to criminal fines

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and potentially two years in the house of correction.

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<v ->It would. It would.</v>

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I mean, I didn't alert on the issue

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00:11:17.160 --> 00:11:19.980
until I got into the case and I'd already watched the video.

259
00:11:19.980 --> 00:11:23.490
But you know, that's one of the scary things

260
00:11:23.490 --> 00:11:25.853
about dealing with this and that why-

261
00:11:25.853 --> 00:11:26.686
<v ->[Justice Wendlandt] You think</v>

262
00:11:26.686 --> 00:11:28.050
that's what the legislature intended?

263
00:11:28.050 --> 00:11:29.190
<v ->Yes, I do.</v>

264
00:11:29.190 --> 00:11:31.710
<v ->That you would be subject to civil fines</v>

265
00:11:31.710 --> 00:11:34.440
and possible imprisonment.

266
00:11:34.440 --> 00:11:35.310
<v ->I do.</v>
<v ->Okay.</v>

267
00:11:35.310 --> 00:11:36.690
<v ->Counsel, I need to go back</v>

268
00:11:36.690 --> 00:11:39.450
to Justice Kafka's earlier point because I just,

269
00:11:39.450 --> 00:11:42.090
my memories, I just disagree with you on this.

270
00:11:42.090 --> 00:11:43.500
Assume for the sake of argument,

271
00:11:43.500 --> 00:11:46.170
that it does apply to a probation revocation hearing.

272
00:11:46.170 --> 00:11:48.330
And say the judge in this case

273
00:11:48.330 --> 00:11:51.390
should not have relied on the tape.

274
00:11:51.390 --> 00:11:52.980
The judge, if I remember correctly,

275
00:11:52.980 --> 00:11:57.930
very distinctly made findings based on Hartfield,

276
00:11:57.930 --> 00:12:02.250
on the record, that he credited the testimony

277
00:12:02.250 --> 00:12:06.570
of the officer as to what the officer said

278
00:12:06.570 --> 00:12:10.260
about what the mother said and what the daughter said.

279
00:12:10.260 --> 00:12:12.630
He testified to what they said to him

280
00:12:12.630 --> 00:12:16.080
about it was a verbal altercation,

281
00:12:16.080 --> 00:12:19.410
it turned physical, and I asked the daughter

282
00:12:19.410 --> 00:12:20.670
to call the police,

283
00:12:20.670 --> 00:12:22.590
and the phone was knocked out of her hand.

284
00:12:22.590 --> 00:12:25.830
All of those things the judge said he credited

285
00:12:25.830 --> 00:12:27.990
based on the Hartfield factors.

286
00:12:27.990 --> 00:12:31.920
So even if the recording itself

287
00:12:31.920 --> 00:12:36.030
were not proper to be reviewed,

288
00:12:36.030 --> 00:12:39.840
why couldn't the revocation be based on the testimony

289
00:12:39.840 --> 00:12:41.250
of the same thing?

290
00:12:41.250 --> 00:12:42.330
<v ->My memory is that</v>

291
00:12:42.330 --> 00:12:44.970
he didn't mention the office's testimony,

292
00:12:44.970 --> 00:12:46.680
and that when he made his findings,

293
00:12:46.680 --> 00:12:50.250
he relied specifically on the tape and what he had observed

294
00:12:50.250 --> 00:12:52.243
and watched on the tape.
<v ->When he was recounting,</v>

295
00:12:52.243 --> 00:12:54.558
the Hartfield factors then what was he going to?

296
00:12:54.558 --> 00:12:55.703
<v ->The tape.</v>
<v ->The hearsay of the tape?</v>

297
00:12:56.940 --> 00:12:58.740
<v ->Correct. The hearsay of the tape.</v>

298
00:12:58.740 --> 00:12:59.910
And so, you know,

299
00:12:59.910 --> 00:13:02.880
speaking about hearsay and the admission of hearsay

300
00:13:02.880 --> 00:13:04.650
at hearings like this,

301
00:13:04.650 --> 00:13:07.200
I would suggest to you that the Hartfield factors

302
00:13:07.200 --> 00:13:11.490
are so broad that they virtually let anything at all in

303
00:13:11.490 --> 00:13:13.320
and that they themselves don't result

304
00:13:13.320 --> 00:13:16.140
in substantially reliable evidence being

305
00:13:16.140 --> 00:13:19.110
before the court to make an accurate determination.

306
00:13:19.110 --> 00:13:22.410
And I did suggest in my brief, as I will now too,

307
00:13:22.410 --> 00:13:24.840
that the Rules of Evidence ought to apply.

308
00:13:24.840 --> 00:13:27.990
There's no way that this would've been admitted anywhere

309
00:13:27.990 --> 00:13:30.720
had the rules of evidence been applied.

310
00:13:30.720 --> 00:13:32.790
And I think that there's been changes in the law

311
00:13:32.790 --> 00:13:37.020
that sort of, we should be moving with, you know.

312
00:13:37.020 --> 00:13:41.310
Crawford, Melendez-Diaz, cases that talk about

313
00:13:41.310 --> 00:13:43.950
viewing evidence in different ways.

314
00:13:43.950 --> 00:13:46.830
And I would suggest to the court that the Hartfield fact

315
00:13:46.830 --> 00:13:50.130
is just, aren't a measure of reliability.

316
00:13:50.130 --> 00:13:52.050
The measure of reliability that we have here

317
00:13:52.050 --> 00:13:54.270
in the Commonwealth are the time tested

318
00:13:54.270 --> 00:13:57.000
rules of evidence that we apply all the time.

319
00:13:57.000 --> 00:13:59.370
The other problem is that if a defendant

320
00:13:59.370 --> 00:14:02.100
doesn't really have notice of what Hartfield factors

321
00:14:02.100 --> 00:14:04.470
are out there or what evidence is gonna come in.

322
00:14:04.470 --> 00:14:07.020
Does he really have a due process notice

323
00:14:07.020 --> 00:14:09.210
of what the evidence will be against him?

324
00:14:09.210 --> 00:14:12.060
Because that determination is only made at the end

325
00:14:12.060 --> 00:14:15.150
when the judge makes a determination whether or not

326
00:14:15.150 --> 00:14:18.480
it was substantially reliable.

327
00:14:18.480 --> 00:14:21.650
I also make an argument in the brief about suppression

328
00:14:24.720 --> 00:14:25.770
in hearings like this.

329
00:14:25.770 --> 00:14:26.940
And I would just say briefly,

330
00:14:26.940 --> 00:14:28.018
'cause I see my time is running out,

331
00:14:28.018 --> 00:14:30.180
that, you know, unfortunately,

332
00:14:30.180 --> 00:14:33.480
because the probation surrender comes first,

333
00:14:33.480 --> 00:14:36.843
unlike in Morrissey V. Brewer or Duling,

334
00:14:39.540 --> 00:14:43.050
if someone is found to be in violation of their probation,

335
00:14:43.050 --> 00:14:44.670
they are then sentenced.

336
00:14:44.670 --> 00:14:47.280
And so that drives the result in the criminal case

337
00:14:47.280 --> 00:14:51.540
within this pressure to plea out,

338
00:14:51.540 --> 00:14:53.460
in order to get concurrent time.

339
00:14:53.460 --> 00:14:56.250
So in effect, the illegality of evidence

340
00:14:56.250 --> 00:14:59.550
or collection of evidence never gets tested at all

341
00:14:59.550 --> 00:15:00.600
in the Commonwealth.

342
00:15:00.600 --> 00:15:03.850
And it is just more fear to allow

343
00:15:04.920 --> 00:15:09.690
suppression in these types of, in a probation surrender.

344
00:15:09.690 --> 00:15:11.610
And that happened in Morrissey V. Brewer,

345
00:15:11.610 --> 00:15:16.610
which the court found that there was

346
00:15:18.330 --> 00:15:19.512
a questionable confession

347
00:15:19.512 --> 00:15:22.110
and that was part of the driving force

348
00:15:22.110 --> 00:15:23.820
in Morrissey V. Brewer.

349
00:15:23.820 --> 00:15:25.830
So unless there's any other questions,

350
00:15:25.830 --> 00:15:27.510
thank you all for your kind attention

351
00:15:27.510 --> 00:15:30.120
and for rescheduling for me, I'm very appreciative.

352
00:15:30.120 --> 00:15:32.580
And I would otherwise rest on the papers.

353
00:15:32.580 --> 00:15:36.264
<v ->Thank you, Ms. McKenna.</v>

354
00:15:36.264 --> 00:15:37.681
<v ->Brooke Hartley.</v>

355
00:15:45.360 --> 00:15:46.710
<v ->Good morning and may it please the court,</v>

356
00:15:46.710 --> 00:15:48.420
Brooke Hartley for the Commonwealth.

357
00:15:48.420 --> 00:15:49.827
This court should affirm

358
00:15:49.827 --> 00:15:52.380
the revocation of the defendant's probation

359
00:15:52.380 --> 00:15:53.730
for three reasons.

360
00:15:53.730 --> 00:15:56.190
First, the wiretap statute does not apply

361
00:15:56.190 --> 00:15:59.070
to a police officer using a body worn camera responding

362
00:15:59.070 --> 00:16:01.410
to a domestic violence call.

363
00:16:01.410 --> 00:16:06.240
Second, even if the wiretap statute did apply here,

364
00:16:06.240 --> 00:16:07.620
the recording would be admissible

365
00:16:07.620 --> 00:16:09.510
at a probation revocation hearing.

366
00:16:09.510 --> 00:16:12.690
And third, even if the body worn camera was excluded,

367
00:16:12.690 --> 00:16:15.330
in this case, revocation was still proper

368
00:16:15.330 --> 00:16:16.950
because I disagree with my sister,

369
00:16:16.950 --> 00:16:19.350
the judge did credit the officer's testimony

370
00:16:19.350 --> 00:16:21.270
and that was sufficient here.

371
00:16:21.270 --> 00:16:24.030
Unless the court has specific questions,

372
00:16:24.030 --> 00:16:25.440
I'll start with the wiretap issue,

373
00:16:25.440 --> 00:16:27.453
which my sister seemed to focus on.

374
00:16:28.680 --> 00:16:33.623
So the purpose of the statute is to allow police

375
00:16:34.620 --> 00:16:37.590
to investigate organized crime with technology,

376
00:16:37.590 --> 00:16:40.830
but to generally protect this very narrow privacy right,

377
00:16:40.830 --> 00:16:43.800
which is a private right to private communications.

378
00:16:43.800 --> 00:16:46.200
And the statute was not intended

379
00:16:46.200 --> 00:16:48.420
to protect conversations

380
00:16:48.420 --> 00:16:51.120
that were not meant to be private.

381
00:16:51.120 --> 00:16:53.550
<v ->How about our Hyde case?</v>

382
00:16:53.550 --> 00:16:57.297
Is Hyde the case where somebody records the police-

383
00:16:57.297 --> 00:16:59.790
<v Brooke>The police officer, yes.</v>

384
00:16:59.790 --> 00:17:03.780
<v ->It seems it's a little out of your sort of core</v>

385
00:17:03.780 --> 00:17:06.120
that you just described, isn't it?

386
00:17:06.120 --> 00:17:09.060
I just can't tell. Was that just wrong, Hyde?

387
00:17:09.060 --> 00:17:09.893
Was our case wrong?

388
00:17:09.893 --> 00:17:12.540
<v ->So I think the exception,</v>

389
00:17:12.540 --> 00:17:14.970
you mean Hyde was ultimately reversed?

390
00:17:14.970 --> 00:17:17.010
<v ->Well, Hyde's reversed on other grounds,</v>

391
00:17:17.010 --> 00:17:18.900
but First Amendment grounds.

392
00:17:18.900 --> 00:17:23.190
But is Hyde a misinterpretation of what an intercept is?

393
00:17:23.190 --> 00:17:24.240
<v ->No, I don't think so.</v>

394
00:17:24.240 --> 00:17:27.150
So an interception,

395
00:17:27.150 --> 00:17:28.800
the critical question in determining

396
00:17:28.800 --> 00:17:29.910
whether there was interception

397
00:17:29.910 --> 00:17:31.950
is whether there was a surreptitious recording

398
00:17:31.950 --> 00:17:35.190
and that's what this court discussed in Gordon

399
00:17:35.190 --> 00:17:38.760
and what the appeals court in the context of a-

400
00:17:38.760 --> 00:17:40.080
<v Justice Kafker>Was Hyde surreptitious or not?</v>

401
00:17:40.080 --> 00:17:40.913
I just don't remember.

402
00:17:40.913 --> 00:17:41.746
<v ->Yes, it was.</v>

403
00:17:41.746 --> 00:17:43.140
<v ->He-</v>
<v ->How was it surreptitious?</v>

404
00:17:43.140 --> 00:17:45.030
<v ->He was secretly recording on his phone.</v>

405
00:17:45.030 --> 00:17:45.930
And I think in Hyde,

406
00:17:45.930 --> 00:17:48.210
the court said it would've been a different case if,

407
00:17:48.210 --> 00:17:50.640
for example, he was holding his phone out

408
00:17:50.640 --> 00:17:53.670
or it was clear that he was using a recording device,

409
00:17:53.670 --> 00:17:54.780
but it wasn't in Hyde.

410
00:17:54.780 --> 00:17:57.537
So it was in fact a surreptitious recording.

411
00:17:57.537 --> 00:17:58.620
So a-

412
00:17:58.620 --> 00:18:00.210
<v Justice Kafker>That's the key element here that.</v>

413
00:18:00.210 --> 00:18:02.880
<v ->Yes, yes, and-</v>
<v ->Okay.</v>

414
00:18:02.880 --> 00:18:05.267
<v ->And why is it not secret here?</v>

415
00:18:05.267 --> 00:18:09.663
'Cause he doesn't tell her that he's recording,

416
00:18:10.530 --> 00:18:14.790
and I guess these things don't light up.

417
00:18:14.790 --> 00:18:17.880
So why is this not secret, I guess?

418
00:18:17.880 --> 00:18:18.990
<v ->Well, so first of all,</v>

419
00:18:18.990 --> 00:18:20.760
I would just point out that I think this

420
00:18:20.760 --> 00:18:23.820
is a very difficult case to even reach this issue on.

421
00:18:23.820 --> 00:18:25.470
The court doesn't need to reach the wiretap issue.

422
00:18:25.470 --> 00:18:27.480
But it's a very difficult case to-

423
00:18:27.480 --> 00:18:28.590
<v ->Well, now if we don't,</v>

424
00:18:28.590 --> 00:18:30.870
if it's illegal to do this,

425
00:18:30.870 --> 00:18:33.540
and it's a key component of what the judge relies on,

426
00:18:33.540 --> 00:18:36.900
which it is, you're in trouble.

427
00:18:36.900 --> 00:18:38.044
<v Brooke>Well-</v>

428
00:18:38.044 --> 00:18:38.910
<v Justice Cypher>Doesn't the exclusionary rule,</v>

429
00:18:38.910 --> 00:18:39.750
it doesn't apply in probation.

430
00:18:39.750 --> 00:18:40.583
<v ->It doesn't apply.</v>

431
00:18:40.583 --> 00:18:42.180
That's where I was going with that.

432
00:18:42.180 --> 00:18:43.950
But even still, I would just note

433
00:18:43.950 --> 00:18:46.110
that it's difficult because this wasn't raised below.

434
00:18:46.110 --> 00:18:49.440
So we don't have anything in the record below about notice.

435
00:18:49.440 --> 00:18:50.556
Now the-

436
00:18:50.556 --> 00:18:52.460
<v ->Don't know if it was like this big or this big</v>

437
00:18:52.460 --> 00:18:53.293
or where it is.
<v ->Correct.</v>

438
00:18:53.293 --> 00:18:55.200
<v ->We don't know if there was a red light on, we don't know,</v>

439
00:18:55.200 --> 00:18:59.047
for instance, if the other officer came in before and said,

440
00:18:59.047 --> 00:19:00.300
"My officer's coming behind me,

441
00:19:00.300 --> 00:19:01.380
he's gonna be recording you."

442
00:19:01.380 --> 00:19:02.580
There was nothing in the record.

443
00:19:02.580 --> 00:19:05.310
No one was asked about notice.

444
00:19:05.310 --> 00:19:07.110
But of course the Commonwealth's position is that

445
00:19:07.110 --> 00:19:08.370
notice wasn't required here

446
00:19:08.370 --> 00:19:11.100
because it wasn't a surreptitious recording.

447
00:19:11.100 --> 00:19:11.933
And I-

448
00:19:11.933 --> 00:19:13.937
<v ->Again, just help me out here</v>

449
00:19:13.937 --> 00:19:15.300
'cause I agree with you

450
00:19:15.300 --> 00:19:18.030
this isn't what the legislature intended.

451
00:19:18.030 --> 00:19:21.360
But I don't quite know why this isn't secret

452
00:19:21.360 --> 00:19:22.620
based on this record.

453
00:19:22.620 --> 00:19:27.620
That's because she wasn't, how do we get over that here?

454
00:19:29.099 --> 00:19:29.932
I mean-

455
00:19:29.932 --> 00:19:32.520
<v ->So I think Gordon is instructive or excuse me,</v>

456
00:19:32.520 --> 00:19:33.810
I think Gordon is instructive,

457
00:19:33.810 --> 00:19:36.030
but also Ashley is instructive here.

458
00:19:36.030 --> 00:19:39.480
And there, the court found that the statute was not violated

459
00:19:39.480 --> 00:19:42.060
by a recording of a police interrogation,

460
00:19:42.060 --> 00:19:44.370
despite the fact that the judge found

461
00:19:44.370 --> 00:19:46.440
that the defendant did not know that he was-

462
00:19:46.440 --> 00:19:49.590
<v ->Is he the same as the civilian in Hyde</v>

463
00:19:49.590 --> 00:19:51.690
holding up his phone.

464
00:19:51.690 --> 00:19:54.210
Right, if we said that the civilian holding up

465
00:19:54.210 --> 00:19:56.040
his phone wasn't surreptitious,

466
00:19:56.040 --> 00:19:59.250
this is a recording out in the open.

467
00:19:59.250 --> 00:20:00.900
<v ->Certainly, I think that's a possibility.</v>

468
00:20:00.900 --> 00:20:03.720
But again, I think we just don't have the facts

469
00:20:03.720 --> 00:20:05.790
from the hearing because it wasn't raised below.

470
00:20:05.790 --> 00:20:07.920
So we don't have anything from the victim

471
00:20:07.920 --> 00:20:10.080
about whether she saw the camera, or how big it was,

472
00:20:10.080 --> 00:20:10.913
or anything like that.

473
00:20:10.913 --> 00:20:13.500
But it's certainly very possible that it was obvious

474
00:20:13.500 --> 00:20:14.490
and notice isn't an issue,

475
00:20:14.490 --> 00:20:17.403
even if the wiretap statute were implicated.

476
00:20:18.600 --> 00:20:20.070
<v ->Which way does that cut?</v>

477
00:20:20.070 --> 00:20:22.110
The fact that the record is devoid

478
00:20:22.110 --> 00:20:24.990
of any information from which we can garner

479
00:20:24.990 --> 00:20:29.670
whether or not the victim knew that she was being recorded.

480
00:20:29.670 --> 00:20:33.420
<v ->So in this case, I think we can speak in generalities</v>

481
00:20:33.420 --> 00:20:35.970
about it without having that information because again,

482
00:20:35.970 --> 00:20:39.660
because this was not intended to be a private conversation

483
00:20:39.660 --> 00:20:42.870
and therefore was not a surreptitious recording.

484
00:20:42.870 --> 00:20:46.560
I don't think we even need to talk about notice.

485
00:20:46.560 --> 00:20:47.490
And I would also-

486
00:20:47.490 --> 00:20:52.330
<v ->But the statute applies to secret hearing</v>

487
00:20:53.400 --> 00:20:57.000
and also secret recording, both.

488
00:20:57.000 --> 00:20:57.833
<v Brooke>Correct.</v>

489
00:20:57.833 --> 00:21:00.510
<v ->So if she, if the record is devoid</v>

490
00:21:00.510 --> 00:21:03.600
from any information from which we can garner whether

491
00:21:03.600 --> 00:21:06.840
or not she knew she was being recorded,

492
00:21:06.840 --> 00:21:09.180
literally under the terms of the statute,

493
00:21:09.180 --> 00:21:13.533
if we read it literally, it violated the statute.

494
00:21:15.270 --> 00:21:18.210
<v ->I'm not sure that's true because of the way this court</v>

495
00:21:18.210 --> 00:21:21.390
and Ashley have interpreted that language

496
00:21:21.390 --> 00:21:23.583
about what an interception is.

497
00:21:24.822 --> 00:21:29.822
<v ->Well it was, if she didn't know she was being recorded,</v>

498
00:21:30.300 --> 00:21:33.603
it's almost by definition a surreptitious recording.

499
00:21:34.770 --> 00:21:36.660
<v Brooke>No, I think I would disagree with that,</v>

500
00:21:36.660 --> 00:21:37.590
Your Honor.
<v ->Explain that.</v>

501
00:21:37.590 --> 00:21:40.140
<v ->Yeah, so the statute prohibits an interception</v>

502
00:21:40.140 --> 00:21:42.600
and under B, 4, that is defined as,

503
00:21:42.600 --> 00:21:43.657
like Your Honor said,

504
00:21:43.657 --> 00:21:45.750
"To secretly hear, secretly record

505
00:21:45.750 --> 00:21:48.300
through an intercepting device by any person

506
00:21:48.300 --> 00:21:50.670
other than the person given prior authority."

507
00:21:50.670 --> 00:21:54.810
And so this court and the appeals court

508
00:21:54.810 --> 00:21:58.470
have interpreted this language to specifically refer

509
00:21:58.470 --> 00:22:00.720
to a surreptitious eavesdropping.

510
00:22:00.720 --> 00:22:03.510
So even if she didn't have notice,

511
00:22:03.510 --> 00:22:05.730
that doesn't necessarily mean

512
00:22:05.730 --> 00:22:08.610
that it was a surreptitious eavesdropping

513
00:22:08.610 --> 00:22:10.740
because a surreptitious eavesdropping would need to be

514
00:22:10.740 --> 00:22:12.510
a secret recording of a conversation

515
00:22:12.510 --> 00:22:14.040
that was intended to be private.

516
00:22:14.040 --> 00:22:16.650
<v ->You're just saying that the secret recording,</v>

517
00:22:16.650 --> 00:22:19.710
you're analyzing the person recording,

518
00:22:19.710 --> 00:22:23.790
not the person who's being recorded.

519
00:22:23.790 --> 00:22:25.140
<v ->Yes, I think that's right, Your Honor.</v>

520
00:22:25.140 --> 00:22:26.610
<v ->I think if we can go just back</v>

521
00:22:26.610 --> 00:22:30.150
to Justice Wendlandt's question though,

522
00:22:30.150 --> 00:22:32.463
when the record is devoid of that,

523
00:22:33.930 --> 00:22:36.120
who does that help and hurt?

524
00:22:36.120 --> 00:22:38.610
Because one way to look at it would be

525
00:22:38.610 --> 00:22:42.360
that the foundation wasn't laid to put in the recording

526
00:22:42.360 --> 00:22:44.430
and another way to look at it would be no,

527
00:22:44.430 --> 00:22:49.260
there was no objection based on the lack of foundation.

528
00:22:50.910 --> 00:22:53.673
So who has that burden of production?

529
00:22:55.050 --> 00:22:58.110
<v ->So again, because it's a probation revocation hearing,</v>

530
00:22:58.110 --> 00:23:00.993
I'm not sure that would be an issue here.

531
00:23:02.250 --> 00:23:06.360
<v ->No, I'm obviously if there's no suppression,</v>

532
00:23:06.360 --> 00:23:07.620
even if it was illegal,

533
00:23:07.620 --> 00:23:10.186
you don't have to worry about a question like this.

534
00:23:10.186 --> 00:23:11.019
<v Brooke>Okay.</v>

535
00:23:11.019 --> 00:23:15.400
<v ->But, well maybe you do.</v>

536
00:23:15.400 --> 00:23:19.200
Maybe you do because the question is to that is,

537
00:23:19.200 --> 00:23:21.990
what's the foundation required to put it in?

538
00:23:21.990 --> 00:23:25.110
Can probation just put in the recording

539
00:23:25.110 --> 00:23:26.823
and if the probation or objects

540
00:23:26.823 --> 00:23:29.340
they have to raise the objection?

541
00:23:29.340 --> 00:23:31.920
Or is it part of the requirement

542
00:23:31.920 --> 00:23:35.640
to put in the recording that you've satisfied

543
00:23:35.640 --> 00:23:40.560
that it's not secretly recorded and secretly heard.

544
00:23:40.560 --> 00:23:43.590
<v ->I think probation can just put in the recording.</v>

545
00:23:43.590 --> 00:23:45.720
I don't think it's necessary to satisfy

546
00:23:45.720 --> 00:23:47.340
that element where the wiretap statute

547
00:23:47.340 --> 00:23:50.010
isn't implicated at all.

548
00:23:50.010 --> 00:23:53.850
<v ->But so let's deal with the case that's really close,</v>

549
00:23:53.850 --> 00:23:55.980
which is Jackson.
<v ->Sure.</v>

550
00:23:55.980 --> 00:24:00.490
Right, the defendant in that case was recorded

551
00:24:01.830 --> 00:24:04.770
and the court, this court, not the appeals court,

552
00:24:04.770 --> 00:24:09.770
this court held that the secret recording violated

553
00:24:09.840 --> 00:24:11.580
the wiretap statute.

554
00:24:11.580 --> 00:24:13.560
Now the evidence ultimately came in

555
00:24:13.560 --> 00:24:16.027
because the defendants had said,

556
00:24:16.027 --> 00:24:18.270
"I know you're recording this."

557
00:24:18.270 --> 00:24:19.987
But here we don't have the victim saying,

558
00:24:19.987 --> 00:24:21.840
"I know you're recording this."

559
00:24:21.840 --> 00:24:24.600
<v ->So, and in Jackson that was a different situation</v>

560
00:24:24.600 --> 00:24:27.563
because it was a phone call being recorded,

561
00:24:27.563 --> 00:24:28.396
<v ->[Justice Wendlandt] Yeah.</v>

562
00:24:28.396 --> 00:24:29.670
<v ->And it was a surreptitious recording.</v>

563
00:24:29.670 --> 00:24:31.440
This is a case where you have the victim,

564
00:24:31.440 --> 00:24:32.850
who called the police,

565
00:24:32.850 --> 00:24:34.667
who invited the officer into her home.

566
00:24:34.667 --> 00:24:36.630
<v ->Oh, so to just to stop you there.</v>

567
00:24:36.630 --> 00:24:41.630
So here in that case, the defendant called the ransom.

568
00:24:44.370 --> 00:24:46.803
So there's the same, right.

569
00:24:47.917 --> 00:24:51.480
The victim called here and did Jackson,

570
00:24:51.480 --> 00:24:53.760
the defendant called the phone.

571
00:24:53.760 --> 00:24:54.593
<v ->Correct.</v>
<v ->Yeah.</v>

572
00:24:54.593 --> 00:24:55.500
I think the distinction there is

573
00:24:55.500 --> 00:24:57.120
that the victim called the police.

574
00:24:57.120 --> 00:24:59.670
And she called the police to report a crime.

575
00:24:59.670 --> 00:25:01.890
And she called the police to give them information

576
00:25:01.890 --> 00:25:03.480
to help them in an investigation

577
00:25:03.480 --> 00:25:05.790
that presumably is going to be memorialized

578
00:25:05.790 --> 00:25:08.190
in a police report and used in the investigation

579
00:25:08.190 --> 00:25:09.180
of this defendant.

580
00:25:09.180 --> 00:25:12.193
<v ->Does the word interception help you?</v>

581
00:25:12.193 --> 00:25:14.970
I mean, again, I have two football players here,

582
00:25:14.970 --> 00:25:17.430
but usually you're intercepting something directed

583
00:25:17.430 --> 00:25:20.610
to somebody else, right?

584
00:25:20.610 --> 00:25:22.920
This is talking directly to you.

585
00:25:22.920 --> 00:25:25.350
I'm just wondering is the word interception

586
00:25:25.350 --> 00:25:27.000
add another element to this

587
00:25:27.000 --> 00:25:28.500
that we should be focusing in on?

588
00:25:28.500 --> 00:25:31.440
Which is you're getting in between a communication

589
00:25:31.440 --> 00:25:33.450
between two-

590
00:25:33.450 --> 00:25:34.290
<v ->I'm not sure.</v>

591
00:25:34.290 --> 00:25:35.370
If you look at Jackson,

592
00:25:35.370 --> 00:25:37.650
I'm not sure that holds true

593
00:25:37.650 --> 00:25:39.720
because they're the person recording

594
00:25:39.720 --> 00:25:42.750
is the person receiving the information.

595
00:25:42.750 --> 00:25:45.270
So I think again, I sound like a broken record,

596
00:25:45.270 --> 00:25:47.760
but the critical question is whether it was surreptitious.

597
00:25:47.760 --> 00:25:49.023
<v ->I'm a bit confused.</v>

598
00:25:49.890 --> 00:25:52.260
So if the police went in there

599
00:25:52.260 --> 00:25:57.060
and suppose the police officer had an old fashioned bug,

600
00:25:57.060 --> 00:25:59.940
which is what this statute started out as,

601
00:25:59.940 --> 00:26:02.160
hidden in his clothing,

602
00:26:02.160 --> 00:26:05.910
and he recorded the person making the complaint,

603
00:26:05.910 --> 00:26:08.520
is it your position

604
00:26:08.520 --> 00:26:11.160
that it wouldn't be a surreptitious contraception?

605
00:26:11.160 --> 00:26:11.993
<v Brook>Yes.</v>

606
00:26:11.993 --> 00:26:14.910
<v ->Because it's a complaint to a police officer.</v>

607
00:26:14.910 --> 00:26:16.915
That's your bottom line.
<v ->Yes, yes.</v>

608
00:26:16.915 --> 00:26:18.480
Where is that in the statute?

609
00:26:18.480 --> 00:26:19.313
<v ->I'm sorry, Your Honor.</v>

610
00:26:19.313 --> 00:26:20.607
<v Justice Gaziano>Where is that in the statute?</v>

611
00:26:20.607 --> 00:26:21.440
<v ->So I think that falls</v>

612
00:26:21.440 --> 00:26:23.370
under the definition of interception,

613
00:26:23.370 --> 00:26:26.165
which is, it's not a surreptitious recording

614
00:26:26.165 --> 00:26:29.220
because this is a person giving information

615
00:26:29.220 --> 00:26:30.570
to a police officer that's,

616
00:26:30.570 --> 00:26:32.820
she does not intend for this police officer

617
00:26:32.820 --> 00:26:34.740
to keep it private or for this conversation

618
00:26:34.740 --> 00:26:35.730
to be kept private.

619
00:26:35.730 --> 00:26:37.830
Now, it might be a different situation

620
00:26:37.830 --> 00:26:40.200
if the police officer came to the door,

621
00:26:40.200 --> 00:26:42.930
and was waiting outside, and turned on his body camera,

622
00:26:42.930 --> 00:26:44.580
and started recording a conversation

623
00:26:44.580 --> 00:26:46.680
she was having in the home.

624
00:26:46.680 --> 00:26:49.140
I think that would be a surreptitious recording.

625
00:26:49.140 --> 00:26:51.660
But that's very different than what we have here.

626
00:26:51.660 --> 00:26:53.220
<v ->You invite somebody to your home,</v>

627
00:26:53.220 --> 00:26:55.950
you expect them to record you, the police?

628
00:26:55.950 --> 00:26:57.480
<v ->Well, she was speaking to him,</v>

629
00:26:57.480 --> 00:26:58.890
and she was giving him information.

630
00:26:58.890 --> 00:26:59.790
So I, and I don't,

631
00:26:59.790 --> 00:27:01.320
I think this is completely separate

632
00:27:01.320 --> 00:27:03.210
and apart from a Fourth Amendment,

633
00:27:03.210 --> 00:27:05.220
reasonable expectation of privacy analysis.

634
00:27:05.220 --> 00:27:06.053
We know-

635
00:27:06.053 --> 00:27:08.040
<v ->But you're limiting the wiretap statute,</v>

636
00:27:08.040 --> 00:27:10.770
at least you're reading of it to that Fourth Amendment,

637
00:27:10.770 --> 00:27:12.900
reasonable expectation of privacy.

638
00:27:12.900 --> 00:27:14.298
<v Brooke>No, Your Honor. No, Your Honor.</v>

639
00:27:14.298 --> 00:27:15.131
<v ->I thought that was your point.</v>

640
00:27:15.131 --> 00:27:17.850
That she invited the police to her home

641
00:27:17.850 --> 00:27:22.710
to report to the police what had happened to her.

642
00:27:22.710 --> 00:27:24.000
<v ->No, I don't think that's true.</v>

643
00:27:24.000 --> 00:27:25.860
I think there are certainly situations

644
00:27:25.860 --> 00:27:30.750
where an individual would have a reasonable expectation

645
00:27:30.750 --> 00:27:35.070
of privacy and there would be a violation

646
00:27:35.070 --> 00:27:36.900
of the wiretap statute and vice versa.

647
00:27:36.900 --> 00:27:40.440
And I think that's very obvious from this court's decisions-

648
00:27:40.440 --> 00:27:41.880
<v ->I don't have the statute in front of me,</v>

649
00:27:41.880 --> 00:27:44.637
do the words, "Private conversation," appear in the statute?

650
00:27:44.637 --> 00:27:46.110
<v ->No, your Honor.</v>

651
00:27:46.110 --> 00:27:47.940
That is taken from this court

652
00:27:47.940 --> 00:27:51.240
and the Massachusetts Appeals Court's interpretation

653
00:27:51.240 --> 00:27:53.970
of the meaning of interception,

654
00:27:53.970 --> 00:27:55.950
and that's Gordon and that's Ashley.

655
00:27:55.950 --> 00:27:57.390
So those words are not in the statute, no.

656
00:27:57.390 --> 00:27:58.980
<v ->But both of those cases are not</v>

657
00:27:58.980 --> 00:28:00.870
about the meaning of interception.

658
00:28:00.870 --> 00:28:03.570
Both of those cases are about,

659
00:28:03.570 --> 00:28:07.440
we don't think the legislature intended this.

660
00:28:07.440 --> 00:28:09.210
<v ->Yeah, it's a book and photo.</v>

661
00:28:09.210 --> 00:28:11.490
It's the book and room and it's a-

662
00:28:11.490 --> 00:28:12.450
<v ->Yeah, it, yeah.</v>

663
00:28:12.450 --> 00:28:15.180
Not about interpreting
<v ->So I think it is about-</v>

664
00:28:15.180 --> 00:28:16.590
the language of the statute.

665
00:28:16.590 --> 00:28:19.050
They're saying, in the context,

666
00:28:19.050 --> 00:28:21.870
literally the statute could read on this.

667
00:28:21.870 --> 00:28:23.340
But we're not gonna,

668
00:28:23.340 --> 00:28:26.670
the legislature's got more commonsense than that.

669
00:28:26.670 --> 00:28:28.470
That might be your strongest argument,

670
00:28:28.470 --> 00:28:30.829
not the literal words
<v ->I think,</v>

671
00:28:30.829 --> 00:28:31.662
of the statute.
<v ->those two things</v>

672
00:28:31.662 --> 00:28:32.652
are related.

673
00:28:32.652 --> 00:28:34.800
I think that's absolutely true

674
00:28:34.800 --> 00:28:38.280
that this is not what the legislature was intending

675
00:28:38.280 --> 00:28:39.570
to protect.

676
00:28:39.570 --> 00:28:43.290
And I do think that those cases, Ashley and Gordon,

677
00:28:43.290 --> 00:28:45.750
do talk about the meaning of interception.

678
00:28:45.750 --> 00:28:50.750
<v ->And they say plainly, if you just read the words.</v>

679
00:28:51.008 --> 00:28:52.505
They're included.
<v ->Yes,</v>

680
00:28:52.505 --> 00:28:53.670
a technical application of the statute

681
00:28:53.670 --> 00:28:54.870
might yield different results,

682
00:28:54.870 --> 00:28:57.540
but that could not have been the legislature's intent.

683
00:28:57.540 --> 00:28:59.580
<v ->Right, and so that's why I'm suggesting</v>

684
00:28:59.580 --> 00:29:01.530
that might be your strongest argument.

685
00:29:01.530 --> 00:29:03.510
It's not the legislature.

686
00:29:03.510 --> 00:29:06.030
Well, unless the legislature tells us,

687
00:29:06.030 --> 00:29:10.350
we intend your co-counsel to be subject to fines

688
00:29:10.350 --> 00:29:13.530
and criminal penalties in the house of correction,

689
00:29:13.530 --> 00:29:17.220
we're not gonna assume that this language means

690
00:29:17.220 --> 00:29:19.200
what it literally means.

691
00:29:19.200 --> 00:29:20.733
<v ->I think that's true.</v>

692
00:29:21.780 --> 00:29:24.300
And again, I think that's because

693
00:29:24.300 --> 00:29:26.430
of what interception means,

694
00:29:26.430 --> 00:29:29.900
but what the court has interpreted interception to mean.

695
00:29:29.900 --> 00:29:31.620
<v ->So if the person who annoys me</v>

696
00:29:31.620 --> 00:29:35.220
on the Commuter Rail speaks on a cell phone, right?

697
00:29:35.220 --> 00:29:38.283
And I take out my cell phone, I start recording that person,

698
00:29:39.870 --> 00:29:42.570
that's not a wiretap violation

699
00:29:42.570 --> 00:29:46.096
because the person's blabbing in the public?

700
00:29:46.096 --> 00:29:49.050
<v ->So again, I think we have to separate</v>

701
00:29:49.050 --> 00:29:51.376
the reasonable expectation of privacy and-

702
00:29:51.376 --> 00:29:53.040
<v ->Nope, nope, we're going statutory language.</v>

703
00:29:53.040 --> 00:29:57.600
<v ->Yes, so I think it's possible that it would be a violation</v>

704
00:29:57.600 --> 00:29:59.447
of the wiretap statue

705
00:29:59.447 --> 00:30:02.760
if, if it's, well, actually I take that back.

706
00:30:02.760 --> 00:30:06.540
I think the person is not intending that that speech

707
00:30:06.540 --> 00:30:09.150
to be kept private if they're blabbing right next to you

708
00:30:09.150 --> 00:30:10.410
on a train full of other people.

709
00:30:10.410 --> 00:30:11.370
<v ->The recording?</v>

710
00:30:11.370 --> 00:30:14.970
<v ->Yes, so I think if this happened somewhere else,</v>

711
00:30:14.970 --> 00:30:15.803
it's possible.

712
00:30:15.803 --> 00:30:18.810
You know, if two people were having a conversation

713
00:30:18.810 --> 00:30:19.800
on the street and there was-

714
00:30:19.800 --> 00:30:22.320
<v ->If two people in front of me in the Commuter Rail,</v>

715
00:30:22.320 --> 00:30:23.910
are having a quiet conversation,

716
00:30:23.910 --> 00:30:24.837
and I take my cell phone out

717
00:30:24.837 --> 00:30:27.300
and I record them 'cause I'm a creep.

718
00:30:27.300 --> 00:30:30.360
Is that a interception?

719
00:30:30.360 --> 00:30:31.620
<v ->I think we would have to look carefully</v>

720
00:30:31.620 --> 00:30:33.030
at the facts there,

721
00:30:33.030 --> 00:30:35.340
but I think it's possible that it would be an interception

722
00:30:35.340 --> 00:30:37.620
if that was a conversation intended to be kept private.

723
00:30:37.620 --> 00:30:39.780
<v ->Right, I don't get this distinction,</v>

724
00:30:39.780 --> 00:30:41.448
but we'll figure it out.

725
00:30:41.448 --> 00:30:45.270
(everyone chuckles)

726
00:30:45.270 --> 00:30:47.820
<v ->If the court has further questions on the wiretap statute,</v>

727
00:30:47.820 --> 00:30:48.653
I'm happy to answer.

728
00:30:48.653 --> 00:30:50.220
Otherwise, I see that I'm out of time.

729
00:30:50.220 --> 00:30:52.380
Would the court like me to briefly address

730
00:30:52.380 --> 00:30:54.925
the other two points?
<v ->I think we're all set.</v>

731
00:30:54.925 --> 00:30:56.258
<v ->Yeah, we're all set.</v>
<v ->Okay.</v>