Mass. bumper sticker: "Police Surveillance System On Board"

[Aimee Farr]

The Massachusetts Supreme Judicial Court upheld a motorist's conviction
pursuant to their state electronic surveillance statute for the
surreptitious audio recording of police officers during a "routine" traffic
stop.

I think the opinion speaks for itself.

See especially FN 6 and 10.

---
COMMONWEALTH vs. MICHAEL J. HYDE
July 13, 2001
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/8429&i
nvol=1
GREANEY, J.
...
The relevant facts are not in dispute. On October 26, 1998, just after 10:30
P.M., an Abington police officer stopped the defendant's white Porsche,
because the automobile had an excessively loud exhaust system and an unlit
rear registration plate light. Three other Abington police officers arrived
shortly thereafter and the stop quickly became confrontational.(1) During
the course of the stop, which lasted approximately fifteen to twenty
minutes, the defendant and his passenger, Daniel Hartesty, were ordered out
of the automobile, and Hartesty was pat frisked. One officer reached into
the automobile, picked up a plastic shopping bag that lay on the floor by
the passenger seat, and looked inside. (The bag contained compact discs.) At
one point, the defendant stated that the stop was "a bunch of bullshit," and
that he had been stopped because of his long hair. One officer responded,
"Don't lay that shit on me." Later, another officer called the defendant "an
asshole." The defendant was asked whether he had any "blow" (cocaine) in the
car. At the conclusion of the stop, the defendant and Hartesty were allowed
to leave. No traffic citation was issued to the defendant, and the defendant
was not charged with any crime. According to the testimony of one police
officer, the defendant was "almost out of control" and the stop "had gone so
sour," that it was deemed in everyone's interest simply to give the
defendant a verbal warning. Unbeknownst to the officers, however, the
defendant had activated a hand-held tape recorder at the inception of the
stop and had recorded the entire encounter.

...
The judge (the same judge who had ordered that the complaint issue) rejected
the defendant's argument and denied the motion to dismiss. The judge
reasoned that the definition of "oral communication" under G. L. c. 272, '
99 B 2 ("speech, except such speech as is transmitted over public air waves
by radio or other similar device"), was clear, and, unlike the definition in
the Federal electronic surveillance statute,(2) did not require an
expectation of privacy by the speaker in order to make the statute
applicable. He concluded that the Massachusetts statute prohibited the
secret tape recording of the police officers' speech. The defendant was
tried before a jury and convicted of four counts of violating G. L. c. 272,
' 99.

...
The dissent reaches its conclusion by ignoring the unambiguous language and
definitions of the statute and by relying on purported (and dubious)
legislative history. The dissent suggests that the defendant's secret
recording of the words of the police officers should be lawful, because such
recording may tend to hold police officers accountable for improper
behavior. Implicit in the dissent's position is the even broader suggestion
that police officers routinely act illegally or abusively, to the degree
that public policy strongly requires documentation of details of contacts
between the police and members of the public to protect important rights. We
doubt the validity of the dissent's major premise, and we are not convinced
that the widespread clandestine recording of encounters between individuals
and police officers would be desirable or even efficacious.(9) Nor do we
think, as the dissent does, that police officers should be singled out for
particular approbation to safeguard the integrity of the "Republic." Post at
. Followed to its logical conclusion, the dissent would encourage drug
manufacturers to mount hidden video cameras in their facilities so they can
capture the moment of truth when the police execute a search warrant and
would authorize drug dealers secretly to tape record conversations with
suspected undercover officers or with informants in order to protect the
dealers' rights against hypothetical police abuse. Numerous other examples
exist. The point is an obvious one. Every police encounter would be
available for secret recording; even meter maids would not be spared. The
value of obtaining probative evidence of occasional official misconduct does
not justify a failure to enforce the clear terms of the statute. See
Commonwealth v. Blood, 400 Mass. 61, 74 (1987), and cases cited.

...
Further, if the tape recording here is deemed proper on the ground that
public officials are involved, then the door is opened even wider to
electronic "bugging" or secret audio tape recording (both are prohibited by
the statute and both are indistinguishable in the injury they inflict) of
virtually every encounter or meeting between a person and a public official,
whether the meeting or encounter is one that is stressful (like the one in
this case or, perhaps, a session with a tax auditor) or nonstressful (like a
routine meeting between a parent and a teacher in a public school to discuss
a good student's progress). The door once opened would be hard to close, and
the result would contravene the statute's broad purpose and the
Legislature's clear prohibition of all secret interceptions and recordings
by private citizens....

...
As discussed above, however, our Legislature chose not to follow those
States whose statutes prohibit wiretapping or secret electronic recording
based on privacy rights. See notes 5 and 6, supra. "If the Legislature had
intended to [prohibit only secret recording where an individual has a
reasonable expectation of privacy], the statute would have been written in
terms similar to those used in the California eavesdropping statute . . . .
Rather, it is apparent from the Report of the Special Commission on
Electronic Eavesdropping, 1968 Senate Doc. No. 1132, that the legislative
intent was to impose more stringent restrictions on the use of electronic
surveillance devices by private individuals than is done in other States."
...

(5) Every State, with the exception of Vermont, has some type of
eavesdropping or wiretapping statute. The majority contain language that, to
some degree, prohibits only the surreptitious recording of another's words
when spoken with a reasonable expectation of privacy. See, e.g., Ala. Code '
42.20.300 (Michie 1996) (Alabama; "private communication"); Ga. Code Ann. '
16-11-60 (Michie 1996) (Georgia; "in private place"); Mich. Comp. Laws '
750.539a (1996) (Michigan; "private discourse of others"); N.H. Rev. Stat.
Ann. ' 570-A: 1 (1995) (New Hampshire; "uttered by a person exhibiting an
expectation that such communication is not subject to interception under
circumstances justifying such expectation"). In addition, as recognized by
the judge in his memorandum denying the defendant's motion to dismiss, the
Federal electronic surveillance statute, see note 2, supra, similarly limits
"oral communication" to the speech of a person who holds a justifiable
expectation that it will not be subject to interception. For an extensive
discussion of various State electronic surveillance statutes, see C. Bast,
What's Bugging You? Inconsistencies and Irrationalities of the Law of
Eavesdropping, 47 DePaul L. Rev. 837, 868-881 (1998).

(6) The defendant cites State v. Flora, 68 Wash. App. 802, 806 (1992), in
which the Court of Appeals of Washington held, on nearly identical facts,
that an arrestee's attempt to use a tape recorder to record his arrest did
not violate Washington's electronic surveillance statute, because the police
officers had no reasonable expectation of privacy in their words. This case
is inapposite, however, because the Washington electronic surveillance
statute prohibits only the secret recording of private conversations, see
Wash. Rev. Code Ann. ' 9.73.030 (1) (b) (2000). Accord Commonwealth v.
Henlen, 522 Pa. 514, 517 (1989) (secret recording of interrogation by prison
guard suspected of theft did not violate Pennsylvania's electronic
surveillance statute, because interrogating officer had no justifiable
expectation of privacy). See 18 Pa. Cons. Stat. ' 5702 (2000) (defining
"oral communications" as "any oral communication uttered by a person
possessing an expectation that such communication is not subject to
interception under circumstances justifying such expectation").

Because our own statute broadly prohibits the interception of speech (except
that which is transmitted over public air waves), see G. L. c. 272, ' 99 B
2, whether the police officers possessed privacy interests in their words
spoken in the course of performing their public duties, or whether the
encounter constituted a routine traffic stop or a custodial interrogation,
as argued by the defendant, are issues that we need not address.

Consideration of such issues would only be warranted in a civil suit for
damages under G. L. c. 272, ' 99 Q, which allows actual and punitive
damages, as well as attorneys fees, for:

"any aggrieved person whose oral or wire communications were intercepted,
disclosed, or used except as permitted or authorized by this section or
whose personal or property interests or privacy were violated by means of an
interception except as permitted or authorized by this section shall have a
civil cause of action against any person who so intercepts, discloses or
uses such communications or who so violates his personal, property or
privacy interest . . . ." (Emphasis added).

...
(9) Although we have stated that the electronic recording by the police of
interrogations is a good practice, see Commonwealth v. Diaz, 422 Mass. 269,
271-273 (1996), by no stretch of the imagination did we suggest that it is
desirable for citizens to intercept or record electronically the speech of
others, including police officers, without their knowledge. We presume that,
when police interrogations are electronically recorded, the suspect is aware
that the interrogation is being preserved.

(10) Although not cited by the parties, in People v. Beardsley, 115 Ill. 2d
47 (1986), a defendant appealed from his conviction of eavesdropping when,
having been arrested and placed in the rear seat of a squad car, he secretly
tape recorded the conversation of two police officers who sat in the front
seat. See id. at 49. The Supreme Court of Illinois reversed the defendant's
conviction, holding that, although the plain language of the Illinois
eavesdropping statute prohibited the recording of "all or any part of any
conversation" without consent, Ill. Ann. Stat. c. 38, ' 14-2 (a) (1) (1983),
the statute must have been intended to protect individuals only from the
surreptitious monitoring of conversations of a private nature. See id. at 53
(reasoning that, because officers were aware that the defendant was in a
position to overhear, their conversation was not private). The Illinois
Legislature, however, subsequently amended the statute to define
"conversation" as "any oral communication between 2 or more persons
regardless of whether one or more of the parties intended their
communication to be of a private nature." 720 Ill. Comp. Stat. ' 5/14-1(d)
(West 1996). See People v. Nestrock, 316 Ill. App. 3d 1, 7 (2000).

========================================================
MARSHALL, C.J. (dissenting, with whom Cordy, J., joins).
========================================================
...
Many States have wiretapping statutes similar to the one enacted in 1968 in
Massachusetts.(10) In only one reported decision has a State attempted to
indict a citizen in circumstances similar to those in this case. The attempt
was summarily rejected. In State v. Flora, 68 Wash. App. 802 (1992), the
court overturned a conviction obtained in circumstances nearly identical to
these and under a wiretapping statute similar to the one at issue here. The
Flora court rejected as "wholly without merit" the view now adopted by this
court. Id. at 806. The court "decline[d] the State's invitation" to
transform its wiretapping statute "into a sword available for use against
individuals by public officers acting in their official capacity." Id. at
808.(11)

...
The court suggests, ante at , that a different reading would permit
"untrammeled interception of communications" of government officials by
everyone and anyone. That concern is misplaced. There is a difference in
kind, well recognized in our jurisprudence, between police officers, who
have the authority to command citizens, take them into custody, and to use
physical force against them, and other public officials who do not possess
such awesome powers.(14) We hold police officers to a higher standard of
conduct than other public employees, and their privacy interests are
concomitantly reduced. See, e.g., O'Connor v. Police Comm'r of Boston, 408
Mass. 324, 328-329 (1990) ("public confidence in the police is a social
necessity and is enhanced by procedures that deter [unlawful police
conduct]"); Broderick v. Police Comm'r of Boston, 368 Mass. 33, 42 (1975),
quoting Gardner v. Broderick, 392 U.S. 273, 277-278 (1968) (police officer
"is a trustee of the public interest, bearing the burden of great and total
responsibility to his public employer"). We hold officers to this higher
standard of conduct, fully confident that, in most cases, they will meet
that standard, and there is no "implicit" suggestion to the contrary. Ante
at . It is the recognition of the potential for abuse of power that has
caused our society, and law enforcement leadership, to insist that citizens
have the right to demand the most of those who hold such awesome powers.(15)

[...]

~Aimee