POLICE OFFICERS may be hiding their identity by working undercover, but that doesn’t necessarily give them the right to record suspects covertly. Whether secret cell phone recordings of a drug deal – using increasingly common law enforcement technology – run afoul of the state’s highly protective wiretap statute will now be a question for the Supreme Judicial Court.
Lower courts determined that an undercover Boston police officer, using a cell phone application, made surreptitious audio-visual recordings of three purchases of drugs without the seller’s knowledge or consent and without obtaining a warrant. The officer used Callyo – a law enforcement software acquired by Motorola in 2020 – to make real-time audio-video recordings on a phone, transmit them live to other officers using the application, and store the recordings in the cloud.
The technology is widely used across the country by law enforcement, the Suffolk district attorney’s office argued during its appeal.
“Even accepting this representation and accounting for the sophisticated investigatory uses to which Callyo is being put elsewhere as described in reported cases from other jurisdictions,” then-Appeals Court Justice Gabrielle Wolohojian wrote at the time, “the Legislature has created a strong bulwark against secret surveillance by law enforcement in this Commonwealth.” Wolohojian has since been elevated to a seat on the SJC.
The state wiretap statute broadly prohibits recording or intercepting communications without the recorded person’s consent. It is, Wolohojian wrote, “among the most protective of electronic surveillance statutes in the country,” adding “the statute is adequately designed to deal even with a sophisticated and novel surveillance tool such as Callyo.”
The Drug Control Unit of the Boston Police Department began a narcotics investigation into Than Du in November 2019. According to filings, they first met up in person that month and Du sold the undercover officer “a brown substance believed to be narcotics” for $100. A similar exchange occurred twice more, with all transactions “recorded and transmitted via Callyo.”
According to the Suffolk district attorney’s filing, an officer who witnessed the transmission of the Du deal said the officer “would not necessarily have concealed the cellphone he was using to record the defendant, but acknowledged that it would be pointless to record a suspected drug dealer who knew he was being recorded.”
An important part of the legal wrangling in the case has centered on arguments over whether audio and video recordings are to be treated differently under the law.
Du was charged with multiple counts of distributing class A and B substances as a subsequent offender, but his attorney moved to suppress the evidence recorded by Callyo. The trial court judge decided to suppress only the audio portion of the recording. The judge concluded – incorrectly in the Appeals Court’s view – that Du’s motion to suppress the recording was limited to audio.
Initially and on appeal, law enforcement argued that the recordings are covered by an exception to the wiretap statute if police have a reasonable suspicion that the defendant is engaged in a specific offense in connection with organized crime. Law enforcement also argued that the defendant had no reasonable expectation of privacy in public places, and the recording was not secret. Justices were unconvinced.
The district attorney’s office did not prove a coordinated criminal effort, nor does being in public undermine an expectation of privacy when it comes to the wiretap statute, Wolohojian wrote. It matters whether the person actually knew that they were being recorded. Further, the “audio and visual components were captured during a unitary audio-visual recording,” the court concluded, and should be treated as linked contents.
In its SJC filing, the Suffolk district attorney’s office argues that the undercover officer was openly holding a phone in his hand, and Du may have been aware he was being recorded, just not by police. The video recording, law enforcement argues, should be treated differently than audio because a silent video does not suggest that there was an illegal audio recording of the conversation and does not in itself violate the bar against secretly recording conversations.
The SJC is scheduled to hear arguments on Commonwealth v. Thanh Du on September 6.
The case has implications across law enforcement. Even under the strict Massachusetts wiretap law, “the Commonwealth [is able] to insulate itself prophylactically from liability by obtaining a warrant,” Wolohojian noted. But Callyo tech is being deployed widely without warrants attached.
A group of plaintiffs filed a potential class-action lawsuit in February in federal court, arguing that the Massachusetts State Police’s use of Callyo to record nearly 200 people violates state law and the federal right to due process.
Nine district attorneys submitted a brief in Du’s case, arguing that a visible cell phone indicates active recording and again arguing that audio and video recordings should be considered separate issues under the law. “The wiretap statute does not prohibit and cannot be used to suppress secret video-recordings,” they wrote.
The Massachusetts Association of Criminal Defense Lawyers disagreed in its brief. “The idea that individuals should assume that any cellphone in ‘plain view’ could legally be recording every conversation conflicts with the wiretap statute’s animating purpose,” they wrote, which is “to reassure citizens that the law in fact protects them from new forms of electronic surveillance, so that they can carry on personal conversations without fear that others may be listening in.”
