Commonwealth v. Hyde , 434 Mass. 594 ( 2001 )

Greaney, J.

This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute, G. L. c. 272, § 99, for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four counts of a complaint charging him with unlawfully intercepting the oral communications of another, in violation of G. L. c. 272, § 99 F. The defendant appealed, and we granted his application for direct appellate review. We conclude that G. L. c. 272, § 99, strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter. Accordingly, we affirm the judgments of conviction.

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.

Six days later, the defendant went to the Abington police station to file a formal complaint based on his unfair treatment during the stop. To substantiate his allegations, he produced the tape recording he had made. A subsequent internal investigation conducted by the Abington police department, which concluded on February 1, 1999, exonerated the officers of any misconduct.

In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of G. L. c. 272, § 99. A clerk-magistrate refused to issue the complaint, and the Commonwealth appealed. After a show cause hearing, a judge in the District Court ordered that the complaint issue.

The defendant filed a motion to dismiss the complaint. He claimed that G. L. c. 272, § 99, was intended to protect the privacy rights of individuals, and, because the police officers were performing official police duties during the stop of his car, they had no privacy expectations in their words, and, as a result, their conversation should not be considered “oral communication” within the statute. Because, in the defendant’s view, there was no interception of any “oral communication,” there could be no violation of G. L. c. 272, § 99. In support of his position, the defendant relied on Federal cases interpreting the term “oral communications” as defined in the Federal electronic surveillance statute, 18 U.S.C. § 2510 (2000), to require the speaker to have a justifiable expectation of privacy. The defendant asserted that Massachusetts courts have looked to Federal decisions interpreting the Federal statute for guidance in interpreting other portions of our electronic surveillance statute, see Commonwealth v. Look, 379 Mass. 893 (1980), and so we should also look to Federal precedent for the proper interpretation of the term “oral communication” in our statute.

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 defendant once again claims, as his principal argument, that the judge improperly denied his motion to dismiss, because the police officers did not possess any privacy interest in the words they spoke in the course of the stop, and, therefore, his tape recording of the encounter did not violate G. L. c. 272, § 99. The Commonwealth asserts that the plain language of the statute unambiguously expresses the Legislature’s intent to prohibit the secret recording of the speech of anyone, except in specifically delineated circumstances. We agree with the Commonwealth.

General Laws c. 272, § 99 C 1, set forth below,³ prohibits, unless otherwise specified in the statute, the intentional interception of any oral communication. The statute provides that “[t]he term ‘interception’ means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device[⁴] by any person other than a person given prior authority by all parties to such communication . . . .” G. L. c. 272, § 99 B 4. An “oral communication” is defined as “speech, except such speech as is transmitted over the public air waves by radio or other similar device.” G. L. c. 272, § 99 B 2. Exceptions to the general prohibition are clearly specified within the statute and include recordings by (1) a communication common carrier in the ordinary course of its business, see G. L. c. 272, § 99 D 1 a (commonly referred to as “service observing”); (2) persons using an "office intercommunication system in the ordinary course of their business, see G. L. c. 272, § 99 D 1 b; (3) an investigative or law enforcement officer, if the officer is a party to such communication or has been given prior authority by such a party, and if the recording is made in the course of investigating certain designated offenses in connection with organized crime, see G. L. c. 272, § 99 B 4 and 7; and (4) persons duly authorized to make specific interceptions by a warrant issued pursuant to the statute, see G. L. c. 272, § 99 D 1 d. The statute is carefully worded and unambiguous, and lists no exception for a private individual who secretly records the oral communications of public officials.

We have no doubt that the plain language of the statute accurately states the Legislature’s intent. The Report of the Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132, at 6, confirms that the statute’s strict prohibition of all secret recording by members of the public grew out of concern over the commercial availability of electronic devices capable of intercepting wire or oral communications, and the recognition that there was no way effectively to prohibit the sale or manufacture of these devices. These concerns led the commission to revise the prior version of the statute, which had allowed secret recording on private premises, see G. L. (Ter. Ed.) c. 272, § 101 (“nothing contained [herein] shall render it unlawful for any person to install and use such a device on premises under his exclusive control”), repealed by St. 1968, c. 738, § 5, to “strictly prohibit [the public from] electronic eavesdropping and wiretapping of other persons’ conversations without permission.” 1968 Senate Doc. No. 1132, at 9.

In addition, until the 1968 amendments, the law had permitted the recording of one’s own conversations, or conversations with the prior permission of one party (traditionally known as “one-party consent”). See G. L. c. 272, § 99, as appearing in St. 1959, c. 449, § 1 (“Whoever . . . secretly or without the consent of either a sender or receiver . . .”). The commission revised the statute generally to disallow recordings made with one-party consent, thus rejecting the prevalent approach taken by other States, and by the comparable Federal electronic surveillance statute, that generally permitted wiretapping and eavesdropping in cases of one-party consent. See Commonwealth v. Thorpe, 384 Mass. 271, 280 n.7 (1981), cert. denied, 454 U.S. 1147 (1982) (examining Legislature’s decision in 1968 amendments to allow some warrantless surveillance by law enforcement officers, but limiting the reach of one-party consent to interception of offenses in connection with organized crime). The commission clearly designed the 1968 amendments to create a more restrictive electronic surveillance statute than comparable statutes in other States.⁵ See Commonwealth v. Jackson, 370 Mass. 502, 506 & n.6 (1976). We conclude that the Legislature intended G. L. c. 272, § 99, strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge.

We reject the defendant’s argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute’s preamble expresses the Legislature’s general concern that “the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth” and this concern was relied on to justify the ban on the public’s clandestine use of such devices. G. L. c. 272, § 99 A. See Commonwealth v. Gordon, 422 Mass. 816, 833 (1996). While we recognize that G. L. c. 272, § 99, was designed to prohibit the use of electronic surveillance devices by private individuals because of the serious threat they pose to the “privacy of all citizens,” the plain language of the statute, which is the best indication of the Legislature’s ultimate intent, contains nothing that would protect, on the basis of privacy rights, the recording that occurred here.⁶ In Commonwealth v. Jackson, supra at 506, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim’s brother would not be prohibited under G. L. c. 272, § 99: “[W]e would render meaningless the Legislature’s careful choice of words if we were to interpret ‘secretly’ as encompassing only those situations where an individual has a reasonable expectation of privacy.” Id.⁷

The defendant concedes the restrictive nature of the statute’s language, but urges us, nevertheless, to recognize an exception to the statute’s prohibition. In support of his request, the defendant cites Commonwealth v. Gordon, supra at 832-833, where this court held that G. L. c. 272, § 99 P, which allows a criminal defendant to move to suppress evidence obtained in violation of G. L. c. 272, § 99, does not prohibit a judge from allowing in evidence routine administrative recordings of a defendant’s booking procedure following an arrest. That decision, however, dealt primarily with the admissibility of a secret recording as evidence, and not with whether a violation of the statute had occurred. Moreover, the defendant cannot claim that his recording was made as a routine, administrative procedure, when the record indicates that he recorded the officers’ words fully intending to use the recording as proof in his subsequent complaint of police misconduct.⁸

The defendant argues that his prosecution was tantamount to holding him criminally liable for exercising his constitutional rights to “petition [the government] for redress of his grievances and to hold police officers accountable for their behavior.” This argument has no merit. The defendant freely exercised his right to petition by filing his complaint of police misconduct with the Abington police department. An internal investigation was conducted pursuant to his complaint, which included, according to the trial testimony of the officer in charge of the investigation, a review of the defendant’s tape of the encounter. The defendant was not prosecuted for making the recording; he was prosecuted for doing so secretly.

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 612-613. 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. See Commonwealth v. Thorpe, supra at 279 (“the Legislature proceeded on the premise that electronic surveillance is anathema except within certain narrowly prescribed boundaries”). See also Commonwealth v. Gonzalez, 426 Mass. 313, 315 (1997); O’Sullivan v. NYNEX Corp., 426 Mass. 261, 263 (1997); Commonwealth v. Blood, supra at 66. Despite efforts to circumscribe its holding, the dissent, by logical extension, would permit the untrammeled interception of communications by legislators, executive officers and agents, judicial officials, municipal officers, among others, on the erroneous supposition that public accountability requires the practice. It is not our function to craft unwarranted judicial exceptions to a statute that is unambiguous on its face, and, particularly, not to attempt to do so by subjecting police and public officials to sinister accusations or by evoking unwarranted fears that legitimate interests of the media may be harmed by the statute. See Commonwealth v. Thorpe, supra at 279-280.¹⁰

Finally, some comment is in order on the dissent’s appeal to the now-famous Rodney King videotape, recorded in Los Angeles, California, by George Holliday on March 3, 1991, post at 606-607. The appeal interjects emotional rhetoric into what should be a straightforward matter of statutory interpretation. The California electronic surveillance statute prohibits only the recording of “confidential communication,” and excludes “communication made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded,” Cal. Penal Code § 632 (a) and (c) (West 1999), and, therefore, would have no application to Holliday’s videotape. 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.” Commonwealth v. Jackson, 370 Mass. 502, 506 (1976). There is no basis to ignore the plain language and legislative history of G. L. c. 272, § 99, or our case law interpreting it, in favor of speculation as to how an imaginary scenario might have played out, had the Rodney King episode occurred in Massachusetts and not in California.¹¹

The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.¹² Had he done so, his recording would not have been secret, and so would not have violated G. L. c. 272, § 99. See Commonwealth v. Jackson, supra at 507 (no “interception” when defendant was aware his voice was being recorded). Secret tape recording by private individuals has been unequivocally banned, and, unless and until the Legislature changes the statute, what was done here cannot be done lawfully.

Judgments affirmed.

1 According to the testimony of the officers who made the stop, the defendant was loud, argumentative, and uncooperative. Although the police officers and Daniel Hartesty, a passenger in the defendant’s car, attempted to calm the defendant, he became more and more unruly as the stop progressed. Hartesty, on the other hand, testifying for the defendant, stated that the defendant was not combative, but that the defendant and the officers “were bickering.” Hartesty also testified that he was illegally searched and that one officer threatened to give the defendant a road sobriety test, which the officer “promised” the defendant would fail.

2 The definition of “oral communication” in the Federal electronic surveillance statute is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.” 18 U.S.C. § 2510(2) (2000).

3 The relevant text of G. L. c. 272, § 99 C 1, reads as follows:

“Except as otherwise specifically provided in this section any person who — willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.”

4 The term “intercepting device” is defined as “any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication.” G. L. c. 272, § 99 B 3.

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).

7 We reject the defendant’s argument that police officers acting in their official capacity are not “persons” entitled to the protection of G. L. c. 272, § 99. See Commonwealth v. Voight, 28 Mass. App. Ct. 769, 771-773 (1990) (town, as political subdivision of Commonwealth, cannot be victim of telephone harassment, but dispatcher, as individual public employee, could be appropriate victim).

8 The defendant also points to Dillon v. Massachusetts Bay Transp. Auth., 49 Mass. App. Ct. 309 (2000), where the Appeals Court departed from the statute’s strict language banning electronic recording except that done by telephone equipment supplied by a communications common carrier (i.e., a telephone company). See G. L. c. 272, § 99 B 3. Recognizing sweeping changes in the telecommunications industry since the statute’s enactment, and the fact that common telephone equipment is now widely available from entities other than telephone companies, the court properly allowed the exception to apply, even though the intercepting device had been obtained from a commercial equipment manufacturer. Id. at 315-316 (“We do not depart lightly from the express wording of a statute . . . but in the unusual circumstances appearing here we agree with the court below that a deviation is justified”). The Dillon decision is easily distinguishable from this case. The court departed from the words of the statute to preserve the Legislature’s intent; here, as discussed above, the relevant provisions of the statute mirror the Legislature’s intent.

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 deféndant’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).

11 The dissent’s presumption that Holliday would have been prosecuted, under Massachusetts law, for wilfully committing an interception of an oral communication, is unwarranted. Although the Rodney King videotape visually captured the conduct of the police officers’ interaction with King, the recording was virtually inaudible, until electronic enhancements filtered the audio portion to allow the actual commands of the police officers to be heard. See United States v. Koon, 34 F.3d 1416, 1427 & n.3 (9th Cir. 1994), aff’d in part and rev’d in part, 518 U.S. 81 (1996).

12 The Commonwealth suggests that the defendant’s alleged unruly conduct during the stop was a purposeful attempt to “bait” the officers into saying something improper, which would be duly recorded. The statute requires only that the recording be secret and intentional, and, therefore, it is irrelevant whether the situation was as the Commonwealth claims, or whether the defendant’s recording was a sincere effort to protect himself from police harassment.