Commonwealth v. Hyde

Marshall, C.J.

(dissenting, with whom Cordy, J., joins). In the early morning hours of Sunday, March 3, 1991, George Holliday was awakened by a commotion outside his apartment. From his window he saw an African-American man being beaten by uniformed police officers. Holliday did more than watch. He recorded on videotape (with sound) the officers’ clubbing the man with fifty-six baton strokes, and kicking him viciously about the head and body.1 The graphic videotape of the arrest of Rodney King was subsequently viewed on television by millions of Americans, causing a public outcry and leading to a comprehensive investigation of the use of excessive force by the Los Angeles police department. The videotape also served as the catalyst for the formation of The Christopher Commission, established to investigate the incident. The commission concluded that police misconduct was a serious problem within the department, and that major reform efforts were needed. The commission wrote of the importance of the Holliday videotape:

“Our Commission owes its existence to the George Holliday videotape of the Rodney King incident. Whether there even would have been a Los Angeles Police Department investigation without the video is doubtful, since the efforts of King’s brother ... to file a complaint were frustrated, and the report of the involved officers was falsified.”2

The videotaped events occurred in Los Angeles. Had they occurred in Massachusetts, under today’s ruling Holliday would have been exposed to criminal indictment rather than lauded for *607exposing an injustice.3 That can be the result only if the Legislature intended the criminal statute, G. L. c. 272, § 99, to apply in these circumstances. It did not. I therefore respectfully dissent.

There is nothing in the legislative history of the wiretapping statute, G. L. c. 272, § 99, in the preamble to the legislation, or in the language of the statute that compels the result reached by the court today. The legislative history makes clear that the intent of the statute, as amended in 1968,4 is twofold. First, the amendments were designed to authorize and to regulate the government’s use of wiretaps and other surveillance devices. See Interim Report of the Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132, at 1-2 (1968 Report) (commission “desires close judicial supervision over all aspects of the process of eavesdropping and wiretapping as it is performed by law enforcement officers”). Supervision of governmental surveillance and eavesdropping was viewed as necessary to “eliminate the possibility of abuse and add to the public’s confidence in the manner in which this statute is employed by law enforcement officials.” 1968 Report at 8.

Second, the amendments were intended to protect the privacy of citizens by regulating nongovernmental “surveillance,” particularly in two circumstances identified by the Special Commission as posing serious risks to that privacy: (i) the Legislature was concerned about the newly discovered practice of private telephone companies’ eavesdropping on the conversa*608tians of its private customers5; and (ii) the commission heard evidence that new technology had made “eavesdropping devices” or “bugs,” such as subminiature transmitters, “readily available” to “private investigators” and “private parties.” Even if detected, the commission cautioned, “one can never learn the identity of the eavesdropper.” Interim Report of the Special Commission on Electronic Eavesdropping, 1967 Senate Doc. No. 1198 at 3 (1967 Report). The commission recommended that, to protect the privacy of citizens, individuals be prohibited from using these “wiretapping and eavesdropping devices” to record their private conversations.6 There is no hint in the legislative history that the Legislature contemplated the circumstances at issue in this criminal case: the tape recording of an encounter on a public way between a citizen and a police officer engaged in his official duties.7

The 1968 amendments to the wiretapping statute, St. 1968, *609c. 738, § 1, at issue here, were enacted shortly after the special commission’s report, and reflect these same two purposes. First, the statute authorized the police to engage in secret electronic surveillance of citizens suspected of organized crime: The statutory preamble notes that “[n]ormal investigative procedures are not effective” in combating the “increasing activities of organized crime” and that “law enforcement officials must be permitted to use modem methods of electronic surveillance . . . when investigating these organized criminal activities.” Id.8

Second, the Legislature noted that the “uncontrolled development and unrestricted use of modem electronic devices” posed grave dangers to the “privacy of all citizens of the commonwealth.” With these twin objectives in mind, the Legislature placed substantial restrictions on “surveillance” and “eavesdropping” by government officials. See Commonwealth v. Gordon, 422 Mass. 816, 833 (1996) (“It is apparent from the preamble that the legislative focus was on the protection of privacy rights and the deterrence of interference therewith by law enforcement officers’ surreptitious eavesdropping as an investigative tool”). The Legislature also restricted “surveillance” and “eavesdropping” by private individuals to protect those same privacy interests. See Commonwealth v. Jackson, 370 Mass. 502, 507 (1976) (statutory language and legislative policy of “protecting the privacy of our citizens”). To that end the Legislature both prohibited “interceptions,” and provided a *610civil remedy for any person “aggrieved” by such “interceptions,” described by the Legislature as one who “ha[s] standing to complain that his . . . privacy was invaded in the course of an interception.” G. L. c. 272, § 99 B 6 and Q. The legislative intent as reflected in the statutory language is explicit: to protect the privacy interests of citizens. While the statutory language enacted to accomplish these purposes can be broadly read, there is no suggestion that the Legislature had in mind outlawing the secret tape recording of a public exchange between a police officer and a citizen.

The criminal conviction of Michael Hyde is (apparently) the first time that a citizen of Massachusetts has been convicted because he tape recorded an exchange with a police officer performing an official function in a public place in the presence of a third party, potentially within the sight and hearing of any passerby.9 Now to hold, as the court does, that a police officer possesses a privacy interest in statements he makes as a public officer effectuating a traffic stop sets the jurisprudence of this Commonwealth apart from all others.

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 *611statute “into a sword available for use against individuals by public officers acting in their official capacity.” Id. at 808.11

This court’s attempt to distinguish State v. Flora, supra at 610, as “inapposite” because the “Washington electronic surveillance statute prohibits only the secret recording of private conversations” is not persuasive. Ante at 600-601 n.6.12 Like its Washington counterpart, the Massachusetts statute protects, as it was intended to, the privacy of citizens. See G. L. c. 272, § 99 B 6 (“aggrieved person” is one whose “privacy was invaded in the course of an interception”).13 Both the language of the *612statute and its legislative history make clear that the Legislature was concerned only with protecting the secret recording of conversations in which there was a legitimate expectation of privacy. None exists here.

The purpose of G. L. c. 272, § 99, is not to shield public officials from exposure of their wrongdoings. I have too great a respect for the Legislature to read any such meaning into a statute whose purpose is plain, and points in another direction entirely. Where the legislative intent is explicit, it violates a fundamental rule of statutory construction to reach a result that is plainly contrary to that objective. See Commonwealth v. Gordon, supra at 832-833 (court declined to read wiretapping statute “literally” in “absence of more specific statutory language” that broad definition of interception outlawed unconsented audiotaping of booking procedures, noting that “in light of the preamble, we are unwilling to attribute that intention to the Legislature”). See Commissioner of Pub. Works v. Cities Serv. Oil Co., 308 Mass. 349, 360 (1941) (statutes are to be interpreted “in the light of the Constitution and of the common law, to the end that they be held to cover the subjects presumably within the vision of the Legislature” and “be not stretched” to “comprehend matters not within the principle and purview on which they were founded”). “The public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner.” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). To hold that the Legislature intended to allow police officers to conceal possible misconduct behind a cloak of privacy requires a more affirmative showing than this statute allows.

In our Republic the actions of public officials taken in their public capacities are not protected from exposure. Citizens have a particularly important role to play when the official conduct at issue is that of the police. See Rotkiewicz v. Sadowsky, 431 Mass. 748, 754 (2000) (recognizing importance of “public discussion and public criticism directed toward the performance” of police officers). Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials responsible by recording — secretly recording on occasion — an interaction between a citizen and a police officer.

*613The court suggests, ante at 602-603, 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 602. 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

The court’s ruling today also threatens the ability of the press — print and electronic — to perform its constitutional role of watchdog. As the court construes the Massachusetts wiretapping statute, there is no principled distinction to explain why members of the media would not be held to the same standard *614as all other citizens. See, e.g., Associated Press v. NLRB, 301 U.S. 103, 122-133 (1937) (“The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others”). See also Branzburg v. Hayes, 408 U.S. 665, 682 (1972) (“It is clear that the First Amendment [to the United States Constitution] does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability”). The statute, on its face, makes no exception for members of the media or anyone else. Had Michael Hyde, the defendant in this case, been a news reporter he could have faced the same criminal consequences that the court now sanctions.16 If the statute reaches actions by police officials acting in their public capacities in the plain view of the public, the legitimate news gathering of the media is most assuredly implicated.

I would reverse the conviction.

See Witnesses Depict Relentless Beating by Police, Los Angeles Times, Mar. 7, 1991, at B1. See also United States v. Koon, 34 F.3d 1416, 1424-1425 (9th Cir. 1994), rev’d in part, aff’d in part, 518 U.S. 81 (1996) (convictions affirmed).

Report of the Independent Commission on the Los Angeles Police Department at ii (1991). Holliday’s videotape also led to the Federal indictment of four officers, two of whom were convicted of violating King’s civil rights by the use of unreasonable force. See United States v. Koon, supra at 1462.

The court’s suggestion, ante at 605 n.11, that Holliday would not face prosecution because his 1991 recording was “virtually inaudible” is unwarranted. Electronic recordings are routinely enhanced to clarify the sound. See, e.g., United States v. Carson, 969 F.2d 1480, 1493 (3d Cir. 1992) (audio enhancement of wiretap surveillance tapes to improve quality); United States v. Vastola, 915 F.2d 865, 869 (3d Cir. 1990) (same).

The Massachusetts wiretapping statute, G. L. c. 272, § 99, was first enacted in 1920. St. 1920, c. 558, § 1. It was substantially modified in 1959, St. 1959, c. 449, § 1. In 1964, the Senate established a special commission to investigate electronic “eavesdropping” and “wire tapping recording devices.” Res. 1964, c. 82. Interim reports were filed in 1967 and 1968. The 1968 amendments to G. L. c. 272, § 99, followed shortly thereafter. St. 1968, c. 738, § 1. See Commonwealth v. Thorpe, 384 Mass. 271, 280 n.7 (1981), cert. denied, 454 U.S. 1147 (1982).

During the course of its hearings the Special Commission discovered for the first time that for decades New England Telephone and Telegraph Company had secretly engaged in “service observation practices” in which the company intercepted and recorded customer-to-customer calls and customer-to-company calls. The commission stated that “[w]e cannot understand why apparently no one in the [Department of Public Utilities] thought it outrageous that the company would monitor customer-to-customer calls to gain customer comments on service” (emphasis removed). 1967 Report at 14.

A concurring report filed by two members of the special commission, Elliot B. Cole and William P. Homans, Jr., makes abundantly clear that the “prohibition of wiretapping and eavesdropping by the public” was to protect the privacy of citizens engaged in personal conversations. The two members quoted from a letter to the commission by Professor Alan Westin, the author of Privacy and Freedom, expressing his opposition to “one-party consent” provisions. Professor Westin explained that one-party consent provisions inhibit a person “to speak frankly and freely in personal conversation.” Professor Westin refers to a 1958 opinion by West Germany’s highest civil court against one-party “surveillance,” in which the opinion notes “that the individual expresses his personality in private conversation, and has a right to do so freely, without distrust and suspicion” (emphasis added). 1968 Report at 12 (concurring report).

Audio tape recorders (the device at issue in this criminal case) were hardly new technology in 1968. The 1967 Report makes clear that what concerned the Legislature were “eavesdropping devices” (“bugs”) and other sophisticated inventions of then-recent origin that could be concealed in telephones or walls, and could “transmit a very clear signal at least 7 blocks in downtown Boston and can pick up a whisper at 20 feet.” See 1967 Report at 3.

It is clear that authorizing electronic wiretapping to combat organized crime was the primary focus of the 1968 amendments to the statute. See 1968 House Doc. No. 3797, Message from His Excellency the Governor Recommending Legislation to Assist Law Enforcement Officials to Combat Crime in the Commonwealth, Feb. 6, 1968 (The “shocking events of the last few days” demonstrate the need to “enact an electronic surveillance law that allows law enforcement officials to obtain evidence ... by striking at the communications links essential to the operation of criminal organizations”). The “shocking events” referred to by Governor John A. Volpe involved an attack on attorney John E. Fitzgerald, Jr., who lost a leg and nearly died after organized crime members placed a bomb in his vehicle. See Barboza’s Lawyer Loses Leg in Everett Dynamite Blast, Boston Globe, Jan. 31, 1968, at 1. Attorney Fitzgerald represented Joseph (Barboza) Baron, an informer who was the star witness in a trial of four men accused of a gangland murder. Id. See also The Rule of Terror, Boston Globe, Feb. 1, 1968, at 14 (“[t]he underworld struck at the very core of ordered society Tuesday when it nearly killed . . . counsel for gangland informer”).

The Commonwealth points to no other convictions, nor even an indictment, in circumstances such as these.

The court is correct that the Massachusetts statute is more restrictive than some other States, but not for the reasons it suggests. Ante at 599-600. In Commonwealth v. Jackson, 370 Mass. 502, 506 & n.6 (1976), we distinguished our statute from those in other States that permit so-called “one-party consent.” Our Legislature did reject the use of one-party consent surveillance (see note 6, supra), but the Legislature made abundantly clear that its intent was to curtail “surveillance” in order to protect the privacy of citizens. See Commonwealth v. Jackson, supra at 505.

In one other case, also referred to by the court, ante at 604 n.10, People v. Beardsley, 115 Ill. 2d 47 (1986), the defendant was convicted of eavesdropping when he recorded the conversation of two police officers sitting in the front seat of a police squad car, while he was in the back. The Supreme Court of Illinois reversed the conviction, noting that the police officers knew he had a tape recorder with him, which he had been openly using only minutes before. Id. at 55. The Legislature of Illinois had amended its wiretapping statute to prohibit the recording of any conversation unless all parties consented, as the Massachusetts statute requires. Although the police in that case had not consented to the recording, the Illinois court held that the amendment “does not alter the basic concept of the conduct at which the statute is aimed ... a surreptitious interception of a private conversation . . . listening in secret to what is said in private.” Id. at 58. As the court notes, ante at 604 n.10, eight years later, the Illinois Legislature amended its wiretapping statute to prohibit the secret recording of conversations “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 In re Marriage of Deborah Almquist, 299 Ill. App. 3d 732, 736 (1998) (Illinois General Assembly added definition of “conversation” to the eavesdropping statute by Pub. Act 88-677, effective December 15, 1994). The Massachusetts wiretapping statute contains no such provision.

The court also attempts to distinguish Commonwealth v. Henlen, 522 Pa. 514, 517 (1989). Ante at 604 n.6. In that case a prison guard suspected of theft recorded his interrogation by police. The court held that the parties did not have a protected privacy interest, and there was no violation of the Pennsylvania statute. Id. That case is akin to Commonwealth v. Gordon, 422 Mass. 816, 833 (1996), in which we also held that the secret videotaping of the defendants’ booking at the police station was not a violation of the wiretapping statute, because the Legislature did not “appear to have had in mind the recording of . . . booking steps following an individual’s arrest.”

Contrary to the court’s suggestion, ante at 601 n.7, Commonwealth v. Voight, 28 Mass. App. Ct. 769, 771-773 (1990), did not establish that police officers, acting in their official capacity, are “persons” entitled to statutory protection. The court in Voight correctly expressed that public officials acting in their official capacity are not generally considered “persons” unless expressly designated. Id. at 771, citing G. L. c. 4, § 7 Twenty-third.

The court’s suggestion, ante at 603, that undercover police officers engage in the type of conduct to which Michael Hyde was subjected lacks any support. Undercover officers inhabit a unique position in the world of law enforcement, and daily face perilous situations while concealing their identity as police officers. Because of the covert and hazardous nature of their important work, such conduct can hardly be contemplated because it would place them in even greater jeopardy than they already are.

Boston Police Commissioner Paul F. Evans has said that holding officers under his command to the highest ethical standards is a priority: “The integrity of the department is the most important concern I have [and] when the department’s trust and integrity is questioned I am going to respond.” See An Outside Review for Hub Police, Boston Globe, Sept. 17, 1997, at A1.

The scope of the court’s ruling encompasses any citizen stopped by the police, not just those who may have violated some law. No traffic citation was issued to Michael Hyde, and he was not charged with any crime.