(dissenting, with whom Armstrong and Brown, JJ., join). I respectfully dissent.
*127In Commonwealth v. Blood, 400 Mass. 61 (1987), the court found a violation of art. 14 of the Massachusetts Declaration of Rights in circumstances in which face-to-face conversations in private homes were secretly transmitted by an informant to police. Further, the transmitted conversations in Blood took place within a “circle of known listeners.” Id. at 77. In stating that “we need not reconsider the question of the constitutionality of [the statutory one-party consent exemption] in other circumstances, [citing] Commonwealth v. Thorpe, 384 Mass. 271, 285-286 (1981), cert, denied, 454 U.S. 1147 (1982),” id. at 66 n.6, Blood implicitly recognized that telephone conversations stand on different constitutional footing and have been accorded different treatment by our statute and prior decisions. It is significant that the Alaska and Vermont cases relied on by the majority do not involve eavesdropping on an extension telephone with the consent of one of the participants. Moreover, the Alaska decisions are grounded, in part, on the “broader protection” afforded by a right to privacy expressly set forth in an amendment to the Alaska Constitution. State v. Glass, 583 R2d 872, 878-879 (Alaska 1978). State v. Thornton, 583 P.2d 886, 887 (Alaska 1978).
Commonwealth v. Thorpe, supra, is our only decision addressing privacy rights in telephone conversations under art. 14. After first concluding that the warrantless recording by a known police officer of his telephone conversations with the defendant fell within the G. L. c. 272, § 99 B 4, statutory exception for law enforcement officers, 384 Mass, at 281, the court determined there was no violation of art. 14, because “free speech and privacy values are [not] unduly threatened by the risk that when one speaks to a known police officer he may be recording the conversation.” 384 Mass, at 285.1 The Thorpe decision left *128untouched the analysis in Commonwealth v. Douglas, 354 Mass. 212, 221-222 (1968), cert, denied, 394 U.S. 960 (1969), where, on facts similar to the present case, the court concluded that there was “[n]o illegal search or other violation of any constitutional . . . provision” 2 where police listened on an extension telephone and the'speaker’s conversation was recorded with the permission of the receiving party. Id. at 222.3 Thus, I discern no explicit indication in either Thorpe or Blood, each resting on narrow footing, that art. 14 provides a greater right of privacy in telephone conversations than the Fourth Amendment to the United States Constitution in the particular circumstances of the present case.
In any event, I examine anew the defendant’s claimed expectation of privacy. As the majority points out, any subjective expectation of privacy that he may have had in the circumstances must also be “one which society could recognize as reasonable.” Commonwealth v. Blood, 400 Mass, at 68. The expectation of privacy espoused by the majority, however, reflects an idealization of the nature of telephonic communications and a rejection of our common experience with multiparty lines, telephone systems comprised of multiple extensions, cordless telephones, and cellular “phones,” all of which may, and occasionally do, subject our conversations to uninvited and unknown listeners.
In sharp contrast to face-to-face conversations among known listeners in private homes, telephone communications commonly are transmitted externally from the physical confines of the speaker to a receiver outside of the speaker’s control. A telephone speaker, therefore, cannot control the listening environment as one may do in face-to-face conversations with selected listeners in a home or other private setting. “A defendant who speaks incriminating words over the telephone runs the risk that the person with whom he talks may be an informer (see Hoffa v. *129United States, 385 U.S. 293, 302-303 [1966]) or that the conversation [as in Rathbun v. United States, 355 U.S. 107, 109-111 (1957)] may be overheard on an extension telephone. ... He also should be held to take the risk that his words may be recorded by his listener.” Commonwealth v. Douglas, 354 Mass, at 221-222. See also United States v. Miller, 720 F.2d 227, 228 (1st Cir. 1983), cert, denied, 464 U.S. 1073 (1984). It follows that a person’s expectation that his spoken words will remain private should decline as his control of the listening environment diminishes. Compare Commonwealth v. Panetti, 406 Mass. 230, 234-235 (1989) (indicating that a subjective expectation of privacy against warrantless eavesdropping is “more reasonable” under art. 14 when conversing with others in one’s home than when the conversation is in a motel or hotel room). See Comment, 24 Suffolk U. L. Rev. 1130, 1136 (1990) (“The emerging trend in this area is that privacy is protected only within the areas where one maintains virtually exclusive control”). Because eavesdropping, with one party’s consent, over a telephone extension occurs within a listening environment that is significantly less controlled by the speaker than in the Commonwealth v. Blood circumstance of a face-to-face communication in the speaker’s home, I discern no occasion to extend the protection of art. 14.
The rejection in Blood of the “one-party consent” rationale in the circumstances of that case does not control expectation of privacy analysis in other circumstances; specifically, I perceive no mandate for the extension of additional art. 14 protection to telephone speakers. Accordingly, I believe that the defendant’s privacy claim is governed by the well-settled proposition developed under Fourth Amendment jurisprudence that “listening in to a telephone conversation on an extension, with the consent of one party, does not violate the rights of the other party . . . .” United States v. Miller, 720 F.2d at 228, citing United States v. White, 401 U.S. 745, 753 (1971). Cf. Commonwealth v. Thorpe, 384 Mass, at 282. See Rathbun v. United States, 355 U.S. at 111 (“Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain”).
*130Lastly, I am troubled by the majority’s interpretation of the “substantial risk of a miscarriage of justice” standard. By adverting to that principle, designed for sparing use in instances of unpreserved error, see Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967), the majority implicitly concludes, as do I, that defense counsel did not adequately preserve the right of privacy issue for ordinary “harmless error” appellate review. In the absence of objection, appellate focus, in contrast to the majority’s approach, normally and logically next settles upon whether counsel’s failure to object amounted to constitutionally ineffective assistance. That test, in the circumstance of claimed erroneous admission of evidence, permits “but for” review; that is, the case is assessed without the offending evidence. See Strickland v. Washington, 466 U.S. 668, 694 (1984). Reversal is required if counsel’s performance was substandard and “deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Given the majority’s view of the damaging impact of the eavesdropping testimony upon the defendant’s case, I can only conclude that they avoided this test on the basis of a determination that the ordinary fallible lawyer would not be expected to argue for a departure from settled Federal constitutional law, even if the change is implicitly foreshadowed by State appellate decision, as they claim.
In rushing to the next logically applicable test — whether there exists a substantial risk of a miscarriage of justice — the majority, however, blinks away a settled appellate principle dictating that highly incriminating, but unobjected to, evidence is not removed from the appellate calculus even when it is obtained in violation of constitutional protections against unreasonable searches. That principle, firmly embedded in the first element of miscarriage analysis established by Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 n.22 (1986), and recently endorsed in Commonwealth v. Amirault, 424 Mass. 618, 650-651 (1997), is not limited to collateral review, as the majority would have it, but merely differentiates among cases in which the offending evidence overwhelmingly establishes the defendant’s guilt, as here, and cases in which that evidence is not conclusive. Moreover, the recent conflation of the ineffectiveness of counsel and miscarriage standards for purposes of collateral review in Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994), and Commonwealth v. *131Amirault, supra at 652 n.24, apparently raising the burden for defendants on new trial motions in criminal cases, reasonably cannot be construed as .lowering that burden on direct appeal.
The court in Thorpe, citing reasoning of other jurisdictions, cautioned that “the better future course, and the most secure course constitutionally,” would be to procure warrants even in instances where it appears the statute does not require one. Id. at 286. Thorpe cited with approval the decision in People v. Beavers, 393 Mich. 554, cert, denied, 423 U.S. 878 (1975), as reflecting one of two jurisdictions interpreting their constitutional provisions to bar “warrantless monitoring and recording without the consent of the speaker.” Id. at 283. More recently, People v. Collins, 438 Mich. 8 (1991), explicitly overruled Beavers after a review of developments in electronic monitoring since the Beavers decision, and noted that “the highest courts in . . . twenty-four states [of twenty-six] in which the issue has been addressed have ruled that their constitutions do not require a warrant.” Id. at 35. See also 1 LaFave, Search & Seizure, § 2.2(e), at 447 n.221 (3d ed. 1996) (also collecting cases). See *128generally Annot., Eavesdropping on Extension Telephone as Invasion of Privacy, 49 A.L.R.4th 430 (1986 & Supp. 1996).
Commonwealth v. Thorpe, 384 Mass, at 282, cited Commonwealth v. Douglas, supra, as “involving [a] challenge under [the] Federal Constitution only.” See also Kiely, Warrantless Electronic Surveillance in Massachusetts, 67 Mass. L. Rev. 183, 191 (1982).
The “one-party consent” exception, under an earlier version of G. L. c. 272, § 99, was retained through St. 1968, c. 738, § 1, which codified the exception in its current form, now § 99 B 4. See Commonwealth v. Thorpe, 384 Mass, at 280 n.7.