Com. v. Ennis

• Decision Date: 27 March 2003
• Citation: 785 N.E.2d 677,439 Mass. 64
• Parties: COMMONWEALTH v. Demetrius ENNIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

785 N.E.2d 677

439 Mass. 64

COMMONWEALTH v. Demetrius ENNIS.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued January 9, 2003.

Decided March 27, 2003.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Craig S. Havel (Jon C. Taylor, Brighton, with him) for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

The issue in this interlocutory appeal is whether an audiotape recording by the Department of Correction (department) of a three-way telephone conversation among on inmate at the Plymouth County house of correction, the defendant and a codefendant must be suppressed pursuant to G.L. c. 272, § 99 P,¹ where the inmate and the codefendant knew that the conversation was being recorded, but the defendant did not. We conclude that the recording need not be suppressed.

1. Background. On February 22, 2000, a grand jury in Plymouth County returned an indictment against the defendant, Demetrius Ennis, charging him with murder in the first degree. On July 16, 2001, Ennis filed a motion to suppress the audiotape recording, which contained allegedly incriminating statements. A Superior Court judge allowed the motion and suppressed the recording. The Commonwealth took an interlocutory appeal, and we transferred the case here on our own motion.

2. Discussion. We first summarize the relevant uncontested findings of the motion judge. On December 28, 1999, the victim was found shot to death in the trunk of his automobile. During the ensuing investigation, the police learned of a telephone conversation that had taken place on the same day among Steven Knight, Jaear Williams, and Ennis. At the time, Knight was an inmate in the Plymouth County house of correction, and the telephone call was recorded pursuant to 103 Code Mass. Regs. § 482.07(3)(d) (1993) ("All inmate telephone calls, except calls to pre-authorized attorney telephone numbers are subject to telephone monitoring").

Knight placed two collect telephone calls to Williams that day. See 103 Code Mass. Regs. § 482.07(3)(a) (1993) ("All inmate calls shall be one-way collect calls only, utilizing an automated operator"). Williams's girl friend answered the first call, heard a recorded message, and then handed the telephone to Williams. After a brief conversation with Knight, Williams tried to add Ennis to the telephone call, but the call was disconnected. See note 2, infra.

Knight then telephoned Williams a second time. Williams's girl friend again answered the telephone, but this time, both Williams and Knight heard an automated announcement to the effect that a collect telephone call was being placed by an inmate, that the call was being recorded, and that the call would disconnect if the recipient attempted to activate a three-way or conference call feature. See 103 Code Mass. Regs. § 482.07(3)(f) and (g) (1993).² After Williams accepted the call and despite the warning, he was able to add Ennis to the conversation, presumably using a telephone conferencing feature.³ As a result, Ennis did not hear the automated announcement, and it is undisputed that he did not know that his communications were being recorded.

Williams and Ennis are codefendants in the underlying murder case. In allowing Ennis's motion, the judge "deem[ed] the interception of the telephone conversation unlawful" because, he ruled, there was no evidence that Ennis knew that the conversation was being recorded. See Commonwealth v. Gonzalez, 426 Mass. 313, 315, 688 N.E.2d 455 (1997), quoting Commonwealth v. Blood, 400 Mass. 61, 66, 507 N.E.2d 1029 (1987) ("secret transmission or recording of oral communications without the consent of all parties is generally proscribed by § 99" [emphasis in original]); Commonwealth v. Jackson, 370 Mass. 502, 507, 349 N.E.2d 337 (1976) (recording is "secret" if party does not have "actual knowledge of the recording"). The Commonwealth concedes that the recording at issue was an "interception,"⁴,⁵ but contends that the department did not "unlawfully" intercept Ennis's statements because it did not do so "willfully." See G.L. c. 272, § 99 C 1.⁶ We agree.

Section 99 P of the Massachusetts wiretap act, G.L. c. 272, § 99, provides that a criminal defendant may "move to suppress the contents of any intercepted wire or oral communication or evidence derived therefrom," but only in circumstances enumerated in the wiretap act. Ennis relies on three grounds for suppression, G.L. c. 272, § 99 P 1, 2, and 5, and we must therefore determine whether the communication was "unlawfully intercepted," G.L. c. 272, § 99 P 1, or was "not intercepted in accordance with the terms of this section," G.L. c. 272, § 99 P 2, or whether the recording was "illegally obtained," G.L. c. 272, § 99 P 5.⁷,⁸

The wiretap act does not explicitly define these terms, but makes clear that a person "intercepting" an oral communication commits an "offense" only when he or she acts "willfully." See note 6, supra. This requirement is consistent with the wiretap act's purposes to circumscribe purposeful "electronic eavesdropping," i.e., secret recordings of conversations, except as specifically authorized by the Legislature. In enacting the wiretap act the Legislature sought to curtail two "grave dangers": (1) "the increasing activities of organized crime" and (2) "the uncontrolled development and unrestricted use of modern electronic surveillance devices," which the Legislature termed a danger "to the privacy of all citizens." G.L. c. 272, § 99 A.⁹ As to the first, the Legislature determined that to combat organized crime, law enforcement officials should be permitted to engage in electronic surveillance, but only if judicially authorized. See id. Second, the Legislature sought to prohibit all "secret" electronic eavesdropping by "private individuals," id.,¹⁰ but provided that such conduct is an "offense" subject to criminal sanction only if done "willfully." G.L. c. 272, § 99 C 1. Thus, not every recording of an oral communication without the knowledge of all participants is an "offense," nor is every such recording "unlawful" or "illegal."

In this case, the department did not wilfully record any oral communication of Ennis, secretly or otherwise. The department did wilfully record inmate Knight's telephone call to Williams, announcing to both parties that their conversation would be recorded. But the department affirmatively sought to prevent any additional party from being added to that two-party telephone conversation. See 103 Code Mass. Regs. § 482.07(3)(g) (1993) ("any attempt to access a three party line or conference call will cause the [department's telephone] system to immediately disconnect the call"), and 103 Code Mass. Regs. § 482.07(3)(b) (1993) ("three way or conference calling ... [is] prohibited").¹¹ There is no evidence that the department's system failed or that the department could have taken other steps to prevent Williams from including Ennis in the telephone conversation. By whatever means (the record is not clear) Williams was able to by-pass the feature intended to disconnect the call.¹² Certainly the department did not "secretly record" any part of the resulting conversation wilfully. The department informed all of the anticipated parties to the collect telephone call that their communications would be recorded. The wiretap act is not so broad as to impose liability each time an additional party is added to a two-party conversation in circumstances beyond the recorder's knowledge, direction, or control. Because there was no wilful conduct by the department, there was no "unlawful" or "illegal" interception, see G.L. c. 272, § 99 P 1 and 5, Ennis cannot prevail on either of these two grounds.

As to the third ground for suppression claimed by Ennis, as noted above the Commonwealth has conceded that there was an "interception" and does not argue that the interception was "in accordance with the terms of this section." G.L. c. 272, § 99 P 2. General Laws c. 272, § 99 D, sets forth the circumstances in which an "interception" is affirmatively authorized, none of which is relevant to the department's recording in this case. However, even where the recording is an "interception," see note 6, supra, and is not "in accordance with" the wiretap act, suppression is not automatically warranted. The exclusionary rule is designed "to deter future police conduct in violation of constitutional or statutory rights." Commonwealth v. Santoro, 406 Mass. 421, 423, 548 N.E.2d 862 (1990). Ennis's oral communications were caused to be recorded solely because of conduct by Williams. There is nothing to indicate that the Commonwealth was culpable, or even negligent, and "[n]o deterrent purpose would be served by suppressing the intercepted conversations." Id.¹³

The order of suppression is reversed.

So ordered.

1. General Laws c. 272, § 99, is the Massachusetts wiretap act (wiretap act). Subsection P governs the circumstances in which a criminal defendant may move to suppress "the contents of any intercepted wire or oral communication or evidence derived therefrom." See note 7, infra.

2. Title 103 Code Mass. Regs. § 482.07(3)(g) (1993) provides: "All inmate telephone calls require positive call acceptance by the called party prior to the call being connected. The telephone system shall use a pre-recorded name to announce who the call is from."

Title 103 Code Mass. Regs. § 482.07(3)(g) (1993) provides: "All inmate telephone calls shall contain a pre-recorded announcement identifying that the collect call is originating from an inmate at a Massachusetts Department of Correction (institution) and indicate that the call is subject to being recorded and that any attempt to access a three party line or conference call will cause the system to immediately disconnect the call."

3. The transcript of the telephone call states "[p]hone ringing (for three way call)," just after Williams tells Knight to "hold on, hold...