In re Grand Jury Subpoena

• Decision Date: 11 September 2009
• Docket Number: SJC-10402
• Citation: 912 N.E.2d 970,454 Mass. 685
• Parties: In the Matter of a GRAND JURY SUBPOENA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

912 N.E.2d 970

454 Mass. 685

In the Matter of a GRAND JURY SUBPOENA.

SJC-10402

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 2009.

Decided September 11, 2009.

Ellen M. Caulo for Suffolk County Sheriff's Department.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Jonathan Shapiro, Boston (Patricia L. Garin with him) for Committee for Public Counsel Services & others, amici curiae.

Patrick C. Lee, for Joseph D. McDonald, Jr., amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

IRELAND, J.

This case requires us to decide whether the constitutionally protected privacy rights of a pretrial detainee or an inmate are violated where, in response to a grand jury subpoena, a sheriff provides to a grand jury recordings of telephone calls made by such a detainee or inmate.¹ A Superior Court judge denied a motion to quash made by the sheriff, and entered a finding of contempt when the sheriff declined to turn over the subpoenaed recordings. Because we conclude on the record before us that the detainee or inmate could have no objectively reasonable expectation of privacy in the recorded telephone conversations where all parties have notice that calls are subject to monitoring and recording, and further, where the recording and monitoring is justified by legitimate penological interests, we affirm the finding of contempt against the sheriff and the denial of her motion to quash the subpoena.

1. Background. The facts are not in dispute. The monitoring and recording of telephone calls made by detainees and inmates held by the Suffolk County sheriff's department (sheriff) is governed by a policy that provides, among other things, that all detainees and inmates are to be "informed at the time of admission that telephone calls are subject to monitoring and recording."² In accordance with the policy each detainee and inmate at the jail is assigned a personal identification number (PIN), which must be entered in order to place a telephone call. Parties to telephone calls made by detainees and inmates receive a voice prompt to select one of four languages, English, Russian, Spanish, or Vietnamese, and are then advised by a prerecorded announcement, made in the language selected, that the call is originating from the jail and that it is being recorded and is subject to monitoring. Moreover, in addition to advising detainees and inmates during their orientation to the jail of the monitoring and recording of their telephone calls, the sheriff distributes a written guide is distributed to detainees and inmates that states that the sheriff "records all inmate telephone conversations, except calls to attorneys and legal services organizations," and signs are posted on or near all telephones explaining to detainees and inmates in English and Spanish that all calls are subject to monitoring and recording. Detainees' and inmates' calls to attorneys are not monitored or recorded.

In May, 2008, the sheriff was subpoenaed to provide certain records to a Suffolk County grand jury, including recordings of all telephone calls made by a particular pretrial detainee or inmate being held at the jail, for use in an investigation. The sheriff moved to quash on the sole ground that the recent allowance of a motion to suppress by a judge in the Superior Court in an unrelated case had called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees' and inmates' telephone calls.³ A Superior Court judge denied the motion. The sheriff indicated to the judge that, in order to seek review of the issue by this court, she would not comply with the subpoena and intended to appeal from an order of contempt that would enter against her as a result. The judge entered a finding of contempt, but contemporaneously stayed the order pending the sheriff's anticipated appeal. Mass. R.A.P. 6, as appearing in 378 Mass. 932 (1979). The sheriff appealed; we then granted an application for direct appellate review of the district attorney for the Suffolk district, and we now affirm the denial of the motion to quash.⁴

2. Discussion. Although the sheriff appeals from the order of contempt, we in effect review the judge's denial of the motion to quash. See Matter of a Grand Jury Subpoena, 411 Mass. 489, 492-493, 583 N.E.2d 241 (1992) (orders denying motions to quash subpoenas not final decisions and not appealable; usual way of challenging such orders is to disobey them and appeal from subsequent contempt order).

The sheriff asks us to conclude that the constitutional privacy rights of the pretrial detainee or inmate will not be violated where, in response to a grand jury subpoena, the sheriff provides recordings of the detainee's or inmate's telephone calls to the grand jury.⁵ We conclude that, where the sheriff's policy of monitoring and recording detainees' and inmates' telephone calls is preceded by notice to all parties, and further, where the recording and monitoring is justified by legitimate penological interests, no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.

Privacy interests protected by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights exist where "it is shown `that a person [has] exhibited an actual (subjective) expectation of privacy,' and when that `expectation [is] one that society is prepared to recognize as "reasonable."'" Commonwealth v. Blood, 400 Mass. 61, 68, 507 N.E.2d 1029 (1987), quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The Federal courts have concluded that, where inmates have notice that their telephone conversations are monitored and recorded, such monitoring and recording does not violate the Fourth Amendment, because there could be no subjective expectation of privacy that society is prepared to recognize as reasonable. See, e.g., United States v. Van Poyck, 77 F.3d 285, 290-291 (9th Cir.), cert. denied, 519 U.S. 912, 117 S.Ct. 276, 136 L.Ed.2d 199 (1996); United States v. Amen, 831 F.2d 373, 379-380 (2d Cir. 1987), cert. denied sub nom. Abbamonte v. United States, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). See also Bell v. Wolfish, 441 U.S. 520, 537, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (loss of privacy inherent incident of confinement for pretrial detainee). Cf. Hudson v. Palmer, 468 U.S. 517, 525-530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (society not prepared to recognize as legitimate any subjective expectation of privacy that prisoner might have in prison cell). Moreover, in Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 772-773, 665 N.E.2d 85 (1996), we held that regulations promulgated by the Department of Correction, governing the monitoring and recording of inmates' telephone calls (and identical in all material respects to the sheriff's policy here), did not violate art. 14 where the inmates were made aware of the procedure and its requirements.

Here, there is no question that detainees and inmates have notice that telephone calls, other than those made to attorneys, are subject to monitoring and are recorded. When considered in light of the loss of privacy that is one of the "inherent incidents of confinement" during detention, whether pretrial or after sentencing, Bell v. Wolfish, supra, the detainee or inmate could have no subjective expectation of privacy in the recorded conversations that society would be prepared to recognize as reasonable. See Cacicio v. Secretary of Pub. Safety, supra. Cf. Commonwealth v. Eason, 427 Mass. 595, 600, 694 N.E.2d 1264 (1998) (any expectation of privacy in telephone conversation not objectively reasonable because person not reasonably entitled to assume that no one listening in on extension telephone). Nor do we think that society would be prepared to recognize as reasonable an expectation of privacy held by a detainee or inmate that recordings of his telephone calls, which were made by the sheriff with notice given to all parties to the calls, might not be shared with law enforcement authorities.⁶

We also consider whether the sheriff's policy, as to both the recording of calls and the providing of those recorded calls to a grand jury in response to a subpoena, impinges in some fashion on the detainee's or inmate's art. 14 rights. We conclude that valid penological interests justify the sheriff's policy and therefore the policy does not violate art. 14. Our analysis in this regard is controlled by our decision in Cacicio v. Secretary of Pub. Safety, supra at 772-773, 665 N.E.2d 85, where we adopted the deferential standard of review for constitutional challenges to prison regulations and policies established by the United States Supreme Court in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ("when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests"). Applying the Turner decision's four-factor inquiry to determine the validity of the regulations of the Department of Correction governing the recording and monitoring of inmate telephone calls, we concluded that the regulations were justified by valid penological interests and did not violate art. 14. Cacicio v. Secretary of Pub. Safety, supra at 770-773, 665 N.E.2d 85.⁷

On the record before us here, we reach the same conclusion as we did in the Cacicio decision, i.e., that the sheriff's policy does not violate the detainee's or inmate's art. 14 rights.⁸ Although it is not clear whether the recorded telephone calls at issue here were made by a detainee or an inmate, the distinction does not affect our analysis.⁹ The sheriff's policy of recording pretrial detainees' telephone calls, and providing those recordings in response to grand jury subpoenas, is...