Opinion
10-P-1155
04-17-2012
COMMONWEALTH v. PAUL CAMILLI.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions of receiving a corrupt gift (three counts), soliciting a corrupt gift, and attempted extortion, the defendant challenges the denial of his motion to suppress (1) a private audiovisual recording of a payment made to him on November 24, 2008, and (2) a police surveillance videotape (video) (without sound) of a payment made to him on December 15, 2008 (the 'sting' video), as well as testimony from a police officer who was eavesdropping on the payment. The defendant argues that the evidence was seized in violation of art. 14 of the Massachusetts Declaration of Rights, the Fourth Amendment to the United States Constitution, and State and Federal wiretap statutes. See G. L. c. 272, § 99; 18 U.S.C., §§ 2510 et seq. (2006). We affirm for substantially the reasons relied upon by the motion judge and amplified in the Commonwealth's brief.
The charges relate to payments solicited and received by the defendant, the supervisor of public works for the town of Maynard, from James MacDonald, a real estate developer constructing a major residential development in the town.
The defendant does not appeal from the denial of his motion to suppress later statements to the police or from an inventory search of the town vehicle that the defendant was authorized to drive prior to his arrest.
1. Background. The motion judge's factual findings establish that without any involvement or suggestion from police, James MacDonald made an audiovisual recording of a cash payment to the defendant on November 24, 2008, in MacDonald's business office. MacDonald subsequently reported the payments to the police and disclosed to State Police Sergeant Brian Connors that he had made an audiovisual recording of the November 24th payment. MacDonald gave the video recording to Connors, who instructed MacDonald not to engage in any further videorecording.
MacDonald made his first payment to the defendant some days earlier, during a meeting in the defendant's vehicle.
MacDonald told Connors that he was scheduled to make another payment to the defendant. With MacDonald's consent, Connors arranged to eavesdrop and make a silent video recording of that payment (the 'sting' video). On December 15, 2008, after providing MacDonald with $500 in marked bills, Connors positioned himself in a bathroom adjacent to MacDonald's office and eavesdropped on the meeting, a task made easier because the walls of MacDonald's office did not extend to the ceiling. From that vantage Connor was able to listen to the details of the payment to the defendant, which he also recorded visually.
2. Discussion. A. The November 24th payment. The motion judge correctly denied the defendant's motion to suppress the audiovisual recording of MacDonald's November 24th payment to the defendant. Neither the Fourth Amendment nor art. 14 of the Massachusetts Declaration of Rights is implicated by MacDonald's recording of that meeting because no government actor was involved. See Commonwealth v. Leone, 386 Mass. 329, 333 (1982); Commonwealth v. Gonzalez, 68 Mass. App. Ct. 620, 629 (2007). MacDonald was acting entirely on his own, without any police direction.
Even assuming that MacDonald's audiovisual recording of the November 24th meeting violated the State wiretap law, see Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001), suppression of that recording or its use by the Commonwealth does not follow. See Commonwealth v. Rivera, 445 Mass. 119, 124 (2005), citing Commonwealth v. Santoro, 406 Mass. 421, 423-424 (1990) (statutory violation does not require suppression because no deterrent purpose would be served); Commonwealth v. Barboza, 54 Mass. App. Ct. 99, 103- 107 (2002).
The defendant's contention that the Federal wiretap statute requires suppression fails for the reason, if no other, that as a participant in the November 24th payment meeting, MacDonald fell within the ambit of the one-party consent exception set forth in 18 U.S.C. § 2511(2)(d).
The contention that the one-party consent exception does not apply because MacDonald made the tape for the purpose of extorting the defendant is bald speculation that was not found by the motion judge. Nor does § 2511(1)(c) prohibit MacDonald from disclosing the contents of that recording to the police because that prohibition only applies if MacDonald knew or had reason to know that the recording itself was done in violation of the law. No such showing was made.
B. The December 15th payment. The motion judge correctly concluded that neither the Fourth Amendment nor art. 14 is implicated by the 'sting' video or Connors's eavesdropping on the December 15th payment meeting. See Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 640-644 (2006). See also Commonwealth v. Price, 408 Mass. 668, 672-673 (1990); Commonwealth v. Collado, 42 Mass. App. Ct. 464, 469 (1997). The defendant failed to establish that he had a legitimate expectation of privacy in a meeting that took place in MacDonald's office, a place over which MacDonald alone exercised control. See Commonwealth v. Berry, 420 Mass. 95, 106 n.9 (1995). In meeting and speaking in MacDonald's office, the defendant ran the risk not only that MacDonald would repeat their conversation but also that the conversation would be overheard or observed by someone with MacDonald's permission. See Commonwealth v. Eason, 427 Mass. 595, 600 (1998); Commonwealth v. Bloom, 18 Mass. App. Ct. 951, 952 (1984). Compare Commonwealth v. Panetti, 406 Mass. 230, 234 (1989) (apartment dweller has privacy interest under art. 14 in being 'free from warrantless eavesdropping by police who have infiltrated crawl spaces and other areas to which neither the public nor any other occupant of the multiple dwelling has access').
The 'sting' video does not violate G. L. c. 272, § 99, because no oral recording occurred. That statute is not implicated when someone eavesdrops but does not intercept or record a conversation.
Neither the 'sting' video nor Connors's eavesdropping violates the Federal wiretap statute, 18 U.S.C. §§ 2510 et seq., because the silent video is not an interception of 'oral communication' within the meaning of § 2510(4), nor is eavesdropping without benefit of an 'electronic, mechanical, or other device' an interception within the ambit of the statute. Even were that not so, the oneparty consent exception of § 2511(2)(c) would apply and render the interception permissible. See Commonwealth v. Gonzalez, 426 Mass. 313, 315 (1997).
Judgments affirmed.
By the Court (Grasso, Mills & Trainor, JJ.),