Opinion
No. 2002-1445.
March 8, 2004.
FINDINGS OF FACT AND RULINGS OF LAW AND ORDER ON THE DEFENDANT'S MOTION TO SUPPRESS
INTRODUCTION
The defendant, Tieson Gonzalez, is charged with murder and assault with intent to commit murder. He has filed a pretrial motion to suppress evidence consisting of a tape recording of a telephone conversation between him and a former friend, George Penniman, reportedly made by Penniman at his home in New Hampshire. Based on the credible evidence presented at the hearing on the motion to suppress, I make the following findings of fact and rulings of law.
FINDINGS OF FACT
During the summer of 2002, George Penniman knew that the defendant had been arrested and charged with murder. However, before his arrest, Penniman and the defendant had a series of telephone conversations. Penniman had been able to reach the defendant by telephone on some of these occasions at a Massachusetts motel. The defendant gave this telephone number to Penniman. On other occasions, the defendant called Penniman at his home in Rochester and left a message on his answering service using a pseudonym to identify himself. Penniman was familiar with the defendant's voice.
Penniman had a Bell South Telephone Company digital answering service on his telephone. When a telephone call was received, the service automatically supplied a recorded message after three rings indicating the number that had been called and inviting the caller to leave a message ("You have reached. . . ."), a high pitched tone was produced, and the caller's message was recorded. Penniman was familar with the service because he had left messages at his own home. The system was designed in such a way that if the telephone received was picked up while the caller was leaving a message, the phone connection between caller and recipient was maintained, but the ensuing conversation would be recorded.
Penniman believed that the message was in a digital voice, not his own.
On a day between May-June, 2002, before the defendant's arrest, Penniman was at home in Rochester, New Hampshire. He was in his bathroom when the telephone rang. He answered it after several rings and it was the defendant. At the beginning of the conversation, some portion of the recorded message was still playing. They had a conversation. He was aware that the service had been activated before he picked up the phone and assumed the defendant was aware as well. The conversation was recorded. On his own, without notice to nor at the direction of any law enforcement authority, Penniman called the service to obtain his messages, and copied the recording of his conversation with the defendant. The recording that is the subject of this hearing is an edited version of that recorded conversation. Penniman produced an edited version within a week of the original conversation because he thought certain aspects of the conversation might implicate him in criminal activity. Only after the conversation took place did he think that a recording of it might be useful to use as a bargaining chip with law enforcement in case he was arrested or prosecuted.
In fact, one week before the hearing, Penniman was sentenced in New Hampshire on a criminal charge and received one year in the House of Correction for an offense that carried a state prison sentence. This disposition was based in part on a letter written on his behalf by the District Attorney for the Middle District (exhibit 1) and specifically made contingent on his continued cooperation with Massachusetts authorities.
Penniman first approached the Massachusetts State Police in July, 2002 and mentioned he had had a conversation with the defendant that might be of interest to them. At that time, he had a copy of the recorded conversation, but made no reference to it. He spoke to the Massachusetts State Police again on August 27, 2002 at his home in New Hampshire and asked for consideration on the criminal charges that were then pending in New Hampshire. It's not clear whether he made any mention of the recording he had of the conversation with the defendant at that time. No promises were made to Penniman beyond a promise that if he cooperated it would be brought to the attention of the court. At no time did the police inquire about whether he had recorded the conversation. He gave the tape recording to his mother for safe keeping. He had his third conversation with the police on March 27, 2003. Only during his fourth conversation with the police on April 16, 2003 did he tell them about the contents of the tape.
Penniman's account of these events was confirmed by Detective Daniel Richard of the Massachusetts State Police whose testimony I credit. Penniman, however, did not tell the police he had edited the tape to protect himself.
The recorded conversation was played in open court. Penniman identified his voice and that of the defendant, Tieson Gonzalez. The recorded conversation contains information linking the defendant to illegal drugs, and to a firearm that may have been used in the murder with which he is charged.
RULINGS OF LAW
1. Choice of law issue. The first question is whether the law of New Hampshire, where the recording took place, or the law of Massachusetts where the defendant was located and is being prosecuted should be applied. The general rule in cases such as this is to apply the law of the forum state, Massachusetts. "The decision to apply the forum state's law is based on the forum state's superior "interest in proceeding effectively to prosecute major crimes committed within its boundaries. . . ." Commonwealth v. Miller, 15 Mass. L. Rptr. 11 (Mass.Super. 2002), quoting People v. Rogers, 141 Cal.Rptr. 412, 417 (1977). This result is consistent with the functional approach to conflict of laws questions applied in civil cases in Massachusetts whereby Massachusetts follows the law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties. Bushkin Assoc., Inc. v. Raytheon Co., 393 Mass. 622, 631-34 (1985). Here, since the defendant and the victim were residents of Massachusetts, the crime in question occurred in Massachusetts, and the defendant is being prosecuted by Massachusetts authorities, Massachusetts has the most significant relationship to the question of whether the tape recording should be admitted into evidence.
2. Whether the recording of the defendant's conversation should be suppressed. Because there is no evidence in this case of any state action i.e., the recording of the defendant's conversation was not done by or at the direction of law enforcement, the only question is whether the recording was made in violation of the Massachusetts Wiretap Law, G.L.c. 272, § 99. Section 99 prohibits all "secret" electronic eavesdropping by "private individuals" Id. Secret recordings by private individuals are unlawful, however, 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." Commonwealth v. Ennis, 439 Mass. 64, 68-69 (2003) (quotations omitted). The Commonwealth argues that based on the facts of this case, the defendant must have been aware that his conversation was being recorded because when Penniman picked up the phone after several rings, the recorded message was still playing. Also, the digital recording system used by Penniman played a high pitched beep after that recorded message and before the conversation was recorded.
G.L.c. 272, § 99 confers standing on a private party to move to suppress evidence gathered as a result of a violation of the statute. It is unnecessary, therefore, to explore the nature of the expectation of privacy that the defendant enjoyed under these circumstances. However, as the Supreme Judicial Court observed in Commonwealth v. Eason, 427 Mass. 595, 600 (1998): "The defendant knew, when speaking on the telephone, that his words were being transmitted electronically beyond his home. Unlike the defendant in the Blood [Commonwealth v. Blood, 400 Mass. 61 (1987)] case, he had no reason to assume that the conversation would not be heard by a third party. A person cannot control the conditions at the other end of a telephone conversation. Extension telephones are very common. Cordless and cellular phones are making the confidentiality of telephone conversations increasingly uncertain. Any expectation of privacy in a telephone conversation is not objectively reasonable, because a person is not reasonably entitled to assume that no one is listening in on an extension telephone."
Even if a private individual violates the law by secretly and willfully recording a conversation, the Supreme Judicial Court has observed that the "Legislature has left it to the courts to decide whether unlawfully intercepted communications must be suppressed." Commonwealth v. Santoro, 406 Mass. 421, 423 (1990). Here, it is unnecessary to determine whether the recording of the conversation by Penniman was done either "secretly" or "willfully" or both, because even if the recording was made unlawfully, the underlying purposes of the exclusionary rule would not be advanced by suppression. In Santoro, the Supreme Judicial Court declined to apply the exclusionary rule to suppress an electronic recording made by one criminal associate of a conversation with another because there was no involvement by law enforcement, and suppression would not advance the deterrent purposes of the exclusionary rule. Likewise, the Appeals Court recently declined to suppress the contents of a conversation between a defendant and his victim that was secretly recorded by the victim's father in an effort to protect his son. "Just as the exclusionary rule was not designed to protect the defendant in Santoro from the consequences of the unlawful interception by his criminal associate, we see no reason why the rule should protect the defendant here from the consequences of the unlawful interception by a private citizen, a father, acting in the privacy of his own home, without any government involvement, to protect his child from sexual exploitation by the defendant. Commonwealth v. Barboza, 54 Mass. App. Ct. 99, 105 (2002).
Our appellate courts have observed that the fundamental purpose of the exclusionary rule applied to vindicate the constitutional safeguards provided by Article 14 of the Massachusetts Declaration of Rights as well as G.L.c. 272, § 99 is to deter unlawful conduct by law enforcement agents. See Commonwealth v. Brandwein, 435 Mass. 623, 632 (2002). Even if G.L.c. 272, § 99 is viewed as encompassing an even broader objective, viz., namely to prohibit private individuals as well as law enforcement personnel, in most circumstances, from secretly intercepting private conversations, it would not be appropriate to apply it here. In this case, the recording occurred inadvertently in the sense that Penniman was in his bathroom and did not make it to the telephone before the digital recording service was activated. Penniman did not take any steps to activate the system for purposes of recording the particular call from the defendant. It was simply a feature of his telephone service like that in common use throughout the United States. At the time of the conversation, Penniman had no thought about the value of having a tape recording of the conversation. It was purely an afterthought.
ORDER
For the above reasons, the defendant's motion to suppress isDENIED.