Prosecutors can't use undercover cop's video of an alleged drug dealer making sales in East Boston and Brighton because police didn't have a warrant to record him

The Supreme Judicial Court ruled today that the state wiretap law bars Suffolk County prosecutors from using video recorded by an undercover cop buying drugs from an alleged dealer in East Boston and Brighton because the cop didn't get a warrant first.

The video - and audio that a lower-court judge had earlier dismissed as evidence - were taken in 2020 of alleged sales by Thanh Du, whom Boston Police began investigating after a drug user died and, with the agreement of that user's family, officers searched his phone and found text messages with Du arranging drug purchases.

According to the court's summary of the case:

In transactions arranged using this telephone number, an undercover officer made purchases from the defendant on three occasions. Each time, the defendant approached the officer on foot at the agreed-upon public place, spoke with the officer, and then sold him packages of purported heroin or fentanyl in exchange for one hundred dollars.

On each occasion, prior to the defendant's arrival, the undercover officer activated an application called "Callyo" on his department-issued cellular telephone to create an audio-visual recording of his interaction with the defendant. In the recording of the first transaction, the defendant can briefly be observed approaching the undercover officer, and the two then discuss the sale while the camera is pointed down at the sidewalk for most but not all of the discussion. The recordings of the second and third transactions more clearly show the defendant's face, and the defendant again can be heard discussing each transaction with the undercover officer. After the third transaction, police arrested the defendant.

Two of the sales were in a laundromat on Paris Street in East Boston, the other in the parking lot of a CVS on Market Street in Brighton, according to a summary of the case by Suffolk County prosecutors.

Du was charged with three counts of distributing class A drugs.

His lawyer moved to have the phone recordings because they were "warrantless interceptions of his oral communications in violation of the wiretap act."

In its ruling today, the SJC agreed, saying the law, which prohibits "secret" recordings applies despite an argument by the Suffolk County District Attorney's office that the recordings were hardly secret because the undercover officer held his phone in his hand as he recorded and so "the cell phone would therefore have been visible to the defendant." Prosecutors cited a federal case in which a lawyer recording police making an arrest on the Common had his own arrest and charges voided after a court ruled he had made it clear to officers he was recording them openly.

But the court noted prosecutors didn't make that argument before the Suffolk Superior Court judge who heard the initial evidence-suppression request and wrote that an appeal to the state's highest court was the wrong place to make a novel argument like that in the case.

The court also noted that the wiretap law has an exception for law-enforcement officers who first get a warrant to make recordings - but that the officer didn't do that in this case.

"[T]he Commonwealth has presented no other basis for disturbing the motion judge's conclusion that the defendant was secretly recorded in violation of the wiretap act," so the only question for the justices to consider was whether to disallow the use of video from the recordings - the lower-court judge said prosecutors could use it, but not the audio.

The court concluded that prosecutors could not use the video, either, because portions of it show Du's face, which could be used to identify him, and the law prohibits the use of "contents" that includes "any information concerning the identity of the parties to [the wire or oral] communication or the existence, contents, substance, purport, or meaning of that communication."

The recordings in the case clearly violate that, the court concluded:

First, the footage shows one of the speakers - here, the defendant - meaning that the footage contains "information concerning the identity" of a party to the communication. ... Second, the footage shows the person engaging in the unlawfully intercepted oral communication and therefore contains "information concerning . . . the existence . . . of that communication." Id. The wiretap act's plain language thus requires suppression of the video footage as "contents" of the oral communication; "[i]t is not our function to craft unwarranted judicial exceptions to a statute that is unambiguous on its face." Hyde, 434 Mass. at 604.

Case docket - Includes written arguments by prosecutors and Du's attorneys and amicus briefs.