Massachusetts Legal Developments Blog

Undercover Police Recordings Suppressed in Massachusetts Drug Distribution Case

A recent case in Massachusetts focused on Callyo, a new software application gaining popularity among undercover police officers across the nation. While the app certainly has its uses, recordings made with this software may violate the Commonwealth’s wiretapping laws. A recent decision shows that these recordings may be suppressed. But can wiretapping laws really protect you from undercover police officers in Massachusetts? 

Commonwealth v. Du 

In October of 2023, the Commonwealth issued an important decision on the admissibility of secret recordings made by undercover police officers in drug distribution cases. In Commonwealth v. Du, a defendant faced distribution charges after being recorded making drug transactions on three different occasions. Each time, the defendant sold about $100 worth of narcotics to an undercover officer. Each time, the officer made secret recordings of the transaction without a warrant. The Callyo app transmitted the recordings live to other officers who were listening in, and it also uploaded and stored the recordings to the cloud. 

After facing distribution charges, the defendant argued that the recordings violated the Commonwealth’s wiretap statute. The Commonwealth then attempted to argue that the defendant had no expectation of privacy since the drug transactions were carried out in public spaces. In addition, the Commonwealth claimed that there was “reasonable suspicion” that the defendant had engaged in a drug distribution network – providing a clear exception to the wiretap law. 

These arguments failed upon review. The fact that the transactions occurred in public was irrelevant since the Commonwealth’s wiretap statute bans all “secret” recordings – regardless of where they take place. In addition, there was never any evidence that the defendant had carried out drug transactions as part of an organized crime organization. Officers only collected evidence of the “controlled buys,” and they never presented anything to suggest the defendant was part of a “narcotics distribution network.” The Commonwealth specifically noted that each of the three transactions involved small amounts of narcotics. In other words, the “organized crime” exception to the wiretap ban did not apply. 

As a result, the recordings were suppressed. The Commonwealth even discussed whether the officers should face criminal penalties for violating the wiretap statute. In Massachusetts, you can face up to five years in prison for willfully violating these wiretapping laws. A $10,000 fine is also possible. 

What Does This Case Mean?

While some observers may feel encouraged to hear that the Commonwealth is protecting its citizens against illegal surveillance from the authorities, the decision in Commonwealth v. Du does not completely negate the efficacy of undercover operations. In its decision, the Commonwealth specifically stated that the undercover officer who made the recordings could still testify on what they had witnessed during the transactions. This testimony could be as effective as a video/audio recording, and it might detail exactly what the defendant said and did during the transactions. 

In addition, the result might have been different if the defendant had been charged with drug trafficking, as the Commonwealth’s wiretapping laws would not have applied. 

Work With a Qualified Massachusetts Defense Attorney

If you have been charged with drug trafficking or drug distribution due to undercover police recordings, it is important to work with a Massachusetts defense lawyer. Book a consultation with Edward R. Molari today to get started.