Undercover officers often carry out “controlled buys,” setting up alleged drug dealers while claiming to be actual customers. This strategy is somewhat controversial, and it raises potential questions about entrapment. Putting that issue aside, there is also the question of whether secret recordings of these transactions are admissible during drug trafficking trials in Massachusetts. A recent decision by the Commonwealth implies that the answer to this question is “no.”
Appeals Court Upholds Wiretap Act
In November of 2024, an appellate court in Massachusetts upheld the wiretap act and ruled that a secret recording made during a controlled buy should have been suppressed. This case stems from a fatal drug overdose in 2019 that subsequently led detectives to an alleged drug dealer. Once the detectives obtained this individual’s phone number, they set up drug transactions or “controlled buys” in order to gather evidence against him. On three separate occasions, police claim that the alleged drug dealer sold them packages of heroin or fentanyl.
During each transaction, the undercover officer activated a special app on his phone that recorded audio and video of the interaction. As soon as the third transaction concluded, police moved in to arrest the defendant.
After the defendant had been arrested, his defense lawyer attempted to suppress these recordings. He claimed that they represented a violation of the Wiretap Act, which requires everyone to consent before being recorded. Massachusetts’ wiretapping laws are more restrictive than their federal counterparts, and they effectively make secret recordings illegal across the state.
Despite this, the judge presiding over the drug distribution trial only agreed to suppress the audio component of the recordings. The video element would have still gone before the jury. Even though the undercover officer’s phone was pointed at the sidewalk throughout most of all three transactions, there were apparently moments where the defendant’s face or body was recorded.
The appellate court ruled that the recordings ought to be suppressed in their entirety. In discussing their decision, the court noted that there may be an exception to the wiretap law if law enforcement officers obtain warrants prior to making their recordings. They also addressed the prosecution’s argument that the recordings were not “secret” because the undercover officer was holding the phone in his hand.
Ultimately, they were unconvinced by these arguments and many others. The evidence was suppressed, and this defendant may now find it easier to fight his drug distribution charges.
Fight Drug Trafficking Charges With an Experienced Boston Defense Lawyer
If you face drug trafficking charges in Massachusetts and you believe that you were illegally recorded during a controlled buy, consider discussing your next move alongside an experienced defense attorney in Boston. Due to the recent Commonwealth decision, this evidence may be completely inadmissible in your trial – and it may be difficult for prosecutors to secure a conviction as a result. Book a consultation with Edward R. Molari today to learn more about your options.