On June 18, 2014, the Supreme Judicial Court clarified the scope of the “one-party consent exception” to the state wiretap law (chapter 272, section 99). In Massachusetts it is illegal to secretly record an oral communication unless all parties to the conversation consent. However, the one-party consent exception allows a law enforcement officer, or someone authorized by a law enforcement officer, to secretly record an oral communication if it involves an investigation into “organized crime.”
In Commonwealth v. Marcus Mitchell (SJC-11487), the police authorized a cooperating witness to record a phone conversation with the defendant, who was under investigation for murder. The police instructed the cooperating witness to obtain information about the murder, but the cooperating witness instead asked the defendant about an unrelated gun investigation. In this case, murder qualified as an “organized crime,” but illegal gun possession did not. The SJC held that because the police acted in good faith in instructing the cooperating witness to discuss the murder investigation with the defendant, the recorded telephone conversation was admissible against the defendant at his trial. It was unforeseeable that the cooperating witness would refuse to follow the police officers’ instructions, and the recorded telephone conversation therefore fell within the one-party consent exception to the Massachusetts wiretap statute.