Lead Opinion
This case requires us to decide whether the constitutionally protected privacy rights of a pretrial detainee or an
1. Background. The facts are not in dispute. The monitoring and recording of telephone calls made by detainees and inmates held by the Suffolk County sheriff’s department (sheriff) is governed by a policy that provides, among other things, that all detainees and inmates are to be “informed at the time of admission that telephone calls are subject to monitoring and recording.”
In May, 2008, the sheriff was subpoenaed to provide certain records to a Suffolk County grand jury, including recordings of all telephone calls made by a particular pretrial detainee or inmate being held at the jail, for use in an investigation. The sheriff moved to quash on the sole ground that the recent allowance of a motion to suppress by a judge in the Superior Court in an unrelated case had called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees’ and inmates’ telephone calls.
2. Discussion. Although the sheriff appeals from the order of contempt, we in effect review the judge’s denial of the motion to quash. See Matter of a Grand Jury Subpoena,
The sheriff asks us to conclude that the constitutional privacy rights of the pretrial detainee or inmate will not be violated where, in response to a grand jury subpoena, the sheriff provides recordings of the detainee’s or inmate’s telephone calls to the grand jury.
Privacy interests protected by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights exist where “it is shown ‘that a person [has] exhibited an actual (subjective) expectation of privacy,’ and when that ‘expectation [is] one that society is prepared to recognize as “reasonable.” ’ ” Commonwealth v. Blood,
Here, there is no question that detainees and inmates have notice that telephone calls, other than those made to attorneys, are subject to monitoring and are recorded. When considered in light of the loss of privacy that is one of the “inherent incidents of confinement” during detention, whether pretrial or after sentencing, Bell v. Wolfish, supra, the detainee or inmate could have no subjective expectation of privacy in the recorded conversations that society would be prepared to recognize as reasonable. See Cacicio v. Secretary of Pub. Safety, supra. Cf. Commonwealth v. Eason,
We also consider whether the sheriff’s policy, as to both the recording of calls and the providing of those recorded calls to a
On the record before us here, we reach the same conclusion as we did in the Cacicio decision, i.e., that the sheriffs policy does not violate the detainee’s or inmate’s art. 14 rights.
We therefore turn to whether, where the detainee or inmate has no actual, objectively reasonable expectation of privacy in the recorded telephone conversations, and where, furthermore, the sheriff’s policy of recording detainee or inmate telephone calls is valid because it is reasonably related to legitimate peno-logical interests, the constitutional rights of the detainee or inmate are nonetheless violated when the sheriff provides the recordings in response to a grand jury subpoena. We conclude that there is no constitutional violation.
As an investigatory body with broad powers and substantial discretion to “inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred,” the grand jury plays a unique role in our criminal justice system. Commonwealth v. Williams,
Here, where all parties to the recorded telephone calls had notice that their conversations were not private, and where the detainee or inmate had no objectively reasonable expectation of privacy, any privacy interest in those conversations must be given little, if any, weight. Many types of records that are subject to grand jury subpoenas, such as private letters and electronic mail correspondence, may have been communicated initially without prior notice to the author and recipient that others might
There is no question that the recordings of the detainee’s or inmate’s telephone calls come within the permissible scope of the grand jury’s investigation, because they may reveal, among other things, pertinent admissions or evidence of consciousness of guilt. Where the detainee or inmate lacked any objectively reasonable expectation of privacy in the recorded telephone calls, they cannot be considered so peculiarly private that, under art. 14, judicial approval would be required for a grand jury to subpoena them.
3. Conclusion. For the foregoing reasons, we affirm the finding of contempt, affirm the denial of the motion to quash, and remand the case for further proceedings consistent with this decision.
So ordered.
Notes
The record before us is very limited. It is not clear from the record whether the person being held in the custody of the Suffolk County sheriff’s department, and who made the telephone calls, the recordings of which are the subject of the grand jury subpoena in this case, is a pretrial detainee or an inmate. Because the conclusion we reach in this case applies to pretrial detainees as well as to inmates, and the status of the person therefore does not affect our analysis, we shall use both terms to refer to the person.
It is not clear from the record before us whether the policy itself is either provided to detainees and inmates or made available to them.
The sheriff’s policy regarding detainee and inmate telephone use provides that “[information obtained from inmate telephone calls can be disclosed only as reasonably necessary to promote legitimate operational standards, law enforcement or public safety purposes,” and that “[c]opies of inmate phone call logs and recorded phone calls will be provided in response to legally issued subpoenas or court orders." The sheriff’s department generally does not listen to the recordings of detainee or inmate calls before providing them in response to subpoenas.
We acknowledge the amicus briefs filed by the sheriff of Plymouth County and the Committee for Public Counsel Services, Massachusetts Correctional Legal Services, the Massachusetts Association of Criminal Defense Attorneys, the American Civil Liberties Union of Massachusetts, the Youth Advocacy Project, and the Children’s Law Center of Massachusetts.
The sheriff states that she is satisfied that the subpoena appears facially valid.
AIthough we previously said that “[i]t would appear reasonable to expect that a government agency, to which a citizen is required to submit certain materials, will use those materials solely for the purposes intended and not disclose them to others in ways that are unconnected with those intended purposes,” we were considering whether a high school student might have a reasonable expectation of privacy in his or her school papers that were handed in to teachers. Commonwealth v. Buccella,
Our analysis of the four-factor inquiry identified in Turner v. Safley,
In Cacicio v. Secretary of Pub. Safety, supra at 765-766, we considered a much broader challenge, premised on several Federal and State constitutional grounds, to the facial validity of the regulations of the Department of Correction governing the monitoring and recording of inmates’ telephone calls. Here, we limit our consideration of the sheriff’s policy under the Turner inquiry (which we adopted in Cacicio) to the sole question whether the detainee’s or inmate’s rights under art. 14 of the Massachusetts Declaration of Rights are somehow impinged on — despite the lack of a reasonable expectation of privacy in the calls — and, if so, whether those rights are violated. No direct challenge is made here to the sheriffs policy of recording the telephone calls, but rather the challenge is directed to the sheriff’s policy of providing the recordings, in response to a subpoena, to a grand jury.
We have little difficulty concluding that a valid and rational connection ex
The United States Court of Appeals for the Second Circuit held in United States v. Cohen,
In Commonwealth v. Doe,
Dissenting Opinion
(dissenting, with whom Botsford, J., joins, and Cordy, J., joins in part). In Cacicio v. Secretary of Pub. Safety,
I first discuss the court’s ruling on privacy,
I begin with the observation that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” Turner v. Safley,
The court today concludes that because an inmate or pretrial detainee has “notice” of the recording of his telephone calls, all of his constitutional rights protected by art. 14 are vitiated; in other words, a limited purpose intrusion into what is unquestionably a fundamental constitutional right to privacy swallows that right wholesale. No such conclusion is warranted under art. 14.
The court notes, ante at 688, that in determining the existence of a protected privacy interest under art. 14, we have adopted the United States Supreme Court’s two-pronged inquiry, which contains both a subjective and an objective component: (1) is there a subjective expectation of privacy (2) that society is prepared to recognize as reasonable? See Commonwealth v. Blood, supra at 68, quoting Katz v. United States,
The United States Supreme Court “has always emphasized the second of these two requirements [set out in the Katz case for defining a protected privacy interest],” Hudson v. Palmer,
Even accepting the subjective inquiry as appropriate in these circumstances, I would reach the same result because, in my view, the court misapplies that inquiry by focusing primarily on whether the inmate or pretrial detainee has an expectation of privacy in his telephone calls and does not sufficiently evaluate whether he has a privacy interest in the dissemination of the recordings of those calls. Although institutional security concerns may outweigh a detainee’s privacy rights and permit monitoring of a detainee’s telephone calls by the sheriff, it does not follow that a detainee can have no subjective expectation of privacy with regard to other governmental officials. To the contrary, we have previously said that where materials “are entrusted to a government entity, under some degree of compulsion, for a limited purpose that would not normally entail disclosure to others,” it would “appear reasonable” to expect that the government entity will use the items “solely for the purposes intended and not disclose them to others in ways that are unconnected with those intended purposes.” Commonwealth v. Buccella,
Pretrial detention is suffered primarily by those who cannot afford to post bail.
I now turn to the issue of the grand jury subpoena, first as it pertains to pretrial detainees. Because a pretrial detainee retains significant art. 14 privacy rights in his personal telephone conversations, I cannot accept the court’s holding that those rights “must be given little, if any, weight.”
It is beyond cavil that a grand jury has “broad authority” to conduct its inquiries. See Commonwealth v. Doe,
In view of the significant art. 14 rights at stake, I would not permit every prosecutor to have unfettered and unsupervised access to all telephone recordings of every pretrial detainee, minor or adult, regardless of the circumstances. At minimum, a grand jury subpoena of information must be reasonable. Commonwealth v. Doe, supra at 768, citing Hale v. Henkel,
The case of Commonwealth v. Doe, supra, is instructive. The case concerned a grand jury’s request for an order to require a person to appear in a lineup before witnesses in the case, and this court sought to balance the constitutional rights of a suspect with the legitimate functions of a grand jury. Consistent with the ruling in that case — to ensure that a summons is reasonable, that fundamental privacy rights are adequately protected, and “that the prosecutor and grand jury are acting in good faith” — I would require, “under the common law and our general superintendence authority,” the Commonwealth to make a “minimal factual showing” sufficient to permit a judge “to conclude that there is a reason for” a subpoena that is “consistent with the legitimate function of the grand jury.” Id. at 770, quoting Matter of Kelley,
As to a grand jury subpoena seeking the records of telephone calls of a convicted inmate, in my view the considerations articulated in Commonwealth v. Doe, supra, apply with equal force and require the interposition of the judiciary to evaluate the subpoena in light of the competing interests at stake. The nature of the inquiry into reasonableness will be different where it concerns telephone records pertaining to a convicted inmate rather than a pretrial detainee. For example, given the length of time for which many convicted individuals are incarcerated, concerns about overbreadth and scope might assume more prominence for convicted inmates, while concerns about the inmate’s diminished privacy interests might weigh less heavily. Other concerns, such as the prohibition on using a grand jury subpoena to prepare a pending indictment for trial, see note 5, supra, will apply to both pretrial detainees and inmates.
It bears repeating that this country has long abandoned an inquisitorial system in which the government is constrained by no bounds in prosecuting possible criminals. For this reason, this court has consistently sought to maintain the appropriate balance between the “public interest in the investigation by grand juries of criminal conduct” and the rights of individuals “to be free from unreasonable intrusions on their privacy.” Commonwealth v. Doe, supra at 771. A decision from this court that permits unconstrained eavesdropping by prosecutors on intimate personal conversations with no requirement that a prosecutor demonstrate to an impartial tribunal that the eavesdropping is reasonable and
Article 14 of the Massachusetts Declaration of Rights provides, in part: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.”
Federal courts interpreting the Fourth Amendment to the United States Constitution have similarly held that inmate telephone calls may be recorded. See Cacicio v. Secretary of Pub. Safety,
The court does not differentiate between a pretrial (and presumably innocent) detainee and a convicted inmate. Ante at 690-692. Because I consider the court’s decision most troubling in its application to pretrial detainees, I focus my discussion on those individuals.
I use the term “privacy” in the art. 14 sense of an individual’s right to be free from governmental eavesdropping on private conversations or searching through private papers, see note 1, supra, not in the sense that it is used in opinions of the United States Supreme Court concerning its jurisprudence based on the Ninth Amendment or Fourteenth Amendment to the United States Constitution. See, e.g., Griswold v. Connecticut,
It is “improper to use the grand jury for the purpose of preparing an already pending indictment for trial.” Commonwealth v. Cote,
See G. L. c. 233, § 20A (clergy privilege).
See G. L. c. 233, § 20B (psychotherapist privilege).
See G. L. c. 233, § 20, First and Second (spousal privilege). I recognize that the spousal privilege provided for in the second clause of G. L. c. 233, § 20, does not protect a spouse from testifying before a grand jury, Matter of a Grand Jury Subpoena,
Massachusetts recognizes at least fifteen statutory and three common-law privileges. See Matter of a Grand Jury Supoena,
The amicus brief is signed by, among others, the Committee for Public Counsel Services (CPCS), the agency established by statute to coordinate the representation of indigent defendants in criminal and certain noncriminal cases. See G. L. c. 211D, § 1.
CPCS represents that every telephone call placed by, and every visit to, minors incarcerated at the Department of Youth Services secure unit at the Plymouth County correctional facility are recorded by the sheriff and made available to the district attorney. In at least one instance, a district attorney subpoenaed and obtained a recording of each such telephone call and visit occurring over a period of more than six months. There is no claim by the Commonwealth or the sheriff that such representations are inaccurate in any respect.
In Cacicio v. Secretary of Pub. Safety, supra, this court upheld the right of prison officials to record an inmate’s telephone calls because inmates had “alternative means of exercising their rights,” such as through visits. Id. at 771. If all visits and all telephone conversations are recorded, and those recordings are turned over to prosecutors, I am unable to see how either the parents or the minors at issue can exercise their constitutional rights.
In Hudson v. Palmer,
The court dismisses United States v. Cohen, supra, stating that it “does not affect our analysis.” Ante at 691 n.9. I disagree. While the circumstances in the Cohen case are not identical to those implicated here, that court’s analysis is on point. It is the sheriff who records telephone calls placed by inmates and pretrial detainees, but it is the prosecutor — not the sheriff — who seeks to examine the recordings of those telephone calls. There is nothing in the record to suggest that a prosecutor necessarily does so in furtherance of the sheriff’s penological purposes. Rather, the prosecutor appears to be attempting to do what the prosecutor in the Cohen case did — search for evidence to build or strengthen a case against the detainee.
I, of course, agree with the court’s supposition that a sheriff could be expected to turn over to law enforcement authorities any information concerning criminal activity that the sheriff might discover during the monitoring of telephone calls, ante at 690 n.8, although the sheriff plainly did not obtain such information here. It does not follow that a sheriff is free to provide recordings of telephone calls because a grand jury “might” be investigating criminal activity within the institution or through the use of the prison telephone system. I agree that the determination whether there exists a valid basis for a grand jury to subpoena telephone recordings “is not for the sheriff.” Id. That determination should be made by an impartial tribunal. See infra.
The court cites to two Federal cases interpreting Fourth Amendment challenges to the use of a defendant’s pretrial statements recorded in prison in evidence at trial. Ante at 688. Reliance on those cases is not persuasive. We are not dealing here with evidence at trial, as do those cases. The cases do not appear to concern grand jury subpoenas, and there is nothing in them to suggest that prosecutors reviewed months and months of recordings in the unrestrained manner sought here, with no judicial supervision. Most important, those cases do not reflect the careful balancing that this court has established between the public interest in grand jury investigations of alleged criminal conduct and the art. 14 rights of Massachusetts residents “to be free from unreasonable intrusions on their privacy.” Commonwealth v. Doe,
“The individual costs of pretrial incarceration fall most heavily, of course, on the underprivileged and indigent. A very high percentage of pretrial inmates are incarcerated because they cannot even post relatively modest cash bail.” S.A. Saltzburg & D.J. Capra, American Criminal Procedure: Adjudicative 933 (8th ed. 2007). In this Commonwealth, pretrial detention for reasons other than the financial inability of an individual to post bail is severely constrained. See, e.g., G. L. c. 276, § 58A (1), (3) (providing Commonwealth may move for order of pretrial detention “based on dangerousness” where defendant is charged with crimes containing certain elements, and that pretrial detention on such basis may be granted where judge “finds by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community”).
Children, too, can be detained prior to trial if they are unable to furnish bail. See G. L. c. 119, § 68. Thus, poor incarcerated minors may face the prospect of having all conversations with their parents while they are awaiting trial recorded and turned over to a prosecutor for perusal.
I focus here only on the privacy interests that I believe are protected by art. 14 because that is the primary focus of the briefing and argument. Thus, I do not address the important rights protected by the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights also implicated by providing recordings of a pretrial detainee’s telephone conversations to the grand jury.
In many States, statutes — often founded on the protection of privacy interests — limit the extent of a grand jury subpoena’s reach. See 1 S.S. Beale, W.C. Bryson, J.E. Felman, M.J. Elston, & K.E. Yanes, Grand Jury Law and Practice §§ 6:1-6:% (2d ed. 2008), and authorities cited. For example, in Massachusetts, an unemancipated minor who lives with a parent “shall not testify before a grand jury . . . against said parent.” G. L. c. 233, § 20, Fourth.
In Commonwealth v. Doe,
Dissenting Opinion
(dissenting in part). I join the dissenting opinion of Chief Justice Marshall to the extent that it concludes that pretrial detainees (juvenile or adult) retain a privacy interest, protected by art. 14 of the Declaration of Rights of the Massachusetts Constitution, in recordings of their otherwise private conversations, even though they are made by prison officials after notice and in furtherance of a valid penological purpose. That privacy interest includes an interest in the dissemination of the substance of those conversations to persons and government agencies beyond what is necessary to further the limited purpose (institutional security) that justified their interception. I also agree that in order to obtain the recordings of such conversations for the use of the grand jury, the Commonwealth should be required to make a factual showing (albeit ex parte) sufficient to permit a judge to conclude that there is a reason for the subpoena that is consistent with the legitimate function of the grand jury, and that such subpoena is reasonable in scope.