Two courts scrutinize limits of taping conversations

From the Fall 2001 issue of The News Media & The Law, page 22.

A ruling this summer by Massachusetts’ highest court might impede the ability of reporters to secretly record conversations in that state, while a Pennsylvania ruling sheds light on the privacy interest at stake when police informants record phone conversations with suspects.

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Massachusetts court upholds conviction over recording of conversation

A motorist who secretly tape recorded a confrontation with police officers broke a state law that strictly forbids such recordings, the Supreme Judicial Court in Boston ruled on July 13.

The state law “makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter,” wrote Justice John M. Greaney.

A dissent by Chief Justice Margaret H. Marshall warned of the implications for news reporters.

The ruling “threatens the ability of the press — print and electronic — to perform its constitutional role of watchdog,” Marshall wrote. “If the statute reaches actions by police officials acting in their public capacities in the plain view of the public, the legitimate news gathering of the media is most assuredly implicated.”

Marshall compared the case to the videotaped police beating of Rodney King in Los Angeles in 1991. If the beating had occurred in Massachusetts, the man who secretly videotaped the police misconduct would have been indicted, Marshall wrote.

The Massachusetts case began as a routine traffic stop. Abington police officers stopped Michael Hyde on Oct. 26, 1998, because his Porsche had a loud exhaust system and an unlit license plate. The stop quickly turned confrontational, with Hyde and the officers cursing and the officers asking Hyde whether he had any cocaine in the car. The officers let Hyde go without issuing any traffic citations or charging Hyde with a crime.

Hyde, who recorded the confrontation with a hand-held tape recorder, filed a complaint of unfair treatment against the officers. They, in turn, brought criminal charges against Hyde for violating the state’s wiretapping law. (Commonwealth v. Hyde)

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Pennsylvania court finds no expectation of privacy in phone call

A criminal defendant has no expectation of privacy in his home phone conversations with a police informant, the Pennsylvania Supreme Court in Pittsburgh ruled on Aug. 20. Thus, a determination of probable cause doesn’t have to be made before police officers record phone calls between informants and suspects, the court ruled.

Society doesn’t recognize as reasonable an expectation of privacy in phone calls, the court ruled.

A phone conversation “is readily subject to numerous means of intrusion at the other end of the call, all without the knowledge of the individual on the call,” wrote Justice Ralph J. Cappy for the majority. “Extension telephones and speaker phones render it impossible for one to objectively and reasonably expect that he or she will be free from intrusion.”

Justice Stephen A. Zappala’s dissent rejected the majority’s technology argument.

“I therefore cannot agree that the citizens of this Commonwealth reasonably expect the government to intercept telephone conversations that occur in their homes merely because speaker phones and extension lines have facilitated the means of doing so,” Zappala wrote.

“Rather than relinquish our privacy rights in the face of modern innovation, we should fiercely protect them.”

The case arose in 1992 when Cranberry Township police used informant Thomas Tubridy to record phone calls made to the homes of drug suspects Vincent Rizzo and Kirk Rekasie.

Police did not first ask a judge to determine if probable cause of criminal activity existed.

Based on the phone calls, police obtained a search warrant, stopped Rekasie in Pittsburgh as he left a flight from Florida and found cocaine in his luggage. (Commonwealth v. Rekasie) — MD