Boston has been inundated with photos and surveillance tapes for the worst of reasons since April 15, 2013. We learned, or perhaps were reminded, that we are being watched. And, as a matter of legal fiction, we consent to being watched pretty much all the time once we leave home. What we do and with whom may be caught on still or moving pictures. Outward gestures, glances, clothing choices and all non-verbal communication are fair game. What we say, however, is usually thought to be a private matter. The government needs to obtain a warrant to listen in. This is particularly true inside our homes. Those conversations are certainly within a sphere of privacy.
The thought that comes to mind in cases of wiretapping is of political corruption or organized crime - secretly recorded conversations, maybe with informants wearing wires. It is not of a videorecording device in the bedroom of a family member to catch a suspected pedophile. In Commonwealth v. F.W., 465 Mass. 1 (2013), a woman had been sexually assaulted by her paternal grandfather as a young girl. While she did not report the abuse to authorities, she did tell her grandmother but it made little difference. Understandably, she became distant from her father's side of the family. For unexplained reasons, as an adult, she resumed contact with this branch of the family. The branch of the family, including the (allegedly) abusive grandfather live at the woman's father's home.
This woman has a sister who is a non-verbal, autistic, minor child. Despite her disabilities, the sister conveyed a joyful disposition, often smiling and acting affectionately. Thus, the woman became alarmed when her otherwise happy sister became withdrawn, sullen and tearful. The woman suspected the grandfather of sexually assaulting her. Because her sister cannot speak or, it seems, convey specific information through a computer writing program, asking her about allegations would not be productive. The woman did not remove the child from the home, but instead set up a videorecording device in her father's bedroom to confirm her suspicions. Which, sadly, it did.
The videorecording device captured video of the grandfather (allegedly) unzipping his trousers and forcing oral sex upon his disabled granddaughter. The defendant did not move to dismiss the video itself; he moved to dismiss the statement on the recording where he (allegedly) said - as he held the back of the victim's head near his crotch. The statement, "put it in your mouth" was the subject of the motion to suppress which was premised upon the federal wiretap statute that prohibits intentional interception of an oral communication.
Query whether, if the case went to trial, assuming the video came in along with evidence of the victim's change in demeanor and the woman's testimony of her former abuse by the defendant (as part of a pattern or practice) anyone would need to hear that statement in order to convict him of the charges related to sexual assault of a minor. It seems highly unlikely.
The Commonwealth, for reasons that remain a mystery, argued that the defendant had no reasonable expectation of privacy in the statement because the recording was not in a private enough place since the defendant did not have exclusive use of the bedroom where the woman set up the camera. This "argument" does not even make sense: the man was in his own home, a home he shared with others, but clearly within the sphere of privacy protected by the Fourth Amendment and Art. 14 in light of the fact that they both stress the idea of security in one's home. The SJC made short shrift of that. Conversations inside the home are private enough to warrant protection.
The argument, presumably by the defense, was that the federal wiretapping statute applied in that what the woman did by recording a conversation to which she was not privy and in which no party had consented violated the federal law. In response, the government argued that the statement should not be suppressed because the woman could vicariously consent to a recording of
the conversation for her disabled sister.
Ummm...no. The Fourth Amendment and Art. 14 apply to unreasonable searches and seizures by the government. It does not apply to sisters concerned about their autistic siblings. While it is true that if the sister had intended to intercept an oral communication or knowingly intercepted an oral communication in violation of the statute, the statement could be subject to suppression (or other exclusion from trial). But, those were not the facts of the case. The adult sibling did not recall any statements by her grandfather to her when he (allegedly) abused her. The adult sibling could not have intended to intercept oral communication because the minor child could not speak. To the extent that ANY statement would be uttered (and there would be no reason to think there would be), it would be a surprise. The purpose of setting up the camera was to confirm the suspicion of abuse, not to intercept an oral communication. Because any violation of the statute requires scienter, the
adult sibling did not violate it.
It is inconceivable that the events would have taken a different course if the video were silent. Law enforcement reviewed information provided voluntarily by a citizen who conveyed not only her own history with the defendant but evidence of the defendant sexually assaulting a disabled child. Upon review of that evidence, they acted appropriately in calling the defendant and asking him to come to the police station which he did.
The police provided constitutional safeguards pursuant to Miranda v. Arizona and obtained a valid waiver of rights, pursuant to due process of law as deemed adequate by Supreme Court decisional law. The officer asked the defendant about his past contact with the woman and with the victim. The defendant not only admitted his actions but when asked specifically about observations the officer (hypothetically) saw on the video, the defendant said that he, "just wanted to see what she would do and got carried away." There was no basis to move to suppress that confession. With or without the statement to the child, this case was a good candidate to ask for mercy from the court. There is no identification problem; there is no question of the offense; there is no consent defense available to sexual assault on a minor, disabled child.
The statement itself adds nothing to the prosecution's case and even if it could be suppressed, gains nothing for the defendant. This was a clear case of a defense attorney without a strategy or purpose resulting in potentially disastrous decisional law.
There may be evidentiary reasons to exclude the video and even the statement from a trial, but suppression is unavailable. The insidious argument that the federal wiretapping statute applies to such a recording is not only terrifying but it is manifestly wrong. There was no intent to capture an oral communication; a woman set up a videocamera that the parties did not know was there which could happen to, oh I don't know, a presidential candidate at a private, expensive dinner party. Even if it were subject to the wiretap statute and even if there were a hint of a willful violation of that statute, that might present a civil charge against the woman or a request to the federal government to prosecute. It might even advance reasons to exclude the evidence from trial, but that does not make it eligible for suppression.
The first question regarding a motion to suppress is to discover the reason for suppression, if any. Given that there was no government action, the only authority for suppression would be the statute. But, there was no knowing intention to intercept an oral communication and thus the statute does not apply. That ends the discussion.
Of course, that did not stop the SJC from taking the question on a rare
interlocutory appeal by the defendant and doing the analysis backward. Rather than starting with the statute to see if there was a violation, it started with the defendant's reasonable expectation of
privacy for the conversation which is just...weird. The question on the
constitutional principle is not one of privacy at all, it is privacy
from THE GOVERNMENT. From the government, people have a right to
privacy in the area around their homes, inside their homes and in their bedrooms. But, the government did not invade a the area around a home
or inside a home or a bedroom. The government looked at a
videorecording and questioned a defendant who confessed. In any event, the SJC determined that people DO have a reasonable expectation of privacy inside bedrooms of their own home (whew!) and then addressed the vicarious consent issue.
Vicarious consent is a bizarre legal fiction that came into being when parents in bitter divorces started intentionally recording conversations between their minor children and their former spouses on their home telephones. Neither the child nor the other parent knew of the recording. That DOES violate the federal wiretapping statute because...it...is...wiretapping. And it is a violation of the federal statute which requires that at least one person to consent to the recording (and it really offends the concurrent Massachusetts law which requires all party consent - a fact utterly ignored by the SJC in its vicarious consent ruling).
The parent who recorded the conversation illegally could claim that s/he vicariously consented on behalf of the minor child and therefore single party consent would be satisfied. In Pollack v. Pollack, 151 F.3d 601 (6th Cir. 1998) the mother recorded conversations between her minor child and the child's father and step-mother and provided the offending ones to her lawyer who then contacted the authorities about the father's emotional abuse of the child. The father sued the mother under the federal wiretapping statute. The mother claimed that she only recorded the conversations due to a concern for her daughter. While the Court of Appeals for the Sixth Circuit applied the fictional vicarious consent doctrine, it did not conclude that the mother acted solely for pure purposes and remanded the case with instructions of application of the doctrine itself.
Vicarious consent has never been accepted formally by the Supreme Court for any purpose, let alone in criminal case alleging a violation of the wiretap statute. The courts that have accepted it seem to apply the doctrine in family disputes and related cases. The doctrine makes some sense in the matter of child custody cases: if the party can demonstrate that the recording was not out of malice and was made solely out of concern for the child and the recording itself illustrates some nefarious actions by the other parent...then the court might be warranted in restricting or limiting or constraining visitation with the child, or even ordering some counseling for the parent...not send the parent to prison.
When permitted, vicarious consent has applied solely to parents and it seems applicable solely in civil disputes. But, in Commonwealth v. F.W., the SJC allowed an adult sibling acting in the best interest of the minor child to consent vicariously to recorded conversations between the (allegedly) abusive grandfather and the child. It did so, presumably, because the child's father and grandmother incomprehensibly did not step in to protect the little girl. The sister's actions were noble and pure in every sense, but that does not make them a legitimate exercise of vicarious consent, even if vicarious consent were a legitimate concept in a criminal case.
Even the idea of vicarious consent to record a "conversation" in which only one party could speak is bizarre. Query the application if an actual, voluntary conversation took place, perhaps between a 15 year old girl and her 17 year old boyfriend; is that enough to establish vicarious consent for a parent or a concerned sibling to record the conversation? What about a concern about smoking marijuana? Hanging out with a rough crowd? Given the ruling in Commonwealth v. F.W., what authorizes vicarious consent for conversations under the federal law? And, by whom? What application is there of the Massachusetts law which requires all party consent to recorded conversations? Even if there is some validity to a notion of vicarious consent, tracking criminal offenses between family members does not fall within its ambit.
This is not to say that the woman was wrong to make a videorecording. It was not wrong of her to turn the evidence over to the police. It was not wrong for the police to question and arrest the defendant upon his confession. And, it is not wrong to prosecute the defendant for heinous crimes against one of the most vulnerable members of society. It is not even wrong to move to admit the videorecording and the statement recorded.
Knowing that - regardless of the ruling on the admission in evidence of the statement - the video of the defendant (allegedly) opening the zipper of his pants and holding the back of his disabled granddaughter's head to his opened zipper would be admissible in court, there was no rationale to move interlocutorily regarding the statement.
Had the courts simply analyzed the statute and not the substantive issue, the result would have been the same (no suppression of the video or statement) but vicarious consent would not have been introduced into Massachusetts jurisprudence. This is why it is really important to read the statutes first and seek their application after, not the other way around.
No comments:
Post a Comment