one-party consent exception in Massachusetts

2023See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v. Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of "interception" under § 99); Commonwealth v. Tavares, 459 Mass. 289, 297 (2011) ("clear legislative intent" to limit availability of wiretapping in criminal investigations); id., quoting Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert. denied, 454 U.S. 1147 (1982) ("we have stated that the one-party consent exception is 'a narrow exception to the broad statutory prohibition against warrantless surveillance'").

2014Of primary relevance here is the one-party consent exception, which allows for the recording of oral communications where the party surreptitiously recording the communications “is an investigative or law enforcement officer investigating a ‘designated offense,’ and that officer is either (1) a party to the communication, or (2) has advance authorization from a party to the communication to intercept the conversation.” Tavares, 459 Mass. at 297 , citing Commonwealth v. Thorpe, 384 Mass. 271, 275-276 (1981), cert. denied, 454 U.S. 1147 (1982). 11 A “designated offense” is an offense enumerated

2023See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v. Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of "interception" under § 99); Commonwealth v. Tavares, 459 Mass. 289, 297 (2011) ("clear legislative intent" to limit availability of wiretapping in criminal investigations); id., quoting Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert. denied, 454 U.S. 1147 (1982) ("we have stated that the one-party consent exception is 'a narrow exception to the broad statutory prohibition against warrantless surveillance'").

2023See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v. Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of "interception" under § 99); Commonwealth v. Tavares, 459 Mass. 289, 297 (2011) ("clear legislative intent" to limit availability of wiretapping in criminal investigations); id., quoting Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert. denied, 454 U.S. 1147 (1982) ("we have stated that the one-party consent exception is 'a narrow exception to the broad statutory prohibition against warrantless surveillance'").

2024However, our wiretap act was never similarly amended to add a separate definition of "electronic communication." Moody, 466 Mass. at 207-208 .[33] Title III also differs importantly from our wiretap act in providing a one-party consent exception.

2023See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v. Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of "interception" under § 99); Commonwealth v. Tavares, 459 Mass. 289, 297 (2011) ("clear legislative intent" to limit availability of wiretapping in criminal investigations); id., quoting Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert. denied, 454 U.S. 1147 (1982) ("we have stated that the one-party consent exception is 'a narrow exception to the broad statutory prohibition against warrantless surveillance'").

2023See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v. Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of "interception" under § 99); Commonwealth v. Tavares, 459 Mass. 289, 297 (2011) ("clear legislative intent" to limit availability of wiretapping in criminal investigations); id., quoting Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert. denied, 454 U.S. 1147 (1982) ("we have stated that the one-party consent exception is 'a narrow exception to the broad statutory prohibition against warrantless surveillance'").

2014Of primary relevance here is the one-party consent exception, which allows for the recording of oral communications where the party surreptitiously recording the communications “is an investigative or law enforcement officer investigating a ‘designated offense,’ and that officer is either (1) a party to the communication, or (2) has advance authorization from a party to the communication to intercept the conversation.” Tavares, 459 Mass. at 297 , citing Commonwealth v. Thorpe, 384 Mass. 271, 275-276 (1981), cert. denied, 454 U.S. 1147 (1982). 11 A “designated offense” is an offense enumerated

2014Commonwealth v. Tavares, 459 Mass. 289, 298 (2011), quoting Blood, supra at 66 .

2013See Commonwealth v. Blood, 400 Mass. at 70-75 .

2023General Laws c. 272, § 99 B 4, permits warrantless secret recording under the following conditions, collectively known as the wiretap statute's one-party consent exception: "[A] secret recording of a conversation is not an 'interception' and is therefore lawfully recorded without a warrant where (1) at least one party to the conversation gives prior consent to the recording of the conversation; (2) the party giving consent is a law enforcement officer or a person who has authorized a law enforcement officer to record the conversation; (3) the recording is made 'in the course of an investigatio

2014In Commonwealth v. Hearns, 461 Mass. 707, 715 (2014), by contrast, we held that the one-party consent exception applied where the investigating officer’s affidavit, “although conclusory in part, provided an adequate basis” to support the motion judge’s conclusion that a shooting had been committed in connection with organized crime.

2011See Commonwealth v. Long, supra. By the alleged murderer’s own account, the killing of Lima was an accident.

2011See id.

2011See Commonwealth v. Thorpe, supra at 276 ; Commonwealth v. Vitello, 367 Mass. 224, 231-233 (1975).

2002See Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998) (holding secret taping within home by custodial parent of fourteen year old’s telephone conversations with her noncustodial parent permissible if consenting parent demonstrates “a good faith, objectively reasonable basis for believing such consent was necessary for the welfare of the child”).