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Lt. Michael #. Chapman S"t. 1ohn (.

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WIRETAP STATUTE Interception of Wire and Oral Communications M.G.L Chapter 272 Section 99
The Wiretap Statute is a 12 page document, the purpose of this training bulletin is to give a quick summary for your review. lease see the actual Statute for further details.

Definitions
Interception means to secretly hear or record or aid another to secretly hear or secretly record the contents of any oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication!" #ral $ommunication means speech% e&cept such speech as is transmitted over the public air 'aves by radio or other similar device" (eneral la' description) This la' is designed to prohibit secret recordings of oral communication" lements Any person 'ho) Willfully commits an interception #R Attempts to commit an interception #R Procures another person to commit an interception or attempt to commit an interception #f any 'ire or oral communication !i"ht of #rrest$ In %resence or %ro&a&le Cause
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%u&lic and open recordin"s are allo*ed under the Wiretap statute. +here is no ri"ht of arrest for pu&lic and open recordin"s under this statute. C#S L#W
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Commonwealth v. Hyde (434 Mass. 594)


#n #ctober *+% ,--.% an Abington police officer conducted a traffic stop of the defendant/s 'hite Porsche% because the automobile had an e&cessively loud e&haust system and an unlit rear registration plate light" Several other Abington police officers responded and the stop 0uic1ly became confrontational" Several days later% the defendant 'ent to the Abington police station to file a formal complaint based on his unfair treatment during the stop" To substantiate his allegations% he produced the secret tape recordings he had made of the conversations that had ta1en place bet'een the defendant and the police officers" The defendant 'as tried and convicted of violating the 'iretap statute under (" 2" c" *3*% 4 --" The Supreme $ourt of 5assachusetts affirmed the defendant6s conviction and stated the 7defendant 'as not prosecuted for ma1ing the recording8 he 'as prosecuted for doing so secretly9" The court further stated 7the problem here could have been avoided if% at the outset of the traffic stop% the defendant had simply informed the police of his intention to tape record the encounter% or even held the tape recorder in plain sight" :ad he done so% his recording 'ould not have been secret% and so 'ould not have violated (" 2" c" *3*% 4 --" See $ommon'ealth v" ;ac1son% no <interception< 'hen defendant 'as a'are his voice 'as being recorded!" Secret tape recording by private individuals has been une0uivocally banned% and% unless and until the 2egislature changes the statute% 'hat 'as done here cannot be done la'fully9"

Commonwealth v. Manzelli (68 Mass. App. Ct. 691)


=uring a political rally% the defendant secretly recorded his conversation 'ith several 5>TA officers as they had a discussion about the defendant ta1ing pictures of the officers" This is ho' the Appeals $ourt described the event 'hen the officer as1ed if the defendant 'as tape recording their conversation" 7The defendant immediately too1 the microphone% along 'ith a blac1 bag containing a tape recorder and cassette tapes% and thre' them among a nearby group of protestors" The defendant shouted for people to ta1e the tapes" #fficer! Riel attempted to retrieve the recorder and tapes% but 'as th'arted by the cro'd% 'hich began to throng Riel" #fficer! :arer came to Riel/s aid% and the t'o of them managed to recover an empty bag% the microphone% and a fe' tapes" Riel 'as punched in the eye by a protestor as she attempted to collect the items" :arer then attempted to arrest the defendant% 'ho% by that time% had fled into a nearby sub'ay station" After a brief chase% :arer too1 the defendant into custody9" After trial% the ?ury convicted the defendant of unla'ful electronic interception of an oral communication under ("2" c" *3*% 4 --" The Appeals $ourt in 5assachusetts stated 7that despite the lac1 of a tapes% there 'as ample circumstantial evidence that the defendant made an unla'ful secret recording% including ,! his possession of a device% together 'ith the microphone secreted in his ?ac1et% *! the fact that the microphone 'as pointed in the direction of the officers during their conversation 'ith the defendant% @! the odd manner in 'hich the defendant put his 0uestions to police% and A! the tapes he discarded into the cro'd9"

%u&lic and open recordin"s are allo*ed under the Wiretap statute. +here is no ri"ht of arrest for pu&lic and open recordin"s under this statute.

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