NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Moody, 466 Mass. 196 (2013)

CONTRIBUTING EDITOR: BILL BREKKA I. Procedural History

The defendants, Cory A. Moody and Devin Newman, were indicted in Superior Court for various violations of the Controlled Substances Act found under General Laws, Chapter 94C.1 Prior to trial, the defendants filed motions to suppress the evidence obtained as a result of several search warrants issued under the Massachusetts wiretap statute, General Laws, Chapter 272, Section 99.2 The warrants authorized the interception of calls and text messages sent over the defendants cell phones.3 The motion judge denied the defendants motions regarding cell phone calls, but granted their motions as to their text messages.4 The motion judge then reported the following question to the Appeals Court: Does G.L. c. 272, 99 authorize a Superior Court Judge to issue a warrant permitting state law enforcement officers to intercept cellular telephone calls and text messages?5 The Supreme Judicial Court of Massachusetts (SJC) then took the case on its own motion.6 II. Facts In October 2010, the Commonwealth applied for and received warrants authorizing the interception of the defendants cell phone calls and text messages.7 The warrants were sought in connection with an investigation

Commonwealth v. Moody, 466 Mass. 196, 197 (2013). Id. 3 Id. at 198. 4 Id. 5 Id. The question was pursuant to Massachusetts Rule of Criminal Procedure 34, as amended by 442 Mass. 1501 (2004). Id.
2 6 7

Id. Commonwealth v. Moody, supra at 198.

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into the defendants participation in an ongoing conspiracy in drug distribution and trafficking.8 After the warrants were issued, the police monitored the defendants cell phone calls and text messages for about one week.9 The contents of the week-long interception were the subject of the defendants motions to suppress.10 III. Issue 1. Whether a Superior Court judge is permitted to issue warrants authorizing the interception of cell phone calls and text messages under the Massachusetts wiretap statute.11

IV. Holding and Reasoning The SJC ultimately held that the Massachusetts wiretap statute permits a Superior Court judge to issue warrants authorizing the interception of both cellular telephone calls and text messages. 12 To resolve this issue, the SJC had to determine whether the federal wiretap statute preempted the Massachusetts wiretap statute.13 The current federal wiretap statute covers cell phone calls and text messages14; to not be preempted, the SJC had to find that the Massachusetts statute also covered cell phone calls and text messages.15 In 1968, Congress first enacted the federal wiretap statute to protect wire and oral communications from unauthorized interception.16 The Act prohibited the willful intercept[ion] of any wire or oral communication . . . unless a Federal or State judge of competent jurisdiction authorized such interception through the issuance of a warrant. 17 It defined wire communication as any communication made in whole or in part through the use of facilities for the transmission of communications by the aide of wire, cable, or like connection between the point of origin and the point of

Id. at 198-199 (internal quotation marks omitted). Id. at 199. 10 Id. 11 Id. at 198; see G.L. c. 272, 99. 12 See id. at 209. 13 See Commonwealth v. Moody, supra at 199, 204-205. 14 See id. at 202-203. 15 See id. at 207, 209. The federal wiretap statute permits concurrent state regulation so long as it provides at least as much protection for communications as the federal law. See id. at 201, 203. 16 Id. at 199. 17 Id. at 199-200 (quoting Omnibus Crime Control and Safe Streets Acts of 1968, Pub. L. No. 90-351, 802, Title III, 82 Stat. 211, 213, 216, 218-219 (1968)).
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reception.18 The act went on to define intercept as the aural acquisition of the contents of any wire . . . communication through the use of any electronic, mechanical, or other device.19 With respect to preemption, concurrent state regulation was permitted so long as, at a minimum, it met the requirements of the Federal regulation( i.e. provided at least as much protection for communications as the Federal regulation).20 Shortly after the Federal wiretap statutes enactment, the Massachusetts Legislature rewrote its own wiretap statute to conform with the Federal statute.21 The only slight difference from the Federal law was that it defined interception to mean to secretly hear [or] secretly record . . . the contents of any wire communication through the use of any intercepting device.22 In 1986, Congress amended the Federal wiretap statute.23 For purposes of this case, the amendment was important in a few respects. First, it made clear that the wiretap statute covered electronic communications (which would include text messages) by creating a new category of protected communication, in addition to wire communication.24 Second, Congress made clear that the definition of wire communication included calls from one cell phone to another by adding that the language wire, cable, or other like connection in the original definition includes the use of such connection in a switching station.25 Third, Congress amended the definition of intercept to ensure that it included not only interception of the human voice, but also other forms of communication.26 Despite these amendments to the federal wiretap statute, the Massachusetts Legislature never amended the Massachusetts wiretap statute.27 The Massachusetts law is still nearly identical to the original 1968
18 Id. at 200 (quoting Pub. L. No. 90-351, 802, 82 Stat. at 212) (emphasis added) (internal quotation marks omitted).

Commonwealth v. Moody, supra at 200 (quoting Pub. L. No. 90-351, 802, 82 Stat. at 212) (internal quotation marks omitted). See id. at 201 (citing to Pub. L. No. 90-351, 801(b), 82 Stat. at 217-218). Id. at 201. 22 Id. at 201-202 (quoting G.L. c. 272, 99 B 4) (internal quotation marks omitted). 23 Id. at 202. 24 Id. at 202 (citing Pub. L. No. 99-508, 101(c)(1)(A), 100 Stat. 1848, 1851-1852, codified, as amended, at 18 U.S.C. 2511(1)(a) (2006)). 25 Commonwealth v. Moody, supra at 202-203 (citing 101(a)(1)(B), 100 Stat. at 1848, codified, as amended, at 18 U.S.C. 2510(1) (2006)). Calls between cell phones pass briefly through a mobile telephone switching office, hence the brief wire connection in the switching station. Id. at 203 n.9. 26 Id. at 203 (citing 101(a)(3)(A), 100 Stat. at 1848, codified, as amended, at 18 U.S.C. 2510(4) (2006)).
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Id. at 203.

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federal law.28 As a result, the Massachusetts wiretap statute would be preempted unless it could be interpreted to cover cell phone calls and text messages, thus providing the same level of protection for such communications as the federal statute.29 Concerning cell phone calls, the court concluded that cell phone calls were included within the Massachusetts wiretap statutes definition of wire communication.30 Because the definition of wire communication is the same in the Massachusetts statute as it is in the original federal statute, the SJC relied upon House and Senate reports accompanying the 1986 amendment to the federal law in reaching its conclusion.31 These reports suggested that the 1986 amendment did not mark the first time that cell phone calls were covered by the law, but rather clarified some confusion as to whether all cell phone calls were in fact covered under the original 1968 law.32 Therefore, the SJC concluded that the Massachusetts statute does cover all cell phone calls despite the fact that it was never amended to make this clear.33 With respect to text messages, the court concluded that they were also covered under the Massachusetts statute. 34 For one, the SJC reasoned that the statutes definition of wire communication any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connectionwas certainly broad enough to cover text messages.35 Text messages, like cell phone calls, travel by wire, cable, or other like connection when they pass through a switching station.36 Further, the SJC reasoned that the Massachusetts statutes definition of interceptto secretly hear [or] secretly record . . . the contents of any wire communication through the use of any intercepting deviceincluded the interception of text messages.37 The SJC referred to Websters dictionary definition of record to reason that secretly record includes the interception of text messages because the text messages are viewed and transcribed for use at a later date (i.e. recorded).38 As a result, despite the fact that the Massachusetts statute was

28 29 30 31 32 33 34 35 36 37 38

See id. at 201-203. See id. at 205, 207-208. Id. at 207. Commonwealth v. Moody, supra at 205-206 (emphasis added). Id. at 206-207. Id. at 207. Id. at 209. Id. at 208 (quoting G.L. c. 272, 99). Id. Commonwealth v. Moody, supra at 208 (quoting G.L. c. 272, 99) (emphasis added). Id. at 209.

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never amended, it nonetheless covers text messages. 39 In sum, the SJC reasoned that the Massachusetts wiretap statute provides as much protection for cell phone calls and text messages as the current federal wiretap statute and is therefore not preempted because it could be interpreted to cover the interception of both cell phone calls and text messages.40 As a result, a Superior Court judge could properly issue warrants authorizing the interception of cell phone calls and text messages under the Massachusetts wiretap statute, and not just the federal wiretap statute.41 V. Impact on the Law This case is significant because it clarifies that Superior Court judges can issue warrants authorizing the interception of cell phone calls and text messages under the Massachusetts wiretap statute.42 Due to the fact that Congress amended the federal wiretap statute in 1986 to clarify that cell phone calls and electronic communications were covered but the Massachusetts Legislature had made no similar amendments to its own wiretap statute, judges and lawyers were confused as to whether the Massachusetts wiretap statute covers cell phone calls and text messages or if it was preempted.43 This case provides clear guidance to judges and practitioners with respect to these areas of confusion: yes, the Massachusetts wiretap statute covers cell phone calls and text messages; no, the statute is not preempted by the federal statute; and yes, Superior Court judges may issue warrants authorizing the interception of cell phone calls and text messages under the statute. 44

39 40 41 42 43 44

Id. See id. at 207, 209. See id. See id. at 198, 209. See Commonwealth v. Moody, supra at 198-199. Id. at 209.