Excerpts from a recent case re: recording of inmate phone calls.
Comm. v. Ennis (Wiretap)
Where a defendant moved to suppress an audiotape of a telephone conversation involving himself, a house of correction inmate and a third party, an order allowing that motion must be reversed on the ground that suppression is not required under G.L. c. 272, Sect. 99P.
"The issue is whether an audiotape recording by the DOC of a three-way telephone conversation among an inmate at the Plymouth County HOC, the defendant and a codefendant must be suppressed pursuant to G.L. c. 272, Sect. 99P, where the inmate and the codefendant know that the conversation was being recorded, but the defendant did not. The recording need not be suppressed. ...
"The department did not wilfully record any oral communication of [defendant Demetrius] Ennis, secretly or otherwise. The department did wilfully record inmate Knight's telephone call to Williams, announcing to both parties that their conversation would be recorded. The department affirmatively sought to prevent any additional party from being added to that two-party telephone conversation. ... There is no evidence that the department's system failed or that the department could have taken other steps to prevent Williams from including Ennis in the telephone conversation. By whatever means (the record is not clear) Williams was able to by-pass the feature intended to disconnect the call. Certainly the department did not 'secretly record' any part of the resulting conversation wilfully. The department informed all of the anticipated parties to the collect telephone call that their communications would be recorded. The wiretap act is not so broad as to impose liability each time an additional party is added to a two-party conversation in circumstances beyond the recorder's knowledge, direction, or control. Because there was no willful conduct by the department, there was no 'unlawful' or 'illegal' interception, Ennis cannot prevail on either of these two grounds."
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