Opinion
No. 06-1036.
June 2, 2008.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS JAIL CALLS
For the reasons that follow, Defendant's Motion to Suppress Jail Calls is DENIED.
FINDINGS OF FACT
An evidentiary hearing was held on May 15 and 16, 2008, at which I heard testimony from two witnesses — Trooper Kevin Baker from the Massachusetts State Police, and Daniel Finn, Deputy in Charge of the Middlesex County Sheriff's Investigation Unit — and received certain exhibits. Based on the credible evidence and reasonable inferences drawn therefrom, I make the following findings of fact.
1. In June of 2006 Tpr. Baker, assigned to the Middlesex Detectives Unit of the State Police, was investigating a double homicide committed in Massachusetts on March 13, 2006. The investigation had led to the arrest of the defendant ("Fitzpatrick"), who was being held pending rendition in the Carroll County (New Hampshire) House of Correction (herein, the "CCHOC").
2. Tpr. Baker called the CCHOC and spoke with a Major Topsham. He inquired about getting copies of any calls made by Fitzpatrick from the CCHOC. Major Topsham said he needed a written request on State Police stationery.
3. Tpr. Baker set such a request on June 13, 2006 and in due course received back a compact disk with recordings of Fitzpatrick's calls.
4. Tpr. Baker has listened to the recordings. I listened to the first few seconds of the first call. It begins with a recorded message, as follows:
You have a collect call from Sean Fitzpatrick at the Carroll County House of Correction. This call may be monitored or recorded.
This same recorded message was played at the beginning of each call that Fitzpatrick placed from the CCHOC. It was audible to him, and to the person on the other end of the call.
Tpr. Baker, of course, does not know this directly, but it is a reasonable inference which, in the absence of any contrary evidence, I draw.
5. Somewhat later, the CCHOC sent Baker a copy of a form, signed by Fitzpatrick, titled "Inmate Telephone ID Number Release Form." I infer from its content, and therefore find, that the form was presented to Fitzpatrick, and that he signed it, before he was permitted to make his first telephone call from the CCHOC.
6. The form calls itself an "agreement" between Fitzpatrick and the Carroll County Department of Correction, and states that Fitzpatrick has been issued a Telephone ID number, to be used to access the Inmate Telephone System and to debit his account for telephone calls and/or commissary orders. There are rules for its use (keeping it confidential; preventing unauthorized use and refraining from unauthorized use of another inmate's number; no right to reimbursement for unauthorized use, and so on). The last paragraph states:
I understand and agree that telephone calls are subject to monitoring, recording, and may be intercepted or divulged.
7. Tpr. Baker made a second written request to the CCHOC on July 10, 2006, and received a second CD. He has listened to this recording too. Each of the calls begins with the same recorded message quoted in paragraph 4, supra.
8. At some point, Fitzpatrick was rendited to Massachusetts and housed in the Cambridge Jail. Upon learning this, Tpr. Baker contacted the Middlesex County Sheriff's Department, and spoke to Deputy Daniel Finn. He requested copies of any recordings of telephone calls made by Fitzpatrick from the jail. These were provided, in response to this and subsequent requests; there are four CDs in all.
9. The Sheriff's system for recording inmates' and detainees' calls is controlled by computer. To access the calls of a particular detainee Deputy Finn enters the detainee's PIN. The software then searches for all calls made using that PIN, except those to telephone numbers listed as attorneys or clergy. This was the procedure the Deputy used in responding to each of Tpr. Baker's four requests. He handed the disks over to Tpr. Baker in person each time.
Pursuant to the Sheriff's Telephone Access and Use policy, calls to numbers designated by the inmate as attorneys or clergy are not monitored or recorded. See ¶ 14, below.
10. Part of Deputy Finn's job description includes monitoring of detainee/inmate calls to look for threats to the safety and security of the institution. In that connection he has listened to various calls by Fitzpatrick, selected at random. He did not hear in them anything of interest from the standpoint of institutional security.
11. Tpr. Baker has listened to the Cambridge Jail recordings. As with the CCHOC recordings, I listened to the first few seconds of the first call on the first CD. It begins with a recorded message, as follows:
Hello. This is a collect call from [Male voice: "Sean"], an inmate at the county jail. [Instructions on how the recipient may accept the call.] This call is subject to monitoring and recording.
This same recorded message was played at the beginning of each call that Fitzpatrick placed from the Cambridge jail. It was audible to him, and to the person on the other end of the call.
See footnote 1, supra, which pertains equally here as to the CCHOC calls.
12. Also in evidence is a Middlesex Sheriff's Department form titled "Cambridge Jail, Detainee's List of Designated Telephone Numbers," bearing the date June 21, 2006 and Fitzpatrick's signature. In addition to the detainee's "CIN" and "PIN," there is space for up to eight names and telephone numbers of persons whom the detainee is authorized to call, in addition to three more persons designated as "Attorney/ Lawyer/ Law Firm/Clergy." Fitzpatrick listed eight persons in the first section, denoting each as a "Friend," and his trial counsel in the second. Just before the signature line appears the following:
Your acceptance of the PIN and use of the inmate telephones will be deemed as consent to the conditions and restrictions placed upon inmate telephone calls, including call monitoring, recording, three way calling.
13. The Middlesex Sheriff's Department has promulgated "Policy and Procedure 482 — Telephone Access and Use," which has been in effect at all material times. Its content is not made known to detainees, but it outlines the procedures followed in this case for PIN usage, designation of attorney/clergy numbers and other numbers, etc. It specifies that calls to numbers designated as attorneys or clergy will not be monitored or recorded. The policy does not address the question of to whom, or under what conditions, telephone recordings may be provided to persons outside the Sheriff's Department.
Deputy Finn testified that the recordings that he is able to retrieve do not include such calls.
14. One of the "Friends" on Fitzpatrick's list of phone numbers is David Spears. Tpr. Baker has interviewed Spears — he does not recall precisely when — and learned that Spears had had several telephone conversations with Fitzpatrick, while the latter was in custody, concerning the events of March 13, 2006. Fitzpatrick gave conflicting accounts to Spears concerning his movements on that morning. Spears reported to Baker that in one conversation, he confronted Fitzpatrick concerning the inconsistencies, asking him, "What's really the truth?"
15. Upon listening to the recordings of Fitzpatrick's telephone calls from the CCHOC and the Cambridge Jail, Tpr. Baker was able to confirm the accuracy of Spears's description of them. It appeared to Baker that Fitzpatrick was making an effort to establish, in recorded calls, that his movements on the day of the murders were inconsistent with his having traveled to Wakefield and back that morning.
16. Baker also noted a number of occasions on which Fitzpatrick acknowledged, in his telephone conversations from the CCHOC and the Middlesex jail, that the calls were "bugged." In one of the CCHOC conversations he told the person he had called, "I need to be careful what I say on these phones."
17. There is no evidence that Fitzpatrick was ever told, during the timeframe in question, that the recordings of his telephone calls from either CCHOC or the Cambridge jail would or could be shared with police or other law enforcement, or otherwise used in the investigation or prosecution of the murders for which he was being held. Conversely, the is no evidence that he was told that this would not happen, or that the purpose of monitoring and/or recording his calls was limited to matters relating to the security of the institution and other strictly penological aims.
Deputy Finn testified that about two months ago, the Sheriff's Department changed the "prompt" — the recorded message at the beginning of each call — to include a Miranda-like warning, advising the parties that anything they say may be used in a court proceeding. There was no such warning during the period of the recordings to which this motion relates.
18. I find, as a matter of fact, that Fitzpatrick knew that his calls were being recorded and might be monitored. I further find that he did not have any actual, subjective expectation that the recordings, or any information picked up in monitoring, would be withheld from law enforcement, or kept "off limits" in the investigation and prosecution of the murder case.
DISCUSSION
A. Due Process.
Fitzpatrick first maintains that the practice by which a district attorney's office, with or without a subpoena but without a judicial hearing, obtains from the sheriff recordings of calls that the defendant / detainee has made while in custody violated his right to due process under the Massachusetts and United States constitutions.
A handful, at least, of decisions from this Court have considered this practice, which seems to be increasingly widespread. The results have not been uniform. My own analysis of the issue is as follows. 1. Due Process Behind Bars.
The decisions of which I am been provided copies are, in reverse chronological order: Commonwealth v. Dubose, Suffolk Superior Court Criminal No. 07-10019, "Memorandum of Decision and Order on Defendant's Motion to Suppress Jail recordings," dated 5/8/087 (Riley, J.; suppressing recordings obtained by grand jury subpoena);Commonwealth v. Martin, Suffolk Superior Court Criminal No. 07-10193, "Findings of Fact, Conclusions of Law, and Order on Defendant's Motion to Suppress Jail recordings," docketed 12/5/07 (Gants, J.; declining to suppressing recordings obtained by grand jury subpoena);Commonwealth v. Lopes, Suffolk Superior Court Criminal No. 03-10979, "Memorandum of Decision and Order on Defendant's Motion to Preclude Hampden and Suffolk County Sheriffs from Disclosing Defendant's Recorded Telephone Calls to Commonwealth," docketed 8/2/04 (Muse, J.; permitting Hampden County to provide prosecution with recordings, but enjoining Suffolk sheriff from doing so in the absence of a written policy governing telephone usage); and Commonwealth v. Acevedo, et al., Hampden Superior Court Criminal Nos. 00-1279, 00-1283, 00-1285, 00-1294, 00-1302, "Memorandum and Order on Defendants' Motion to Suppress," docketed 5/15/01 (Ford, J.; declining to suppress recordings obtained by subpoena).
Both the Fourteenth Amendment to the U.S. Constitution and Art. 12 of the Declaration of Rights forbid — the former succinctly; the latter more expansively — the deprivation of a person's liberty or property without due process of law. The cases under both Constitutions are clear that these rights are not surrendered at the door of a jail, house of correction, or prison. Turner v. Safley, 484 U.S. 78, 84 (1987);Torres v. Commissioner of Corrections, 427 Mass. 611, 617 (1998).
These cases also recognize, however, that a jail or correctional institution may adopt regulations which restrict a detainee's or inmate's rights beyond what would be tolerated on the outside, provided the restrictions are "reasonably related to a legitimate penological interest." Massachusetts Prisoners Ass'n Political Action Committee v. Acting Governor, 435 Mass. 811, 820 (2001).
2. Monitoring and Recording of Detainee / Inmate Telephone Calls.
In Cacicio v. Secretary of Public Safety, 422 Mass. 764 (1996) the SJC considered, and rejected, a facial challenge to Department of Correction regulations governing inmate use of telephones in the Massachusetts correctional system, and permitting DOC monitoring and recording of such calls. In the SJC's description of them:
The regulations provide that all inmate calls, except those made to attorneys, are subject to monitoring and recording by department officials. All inmates who use a telephone first must receive a personal identification number (PIN). The regulations provide that inmates who accept a PIN and use the telephone have consented to the monitoring and recording of telephone conversations with other than an attorney.
The regulations limit inmates to a total of fifteen telephone numbers to which they may place calls. Five of these numbers are reserved for attorneys. All fifteen numbers must be approved by the correctional institution and then programmed to the inmate's PIN. . . .
Inmates are limited to one-way collect calls. An automated operator system informs call recipients that the call is originating from an inmate at a Massachusetts correctional institution, that calls to persons other than attorneys are recorded, and that any attempt to access a three-party line or conference call will cause the system to disconnect the call immediately.
422 Mass. at 767 (footnotes omitted).
The SJC found that the DOC regulations served several legitimate penological purposes, including the detection and deterrence of such criminal activity as planning escapes, orchestrating drug trafficking, solicitations to murder, fraudulent use of third-party calls and telephone credit cards, as well as preventing harassment of victims, witnesses, public officials, and press. The court further held that they were reasonably related to these purposes and therefore valid, notwithstanding some incidental burdening of the inmates' privacy interests, access to courts and counsel, and freedom of expression. 422 Mass. at 770-75.
The court looked to four considerations, borrowed from Turner v. Safley, 482 U.S. 78, 89 (1987), to determine whether a regulation or practice bears a reasonable relationship to a legitimate penological purpose: "(1) Is there a valid, rational connection between the regulation and the governmental interest put forward to justify it, and is the governmental interest legitimate and neutral; (2) do alternative means of exercising the challenged right remain open to inmates; (3) will accommodating the challenged right have a significant "ripple effect on guards, other inmates, and the allocation of prison resources in general; and (4) does an alternative to the regulation exist which would fully accommodate the inmates' rights at de minimis cost to valid penological interests?" 422 Mass. at 770.
The DOC regulations considered in Cacicio closely resemble both the CCHOC's practices and Middlesex Sheriff's Department policy; enough so, in fact, that one suspects that the regulations likely served as the model for the Middlesex Sheriff's policy. There is no reason to think that the concerns that led to the DOC regulations are any less pressing in a pretrial detention facility than in the state prison system. UnderCacicio, therefore, both the CCHOC's and the Sheriff's policy of monitoring and recording calls from detainees, with notice to both parties to each call, are constitutional on their face. 3. Dissemination of Recordings and the Reasonable Expectation of Privacy.
The court in Cacicio did not consider whether, or to what extent, recordings of calls may be shared with law enforcement, or used for purposes going beyond institutional security and detection of criminal activity in progress. It did, however, address the plaintiff inmates' argument that the monitoring and recording of their telephone conversations violated the protections in Article 14 of the Declaration of Rights against unreasonable searched and seizures. The court noted that the federal courts have repeatedly rejected Fourth Amendment challenges to the practice, and that under established Massachusetts jurisprudence,
a protected privacy interest exists under art. 14 "when it is shown 'that a person [has] exhibited an actual (subjective) expectation of privacy,' and when that 'expectation [is] one that society is prepared to recognize as 'reasonable.'"
Although the plaintiffs have not consented to the monitoring and recording of their telephone calls, they have been made aware of the procedure and its requirements. The monitoring and recording is not surreptitious in any sense. A place of incarceration is not accorded the protection given a private residence, and the record establishes that valid penological interests justify the regulations. In these circumstances, art. 14 is not violated, and the regulations are valid against the facial challenge asserted.
Fitzpatrick acknowledges the Cacicio holding, but points out that although he was required to compromise his privacy rights in service of legitimate penological interests, those interests relate primarily to the safety and security of the institution; they do not include investigation of the charge on which he is being held. See United States v. Cohen, 796 F.2d 20, 24 (2d Cir. 1986) (investigative search of detainee's cell solely to obtain evidence in the pending case against him violated the Fourth Amendment because it did not serve a legitimate penological interest). Fitzpatrick therefore argues that although he knew his conversations were being recorded and monitored for penological purposes, he did not expect, and should not reasonably have expected, that they would be shared with the district attorney for investigative purposes in connection with his pending case.
The first problem with Fitzpatrick's position is that his assertion that he had a subjective expectation of privacy — specifically, that he believed the Sheriff and his staff would keep confidential any information related to his pending case — is belied by the evidence. Fitzpatrick mentioned to people he called that the phones were "bugged," and "I need to be careful what I say on these phones." There is even the suggestion that he may have attempted to use the recorded conversations to put out a sort of self-help alibi defense.
This was Tpr. Baker's interpretation of what he heard. I myself have not heard the recordings beyond the initial recorded notice quoted above.
The second problem with the argument is that it adopts an unrealistically formulaic concept of privacy. As the cases use the term, a "reasonable expectation of privacy" clearly refers to privacy as against the world in general. If the parties to a conversation should reasonably anticipate being overheard by anyone, the conversation is not private. Someone using a telephone, for example, runs the risk that a third party may be listening in on an extension on the other end,Commonwealth v. Eason, 427 Mass. 595, 600 (1998), or even that the person he called will turn out to be an informer. Hoffa v. United States, 385 U.S. 293, 302-303 (1966). Someone else, speaking loudly in an apartment, risks being overheard by someone in the publicly accessible hallway outside, Commonwealth v. Dinnall, 366 Mass. 165, 166-168 (1974), just as a guest in a hotel should expect that he might be overheard through a connecting door to the next room.Commonwealth v. Panetti, 406 Mass. 230, 232-33 (1989) and cases cited. Nor should a customer shouting at a convenience store clerk be surprised at being "overheard by a customer, a passerby, a store employee, or a surveillance camera recording his words." Commonwealth v. Rivera, 445 Mass. 119, 127 (2005) (affirming denial of defendant's motion to suppress audiovisual recording from surveillance camera).
In each of these cases the defendant, by speaking in a way that he could be overheard by someone nearby, took the chance that the listener might be a policeman or even — as in Rivera — a jury. The common thread is that "a person's expectation that his spoken words will remain private should decline as his control of the listening environment diminishes." Commonwealth v. Eason, 43 Mass. App. Ct. 114, 129 (1997) (Jacobs, J., dissenting), rev'd, 427 Mass. 595 (1998).
It is thus no answer for Fitzpatrick to say that while he knew the Sheriff's staff would be listening in on and recording his conversations, he reasonably expected the Sheriff would keep confidential anything he overheard concerning the pending case. No one made him any such promise. The Sheriff is a law enforcement officer. If he came across evidence of a crime, no reasonable person would expect him to keep it from the district attorney. As the SJC has said with respect to written communications, "[a] mere expectation that the person to whom an item is entrusted will use it for limited purposes and not reveal it to others does not give rise to a reasonable expectation of privacy recognized under the Fourth "mendment to the United States Constitution." Commonwealth v. Buccella, 434 Mass. 473, 484 (2001).
It follows that Fitzpatrick has no cognizable liberty or privacy interest in the jail calls. The Sheriff's providing the recordings to the police for possible use as evidence against him did not deprive him of due process.
B. Wiretap Statute.
G.L. c. 272, § 99 governs the interception of wire and oral communications. It prescribes the procedure for obtaining a warrant to intercept such communications, and criminal penalties for unauthorized interceptions. A violation of the statute is ground for suppression of any evidence obtained through the unlawful interception, to whatever extent is necessary to further the deterrent function of the exclusionary rule. G.L. c. 272, § 99(P); Commonwealth v. Barboza, 54 Mass. App. Ct. 99, 103-05 (2001).
The event which triggers application of the statute is an "interception," which the statute defines as follows:
The term "interception" means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or 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,
with exceptions not here relevant. G.L. c. 272, § 99(B)(4).
Fitzpatrick concedes that the taping of his calls was not "secret," and therefore was not itself an "interception." He contends, however, that there was an "interception" when the two sheriffs, without his knowledge, provided copies of the recordings to the State Police.
"Interception," in its plain-English usage, means "the act or instance of receiving electronic transmissions before they reach the intended recipient." OXFORD AMERICAN COLLEGE DICTIONARY (2002) (emphasis supplied). The statute narrows this colloquial definition in one respect (the interception must be secret), and broadens it in another (purely oral as well as wire communications are covered). Nothing in the wording of the statute, however, suggests that the term "interception" extends to a later dissemination of a previously intercepted and recorded statement. Just as in football, an "interception" is a single, momentary act. A subsequent handoff is not a second interception.
Fitzpatrick's argument on this point is further undercut by the fact that elsewhere, the statute expressly addresses disclosure of intercepted communications to third persons:
Except as otherwise specifically provided in this section any person who —
a. willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or
b. willfully uses or attempts to use the contents of any wire or oral communication, knowing that the information was obtained through interception, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.
c. 272, § 99(C)(3). "[O]btained through interception," however, throughout this statute means obtained "secretly." Section 99(C)(3) — which would have been wholly unnecessary if the defined term "interception" extended to a later disclosure or sharing of previously recorded conversations — therefore has no application to the dissemination of a recording made originally with the knowledge of both parties to the conversation.
Finally, violation of section 99 is a crime. Fitzpatrick's expansive reading of the defined term "interception" ignores "the well-established proposition that criminal statutes are to be construed narrowly."Commonwealth v. Pagan, 445 Mass. 161, 167 (2005).
There was no "interception" in this case, and thus no violation of G.L. c. 272, § 99.
Cf. Commonwealth v. Ennis, 439 Mass. 64 (2003), in which the SJC affirmed the denial of a motion to suppress a recording of a prison call. There, the defendant Ennis was at liberty. An inmate at the Plymouth House or Correction called a friend, who — after the recorded advisory concerning monitoring and recording was over — conferenced in Ennis, who then made incriminating statements. While accepting the Commonwealth's concession that the recording of the call was an "interception" — because it was done without Ennis's knowledge or consent — the SJC held it was not willful, and therefore not unlawful. It does not seem to have occurred to anyone to consider the Sheriff's subsequent turnover of the recording to law enforcement as a second interception. See also Commonwealth v. Cooper, 71 Mass. App. Ct. 1102 (2007) (Rule 1:28 decision holding that counsel was not ineffective for failing to move to suppress jail calls; "Because. . . the recorded call. . . complies with Department of Correction's regulations, filing such a motion would have been futile").
ORDER
For the foregoing reasons, Defendant's Motion to Suppress Jail Calls is DENIED.
MEMORANDUM AND ORDER ON COMMONWEALTH'S MOTION IN LIMINE TO ADMIT NEW HAMPSHIRE TOLL RECORDS
For the reasons that follow, the Commonwealth's Motion in Limine to Admit New Hampshire Toll Records is ALLOWED.
FACTS
The defendant ("Fitzpatrick"), a resident of Freedom, New Hampshire, is charged with having committed a double murder in Wakefield, Massachusetts on the morning of March 13, 2006. There were no eyewitnesses. The circumstantial evidence against Fitzpatrick includes the fact that at 8:41 the morning of the murder an E-ZPass transponder belonging to Fred Martin, a neighbor of Fitzpatrick, was recorded traveling northbound through the Dover, New Hampshire tolls on the Spaulding Turnpike. Martin was in Florida at the time and had not authorized anyone to use his pickup truck, which he had left (with the E-ZPass inside) in Freedom.
Martin's house, where he kept a key to the truck, was broken into shortly before the murders. He later was able to identify the truck on surveillance videos, taken in Wakefield on the morning of the murders, showing the truck traveling toward the murder scene and then away from it ten minutes later, at times consistent with its having been at the scene at the time of the murders.
The 8:41 a.m. passage of the transponder through the Dover tolls is consistent with the truck then having proceeded from Wakefield northbound on the way back to Freedom.
Martin first discovered that his truck had been through the Dover tolls on the morning of the murder — when Martin himself was in Florida — when a charge for the toll showed up on his bill. He has since provided the Commonwealth with a written waiver of any rights of confidentiality he may have in the toll records.
Waiver in hand, the Commonwealth obtained by subpoena the records from the New Hampshire Department of Transportation, and also from the third-party vendor in New Jersey who administers the E-ZPass program. The Commonwealth has also obtained the vendor's raw electronic data, which (it reports) show that on the morning of the murders Martin's transponder passed through the Rochester, Dover and Hampton tolls southbound, and then Hampton, Dover and Rochester northbound, but that Martin was charged only for Dover northbound.
These points describe a route south on the Spaulding Turnpike (New Hampshire Route 16), then the Blue Star Turnpike (Interstate 95), then north again on the same route. This would be, it appears, the most direct route by major roads from Freedom (which is on Lake Ossipee) to Wakefield, and back again.
The Commonwealth explains that the toll system records a transponder passing through a toll plaza even if the driver elects to pay in cash. If the driver tenders cash, the attendant accepting it manually overrides the system so that the driver is not billed; the raw data, however, remain in the system. The Commonwealth theorizes that the driver of the Martin truck may have paid the tolls in cash in the belief that this would prevent his travels being made a matter of record, but that a toll attendant in Dover may have been slow hitting the override button on the northbound trip.
Subsequent DNA testing has discovered DNA belonging to the defendant on one of the keys to the truck, and on the steering wheel. Martin has told police that to his knowledge, the defendant has never been inside the truck.
DISCUSSION
The Commonwealth seeks to have the E-ZPass records relating to Martin's transponder on the day of the murders admitted at trial. The defendant's challenge to this evidence is premised on a New Hampshire statute, N.H. R.S.A. 237:16-e, which reads (in pertinent part) as follows:
[A]ll information received by the department [of Transportation] that could serve to identify vehicles, vehicle owners, vehicle occupants, or account holders in any electronic toll collection system in use in this state shall be for the exclusive use of the department for the sole purpose of administering the electronic toll collection system, and shall not be open to any other organization or person, nor be used in any court in any action or proceeding, unless the action or proceeding relates to the imposition of or indemnification for liability pursuant to this subdivision. The department may make such information available to another organization or person in the course of its administrative duties, only on the condition that the organization or person receiving such information is subject to the limitations set forth in this section. For the purposes of this section, administration or administrative duties shall not include marketing, soliciting existing account holders to participate in additional services, taking polls, or engaging in other similar activities for any purpose.
The defendant notes that the Massachusetts, too — in Mass. G.L. c. 81A, § 10 and c. 91 App. § 1-23 — has provided for the confidentiality of records of the electronic toll collection systems of the Turnpike and Port Authorities.
The pertinent portions of the two Massachusetts statutes are identical with each other but for minor differences in punctuation, and provide: "The authority shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data, relative to account holders who participate in its electronic toll collection system. Such information shall not be a public record and shall be used for enforcement purposes only with respect to toll collection regulations."
There is no reported case construing the New Hampshire statute or either of the Massachusetts statutes. By way of example only, it seems clear under all three statutes that if a participant in the E-ZPass program were charged with speeding, the government could not use E-ZPass data to show the times that s/he cleared particular tollbooths.
For present purposes, I will assume that the New Hampshire statute creates an evidentiary privilege which the Massachusetts courts should be willing — to a point, at least; see infra — to recognize. The question then becomes how the statute applies to the facts of this case.
On its face, R.S.A. 237:16-e applies only to "information received by the department [of Transportation]." The Commonwealth argues that the statute therefore does not cover its subpoena to the New Jersey vendor, which processed and stored the data.
Those data, however, were first "received" in New Hampshire, in the form of a transponder signal at a tollbooth. The record before me does not indicate whether the equipment receiving the signal was owned and/or operated by the Department, or by the vendor; nor, I think, does it matter. Whatever data the vendor receives and processes, it receives and processes on the Department's behalf. It seems clear that the Legislature, in enacting the statute, intended to provide assurance that E-ZPass data would beheld confidential, not merely to redirect subpoenas. In short: I assume that where R.S.A. 237:16-e applies, it prohibits the use of E-ZPass data, whether obtained from the Department or from the vendor.
In this case, however, the use of Martin's vehicle and transponder was without his knowledge or authorization. He has since waived all claim of privilege or confidentiality in the E-Z records from the day of the murders. Statutory privileges are generally waivable by the holder of the privilege, even where the statute does not expressly provide for waiver. See, e.g., Desclos v. Southern N.H. Med. Ctr., 153 N.H. 607, 903 A.2d 952 (2006).
Martin's waiver should be given effect. R.S.A. 237:16-e is clearly intended to protect the privacy interests of E-ZPass holders, and perhaps others using the pass with the holder's permission. The Legislature likely intended thereby to encourage drivers to sign up for the E-ZPass program. It seems highly unlikely that the statutory privilege was meant to survive the passholder's express waiver, or to benefit a thief of the passholder's vehicle. Such a construction would run counter to the familiar precepts that "[s]tatutory privileges must be construed strictly," State v. LaRoche, 122 N.H. 231, 233, 442 A.2d 602 (1982); accord, Three Juveniles v. Commonwealth, 390 Mass. 357, 359 (1983), and that statutes are to be construed so as to effectuate the probable intent of the legislature, taking "all parts of the statute together to effectuate its overall purpose and to avoid an absurd or unjust result." Formula Development Corp. v. Town of Chester, 156 N.H. 177, 179, 934 A.2d 504 (2007); accord,Commonwealth v. Rahim, 441 Mass. 273, 278 (2004).
Finally, I note that even if the New Hampshire legislature did intend, by N.H. R.S.A. 237:16-e, protect the privacy of car thieves using the toll roads of the Granite State, and even if it intended also that a waiver by the vehicle's rightful owner be given no effect, then Massachusetts' own law and legislative policy are to the contrary. Both G.L. c. 81A, § 10 and c. 91 App. — 1-23 expressly limit their protections to information " relative to account holders who participate in [the Turnpike Authority's or the Port "uthority's] electronic toll collection system." (Emphasis supplied.)
Massachusetts, in other words, would admit its own electronic toll data in the circumstances presented here. As a colleague has written:
In the absence of an applicable U.S. constitutional provision, courts generally follow the rule that "the law of the forum governs as to procedure and rules of evidence." People v. Burge, 443 S.W.2d 720 (Tex.Crim.App. 1969); [People v. Saiken, 275 N.E.2d 381, 385 (Ill. 1971)]; LaFave, SEARCH AND SEIZURE § 1.5(c) at 146. The decision to apply the forum state's law is based on the forum state's superior "interest in proceeding effectively to prosecute major crimes committed within its boundaries. . . ." People v. Rogers, 141 Cal. Rptr. 412, 417 (1977). See Saiken, 275 N.E.2d at 385; People v. Benson, 454 N.Y.S.2d 155, 157 (App.Div. 1982); People v. Douglas, 472 N.Y.S.2d 815, 822 (Sup. Ct. 1984).
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Moreover, even if "the conflict concerning the choice of law encompasse[s] the preliminary issue of whether the evidence was wrongfully obtained, a substantive matter, . . . from the viewpoint of 'significant relationship' or 'center of gravity' rules, the significant contacts" are with the state in which the crime occurred and is being prosecuted. Saiken, 275 N.E.2d at 385. See Douglas, 472 N.Y.S.2d at 822; LaFave, SEARCH AND SEIZURE § 1.5(c) at 146.Commonwealth v. Miller, 2002 WL 1489613 (Mass.Super. 2002; Lowy, J.). Accord, Commonwealth v. Gonzalez, 2004 WL 503959 (Mass.Super. 2004; Agnes, J.); RESTATEMENT OF CONFLICT OF LAWS, § 139(2).
Here, even assuming the New Hampshire statute was intended to apply to the facts of this case, the Commonwealth's interest in prosecuting a double murder committed within its borders is paramount to whatever interest, if any, New Hampshire has in protecting E-ZPass data relating to the travels of a stolen vehicle, especially where the owner and passholder has waived all rights to confidentiality in those data.
ORDER
For the foregoing reasons, the Commonwealth's Motion in Limine to Admit New Hampshire Toll Records is ALLOWED. The toll records may, assuming compliance with such requirements as foundation and a valid hearsay exception, be admitted at trial.