463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

G. L. c. 272, § 99(B) (4).
Detective Hyde's conversations with prospective
drug purchasers on the defendants' cell phones did not
violate § 99 because Hyde did not "secretly hear" any
communications. G. L. c. 272, § 99(B) (4). A review of
the relevant portions of the transcript demonstrates
that Detective Hyde answered approximately ten to
twelve calls made by prospective drug purchasers to the
defendant's cellular'phones and spoke with the callers.
(Tr. I: 162-170; Tr. II: 30-34, 43-45). Nothing was
recorded and no third-party listened in on the
conversations. (Tr. I: 162-170; Tr. II: 30-34, 43-45) .
Hyde did not "secretly hear" any conversations,
for he was a party to those conversations. Contrast
Commonwealth v. Panetti, 406 Mass. 230, 232-234 (1989).
The fact that Detective Hyde did not identify himself
does not mean that he was "secretly" hearing anything
any more than he was creating an "interception" under
the statute. G. L. c. 272, § 99 (B) (4). See
Commonwealth v. Jarabek, 384 Mass. 293, 298 (1981)
("What the Legislature deemed offensive to individual
privacy, and thus sought to regulate, was the secret
interception of communications, and not other uses of
subterfuge in the course of criminal investigations.").
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