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Federal class-action lawsuit filed in Worcester over illegal state trooper recordings

Written by on 02/24/2024

WORCESTER, MA – Four of the more than 200 criminal defendants state police recorded illegally using a cellphone application during undercover investigations filed a federal class-action lawsuit Friday against Motorola and the state police colonel.

Interim State Police Col. John Mawn Jr.

The 19-page lawsuit, filed in U.S. District Court in Worcester, alleges Motorola and interim State Police Col. John Mawn Jr. should be held liable for violating the Massachusetts Wiretap Act and constitutional civil rights.

“Plaintiffs bring this action against MSP and Motorola Solutions … to ensure that these acts are never again repeated in the Commonwealth of Massachusetts,” lawyers for the four men — Jason Courtemanche, Juan Rios and Dennis Williams of Fitchburg and Brett Foresman of Gardner — wrote.

The lawsuit alleges Motorola refused a request from state police to modify a popular police cellphone recording application in light of Massachusetts’ stringent wiretapping law, and that state police “intentionally circumvented the strict warrant requirements under Massachusetts law to escape legislative and judicial scrutiny.”

The suit also alleges that state police had a practice of illegally searching people’s phones in order to further their drug investigations.

Spokespeople for state police and Motorola did not immediately respond to a request for comment Saturday. One of several lawyers representing the plaintiffs declined to comment.

As the Telegram & Gazette recently reported, a judge in Fitchburg has been asking pointed questions of multiple troopers under oath regarding surreptitious recordings made during a 2022 drug investigation in that city.

While pursuing those cases, Worcester County prosecutors discovered an undercover trooper failed to disclose the existence of multiple recordings to them, despite legal obligations to pass along any recorded statements to a defendant.

State police, after correspondence from the prosecutors, conducted an audit last June that showed that more than 60 troopers failed to turn over recordings in more than 250 cases dating to 2013, with most happening after 2017.

The cases spanned courts throughout the state, as well as federal court. In about 180 of the cases, a person had been found guilty or was otherwise held responsible, opening the door to relitigation of those cases and civil lawsuits like the one filed Friday.

State police wrote in internal training documents that “many” of the undisclosed recordings were “made outside of legal parameters governing surreptitious audio recordings in Massachusetts.”

That’s because Massachusetts, unlike most other states, requires both parties to consent to an audio recording and requires police to get warrants to record audio in most circumstances.

State troopers have testified in Fitchburg District Court that Motorola’s Callyo app, which they began using in place of traditional wires in about 2017, was set by default to record when an officer created their account.

According to an audio recording of the hearings, retired Detective Lt. David Crouse testified in Fitchburg District Court in January that he’d asked Motorola whether it could set the app to not record by default, with the state’s wiretap law in mind.

“It wasn’t like we needed a legal opinion whether this could be used,” he said. He testified he didn’t expect Callyo to change the default record setting following his conversations with them, and the company did not do so.

The lawsuit cites the failure to tweak the setting as supporting allegations that Motorola and state police willfully violated the defendants’ rights.

It lodges civil counts against Motorola of conspiring to violate civil rights and violating the Massachusetts Wiretap Act. State police are accused of violating the Wiretap Act, violating due process rights under the Fifth and Fourteenth Amendments, and violating unreasonable search and seizure rights under the Fourth Amendment.

“MSP knew of this recording issue and were deliberately indifferent to the secret recordings that were made by these intercepting devices,” lawyers allege in the suit, which asks for unspecified damages and class-action certification.

Multiple state troopers, including a supervisor, testified in Fitchburg District Court they were unaware of the extent of the recordings, or lacked contemporaneous knowledge that some of the apps were recording.

First Justice Christopher P. LoConto has at times questioned the testimony during a hearing that remains open on multiple motions for new trials in affected Fitchburg cases.

“You want me to believe that was accidental?” LoConto asked of a state police lawyer at one point when noting that none of the troopers’ reports at issue mentioned the existence of the recordings.

The judge, transcripts show, also asked multiple questions regarding testimony that troopers may have not always disclosed “tip” money they gave targets to buy drugs in their police reports.

In their lawsuit, the four men alleged tips “were not disclosed to Plaintiffs on police reports,” and went further.

The suit alleges police had a custom of, when the person they gave the tip was out of their sight, “illegally and unreasonably seizing and searching the persons’ cellphones looking for names and/or telephone numbers of contacts.”

The lawsuit, which does not state the source of the allegation, goes on to allege that police then contacted people whose numbers they found on the phones and pretended they got the number from the phone’s owner.

“MSP had a custom, pattern, practice, and/or procedure of using these illegally and unreasonably obtained contacts to threaten, intimidate, or coerce them to purchase alleged controlled substances,” the lawsuit alleges.

The hearing in Fitchburg District Court regarding the recordings is set to resume next month.

Source: Telegram & Gazette Federal lawsuit filed in Worcester over illegal state trooper recordings