The Braintree Police Department has a problem it's name is Officer Blake Holt. Holt has decided once again to waste taxpayer dollars in an effort to punish and enslave a member of the public. According to The Patriot Ledger, Holt arrested Pamela Jean Petrino at South Shore Plaza for wiretapping, disorderly conduct, and illegal possession of oxycodone and other prescription drugs last Tuesday. Holt also arrested Albert Distasio, who was with Petrino, but The Patriot Ledger does not specify the reason why.
According to The Patriot Ledger:
The police report that is part of Petrino’s case file says the incident began shortly after 7 p.m. Tuesday outside the mall’s Victoria’s Secret clothing store.
Officer Blake Holt said in his report that he recognized Petrino from a Dec. 30 incident at a cellphone accessory kiosk at the mall. At that time, Petrino tried to keep shoppers from the kiosk because she “hadn’t gotten satisfactory service” there, Holt said.
Holt said in the report that on Tuesday night, Petrino appeared to recognize him, and that a verbal exchange soon began. He said that as the exchange got sharper, she accused him of inappropriately touching her daughter Dec. 30.
As Petrino and Distasio walked away, she was holding her cellphone in front, close to her chest, apparently recording the exchange, Holt said. That violates plaza policy and state law – which state that a person who is being recorded must know that it is being done and must consent to it.
Holt claimed in his report that plaza policy and state law require that a person who is being recorded must know that it is being done and must consent to it. Holt is incorrect on both points about the wiretapping statute and the plaza's policy is irrelevant.
Holt previously embarrassed his department when he tried to bring a baseless charge against a man for “impersonating a police officer” because he drove his car which he painted to look like the character Barricade from the Transformers franchise. That charge were laughed out of court by a clerk magistrate, never even making it to a judge.
The Braintree police should know better by now. The wiretapping statute is not up for debate after the Glik v. Cunniffe ruling. The Glik ruling found that the department is responsible for training their officers about the correct definition of wiretapping, which has nothing to do with consent or knowledge. The wiretapping statute narrowly applies to “secret” recording. As long as a recording device is held in “plain sight,” the act of recording is not considered secret and does not violate the law.
According to Howard Friedman, a Boston-based civil rights attorney whose law firm represented Simon Glik in his lawsuit against the Boston Police Department:
The police report shows that the police officer does not understand the state wiretap law and is unaware of constitutional law on the right to record law enforcement officials. The state statute only requires consent for "secret" recording. It was written with recording phone conversations in mind. Since the officer could see he was being recorded, it was not secret and consent was not needed under state law.
Ms. Petrino had the first amendment right to record the police officer under the Glik decision. Police departments should be training police officers to understand the law. Officers should assume everything they do is being recorded. There is no need to arrest people for recording the police. Such arrests are highly likely to be illegal.
Last year, I traveled to Braintree to interview their officers (and alien robot vehicles) after Holt tried to press the nonsense impersonation charge against the Transformers fan. When I attempted to interview Braintree officers in the police station, I was ordered to leave and was told I was breaking the law by recording the officers. I spoke with Lieutenant Karen MacAleese, who was in charge of the station on that shift. MacAleese said, "You can't videotape my voice if I don't want you to."
Both Andrew and I explained the wiretapping statute to MacAleese. It seems that neither the Glik ruling nor our interaction with MacAleese prompted the Braintree police brass to read the law or make certain that their staff had been appropriately trained.
According to The Patriot Ledger, the Braintree police pressed charges for illegal possession of oxycodone and other prescription drugs in addition to the other charges. Any evidence of this alleged crime will likely be thrown out since any search incident to an unlawful arrest is considered fruit of the poisonous tree. Even if the evidence isn't ultimately thrown out, the charge should still be met with skepticism given the Braintree police's recent history with prescription medication.
Derick Eaton was arrested last year for having medical marijuana after showing his doctor's recommendation to the Braintree police. After a judge threw out the charges, Eaton got a court order for his money and medicine to be returned. The Braintree police refused to comply with the order, and only returned the money after a public outcry. Eaten still hasn't been given back his medicine, telling us that he is going back to court in February to fight for its return.
I contacted the Braintree Police Department and Chief Russell Jenkins for comment. I also reached out to MacAleese to see if she had looked into the wiretap statute after our encounter. I asked her about the responsibility of the department's leadership to provide training and a clear understanding of wiretap to departmental employees. I also sent MacAleese the Boston Police Department's training video about the wiretapping law, which I hope the Braintree police will help prevent future false arrests. Neither Jenkins nor MacAleese have responded yet.
Update: (same day as original post): Unbeknowst to us as the time of this story's initial publication, Blake Holt was directly involved in the arrest of Derick Eaton. Court documents provided to us by Eaton confirm that Holt was a "responding officer" in that case. Given that Holt was previously involved in an incident where a person was arrested over legal prescription medication, extra scrutiny should be given to his allegation that Petrino was unlawfully in possession of prescription drugs.