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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Jarabek, 384
Supreme Judicial Court of Massachusetts,
Argued
Decided
Phillip Rivard‑Rapoza,
Asst. Dist. Atty., for the commonwealth.
John J. Harrington,
[384
Before [384
[384
This case
comes before us on an interlocutory appeal by the Commonwealth from the
decision of a Superior Court judge allowing the defendants' motion to suppress
evidence of certain recorded conversations as having been obtained in violation
of the
We
summarize the findings of fact from the judge's memorandum and order. The defendants, Allen L. Jarabek
and Thomas E. Alecrim, have been charged with
violating or conspiring to violate G.L. c. 268A, ss 2(b ), 3(b ), which prohibit the soliciting or
accepting of a bribe or gratuity. At the
time of the alleged offenses, Jarabek was an elected
member of the
In late
September, 1979, Miara told his attorney that Alecrim had suggested to Miara
that problems his company was having in connection with completing the contract
satisfactorily could be resolved if Miara would
contribute $2,000 to Jarabek's campaign for
reelection to the school committee. Miara also conveyed to his attorney his belief that his
company would not be able to continue on the project unless he made the
contribution. Miara
said he wished to cooperate [384
Mass. 295] with the authorities. His attorney telephoned the office of the
Bristol county district attorney, and an assistant district attorney from that
office invited Miara to participate in a conference
with law enforcement authorities.
Present at
the conference at Miara's office were the assistant
district attorney, a Massachusetts State trooper assigned to the district
attorney's office, an assistant United States attorney, a special agent of the
Federal Bureau of Investigation (bureau), and Miara. Miara agreed to
participate in additional investigation (a) by permitting a recording device to
be placed on his business telephone; (b) by permitting his body to be fitted
with devices to record and transmit the contents of any face‑to‑face
conversations he might have with Alecrim and Jarabek; (c) by resuming discussion with Alecrim and Jarabek concerning
the proposed payments; and (d) by paying Alecrim or Jarabek the money they were said to have requested. The Bristol county district attorney's
office, through the State police trooper who attended the meeting, agreed to
reimburse Miara for any money paid by him.
The judge
found that, although the Federal agency was to furnish the recording equipment,
the ultimate decision to record any conversations rested with the district
attorney. No credible evidence was
presented that either the district attorney or the Federal employees believed
the prospective offense to be other than an attempt by Alecrim
and Jarabek to extort or cajole an unlawful bribe,
payment, or kickback from Miara. In seeking the necessary approval to record
from the United States Department of Justice, the Federal employees stated
their belief that the facts reported by Miara could
constitute a violation of 18 U.S.C. s 1951(a)
(1976). The judge found, however, that the
purpose of the entire investigation, including the recordings, was at all times
the obtaining of evidence to be used in a State, rather than a Federal,
prosecution.
Using
equipment supplied by the bureau, Miara recorded five
face‑to‑face conversations with Alecrim
and Jarabek, as well as numerous telephone
conversations with Alecrim. [384 Mass. 296] Neither Alecrim
nor Jarabek knew of, or authorized, the recording of
any of these conversations. Miara gave the recordings of each conversation to the bureau. The contents of each conversation also were
revealed to the district attorney during or shortly after the recording.
The
recordings were made without any prior judicial approval, State or Federal,
although nothing precluded the application for a warrant.
The motion
judge concluded that the warrantless interception
violated G.L. c. 272, s 99, rejecting the
Commonwealth's contentions that the interception was valid under G.L. c. 272, s 99 B 4, and s 99 D 1 c.
1. The Organized Crime Requirement of G.L. c. 272, s 99.
[1] In
Commonwealth v. Thorpe, ante, 384 Mass. ‑‑‑,[FNa] 424 N.E.2d 250 (1981), we discussed the s 99 B 4
exception to the statutory warrant requirement for conversations intercepted by law enforcement
officers with the consent of one of the conversants,
when the officer is investigating a designated offense "in connection with
organized crime as defined in the preamble." G.L. c. 272, s 99 B
4, s 99 B 7. The requirement of a
designated offense in connection with organized crime applies whether or not a
warrant is obtained prior to the interception.
G.L. c. 272, s 99 E 2. ([FN2]) The motion judge correctly determined, as we
decided in Thorpe, ante at ‑‑‑, [FNb]
424 N.E.2d 254 that the relevant definition of organized crime is "a continuing
conspiracy among highly organized and disciplined groups to engage in supplying
illegal goods and services." G.L. c. 272, s 99 A.
The judge found no evidence of a continuing conspiracy by such a group,
concluding that the statutory definition did not include a scheme by two
municipal officials to extort a kickback from a single contractor. We find no error. See Commonwealth v. Moon, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
([FNC]) 405 N.E.2d 947 (1980) (judge's findings of
fact on motion to suppress are accepted by this court "absent clear
error").
[384 Mass.
297] 2. The s 99 D 1 c Exception.
[2] The
Commonwealth argues that the recordings were made by Federal agents pursuant to
Federal law, and thus are not subject to suppression under c. 272, s 99 P, as
unlawful interceptions. In support of
this argument, the Commonwealth refers to c. 272, s 99 D 1 c, which states that
"(i)t shall not be a violation of (s 99) for
(Federal) investigative and law enforcement officers ... to violate the
provisions of (s 99) if acting pursuant to authority of the laws of the United
States and within the scope of their authority."
We agree
with the motion judge's conclusion that despite the heavy Federal presence the
investigation was State‑oriented.
At the outset, Miara's attorney turned to
State, not Federal, authorities. The
State authorities contacted Miara and supplied the
necessary funds. The State authorities
retained a veto over the making of the recordings and participated in recording
expeditions. The recorded conversations
resulted in State prosecutions.
The
recordings thus appear to be the fruit of a combined enterprise between State
and Federal officials. In such a
combined operation, if the State regulatory scheme imposes a stricter standard,
it is by that standard that the validity of official conduct is to be judged
for purposes of a motion to suppress under c. 272, s 99 P. See Commonwealth v. Vitello,
367 Mass. 224, 247, 327 N.E.2d 819 (1975).
The Federal officer exemption contained in s 99 D 1 c allows Federal
officials to conduct their own investigations in accordance with Federal law,
free of the statute's criminal and civil penalties. The exemption does not render the Federal
interceptions automatically admissible in a State prosecution. Where, as here, the interception was unlawful
for not having been obtained in the course of an investigation in connection
with organized crime, the s 99 D 1 c exemption affords no independent basis for
admissibility.
3. The Admissibility of Miara's
Live Testimony.
[3] The
judge concluded that the Commonwealth's failure to follow the statute required
suppression not merely of the recordings[384
Mass. 298] of the conversations between Miara and the defendants, but also of Miara's
testimony about the conversations. While
recognizing the severity of this ruling, the judge considered it compelled by
the language of the statute. We
disagree.
The
statutory suppression provision authorizes suppression of the
"contents" of any unlawfully intercepted
communication. G.L.
c. 272, s 99 P. "Contents" is
defined as "any information concerning the identity of the parties to such
communication or the existence, contents, substance, purport, or meaning of
that communication." G.L. c. 272, s 99 B 5.
No constitutional impediment appears to exist to the admissibility of
the live testimony of a party to a conversation that was unlawfully recorded,
([FN3]) and the defendants do not argue otherwise. The admissibility of the testimony, therefore,
must turn not on the judicially fashioned exclusionary rule but on the
legislative intent expressed in the statute.
See Commonwealth v. Vitello, supra at 269, 327
N.E.2d 819. Cf. Lopez v. United States,
373 U.S. 427, 440, 83 S.Ct. 1381, 1388, 10 L.Ed.2d
462 (1963).
Although
the bare language of the statutory definition of "contents"
reasonably may be read to include the live testimony, from memory, of a party
to a conversation, the definition is not without ambiguity. It could mean simply that not only must the
recording of an unlawfully intercepted conversation be suppressed, but also any
evidence that the conversation was recorded: for example, any transcripts or
summaries of, or references to, the recording; or the testimony of a third
person (not a party to the conversation) who either monitored the conversation
at the time it took place or listened to a recording of it later. 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. See Commonwealth v.
Jackson, 370 Mass. [384 Mass. 299] 502, 505, 349 N.E.2d 337 (1976);
Commonwealth v. Vitello, supra, 367 Mass. at 231‑232,
327 N.E.2d 819. Given this focus, we
think the Legislature intended to tailor its statutory remedy of suppression to
the evil of unauthorized interceptions, by ensuring that no evidence of the
existence of the interception comes to the attention of the factfinder. ([FN4])
The
legislative history indicates that the communications interception statute was
designed largely to reflect the Fourth Amendment requirements established by
the United States Supreme Court.
([FN5]) Even those Supreme Court
Justices most adamantly opposed to warrantless
surveillance have agreed that the exclusionary rule would not extend to live
testimony of a participant in an unlawfully recorded conversation. See Osborn v. United States, 385 U.S. 323,
352, 87 S.Ct. 429, 445, 17 L.Ed.2d 394 (1966)
(Douglas, J., dissenting); Lopez v. United States, supra 373 U.S. at 464‑465,
83 S.Ct. at 1401 (Brennan, J., dissenting). ([FN6]) Similarly, State courts that have
excluded from evidence illegally obtained accounts of conversations have
refused to exclude testimony by the participant as to statements spoken to him
directly, when that testimony was in no way the fruit of the statutorily or
constitutionally infirm action. E. g.
People v. Beavers, 393 Mich. 554, 567, 227 N.W.2d 511 (1975); State v. Smith,
72 Wis.2d 711, 714, 242 N.W.2d 184 (1976).
See State v. Glass, 583 P.2d 872, 879, 882 (Alaska 1978).
If live
testimony is not the product of an unauthorized interception but is independent
of it, its suppression would go beyond the policy of deterring law enforcement
officers from committing unauthorized interceptions. We think that if the Legislature had meant to
take the unusual step of suppressing [384
Mass. 300] the untainted and
independent live testimony of a party to a
conversation, ([FN7]) it would have spoken more clearly. ([FN8])
4. Conclusion.
We affirm
the judge's suppression of the illegally obtained tape recordings and all
evidence derived from them. We reverse
the order in so far as it prohibits Miara from
testifying about the conversations.
So
ordered.
(FN1.) Thomas E. Alecrim.
FNa. Mass.Adv.Sh. (1981).
(FN2.)
Before a warrant may issue, the applicant must show, inter alia,
"probable cause to believe that a designated offense has been, is being,
or is about to be committed" (emphasis added). G.L. c. 272, s 99 E
2. "Designated offense" is
defined in s 99 B 7 to include certain offenses "in connection with
organized crime as defined in the preamble."
FNb. Mass.Adv.Sh. (1981) at ‑‑‑‑.
(FNC.) Mass.Adv.Sh. (1980) 1337, 1341‑1342.
(FN3.)
See United States v. White, 401 U.S. 745, 751‑753, 91 S.Ct.
1122, 1125‑26, 28 L.Ed.2d 453 (1971) (plurality opinion); Hoffa v. United
States, 385 U.S. 293, 302‑303, 87 S.Ct. 408,
413‑14, 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427, 437‑438,
83 S.Ct. 1381, 1387, 10 L.Ed.2d 462 (1963).
(FN4.)
To implement this legislative intent in jury‑waived trials, a judge who
suppresses evidence derived from unauthorized interceptions should disqualify
himself from sitting on the trial on the merits, or at least make it known on
the record that he is disregarding all knowledge of the interceptions.
(FN5.)
See Report of the Special Commission on Electronic Eavesdropping, 1968 Sen.Doc.
No. 1132, at 5‑6, 7‑8, 10‑11.
(FN6.)
See also the opinions cited in note 3 supra.
(FN7.)
Whether the witness's testimony is indeed independent of, and not derived from,
the unlawful interception is a proper issue for determination at the motion to
suppress. The statute authorizes
suppression not only of the contents of an unlawfully intercepted communication,
but also of "evidence derived therefrom." G.L. c. 272, s 99
P. If a witness's testimony is based not
on his memory of a conversation in which he participated, but on his listening
to the unlawfully obtained recording of that conversation, his testimony should
be suppressed as "evidence derived" from the unlawful interception.
(FN8.)
We note that the definition of contents contained in the State statute
corresponds almost exactly with that in the Federal wiretap statute, the only
difference being the Federal statute's omission of the word
"contents" in the definition.
See 18 U.S.C. s 2510(8) (1976). We have been unable to find any Federal case
in which independent live testimony was ordered suppressed along with the
illegally taped or monitored communication.