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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. Thorpe, 384
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Edward J. McCormick, III, Westwood, for the
defendant.
Frederick W. Riley, Asst. Atty. Gen., for the
Commonwealth.
Before [384
HENNESSEY, Chief Justice.
This case
involves the construction of the
We
summarize the background as set forth in the judge's memorandum of
decision. The Commonwealth expects to
prove at trial that Thorpe, a former police officer retired on disability,
offered to sell a copy of a police sergeant's promotional examination to David
McCue, a Wilmington police officer planning to take the October 21, 1978,
examination.
On
McCue immediately contacted the
On October
9, 1978, the day before the scheduled meeting with Thorpe, a State trooper
outfitted McCue with a "Kel Kit," a short‑range radio transmission
device secreted on the body and designed to transmit to a receiver, here
operated by a State trooper who would tape record any conversation. Thorpe did not show up at the October 10,
1978, meeting. Arrangements were then
made for McCue to record his telephone conversations with Thorpe. Using the recording equipment supplied by the
State police, McCue recorded approximately eight telephone conversations with
Thorpe, either from McCue's home in Wilmington or from an electronic equipment
room at the Attorney General's office, from October 12 to November 6,
1978. He also recorded two face‑to‑face
meetings with Thorpe on October 20, 1978, using the Kel Kit. The thrust of the various recorded telephone
conversations was when and how McCue would receive the examination, and whether
a price lower than $4,000 would be acceptable.
During the first recorded conversation, Thorpe said he would have to get
back to "her," presumably the woman heading up the organization he
had referred to earlier, before he could make any definite arrangements with
McCue. Thorpe also indicated that
misappropriation of examinations was an ongoing operation and that the
"program" was normally offered to just one policeman in each city or
town, and only if that person could be trusted.
The next morning, Thorpe [384
Mass. 274] telephoned McCue, urged
complete secrecy, and told him he was not to get a perfect score on the
examination, but everything would be arranged for him in advance. On October 19, 1978, McCue had another
telephone conversation with Thorpe, during which Thorpe said he expected to
hear something later on that night and reassured McCue that there was no
problem. During a later conversation
Thorpe arranged to meet McCue in front of a restaurant in North Andover. McCue used the Kel Kit to record the brief
conversation with Thorpe, the gist of which was that Thorpe wanted McCue to
take a ride to a safer place. McCue,
fearing for his safety, refused. After
the two parted, a State trooper observed Thorpe making a fifteen‑to‑twenty‑minute
call from a pay telephone.
When McCue
spoke to Thorpe on the telephone later that afternoon, Thorpe said there would
be eighty questions on the examination, three involving diagrams. In discussing the scheme of operations, and
Thorpe's "sponsorship" of McCue, Thorpe referred to the
"committee ... originated by this broad." A few hours later, during a telephone
conversation that was poorly recorded, McCue sought another meeting with
Thorpe, who said he did not have the examination and had to make a couple of
telephone calls. Still later, the two
arranged to meet at a doughnut shop in Lawrence. McCue, equipped with the Kel Kit and $4,000,
met Thorpe as planned and asked for the examination answers that he thought
Thorpe was going to bring. Thorpe did
not have them. McCue offered the $4,000,
but Thorpe refused unless they went to a safe place, and broke off negotiations
when McCue declined to leave with him.
Shortly afterwards, Thorpe was seen making a twenty‑to‑thirty‑minute
call from a pay telephone.
The
Sergeant's examination was given on October 21, 1978. As predicted by Thorpe, it contained eighty questions, three
involving diagrams.
Pursuant
to G.L. c. 272, s 99 P, ([FN2]) Thorpe moved to suppress the tape
recordings. In denying Thorpe's motion
to [384 Mass. 275] suppress, the judge dismissed
Thorpe's contentions that the recording of his conversations violated the
Fourth Amendment to the United States Constitution, and art. 14 of the
Massachusetts Declaration of Rights. He
also concluded that the electronic surveillance did not violate the Federal
wiretap statute, 18 U.S.C. s 2518 (1976), or the State interception statute,
G.L. c. 272, s 99. In arguing that the
motion to suppress should have been granted, Thorpe advances on appeal the same
arguments as he did below, with the exception of the Fourth Amendment
challenge, which he has abandoned.
1. The Organized Crime Requirement of G.L. c. 272, s
99.
Thorpe's
primary contention on appeal is that the warrantless interception violated G.L.
c. 272, s 99, because the requisite organized crime nexus was not shown. For purposes of the statute, interception is
defined as the use of an intercepting device to secretly hear or record, or aid
another to secretly hear or record, the contents of any wire or oral
communication. G.L. c. 272, s 99 B
4. The statute is framed largely in
negative terms: clandestine overhearing or recording of communications is
prohibited except as otherwise specifically provided. G.L. c. 272, s 99 C. The exceptions to the
statutory prohibition include "any person duly authorized to make
specified interceptions by a warrant issued pursuant to this
section." G.L. c. 272, s 99 D 1 d.
([FN3]) Additionally, the following do not constitute interceptions for purposes
of the statute: (1) when all parties to
[384 Mass. 276] the
communication consent in advance to the use of the intercepting device; (2)
when the interceptor is an investigative or law enforcement officer who is
investigating a "designated offense," and who either (a) is a party
to the communication or (b) has a party's advance authorization to the
interception of the communication. G.L.
c. 272, s 99 B 4. "Designated
offense," in turn, is defined to encompass a wide spectrum of crimes,
including extortion and bribery, when the offenses are "in connection with
organized crime as defined in the preamble." G.L. c. 272, s 99 B 7.
The
Commonwealth justifies its warrantless recording of the conversations between
Thorpe and McCue on the basis of the s 99 B 4 exception for law enforcement
officers, and the judge denied the motion to suppress on that ground. Thorpe argues that the evidence demonstrates
at most an isolated, solitary criminal act on his part, and that the judge
therefore erred in finding organized criminal activity. ([FN4])
The initial question we face, then, is how
organized crime is to be defined and proved for purposes of bringing
warrantless surveillance by law enforcement officers within the s 99 B 4
exception. We must decide what part of
the preamble, set forth in its entirety in the margin, ([FN5]) the Legislature[384 Mass. 277] intended as the definition
of organized crime. We agree with the
judge that, although the Legislature declared that the definition of organized
crime is to be found in the preamble, the entire description of organized crime
could not have been intended to be incorporated in the definition of designated
offenses. The statute would be
unworkable if the Commonwealth were required to prove, in every case, that the
activities constituted "a grave danger to the public welfare and
safety," that "brutal and violent tactics" were employed and
that "legitimate business activities" were being infiltrated. Rather, of all the language used in the
preamble, it appears that the Legislature intended to define organized crime as
"a continuing conspiracy among highly organized and disciplined groups to
engage in supplying illegal goods and services." ([FN6])
[384 Mass. 278] [1] The judge here concluded that the evidence showed a
continuing conspiracy by a well‑organized and disciplined group to supply
illegally the civil service examinations.
Thorpe disputed this, arguing that nothing in the record indicates he
had any connection with anyone else in selling the examinations.
This contention is plainly wrong, as the record is replete with evidence
of an "organization," a "committee," and the need for
Thorpe to get approval from others before furnishing McCue with the examination
questions and answers. Most such evidence,
however, stems from the tape‑recorded conversations themselves. In seeking to come within the s 99 B 4
exception, the Commonwealth may not rely on evidence of organized criminal
activity gathered from the warrantless surveillance itself. There must be some showing of an organized
crime connection before the surveillance, not afterward.
In
concluding that those involved in the sale of the examinations were a tightly
knit group with considerable security and discipline, the judge failed to
distinguish between information available to the law enforcement officers
before the [384 Mass. 279] decision to intercept was made, and
information derived from the intercepted conversations. The only pre‑surveillance evidence of
organized crime referred to by the judge consists of McCue's testimony about
his initial conversation with Thorpe, during which Thorpe said the examination
was available to him "through an organization headed by a
woman." We must determine whether
this constitutes sufficient evidence of organized crime for purposes of the s
99 B 4 exception for law enforcement officers.
[2][3][4]
We observe first that when the Commonwealth seeks to rely on a narrow exception
to the broad statutory prohibition against warrantless surveillance, it is appropriate
that the burden of establishing the exception's applicability should rest on
the Commonwealth. Cf. Commonwealth v.
Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974) (Commonwealth bears
burden of showing reasonableness of warrantless search challenged as invalid
under Fourth Amendment). We reject the
defendant's contention that the Commonwealth should be required to demonstrate
probable cause of the existence of organized crime. Probable cause is the applicable standard
when a warrant is sought under G.L. c. 272, s 99 E. We do not believe the
Legislature intended to require as stringent a showing in situations in which
warrantless surveillance is authorized under s 99 B 4. Nor do we agree, however, with the
Commonwealth's assertion that it need only show a good faith belief on the part
of the law enforcement officials that organized crime was implicated. As evidence by the statutory preamble and the
legislative history, the Legislature proceeded on the premise that electronic
surveillance is anathema except within certain narrowly prescribed
boundaries. See G.L. c. 272, s 99 A (the
"unrestricted use of modern electronic surveillance devices pose(s) grave
dangers to the privacy of all citizens of the commonwealth"). When the Legislature decided, after proposals
to the contrary, to allow some warrantless surveillance by law enforcement
officers, it also decided, consistent with its concern for the privacy rights
of individuals, to limit the reach of the statute to interception of offenses
in connection with [384 Mass. 280] organized crime. ([FN7]) We do not think a subjective standard of good faith
belief would give sufficient effect to this mandatory limitation. ([FN8]) At the minimum, the Commonwealth [384 Mass. 281] should be required to show that the decision to intercept was
made on the basis of a reasonable suspicion that interception would disclose or
lead to evidence of a designated offense in connection with organized
crime. The standard of reasonable
suspicion is an objective one; it is met by a showing of articulable facts from
which a reasonable person could conclude that interception would lead to
evidence of a designated offense. Cf.
Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968);
Commonwealth v. Silva, 366 Mass. 402, 405‑408, 318 N.E.2d 895 (1974).
[5] Such a
showing has been made here. The
circumstances indicate that, on the basis of McCue's initial conversation with
Thorpe on October 6, 1978, there existed a reasonable suspicion that
interception of McCue's subsequent conversations with Thorpe would disclose
evidence of a continuing conspiracy to unlawfully supply aspirants for
promotion to sergeant with the requisite civil service examination. In reaching this conclusion, we rely not only
on Thorpe's own statement that the examination was available to him through an
organization headed by a woman (which statement itself, contrary to Thorpe's
protestations, indicates he was not acting alone in offering to supply the
examination), but also on one inescapable inference from that statement. Assuming as we do that upcoming sergeants'
promotional examinations are strictly confidential and not readily available,
we may infer that a certain amount of discipline and organization would be
required to acquire and supply the examinations illicitly.
We thus
conclude that the warrantless recording of the conversations between Thorpe and
McCue falls within the G.L. c. 272, s 99 B 4 exception for law enforcement
officers. ([FN9])
[384 Mass.
282] 2. Claimed Violation of Art.
14.
Thorpe
concedes on this appeal that the recording of his conversations with McCue's
consent does not violate the Fourth Amendment to the United States
Constitution. See United States v.
Caceres, 440 U.S. 741, 749‑751, 99 S.Ct. 1465, 1470‑1471, 59 L.Ed.2d
733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453
(1971) (plurality opinion); Lopez v. United States, 373 U.S. 427, 83 S.Ct.
1381, 10 L.Ed.2d 462 (1963). While
abandoning his Federal constitutional argument, Thorpe argues that the
warrantless interception violated his right to be free from unreasonable
searches and seizures as guaranteed by art. 14 of the Massachusetts Declaration
of Rights, because he had an expectation of privacy in not having his conversation
with McCue recorded. For the reasons
that follow, we find no constitutional violation.
The
Federal constitutionality of warrantless electronic surveillance with the
consent of one party to a conversation has been upheld on the ground that when one
speaks one voluntarily assumes not only the risk that one's listener may repeat
what one says to others, but also the risk that the listener may be recording
or monitoring the conversation for broadcast to others. See United States v. Caceres, supra; United
States v. White, supra, 401 U.S., at 751, 91 S.Ct. at 1125; Lopez v. United
States, supra, 373 U.S., at 437‑440, 83 S.Ct. at 1387‑1388;
Commonwealth v. Douglas, 354 Mass. 212, 221‑222, 236 N.E.2d 865 (1968),
cert. denied, 394 U.S. 960, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969) (involving
challenge under Federal Constitution only).
([FN10]) [384 Mass. 283] Under this "assumption of the
risk" analysis, no search or seizure covered by the Fourth Amendment is
deemed to have occurred, and thus no warrant is required.
Envisioning
serious intrusions on the right to privacy from the approval of electronic
surveillance without prior judicial authorization, opponents of the
"assumption of the risk" approach have rejected as unreasonable the
premise that one necessarily accepts, or should be forced to accept, the risk
of one's conversation being secretly monitored or recorded. See, e. g., United States v. White, supra,
401 U.S., at 786, 789, 91 S.Ct. at 1143, 1144 (Harlan, J., dissenting); Lopez
v. United States, supra, 373 U.S. at 465‑466, 83 S.Ct. at 1401‑1402
(Brennan, J., dissenting); Amsterdam, Perspectives on the Fourth Amendment, 58
Minn.L.Rev. 349, 406‑407 (1974); Comment, Electronic Eavesdropping and
the Right to Privacy, 52 B.U.L.Rev. 831, 840‑841 (1972). While bound by the United States Supreme
Court's pronouncements on Fourth Amendment law, at least two State Supreme
Courts have interpreted their State constitutional provisions against
unreasonable searches and seizures to bar warrantless monitoring and recording
without the consent of the speaker.
People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, cert. denied, 423 U.S.
878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975).
State v. Glass, 583 P.2d 872 (Alaska 1978). ([FN11]) Relying largely on Fourth Amendment
"expectation of privacy" principles derived from Katz v. United
States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1969), these courts have
held constitutionally protected one's reasonable expectation that one's private
conversation will not be electronically broadcasted or recorded absent consent
or a warrant. Beavers, supra, 393 Mich.
at 564‑566, 227 N.W.2d 511; Glass, supra at 875. Cf. State ex rel. Arnold[384 Mass. 284] v. County Court of Rock County, 51 Wis.2d
434, 439‑440, 187 N.W.2d 354 (1971); Hammond v. State, 354
So.2d 280, 292‑293 (Ala.Cr.App.1977), cert. denied, 439 U.S. 823, 99
S.Ct. 91, 58 L.Ed.2d 115 (1978); Clariday v. State, 552 S.W.2d 759, 769‑770
(Tenn.Cr.App.1976); State v. Albo, 584 P.2d 906, 908‑912 (Utah 1978)
(Maughan, J., dissenting) (agreeing with the analysis of Beavers and of the
dissenting Supreme Court Justices in United States v. White, supra and Lopez v.
United States, supra).
[6] A
primary justification for requiring the government to obtain judicial
authorization before proceeding with any electronic surveillance is the
possible chilling effect on First Amendment values if warrantless monitoring
and recording were permitted. See, e.
g., People v. Beavers, supra, 393 Mich. at 566, 227 N.W.2d 511; State v. Glass,
supra at 877‑878 & n.18; Lopez v. United States, supra, 373 U.S. at
452‑453, 465‑466, 83 S.Ct. at 1394‑1395, 1401‑1402
(Brennan, J., dissenting); United States v. White, supra, 401 U.S., at 787‑789,
91 S.Ct. at 1143‑1144 (Harlan, J., dissenting); Greenawalt, The Consent
Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring with the
Consent of a Participant in a Conversation, 68 Colum.L.Rev. 189, 216‑221,
229‑231 (1968); Stone, The Scope of the Fourth Amendment: Privacy and the
Police Use of Spies, Secret Agents, and Informers, 1976 Am. B. Foundation
Res.J. 1193, 1255‑1257 (1976). The
Michigan Supreme Court in Beavers, supra, stressed that "(t)he warrant
requirement is not a burdensome formality designed to protect those who would
engage in illegal activity, but, rather, a procedure which guarantees a measure
of privacy and personal security to all citizens.... Our laws must ensure that
the ordinary, law‑abiding citizen may continue to engage in private
discourse, free to speak with the uninhibited spontaneity that is
characteristic of our democratic society."
The Beavers court was persuaded by Justice Harlan's dissent in White,
which warned that "words would be measured a good deal more carefully and
communication inhibited if one suspected his conversations were being
transmitted and transcribed" for the eyes and ears of other than one's
intended audience. United States v.
White, supra at 787, 91 S.Ct. at 1143 (Harlan, [384 Mass. 285] J.,
dissenting). See Katz v. United States,
389 U.S. 347, 351‑352, 88 S.Ct. 507, 511‑512, 19 L.Ed.2d 576
(1969); Commonwealth v. Hall, 366 Mass. 790, 794‑795, 323 N.E.2d 319
(1975); Commonwealth v. Dinnall, 366 Mass. 165, 166‑167, 314 N.E.2d 903
(1974); Stone, supra at 1207‑1208 & n.49.
It has
been emphasized that the relevant question is not whether criminals must bear
the risk of warrantless surveillance, but whether it should be imposed on all
members of society. United States v.
White, supra, 401 U.S., at 786, 789‑790, 91 S.Ct. at 1144‑1145
(Harlan, J., dissenting). People v.
Beavers, supra. Amsterdam, supra at 384‑385,
402‑403. Comment, 52 B.U.L.Rev. at
843‑844. In answering this
question, we must assess the nature of the particular form of warrantless
surveillance and its likely impact on the individuals' sense of security that
is the concern of art. 14's protection against unreasonable searches and
seizures. ([FN12]) In the case at bar we
find no violation of the State Constitution.
Here, a police officer, known to the speaker as a police officer and
sought out by the speaker, recorded his conversation with the speaker. We do not think that free speech and privacy
values are unduly threatened by the risk that when one speaks to a known police
officer he may be recording the conversation.
This is not the type of warrantless surveillance condemned by the courts
and commentators discussed above, whose impact on privacy is "such as to
undermine that confidence and sense of security in dealing with one another
that is characteristic of individual relationships between citizens in a free
society." United States v. White,
supra, 401 U.S. at 787, 91 S.Ct. at 1143 (Harlan, J., dissenting).
[7] We
realize that requiring a warrant for every electronic surveillance would have
the virtues of clarity and predictability.
Given the limited scope of the particular search at issue here, however,
a police officer, known to be such, recording his conversations with an
individual something less than the usual warrant requirement suffices to guard [384 Mass. 286] against arbitrary intrusions.
Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)
(police officer entitled to conduct reasonable search for weapons when he has
reasonable grounds to believe individual is armed and dangerous, even when no
probable cause for arrest exists). In
this context, sufficient protection is afforded by our statutory interpretation
of c. 272, s 99 B 4, as requiring any interception by police officer to be
based on a reasonable suspicion that interception will disclose or lead to
evidence of a designated offense in connection with organized crime. Cf. Amsterdam, supra at 416‑418,
422. As discussed in part 1 of this
opinion, this standard has been met here.
Because on
the facts of this case we find no violation of the State Constitution, we need
not decide whether other forms of warrantless surveillance would violate art.
14. Nevertheless, it is apparent from
the above reasoning of other jurisdictions that the better future course, and
the most secure course constitutionally, is for law enforcement officials to
procure warrants in cases where probable cause for surveillance can be shown,
and even in cases where it does not appear that the statutes require a warrant.
3. Conclusion.
The denial
of the motion to suppress is affirmed, and the case is remanded to the Superior
Court for further proceedings.
So
ordered.
LIACOS,
Justice (dissenting).
The court
in its opinion disregards the clearly expressed intent of the Legislature to
limit electronic surveillance to certain designated offenses involving the
activities of "organized crime."
The court achieves this result by declaring the legislative definition
of organized crime unworkable. This conclusion
is without support in the record, and contrary to the clear legislative history
of G.L. c. 272, s 99. I am comforted by
the opinion in Commonwealth v. Jarabek, 384 Mass. ‑‑‑,[FNa]
424 N.E.2d 491 (1981), decided today, because[384 Mass. 287] it indicates, at least, some judicial
restraint in rewriting G.L. c. 272, s 99.
Nevertheless, the effect of the majority opinion in this case will be, I
fear, to permit broad electronic surveillance in areas never intended by our
Legislature in the enactment of G.L. c. 272, s 99. The consequence of the majority opinion will
be to legitimize electronic intrusion on a broad range of individual activity
solely on the basis of "reasonable suspicion" that organized activity
by two or more persons may be involved.
It is
significant to note that the language found in G.L. c. 272, s 99 B 7, which
precludes electronic surveillance except in regard to designated offenses
involving organized crime, is not constitutionally mandated. The inclusion of such limiting language
involved a deliberate legislative judgment that this was the appropriate method
of balancing the interests of law enforcement against the interest of
protecting individual privacy rights.
The
determination precisely at which point the respective needs for privacy of
communication and for effective law enforcement must mutually yield with regard
to authorization of electronic surveillance is a function peculiarly within the
province of the Legislature. By refusing
to give effect to statutory language defining the term "organized
crime," the court today invades that province and usurps that function.
By 1967
the Congress of the United States recognized that scientific and technological
developments had established the widespread use and abuse of electronic
surveillance techniques as a serious threat to privacy of communication in all
walks of
life. ([FN1]) Sen.Rep. at
2154. Concluding that the status of
wiretap and electronic surveillance law was intolerable and "serves
neither the interests of privacy nor of law enforcement," Congress enacted
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
ss 2510‑2520 (1970), 82 Stat. 211 (1968).
Sen.Rep. at 2154, [384 Mass.
288] quoting from Report of
President's Commission on Law Enforcement and Administration of Justice. Title III serves the dual purpose of protecting
the privacy of wire and oral communications, and delineating on a uniform
basis, in conformity with the minimum constitutional standards as set forth in
Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the
circumstances and conditions under which the interception of wire and oral
communications may be authorized.
Sen.Rep. at 2153, 2156, 2163.
"To assure the privacy of oral and wire communications, title III
prohibits all wiretapping and electronic surveillance by persons other than
duly authorized law enforcement officers (investigating) ... specified types of
serious crimes, and only after authorization of a court order obtained after a
showing ... of probable cause."
Sen.Rep. at 2153.
The
Federal act is not self‑executing in so far as State law enforcement
authorities are concerned. In order to
obtain a wiretap warrant from a State court, there must be a State wiretap
statute in effect. Commonwealth v.
Vitello, 367 Mass. 224, 247, 327 N.E.2d 819 (1975). Recognizing that the law enforcement needs of
the different States vary, Congress left the States some latitude to
individualize their wiretap statutes.
While a State may not adopt standards for obtaining wiretap warrants
that are less restrictive than those set forth in Title III, a State is free to
adopt more stringent standards. Id. at
247, 327 N.E.2d 819.
Massachusetts
has enacted a wiretap statute which in several significant respects is more
restrictive than Title III. ([FN2]) See
Commonwealth v. Vitello, supra. In
enacting G.L. c. 272, s 99, "the Legislature proceeded on the premise that
electronic surveillance is anathema except within certain narrowly prescribed
boundaries." See the court's
opinion, supra at ‑‑‑, ([FNB]) 424 N.E.2d 255. Thus, s 99 establishes a particularly
"broad [384 Mass. 289] statutory prohibition against
warrantless (electronic) surveillance."
([FN3]) Id. at ‑‑‑, ([FNC]) 424 N.E.2d 255. "When the Legislature decided, after
proposals to the contrary, to allow some warrantless surveillance by law
enforcement officers, it also decided, consistent with its concern for the
privacy rights of individuals, to limit the reach of the statute to
interception of offenses in connection with organized crime." Id. at ‑‑‑, ([FND]) 424
N.E.2d 255.
Despite
professing obeisance to these principles, the court today so broadly defines
organized crime, and so loosely applies that definition, as to substantially
strip the statute of its intended restrictive effect. Ignoring much of the statutory language, the court defines organized crime as
"a continuing conspiracy among highly organized and disciplined groups to
engage in supplying illegal goods and services." Id. at ‑‑‑, ([FNE]) 424
N.E.2d 254. Nevertheless, the court
finds the requisite connection to organized crime in this case by inferring
that a "certain amount" of discipline and organization would be
required to acquire illicitly, the examinations in issue. Id. at ‑‑‑‑, ([FNF])
424 N.E.2d 256. Assuming such an
inference is warranted, this quantum of organization falls far short of that
required by the statute or even under the court formulation. One could as easily infer that a
"certain amount" of discipline and organization would be required to
achieve the objective of any conspiracy.
The highly
descriptive language in the preamble of the statute, as well as the common
understanding of the term "organized crime," suggest a much higher
order of criminal activity and organization than is revealed on the facts of
this case. The term "organized
crime" refers to those notorious and readily recognized highly
"structured criminal syndicate(s) composed of professional criminals who
primarily rely on unlawful activity as a way of life," Masiello v. Norton, [384 Mass. 290] 364 F.Supp. 1133, 1135 (D.Conn.1973), and not to criminal
conspiracies, generally.
Like s 99,
the "major purpose of (the law enforcement component of) title III is to
combat organized crime." Sen.Rep.
at 2157. The legislative history to
Title III sets forth a lengthy description of organized crime which is in many
respects strikingly similar to, but provides greater detail than, that set
forth in the preamble to G.L. c. 272, s 99.
The statutory definition of organized crime set forth in G.L. c. 272, s
99 A provides: "The general court finds that organized crime exists within
the commonwealth and that the increasing activities of organized crime
constitute a grave danger to the public welfare and safety. Organized crime, as it exists in the
commonwealth today, consists of a continuing conspiracy among highly organized
and disciplined groups to engage in supplying illegal goods and services. In supplying these goods and services
organized crime commits unlawful acts and employs brutal and violent
tactics. Organized crime is infiltrating
legitimate business activities and depriving honest businessmen of the right to
make a living" (emphasis supplied).
The
Legislature enacted this provision in full awareness of recent constitutional
decisions and the legislative history of the Federal act (Title III). See Report of the Special Commission on
Electronic Eavesdropping, 1968 Sen.Doc.No. 1132; Message of Governor John A.
Volpe to the House and Senate, 1968 House Doc.No. 3797. Thus the enactment of G.L. c. 272, s 99, must
be viewed in juxtaposition with the background of the enactment of the Federal
statute. When the preamble is read in juxtapose
with this legislative history, which is excerpted at length in the margin,
([FN4]) it [384 Mass. 291] becomes unmistakably clear that the
Legislature did not intend its definition of organized crime to be so broad as
the court suggests.
The court
posits that effectuation of much of the descriptive language appearing in the
preamble would render the statute unworkable.
However, every word of a legislative enactment is to be given force and
effect, if possible. Contrary to the
court's contention, it would not be necessary under the statute to prove in
every case that "a grave danger to the public welfare and safety" and
that "brutal and violent tactics" are involved in the commission of
each designated offense. Rather, it is
only necessary to show some [384
Mass. 292] "connection"
between the designated offense and those criminal groups designated in the
preamble as organized crime. G.L. c.
272, s 99 B 7. The quantum of proof
required to establish the organized crime connection is not so high as to
render the statute unworkable. While the
"wall of secrecy" surrounding organized crime renders it peculiarly
difficult to gather evidence sufficient to obtain convictions of organized
crime figures, G.L. c. 272, s 99 A, Sen.Rep. at 2159‑2160, it is also
common knowledge that organized crime connections are well‑known to law
enforcement agencies. Thus, a connection
with organized crime may generally be susceptible of proof by "articulable
facts" amounting to "reasonable suspicion." See the court's opinion, supra at ‑‑‑,
([FNG]) 424 N.E.2d 256.
In
conclusion, I see no reason not to give full meaning to all the language of
G.L. c. 272, s 99. Such an approach
would fully effectuate the dual purposes of the statute of enabling law
enforcement officers, upon a reasonable showing of a connection with organized
crime, to more easily gather evidence through the use of electronic
surveillance, while protecting "the privacy of all citizens of the
commonwealth" from the "grave dangers" which would be attendant
to the use of electronic surveillance as a general criminal investigative technique. G.L. c. 272, s 99 A. I dissent.
(FN1.) Under St.1950, c. 592, s 12, the town
manager of Wilmington has supervisory authority over the administration of the
police department, including the power to appoint and remove police officers.
(FN2.)
General Laws c. 272, s 99 P, allows defendants in criminal cases to move to
suppress the contents of any intercepted wire or oral communication or evidence
derived therefrom if the communication was obtained by means of an unlawful
interception.
(FN3.)
The procedure for obtaining a warrant to lawfully intercept communications is
spelled out in G.L. c. 272, s 99 E. Before a warrant may issue, a judge must be
convinced "that there is probable cause to believe that a designated
offense has been, is being, or is about to be committed" and that
interception would lead to evidence of such offense. G.L. c. 272, s 99 E 2. Further, there must be a showing that
"normal investigative procedures have been tried and have failed or
reasonably appear unlikely to succeed if tried." G.L. c. 272, s 99 E 3. For a discussion of the statutory warrant
procedure, see Commonwealth v. Vitello, 367 Mass. 224, 231‑233, 327
N.E.2d 819 (1975).
(FN4.)
We need not dwell on Thorpe's additional argument that McCue was not a law
enforcement or investigative officer authorized to make warrantless recordings
under G.L. c. 272, s 99 B 4. The
statutory definition of "investigative or law enforcement officer"
covers "any officer of the United States, a state or political subdivision
of a state, who is empowered by law to conduct investigations of, or to make
arrests for, the designated offenses, and any attorney authorized by law to
participate in the prosecution of such offenses." G.L. c. 272, s 99 B 8. Officer McCue, as a member of the Wilmington
police department, was an "officer of ... a political subdivision of (the)
state" and had the power to conduct investigations of bribery. Furthermore, McCue's actions in connection
with the Thorpe investigation were undertaken at the behest of and in
conjunction with members of the State police and the Attorney General's office,
who themselves may be classified as investigative or law enforcement officers
under s 99 B 8.
(FN5.)
"The general court finds that organized crime exists within the commonwealth
and that the increasing activities of organized crime constitute a grave danger
to the public welfare and safety.
Organized crime, as it exists in the commonwealth today, consists of a
continuing conspiracy among highly organized and disciplined groups to engage
in supplying illegal goods and services.
In supplying these goods and services organized crime commits unlawful
acts and employs brutal and violent tactics.
Organized crime is infiltrating legitimate business activities and
depriving honest businessmen of the right to make a living.
"The
general court further finds that because organized crime carries on its
activities through layers of insulation and behind a wall of secrecy,
government has been unsuccessful in curtailing and eliminating it. Normal investigative procedures are not
effective in the investigation of illegal acts committed by organized
crime. Therefore, law enforcement
officials must be permitted to use modern methods of electronic surveillance,
under strict judicial supervision, when investigating these organized criminal
activities.
"The
general court further finds that the uncontrolled development and unrestricted
use of modern electronic surveillance devices pose grave dangers to the privacy
of all citizens of the commonwealth.
Therefore, the secret use of such devices by private individuals must be
prohibited. The use of such devices by
law enforcement officials must be conducted under strict judicial supervision
and should be limited to the investigation of organized crime." G.L. c. 272, s 99 A, Preamble.
(FN6.) Statutory definitions of organized
crime prevailing in other States similarly focus on the elements of
organization, discipline, and the provision of illegal goods and services. See N.H.Rev.Stat.Ann. s 570‑A:1, XI
(1974); N.M.Stat.Ann. s 29‑9‑2 (1978); Tenn.Code Ann. s 38‑502
(1975).
The
dissenting opinion relies on the legislative history of the Federal wiretap
statute, 18 U.S.C. s 2518 (1976), particularly Sen.Rep.No. 1097, 90th Cong., 2d
Sess., U.S.Code Cong. & Admin.News (1968), p. 2112. Post at 259‑261 and n.4
(Mass.Adv.Sh. (1981) at ‑‑‑‑
‑ ‑‑‑‑ and n.4).
We note that, despite words in the United States Senate Report to the
effect that the Federal statute is aimed at organized crime, nothing in the statute
itself so limits its application. We do
not think, therefore, that a helpful parallel can be drawn between the intent
of Congress in enacting the Federal wiretap statute and that of our own
Legislature in defining "organized crime." The question we face here is what specific
words in the statutory preamble constitute the legislative definition of
organized crime. No indication exists,
either in the words of the preamble or in the published legislative history of
G.L. c. 272, s 99 (see sources at note 7 infra), that the Legislature intended
to limit the statute's application to persons with the status of full‑time
professional criminals or, in the precise words of the dissent, "to those
notorious and readily recognized highly 'structured criminal syndicate(s)
composed of professional criminals who primarily rely on unlawful activity as a
way of life,' " post at 261 (Mass.Adv.Sh.
(1981) at ‑‑‑‑). Such a limiting definition
would insulate from electronic surveillance all criminal activity, no matter how
organized, disciplined, and repeated, carried on by those who maintain
legitimate jobs, perhaps in the public service, while at the same time
committing the designated offenses set forth in G.L. c. 272, s 99 B 7. It can be argued, in terms of the value of
privacy, that the dissent's narrow definition is good policy, but we are here
construing legislative intent, not establishing our concept of the best policy.
(FN7.) In 1964 a special State commission was
created to investigate electronic eavesdropping in Massachusetts. The bill proposed by the commission required
judicial authorization for any interception unless all parties to the
communication consented. Report of the
Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132, at 7, 18‑19. Law enforcement officers were required,
without exception, to obtain warrants before conducting any surveillance. This marked a significant departure from the
"one‑party consent exception" contained in the former State
statute, St. 1959, c. 449, s 1, which exempted from the requirement of prior
judicial authorization the interception of communications with the consent of
either the sender or the receiver. See
Commonwealth v. Douglas, 354 Mass. 212, 221‑222, 236 N.E.2d 865 (1968),
cert. denied, 394 U.S. 960, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969). Petitions in the House and Senate, however,
advocated retaining the one‑party consent exception in all cases. 1968
House Doc. No. 3797. 1968 House
Doc. No. 3665.1968 Senate Doc. No. 355.
After considering these petitions, the House Committee on the Judiciary
decided to include the one‑party consent exception for law enforcement
officers only, authorizing them to conduct warrantless electronic surveillance
when they were party to the communication or had been given authority by one
who was. 1968 House Doc. No. 4875. This exception, as was most of the House
bill, was enacted into law by St. 1968, c. 738, s 1. See G.L. c. 272, s 99 B 4.
The
greater power thus accorded police and other law enforcement officers is
partially offset by the requirement, not present in the commission's proposal,
that the statute be limited to investigation of "offenses in connection
with organized crime as defined in the preamble." See G.L. c. 272, ss 99 A, 99 B 7.
(FN8.)
The cases cited by the Commonwealth in support of a good faith standard do not
involve wiretap statutes or any surreptitious activity on the part of the
government. See In re Sussman v. New
York State Organized Crime Task Force, 39 N.Y.2d 227, 383 N.Y.S.2d 276, 347
N.E.2d 638 (1976); People v. Rallo, 39 N.Y.2d 217, 383 N.Y.S.2d 271, 347 N.E.2d
633 (1976). Sussman, which is less
inapposite than Rallo, concerned the interpretation of a New York statute
giving the Attorney General's office authority to conduct hearings and subpoena
witnesses in the course of investigating organized crime activities. The New York Court of Appeals held that, if
challenged, the Deputy Attorney General must make a preliminary showing in court
that the purpose of his investigation is indeed inquiry into organized criminal
activities, by establishing that he is acting in good faith and that the
testimony he seeks bears a reasonable relationship to organized crime. In re Sussman, supra at 232‑233, 383
N.Y.S.2d 276, 347 N.E.2d 638. Thus,
under the New York statute, the targets of the government's investigation may
contest in advance the validity of subpoenas issued against them. No such opportunity for advance judicial
review is afforded the targets of the Commonwealth's clandestine recording
under the Massachusetts interception statute.
(FN9.) Contrary to Thorpe's assertion, there
is no requirement that "normal investigative procedures" be shown to
have failed before the s 99 B 4 exception comes into play. Such a showing must be made only when a
warrant is sought. Chapter 272, s 99 E 3
(requiring the applicant to demonstrate that "normal investigative
procedures have been tried and have failed or reasonably appear unlikely to
succeed if tried"). As the quoted
language demonstrates, Thorpe is wrong in claiming that the State statute does
not mention normal investigative proceedings except in the preamble. His preemption argument, which is based on
the claimed failure of the State to comply in this respect with 18 U.S.C. s
2518(1)(c) (1976), therefore fails.
(FN10.) United States v. Caceres, 440 U.S.
741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979), and Lopez v. United States, 373 U.S.
427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), each involved one or more recordings
made by an Internal Revenue Service agent of a meeting with the defendant,
during which the defendant tried to bribe the agent in order to secure
favorable tax treatment. In United
States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), government
agents monitored the defendant's meetings with their informant, by way of a
radio transmitter concealed on the informant.
In Commonwealth v. Douglas, 354 Mass. 212, 236 N.E.2d 865 (1968),
involving the predecessor to c. 272, s 99, no government agent or informant
participated in a conversation with the defendant, whose telephoned threats to
a private individual were recorded by police officers with the individual's
consent.
(FN11.) In addition, the Montana Supreme Court
relied on that State's constitutional right of privacy to invalidate
warrantless electronic monitoring and recording of conversations with the
consent of one conversant, thus finding no need to consider separately the
State constitutional provision against unreasonable searches and seizures. State v. Brackman, 582 P.2d 1216 (Mont.1978).
(FN12.) See United States v. White, 401 U.S.
745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting);
Stone, The Scope of the Fourth Amendment: Privacy and the Use of Spies, Secret
Agents, and Informers, 1976 Am. B. Foundation Res. J. 1195, 1219.
FNa. Mass.Adv.Sh. (1981) 1849.
(FN1.) See Senate Report on the Omnibus Crime
Control and Safe Streets Act of 1968 (Judiciary Committee), Sen.Rep.No. 1097,
90th Cong., 2d Sess., U.S.Code Cong. & Adm.News (1968) 2112‑2309
(hereinafter cited as Sen.Rep. with appropriate pagination to the U.S.Code
Cong. & Adm.News).
(FN2.) Many States have eschewed the use of
electronic surveillance as a law enforcement technique. For listing of States which had not enacted
on electronic surveillance statute or entirely prohibited such surveillance as
of 1976, see Note, Electronic Surveillance State Authorization of Wiretaps
under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 56
B.U.L.Rev. 600, 601 n.14 (1976).
(FNB.)
Mass.Adv.Sh. (1981) at ‑‑‑‑.
(FN3.) Contrast, for example, 18 U.S.C. s
2511(2)(c) (permitting warrantless interceptions by law enforcement officers if
such officer is party to the communication or on the basis of consent of one of
the parties to the communication) with G.L. c. 272, ss 99 B 4, 99 B 7
(permitting warrantless surveillance under similar circumstances only in the
course of investigation of a designated offense in connection with organized
crime).
(FNC.) Mass.Adv.Sh. (1981) at ‑‑‑‑.
(FND.) Mass.Adv.Sh. (1981) at ‑‑‑‑.
(FNE.) Mass.Adv.Sh. (1981) at ‑‑‑‑.
(FNF.) Mass.Adv.Sh. (1981) at ‑‑‑‑.
(FN4.) In setting forth excerpts from the
legislative history of Title III, I emphasize, by italicizing, those portions
of the description of organized crime which most closely parallel the language
of the preamble: "Title III has as its dual purpose (1) protecting the
privacy of wire and oral communications, and (2) delineating on a uniform basis
the circumstances and conditions under which the interception of wire and oral
communications may be authorized.... The major purpose of title III is to
combat organized crime.... Ignored entirely in the development of our system of
justice ... was the possibility of the growth of a phenomenon such as modern
organized crime with its attendant corruption or our political and law
enforcement processes. We have always
had forms of organized crime and corruption.
But there has grown up in our society today highly organized, structured
and formalized groups of criminal cartels, whose existence transcends the crime
known yesterday, for which our criminal laws and procedures were primarily
designed.... These hard‑core groups have become more than just loose
associations of criminals. They have
developed into corporations of corruption, indeed, quasi‑governments
within our society, presenting a unique challenge to the administration of
justice.... Today ... (organized crime) is active in, and largely controls,
professional gambling ... (and) has an almost monopolistic control over the
illegal importation, distribution and sale of narcotics .... Loan sharking,
finally, is everywhere dominated by organized crime.... Organized crime has not
limited itself to criminal endeavors. It
has large spheres of legitimate business and union activity undermining our
basic economic mores and institutions.... Organized crime flourishes best only
in a climate of corruption.... Victims, complainants, or witnesses are
unwilling to testify because of apathy, fear, or self‑interest, and the
top figures in the rackets are protected by layers of insulation and direct
participation in criminal acts.
Information received from paid informants is often unreliable, and a
stern code of discipline inhibits the development of informants against
organized criminals. In short,
intercepting the communications of organized criminals is the only effective
method of learning about their activities.... (U)nder 'present procedures too
few witnesses have been produced to prove the link between criminal group
members and the illicit activities that they sponser (sic). Victims do not normally testify for they are
already in bodily fear or they are compliant .... (T)he securing of an
evidentiary substitute for live testimony, which is not subject to being
eliminated or tampered with by fear or favor, is necessary." (Emphasis supplied.)
(FNG.) Mass.Adv.Sh. (1981) at ‑‑‑‑.