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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. Vitello, 367
Supreme Judicial Court of Massachusetts,
Argued
Decided
Francis J. DiMento,
John T. Gaffney, Asst. Dist. Atty., and Thomas E.
Dwyer, Sp. Asst. Dist. Atty., for the Commonwealth.
Before [367
HENNESSEY, Justice.
The defendants were convicted after a jury trial on
indictments charging them with violations of various gaming laws. ([FN2])
They assign and argue as error: (1) the denial of their motions to
suppress the contents of intercepted wire and oral communications, (2) the
denial of their motions to suppress certain physical evidence which was seized
on warrants based in part on information derived from the wiretaps, (3) the
admission in evidence of expert testimony which purported to identify the
defendants' recorded voices through spectrographic comparisons, (4) the holding
of a pre-trial voir dire hearing on the scientific reliability of voice
identification by means of the voiceprint technique, where the expert witness
stated that he would not be available to testify before the jury at the trial,
and where the judge had no intention of keeping the witness available for the
trial, (5) the denial of various motions of the defendants concerning the
pre-trial publicity related to the cases, and (6) the rulings of the judge
relating to the indictment of Francis A. Vitello charging him with organizing a
gambling syndicate, including the trial judge's refusal to give the jury
instructions as requested by the defendant with respect to this indictment.
[367
1. The defendants
in these cases raise a substantial number of issues with respect to the
validity of the wiretap warrants pursuant to which certain inculpatory
communications were intercepted and offered in evidence against them. They challenge both the facial validity of
the
Although we have concluded that the wiretap warrants
issued in these cases comply with constitutional and statutory requirements
both Federal and State, we deem it advisable to set forth in brief outline,
guidelines which we hope will forestall difficulties similar to those
encountered in these cases and will be of assistance in future cases both to
this State's prosecuting attorneys authorized to apply for wiretap warrants and
to the Superior Court judges required to review such applications and issue
warrants. See s 99 B 9 wherein 'judge(s)
of competent jurisdiction' is defined to mean 'any justice of the superior
court.'
[1][2] At the outset, we point out that the provisions of
the relevant wiretap statutes are designed to ensure that unjustified and
overly broad intrusions on rights of privacy are avoided. Hence these provisions are not mere technical
niceties and distinctions of form. In
short, the statutes, while permitting wiretapping for law enforcement, seek to
ensure that Fourth Amendment rights are not infringed. While perfection in drafting affidavits,
applications, and other documents is not realistically demandable, careful
attention to the statutory directives is required and these emendations are
offered to further that effort.
[3][4][5][6] First, with respect to special designation
of assistant attorneys general and assistant district attorneys (s 99 F 1), the
Attorney General or the district attorney, as the [367 Mass. 232]
case may be, should give full and fair review of the grounds asserted for
seeking a wiretap warrant. Special
designation to the assistant attorneys general and assistant district attorneys
must be on a case by case basis only.
Authority to apply for each wiretap warrant must be specifically granted
in writing by the Attorney General or the district attorney as the case may
be. Indeed, it can be said that the better procedure is that the Attorney
General or district attorney should cosign the application for the warrant with
the designated assistant, although the Attorney General or district attorney
need not himself appear before the judge.
See Appendix part F (1), particularly fn. 17.
[7][8][9][10][11] Second, an application for a wiretap
warrant in addition to being drafted in accordance with the provisions of G.L.
c. 272 s 99 F, should, if practicable, give an estimate as to the time required
or the installation of intercepting devices in order that the reviewing judge
may determine whether the thirty-day period, s 99 I 2, would be impermissibly
extended. See Appendix part F(2). Where installation of devices is required,
such installation is to be effected with all reasonable speed. See Appendix part F(2) and (5). In all cases execution of a warrant shall be
forthwith and the warrant should so direct.
In addition both the application and any supporting affidavits should
affirmatively demonstrate knowledge of the requirement that interception be
limited to matter material to the designated crimes under investigation and an
intent so to limit the interception in order that the intrusion be sufficiently
limited. (This does not mean that
inculpatory information relating to other nonrelated crimes shall be
ignored.) Specific instructions relative
to limiting the interception should be given to the executing officers. See Appendix part F(6).
[12] Third, pursuant to s 99 I 2, the date of issuance,
the date of effect, and the termination date shall be stated clearly on the
fact of the warrant. Where physical [367
[13][14] Fourth, in light of our construction of G.L. c.
272, s 99, each warrant shall identify the person authorizing the application
and the agency authorized to intercept.
See Appendix part F(4). As
directed above, that agency shall execute the warrant forthwith. See Appendix part F(5).
[15][16][17] Fifth, in accordance with the provisions of
s 99 M, the return is to be made to the issuing judge as soon as possible
following the termination of the interception and at the latest within seven
days thereafter. After examining the
return, including the condition of the original recordings, which shall be a
part of the return, the issuing judge shall seal the recordings and transmit
them worthwith to the Chief Justice of the Superior Court. s 99 N. In order to comply with the Federal
requirements set forth in 18 U.S.C. s 2518(8)(a), (b) (1970), the recordings,
as well as the application, warrant, renewal where applicable, and the return
shall be kept for ten years. See
Appendix part F(7).
[18] 2. The next
assignment of error argued by the defendants relates to the denial of motions
to suppress certain physical evidence which was seized pursuant to warrants
issued in part on the basis of information derived from the wiretaps. Since we have concluded that the wiretaps
were legal and that there was no error in the judge's refusal to suppress the
contents of the intercepted telephone communications, it follows that there was
no error in his further denial of the motions to suppress the physical
evidence. As the defendants concede, if
the wiretaps and use of the pen registers were proper, probable cause existed
for the issuance of the search warrants and we so hold.
3. Certain
opinions of an expert witness, Lt. Ernest W. Nash of the
[19] The defendants do not argue that Lt. Nash was not
sufficiently qualified as an expert in spectrogram comparison analysis. Rather, they contend that this type of voice
identification is a new scientific theory and that its admission should have
been precluded under the rule of Commonwealth v. Fatalo, 346 Mass. 266, 269,
191 N.E.2d 479 (1963), which provides that judicial acceptance of a scientific
theory or instrument can occur only where it follows a general acceptance by
the community of scientists involved.
See Frye v.
4. On March 22 and
23, 1973, about two weeks prior to trial, the judge held a voir dire hearing to
make preliminary rulings as to reliability and admissibility of opinion
testimony as to voice identification by the voiceprint method. Dr. Oscar Tosi testified in detail at the
hearing, which culminated in rulings by the judge that ultimately resulted in
admission at the trial of the evidence related to voiceprints.
Dr. Tosi made clear during the hearing that he would be
in
[20] The defendants argue, inter alia, that their Sixth
Amendment rights under the United States Constitution to present witnesses in
their own defense were violated in this failure by the judge to ensure the
presence of Dr. Tosi at the jury trial.
They cite
There was no error.
Unlike the witnesses in the cases relied on by the defendants, Dr. Tosi
had no personal knowledge related to the issues before the jury, as
distinguished from his expert knowledge related only to the admissibility
issues which were solely for the judge.
As far as appears, Dr. Tosi had nothing to do with the identification
comparisons related to these cases. In
this sense, he testified at the pre-trial hearing only in a theoretical way as
to the reliability of this type of evidence.
[21] It is true that the weight to be given to the
voiceprint evidence was relevant at the trial, and Dr. Tosi might well have
testified on that score. Nevertheless,
in similar circumstances, we have ruled that a party may not by summons compel
the involuntary testimony of an expert witness solely for the expertise he may
bring to the trial, and in the absence of any personal knowledge on his part
related to the issues before the judge and the jury. Ramacorti v.
[22] 5. There was
no error in the judge's rulings related to newspaper publicity. The defendants have shown that they were
arrested almost one year before the trial and that newspaper publicity related
to them and their alleged offenses was frequent and vigorous during this
period, up to and including the two days of the empanelling of the jury. Further, the publicity related to alleged
'payoffs to police officers,' which were not the subject of the indictments.
The defendants assert that they were entitled to
continuance of the trial date and to questioning of each prospective juror
according to specific wording submitted by the defendants. The judge took none of these precise steps,
but we believe that he took measures which protected the rights of the
defendants to 'a trial by an impartial jury free from outside influences.' Sheppard v. Maxwell, 384
The judge addressed the venire of prospective jurors, as
well as a supplementary group of prospective jurors who were later assembled,
in detailed language directed to the publicity issue. He thus described to all prospective jorors,
before empanelling, the exact nature of the charges against the defendants,
using such plain terms as 'gambling' and 'bookmaking.' The full names of all the defendants were
emphasized. He placed on the veniremen,
and each of them, the duty to make it known to the judge if they were
influenced by bias or if they had read or heard of the defendants and the cases
at issue. He described in appropriate
language, and at length, the duty of impartiality imposed on jurors. [367 Mass. 237] Later, when
prospective jurors were seated in the jury box, he put to them as a group a
series of eleven questions which in various and appropriate words probed the
issue of impartiality. One question (no.
11) inquired: 'Have you read, heard on the radio, or seen on TV any publicity
concerning this case?' and he concluded
the questioning with the direction: 'If any of these questions affect any of
the jurors, they are now to stand.' No
juror responded to this direction.
Finally, by order of the judge, the jury were sequestered
for the duration of the trial.
The judge was not required in these circumstances to
question each prospective juror individually.
To the extent that Patriarca v. United States, 402 F.2d 314 (1st Cir.
1968), cert. den., 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969), suggests
that each prospective juror should be examined individually with a view to
eliciting the kind and degree of his possible exposure to pre-trial publicity
that case is not relevant here. In the
instant cases the trial judge determined, and rightfully so, that the jurors
stood indifferent. Given the nature of
the pre-trial publicity, relating in major part to police 'payoff' lists, the
judge could have properly decided after addressing the jurors on the publicity
issue that no further individual inquiry was necessary.
[23] Moreover, the trial judge was not required to put
various special questions proposed to him by defense counsel. In particular he was not required, as urged
by one attorney, to bring to the attention of the venire alleged police 'payoffs'
which were not part of the Commonwealth's case.
Nor was he, in view of the jury response (or lack of response) to his
directions and questions, required to continue the trial or transfer it to
another place. The defense counsel,
at the trial and later in their brief, expressed incredulity that the jurors
had not read or heard about the defendants and their indictments. This perhaps reflects no more than that
counsel [367
The assertions of the defense as to pretrial publicity
required serious measures by the judge in the interest of ensuring a fair trial
before an impartial jury. The judge's
responsive measures were appropriate and in accord with the relevant requirements
of Commonwealth v. Sublilosky, 352 Mass. 153, 158, 224 N.E.2d 197 (1967). See A.B.A. Standards Relating to Fair Trial
and Free Press, s 3.4 (1968).
[24] In light of our conclusion that the jury stood
indifferent and unaffected by the pre-trial publicity, it is not necessary for
us to consider the defendants' further claims related to the judge's refusal to
order a certain newspaper reporter to disclose his sources for certain
newspaper accounts of an alleged police 'payoffs' list. Cf. Matter of Pappas, 358
6. The defendant
Francis A. Vitello contends that the judge erred in refusing to instruct the
jury, as requested by the defendant, that the Commonwealth must show, as to
proof of the indictment brought under G.L. c. 271, s 16A, that the defendant
organized a gambling syndicate specifically including four of the five persons
named in the indictment. There was no
error.
General Laws c. 271, s 16A, inserted by St.1970, c. 650,
provides in part as follows: 'Whoever knowingly orgamzes, supervises, manages
or finances at least four persons so that such persons may provide facilities
or services or assist in the provision of facilities or services for the
conduct of illegal lotteries, or for the illegal registration of bets . . .
shall be punished.'
The related indictment charged that Francis A. Vitello: '(D)id
knowingly organize, supervise, manage and finance a number of people including
Margaret M. Hogan, Camilla Villino, Henry Tanzi, Ralph F. Vitello and Joseph
Vitello, so that such persons might provide facilities and services for the
conduct of illegal lotteries and for the illegal registration of bets.'
The defendant Francis A. Vitello seasonably requested
instructions which would have required (1) a finding by the jury that he
'organized, supervised, managed or financed at least four of the five persons
named in the indictment,' and (2) that the jury consider in their enumeration
only the persons named in the indictment.
[25] The judge
declined to give the requested instructions and instead instructed: '(I)f you
find that he was financing, organizing, supervising or managing a number of
people, they don't necessarily have to be the people that are mentioned in this
indictment, so long as there are four people.'
This was correct. There was
evidence that some sixty-six persons were working in Francis Vitello's
organization. From the plain language of
the statute, s 16A, the naming of five persons was no more [367 Mass.
240] than surplusage, in light of the language in the indictment
relating this defendant to 'a number of people' including the five named
persons. See G.L. c. 277, ss 34--35;
Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 309--310, 275 N.E.2d 33
(1971), ([FNB]) cert. den. sub nom., Farrell v.
7. In addition,
the defendant Francis A. Vitello asserts error in the denial of his motion for
a directed verdict of not guilty as to the indictment which charged, under the
provisions of G.L. c. 271, s 16A, that he 'did knowingly organize, supervise,
manage and finance a number of people' in an illegal gambling enterprise. ([FN5])
He argues that the evidence was insufficient to warrant a guilty
verdict.
[367
The evidence which adequately supported the submission of
indictment no. 66772 to the jury was, at least in part, as follows: sixty-six
'writers' were forwarding their 'betting action' to the defendants Margaret Hogan,
Camilla Villino, and Ralph Vitello; the defendant Tanzi was the 'pickup' man
for the organization; while under surveillance, Tanzi appeared to make his
pickups and leave the proceeds at the home of Francis A. Vitello; in the room
in the home of Francis A. Vitello where considerable gaming apparatus was found
at the time of his arrest, there was also found the sum of $98,560 in cash;
financial records of the
'operation as a whole' were also seized by police in the home of Francis A.
Vitello; from many of the recorded telephone conversations, it could be
inferred that 'Frank' was the organizer, supervisor, manager, and financier of
the organization, and from the total evidence it could also be inferred that
'Frank' was Francis A. Vitello.
Judgments affirmed.
[367
As stated in part 1 of the foregoing opinion, the
following detailed analysis of the constitutional and statutory issues
concerning the wiretaps is incorporated by reference in the opinion and is to
be deemed an expression of our holdings in these cases.
A. The Fourth Amendment.
Since the advent of modern electronic technology, the
means to eavesdrop by interception of wire and oral communications has
existed. Whether and to what extent
utilization of such procedures by law enforcement officials violates Fourth
Amendment sanctions agains unreasonable searches and seizures has been
considered by the United States Supreme Court.
Since the statutory schemes, both Federal and State, that are the
subject of these cases were enacted in part to meet the constitutional
requirements as construed in the United States Supreme Court cases, a short
review of the Fourth Amendment as applied in the area of electronic wiretapping
is appropriate.
In Olmstead v.
In the Berger case, a New York statute, which authorized
eavesdropping for periods up to sixty days on the basis of a sworn statement
and allowed an unlimited number of extensions 'in the public interest,' was
held unconstitutional as authorizing 'general searches by electronic
defices.' 388
B. The Constitutionality of Title III.
Title III is in part the congressional response to the
Supreme Court decisions and seeks to remedy those constitutional defects which
resulted in the invalidation of the wiretap statute in the Berger case. The act prohibits all interception of oral
and wire communications except as provided
for specifically.
([FN2]) As stated in the
legislative [367 Mass. 244] history, ([FN3]) Title III has as its
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 oral and wire communications may be permitted. Sen.Rep. at 2153. Accordingly, Title III seeks to provide the
judicial supervision and procedures found lacking in Berger v.
[27] The defendants do not argue that Congress has failed
in that regard and they do not challenge per se the constitutionality of Title
III on its face. However, since the
entire wiretap system as presently constituted, Federal and State, depends ab
initio on the constitutionality of Title III, ([FN4]) we note that the act,
taken as a whole, does ensure appropriate particularity in the application and
order and further provides the necessary and proper judicial supervision and
other protective controls to preserve Fourth Amendment interests. In so stating we concur with the many Federal
Courts which have examined Title III.
([FN5]) Since it would be
superfluous for us [367 Mass. 245] to restate the reasoning of
those cases in upholding the constitutionality of Title III, and since the
defendants make no attack in this regard, we engage in no extensive analysis on
this question but simply state our agreement with the courts which have held
that Title III, examined in whole, meets the requirements of the Fourth
Amendment.
C. State Regulation of Wiretapping.
Conceding the constitutionality of Title III, the
defendants attack the Massachusetts statute, pursuant to which the wiretap
warrants at issue here were obtained.
([FN6]) They argue, inter alia,
that the State statute fails to meet the enabling requirements for State legislation. More precisely stated, the issue involves
Federal preemption and the degree to which a State statute must track in haec
verba the provisions of the Federal wiretap statute. In order to analyze fully the defendants'
claims, a brief description of the interrelationships between the Federal and
State legislation is necessary.
[28] It is clear that Congress in enacting Title III
intended to occupy the field of wiretapping and electronic surveillance, except
as that statute specifically permits concurrent State regulation. In addition to express statements appearing
in the congressional findings in Title III, ([FN7]) that intent may be gleaned
from the broad scope of [367 Mass. 246] particular provisions of
Title III. Although the legislative
history of Title III evinces a congressional concern for national legislation,
Congress, having pree mpted the field, did in turn allow for concurrent State
regulation subject, at the minimum, to the requirements of the Federal
regulation. See s 2516(2). ([FN8])
See generally, People v. Conklin, 12 Cal.3d 259, 114 Cal.Rptr. 241, 522
P.2d 1049 (1974), app. dism. sub nom., Conklin v.
[29][30][31] Pursuant to s 2516(2) a State may promulgate
legislation authorizing certain designated officials to apply to State court
judges of competent jurisdiction for wiretap orders to be utilized in
enforcement of statutes designated under the State criminal law. However, the Federal act is not
self-executing in so far as the State authorities are concerned; in order to
obtain a wiretap warrant from a State court, there must be a State [367
Mass. 247] wiretap statute in effect.
([FN9]) State v. Siegel, 266
[367 Mass. 248]
D. Limited Requirements for State
Statute.
[32] We point out, however, that the preemption analysis
as it relates to the validity of the State statute itself should be
distinguished from the issue of the validity of a warrant issued pursuant to a
State statute found in certain particulars to be in conflict with Title III and
therefore partially preempted. The two
questions are not entirely dependent.
([FN12]) It does not follow that
if the State statute is found repugnant to Title III in certain particulars
that all warrants issued thereunder are as matter of course invalid.
This construction of Title III is based on the language
of s 2516(2). That section provides that
a State's principal prosecuting attorneys 'if such . . . (attorneys are)
authorized by a statute of that State no make application to a State court
judge of competent jurisdiction (may apply) for an order authorizing or
approving the interception of wire or oral communications' (emphasis
supplied). Thus the crucial issue is
whether there is a State statute in effect which authorizes such
application. It would be possible for
the State statute to consist of one short section simply setting forth the
specially designated State prosecuting attorneys authorized to apply, and the
State court of competent jurisdiction wherein such application is to be
made. Such an enactment would
sufficiently manifest the State Legislature's intent that wiretapping be
permissible if undertaken under judicial order.
Any warrant issued under such a limited State authorization would be
measured against the specific provisions of Title III.
Thus, if certain provisions of the Massachusetts wiretap
statute fail to meet the requirements of the Federal act, [367 Mass. 249]
the crucial question would be whether the Massachusetts statute is severable,
that is whether the Legislature intended that the authorization sections remain
in effect despite the finding of invalidity of certain other sections.
[33] We are of opinion that the Massachusetts statute is
severable and that, assuming the potential inoperability through Federal
preemption of certain provisions of the State statute, the warrants issued in
these cases would be valid as long as the authorization sections of the State
statute are valid and the warrants themselves meet the Federal standards. However, we need not rest our decision on
this basis alone because we find, on reasoning discussed below, that the
Massachusetts statute, in the several
particulars challenged by the defendant, is not repugnant to the provisions of
the Federal act and is accordingly not pree mpted. Before any detailed examination of specific
provisions, we first state the general principles guiding our conclusions with
respect to preemption.
E. Question of Preemption.
[34] Given the express grant of enabling power to the
States in s 2516(2), it is indisputable that Congress did not intend to
supersede State law entirely. Cf. e.g.,
Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956). Moreover, it is evident that Congress did not
conclude, nor is the conclusion required by the nature of the activity, that
regulation of wiretapping orders to be issued from State courts admits only of
one uniform standard. Cf. Cooley v.
Board of Wardens of the
[35][36][37] Although we deal with an express
congressional provision allowing for concurrent State regulation in Title III,
in determining whether provisions of the Massachusetts statute are pree mpted
by Title III, and hence invalid under the supremacy clause of the Federal
Constitution, we are guided by the standard applied in general preemption
cases: that is, among other considerations, whether the State statute impairs
the superintendence of the field by Congress.
Florida Lime & Avocado Growers, Inc. v. Paul, 373
As the Senate Report states at 2187, in issuing a wiretap
warrant pursuant to State law the judge must make findings that are 'the
substantial equivalent to those required by section 2518(3)' and the order
itself is 'to be made in substantial conformity with the standards set out in
section 2518' (emphasis supplied).
[367 Mass. 251] Thus the more pertinent
concerns are whether the Massachusetts act conflicts with the Federal act by
failure to ensure the same or similar protections as Title III where a wiretap
order is sought in a State court.
F. The State Statute Complies with the Federal
Requirements.
[38] The defendants point out several particulars in
which they argue that the Massachusetts statute fails to conform to Title
III. The provisions that are challenged
relate generally to (1) the authority of assistant district attorneys to apply
for wiretap orders; (2) the requirement that the wiretap order be proved
necessary in that other investigative procedures have been tried and failed;
(3) requirements that the order identify the agency authorized to intercept,
contain statements providing that it be executed as soon as practicable, and be
conducted in such a way as to minimize the interception of communications; (4)
the provision for recording, sealing of tapes, and the serving of notice and
inventory; and (5) designated offenses for which a wiretap order may be
obtained. ([FN14])
Before we turn to the specifics of the provisions
challenged by the defendants, we note that the Massachusetts statute in major
portion matches section for section the provisions of Title III. Admittedly, the phraseology of our State
statute is not word for word that of the Federal act. However, in substance the requirements of the
Massachusetts statute are the same as those of Title III, as the legislative
history of Title III shows that they should be.
([FN15])
[367 Mass. 252] We point out these factors
simply to put in perspective the claims of the defendants with respect to
alleged deficiencies in the State act.
We do not say that the omissions and differences on which the defendants
rely are de minimis simply because they exist in a larger [367 Mass. 253]
scheme. The point is that it would be impractical here to
set out in total the two statutes and, therefore, it should be borne in mind
that the provisions examined below are discrete points in a complex and
multi-sectioned legislative scheme.
(1) State Attorneys Authorized to Apply for Wiretap
Warrants.
The Massachusetts statute, G.L. c. 272, s 99F1, provides:
'F. Warrants: application. 1. Application.
The attorney general, any assistant attorney general specially
designated by the attorney general, any district attorney, or any assistant
district attorney specially designated by the district attorney may apply ex
parte to a judge of competent jurisdiction for a warrant to intercept wire or
oral communications. Each application ex
parte for a warrant must be in writing, subscribed and sworn to by the
applicant authorized by this subparagraph.'
The defendants argue that this is an improper delegation
of authority and is in conflict with s 2516(2), the Federal enabling provision
for State-initiated wiretap orders. That
section in pertinent part provides: 'The principal prosecuting attorney of any
State, or the principal prosecuting attorney of any political subdivision
thereof, if such attorney is authorized by a statute of that State . . . may
apply . . . for . . . an order authorizing, or approving the interception of
wire or oral communications.'
Our attention is directed to the difference between the
provisions of s 2516(1) regulating Federal and State wiretaps. That section relating to Federal orders
provides that the Attorney General or any specially designated assistant
attorney general may authorize an application; s 2516(2), relating to State
orders, provides that the State's principal attorneys may apply for wiretap
orders.
The defendants concede that to require the personal
appearance of a State's principal prosecuting attorneys before the issuing
judge in all instances would impede [367 Mass. 254] enforcement
of the State criminal law; they do not assert that s 2516(2) mandates such a
personal appearance. See
Emphasizing the term that the district attorney must
apply, the defendants submit that a delegation of authority to the assistant
district attorney empowering him to apply for the warrant is improper and in
conflict with the Federal enabling section; that as a consequence the State
statute is invalid in this regard; and that since the warrants issued in these
cases were applied for by an assistant district attorney, the warrants are
invalid. Hence, if the defendants'
position is correct, all evidence seized thereunder would be suppressed. s 2518(10)(a). See generally, United States v. Giordano, 416
U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Chavez, 416
U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).
We do not think that the term 'apply' in s 2516(2) is to
be so narrowly read as the defendants suggest.
We base our conclusion on the statutory language of Title III, the
legislative history of the act, and the reasoning of certain other decisions
which have construed this section. See,
e.g., United States v. Giordano, supra; United States v. Chavez, supra; United
States v. Tortorello, supra; United States v. Lanza, 341 F.Supp. 405
(M.D.Fla.1972). For the reasons
discussed below, we hold that the authorization procedures under the
Massachusetts statute whereby an assistant district attorney is 'specially
designated' by the district attorney comport with the Federal enabling
authority.
The Senate Report, which analyzes section by section the
provisions of Title III, with respect to s 2516(2) states: 'Paragraph (2)
provides that the principal prosecuting[367 Mass. 255] attorney of any State or the principal
prosecuting attorney of any political subdivision of a State may authorize an
application to a State judge of competent jurisdiction, as defined in section
2510(9), for an order authorizing the interception of wire or oral
communications. The issue of delegation
by that officer would be a question of State law. In most States, the principal prosecuting
attorney of the State would be the attorney general. The important question, however, is not name
but function. . . . Who that officer would be would be a question
of State law' (emphasis supplied).
Sen.Rep. at 2187.
We, of course, agree that the statutory authority to
apply for wiretap orders should 'be used with restraint and only where the
circumstances warrant the surreptitious interception of wire and oral
communications.'
Thus, in narrowly circumscribing those State enforcement
authorities who may apply for wiretap orders, Congress sought to ensure uniform
and consistent standards for wiretap orders.
We take note of the fact that, in contrast to the procedure for search
warrants in general, investigative personnel may not themselves apply to a
judge for authority to wiretap or eavesdrop.
As stated in the Senate Report on s 2516(2): 'The intent of the proposed
provision is to provide for the centralization of policy relating to statewide
law enforcement in the [367
We attach much weight to the fact that the assistant
district attorney must be specially designated by the district attorney. We interpret that to mean that an assistant
district attorney may not apply at will for wiretap orders but must bring the
matter for examination before his senior officer, the district attorney. In Massachusetts the greater portion of the
prosecution of crime is commenced by district attorneys. The Commonwealth has ten district attorneys,
seven of whom are elected on a county-wide basis while the remaining three are
elected in units composed of either two or three counties. G.L. c. 12, s 13.
We construe the provision for special designation ([FN16]) to mean that the Attorney General or
the district attorney is to determine whether a particular proposed use of
electronic surveillance would be consistent with the over-all policy in respect
to monitoring followed in his jurisdiction, and to this end the respective
attorney must review and authorize each such application in
writing. Through this process the
necessary centralization is provided for as is the concomitant protection that
the individual with final authority to regulate electronic surveillance be
subject to public accountability.
[367 Mass. 257] To read s 2516(2) as
limiting the Attorney General or the district attorney, by requiring that he
personally apply or affirmatively demonstrate total familiarity with all
aspects of a case would, in our opinion, serve no purpose not accomplished by
authorization of an application by a district attorney followed by special
designation to an assistant district attorney to apply therefor. ([FN17])
Moreover, the practice of authorizing an assistant district attorney to
apply is beneficial in that such assistant district attorney, through his
closer association with investigation of the case, may more completely and
adequately respond to the judge's inquiry with respect to the requirements of
the State and Federal statutes requiring proof that probable cause exists.
The legality of the delegation of authority allowed under
the Massachusetts statute is distinguishable from the delegation found improper
in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341
(1974). In that case, contrary to the
express provisions of s 2516(1) requiring that '(t)he Attorney General, or any
Assistant Attorney General specially designated by the Attorney General, may
authorize an application to a Federal judge,' discretion to authorize wiretaps
had been delegated to the United States Attorney General's executive
assistant. In addition the application
inaccurately described the official who had authorized the issuance.
Our decision in this regard is in substantial accordance
with that reached in United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973),
cert. den., 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973) (disrict attorney
need not personally appear before [367 Mass. 258] issuing judge
where assistant district attorney appears).
See
Our review of the State statue with respect to the
prosecuting attorneys empowered to apply for a wiretap warrant, particularly
the delegation to the assistant district attorney challenged here, convinces us
that the State procedures adequately ensure the centralization, uniform
enforcement policy, and public accountability deemed necessary by s 2516. Accordingly, we find that the provision does
not conflict with the Federal legislation and is not pree mpted.
(2) Authorized Thirty-day Period.
Section 2518(5) provides in pertinent part, 'No order
entered under this section may authorize or approve the interception of any
wire or oral communication for any period longer than is necessary to achieve
the objective of the authorization, nor in any event longer than thirty
days.' General Laws c. 272, s 99I2,
provides that the warrant must contain '(t)he date of issuance, the date of
effect, and termination date which in no event shall exceed thirty days from
the date of effect. The warrant shall
permit interception of oral or wire communications
for a period not to exceed fifteen days.
If physical installation of a device is necessary, the thirty-day period
shall begin upon the date of installation.'
The defendants' contention that the Federal statute does
not allow for the running of the thirty-day period from the date of
installation of the intercepting device is contradicted by the Senate Report on
s 2518(5) which states, 'The period of authorized interception is intended to
begin when the interception--in fact--begins and terminates when the
interception--in fact--terminates. This
will be a question of fact in each case.
. . . [367 Mass. 259]
A wiretap can take up to several days or longer to install.' Sen.Rep. at 2192.
It is clear, of course, that installation of the
necessary intercepting equipment should be effected forthwith, that is, with
all due speed. A reasonable time for
implementation of mechanical systems is necessary and is permissible under the
statutes, but unjustifiable delay will result in suppression of intercepted
communications because any such unreasonable delay in installation would
improperly extend the outside limit for termination, i.e., thirty days. In this regard the provision allowing for
commencement of the period of interception on installation is to be read in
conjunction with the requirement for immediate execution of the warrant
discussed below.
With respect to determining the period of authorization
from the date of installation we note that the Massachusetts statute in this
regard is not only in accordance with the Federal requirements but is in fact
more restrictive in terms of the fifteen-day total on the number of days in
which interceptions may be made within the thirty-day authorized period.
(3) Alternative Investigative Procedures.
The defendants' claim that the State statute fails to
require, as s 2518(1)(c) specifies, that the application contain 'a full and
complete statement as to whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely to succeed
if tried or to be too dangerous' is without merit. General Laws c. 272, s 99E3, specifically
provides that a warrant may issue only on such a showing by the applicant.
[367 Mass. 260] (4) Identification of
Agency Authorized to Intercept.
Section 2518(4)(d) requires that the order identify the
person authorizing the application and the agency authorized to intercept. See generally, United States v. Chavez, 416
U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).
General Laws c. 272, s 99, does not expressly so provide. Considering the fact that such a provision is
more properly directed toward ministerial or reporting duties than to the
substance of the order, United States v. Chavez, supra, 416 U.S. at 575--580,
94 S.Ct. 1849, we are of the view that the absence, from the Massachusetts
statute, of an express reference to the agency authorized is not crucial, since
the requirement of agency identification may be fairly implied in the State
statute. Thus, it is reasonable to
assume that the Legislature intended that wiretap warrants include a provision
identifying the authorities applying therefor and directed to execute them, and
we so construe s 99. ([FN18])
(5) Execution as
Soon as Practicable.
In defining the specifics that must appear in the order,
s 2518(5) prescribes, inter alia, that '(e)very order and extension thereof
shall contain a provision that the authorization to intercept shall be executed
as soon as practicable.' We believe that
s 99, taken as a whole, requires such immediate execution and that, in lieu of
the phrase 'as soon as practicable,' the requirement for prompt execution is
ensured by s 99I2 which, in defining the form and content of the warrant,
states that the warrant must contain '(t)he date of issuance, the date of
effect, and termination date.' ([FN19])
In setting these dates, the issuing judge must of necessity review he [367
Mass. 261] proposed date of effect which is, in other words, the date of
execution, and he is therefore in a position to ensure that the warrant be
executed promptly.
Moreover, it must be assumed that the Legislature was
aware of the requirements of probable cause.
It is well established by the law of this Commonwealth that in the
determination of probable cause time is of the essence, and that a search
warrant is to be executed immediately, that is, without unreasonable delay. Commonwealth v. Cromer, ---
Of course, in any case where a substantial claim of
delayed execution is raised, the aggrieved person against whom such evidence is
offered may contest on Fourth Amendment grounds the continuing validity of the
finding of probable cause. See Sgro v.
United States, supra. However, given the
specific time sequence set forth in s 99F2, delayed execution will be unlikely
where the issuing judge reviews the proposed dates and directs that the order
be executed accordingly.
(6) Minimization.
In addition to the requirement that the order contain a
provision that the authorization to intercept be executed as soon as
practicable, s 2518(5) also provides that the [367 Mass. 262]
order shall contain a provision that the interception 'be conducted in such a
way as to minimize the interception of communications not otherwise subject to
interception under this chapter.' The
State statute has no express equivalent.
The exact nature of the minimization requirement is less than clear.
There is no detailed legislative history on the provision
for minimization. The Senate Report
simply reiterates the statutory language.
Most probably the requirement of minimization seeks to remedy the
infirmity in the wiretap statute at issue in Berger v. New York, 388 U.S. 41,
59, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040 (1967), wherein 'the conversations of
any and all persons coming into the area covered by the device will be seized
indiscriminately and without regard to their connection with the crime under
investigation.' In effect, then, the
purpose of minimization is to limit the intrusion so that communications not
otherwise subject to interception will not be indirectly monitored, causing a
serious interference with rights of privacy.
We are of the view that the absence of the express word
'minimize' in the State statute or a warrant is not fatal as long as the State
procedures fully and effectively achieve that result. ([FN21])
Minimization has been interpreted as requiring that the agency
authorized to intercept show a high regard for rights of privacy and take all
measures reasonable to avoid unnecessary intrusion.
We note that s 99F2e in setting forth the requirements
which must be contained in the application has provisions, not found in the
Federal statute, which require the inclusion of a statement that the oral or
wire communications sought to be intercepted are material to a particularly
designated offense and a statement that such communications are not legally
privileged. Section 99 F2f imposes an
additional State requirement that, if practicable, the application shall
designate hours of the day or night during which oral or wire communications
may be reasonably expected to occur.
See, e.g.,
We are mindful of the fact that the Federal statutory
scheme requires that the order shall contain a provision that the wiretaps
'shall be conducted in such a way as to minimize the interception of
communications not otherwise subject to interception under this
chapter.' s 2518(5). However, the phrase minimization is not
magical and the requirement to limit surveillance to that necessary and
authorized under the warrant should be considered in light of the particularity
with which the conversations to be intercepted are described.
Supportive of this reasoning is the fact that the Federal
Courts have held that the absence of a directive in the order for minimization
does not necessarily render the order invalid and the communications obtained
thereunder inadmissible. In
As the plethora of Federal cases on minimization
illustrates, the purpose of including the minimization [367 Mass. 266]
directive is to ensure that the agents conduct the wiretaps within the specific
limitations of the order and avoid any improper intrusion on rights of
privacy. In our view the provisions of
the Massachusetts statute, fairly construed, serve this purpose in that they
make clear to the executing officer that his surveillance is to be limited to
conversations material to designated offenses under investigation. In this regard we note that the defendants in
these cases made no attempt to show that any of the conversations recorded were
not pertinent to the State's investigation and have made no claim that they
were in any way prejudiced by the manner
in which the wiretaps were executed.
In re LoChiatto, 500 F.2d. 434 (1st Cir. 1974).
While one means to ensure appropriate limits on the
authorized surveillance is to include the phrase 'minimization' in the order,
that method, as the Federal cases indicate, is not exclusive. Thus we conclude that the absence of an
express reference to minimization in the Massachusetts statute is not
fatal. We caution, however, that every order
issued under the State statute must fully ensure that the surveillance is
limited to proper objectives, and protective of rights of privacy. The requirement that the intrusion be limited
is important in effectuating Fourth Amendment rights, and it is quite clear
that under our State statute, in any particular case, the failure to limit the
interception to matters material to the designated crime which is the subject
of the interception may result in suppression of certain intercepted
communications. The limitations on hours
and manner of execution are helpful in this regard, but the directive of the
order and the instructions given therewith should be clear and unambiguous so
that the executing officers are aware of and abide by the limitations of the
order.
(7) Return and Sealing.
Section 2518(8)(a)--(b) requires that, on expiration of
the order, the recording obtained thereunder shall be [367 Mass. 267]
made available to the issuing judge and with the application and orders granted
shall be sealed under his direction and held for ten years. The Massachusetts statute requires the return
of the warrant within seven days of termination, does not specify that the
issuing judge shall seal the recording and provides that the application,
warrant, renewal orders and return shall be kept for five years. ss 99M and N.
We conclude that the provisions of s 99, in so far as they do not
provide that the recording be kept for the requisite ten-year period, are
invalid. Therefore, Massachusetts
officials in order to comply with Federal requirements must henceforth keep all
tapes and documents for ten years. This
would include the tapes recorded in these cases as well as all currently held
tapes and papers.
However, with respect to the requirement for prompt
return to the issuing judge, the State statute is not in conflict with s 2518(8)(a)
in that seven days is the outside limit on return of the warrant and is not to
be read as sanctioning a delay in return if it is practicable that a return be
made before expiration of the seven-day period.
([FN25])
Nor is the State statute for preserving the recording
inconsistent with the Federal requirement of sealing. Section 99N1 provides that the issuing judge
shall examine the return which contains the original recording and, after
determining whether the return complies with the statutory provisions, shall
order the transmittal to the Chief Justice of the Superior Court of the
application, all renewal applications, the warrant, all renewal orders, and the
return and '(t)heir contents shall not be disclosed.' Sealing of the documents would be an
appropriate means of preserving these documents and should be utilized in order
to conform the State provision to that [367
(8) Inventory.
Contrary to the defendants' claim, we find that service
of an attested copy of the warrant, pursuant to s 99L, on the person whose oral
or wire communications were intercepted provides adequate access to the
information prescribed by s 2518(8)(d).
We point out that s 99L provides for service prior to execution of the
warrant or, on a showing of exigent circumstances, within thirty days after
termination with continued secrecy limited to three years. These time limitations are more stringent
than those imposed by s 2518(8)(d).
(9) Designated
Offenses.
The defendants are without standing to raise the claim
that the Massachusetts statute on its face exceeds the scope of s 2516(2) in
that it allows for the use of electronic surveillance in crimes not designated
in the Federal act. ([FN26]) The crimes for which the defendants were
indicted clearly fall within the designated offenses. Since the statute may be validly enforced
against the defendants, they may not be heard on a claim that the statute may
not be properly enforced against others.
G. The Wiretap Warrants Are Facially Valid and
Were Properly Executed.
In addition to their claim that the State statute
pursuant to which these warrants were issued is invalid, the defendants also
attack the warrants as facially [367 Mass. 269] invalid. The defendants argue that the two warrants,
that of April 24, 1972, and that of May 10, 1972, are deficient with respect to
the termination dates required by s 99I and s 2518(4)(e) and (5); the
postponement of notice; and the omission of minimization language. In addition, the defendants contend that the
return and notice procedure, as well as the sealing of the tapes, was not
performed in compliance with the statutory provisions. Finally, the defendants assert that
utilization of pen registers was beyond the scope of the warrants.
Certain of these assertions, e.g., the minimization
argument, are answered by our previous discussion of the relevant portions of
the State statute. However, the
arguments we address here go not to the facial validity of the State statute,
analyzed in parts A through F of this Appendix, but rather relate to the
specifics of these warrants.
[39][40][41] The standard for suppression because of
alleged deficiencies in a wiretap warrant, at least with respect to Federal
requirements, 'does not turn on the judicially fashioned exclusionary rule
aimed at deterring violations of Fourth Amendment rights, but upon the
provisions of Title III.'
(1) Termination Dates.
The April 24, 1972, warrrant states that whereas the
application complies with the provisions
of State law, the specially designated assistant district attorney and his
designated investigative agents may forthwith 'tap and make connection with any
and all wires leading to the telephone instrument as of this date (April 24)'
(emphasis supplied), and further provides 'that such interception procedure be
employed for a period not exceeding 15 days, from 11:00 a.m. to 7:30 p.m.
within the 30-days next following the date of the installation' (emphasis
supplied).
The defendants raise two points with respect to this
warrant: first, that no termination date as such appears, and second, that the
Federal statute does not allow for the running of the thirty-day period from
the date of installation. We have
answered the latter claim in an examination of the State statute. With respect to the former claim, we are of
opinion that this warrant on its face does provide a termination date computed
from the stated date of issuance and installation. As the warrant states, this wiretap is to
commence 'as of this date' and is limited to fifteen days 'within the 30-days
next following the date of the installation.'
Although it could be suggested that the phrase 'as of this date'
modifies and refers to wires leading to the telephone as of April 24, we think
by far the most logical interpretation is that the reference is to the date of
issuance. The defendants do not claim to
the contrary. Thus, the applicable
limits for termination are stated with sufficient clarity and do specifically
establish termination.
[367 Mass. 271] With respect to the second
wiretap warrant, dated
At the hearing on the motions to suppress the contents of
the wiretap interceptions, the assistant district attorney stated that although
his intent was to apply for authority to wiretap for only fifteen days within
the period of thirty days next succeeding May 10, 1972, this language was
omitted from the warrant, a purposed copy of which was prepared in the district
attorney's office. The assistant
district attorney further stated that the omission was due to a typographical
error and a failure to proofread the document accurately. In regard to these omissions, the judge of
the Superior Court found: 'By error and inadvertence, the lines in the warrant
relating to the time limitations . . . (were) not typed in by the typist. The omission was not discovered by
proofreading. It was not the intention
of Mr. Snider to ask for nor to obtain a warrant without a time limitation. I infer that Mr. Justice Lurie was unaware of
the obsence of the time limitation when he signed and issued the warrant.'
The defendants argue that invocations of error and
inadvertence cannot save this warrant, and in most circumstances we would agree
with them. However, the Commonwealth
argues, on the other hand, that the warrant should be read in conjunction with
the application; that the application for purposes of establishing the dates of
permissible interception should be deemed incorporated in the warrant; and that
so read the warrant is properly limited in effect. The application specifically stated: '(11)
That the interception is required to be maintained for a period of 15 calendar
days, commencing on the date of installation of the intercepting device, and
that the hours of each day during which wire [367 Mass. 272]
communications may be reasonably expected to occur are those between the hours
of 11:00 a.m. to 7:30 p.m.' We find this
analysis persuasive.
In Commonwealth v. Todisco, 363 Mass. ---[FNd], 294
N.E.2d 860 (1973), we held that in certain circumstances, particular descriptions
contained in the supporting affidavits could be deemed incorporated in the
warrant so as to supplement particularity requirements. In that case, as in the instant cases,
the police officer who made the affidavit was involved in executing the warrant
and could therefore be deemed aware of the limitations on the warrant with
regard to the materials to be seized.
([FN27]) See Commonwealth v.
Pope, 354 Mass. 625, 241 N.E.2d 848 (1968), where we held that a complaint
particularly describing the place to be searched could be read in support of
the warrant and, so read, provided an adequate description of the premises to
be searched.
[42] Our analysis is in line with the reasoning of a
number of courts which have held that inadvertent omissions of specific
provisions from a wiretap order need not result in [367 Mass. 273]
suppression of intercepted communications as long as a defendant's
constitutional rights are not prejudiced.
([FN28]) See, e.g., United States
v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) (failure to report
correctly the identity of the person authorizing the application does not
warrant suppression of evidence); United States v. Poeta, 455 F.2d 117,
120--121 (2d Cir. 1972), cert. den., 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d
337 (1972) (fact that provision of order stating that interception need not
automatically terminate had been inadvertently struck did not render
inadmissible statements intercepted subsequent to first inculpatory
communication; ([FN29]) United States v. Tortorello, 480 F.2d 764, 780 (2d Cir.
1973), cert. den. 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973) (a pragmatic
approach is to be taken with respect to particularity requirement and the
papers as a whole, order and application, must be considered together). Cf. Moore v.
State v. Christy, 112 N.J.Super. 48, 74--76, 270 A.2d
306, 320 (1970), concerned an omission virtually identical to that at issue
here in that the warrant issued did not expressly define the duration and, in
addition, did not set forth any dates.
The judge reasoned that, '(t)he order should not be read [367
Mass. 274] in vacuo but against the backdrop of the application,' and
concluded that since the application expressly sought permission to wiretap or
thirty days, the warrant was subject to proper limitations. We apply a similar analysis.
The application submitted by the assistant district
attorney specifically requested authorization to intercept 'for a period of 15
calendar days, commencing on the date of installation,' the supporting
affidavit was sworn to by an officer involved in executing the warrant and the
trial judge found that the omission was the result of error and
inadvertence. In light of these combined
factors we think that the May 10 warrant and the application could be read
together and that so read the warrant was properly limited in its duration.
[43] It is clear, of course, that a termination date,
establishing finally the duration of the interception, is necessary to prevent
'the equivalent of a series of intrusions, searches, and seizures pursuant to a
single showing of probable cause.'
Berger v.
(2) Return, Sealing, and Notice.
The next assignments of error argued by the defendants
relate to the return made on the April 24, 1972, warrant both with respect to
timeliness and substance, and further relate to the manner of sealing of the
tapes on the return. In addition, the
defendants claim that they were not given proper notice of the warrants by
service thereof and that the bases for postponement of service were imprecisely
stated.
Section 99M provides that, within seven days after
termination of the interception, a return must be made to the issuing
judge. The return on the April 24
wiretap warrant indicates that interceptions commenced on April 25. Interpreting s 99I2 as authorizng only
fifteen days of interception, the interception[367
[44][45] We think that total suppression is an extreme
remedy and we do not think the statutes require it where, as here, the return
was made two days beyond the period prescribed in the State statute. ([FN30])
We base this conclusion on two grounds.
First, as we stated in Commonwealth v. Cromer, --- Mass. ---, ---, fn.
3 ([FNG]), 313 N.E.2d 557 (1974), and
cases cited therein, 'The 'overwhelming weight of authority,' however, is to
the effect that required warrant return procedures are ministerial, and failure
to comply therewith is not ground for voiding an otherwise valid search.' That these warrants authorize the seizure of
communications, rather than goods, does no mean that existing practice with
regard to the return is inapplicable, and an analysis similar to that employed
generally for search warrants seems justified.
Indeed, several Federal Courts have reached this conclusion with respect
to wiretap warrants. In light of the
ministerial nature of the return these courts have reasoned that certain
deficiencies in the return and filing of inventories need not, absent a showing
of prejudice by the defendant, render inadmissible the evidence seized through
wiretap surveillance. See, e.g.,
The defendants have made no claim that they were in any
way prejudiced by the delay in the return.
Commonwealth v. Cromer, --- Mass. ---, ---, fn. 3 ([FNH]), 313 N.E.2d
557 (1974), and cases cited. Nor have
they alleged that in their cases a return nine days following termination did
fail 'to satisfy any of those statutory requirements that directly and
substantially implement the congressional intention to limit the use of
intercept procedures to those situations clearly calling for the employment of
this extraordinary investigative device.'
For these reasons we hold that the late filing of the
return in these cases did not render inadmissible all evidence seized through
the surveillance.
In reference to their claim that the return failed to
meet the requirements of s 99M in that the necessary 'statement of the premises
or places where the interceptions were made' is not satisfied by the phrase
'premises close by to the aforementioned 102 Cass Street,' we point out that
testimony was offered at the preliminary hearing on the motions to suppress
that the exact location was omitted in order to protect the identity and safety
of the Commonwealth's informer. The
defendants did not attempt to show any need for this material in order to
prepare their defense.
The defendants further contend that the first warrant,
that of April 24, was deficient in that postponement of service of a copy of a
warrant is stated as resting on a finding of 'exigent circumstances' as opposed
to 'important special facts,' the statutory phrase. s 99L2.
We take note that the warrant states 'circumstances of exigency do
exist, and the same exigency permits and requires postponement of service of a
copy of the within warrant until after the expiration of this and related
investigations, but not later than three (3) years thereafter.' [367
Mass. 277] Moreover, s 99L2
requires 'a showing (in the application) of important special facts which set
forth the need for continued secrecy' (emphasis supplied), and it is not clear
that the warrant itself, rather than the application, must repeat this language
verbatim. The important point with
respect to the warrant is that the issuing judge review and decide whether such
'important special facts' exist warranting postponement of service. In these cases we are of opinion that the
judge did make sucu a determination, after reviewing the nature of the criminal
activity under investigation. ([FN31])
[46] Finally, the defendants claim that the warrants were
improperly sealed. There is some lack of
clarity as to whether the tapes were first brought to the Chief Justice of the
Superior Court or to the issuing judge, although there were statements made by
the assistant district attorney that the tapes were sealed by the investigative
officers. Admittedly this procedure does
not comply exactly with the statutory provisions. However, the issuing judge could have, if he
deemed it necessary, broken the seal which consisted of masking tape, examined
the tapes and resealed the containers holding the tapes. In any event, we agree with the reasoning of
the court in United States v. Poeta, 455 F.2d 117 (2d Cir. 1972), cert.
den., 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972), that sealing is a
ministerial function; that the purpose of sealing is to insure the privacy and
integrity of the tapes, which was accomplished here, and that absent an
affirmative showing of prejudice, exclusion of all evidence may not in all
cases be mandated. See
(3) Pen Registers.
The defendants' final claim with respect to execution of
the wiretap warrants is that the Commonwealth exceeded the scope of the
warrants in utilizing pen registers (a pen register is a mechanical device
which records on tape the numbers dialed from a given line; the device does not
identify the telephone number from which incoming calls originated).
Although there is some controversy, the majority of
courts have concluded that the provisions of Title III do not govern the
installation of a pen register to monitor and record the numbers dialed from a
particular telephone line since the device does not, as defined in s 2510(4),
intercept 'the aural acquisition of the contents of any wire or oral
communication' (emphasis supplied).
([FN32])
[47][48] The question presented here is whether a
separate order authorizing the use of a pen register is required where a valid
order authorizing a simultaneous wiretap interception has been issued pursuant
to the applicable Federal and State statutes.
([FN33]) We hold that a separate order authorizing use of a pen register
is not required where there is a valid wiretap warrant outstanding, and that
use of the device was permissible in these cases as within the directive of the
warrants authorizing the use of 'necessary and proper systems to (i)ntercept .
. . (the) communications transmitted.'
See United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States
v. Falcone, 505 F.2d 478 (3d Cir. 1974).
([FN1])
KAPLAN, Justice (dissenting).
I refer to my separate opinion in Commonwealth v. Lykus,
--- Mass. --- ([FNA]), --- N.E.2d 671 (1975).
In the present cases, a ruling that it was error to receive the evidence
based on the voice spectrograms would appear to entail reversal of the
judgments.
(FN1.) Of the eleven companion cases one is against
Ralph F. Vitello, one is against Henry Tanzi, two are against Camilla Villino,
two are against Margaret M. Hogan, three are against Francis A. Vitello, and
two are against Joseph Vitello.
(FN2.)
G.L. c. 271, s 7 (being concerned with setting up and promoting an
illegal lottery for money). G.L. c. 271,
s 17 (being found with apparatus for the purpose of registering bets). G.L. c. 271, s 17A (using a telephone for the
purpose of accepting wagers and registering bets). G.L. c. 271, s 16A (knowingly organizing,
supervising, managing, and financing at least four persons so they might
provide facilities and services for conduting illegal lotteries).
(FN3.)
Although the issue is assigned as error, the defendants do not argue
that the warrants in these cases were invalid under the Fourth Amendment. In other words, they apparently do not now
contest that the applications, based on a long and detailed police investigation,
requesting the orders authorizing the wiretaps, demonistrated the existence of
probable cause. Neither do they contend
that the orders themselves failed to meet the particular requirements of the
Fourth Amendment, as opposed to Title III, nor that the intercepted
conversations sought to be offered in evidence were not among those authorized
to be intercepted.
FNa.
Mass.Adv.Sh. (1975) 719.
(FN4.)
In view of our conclusion that the defendants' constitutional rights
were not prejudiced or adversely affected by pre-trial publicity, we need not
consider whether the harmless error standard should be applied to dispose of
the defendants' contentions. The basis
for applying the harmless error rule would be that the evidence of guilt in
these cases was so overwhelming that if constitutional error had been shown in
this regard, the evidence for conviction would nevertheless have been
sufficient to reach even the higher degree of beyond a reasonable doubt. See
(FNB.)
Mass.Adv.Sh. (1971) 1367,
1473--1475.
(FN5.)
The defendants make no claim that they, or any of them, were entitled to
directed verdicts on any of the other indictments, except the defendants
Camilla Villino and Margaret M. Hogan who contend that, but for the voiceprint
evidence, they would have been entitled to directed verdicts of not guilty.
(FNC.)
Mass.Adv.Sh. (1973) 1577.
(FN1.)
For a comprehensive bibliography of the commentary on electronic
surveillance see A.B.A. Standards Relating to Electronic Surveillance, Appendix
E, 237--250 (Tent. draft 1968).
(FN2.)
Under Title III, a wiretap order must be preceded by an application to
be submitted to a judge of competent jurisdiction by specifically designated
officials. The application must contain
prescribed information establishing probable cause to believe a designated
offense is being committed and must establish the need for surveillance by
wiretap (s 2518 (1)). A judge before
issuing an order is required to make specific findings (s 2518(3)) including
whether probable cause exists and the order itself must contain provisions
which particularize the extent and nature of the interception permitted (s
2518(4)). The order is to expire in a
specific time and in any event may not last longer than thirty days (s
2518(5)). The judge issuing the order
may maintain continuing judicial supervision over the interception (s
2518(6)). The act contains a notice and
inventory provision (s 2518(8)), as well as a provision for the custody of any
recordings produced (s 2518(8)). Also
included is a provision specifying the circumstances and procedures pursuant to
which an aggrieved person may seek an order for the suppression of intercepted
wire or oral communications sought to be used in evidence by the government (s
2518(10)(a)).
(FN3.) 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, pp. 2112-2309 (hereinafter
cited as Sen.Rep. with appropriate pagination to the U.S.Code Cong. &
Adm.News).
(FN4.)
We express no opinion as to whether a wiretap order would be valid
absent the existence of Title III.
(FN5.)
Federal Courts of Appeals in nine circuits have considered the statute
and held that it meets the requirements of the Fourth Amendment.
(FN6.)
The defendants also attack the warrants for failure to meet Federal and
State standards. This aspect of their
challenge is discussed in part G, infra.
(FN7.)
See s 801 of Title III which contains the congressional findings. In addition, the Senate Report on particular
provisions on Title III specifically indicates areas in which the Congress did
not intend to preempt State legislation.
See, e.g., s 2511 (knowledge required to violate); s 2512 (ban on
manufacture, distribution, possession, and advertisement of interception
devices); s 2520 recovery of civil damages).
(FN8.)
Section 2516(2) specifically provides for such State regulation: 'The
principal prosecuting attorney of any State, or the principal prosecuting
attorney of any political subdivision thereof, if such attorney is authorized
by a statute of that State to make application to a State court judge of
competent jurisdiction for an order authorizing or approving the interception
of wire or oral communications, may apply to such judge for, and such judge may
grant in conformity with section 2518 of this chapter and with the applicable
State statute an order authorizing, or approving the interception of wire or
oral communications by investigative or law enforcement officers having
responsibility for the investigation of the offense as to which the application
is made, when such interception may provide or has provided evidence of the
commission of the offense of murder, kidnapping, gambling, robbery, bribery,
extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or
other crime dangerous to life, limb, or property, and punishable by
imprisonment for more than one year, designated in any applicable State statute
authorizing such interception, or any conspiracy to commit any of the foregoing
offenses.'
(FN9.)
The Senate Report in s 2516(2), at p. 2187, states, 'No applications may
be authorized unless a specific State statute permits it.'
(FN10.)
With respect to the standards for State wiretap statutes promulgated
pursuant to s 2516(2) the Senate Report at 2187 provides: 'The State statute
must meet the minimum standards reflected as a whole in the proposed
chapter. The proposed provision
envisions that States would be free to adopt more restrictive legislation, or
no legislation at all, but not less retrictive legislation. State legislation enacted in conformity with
this chapter should specifically designate the principal prosecuting attorneys
empowered to authorize interceptions.
The State judge of competent jurisdiction . . . empowered by the State
legislation to grant orders for interceptions would have to make findings which
would be the substantial equivalent to those required by section 2518(3) . . .
and the authorization itself would have to be made in substantial conformity
with the standards set out in section 2518.'
(FN11.) Exclusion would result since s 2515 provides:
'Whenever any wire or oral communication has been intercepted, no part of the
contents of such communication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other proceeding in or before
any court, grand jury, department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a State, or a political
subdivision thereof if the disclosure of that information would be in violation
of this chapter' (emphasis supplied).
See s 2516(2) wherein it is provided in pertinent part that the State
order is to be granted 'in conformity with section 2518 of this chapter and
with the applicable State statute' (emphasis supplied).
(FN12.)
The defendants point to several particulars in which they allege that
the Massachusetts statute is deficient relative to the Federal
requirements. They argue that since the
statute and the resulting applications and orders all short of the requirements
of s 2518 the wiretaps cannot stand.
These aspects of the State statute are discussed in part F, infra.
(FN13.)
So far at least twenty-two States have enacted legislation authorizing
wiretap warrants under State law.
(FNA.)
Mass.Adv.Sh. (1973) 291,
304--305.
(FN14.)
In addition, the defendants challenge the provisons of the warrants
themselves, claiming that the warrants, in certain respects and most
particularly in reference to termination provisions, return, notice, and
sealing procedures, failed to meet the requirements of both the Federal and
State statutes. These arguments are
examined later in this Appendix.
(FN15.)
That the Massachusetts statute parallels the Federal provisions in
substance, rather than in text, is illustrated by comparing the provisions of
the two statutes. For example, s
2518(1)(a)--(f) sets forth what the application for a wiretap order must
contain, so that the judge in Federal proceedings may assess probable cause and
other necessary consideratios. A
comparison of G.L. c. 272, s 99 E and F, reveals that these sections set forth
requirements for State proceedings that are virtually identical to s 2518(1)
(a)--(f).
Moreover,
and most importantly, in certain respects the Massachusetts statute is more
restrictive than Title III. For example,
s 99 F imposes, beyond the Federal conditions, the requirements that the application
state (1) that the communications are not legally privileged; (2) if
practicable, the hours of the day or night during which communications subject
to the order may be reasonably expected to occur; and (3) if it is necessary to
make secret entry, a statement to that effect.
In addition, s 99I provides that the warrant shall permit interception
for a continuous period not to exceed fifteen days within a thirty-day period,
whereas s 2518(5) permits interception for the full thirty-day period. Unlike the Federal act, s 99 is more
restrictive in that it does not allow for emergency interception without prior
judicial authorization. Cf. s
2518(7). Further, the State statute imposes
more stringent requirements with respect to the return. The Federal statute requires only that the
recordings be made available to the issuing judge. s 2518(8)(a).
Section 99M provides for additional information including: (a) a
statement of the nature and location of the communication facilities, if any,
and premises or places where the interceptions were made; (b) the periods of
time during which such interceptions were made; (c) the names of the parties to
the communications intercepted, if known; (d) the original recording of the
oral or wire communications intercepted, if any; and (e) a statement attested
under the pains and penalties of prejury by each person who heard oral or wire
communications as a result of the interception authorized by the warrant, which
were not recorded, stating everything that was overheard to the best of his
recollection at the time of the execution of the statement. Finally, with respect to the mandatory
service of notice and warrants, s 99L imposes a thirty-day limit for service of
the warrant on a showing of exigent circumstances as compared to s 2518(8)(d)
setting a ninety-day limit. The State
statute limits postponement of service to three years, the Federal act imposes
no such limitation.
(FN16.) The determination, whether an assistant
district attorney should be specially designated, would require not a cursory
but full examination by the district attorney of the application. There is nothing in this record to indicate
that the district attorney did not so review these applications. Further, the signed letters of special
designation limited to these specific wiretaps in our view sufficiently
establish the lies of responsibility to the district attorney as a central
authority figure accountable to the courts and the public.
(FN17.)
It appears that the delegation to Federal assistant attorneys general is
not so narrowly circumscribed. See s
2516(1). Nevertheless, we emphasize that
the special designation of a State assistant attorney general or assistant
district attorney must be on a case by case basis with written authorization from
the Attorney General or district attorney.
This specific authorization in each case satisfies the standards of
Title III even if that statute is read to require that the State Attorney
General apply for the warrant. However,
we do not so read Title III. See text
above.
FNb.
Mass.Adv.Sh. (1974) 1031.
(FN18.)
The wiretap warrants issued in these cases were expressly directed to
the 'District Attorney for the County of Suffolk, His Specially Designated
Assistant District Attorney, and His Designated Investigative and Law
Enforcement Agents,' thus adequately identifying the agency authorized to
intercept.
(FN19.)
The Federal statute does not expressly provide for this specificity with
regard to the date of effect.
(FNC.)
Mass.Adv.Sh. (1974) 1031,
1034--1035.
(FN20.)
The warrants at issue here provide: 'Whereas the application for
authority to intercept the wire communications as aforesaid complies with the
provisions, purposes and procedures of Section 99 . . . We Command You and each of you forthwith,
with necessary and proper systems to intercept any communications' (emphasis
supplied).
(FN21.)
In these cases the defendants have raised no claim that the surveillance
was conducted beyond the scope of the orders and have not alleged that
nonpertinent calls were intercepted, fully heard, or recorded. We therefore need not reach the question
whether the interceptions were in fact properly limited in scope. However, given the extent of the criminal
enterprise under investigation, the location and operation of the subject
telephones, and the type of offenses under investigation, the defendants in all
probability would face great difficulty in seeking to establish that the
intrusion in these cases was unnecessarily broad. See, e.g., United States v. Tortorello,
supra; United States v. Bynum, 485 F.2d 490, 500--502 (2d Cir. 1073); United
State v. James, supra, at 1018--1023.
(FN22.)
Moreover, a showing that some of the conversations listened to
completely were in fact nonpertinent would not necessarily violate the
minimization requirement as long as good faith effort had been made to achieve
minimization.
(FN23.) The requirements under the applicable State
law, that of New York, are substantially similar to those of s 99 and relate to
(1) the name of the person, if known, whose communications are to be
intercepted, (2) the nature and location of the communications facilities as to
which authority to intercept is granted, (3) a particular description of the
type of communications sought to be intercepted, (4) a statement of the
particular designated offense to which they relate, (5) the identity of the law
enforcement agency authorized to intercept, and (6) the period of time during
which the interception is authorized.
See 488 F.2d at 597, fn. 6 (2d Cir. 1973).
(FN24.)
In the Cirillo case, the agents in charge of the investigation submitted
affidavits stating that they were aware of the minimization requirement and
that instructions to limit the surveillance were given to the officers and
agents conducting the wiretap. We note
that s 99M requires the filing of a statement by the persons who have
intercepted the communications as to the extent of the surveillance and the
conversations overheard. Under s 99O,
before any evidence derived from the intercepted communications is offered in a
a criminal trial, the defendant shall be served with a copy of each document
and item which make up the application, order, and return. Consequently, a defendant would have access
to the affidavit filed under s 99M.
(FN25.)
The defendants' claim that the returns in these cases were not made in
compliance with the applicable statutes is discussed in part G, infra.
(FN26.)
We have examined the defendants' claim that the orders in these cases
were invalid in that they were issued to detect violations of G.L. c. 271, s
17A (not a designated offense in s 2516(2)) as well as violations of G.L. c.
271, s 17, and we agree with the Commonwealth that the applications were not
based on s 17A. The single reference to
s 17A in the applications merely informs the issuing judge that violations of s
17 which are recorded on a telephone are per se violations of s 17A.
FNd.
Mass.Ad.Sh. (1973) 613.
(FN27.)
In these cases Officer John C. O'Malley, a detective assigned to the
FNe.
Mass.Adv.Sh. (1972) 1095.
FNf.
Mass.Adv.Sh. (1973) 967.
(FN28.)
(FN29.)
We point out that the facts in these cases are substantially stronger
than in the Poeta case, for in that case the court was required to infer that
the nontermination provision had been inadvently deleted, while here there was
a direct statement and finding to that effect.
(FN30.)
There is no doubt that the return was made two days beyond the
prescribed period in the State statute and the defendants challenged this error
as matter of State law; no claim is made that the return failed to meet Federal
requirements and we need not reach the issue except to say that the crucial
question would be whether the return was made within a reasonable time.
(FNG.)
Mass.Adv.Sh. (1974) 1031, 1033,
fn. 3.
(FNH.)
Mass.Adv.Sh. (1974) 1031, 1033,
fn. 3.
FNi.
Mass.Adv.Sh. (1974) 1049.
(FN31.) We fail to see how the defendants were
prejudiced by service of unattested copies of the warrants on their defense
counsels. And we note that s 99O allows
for such service before evidence obtained through any interception may be
introduced in a criminal trial.
(FNJ.)
(September 30, 1974) 16 Cr.L.Rep. 2058.
(FN32.)
The Senate Report of s 2510(4), at p. 2178, states that 'intercept' is
'to include the aural acquisition of the contents of any wire or oral
communication by any electronic, mechanical, or other device. Other forms of surveillance are not within
the proposed legislation. . . . The use of a 'pen register,' for example,
would be permissible.'
FNk.
Mass.Adv.Sh. (1973) 1.
(FN33.)
Of course, utilization of the pen register depends on compliance with
the probable cause requirements of the Fourth Amendment.
(FN1.)
(September 30, 1974) 16 Cr.L.Rep. 2058.
(FNA.)
Mass.Adv.Sh. (1975) 719.