11 N.E.3d 86
Mass.2014Background
- Defendant was involved with a drug-distribution group (“Team Supreme”) implicated in a feud that culminated in a drive-by shooting that killed Troy Pina.
- A cooperating witness (a member of Team Supreme) was arrested on an unrelated firearms charge and agreed to cooperate in the murder investigation by making recorded calls to the defendant; police authorized and directed him to attempt to elicit information about the murder.
- The cooperating witness instead focused the recorded phone call on the unrelated firearms matter and did not obtain admissions about the murder; police neither sought nor obtained an electronic-surveillance warrant under G. L. c. 272, § 99 F.
- Defendant moved to suppress the recorded call under Massachusetts’ electronic surveillance statute, arguing the recording was an “interception” because it was not made "in the course of an investigation of a designated offense" when the witness failed to elicit murder-related information.
- The Superior Court allowed suppression, finding the witness had “hijacked” the call for his own purposes and therefore the recording was not in the course of the murder investigation.
- The Commonwealth appealed; the Supreme Judicial Court considered whether good-faith police instructions to elicit information about a designated offense make a recording fall within the one-party consent exception even if the cooperating witness does not follow those instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a recorded call is "in the course of an investigation" under G. L. c. 272, § 99 B 4 when officers in good faith instruct a cooperating witness to elicit information about a designated offense but the witness instead discusses an unrelated crime | Commonwealth: Officers’ good-faith instruction to elicit info about the designated offense makes the call within the one-party consent exception regardless of witness’s actual questions | Defendant: Because the cooperating witness did not attempt to elicit murder-related information, the call was not "in the course of" the murder investigation and thus was an interception requiring a warrant | Court: The officers’ investigative purpose controls; where instructions were given in good faith, the call was made in the course of the designated-offense investigation even if the witness failed to elicit such information |
| Whether there was reasonable suspicion that the murder was connected to organized crime (a statutory prerequisite for using the one-party consent exception) | Commonwealth: Evidence of an organized drug-distribution enterprise (Team Supreme), coordinated violence, cover-up, and inter-group feud supported reasonable suspicion of an organized-crime nexus | Defendant: Argued insufficient nexus to organized crime to qualify murder as a designated offense for § 99 B 4 | Court: Evidence (drug enterprise, multiple participants in killing and cover-up, history of violent feud) supported reasonable suspicion that the murder was connected to organized crime |
Key Cases Cited
- Commonwealth v. Blood, 400 Mass. 61 (1987) (warrant requirement for secret recording of in-home private oral communications under art. 14)
- Commonwealth v. Isaiah I., 448 Mass. 334 (2007) (standard for supplementing judge's findings with uncontroverted record evidence)
- Commonwealth v. Tavares, 459 Mass. 289 (2011) (one-party consent exception: insufficient evidence of organized-crime nexus for a drive-by shooting)
- Commonwealth v. Hearns, 461 Mass. 707 (2012) (affidavit sufficient to support reasonable inference that shooting was connected to organized crime)
- Commonwealth v. Thorpe, 384 Mass. 271 (1981) (reasonable-suspicion burden for interception to show nexus to organized crime)
- Commonwealth v. Long, 454 Mass. 542 (2009) (requires evidence of ongoing illegal business operation to show organized crime)
- United States v. Caceres, 440 U.S. 741 (1979) (one-party consent surveillance outside Fourth Amendment protection)
- Commonwealth v. Scott, 440 Mass. 642 (2004) (appellate review: accept subsidiary findings absent clear error; independent review of legal conclusions)
- Commonwealth v. Jimenez, 438 Mass. 213 (2002) (same principles on review of suppression rulings)