423 Mass. 546 | Mass. | 1996
Lead Opinion
After retrial, see Commonwealth v. Penta, 32 Mass. App. Ct. 36, 49 (1992), the defendant, Anthony Penta, was convicted of (1) trafficking in cocaine in excess of 200 grams, and (2) trafficking in cocaine in excess of twenty-eight grams.
After filing his appeal, the defendant obtained a stay of the appeal and filed a motion pursuant to Mass. R. Crim. P. 30 (a), 378 Mass. 900 (1979), to vacate his sentence on double jeopardy grounds. The defendant’s motion was denied. Appeal from that denial has been consolidated with the defendant’s appeal from his convictions.
Facts. The evidence at the second trial substantially was similar to that presented at the first trial and recited in detail in the Appeals Court’s opinion, Commonwealth v. Penta, supra at 37-40. We recite only the basic facts, supplementing when necessary in discussion of a particular issue.
Prior to Mueller’s arrival at the meeting on November 5, 1987, the police obtained another warrant arid again wired Mueller with a transmitter. Over the transmitter, the police heard discussion of the drug buy. They moved in and arrested the defendant while he was counting the money.
1. Failure of Mueller to appear and testify at trial. The defendant argues that his convictions must be reversed because he was unable to procure Mueller’s testimony at his retrial. The defendant alleges that Mueller’s failure to appear was due to obstruction by the prosecutor and therefore asserts his convictions must be reversed.
Because Mueller was not in the custody of the Commonwealth,
The defendant, nonetheless, claims that the Commonwealth is responsible for his inability to secure Mueller’s presence because of the Commonwealth’s unexecuted threat to Mueller of a perjury prosecution. The record does not support the defendant’s claim. The only “threat” made by the prosecutor was a request, made in open court at a hearing on reconsideration of the defendant’s motion to suppress, that Mueller be given notice under G. L. c. 268, § 4 (1994 ed.), that his inconsistent testimony in two judicial proceedings could result in prosecution for peijuiy.
2. Admissibility of evidence obtained through recording of transmissions received by transmitter attached to body of confidential informant. As part of a police investigation, State Trooper James R. White applied for and received authorization from the court to transmit and record conversations between then-confidential informant, Jeffrey Mueller, and the defendant by means of a transmitter secreted on Mueller. On two dates in October, 1987, White obtained warrants, issued under the authority of G. L. c. 276, §§ 1 et seq.
General Laws c. 272, § 99 B 4 (1994 ed.), defines the term “interception” for purposes of § 99. It provides that “it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.” “[Designated offense” is defined in § 99 B 7 to include, inter alla, any offense involving the possession or sale of a narcotic or harmful drug in connection with organized crime as defined in the preamble. In the preamble, organized crime is defined as consisting of “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” See Commonwealth v. Thorpe, 384 Mass. 271, 281 (1981), cert, denied, 454 U.S. 1147 (1982). The record reveals that Trooper White received prior authorization from Mueller, a party to the conversation, to record the conversation and that the recording and transmission was made in the course of an investigation of a designated offense, see Commonwealth v. Penta, supra at 43. We conclude, therefore, that the exception in G. L. c. 272, § 99 B 4, applies.
The defendant maintains that, even assuming a warrant under G. L. c. 277, § 99, was not required, the warrants that did issue were not valid as they purported to issue under the authority of G. L. c. 276, art. 14 of the Massachusetts Declaration of Rights, and the common law and none of those sources authorizes the seizure of oral communications through use of a hidden transmitter.
It is under the common law authority of Commonwealth v. Blood, 400 Mass. 61 (1987), and its progeny that the Commonwealth justifies the seizure of oral communications pursuant to a warrant issued under G. L. c. 276, §§ 1 et seq. In Blood, this court held that art. 14 protected conversants’ reasonable subjective expectations of privacy and therefore, prohibited the warrantless surreptitious transmission and rec
A warrant obtained in compliance with G. L. c. 276 serves the purpose of art. 14 by subjecting police information to the scrutiny of “a neutral and detached magistrate instead of [leaving them to be] judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Blood, supra at 73, quoting Johnson v. United States, 333 U.S. 10, 14 (1948). Such a warrant fulfils the Legislature’s mandate that the secret “use of [modem electronic surveillance] devices by law enforcement officials must be conducted under strict judicial supervision.” G. L. c. 272, § 99 A (preamble). We, therefore, hold that, when law enforcement officials seek to transmit and record oral communications pursuant to the one-party consent exception of G. L. c. 272, § 99 B 4, they may do so under authority of a warrant pursuant to G. L. c. 276 and the common law. The form of warrant obtained in this case was adequate to protect the defendant’s constitutional rights. We have never incorporated the procedures and requirements of G. L. c. 272, § 99, into art. 14. Commonwealth v. Price, supra at 671 n.2, 674; Commonwealth v. Davis, 407 Mass. 1001, 1002 (1990). We do not do so now.
The defendant’s final argument relating to the validity of the warrants is that the warrants are invalid because the affidavits, applications, and warrants failed to state with
Search warrants must be reviewed in a commonsense, rather than hypertechnical, manner. Commonwealth v. Byfield, 413 Mass. 426, 430 n.6 (1992); Commonwealth v. Freiberg, 405 Mass. 282, 299-300, cert, denied, 493 U.S. 940 (1989). Common sense dictates that warrants for the seizure of oral communications not be limited in such a way as to preclude all flexibility and to endanger the safety of the informant or officer on whose body the transmitter is secreted. Cf. Freiberg, supra at 299 (where warrant applied for immediately after discovery of body police could not be expected to describe with detailed precision items to be seized; to hold otherwise would unreasonably thwart ability of police to investigate crime immediately after its occurrence). See also United States v. Bianco, 998 F.2d 1112, 1123 (2d Cir. 1993), cert, denied, 511 U.S. 1069 (1994) (Fourth Amendment should be read with a flexible interpretation to keep pace with a technologically advanced and modem society); United States v. Silberman, 732 F. Supp. 1057, 1061 (S.D.Cal. 1990), affd sub nom. United States v. Petti, 973 F.2d 1441 (9th Cir. 1992), cert, denied, 507 U.S. 1035 (1993) (same).
The warrants were limited to the seizure of face-to-face
3. Double jeopardy. The defendant claims that the principles of double jeopardy, embodied in the Fifth Amendment to the United States Constitution and the common and statutory law of this Commonwealth, are violated by his criminal prosecution, civil forfeiture of an automobile, and subsequent criminal retrial stemming from the same conduct. The defendant, therefore, urges this court to vacate his criminal conviction, as an impermissible second punishment for the same offense. We conclude, in accord with the most recent pronouncement from the Supreme Court of the United States, that civil forfeiture does not constitute punishment for double jeopardy purposes.
4. Admission in evidence of drugs and certificates of analysis. The defendant asserts that the judge committed error by allowing admission in evidence of drugs and a certificate of reanalysis of the drugs because the Commonwealth failed to establish the chain of custody of the drugs seized on November 5, 1987.
Judgments affirmed.
The Appeals Court had reversed the defendant’s prior convictions, concluding that the trial judge erred in allowing an informant, Jeffrey Mueller, to claim a privilege against self-incrimination under the Fifth Amendment to the United States Constitution and avoid testifying at Pen-ta’s first trial. Commonwealth v. Penta, 32 Mass. App. Ct. 36, 44-47 (1992).
Although the record before the court seems to indicate that both indictments charged the defendant with trafficking in cocaine in excess of twenty-eight grams, it is clear that on indictment no. 87-03109 the defendant was tried, convicted, and sentenced on an indictment charging trafficking in cocaine in excess of 200 grams.
The police arrested John Mele, the defendant’s cousin, approximately one block away. In a manila envelope on his person, Mele had 249.4 grams of cocaine.
On October 30, 1987, when the police obtained authorization for a “body wire” to be worn by Mueller, they also sought and obtained warrants to search the defendant’s home and car.
Mueller had ceased to cooperate with the Commonwealth more than five years prior to the second trial. The Commonwealth has had no communication with him since the summer of 1988.
General Laws c. 268, § 4 (1994 ed.), provides: “If it appears to a court of record that a party or a witness who has been legally sworn and examined, or has made an affidavit, in any proceeding in a court or course of justice has so testified as to create a reasonable presumption that he has committed perjury therein, the court may forthwith commit him or may require him to recognize with sureties for his appearance to answer an indictment for peijuiy . . . .”
It was proper for the prosecutor to request and for the judge to give this notice considering that Mueller had acknowledged that his testimony at the
We note that the order of the Aroostoclc County Superior Court of Maine requiring Mueller’s presence at trial expressly provided that Mueller “be given protection from arrest or the service of. process, civil or criminal, in connection with matters which arose before his entrance into said State pursuant to said summons.” Thus, there was no danger that Mueller’s presence at trial would result in his arrest for prior peijury.
Chapter 276 governs the issuance and return of search warrants. Section 1 provides, in part, that search warrants shall not be issued except on probable cause to believe that property or articles were obtained in the commission of a crime, a means or instrumentality of committing a crime, or possessed for an unlawful purpose. Section 1 further provides that “[n]othing in this section shall be construed to abrogate, impair or limit powers of
General Laws c. 220, § 2 (1994 ed.), provides: “The courts of the commonwealth and the justices thereof shall have and exercise all the powers necessary for the performance of their duties. They may issue all writs, warrants and processes and make and award judgments, decrees, orders and injunctions necessary or proper to carry into effect the powers granted to them, and if no form for such writ or process is prescribed by statute, they shall frame one in conformity with the principles of law and the usual course of proceedings in the courts of the commonwealth.”
The defendant argued prior to retrial and again argues before this court that the exception was inapplicable because the affidavit in support of the warrant failed to establish that (1) prior authorization was given; (2) to the law enforcement officer transmitting or recording the communication; (3) by a party to the communication; and (4) that the recording or transmission was done in the course of investigating a designated offense connected
The defendant does not and could not argue effectively that the seizure was invalid under the Fourth Amendment to the United States Constitution. See United States v. Caceres, 440 U.S. 741, 749-751 (1979); United States v. White, 401 U.S. 745, 748 (1971) (plurality opinion); Lopez v. United States, 373 U.S. 427, 437-438 (1963). See also Commonwealth v. Fini, 403 Mass. 567, 568 (1988); Commonwealth v. Thorpe, 384 Mass. 271, 282-283 (1981), cert, denied, 454 U.S. 1147 (1982).
General Laws c. 276, § 2, provides, in pertinent part: “Search warrants shall designate and describe the building, house, place, vessel or vehicle to be searched and shall particularly describe the property or articles to be searched for.”
Article 14 of the Massachusetts Declaration of Rights provides: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.”
The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The defendant makes no argument that G. L. c. 276 or art. 14 requires greater particularity than does the Fourth Amendment. We, therefore, do not review his claim separately under art. 14 or the statute. See Commonwealth v. Walsh, 409 Mass. 642, 644 (1991); Commonwealth v. Sheppard, 394 Mass. 381, 389 (1985).
On this holding, we need not decide whether the civil forfeiture in this case, coming after the criminal trial but before the retrial, would be the former or double jeopardy.
The defendant makes no independent claim that the Constitution or laws of this Commonwealth provide greater protection against double jeopardy than does the Fifth Amendment. See Luk v. Commonwealth, 421 Mass. 415, 416 n.3 (1995) (noting that in these circumstances the common law has not provided greater protection than Federal principles of double jeopardy).
As support, the defendant notes the differences in weight, purity, and consistency in the analyses of the cocaine admitted in the first trial and the second trial and the amount of time that passed between the original analysis and the reanalysis of the drugs.
Dissenting Opinion
(dissenting). I cannot agree with the court’s analysis as to the validity of a search warrant for electronic surveillance where the warrant was issued under G. L. c. 276, § 1 (1994 ed.), and not under G. L. c. 272, § 99 (1994 ed.).