COMMONWEALTH vs. RALPH F. VITELLO (and eleven companion cases¹)
Supreme Judicial Court of Massachusetts
April 1, 1975
367 Mass. 224
Suffolk. November 4, 1974. — April 1, 1975.
Present: TAURO, C.J., REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN, & WILKINS, JJ.
The denial of the defendant‘s motion to put the special questions to the prospective jurors was not a denial of due process under the
Exceptions overruled.
Search and Seizure. Practice, Criminal, Warrant, Fair trial. Evidence, Telephone conversation, Spectrograph. Eavesdropping. Disclosure of Communication. Statute, Preemption. Witness, Expert witness. Pleading, Criminal, Indictment.
Guidelines stated with respect to applications for wiretap warrants under
Under Commonwealth v. Lykus, ante, 191 (1975), there was no error at a criminal trial in admitting in evidence the opinion of an expert based on spectrogram comparative analysis, commonly called voice print identification, that recorded voices of the defendants were the voices of unknown individuals previously recorded on tapes of telephone conversations intercepted pursuant to wiretap warrants. [233-234] KAPLAN, J., dissenting.
Where an expert testified at a criminal pre-trial voir dire hearing only in a theoretical way as to the reliability of voiceprint evidence and had no personal knowledge related to the issues and stated that he would be unavailable at the trial, there was no error in the denial of the defendants’ requests for a continuance until the expert became available or for an order that he keep himself available. [234]
This court concluded by an “independent evaluation of the circumstances” of the trial of defendants convicted of violations of gaming laws that the jury stood indifferent and unaffected by almost a year of frequent and vigorous pre-trial newspaper publicity where the trial judge took strong measures to hold “a trial by an impartial jury free from outside influences,” including detailed questions and instructions to prospective jurors collectively directed to the publicity issue, and the jurors seated were sequestered; there was no error in the judge‘s refusals to question each prospective juror individually, to put to the venire special questions, to direct the venire‘s attention to matters not part of the Commonwealth‘s case, or to continue the trial or transfer it to another place. [236-239]
Upon an indictment under
Conviction of a defendant upon an indictment under
This court concluded that the Federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, examined in whole, meets the requirements of the
The Massachusetts wiretap statute,
Under
The provisions of
The provision of
The absence from
The requirement of
The provisions of
Service of an attested copy of a wiretap warrant, pursuant to
Where the defendants were convicted of Massachusetts crimes clearly falling within offenses designated in the Federal wiretap statute, it was held that the defendants were without standing to claim that the Massachusetts wiretap statute on its face exceeds the scope of the Federal statute in that it allows for the use of electronic surveillance in crimes not designated in
Where a wiretap warrant stated its date of issuance and provided that the applicant could forthwith “tap and make connection with any and all wires leading to the telephone instrument as of this
Where an application for a wiretap warrant contained an adequate statement of the termination date, and the supporting affidavit was sworn to by an officer involved in executing the warrant, but the termination date was omitted from the warrant through error and inadvertence, it was held that the warrant and the application could be read together, and that, so read, the warrant was properly limited in its duration. [271-274]
Where the return on a wiretap warrant was made two days later than the time mandated by
In the circumstances, the requirement of
Where a wiretap warrant stated that “circumstances of exigency” required postponement of service of a copy of the warrant, and the issuing judge reviewed the criminal activity under investigation, in effect he determined that “important special facts” warranted such postponement, and the requirements of
In a criminal case involving wiretapping, although the tapes were not sealed exactly in accordance with the statutory requirements, there was no error in admitting evidence derived from the wiretaps; sealing is a ministerial function and the defendants did not show any prejudice. [277-278]
Where valid wiretap warrants were outstanding authorizing the use of “necessary and proper systems to (i)ntercept ... [the] communications transmitted” from a certain telephone line, use of a pen register to record on tape the numbers dialed from that line was permissible without obtaining a separate order. [278-279]
TWELVE INDICTMENTS found and returned in the Superior Court, eleven on June 2, 1972, and one on June 21, 1972.
Pre-trial motions to suppress evidence were heard by Roy, J., and the cases were tried before him.
Francis J. DiMento (Thomas C. Cameron with him) for the defendants.
John T. Gaffney, Assistant District Attorney & Thomas E. Dwyer, Special Assistant District Attorney, for the Commonwealth.
HENNESSEY, J. The defendants were convicted after a jury trial on indictments charging them with violations of various gaming laws.2 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.
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 Massachusetts wiretap statute,
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
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.
First, with respect to special designation of assistant attorneys general and assistant district attorneys (
Second, an application for a wiretap warrant in addition to being drafted in accordance with the provisions of
Third, pursuant to
Fourth, in light of our construction of
Fifth, in accordance with the provisions of
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 Michigan State police, were admitted in
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 (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. United States, 293 Fed. 1013 (D. C. Cir. 1923). There was no error. The opinions of Lt. Nash were properly received in evidence, under reasoning as shown in our opinion in Commonwealth v. Lykus, ante, 191 (1975).
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 Italy during the time of the jury trial of these indictments. Aware of this fact, the judge nevertheless declined to continue the trial, on motions of the defendants, until such time as Dr. Tosi would be available.
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 Washington v. Texas, 388 U. S. 14, 19 (1967), wherein the Supreme Court ruled that the right of a defendant to present witnesses to establish a defense is “a fundamental element of due process of law.” The defendants also rely on similar language in Chambers v. Mississippi, 410 U. S. 284, 294-295 (1973), and White v. State, 517 S. W. 2d 543 (Tex. Crim. App. 1974).
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.
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. Boston Redevelopment Authy., 341 Mass. 377, 379-380 (1960). Fifty-Five Mkt. St. Inc. v. Lynn Redevelopment Authy. 354 Mass. 758 (1968).
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 U. S. 333, 362 (1966). Cf. Commonwealth v. Geagan, 339 Mass. 487 (1959), cert. den. 361 U. S. 895 (1959). Our “independent evaluation of the circumstances,” as required of appellate courts by the Sheppard case, shows that the judge took “strong measures to ensure that the balance ... [was not] weighed against the accused.” 384 U. S. at 362 (1966).
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 jurors, 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.
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 (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.
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
The assertions of the defense as to pre-trial 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. Subilosky, 352 Mass. 153, 158 (1967). See A. B. A. Standards Relating to Fair Trial and Free Press, § 3.4 (1968).
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 Mass. 604, 612 (1971), affd. sub nom. Branzburg v. Hayes, 408 U. S. 665, 672 (1972).4 Assuming that, as the defendants assert, a “much higher standard prevails” where pre-trial publicity is accomplished by design of the prosecutor (Henslee v. United States, 246 F. 2d 190, 193 [5th Cir. 1957]), no prejudice has been demonstrated here where the jury were shown, by specific measures, to stand indifferent. Nor is there anything before us, other than the bald assertion by defense counsel, to show that the reporter‘s
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
General Laws
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.
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,
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
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 “pick-up” 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.
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 against 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. United States, 277 U. S. 438 (1928), the Supreme Court held that wiretapping did not constitute a search within the meaning of the
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 devices.” 388 U. S. at 58, 59 (1967). However, the court indicated that wiretapping might be constitutionally permissible if conducted under rigid Fourth Amendment controls,1 that is “under the most precise and discriminate circumstances, circumstances which fully met the ‘requirement of particularity‘” of the
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.2 As stated in the legislative
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,4 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.5 Since it would be superfluous for us
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.6 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.
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,7 that intent may be gleaned from the broad scope of
Pursuant to
D. Limited Requirements for State Statute.
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.12 It does not follow that if the State statute is found repugnant to Title III in certain particulars all warrants issued thereunder are as matter of course invalid.
Thus, if certain provisions of the Massachusetts wiretap statute fail to meet the requirements of the Federal act, 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.
E. The Question of Preemption.
Given the express grant of enabling power to the States in
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 preempted 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 U. S. 132, 142 (1963). A State statute would be preempted where the State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hines v. Davidowitz, 312 U. S. 52, 67 (1941). Goldstein v. California, 412 U. S. 546, 560-561 (1973). Cf. Bloom v. Worcester, 363 Mass. 136, 151-152 (1973). Preemption, however, is not to be lightly inferred where Congress has allowed for concurrent State regulation as long as the State statute is substantially similar in design and effect to the Federal enactment or where the State statute is, according to congressional directive, more restrictive. Askew v. American Waterways Operators, Inc. 411 U. S. 325 (1973).
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).
F. The State Statute Complies with the Federal Requirements.
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.14
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.15
The Massachusetts statute,
The defendants argue that this is an improper delegation of authority and is in conflict with
Our attention is directed to the difference between the provisions of
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
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.
We do not think that the term “apply” in
The Senate Report, which analyzes section by section the provisions of Title III, with respect to
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.” United States v. Giordano, 416 U. S. 505, 515 (1974). In order to ensure that restraint, the authority to seek wiretap orders should be restricted to those State authorities who, on reasoned judgment, may determine whether as matter of uniform law enforcement policy within their jurisdiction the initiation of wiretap procedures are proper and required. The determination at this level is more than a matter of necessity in the search for evidence, it is a matter of policy (United States v. Tortorello, supra, at 777), a policy to be established and uniformly enforced on a jurisdictionally wide level, in this Commonwealth on a county-wide basis.
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
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.
We construe the provision for special designation16 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.
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 (1974). In that case, contrary to the express provisions of
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 (1973) (district attorney need not personally appear before
Our review of the State statute 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
(2) Authorized Thirty-day Period.
Section
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
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. Cf. Commonwealth v. Cromer, 365 Mass. 519 (1974). Construed in this manner, the thirty-day outside limit on authorized time of interception is closely circumscribed while allowing for a reasonable time in which mechanical installation can be made.
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
Section
(5) Execution as Soon as Practicable.
In defining the specifics that must appear in the order,
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, 365 Mass. 519, 522-523 (1974). Cf.
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
(6) Minimization.
In addition to the requirement that the order contain a provision that the authorization to intercept be executed as soon as practicable,
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 (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.21 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. United States v. Cox, 462 F. 2d 1293 (8th Cir. 1972), cert. den. 417
We note that
affirmative and express grant of authority to intercept communications, particularly described, necessarily implies the exclusion of nonmaterial conversations.
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.”
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 United States v. Manfredi, 488 F. 2d 588, 598 (2d Cir. 1973), cert. den. 417 U. S. 936 (1974), it was held that the wiretap orders were not “vitiated by virtue of omission of the talismanic minimization language.” The court reasoned that it was proper to read the orders and the supporting affidavits together and that in any event minimization was in effect “a summation of the more specific requirements” relating to the particularity with which the warrant described the communication to be intercepted.23 In United States v. Cirillo, 499 F. 2d 872, 880-881 (2d Cir. 1974), cert. den. 419 U. S. 1056 (1974), the court termed omission of the minimization directive a “technical defect” where the officers conducting the wiretaps were aware of the minimization requirement and abided by it. Knowledge of the minimization requirement, the court reasoned, could be inferred from the supporting affidavits which, in particularly describing the conversation sought to be intercepted, evinced an actual knowledge of the minimization requirement.24 (The inference was made although the supporting affidavits contained no specific agreement to limit the seizure of conversations.) Thus the court held that omission of minimization language from a wiretap order, otherwise in compliance with the applicable statute, would not render the warrant invalid. A similar analysis would in our opinion apply to the absence of the express phrase “minimization” in our State statute.
As the plethora of Federal cases on minimization illustrates, the purpose of including the minimization
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
However, with respect to the requirement for prompt return to the issuing judge, the State statute is not in conflict with
Nor is the State statute for preserving the recording inconsistent with the Federal requirement of sealing.
(8) Inventory.
Contrary to the defendants’ claim, we find that service of an attested copy of the warrant, pursuant to
(9) Designated Offenses.
The defendants are without standing to raise the claim that the Massachusetts statute on its face exceeds the scope of
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
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.
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.” United States v. Giordano, 416 U. S. 505, 524 (1974). In that regard, suppression is required, not in all instances, but where there has been a “failure 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.” Id. at 527. In resolving this issue, the court‘s inquiry should be directed toward determining, among other things, whether the particular procedure involved is a central or functional safeguard to prevent abuses in electronic surveillance as opposed to a procedural or reporting mechanism (United States v. Chavez, 416 U. S. 562, 578 [1974]); whether the purpose that the particular procedure was designed to effect has been accomplished in spite of the error (id. at 575); and,
(1) Termination Dates.
The April 24, 1972, warrant 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 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.
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 proposed 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 absence 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
In Commonwealth v. Todisco, 363 Mass. 445 (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.27 See Commonwealth v. Pope, 354 Mass. 625 (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. Cf. Commonwealth v. Stevens, 362 Mass. 24 (1972); Commonwealth v. Snow, 363 Mass. 778 (1973); United States v. Ventresca, 380 U. S. 102 (1965); United States v. Desist, 384 F. 2d 889 (2d Cir. 1967), affd. 394 U. S. 244 (1969). That the warrants in the instant cases involved the interception of wire or oral communications does not mean that the warrants are of a novel genre to which previously established law is inapplicable. We agree with the decision of the Court of Appeals which in United States v. Manfredi, 488 F. 2d 588, 598 (2d Cir. 1973), cert. den. 417 U. S. 936 (1974), held that both the order and the supporting affidavits are to be read in “a commonsense and realistic fashion,” quoting from United States v. Ventresca, supra, at 108.
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
State v. Christy, 112 N. J. Super. 48, 74-76 (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
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.
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. New York, 388 U. S. 41, 59 (1967). However, we are of the view that, in the circumstances of these cases, that protection was fully assured.
(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.
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.30 We base this conclusion on two grounds. First, as we stated in Commonwealth v. Cromer, 365 Mass. 519, 521, fn. 3 (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 not 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., United States v. Smith, 463 F. 2d 710, 711 (10th Cir. 1972); United States v. Wolk, 466 F. 2d 1143 (8th Cir. 1972); United States v. Cafero, 473 F. 2d 489, 499 (3d Cir. 1973), cert. den. 417 U. S. 918 (1974);
The defendants have made no claim that they were in any way prejudiced by the delay in the return. Commonwealth v. Cromer, 365 Mass. 519, 521, fn. 3 (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.” United States v. Giordano, 416 U. S. 505, 527 (1974).
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
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.
Finally, the defendants claim that the recordings 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 (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 United States v. Falcone, 508 F. 2d 478 (3d Cir. 1974). We note that the defendants have not shown any prejudice in this regard and we think that total exclusion of all evidence obtained is a
(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
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.33 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).
KAPLAN, J. (dissenting). I refer to my separate opinion in Commonwealth v. Lykus, ante, 191 (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.