Supreme Judicial Court (April 8, 2011)

The defendant's electronically-intercepted statements regarding a drive-by murder were inadmissible, as that homicide did not occur "in connection with organized crime" as required by the wiretap statute, G. L. c. 272, § 99 B 4 and 7.

On the night of May 21, 2007, Brockton Police responded to a drive-by shooting and found the driver of a Nissan Altima dead at the wheel from gunshot wounds. At the scene, police recovered numerous spent cartridges from several different weapons. An eyewitness told the police that a Chevrolet Malibu Max with three men inside sped by just after the shots were fired, and provided other details that quickly led police to the Malibu. An informant told the police that the defendant Tavares was the likely shooter and provided numerous details about him, his associates and their criminal histories. The informant also chronicled the defendant's activities on the night of the crime and his incriminating statements following the murder.

Based on this information, the police sought a general warrant, pursuant to G.L. c. 276 §§ 1-7, to intercept the defendant's conversations by wiretap. A District Court judge granted the warrant. The police outfitted the informant with a concealed recording device, which led to the interception of several conversations where the defendant made additional inculpatory remarks. The Grand Jury subsequently indicted him for murder and related offenses.

Procedural History
Prior to trial, the defendant moved to suppress the admission of his intercepted statements, and a judge of the Superior Court granted his motion. The Commonwealth sought leave for an interlocutory appeal, which was granted by a single justice of the SJC.

The Massachusetts wiretap law, first crafted in 1920, was substantially overhauled in 1968 to reflect the recommendations of the legislature's 1964 Special Commission on Electronic Eavesdropping. This Commission's mandate was to "ensure that unjustified and overly broad intrusions on rights of privacy are avoided." Commonwealth v. Vitello, 367 Mass. 224, 231 (1975); Report of the Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132. In its report to the legislature, the Commission recommended amending the wiretap law to prohibit nonconsensual electronic surveillance by individuals and the police but preserve the tools that law enforcement needed to investigate "organized crime" enterprises which operated, in the Commission's view, "through layers of insulation and behind a wall of secrecy." Commonwealth v. Thorpe, 384 Mass. 271, 280 n. 7 (1981).

The legislature, in its resulting 1968 legislation, adopted the Commission's recommendations. Specifically, the amended law barred non-consensual electronic surveillance conducted by private individuals, and limited wiretapping to police investigations into certain "designated offenses . . . committed in connection with organized crime." G. L. c. 272, § 99 B 4 and 7. See Commonwealth v. Long, 454 Mass. 542, 553 (2009). The statute's preamble defines "organized crime" as a "continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." G. L. c. 272, § 99 A. The statute distinguishes ordinary crime (where wiretapping is impermissible) from "organized crime" by requiring proof of a "high degree of discipline and organization" required to plan and coordinate the criminal activity, Commonwealth v. D'amour, 428 Mass. 727, 737 (1999); the Commonwealth must do more than prove a mere "coordination of efforts among cohorts." Commonwealth v. Long, 454 Mass. 542, 557 (2009). And because most criminal ventures have monetary objectives, the Commonwealth, in order to satisfy the definition of organized crime, must offer "some evidence of an ongoing illegal business operation." Commonwealth v. Long, supra, citing Commonwealth v. Thorpe, 384 Mass. at 277 n.6.

The question in this case was whether the Brockton drive-by murder, which is a "designated offense" under G. L. c. 272, § 99 B 7, was also committed in connection with organized crime. The Commonwealth argued that all the facts led to a reasonable inference of a disciplined, organized criminal venture: the shooting was a planned, coordinated execution; the defendant and his confederates had a rented, regular meeting location; there was a rough hierarchical authority among the members; the group successfully evaded the police and disposed of the murder weapon; and all members carried guns which they routinely used for criminal activity. The Court rejected those arguments, noting that the affidavit in support of the search warrant failed to offer any evidence of an ongoing, disciplined business operation; no evidence that the defendant and his cohorts supplied illegal goods or services; no evidence of a pecuniary enterprise (such as trafficking in illegal goods); and no evidence of a highly organized and disciplined venture. The Court accordingly upheld the Superior Court order suppressing the interceptions:

"In sum, while street gangs that coordinate to commit violent acts may otherwise qualify as organized criminal entities, a member of a group or gang, like any other citizen of the Commonwealth, may not be surreptitiously wiretapped unless law enforcement meets its burden of demonstrating an objectively reasonable suspicion that the group has committed a designated offense in pursuit of organized efforts to supply illicit goods or services." G. L. c. 272, § 99 A, B 4, and C.

Justice Gants, joined by Justice Cowin, concurred in this opinion but noted the importance of wiretapping as a public safety tool in investigating and prosecuting street gangs, and urged the legislature to amend the statute to remove the words "in connection with organized crime."