Com. v. Blood

• Decision Date: 20 May 1987
• Citation: 507 N.E.2d 1029,400 Mass. 61
• Parties: , 55 USLW 2703 COMMONWEALTH v. James BLOOD (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1029

507 N.E.2d 1029

400 Mass. 61, 55 USLW 2703

COMMONWEALTH v. James BLOOD (and three companion cases ¹).

Supreme Judicial Court of Massachusetts Essex.

Argued Oct. 9, 1986.

Decided May 20, 1987.

Thomas C. Federico, Committee for Public Counsel Services, Boston, for James Blood.

Michael P. Cole, Saugus, for Ernest Lorenzen.

Robert J. Bender, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The defendants, James Blood and Ernest Lorenzen, were found guilty of conspiracy to break and enter a building and conspiracy to commit larceny. They assign as error the denial of their motions to suppress evidence gathered through warrantless electronic surveillance. ² They argue inter alia that, if suppression was not mandated by G.L. c. 272, § 99 (1984 ed.), the Massachusetts communications interception statute, suppression was nonetheless required by art. 14 of the Massachusetts Declaration of Rights. ³ We agree with the latter contention. Therefore we reverse the convictions.

These convictions arise out of an alleged conspiracy to break into a building of the Eastern Smelting & Refining Corporation (Eastern) in Lynn. The object of this scheme was a cache of gold bars stored on Eastern's premises and valued at approximately $3,000,000. The object was not achieved, however, because one of the alleged conspirators, Charles Hudson, was a police informant.

The facts concerning the electronic surveillance are not in dispute. On April 25, 1981, Hudson met with Detective Lieutenant John F. Burns, a State police officer then on assignment as a major crime investigator. The meeting took place in the Cambridge police station where Hudson was being held after his arrest on the previous night for an attempted breaking and entering. Lt. Burns and Hudson knew each other because, in 1979, Burns had investigated a fire which destroyed Hudson's home. This investigation led to the indictment of Hudson for arson with intent to defraud his insurance company. After a trial in March, 1981, Hudson was convicted. His sentencing was scheduled to follow within two weeks, and he was allowed to post bail. ⁴ Hudson was aware that the prosecution intended to request that he be sentenced to a lengthy term at the Massachusetts Correctional Institution at Walpole (now Cedar Junction). Fearing that he would be killed by other inmates, he failed to appear for sentencing. Thus, at the time of his arrest on the breaking and entering charge, he was being sought by the police because of his sentencing default.

At the meeting on April 25, Hudson offered to furnish information to Burns concerning his knowledge of past and future crimes if a deal could be arranged concerning the charges pending against him. Eventually, an arrangement satisfactory to both sides was worked out. During one of their meetings, Lt. Burns learned of Hudson's involvement with Novia Turkette, Jr. (Turkette). Turkette was suspected by Federal and State law enforcement officials to be the leader of a criminal organization operating principally on the North Shore. Hudson informed Burns that Turkette and others were planning various crimes, including the theft of gold from Eastern. On May 15, 1981, Hudson agreed to wear a concealed transmitter during meetings with Turkette and others involved in the alleged conspiracy , and he consented to having the transmissions recorded. No warrant was sought.

Hudson ultimately transmitted seven conversations, three of which were used by the prosecution at the trial of Blood and Lorenzen. The first recorded conversation admitted in evidence took place on May 18, 1981, at Lorenzen's home in Lynn. It involved Hudson, Lorenzen, Turkette, and Novia Turkette, Sr. (father). The principal purpose of the meeting was to secure Lorenzen's participation in the planned break into the Eastern plant. Lorenzen was at that time a Lynn police officer who served as the detail officer for the department. In that capacity, Lorenzen assigned police officers to various businesses and social functions. He explained the system of security cameras and their positioning throughout the Eastern plant. Turkette intended to cut an alarm wire outside the Eastern plant, which would summon the police. After the police arrived and concluded their investigation, a Lynn police officer would be assigned to guard the Eastern plant until the alarm was repaired. Lorenzen agreed to perform this role on the night of the break-in while the others entered the building from the rear.

The next recorded conversation introduced at trial took place at about 3:30 P.M. on May 27, 1981. ⁵ Hudson and Blood met with Turkette at his home in Peabody. Various aspects of that night's anticipated break-in were discussed, including Lorenzen's role and the best place to cut Eastern's alarm wire. In the early evening hours of May 27, Hudson and his wife went to Lorenzen's home. Lt. Burns followed in his automobile and recorded that meeting. Hudson informed Lorenzen that the "job" was set for later that night. Lorenzen assured Hudson that he would take the police detail himself when the telephone call came. He also told Hudson that a gold shipment had arrived at Eastern that afternoon. After leaving Lorenzen's house, Hudson met with Burns to complete the plan for that evening.

Shortly afterward, Hudson, Blood, Walter Woodyatt, Turkette, and Dorothy Teague met at the home of Turkette's sister in Lynn. Taking two cars, they drove to a hotel a short distance from the plant. Just before 10 P.M., Turkette and Woodyatt entered the grounds of the Eastern plant. They cut the alarm wire, which emitted a signal monitored at the Wells Fargo Alarm Services in Chelsea. Meanwhile, Teague sat in her automobile listening to a police scanner radio while Hudson and Blood kept watch from a nearby parking lot where they could observe the Eastern plant. After the signal was received at Wells Fargo, police were notified to go to Eastern to investigate. There were no indications of a break-in. A telephone call was placed to Lorenzen to dispatch an off-duty officer to Eastern to secure it until the wire could be repaired. As planned, Lorenzen arrived to watch the front of the building. On observing too much police activity near Eastern, however, the conspirators abandoned their effort.

On July 27, an Essex County grand jury returned indictments against Blood and Lorenzen charging them with conspiracy to break and enter a building in the nighttime with an intent to commit a felony and conspiracy to commit larceny. Each indictment identified Dorothy Teague, Walter Woodyatt, Novia Turkette, Jr., and Novia Turkette, Sr., "or any of them" as coconspirators. In October, 1981, all the alleged coconspirators, with the exception of the Turkettes, filed motions to suppress evidence of the electronic surveillance. The motions were heard over eight days between November 20 and December 8, 1981. On February 22, 1982, the judge denied the motions to suppress with regard to four conversations recorded with the consent of a participant and granted the motions with regard to three recordings found to violate G.L. c. 272, § 99. The cases of Blood and Lorenzen were tried together before an Essex County jury. The jury returned guilty verdicts on the indictments in February, 1983.

At issue in this appeal is the sufficiency, in light of art. 14, of that portion of the statutory design which renders admissible the evidentiary fruits of warrantless electronic surveillance of organized crime where police have obtained the consent of at least one, but not each, party to a conversation. The statute in question is G.L. c. 272, § 99, as appearing in St.1968, c. 738, § 1. ⁶ Section 99 P of c. 272 allows defendants in criminal cases to move to suppress the contents of any electronically intercepted wire or oral communication or any evidence derived therefrom if the communication was "unlawfully intercepted" or "not intercepted in accordance with the terms of this section." The secret transmission or recording of oral communications without the consent of all parties is generally proscribed by § 99. See §§ 99 C 1 and 99 B 4.

But there are two exceptions applicable where electronic surveillance is performed by State or local police when investigating statutorily designated offenses related to organized crime. ⁷ First, the statute exempts from its ban on nonconsensual eavesdropping all acts of electronic surveillance performed pursuant to a warrant in conformance with §§ 99 F--99M. See § 99 D 1. Second, in the absence of a warrant, such acts are excepted from the definition of a proscribed "interception" if performed by an officer who is himself a party, or who has the consent of a party, to the conversation. See §§ 99 B 4 and 99 C 1.

Thus, because the statute does not outlaw surveillance of organized crime involving statutorily designated offenses where investigators have either a warrant or "one party consent," the fruits of surveillance so conducted are not statutorily suppressible. The defendants concede that warrantless surveillance with "one party consent" has been held to lie beyond the protective reach of the Fourth Amendment to the United States Constitution. See United States v. Caceres, 440 U.S. 741, 750-751, 99 S.Ct. 1465, 1470-1471, 59 L.Ed.2d 733 (1979), relying on United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971). ⁸ But they argue, and we agree that it remains an open question whether such surveillance lies within the scope of art. 14. See Commonwealth v. Thorpe, 384 Mass. 271, 285-286, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). ⁹

When we confront the question whether police activities amount to a search or seizure within the meaning of art. 14, we ask "whether the defendants' expectation of privacy [in the circumstances] is one which society could...