Com. v. Glavin

• Decision Date: 27 March 1968
• Citation: 354 Mass. 69,235 N.E.2d 547
• Parties: COMMONWEALTH v. Robert C. GLAVIN
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 547

235 N.E.2d 547

354 Mass. 69

COMMONWEALTH v. Robert C. GLAVIN.

Supreme Judicial Court of Massachusetts, Worcester,

Argued March 4, 1968.

Decided March 27, 1968.

Arnold W. Olsson, Worcester (John Linzee, Berlin, with him), for defendant.

Manuel Morse, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

The defendant was tried on indictments charging him with murder in the first degree and carrying firearms without authority. The jury returned verdicts of guilty on both indictments with a recommendation that the sentence of death be not imposed. The trial was held subject to G.L. c. 278, §§ 33A--33G, and the cases are here by appeals.

The defendant filed three assignments of error. Each of these relates to the denial of his motions to suppress various items of 'evidence and information,' on the grounds that they were obtained (assignment 1) 'as a result of the use of wire tapping devices in violation of Mass.G.L. (c.) 272, Sec. 99, Texas Code of Criminal Procedure, Chapter 722, Art. 38.23, Federal Statute, 47 U.S.C. 605, and the Constitution of the United States, Amendments IV and V'; (assignment 2) 'without warrant by an unreasonable search and seizure in violation of the Constitution of the United States, Amendment IV'; and (assignment 3) 'from the defendant in violation of the Constitution of the United States, Amendment VI, while the defendant was deprived of the assistance of counsel.' The defendant made one motion to suppress which was denied, without prejudice, after hearing, several months before the trial. A second motion to suppress was heard at the trial and also denied. In ruling on both motions, the judge heard testimony on voir dire and made findings of fact.

A complaint charging the defendant with murder, and a warrant for his arrest, were issued by the District Court in Worcester on May 16, 1966. ¹ On May 17, 1966, the district attorney applied for an order under G.L. c. 272, § 99, authorizing Worcester police officers to tap the telephone of one Karen Nylen. The order was issued on the same day. After the wiretap was in effect, the defendant telephoned Karen Nylen from San Antonio, Texas, five to seven times. The Worcester police, by intercepting these calls, discovered that the defendant was in San Antonio. They subsequently informed the Bexar County, Texas, sheriff's office of the defendant's presence in San Antonio, and sent to the sheriff's office a description of the outstanding complaint and a photograph of the defendant. The sheriff's officers in San Antonio asked the local telephone company to inform them of any calls between that city and Worcester. When, on May 23, 1966, the defendant telephoned Karen Nylen from a booth at the San Antonio YMCA, he was arrested in the booth within a few minutes of placing the call. The defendant was taken by the arresting officers past the desk of the YMCA. The desk clerk 'had a bag, bowling bag' and the defendant 'stated that was his bag.' One of the officers asked the defendant if he 'wanted the bag,' and he said, '(Y)es.' The clerk handed the bag to one of the officers. It contained a .22 calibre pistol (identified at the trial as the murder weapon), ammunition, clothing, and various papers which were later admitted in evidence. These items constitute the tangible evidence which the defendant seeks to suppress. Subsequently, the defendant was taken before a Texas court where he waived rendition proceedings. The defendant was then returned to the Commonwealth in the company of two Worcester police officers.

The defendant contends that the wiretap in Massachusetts and the telephone interception in Texas were in violation of applicable State statutes, and that G.L. c. 272, § 99, is unconstitutional. In support of the latter proposition the defendant cites Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040. He further argues that 'Without the tap the person and property of * * * (the defendant) would not have been seized.' Under the so called 'exclusionary rule' of Mapp v. State of Ohio, 367 U.S. 643, 655, 657, 81 S.Ct. 1684, 69 L.Ed.2d 1081, it is argued, the pistol and other items were evidence derived from an unlawful search and were 'branded with the initial taint.' Commonwealth v. Spofford, 343 Mass. 703, 707, 180 N.E.2d 673.

We do not agree. A valid warrant, supported by evidence of probable cause, was issued before the wiretap was instituted. Even if we assume that there was some defect in the wiretap, we cannot perceive how this evidence was thereby tainted. 'We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged...