Com. v. Thorpe

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation384 Mass. 271,424 N.E.2d 250
Parties, 27 A.L.R.4th 430 COMMONWEALTH v. Francis THORPE.
Decision Date05 August 1981

Page 250

424 N.E.2d 250
384 Mass. 271, 27 A.L.R.4th 430

Francis THORPE.
Supreme Judicial Court of Massachusetts, Middlesex.
Argued April 7, 1981.
Decided Aug. 5, 1981.

Page 251

[384 Mass. 272] Edward J. McCormick, III, Westwood, for the defendant.

Frederick W. Riley, Asst. Atty. Gen., for the Commonwealth.

Before [384 Mass. 271] HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and NOLAN, JJ.

[384 Mass. 272] HENNESSEY, Chief Justice.

This case involves the construction of the Massachusetts communications interception statute, G.L. c. 272, § 99, as appearing in St.1968, c. 738, § 1. Prior to trial in the Superior Court on the charge of corrupting a municipal official under G.L. c. 268A, § 2(a)(2), the defendant Francis Thorpe moved, pursuant to G.L. c. 272, § 99 P, to suppress certain tape recordings of conversations between himself and the Commonwealth's chief witness. After a hearing, the judge denied the motion. Thorpe sought and was granted leave to file an interlocutory appeal. See Mass.R.Crim.P. 15(b)(2), 378 Mass. --- (1979). We affirm the denial of the motion to suppress.

We summarize the background as set forth in the judge's memorandum of decision. The Commonwealth expects to prove at trial that Thorpe, a former police officer retired on disability, offered to sell a copy of a police sergeant's promotional examination to David McCue, a Wilmington police officer planning to take the October 21, 1978, examination.

On October 6, 1978, Thorpe telephoned McCue, who recognized Thorpe's voice. Thorpe ascertained that McCue was studying for the sergeant's examination and said that the examination was available to Thorpe through an organization headed by a woman. He offered to sell McCue the examination for $4,000 and said he would meet McCue on October 10, 1978.

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McCue immediately contacted the Wilmington town manager and town counsel, who decided to report the matter to the Attorney General's office. With the cooperation [384 Mass. 273] of that office and the State police, plans were made to record subsequent conversations between McCue and Thorpe. No attempt was made to obtain a warrant under the procedure outlined in G.L. c. 272, § 99. The town manager decided that Officer McCue, as part of his regular duties for the town of Wilmington, would work with the Attorney General's office and the State police on the investigation of Thorpe, and so informed the chief of the Wilmington police department. 1

On October 9, 1978, the day before the scheduled meeting with Thorpe, a State trooper outfitted McCue with a "Kel Kit," a short-range radio transmission device secreted on the body and designed to transmit to a receiver, here operated by a State trooper who would tape record any conversation. Thorpe did not show up at the October 10, 1978, meeting. Arrangements were then made for McCue to record his telephone conversations with Thorpe. Using the recording equipment supplied by the State police, McCue recorded approximately eight telephone conversations with Thorpe, either from McCue's home in Wilmington or from an electronic equipment room at the Attorney General's office, from October 12 to November 6, 1978. He also recorded two face-to-face meetings with Thorpe on October 20, 1978, using the Kel Kit. The thrust of the various recorded telephone conversations was when and how McCue would receive the examination, and whether a price lower than $4,000 would be acceptable. During the first recorded conversation, Thorpe said he would have to get back to "her," presumably the woman heading up the organization he had referred to earlier, before he could make any definite arrangements with McCue. Thorpe also indicated that misappropriation of examinations was an ongoing operation and that the "program" was normally offered to just one policeman in each city or town, and only if that person could be trusted. The next morning, Thorpe [384 Mass. 274] telephoned McCue, urged complete secrecy, and told him he was not to get a perfect score on the examination, but everything would be arranged for him in advance. On October 19, 1978, McCue had another telephone conversation with Thorpe, during which Thorpe said he expected to hear something later on that night and reassured McCue that there was no problem. During a later conversation Thorpe arranged to meet McCue in front of a restaurant in North Andover. McCue used the Kel Kit to record the brief conversation with Thorpe, the gist of which was that Thorpe wanted McCue to take a ride to a safer place. McCue, fearing for his safety, refused. After the two parted, a State trooper observed Thorpe making a fifteen-to-twenty-minute call from a pay telephone.

When McCue spoke to Thorpe on the telephone later that afternoon, Thorpe said there would be eighty questions on the examination, three involving diagrams. In discussing the scheme of operations, and Thorpe's "sponsorship" of McCue, Thorpe referred to the "committee ... originated by this broad." A few hours later, during a telephone conversation that was poorly recorded, McCue sought another meeting with Thorpe, who said he did not have the examination and had to make a couple of telephone calls. Still later, the two arranged to meet at a doughnut shop in Lawrence. McCue, equipped with the Kel Kit and $4,000, met Thorpe as planned and asked for the examination answers that he thought Thorpe was going to bring. Thorpe did not have them. McCue offered the $4,000, but Thorpe refused unless they went to a safe place, and broke off negotiations when McCue declined to leave with him. Shortly afterwards, Thorpe was seen making a twenty-to-thirty-minute call from a pay telephone.

The Sergeant's examination was given on October 21, 1978. As predicted by Thorpe,

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it contained eighty questions, three involving diagrams.

Pursuant to G.L. c. 272, § 99 P, 2 Thorpe moved to suppress the tape recordings. In denying Thorpe's motion to [384 Mass. 275] suppress, the judge dismissed Thorpe's contentions that the recording of his conversations violated the Fourth Amendment to the United States Constitution, and art. 14 of the Massachusetts Declaration of Rights. He also concluded that the electronic surveillance did not violate the Federal wiretap statute, 18 U.S.C. § 2518 (1976), or the State interception statute, G.L. c. 272, § 99. In arguing that the motion to suppress should have been granted, Thorpe advances on appeal the same arguments as he did below, with the exception of the Fourth Amendment challenge, which he has abandoned.

1. The Organized Crime Requirement of G.L. c. 272, § 99.

Thorpe's primary contention on appeal is that the warrantless interception violated G.L. c. 272, § 99, because the requisite organized crime nexus was not shown. For purposes of the statute, interception is defined as the use of an intercepting device to secretly hear or record, or aid another to secretly hear or record, the contents of any wire or oral communication. G.L. c. 272, § 99 B 4. The statute is framed largely in negative terms: clandestine overhearing or recording of communications is prohibited except as otherwise specifically provided. G.L. c. 272, § 99 C. The exceptions to the statutory prohibition include "any person duly authorized to make specified interceptions by a warrant issued pursuant to this section." G.L. c. 272, § 99 D 1 d. 3 Additionally, the following do not constitute interceptions for purposes of the statute: (1) when all parties to [384 Mass. 276] the communication consent in advance to the use of the intercepting device; (2) when the interceptor is an investigative or law enforcement officer who is investigating a "designated offense," and who either (a) is a party to the communication or (b) has a party's advance authorization to the interception of the communication. G.L. c. 272, § 99 B 4. "Designated offense," in turn, is defined to encompass a wide spectrum of crimes, including extortion and bribery, when the offenses are "in connection with organized crime as defined in the preamble." G.L. c. 272, § 99 B 7.

The Commonwealth justifies its warrantless recording of the conversations between Thorpe and McCue on the basis of the § 99 B 4 exception for law enforcement officers, and the judge denied the motion to suppress on that ground. Thorpe argues that the evidence demonstrates at most an isolated, solitary criminal act on his part, and that the judge therefore erred in finding organized criminal activity. 4

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The initial question we face, then, is how organized crime is to be defined and proved for purposes of bringing warrantless surveillance by law enforcement officers within the § 99 B 4 exception. We must decide what part of the preamble, set forth in its entirety in the margin, 5 the Legislature[384 Mass. 277] intended as the definition of organized crime. We agree with the judge that, although the Legislature declared that the definition of organized crime is to be found in the preamble, the entire description of organized crime could not have been intended to be incorporated in the definition of designated offenses. The statute would be unworkable if the Commonwealth were required to prove, in every case, that the activities constituted "a grave danger to the public welfare and safety," that "brutal and violent tactics" were employed and that "legitimate business activities" were being infiltrated. Rather, of all the language used in the preamble, it appears that the Legislature intended to define organized crime as "a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." 6

[384 Mass. 278] The judge here concluded that the evidence showed a continuing conspiracy by a well-organized and disciplined group to supply illegally the civil service examinations. Thorpe disputed this, arguing that nothing in the record indicates he had any connection with anyone else in selling the

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