Com. v. Vitello
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Before TAURO; HENNESSEY; KAPLAN |
| Citation | 367 Mass. 224,327 N.E.2d 819 |
| Parties | COMMONWEALTH v. Ralph F. VITELLO (and eleven companion cases 1 ). |
| Decision Date | 01 April 1975 |
Page 819
v.
Ralph F. VITELLO (and eleven companion cases 1).
Decided April 1, 1975.
Page 824
[367 Mass. 229] Francis J. DiMento, Boston (Thomas C. Cameron, Boston, with him), for defendants.
John T. Gaffney, Asst. Dist. Atty., and Thomas E. Dwyer, Sp. Asst. Dist. Atty., for the Commonwealth.
Before [367 Mass. 224] TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.
[367 Mass. 229] HENNESSEY, Justice.
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.
[367 Mass. 230] We have determined that there was no error and, for the reasons stated in this opinion, we affirm the judgments.
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, G.L. c. 272, § 99, and the facial validity of the warrants issued
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thereunder. However, the defendants do not seek to challenge the constitutionality of the Federal or State statutes under the Fourth Amendment to the United States Constitution. 3 Rather, the bases of their claims are that the State statute must conform in all respects to the comprehensive Federal legislation on eavesdropping, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510--2520 (1970), 82 Stat. 211 (1968) (hereinafter referred to as Title III); that G.L. c. 272, § 99, does not so conform; and that, even assuming such compliance as a statutory matter, the warrants do not meet the Federal and State requirements. We hold, contrary to the defendants' contentions, that the State statute is in substantial compliance with the Federal law and also that the warrants comply with both Federal and State statutory standards. Because of the multiplicity of the defendants' claims, because of the relationships of many of the statutory issues to Fourth Amendment [367 Mass. 231] values, and because these cases present the first full review of the State wiretapping statute, we are required to engage in an extensive analysis of the wiretapping legislation. Due to the length of this analysis and for purposes of organization, our examination of both the relevant statutory provisions and the wiretap warrants issued in these cases is included as an Appendix herewith. However, the legal holdings and our reasoning underlying these holdings, as expressed in the Appendix, are to be considered as incorporated herein and made a part of the substance of this opinion.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 § 99 B 9 wherein 'judge(s) of competent jurisdiction' is defined to mean 'any justice of the superior court.'
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 (§ 99 F 1), the Attorney General or the district attorney, as the [367 Mass. 232] case may be, should give full and fair review of the grounds asserted for seeking a wiretap warrant. Special designation to the assistant attorneys general and assistant district attorneys must be on a case by case basis only. Authority to apply for each wiretap warrant must be specifically granted in writing by the Attorney General or the district attorney as the case may be. Indeed, it can be said that
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the better procedure is that the Attorney General or district attorney should cosign the application for the warrant with the designated assistant, although the Attorney General or district attorney need not himself appear before the judge. See Appendix part F (1), particularly fn. 17.Second, an application for a wiretap warrant in addition to being drafted in accordance with the provisions of G.L. c. 272 § 99 F, should, if practicable, give an estimate as to the time required or the installation of intercepting devices in order that the reviewing judge may determine whether the thirty-day period, § 99 I 2, would be impermissibly extended. See Appendix part F(2). Where installation of devices is required, such installation is to be effected with all reasonable speed. See Appendix part F(2) and (5). In all cases execution of a warrant shall be forthwith and the warrant should so direct. In addition both the application and any supporting affidavits should affirmatively demonstrate knowledge of the requirement that interception be limited to matter material to the designated crimes under investigation and an intent so to limit the interception in order that the intrusion be sufficiently limited. (This does not mean that inculpatory information relating to other nonrelated crimes shall be ignored.) Specific instructions relative to limiting the interception should be given to the executing officers. See Appendix part F(6).
Third, pursuant to § 99 I 2, the date of issuance, the date of effect, and the termination date shall be stated clearly on the fact of the warrant. Where physical [367 Mass. 233] installation of intercepting devices is required the date of effect could be stated approximately based on an estimate of the reasonable time required for installation procedures.
Fourth, in light of our construction of G.L. c. 272, § 99, each warrant shall identify the person authorizing the application and the agency authorized to intercept. See Appendix part F(4). As directed above, that agency shall execute the warrant forthwith. See Appendix part F(5).
Fifth, in accordance with the provisions of § 99 M, the return is to be made to the issuing judge as soon as possible following the termination of the interception and at the latest within seven days thereafter. After examining the return, including the condition of the original recordings, which shall be a part of the return, the issuing judge shall seal the recordings and transmit them worthwith to the Chief Justice of the Superior Court. § 99 N. In order to comply with the Federal requirements set forth in 18 U.S.C. § 2518(8)(a), (b) (1970), the recordings, as well as the application, warrant, renewal where applicable, and the return shall be kept for ten years. See Appendix part F(7).
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 [367 Mass. 234] evidence over the objections and exceptions of the defendants. Lieutenant Nash testified as to the results of his comparison of the known voices of the defendants with the voices of unknown individuals recorded on the tapes of intercepted telephone conversations. The method used for such analysis
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is termed spectrogram comparison analysis, or, more commonly, voiceprint identification. Lieutenant Nash testified that the voices of the six defendants were, in his opinion, positively the voices of certain unknown individuals whose voices were recorded pursuant to the wiretap warrants....
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...1053-58, 114 Cal.Rptr. 241, 245-50 (1974), appeal dismissed, 419 U.S. 1064, 95 S.Ct. 652, 42 L.Ed.2d 661 (1974); Commonwealth v. Vitello, 367 Mass. 224, 245-47, 327 N.E.2d 819, 832-34 (1975). In accordance with these congressional aims, it has been held the federal statute controls the admi......
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