Com. v. Westerman

• Citation: 611 N.E.2d 215,414 Mass. 688
• Parties: COMMONWEALTH v. Gary WESTERMAN.
• Decision Date: 05 April 1993
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 215

611 N.E.2d 215

414 Mass. 688

COMMONWEALTH v. Gary WESTERMAN.

Supreme Judicial Court of Massachusetts Hampden.

Argued Feb. 1, 1993.

Decided April 5, 1993.

Vincent A. Bongiorni, Springfield, for defendant.

Elizabeth Dunphy Farris, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

On September 30, 1988, a jury convicted the defendant, Gary Westerman, of trafficking in cocaine. The defendant filed a timely appeal, and we transferred the case to this court on our own motion. In his appeal, the defendant alleges numerous errors. The crux of the appeal, however, turns on the appropriate use by police of electronic surveillance techniques authorized under G.L. c. 272, § 99 (1990 ed.). After reviewing the record, we conclude that there were no errors that require reversal of the conviction.

Beginning in 1985, the office of the district attorney for the Hampden district conducted an investigation into the suspected loansharking activities of Frank Pugliano, Francesco Campiti, and some of their associates. Between February and April of 1986, a Superior Court judge authorized the installation of pen registers to monitor telephone calls made between some of the suspects. ¹ On September 18, 1986, another judge issued a warrant for a wiretap of several telephone lines associated with Pugliano and Campiti, including a "cross frame unit trap" ² used to monitor the telephones of Travel Majic, a travel agency whose telephone lines had been allegedly connected to the suspected loansharking activities. The warrant also authorized a pen register on the home telephone of Campiti.

Based on information gathered from the electronic surveillance and further police investigations, the judge, on October 10, 1986, granted a request by the district attorney to amend the wiretap warrant. The amendment authorized a wiretap of Campiti's home telephone in addition to the pen register already in place. It also expanded the scope of the warrant beyond loansharking to include conversations about drug trafficking among new suspects. Westerman was one of these new suspects.

Renewals of the amended warrant were issued on October 17, October 30, and finally on November 15, 1986. On October 21, 1986, at the request of the investigators, the judge also ordered an electronic surveillance of Campiti's automobile which was extended on November 12, 1986.

The defendant was indicted by two separate Hampden County grand juries. The first grand jury were called in July, 1986, to hear evidence of loansharking activities by the so-called "Pugliano-Campiti" organization. This grand jury were extended until January 30, 1987, during which time they heard new evidence acquired by the on-going police investigation. On January 30, this grand jury indicted Westerman for trafficking in a class B substance (cocaine), G.L. c. 94C, § 32E (b )(3), on or about November 16, 1986, in Agawam. A second grand jury indicted Westerman for trafficking in cocaine on or about November 17, 1986, in Westfield.

The police executed a warrant to search Westerman's home for cocaine on November 17, 1986. The search uncovered assorted drug paraphernalia as well as a number of plastic bags containing lumps of what the police believed to be cocaine. He was convicted on one charge of trafficking in cocaine in Westfield.

1. The wiretap. At trial, Westerman filed a motion to suppress any evidence derived from the electronic surveillance of Campiti's business and home telephones, and automobiles. After hearing, the judge denied the motion. Westerman now claims that the judge's denial of that motion constitutes reversible error. We disagree.

We note at the outset that the defendant shoulders the burden of establishing that evidence has been illegally obtained in cases where a search is conducted pursuant to a warrant. Commonwealth v. Antobenedetto, 366 Mass. 51, 56, 315 N.E.2d 530 (1974), and cases cited. The defendant argues that the initial September warrant was invalid because of references to previous pen registers which were ruled illegally obtained by the motion judge. Standing on a novel expansion of the "fruit of the poisonous tree" doctrine, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), the defendant asserts that the illegally obtained information "taints" the wiretap so that any evidence produced by the wiretap is inadmissible as fruit from the poisonous tree. Assuming the previous pen registers were in fact illegally obtained and the fruit of the poisonous tree doctrine applies to warrants for wiretaps, we nevertheless affirm the judge's ruling that the wiretap order was not "tainted" because any reliance on the pen registers was de minimis.

The affidavit submitted by Trooper Peter J. Higgins of the State police in support of the wiretap order is thirty-eight pages long. The only direct reference to the previous pen registers occurs in one paragraph on one page. We recognize that some of the information obtained from the pen registers was incorporated into other parts of the affidavit. We also acknowledge that the affidavits supporting those pen registers were attached to the wiretap application. ³ However, even if all these materials were excised from the application, there still exists ample evidence to establish the requisite probable cause for a warrant to issue. See G.L. c. 272, § 99 E. The bulk of the thirty-eight pages concerns meetings with confidential informants who provided the police with new information regarding the loansharking activities of the Pugliano-Campiti ring. There is no evidence that this information was in any way dependent on the earlier pen registers. See Commonwealth v. Jarabek, 384 Mass. 293, 300 n. 7, 424 N.E.2d 491 (1981) (whether witness's testimony was independent and not derived from unlawful interception is proper issue for motion to suppress). Therefore, because the warrant was supported by sufficient probable cause independent of the objectionable material, the defendant fails to carry his burden. See Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978) (false statement in application for search warrant); Commonwealth v. Assad, 393 Mass. 418, 422, 471 N.E.2d 1290 (1984) (misstatement in application for wiretaps).

The defendant also attacks the specificity and necessity of the wiretap application under G.L. c. 272, § 99. Massachusetts law requires that the application describe with particularity the persons, places, offenses, and communications involved. § 99 F. The law further requires the applicant to show that normal investigative procedures are or would be inadequate. § 99 E 3. ⁴ The defendant opines that the application recites only "boilerplate generalities" which many Federal courts have held to be insufficient grounds for granting a wiretap order under the Federal statute. See, e.g., United States v. McCoy, 539 F.2d 1050, 1055 (5th Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977). The detailed facts alleged in the supporting affidavits, however, belie the defendant's claim. Trooper Higgins's affidavit identifies and describes in depth the specific targets of the surveillance, with whom they communicate, how and where they communicate, as well as the illegal actions committed. The information is based not on mere speculation but on first-hand police investigations and the reports of reliable informants. The application, therefore, establishes probable cause with sufficient particularity. See Commonwealth v. Wilson, 405 Mass. 248, 250-251, 540 N.E.2d 159 (1989). With regard to necessity, the affidavit points out several specific reasons for the failure of alternative methods of collection: "counter-surveillance," identification of undercover operatives, the failure of witnesses to testify, the number of individuals and locations involved, and the inability of informants to reach the leaders of the conspiracy. We hold that these circumstances more than adequately satisfy the statutory requirement of necessity. See, e.g., United States v. Turner, 528 F.2d 143, 152 (9th Cir.), cert. denied sub nom. Grimes v. United States, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975), and sub nom. Hackett v. United States, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1976); United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975).

In regard to the sufficiency of the warrant itself, the defendant claims that the coverage of unknown parties involved in the criminal organization violates the particularity requirements of § 99 F 2 b and § 99 I 3. We hold that, because the intercepted communications of unidentified parties were sufficiently limited to (1) subject matter which concerned the crimes being investigated, and (2) conversations with named conspirators, there was no violation of the statute or privacy rights.

The defendant also claims that separate applications were necessary to authorize the pen register on Campiti's home telephone and a cross frame unit trap on the telephone lines of Travel Majic. We have held that "a separate order under § 99 authorizing the use of a pen register ... is not required where a valid order authorizing a simultaneous wiretap interception has been issued." District Attorney for the Plymouth Dist. v. New England Tel. & Tel. Co., 379 Mass. 586, 591, 399 N.E.2d 866 (1980), citing Commonwealth v. Vitello, 367 Mass. 224, 279, 327 N.E.2d 819 (1975). We have applied this rule to cross frame unit traps as well. District Attorney for the Plymouth Dist., supra. The justification for these decisions is that, where a judge has already determined from a wiretap application that § 99 E's requirements of probable cause and necessity have been met, a separate order for a less intrusive interception over the same telephone line provides no further protection to private citizens. Se...