Commonwealth v. Damiano

Decision Date08 February 2005
Citation444 Mass. 444,828 NE 2d 510
PartiesCOMMONWEALTH vs. PHILLIP M. DAMIANO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth. Jane Larmon White, Committee for Public Counsel Services, for the defendant.

CORDY, J.

The Commonwealth appeals from the allowance of a motion to suppress the contents of a telephone conversation to which Phillip M. Damiano was a party, and evidence derived from that conversation, including a bag of marijuana found in a search of Damiano's pockets at the time of his arrest, a large quantity of cocaine subsequently seized from his house, and statements he made to the police at the police station.1 The basis on which the motion was allowed was a determination by the motion judge that Damiano's telephone conversation was intercepted in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. (Title III).2 The Commonwealth sought interlocutory relief. A single justice granted leave to appeal and designated the appeal to be heard by this court.3 See G. L. c. 278, § 28E; Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). For the following reasons, we affirm the judge's suppression order in part and reverse in part.

1. Facts. We recite the facts as found by the judge, supplemented by uncontested testimony from the motion hearing. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). On the afternoon of January 27, 2001, a private citizen was listening to a store-bought police scanner in her Wareham home when she intercepted a telephone conversation. Although it was possible to change to a different frequency, she decided to listen to the remainder of the conversation, during which two unidentified men agreed to meet at Vel's Restaurant in Wareham. At one point during the conversation, she heard one of the men, apparently Damiano, say "it all depends on how hungry you are." The other man, later identified as Peter Morrison, told Damiano that he would be driving a black Mercury Cougar motor vehicle. It was subsequently determined that Morrison had initiated the call using a cordless telephone, and that Damiano had received it on a cellular telephone.

The listener inferred from the conversation that the two men were meeting to complete a drug transaction, and contacted the Wareham police. A police dispatcher conveyed the information to two Wareham police officers who drove their unmarked vehicle to Vel's Restaurant and parked in a lot across the street. A couple of minutes later, a black Mercury Cougar automobile pulled into the restaurant's parking lot. The police observed Damiano leave a nearby house, cross the highway, and approach the driver's side of Morrison's vehicle. Damiano either handed something to or took something from Morrison and entered the passenger side of the vehicle. Morrison pulled out of the parking lot, headed north on the highway, and made a left turn into the parking lot in which the police officers were parked. Three marked cruisers then proceeded to pull the vehicle over. Damiano was ordered out of the car and searched. A bag of marijuana was found in his pocket and he was placed under arrest. An officer at the scene noticed a child watching from the window of the house from which Damiano had come. Consequently, police were sent to secure the premises until a search warrant could be obtained. Damiano's wife and child were found on the premises.

Damiano was taken to the police station and twice advised of his Miranda rights. He was also informed that the police intended to obtain a warrant to search his house. There was no evidence that he was informed of the intercepted telephone conversation.4 Upset that the police were posted at his house (with his wife and child), and in order to hasten their departure, Damiano eventually told the officers that he kept a small amount of marijuana in a nightstand in his bedroom. He also signed a written consent form, permitting the police to search the house. With the assistance of a police dog, the police discovered a large stash of cocaine hidden behind a locked door off the kitchen.

2. Discussion. In 1968, largely in response to the United States Supreme Court's holdings in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), Congress enacted Title III. Bartnicki v. Vopper, 532 U.S. 514, 522-523 (2001). One of its stated purposes was to "protect[] the privacy of wire and oral communications." Pub. L. 90-351, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2153. To further this purpose, Title III makes it a crime, except in limited circumstances, to intentionally intercept a "wire," "oral," or "electronic communication," or to intentionally disclose the contents of such a communication.5 See 18 U.S.C. § 2511. Title III also prohibits the admission in evidence of unlawfully intercepted "wire" or "oral" (but not "electronic") communications, and evidence derived therefrom. Specifically, § 2515 provides:

"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter."6

The Commonwealth contends that the telephone conversation between Morrison and Damiano constituted an "electronic communication," not a "wire" or "oral" communication, and as such, the suppression remedy provided in § 2515 is inapplicable to this case.7 Specifically, it maintains that a "signal broadcast by a portable or cordless telephone is a radio signal and, therefore, an electronic communication." The Federal cases relied on by the Commonwealth to support this contention, however, involve interceptions that took place before Congress amended Title III in 1994 to ensure that communications taking place on cordless telephones were included within the definition of "wire communication."8 See, e.g., Price v. Turner, 260 F.3d 1144, 1147 (9th Cir. 2001) (Title III "did not protect cordless phone conversations that took place before the statutory amendment in 1994," but "none of the intercepted conversations" at issue "took place after 1993"). It is clear that the exclusionary provision of Title III "now applies to the interception of conversations over both cellular and cordless phones." Bartnicki v. Vopper, supra at 524.

The Commonwealth next urges us to apply a "clean hands" exception to § 2525, so as to permit the introduction in evidence of any unlawfully intercepted wire or oral communication where, as here, the police are only the recipients and not the interceptors of the communication. There is some disagreement among the Circuit Courts of the United States Court of Appeals as to whether communications unlawfully intercepted by private citizens must be suppressed as evidence when there has been no government involvement. Compare United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987) ("allow[ing] the government's use of unlawfully intercepted communications where the government was not the procurer `would eviscerate the statutory protection of privacy from intrusion by illegal private interception'"), with United States v. Murdock, 63 F.3d 1391, 1403 (6th Cir. 1995), cert. denied, 517 U.S. 1187 (1996) ("nothing in the legislative history [of Title III] . . . requires that the government be precluded from using evidence that literally falls into its hands"). However, the majority of courts that have ruled on the "clean hands" exception have rejected it. See Berry v. Funk, 146 F.3d 1003, 1012-1013 (D.C. Cir. 1998); Chandler v. United States Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d 1066, 1077-1079 (3d Cir. 1997). We agree with the judge that government involvement in the unlawful interception of a wire or oral communication is not required to trigger Title III's exclusionary rule.

The plain language of § 2515 mandates the suppression of any intercepted wire or oral communication and any "evidence derived" from that communication "if the disclosure of that information would be in violation of" Title III. 18 U.S.C. § 2515. "Section 2511(1)(c) is also unambiguous, making it a crime whenever one `intentionally discloses, or endeavors to disclose, to any person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.'" In re Grand Jury, supra at 1077 (rejecting "clean hands" exception to 18 U.S.C. § 2515). Nothing in the literal language of the statute indicates that Title III permits the government, in cases such as this, to disclose the contents of an illegally intercepted wire or oral communication when the government was not the unlawful interceptor of that communication.9 Title III's "evidentiary prohibition must be applied to perpetrators and non-perpetrators alike." Id. at 1078.

The legislative history of Title III also supports a literal interpretation of § 2515. The basic purpose of the statute "is to `protec[t] the privacy of wire . . . and oral communications.'" Bartnicki v. Vopper, supra at 526, quoting S. Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968). Title III "prevent[s] private, not just governmental, wiretapping." Chandler v. United States Army, supra at 1302 (rejecting "clean hands" exception to 18 U.S.C. § 2515). See United States v. Vest, supra at 481 ("protection of privacy from invasion by illegal private interception as well as unauthorized...

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