Commonwealth v. Moody

• Decision Date: 09 August 2013
• Docket Number: SJC–11277.
• Citation: 993 N.E.2d 715,466 Mass. 196
• Parties: COMMONWEALTH v. Cory A. MOODY (and four companion cases ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 196

993 N.E.2d 715

COMMONWEALTH

v.Cory A. MOODY (and four companion cases ¹).

SJC–11277.

Supreme Judicial Court of Massachusetts,

Berkshire.

Submitted April 1, 2013.

Decided Aug. 9, 2013.

Timothy M. Farris, Springfield, for Devin Newman.

Edmund R. St. John, III, Adams, for Cory A. Moody.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Dana A. Curhan, Boston, & Matthew R. Segal for American Civil Liberties Union of Massachusetts.

Martha Coakley, Attorney General, & Jessica V. Barnett & Patrick Hanley, Assistant Attorneys General, for the Attorney General.

Michael J. Iacopino, of New Hampshire, Veronica J. White, Benjamin Leatherman, Peter Ettenberg, Worcester, Frank Camera, Fall River, Peter Clifford, Worcester, & Max D. Stern, Boston, for Jorge Areiza & others.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

The defendants, Cory A. Moody and Devin Newman, were separately indicted for various violations of the Controlled Substances Act, G.L. c. 94C, stemming from their alleged involvement in an organized group engaged in drug trafficking in Berkshire County. In particular, Moody was indicted for one count of trafficking in cocaine, G.L. c. 94C, § 32E ( b ); one count of distribution of cocaine, G.L. c. 94C, § 32A ( c ); and two counts of conspiracy to violate the drug laws, G.L. c. 94C, § 40.² For his part, Newman was indicted for one count of conspiracy to traffic in cocaine, G.L. c. 94C, § 40.

Prior to trial, the defendants filed separate motions to suppress the fruits of several search warrants issued under the Massachusetts wiretap statute, G.L. c. 272, § 99, which authorized the interception of calls and text messages sent over their cellular telephones. The defendants argued that the interception of these forms of communication was beyond the scope of authority provided under G.L. c. 272, § 99 and, thus, preempted by the cognate provisions of the Federal wiretap statute, 18 U.S.C. §§ 2510 et seq. (2006 & Supp. V 2011). In a consolidated decision, the motion judge denied the defendants' motions as to their cellular telephone calls, but granted their motions as to the interception of their text messages. The judge then reported the following question to the Appeals Court pursuant to Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004): “Does G.L. c. 272, § 99 authorize a Superior Court Judge to issue a warrant permitting state law enforcement officers to intercept cellular telephone calls and text messages?” ³ We transferred the case to this court on our own motion.

Based on the language of the Massachusetts wiretap statute and the legislative history surrounding the Federal wiretap statute, we conclude that a Superior Court judge possesses the authority under the Massachusetts wiretap statute to issue warrants permitting the interception of cellular telephone calls and text messages.⁴

Background. In October, 2010, the Commonwealth applied for and was granted warrants authorizing the interception of “oral and wire communications” made on cellular telephones belonging to or being utilized by the defendants. ⁵ The warrants were sought in connection with an investigation into the defendants' participation in an “ongoing conspiracy to commit the crimes of distribution of controlled substances, trafficking in controlled substances and conspiracy to commit the specified narcotics offenses.” According to the affidavit accompanying the warrant applications, the wiretaps were needed to reveal specific information about the “nature, extent and methods of operation of the illicit business.” Following the issuance of the warrants, the police monitored the defendants' cellular telephone calls and text messages for approximately one week. The contents of these cellular telephone calls and text messages were the subject matter of the defendants' motions to suppress.

Discussion. The defendants argue that, although the Federal wiretap statute, which was amended in 1986, both protects cellular telephone calls and text messages as well as authorizes their interception upon the issuance of a warrant, the Massachusetts wiretap statute, which has not been similarly amended since its adoption in 1968, does neither. For this reason, the defendants argue that the warrants at issue were illegal because they authorized the interception of communications beyond the scope of the Massachusetts wiretap statute and, further, that the Massachusetts wiretap statute is preempted because it provides less protection than its Federal counterpart. Consequently, the defendants suggest that the only permissible way for law enforcement authorities to intercept cellular telephone calls and text messages is under the Federal wiretap statute. We disagree.

1. History of Federal and Massachusetts wiretap statutes. a. Federal wiretap statute—Title III. In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Acts of 1968, Pub.L. No. 90–351, Title III, 82 Stat. 211 (1968) (Title III). The purpose of Title III was to protect wire and oral communications by “defin[ing] on a uniform basis, the circumstances and conditions under which the interception of wire and oral communications may be authorized, [and by] prohibit[ing] any unauthorized interception of such communications.” Id. at § 801(b), 82 Stat. at 211. This purpose reflected a balance between Congress's recognition that the “interception of [wire and oral] communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice,” id. at § 801(c), 82 Stat. at 211, and the overriding need “[t]o safeguard the privacy of innocent persons,” id. at § 801(d), 82 Stat. at 211.

To effectuate this balance, Title III prohibited the wilful “intercept [ion]” of any “wire or oral communication,” id. at § 802, 82 Stat. at 213, unless a Federal or State judge of “competent jurisdiction” authorized such interception through the issuance of a warrant. Id. at § 802, 82 Stat. at 216, 218–219.⁶ As pertinent to this case, the term “wire communication” was defined to mean “ any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or like connection between the point of origin and the point of reception” (emphasis added).⁷Id. at § 802, 82 Stat. at 212. The term “intercept” was defined to mean “the aural acquisition of the contents of any wire ... communication through the use of any electronic, mechanical, or other device.” Id. Thus, the definition of “intercept” was confined to the interception of the human voice by the human ear. See United States v. New York Tel. Co., 434 U.S. 159, 166–167, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) (pen registers not subject to Title III because they “do not accomplish the ‘aural acquisition’ of anything”); S.Rep. No. 541, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3566; H.R.Rep. No. 647, 99th Cong., 2d Sess., at 17–18 (1986).

In “enacting Title III [Congress] intended to occupy [and thus preempt] the field of wiretapping and electronic surveillance, except as that statute specifically permits concurrent State regulation.” Commonwealth v. Vitello, 367 Mass. 224, 245, 327 N.E.2d 819 (1975)( Vitello ). As for concurrent state regulation, Title III permitted States to “promulgate legislation authorizing certain designated officials to apply to State court judges ... for wiretap orders to be utilized in enforcement of statutes designated under the State criminal law.” Vitello, supra at 246, 327 N.E.2d 819. See Pub.L. 90–351, § 802, 82 Stat. 211, 217, codified at 18 U.S.C. § 2516(2) (2006 & Supp. III 2009). Thus, while Congress endeavoredto “define on a uniform basis, the circumstances and conditions under which the interception of wire and oral communications may be authorized,” id. at § 801(b), 82 Stat. at 211, it allowed for “concurrent State regulation subject, at the minimum, to the requirements of the Federal regulation.” Vitello, supra at 246, 327 N.E.2d 819, citing Pub.L. 90–351, § 801(b), 82 Stat. 211, 217–218. See S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2187.

b. Massachusetts wiretap statute—G.L. c. 272, § 99. Shortly after Congress enacted Title III, the Legislature rewrote the Massachusetts wiretap statute and modeled it on Title III. See G.L. c. 272, § 99, as appearing in St.1968, c. 738, § 1. See also Commonwealth v. Ennis, 439 Mass. 64, 68 n. 9, 785 N.E.2d 677 (2003). Like Congress, the Legislature was “[a]larmed by the commercial availability of sophisticated surveillance devices and the ease with which they facilitated surreptitious recording of private citizens,” Commonwealth v. Tavares, 459 Mass. 289, 294–295, 945 N.E.2d 329 (2011), and wanted to “ensure that unjustified and overly broad intrusions on rights of privacy [were] avoided.” Id. at 295, 945 N.E.2d 329, quoting Vitello, supra at 231, 327 N.E.2d 819. At the same time, however, the Legislature was keenly aware that in order to combat “the increasing activities of organized crime [that] constitute a grave danger to the public welfare and safety.... law enforcement officials must be permitted to use modern methods of electronic surveillance ... when investigating these organized criminal activities.” G.L. c. 272, § 99 A. See Commonwealth v. Tavares, supra at 295, 945 N.E.2d 329.

To this end, in wording nearly identical to Title III, the Massachusetts wiretap statute prohibits the wilful “interception ... of any wire or oral communication,” G.L. c. 272, § 99 C 1, unless a judge of “competent jurisdiction” authorizes such interception through the issuance of a warrant. G.L. c. 272, § 99 D 2 d & H 2. Similarly, the statute also defined the term “wire communication” to mean “ any communication made in whole or in part through the use of...