Commonwealth v. Paulo Tavares.

• Decision Date: 08 April 2011
• Docket Number: SJC–10705.
• Citation: 459 Mass. 289,945 N.E.2d 329
• Parties: COMMONWEALTHv.Paulo TAVARES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 289

945 N.E.2d 329

COMMONWEALTH

v.Paulo TAVARES.

SJC–10705.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Jan. 4, 2011.Decided April 8, 2011.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.Frank H. Spillane, Brockton, for the defendant.Present: IRELAND, C.J., SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ. ¹CORDY, J.

The question presented in this interlocutory appeal is whether a drive-by killing in Brockton constituted a “designated offense” occurring in “connection with organized crime,” G.L. c. 272, § 99 B 4 and 7, such that oral communications of the defendant, Paulo Tavares, surreptitiously recorded by a confidential police informant, qualify for an exception to the proscription of “secret transmission or recording of oral communications without the consent of all parties” provided in the wiretap statute (G.L. c. 272, § 99). Commonwealth v. Blood, 400 Mass. 61, 66, 507 N.E.2d 1029 (1987). Based on the record before her, a judge in the Superior Court concluded that it did not, and suppressed the recordings pursuant to G.L. c. 272, § 99 P.² The Commonwealth sought leave to appeal, which was granted by a single justice of this court. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We affirm.

1. Background. The following facts and circumstances were set forth in the affidavit of State Trooper Scott D. McGrath that was filed in the Brockton Division of the District Court Department in support of his application for a warrant to intercept and record the defendant's conversations. On the night of May 21, 2007, at 11:30 p.m., Brockton police officers found John Lima dead from multiple gunshot wounds in the driver's seat of a red Nissan Altima automobile. At the scene, an officer spoke with Jorell Archer, a passenger in the vehicle. Archer stated that, while on Main Street, a vehicle “tailed” the Nissan Altima at an unusually close distance and activated its high beam lights. The driver of the vehicle changed lanes and accelerated until he was driving adjacent to the passenger side of the Nissan Altima as it was driven by Lima. The occupants of the vehicle began shooting, shattering the passenger side window of the Nissan Altima and striking Lima. At the scene of the shooting, investigators found fourteen spent shell casings, ten from bullets fired from a .22 caliber gun, and four from bullets fired from a .40 caliber gun.

Police interviewed Lima's sister, the registered owner of the red Nissan Altima. She stated that her brother arrived at her home in Brockton with Archer on the evening of May 21, 2007, to borrow the vehicle.

A witness observed the entire shooting from his front porch. This witness reported to police that he saw three black males in a dark-colored Chevrolet “Malibu Max” sedan drive past seconds after hearing several gunshots. He printed a picture from an Internet Web site of a Chevrolet Malibu Max vehicle similar in appearance to the vehicle he observed, and provided it to the officers. The following day, May 22, State troopers observed a gray Chevrolet Malibu in Brockton, and after losing sight of the vehicle for several minutes, spotted it again on a nearby street and alerted its driver to pull over. The vehicle's driver was Christopher Hanson, and the passengers were Tavares and Eddie Ortega. The gray Chevrolet Malibu was registered to Enterprise Rent–A–Car of Boston, Inc., and had been rented by Deolinda Andrade of Brockton. Because Hanson, Tavares, and Ortega were not authorized to operate the Chevrolet Malibu under Andrade's rental agreement, police towed the vehicle to the Brockton police department, and called Andrade to the station to claim it. The police apparently did not detain the three occupants.

At the station, Andrade told police that she rented the Chevrolet Malibu because her vehicle had burned. She stated that the defendant, Tavares, was her former boy friend, and she allowed him and his friend “Chris” (whom police believed to be Hanson) to borrow the vehicle. Police officers then brought the witness who had observed the shooting from his porch to a police garage where the gray Chevrolet Malibu was stored. On entering the garage, without prompting, the witness asked, “How did you get it here so fast?” At the garage, the witness told police that the driver of the shooters' vehicle “took the corner very wide” while fleeing, and drove over a curb. This, the witness told police, means the vehicle driven in the shooting would likely have scrape marks from the curb on the undercarriage. A detective examined the vehicle and observed scrape marks under the front quarter of the driver's side and rear bumper on the passenger side.

On May 25, 2007, Trooper McGrath asked a confidential police informant (informant), whose identity was not revealed in the affidavit, for information regarding the murder of Lima.³ The informant stated that he had known Tavares for years, and correctly identified him in a photographic array. The informant told Trooper McGrath that he knew Tavares to carry a black .22 caliber pistol capable of holding eleven rounds of ammunition. The informant said Tavares had purchased the gun (which was stolen in New Hampshire) from Jose Santos two months prior to the May 21, 2007, shooting. The informant also related that some time in April, 2007, Tavares told the informant that he “shot off the whole clip” from the same gun at a man in an apartment on Exchange Street in Brockton. Tavares allegedly told the informant that he shot the man for stealing a gun from Santos, and even though Santos had forgiven the man, Tavares refused to “let it go.” The informant also knew Santos to carry a .22 caliber gun. A man he knew as “Eddie,” who the informant identified in a photograph array by selecting a picture of Ortega, was known to carry a .40 caliber pistol, and allegedly used the weapon when “he shot up Exchange St.” following a 2006 murder.

The informant often acted informally as a “means of transportation” for Santos, Tavares, and Ortega. Earlier in the day of Lima's murder, the informant telephoned Tavares and asked if he needed a ride anywhere, and Tavares responded that he was driving “Shorty's rental,” presumably meaning the vehicle rented by his former girl friend, Andrade. That night Santos was dining with the informant when he received a telephone call from Tavares requesting a meeting at the “M.” The informant stated that “they,” inferably meaning some group of individuals including Santos and Tavares, were renting a first-floor apartment on Market Street in Brockton, which they call the “M.” The informant stated that the apartment's primary resident is a man named “Greg,” which was corroborated by information known to the Brockton police that a Gregory Tobias resided there.

Santos and the informant arrived at the “M” shortly after midnight on the night of the shooting. When they arrived, Tavares and a man the informant knew only as “C” (whom he later identified as Hanson) were in the driveway of the “M.” At the “M,” Tavares and Santos retreated to a back room and had a discussion lasting approximately five minutes, to which the informant was not privy. Tavares later told the informant that Santos was angry because Tavares “did the dude.”

The day after the shooting, May 22, Tavares telephoned the informant and advised him to “trust [me]” and “get rid” of his, the informant's, cellular telephone. Tavares told the informant that the police “snatched up ‘D,’ ” presumably meaning his former girl friend, Andrade, and that she told the police Tavares's cellular telephone number. Tavares then asked the informant to meet him at an apartment on Newbury Street in Brockton, and at this meeting, he told the informant that abandoning the cellular telephones was necessary because of the “homeboy that I bodied last night.” Tavares also told the informant, “We got bagged in the rental.”

The following day, May 23, Tavares again telephoned the informant and said, “I see you don't listen, you still have your phone.” Tavares needed to be picked up from the “M” in the informant's automobile. In the informant's vehicle, Tavares said that as long as “dude,” inferably meaning Archer, the passenger in the red Nissan Altima, “isn't talking,” Tavares would not get caught. According to the informant, Tavares further stated that he knew the police were examining the gray Chevrolet Malibu and that he's “caught a gun case before.” He further told the informant that when he and Hanson were pulled over by State troopers the day after the shooting, they briefly evaded the troopers, and “threw the burner (gun) out the window.” When police released Tavares and Hanson from custody, Tavares retrieved the gun, and stashed it at the “M.”

In his conversations with police, the informant stated that he learned that the victim, Lima, was “Santos' boy,” and that Tavares stated that he was friends with Lima too, and “didn't mean to [shoot] him.”

On May 25, 2007, Tavares asked the informant to bring cigarettes and marijuana to Ortega, who was staying at a home in Fall River. That same day, the informant met Tavares in Fall River, and Tavares showed him a .22 caliber Walther handgun. The informant said that Tavares and Ortega had been moving from apartment to apartment following the shooting in an attempt to remain undetected. As such, Trooper McGrath averred in his affidavit:

“Paulo Tavares, Chris Hanson, Eddie Ortega or as yet any unknown co-conspirators are participating in an on-going conspiracy relative to the crimes of murder, conspiracy to commit murder, accessory after the fact of murder, and intimidation of a witness, which are all crimes related to the murder of John Lima.... Further ... that Paulo Tavares' and Eddie Ortega's oral communications will constitute material evidence.... Accordingly, I request that a search warrant be issued authorizing the secret interception of oral communications of Paulo Tavares an...