New Case Illustrates the Strict Limits of Wiretapping in Massachusetts

The image of an informant wearing a wire or secretly recording phone conversations during a criminal investigation is extremely common on television and in the movies.  In Massachusetts, however, the use of a wiretap as an investigative tool of law enforcement is subject to extremely strict limits and protections that go far beyond the limitations of the Fourth Amendment.  In a November 21, 2014 decision in the case of Commonwealth v. Burgos, an appeal by a defendant convicted of a gang-related killing, the Massachusetts Supreme Judicial Court (“SJC”) reiterated that wiretapping is only available under Massachusetts General Laws chapter 272 section 99 in order to investigate narrowly delineated categories of crime.

The statute allows police to make recordings with the consent of only one party, acting undercover or as an informant, when investigating certain serious offenses committed “in connection with organized crime,” that is, “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.”  In Burgos, police obtained a warrant to allow the defendant’s cellmate to secretly record him and were successful in obtaining a recording of his confession to a murder committed in retaliation for the killing of a member of his gang.  Burgos was convicted largely on the strength of that surreptitious recording.  On appeal, the SJC reversed the conviction, granting the defendant a new trial.  Although the killing was gang-related–the affidavit in support of the warrant spoke of “two rival gangs . . . both involved in selling narcotics”–the affidavit failed to establish a nexus between the murder and “the narcotics or any other ongoing business enterprise of either gang.”  In short, the court concluded, “A retaliatory killing alone, without a clear link to the goals of a criminal enterprise, does not amount to a connection to organized crime,” and the warrant was therefore invalid and the evidence illegally obtained.

Ordinarily so-called “one-party consent” recordings, made by one party to a conversation without the other’s knowledge or agreement, are illegal in Massachusetts.  Many private citizens are unaware of this provision, and some litigants are tempted (and may even be advised by friends or family ignorant of the law) to record their employers, estranged spouses, or other opposing parties, without their knowledge, seeking to gain evidence for use in court, but doing so carries criminal penalties in this Commonwealth.  As the SJC affirmed in Burgos, even Massachusetts police cannot use secret recordings to investigate very serious crimes where they cannot demonstrate the requisite connection to organized crime.  This statutory protection for private communications is far greater than constitutional protections under the Fourth Amendment: the U.S. Supreme Court has held that a “wrongdoer whose trusted accomplice is or becomes a police agent” does not have constitutional protection, or a claim to suppress his statements, if it turns out that “that same agent has recorded or transmitted the conversations which are later offered in evidence” against him.

The Chief Justice of the SJC has suggested in concurring opinions both in Burgos and a prior opinion, Commonwealth v. Tavares, that the statutory protection against wiretapping in Massachusetts is overbroad as a matter of policy because it “means that electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation.”  In Burgos, Justice Gants reiterated a suggestion to the Massachusetts Legislature to delete from the statute the requirement that wiretaps be used only where there is a nexus to organized crime, noting, “There is no reason to believe that the plague of retaliatory shootings by teenagers and young men belonging to street gangs that are not committed ‘in connection with organized crime’ has materially abated . . . or that those shootings have become any easier to investigate or prosecute.”  It remains to be seen whether the Legislature will take up this invitation and make it easier for police to secretly record suspects.  Unless and until it does, Burgos stands as a reminder to police and prosecutors not to overstep the boundaries of the law.