Justices weigh modern communication and old laws

Sunday September 9, 2012

PITTSFIELD -- It was a Thursday night in September 2010 when the Berkshire County Drug Task Force swooped down on an alleged drug deal in the Berkshire Medical Center parking garage and arrested two men at gunpoint: 29-year-old Charles "Bezzo" Best Jr. and 23-year-old Cory "Lil Norm" Moody.

In the following days and weeks, more arrests resulted from the investigation, which relied heavily on wire-tapped cellphone calls and intercepted text messages along with controlled drug buys.

Among those arrested was Devin Newman, 22, who was charged with conspiracy to distribute cocaine and later was charged with more drug-related crimes stemming from a separate investigation.

As Newman remains out on bail and Moody remains at the Berkshire County Jail & House of Correction on $200,000 surety bail, legal issues in both cases await review by the state's highest court.

(Best pleaded guilty to a slew of charges in May 2011 and was sentenced to 10 to 15 years in state prison.)

The answers by the Supreme Judicial Court could affect dozens of cases in Berkshire County and countless ones across Massachusetts, according to local defense lawyers.

The question before the justices: Can police under the current wiretapping laws intercept calls made on cellphones or use information gleaned from text messages in criminal investigations?

The answer depends on whom you ask.

Defense attorneys in the September 2010 case and similar cases say "no," but law enforcement and some judges disagree.

The law at the heart of the debate is Section 99 of Chapter 272 of the Massachusetts General Law, which was based on the federal Wiretap Act. Both were created in 1968.

The federal and state statutes are concerned primarily with illegal wiretapping, but they deal in part with exemptions that can be granted to law enforcement for the legitimate use of the technique in criminal cases involving organized crime.

In 1986, the federal government updated the wiretap law to include "electronic communication" and changed the definition of "wire communication" in the act, broadening the law's reach to include new technology. The federal government recommended that the states amend their laws to reflect the federal changes.

"Most states did; [Massa chusetts] did not," said attorney Timothy J. Shugrue. "This is a live issue."

According to the National Conference of State Legis latures, Massachusetts is one of only three states that don't specifically use the wording "electronic" communications in their wiretapping laws. (New Mexico and Vermont are the other two states.)

Currently, Massachusetts law enforcement officials who have been granted a wiretap warrant are allowed to listen in on and secretly record in-person or "phone conversations" of the subject or subjects of an investigation that involves "organized crime."

Digital technology is growing fast, and the state law
hasn't caught up, Shugrue acknowledged.

Shugrue has defended two clients whose cases have dealt with the wiretap issue, but both of those clients have since pleaded guilty to their charges after receiving deals for less jail time than if they had been convicted at trial.

In August 2011, attorneys in the Moody and Newman cases argued a motion in Berkshire Superior Court to suppress evidence. Judge Daniel A. Ford, who presided at the hearing, took the motion under advisement.

At the time, attorney Timothy M. Farris, representing Newman, asked the judge to consider reporting the cellphone and text message questions to the Appeals Court.

In October the judge's decision came out. He allowed any evidence collected from cellphones to be used by the prosecution, citing similar decisions by other Superior Court judges and the "absurd" ramifications of only allowing wiretaps of landline-to-cellphone calls (which falls under the law) but not cellphone-to-cellphone calls, since the "interpretation of a statute ... should not override common sense," Ford wrote.

As for text messages, Ford denied the prosecution the right to use any evidence taken from text messages because texts, he wrote, don't fit the definition of "wire communications," which must include "the human voice at some point."

Ford also sent the question to the Appeals Court, which took up the issue.

"I am left with a significant doubt as to the correctness of my decision," Ford wrote to the Appeals Court in his request. "The issue has never been addressed by either the Supreme Judicial Court or the Appeals Court, and the question has arisen in recent cases before me and before several of my colleagues."

In August, the Supreme Judicial Court took up the question on its own volition and tentatively is scheduled to hear arguments on the issue in December. The court also let it be known it would accept legal opinions from other interested parties, so-called amicus briefs, dealing with this question. As of early this month, representatives of the Supreme Judicial Court told The Eagle it hadn't received any.

Several local attorneys and their clients are anxiously awaiting the court's decision.

"The cure may be more interesting than the question," said attorney David A. Pixley, who has two clients with cases that will be affected by the SJC's decision.

The court could do anything from simply disallowing the text message evidence to tossing out the cases altogether, Pixley said.

In court documents submitted to the Appeals Court, defense attorneys Farris and Edmund St. John II (Moody's lawyer) agreed with Ford's decision on text messages, but believed he was wrong in regard to cellphones.

They argued that because cellphone technology is substantially different than older communication devices (cellphones convert sound to binary code) and since the state had never amended the law to include the interception of "electronic communications," cellphones didn't apply to the law as written, and therefore any evidence gathered by the police in connection to them should be thrown out.

In an interview with The Eagle, Berkshire District Attorney David F. Capeless said this argument doesn't make sense because even a land line involves transmitting the voice electronically.

"If you follow their argument to its logical conclusion ... we would have to be talking on a paper tube [to get a wiretap warrant]," he said, emphasizing the need to apply the laws in a "common sense" way.

Capeless said there already are strict guidelines in place for obtaining and using wiretaps in the state. The wiretap warrant can only be issued by a Superior Court judge to a district attorney or the attorney general. If a wiretap is granted, investigators are limited in what they can listen to, that being, "Bad guys talking about bad things," the DA said.

Capeless said that with the help of wiretaps, local law enforcement has solved several big cases over the years.

"We need to have access to the same technology criminals do," he said.

Berkshire Assistant District Attorney Joseph Pieropan, in his Appeals Court brief, argued that Ford was wrong in regard to texting because of the judge's narrow interpretation of "wire communication" as including only the spoken word. The DA's office referenced another case in which the interpretation was broadened to include emails.

Both defense attorneys and the District Attorney's Office referenced a state Senate bill -- An Act to Combat Economic Crimes -- that is sitting in the Joint Committee on the Judiciary and would rewrite the wiretap statute to conform to its federal counterpart, including adding the phrase "electronic communications" to the statute's language.

The defense argued this was a clear sign that the current law doesn't apply to cellphones. The DA's office alleged the law already is comprehensive enough to cover cellphone calls and texts and doesn't need updating.

Capeless, while maintaining this stance, said the Senate bill would clarify the law and prevent these kinds of arguments from happening.

"It would get everyone on the same page," he said.

A Joint Judiciary Committee staff member from the office of state Sen. Cynthia Stone, D-Newton, told The Eagle the bill requires further study by the Legislature, meaning that without changes it isn't likely to get passed in the next session, which begins in January.

Sen. Benjamin B. Downing, D-Pittsfield, who co-sponsored the bill, said Attorney General Martha Coakley brought the issue to the Legislature's attention. The law needs to be updated in regard to electronic communication, he said, because it hasn't been changed since 1968.

While parts of the bill were included in recently passed gambling legislation, he said, nothing concerning wiretapping was included in that bill.

Downing said that in talking with district attorneys throughout the state and with members of the Berkshire County Drug Task Force, he understands that criminals rely on current technology, such as texting, to deal drugs.

"You're not talking about people using beepers ... and walking over to a pay phone," he said. "Technology now isn't like it used to be in 1968, or even 10 or 15 years ago. ... Law enforcement needs to be on an even playing field with the people who are making our communities unsafe."

At the same time, Downing said, the state Legislature needs to get the law right in order to balance law enforcement's access to wiretaps with people's privacy rights.

Downing said he doesn't know whether the bill will make it out of the committee next session, but said it is an important issue to the attorney general and district attorneys in the state.

According to Capeless, the gambling legislation recently signed into law originally included the wiretap provisions from the stalled Senate bill, but they were struck down before the law's passage.

The Attorney General's Office declined to comment on either the Moody case or the Senate bill.

To reach Andrew Amelinckx:
or (413) 496-6249.
On Twitter: @BE_TheAmelinckx


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