The Supreme Judicial Court today threw out incriminating statements made by a Brockton murder suspect to an informant wearing a wire, in a case that involves the state wiretap law and its definition of "organized crime."
The state's wiretap law generally forbids the recording of conversations without both parties' consent, with only a few exceptions, including investigations into "organized crime." The court ruled that while the group of men with whom Paulo Tavares was riding when he allegedly pumped 14 bullets into a man in another car may have been criminals, they were not organized enough under the law to warrant surreptitious recording by a police informant:
While the facts adduced in Trooper McGrath's affidavit evince some measure of organization, the dispositive factor is that the affidavit singularly fails to establish any evidence that the fraternization of Tavares, Ortega, Hanson, and Santos promoted the supply of "illegal goods and services" or the furtherance of an "ongoing illegal business operation" as the controlling definition of organized crime requires. ... While the evidence that the group convened at the "M," that they possessed guns, and that some members may have committed retributive killings in the past provides glimmers of the existence of a putative street gang, there is no information beyond speculation that Tavares or any other party was involved in a pecuniary enterprise, such as drug, gun, or contraband trafficking, or promoted some other unifying criminal purpose.
In addition to omitting evidence of a pecuniary or illegal business purpose, the affidavit contains information indicating that the group, as a unit, did not demonstrate "other hallmarks of organized crime--discipline, organization, and a continuing nature." ... Although the affidavit contains indicia of Santos's status as the putative leader of this group, there is other evidence that he lacked authority. As discussed, Tavares shot and killed Lima, even though Lima was a known friend of Santos and was not the target of the drive-by shooting. Moreover, in the past, Tavares killed another man who allegedly stole a gun from Santos, despite Santos's pleas to "let it go." These facts suggest a continuing roguish or free-agent quality to Tavares's allegedly violent impulses, rather than an organized criminal enterprise.
In a concurring opinion, two justices added:
In short, the legislative inclusion of five words, "in connection with organized crime," 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. If the Legislature wishes to avoid this result, it should amend § 99 to delete those words.
