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Massachusetts Supreme Judicial Court Reverses New Bedford Murder Conviction Because the Police Violated the Wiretap Law

The Massachusetts Supreme Judicial Court today reversed the murder conviction of a man who was found guilty of shooting to death a rival gang member in New Bedford in 2005.  The Court ruled that a state trooper improperly obtained a warrant to record the defendant’s jailhouse confession to another inmate, in violation of the Massachusetts Wiretap Statute.  The name of the case is Commonwealth v. John Burgos.

The evidence at trial established that the defendant was a member of the United Front Gang in New Bedford.  In 2004, another member of the United Front Gang was killed, allegedly by a member of the Monte Park Gang.  The Commonwealth’s theory was that the defendant in this case shot the victim, who was a member of the Monte Park Gang, in retaliation for the previous murder of the United Front Gang member.  Three years after the 2005 murder, the defendant’s cellmate at the Bristol House of Correction sent a letter to an assistant district attorney offering to obtain an incriminating statement from the defendant about his involvement in the killing.  The assistant district attorney passed along the letter to a state trooper, who applied for a warrant to allow the cellmate to wear a wire to record the defendant’s confession.  A superior court judge authorized the warrant and the defendant subsequently admitted during a recorded conversation that he was involved in the shooting and provided details of the incident.  Based largely on his confession, the defendant was convicted of murder.

Before his trial, the defendant filed a motion to suppress his confession, arguing that his cellmate, at the direction of the state trooper, had violated the Wiretap Statute by recording the conversation without his knowledge.  In Massachusetts, it is generally illegal to secretly record an oral communication.  However, there is an exception that allows for “one-party consent” where the person recording the conversation is (1) either a law enforcement officer or a law enforcement officer’s agent; and (2) investigating a “designated offense.”  While murder is a designated offense under the statute, the final requirement for one-party consent recording is that the designated offense  was committed “in connection with organized crime.”  Organized crime has been defined by the Supreme Judicial Court as “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.”

The “organized crime” requirement has proven problematic for the Commonwealth in past cases.    Prosecutors have attempted in these types of cases, with varying success, to convince judges that street-level gang members satisfy the “organized crime” definition because they are in the business of trafficking weapons and drugs, and the structure of gangs are disciplined, organized, and continuously engaged in illegal conduct.  In some cases, courts have accepted those arguments and found that gang members who commit crimes are engaged in the legal definition of “organized crime.”  In this case, however, the Court found that the state trooper who applied for the search warrant only vaguely referenced facts about the existence of rival gangs in New Bedford who were involved in selling narcotics, and there was no evidence whatsoever that the murder was connected to the ongoing criminal enterprise (the trafficking of drugs).  Therefore, the defendant’s jailhouse confession should not have been admitted against him at trial.  The Court reversed his conviction and remanded the case to superior court for a new trial.

Chief Justice Ralph Gants wrote a concurring opinion to point out that Massachusetts police officers will be unable to use wiretaps to record conversations related to most gang shootings, because of the requirement that the investigated crime be connected to organized crime.  The chief justice reiterated that the Legislature could solve this problem by eliminating five words – “in connection with organized crime” – from the statute.

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