Commonwealth v. Mitchell (Lawyers Weekly No. 10-108-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11487 COMMONWEALTH vs. MARCUS MITCHELL. Bristol. February 3, 2014. ‑ June 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Eavesdropping. Evidence, Wiretap. Search and Seizure, Electronic surveillance, Warrant. Practice, Criminal, Interlocutory appeal, Motion to suppress, Warrant. Indictments found and returned in the Superior Court Department on May 6, 2011. A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J. An application for leave to file an interlocutory appeal was allowed by Spina, J. in the Supreme Judicial Court for the county of Suffolk. David B. Mark, Assistant District Attorney, for the Commonwealth. Richard B. Klibaner for the defendant. GANTS, J. Under the Massachusetts electronic surveillance statute, G. L. c. 272, § 99 F, the Commonwealth is required to obtain a warrant before it may conduct an “interception,” which is defined as the secret recording or transmitting of the contents of any wire or oral communication without the consent of all parties to the communication. G. L. c. 272, § 99 B 4. However, under the “one-party consent exception,” set forth in § 99 B 4, “it shall not constitute an interception for an investigative or law enforcement officer . . . to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined [under § 99 B 7].” The primary issue presented on appeal is the scope of the one-party consent exception, that is, whether a telephone call recorded by the police between the defendant and a cooperating witness is an “interception” requiring a warrant under § 99 F, where the cooperating witness, despite being instructed by a law enforcement officer to elicit information regarding a “designated offense,” instead elicits information only about a subsequent unrelated crime that is not a “designated offense.” A Superior Court judge concluded that the recording was not made “in the course of an investigation of a designated offense,” and therefore allowed the defendant’s motion to suppress the recording, because the cooperating witness did not attempt to discuss the “designated offense” during the recorded telephone call. We reverse the allowance of […]