Opinion
15-P-1152
01-10-2017
COMMONWEALTH v. Jill PARKER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jill Parker, appeals from her conviction, arguing that the judge erred in denying her motion in limine to exclude wiretap evidence. On appeal, she contends that the wiretap evidence should have been excluded because it was obtained in violation of the Massachusetts wiretap statute, G. L. c. 272, § 99, and art. 14 of the Massachusetts Declaration of Rights due to the statute's Federal officer exemption, G. L. c. 272, § 99 D 1 c, not being applicable. We affirm.
The defendant was charged with trafficking oxycodone, fourteen grams or more. Prior to trial, she filed a motion to exclude the wiretap evidence. The judge conducted an evidentiary hearing and subsequently denied the motion. After a jury trial, the defendant was convicted of the charge and this appeal followed.
Discussion . The Massachusetts wiretap statute generally prohibits the interception of wire or oral communications, G. L. c. 272, § 99 C 1, however, there is an exception "for investigative and law enforcement officers of the United States of America ... if acting pursuant to authority of the laws of the United States and within the scope of their authority." G. L. c. 272, § 99 D 1 c, inserted by St. 1968, c. 738, § 1. That exception applies to investigations that are Federal, as opposed to State-oriented. Commonwealth v. Gonzalez , 426 Mass. 313, 316 (1997).
An investigation is considered to be Federal where "Federal agents [make] the decision to record the conversations" and "[t]he purpose of the investigation [is] to obtain evidence for a Federal prosecution." Ibid . See Commonwealth v. Brown , 456 Mass. 708, 713-714 (2010). Even if prosecutorial discretion prevents a case from proceeding in Federal court, the investigation may still be considered Federal. Gonzalez , supra .
The defendant contends that the investigation conducted here was, from its inception, done with the purpose of collecting evidence for a State prosecution. She asserts, therefore, that the Federal exemption to the wiretap statute does not apply. We are not persuaded.
According to the judge's factual finding, which we must accept unless clearly erroneous, see Commonwealth v. Scott , 440 Mass. 642, 646 (2004), the investigation was commenced by a local Florida State police officer, who was working at the time under the supervision of the Federal Drug Enforcement Administration (DEA) task force. The officer arrested a man for selling oxycodone to individuals in the Northeast. After his arrest, the man agreed to cooperate with the authorities, and he was documented as a Federal informant.
In that capacity, the informant then engaged in recorded telephone calls to the defendant and her father, Raymond Parker. During that time, the officer had no contact with State or local Massachusetts law enforcement authorities. The matter was documented as a Federal investigation.
As a result of their telephone conversations with the informant—the subject recordings—the defendant and her father agreed to the purchase of oxycodone pills for redistribution. The pills were delivered to them in Massachusetts. The defendant and her father were arrested by local authorities upon delivery, and the matter was prosecuted by State authorities.
Under the circumstances, we agree with the judge's conclusion that the investigation was Federal. The investigation was initiated, controlled, and executed exclusively by Federal authorities. Contrast Commonwealth v. Jarabek , 384 Mass. 293, 297 (1981) (despite heavy Federal presence, where State had contact with informant, funded recordings of conversations, participated in recording expeditions, and retained veto over making recordings, investigation deemed State-oriented). Aside from the defendant's arrest and prosecution, there was no analogous participation in the investigation by State authorities.
We are also not persuaded by the fact that the officer controlling the investigation understood that Federal prosecutions involving the exchange of 500 pills or less were rare. First, the officer could not know at the inception of the investigation the quantity of pills the defendant and her father would be willing to purchase. More importantly, however, while he intended the investigation for a Federal prosecution, the decision to accept or reject the matter for Federal prosecution did not rest with him, and we cannot presume to know why Federal prosecutors rejected prosecution.
In sum, we conclude that the judge properly found that the investigation was Federal. Accordingly, the admission of the wiretap recordings did not violate the defendant's rights under either art. 14 of the Massachusetts Declaration of Rights, see Gonzalez , 426 Mass. at 317, or G. L. c. 272, § 99.
Judgment affirmed .