Prosecutor/Appellants Loosing Reply Brief

TABLE OF CONTENTS Page ( 9 ) TableOfCases. . . . , .. Issues Presented . . . . . . Summary Of The Argument. . . Statement Of The Case. . . . Statement Of The F a c t s . . a) The The . . . , . . , . . . , . . . . . . . . . . . . . . . . . . . . , , . . . . . . . . . . . . , . . . .i . . . . .1 . . . . .2 . . . . .4 . . . . .7 .7 The Shooting Of Jams1 A. Vaughn . . . . . b) c) . . . . Investigation . . . . . , . . . . . . , . . . Issuance Of The Wiretap Warrant . . . . . . . . . . . . . . . , . . . . .E .9 d) The Affidavit In Support Of The Wiretap Warrant . .11 The Recording Of Defendant Long's Conversations At The Jai.1. . . . . . . . . . . . . . . .14 The Franks Hearing. . . . e) f) . . . . , .15 g) The Findings And Kulinqs Of The Superior Court. . .25 Argument I. 11. THE SUPERIOR COURT'S FINDINGS AND RULINGS ARE SUPPORTED BY THE RECORD . . . . . . . . . . . . . 28 THE SUPERIOR COURT PROPERLY FOUND MATERIAL MISSTATEMENTS IN THE AFFIDAVIT IN SUPPORT OF THE WIRETAP WARRANT WHICH LIKELY AFFECTED THE . .42 DECISION TO ISSUE THE WARRANT . . . ILL. THE SUPERIOR COURT PROPERLY FOUND THE ABSENCE OF EXHAUSTION OF NORMAL INVES'I'IG A T I V E METHODS AND TECHNIQUES PRIOR TO THE TSSCJANCE OF THE WIRETAP WARRANT , . , . . . . . . .43 . . . . . . . . . . . Conclusion . . . . . . . . . . . . . , . . . . . . 52 Table Of Cases casts ____.-.I- Page(S) Commonwealth v. D'Amour, 428 Mass. 725 (1999). ~ Commonwealth, -v. Fenderson, 410 Mass. -.,_ . . . . 40,41 82(1991). . , . 49 . . . . .42 Commonwoalth v. Gentile, 437 Mass. 569 (2002). ..I ........ Conrnonwealth v. Jarabek -. 384 Mass. 293 ( 3 . 9 8 1 ) . . . . .39,41 Comriionwealth v. Nine Hundred and Ninety Two Dollars, 383 Mass. 764 (1981) . . . . . . . . . .15 ~ . . . . . . . I Commonwealth v. Ramos, 72 Mass. App. Ct. 773(2008). Commonweiilkh I - . 43 v. Thorpe,384 Mass. 271(1981) . . . . 16,37,39 .15 Commonwcalth v. V i t - e l l o , 36'7 Mass. 224 (1975) . . . . Commonwealth v. Westerman, 414 Mass. 688 (1993). . . .45 --Commonwealth v. Wilson, 405 Mass 248 (1989) Franks v . . . . . . 46 Delaware, 438 U. S. 154 (1978). 2,3,4,5,6,15,16 17,25,34,42 United States v. Castillo-Garcia, 117 k'3d 1 1 7 9 ( 1 0 t h Cir . 1997) . . . . . . . . . . . . . . . . . . . . . . .49,50,51 United S t a t e s v. Hoffman, 8 3 2 F2d 1299(lat Cir 1987) . . .49 .51 United States v. Kalustian, 529 F 2 d 5 8 5 ( g t h Cir 1975). .. . United States v. Lilla, 699 F2d 99(2"' C i r 1983) .. . . . . . 51,52 United States v. Martinez, 452 F.3d (1" Cir. 2006). . . .45 United States v.. Mondragon, 52 F . 3 d 291(10'" Cir 1995) .51,52 United States v. Yeje-Cabrera, 430 F3d 1(lSt Cir 2 0 0 5 ) . .49 i. United S t a t e s C o n s t i t u t i o n F o u r t e e n t h Amendment Mas ~- s a c h u s e t t s . . . . . . . . . . . . . . .53 D e c l a r a t i o n. o f R i g h t s .. . Article 1 4 . Massachusett .s ch . ch. ch ch . . . . . . . . . . . . . . . . . . . 53 General Laws ch . 2 7 2 , ch . 272, ch . 272, ch . 272, . . 260,410 . 2 7 2 , 599 . 272, 265, 51 . . . . . . . . . . . . . . . . . .4,30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599A . 599A1 . 599B7 . 599E3 . 599F3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2,3,9,10,39,41, 44 . . . . . 3 6 , 3 . 7 , 40 . . . . . . . . 52 . . . . . . . . 29 . . . . . . 44,49 . . . . . . . .40 M a s s a c h u s e t t s R u 1 . e ~ of Appellate Procedure - Rule 16(a)(4). . United . . . . . . . . . . . . . . . .35, 43 S t a t e s Code 18 U.S.C. §2518(1) ( c ) . . . . . . . . . . . . . . 49 ISSUES PRESENTED I. Whether The Superior Court’s Findings And Rulings Are Supported By The Record. TI. Whether The Superior Court Properly Found Material Mis-Statements In The Affidavit In Support Of The Wiretap Warrant Which Likely Affected The Decision To I s s u e The Warrant. 111. Whether The Superior Court P r o p e r l y Found The Absence Of Exhaustion Of Normal Investigative Methods And Techniques Prior To The Issuance Of The Wiretap Warrant. I SUMMARY OF THE ARGUMENT The defendant-appellees are charged j.n the Superior Court with the offcnsc of murder in the first degree. The Commonwealth obtained a wiretap warrant to record defendant Long's conversations with visitors at the Norfolk County Correctional Center. The defendants filed motions to suppress defendant Long's statements made during the course of his inkcrcepted conversations with visitors at the jail. After arfordiny the defendants a Franks hearing, the Superior Court, Sanders, J., allowed the defendants' motions to suppress. I. The Superior Court held that the Application and the Moran affidavit in support of the Application, failed to show that normal investigative procedures had been trj.ed and failed or were reasonably unlikely to succeed if tr-i.ed and therefore, there was no "necessity'' to resort to wiretapping. The Court also held that the Commonwealth failed to show the statutorily required nexus with organized crime o r that a designated offense was about to be committed. The defendants argue that the Court's findings and rulings are supported by the record which consists o f defendant Long's recorded telephone c a l l s at the jail; the Application and Moran affidavit; and t h e testimony produced at a Franks hearing. (at-28-41) 2 11. 'The Superior: Court found that the Moran affidavit in support of the Application for a wiretap warrant contained material misstatements based upon the Court's review o f defendant Lony's recorded telephone conversations at the jail These misstatements likely affected the (at-42-43) decision to issue the wiretap warrant. 111. The Superior Court's review of the Application and Moran affidavit, a s well a s , the testimony produced at a Franks hearing, showed that although the Commonwealth became aware of the involvement and the identity of an alleged secund shooter in the commission of the murder, the Commonwealth did not exhaust nor try to exhaust normal investigative methods and techniques before it sought the issuance o f the wiretap warrant. The Commonwealth seeks the use of electronic surveillance in every garden variety murder case where the identity of the perpetrator is sought so that contrary to the p u r p o s e s of G.L. ch. 272, 599, electronic surveillance will be the norm rather than the exception. (at-43-52) 3 STATEMENT OF THE CASE On March 9, 2 0 0 6 , a Norfolk County Grand Jury returned indictment NOCR2006-00134 charging defendant Lony with the offenses of murder in the f i r s t degree in violation of G . L . ch. 265, 51 and unlawfully carrying a firearm in violati-on of G . ' C . ch. 2 6 8 , 5 8 0 . (R-1-7)* On August 1, 2 0 0 7 , defendant Long's Motion To Suppress Evidence, memorandum in support of and related papers were filed with the Court. (R-52-76) On September 7, 2007, defendant Long filed a Motion For Leave To File A Supplemental Motion To Suppress Evidence Out-Of-Time, a n affidavit in support thereof arid a Supplemental Motion To Suppress Evidence. ( R - 1 7 3 - 1 8 6 ) September 11, 2 0 0 7 , the Commonwealth's Opposition To Defendant's Motion To Suppress (R-212) was filed with the Court and on September 25, 2 0 0 7 , Defendant's Affidavit In Support Of Supplemental Motion To Suppress was filed. (R-187) T h e Commonwealth's Opposition To Defendants' Request For A Frank's Hearing was filed on October 4 , 2007. (R-2 1 ) 7 On Ci.tations to the Commonwealth's Record Appendix will be denoted "R": cj.tations to the Commonwealth's Addendum to its Brief will be denoted "A"; citations to the transcript of the hearing 011 September 28, 2 0 0 7 , will be denoted " T r . I"; and citations to the transcript of the F r a n k s hearing on January 1 6 , 2 0 0 8 , will be denoted " T r . F. hg.". A 4 On or about November I, 2006, a Norfolk County Grand Jury returned indictment NOCH2006-00733 (K-8-15) charging defendant Brown with the offense of murder in the first degree. On July 26, 2007, defendant Brown filed a Motion To Suppress Evidence Derived From "Wiretap" Warrant and aLfidavit in support; Motion For Leave To File Amended Motion To Suppress; Affidavit and Memorandum Of Law Late; and Motion To Join And Adopt Motion Of Co-Defendant To Suppress Evidence. (R-190-211) On September 7, 2007, defendant Brown filed his Memorandum Of Law In Support Of Motion To Suppress Evidence Derived From "Wiretap" Warrant. On September 11, 2007, defendant Brown's Motion To Suppress (Frank's) And Request For Evidentiary Hearing; Affidavit in support; and Memorandurn In Support Of Request Eor F r a n k s Hearing was docketed by the Clerk's office. (R-227-270) On September 11, 2007, the Commonwealth's Opposition To Defendant's Motion 'To Suppress was filed. (R-212) On September 17, 2007, the Commonwealth filed a Supplemental Opposition To Defendants' Motions To Suppress (R-224) On September 28, 2007, the Court, Sanders, J., held a hearing o n the defendants' requests for a Franks heariny. ('Yr. 1-1 et. seq.) On November 7, 2007, the Court issued a Memorandum Of Decision And Order On Defendants' Motions For 5 A Franks Hearing (R-276) ordering that such a hearing be scheduled. On January 16, 2008 the defendants were afforded a non-evidentiary hearing on the sufficiency of the affidavit in support of the wiretap warrant, as well as, an evidentiary hearing on the P r a n k ' s issues raised by the defendants' motions to suppress. (Tr. F. hy. -1 et. seq.) On February 4, 2008, the Court issued a Memorandum Of Decision And Order On The Defendants' Motions To Suppress Evidence allowing the defendants' motions t o suppress. (R-280) On February 6, 2008, the CoInmonwealth's Notice Of Appeal ( K - 2 9 4 ) was duly filed. On March 11, 2008, t h e Commonwealth's Application For Leave To File Interlocutory Appeal Of Allowance Of Defendants' Motions To Suppress (R-296) was filed in the county court. On April 4, 2008, the defendants filed a joint opposition to the Commonwealth's application (R-328). On April 9, 2008, the Sing1.e Yustice, Botsford, J., allowed the Commonwealth application to appeal. (R-340) Thereafter, this Court allowed the defendants to file a joint brief. 6 STATEMENT OF THE FACTS a) T h e Shooting Of Jamal A . Vaughn On January 9, 2006, at about 11:55 p - r n . , Jamal A. Vaughn was shot behind 145 Willard Street, Quincy, Massachusetts. The victim was transported to the Quincy Medical. Center where he was pronounced dead from gunshot wounds. An investigation conducted by State Police Detectives and Quincy Policc Department Uetectives ensued. Defendant Long became a suspect a n d efforts were initiated to locate him. p.m., On January 10, 2006, at approximately 2 : 3 0 defendant Long was arrested in Mattapan by Boston Policc Department Officers on an unrelated warrant and at 2 : 3 3 p.m., he was booked at the area 03 police station. Defendant Long was transferred to the custody of the Quincy Police Department where he was arrested and charged with the murder of Vaughn and processed at 10:42 p.m. On that date, at approximately 3 : O O p.m., State Police Trooper John Banik and Quincy Police Department Lt. Jeff Burrell, interviewed Lyndia Lewis, who claimed that she was a percipient witness to the shooting a n d who identified defendant Long. On January 11, 2006, defendant Long was arraigned in the Quincy District Court on Complaint 0656CR-00034Y and ordered held without bail at the Norfolk County Correctional Center. 7 b) The Investigation The State Police and the Quincy Police Department continued their investigation and on January 12, 2006, based on a preliminary ballistics report and a viewing of a surveillance video from an adjacent Home Depot Store, the police concluded that that more than one shooter was involTved.(R-28-33) On January 12, 2006, State Police Trooper John Moran traveled to the Norfolk County Correctional Center and learned from Assistant Deputy Superintendent of Investigations Steve Reilly that defendant Long was held in the maximum security unit; inmate calls were subject to monitoring and both the inmate and called party were advised of the monitoring by a recorded prompt. (Tr. F. hg.-57-61) Moran listened to recordings of defendant Long's telephone conversations with Tayna Newsomeby, his girlfriend and Richard Long, his nephew. (Tr. F. hg.-61-65) In a recorded telephone call, according to Moran, defendant Long said to Tayna Newsomeby, that regarding, "...the visitor thing...I would love to see you as soon as possible ...I need to politic wi h you outside this airway". (R-36-37) In a later recording defendant Long told Tayna Newsomeby that h e , "needs for [Rich] or [Tayna]... you don't mind ...to see me with n a certain time if nu because if I get indicted it's a wrap ...y know what I'm 8 saying...but yuu know if...( inaudi.ble) one of you all at least can cumc s e e me ...I mean.. I ’ l l be able to save that . indictment...“ (R-37) Defendant Long and Tayna Newsomeby also discussed that they knew the identity of the eye witness who allegedly observed defendant Long running from the scene. ( K - 3 7 ) On January 17, 2006, Moran returned to the jail and listened ‘LO another recorded telephone conversation of During that call, defendant Long with Tayna Newsomeby. Newsomeby contacted a third party, identified by defendant Lony as “C”, who said that he is laying low and that he had people submit requests to visit defendant Long at the jail. Defendant Long said to “C” that he wanted him to back ...way back”. , “fall Mnran also learned that there were visitation requests fur defendant Long from Althea Forde and Gillian Gibbs. (R-37) c) The Issuance Of The Wiretap Warrant Thereafter, the following were submitted to the Superior C o u r t , which issued responsive orders: January 20, 2006 . . . Application Of Craig F. Kowalski, Specially Designated Assistant District Attorney, Norfolk District, Pursuant to Massachusetts General Laws, Chapter 2’72, Section 99 (hereinafter ”Application”) (R-16) 9 January 20, 2 0 0 6 . . . Affidavit In Support Of An Application For A Court Ordcr And Warrant Authorizing The Electronic Interception Of Oral And Wire communications P u r s u a n t To Chapter 2.72, 5.99 (hereinafter "Moran Affidavit") (R-28) January 20, 2006 . . . Order Pursuant To Massachusetts General Laws, Chapter 272, Section 99, Authorizing The Interception Of Certain Oral And Wire Communications ( K - 4 2 ) January 20, 2006 . . .Wiretap Warrant (R-43) January 24, 2006 . . . Status Report #1 January 24, 2006 . . . Court Order After Receipt of Status Report #1 January 30, 2006...Status Report #2 January 30, 2006 . . . Court Order After Receipt of Status Report #2 February 6, 2006 . . . Return And Motion To Extend Time For Service On Wiretap Warrant February 6, 2006 . . . Order February 10, 2006 ...Application Of Craig F. Kowalski, Specially Desiynated Assistant District Attorney, Norfolk District, Pursuant to Massachusetts General Laws, Chapter 272, Section 99 g'ebruary 10, 2006 . . .Order Pursuant To Pursuant to Massachusetts General Laws, Chapter 272, Section 99, Authorizing The Interception Of Certain Oral And Wire Communications February 10, 2006 ...Wiretap 10 Warrant. ( # 2 ) February 14, 2006...Status Report $ 1 February 14, 2006...Court Order After Rece pt Of Status Report #1 February 21, 2006 . . .Status Report #2 February 21, 2006 . . .Court Order After Rece pt O € Status Report #2 February 27, 2006...Keturn And Motion To Extend Time For Service On Wiretap Warrant February 27, 2006...Order d) The Affidavit In Support Of T h e Wiretap Warrant The Affidavit of Trooper Moran, (R-28 et. seq.) in support of the Application For Wiretap Warrant (R-16), describes ten days of investigation from January 1.0, 2006, following the shooting of Jamal A. Vaughn on January 9, 2006, to January 20, 2006. concludes that: I n his affidavit, Moran Despite the success of law enforcement to date, the objectives of this investigation have not been met. While normal. investigative techniques undertaken to this point have provided the information detailed above, information as to the identity of the apparent second shooter, the disposition of the firearms used in the murder, the methods contemplated to silence and/or preclude the return of an indictment, and steps taken by the second shooter to avoid detection all remain unknown. Hence, the objectives of this investigation will not be reached through the use of normal investigative means. The search warrant executed to d a t e has not provided the sought evidence and there are no confidential informants who are willing to provide information. The arrest of Deryck Long is significant, but has not led to sufficient evidence against each of the shooters in this oryanized and calculated murder. As such, there is 11 little reason to believe that proceeding with normal investigative means would be successful in the future. Thus, there is probable cause to believe that the only means of gathering evidence to identify and successfully prosecute others in the conspiracy is by the use of court ordered electronic interception of oral and wire communications over the visitor's telephone in booth # 8 located and installed at the Norfolk County Jail at 200 West Street, Dedham, Massachusetts. There is probable cause to believe that Deryck Long will engage in conversations over this visitor's telephonc in violation of Massachusctts General. Laws Chapter 265, Section 1, as well as conspiracy to commit murder and accessory after the fact of murder. (R-40) On January 10, 2006, Troopers Moran and Bruce Tobin obtained informati,on from Janet O j o regarding a telephone call that she had received from Taneisha James-Pagan. (R-30) Troopers John Banik and Jeff Burrcll subsequently confronted Taneisha James-Pagan with Janet O j o ' s statement and she said that she had witnessed an altercation between Vaughn and defendant Long at 236 Franklin Street, Quincy, MA, earlier in the evening of January 9, 2006; that Vaughn got the better of the fight; a window in the apartment was later broken; however, she did not witness the shooting. (R-40-41) On January 11, 2006, Janet Ojo informed Moran and Tobin that the only friends defendant Long associated with were Richard Long and a black male nicknamed "Casino." (R-34). On January 13, 2006, Troopers B r o o k s and Russell spoke with Niyia McConneL1. at the scene of the shooting and 12 she stated that the first name of "Casino" was Courtney. She also stated that on January 9, 2006, she received a direct connect call from "Casino" just prior to the shooting and that it was hi.ghly unusual to receive such a call a s she had not heard from "Casino" in some time. (R-31-35) The Troopers obtained "Casino's" Nextell direct connect number from Niyia McConnell and ascertained that the number belonycd to Courtney Forde. Moreover, that a call made to either Niyia McConnell or to a neighbor, J e n n a Z,inyg, at 11:58 on January 9, 2006, utilized a cell tower which was about one-half mile from the scene of the shooting. (R-35) In his affidavit, Moran stated that, "A check of Courtney Forde's BOP record revealed a lengthy criminal history including possession of a firearm without a permit for which he plead guilty on 3/25/04 and received a one year prison sentence ... Because of the close association between Deryck I,ong and Courtney Forde, and b'orde's past history of carrying a firearm, and the closc proximity of the direct connect cal1.s to two witnesses at 145 Willard Street at the time of the shooting: there i s probable cause to believe t h a t Courtney Forde ( a . k . a . Casino) was with Deryck Long at the time of the shooting". (R-37-38) 13 On January 13, 2006, after speaking with Niaya McConnell, the Troopers became acutely aware o f the possiblc involvcment of "Casino" in the shooting, that he may be the defendant Lony's nephew and that h i s first name was Courtney. They were also aware of the fact that Niaya McConnell, a s well as, her neighbor, Jenna Zinyg, had received telephone calls from "Casino", "just prior to the shooting", which was unusual because they had not heard from him in some time and the late hour. (R-34-39) 'The 'Troopers also learned on January 13, 2006 of the identity and address of "Casino" through Nextell records (App. and on January 17, 2006, as a result of listening to defendant Long's recorded telephone conversation at the j a i . l with Tayna Newsome, that "C" or "Casino" or Courtney - ) Forde, was "laying low". e) A t the (R-34-38) The Recording Of Defendant Long's Conversations Jail On January 22, 2006, the conversat on between defendant Long and Gillian Gibbs in v i s tors' booth 8 at the Norfolk County Correctional Center, at about 6 : 2 3 p.m. to 7 : O O p.m., pursuant to the Wiretap Warrant issued by the Superior Court on January 20, 2006, was intercepted and recorded. It was the Commonwealth's intention to introduce the intercepted conversations in evidence at trial. 14 f) The Franks Hearing In his motion for leave to file a supplemental motion to suppress ( R - 1 7 3 ) , defendant Long asserted that the content of the transcript of a telephone conversation between defendant Long and Tayna Newsomeby which was prepared from a CD reviewed by counsel after defendant Long's original motion to suppress was filed, was the basis for his supplemental motion and "...itconstitutes an 'offer of proof, Commonwealth v. Nine Hundred and Ninety-Two ." . Dollars, 383 Mass. 761, 767-768 (1981 and a 'substantial prelimi.nary showing' that the affiant to the affidavit in support of t h e wiretap warrant, eithe intentionally or reckeiessly made false statements in his affidavit requiring this Court to afford the defendant a hearing pursuant to Franks v . Delaware, 438 U . S . (K-174) 154, 171 (1978) ." At the conclusion of a hearing on September 28, 2007, the Court, Sanders, J., stated, "...as I said, I a m really leaning heavily against having a F r a n k s hearing". (Tr. 1-42). The Court took the issue of affording the defendants a F r a n k s heariny under advisement and reviewed the recorded telephone conversations of defendant Long with 'I'aynaNewsomeby and Kichard Long. In a Memorandum Of Decision And Order On The Defendant's Motions For A Franks 15 Hearing i.ssued on November 7, 2 0 0 1 , the Court, Sanders, J., held that : . . . the defendants filed supplemental motions which made the additional argument that there were material omissions and misstatements in the Moran Affidavit which entitled them to an evidentiary hearing under Franks v . Delaware, 438 Mass. 154 (1978). Upon first review of these supplemental motions, this Court was not inclined to allow the request for an evidentiary hearing. Now, having more closely examined the Moran Affidavit, this Court concludes that the defendants have made the preliminary showing necessary for a P r a n k s hearing. _ I _ The Moran Affidavit sets forth portions of tape recorded conversations that the defendant Long had with his yirlfriend Tayna Newsomeby and his nephew Richard Long after the defendant was arrested and held in custody at the Norfolk County Correctional Center. In support of their motions for a Franks hearing, the defendants have provided this Court with a full transcript of those conversations. Although Moran did not misstate what Long said during these recorded conversations, it does appear to this Court that Moran took some of these statements out of context and _presented them in a way which was potentially .I mi s __leadi- ... (R-276-277) (emphasis added) ‘The Court proceeded to describe the “mis-statements” i.n the Moran affidavit and held that: If the above had been reported to the issuing judge, then the decision to a p p r o v e the wiretap warrant could very well have been different. Cri-tical to that decision was the findings that there was probable cause to believe that the interception of communications would lead to evidence of a statutorily designated offense commi.tted or to be committed ‘in connection with organized crime.’ G.L. ch. 272 §99(E). Organized crime is defined as a ‘continuing conspiracy among highly organized and disciplined groups enyaged in supplying illegal goods and services.’ Commonwealth v. Thorpe, 284 Mass. 2’11 276- 16 277 (1982). Although the S J C and Appeals Court have held that organized crime applies to more than "full time professional criminals," it is a statutory requirement nonetheless and one that may not have been met in this case if the full transcript of t h c recorded conversations had been presented to the issuing judge. Accordingly, a hearing is necessary to determine if the omissions described above were intentional. It i s therefore ORDERED t h a t a hearing be scheduled at the earliest possible date. (R-279) At a Franks hearing held on January 16, 2007, 'Trooper Moran testified that as of January 20, 2006, he had been employed by the State Police for approximately twelve years and as of January, 2001, he was assigned to the Norfolk County District Attorney's office as an investigator (Tr. F . hg. -12-13) Prior to January o f %006, Moran had not received instruction in regard to the drafting of wiretap warrants, nor in regard to G.L. ch. 272, 599, nor had he read the statute (Tr. F. hy. -13-14) Moran had only been involved in an investigative capacity in one prior case involving a wiretap. ( T r . F. hg. 16) Prior to January 20, 2006, Moran had not prepared an affidavit in support of an application for a wiretap warrant and this was the first case in which he prepared such an affidavit (Tr. F. hg. 17) Moran was assigned to the investigation of the shooting of Jamal Vaughn at 12:30 a.m. on January 10, 2006. He went to the scene; gathered information at the scene and - 17 conferred with Quincy Police Department Officers. hg. -18) (Tr. F. Moran spoke with Janet Ojo on the morning of January 10, 2006, who related khat s h e had received a telephone call. from 'l'anisha Pagan who said that Vauyhn and defendant Long had been involved in a fight in her apartment and that Vaughn had gotten the better of the fight. (Tr. F. hg. - 19) Other officers spoke with Pagan who c o n f i r m e d that there had been such a fight on the evening of January 9, 2006. (Tr. F. hg. t'olice - 21) Six State Troopers were assigned to the case, one of whom attended the autopsy of Vaughn on January 10, 2006 and learned that he had suffered from three gun shot wounds. (Tr. F. hg. 21, 23) Defendant Long became a suspect in Vaughn's shooting and on January 10, 2006, Moran learned that defendant Long had been arrested in Mattapan on outstanding warrants; that during the course of an interview he stated that he had been involved in a fight with Vaughn, that he left and went to Boston, that he refused to disclose who he was with and that he had not g o n e Lo Willard Street. (Tr. F. hg. 24-25) Moran also learned that Tayna Newsomeby, who was in the apartment when defendant Long was arrested, indicated that he had arrived between 1:00 and 1 : 3 0 a . m . (Tr. F. hg. - 2 6 - 27) Moran was informed that Lyndia Lewis stated that she had been j.n the apartment on Willard Street, Vaughn left to get cigarettes from his car, she heard several gunshots and observed d e f e n d a n l Long running from the area where Vaughn was shot. (Tr. .?i hg. -27) Lewis made a photographic A search of thc identification of defendant Long. apartment where defendant Long had been arrested did not produce anything of evidentiary value. (Tr. F. hg. -28) January 10, 2006, a warrant was issued by the Qui.ncy District Court charging defendant Long wi,th the murder of Vaughn a n d Moran was aware that he was held without bail a t the Norfolk County Correctional Center. ( T r . F. hg. - 2 8 ) On On January 11, 2006, Moran learned that defendant Long had been associated with someone who had the nickname "Casino" and that Chis person's first name was Courtney. Other than a n inquiry of the Boston Gang Unit if they were aware of a Casi.no, CC, or Courtney, with a negative response, Moran did not recall making any other such inquiries. ( T r . F. hg. 29-30) On January 12, 2006, Moran was informed that projectiles removed from Vauyhn's body were from two different calibers of firearms a n d from viewing a surveillance video from an adjacent Home Depot, he concluded that two shooters were involved. (Tr. F. hg. -30- 31) On that date, an investigation ensued to ascertain the 19 idenLity of the other shooter. The s i x State Police Troopers and Quincy Police Department Officers were involved in the investigation. (Tr. F. hg. -31-32) The police learned that Courtney Forde had called other persons in the building where the shooting occurred, just prior to the shooting and he became a suspect. (Tr. F. hg. -34-36) Other t h a n speaking with Courtney Forde' s mother, whose address investigators obtained from the telephone company and who did not know the whereabouts of Forde, the police did not do anythiriy else to locate Forde. (Tr. F. hg. -37-30,40) Moran was aware of the fact that Forde had a lengthy criminal record and outstanding warrants. E ' . (Tr. hg. 38-39) At some point, the investigators learned that Forde's father was a Boston Police Department Officer. (Tr. F. hg. -39,48) The investigators had a concern for the safety of Lyndia Lewis; however, it was uncertain if any efforts were made to afford her protection. hg. -41-44) (Tr. F. Nothing else was done to locate Forde. (Tr. F. hg. -44) A Bolo, or bulletin or wanted request for the apprehension of Forde, was not issued (Tr. F. hg. -44-45) The area in which Forde lived, was not canvassed or searched. (Tr. F. hg. 51) No efforts were made to contact Forcie's father, prior to Forde's arreslr. (Tr. F. hg. - 4 8 SO) Moran did not know if efforts were made to contact 20 T a y m Newsomeby, Janet Ojo or Jenna Zingg (who received a t c l e p h u r i e c a l l from Forde prior to the shooting) or i.f the home of Forde's mother was placed under surveillance. (Tr. 52-56) On July 12, 2006, Moran went to the Norfolk County Correctional Center to determine if defendant Long had placed telephone calls. (Tr. F. hg. 57-59) Prom speaking with Assistant Deputy Superintendent of Investigations Steve Riley, Moran discovered that defendant Long had made calls which were subject to monitoring and that he was held in the maximum security uniC of the jail. ('Ts. F. hg. -5960) Moran knew that both the inmate caller and the person called, received a "prompt" informing them that their call was being recorded. (Tr. F. hg. -60-61) Moran listened lo two or three audio recordings of defendant Long's telephone c a l l s to Tayna Newsomeby and Richard Long. (Tr. F. hg. - 61,64) Moran knew that defendant Long had been arrested in Newsomeby's apartment and that they had been involved in a short relationship. ( T r . F. hg. -63) As he listened to the recorded calls, Moran did not take notes; however, hc received a copy of a disk containing the calls and he had access to the disk before he drafted his affidavit. (Tr. P. h g . -65-67) 21 On J a n u a r y 1 7 , 2 0 0 6 , Moran r e t u r n e d t o t h e j a i l a n d a g a i n l i s t e n e d t o d i s k s of t e l e p h o n e c o n v e r s a t i o n s between d e f e n d a n t Long a n d Newsomeby; i n c l u d i n g a t a p e of il third p a r t y c a l l t o someone l d e n t i f i o d a s "C". Moran knew t h a t Newsomeby h a d c o n n e c t e d d e f e n d a n t Long t o C o u r t n e y F o r d e ( T r . F. hg. -72-74,'/6) and t h a t d e f e n d a n t t o n g was i n Moran was a w a r e of c o n t a c t w i t h Ford t h r o u g h Newsomeby. t h i s i n f o r m a t i o n p r i o r t o J a n u a r y 2 0 , 2 0 0 6 a n d t h e c a l l was made r e l a t i v e 1 , y c l o s e t o J a n u a r y 1 7 , 2006. ( T r . F. hg. - 76,77) No e f f o r t was made by Maran t o t r a c e t h c c a l l from ( T r . F'. t h e phone h e knew was u s e d b y F o r d e . hg. -77) P r i o r t o January 2 0 , 2006, Moran was a w a r e t h a t A l t h e a Ford and G i l l i . a n Gibbs had r e q u e s t e d t o v i s i t d e f e n d a n t 1,ong. Moran d i d n o t r e c a l l i f a n y a t t e m p t s were made t o 2006; however, i n t e r v i e w e i t h e r of t h e m b e f o r e J a n u a r y 20, h e d i d not s p e a k t o e i t h e r of t h e m . ('rr. F. h g . -78-79) I n d r a f t i n g h i s a f f i d a v i t , Moran c o n s u l t e d w i t h o t h e r S t . a t e P o l i c e O f f i c e r s , a s w e l l as, a s s i s t a n t d i s t r i c t a t t o r n e y s and l i s t e n e d t o t h e t e l e p h o n e r e c o r d i n g s . hg. -82-91) ( T r . F. Mocan d e c i d e d which p o r t i o n s of t h e t e l e p h o n e ( T r . F. hg. r e c o r d i n g s would b e i n c l u d e d i n h i s a f f i d a v i t . -91) (Moran's a f f i d a v i t was e n t e r e d i n t o e v i d e n c e a s E x h i b i t 1. ( T r . F . h g . - 9 6 ) ) 22 The contents of defendant Long's calls are included in parayraphs 1 7 and 18 of Moran's affidavit. (R-36-37) The phrase in which defendant Long said to Newsomeby, "the visitor thing, I would love to see you if possible. I need to politic with you outside this airway," follows 14 % minutes of conversation and nothing else from that: conversation was included in Moran's affidavit. (Tr. F. hg. 102, 110) Previously in that conversation, defendant Long Defendant Long also said that asks Ncwsomeby to visit him. the only reason he i s in trouble is because some chick is saying a bunch of lies about me; he denies that he is guilty of a crime; states that he was in Boston at the time; and re-emphasizes that he is innocent of the offense. (Tr. F. hy. -113,114) The only phrase included by Moran in his affidavit was the "politic off the airway" and politic is slang for "talk". (Tr. F. hg.-115) (The disks containing the recorded telephone calls were entered in evi.dence a s Exhibits 2 and 3. (Tr. F. hg. -128,143)) Before Moran obtained the wiretap warrant, he knew the identity of the other shooter. (Ts. F. hg. -144); however, when the decisi.on was made to apply for Che wiretap warrant, he a n d o t h e r investigators did not know for certain who the other shooter was. (Tr. E'. hq. -153,158) - 23 An article from the Quincy Patriot Ledger was admitted evidence, which, although it did not state Lewis' riame, referred to her by her nickname of "Sunshine" and stated that she was with Vaughn at both the Franklin Street apartment and the scene of the shooting; that she was positive that she saw defendant Long running from the scene o f the shooting; and that she selected defendant Long's photo from a n array. (Tr. F. hg. -182-189) According to Moran, this information was not disseminated by the State Police or the District Attorney's Office, but rather appeared in an arrest warrant which the newspaper obtained. ( T c . F. hg. -184-188) Moran disputed whether or not the 'Trooper who interviewed defendant Long after his arrest on January 10, 2006, divulged that "Sunshine" had seen him ruririing from the scene; however, Moran maintained that he was not aware that this information had been given to defendant Long. (Tr. F. hg. -180-182, 186) 24 g) The findings A d Rulings Of The Superior Court n On February 4, 2008, the Court, Sanders, J., issued an extensive Memorandum Of Decision And Order On The Defendant's Motions To Suppress Evidence in which the Court held that the motions to suppress must be all.owed. (R-2801 The pertinent findings of the Court a r e a s follows: When this matter first came before this Court in November 2007, defense counsel made available for me transcripts of some of these conversations in their entirety. A review of those transcripts showed that the sta.ternents made by Long and Newsome that were described in the Moran Affidavit were taken out of context and presented in a way which was misleadiny. My findings in that regard are set forth i i this Court's Memorandum of Decision arid r Order on the Defendant's Mot.i.on for a Franks Hearing, dated November 7, 200'7. Since that decision, this Court held a Franks hearing, and the CDs of all the conversatj.ons that Moran listened to were admitted into evidence. A review of this additional material only strengthens this Court' conclusion that, had all the material been .. presented to the issuing judge, she would not have been able to find the p r o b a b l e cause necessary for ..__ this kind of warrant. Given the extent to which they detract from Moran's statement -that there was . " in all likelihood an organizcdAlt afoot to . ..-..,."I_ obstruct justice and even to kill a witness, this ~. Court finds that these omissions by Moran had to have been intentional, or at least made with a reckless disregard ~.for the fact that they presented a false impression of events to the Court. (R-284-285) (emphasis added) .*._--I ~ _ _ _ ~ ~ The Court noted "additional omissions" from the Moran affidavit (R-285) and concluded, i n t e r a l i a , that: . . . I find that the search warrant was invalid for the fol1,owing reasons. First, the police failed to exhaust normal investigative methods before applying 25 for the warrant. Next, considering both the Moran affidavit and the hearing testimony, I conclude that there was insufficient evidence to establish probable cause that policc would uncover evidence of a designated offense connected with organized crime a s required by the statute. (R-288) . . . the Commonwealth has failed to show that the warrant was necessary to expose or prevent crime. Police had Deryck I.,ong in custody for the murder of Jamal Vaughn a n d had focused i n on Forde as the second shooter. 'They had quickly and successfully uncovered Focde's name, address and telephone number in the course of their Investigation. Although police believed Forde to be the second shooter in the Vaughn murder, they took few steps to locate or apprehend him. Although they talked to Forde's mother (who said she did not know where he was) they knew that his father was an MB'SA police officer, but never attempted to contact the father in an effort to locate his s o n . If they had pi.cked up Forde if only to interview him i.t i s probable that they would have turned up additional information helpful to their investigation. They instead chose to use wiretapping, which shou1.d be a last resort. (K-289-230) ...the affi.davit does establish that there was probable cause to believe that Vaughn had been murdered by two people, only one of whom had been identified. Although murder is a 'designated offense' under the wireCap statue, this Court concludes that it was not connected to organized crime a s that term has been defined by the courts, but was rather a garden variety street shooting. Specifically, there is no evidence that either drugs or money motivated the kil,ling,or that the murder was connected to a broader web of criminal activity. Although the Moran Affidavit makes much of the fact that Long asked Newsomeby to arrange for his friends to visit and implies the existence of some 'organization' with criminal. g o a l s in mind, this Court's review of e n t i r e content of the conversations does not bear that out. (R-291 ) The Commonwealth argues that, apart from the offense of murder, there was probable cause to believe 26 that a pl-ot to intimidate or even kill a witness was afoot. If s u p p o r t e d by probable cause, the Commonwealth coiiLd well be correct in asserting that this is the kind o f offense which could be considered connected to 'oryanized crime.' The problem is, howcvcr, t h e facts contained in the Moran Affidavit, coupled with the facts presented at the F r a n k s hearing, do not add up to probable cause that this offense was about to be committed. ( R - 2 91-29 2 ) The Moran Affidavit states that Long appeared to be encouraging his 'associates' to visit him in jai.1 so that they could figure out a way to 'save the indictment,' and that that phrase itself implied that a conspiracy existed to kill the eyewitness. The actual conversations reveal a far different concern. Long first raised with Newsome the issue about visitors by stating that he needed money for the jail canteen ('I ain't washed my ass since Sunday, you know what I mean?'). He continued to press his friends (including Richard Long) to visit him in order to assist him financially rather than for some other more sinister motive, a s the Moran Affidavit states. A s to the eyewitness and her supposed importance to t h e case against Long, she is mentioned only rarely in these conversations. In the longest exchange about her (between Newsome and Long), it was agreed that, as Long put it, 'her credibility is bullshit' and that there was little cause f o r concern. Moreover, the term 'save the indictment' upon which Moran hangs his hat is itself ambiguous and could mean only that Long needed to talk to his friends in order to preparing a defense. Aware that his telephone calls are not private ('I need to politic with you outside this airway'), Long asked Newsome and his nephew Richard Long to come visit. him in person - - not sinister in and of itself. (R-292) In addition to the conversation with Newsome, the Moran Affidavi.t relates a portion of a conversation that Long had with Courtney Forde in which he tells Forde (who volunteers that hc is 'ldying low') to 'La11 back . . . way back.' What the Moran Affidavit does not say is that most of the 27 conversation with Forde appears to concern Long's need for money and his hope that Forde will help him out financially. Long also asks Forde to pass on some 'broccoli' (apparently meaning marijuana) t o Newsome and a 'little paper' (presumably money) so that, 'I could get a little love up here.' In addition, Long's insistence that Forde 'fall back' is inconsistent with Moran's allegation that the defendant was involved in a 'plot to prevent a key eye witness from testifying against him [Long], which may include instructions to murder the witness.' In short, police did not have the facts necessary to support this wiretap application: it is i.nsufficient not just on one grounds but on several. ( R - 2 3 7 - 2 9 3 ) (citations omitted) ARGUMXNT I. THE SUPERIOR COURT'S FINDINGS AND RULINGS ARE SUPPORTED BY THE RECORD The Court, considering both the Moran affidavit and the hearing testimony, concluded that there was insufficient evidence to establish probable cause that police would uncover evidence of a desjgnated offense connected with organized crime a s required by the statute. (R-291) The C o u r t ' s factual findings and rulings are supported by the record. (R-16) Neither the Application For Wiretap Warrant, nor the Moran affidavit (R-28')contain sufficient facts showiny that defendant Lony's conversations in visitors' booth # 8 aC the Norfolk County Cosrecti.onal Center, would lead to evidence o f a designated offense in connection with organized crime. The allegation 28 e of murder is a designated offense under the statute, G.L. ch. 272, 9YB7, however, the Application makes bare allegations of a connection with organized crime wi.thout furnishing support f o r such assertions. Moreover, the Paragraph 4 of a affidavit does not mention organized crime. the Applicatiun states that upon, "...informationand belief 0 there is probable cause to believe that an organized conspiracy exists within and around Norfolk County for the purpose of concealing the participants in the murder of Jamal A. Vaughn, the location o f the weapons used in the murder and identifying and silencing of the witnesses to the murder ..." (R-16-17] Paragraph 5 avers that, "Based upon the facts contained in the attached affidavit by Trooper John M . Moran ... and reasonable inferences drawn there from, I believe that DERYCK LONG and others are presently involved in an organization which will use the telephone located in booth 1 8 of the maximum security area 6 at t h e Norfolk County Jail, . . o facilitate and continue an .t i 1 l . e g a l murder conspiracy...". (R-17) Paragraph 6 concludes that, "...that there is probab1.e cause to believe that the e interception of oral or wire communications, of DERYCK LONG over the telephone located in booth # 8 of the maximum a security area at the Norfolk County Jail, would not only constitute evidence o f the fact that designated offenses a 29 have been, are, and will continue to be committed, but that information will be obtained which will aid in the apprehension of persons who have and will continue to commit, organizc and direct violations o f Massachusetts General Laws, Chapter 265, Section 1, and/or conspiracy to commit and/or be an accessory after the offenses ... interceptions will reveal the structure, leadership and extent to which the conspiracy is related to organized criminal activity in a n d around Norfolk County, as well as revealing the participants and their r o l e s in this criminal conspiracy and locations where evidence of this conspi,racy will be found...". (R-17-18) Paragraph 8 (G), rather than detailing facts which demonstrate the involvement of organized crime, states that, the communications sought to be intercepted include, "Communications that indicate the identity of those individuals invol.ved in this illeyal organization" (R-19), which indicates that a-. prospective goal of the- interception is to obtain evidence of organized . crime, rather than the required predicated fact that ..-. ~. organized crime was involved in the murder of Jamal A. Vauyhn. The Application states that the, "factual predicates upon which ...probable cause is based ..." are provided in t h e Affidavit and j,nclude: 30 A) That DERYCK LONG, TAYNA NEWSOME, RICHARD LONG and COURTNEY FORDE, also known as “CASINO”, and others a r c members of an organized g r o u p which has committed murder arid continues to plot to (1) conceal evidence in the murder and preclude indictmcnLs for the murder in and beyond Norfolk County in violation of Massachusetts General Laws, Chapter 265, Section 1 and (2) to violate provisions prohibiting conspiracy and being an accessory after the fact of that section, That DERXCK LONG is assisted in the illegal operation by known and unknown associates, That DERYCK LONG and other members of his conspiracy could not conduct this operation without the assistance of presently unknown persons capable o f concealing the identity of the second shooter in the murder of Jamal Vaughn and lrhc location of the weapons used in the shooting as well as striving to eliminate eyewitness testimony and precl-ude indictments for the murder of Jamal Vaughn, C) R) 0) That based upon the expertise of the officers involved in this investigation, including Trooper John M. Moran, it is their belief that individuals such a s DERYCK LONG must maintain a very well disciplined organization in order to limit his and the second shooter‘s exposure to a successful prosecution for the murder of Jamal Vaughn, E) That DERYCK LONG, will use the telephone located in booth #E of the maximum security area at Chc Norfolk County Jail, 200 West Street,Dedham, Massachusetts, in the planning and commission of criminal offenses and the coordination of this organization, and F) That is evident that these persons aremembers of a highly organized group which would be necessary for the implementation and execution of this criminal conspi racy ) (H-13-20) In opposite to the claims in the Application, the Moran affidavit makes no mention of organized crime; it is 31 si.1.ent in regard to a connection with organized crime and it contains no facts supporting an inference of membership to an "organized group". (R-28) The Superior Court specifical y noted the following additional omissions in regard to he true content of defendant Long's recorded telephone calls: One of the 'associatcs' that the affidavit implies may be part of the plot to kill a witness was Richard Lony. Moran listened to a 30 minute conversation between Deryck Long and Richard Long and heard nothing to support that conclusion. Instead, most of the conversation concerned the fact that Dcryck Long had no money i n his canteen fund at the jail ('Irma broke and Imma chokin . . . ' ) and wanted Richard Long to come visit him in order to get him some money. There was no mention of the case against Long except to how long he was at Newsome's house on the night of the shooting. Nothing was said about any eyewitnesses. Not only did Moran not include the details of this conversation in his affidavit but he failed even to mention that he had listened to a conversation between the two Longs. (R-28 5 ) Moran also listened to a conversation between Deryck Long and Gillian Gibbs - another conversation he failed to report in the affidavit. Again, neither Long nor Gibbs (reportedly Courtney Forde's aunt) said anythiny to support the notion that there was any oryanized effort afoot to conceal evidence o r get rid of witnesses. 1,ong was instead intent on soliciting Gibbs' help to get a job for Long's girlfriend Newsomeby. (R-2851 The reference to an eyewitness to the shooting came upon Long's conversation with Newsomeby only after she pressed Long €or his assurance that the indictment was 'just bullshit.' Long points out to Newsomeby that he was not originally charged with ~ r i u r d e rwhen he was first arrested, that: he made a 32 statement to police because he had 'nothing to hide,' and that 'I've been on some peaceful shit for God knows how long.' With regard to the witness, Long laughs and points out that she is a 'prostitute' with 'no credibility.' "And the thing about it was home g i r l wasn't even there,' Long adds. This conversation is hardly consistent with a n effort to recruit Newsomeby into a plot with others to kill the witness, nor does it suggest that Long is so concerned about that witness' testimony that he would kill her, as Moran implies in his affidavit. Long's advise to Courtney F'ordc to 'fall back ... way back' came after Forde told him that Richard Long had dropped by Forde's house to t a l k about the shooting. In this contect, the comment seems to be advice to FOrde n o t to talk to anyone about the events, not criminal in itself. The remainder of the conversation is spent on money - the primary topic in all of these recordings. '.I: need you to help me out financially,' Long tells Forde. F u r d e hangs up and Long continues to t a l k to Newsorneb y , prima ri1y about their re lat ionshi p togeCher. (R-285-286) Moran's testimony at the hearing was even more si.gnificant with regard to his skatement in his affidavit that 'with the objective of this investigation will not be reached through the use of normal investigative means' and that, 'the only means of gathering evidence' is throuqh a wiretap of the telephone booth at t.he j a i . 1 . In particular, Moran admitted at the hearing that not only did police suspect that Forde was the second shooter, but they also believed they had enough to arrest him. The police had Forde's telephone number, had an address for h i m and knew that Forde's father was on the MBTA police force. Other than talking once with his mother; however, police made no further effort to track down Forde before applying for the warrant. Moran testified that the police did not pick up Forde for qucstioniny because they did not want to tip him off that he was a suspect. 'This explanation undercuts Moran's claim that when he wrote the affidavit, he was very concerned that Forde and others linked t.o I,ong would try to kill the witness Lyndia Lewis. If this had been a real concern, it is hard to 33 understand why police would let Forde remain on the streets, oarticularlv since he could verv well shed . light on othcr details of the investigation, including where the weapons used in the shooting could be found. Moran's professed concern for the witness' safety i s also belied by the fact that poli.ce made no secret at the time of Long's arrest that no speci,al efforts were made at any time to protect Lyndia Lewis or other witnesses - again undercuttiny the claim there was any real belief on law enforcement's part that Lewis or anyone else was in real danger. (R-286-287) The Court, proceeded to find that the Corrunonwealth argued that, "...apart from the offense of murder, there was probable cause to believe that a plot to intimidate or even kill a witness was afoot. If supported by probable cause, the Commonwealth could well be correct in asserting that this is the kind of offense which could be considered connected to 'organized crime'. The problem is; however, t h e facts contained in the Moran Affidavit, coupled with the facts presented at the F r a n k s hearing, do not add up to probable cause that this offense was about to be committed." (R-291-292) The Moran Affidavit states that Long appeared to be encouraging his 'associates'to visit him in jail. so that they could figure out a way to 'save the indictment,' and that the phrase itself implied that a curispiracy existed to kill the eyewitness. The actual conversations reveal a f a r different concern. Long first raised with Newsomeby the issue regarding visitors by stating that he needed money for the jail canteen ('I ain't washed my ass since Sunday, you know He continued to press h1.s friends what I mean?'). (including Ri.chard Long) to visit him in order to assist h j m financially rather than for some other more 34 sinister moti.ve, a s the Moran Affidavit states. A s to the eyewitness and her supposed importance to Lhe case against Long, she i,s mentioned only rarely in these conversations. In the longest exchange about her (between Newsomeby and Long), it was agreed thal;, as Long put it, 'her credibility i s bullshit' and that there was little cause for concern. Moreover, the term 'save the indictment' upon which Moran hangs his hat is itself ambiguous and could mean only that Long needed to talk to his friends in order to prepare a defense. Aware that his telephone calls are not private ('I need to politic with you outside this airway'), Long asked Newsomeby and his nephew Richard Long to come visit him in person - not sinister in and of itself. (R-292) In addition to the conversation with Newsomeby, t.he Moran Affidavit relates a portj.on o f a conversation that Long had with Courtney Forde in which he tells Furde (who volunteers that he i s 'layiny low') to 'fall back ...way back.' What the Moran Affidavit does not say is that most of the conversation with Forde appears to concern Long's need for money a n d his hope that Forde will help him out financially. Long also a s k s Forde to pass on some 'broccoli' (apparently meaning marijuana) to Newsomeby and a 'little paper' (presumably maney) so that, 'I could get a little love up here." In addition, Long's insistence that Forde 'fall back' is inconsistent with Muran's allegation that the defendant was involved in a 'plot to prevent a key eye witness from testifying against him [Long], which may include instructions to murder the witness.' In short, police did not have the facts necessary to support this wiretap application: it is insufficient n o t j u s t on one ground ( R-2 9 2 - 2 9 3 ) but on several. In contravention of Rule 16(a) (4) of the Massachusetts Rules of Appellate Procedure, which explicitly requires that, "The argument, the ...shall contain . . . citations to ... parts of the record relied on," the Commonwealth's argument as stated in its brief, (Commonwealth's Brief at 35 20 et. seq.) omits citation to the Moran affidavit and the ApplicaLion, and merely makes a passing reference to the Court's holding that this case involves a "garden variety" s t r e e t shooLing unrelated to organized crime. - at 36. Id. The Application only contains allegations or contentions and it specifically l o o k s to and relies upon the Moran affidavit to substantiate the assertions that thc murder of Vaughn was in connection with organized crime and/or that there was a conspiracy to murder Vauyhn which was connected with organized crime and/or that there was a conspiracy to either prevent detection of the other shooter or s h o o t e r s or to obstruct the investigation which was connected to o r g a n i z e d crime. Such reliance on t h e affidavit is misplaced, as the Moran affidavit makes no mention of organized crime and i.t i s silent in regard to a connection with organized crime (R-28 et. s e q . ) . Nor can the Moran affidavit be read to include inferences which show a connection to organized crime for either of these offenses, or support a findi.ng of a n "organized" or "disciplined" group" of any nature. The preamble to G.L. c. 272, §99A, defines organized crime in the following terms: The general court finds that organized crime exits within the Commonwealth and that the increasing activities of organized crime constitute a grave danyer to the public welfare and safety...Organized crime, as it exists in the Commonwealth today, 36 consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services. In supplying these goods and services, organj.zed crime commits unlawful acts and employs brutal and violent tactics Organized crime is infiltrating legitimate business activities and depri.ving honest businessmen of the right to make a living. G . L . ch. 272, 599A (emphasis added) (A-1) The Moran affidavit does not contain facts or inferences which may be read to satisfy the statutory definition of organj.zed crime. This Court in Commonwealth 280-281 (1981) discussed v. ‘l’horpe,381 Mass. 271, 276, the statutory dcfinition of organized crime and held that, “...of all the language used in the preamble, it appears that the Legislature intended to define organized crime a s ‘a continuing conspiracy among highly organized and discjplined groups to engage in supplying illegal goods and Id. services.’ -- at 277 In assessing the assertions which would constitute sufficient evidence of organized crime, the Court noted that the Commonwealth may not: ‘...only show a good faith belief on the part of the l a w enforcement ,.,. officials that organized crime was implicated. As ..,,..“I -evidenced by the statutory preamble and the legislative history, the Legislature proceeded on the premise that electronic surveillance is anathema except within certain narrowly prescribed boundaries. See G.L. c. 272, 599A (the ’unrestricted use of modern e3,ectronic surveillance device pose [ s ] grave dangers to the privacy of a l . 1 citizens of the Commonwealth’). When the Legislature decided, after proposals to the contrary, to allow some limited warrantless surveillance by law enforcement officers, it a l s o decided, consistent with its concern for the privacy rights of individual.^, to limit the reach of the ~ 37 statute to interception of offenses in connection with organized crime . . . _- CoImionwealth should be required the to show that t h c decision --_. -. to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offenses in connection with organized crime. The standard of reasonable s u s p i c i o n is an objective one; it is met by a showing of articulate facts from which a reasonable person could conclude that interception would lead to evidence of a designated offense. - at 2 7 9 - 2 8 0 Id. (emphasis added) It is beyond refute that such a showing was not made in the instant case which involved a "neighborhood shooting after a fight". The Moran affidavit makes no mention of a "continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services". Moreover, the Application o n l y makes bare assertions that such facts existed based on the affidavit. There was no evidence of a "highly organized and disciplined group" as the Affidavit only mentions friends and suspected relatives of defendant Long with whom he had or intended to confer. There was no showing in either the Application or t h e Moran Affidavit that there were "goods or services" i.nvolved in the alleged activities of defendant Lony or the other named persons.(R-16,28) Assuming, a r g u e n d o , that there was a continuing conspiracy, there are no facts in the Affidavit to find that it involved "a highly organized and disciplined group," .. 38 "engaged in supplying i-llegal goods or services." (A-1) Most crucially, the Commonwealth did not, "show that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense in connection with organized crime". The Moran Affidavit does not contain, "artieuable facts from which a reasonable person could conclude that interception would Lead to evidence o f a designated offense" in connection with organized crime. Commonwealth v. Thorpe, Id. at 281. The Court's issuance of the wiretap warrant predicated on the Moran affidavit violated G.L. ch. 272, §99 as the requisite organized crime nexus was not shown. Commonwealth v. Thorpe, supra; Commonwea1.th v. Jarabek, 384 Mass. 293 ( 1 . 9 8 1 ) . After careful review of the entire record, including defendant Long's telephone calls and following credibility findings based on the testimony at the Franks hearing, the Court held that: "The defendants contend that the Commonwealth h a s failed to show that the offense for which there is probab1.e cause is connected to orgranized crime within the meaning of the statute. Defined by the preamble of Section 99 and interpreted by the Court in Commomwealth v. Thorpe, . . .the term 'organized crime' means a highly oryanized and 'continuing conspiracy among 39 disciplined groups to engage in supplying illegal goods and services.' G.L. c. 272, § 99 A. Although organized crime includes more than professional criminal organizations and 'full-time professional criminals,' the Supreme Judicial Court has drawn a distinction between 'mere 'garden- variety' criminal activity, where wiretapping is irnpcrmissible, and crimes requiriny the high deyree of discipline and organization of organized crime.' See Commomwwealth v. D'Amour, 428 Mass. 725, 737 (1999). 'I'hUS, courts have found 'organized crime' where there exists some I structured group which is providing ; n illegal service." (R-290) The Court was more than justified in h o l d i n g that the Moran "...affidavit docs establish that there was probable c a u s c to believe that Vaughn had been murdered by t w o people, only one of whom had been identified. Although murder is a 'designated offense' under the wiretap statute, this Court concludes that it was not connected to organized crime as that term has been defined by the courts, but was rather a garden variety street shooting. Specicially, there is no evidence that either drugs or money motivated the killing, or that the murder was connected to a broader range of criminal activity. Although the Moran affidavit makes much of the fact that Long asked Newsonieby to arrange 40 for his friends to visit and implies thc existence of some 'organization' with criminal goals in mind, this Court's review of the entire content of the conversations does not bear that out." (K-291) 'The instant case does not present a factual record for the motion judge to make findings similar to the findinys i n Cormnomwwealth v . D'Amour, supra I"-._at 737 that, "[tlhe combined weight of this information warrant[ed] a reasonable belief that the murder required the organization and discipline o f the two prime s u s p e c t s and perhaps others, who necessarily had to maintain that discipline and organization in order to obtain and make use of the insurance proceeds," - Therefore, this case is Id. clearly distinguished from D'Amour. Because the supportiny Moran affidavit makes no mention of organized crime and it is silent in regard to a connection with organized crime, the Application (R-16) which states it is based upon the Moran affidavit (R-28), cannot as a matter of law be f o u n d to be sufficient to satisfy the organized crime nexus requirement of G.L. ch. 272, 5 9 9 , Cormomwealth v. Jarabek, supra and this Court need proceed no further to affirm the decision of the Superior C o u r t . 41 11. THE SUPERIOR COURT PROPERLY FOUND MATERIAL MISSTATEMENTS IN THE AFFIDAVIT IN SUPPORT OF THE WIRETAP WARRANT WHICH LIKELY AFFECTED THE DECISION TO ISSUE THE WARRANT 'The Court linked misstatements o f fact and materiaJ omissions in the Moran Affidavit to necessity, in the followiny manner: " Where the affidavit supporting the warran'l: contai,ns intentionally or recklessly misleading statements, the Court may consider evidence beyond the four corners of the warrant after conducting an evidentiary hearing. Franks v. Delaware, 438 U . S . 171-172 (1978) 154, . . .upon review of the aforementioned evidence,I find that the search warrant was invalid for the followiny reasons. First, the police failed to exhaust normal investigative methods before applyiny for the warrant. Next, considering both the Moran affidavit and the hearing testimony, I concluded that there was insufficient evidence to establish probable cause that police would uncover evidence of a designated offense connected with organized crime a s required by the statute." (R-288) In regard to the Court's findings, this Court, "...accepts the findings of the motion judge in the a b s e n c e of clear error and defers to his or her assessment of the credibility and weight of testimony, -Commonwealth , ~v. Gentile, 437 Mass. 569, 573 (2002). The 42 m a . t c r i a l misstatemcnts and "material omissions", Commonwealth v.,. Ramos, 72 Mass. App. Ct. 7 7 3 , 7 7 8 (2008), " .,.. -...... ... - . . f o u n d by the Court clearly support i,ts decision that the i - s s u i n g judge had b e e n mislead and supports thi.s Court affirmi.ng that ruling. 111. THE SUPERIOR COURT PROPERLY FOUND THE ABSENCE OF EXHAUSTION OF NORMaL INVESTIGATIVE METHODS AND TECHNIQUES PRIOR TO THE ISSUANCE OF THE WIRETAP WARRANT The Commonwealth's Statement Of FacVs in its Brief (commonwealth's Brief at 4 et. seq.) omits mention of the exhaustion of normal or traditional investigative methods, requirements such as use of informants o r approaching suspects by an undercover police officer or informant, standard surveillance, video surveillance, immunity, inspection of suspects' abandoned trash or follow up investigation of information previously obtained, having been attempted prior to the Commonwealth seeking electronic surveillance warrant. Although the Commonwealth's Brief (Id. at 22-23) lists minimal factors, it omits citation to the record as required by Mass. App. an P. Rule 1 6 ( a ) ( 4 ) . The Commonwealth seeks a decjsion by this Court, that electronic surveillance should be the rule, not the exception, in every garden vari-ety murder case in this 43 Commonwealth. In regard to the issue of necessity, the Court held that: has failed to show that thc warrant was necessary to expose or prevent crime. Police had Dcryck Long in custody for the murder of Jamal Vaughn and had focused in on Focde a s the second shooter. They had quickly and successfully uncovered Forde's name, address and telephone number in the course of their investigation. Although police bel-ieved Forde to be the second shooter in the Vaughn murder, they took few steps to locate or apprehend him. Although they talked to Forde's mother (who said she did not know where he was) they knew that his father was an MB'TA police officer but never attempted to contact the father i n an effort to locate his son. If they had picked u p Forde if only to interview h i . m - it is probable that they would have turned up additional inforrntLion helpful to their investigation. They instead chose to u s e wiretapping, which should be a last resort. ( R - 2 90) The Court's decision was correct and must be affirmed as G.L. ch. 272, §99, explicitly requires that, "...normalinvestigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried" or reasonably appear to be too dangerous. G.L. ch. 272, . . .the Commonwealth 599E3: Commonwealth v . Vitello, 367 Mass. 224 (1975 (A-9). As detailed in the Moran Affidavit, the ins ant case involved a mere ten days of investigation frorr January 10, 2006 to January 20, 2006 before the wiretap warrant was sought and issued by the Court. This period is extremely short, if not one of the shortest time period of jnvestigation prior to issuance of a wiretap warrant in a 44 state or federal case. Tho Moran affidavit a l s o evidences a complete absence of attempts to obtain cooperation or to offer immunity Lo defendant Long's girl,friend, Tayna Newsomeby or any sort of follow u p with the two other coopcrating witnesses, Janet 010 and Jenna Zingg, who were in telephone contact with the other suspected perpetrator; the absence of an attempt to locate, surveil, or interview the other suspect, Courtney Forde; and the total. absence of any and all mention of 'other availabl,e procedures or investiyative methods or techniques. Must crucially, the affidavit does not aver that normal investigative procedures "have been tried" and only speculates that such procedures would fail without providing a subsidiary factual basis for such an assertion. Contrast, Commonwealth v . Westerman, 43.4 Mass 688, 694 (1993)( " With regard to necessity, the affidavit points out several specific reasons for the failure of alternative methods of collection: "counter-surveillance," identification of undercover operatives, the failure of witnesses tu testify, the number of individuals and locations involved, and the inability of informants to reach the leaders of the conspiracy. We hold that these circumstances more than adequately satisfy the statutory requirement of necessity."); k i t e d States v. Martinez, 452 F'3d 1, 5 ( I a t 45 Cir 2006) ("The Masiel-lo affidavits describe in specj-fic detail the 1 3 L A ' s use, o r consi.deration and rejection, of eight tradiCiona1 investiyative techniques: (1) physical surveillance; (2) cooperating witnesses; (3) undercover officers; (4) witness interviews; (5) grand jury subpoenas; (6) search warrants; (7) pen registers; and ( 8 ) telephone tolls."); and Commonwealth v. Wilson, 405 Mass 229 (1989). Fuct-hermore, if affiant Moran believed t h a t time was of the essence, the affidavit did not explain the basis for his belief, n o r did he explain the reasons that it was not €casible for the Norfolk County Correctional. Center to delay visitor approval for a period of time so as to allow the State Policc and/or Quincy Police Department, additional time to locate, conduct surveillance and/or interview the other suspect and/or the expected visitors. In fact, the Moran affidavit appears to have been drafted in the form of a search warrant, with the exception of the conclusions in paragraph 23, which erroneously states, "While normal investigative techniques undertaken to this point have provided the information detailed above, information as to the identity of the apparent second shooter ...remain unknown". ( R - 4 0 ) , In particular, although the State Police and/or Quincy Police Officers became aware o f Courtney Forde's identity 46 and involvement in the shooting, the Moran Affidavit does not explain the failure to use and/or to try to utilize either Janet 010, Taneisha James-Pagan, Niyia McConnell and/or Jenna Zingg, for further investigation of Courtney Forde or further investigation o f any nature. The affidavit does n o t indicate that the State Police Troopers, the Qukncy Police Department Detectives or o f f i c e r s of any other law enforcement agency, made any sort of attempt to surveil, interview o r to otherwise investigate Courtney Forde, nos reasons or grounds that i.t was not possible to do so. On January 12 and 17, 2006, Trooper Moran learned of the recorded telephone conversation between defendant Long and Tayna Newsomeby, during which they indicated that, "...they knew the identity of the eyewitness who saw him running from the murder scene". (R-33) Once again, although aware of the knowledge and/or involvement of Tayna Newsomeby, the affidavit does not indicate an attempt of any nature was made to interview her or to otherwise utilize Tayna Newsomeby or to obtain her cooperation and/or to seck to obtain her cooperation in the investigati,on o f the other suspect. The Moran Affidavit also fails to mention any other investigative methods that were available and why such methods could not be utilized in thc course of further 47 investigation. In his Affidavit, Trooper Moran summarily concludes that, "...theobjectives of this investigation will n o t be reached through the use of normal jnvestigative means... there are no confidential informants who are willing to provide information ... there is little reason to believe that proceeding with normal investigative means would be successful in the future". ( R - 4 0 ) The Moran affj.davit does not state either the source or reasons for his conclusion in opposite to the requirements of G . L . ch. 272, 5 9 9 F 3 . (A-10) In addition, Moran's conclusions a r e belied by the undisputed fact Chat normal investigative means were not utilized and that no efforts were made to ascertain whether or not Chere were informants, confidential or otherwise, who were willing to provide information. The affidavit does not state that Tayna Newsomeby's cooperation was sought or Chat she was investiyatcd in any regard. Nor does the affidavit state that Tayna Newsomeby, or anyone else was offered immunity or other inducements to provide information. Given such facts and especially since no attempt was made to locate, surveil interview and/or otherwise investigate Courtney Forde prior to the filing of the wiretap warrant application, it is pure supposition for Moran to aver that, "...there is little reason to believe that proceeding with normal investigative means would be 48 successful in the future," since normal investigative means were not attempted. The provision in G.L. ch. 272, S 99E 3, which provides that a warrant authorizing a wiretap may issue only on, "a showing by the applicant that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tri-ed," (A-B-9) i , s virtually identical to the requirements of the federal wiretap statute. 18 U . S . C . 5 2 5 1 8 ( 1 ) ( c ) . Commonwealth v . Fenderson, 410 Mass 82, 83 (1991). The wiretap applicati.on must demonstrate that the government has made a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive a s the electronic intorccption of telephone calls. United States . . ., v. Yeje-Cabrcra, 430 F3d 1, 10 (lStC i r 2005). "In short, in a society which values privacy and the r i g h t s of the individual, wiretapping is to be distinctly the exception-not the rule." United States v. Hoffman, 832 F2d 1299, I 1306-1307 (lZL Cir 1387) . "...Generalities, or statements in the conclusory Language of the statute, a r c insufficient to support a wiretap application. The statements must be factual in nature". F3d 1179, 1188 United States v. Castillo-Garcia, 117 ( l o t h Cir 1997) (emphasis added) The legislative history of 18 U.S.C. 5 2518(1)(c) includes the 49 requirement that: "Normal investigative procedure would irlcludc, for example, standard visual or aural. surveillance techniques by l a w enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants, cited in United States v. Castillo-Garcia, supra at 1186 (citations omitted). If neither of the four categories of normal investigative procedures referred to in the legislative history of the federal statute have not been tried, the government must explain with particularity why each of such untrj.ed techniques would be either unsuccessful dangerous. --. OF too United States v . Castillo-Garcia -1 supra at 1186-1187. The Application in the instant case does not distinguish this c a s e from any other murder case where one u f two or more alleged shooters have been apprehended and the Commonwealth is seeking to identify and/or locate the other participant(s). Allowing the Commonwealth to proceed based on the allegations in the Application and/or the Mocan affidavit, would serve to permit every defendant charged in similar circumstances, to be subjected to e1.ectronj.c surveillance of his jail visitors without normal 50 investigative procedures having been tried arid failed u r to appear to be reasonably unlikely to succeed. The absence of a distincti.on o f the instant case from every other similar case where electronic surveillance was not sought, combined with the insufficient showing that normal investigative procedures were tried or were unlikely to succeed, mandates suppression as a matter of law. States v. Mondragon, 52 F.3d 291, 292-294 United 1995) ( l o t t 1 Cir (suppressing evidence of drug conspiracy obtained pursuant to wiretnppiny warrant because "necessity" for wiretap was not established in warrant application. "The second supplemental application and affidavit submitted by the police completely fail to address the necessity requirement. The documents do not refer to any alternate investiyativc procedures either undertaken or considered by the police"); .United States v. Lilla, 699 F2d 99, 104 (2"" I _I-. Cir 1983)(suppression granted because,"The affidavit fails to specify the facts upon which Cook based this conclusion concerniny normal invesligativc procedures being likely Iro fail"): United States v. Kalustian, 529 F2d 585, 590 ( g t h C i r 1975 ( " The government failed in this case to satisfy 18 U.S.C 5 2518(1)(c). Its application did not adequately show why traditional investigative techniques were not 51 suffi.ci.ent j n this particular case") ; United States v. . .--,I. ._lll-" Castillo-Garcia, supra at 119.7. The Court's issuance of the Wiretap Warrant predica ed on the Moran affidavit violated G.L. c 272, §99A3 as the e was no showing that normal investigative procedures were tried and failed, or reasonably appear unlikely to succeed i f tried. The decision of the Superior Court must be affirmed, United States v . Lilla, supra at 104; United States v. Mondragon, supra at 292-294. This is especially the case here as merely interviewing witnesses and reviewing otherwise available evidence during a mere eleven day period between the January 9, 2006 murder and the January 20, 2006 application for an electronic surveillance warrant, was both the shortest reported period of time for pre-wiretap warrant iissuance and perhaps the least amount o f investigation ever conducted in any case in this Cormonwealth. CONCLUSION For the foregoing reasons, the order of the Superior Court must be affirmed. Electronic surveillance cannot be the norm and should be a last resort when, and only when, a traditional organized crime faction or group is involved and a serious attempt has been made to utilize normal investigative techniques. A decision not affirming 52 the order of the Superior Court would serve to sanction the use of electronic s u r v e i l l a n c e in every g a r d e n variety murder case in this Commonwealth where the identity of the perpetrator is sought by the Commonwealth and wou3.d erode the fundamental. principals embodied in Article 14 of t-he Massachusetts Declaration of Rights and t h e F o u r t c c n C h Amendment tu the Constitution of the U n i k e d States. RcspecLlully submit'ccd Suite 1800 B o s t o n , MA 02110 (617) 737-8558 B.B.O. No. 212900 Kevin M i k K e l l 111 Everett Avenue Suite 2A Chelsea, MA 02150 (617) 0 8 4 - 6 4 8 0 B.B.O. No. 3 4 9 8 8 0 53