Commonwealth v. Tavares

Gants, J.

(concurring, with whom Cowin, J., joins). I agree with the court that an electronic interception of oral communications under G. L. c. 272, § 99, is permitted only where there is probable cause to believe the intercepted oral communications will provide evidence of a “designated offense,” which is defined as one of the listed offenses “in connection with organized crime.” G. L. c. 272, § 99 B 7 and F 2 b. I also agree with the court that “organized crime,” as defined in the preamble, “consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” G. L. c. 272, § 99 A. Finally, I agree with the court’s conclusion that the information in the electronic surveillance affidavit, while it provided probable cause to believe that the defendant had committed a murder and that the requested oral interceptions would provide evidence of the defendant’s participation in the murder, did not provide the required reasonable suspicion that the murder was “in connection with organized crime,” so the allowance of the defendant’s motion to suppress must be affirmed. I write separately because I believe that “attention must be paid” 1 to the consequences of the statutory language in § 99 that permits electronic surveillance only to obtain evidence of a designated offense “in connection with organized crime.”

By limiting electronic surveillance to designated offenses “in connection with organized crime,” § 99 prohibits electronic surveillance from being used to investigate designated offenses, *304 including murder, that are committed by disorganized criminal gangs or even by organized street gangs that do not engage in supplying illegal goods and services, such as narcotics. The consequence is that electronic surveillance is lost as a tool to investigate and prosecute a substantial share of the murders and shootings that occur in this Commonwealth — those committed by street gangs. “Between 1999 and 2006, the number of gang-related youth homicides [in Boston] had increased six-fold.” Braga, Losing Faith? Police, Black Churches, and the Resurgence of Youth Violence in Boston, 6 Ohio St. J. Crim. L. 141 , 153 (2008). “In contrast to large and semi-organized gangs in Chicago and Los Angeles, Boston gangs were (and are) mostly small, informal, and loosely organized groups of youth,” usually associated with a “specific street, neighborhood, or housing project.” Id. at 154 . Perhaps as a consequence, a “majority of Boston youth homicides identified as gang-related were not about drugs, money, turf, or other issues in which the violence could be reasonably construed to be instrumental. They were usually personal and vendetta-like.” Id. at 153 n.40. 2 See Kennedy, Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy, 59 L. & Contemp. Probs. 147, 153 (1996) (“urban environment has become so threatening even for youth not involved in the drug trade that many are arming themselves [and engaging in other nominally self-protective behavior such as joining gangs] for self-defense”).

The loss of electronic surveillance (which includes not only “bugging” a room or a telephone but also the consensual “wearing of a wire” by a cooperating witness, as occurred in the instant case) as an investigative tool in gang shootings is even more troubling when one considers that these violent crimes are among the most difficult to solve because the witnesses to these *305 crimes are so reluctant to come forward to provide information and testimony for fear of violence, retaliation, and social ostracism. At a 2004 legislative hearing, the district attorney for Suffolk County estimated that “issues of intimidation,” described as victims or witnesses refusing to cooperate or changing or recanting earlier testimony, occurred in up to ninety per cent of his office’s cases involving guns, gangs, or serious violence. There is no reason to believe that this percentage has fallen since then, or that other urban areas in the Commonwealth do not face comparable problems obtaining the cooperation of victims and witnesses in street gang shootings. See generally Woldoff, Stop Snitchin’: Exploring Definitions of The Snitch and Implications for Urban Black Communities, 17 J. Crim. Just. & Popular Culture 184 (2010).

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.

A. Miller, Death of a Salesman, The Portable Arthur Miller 19, 60 (1995).

“Gang-related motives accounted for 76.9% of the 39 youth homicides in 2006. Boston gang members were also involved as either the perpetrator or victim in 70% of the shootings in 2006.” Braga, Losing Faith? Police, Black Churches, and the Resurgence of Youth Violence in Boston, 6 Ohio St. J. Crim. L. 141 , 153 (2008). Other studies have “found gang-related motives in more than one third of homicides in Chicago, fifty per cent of the homicides in Los Angeles’ Boyle Heights area, and seventy per cent of the homicides in Lowell, Massachusetts.” Id. at 153 n.38.