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Justices call for change on wiretaps

SJC rules state law bars use in most street gang cases

By John R. Ellement and Maria Cramer
Globe Staff / April 9, 2011

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In unusually blunt language, two Supreme Judicial Court justices urged legislators yesterday to change state wiretap laws so police can use the evidence-gathering technique in murderous street crimes.

The two justices joined with their other SJC colleagues, who ruled 7 to 0 that secretly recorded evidence cannot be used against a man who allegedly was caught on tape admitting to a drive-by killing in Brockton in 2007.

The full bench said that state law, enacted in 1968, allows law enforcement to use wiretaps only when the investigative targets are engaged in organized crime. The SJC said the language of the law spells out the type of lawbreakers police can target: those in “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.’’

In a strongly worded concurring opinion, Justices Ralph D. Gants and Judith Cowin suggested that lawmakers must delete five words from state law.

“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,’’ Gants wrote.

The views authored by Gants concurred with those of Justice Robert Cordy, who wrote for the court in yesterday’s opinion that there was evidence that murder suspect Paulo Tavares and two other men investigated by State Police were part of a “putative street gang,’’ had possessed firearms, and probably “committed retributive killings.’’

But Cordy wrote that Tavares did not qualify as an organized crime figure because State Police did not offer evidence Tavares was part of a “pecuniary enterprise, such as drug, gun, or contraband trafficking, or promoted some other unifying criminal purpose.’’

Instead, Tavares’s alleged activities had “a continuing roguish or free-agent quality . . . rather than an organized criminal enterprise,’’ Cordy wrote.

In their concurring opinion, Gants and Cowin said the court made the right decision under current law and added that the Legislature should change the rules.

In Boston and other parts of the state, street gangs and loose coalitions of people commit murders and shootings, but police are unable to use what federal authorities have learned is an effective tool in gathering evidence against criminals, Gants wrote.

“The consequence [of current law] 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,’’ Gants wrote.

“These violent crimes are among the most difficult to solve, because the witnesses to these crimes are so reluctant to come forward to provide information and testimony for fear of violence, retaliation, and social ostracism,’’ Gants wrote.

He cited 2004 legislative testimony by Suffolk District Attorney Daniel F. Conley and research into the “stop snitching’’ culture.

Cordy wrote that street gang members have the same rights as any other citizen of Massachusetts. Unless police offer the evidence required by law, police cannot use wiretap evidence in criminal trials, he said.

“While street gangs that coordinate to commit violent acts may otherwise qualify as organized criminal entities, a member of a group or gang, like any other citizen of the Commonwealth, may not be surreptitiously wiretapped unless law enforcement meets its burden of demonstrating an objectively reasonable suspicion that the group has committed a designated offense in pursuit of organized efforts to supply illicit goods or services,’’ Cordy wrote.

Boston Police Commissioner Edward F. Davis said a rewrite of the state electronic surveillance law is long overdue. He said it has been difficult to make changes in the law because of concerns about privacy.

“It’s hard to say we want more authority to interfere in people’s lives,’’ Davis said in a telephone interview. “Clearly, this is a hugely intrusive process, but unfortunately it’s the only way to effectively deal with a real serious and violent organization.’’

Davis said street gangs in Boston may not fit the classic definition of organized crime as most people understand it to be from federal investigations into the Mafia.

But, he said, gang members are extremely sophisticated about what police can and cannot do. For instance, he said, they know to use disposable cellphones, which are harder for police to tap, to communicate with each other before and after serious crimes, such as murders and robberies.

Local police need the authority to use electronic surveillance, he said.

“There are people getting away with homicides that, if we had this ability, would be captured,’’ Davis said.

John Ellement can be reached at ellement@globe.com. Maria Cramer can be reached at mcramer@globe.com.