Ruling on Boston wiretap could throw into question years of drug, gambling, and other state convictions
When Gary Crossen went to a state Superior Court judge on Nov. 6, 1981, with a request to tap a private telephone line, Crossen, then an assistant district attorney, was hot on the trail of an organized group of heroin smugglers in the Boston area.
Now, three years later, the 14 convicted smugglers may go free as a result of a legal technicality concerning the state's wiretap law.
The Massachusetts law that permits state and local officials to plant electronic ''bugs'' in homes and tap private telephone lines is under scrutiny by a panel of four federal judges, who are examining whether the law conforms with federal statute.
The examination comes as a result of Mr. Crossen's 1981 Suffolk County heroin-trafficking case in which the 14 defendants have sought to overturn their convictions. They charge that the evidence against them was gathered through improperly authorized wiretaps.
But according to federal, state, and local law enforcement officials, the federal decision could have potentially further-reaching effects than in just the heroin case.
If the judges rule the Massachusetts law is unconstitutional, the decision could unleash a series of legal challenges on past and pending narcotics, gambling, racketeering, and other Massachusetts investigations using wiretaps - some potentially dating back as far as 1968, according to law enforcement officials.
The case will have no effect, officials stress, on investigations in which wiretaps were federally authorized - such as in the ongoing probe of alleged Boston underworld boss Gennaro J. Angiulo.
Earlier this year a federal appeals court examining the Suffolk County heroin case ruled that the state's wiretap law was not in compliance with federal regulations. The appeals court overturned the heroin-trafficking convictions and ordered all evidence gathered in the wiretaps suppressed.
Subsequently the United States Attorney's Office moved to have the decision vacated and retried by a four-judge panel in federal appeals court. The state Attorney General's Office is also a party in the case, arguing with the US attorney that the state statute is constitutional.
The central issue is whether district attorneys at the county level in Massachusetts can designate their assistants to apply for wiretap and surveillance warrants. The state law clearly spells out that they may.
What is in question, however, is whether it was the intent of the US Congress when it passed the federal wiretap law in 1968 (which takes precedence over state laws) to permit district attorneys to designate their assistants to carry out wiretap applications. Some lawyers feel it was Congress's intent that a district attorney carry out wiretap applications personally.
During his investigation, Crossen, as an assistant to Suffolk County District Attorney Newman Flanagan, applied for and was granted by a state judge warrants for five wiretaps between Nov. 6, 1981, and Feb. 4, 1982, according to court records. Four of the warrant applications were accompanied by a letter in which Crossen was especially designated to ''make application'' for the wiretap warrant.
But according to court documents, ''No 'special designation' letter accompanied Crossen's application for the first wiretap.'' The same court document indicates elsewhere, however, that Crossen says he was authorized by letter for the first warrant.
Wiretapping and other forms of electronic surveillance have become increasingly important tools for law enforcement officials, particularly in complex and dangerous organized-crime investigations. It is an aspect of law enforcement shrouded in government-mandated secrecy.
Last year, according to federal documents, 448 requests for wiretaps were made to state judges nationwide, and 130 were made to federal judges. None of the applications were denied. The same documents note thatin Massachusetts in 1982, 14 state and eight federal wiretaps were approved.
Under federal and state law, an application must be made to a judge before any wiretap or electronic surveillance is initiated. During the review process, law enforcement officials are expected to justify to the court the need for the electronic surveillance vs. other available investigatory methods. And they must specify what crimes they are investigating.
While Congress has acknowledged that wiretapping and electronic surveillance are sometimes necessary law enforcement tools, it has also recognized the inherent dangers of making exceptions to the right to privacy.
In passing the 1968 wiretap law, Congress established a nationwide standard for electronic surveillance authorizations. The wiretap law was seen as a means of protecting all Americans - no matter what state they live in - from unwarranted invasions of their privacy by officials involved in criminal investigations.
''In a free society, you must balance the citizen's right to privacy against the need for effective law enforcement,'' says Leonard Henson, chief of the Organized Crime Division of the Suffolk County District Attorney's Office.
Since passage of the federal law, 27 states have drafted their own wiretap legislation, and eight states - Alaska, California, Illinois, Kentucky, Maine, North Carolina, North Dakota, and Tennessee - have completely outlawed wiretapping.
The Massachusetts debate is not over whether wiretapping should be permitted or not permitted; rather, it is over the precise method law enforcement personnel in the Bay State must use in requesting a wiretap.
The courtroom battle hinges on the use of taps - and the apparent and the intended meanings of such crucial words as ''apply for,'' ''authorize,'' and ''approve.''
The US Attorney's Office and the state Attorney General's Office contend that Massachusetts district attorneys do not have to apply in person for wiretaps. Rather, they say, state law, as upheld by the state's supreme court, allows that the very process of designating a special assistant to carry out wiretap applications is in and of itself ''authorization'' of the wiretap application by the district attorney.
Attorneys for the defendants argue that Congress intended to limit the number of people responsible for wiretap applications to a few central officials who could ensure that wiretaps were used cautiously and who could be held politically accountable for abuses. They say that only the district attorney himself is granted that responsibility.
They argue that under a looser system which permits designation of authority, there would be nothing to stop a district attorney from designating hundreds of assistants to pursue wiretap applications.
The original heroin-trafficking investigation was carried out jointly by officials of the federal Drug Enforcement Administration, the Boston Police Drug Control Unit, and the Organized Crime Division of the Suffolk County District Attorney's Office.
The investigation involved wiretaps on five telephone numbers in Norfolk and Suffolk Counties over a three-month period. Tapes of recorded conversations and the results of visual surveillance were presented to a federal grand jury.
The grand jury returned indictments charging the defendants with conspiracy to distribute heroin. They were all convicted of the crime in federal court, prior to their current appeal.