Commonwealth v. Bickford

Massachusetts Supreme Judicial Court

Commonwealth v. Bickford

471 N.E.2d 1295, 393 Mass. 1006, 1984 Mass. LEXIS 1866

CourtMassachusetts Supreme Judicial Court

DecidedDecember 5, 1984

StatusPublished

This text of 471 N.E.2d 1295 (Commonwealth v. Bickford) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Bickford, 471 N.E.2d 1295, 393 Mass. 1006, 1984 Mass. LEXIS 1866 (Mass. 1984).

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Opinion

The defendants argue that the district attorney lacked authority to apply for a warrant to wiretap outside his district. This issue has been decided adversely to the defendants. See Commonwealth v. Assad, ante 418, 423 (1984); United States v. Smith, 726 F.2d 852, 861 (1st Cir. 1984). Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1982), “does not purport to dictate to states what the geographical authority of their enforcement officers must be.” United States v. Lilia, 534 F. Supp. 1247, 1257 (N.D.N.Y. 1982), rev’d on other grounds, 699 F.2d 99 (2d Cir. 1983). See People v. DiPasquale, 47 N.Y.2d 764, 765 (1979). The application for the wiretap warrant and the accompanying affidavit are sufficient to support the conclusion of the judge issuing the warrant that “an illegal gaming conspiracy was in part taking place in Essex County.” Commonwealth v. Assad, supra at 423.

Stanley W. Norkunas for Donald Bickford (Robert B. Gould, for Aristotle Tavoularis, with him). Lila Heideman, Assistant District Attorney, for the Commonwealth.

The defendants also assert that the evidence must be suppressed because the Commonwealth did not offer any evidence as to the extent of the district attorney’s participation in the decision to seek a wiretap warrant or, in the alternative, because the defendants were not given an opportunity to cross-examine the district attorney on that issue. Since the district attorney cosigned the application, “there [is] no questioning the sufficiency of his authorization.” United States v. Smith, supra at 859. The application and the accompanying documents are sufficient “to underlie a knowledgeable authorization. ” Id. “[I]t is to be presumed that the officer has properly exercised the judgment called for by the statute when he affixes his signature to an order authorizing an application.” United States v. Turner, 528 F.2d 143, 151 (9th Cir.), cert. denied sub nom. Grimes v. United States, 423 U.S. 996 (1975), and sub nom. Hackett v. United States, 429 U.S. 837 (1976). See Commonwealth v. Monosson, 351 Mass. 327, 330 (1966). Any other result might unduly interfere with the effective operation of the office of the district attorney, an office in the executive branch of government.

The order of the Superior Court judge denying the motions to suppress the wiretap evidence is affirmed. This matter is remanded to the Superior Court for further proceedings.

So ordered.

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The defendants argue that the district attorney lacked authority to apply for a warrant to wiretap outside his district. This issue has been decided adversely to the defendants. See Commonwealth v. Assad, ante 418, 423 (1984); United States v. Smith, 726 F.2d 852, 861 (1st Cir. 1984). Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1982), “does not purport to dictate to states what the geographical authority of their enforcement officers must be.” United States v. Lilia, 534 F. Supp. 1247, 1257 (N.D.N.Y. 1982), rev’d on other grounds, 699 F.2d 99 (2d Cir. 1983). See People v. DiPasquale, 47 N.Y.2d 764, 765 (1979). The application for the wiretap warrant and the accompanying affidavit are sufficient to support the conclusion of the judge issuing the warrant that “an illegal gaming conspiracy was in part taking place in Essex County.” Commonwealth v. Assad, supra at 423.

Stanley W. Norkunas for Donald Bickford (Robert B. Gould, for Aristotle Tavoularis, with him). Lila Heideman, Assistant District Attorney, for the Commonwealth.

The defendants also assert that the evidence must be suppressed because the Commonwealth did not offer any evidence as to the extent of the district attorney’s participation in the decision to seek a wiretap warrant or, in the alternative, because the defendants were not given an opportunity to cross-examine the district attorney on that issue. Since the district attorney cosigned the application, “there [is] no questioning the sufficiency of his authorization.” United States v. Smith, supra at 859. The application and the accompanying documents are sufficient “to underlie a knowledgeable authorization. ” Id. “[I]t is to be presumed that the officer has properly exercised the judgment called for by the statute when he affixes his signature to an order authorizing an application.” United States v. Turner, 528 F.2d 143, 151 (9th Cir.), cert. denied sub nom. Grimes v. United States, 423 U.S. 996 (1975), and sub nom. Hackett v. United States, 429 U.S. 837 (1976). See Commonwealth v. Monosson, 351 Mass. 327, 330 (1966). Any other result might unduly interfere with the effective operation of the office of the district attorney, an office in the executive branch of government.

The order of the Superior Court judge denying the motions to suppress the wiretap evidence is affirmed. This matter is remanded to the Superior Court for further proceedings.

So ordered.

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471 N.E.2d 1295, 393 Mass. 1006, 1984 Mass. LEXIS 1866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bickford-mass-1984.

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