COMMONWEALTH v. BETTENCOURT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following an evidentiary hearing and a jury trial in the Superior Court, the defendant, Erica Bettencourt, was convicted of unlawful possession of a rifle. On appeal, she claims that the judge erred in denying her motion to suppress an identification, and in admitting an undercover wire recording. We affirm.

1. Motion to suppress identification. The defendant claims that the judge erred in denying her motion to suppress, because the identification procedure was unnecessarily suggestive. “When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error.” Commonwealth v. Watson, 455 Mass. 246, 250 (2009). “We make an independent determination of the correctness of the judge's application of [the law] to the facts as found,” bearing in mind that it is the province of the motion judge to resolve issues of credibility. Id., citing Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

To succeed on her motion, the defendant has the burden to establish, by a preponderance of the evidence, that the identification procedure used was “so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [the defendant] due process of law.” Commonwealth v. Dew, 478 Mass. 304, 306-307 (2017), quoting Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006). We ask “whether good reason exists for the police to use a one-on-one identification procedure,” such as a single photograph identification procedure, as was used here. Commonwealth v. Austin, 421 Mass. 357, 361 (1995). See Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 712 (2018) (single photograph identification procedure equivalent to one-on-one showup). In determining whether the police had good reason, relevant factors include “the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which if in error, will release the police quickly to follow another track.” Dew, supra at 307, quoting Austin, supra at 362.

Here, agents from the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) were conducting a Federal investigation into an illegal firearm trafficking ring. As part of the investigation, a Brockton police detective, who spoke Haitian Creole, working undercover, assisted the ATF. The defendant sold a semiautomatic rifle with no serial number to the undercover detective. She also told him that she was able to acquire a fully automatic weapon (a machine gun) and would sell it to him. Within ten minutes of the sale, the ATF supervising agent showed the detective a photograph of the defendant; he confirmed that the woman in the photograph had just sold him the firearm. In assessing the Austin factors, we agree with the motion judge that there was good reason for the one-on-one procedure. See Commonwealth v. Sylvia, 57 Mass. App. Ct. 66, 69-70 (2003). The firearm trafficking ring posed an immediate threat to public safety, there was a need for efficient police investigation, the procedure was performed promptly, and there was very little risk that the detective would mistakenly identify the defendant. Moreover, agents had observed the defendant's car, and a female matching the defendant's description in that car, in three prior gun transactions. Thus, the identification procedure was used to confirm the accuracy of the police's investigatory information. See Commonwealth v. Martinez, 67 Mass. App. Ct. 788, 794 (2006). The motion was properly denied.

2. Admission of undercover wire recording. The defendant argues that the judge erred in admitting an undercover wire recording of a conversation between her and the Brockton police detective. We review to determine if there was error, and if so, whether it was prejudicial. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

The Massachusetts wiretapping statute prohibits the recording of oral communications without a warrant or the consent of all parties to the communication, see G. L. c. 272, § 99 (C) (1), but it creates an exemption for Federal investigations. See G. L. c. 272, § 99 (D) (1) (c).

If, as the defendant argues is the case here, the warrantless recordings are “the fruit of a combined enterprise between State and Federal officials,” then the Federal exemption does not apply. Commonwealth v. Jarabek, 384 Mass. 293, 297 (1981). However, if the decision to make the recording is done by Federal agents, pursuant to a federally-initiated investigation, for the purpose of obtaining evidence for Federal prosecution and the actions of a State agent is done under the direction of the Federal agents, the investigation is not a combined enterprise and therefore the recording is admissible. See Commonwealth v. Gonzalez, 426 Mass. 313, 316-317 (1997).

The ATF investigation revealed that several firearm trafficking suspects spoke Haitian Creole. The ATF did not have an agent who spoke Haitian Creole, and therefore they enlisted the Brockton police detective who did. Detective Paul from the Brockton Police Department volunteered to assist with controlled purchases.² The ATF maintained control and command over the investigation, which included controlled purchases of firearms with the intention to file criminal charges in the Federal court. The supervising ATF agent authorized the use of electronic surveillance. The ATF funded the investigation, which included payment of the Brockton police detective's overtime, and supplied him with a cell phone, money, audio recording equipment, and an undercover car. The detective was briefed by ATF agents prior to his communications with the defendant. The use of a Haitian Creole-speaking, local police detective to conduct the controlled purchase does not alter the analysis. See Commonwealth v. Brown, 456 Mass. 708, 714 (2010), quoting Gonzalez, 426 Mass. at 717 (“participation of local law enforcement was not sufficient, ‘either in quantity or quality, to alter the essentially Federal nature of the investigation’ ”). There was no error.

Judgment affirmed.

FOOTNOTES

2.   Because the ATF conducted investigations throughout the Commonwealth, it was the ATF's general practice to partner with State and local police departments and keep them apprised of the investigations. In this investigation, the Boston and Brockton Police Departments and the Massachusetts State Police assisted.