COMMONWEALTH vs. ANTHONY PENTA.

ABRAMS, J. After retrial, see Commonwealth v. Penta, 32 Mass. App. Ct. 36, 49 (1992), the defendant, Anthony Penta, was convicted of (1) trafficking in cocaine in excess of 200 grams, and (2) trafficking in cocaine in excess of twenty-eight grams. [Note 1] The defendant appeals alleging that: (1) the prosecutor interfered with his ability to procure a witness favorable to him; (2) his motion to suppress should have been allowed; (3) his convictions violate principles of double jeopardy; and (4) the judge erred in ruling that the drugs and certificates of analysis were admissible. We transferred the case to this court on our own motion. For the reasons stated in this opinion, we affirm the defendant's convictions.

After filing his appeal, the defendant obtained a stay of the appeal and filed a motion pursuant to Mass. R. Crim. P. 30 (a), 378 Mass. 900 (1979), to vacate his sentence on double jeopardy grounds. The defendant's motion was denied. Appeal from that denial has been consolidated with the defendant's appeal from his convictions.

Facts. The evidence at the second trial substantially was similar to that presented at the first trial and recited in detail in the Appeals Court's opinion, Commonwealth v. Penta, supra at 37-40. We recite only the basic facts, supplementing when necessary in discussion of a particular issue.

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In September, 1987, Jeffrey Mueller approached the Federal Bureau of Investigation (FBI) and offered to purchase drugs from Penta. The FBI referred Mueller to the State police. On two occasions, October 8 and October 22, 1987, Mueller, while under surveillance by the State police, purchased twenty-eight grams (one ounce) of cocaine from Penta. On the second of these occasions, Mueller wore a transmitter authorized by a previously obtained warrant. A tape recording was made of a conversation between Mueller and Penta on the afternoon of October 22, 1987, during which Mueller and the defendant discussed a sale by Penta of at least eight ounces (approximately 225 grams) of cocaine. The contemplated sale occurred on November 5, 1987.

Prior to Mueller's arrival at the meeting on November 5, 1987, the police obtained another warrant and again wired Mueller with a transmitter. Over the transmitter, the police heard discussion of the drug buy. They moved in and arrested the defendant while he was counting the money. [Note 2] The police then executed a search of the defendant's residence. [Note 3] They seized 63.2 grams of cocaine, a cash box, a grinder, inositol powder (cocaine dilutant), pieces of window glass, a scale, and a pager from the defendant's home. The defendant's 1987 Mercury Cougar automobile also was seized.

1. Failure of Mueller to appear and testify at trial. The defendant argues that his convictions must be reversed because he was unable to procure Mueller's testimony at his retrial. The defendant alleges that Mueller's failure to appear was due to obstruction by the prosecutor and therefore asserts his convictions must be reversed.

Because Mueller was not in the custody of the Commonwealth, [Note 4] the Commonwealth had no affirmative duty to produce Mueller for trial. See Commonwealth v. Curcio, 26 Mass. App. Ct. 738, 747 (1989); United States v. Russo, 540 F.2d 1152, 1155 (1st Cir.), cert. denied, 429 U.S. 1000 (1976)

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("there is no absolute rule of production [of informant]"); United States v. Williams, 496 F.2d 378, 382 (1st Cir. 1974) (government's duty to keep track of or search for informant depends on many factors including extent of government control over witness, importance of witness's testimony, difficulty of finding witness; on timely demand, government only required to make affirmative showing satisfactory to court why it could not reasonably be expected to locate informant and that its conduct has been diligent). The Commonwealth's obligation was to provide the defendant with Mueller's last known address and to refrain from obstructing the defendant's access to Mueller. See Commonwealth v. Curcio, supra ("The Commonwealth, neither by itself nor by connivance with the informer, was to put any obstruction between the defense and the informer, and it must offer the defense whatever information it had about the informer's location"). See also Commonwealth v. Manrique, 31 Mass. App. Ct. 597, 599-603 (1991) (prosecution fulfills obligation by offering to provide all information as to latest location of informant). The Commonwealth has complied fully with the motion judge's direction to attempt to locate Mueller and provided the defendant with an address in Caribou, Maine. This address enabled defense counsel to initiate communication with Mueller.

The defendant, nonetheless, claims that the Commonwealth is responsible for his inability to secure Mueller's presence because of the Commonwealth's unexecuted threat to Mueller of a perjury prosecution. The record does not support the defendant's claim. The only "threat" made by the prosecutor was a request, made in open court at a hearing on reconsideration of the defendant's motion to suppress, that Mueller he given notice under G.L. c. 268, s. 4 (1994 ed.), that his inconsistent testimony in two judicial proceedings could result in prosecution for perjury. [Note 5] Mueller had previously acknowledged that he was aware of his rights and possible exposure

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to perjury charges and he was represented by counsel both before and during the hearing. There was no prosecutorial misconduct. Contrast Commonwealth v. Turner, 37 Mass. App. Ct. 385, 387 (1994) (prosecutor's threats made at a tavern to defense witnesses that "You better not show up in court," "I'll tear you apart," and "I'll end up putting you away too," violated the defendant's constitutional right to prepare a defense); United States v. Morrison, 535 F.2d 223, 225-227 (3d Cir. 1976) (prosecutor's actions, after judge agreed to give witness warning as to rights, in subpoenaing defense witness to office and, in presence of three law enforcement officers [undercover agents in case], impressing on her dangers of testifying violated defendant's right to present witnesses). [Note 6] Dismissal of the charges or reversal of the convictions is not warranted in these circumstances. See Commonwealth v. Turner, supra at 391; Commonwealth v. Lewin, 405 Mass. 566, 579 (1989), quoting Commonwealth v. Cronk, 396 Mass. 194, 198-199 (1985).

2. Admissibility of evidence obtained through recording of transmissions received by transmitter attached to body of confidential informant. As part of a police investigation, State Trooper James R. White applied for and received authorization from the court to transmit and record conversations between then-confidential informant, Jeffrey Mueller, and the defendant by means of a transmitter secreted on Mueller. On two dates in October, 1987, White obtained warrants, issued under the authority of G. L. c. 276, s.s. 1 et seq. [Note 7]; G. L. c. 220, s. 2 [Note 8]; and Commonwealth v. Blood, 400 Mass. 61 (1987), to seize and tape record oral communica-

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tions between Mueller and the defendant. On both occasions, White attested that he had received the prior consent of Mueller, and, therefore, believed that the procedures of G. L. c. 272, s. 99 (1994 ed.), did not apply.

General Laws c. 272, s. 99 B 4 (1994 ed.), defines the term "interception" for purposes of s. 99. It provides that "it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein." "[D]esignated offense" is defined in s. 99 B 7 to include, inter alia, any offense involving the possession or sale of a narcotic or harmful drug in connection with organized crime as defined in the preamble. In the preamble, organized crime is defined as consisting of "a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." See Commonwealth v. Thorpe, 384 Mass. 271, 281 (1981), cert. denied, 454 U.S. 1147 (1982). The record reveals that Trooper White received prior authorization from Mueller, a party to the conversation, to record the conversation and that the recording and transmission was made in the course of an investigation of a designated offense, see Commonwealth v. Penta, supra at 43. We conclude, therefore, that the exception in G. L. c. 272, s. 99 B 4, applies. [Note 9] A warrant

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issued pursuant to G. L. c. 272, s. 99, was not required in the circumstances of this case.

The defendant maintains that, even assuming a warrant under G. L. c. 277, s. 99, was not required, the warrants that did issue were not valid as they purported to issue under the authority of G. L. c. 276, art. 14 of the Massachusetts Declaration of Rights, and the common law and none of those sources authorizes the seizure of oral communications through use of a hidden transmitter. [Note 10] While it is true that G. L. c. 276 does not expressly provide for the seizure of oral communications, see G. L. c. 276, s. 1 (defining property), it expressly states that "[n]othing in this section shall be construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General Laws or under the common law." G. L. c. 276, s. 1. Chapter 276 permits a search warrant to issue if based on common law authority and consistent with art. 14. See Matter of Lavigne, 418 Mass. 831, 835 (1994) (G. L. c. 276, s. 1, permits a search warrant based on common law justification for its issuance).

It is under the common law authority of Commonwealth v. Blood, 400 Mass. 61 (1987), and its progeny that the Commonwealth justifies the seizure of oral communications pursuant to a warrant issued under G. L. c. 276, secs. 1 et seq. In Blood, this court held that art. 14 protected conversants' reasonable subjective expectations of privacy and therefore, prohibited the warrantless surreptitious transmission and rec-

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ording of conversations taking place in a private home. Id. at 68-70. Because no warrant was sought or obtained, the court in Blood did not address the question presented today as to what form of warrant is required to protect a defendant's rights under art. 14. That question was again presented but not reached in Commonwealth v. Price, 408 Mass. 668 (1990). The Price court did not decide whether a warrant issued under authority of G. L. c. 276, secs. 1-7, was sufficient to protect a defendant's art. 14 rights because the court concluded that the defendant did not have standing to challenge the admissibility of the videotapes he sought to exclude. In dictum, however, the court foreshadowed the conclusion we now reach. The court concluded that "even if the defendant had standing, at least the audio portion of the tapes, which was obtained pursuant to a valid search warrant [under G. L. c. 276, secs. 1-7], would still be admissible because the search did not violate the prohibition of art. 14 of the Massachusetts Declaration of Rights against unreasonable searches and seizures." Price, supra at 669. We agree.

A warrant obtained in compliance with G. L. c. 276 serves the purpose of art. 14 by subjecting police information to the scrutiny of "a neutral and detached magistrate instead of [leaving them to be] judged by the officer engaged in the often competitive enterprise of ferreting out crime." Blood supra at 73, quoting Johnson v. United States, 333 U.S. 10, 14 (1948). Such a warrant fulfills the Legislature's mandate that the secret "use of [modern electronic surveillance] devices by law enforcement officials must be conducted under strict judicial supervision." G. L. c. 272, s. 99 A (preamble). We, therefore, hold that, when law enforcement officials seek to transmit and record oral communications pursuant to the one-party consent exception of G. L. c. 272, s. 99 B 4, they may do so under authority of a warrant pursuant to G. L. c. 276 and the common law. The form of warrant obtained in this case was adequate to protect the defendant's constitutional rights. We have never incorporated the procedures and requirements of G. L. c. 272, s. 99, into art. 14. Commonwealth v. Price, supra at 671 n.2, 674; Commonwealth v. Davis, 407 Mass. 1001, 1002 (1990). We do not do so now.

The defendant's final argument relating to the validity of the warrants is that the warrants are invalid because the affidavits, applications, and warrants failed to state with

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particularity the place and property to be searched. He argues that such warrants are invalid under G. L. c. 276, s. 2 [Note 11]; art. 14 [Note 12]; and the Fourth Amendment to the United States Constitution. [Note 13]

Search warrants must be reviewed in a commonsense, rather than hypertechnical, manner. Commonwealth v. Byfield, 413 Mass. 426, 430 n.6 (1992); Commonwealth v. Freiberg, 405 Mass. 282, 299-300, cert. denied, 493 U.S. 940 (1989). Common sense dictates that warrants for the seizure of oral communications not be limited in such a way as to preclude all flexibility and to endanger the safety of the informant or officer on whose body the transmitter is secreted. Cf. Freiberg, supra at 299 (where warrant applied for immediately after discovery of body police could not be expected to describe with detailed precision items to be seized; to hold otherwise would unreasonably thwart ability of police to investigate crime immediately after its occurrence). See also United States v. Bianco, 998 F.2d 1112, 1123 (2d Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994) (Fourth Amendment should be read with a flexible interpretation to keep pace with a technologically advanced and modern society); United States v. Silberman, 732 F. Supp. 1057, 1061 (S.D.Cal. 1990), aff'd sub nom. United States v. Petti, 973 F.2d 1441 (9th Cir. 1992), cert. denied, 507 U.S. 1035 (1993) (same).

The warrants were limited to the seizure of face-to-face

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oral communications between the defendant and Jeffrey Mueller during two brief periods (seven days for the October 21, 1987, warrant; fourteen days for the October 30, 1987, warrant) and relating to specifically listed illegal transactions. And, in fact, only conversations between the named parties which related to the illegal sale of cocaine were transmitted and recorded. Accord Commonwealth v. Wilson, 405 Mass. 248, 250 (1989). The warrants described the conversations to be seized with the level of specificity that was practical in the circumstances. We conclude that a warrant so limited in its scope and application satisfies the requirements of the Fourth Amendment. [Note 14] See Commonwealth v. Westerman, 414 Mass. 688, 694 (1993). Accord United States v. Ferrara, 771 F. Supp. 1266, 1292 (D. Mass 1991) (reasonable to describe place to be searched other than by address of single location if not likely to result in mistaken, unjustified intrusions and necessary to maintain requirement of prior judicial approval and to accommodate legitimate, important needs of law enforcement). There was no error.

3. Double jeopardy. The defendant claims that the principles of double jeopardy, embodied in the Fifth Amendment to the United States Constitution and the common and statutory law of this Commonwealth, are violated by his criminal prosecution, civil forfeiture of an automobile, and subsequent criminal retrial stemming from the same conduct. The defendant, therefore, urges this court to vacate his criminal conviction, as an impermissible second punishment for the same offense. We conclude, in accord with the most recent pronouncement from the Supreme Court of the United States, that civil forfeiture does not constitute punishment for double jeopardy purposes. [Note 15] United States v. Ursery, 116 S. Ct. 2135 (1996), is dispositive of the defendant's claim under Federal law. Id. at 2142, 2148 (civil forfeiture of automobiles and other property used to facilitate criminal activity does not

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constitute punishment for double jeopardy purposes). [Note 16] Accord Albano v. Commonwealth, post at 1005 (1996).

4. Admission in evidence of drugs and certificates of analysis. The defendant asserts that the judge committed error by allowing admission in evidence of drugs and a certificate of reanalysis of the drugs because the Commonwealth failed to establish the chain of custody of the drugs seized on November 5, 1987. [Note 17] The defendant concedes that failure to establish chain of custody usually goes to the weight rather than the admissibility of evidence, but argues for an exception to that general rule in the circumstances of this case. We conclude that the defendant has not presented a basis for an exception to the general rule. Any alleged inconsistencies or failures in the chain of custody properly went to the weight not the admissibility of the evidence. See Commonwealth v. Westerman, supra at 700 (no prejudice where chemist testified and was subject to cross-examination). See also Commonwealth v. Berth, 385 Mass. 784, 791 (1982); Commonwealth v. Colon, 33 Mass. App. Ct. 304, 309 (1992) (arguable weaknesses in chain of custody go to weight of evidence that object introduced is same object connected with crime; chain of custody evidence not nullified by weak link). The evidence as to chain of custody was the subject of testimony and vigorous cross-examination. There was no error in its admission.

Judgments affirmed.

LIACOS, C.J. (dissenting). I cannot agree with the court's analysis as to the validity of a search warrant for electronic surveillance where the warrant was issued under G. L. C. 276, s. 1 (1994 ed.), and not under G. L. C. 272, s. 99 (1994 ed.).

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My reasons are stated at length in my dissent in Commonwealth v. Price, 408 Mass. 668, 676-680 (1990). I need not repeat my views here. I dissent.