COMMONWEALTH vs. PHILLIP M. DAMIANO.

CORDY, J. The Commonwealth appeals from the allowance of a motion to suppress the contents of a telephone conversation to which Phillip M. Damiano was a party, and evidence derived from that conversation, including a bag of marijuana found in a search of Damiano's pockets at the time of his arrest, a large quantity of cocaine subsequently seized from his house, and statements he made to the police at the police station. [Note 1] The basis on which the motion was allowed was a determination by the motion judge that Damiano's telephone conversation was intercepted in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. (Title III). [Note 2] The Commonwealth sought interlocutory relief. A single justice granted leave to appeal and designated the appeal to be heard by this court. [Note 3] See G. L. c. 278, § 28E; Mass.

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R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). For the following reasons, we affirm the judge's suppression order in part and reverse in part.

1. Facts. We recite the facts as found by the judge, supplemented by uncontested testimony from the motion hearing. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). On the afternoon of January 27, 2001, a private citizen was listening to a store-bought police scanner in her Wareham home when she intercepted a telephone conversation. Although it was possible to change to a different frequency, she decided to listen to the remainder of the conversation, during which two unidentified men agreed to meet at Vel's Restaurant in Wareham. At one point during the conversation, she heard one of the men, apparently Damiano, say "it all depends on how hungry you are." The other man, later identified as Peter Morrison, told Damiano that he would be driving a black Mercury Cougar motor vehicle. It was subsequently determined that Morrison had initiated the call using a cordless telephone, and that Damiano had received it on a cellular telephone.

The listener inferred from the conversation that the two men were meeting to complete a drug transaction, and contacted the Wareham police. A police dispatcher conveyed the information to two Wareham police officers who drove their unmarked vehicle to Vel's Restaurant and parked in a lot across the street. A couple of minutes later, a black Mercury Cougar automobile pulled into the restaurant's parking lot. The police observed Damiano leave a nearby house, cross the highway, and approach the driver's side of Morrison's vehicle. Damiano either handed something to or took something from Morrison and entered the passenger side of the vehicle. Morrison pulled out of the parking lot, headed north on the highway, and made a left turn into the parking lot in which the police officers were parked. Three marked cruisers then proceeded to pull the vehicle over. Damiano was ordered out of the car and searched. A bag of marijuana was found in his pocket and he was placed under

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arrest. An officer at the scene noticed a child watching from the window of the house from which Damiano had come. Consequently, police were sent to secure the premises until a search warrant could be obtained. Damiano's wife and child were found on the premises.

Damiano was taken to the police station and twice advised of his Miranda rights. He was also informed that the police intended to obtain a warrant to search his house. There was no evidence that he was informed of the intercepted telephone conversation. [Note 4] Upset that the police were posted at his house (with his wife and child), and in order to hasten their departure, Damiano eventually told the officers that he kept a small amount of marijuana in a nightstand in his bedroom. He also signed a written consent form, permitting the police to search the house. With the assistance of a police dog, the police discovered a large stash of cocaine hidden behind a locked door off the kitchen.

2. Discussion. In 1968, largely in response to the United States Supreme Court's holdings in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), Congress enacted Title III. Bartnicki v. Vopper, 532 U.S. 514, 522-523 (2001). One of its stated purposes was to "protect[] the privacy of wire and oral communications." Pub. L. 90-351, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2153. To further this purpose, Title III makes it a crime, except in limited circumstances, to intentionally intercept a "wire," "oral," or "electronic communication," or to intentionally disclose the contents of such a communication. [Note 5] See 18 U.S.C. § 2511. Title III also prohibits the admission in evidence of unlawfully

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intercepted "wire" or "oral" (but not "electronic") communications, and evidence derived therefrom. Specifically, § 2515 provides:

"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." [Note 6]

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The Commonwealth contends that the telephone conversation between Morrison and Damiano constituted an "electronic communication," not a "wire" or "oral" communication, and as such, the suppression remedy provided in § 2515 is inapplicable to this case. [Note 7] Specifically, it maintains that a "signal broadcast by a portable or cordless telephone is a radio signal and, therefore, an electronic communication." The Federal cases relied on by the Commonwealth to support this contention, however, involve interceptions that took place before Congress amended Title III in 1994 to ensure that communications taking place on cordless telephones were included within the definition of "wire communication." [Note 8] See, e.g., Price v. Turner, 260 F.3d 1144, 1147 (9th Cir. 2001) (Title III "did not protect cordless phone conversations that took place before the statutory amendment in 1994," but "none of the intercepted conversations" at issue "took place after 1993"). It is clear that the exclusionary provision of Title III "now applies to the interception of conversations over both cellular and cordless phones." Bartnicki v. Vopper, supra at 524.

The Commonwealth next urges us to apply a "clean hands" exception to § 2525, so as to permit the introduction in evidence

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of any unlawfully intercepted wire or oral communication where, as here, the police are only the recipients and not the interceptors of the communication. There is some disagreement among the Circuit Courts of the United States Court of Appeals as to whether communications unlawfully intercepted by private citizens must be suppressed as evidence when there has been no government involvement. Compare United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987) ("allow[ing] the government's use of unlawfully intercepted communications where the government was not the procurer 'would eviscerate the statutory protection of privacy from intrusion by illegal private interception' "), with United States v. Murdock, 63 F.3d 1391, 1403 (6th Cir. 1995), cert. denied, 517 U.S. 1187 (1996) ("nothing in the legislative history [of Title III] . . . requires that the government be precluded from using evidence that literally falls into its hands"). However, the majority of courts that have ruled on the "clean hands" exception have rejected it. See Berry v. Funk, 146 F.3d 1003, 1012-1013 (D.C. Cir. 1998); Chandler v. United States Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d 1066, 1077-1079 (3d Cir. 1997). We agree with the judge that government involvement in the unlawful interception of a wire or oral communication is not required to trigger Title III's exclusionary rule.

The plain language of § 2515 mandates the suppression of any intercepted wire or oral communication and any "evidence derived" from that communication "if the disclosure of that information would be in violation of" Title III. 18 U.S.C. § 2515. "Section 2511(1)(c) is also unambiguous, making it a crime whenever one 'intentionally discloses, or endeavors to disclose, to any person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.' " In re Grand Jury, supra at 1077 (rejecting "clean hands" exception to 18 U.S.C. § 2515). Nothing in the literal language of the statute indicates that Title III permits the government, in cases such as this, to disclose the contents of an illegally intercepted wire or oral communication when the government

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was not the unlawful interceptor of that communication. [Note 9] Title III's "evidentiary prohibition must be applied to perpetrators and non-perpetrators alike." Id. at 1078.

The legislative history of Title III also supports a literal interpretation of § 2515. The basic purpose of the statute "is to 'protec[t] the privacy of wire . . . and oral communications.' " Bartnicki v. Vopper, supra at 526, quoting S. Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968). Title III "prevent[s] private, not just governmental, wiretapping." Chandler v. United States Army, supra at 1302 (rejecting "clean hands" exception to 18 U.S.C. § 2515). See United States v. Vest, supra at 481 ("protection of privacy from invasion by illegal private interception as well as unauthorized governmental interception plainly 'play[s] a central role in the statutory scheme' "). As one member of Congress stated, in connection with the 1986 amendments to Title III, the statute protects private communications from "a corporate spy, a police officer without probable cause, or just a plain snoop." 131 Cong. Rec. 24366 (1985) (statement of Sen. Leahy). An unlawful invasion of privacy by a private citizen "is compounded by disclosure in court or elsewhere." United States v. Vest, supra. "The impact of this second invasion is not lessened by the circumstance that the disclosing party (here, the government) is merely the innocent recipient of a communication illegally intercepted . . . ." Id. As such, we decline to read into § 2515 a "clean hands" exception that Congress itself did not see fit to write into the statute.

We are similarly unpersuaded that the "investigation or law enforcement" provisions of 18 U.S.C. § 2517 authorize the use of the intercepted telephone call in this case. Section 2517(1) and (2) provides that "[a]ny investigative or law enforcement officer who, by any means authorized by this chapter, has

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obtained knowledge of the contents of" intercepted communications may disclose or use those contents when "appropriate to the proper performance of . . . official duties." [Note 10] The Commonwealth contends that the police went to Vel's Restaurant to corroborate the reported content of the intercepted communication, and that this activity constituted the "performance" of "official duties" because the officers were investigating an alleged violation of Title III. We need not decide whether, if this were the case, the exception in § 2517 would apply, because there is no evidence in the record to support this claim. [Note 11] Accordingly, the judge correctly ruled that the contents of the intercepted communication and "evidence derived therefrom" must be suppressed.

The Commonwealth next argues that the evidence seized from Damiano's home is not evidence "derived" from the illegal interception because its discovery was sufficiently attenuated from that interception to dissipate the taint of its illegality. See Brown v. Illinois, 422 U.S. 590, 609 (1975) (Powell, J.,

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concurring in part) ("The notion of the 'dissipation of the taint' attempts to make the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost"). It makes a similar claim with respect to statements Damiano made at the police station after waiving his Miranda rights. While a close case, on this point we agree. [Note 12]

In using the language "no evidence derived therefrom" in § 2515, "Congress expressly adopted a 'the fruit of the poisonous tree' doctrine for wiretap evidence," Chandler v. United States Army, supra at 1304, and with it the correlative attenuation rule. See S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2185 (§ 2515 "applies to suppress evidence directly . . . or indirectly obtained in violation of the chapter. . . . There is, however, no intention to change the attenuation rule"). Consequently, we look to our constitutional jurisprudence to guide our analysis regarding the application of that rule.

The "fruit of the poisonous tree" doctrine as articulated in Wong Sun v. United States, 371 U.S. 471, 487-488 (1963), has been applied to evidence derived from violations of both the Fourth and Fifth Amendments to the United States Constitution. Commonwealth v. Perrot, 407 Mass. 539, 546-548 (1990) (pocketbook from burglary seized as result of statement illegally obtained from defendant suppressed); Commonwealth v. Pietrass, 392 Mass. 892, 900-901 (1984) (clothing seized from defendant after unlawful warrantless entry and search suppressed). In determining whether evidence obtained after such a violation must be suppressed, the issue is not whether "but for" the prior illegality the evidence would not have been obtained, but "whether . . . the evidence . . . has been come at by exploitation of [that] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Commonwealth v. Bradshaw, 385 Mass. 244, 258 (1982), quoting Wong Sun v. United States, supra at 488. "[I]nfection will be held to have occurred when the illegality of the police behavior is sufficiently grave and the connection between the illegality

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and the making of the statements is sufficiently intimate." Commonwealth v. Sylvia, 380 Mass. 180, 183 (1980), quoting Commonwealth v. Fielding, 371 Mass. 97, 113 (1976). In this sense, the attenuation rule is "not an exception to the exclusionary rule but a test of its limits." R.G. Stearns, Massachusetts Criminal Law: A District Court Prosecutor's Guide 120 (23d ed. 2003). [Note 13]

It is the Commonwealth's burden to establish that the evidence it has obtained and intends to use is sufficiently attenuated from the underlying illegality so as to be purged from its taint. Commonwealth v. Fredette, 396 Mass. 455, 459 (1985), citing Commonwealth v. Cote, 386 Mass. 354, 362 (1982). The underlying illegality in this case is the unlawful interception of a wire communication by a private party in violation of Title III, not an unlawful arrest. [Note 14] The contents of that communication, once conveyed to the police, were used to justify the stop and arrest of Damiano. As the judge found, without the information contained in the interception, there would not have been probable cause to effectuate the arrest. In this sense, the arrest

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was dependent on the underlying interception, and the marijuana seized from Damiano in its course was equally "intimate" to, and dependent on, that underlying illegality. In these circumstances, it cannot be said that the marijuana was secured "by means sufficiently distinguishable" from the illegal interception to be purged of its primary taint. [Note 15] The more difficult question is whether the evidence obtained voluntarily from Damiano after he was transported to the station, and after he waived his Miranda rights, was sufficiently attenuated from that primary illegality.

The Supreme Court has said that whether there has been adequate attenuation in the context of an admission secured following an illegal arrest depends on the facts of each case examined in light of four factors: (1) the temporal proximity of the admission to the arrest; (2) the presence of intervening circumstances between the arrest and the admission; (3) the observance of the Miranda rule subsequent to the unlawful arrest; and (4) the purpose and flagrancy of the official misconduct. Kaupp v. Texas, 538 U.S. 626, 633 (2003) (per curiam). [Note 16] We look to these factors for guidance, albeit in the context of a different form of illegality, and one not involving the police or other government officials. We examine first, and in conjunction with each other, the temporal proximity of the illegal interception to Damiano's admission (and consent), and the presence of any intervening events. Here, the record is unclear as to precisely how much time elapsed between the illegal interception and the moment when Damiano made admissions and consented to a search of his house, although both occurred on the same day. The record is clear, however, that the

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admissions and consent occurred not at the time of his arrest, but after Damiano had been transported to the police station and had engaged in a series of discussions with officers there. The record is also clear that Damiano initially denied having any marijuana in his home, but later changed his story and signed a form consenting to its search after he learned that the police had secured the premises with his wife and child present, and intended to obtain a search warrant. Finally, it is clear, as the motion judge found, that Damiano's admissions were made voluntarily; his consent to the search was voluntary; and his actions were motivated by a desire to hasten the departure of the police from his home.

Turning next to whether the police properly observed Damiano's Miranda rights, it is clear from the judge's findings that they did. He was advised twice orally of those rights at the police station, and before making any statements or consenting to a search of his home, he executed a written waiver of them. The significance of the observance of these rights, and their waiver, must be assessed in light of the nature of the primary illegality, here the private citizen's illegal interception. In the context of an unlawful arrest, both this court and the United States Supreme Court have made it clear that the protection of constitutional rights requires that "a confession 'obtained by exploitation of an illegal arrest' may not be used against a criminal defendant," Kaupp v. Texas, supra at 627, quoting Brown v. Illinois, 422 U.S. 590, 603 (1975); Commonwealth v. Bradshaw, supra at 258, and that compliance with Miranda alone, following such an arrest, is insufficient to purge a subsequently given confession from its taint. Taylor v. Alabama, 457 U.S. 687, 690 (1982), quoting Brown v. Illinois, supra ("If Miranda warnings were viewed as a talisman that cured all Fourth Amendment violations, then the constitutional guarantee against unlawful searches and seizures would be reduced to a mere 'form of words' "); Commonwealth v. Bradshaw, supra at 258 ("The giving of Miranda warnings alone will not make the inculpatory statements sufficiently an act of free will to purge the primary taint"). These important constitutional considerations, however, are not present here.

We are not faced with determining whether Damiano's

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voluntary post-Miranda statements and consent were sufficiently divorced from an illegal detention occasioned by a violation of the Constitution. As discussed above, there was nothing unlawful in the arrest of Damiano, and no violation of his constitutional rights. Rather, we must determine whether Damiano's statements and consent were sufficiently attenuated from the illegal interception of his communications by a private citizen. A similar question was recently considered by the Supreme Court of Maryland in Miles v. State, 365 Md. 488 (2001), cert. denied, 534 U.S. 1163 (2002). In that case, a citizen, listening to a police scanner, illegally overheard a conversation that appeared to concern a robbery-murder and the concealment of evidence. He contacted the police, and gave them a recording he had made of the conversation. The police listened to the recording, and identified one of the participants to be the defendant's wife. Based on this information, they obtained a search warrant, searched the wife's home, and arrested her. Once arrested, the wife voluntarily consented to a further search of the premises, and voluntarily gave the police other information about where evidence regarding the murder was hidden. The court (applying a State law exclusionary rule identical to Title III) was faced with deciding what had been "purged" from the taint of the illegal interception and what had not. It concluded that the tape- recorded conversation and any evidence found during the execution of the search warrant were inadmissible under the statutory exclusionary rule. It also concluded, however, that the wife's voluntary consent to search and her voluntary statements, even though made while in custody and shortly after her arrest, were intervening events "purg[ing] the taint of the original illegality of the taped cellular phone conversation." Id. at 530. Evidence discovered as a result of those voluntary acts was therefore admissible at her husband's trial. The court's ruling, while based on its consideration of the "totality of the circumstances," id., rested in large measure on its determination that "[w]hile an individual's waiver of Miranda warnings taken alone would be insufficient to purge the unlawful conduct under a Fourth Amendment analysis, [the wife's] conduct . . . [was] 'sufficiently an act of free will to purge the primary taint' associated with the intercepted phone call." Id. at 526, quoting Brown v. Illinois, supra at 602.

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We are similarly of the view that observance of Damiano's Miranda rights, his waiver of those rights after his transportation from the scene of the arrest, and his subsequent statements and consent are circumstances that weigh heavily in favor of a finding that the evidence garnered thereafter was not obtained by exploiting the underlying illegal interception but by way of Damiano's voluntary acts. As such, the evidence would have been obtained by means sufficiently distinguishable from that illegality to purge it of the primary taint. [Note 17]

Finally, we consider the nature of the police conduct. While we have rejected the "clean hands" exception to § 2515, the complete lack of police involvement in the underlying illegal interception is not an insignificant fact in assessing the necessary reach of the exclusionary rule and the adequacy of the attenuating circumstances in the context of a criminal investigation and prosecution. [Note 18] Stone v. Powell, 428 U.S. 465, 484 (1976). It was not improper for the police officers to have received or pursued the unsolicited lead provided by a citizen regarding an imminent criminal transaction within their jurisdiction. Even if there had been time (which there was not) for a definitive assessment that the information had been illegally obtained, the duty of the police was to act. Commonwealth v. Brandwein, 435 Mass. 623, 631 (2002) (police not required to ignore information provided to them by private citizen even if done so in violation of confidentiality obligation). While the conduct of the private citizen in intercepting Damiano's telephone conversation may have been patently unlawful, the actions of the police in responding to the information, placing the defendant under surveillance in a public place, and arresting him after they observed what they believed to be a drug transaction were reasonable and undertaken in good faith. "Application

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of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of [the police]." Commonwealth v. Gallant, 381 Mass. 465, 470-471 (1980), quoting United States v. Ceccolini, 435 U.S. 268, 280 (1978) (rejecting application of exclusionary rule to lawfully obtained statement made after defendant was shown unlawfully obtained statement of codefendant). Our consideration of this factor also weighs in the Commonwealth's favor.

In sum, our examination of the facts in this case, in light of the factors set forth in Kaupp v. Texas, supra, leads us to conclude that the evidence seized in the consented to search of Damiano's house, and any statements he made at the police station after waiving his Miranda rights, were sufficiently attenuated from the unlawful interception as to be purged from its primary taint.

3. Conclusion. The judge correctly suppressed the contents of the intercepted communication and the evidence seized in the search of Damiano's person at the time of his arrest. The remainder of the evidence should not have been suppressed.

The order of the motion judge is accordingly affirmed in part and reversed in part. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.