Investigatory Tools And Techniques Used By Law Enforcement In Massachusetts Criminal Drug Cases
Table of Contents
Overview of Investigatory Tools in Drug Cases
There are many different forms of investigatory tools and techniques used by police in Massachusetts criminal drug cases. The purpose of using these techniques is to gather evidence to form a valid basis to stop a person or automobile, or to conduct a search of a person, vehicle, house, apartment, storage facility, container, or electronic device, or to effectuate an arrest. Some techniques require a search warrant and some techniques do not. This article is designed to provide a broad overview of police investigative techniques in drug cases, but should not be construed as a complete, authoritative guide to all methods available to and used by law enforcement.
Physical Surveillance
Physical surveillance is common and self-explanatory. Physical surveillance may be conducted with officers remaining stationery, or in one or more fixed observation points. Police may only observe individuals from locations where they are legally authorized to be, and in locations where such people under physical surveillance do not have an expectation of privacy, such as in public places or spaces. Police may also conduct roving surveillance by moving around to follow people, whether on foot or by vehicle. Physical surveillance does not require a search warrant and is considered one of the most common investigatory techniques used by law enforcement. Officers will typically document their observations from physical surveillance in reports and other documents when trying to persuade a judge to issue a search warrant, or to justify in court a warrantless stop, search and/or arrest. For example, if police observe two individuals meet in person and appear to exchange an item, or if they observe someone appearing to hide something on their person or inside a vehicle upon noticing the presence police, these observations will be cited by officers on surveillance to justify the later detention and/or searches of people and places and/or seizure of evidence.
The Use of Confidential Informants
Another common investigatory tool or technique available to police in criminal drug cases is the use of confidential informants. Police attempt to recruit people from the civilian community to gain information about criminal actors and criminal activities within the community. This information will often fuel criminal investigations, and later, applications for search warrants at the end of a drug investigation. Police also use confidential informants to conduct controlled drug purchases from suspected drug dealers, and to wear secret recording equipment to capture audio and/or video recordings of criminal activity. Police are not required to obtain a warrant prior to working with an informant.
Controlled Drug Purchases
A controlled drug buy is a separate investigative technique used by police, which involves the use of either an undercover police officer posing as a drug dealer or drug purchaser, or confidential informant acting in the same capacity. A controlled drug buy using a confidential informant has the following components:
- (1) a police officer meets the informant before the drug purchase at a predetermined location;
- (2) the officer searches the informant to ensure he has no drugs or money on his person;
- (3) the officer gives the informant money (sometimes marked or serial numbers recorded) to purchase drugs, and sometimes arm him with a recording device;
- (4) the officer escorts or follows the informant to the location for the drug sale, keeping the informant in view at all times;
- (5) the officer watches the informant enter and leave the sale location;
- (6) the officer escorts or follows the informant to a separate, private, predetermined location;
- (7) the informant turns over to the officer the substance purchased;
- (8) the officer searches the informant to ensure he has no other money or drugs remaining on his person; and
- (9) the officer has the substance received from the informant tested, either by field or laboratory methods, to confirm it is in fact an illegal drug or controlled substance.
Police are not required to obtain a warrant prior to conducting controlled purchases of drugs.
Pole Camera Surveillance
A third investigatory tool used by police in criminal drug cases is the pole camera. This is a secret camera, typically installed on a telephone pole within a community, that allows video recording of targeted people, places, or things. Police may access the camera remotely in real time, as well as watch video recordings of past activities captured by the camera. In Commonwealth v. Mora, the Supreme Judicial Court (SJC) set forth guidelines regarding the installation and use of pole cameras. In the past, the use of a pole camera never required a search warrant. Over time, the law has evolved, such that a search warrant is now required under certain circumstances. The Mora court set forth a two-part test where a defendant seeking to challenge the warrantless use of pole camera evidence in a Massachusetts criminal drug case, has the burden of showing that he has a (1) subjective expectation of privacy in the area surveilled by police camera and (2) that society is willing to recognize this expectation of privacy as reasonable. Court looks to factors to include whether the public had access to the area, the nature of the area itself, and whether the defendant had taken normal precautions to protect his or her privacy of the conduct being captured on video. The Mora court concluded that prior to installing a pole camera, law enforcement must have probable cause to believe that a particularly described offense has been, is being, or is about to be committed, and that a pole camera will produce evidence of such conduct or will aid in the apprehension of criminal actors.
GPS Monitoring of Suspect Vehicles
A fourth investigatory technique used in criminal drug cases is the installation of a GPS monitor on a suspect vehicle. Courts have decided that the use of a GPS device to monitor a vehicle’s movements constitutes a search under the 4th Amendment to the United States Constitution. As such, police must first obtain a search warrant before installing a GPS on a suspect vehicle. Once police obtain a warrant, they may secretly install the GPS on the suspect vehicle. Police will then use data from GPS to track a vehicle’s movements alongside traditional police surveillance to observe suspected drug activity. This may aid police with discovering other information in connection with drug investigations such as physical addresses of drug customers, drug suppliers, stash houses, drug processing and packaging locations, and much more.
Wiretaps and Electronic Communications
A fifth investigatory technique law used by police in criminal drug cases is secretly monitoring phone calls or text message communications. To gain access to this highly private information, a wiretap is needed, which may only be authorized by a search warrant. Unlike a warrant to search a home, or to install a GPS on a vehicle, where only probable cause is required, police seeking a warrant for a wiretap must show that normal investigative procedures such as surveillance, the use of informants, and otherwise, has either been tried and failed or are reasonably unlikely to succeed, if tried. Police must make a reasonable, good faith effort to run the gamut of normal investigative techniques before applying for a wiretap search warrant, and the supporting affidavit must indicate a reasonable likelihood that such techniques would fail to expose the full nature, scope, and participants in the crime. The use of wiretaps by law enforcement is subject to strict judicial supervision, to include periodic reviews to determine of the continued use of a wiretap is necessary. Wiretaps are rare, difficult for police to obtain, and their use is often limited to investigating forms of organized crime.
Contact a Massachusetts Drug Crime Defense Attorney
This article is not an exhaustive list of all investigatory techniques used by law enforcement, but accounts for the most common techniques and tools used in criminal drug cases. If you have been charged with a drug crime or believe that you may be under investigation for a drug crime in Massachusetts, contact the Law Office of John L. Calcagni III, Inc. for a free consultation at (401) 351-5100.