author: CAFFREY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Hector MORA, et al., Defendants.
    Crim. No. 85-210-C.
    United States District Court, D. Massachusetts.
    Nov. 27, 1985.
   MEMORANDUM

CAFFREY, Chief Judge.

Defendant Hector Mora has been charged in five counts of a six-count indictment with conspiracy to possess with intent to distribute a quantity of a controlled substance, cocaine; with possession of cocaine with intent to distribute;. and with unlawful use of a telephone to cause, facilitate and commit a conspiracy with intent to distribute cocaine. The defendant Hector Mora, joined by the other nine defendants in the case, has moved to suppress all evidence gathered as a result of electronic surveillance of two of the defendants. The electronic surveillance was conducted from March 23, 1985 through April 6, 1985, and from May 7, 1985 through May 16, 1985, pursuant to orders from the Massachusetts Superior Court authorizing the interception of wire communications over two separate telephone lines. The defendants claim that their rights under the Fourth Amendment to the United States Constitution, Article XIV of the Massachusetts Declaration of Rights, 18 U.S.C. §§ 2510-2520, and Mass. Gen. Laws c. 272, § 99 were violated by alleged irregularities and deficiencies in the applications for authorization of electronic surveillance, in the authorizations themselves, and in the execution of the Superior Court orders.

BACKGROUND

On January 6, 1985, an officer of the Medford Police Department stopped and questioned a young male exiting from a condominium complex about a bulge in the upper part of his jacket. In response to an inquiry from the officer, the young man, later determined to be Elkin Mora, showed the officer a large amount of United States currency, stating that the money belonged to his brother, the defendant Hector Mora. While still at the same location, the officer and his supervisor were approached by Hector Mora, who stated that he had papers to prove the money belonged to him. The officers and Elkin Mora then proceeded to the Medford Police Station, where the currency was counted, and found to be $15,000 in hundreds, fifties, twenties and tens, divided into bundles of $1,000 each.

Shortly thereafter, Hector Mora arrived at the station, accompanied by three other individuals, including the defendant, Juan Guillermo Valencia (“Valencia”). Hector Mora (“Mora”) proffered receipts for $8,000, alleging that the money came from contracts for the services of musicians whom he represented as an agent. The contracts covered work performed in August and September of 1984. Mora also showed the officers a pay stub from Gregstrom Corporation of Woburn, Massachusetts, stating he was an employee there. Both Mora and Valencia then voluntarily had their photographs taken, and the $15,-000 was returned to Mora. Later investigation showed that a manager at Gregstrom Corporation could not identify the photograph of Hector Mora as that of an employee.

Subsequently, this incident was related to Thomas J. Quigley (“Quigley”), a Massachusetts State Police officer assigned to the Middlesex County Narcotic Task Force, and an investigation commenced. Law enforcement officials began a two-month, physical surveillance of the condominium complex and other residences frequented by Mora and Valencia. On January 19, 1985, Mora and Valencia were followed to a residence in Central Falls, Rhode Island, which a Drug Enforcement Administration (DEA) agent stated was occupied by the defendant, Oscar Usuga. The agent informed Quigley that the DEA considered Oscar Usuga and the club he owned, La Fuente, to be involved in the distribution of cocaine. Later that evening, Valencia also went to an establishment which, according to DEA intelligence, was a “hang out” for cocaine distributors. Other efforts at physical surveillance of Valencia proved fruitless due to Valencia’s erratic driving practices, which officers characterized as counter-surveillance techniques. For example, on February 5, 1985, an attempt to covertly follow Valencia failed when Valencia drove his car at high speeds and made unsignalled, sudden turns. In addition to following the suspects, on one occasion officers on surveillance recovered trash discarded by an individual associated with the defendants which included a partially torn envelope with notations which, in the opinion of Quigley and other narcotics officers, referred to prices and weights of cocaine.

During February and March of 1985, Quigley also met with two informants who gave him information about the defendants in this case. According to Quigley, the first, Mr. X, an admitted cocaine user and distributor, provided information which led to the arrest of certain named individuals on narcotics charges and receiving stolen property. Mr. X alleged that his supplier of cocaine, “Mr. Green,” dealt directly with a man called “GeJarno,” and that he, Mr. X, had been present on several occasions when Mr. Green met with GeJarno to buy cocaine, although he was not in the room or car when the two conducted business. Mr. X identified GeJarno as the defendant Valencia from the photograph taken by the Medford Police Department.

The second informant, Mr. Y, a cocaine dealer, provided Quigley with his own personal records and ledgers concerning his cocaine transactions. One page of his telephone journal contained the name GeJarno, two telephone numbers and a beeper number. Mr. Y stated that he had purchased large quantities of cocaine from GeJarno over several months. In addition to identifying Valencia as GeJarno from the photographs taken by the Medford Police, Mr. Y identified the photograph of Hector Mora as that of one of Valencia’s associates. The telephone numbers attributed to GeJarno were listed to Magola Valencia and Gloria P. Valencia. The informants said they were unwilling to introduce an undercover officer into the group or to testify because they feared for the safety of themselves and their families.

As part of the investigation, officers obtained the telephone toll records for the telephone number (617) 459-2942, allegedly used by GeJarno and subscribed to by Gloria P. Valencia. An analysis of the toll calls made between August 1984 and February 1985 revealed numerous calls to and from residences of persons arrested in connection with the possession of cocaine and other controlled substances, or of persons considered by the DEA to be involved in cocaine distribution. In addition, there were 15 calls to Florida, 79 to Colombia, and an unspecified number to pay phones.

Further investigation was made of the defendants’ financial transactions. An interview with a real estate agency revealed that when Hector Mora purchased a condominium in 1984 for $76,930, he stated that he would make the monthly payments in cash, and in fact tendered $11,630 in cash. Mora was advised that cash would not be accepted and that he was required to use a newly opened checking account. Mora also purchased two automobiles in 1984, both apparently with cash, for a total of $16,010.

On the basis of the foregoing, Quigley and other law enforcement personnel concluded that normal investigative techniques would not lead to the acquisition of sufficient evidence to successfully prosecute the alleged conspiracy to possess and distribute controlled substances. On March 22, 1985, therefore, Assistant District Attorney Alexander Z. Nappan (“ADA Nappan”) was specially designated pursuant to Mass.Gen. Laws c. 272, § 99(F)(1) by Middlesex District Attorney Scott Harshbarger to apply to the state court for a warrant authorizing the interception of certain wire communications by Valencia over telephone line (617) 459-2942. The application was approved and an order and warrant issued on the same day pursuant to Mass.Gen.Laws c. 272, § 99.

In the interception order, the state court judge stated that he found probable cause to believe that Valencia was engaged in an ongoing conspiracy to possess and sell narcotics or harmful drugs, specifically cocaine, and that evidence obtained by the interception of wire communications, or a wiretap, would aid in the apprehension of Valencia and others involved in the conspiracy. The court also determined that normal investigative procedures had been tried and were unlikely to succeed. The order provided that the interception not exceed 15 days in total; that the warrant terminate 30 days after issuance; and that, within that period, the warrant continue until the full scope of the conspiracy to violate Mass.Gen.Laws c. 94C, §§ 32A, 32E, 34 and 40 as they relate to cocaine was revealed. The terms of the order required the use of reasonable steps to minimize unnecessary intrusion into the callers’ right to privacy. All conversations of a clearly non-criminal nature were not to be recorded or monitored except for an initial 60 second period and, thereafter, random 15 second spot checks to determine if the conversations had become criminal in nature, if one of the named conspirators had joined the conversation, or if other unnamed persons were engaged in criminal conversations. Unless a Spanish-speaking interpreter was present, all conversations in Spanish were presumed to be non-criminal. Conversations in which Valencia, the only person named in the warrant, was a party and which were criminal in nature could be recorded in their entirety. Conversations involving persons not named as co-conspirators which concerned the designated narcotic offenses, or conversations regarding other criminal offenses could also be intercepted, with the proviso that they be reported to the state court in the next status report. The original tapes were to be sealed daily, stored by law enforcement officers and returned to the issuing judge in accordance with Mass.Gen.Laws c. 272, § 99(L)(3). ADA Nappan was to report to the court on the status of the interceptions every fifth day.

Interception of (617) 459-2942 began on March 23, 1985 and continued 24 hours a day for fifteen consecutive days until midnight, April 6, 1985. Each police officer assigned to the investigation was told to read and sign written instructions concerning minimization, and was informed that Valencia a/lc/a GeJarno was the target and that the goal of the investigation was to uncover Valencia’s cocaine distribution network. Two Spanish-speaking law enforcement persons were assigned to the listening post. Their job was to simultaneously translate into English conversations in Spanish overheard during the wiretap so that minimization monitors could determine whether or not the conversations were criminal in nature and thus could be intercepted. The interpreters also transcribed the interceptions into English, using cassette work tapes. The communications were simultaneously recorded on one reel-to-reel tape recorder and three cassette tape recorders.

The reel-to-reel tapes, considered the original tapes, were sealed daily and, at the termination of the interception, were placed in an alarmed, limited access evidence vault in the state police office building. ADA Nappan made the status reports as required. The warrant and original tape recordings were returned to the issuing judge for judicial sealing on April 26, 1985, twenty days after the interception terminated.

On April 30, 1985, ADA Nappan was again specially designated to apply for a warrant authorizing the interception of certain wire communications of Mora and Valencia over telephone line (617) 391-3718, Mora's residential telephone. The submitted application was based on information gained during physical surveillance, conversations intercepted during the first electronic surveillance, and analysis of the records of tolls calls made from Mora’s home phone. An order, essentially the same as the first one, issued on May 3, 1985, naming Mora and Valencia as the alleged co-conspiractors, and authorizing the interception of telephone line (617) 391— 3718.

The second interception commenced on May 7, 1985, and continued for ten consecutive days until midnight May 16, 1985. It was conducted in much the same manner as the first interception, except that officers assigned to the listening post were instructed that both Mora and Valencia were targets. Two interpreters were again used as part of the minimization effort, one of whom had worked on the first interception. Although the investigation began as a solely state matter and both interceptions were controlled by state authorities, advice and financial support was sought from the federal government during the first wiretap, and, toward the end of the second interception, law enforcement personnel decided to prosecute the case in federal court.

On May 16, 1985, state police officers and DEA agents arrested Mora, Valencia and others. The original tape recordings from the second interception were taken to the state police evidence vault. The warrant and original tapes were returned by ADA Nappan and Quigley, to the state court for judicial sealing on June 25, 1985, forty-one days after the conclusion of the second interception.

DISCUSSION

A. APPLICABLE LAW

The first issue is whether federal or Massachusetts law controls. I rule that Massachusetts law applies to the challenges to the sufficiency of the applications for the warrants to intercept wire communications and to the adequacy of the state orders. Federal law applies to the questions on the timeliness of the return and judicial sealing of the original tape recordings, and on the government’s failure to seek judicial approval before using the tapes, authorized to gather evidence of state offenses, in order to obtain indictments on federal crimes.

An important distinction exists between procedures governing the interception of wire communications and those governing the preservation of such evidence for trial. United States v. Sotomayor, 592 F.2d 1219, 1225 (2d Cir.1979), cert. denied 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). The state has an important interest in protecting its residents’ right to privacy, and when a federal court considers the admissibility of wiretap evidence obtained by state officers acting pursuant to a state order issued under a state statute, the more stringent state statutory requirements should be applied. Id. The testimony in this ease shows that the investigation was primarily a state matter. State personnel conducted the physical surveillance, sought and obtained in state court the wiretap warrants under state law, and monitored the interceptions. It was not until some point late in the second interception that it was decided federal authorities would take over and prosecute the case. This was not a joint investigation by state and federal agents. I rule that state law should therefore control the issues regarding the lawfulness of the wiretap.

Rules pertaining to the admissibility of evidence are, however, usually governed by the law of forum. Id. Although sealing requirements may be important to a state statutory scheme, their purpose is only to assure that no tampering with the tapes occurs. Id. at 1226. The sealing requirement, a post-interception procedure, relates solely to the preservation of evidence. Id. The federal interest in establishing its own standards for the admission of evidence gained through lawfully conducted interceptions of wire communications outweighs the interest a state may have in obtaining federal enforcement of the state’s sealing requirements. Id. Challenges on post-interception issues will therefore be decided under federal law.

B. SUFFICIENCY OF THE WARRANT APPLICATIONS

When reviewing the sufficiency of wiretap applications, the practice in the First Circuit is not to review the application de novo. United States v. Smith, 726 F.2d 852, 864 (1st Cir.1984). Instead, the court looks at the application in a practical and commonsense manner to see if it includes facts at least minimally adequate to support the findings made by the issuing judge. Id., citing United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.1977), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977).

Under Massachusetts law, a warrant to intercept wire communications may issue only

[ujpon a showing by the applicant that there is probable cause to believe that a designated offense has been, is being, or is about to be committed and that evidence of the commission of such an offense may thus be obtained or that information which will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit a designated offense may thus be obtained____

Mass.Gen.Laws e. 272, § 99(E)(2). The application for such a warrant must contain a statement of facts establishing probable cause. Mass.Gen.Laws c. 272, § 99(F)(2)(a) and (b). Affidavits of persons other than the affiant may be submitted. Mass.Gen. Laws c. 272, § 99(F)(3). The probable cause finding by the issuing court is entitled to substantial deference by the reviewing court. E.g., Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Commonwealth v. Upton, 394 Mass. 363, 377, 476 N.E.2d 548 (1985). This principle applies in wiretap cases. See, e.g. United States v. Martino, 664 F.2d 860, 869 (2d Cir.1981), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982). When evaluating a warrant to determine whether or not it was issued on the basis of probable cause, a court may rely on reasonable inferences and common knowledge. Commonwealth v. Atchue, 393 Mass. 343, 346, 471 N.E.2d 91 (1984). The determination of probable cause is not a determination of guilt beyond a reasonable doubt. Id. at 345-46, 471 N.E.2d 91. Rather, probable cause connotes “ ‘a reasonable ground for belief____’” Commonwealth v. Vynorius, 369 Mass. 17, 23, 336 N.E.2d 898 (1975).

The probable cause finding in the first wiretap warrant was presumedly based upon Quigley? s affidavit and its supporting documents. In cases involving the interception of wire or oral communications, a court looks at the affidavits underlying the warrant as a whole, reading them in a “commonsense and realistic fashion.” Commonwealth v. Vitello, 367 Mass. 224, 272, 327 N.E.2d 819 (1975), quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). The defendants argue that the Quigley affidavit relies heavily upon information provided by informants and that the informants’ reliability was inadequately established. The Massachusetts wiretap law specifically provides:

... If the facts establishing such probable cause are derived in whole or part from the statements of persons other than the applicant, the sources of such information and belief must be either disclosed or described; and the application must contain facts establishing the existence and reliability of any informant and the reliability of the information supplied by him. The application must also state, so far as possible, the basis of the informant’s knowledge or belief----

Mass.Gen.Laws c. 272, § 99(F)(3). Assuming that the section on informant data was crucial to the sufficiency of the affidavit, the reliability of the informants and the basis of their knowledge must be established. Independent police corroboration can overcome deficiencies in either element of this requirement. Commonwealth v. Upton, 394 Mass, at 376, 476 N.E.2d 548.

The first prong, the reliability or veracity test, may be satisfied by recounting the informant’s past performance in providing information which led to the arrest and conviction of an individual or to the recovery of contraband or stolen goods. Commonwealth v. Kaufman, 381 Mass. 301, 302, 408 N.E.2d 871 (1980); Commonwealth v. Vynorius, 369 Mass, at 21, 336 N.E.2d 898. An informant’s admissions against his penal interest, such as an admission to participation in violations of drug laws, may also show sufficient credibility, to support a finding of probable cause. Commonwealth v. Vynorius, 369 Mass, at 21, 336 N.E.2d 898. Other information in the affidavit corroborating the informant’s statements provides additional. indicia of reliability. Id. The second prong, the basis of knowledge requirement, can be satisfied if the informant’s statements contain sufficient detail from which a judge may infer that the information was trustworthy. E.G. Spinelli v. United States, 393 U.S. at 416-17, 89 S.Ct. at 589-90, Commonwealth v. Kiley, 11 Mass.App. 939, 939, 416 N.E.2d 980 (1981).

In this case, the information in Quigley’s affidavit satisfies, the reliability and basis of knowledge requirements for informant statements. The first informant, Mr. X, against his penal interest, admitted to being a distributor of cocaine. Information he gave to law enforcement officers led to the arrest of other persons. His statements concerning GeJarno a/k/a Valencia, were corroborated by independent police investigation. For example, Mr. X observed Valencia driving a silver Datsun 280Z with black shutters in the rear window. Police investigation revealed that Valencia drove such a vehicle. The basis of Mr. X’s knowledge was adequately demonstrated to be from personal observation of Valencia and from conversations with his supplier, Mr. Green. The second informant, Mr. Y, against his penal interest, also admitted to being a cocaine dealer, and identified a Colombian named GeJarno as his supplier. According to Mr. Y, he contacted GeJarno at (617) 459-2942. Shown the photograph of Valencia taken by the Medford police, Mr. Y identified it as GeJarno. He also identified the photograph of Hector Mora as an associate of Valencia’s. Police officers listened in when Mr. Y made a call to (617) 459-2942, asked for GeJarno, was told he was not there at that time, and left a message that he wanted some “product.” Mr. Y’s information concerning the telephone number (617) 459-2942 was corroborated by analysis of telephone records which showed that the number was listed to Valencia’s sister and revealed a pattern of use consistent with sellers of cocaine. The basis of Mr. Y’s knowledge was personal contact with the defendants.

The informants’ statements clearly could be considered when determining probable cause. Looking at the documents submitted to the state court with the application for the first wiretap warrant, I rule that there are sufficient facts to find probable cause that interception of (617) 459-2942 would result in evidence that Valencia and unnamed others were participants in a conspiracy to violate Massachusetts controlled substance laws.

The application for the second warrant also contained sufficient facts to establish probable cause. The affidavit submitted by Quigley in support of the second application recounted observations made during physical surveillance of Mora and Valencia, details concerning Mora’s claims to the $15,000 in cash found on his brother by the Medford police, Mora’s purchases of two automobiles and payment in cash of the deposit on a condominium, and the failure of Gregstrom Corporation to identify him as the employee he claimed to be. Furthermore, during the first interception of (617) 459-2942, conversations between Mora and Valencia were recorded which, as analyzed by experienced law enforcement narcotics investigators, showed that Mora was an important figure in the cocaine distribution network under investigation. The affidavit also contained an analysis of toll calls made from Mora’s home phone, (617) 391-3718, which indicated use consistent with that of a drug trafficker, such as a substantial number of calls to and from pay phones, and calls to persons known to be drug dealers. I therefore rule that there are sufficient facts for a finding of probable cause that interception of (617) 391-3718, Mora’s home phone, would reveal evidence of a conspiracy to violate the Massachusetts controlled substance laws.

Defendants also argue that the applications do not establish that normal investigative techniques were ineffective, or not likely to succeed. Massachusetts law provides that a warrant for a wiretap may issue only “[u]pon a showing by the applicant that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried.” Mass.Gen.Laws c. 272, § 99(E)(3). The federal analog to section 99(E)(3) is 18 U.S.C. § 2518(c), and has virtually identical language. The purpose of this requirement is “to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime,” United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225 (1974), and to safeguard against the use of wiretapping as an initial step in the investigative process. United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). Traditional surveillance techniques need not be exhausted before application for a wiretap is made. E.g., United States v. Scibelli, 549 F.2d at 226. What the provision does require is that the applicant inform the issuing judge of the difficulties involved in using traditional investigative techniques. Id. at 227, quoting United States v. Pacheco, 489 F.2d 554, 565 (5th Cir.1974), cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975). The court, in deciding whether an application has satisfied the statute, may consider the nature of the crime. United States v. Scibelli, 549 F.2d at 227.

In this case, Quigley’s affidavits detailed police efforts at physical surveillance and the difficulties encountered due to the evasive tactics of the suspects. In the affidavits, Quigley, an agent experienced in drug investigation, also explained that attempts to infiltrate the organization would be unsuccessful because the participants were cautious and only willing to deal with people they knew or who were recommended by trusted individuals. Neither of the informants was willing to take the risk of introducing an undercover agent or of testifying against members of the group. Telephone records were also obtained and analyzed prior to the application. The analyses revealed a pattern of use consistent with the type of crime under investigation, the distribution of controlled substances. Traditional methods of investigation did not, however, produce enough evidence to prosecute the targeted conspiracy and, due to the nature of the crime, was unlikely to be more fruitful in the future. Reviewing the information in the affidavits, I rule that sufficient facts were stated to establish that normal investigative techniques had been unsuccessfully pursued and were unlikely to succeed in the future.

The applications for the warrants provided sufficient information to support the issuing judge’s statutorily required findings. The second affidavit is not merely a roll-over of the first. It contains new information obtained from the first wiretap and from analysis of the toll call records of the second telephone number targeted for interception. See, United States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir.1979), cert. denied, 444 U.S. 981, 1019, 100 S.Ct. 484, 674, 62 L.Ed.2d 408, 649 (1979).

C. ORDERS AUTHORIZING ELECTRONIC SURVEILLANCE

Defendants argue that the orders authorizing the interceptions were facially invalid. First, the defendants contend that the instructions regarding minimization were ambiguous. Law enforcement officers involved in the wiretap testified that they did not find the instructions ambiguous, and neither do I. I rule that the instructions fully satisfy the statutory requirement in Mass.Gen.Laws c. 272, § 99, as construed by Commonwealth v. Vitello, 367 Mass, at 266, 327 N.E.2d 819 for specificity and clarity.

Second, the defendants argue that the orders’ conclusory statement concerning the ineffectiveness of normal investigative techniques was inadequate because it did not delineate the court’s reasoning underlying that determination. The Massachusetts statute covering this issue requires that the applicant, not the court, show facts sufficient to support such a finding. Mass. Gen.Laws c. 272,' § 99(E)(3). It does not require that the order itself recite the basis for the court’s decision.

Third, the defendants argue that the orders do not require return of the tapes to the issuing judge at the termination of the interception period. Under Massachusetts law, the return is to be made within seven days. Mass.Gen.Laws c. 272, § 99(M). This section was reconciled with the federal statute, 18 U.S.C. § 2518(8)(a), which requires an immediate return, in Commonwealth v. Vitello, 367 Mass, at 267, 327 N.E.2d 819. The orders in this case required that “the return of this warrant with your doings thereon be done according to G.L. c. 272, § 99L(3) and M.” I rule that this statement is sufficient. I also note that Mass.Gen.Laws c. 272, § 99(1), which lists the components required in a warrant, does not require information on method and time of return.

Fourth, the defendants attack the orders’ provision for sealing the tapes. The orders call for sealing the tapes daily by a designated officer. This requirement is in addition to, and does not supplant, judicial sealing at the termination of the interception as a whole. It provides greater protection against possible tampering, and did not affect the validity of the orders.

Finally, the defendants contend that the orders fail to adequately identify the agency authorized to intercept and monitor the telephone conversations as required by implication in Mass.Gen.Laws c. 272, § 99. See Commonwealth v. Vitello, 367 Mass, at 260, 327 N.E.2d 819. As noted in Vitello, directing an order to the district attorney, his specially designated assistant district attorney, or his designated agents fufills this requirement. Id. at 260 n. 18, 327 N.E.2d 819. The orders in this case were addressed to District Attorney Scott Harshbarger, ADA Nappan, and their investigative and law enforcement officers, thereby complying with the requirement enunciated in Vitello.

I rule that the orders of March 22, 1985 and May 13, 1985 authorizing the interception of wire communications over (617) 459-2942 and (617) 391-3718, respectively, are facially valid.

D. ADEQUACY OF MINIMIZATION DURING EXECUTION OF ORDERS

The defendants argue that telephone calls were inadequately minimized during both interceptions. In support of this contention, they note the use of Colombian slang and code words, the rapid pace of spoken Spanish, and the difficulty facing interpreters who try to simultaneously listen to and translate Spanish conversations into English.

The purpose of minimization is to limit the great intrusion into an individual’s privacy which is inherent in electronic surveillance. Commonwealth v. Vitello, 367 Mass, at 262, 327 N.E.2d 819. Extensive surveillance may be justified, however, when investigators suspect a widespread conspiracy. Scott v. United States, 436 U.S. 128, 140, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168 (1978). This is particularly true with a wiretap on a residential phone used by a person thought to be an important figure in a conspiracy to distribute controlled substances. See id. Jargon and code words are often used by persons dealing unlawfully in controlled substances to mask the purpose of a communication. E.g., United States v. Quintana, 508 F.2d 867, 874-75 n. 6 (7th Cir.1975). Another evasive technique is to deliberately begin a conversation with discussions of irrelevant matters, so that if calls are being monitored, interception will cease under the assumption the call is non-criminal in nature. Id. Consequently, during a wiretap involving a drug conspiracy, it may be necessary to listen to more calls to discover the import of certain words or slang, and to spot-check non-criminal calls more often to see if originally innocent calls have turned to discussion of criminal matters. See United States v. Capra, 501 F.2d 267, 273, 276 (2d Cir.1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975). Interception of a high percentage of non-criminal calls does not necessarily indicate improper minimization. Scott v. United States, 436 U.S. at 140, 98 S.Ct. at 1724.

The orders in this case, as noted above, limited interception to calls involving designated persons and criminal offenses, and provided guidelines for intermittant monitoring of non-criminal calls for specific purposes. The evidence shows that the monitors adhered to these instructions. Although the interpreters were not Colombian themselves, they were fluent in Spanish and quickly learned Colombian slang. A sincere effort was made to interpret the conversations word for word as they were intercepted so that the minimization monitors, persons familiar with narcotics trafficking, could decide whether or not the conversations were interceptable under the court order. One of the interpreter’s testified she lost no more than 20% of the words when interpreting. I find that at the very least, the interpreters successfully relayed the “gist” of each conversation. During a four-minute tape of a non-criminal conversation played before the court, eleven separate interruptions were clearly audible. ADA Nappan testified to hearing such interruptions throughout the tapes, which indicates that non-criminal conversations were not recorded in their entirety. Although defendants presented statistics Concerning the number of criminal and noncriminal calls intercepted and have translated the tapes themselves, they offered no figure representing that any calls were improperly minimized.

I rule that, on the evidence before the court, the minimization process was conducted properly under the court orders in question and fulfilled the intent of the law.

E. RETURN AND SEALING OF TAPES

Under federal law, recordings made pursuant to a wiretap order must be returned to the issuing judge for sealing immediately after termination of the interception. 18 U.S.C. § 2518(8)(a). The Massachusetts statute provides that a return must be made within seven days. Mass.Gen.Laws c. 272, § 99(M). The Massachusetts provision was construed in Commonwealth v. Vitello to mean that seven days was the “outside limit on return of the warrant,” but that returns should be made before then if practicable. Commonwealth v. Vitello, 367 Mass, at 267, 327 N.E.2d 819. Although ADA Nappan apparently considered himself governed by state law when he made the returns, it is clear that the returns were tardy under either law.

The measurement of the delay in return and sealing of tapes under federal law begins from the termination date of the continuous period of interception of a telephone line. United States v. Vazquez, 605 F.2d 1269, 1276 (2d Cir.1979). In this case, ADA Nappan made the return of the first wiretap on April 26, 1985, twenty days after the interception terminated, and of the second wiretap on June 25, 1985, forty-one days after termination of the second interception. A delay beyond one or two days requires a satisfactory explanation before the tapes may be used in court. Id. at 1278.

No clear consensus exists as to what constitutes a satisfactory explanation. Id. Each case is decided on its own facts. E.g., United States v. Caruso, 415 F.Supp. 847, 851 (S.D.N.Y.1976), aff'd, 553 F.2d 94 (2d Cir.1977). Some of the factors considered by the courts are the length of the delay; the presence or absence of evidence of tampering; administrative delays caused by the need to duplicate and prepare tapes for sealing; and whether the defendants were prejudiced by the delay. United States v. McGrath, 622 F.2d 36, 42-43 (2d Cir.1980). Other reasons for delay found excusable have been the prosecutor’s preoccupation with preparations for an upcoming trial, United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 912, 98 S.Ct. 2231, 2252, 56 L.Ed.2d 401, 413 (1978) (seven days), and the time needed to prepare warrants, indictments and transcripts of the tapes. United States v. Diana, 605 F.2d 1307, 1314-15 (4th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980) (39 days). For an explanation to be deemed satisfactory, it must show that the government acted with dispatch and all reasonable diligence, respectful of the letter and spirit of the law and mindful of the court’s instructions. United States v. Angelini, 565 F.2d 469, 472 (7th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). What was a satisfactory excuse in the past, may not suffice today. United States v. Vazquez, 605 F.2d at 1280. As the case law on the issue grows, sealing delays become less justifiable. Id. Law enforcement personnel are expected to learn from their own experiences and those of others. Id.

Turning to the facts in the case now before this Court, I rule that the government’s explanation for the sealing delays are not satisfactory. At issue here are not de minimis delays; but the failure for twenty and forty-one days to return to the court the evidence obtained during the two interceptions. The government cited no administrative problems occasioned by its need to use the original tapes. In fact, transcription and duplication of the tapes was done at the listening post. ADA Nap-pan’s assertion that he interpreted the law and warrant as meaning that the returns were due thirty days after the date the warrant was signed is not supported by a careful reading of the court orders or the statutes, or by any case law. Having participated in three prior wiretaps, ADA Nap-pan was not a novice to the law. Even under his interpretation, the second return was tardy. The law does not exclude weekends and holidays when measuring the length of a sealing delay. In addition, the government advanced ADA Nappan’s unavailability due to preoccupation with pending trials as a justification for the delays. It is clear from the facts, however, that the ADA was not on trial continuously during the delay periods and that there was ample opportunity for him to make the returns more expeditiously. The government also failed to establish that either Quigley or the issuing judge was unavailable during the relevant time period. In any event, other personnel could have been designated to effectuate the returns if necessary. See United States v. Angelini, 565 F.2d at 472 (if case agent unavailable, another agent can fulfill sealing obligation); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert. denied, 406 U.S. 498, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (tapes may be properly sealed by another judge when issuing judge unavailable); United States v. Caruso, 415 F.Supp. at 850 (another assistant district attorney may make return when person originally designated unavailable).

The Courts of Appeals for the circuits differ on whether an inadequate explanation of a delay should result in suppression of the tapes. For example, the Fifth Circuit held that an unexplained delay did not warrant suppression where there was no evidence of tampering and where the defendants were not prejudiced by the delay. United States v. Diadone, 558 F.2d 775, 780 (5th Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978) (two week delay). Similar is the two-step analysis adopted by the Court of Appeals for the Seventh Circuit. Under this approach, if the government offers a satisfactory explanation, then the delay is excused, but if there is no satisfactory explanation, then the court looks to see (1) if the purpose of the sealing procedure was nevertheless satisfied; and (2) if the statutory requirement was deliberately ignored, and if so, whether the government gained any tactical advantage. United States v. Angelini, 565 F.2d at 471. In contrast, the Courts of Appeals for the Second and D.C. Circuits, have held that defendants need not prove tampering for obtaining suppression based on an unexplained delay in returns. United States v. Johnson, 696 F.2d 115, 124-25 (D.C.Cir.1982); United States v. Gigante, 538 F.2d 502, 505 (2d Cir.1976). The First Circuit has not as yet ruled on this issue.

I find that ADA Nappan’s failure to make his return promptly was caused by his lack of appreciation of the importance to his case of complying with the statutory requirements for making a return. I find that he acted in ignorant bliss and negligently but that he was not consciously or deliberately failing to perform his duty, nor was he acting in bad faith. As was observed by Mr. Justice White in his concurring opinion in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), courts should be sensitive to the costs and benefits when imposing an exclusionary remedy. Id. at 257, 103 S.Ct. at 2341. The cost of barring the use of relevant and trustworthy evidence is interference with the truthseeking function of a criminal trial. Id. Thus any denial of jury access to highly probative and reliable evidence must be justified and must be limited to situations which further the purpose underlying the rule. Id. at 257-58, 103 S.Ct. at 2342.

The post-interception procedural requirements contained in 18 U.S.C. § 2518(8)(a) aim “to preserve the integrity of the intercepted conversations and to prevent any tampering or editing of the tapes or other unlawful use.” United States v. Lawson, 545 F.2d 557, 564 (7th Cir.1975). Applying the two-part test set out in United States v. Angelini, 565 F.2d at 471, I find on the record before me that the purposes of the sealing requirements were fulfilled in this case. Each tape was sealed at the end of the recording day. The tapes, after sealing, were all stored in an alarm-protected and secure vault in an office occupied by the state police investigators. All of these individually sealed tapes were ultimately sealed in large cartons by Judge Zobel and were produced in Court in those ame, still-sealed cartons. No evidence of any tampering with the tapes was hinted at or presented to the Court. The testimony at the hearing also established and I find that no prejudice has resulted to the defendants from the sealing delays, nor has any tactical advantage accrued to the government.

Defendants also argue that the Superior Court judge failed to properly seal the tape recordings. They base this claim upon the fact that the judge did not inspect and seal each tape individually. Instead, each tape was sealed by the designated officer and the box containing all the sealed tapes was examined and sealed by the judge. I find that the seal on the box assured that no one could or would have access to the tapes without authorization. The federal law provides that the recordings shall be sealed under the issuing judge’s directions. 18 U.S.C. § 2518(8)(a). It does not delineate a specific procedure for sealing. In this case, I rule that the method used fulfilled the purpose of the provision and assured the integrity of the tapes. I therefore rule that the tapes were properly sealed by Judge Hiller Zobel.

F. FAILURE TO OBTAIN JUDICIAL APPROVAL

Finally, the defendants argue that because the wiretap warrants specified state and not federal crimes, the prosecutor was required to obtain judicial approval prior to presenting evidence gained through the interceptions to the federal grand jury for the purpose of obtaining indictments on federal offenses. The relevant federal statute provides:

When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.

18 U.S.C. § 2517(5).

Recently, the First Circuit ruled that federal law does not require reference to particular statutory sections in a warrant. United States v. Smith, 726 F.2d 852, 865 (1st Cir.1984). In Smith, failure of federal authorities to obtain judicial authorization was therefore not fatal where the warrant alleged violations of state laws which contained the same elements, described in the same language, as the federal offenses for which the indictments were returned. Id. at 865-66. The court in Smith stated that the purpose of section 2517(5), to prevent “subterfuge searches,” was not thereby undermined. Id. The federal and state offenses at issue in Smith were the same ones charged in this case. The prosecutor’s failure to obtain judicial approval therefore does not warrant suppression in this case any more than it did in Smith. I note, however, that it would be prudent for investigating officers to routinely obtain judicial approval and thus always ensure literal compliance with section 2517(5). See id. at 865.

I rule that the interceptions in this case were lawfully conducted and that the tapes may be used as evidence in this Court.

Order accordingly.

      . The federal statute governing wiretapping by federal and state authorities allows states to adopt more stringent, but not more lenient, requirements. See, e.g. United States v. Smith, 726 F.2d 852, 856 (1st Cir.1984).

      . In addition, the defendants contend that their rights under Article 14 of the Massachusetts Declaration of Rights were violated. The Supreme Judicial Court of Massachusetts ruled in Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548 (1985), that Article 14 afforded defendants more substantive protection than does the Fourth Amendment of the United States Constitution. The court rejected the "totality of the circumstances” test enunciated in Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), concluding that the Aguilar-Spinelli two prong test, as developed under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was a more appropriate standard for probable cause inquiries under Article 14. The standard included in Mass.Gen. Laws c. 272 § 99F(3) parallels the Aguilar-Spinelli test.

      . 18 U.S.C. § 2518(c) requires: "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous____”
      No case has been cited to this Court under the Massachusetts statute.

      . 18 U.S.C. § 2518(8)(a) provides in pertinent part:
      "... Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions____”


source: Caselaw Access Project

author: KEETON, District Judge.

license: Public Domain

text:
    Bancroft Dudley HALL, et al., Plaintiffs, v. Frederick J. OCHS, et al., Defendants.
    Civ. A. No. 81-333-K.
    United States District Court, D. Massachusetts.
    Nov. 27, 1985.

      John Reinstein, Civil Liberties Union of Mass., Michael Avery, Howard Friedman, Friedman & Atherton, Boston, Mass., for plaintiffs.
    Robert D. O’Leary, Quincy, Mass., Philip M. Cronin, Devra G. Bailin, Boston, Mass., for defendants.
   KEETON, District Judge.

Plaintiffs Bancroft Dudley Hall and his daughter, Sandra Hall, brought this action against defendants Town of Milton and Officers Ochs, Judge, Murphy, and Rogers of the police force of the Town, as well as other officers who were dismissed at the commencement of trial. The claims asserted include battery on each plaintiff, false imprisonment of the father, and violations of rights of both plaintiffs remediable under 42 U.S.C. § 1983. All these claims arose out of an incident occurring when the father, on Sunday morning, came to a residential neighborhood to pick up his daughter after her overnight stay with a school classmate. The suspicions of a neighbor’s daughter, who drove past and observed the plaintiffs, Blacks, led the neighbor to call the police, who arrived just as Sandra Hall was entering her father’s car and they were about to leave.

The jury (in answer to interrogatories) found for plaintiffs on the claims for battery and on a claim for false imprisonment of the father from the time he was arrested in the driveway until defendant Murphy advised him, at the police station to which he had been taken after arrest, that he would be freed immediately if he would sign a form presented to him, releasing all claims against all the defendants. The court ruled at the close of the evidence that, as a matter of law, defendant Murphy and the Town of Milton were liable for false imprisonment of the father from the time defendant Murphy first presented the release form to the father until the time (at the least, nearly an hour later) when the father signed the form and was freed from police custody. The jury found that the other individual defendants were jointly liable with Murphy and the Town for this false imprisonment. The court also ruled that under the undisputed evidence, the police officers were acting pursuant to Town policy in using the release form as they did, thus rendering the Town subject to liability for attorneys’ fees under 42 U.S.C. § 1988. The jury found against all individual defendants on the § 1983 claims and awarded punitive damages against each individual defendant. Judgment was entered on the verdict for compensatory damages of $165,000, prejudgment interest of $86,883.89, punitive damages of $210,-000, attorneys’ fees of $61,623.75, and expenses of $2,188.38, for a total of $525,-696.02.

Each of the defendants in this case has filed a motion for judgment notwithstanding the verdict and a motion for new trial. Jointly they have filed a 59-page Memorandum in support of their motions.

With the exception of contentions addressed below, the motions are founded on arguments that were fully considered before challenged rulings were made in pretrial proceedings or during trial. On those matters, I adhere to the rulings previously made, for the reasons stated of record orally at trial or in memoranda before trial. This Opinion considers an issue not previously addressed (the sufficiency of the evidence to support the findings on damages) and issues as to which somewhat more elaborate arguments have been presented on these motions than during previous proceedings.

I.

Neither at trial nor in the present motions have the defendants called attention to any particular deficiency in the evidence that would support their arguments that the evidence was insufficient to support any of the factfindings on liability made by the jury in answering the interrogatories submitted to them in the Verdict form. Nor have I been able to identify any such deficiency. I conclude that the evidence was sufficient to support each of the jury’s findings.

Also, the contention that these findings of the jury are against the weight of the evidence is without merit. Clearly clashing versions of the events at issue were presented in the evidence. It was for the jury to decide these disputes of fact, and the jury has done so in a way amply supported by evidence.

II.

Defendants rely heavily upon the release signed by the plaintiff, Bancroft Dudley Hall (often referred to herein as “plaintiff”). Authorities cited in support of the defendants’ argument that this release is valid, and their argument in the alternative that validity depended on a question of fact regarding voluntariness that should have been submitted to the jury, fail to support either of these contentions. A critically important distinction is that of all the cases cited (with the possible exception of early Massachusetts cases decided long before Supreme Court and Circuit decisions of the 1960s and 1970s) none involved circumstances in which the person signing the release was then held by the police, under arrest, and was given a two-fold choice of (1) signing a full release of all claims (not merely a waiver of the right to be bailed) at which time he would be discharged from custody immediately, or (2) declining to sign, in which event he would be held in police custody, under arrest, for a minimum of the substantial period of time required to arrange bail on a Sunday afternoon. This was precisely the limited choice presented to plaintiff.

The material circumstances of the defendants’ placing the release form before plaintiff were not in dispute. As described by defendant Murphy in full and corroborated by the testimony of other defendants who were present and participating from time to time, and without contradiction by any evidence from any source, defendant Murphy told plaintiff he could leave immediately if he would sign the release. Then, after plaintiff declined to sign at that time, defendants held him in custody for a substantial additional time.

In view of defendant Murphy’s clear and unambiguous testimony on this matter, I conclude that the release was invalid as a matter of basic contract law. When undisputed evidence discloses that the signing of the alleged contract (here, an alleged release) occurred only after the signer was illegally confronted. with this coercive choice, while illegally imprisoned, no fact question of “voluntariness” is presented. As a matter of contract law, a release signed under these circumstances of duress is unenforceable. Restatement (Second) of Contracts, § 175 (1981). Some courts have held such releases void as against public policy. See, e.g., Boyd v. Adams, 513 F.2d 83, 88 (7th Cir.1975) and state cases cited therein at 87 n. 5. Even though dicta in Horgan v. Boston Elevated Railway Company, 208 Mass. 287, 289, 94 N.E. 386, 388 (1911), and Keefe v. Hart, 213 Mass. 476, 481-82, 100 N.E. 558, 559 (1913), might be read as supporting a different position, they certainly do not so hold. Current Massachusetts contract law is more likely to adhere to the Second Restatement position than to any contrary inferences drawn from near turn-of-the-century dicta.

As a second, independent ground of holding the purported release invalid as a matter of law, I conclude that both state constitutional law and federal constitutional law require this result. The reason is that plaintiff and defendants were not bargaining as equals. This was a release taken by officers holding the plaintiff in custody under color of law. See, e.g., Brewer v. Blackwell, 692 F.2d 387, 399 (5th Cir.1982) (“If in fact [defendant] required the plaintiffs to sign the agreement before releasing them, he deprived them of their right to liberty by threatening to detain them unless they signed it.”); Boyd v. Adams, 513 F.2d 83, 87-88 (7th Cir.1975) (release signed by plaintiff while still on conditional cognizance bail invalid due to “inherent coercion”); MacDonald v. Musick, 425 F.2d 373, 377 (7th Cir.1970) (divided court granted writ of habeas corpus where prosecutor conditioned dismissal of drunk driving charge on petitioner’s stipulation that there was probable cause for arrest); Horne v. Pane, 514 F.Supp. 551, 552 (S.D.N.Y.1981). (“It seems to us beyond question that a criminal defendant forced to choose between being prosecuted on criminal charges on the one hand, and not being prosecuted but giving up certain constitutionally guaranteed civil rights on the other, cannot as a matter of law make an uncoerced choice.”) Also see the opinions in Dixon v. District of Columbia, 394 F.2d 966 (D.C.Cir.1968) (considering a retaliatory prosecution initiated because defendant refused to promise or reneged on promise not to file a complaint against the police).

In ruling at this time on the validity of the purported release signed by plaintiff, I must also take account of the decision of the First Circuit in Blackburn v. Snow, 771 F.2d 556, (1st Cir.1985), even though that decision was not released until after the verdict in this case. The right at issue there (to visit a relative in prison) was assumed by the court not to be a constitutional right. Nevertheless, the opinion of the court (though over a dissent), declares:

We need not decide whether, as a factual matter, the particular circumstances of Blackburn’s background rendered any consent she gave ineffective, for we agree with the district court that, as a matter of law, Blackburn’s submission to the [strip] searches under these circumstances cannot properly constitute consent because her access to the Jail was impermissibly conditioned on that submission ____
Rather it has long been settled that government may not condition access to even a gratuitous benefit or privilege it bestows upon the sacrifice of a constitutional right____

Id., at 568. For far stronger reasons, of course, defendants could not condition plaintiff’s Fourth (and Fourteenth) Amendment right to release from arrest upon his signing away his claims for harm already done to him, as well as signing away his First Amendment rights to redress of grievances in court. Because of these factual distinctions between this case and Blackburn, I conclude that the decision I reach here is consistent not only with the court’s opinion in that case but as well with the dissent of Judge Aldrich, at 573-78.

Even if defendants had probable cause when they arrested (an assumption contrary to jury findings in this case), when they subsequently obtained additional information and no longer had probable cause to continue to hold the person under arrest, they were forbidden by state and federal constitutional law to require, as a condition of discharge from custody, that plaintiff sign a release of his claims against them for what they had already done.

Thus, under state tort law Murphy was liable as a matter of law for this period of detention (the period between the time he presented the release to plaintiff, having determined to let plaintiff go immediately if he would sign, and the time plaintiff later signed and was discharged). On this state tort claim, a verdict was directed against Murphy and the Town on the issue of liability, and only the issue of damages was submitted to the jury. As to the other police officer defendants, the jury having found (with ample support in the evidence) that they acted jointly with Murphy in holding plaintiff during this period, they, too, are jointly liable with Murphy and with each other for this period of false imprisonment.

Thus, the defendants are liable for false imprisonment of plaintiff at least from the time he refused to sign the release When it was first presented until he later yielded to what was, in these circumstances, coercive detention as a matter of law, and signed the release form.

Defendants’ reliance upon cases in which releases were signed while the plaintiff was not in custody is entirely misplaced. In such circumstances, the threat to the accused person’s liberty is a threat of detention at a future time, and only in the event the accused person is found guilty at trial. In this case the coercion that defendants used against plaintiff was not a mere threat but a declared certainty that they would continue to hold him under arrest immediately, no matter how improbable it was that he would be convicted of any offense if tried.

Defendants’ reliance upon provisions of the Massachusetts Law Enforcement Officers Handbook is likewise misplaced. Defendants cite, for example, a passage in that Handbook declaring:

If for any reason you decide to release an arrested person without bringing him into court (except on bail), advise him of his right to be brought into court and ask him to sign a waiver of that right____

Massachusetts Law Enforcement Officers Handbook, p. 40, at paragraph B [T. 4/23— 28]. Defendants proceed to argue as if the release form they presented to plaintiff did not purport to be anything more than a “waiver of that right”—that is, “his right to be brought into court____” This argument must not be allowed to divert attention from the contrast between the “waiver” referred to in the Handbook and the release defendants presented to plaintiff. Defendants never proffered any evidence that they presented such a limited waiver form to plaintiff. Instead, their own evidence is explicit and clear that the only “waiver” form they presented to him was one which purported to release all his rights against defendants, not merely his “right to be brought into court.”

Also without merit is defendants’ argument that there was a material, dispute of fact because defendant Murphy held open the possibility of releasing plaintiff on bail. Even assuming that the evidence would support such a factfinding, it nevertheless is undisputed in the circumstances of this case that plaintiff would have been held under arrest at least as long as did occur and probably substantially longer before he could have obtained a hearing before a bail commissioner. Thus, the undisputed fact remains that defendant Murphy presented plaintiff with a choice only between (1) immediate release if he would sign away his rights, and (2) remaining under police arrest for a substantial additional period of time.

In relation to the foregoing argument, defendants clearly misstate the evidence in saying that defendant Murphy “told Hall on at least two occasions that Hall had a right to go to court tomorrow, a right to bail now or he could sign the release and leave without having to appear in court.” Defendants’ Memorandum at 32-33 (emphasis supplied). See also the repetition of the “bail now” argument, id. at 34-35. Indeed, if defendant Murphy had said “now,” it would have been a clear misrepresentation since it is undisputed that substantial time would have been required to obtain a bail commissioner.

As noted above, the invalidity of the release is established as a matter of law on undisputed testimony by defendants. A factfinder’s crediting other evidence in the case rather than this testimony would only add additional weight to grounds already sufficient as a matter of law to require the conclusion that the release was invalid.

III.

Distinct from the issue of validity of the release, referred to in Part II above, is the issue of “good faith immunity.” This is a closer issue, and especially so in relation to the police officer defendants other than defendant Murphy.

First, I turn to clarifying the issue.

Insofar as defendants contend that the law “does not support the conclusion that delivering a release such as that given to Hall violated a clearly established constitutional right,” Defendants’ Memorandum at 15 (Docket No. 117) (emphasis supplied), their contention misses the mark. The serious violation of constitutional right found in this case is not aptly described as “delivering” or “givpng]” a release to plaintiff Hall for signature. Rather defendants held plaintiff Hall in custody under color of law after they had determined, and so advised him, that they would discharge him immediately if he would sign the release they placed before him but would continue to hold him in a jail cell (or elsewhere in the police station) if he declined to sign.

In relation to “good faith immunity,” the court must consider these contentions of the individual defendants (that is, defendants other than the Town of Milton) that they are protected under the standards for applying that defense as developed in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Mitchell v. Forsyth,—U.S.-, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); and First Circuit decisions, including, most recently, Blackburn v. Snow, 771 F.2d 556, (1st Cir.1985); Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, (1st Cir.1985); Floyd v. Farrell, 765 F.2d 1, (1st Cir.1985). See also Briggs v. Malley, 748 F.2d 715 (1st Cir.1984), and B.C.R. Transport Co. v. Fontaine, 727 F.2d 7 (1st Cir.1984). Defendants are mistaken in arguing, however, that validity of the release is the constitutional right at issue. The issue is, instead, whether the conduct of defendants in holding plaintiff Hall in custody violated liberty interests that were “clearly established ... constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738 (citations omitted).

Even if it could be said that defendants had a reasonable basis for believing that the release would be effective to protect them against liability if they could obtain the plaintiff’s signature on it—a belief that would be contrary to the conclusion stated in Part II above—this would not support the further conclusion that they had a reasonable basis for believing they would not be violating a constitutional right if they used detention under color of law to pressure plaintiff into signing, after they had already determined that they would assert no basis for holding him in custody any longer if he would sign the release. The constitutional right at issue is a fundamental liberty interest—not an interest in the validity of a purported contractual document. It is the interest in not being held in confinement under color of law by police officers who have determined that their asserted earlier probable cause for arrest and detention did not justify holding plaintiff any longer. Defendants have cited no authority that even suggests that it would be reasonable for police officers to believe that continuing to hold a person in custody in these circumstances is not a violation of that person’s clearly established constitutional right not to be held by police under arrest without probable cause.

Defendants argued at trial, and argue again on these motions, that they could detain plaintiff at least until he made bail. But defendant Murphy is in no position to assert that argument in this case because he clearly and unambiguously testified that he had determined not to hold plaintiff until he made bail if only plaintiff would sign the release. Thus, even if plaintiff had exercised his right to make bail, since he also refused to sign the release at that time, he would have remained in custody until the bail commissioner arrived. In these circumstances, plaintiff’s not having exercised his right to make bail was not a cause in fact of the detention during the substantial period after the release was first presented to plaintiff and the time when he eventually signed it. That detention occurred because plaintiff refused to sign the release when it was first presented to him, and that detention would have occurred even if plaintiff had also told Murphy he wished to make bail. Thus, the dispute over whether Murphy did or did not advise plaintiff of his right to make bail is not a dispute over a material fact.

The other police officer defendants were found by the jury (with ample support in evidence) to have acted jointly with defendant Murphy in confining plaintiff during this period after the release was presented to plaintiff and before plaintiff signed. By reason of this finding, they occupy the same position as Murphy in being barred from now asserting that they held plaintiff because he had not made bail rather than holding him because for that period of time he was refusing to sign the release.

The closest issue before me is whether the police officer defendants other than Murphy should be held to have been in a different position from Murphy with respect to their contention that the court should hold that they had an objectively reasonable basis for believing that they were not violating plaintiff’s clearly established constitutional rights not to be held under arrest without probable cause after they had learned that the assumed facts on which they based their belief of probable cause to arrest plaintiff were incorrect. This issue may be seen as one depending in part upon the precise meaning of the standard of judgment developed in Harlow and Davis, their progeny in First Circuit decisions, and the recent decision in Mitchell v. Forsyth,— U.S.-, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), handed down after the verdict in this case.

One question to be considered is by what method the court is to decide whether the claimed constitutional right is “clearly established.” Is this question to be decided as courts decide issues of law? Or is it to be decided as courts decide issues of fact (which “fact issues” courts decide “as a matter of law” only if reasonable factfinders could not differ on the evidence before the court)? If it is to be decided as courts decide issues of law, then it is irrelevant that there were disputes of fact as to whether and to what extent each of the other police officer defendants participated jointly with Murphy in presenting the release form to plaintiff and in detaining plaintiff after he first refused to sign and until he eventually did sign. These factual disputes were submitted to the jury in Interrogatory 5, and the jury found against defendants. Thus, the jury has determined that even though these defendants may have contended that the evidence would have supported a different finding, the truth is that each of them was aware the release form was being used with his name among those of the officers to be released, each of them thus at least acquiesced in having his name placed in the release form that defendant Murphy presented to plaintiff, and each of them acted jointly with Murphy in causing plaintiff to be held under arrest during the period from the time the release form was first presented to plaintiff until plaintiff eventually signed it.

Insofar as the question whether a constitutional right is “clearly established” depends on interpreting Supreme Court and Court of Appeals decisions, I conclude that the issue of interpretation is one of law for the court, not one of fact to be submitted to the jury even if reasonable persons could differ about the interpretation of court decisions and whether they had “clearly established” a constitutional right. To hold otherwise would be to create an issue for the jury on which they would plainly need the aid of expert testimony. I conclude that it is not a permissible interpretation of Harlow, Davis, their progeny in First Circuit decisions, and the recent decision of the Supreme Court in Mitchell v. Forsyth, that this issue should be determined by presenting conflicting expert testimony and asking the jury to decide whether an interpretation relevant to the case at hand was “clearly established.” See especially Mitchell v. Forsyth, 105 S.Ct. at 2816-17, and Floyd v. Farrell, at 6 (“The district court erred when it stated ‘the issue of qualified immunity is almost universally one which presents a question of fact to be determined by the trier of fact.’ ... As here, the availability of the defense will often turn upon questions which can be resolved as a matter of law.”) See also Ricci, supra, 768 F.2d 456, at 467 (examining nationwide precedent where no previous Circuit decision was in point). I therefore conclude that issues of interpretation of disputed passages in Supreme Court and Court of Appeals decisions are not to be submitted to the jury. They must be decided by the court as issues of law are decided—by receiving and considering arguments of counsel and ruling upon them. “Factual disputes will result in denial of summary judgment” and in submission of the case to the jury “when they are relevant to the qualified immunity defense----” Floyd, at 6. But disputes about the interpretation of Supreme Court and Circuit decisions are not “factual disputes.” They are disputes about the law.

Given this conclusion, I conclude also that the need in this case for submitting to the jury factual disputes about whether and to what extent other police officer defendants participated jointly with Murphy in holding plaintiff under arrest does not defeat plaintiff’s claim that the constitutionally protected liberty interests they violated were “clearly established constitutional rights.” It was not in doubt, and no reasonable police officer could have believed otherwise, that continuing to hold plaintiff without a present belief in probable cause for doing so was a violation of plaintiff’s constitutional rights.

Insofar as defendants contend that the issue of good faith immunity should have been submitted to the jury, it is- to be noted that, though invited to do so, they did not submit a proposed interrogatory to the jury or proposed instructions that would have identified for the court (and for the jury, if the requests were allowed) what was the question of fact the jury was to decide. Even now, in their post-trial submissions, defendants have failed to formulate any submission to the jury that the court could now examine to determine what issue of fact—rather than law—they would wish the court to submit to the jury.

Nor can the individual defendants (including all others as well as Murphy) succeed in their claim that they are entitled to “good faith immunity” on the theory that a reasonable person in their position could have believed that the release form signed by plaintiff was valid. In the first place, as noted above, the relevant issue of constitutional right is not validity of the release but the plaintiff’s liberty interest in not being held in continued police custody without probable cause. In the second place, even if the defendants’ statement of the issues were accepted, their contention would still fail because it has long been a clearly established constitutional rule that even when a state has the power to deny a privilege altogether, “it may not impose conditions which require the relinquishment of constitutional rights.” Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 588, 594, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926), cited in Blackburn v. Snow, 111 F.2d 556, 568, (1st Cir.1985). Here, the use of the release form was an effort to impose upon plaintiff’s assertion of his liberty interest in prompt discharge from custody—an interest protected by the Fourth (and Fourteenth) Amendment—the condition that he sign away his claims for damages for false imprisonment and battery, his claims under 42 U.S.C. § 1983, and his First (and Fourteenth) Amendment rights to redress of grievances.

Defendants’ reliance upon substantive due process cases, including Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), and its progeny, is in point only insofar as plaintiffs' § 1983 claims are based on a substantive due process theory.

In this case, the § 1983 claim for holding plaintiff Bancroft Dudley Hall under arrest during the period after the release form was first presented to him and until he finally signed it was plainly a claim for violation of his liberty interest protected by the Fourth Amendment (through incorporation into the Fourteenth), and it is therefore unnecessary to consider whether his claim could be supported as well on Fifth (and Fourteenth) Amendment substantive due process grounds. For this reason, the rulings in this case as to Bancroft Dudley Hall’s claims were entirely consistent with this court’s previous decision in Schiller v. Strangis, 540 F.Supp. 605 (D.Mass.1982), despite defendants’ contentions to the contrary.

In summary, the purported release that defendants placed before plaintiff was not signed by plaintiff until after the plaintiff’s liberty interests protected by the Fourth (and by incorporation, the Fourteenth) Amendment had already been violated. The critical issue is not whether, when the defendants acted, they could have reasonably believed that such a release, if signed, would be effective to relieve them of liability for the wrong they had done. Rather the issue is whether they could have reasonably believed that they could continue to hold a person under arrest until he signed the release, when they had already determined that they would not hold him unless he refused to sign.

I conclude that in the circumstances of this detention, even as related by defendants and without giving credit to any evidence of plaintiffs that would have supported findings of even more egregious violations of established rights, no reasonable person in the position of any of the defendants could have failed to understand that he was violating clearly established constitutional rights in continuing to hold plaintiff Hall in custody for the substantial period of time after the officers had determined that they would let him go if he signed and would detain him longer if he declined to sign.

I conclude, as well, that the invalidity of the release on constitutional grounds was clearly established, though in my view this conclusion is not essential to the result reached here.

IV.

The § 1983 claim of plaintiff Sandra Hall against defendant Judge for striking her with force when he and defendant Ochs were removing her father from the car does rest on substantive due process grounds and therefore presents an issue as to whether the substantive due process standard is satisfied in this case. I conclude, however, that the evidence is sharply in conflict as to what happened and the jury verdict clearly indicates that the jury credited plaintiffs’ version and discredited defendants’ version of what occurred in fact. Defendant Judge’s argument that a verdict should have been directed for him on this § 1983 claim is without merit. The evidence was sufficient to support the jury verdict, and that verdict, interpreted in accordance with the instructions given in the charge, meets the substantive due process requirements as developed in such cases as Johnson v. Glick, 481 F.2d 1028, 1032-33 (2d Cir.1973). Also, the constitutional right at issue was clearly established long before the incidents in this case. The disputes of fact as to the applicability of that right in this case do not support defendant Judge’s claim of good faith immunity. See Blackburn, at 570.

V.

Defendant Town of Milton challenges the determination that defendant police officers were acting pursuant to established Town policy in presenting the release form to plaintiff for signature and continuing to detain him from the time he refused to sign until he finally did sign. This contention must be overruled.

The evidence is undisputed that the form used was a printed form, with the Town’s seal on it, prepared by Town officials and available for use of police officers for many years before this incident. The police officers, in presenting the form to Hall and holding him when he declined to sign, were acting in accordance with a practice so long in use by the police officers of the Town that the inference was compelled that this police practice was known to and approved by Town officials responsible for establishing policies and practices of the police force.

VI.

Defendants’ appear to contend that the court made a “ruling that there was false imprisonment as a matter of law” before defendant Murphy presented the release to plaintiff, and that the court “ruled that Hall was falsely imprisoned and illegally detained from the time when the officers had no basis for holding him—i.e. when he identified himself [T. 4/78-82],” Defendants’ Memorandum at 38. This contention is at least misleading if not plainly based on a false assumption as to the court's ruling. There was conflicting evidence as to when plaintiff first identified himself, though no dispute that he did give full identifying information at some time before the release form was first presented to him. In the colloquy referred to, the court was conferring with counsel, out of the presence of the jury, about the scope of one, but only one, of the grounds of probable cause for arrest asserted by defendants—that he had refused to identify himself when the officers first approached him and thus had violated a state statute. No occasion for a ruling on the point was presented at that time, though of course it was necessary for the court to rule on this issue in the charge to the jury. See Tr. 8/92-93. Neither in the colloquy referred to nor in the charge to the jury did the court ever hold that plaintiff was, as a matter of law, falsely imprisoned from the moment he identified himself until he was released. Rather, the ruling was that he was falsely imprisoned from the moment defendant Murphy told him he was free to go if he would sign the release form but would be held longer if he refused.

VII.

Defendants contend that the amounts of the damages findings are excessive and lack support in the evidence. This contention, also, must be rejected.

Defendants contend that Question 9 of the Verdict form “was allegedly based on a mixture of state law claims for false imprisonment and upon section 1983,” Defendants’ Memorandum at 56. This contention reflects a misunderstanding of the reason for submitting Question 9 to the jury. It was submitted only for the purpose of determining what amount of interest, if any, the jury would award on sums awarded under the § 1983 claim. The jury finding in Question 9 is relevant only to § 1983 liability. It cannot limit the amount due under state law.

Under Massachusetts law, prejudgment interest on compensation awarded for the false imprisonment claim is added by the Clerk, as a matter of law, in determining the amount of the judgment. Since the amount of prejudgment interest allowed by the jury in their answer to Question 9 was less than the amount due under state law, judgment against all defendants liable under state law was awarded for the larger amount required by state law rather than merely the smaller amount found by the jury. Had the jury awarded prejudgment interest for the § 1983 claim in excess of that due under state law for the false imprisonment claim, plaintiffs would have had a claim (the merits of which I need not determine in this case) for the larger interest figure found by the jury. Of course, plaintiffs were entitled to have the judgment make clear that they had two grounds for recovery of that portion of the larger state law mandated prejudgment interest award that was also within the § 1983 prejudgment interest amount found by the jury.

VIII.

As defendants have noted, the total amount of all awards in the judgment was $525,696.02. In examining whether it-was supportable, however, the court must consider the separate elements as well as the total. The total amount consisted of the following types of awards, in the amounts indicated.

Compensatory damages to Sandra Hall $ 5,000.00
Compensatory damages to Bancroft Dudley Hall 160,000.00
Punitive damages
Against Defendant Ochs 80,000.00
Against Defendant Judge 60,000.00
Against Defendant Murphy 60,000.00
Against Defendant Rogers 10,000.00
Prejudgment interest 86,883.89
Attorneyfees 61,623.75
Expenses 2,188.38
$525,696.02

The total prejudgment interest due was fixed by state law and calculated by the Clerk of this court in accordance with the practice mandated by state law applicable to the state law claims for battery and false imprisonment. As noted in Part VII above, the jury finding of prejudgment interest of $60,000 as the compensatory damages recoverable under the § 1983 claims was less than the interest mandated by state law at a rate of 12 percent per annum. Thus, it added nothing to the total interest awarded, though it did add an additional ground for sustaining part of the interest award. In these circumstances, the interest award cannot be determined to be excessive unless the total of compensatory damages on which it was calculated was excessive.

The total of compensatory damages awarded was $5,000 to Sandra Hall and $160,000 to Bancroft Dudley Hall.

The total of punitive damages was $210,-000. The most awarded against a single defendant, in compensatory and punitive damages combined, was $240,000 against defendant Ochs.

IX.

In considering the contention that the amounts awarded were excessive, the court must view the evidence from the perspective of the most favorable inferences to the plaintiffs that the evidence will support. Disputed facts and inferences may have been resolved by the jury favorably to plaintiffs. The disputes were stark.

The evidence supported findings that both plaintiffs sustained unprivileged physical contacts intentionally inflicted by defendants. It is true, as» defendants argue, that neither plaintiff suffered any lasting physical effects. In determining reasonable compensation for intentionally inflicted physical contacts (battery) and false imprisonment, however, a jury is permitted to take account of the demeaning and insulting qualities of both the actions of the defendants and their consequences to plaintiffs.

In considering what punitive damages are appropriate, a jury may also consider the acts and demeanor of the defendants throughout the trial as bearing on whether there is a need for punishment of the defendants and deterrence of like conduct by them or others who may be in similar circumstances in the future.

Defendants chose a hard-line strategy of trial, giving testimony that, at least implicitly if not explicitly, charged plaintiffs with lying both before trial and on the witness stand during trial. Also, defense counsel explicitly argued to the jury that plaintiffs’ testimony was deliberately false. The jury verdict plainly rejected defendants’ testimony and argument in these respects.

The evidence offered by defendants included a police report prepared promptly after the incident and testimony at trial of different defendants, relating separately in almost identical phrasing, that Bancroft Dudley Hall, a Black, made to the police officers a statement that any factfinder would consider demeaning and insulting toward less educated, less successful, and less fortunate Blacks. The jury, observing the demeanor, manner, and speech of the parties throughout the trial, had the responsibility of determining the truth or falsehood of this testimony of defendants and the plaintiff Bancroft Dudley Hall’s denial. On this evidence, a factfinder might infer that the stark clash could not have resulted from innocent misrecollection, and that its intentional quality intensified any need the jury may have found for punishment and deterrence. Credibility was, of course, for the jury to determine. It may well be that this testimony was meant to and did have shocking impact. Throughout the nine-day trial of this case, the demeanor, of the jury was exemplary. They were attentive and punctual. The information about them obtained during voir dire examination supported the view that they were an exceptional group from the point of view of traditional measures of ability and success in their personal and occupational experience. Taking account of the characteristics of the jury as well as the details of the verdict and the evidence before the jury, I conclude that it was a considered, thoughtful verdict of a unanimous jury.

The findings of compensatory damages were supported by evidence, and the punitive awards were an expression of the conscience of the community. The verdict must stand.


author: BURCIAGA, District Judge.

text:
    Antonio E. HERRERA, Plaintiff, v. AMOCO PRODUCTION COMPANY, a Delaware corporation, and Waverly Lamb, d/b/a Wavco Oilfield Service, John Doe Manufacturing Company, an Unknown Manufacturer, and John Doe Supply Company, an Unknown Supplier, Defendants, and AMOCO PRODUCTION COMPANY, a Delaware corporation, Third-Party Plaintiff, v. AZTEC WELL SERVICING COMPANY, a New Mexico corporation, Third-Party Defendant.
    No. CV 83-1896 JB.
    United States District Court, D. New Mexico.
    Nov. 27, 1985.
    Don Wills, Briones, Pittard & Odenwald, P-.A., Farmington, N.M., for plaintiff.
    Jeffrey Twersky and R.E. Thompson, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Mark B. Thompson, III, Albuquerque, N.M., for Amoco Production Co.
    Richard L. Gerding, Tansey, Rosebrough, Roberts & Gerding, P.C., Farming-ton, N.M., for Aztec Well Servicing Co., third-party defendant.
   MEMORANDUM OPINION

BURCIAGA, District Judge.

THIS MATTER comes on for consideration of defendant and third-party plaintiff AMOCO PRODUCTION COMPANY (“Amoco”)’s Motion for Partial Summary Judgment on four issues. By agreement of both parties, the Court entered a partial summary judgment on three of the issues. The remaining issue to be decided is whether Amoco is entitled to indemnity, up to applicable insurance limits, for its own negligence, if any, plus costs of defense.

From the memoranda of the parties, it is clear that there is no genuine issue as to any material fact and that the issue may be decided as a matter of law.

On February 10, 1981, AZTEC WELL SERVICING COMPANY (“Aztec”) was performing services for Amoco pursuant to a well and lease service master contract. On that date, plaintiff, one of Aztec’s employees, was injured when a blow line separated and struck him. Herrera brought suit against Amoco who, in turn, filed a Third-Party Complaint against Aztec, claiming indemnity pursuant to the provisions of the contract. The pertinent part of the contract provides:

10. In order to eliminate controversies between Contractor, its Subcontractors, and Pan American [Amoco] and its joint owners, if any, and their respective insurers, Contractor assumes all liability for and hereby agrees to defend, indemnify and hold Pan American, its joint owner or owners, if any, and their insurers, harmless from and against any and all losses, costs, expenses, and causes of action, including attorney’s fees and court costs, for injuries to and death of Contractor’s and its Subcontractor’s employees, arising out of, incident to, or in connection with any and all operations under this contract and whether or not such losses, costs, expenses and cause of action are occasioned by or incident to or the result of the negligence of Pan American, its joint owner or owners, if any, and its agents, representatives, and employees. Contractor agrees to insure this assumption of liability. The liability assumed by Contractor pursuant to this clause shall be limited to the amounts carried by Contractor’s current liability insurance, but in no event shall it be less than the minimum limits set out in Paragraph 11(b) below.

The provisions of Paragraph 11, to which Paragraph 10 makes reference, obligate Aztec to secure comprehensive general public liability insurance with minimum limits of liability for injury or death of one person of $100,000, injuries or death arising out of one occurrence of $200,000, and property damage of $25,000 for each accident and $50,000 aggregate.

It is under these provisions that Amoco claims its right to indemnity. Aztec argues, however, that Section 56-7-2, NMSA 1978, invalidates the indemnity agreement between the parties. That statute provides, in pertinent •part:

A. Any agreement ... pertaining to any well for oil ... which purports to indemnify the indemnitee against loss or liability for damages, for:
... bodily injury to persons;
(4) ... arising from the sole or concurrent negligence of the indemnitee or the agents or employees of the indemnitee or any independent contractor who is directly responsible to the indemnitee, or from any accident which occurs in operations carried on at the direction or under the supervision of the indemnitee or an employee or representative of the indemnitee ... is against public policy and is void and unenforceable. This provision shall not affect the validity of any insurance contract____

In response, Amoco asserts that the last sentence of Section 56-7-2(A)(4) creates an exception which allows indemnity if the risk of loss is passed on to an insurer of Aztec. This reading, Amoco argues, gives validity to an indemnity contract by placing the risk of ultimate liability in the commercial insurance marketplace; that in that context, the indemnity agreement is not contrary to public policy since knowledgeable companies allocate the risk between them as part of the contract price.

In Brasher v. Mobil Oil Corporation, CV 88-1226 BB, this Court, by The Honorable Bobby Baldock, dealt with a similar claim for indemnity by Mobil Oil Corporation against Coleman Drilling Company and discussed Section 56-7-2, NMSA 1978. In considering the effect the last sentence of 56-7-1(A)(4), Judge Baldock stated:

Furthermore, the statutory prohibition against indemnification does not affect the validity of any insurance contract. 56-7-2(A)(4), NMSA 1978. Thus, in New Mexico, one may provide for indemnification through insurance.
A careful analysis of Texas law fails to indicate any conflict with New Mexico public policy. Like New Mexico’s statute, the Texas law declares indemnity provisions in oil and gas agreements, where there is negligence attributable to the indemnitee, void and unenforceable as against Texas public policy. ... Contractual indemnity is permitted, however, if covered by liability insurance and then only to the limits of the insurance. ... The same result may be achieved under New Mexico law through an insurance contract.

The Court is persuaded that Judge Baldock’s ruling is a correct interpretation of the statute. It also comports with the public policy of promoting the freedom of the right to contract between competent parties. Echoing the Supreme Court of New Mexico, “great damage is done where businesses cannot count on certainty in their legal relationship and strong reasons must support a court when it interferes in a legal relationship voluntarily assumed by the parties.” City of Artesia v. Carter, 94 N.M. 311, 610 P.2d 198 (Ct.App.1980).

In the instant case, it is clear that Amoco had the right to impose an obligation upon Aztec to secure liability insurance to protect Amoco against its negligence and that of its employees. Stated another way, Amoco had the right to purchase liability insurance protecting it against its negligence and that of its employees. Similarly, it had the right to impose that same obligation upon Aztec as part of the contract bargain. In reaching this conclusion, the Court is also of the view that this interpretation is consistent with the public policy behind Section 56-7-2 to promote safety. Moreover, it also furthers a second important public policy—that of freedom of contract. It enforces the loss distribution agreed to by both parties.

Accordingly, Amoco’s motion for partial summary judgment on this issue is granted. An appropriate order shall be entered consistent herewith.

ORDER

THIS MATTER having come before the Court for consideration of third-party defendant AZTEC WELL SERVICING COMPANY’S Motion for Interlocutory Appeal and Stay of Proceeding, and that Court being fully advised in the premises, finds that the motion is not well taken and should be denied;

THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that third-party defendant AZTEC WELL SERVICING COMPANY’S Motion for Interlocutory Appeal and Stay of Proceeding be, and it hereby is, denied.