Com. v. Santoro
| Decision Date | 11 January 1990 |
| Parties | COMMONWEALTH v. Dominic J. SANTORO, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William R. Marino, Boston, for defendant.
Michael Fabbri, Asst. Dist. Atty., for the Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.
Convicted of being present where betting apparatus was found (G.L. c. 271, § 17 [1988 ed.] ), the defendant challenges the denial of his motion to suppress evidence seized in his home pursuant to a search warrant. He asserts that information on which the application for the search warrant was based was obtained as a result of (1) an earlier unconstitutional search of other premises and (2) illegal recordings of telephone conversations (G.L. c. 272, § 99 [1988 ed.] ). The motion to suppress was properly denied. We affirm the conviction.
The police searched the premises of one Zarba in Revere pursuant to a search warrant that was later determined in another proceeding to have been issued without probable cause. The defendant argues that information unlawfully seized at the Zarba premises could not properly be used to support a finding of probable cause to search the defendant's premises in Medford. He also claims that telephone conversations in which he participated were unlawfully recorded at the Zarba premises and should have been suppressed because he did not know of or assent to the recordings. We shall assume in the defendant's favor that, had the allegedly unlawfully obtained evidence not appeared in the affidavit in support of the warrant to search his premises, that affidavit would have failed to show probable cause. The defendant makes no argument, however, that, taken in its entirety, the affidavit failed to show probable cause.
The defendant was not present when the Revere search was conducted, and he had no interest in the premises or in the items seized in the Revere search. He lacks standing under both the Constitution of the United States and the Constitution of the Commonwealth to challenge that search because he had no reasonable expectation of privacy in the Revere premises. See Rakas v. Illinois, 439 U.S. 128, 140-150, 99 S.Ct. 421, 428-434, 58 L.Ed.2d 387 (1978); Commonwealth v. Glowacki, 398 Mass. 507, 512, 499 N.E.2d 290 (1986); Commonwealth v. Simmons, 383 Mass. 46, 53-56, 417 N.E.2d 1193 (1981). The fact that the Revere search was held to have been unlawful in proceedings against others who had standing to challenge the lawfulness of that search does not aid the defendant. 1 The suppression order in the other proceedings was not an in rem suppression of evidence.
The defendant argues that, in any event, telephone conversations between a person at the Revere premises and him were recorded at the Revere premises in violation of G.L. c. 272, § 99. Tape recordings of these conversations were seized in the Revere search. Following the issuance of a second search warrant, the police listened to and transcribed the tape recordings. The police were not involved in intercepting those conversations. On the other hand, § 99 also forbids the interception of certain oral communications by private individuals (see § 99 C 1), such as a secret recording (see § 99 B 4).
The defendant had explicit statutory standing to move to suppress the contents of the unlawfully intercepted communications. § 99P ( ). Section 99 does not, however, require the suppression of all communications intercepted in violation of its provisions. 2 The Legislature has left it to the courts to decide whether unlawfully intercepted...
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