Com. v. Santoro

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore LIACOS; WILKINS
Citation548 N.E.2d 862,406 Mass. 421
PartiesCOMMONWEALTH v. Dominic J. SANTORO, Jr.
Decision Date11 January 1990

William R. Marino, Boston, for defendant.

Michael Fabbri, Asst. Dist. Atty., for the Com.


WILKINS, Justice.

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 ("Any person who is a defendant in a criminal trial in a court of the commonwealth may move to suppress the contents of any intercepted wire ... communication or evidence derived therefrom, for the following reasons: 1. That the communications was unlawfully intercepted"). 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...

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25 cases
  • Com. v. Rivera
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 7, 2005
    ...wiretap statute. G.L. c. 272, § 99. He made no Federal claim. The judge denied the motion. Relying on Commonwealth v. Santoro, 406 Mass. 421, 548 N.E.2d 862 (1990), he concluded that suppression was not warranted because the store's surveillance audiotaping had been conducted by the store o......
  • Commonwealth v. F.W., SJC–11152.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 24, 2013
    ...of these communications, as the defendant concedes, is not mandated under the Massachusetts wiretap statute. See Commonwealth v. Santoro, 406 Mass. 421, 423, 548 N.E.2d 862 (1990). 5. A Middlesex County grand jury also returned indictments charging the defendant with two offenses against Ca......
  • Barboza v. Bissonnette, Civil. Action No. 03-10600-JLT.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • April 20, 2006
    ...of this state's criminal law and the federal and state wiretap Page 32 statutes by private parties; or, does Commonwealth v. Santoro, 406 Mass. 421, 548 N.E.2d 862 (1990), put all such conduct beyond the reach of the exclusionary 2. Did the trial court err by not suppressing the fruits of t......
  • Com. v. Rufo
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 14, 1999
    ...or the allowance of a motion to suppress seized evidence confers in rem jurisdiction on a State court. See Commonwealth v. Santoro, 406 Mass. 421, 422, 548 N.E.2d 862 (1990). In any event, the suppression motion was filed and allowed long after the Federal forfeiture proceedings 7 It is, of......
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