Commonwealth v. Comenzo
| Decision Date | 11 January 2021 |
| Docket Number | Docket: 1782CR00150,Docket: 1482CR01050 |
| Parties | COMMONWEALTH v. RICHARD COMENZO |
| Court | Massachusetts Superior Court |
Dates: January 11, 2021
Present: Robert C. Cosgrove, Justice of the Superior Court
County: NORFOLK, ss.
Keywords: Memorandum of Decision and Order on “Defendant’s Motion to Suppress Evidence Obtained in the Warrantless Search of His Residence and [Resultant] Statements”
Norfolk County Grand Juries have indicted the defendant, Richard Comenzo, on two counts of illegal possession of child pornography and one count of distributing child pornography. The matter came before the court on the “Defendant’s Motion to Suppress Evidence Obtained in the Warrantless Search of His Residence and [Resultant] Statements.” Contrary to the title of the defendant’s motion, the search of his residence was hardly “warrantless.” Indeed, this court has previously adjudicated a motion in which the defendant had moved to suppress “any and all items seized as a result of search warrants numbered 1455-SW-111, 145-SW-83, and 1855-SW-60.” The defendant now contends, however, that crucial to the affidavit supporting probable cause to issue 145-SW-83 (Ex. 12), authorizing search of the defendant’s residence was information received by means of a prior improper warrantless search, i.e., visual recordings made by a camera surreptitiously mounted across his street on a utility pole, (hereafter referred to as a “pole camera”) and trained on the defendant’s house and areas immediately adjacent to it. See Ex. 12, 145-SW-83, issued October 6, 2014. The court held an evidentiary hearing on the defendant’s motion on February 28, 2020, and heard oral argument on the motion on March 3, 2020. Following the decision of the Supreme Judicial Court (SJC) in Commonwealth v. Mora, 485 Mass. 360 (2020), this court received supplemental memoranda from the parties. In consideration of its resultant findings of facts, and the submissions and arguments of the parties, the court now denies the defendant’s motion.
From 2012-2018 Det. Lt. Denise Doherty was assigned to the Norfolk County District Attorney’s Detective Unit, specifically tasked to investigate crimes against children. Her duties and expertise included forensically examining electronic devices, in furtherance of which she was certified in various software extraction programs.
In May and June of 2013, Doherty began investigating a report received from the National Center for Missing and Exploited Children (NCMEC) that its cyber tip line had received reports concerning images posted on a Tumblr blog “bostonslavedad3.” Tumblr is an internet social networking service. Doherty examined thirteen images from the bostonslavedad3 blog which NCMEC had supplied, and concluded that two of them constituted child pornography under Massachusetts law. Doherty had been given an internet protocol address associated with the blog, which traced back to Verizon. Via administrative subpoena, she learned that the subscriber was the defendant, Richard Comenzo, with an associated address of 15 Walnut Avenue, Stoughton. Doherty checked Comenzo’s driver’s license and car registration records at the Registry of Motor Vehicles (RMV), and found that both were associated with a different address, 719 Washington Street in Stoughton. This was a business address; his RMV residential address was left blank. Doherty also ran a Lexis/Nexis search relative to the defendant. She was or became aware that Comenzo is an attorney, and also the president of a company. She learned that years ago, Comenzo had maintained a law office at 15 Walnut Avenue, but its telephone number was listed by Verizon as defunct.
Doherty and associated troopers initiated a conventional surveillance of 15 Walnut Avenue, sometimes on foot, sometimes in a vehicle. She observed the property on about six occasions between August and September, 2014. In addition, Trooper Sean Quirk went to the property on about three occasions, sometimes accompanied by another trooper.
Doherty observed that the building at 15 Walnut Avenue is a multi-family dwelling with three levels, located in a mixed residential and commercial neighborhood next to Arch Orthodontics at 5 Walnut Avenue. The front of the building faces a park. As Doherty looked at the building from across Walnut Avenue, she had an unobstructed view and could see that the building had an open, paved parking lot to the left side; to the right was a front lawn, simply grass. There is a front porch. Later, pursuant to a warrant, Doherty entered the building on October 7, 2014, and observed that after walking up the front porch and entering through the front door, one enters a foyer. At the top of its stairs is the front door to the defendant’s apartment.
Walnut Avenue forms one leg of a triangle with two intersecting streets, Walnut Street, and Park Street, which is also Rt. 27. The Stoughton Public Library sits on Park Street within distant view of 15 Walnut Avenue, adjacent to the park.
During her conventional surveillance of 15 Walnut Avenue, Doherty observed the front door of the building, and saw the defendant coming and going in his car, and entering and leaving the building. She took note of lights going on and off in various sections of the building, and the relationship between the operation of the lights and the defendant’s arrival and departure, and that of one of his apparent guests.
There were mailboxes in front of the building, but the U.S. post office did not deliver any mail to the defendant there. The defendant’s name was not on any mailbox. Apartment 2’s mailbox had the name “J. Parento,” and Apt. 3’s, “Hill/Cohen.” There were eight utility meters in the driveway. On August 12, 2014, Sgt. Keith Pantazelous accompanied by Sean Quirk, went to 15 Walnut Avenue. They spoke to a resident in the building, John Finney, who admitted them to a common area in the rear of the building and said there were five apartments in the back of the building, three in the front.
On September 18, 2014, Doherty requested the installation of a pole camera to surveil 15 Walnut Avenue; typically, such a request goes through the District Attorney’s office. Doherty asked for the pole camera in part because surveillance otherwise had to be conducted in a very open area, thereby risking detection by the target. On September 19, 2014, the Special Services Unit of the State Police installed the pole camera, a video camera that does not record sound, on a utility pole across the street from 15 Walnut Avenue. On January 9, 2020, Pat Mason, a private detective retained by the defendant, visited 15 Walnut Avenue and took measurements. The distance from its front door to the pole camera utility pole is eighty-two feet, five inches. From the left side of the building to the utility pole is ninety-four feet, four inches.
A problem developed with the pole camera; it was not functioning between 6:07 p.m. September 26, 2014 and September 30, 2014 at 4:48 p.m., at which time, having been serviced, it resumed function.
On October 6, 2014, a justice of this court (Dennis J. Curran, J.) issued a search warrant, 145-SW-83 (Ex. 12). Lt. Doherty’s affidavit in support of the search warrant application incorporated photographs of the defendant’s residence, but none of them were taken with the pole camera, and the affidavit, in fact, made no mention of the pole camera surveillance.
On October 7, 2014, the defendant’s residence at 15 Walnut Avenue was searched pursuant to that warrant and the defendant was arrested and questioned by Lt. Doherty in a recorded interview. Among many other things, the warrant authorized seizure of any keys on the defendant’s person “that provide access to rooms, spaces or containers at 15 Walnut Avenue.” The defendant had such a key or keys when the warranted was executed and he was arrested.
The pole camera continued to function through October 9 and October 10.1 Those additional two days were not the product of any investigative purpose; rather, they were the result of how long it took the Special Services unit to find the time to take down the camera.
Once affixed, a pole camera enables the police to monitor a specific location. One can monitor the camera feed remotely in real time. The camera can and does record, with the recording ultimately to be downloaded to a server, in this case, located in the Norfolk District Attorney’s office in Canton. During live viewing, a monitor--in this case it was Sean Quirk--can cause the camera to zoom in or zoom out. He can also rotate the camera up to about 45 degrees, left, right, up, and down. Otherwise, the camera does not move; it cannot, for example, follow a car or vehicle down the street (and capture it on video) once it moves beyond the camera’s fixed range. What is recorded is what the camera “sees” in real time; consequently, one replaying the recording is limited to that view and cannot pan, zoom, or rotate to change the view. The camera has no special capabilities of a “sense enhancing” nature; for example, it has no infrared or “night vision” function. The evidence before the court did not include the model or manufacturer of the camera, and neither does the court have evidence as to the camera’s particular lens.
The placement of the camera on the utility pole across the street from 15 Walnut Avenue allowed a clear view of the left side of the residence, including its front door. During daylight hours, or when there was sufficient illumination, the camera captured people approaching, entering, and exiting the front door with sufficient clarity to identify them and discern what they were wearing, what they might be holding in their hands, or doing. (Exhibits 9-10; 13-35, 40-48; compare ex. 68-72). The camera also had a clear view of the driveway on the left side of the house. Its view could enable an officer to identify vehicles parked in the driveway, see residents and guests entering and leaving, and observe what they might...
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