Summary
The Massachusetts Supreme Judicial Court considered whether evidence derived from a private citizen’s intentional interception of a cellular and cordless telephone conversation had to be suppressed under Title III of the Omnibus Crime Control and Safe Streets Act. The court held that Title III’s exclusionary rule applies even when the government did not participate in the interception, requiring suppression of the conversation and marijuana seized during the ensuing arrest. It nevertheless held that statements made after Miranda waivers and evidence obtained through Damiano’s voluntary consent to a home search were sufficiently attenuated from the illegal interception and admissible.
Topics
Practice areas
Questions Presented
- Whether a telephone conversation transmitted over cellular and cordless telephones was a wire or oral communication protected by Title III and subject to Title III's exclusionary rule.
- Whether Title III's exclusionary rule applies when the unlawful interception was conducted by a private citizen rather than the government.
- Whether the Title III law-enforcement provisions create an exception permitting the Commonwealth to use the intercepted conversation in a criminal prosecution.
- Whether marijuana seized during Damiano's arrest was evidence derived from the unlawful interception and therefore subject to suppression.
- Whether Damiano's voluntary post-Miranda statements and consent to search his home were sufficiently attenuated from the unlawful interception to be admissible.
- Whether the Commonwealth's interlocutory appeal was procedurally defective because it sought reconsideration of the interlocutory suppression order before filing its notice of appeal.
Holdings
- Title III's exclusionary provision applies to conversations intercepted over both cellular and cordless telephones; the intercepted conversation was a protected wire or oral communication rather than an unprotected electronic communication.
- Government involvement in the unlawful interception is not required to trigger Title III's exclusionary rule; the government may not introduce an unlawfully intercepted wire or oral communication merely because it was an innocent recipient.
- The court declined to apply the investigative or law-enforcement provisions of § 2517 because the record did not support the Commonwealth's assertion that police went to the restaurant merely to corroborate the reported contents of the call.
- The marijuana seized from Damiano's pocket during his arrest was derived from the unlawful interception and had to be suppressed.
- Damiano's post-Miranda statements and consent to search his home were sufficiently attenuated from the unlawful private interception and therefore were not subject to suppression; evidence obtained through the consented-to search was likewise admissible.
- The Commonwealth's interlocutory appeal was not procedurally defective; a motion judge may reconsider a nondispositive interlocutory order within a reasonable time during the pendency of the case.
Key quotations
“The plain language of § 2515 mandates the suppression of any intercepted wire or oral communication and any “evidence derived” from that communication “if the disclosure of that information would be in violation of” Title III.” (450)
“In this sense, the arrest was dependent on the underlying interception, and the marijuana seized from Damiano in its course was equally “intimate” to, and dependent on, that underlying illegality.” (455)
“As such, the evidence would have been obtained by means sufficiently distinguishable from that illegality to purge it of the primary taint.” (458)
Factual background
A private citizen intentionally listened to a telephone conversation between Damiano and Peter Morrison on a police scanner and inferred that the men were arranging a drug transaction. Police received the information, observed Damiano approach Morrison's vehicle and engage in an apparent exchange, stopped the vehicle, and found marijuana in Damiano's pocket. At the police station, after Miranda warnings and a written waiver, Damiano disclosed that marijuana was in his home and consented to a search; police then found cocaine behind a locked door.
Procedural history
A Superior Court motion judge suppressed the intercepted conversation, marijuana seized from Damiano during his arrest, cocaine seized from his home, and statements made at the police station, concluding that the evidence was fruit of an unlawful interception under Title III. The Commonwealth moved for reconsideration, which was denied, then filed a notice of appeal and sought interlocutory review. The Supreme Judicial Court affirmed suppression of the conversation and the marijuana but reversed suppression of the home-search evidence and station-house statements, remanding for further proceedings.
Remand instructions
The case was remanded to the Superior Court for further proceedings consistent with the opinion; the intercepted conversation and marijuana remained suppressed, while the home-search evidence and post-Miranda station-house statements were not to be suppressed.