Search and seizure – Telephone – Detainee

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Where a defendant has moved to suppress telephone conversations he engaged in while in a house of correction, the defendant has shown no constitutional violation or bad faith.

Motion denied.

“Facing indictments for assault and battery with a dangerous weapon, armed assault with intent to murder and first degree murder, the defendant, Brandon Callender, moves to suppress statements gathered by the Commonwealth, pursuant to G.L.c. 277, section68. He maintains that subpoenaing records of his telephone conversations while housed at the Suffolk and Bristol County Houses of Correction contravened G.L.c. 277, section68 and violated his privacy rights protected under the United States and Massachusetts Constitutions.

“As an independent ground for suppressing the records, Callender contests the authority of the Suffolk County and Bristol County Sheriff’s Departments to intercept, record and retain the calls. The Sheriffs claim that the regulations on detainee telephone calls serve valid penological interests, but Callender argues that those interests fail to constitute a reasonable basis for recording, monitoring and retaining records of a pretrial detainee’s private telephone conversations.

“Based on the findings of fact and rulings of law, this court is satisfied that the recording and monitoring of detainee calls served valid penological interests and did not violate Callender’s privacy rights protected under the United States and Massachusetts Constitutions. Additionally, the court finds and rules that the grand jury subpoenas failed to conform with G.L.c. 277, section68 but that the violation was not committed in bad faith and failed to amount to a violation of any constitutional right. Due to the absence of a constitutional violation or bad faith the court declines to suppress the subpoenaed material because of the statutory violation. Finally, the court determines that the subpoenas’ facial overbreadth can be remedied by discrete excisions.”

            Commonwealth v. Callender (Lawyers Weekly No. 12-047-14) (22 pages) (Kane, J.) (Bristol Superior Court) (March 4, 2014).

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