Commonwealth v. Raboin

24 Mass. L. Rptr. 278
CourtMassachusetts Superior Court
DecidedJune 20, 2008
DocketNo. 0601180
StatusPublished
Cited by1 cases

This text of 24 Mass. L. Rptr. 278 (Commonwealth v. Raboin) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Raboin, 24 Mass. L. Rptr. 278 (Mass. Ct. App. 2008).

Opinion

Lowy, David A., J.

The defendant, James Raboin (Raboin), is charged with five counts of rape of a child, three counts of indecent assault and battery on a child under fourteen, six counts of posing or exhibiting a child in a state of nudity, and one count of administering a drug in order to have sexual intercourse. He now moves to suppress DVD and mini-cassette evidence that a private individual turned over to the Lawrence Police Department and which the police viewed in their entirety without a warrant. After hearing, and based on the findings of fact and conclusions of law discussed below, the defendant’s motion to suppress is DENIED.

FINDINGS OF FACT

In the afternoon of April 24, 2006, three minors broke into the defendant’s apartment. The minors discovered a tan or white-colored lockbox. They placed it in a bookbag and brought it home with them. The lockbox contained jeweliy, scratch tickets, and DVDs. The two minor boys began putting the DVDs into the DVD player to watch them. The minor girl intermittently watched a total of two to three minutes of at least one DVD. During her brief viewing, the minor girl observed another minor girl (her close friend) engaging in oral sex with the defendant, yet another minor girl sleeping, and herself modeling.

On that same date, Lawrence Police Officer William Green was called to the defendant’s apartment in a three-stoiy multi-unit building based on a report of a past breaking and entering. At that time, the defendant reported to him that a laptop computer, projector, video camera, and a lockbox containing videos, personal papers, photographs, and $400 had been stolen.

Sometime after April 24th, Rosa Cintron (Cintron), the mother of one of the minor children, gave Jose Rosario (Rosario) a plastic bag containing a number of DVDs and mini-cassettes. Cintron asked Rosario to view them and see if her daughters were on any of the DVDs. Rosario went home and began viewing the DVDs on a standard DVD player. He testified that he watched three or four of the DVDs “(b)ecause the other ones had ... the same name printed on them.” Rosario did not watch the DVDs in their entirety from start to finish. Instead, he would watch ten, fifteen, or thirty seconds, but no more than one minute at a time, then skip forward, then watch more. On all the DVDs he watched, Rosario observed the same adult male (later identified as the defendant) engaging in sexual activities in various scenes with two different minor girls. He did not see Cintron’s daughters. Rosario testified that he watched the DVDs for a total of fifteen minutes. He then immediately went to the Lawrence Police Department.

When Rosario arrived at the police department, he asked to speak with a detective and stated he had “something they need(ed) to see.” The front desk dispatcher called Detective Gene Hatem (Detective Hatem), who escorted Rosario to his office. Rosario handed him one of the DVDs he had previously seen. He directed Detective Hatem to “play this DVD” and told him he was “going to see a girl that’s underage being molested.” Rosario explained to Detective Hatem the sequence of events that led to him having the DVDs in his possession. When the detective put the DVD into the player, Rosario told him “keep fast-forwarding till you’re going to see something.” Rosario viewed three to five minutes of that one DVD with the detective.

After viewing a portion of the DVD with Rosario, Detective Hatem retained all the DVDs and mini-cassettes as evidence. Rosario brought a total of ten DVDs and thirteen mini-cassettes to the Lawrence Police Department. The DVDs were all gold, Maxell brand DVD-Rs in clear plastic cases. Each had a title written directly on the DVD surface in black marker:

DVD Number One: “My Shit 3"
DVD Number Two: “My Shit 2"
DVD Number Three: “Thumb 1"
DVD Number Four: “FEL-01 04/05"
DVD Number Five: “My Porn Pics”
DVD Number Six: “My Porn Pics”
DVD Number Seven: “My Shit 3"
DVD Number Eight: “FEL-01 04/05"
DVD Number Nine: “FEL-02 04/05"
DVD Number Ten: “FEL-02 04/05"

Thus, there were six different DVD titles. DVD Number Three is set up as movie. The opening screen displays the title: “Thumb Sucker.” It is credited to “Two Lips Productions” and “Johnnie Long.” It then states “Introducing Felicia Taylor in Thumb Sucker.”

Detective Hatem then contacted Lieutenant Mary Bartlett, who handles sexual assault cases. When Lieutenant Bartlett arrived, Detective Hatem showed her the same DVD he had viewed with Rosario. Rosario remained at the station while Lieutenant Bartlett viewed the DVD.

Later that week, Lieutenant Bartlett and another officer viewed all the DVDs and then the mini-cassettes. Lieutenant Bartlett would look at the titles before viewing each DVD. The mini-cassettes contained the same video as on the DVDs, but also included audio. The audio includes one of the minor girls and Raboin talking. In Mini-Cassette Number One, the minor girl indicates that she has just shut off a computer webcam so that a third party will not complain again. Raboin also asks her to put on sunglasses so “they” cannot tell who she is. An inference can thus be drawn from Mini-Cassette Number One’s [280]*280audio that Raboin was broadcasting the scenes over the internet.

RULINGS OF LAW

The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Similarly, under Article 14 of the Massachusetts Declaration of Rights, every person “has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” Mass. Const. Part I, art. XTV. Under the exclusionary rule, “all evidence obtained by searches and seizures in violation of the Constitution is . .. inadmissible in a state court.” Mapp v. Ohio, 367 U.S. 643, 655 (1961).

A. Expectation of Privacy

A necessary prerequisite to the application of the exclusionary rule is that the defendant must establish that “a search in the constitutional sense has occurred.” Commonwealth v. Nattoo, 70 MassApp.Ct. 625, 630 (2007) (citing Commonwealth v. D’Onofrio, 396 Mass. 711, 714 (1986)). Such a search requires that the defendant manifest a subjective expectation of privacy in the item(s) searched and that the defendant’s expectation of privacy be one that society is willing to recognize as reasonable. See id.; see also Minnesota v. Carter, 525 U.S. 83, 88 (1998); Commonwealth v. Bly, 448 Mass. 473, 490-91 (2007) (rejecting defendant’s claim that he had a subjective expectation of privacy in his cigarette butts and water bottle when he took no action to manifest any expectation of privacy in them).

Here, Raboin contends that he had a subjective expectation of privacy in the DVDs and mini-cassettes. He manifested his subjective expectation by storing the DVDs and mini-cassettes in a lockbox with other valuables. Cf. Bly, 448 Mass.

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Bluebook (online)
24 Mass. L. Rptr. 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-raboin-masssuperct-2008.