Remind me to never call Richard Rosen for services . .
Judge Tom Wills ruled Thursday that Mercurio’s expectations of privacy did not extend to the ocean floor and that the diver who found the pagers was working for Mercurio’s competitor, Chris Shake, not the police.
Mercurio is charged with one count of petty theft for allegedly tossing Shake’s seating pagers into the bay after luring in customers who were waiting on the wharf for tables in Shake’s restaurant, Old Fisherman’s Grotto.
Mercurio’s attorney, Richard Rosen, argued that Shake had the diver search beneath Domenico’s to pursue a criminal prosecution, violating Mercurio’s Fourth Amendment rights against unlawful search and seizure.
After two days of hearings on the matter, Wills said Thursday that only one of the dives — a sting operation that turned up no pager — involved the police. And he said Mercurio’s lease made it clear the city had every right to enter the water below the wharf for any reason.