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SJC-12571.
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Commonwealth v. Brandyn S LePage.
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Okay, Attorney Wood.
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Thank you very much and thank you to the clerk
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for accommodating us and letting us go first.
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My name is Chauncey Wood.
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I represent the appellant, Brandyn LePage.
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I want to begin by moving straight
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to the central factual dispute here,
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what I think is going to be most important to the court.
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Whether Fall River Police Officer Steve Washington
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lied or acted in bad faith to T-Mobile
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in the exigent circumstances request form
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he'd submitted to obtain Mr. LePage's cell phone records.
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On October 1st, 2012, at about 3:00 PM Detective Washington
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sent an exigent circumstances request form
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to T-Mobile requesting Mr. LePage's call detail records,
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or CDRs.
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That was more than 48 hours after the killing at issue here,
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which occurred on September 29th, 2012 at about 1:20.
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The T-Mobile exigent circumstance request form defines
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exigent circumstances as
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"immediate danger of death or serious physical injury
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"to any person."
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Wood, can you distinguish between legal sufficiency
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for that exigency,
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which we can talk about with reference
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to our prior case law.
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Chamberlain, I think is the case,
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versus what Judge Dupree found
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on credibility issues where you say she's clearly erroneous.
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'Cause I think they're two distinct parts of your argument,
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so if you could address how she was wrong first,
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and then we can talk about legal sufficiency after that.
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Yes. So I think,
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I agree with that, and I think that I am trying to go
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right to the factual issue of whether there were,
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and I'm trying,
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I think we're on the same page here.
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The first issue, the fact, the sufficiency issue.
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Right.
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I believe she was clearly erroneous.
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Well, it was,
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I think there's a subsidiary question, though.
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I think, and I'm not trying to dodge,
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I think it's in order to determine
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whether her finding was clearly erroneous,
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whether there were exigent circumstances,
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we need to determine, I think, first whether
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we agree that Detective Washington's statements
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were false, intentional, or in reckless bad faith.
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And so I think that's the crucial foundational question,
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and that's what I'm addressing,
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if that is acceptable.
Please.
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Okay. So he wrote on the form quote,
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"Homicide investigation and number,"
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parentheses, "phone," parentheses,
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"was last contacted during murder,
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"unknown where owner is or if owner is alive or deceased."
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So first I note that this assertion included
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several false statements that were either intentional
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or reckless amounting to bad faith.
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And so first, I'll focus on two of them.
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Washington asserts that the victim was on the phone
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with the subscriber at the time of her death,
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quote, "last contacted during murder."
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Sorry, does he say that?
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He says, so I'll-
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Use his words and-
Yep.
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rather than reformulate them.
Yep.
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I will. "Homicide investigation,"
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I'm quoting now,
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"Homicide investigation and number phone
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"was last contacted during murder."
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So that's last contacted during murder.
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I submit that the only reasonable interpretation
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of what he's getting at there is
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that he was on the phone with the victim
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at the time of her death.
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Last contacted-
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Well, that's was last contacted during the murder.
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So she's murdered at 1:23 or something like that.
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About that, about that.
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And the phone is last used at 1:10.
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Yes. But her last call to Mr. LePage
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is 10 minutes before that.
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But again, yes. Yeah.
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So the phone is no longer used after the murder, right?
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Yeah.
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So the last time the phone's used
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is a couple of minutes before the murder,
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so is that really an inaccurate factual statement?
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I think, well-
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It could be more precise,
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but to accuse him of, you know, lying is,
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you know, that's significant.
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So I just want you to be careful.
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Go ahead.
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So, I think that it's at least reckless and in bad faith.
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And again, the context here is
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the demonstrating exigency to get
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somebody else's private phone records.
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And he's saying, "Last used during murder."
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It's our position-
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But that is, let's just,
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let's push that again.
Sure.
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So the the other-
Please.
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Oh, sorry.
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Not using the phone as the murder weapon.
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Right.
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So last used during the murder
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is a sort of, you know, incomplete
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but not particularly descriptive,
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but to find it a lie, I don't know.
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It just, you just seem like you're pushing it way over.
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You're going what he's doing.
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You're overstating what he's saying.
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Well, I respectfully disagree,
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but let me move on to the next point.
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And I take your point,
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and I will come back to it,
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but that it's at best an exaggerate,
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it might be entitled a slightly careless
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or incautious exaggeration.
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Like what you're doing.
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Overstating it. Go ahead.
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I mean, I'm quoting the language,
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to be perfectly candid as an officer of the court,
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I'm quoting the language, "Last used during murder."
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I was an English major.
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"During" has a specific meaning.
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And I submit that during means at the time of the murder,
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not 20 minutes before the murder,
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so with all due respect, I think I'm not overstating,
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but I understand your point, and I'll come back to it.
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So secondly, Detective Washington claimed
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that he didn't know whether LePage was alive.
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I'll quote the language.
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"Unknown where owner is or if owner is alive or deceased."
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Now, that was just not true.
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We know that he knows LePage is alive?
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How do we know he knows?
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'Cause he got the decedent's phone records.
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He found this phone number,
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which was Mr. LePage's.
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He called it three times,
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and each time the person ans,
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who, the owner, answered the phone,
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Brandyn said, "I'm Brandyn Jackson,"
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and he says, "Can you come in and talk to us?"
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"No, I'm in New Bedford with my mother."
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So at least with regard to that last statement,
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arguably you could say you didn't know where LePage was,
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because he had misidentified himself as Jackson, right?
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Well, so yes, I think that's right.
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You don't know a hundred percent it's Brandyn LePage,
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because he's saying Brandyn Jackson,
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and he says, "I'm in New Bedford,"
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but you don't know for sure that he's telling the truth,
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that he's really in New Bedford.
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So it's fair to say,
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I think it's fair to say we don't know where he is.
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Right.
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But I think it's less fair to say
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that you don't know that it's,
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that he, that the owner of the phone is alive.
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Isn't it more like whether there's an exigency
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where there's a murder,
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this is the last contact, right?
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Before the murder,
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and there's a killer on the roam, essentially.
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That's, I think, what it boils down to.
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Well, so the the next thing that I,
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that's correct.
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It's the immediacy.
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I, well, I think I agree mostly.
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It's the immediacy,
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so what I'm trying to get to is
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the most important thing here is actually an omission
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in this claim.
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What he doesn't say is that the killing
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occurred more than 48 hours earlier on September 29th
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at about 1:20 PM,
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so what I'm saying, I agree with you-
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Isn't there still an exigency
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where there's someone that's killing drug dealers out there?
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So, the answer I submit-
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And I know Chamberlain had some issue,
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or maybe it's Chamberlain, you'll correct me,
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but had some issue about the,
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whether there's a sawed off shotgun,
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which to me is neither here nor there.
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It's still...
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So the quest-
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Sorry, I'm sorry.
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No, please answer that.
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So Almonor I think is the most relevant case.
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And so I think that Almonor quite explicitly addresses
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the relevance of temporal proximity.
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And so I would quote the relevant language in Almonor.
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It says, the court considered there whether quote,
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"The circumstances that led to the shooting had dissipated."
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Okay? That's from Almonor,
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this court's decision in Almonor.
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I think that Your Honor is absolutely right,
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that the essence of exigency is the immediacy,
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is an immediate threat to the public safety.
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And I take your point,
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that what we have,
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what are you talking about?
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Not a threat?
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You got a guy who's just killed somebody,
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and he's on the loose.
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A killer on the loose.
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That's what we all get, right?
Right.
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The problem is that's not what the case law says.
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The case law says that it's the immediacy of the threat.
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And more than that, Almonor focuses on other factors.
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Why, is this person just a crazed killer
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out killing anybody?
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Or is there a reason for this particular killing
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that the police know?
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And in this case, the police did know that this was a,
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almost certainly, a drug related killing,
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because it was known that the decedent was a drug dealer.
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It was known that her pockets had been turned out.
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It was known that she had crack cocaine on her,
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so, and she was in her own car,
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killed from the right hand side.
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So somebody in the car,
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which supports an inference that
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there was a drug deal gone bad.
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So the police knew all of that.
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And so my position is that both the lack
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of temporal proximity and the fact that the police knew
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that this was a specific killing for a,
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they knew the motive and the reason for this killing,
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that there was a dispute between dealer and seller,
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and therefore this killer on the loose
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was not likely to go kill any random person,
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but rather had a specific dispute.
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At least that's our position.
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So our position is that for two reasons at least,
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this fails to establish exigency.
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And then in light of that important omission.
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And, so again,
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the exigent circumstance request form
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did not include any of that.
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The circumstances of the killing.
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And, correct me if I'm wrong,
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so Judge Dupree's findings more had to do with
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whether or not this was a really a CSLI ping issue,
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that which is a separate issue than your exigency issue.
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Right. So to get to your,
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to answer your question,
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what did Judge Dupree find that had to do with this,
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right?
Right.
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She found that Detective Washington wasn't lying,
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or wasn't acting in bad faith, to Justice Kafker's point.
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Okay, well, what's that based on?
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That, I mean, so first of all, well,
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he wasn't lying.
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Match the most, the easiest way to answer that is,
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sorry, go ahead.
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But to your point though,
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00:10:33.450 --> 00:10:35.403
we have to look to see what he,
267
00:10:35.403 --> 00:10:39.810
even if we find that there's no omission,
268
00:10:39.810 --> 00:10:42.270
we need to find the legal sufficiency
269
00:10:42.270 --> 00:10:44.730
of that representation,
270
00:10:44.730 --> 00:10:47.850
whether it matches our exigency case law, essentially.
271
00:10:47.850 --> 00:10:49.620
Yes. I agree with that.
272
00:10:49.620 --> 00:10:51.510
So just, but just to finish the point
273
00:10:51.510 --> 00:10:52.793
and then move on to that,
274
00:10:52.793 --> 00:10:55.680
she is looking, the evidence she has in front of her
275
00:10:55.680 --> 00:10:57.300
that he wasn't lying or acting in bad faith
276
00:10:57.300 --> 00:10:58.740
is from the evidentiary hearing
277
00:10:58.740 --> 00:10:59.970
on our new trial motion,
278
00:10:59.970 --> 00:11:02.707
and we very clearly lay out that all he said there was,
279
00:11:02.707 --> 00:11:03.540
"I don't remember.
280
00:11:03.540 --> 00:11:04.620
"I don't remember what I said."
281
00:11:04.620 --> 00:11:06.517
Here's, I showed him the document.
282
00:11:06.517 --> 00:11:07.567
"What did you mean?"
283
00:11:07.567 --> 00:11:08.467
"I don't know what I meant."
284
00:11:08.467 --> 00:11:09.307
"You really don't know?"
285
00:11:09.307 --> 00:11:10.290
"I can't remember."
286
00:11:10.290 --> 00:11:12.990
So my point very simply is she could not
287
00:11:12.990 --> 00:11:15.990
make a finding that he wasn't lying or acting in bad faith
288
00:11:15.990 --> 00:11:17.400
based on that testimony,
289
00:11:17.400 --> 00:11:18.510
because he didn't remember.
290
00:11:18.510 --> 00:11:22.110
So all we have is the undisputed factual record,
291
00:11:22.110 --> 00:11:24.060
what he wrote and what he didn't write,
292
00:11:24.060 --> 00:11:25.890
on that exigent circumstance request form.
293
00:11:25.890 --> 00:11:26.970
So that's the facts.
294
00:11:26.970 --> 00:11:29.010
So moving to the law,
295
00:11:29.010 --> 00:11:30.720
what I think your next question,
296
00:11:30.720 --> 00:11:31.860
so I think-
297
00:11:31.860 --> 00:11:33.780
Can I get one last point on that?
298
00:11:33.780 --> 00:11:34.613
Yes.
299
00:11:34.613 --> 00:11:36.933
So Augustine hasn't been decided at this point, right?
300
00:11:38.038 --> 00:11:38.940
So
Yes.
301
00:11:38.940 --> 00:11:41.250
you don't, you know, it's,
302
00:11:41.250 --> 00:11:44.310
we're sort of in an earlier world
303
00:11:44.310 --> 00:11:47.700
where you just kind of file these things and you get,
304
00:11:47.700 --> 00:11:48.870
you know, it's just,
305
00:11:48.870 --> 00:11:52.380
it's not clear that he's getting around, you know,
306
00:11:52.380 --> 00:11:53.850
an Augustine problem, right?
307
00:11:53.850 --> 00:11:54.683
He doesn't have,
308
00:11:54.683 --> 00:11:55.620
I think the judge says she,
309
00:11:55.620 --> 00:11:58.530
he doesn't have an incentive to sort of lie, right?
310
00:11:58.530 --> 00:12:01.440
I think that's absolutely fair point.
311
00:12:01.440 --> 00:12:04.110
The question you're getting at is why would he lie?
312
00:12:04.110 --> 00:12:06.390
I mean, he could have said, honestly,
313
00:12:06.390 --> 00:12:09.191
like, "I just want these records,"
314
00:12:09.191 --> 00:12:10.653
and well,
315
00:12:12.690 --> 00:12:14.457
what I'm getting at, what I'm suggesting is
316
00:12:14.457 --> 00:12:16.725
I don't have an answer.
317
00:12:16.725 --> 00:12:18.848
Well, candidly, I don't have an answer to that question.
318
00:12:18.848 --> 00:12:20.748
By the way, it's before Almonor too, right?
319
00:12:20.748 --> 00:12:22.162
Yes. So, yes.
320
00:12:22.162 --> 00:12:23.580
So I don't have an answer to the question
321
00:12:23.580 --> 00:12:27.600
why did he, if he, why would he need to lie?
322
00:12:27.600 --> 00:12:29.400
If, you know, you're disputing whether he lied
323
00:12:29.400 --> 00:12:30.233
or acted in bad faith,
324
00:12:30.233 --> 00:12:33.300
but the motive question, why did he need to?
325
00:12:33.300 --> 00:12:35.790
I mean, for one thing, the form said
326
00:12:35.790 --> 00:12:38.100
you need to demonstrate exigent circumstances.
327
00:12:38.100 --> 00:12:40.530
So regardless if he felt he needed them,
328
00:12:40.530 --> 00:12:42.450
but then why did he after the fact,
329
00:12:42.450 --> 00:12:43.860
you know, try to cover that up?
330
00:12:43.860 --> 00:12:44.940
I don't have an answer for that,
331
00:12:44.940 --> 00:12:47.640
except that my best guess but is that
332
00:12:47.640 --> 00:12:49.380
the police didn't want to disclose
333
00:12:49.380 --> 00:12:50.910
their investigative techniques.
334
00:12:50.910 --> 00:12:52.530
But in any event, it doesn't matter.
335
00:12:52.530 --> 00:12:54.090
Where does the law lead us?
336
00:12:54.090 --> 00:12:56.850
Assuming we agree with you, where does the law lead us
337
00:12:56.850 --> 00:12:58.740
when we're dealing with call logs?
338
00:12:58.740 --> 00:13:00.180
And I know the Vinnie case,
339
00:13:00.180 --> 00:13:01.110
this is really just
340
00:13:01.110 --> 00:13:05.070
a D order administrative subpoena in that era,
341
00:13:05.070 --> 00:13:07.110
where you really didn't have to show exigency.
342
00:13:07.110 --> 00:13:08.603
You just said, "Hey, I'm a police officer.
343
00:13:08.603 --> 00:13:10.860
"This is a D order,"
Right, so-
344
00:13:10.860 --> 00:13:13.080
"Give me just the call logs,"
345
00:13:13.080 --> 00:13:15.903
which aren't really protected as Augustine's,
346
00:13:18.107 --> 00:13:19.560
Gants concurrence says, and a lot of cases say.
347
00:13:19.560 --> 00:13:20.393
Right.
348
00:13:20.393 --> 00:13:21.660
So where are we with call logs?
349
00:13:21.660 --> 00:13:23.790
Yes. So I think that the,
350
00:13:23.790 --> 00:13:25.080
it's a new concept.
351
00:13:25.080 --> 00:13:27.807
I'm asking the court to make new law, to be clear,
352
00:13:27.807 --> 00:13:31.050
and I lay this out most clearly in my reply brief
353
00:13:31.050 --> 00:13:32.070
at page 11.
354
00:13:32.070 --> 00:13:33.570
And I cite the case law.
355
00:13:33.570 --> 00:13:36.450
The concept which this court hasn't yet recognized
356
00:13:36.450 --> 00:13:39.720
is a reasonable expectation of privacy by law.
357
00:13:39.720 --> 00:13:40.560
And it's actually-
358
00:13:40.560 --> 00:13:44.790
But we've said differently with respect to call logs.
359
00:13:44.790 --> 00:13:46.560
So you, here's my,
360
00:13:46.560 --> 00:13:48.870
that's the Gumskowski case,
Right.
361
00:13:48.870 --> 00:13:50.490
and in the, that's in the gum,
362
00:13:50.490 --> 00:13:52.170
and I addressed that case.
363
00:13:52.170 --> 00:13:56.280
I distinguish it at pages 11 and 12 of my reply brief.
364
00:13:56.280 --> 00:14:00.390
And specifically the SJC clearly did not address
365
00:14:00.390 --> 00:14:01.757
the question here in Gumskowski,
366
00:14:01.757 --> 00:14:04.200
and Gumskowski, like this case,
367
00:14:04.200 --> 00:14:07.200
there was a exact same request under the SCA
368
00:14:07.200 --> 00:14:10.290
for SCLI call detail records,
369
00:14:10.290 --> 00:14:14.261
which include CSLI and call logs.
370
00:14:14.261 --> 00:14:18.540
They alleged exigent circumstances,
371
00:14:18.540 --> 00:14:19.920
all of it was produced.
372
00:14:19.920 --> 00:14:23.010
The defendant crucially did not allege
373
00:14:23.010 --> 00:14:26.640
that the representation by the police was false,
374
00:14:26.640 --> 00:14:28.770
that there was a false claim of exigent circumstances.
375
00:14:28.770 --> 00:14:31.050
He made a different argument that the call logs
376
00:14:31.050 --> 00:14:33.330
were fruit of the CSLI.
377
00:14:33.330 --> 00:14:34.550
And the court said, "No, no, no, no, no.
378
00:14:34.550 --> 00:14:37.357
"Those are, the call logs are not fruit of the CSLI.
379
00:14:37.357 --> 00:14:38.400
"They're separate,"
380
00:14:38.400 --> 00:14:39.971
and so there was no dispute that
381
00:14:39.971 --> 00:14:43.500
if the court rejected that, Gumskowski loses.
382
00:14:43.500 --> 00:14:46.118
There was no question of what do you do?
383
00:14:46.118 --> 00:14:49.050
What's the significance of a police lie?
384
00:14:49.050 --> 00:14:50.670
There was no allegation of a police lie.
385
00:14:50.670 --> 00:14:52.170
It's a statutory violation,
386
00:14:52.170 --> 00:14:53.550
like Vinnie.
Right.
387
00:14:53.550 --> 00:14:55.500
Yes, that's right. That's right.
388
00:14:55.500 --> 00:14:56.910
And so what I submit,
389
00:14:56.910 --> 00:14:58.530
and this is new, relatively new law.
390
00:14:58.530 --> 00:15:00.150
If we agree with you, it's a statutory Vinnie.
391
00:15:00.150 --> 00:15:01.322
That's right.
392
00:15:01.322 --> 00:15:02.155
It's a federal statutory.
393
00:15:02.155 --> 00:15:03.660
I'm relying on the federal statutory violation.
394
00:15:03.660 --> 00:15:07.080
In a nutshell, the concept of reason, sorry,
395
00:15:07.080 --> 00:15:10.980
of reasonable expectation of privacy by law
396
00:15:10.980 --> 00:15:14.460
is that that statutory violation creates,
397
00:15:14.460 --> 00:15:19.200
or that statutory requirement of exigent circumstances,
398
00:15:19.200 --> 00:15:21.240
which is what the SCA requires,
399
00:15:21.240 --> 00:15:23.970
creates in turn a reasonable expectation
400
00:15:23.970 --> 00:15:26.220
of privacy in your call logs,
401
00:15:26.220 --> 00:15:27.570
something that previously has not
402
00:15:27.570 --> 00:15:28.860
been recognized by this court.
403
00:15:28.860 --> 00:15:30.687
But our case law,
404
00:15:30.687 --> 00:15:33.540
and I'm just remembering the Gants concurrence
405
00:15:33.540 --> 00:15:34.897
in Augustine, which basically says,
406
00:15:34.897 --> 00:15:36.307
"Come on, call logs?
407
00:15:36.307 --> 00:15:38.550
"That's something that's given all the time."
408
00:15:38.550 --> 00:15:40.980
I mean, we're not a third party doctrine,
409
00:15:40.980 --> 00:15:42.450
but maybe we are, right?
410
00:15:42.450 --> 00:15:44.070
As far as call logs go,
411
00:15:44.070 --> 00:15:45.510
because there's no,
412
00:15:45.510 --> 00:15:47.007
everyone knows when they pick up the phone
413
00:15:47.007 --> 00:15:48.903
and they dial a bunch of digits,
414
00:15:50.220 --> 00:15:52.290
that's not really protected.
415
00:15:52.290 --> 00:15:53.520
So it the world's-
416
00:15:53.520 --> 00:15:54.510
Versus location.
Yeah.
417
00:15:54.510 --> 00:15:55.350
Et cetera, et cetera.
418
00:15:55.350 --> 00:15:56.640
Again, I'm trying to be candid.
419
00:15:56.640 --> 00:15:57.690
I'm being candid here.
420
00:15:57.690 --> 00:16:00.390
I'm asking the court to establish new law,
421
00:16:00.390 --> 00:16:02.760
but I asked the court to look carefully
422
00:16:02.760 --> 00:16:04.170
at the case law I cited.
423
00:16:04.170 --> 00:16:06.300
I'm not painting on a blank canvas here.
424
00:16:06.300 --> 00:16:08.820
And most relevantly in People v. Seymour,
425
00:16:08.820 --> 00:16:10.950
just last year, Colorado case,
426
00:16:10.950 --> 00:16:12.420
not binding on this court,
427
00:16:12.420 --> 00:16:15.960
the court said the society is ready to, ready,
428
00:16:15.960 --> 00:16:17.160
meaning it's new,
429
00:16:17.160 --> 00:16:21.720
ready to recognize a right of privacy in call logs.
430
00:16:21.720 --> 00:16:23.610
And so, but beyond, and so-
431
00:16:23.610 --> 00:16:28.110
That is a SCA violation case, or was it Colorado?
432
00:16:28.110 --> 00:16:29.079
I don't know.
433
00:16:29.079 --> 00:16:31.140
Administrative subpoena? You don't know?
434
00:16:31.140 --> 00:16:32.130
I don't know the answer.
435
00:16:32.130 --> 00:16:32.963
I'm happy to submit it.
436
00:16:32.963 --> 00:16:35.580
What about federal case law on violations of section,
437
00:16:35.580 --> 00:16:37.533
of D orders?
438
00:16:38.550 --> 00:16:41.160
So do you mean the SCA specifically, or anything else?
439
00:16:41.160 --> 00:16:43.080
I'm using, used to call them D orders,
440
00:16:43.080 --> 00:16:44.460
'cause this is not, but anyway.
441
00:16:44.460 --> 00:16:46.050
I don't know the answer to that question.
442
00:16:46.050 --> 00:16:48.270
I'm happy to submit a post argument letter about that,
443
00:16:48.270 --> 00:16:50.100
but I don't know the answer to that.
444
00:16:50.100 --> 00:16:53.580
But a great analogy is another case that I cited here.
445
00:16:53.580 --> 00:16:56.430
So first of all, the concept of reasonable expectation
446
00:16:56.430 --> 00:16:57.755
of privacy by law
447
00:16:57.755 --> 00:17:01.320
is recognized by the Supreme Court in Rakas v. Illinois.
448
00:17:01.320 --> 00:17:02.820
So then the question is, I think,
449
00:17:02.820 --> 00:17:04.560
and a fair and important question,
450
00:17:04.560 --> 00:17:06.330
what do you do when the police lie
451
00:17:06.330 --> 00:17:08.820
to get something pursuant to a statute?
452
00:17:08.820 --> 00:17:09.720
Isn't that something that's,
453
00:17:09.720 --> 00:17:11.130
and does it?
454
00:17:11.130 --> 00:17:12.549
And you're asking, well, okay,
455
00:17:12.549 --> 00:17:14.220
what are they lying? What are they trying to get?
456
00:17:14.220 --> 00:17:15.690
Right. I guess the point I'm trying to,
457
00:17:15.690 --> 00:17:17.670
asking you about is if we don't agree with you
458
00:17:17.670 --> 00:17:18.540
the police lied,
459
00:17:18.540 --> 00:17:22.590
but we think that exigency wasn't satisfied,
460
00:17:22.590 --> 00:17:23.550
as you've argued.
Mm.
461
00:17:23.550 --> 00:17:27.210
Say we agree with you on part B, not part A,
462
00:17:27.210 --> 00:17:29.910
where does that lead us as far as a violation goes?
463
00:17:29.910 --> 00:17:31.110
I know where you want us to lead,
464
00:17:31.110 --> 00:17:33.450
but where does that lead as far as a Vinnie violation
465
00:17:33.450 --> 00:17:37.113
goes on a statutory violation as far as a remedy, I guess?
466
00:17:38.760 --> 00:17:40.800
Okay. So I mean that's a tough question for me,
467
00:17:40.800 --> 00:17:42.690
because I have never thought of it that way.
468
00:17:42.690 --> 00:17:45.660
I think that it's crucial, it's important.
469
00:17:45.660 --> 00:17:48.570
I think it's important that if police lie
470
00:17:48.570 --> 00:17:51.090
to get a person's personal information,
471
00:17:51.090 --> 00:17:52.320
and that's what your call logs are,
472
00:17:52.320 --> 00:17:53.400
it's important to understand,
473
00:17:53.400 --> 00:17:54.450
especially in the modern age.
474
00:17:54.450 --> 00:17:56.340
Okay, so suppose the hypothetical I have for it.
475
00:17:56.340 --> 00:17:57.957
Right, they didn't lie.
476
00:17:57.957 --> 00:17:58.806
They didn't lie.
477
00:17:58.806 --> 00:17:59.850
And they didn't act in bad faith.
478
00:17:59.850 --> 00:18:02.813
But they were, it didn't satisfy exigency.
479
00:18:02.813 --> 00:18:04.700
I mean, to be candid,
480
00:18:04.700 --> 00:18:06.870
the point of my, the real,
481
00:18:06.870 --> 00:18:09.180
the thing doing the work here is deterrence.
482
00:18:09.180 --> 00:18:11.010
We don't want the police to lie.
483
00:18:11.010 --> 00:18:12.870
That's the whole principle of the Fourth Amendment
484
00:18:12.870 --> 00:18:14.250
is deterrence.
485
00:18:14.250 --> 00:18:17.040
And Article 14 of course is what I'm asking you to reply,
486
00:18:17.040 --> 00:18:18.660
but I think that's a fair question,
487
00:18:18.660 --> 00:18:21.270
but what I'm really hanging my hat on is deterrence.
488
00:18:21.270 --> 00:18:22.890
We don't want the police to lie.
489
00:18:22.890 --> 00:18:25.320
Now, I think it's clear as day.
490
00:18:25.320 --> 00:18:28.200
What is the remedy for the federal statutory violation
491
00:18:28.200 --> 00:18:30.540
if it's not a constitutional violation?
492
00:18:30.540 --> 00:18:32.670
In the federal context, you have civil rights.
493
00:18:32.670 --> 00:18:34.550
You're suing the phone carrier.
494
00:18:34.550 --> 00:18:36.210
The carrier and the cop?
495
00:18:36.210 --> 00:18:38.286
Or the carrier, just the carrier?
496
00:18:38.286 --> 00:18:40.860
I, well, I know for sure you can,
497
00:18:40.860 --> 00:18:42.930
you have, the carrier has liability.
498
00:18:42.930 --> 00:18:45.120
I'm not aware that of any, I mean,
499
00:18:45.120 --> 00:18:46.560
maybe some creative lawyer could come up with
500
00:18:46.560 --> 00:18:48.570
a theory of liability, but the well-known,
501
00:18:48.570 --> 00:18:51.240
the point of the statute is to be able to create
502
00:18:51.240 --> 00:18:53.240
this cause of action against the carrier.
503
00:18:53.240 --> 00:18:56.850
So for you to prevail on your theory then,
504
00:18:56.850 --> 00:19:00.300
given that the SCA has a built-in remedy,
505
00:19:00.300 --> 00:19:03.562
you would, you're arguing basically that
506
00:19:03.562 --> 00:19:08.562
the SCA creates an expectation of privacy in call logs,
507
00:19:09.090 --> 00:19:11.430
which prior there two did not exist
508
00:19:11.430 --> 00:19:12.720
under the case law.
Yes, that's right.
509
00:19:12.720 --> 00:19:15.180
And that in order to deter that
510
00:19:15.180 --> 00:19:18.090
now constitutional violation,
511
00:19:18.090 --> 00:19:19.950
we should use the exclusionary rule.
512
00:19:19.950 --> 00:19:22.350
Yes. And to Justice Gaziano's point,
513
00:19:22.350 --> 00:19:24.570
that's an, the important jump is
514
00:19:24.570 --> 00:19:28.080
use the constitutional tool of Article 14.
515
00:19:28.080 --> 00:19:30.720
And I do agree that to make that jump,
516
00:19:30.720 --> 00:19:32.070
that's a significant jump.
517
00:19:32.070 --> 00:19:33.030
And it requires-
518
00:19:33.030 --> 00:19:35.790
Especially where the SCA already provides a remedy.
519
00:19:35.790 --> 00:19:37.230
I mean, I think that that's really
520
00:19:37.230 --> 00:19:39.360
the biggest hurdle you have.
521
00:19:39.360 --> 00:19:43.830
Well, I agree with Justice Gaziano's problem,
522
00:19:43.830 --> 00:19:47.520
that the point of the Article 14 remedy,
523
00:19:47.520 --> 00:19:51.210
this new remedy, is to deter police misconduct.
524
00:19:51.210 --> 00:19:53.762
I don't think that's the point of the SCA so much,
525
00:19:53.762 --> 00:19:55.765
because you get cause of action.
526
00:19:55.765 --> 00:20:00.765
You're using the SCA to piggyback in Article 14.
527
00:20:00.990 --> 00:20:01.823
Right.
Right.
528
00:20:01.823 --> 00:20:04.650
But that's, and if I would really urge the court
529
00:20:04.650 --> 00:20:07.230
to look carefully at a case, an Iowa case,
530
00:20:07.230 --> 00:20:08.700
a State v. Wright.
531
00:20:08.700 --> 00:20:10.110
It's a trash case.
532
00:20:10.110 --> 00:20:11.610
And there's a local municipal ordinance
533
00:20:11.610 --> 00:20:13.080
that says the only people,
534
00:20:13.080 --> 00:20:14.670
if you put your trash out on the curb,
535
00:20:14.670 --> 00:20:16.050
the only people who can pick it up
536
00:20:16.050 --> 00:20:17.820
are licensed trash collectors.
537
00:20:17.820 --> 00:20:19.380
And we all know about the trash cases.
538
00:20:19.380 --> 00:20:20.869
You put a case, you put your stuff out on the curb,
539
00:20:20.869 --> 00:20:21.930
it's on the curb.
540
00:20:21.930 --> 00:20:23.160
So if you're a drug dealer,
541
00:20:23.160 --> 00:20:24.660
the cops can come by and look at it.
542
00:20:24.660 --> 00:20:27.988
And in Iowa, they said, no, you can't do that.
543
00:20:27.988 --> 00:20:30.210
And the municipal ordinance said,
544
00:20:30.210 --> 00:20:31.635
the only people who can look at it
545
00:20:31.635 --> 00:20:33.750
are licensed trash collectors.
546
00:20:33.750 --> 00:20:35.700
Not look at it, pick it up, and throw it away.
547
00:20:35.700 --> 00:20:39.450
As a matter of privacy under the state constitution,
548
00:20:39.450 --> 00:20:41.817
the Iowa Supreme Court said, no,
549
00:20:41.817 --> 00:20:44.177
the police cannot go through your trash.
550
00:20:44.177 --> 00:20:47.190
Why? Because there's been this reasonable expectation
551
00:20:47.190 --> 00:20:49.710
of privacy created by this municipal ordinance.
552
00:20:49.710 --> 00:20:51.450
I'm just, so I'm urging you to look at that.
553
00:20:51.450 --> 00:20:53.220
I'm not creating this outta whole cloth.
554
00:20:53.220 --> 00:20:55.290
This is an idea that I think has been recognized.
555
00:20:55.290 --> 00:20:57.528
But I take Justice Gaziano's point that if you,
556
00:20:57.528 --> 00:21:00.510
it's important, the reason we would do this
557
00:21:00.510 --> 00:21:02.640
is to deter police misconduct.
558
00:21:02.640 --> 00:21:04.440
You keep saying that,
Right.
559
00:21:04.440 --> 00:21:07.267
but under Justice Gaziano's hypothetical,
560
00:21:09.810 --> 00:21:10.983
he's saying that,
561
00:21:11.880 --> 00:21:14.370
say that he didn't act in bad faith.
562
00:21:14.370 --> 00:21:16.950
So how do you get there?
563
00:21:16.950 --> 00:21:18.150
And he was just wrong.
564
00:21:19.260 --> 00:21:21.360
I don't have a good answer to that question,
565
00:21:21.360 --> 00:21:23.730
Chief Justice, but I mean,
566
00:21:23.730 --> 00:21:26.070
but to be clear, I think it's clear,
567
00:21:26.070 --> 00:21:28.410
that he was lying or acting in bad faith.
568
00:21:28.410 --> 00:21:29.243
Understood.
569
00:21:29.243 --> 00:21:30.420
Right. And if, but if he wasn't lying
570
00:21:30.420 --> 00:21:33.145
or acting in bad faith, I don't have an answer.
571
00:21:33.145 --> 00:21:33.978
Okay.
572
00:21:33.978 --> 00:21:36.690
Can I switch you for one last?
573
00:21:36.690 --> 00:21:38.340
So I should know this,
574
00:21:38.340 --> 00:21:42.660
but Almonor, the basis of the killing there,
575
00:21:42.660 --> 00:21:44.460
it doesn't appear in the opinion
576
00:21:44.460 --> 00:21:46.890
whether that was a drug deal gone bad,
577
00:21:46.890 --> 00:21:49.250
or something different, which...
578
00:21:50.233 --> 00:21:53.010
So Almonor, I'm, I'll try...
579
00:21:53.010 --> 00:21:54.270
I'm looking at it myself.
Okay.
580
00:21:54.270 --> 00:21:55.103
But I don't see-
581
00:21:55.103 --> 00:21:55.950
There was,
582
00:21:55.950 --> 00:21:57.510
I remember the sawed off shotgun,
583
00:21:57.510 --> 00:21:59.400
but the court found that there was no exigent,
584
00:21:59.400 --> 00:22:02.458
sorry, there was an exigency in that case.
585
00:22:02.458 --> 00:22:04.380
Right. I understand we found an exigency there.
586
00:22:04.380 --> 00:22:07.560
And I understand it's a sawed off shotgun,
587
00:22:07.560 --> 00:22:10.470
but I, you seem to stress that, okay,
588
00:22:10.470 --> 00:22:11.910
it's a drug dealer shot.
589
00:22:11.910 --> 00:22:13.890
There's no need to worry anymore.
590
00:22:13.890 --> 00:22:14.880
I'm just trying to remember,
591
00:22:14.880 --> 00:22:17.370
is Almonor also a drug dealer shot?
592
00:22:17.370 --> 00:22:20.040
And we were worried that the drug,
593
00:22:20.040 --> 00:22:21.210
the killer was on the loose.
594
00:22:21.210 --> 00:22:23.520
Well, here's, I'll quote from Almonor.
595
00:22:23.520 --> 00:22:24.801
The best I can do right now.
596
00:22:24.801 --> 00:22:26.977
This was not, Almonor,
597
00:22:26.977 --> 00:22:29.227
"This was not a case in which the threat
598
00:22:29.227 --> 00:22:32.797
"posed by the suspect was limited to a particular victim
599
00:22:32.797 --> 00:22:34.597
"for a particular purpose,
600
00:22:34.597 --> 00:22:36.397
"such that the circumstances
601
00:22:36.397 --> 00:22:39.900
"that led to the shooting dissipated thereafter."
602
00:22:39.900 --> 00:22:41.280
So I mean, I don't know.
603
00:22:41.280 --> 00:22:43.470
I can go back and look and I can give you a letter,
604
00:22:43.470 --> 00:22:48.470
but it sounds to me like it's not a drug deal gone bad.
605
00:22:49.590 --> 00:22:51.450
It sounds like...
606
00:22:51.450 --> 00:22:53.861
Yeah, it sounds different.
Okay.
607
00:22:53.861 --> 00:22:54.694
Okay?
Okay.
608
00:22:54.694 --> 00:22:55.527
Thank you very much.
609
00:22:55.527 --> 00:22:56.360
Thank you.
610
00:22:57.750 --> 00:22:58.983
Okay, Attorney Campbell.
611
00:23:02.940 --> 00:23:03.930
May it please the court,
612
00:23:03.930 --> 00:23:06.030
Julianne Campbell on behalf of the Commonwealth.
613
00:23:06.030 --> 00:23:08.730
I'm asking that this court affirm the defendant's conviction
614
00:23:08.730 --> 00:23:11.152
for the murder of Aja Pascual.
615
00:23:11.152 --> 00:23:14.460
And if I could first, with the court's permission,
616
00:23:14.460 --> 00:23:16.440
I'll turn to sort of the legal question
617
00:23:16.440 --> 00:23:17.550
posed by my brother,
618
00:23:17.550 --> 00:23:19.301
because I do think that that is-
619
00:23:19.301 --> 00:23:21.870
Let me ask you, how do you distinguish Vinnie,
620
00:23:21.870 --> 00:23:23.692
because in my memory at least,
621
00:23:23.692 --> 00:23:24.600
I haven't looked at it in a little bit,
622
00:23:24.600 --> 00:23:26.010
but my memory of Vinnie was
623
00:23:26.010 --> 00:23:30.180
there was an administrative subpoena statute.
624
00:23:30.180 --> 00:23:31.200
The police were wrong,
625
00:23:31.200 --> 00:23:33.030
and we crafted a remedy
626
00:23:33.030 --> 00:23:36.420
based upon a violation of that statute.
627
00:23:36.420 --> 00:23:37.830
So I think that leads to-
628
00:23:37.830 --> 00:23:38.885
And I have-
629
00:23:38.885 --> 00:23:39.750
I think that leads to what Mr. Wood is saying,
630
00:23:39.750 --> 00:23:41.790
that whether or not it was
631
00:23:41.790 --> 00:23:44.100
bad faith, good faith, or whatever,
632
00:23:44.100 --> 00:23:45.570
there has to be some consequences
633
00:23:45.570 --> 00:23:47.490
to a violation of a statute that allows you
634
00:23:47.490 --> 00:23:50.190
to gather evidence, even if they are just call logs.
635
00:23:50.190 --> 00:23:51.953
Sure. And so I apologize.
636
00:23:51.953 --> 00:23:55.325
I don't recall the statute specifically involved in Vinnie,
637
00:23:55.325 --> 00:23:57.844
but what I would say here is that,
638
00:23:57.844 --> 00:24:01.890
first, I'd suggest that this is a well settled area of law
639
00:24:01.890 --> 00:24:03.270
in that a defendant does,
640
00:24:03.270 --> 00:24:05.130
or the Commonwealth is not obligated
641
00:24:05.130 --> 00:24:06.810
to get a warrant for call logs,
642
00:24:06.810 --> 00:24:08.430
because historically,
643
00:24:08.430 --> 00:24:12.123
and as recently as Commonwealth v. Gumskowski in 2021,
644
00:24:12.123 --> 00:24:16.140
there has not been a reasonable expectation
645
00:24:16.140 --> 00:24:18.900
of privacy in call logs specifically.
646
00:24:18.900 --> 00:24:20.330
That has never been recognized.
647
00:24:20.330 --> 00:24:22.920
But there's a statute that allows
648
00:24:22.920 --> 00:24:24.990
for the gathering of this evidence, correct?
649
00:24:24.990 --> 00:24:26.014
Yes.
650
00:24:26.014 --> 00:24:28.110
As it was in Vinnie and as there are in the SCA,
651
00:24:28.110 --> 00:24:29.857
or at least these so-called D orders, right?
652
00:24:29.857 --> 00:24:31.260
But what, that's correct,
653
00:24:31.260 --> 00:24:34.380
but what the defendant is asking this court to do
654
00:24:34.380 --> 00:24:38.250
is recognize a changing expectation of privacy
655
00:24:38.250 --> 00:24:39.859
based on police misconduct.
656
00:24:39.859 --> 00:24:41.333
Right. So let's call it a statutory violation.
657
00:24:41.333 --> 00:24:42.166
All right?
658
00:24:42.166 --> 00:24:44.190
So what's the remedy for a statutory violation?
659
00:24:44.190 --> 00:24:46.740
Built into the SCA, it is a civil remedy,
660
00:24:46.740 --> 00:24:51.180
and had the investigators, as they obtained,
661
00:24:51.180 --> 00:24:53.550
as they obtained the CSLI and ping data,
662
00:24:53.550 --> 00:24:56.400
they were not permitted to use that and did not use that,
663
00:24:56.400 --> 00:24:58.950
because there is an expectation of privacy
664
00:24:58.950 --> 00:25:00.600
for that information.
665
00:25:00.600 --> 00:25:03.810
Call logs and CDRs are distinctly different,
666
00:25:03.810 --> 00:25:07.110
and I'd suggest the third party doctrine does in fact apply,
667
00:25:07.110 --> 00:25:08.670
has historically applied,
668
00:25:08.670 --> 00:25:11.700
and has not been eviscerated with respect to call logs.
669
00:25:11.700 --> 00:25:14.850
So what is the remedy for a lie by a police officer
670
00:25:14.850 --> 00:25:18.630
to get the information that the SCA would require?
671
00:25:18.630 --> 00:25:21.633
I would be happy to answer that if indeed,
672
00:25:22.470 --> 00:25:24.960
first I'd suggest the remedy is at this juncture
673
00:25:24.960 --> 00:25:26.070
a civil remedy.
674
00:25:26.070 --> 00:25:28.260
However, the police did not lie here.
675
00:25:28.260 --> 00:25:29.190
There is not a,
676
00:25:29.190 --> 00:25:32.640
there is no lie contained within that exigency form.
677
00:25:32.640 --> 00:25:34.410
That was a credibility determination.
678
00:25:34.410 --> 00:25:36.000
It's supported by the record here.
679
00:25:36.000 --> 00:25:37.080
It's not,
680
00:25:37.080 --> 00:25:39.300
it wasn't particularly precise though, right?
681
00:25:39.300 --> 00:25:40.572
Certainly. And it,
682
00:25:40.572 --> 00:25:43.470
and certainly T-Mobile is free to communicate with officers
683
00:25:43.470 --> 00:25:47.070
as phone providers often do in order to clarify.
684
00:25:47.070 --> 00:25:51.660
I point to the very minute detail that's included in that,
685
00:25:51.660 --> 00:25:53.910
and I'd suggest that it was not,
686
00:25:53.910 --> 00:25:56.190
it was not a lie. It was not in bad faith.
687
00:25:56.190 --> 00:25:58.110
And as the motion judge found,
688
00:25:58.110 --> 00:26:00.360
there was no motive to lie back then,
689
00:26:00.360 --> 00:26:01.800
because the police didn't believe
690
00:26:01.800 --> 00:26:03.240
that they were doing anything wrong
691
00:26:03.240 --> 00:26:05.130
given the state of the law.
692
00:26:05.130 --> 00:26:07.110
And so quite simply both under the-
693
00:26:07.110 --> 00:26:08.151
What is the...
694
00:26:08.151 --> 00:26:09.157
I don't under...
695
00:26:09.157 --> 00:26:10.860
What's the explanation for the statement
696
00:26:10.860 --> 00:26:15.120
that the victim was speaking with a subscriber at the,
697
00:26:15.120 --> 00:26:17.490
during the time of the murder?
698
00:26:17.490 --> 00:26:20.250
That's not exactly what's written in the report.
699
00:26:20.250 --> 00:26:21.720
Oh, what is?
700
00:26:21.720 --> 00:26:23.640
If I could just have one moment.
701
00:26:23.640 --> 00:26:24.660
Well, I can look at it. I just...
702
00:26:24.660 --> 00:26:26.010
But it's essentially that was
703
00:26:26.010 --> 00:26:28.710
phone number was last contacted during the homicide.
704
00:26:28.710 --> 00:26:30.030
And is that true?
705
00:26:30.030 --> 00:26:32.100
The Commonwealth position is that indeed
706
00:26:32.100 --> 00:26:35.760
the victim last called that person, being the defendant,
707
00:26:35.760 --> 00:26:37.050
prior to the homicide
708
00:26:37.050 --> 00:26:38.700
and that the defendant then killed her.
709
00:26:38.700 --> 00:26:39.877
Okay,
But he still killed her.
710
00:26:39.877 --> 00:26:42.060
so prior, not during. That's your position?
711
00:26:42.060 --> 00:26:43.830
Well, certainly if someone was being murdered,
712
00:26:43.830 --> 00:26:45.960
I'd suggest they could not place a phone call.
713
00:26:45.960 --> 00:26:47.670
Okay. So you're saying it would literally
714
00:26:47.670 --> 00:26:49.440
this statement by the officer,
715
00:26:49.440 --> 00:26:52.440
just nobody would credit it because they're being killed?
716
00:26:52.440 --> 00:26:53.463
Yes.
Okay.
717
00:26:55.110 --> 00:26:56.567
Is there any detail in that?
718
00:26:56.567 --> 00:27:00.093
'Cause what I gather is that because it was a drug deal,
719
00:27:01.620 --> 00:27:03.480
this was inferentially,
720
00:27:03.480 --> 00:27:06.870
the person that the victim met up with
721
00:27:06.870 --> 00:27:07.720
before they were,
722
00:27:08.852 --> 00:27:11.040
before they died, right?
Yes.
723
00:27:11.040 --> 00:27:12.390
That being the main suspect,
724
00:27:12.390 --> 00:27:14.100
if it was the last person, they...
725
00:27:14.100 --> 00:27:15.180
Yes. That's part of how-
726
00:27:15.180 --> 00:27:17.250
They had transacted a drug deal with...
727
00:27:17.250 --> 00:27:19.860
That is part of how the police grew suspicious
728
00:27:19.860 --> 00:27:20.693
of the defendant,
729
00:27:20.693 --> 00:27:22.890
among other pieces of evidence
730
00:27:22.890 --> 00:27:25.200
that they were going through in the span of 48 hours.
731
00:27:25.200 --> 00:27:28.350
There were certainly a lot of moving parts in this.
732
00:27:28.350 --> 00:27:31.200
And I would suggest that especially where
733
00:27:31.200 --> 00:27:33.600
my brother represents, you know, the police did lie.
734
00:27:33.600 --> 00:27:35.700
They did know the owner was alive.
735
00:27:35.700 --> 00:27:36.750
That's not true.
736
00:27:36.750 --> 00:27:39.691
Was it accurate that the person
737
00:27:39.691 --> 00:27:42.900
on the other side of the phone was missing,
738
00:27:42.900 --> 00:27:45.030
or could be in peril?
739
00:27:45.030 --> 00:27:47.970
So, and I think Officer Washington's testimony
740
00:27:47.970 --> 00:27:49.950
reveals this, that at the time,
741
00:27:49.950 --> 00:27:51.660
they didn't know who the other person
742
00:27:51.660 --> 00:27:53.040
on the other end of the line was.
743
00:27:53.040 --> 00:27:54.960
They still had not recovered the victim's phone.
744
00:27:54.960 --> 00:27:57.480
They didn't know where the victim's phone was.
745
00:27:57.480 --> 00:27:59.060
The person who identified himself
746
00:27:59.060 --> 00:28:02.142
identified a made up name of Brandyn Jackson.
747
00:28:02.142 --> 00:28:03.780
That may have been the owner.
748
00:28:03.780 --> 00:28:07.230
That may have been a murderer in possession of that phone.
749
00:28:07.230 --> 00:28:08.550
The police did not know.
750
00:28:08.550 --> 00:28:11.430
And I think the exigency form itself
751
00:28:11.430 --> 00:28:14.010
reveals the limited knowledge of what
752
00:28:14.010 --> 00:28:15.960
the police had at that juncture.
753
00:28:15.960 --> 00:28:18.360
And it was an ongoing emergency.
754
00:28:18.360 --> 00:28:21.210
The murder happened in the afternoon on the 29th.
755
00:28:21.210 --> 00:28:24.570
The exigency form was sent October 1st, two days later.
756
00:28:24.570 --> 00:28:25.440
Tn the middle of this,
757
00:28:25.440 --> 00:28:27.480
they had obtained the victim's phone records.
758
00:28:27.480 --> 00:28:30.360
They had begun calling people from her records.
759
00:28:30.360 --> 00:28:32.670
They had been conducting interviews.
760
00:28:32.670 --> 00:28:33.930
There were a lot of moving parts.
761
00:28:33.930 --> 00:28:35.940
And as part of that investigation,
762
00:28:35.940 --> 00:28:38.610
the police, in good faith and not lying,
763
00:28:38.610 --> 00:28:40.350
submitted an exigency form,
764
00:28:40.350 --> 00:28:43.140
which resulted in CSLI, ping data,
765
00:28:43.140 --> 00:28:45.390
and the call detail records.
766
00:28:45.390 --> 00:28:47.310
There is one inaccuracy, right?
767
00:28:47.310 --> 00:28:50.760
'Cause they obtained the victim's phone records
768
00:28:50.760 --> 00:28:52.650
'cause they know her number, right?
769
00:28:52.650 --> 00:28:53.483
Yes.
770
00:28:53.483 --> 00:28:55.467
But the defendant isn't the last person.
771
00:28:55.467 --> 00:28:57.780
He's the second from the last.
772
00:28:57.780 --> 00:29:00.300
His number is the second from the last number, right?
773
00:29:00.300 --> 00:29:03.606
She calls somebody, she speaks to somebody else.
774
00:29:03.606 --> 00:29:05.697
I don't want to misstate the record, Your Honor,
775
00:29:05.697 --> 00:29:07.170
and I candidly cannot.
776
00:29:07.170 --> 00:29:10.830
Isn't the record clear that there was another phone call?
777
00:29:10.830 --> 00:29:13.303
I'm not sure that there was a conversation that connected.
778
00:29:13.303 --> 00:29:14.820
No, it wasn't. But there wa...
779
00:29:14.820 --> 00:29:17.310
The number, the defendant's number,
780
00:29:17.310 --> 00:29:19.470
is not the last number called.
781
00:29:19.470 --> 00:29:24.006
There is actually another number called after the defendant.
782
00:29:24.006 --> 00:29:26.760
I don't know if it was called or incoming.
783
00:29:26.760 --> 00:29:27.593
Or received.
784
00:29:27.593 --> 00:29:28.980
Correct. There is anoth...
785
00:29:28.980 --> 00:29:30.803
that is true. However-
786
00:29:30.803 --> 00:29:35.803
That's somehow concealed in the
787
00:29:35.820 --> 00:29:38.070
representation to the phone company.
788
00:29:38.070 --> 00:29:40.980
No, because the number that's being issued,
789
00:29:40.980 --> 00:29:44.250
the number at issue was last contacted.
790
00:29:44.250 --> 00:29:45.660
It says during the homicide.
791
00:29:45.660 --> 00:29:47.730
I would suggest just prior to the homicide.
792
00:29:47.730 --> 00:29:49.716
So it's not that this was the-
793
00:29:49.716 --> 00:29:50.549
That word last.
794
00:29:50.549 --> 00:29:54.450
It's, again, we're quibbling over words,
795
00:29:54.450 --> 00:29:56.010
but I guess that's what we do.
796
00:29:56.010 --> 00:29:58.080
At best, I would suggest that it's vague,
797
00:29:58.080 --> 00:30:00.570
but that does not intimate a lie.
798
00:30:00.570 --> 00:30:04.350
And I also would suggest that there is validity to it
799
00:30:04.350 --> 00:30:06.390
in that that number,
800
00:30:06.390 --> 00:30:08.640
the one the records are being sought for,
801
00:30:08.640 --> 00:30:12.180
was last contacted prior to the homicide.
802
00:30:12.180 --> 00:30:15.420
And so it's in that reading that I think
803
00:30:15.420 --> 00:30:16.518
it, again,
804
00:30:16.518 --> 00:30:20.460
where the police didn't have a motive to lie back then,
805
00:30:20.460 --> 00:30:24.840
it is hard to understand what that lie
806
00:30:24.840 --> 00:30:27.720
specifically would be when at best maybe it was vague,
807
00:30:27.720 --> 00:30:29.040
and I can concede that,
808
00:30:29.040 --> 00:30:30.330
but certainly not-
809
00:30:30.330 --> 00:30:31.440
Help me just for a second.
810
00:30:31.440 --> 00:30:32.970
And I know I'm being obtuse here,
811
00:30:32.970 --> 00:30:35.370
but homicide investigation
812
00:30:35.370 --> 00:30:40.110
and number was last contacted during the murder.
813
00:30:40.110 --> 00:30:44.430
When we know that there's another phone call in,
814
00:30:44.430 --> 00:30:45.990
after that.
815
00:30:45.990 --> 00:30:47.337
How is that accurate? Just-
816
00:30:47.337 --> 00:30:49.320
The phone number being sought
817
00:30:49.320 --> 00:30:52.800
was last contacted during the murder is my reading of it.
818
00:30:52.800 --> 00:30:54.390
Okay. I get it, okay.
819
00:30:54.390 --> 00:30:57.030
As opposed to this was the last number
820
00:30:57.030 --> 00:30:58.680
calling the victim's phone.
821
00:30:58.680 --> 00:30:59.980
I gotcha. Okay.
822
00:31:01.320 --> 00:31:04.064
But again, even,
823
00:31:04.064 --> 00:31:07.170
I'd suggest the facts don't support that there was a lie.
824
00:31:07.170 --> 00:31:08.520
But even if there was,
825
00:31:08.520 --> 00:31:10.920
the defendant does not under the case law,
826
00:31:10.920 --> 00:31:13.860
under our federal law, or under Article 14,
827
00:31:13.860 --> 00:31:15.630
have a reasonable expectation of privacy
828
00:31:15.630 --> 00:31:17.354
in these third party records.
829
00:31:17.354 --> 00:31:18.187
Let's get to the second part then,
830
00:31:18.187 --> 00:31:20.130
because so he gets,
831
00:31:20.130 --> 00:31:22.080
the cops give not only...
832
00:31:22.080 --> 00:31:23.730
Cops get not only the call,
833
00:31:23.730 --> 00:31:26.490
but they get everything, the CSLI and other stuff
834
00:31:26.490 --> 00:31:28.020
as well, right?
Yes.
835
00:31:28.020 --> 00:31:30.720
So how can, how do we separate out that?
836
00:31:30.720 --> 00:31:32.940
This court did that in Gumskowski,
837
00:31:32.940 --> 00:31:36.060
and I would suggest that the Commonwealth recognizing this-
838
00:31:36.060 --> 00:31:38.040
Can do that on this record here.
839
00:31:38.040 --> 00:31:39.164
Absolutely, Hour Honor.
840
00:31:39.164 --> 00:31:42.300
And let me add one other layer to it,
841
00:31:42.300 --> 00:31:44.493
which is, okay, the judge does that,
842
00:31:45.330 --> 00:31:48.390
but we also have an ineffective assistance claim here
843
00:31:48.390 --> 00:31:50.940
saying that maybe if there were better wording
844
00:31:50.940 --> 00:31:55.940
by the motion lawyer, that that wouldn't have been done.
845
00:31:57.030 --> 00:31:58.950
So how do you deal with all of that?
846
00:31:58.950 --> 00:32:00.210
So I would suggest that
847
00:32:00.210 --> 00:32:03.180
that is not borne out and the ineffective assistance claim
848
00:32:03.180 --> 00:32:05.040
is simply not borne out by the record.
849
00:32:05.040 --> 00:32:06.240
And the reason for that is
850
00:32:06.240 --> 00:32:10.350
because the Commonwealth appropriately and voluntarily
851
00:32:10.350 --> 00:32:14.381
did not use records that it obtained prior to this case,
852
00:32:14.381 --> 00:32:16.650
this court's decisions in Augustine.
853
00:32:16.650 --> 00:32:19.920
So the Commonwealth recognizing that those materials
854
00:32:19.920 --> 00:32:21.300
were obtained without a warrant,
855
00:32:21.300 --> 00:32:23.040
said we won't use them,
856
00:32:23.040 --> 00:32:25.290
even though in 2012 we got them without a warrant,
857
00:32:25.290 --> 00:32:26.220
and that was lawful.
858
00:32:26.220 --> 00:32:28.620
We're not introducing them. We're not using them.
859
00:32:28.620 --> 00:32:30.600
The record doesn't suggest that they were used
860
00:32:30.600 --> 00:32:31.433
in the course of the investigation.
861
00:32:31.433 --> 00:32:33.420
Well, in order to do that,
862
00:32:33.420 --> 00:32:36.420
the motion judge talks,
863
00:32:36.420 --> 00:32:39.570
she makes certain things go away, right?
864
00:32:39.570 --> 00:32:44.570
The graphic maps, which seem to be CSLI type of maps are-
865
00:32:45.270 --> 00:32:46.103
That's not true.
866
00:32:46.103 --> 00:32:47.400
And I would suggest that that's,
867
00:32:47.400 --> 00:32:49.080
that the judge's findings on that,
868
00:32:49.080 --> 00:32:51.420
and the testimony that came out was that
869
00:32:51.420 --> 00:32:53.490
those maps were not used in the con,
870
00:32:53.490 --> 00:32:55.830
the way that the defendant suggests they were.
871
00:32:55.830 --> 00:32:56.790
They simply were not,
872
00:32:56.790 --> 00:32:58.740
and that was not borne out by the evidence
873
00:32:58.740 --> 00:33:00.183
of the investigators.
874
00:33:01.530 --> 00:33:05.760
So I think the way that you take out the CSLI and ping data
875
00:33:05.760 --> 00:33:07.590
is the way that the Commonwealth did,
876
00:33:07.590 --> 00:33:09.630
recognizing it couldn't use it.
877
00:33:09.630 --> 00:33:12.420
So at the suppression hearing, that's suppressed,
878
00:33:12.420 --> 00:33:14.850
because with the ascent of the Commonwealth,
879
00:33:14.850 --> 00:33:17.070
all your left is with the call detail records,
880
00:33:17.070 --> 00:33:19.500
which the state of the law was the same
881
00:33:19.500 --> 00:33:21.210
at the time of the suppression hearing.
882
00:33:21.210 --> 00:33:23.400
A defendant does not have a reasonable expectation
883
00:33:23.400 --> 00:33:24.840
of privacy in those records,
884
00:33:24.840 --> 00:33:27.210
and so those records were properly allowed
885
00:33:27.210 --> 00:33:28.830
to be admitted at trial,
886
00:33:28.830 --> 00:33:31.050
and at the motion for new trial,
887
00:33:31.050 --> 00:33:35.010
where the defendant cannot prove that the government lied,
888
00:33:35.010 --> 00:33:36.300
acted in bad faith,
889
00:33:36.300 --> 00:33:39.570
attempted to use this in some fa...
890
00:33:39.570 --> 00:33:41.793
attempted to evade the law,
891
00:33:42.990 --> 00:33:45.090
given that posture where he doesn't have
892
00:33:45.090 --> 00:33:46.107
an expectation of privacy
893
00:33:46.107 --> 00:33:50.400
and these records held by third party, a business.
894
00:33:50.400 --> 00:33:52.380
I'd suggest that that is how this court can-
895
00:33:52.380 --> 00:33:55.530
Is this the last sliver of third party doctrine?
896
00:33:55.530 --> 00:33:56.363
It's not.
897
00:33:56.363 --> 00:33:58.167
I thought we had abrogated third party doctrine.
898
00:33:58.167 --> 00:34:00.030
It, so certainly third party doctrine
899
00:34:00.030 --> 00:34:01.050
has been abrogated,
900
00:34:01.050 --> 00:34:03.690
but it's quite limited in where it's been abrogated,
901
00:34:03.690 --> 00:34:06.600
in that it's his, it's location information largely,
902
00:34:06.600 --> 00:34:09.360
which is incredibly intimate
903
00:34:09.360 --> 00:34:12.240
and is certainly not contemplated
904
00:34:12.240 --> 00:34:15.000
by the Fourth Amendment or our constitution
905
00:34:15.000 --> 00:34:16.170
when it was written.
906
00:34:16.170 --> 00:34:20.907
And yet this court has applied a third party doctrine
907
00:34:20.907 --> 00:34:23.820
all the way through until today
908
00:34:23.820 --> 00:34:26.340
with the exception being location information,
909
00:34:26.340 --> 00:34:28.380
and that's an appropriate exception,
910
00:34:28.380 --> 00:34:31.087
but to eviscerate the entire doctrine
911
00:34:31.087 --> 00:34:33.330
where there are other lawful applications,
912
00:34:33.330 --> 00:34:36.249
such as video surveillance, banking documents,
913
00:34:36.249 --> 00:34:39.750
there's all kinds of ways that a third party doctrine
914
00:34:39.750 --> 00:34:43.140
comes into play, and there's simply no reason
915
00:34:43.140 --> 00:34:44.160
to eviscerate it here.
916
00:34:44.160 --> 00:34:47.008
And I suggest that the defendant's argument
917
00:34:47.008 --> 00:34:52.008
that the police can trigger someone's expectation of privacy
918
00:34:54.810 --> 00:34:57.120
is not the way that expectation of privacy is-
919
00:34:57.120 --> 00:34:59.130
Well, I think the argument is a little more nuanced
920
00:34:59.130 --> 00:35:00.660
than the police can trigger it.
921
00:35:00.660 --> 00:35:03.630
It's that the SCA gives rise
922
00:35:03.630 --> 00:35:06.450
to an expectation of privacy in call logs
923
00:35:06.450 --> 00:35:09.000
that heretofore were not private.
924
00:35:09.000 --> 00:35:11.310
So I, that may be what he's arguing.
925
00:35:11.310 --> 00:35:13.200
My understanding of the argument was that
926
00:35:13.200 --> 00:35:17.460
the SCA provides for disclosure when there is exigency,
927
00:35:17.460 --> 00:35:21.270
and if the police act without exigency
928
00:35:21.270 --> 00:35:23.730
or lie to get exigency,
929
00:35:23.730 --> 00:35:27.360
then that creates an expectation of privacy,
930
00:35:27.360 --> 00:35:30.780
because it's outside the parameters of the SCA.
931
00:35:30.780 --> 00:35:31.613
Right.
932
00:35:31.613 --> 00:35:32.550
And that's simply,
933
00:35:32.550 --> 00:35:36.660
that's dependent on another person's conduct
934
00:35:36.660 --> 00:35:38.850
to create an expectation of privacy
935
00:35:38.850 --> 00:35:39.869
that a defendant might have.
936
00:35:39.869 --> 00:35:41.970
Or you could say it differently to say instead,
937
00:35:41.970 --> 00:35:43.722
I think as the defendant is saying,
938
00:35:43.722 --> 00:35:48.150
that compliance with this statutory mechanism
939
00:35:48.150 --> 00:35:50.940
is the way to get this information,
940
00:35:50.940 --> 00:35:54.303
and absent compliance with that,
941
00:35:55.770 --> 00:35:59.130
or that an individual has a reasonable expectation
942
00:35:59.130 --> 00:36:00.750
that the police will comply
943
00:36:00.750 --> 00:36:03.093
with those provisions of the SCA.
944
00:36:04.380 --> 00:36:05.966
I think that's-
Why wouldn't that...
945
00:36:05.966 --> 00:36:09.300
Why would that be an unreasonable change in the law?
946
00:36:09.300 --> 00:36:11.220
It would not be unreasonable,
947
00:36:11.220 --> 00:36:14.970
but it does not equate to a constitutional provision
948
00:36:14.970 --> 00:36:17.250
that all people are guaranteed.
949
00:36:17.250 --> 00:36:18.210
That does not,
950
00:36:18.210 --> 00:36:20.310
that has never been recognized
951
00:36:20.310 --> 00:36:21.840
with respect to the SCA,
952
00:36:21.840 --> 00:36:24.480
and I suggest that this is not the case to do that with.
953
00:36:24.480 --> 00:36:25.710
Why not?
954
00:36:25.710 --> 00:36:28.350
Because of the third party doctrine,
955
00:36:28.350 --> 00:36:29.610
and I think that's a compelling-
956
00:36:29.610 --> 00:36:31.140
But the point is that it would get,
957
00:36:31.140 --> 00:36:33.840
it would further eviscerate that doctrine.
958
00:36:33.840 --> 00:36:34.890
That's the argument.
959
00:36:34.890 --> 00:36:36.000
Yes, and I would suggest-
960
00:36:36.000 --> 00:36:37.710
I'm not saying I buy it,
961
00:36:37.710 --> 00:36:39.810
I'm just saying I'm giving you the opportunity
962
00:36:39.810 --> 00:36:41.760
to respond other than just to say
963
00:36:41.760 --> 00:36:44.040
from time immemorial, we haven't done it.
964
00:36:44.040 --> 00:36:46.770
I, frankly, Your Honor,
965
00:36:46.770 --> 00:36:48.780
the courts say it better than I can
966
00:36:48.780 --> 00:36:51.090
with respect to the legitimacy and the value
967
00:36:51.090 --> 00:36:51.990
of the third party doctrine,
968
00:36:51.990 --> 00:36:54.660
which is that to have an expectation of privacy
969
00:36:54.660 --> 00:36:58.170
in information that is being shared with someone else
970
00:36:58.170 --> 00:37:00.270
defeats a reasonable expectation
971
00:37:00.270 --> 00:37:02.464
of privacy in and of itself. That is the premise.
972
00:37:02.464 --> 00:37:07.020
Even when the statute gives some protection
973
00:37:07.020 --> 00:37:09.660
to the call logs?
974
00:37:09.660 --> 00:37:11.390
Yes. Because-
975
00:37:11.390 --> 00:37:14.010
What case says that?
976
00:37:14.010 --> 00:37:16.860
I don't have a case off the top of my head
977
00:37:16.860 --> 00:37:19.050
that explains that a statutory provision
978
00:37:19.050 --> 00:37:21.360
does not create a constitutional protection.
979
00:37:21.360 --> 00:37:23.640
I don't have a case for that, Your Honor.
980
00:37:23.640 --> 00:37:24.570
When you get this,
981
00:37:24.570 --> 00:37:26.910
when you file for this stuff,
982
00:37:26.910 --> 00:37:28.740
you get not only the call logs.
983
00:37:28.740 --> 00:37:32.580
You also can get the constitutionally protected information.
984
00:37:32.580 --> 00:37:33.413
You can limit it.
985
00:37:33.413 --> 00:37:34.890
I mean, now we would limit that
986
00:37:34.890 --> 00:37:36.480
with an administrative subpoena.
987
00:37:36.480 --> 00:37:38.640
At the time they got everything, right?
988
00:37:38.640 --> 00:37:41.130
Again, prior to this court's decision in Augustine,
989
00:37:41.130 --> 00:37:42.960
in 2012, they did get everything.
990
00:37:42.960 --> 00:37:45.840
And there have been cases, as I said,
991
00:37:45.840 --> 00:37:48.450
Gumskowski, the very same scenario is-
992
00:37:48.450 --> 00:37:49.980
Oh, I guess you could argue that,
993
00:37:49.980 --> 00:37:54.240
okay, so the statute provides a remedy,
994
00:37:54.240 --> 00:37:56.580
and then when you have a constitutional violation
995
00:37:56.580 --> 00:37:57.960
on top of it,
Correct.
996
00:37:57.960 --> 00:37:59.820
then you hit the,
Do the constitutional.
997
00:37:59.820 --> 00:38:01.380
then you get the constitutional protection.
998
00:38:01.380 --> 00:38:02.213
That's correct.
999
00:38:02.213 --> 00:38:03.360
But if you're,
1000
00:38:03.360 --> 00:38:06.030
for the call logs themselves, they don't rise to that level.
1001
00:38:06.030 --> 00:38:06.863
That's correct.
1002
00:38:06.863 --> 00:38:09.393
And that is why the SCA provides for a civil remedy.
1003
00:38:10.770 --> 00:38:11.940
Seeing no further questions,
1004
00:38:11.940 --> 00:38:13.290
I'm happy to rest my brief.