-: SJC-12571.
Commonwealth v. Brandyn S LePage.
Budd: Okay, Attorney Wood.
-: Thank you very much and thank you to the clerk
for accommodating us and letting us go first.
My name is Chauncey Wood.
I represent the appellant, Brandyn LePage.
I want to begin by moving straight
to the central factual dispute here,
what I think is going to be most important to the court.
Whether Fall River Police Officer Steve Washington
lied or acted in bad faith to T-Mobile
in the exigent circumstances request form
he'd submitted to obtain Mr. LePage's cell phone records.
On October 1st, 2012, at about 3:00 PM Detective Washington
sent an exigent circumstances request form
to T-Mobile requesting Mr. LePage's call detail records,
or CDRs.
That was more than 48 hours after the killing at issue here,
which occurred on September 29th, 2012 at about 1:20.
The T-Mobile exigent circumstance request form defines
exigent circumstances as
"immediate danger of death or serious physical injury
"to any person."
-: Wood, can you distinguish between legal sufficiency
for that exigency,
which we can talk about with reference
to our prior case law.
Chamberlain, I think is the case,
versus what Judge Dupree found
on credibility issues where you say she's clearly erroneous.
'Cause I think they're two distinct parts of your argument,
so if you could address how she was wrong first,
and then we can talk about legal sufficiency after that.
-: Yes. So I think,
I agree with that, and I think that I am trying to go
right to the factual issue of whether there were,
and I'm trying,
I think we're on the same page here.
-: The first issue, the fact, the sufficiency issue.
-: Right.
I believe she was clearly erroneous.
Well, it was,
I think there's a subsidiary question, though.
I think, and I'm not trying to dodge,
I think it's in order to determine
whether her finding was clearly erroneous,
whether there were exigent circumstances,
we need to determine, I think, first whether
we agree that Detective Washington's statements
were false, intentional, or in reckless bad faith.
And so I think that's the crucial foundational question,
and that's what I'm addressing,
if that is acceptable. -: Please.
Okay. So he wrote on the form quote,
"Homicide investigation and number,"
parentheses, "phone," parentheses,
"was last contacted during murder,
"unknown where owner is or if owner is alive or deceased."
So first I note that this assertion included
several false statements that were either intentional
or reckless amounting to bad faith.
And so first, I'll focus on two of them.
Washington asserts that the victim was on the phone
with the subscriber at the time of her death,
quote, "last contacted during murder."
Gaziano: Sorry, does he say that?
-: He says, so I'll-
-: Use his words and- -: Yep.
rather than reformulate them. -: Yep.
-: I will. "Homicide investigation,"
I'm quoting now,
"Homicide investigation and number phone
"was last contacted during murder."
So that's last contacted during murder.
I submit that the only reasonable interpretation
of what he's getting at there is
that he was on the phone with the victim
at the time of her death.
Last contacted-
-: Well, that's was last contacted during the murder.
So she's murdered at 1:23 or something like that.
Wood: About that, about that.
-: And the phone is last used at 1:10.
-: Yes. But her last call to Mr. LePage
is 10 minutes before that.
-: But again, yes. Yeah.
So the phone is no longer used after the murder, right?
Wood: Yeah.
-: So the last time the phone's used
is a couple of minutes before the murder,
so is that really an inaccurate factual statement?
-: I think, well-
-: It could be more precise,
but to accuse him of, you know, lying is,
you know, that's significant.
So I just want you to be careful.
Go ahead.
-: So, I think that it's at least reckless and in bad faith.
And again, the context here is
the demonstrating exigency to get
somebody else's private phone records.
And he's saying, "Last used during murder."
It's our position-
-: But that is, let's just,
let's push that again. -: Sure.
-: So the the other- -: Please.
Oh, sorry.
-: Not using the phone as the murder weapon.
Wood: Right.
-: So last used during the murder
is a sort of, you know, incomplete
but not particularly descriptive,
but to find it a lie, I don't know.
It just, you just seem like you're pushing it way over.
You're going what he's doing.
You're overstating what he's saying.
-: Well, I respectfully disagree,
but let me move on to the next point.
And I take your point,
and I will come back to it,
but that it's at best an exaggerate,
it might be entitled a slightly careless
or incautious exaggeration.
-: Like what you're doing.
Overstating it. Go ahead.
-: I mean, I'm quoting the language,
to be perfectly candid as an officer of the court,
I'm quoting the language, "Last used during murder."
I was an English major.
"During" has a specific meaning.
And I submit that during means at the time of the murder,
not 20 minutes before the murder,
so with all due respect, I think I'm not overstating,
but I understand your point, and I'll come back to it.
So secondly, Detective Washington claimed
that he didn't know whether LePage was alive.
I'll quote the language.
"Unknown where owner is or if owner is alive or deceased."
Now, that was just not true.
-: We know that he knows LePage is alive?
How do we know he knows?
-: 'Cause he got the decedent's phone records.
He found this phone number,
which was Mr. LePage's.
He called it three times,
and each time the person ans,
who, the owner, answered the phone,
Brandyn said, "I'm Brandyn Jackson,"
and he says, "Can you come in and talk to us?"
"No, I'm in New Bedford with my mother."
-: So at least with regard to that last statement,
arguably you could say you didn't know where LePage was,
because he had misidentified himself as Jackson, right?
-: Well, so yes, I think that's right.
You don't know a hundred percent it's Brandyn LePage,
because he's saying Brandyn Jackson,
and he says, "I'm in New Bedford,"
but you don't know for sure that he's telling the truth,
that he's really in New Bedford.
So it's fair to say,
I think it's fair to say we don't know where he is.
Wendlandt: Right.
-: But I think it's less fair to say
that you don't know that it's,
that he, that the owner of the phone is alive.
-: Isn't it more like whether there's an exigency
where there's a murder,
this is the last contact, right?
Before the murder,
and there's a killer on the roam, essentially.
That's, I think, what it boils down to.
-: Well, so the the next thing that I,
that's correct.
It's the immediacy.
I, well, I think I agree mostly.
It's the immediacy,
so what I'm trying to get to is
the most important thing here is actually an omission
in this claim.
What he doesn't say is that the killing
occurred more than 48 hours earlier on September 29th
at about 1:20 PM,
so what I'm saying, I agree with you-
-: Isn't there still an exigency
where there's someone that's killing drug dealers out there?
-: So, the answer I submit-
-: And I know Chamberlain had some issue,
or maybe it's Chamberlain, you'll correct me,
but had some issue about the,
whether there's a sawed off shotgun,
which to me is neither here nor there.
It's still...
-: So the quest-
Sorry, I'm sorry.
Gaziano: No, please answer that.
-: So Almonor I think is the most relevant case.
And so I think that Almonor quite explicitly addresses
the relevance of temporal proximity.
And so I would quote the relevant language in Almonor.
It says, the court considered there whether quote,
"The circumstances that led to the shooting had dissipated."
Okay? That's from Almonor,
this court's decision in Almonor.
I think that Your Honor is absolutely right,
that the essence of exigency is the immediacy,
is an immediate threat to the public safety.
And I take your point,
that what we have,
what are you talking about?
Not a threat?
You got a guy who's just killed somebody,
and he's on the loose.
A killer on the loose.
That's what we all get, right? -: Right.
The problem is that's not what the case law says.
The case law says that it's the immediacy of the threat.
And more than that, Almonor focuses on other factors.
Why, is this person just a crazed killer
out killing anybody?
Or is there a reason for this particular killing
that the police know?
And in this case, the police did know that this was a,
almost certainly, a drug related killing,
because it was known that the decedent was a drug dealer.
It was known that her pockets had been turned out.
It was known that she had crack cocaine on her,
so, and she was in her own car,
killed from the right hand side.
So somebody in the car,
which supports an inference that
there was a drug deal gone bad.
So the police knew all of that.
And so my position is that both the lack
of temporal proximity and the fact that the police knew
that this was a specific killing for a,
they knew the motive and the reason for this killing,
that there was a dispute between dealer and seller,
and therefore this killer on the loose
was not likely to go kill any random person,
but rather had a specific dispute.
At least that's our position.
So our position is that for two reasons at least,
this fails to establish exigency.
And then in light of that important omission.
And, so again,
the exigent circumstance request form
did not include any of that.
The circumstances of the killing.
-: And, correct me if I'm wrong,
so Judge Dupree's findings more had to do with
whether or not this was a really a CSLI ping issue,
that which is a separate issue than your exigency issue.
-: Right. So to get to your,
to answer your question,
what did Judge Dupree find that had to do with this,
right? -: Right.
She found that Detective Washington wasn't lying,
or wasn't acting in bad faith, to Justice Kafker's point.
Okay, well, what's that based on?
That, I mean, so first of all, well,
he wasn't lying.
Match the most, the easiest way to answer that is,
sorry, go ahead.
-: But to your point though,
we have to look to see what he,
even if we find that there's no omission,
we need to find the legal sufficiency
of that representation,
whether it matches our exigency case law, essentially.
-: Yes. I agree with that.
So just, but just to finish the point
and then move on to that,
she is looking, the evidence she has in front of her
that he wasn't lying or acting in bad faith
is from the evidentiary hearing
on our new trial motion,
and we very clearly lay out that all he said there was,
"I don't remember.
"I don't remember what I said."
Here's, I showed him the document.
"What did you mean?"
"I don't know what I meant."
"You really don't know?"
"I can't remember."
So my point very simply is she could not
make a finding that he wasn't lying or acting in bad faith
based on that testimony,
because he didn't remember.
So all we have is the undisputed factual record,
what he wrote and what he didn't write,
on that exigent circumstance request form.
So that's the facts.
So moving to the law,
what I think your next question,
so I think-
-: Can I get one last point on that?
Wood: Yes.
-: So Augustine hasn't been decided at this point, right?
So -: Yes.
you don't, you know, it's,
we're sort of in an earlier world
where you just kind of file these things and you get,
you know, it's just,
it's not clear that he's getting around, you know,
an Augustine problem, right?
He doesn't have,
I think the judge says she,
he doesn't have an incentive to sort of lie, right?
-: I think that's absolutely fair point.
The question you're getting at is why would he lie?
I mean, he could have said, honestly,
like, "I just want these records,"
and well,
what I'm getting at, what I'm suggesting is
I don't have an answer.
Well, candidly, I don't have an answer to that question.
-: By the way, it's before Almonor too, right?
Wood: Yes. So, yes.
So I don't have an answer to the question
why did he, if he, why would he need to lie?
If, you know, you're disputing whether he lied
or acted in bad faith,
but the motive question, why did he need to?
I mean, for one thing, the form said
you need to demonstrate exigent circumstances.
So regardless if he felt he needed them,
but then why did he after the fact,
you know, try to cover that up?
I don't have an answer for that,
except that my best guess but is that
the police didn't want to disclose
their investigative techniques.
But in any event, it doesn't matter.
-: Where does the law lead us?
Assuming we agree with you, where does the law lead us
when we're dealing with call logs?
And I know the Vinnie case,
this is really just
a D order administrative subpoena in that era,
where you really didn't have to show exigency.
You just said, "Hey, I'm a police officer.
"This is a D order," -: Right, so-
"Give me just the call logs,"
which aren't really protected as Augustine's,
Gants concurrence says, and a lot of cases say.
Wood: Right.
-: So where are we with call logs?
-: Yes. So I think that the,
it's a new concept.
I'm asking the court to make new law, to be clear,
and I lay this out most clearly in my reply brief
at page 11.
And I cite the case law.
The concept which this court hasn't yet recognized
is a reasonable expectation of privacy by law.
And it's actually-
-: But we've said differently with respect to call logs.
-: So you, here's my,
that's the Gumskowski case, -: Right.
and in the, that's in the gum,
and I addressed that case.
I distinguish it at pages 11 and 12 of my reply brief.
And specifically the SJC clearly did not address
the question here in Gumskowski,
and Gumskowski, like this case,
there was a exact same request under the SCA
for SCLI call detail records,
which include CSLI and call logs.
They alleged exigent circumstances,
all of it was produced.
The defendant crucially did not allege
that the representation by the police was false,
that there was a false claim of exigent circumstances.
He made a different argument that the call logs
were fruit of the CSLI.
And the court said, "No, no, no, no, no.
"Those are, the call logs are not fruit of the CSLI.
"They're separate,"
and so there was no dispute that
if the court rejected that, Gumskowski loses.
There was no question of what do you do?
What's the significance of a police lie?
There was no allegation of a police lie.
-: It's a statutory violation,
like Vinnie. -: Right.
-: Yes, that's right. That's right.
And so what I submit,
and this is new, relatively new law.
-: If we agree with you, it's a statutory Vinnie.
-: That's right.
It's a federal statutory.
I'm relying on the federal statutory violation.
In a nutshell, the concept of reason, sorry,
of reasonable expectation of privacy by law
is that that statutory violation creates,
or that statutory requirement of exigent circumstances,
which is what the SCA requires,
creates in turn a reasonable expectation
of privacy in your call logs,
something that previously has not
been recognized by this court.
-: But our case law,
and I'm just remembering the Gants concurrence
in Augustine, which basically says,
"Come on, call logs?
"That's something that's given all the time."
I mean, we're not a third party doctrine,
but maybe we are, right?
As far as call logs go,
because there's no,
everyone knows when they pick up the phone
and they dial a bunch of digits,
that's not really protected.
-: So it the world's-
-: Versus location. -: Yeah.
Et cetera, et cetera.
-: Again, I'm trying to be candid.
I'm being candid here.
I'm asking the court to establish new law,
but I asked the court to look carefully
at the case law I cited.
I'm not painting on a blank canvas here.
And most relevantly in People v. Seymour,
just last year, Colorado case,
not binding on this court,
the court said the society is ready to, ready,
meaning it's new,
ready to recognize a right of privacy in call logs.
And so, but beyond, and so-
-: That is a SCA violation case, or was it Colorado?
Wood: I don't know.
-: Administrative subpoena? You don't know?
Wood: I don't know the answer.
I'm happy to submit it.
-: What about federal case law on violations of section,
of D orders?
-: So do you mean the SCA specifically, or anything else?
-: I'm using, used to call them D orders,
'cause this is not, but anyway.
-: I don't know the answer to that question.
I'm happy to submit a post argument letter about that,
but I don't know the answer to that.
But a great analogy is another case that I cited here.
So first of all, the concept of reasonable expectation
of privacy by law
is recognized by the Supreme Court in Rakas v. Illinois.
So then the question is, I think,
and a fair and important question,
what do you do when the police lie
to get something pursuant to a statute?
Isn't that something that's,
and does it?
And you're asking, well, okay,
what are they lying? What are they trying to get?
-: Right. I guess the point I'm trying to,
asking you about is if we don't agree with you
the police lied,
but we think that exigency wasn't satisfied,
as you've argued. -: Mm.
Say we agree with you on part B, not part A,
where does that lead us as far as a violation goes?
I know where you want us to lead,
but where does that lead as far as a Vinnie violation
goes on a statutory violation as far as a remedy, I guess?
-: Okay. So I mean that's a tough question for me,
because I have never thought of it that way.
I think that it's crucial, it's important.
I think it's important that if police lie
to get a person's personal information,
and that's what your call logs are,
it's important to understand,
especially in the modern age.
-: Okay, so suppose the hypothetical I have for it.
Wood: Right, they didn't lie.
-: They didn't lie.
Wood: And they didn't act in bad faith.
-: But they were, it didn't satisfy exigency.
-: I mean, to be candid,
the point of my, the real,
the thing doing the work here is deterrence.
We don't want the police to lie.
That's the whole principle of the Fourth Amendment
is deterrence.
And Article 14 of course is what I'm asking you to reply,
but I think that's a fair question,
but what I'm really hanging my hat on is deterrence.
We don't want the police to lie.
Now, I think it's clear as day.
-: What is the remedy for the federal statutory violation
if it's not a constitutional violation?
-: In the federal context, you have civil rights.
You're suing the phone carrier.
-: The carrier and the cop?
Or the carrier, just the carrier?
-: I, well, I know for sure you can,
you have, the carrier has liability.
I'm not aware that of any, I mean,
maybe some creative lawyer could come up with
a theory of liability, but the well-known,
the point of the statute is to be able to create
this cause of action against the carrier.
-: So for you to prevail on your theory then,
given that the SCA has a built-in remedy,
you would, you're arguing basically that
the SCA creates an expectation of privacy in call logs,
which prior there two did not exist
under the case law. -: Yes, that's right.
And that in order to deter that
now constitutional violation,
we should use the exclusionary rule.
-: Yes. And to Justice Gaziano's point,
that's an, the important jump is
use the constitutional tool of Article 14.
And I do agree that to make that jump,
that's a significant jump.
And it requires-
-: Especially where the SCA already provides a remedy.
I mean, I think that that's really
the biggest hurdle you have.
-: Well, I agree with Justice Gaziano's problem,
that the point of the Article 14 remedy,
this new remedy, is to deter police misconduct.
I don't think that's the point of the SCA so much,
because you get cause of action.
-: You're using the SCA to piggyback in Article 14.
-: Right. -: Right.
But that's, and if I would really urge the court
to look carefully at a case, an Iowa case,
a State v. Wright.
It's a trash case.
And there's a local municipal ordinance
that says the only people,
if you put your trash out on the curb,
the only people who can pick it up
are licensed trash collectors.
And we all know about the trash cases.
You put a case, you put your stuff out on the curb,
it's on the curb.
So if you're a drug dealer,
the cops can come by and look at it.
And in Iowa, they said, no, you can't do that.
And the municipal ordinance said,
the only people who can look at it
are licensed trash collectors.
Not look at it, pick it up, and throw it away.
As a matter of privacy under the state constitution,
the Iowa Supreme Court said, no,
the police cannot go through your trash.
Why? Because there's been this reasonable expectation
of privacy created by this municipal ordinance.
I'm just, so I'm urging you to look at that.
I'm not creating this outta whole cloth.
This is an idea that I think has been recognized.
But I take Justice Gaziano's point that if you,
it's important, the reason we would do this
is to deter police misconduct.
-: You keep saying that, -: Right.
but under Justice Gaziano's hypothetical,
he's saying that,
say that he didn't act in bad faith.
So how do you get there?
-: And he was just wrong.
-: I don't have a good answer to that question,
Chief Justice, but I mean,
but to be clear, I think it's clear,
that he was lying or acting in bad faith.
Budd: Understood.
-: Right. And if, but if he wasn't lying
or acting in bad faith, I don't have an answer.
Budd: Okay.
-: Can I switch you for one last?
So I should know this,
but Almonor, the basis of the killing there,
it doesn't appear in the opinion
whether that was a drug deal gone bad,
or something different, which...
-: So Almonor, I'm, I'll try...
-: I'm looking at it myself. -: Okay.
But I don't see-
-: There was,
I remember the sawed off shotgun,
but the court found that there was no exigent,
sorry, there was an exigency in that case.
-: Right. I understand we found an exigency there.
And I understand it's a sawed off shotgun,
but I, you seem to stress that, okay,
it's a drug dealer shot.
There's no need to worry anymore.
I'm just trying to remember,
is Almonor also a drug dealer shot?
And we were worried that the drug,
the killer was on the loose.
-: Well, here's, I'll quote from Almonor.
The best I can do right now.
This was not, Almonor,
"This was not a case in which the threat
"posed by the suspect was limited to a particular victim
"for a particular purpose,
"such that the circumstances
"that led to the shooting dissipated thereafter."
So I mean, I don't know.
I can go back and look and I can give you a letter,
but it sounds to me like it's not a drug deal gone bad.
It sounds like...
Yeah, it sounds different. -: Okay.
Okay? -: Okay.
Thank you very much.
-: Thank you.
Okay, Attorney Campbell.
-: May it please the court,
Julianne Campbell on behalf of the Commonwealth.
I'm asking that this court affirm the defendant's conviction
for the murder of Aja Pascual.
And if I could first, with the court's permission,
I'll turn to sort of the legal question
posed by my brother,
because I do think that that is-
-: Let me ask you, how do you distinguish Vinnie,
because in my memory at least,
I haven't looked at it in a little bit,
but my memory of Vinnie was
there was an administrative subpoena statute.
The police were wrong,
and we crafted a remedy
based upon a violation of that statute.
So I think that leads to-
Campbell: And I have-
-: I think that leads to what Mr. Wood is saying,
that whether or not it was
bad faith, good faith, or whatever,
there has to be some consequences
to a violation of a statute that allows you
to gather evidence, even if they are just call logs.
-: Sure. And so I apologize.
I don't recall the statute specifically involved in Vinnie,
but what I would say here is that,
first, I'd suggest that this is a well settled area of law
in that a defendant does,
or the Commonwealth is not obligated
to get a warrant for call logs,
because historically,
and as recently as Commonwealth v. Gumskowski in 2021,
there has not been a reasonable expectation
of privacy in call logs specifically.
That has never been recognized.
-: But there's a statute that allows
for the gathering of this evidence, correct?
Campbell: Yes.
-: As it was in Vinnie and as there are in the SCA,
or at least these so-called D orders, right?
-: But what, that's correct,
but what the defendant is asking this court to do
is recognize a changing expectation of privacy
based on police misconduct.
-: Right. So let's call it a statutory violation.
All right?
So what's the remedy for a statutory violation?
-: Built into the SCA, it is a civil remedy,
and had the investigators, as they obtained,
as they obtained the CSLI and ping data,
they were not permitted to use that and did not use that,
because there is an expectation of privacy
for that information.
Call logs and CDRs are distinctly different,
and I'd suggest the third party doctrine does in fact apply,
has historically applied,
and has not been eviscerated with respect to call logs.
-: So what is the remedy for a lie by a police officer
to get the information that the SCA would require?
-: I would be happy to answer that if indeed,
first I'd suggest the remedy is at this juncture
a civil remedy.
However, the police did not lie here.
There is not a,
there is no lie contained within that exigency form.
That was a credibility determination.
It's supported by the record here.
-: It's not,
it wasn't particularly precise though, right?
-: Certainly. And it,
and certainly T-Mobile is free to communicate with officers
as phone providers often do in order to clarify.
I point to the very minute detail that's included in that,
and I'd suggest that it was not,
it was not a lie. It was not in bad faith.
And as the motion judge found,
there was no motive to lie back then,
because the police didn't believe
that they were doing anything wrong
given the state of the law.
And so quite simply both under the-
-: What is the...
I don't under...
What's the explanation for the statement
that the victim was speaking with a subscriber at the,
during the time of the murder?
-: That's not exactly what's written in the report.
Wendlandt: Oh, what is?
-: If I could just have one moment.
Wendlandt: Well, I can look at it. I just...
-: But it's essentially that was
phone number was last contacted during the homicide.
-: And is that true?
-: The Commonwealth position is that indeed
the victim last called that person, being the defendant,
prior to the homicide
and that the defendant then killed her.
-: Okay, -: But he still killed her.
so prior, not during. That's your position?
-: Well, certainly if someone was being murdered,
I'd suggest they could not place a phone call.
-: Okay. So you're saying it would literally
this statement by the officer,
just nobody would credit it because they're being killed?
-: Yes. -: Okay.
-: Is there any detail in that?
'Cause what I gather is that because it was a drug deal,
this was inferentially,
the person that the victim met up with
before they were,
before they died, right? -: Yes.
That being the main suspect,
if it was the last person, they...
-: Yes. That's part of how-
-: They had transacted a drug deal with...
-: That is part of how the police grew suspicious
of the defendant,
among other pieces of evidence
that they were going through in the span of 48 hours.
There were certainly a lot of moving parts in this.
And I would suggest that especially where
my brother represents, you know, the police did lie.
They did know the owner was alive.
That's not true.
-: Was it accurate that the person
on the other side of the phone was missing,
or could be in peril?
-: So, and I think Officer Washington's testimony
reveals this, that at the time,
they didn't know who the other person
on the other end of the line was.
They still had not recovered the victim's phone.
They didn't know where the victim's phone was.
The person who identified himself
identified a made up name of Brandyn Jackson.
That may have been the owner.
That may have been a murderer in possession of that phone.
The police did not know.
And I think the exigency form itself
reveals the limited knowledge of what
the police had at that juncture.
And it was an ongoing emergency.
The murder happened in the afternoon on the 29th.
The exigency form was sent October 1st, two days later.
Tn the middle of this,
they had obtained the victim's phone records.
They had begun calling people from her records.
They had been conducting interviews.
There were a lot of moving parts.
And as part of that investigation,
the police, in good faith and not lying,
submitted an exigency form,
which resulted in CSLI, ping data,
and the call detail records.
-: There is one inaccuracy, right?
'Cause they obtained the victim's phone records
'cause they know her number, right?
Campbell: Yes.
-: But the defendant isn't the last person.
He's the second from the last.
His number is the second from the last number, right?
She calls somebody, she speaks to somebody else.
-: I don't want to misstate the record, Your Honor,
and I candidly cannot.
-: Isn't the record clear that there was another phone call?
-: I'm not sure that there was a conversation that connected.
-: No, it wasn't. But there wa...
The number, the defendant's number,
is not the last number called.
There is actually another number called after the defendant.
-: I don't know if it was called or incoming.
Kafker: Or received.
-: Correct. There is anoth...
that is true. However-
-: That's somehow concealed in the
representation to the phone company.
-: No, because the number that's being issued,
the number at issue was last contacted.
It says during the homicide.
I would suggest just prior to the homicide.
So it's not that this was the-
-: That word last.
It's, again, we're quibbling over words,
but I guess that's what we do.
-: At best, I would suggest that it's vague,
but that does not intimate a lie.
And I also would suggest that there is validity to it
in that that number,
the one the records are being sought for,
was last contacted prior to the homicide.
And so it's in that reading that I think
it, again,
where the police didn't have a motive to lie back then,
it is hard to understand what that lie
specifically would be when at best maybe it was vague,
and I can concede that,
but certainly not-
-: Help me just for a second.
And I know I'm being obtuse here,
but homicide investigation
and number was last contacted during the murder.
When we know that there's another phone call in,
after that.
How is that accurate? Just-
-: The phone number being sought
was last contacted during the murder is my reading of it.
Kafker: Okay. I get it, okay.
-: As opposed to this was the last number
calling the victim's phone.
Kafker: I gotcha. Okay.
-: But again, even,
I'd suggest the facts don't support that there was a lie.
But even if there was,
the defendant does not under the case law,
under our federal law, or under Article 14,
have a reasonable expectation of privacy
in these third party records.
-: Let's get to the second part then,
because so he gets,
the cops give not only...
Cops get not only the call,
but they get everything, the CSLI and other stuff
as well, right? -: Yes.
So how can, how do we separate out that?
-: This court did that in Gumskowski,
and I would suggest that the Commonwealth recognizing this-
-: Can do that on this record here.
-: Absolutely, Hour Honor.
-: And let me add one other layer to it,
which is, okay, the judge does that,
but we also have an ineffective assistance claim here
saying that maybe if there were better wording
by the motion lawyer, that that wouldn't have been done.
So how do you deal with all of that?
-: So I would suggest that
that is not borne out and the ineffective assistance claim
is simply not borne out by the record.
And the reason for that is
because the Commonwealth appropriately and voluntarily
did not use records that it obtained prior to this case,
this court's decisions in Augustine.
So the Commonwealth recognizing that those materials
were obtained without a warrant,
said we won't use them,
even though in 2012 we got them without a warrant,
and that was lawful.
We're not introducing them. We're not using them.
The record doesn't suggest that they were used
in the course of the investigation.
-: Well, in order to do that,
the motion judge talks,
she makes certain things go away, right?
The graphic maps, which seem to be CSLI type of maps are-
-: That's not true.
And I would suggest that that's,
that the judge's findings on that,
and the testimony that came out was that
those maps were not used in the con,
the way that the defendant suggests they were.
They simply were not,
and that was not borne out by the evidence
of the investigators.
So I think the way that you take out the CSLI and ping data
is the way that the Commonwealth did,
recognizing it couldn't use it.
So at the suppression hearing, that's suppressed,
because with the ascent of the Commonwealth,
all your left is with the call detail records,
which the state of the law was the same
at the time of the suppression hearing.
A defendant does not have a reasonable expectation
of privacy in those records,
and so those records were properly allowed
to be admitted at trial,
and at the motion for new trial,
where the defendant cannot prove that the government lied,
acted in bad faith,
attempted to use this in some fa...
attempted to evade the law,
given that posture where he doesn't have
an expectation of privacy
and these records held by third party, a business.
I'd suggest that that is how this court can-
-: Is this the last sliver of third party doctrine?
Campbell: It's not.
-: I thought we had abrogated third party doctrine.
-: It, so certainly third party doctrine
has been abrogated,
but it's quite limited in where it's been abrogated,
in that it's his, it's location information largely,
which is incredibly intimate
and is certainly not contemplated
by the Fourth Amendment or our constitution
when it was written.
And yet this court has applied a third party doctrine
all the way through until today
with the exception being location information,
and that's an appropriate exception,
but to eviscerate the entire doctrine
where there are other lawful applications,
such as video surveillance, banking documents,
there's all kinds of ways that a third party doctrine
comes into play, and there's simply no reason
to eviscerate it here.
And I suggest that the defendant's argument
that the police can trigger someone's expectation of privacy
is not the way that expectation of privacy is-
-: Well, I think the argument is a little more nuanced
than the police can trigger it.
It's that the SCA gives rise
to an expectation of privacy in call logs
that heretofore were not private.
-: So I, that may be what he's arguing.
My understanding of the argument was that
the SCA provides for disclosure when there is exigency,
and if the police act without exigency
or lie to get exigency,
then that creates an expectation of privacy,
because it's outside the parameters of the SCA.
Wendlandt: Right.
-: And that's simply,
that's dependent on another person's conduct
to create an expectation of privacy
that a defendant might have.
-: Or you could say it differently to say instead,
I think as the defendant is saying,
that compliance with this statutory mechanism
is the way to get this information,
and absent compliance with that,
or that an individual has a reasonable expectation
that the police will comply
with those provisions of the SCA.
-: I think that's- -: Why wouldn't that...
-: Why would that be an unreasonable change in the law?
-: It would not be unreasonable,
but it does not equate to a constitutional provision
that all people are guaranteed.
That does not,
that has never been recognized
with respect to the SCA,
and I suggest that this is not the case to do that with.
Wendlandt: Why not?
-: Because of the third party doctrine,
and I think that's a compelling-
-: But the point is that it would get,
it would further eviscerate that doctrine.
That's the argument.
Campbell: Yes, and I would suggest-
-: I'm not saying I buy it,
I'm just saying I'm giving you the opportunity
to respond other than just to say
from time immemorial, we haven't done it.
-: I, frankly, Your Honor,
the courts say it better than I can
with respect to the legitimacy and the value
of the third party doctrine,
which is that to have an expectation of privacy
in information that is being shared with someone else
defeats a reasonable expectation
of privacy in and of itself. That is the premise.
-: Even when the statute gives some protection
to the call logs?
-: Yes. Because-
-: What case says that?
-: I don't have a case off the top of my head
that explains that a statutory provision
does not create a constitutional protection.
I don't have a case for that, Your Honor.
-: When you get this,
when you file for this stuff,
you get not only the call logs.
You also can get the constitutionally protected information.
-: You can limit it.
I mean, now we would limit that
with an administrative subpoena.
-: At the time they got everything, right?
-: Again, prior to this court's decision in Augustine,
in 2012, they did get everything.
And there have been cases, as I said,
Gumskowski, the very same scenario is-
-: Oh, I guess you could argue that,
okay, so the statute provides a remedy,
and then when you have a constitutional violation
on top of it, -: Correct.
then you hit the, -: Do the constitutional.
then you get the constitutional protection.
Campbell: That's correct.
-: But if you're,
for the call logs themselves, they don't rise to that level.
-: That's correct.
And that is why the SCA provides for a civil remedy.
Seeing no further questions,
I'm happy to rest my brief.