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SJC 1-2-8-2-9.
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Commonwealth v Robert Restucci.
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Mr. Falkner, good morning.
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Good morning Mr. Chief Justice,
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and my it please the court.
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The issue in this case is whether
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the police can sit on information for seven months
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in the instance where one single image
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is uploaded on March 17th.
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I'm sorry, March 15th, I believe, 2017.
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The investigation does not involve any updating
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of the information whatsoever in any form.
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On May-
Does it make
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any difference that it was uploaded
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as opposed to downloaded?
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I'm not sure that it makes any difference
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whether it's uploaded as opposed to downloaded.
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But we're--
What it's not uploaded
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or downloaded, but you just look at it?
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The question is, I think one has
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to look at all of the facts.
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And one has to look at the way
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those actions are described in the affidavit.
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So yes, you have the word uploaded here.
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You have a platform, which is Skype.com.
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And the only description of the platform
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is that it enables people to communicate with one another.
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The Commonwealth argues that that means
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it's not a storage platform.
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But there's nothing in the affidavit that says
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that documents can't be stored there.
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There's no description in the affidavit whatsoever,
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as to what steps it takes to download.
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Whether that, the Commonwealth in it's brief argues
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that one would have to select this file
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and click it and upload it.
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It just says the file was uploaded.
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We have no idea how that image came from being
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on a computer in that residence to the Skype.
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Okay, let's pose for a minute that it's not a digital file
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but it's an actual photograph from the old days.
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And a person says...
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A named persons says to the police, "I sold him
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this photograph of child pornography."
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And seven months pass.
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Any difference?
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I think it's absolutely a difference.
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If one looks at the case law,
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in particular, under Raymonda.
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The fact pattern that Your Honor provides,
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involves the defendant paying for that photograph.
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And now--
Let's say he gave it to him.
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Again, I think, that's a little bit different,
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because we'd have to know the circumstances
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under which he gave it to him.
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Did he give it to him in an envelope
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and not tell him what it is?
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Did he give it to him in the circumstances
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where he would've seen that photograph?
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What's most analogous to your case?
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Excuse me?
Which one would be
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most analogous to your case?
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You mean, between being in an envelope?
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Being in an envelope.
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And that goes back to, I think, the description
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that we have here in this affidavit.
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Which is, we just simply know that a file
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where the series of numbers dot JPG,
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or whatever it is, is uploaded.
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But there's again, no description as to how that happens.
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We don't whether that happened automatically.
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We don't know whether it happened
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along with a series of other photographs.
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There's just simply no indication that whoever,
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or however that was uploaded,
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that the person who uploaded it saw it,
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selected it, had any indication whatsoever
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what was the contents of what that file was.
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Isn't that kind of...
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Isn't your case distinguishable from Raymonda?
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'Cause Raymonda was thumbnails and it was downloaded.
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And there was no indication that that thumbnails
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where made, where clicked on.
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And then they said this could have been just inadvertent.
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So we don't know, and then the inference being that
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someone that did this inadvertently would get rid of it.
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But here, we have your client come into the possession
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at some point of the material.
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And then sharing it with somebody via upload.
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So doesn't that distinguish it from Raymaonda?
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I think this case is distinguishable from Raymonda
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in the sense that I believe
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that it's actually weaker than Raymonda,
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in terms of the showing of the probable cause.
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And this why: In Raymonda, the defendant
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did not necessarily click on them,
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but actually did view them.
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And so there's evidence that a person
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knew what the contents of those photographs were.
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There's no evidence here in this case
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to demonstrate that anybody actually viewed
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this photograph besides the detective himself.
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When he's preparing the--
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I guess, I mean, we're doing probability.
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But like, why would someone upload,
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as opposed to download an image
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if it's not to share it with somebody,
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and not to pass it along?
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He would have have the fiction
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that someone had a file they never opened.
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They're communicating with someone on Skype.
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And they say, "Here's this file I never opened,
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why don't you look at it too?"
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So again, this goes to the factual detail
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in the affidavit itself.
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We do not know that this file was sent to any person.
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What we know is simply, that it was uploaded to Skype.
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We don't know the circumstances it was uploaded to Skype.
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We don't have any description
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of the mechanics at work in Skype.
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We don't have any actual indication
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that this was uploaded as a part of a communication,
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as opposed to automatically.
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Now the trial judge, in his endorsement
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says that Skype is different from iCloud,
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or an automatic cloud based system.
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But there's no indication in this affidavit that it is.
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We don't have anything to demonstrate
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precisely, the set of circumstances
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that Your Honor described.
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Which is, one, that the defendant received it.
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And two, that the defendant then in turn
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deliberately, took some action to upload it
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in order to share it with anybody else.
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Well don't you have two separate points there?
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You have the point about who on the end
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of the computer that was searched, who was on that end?
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Who the person was?
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Right.
That's one issue.
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But then the second issue is,
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what that person did or did not do?
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And whether you upload it to Skype
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or you upload it to WhatsApp,
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or you upload it to the iCloud,
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what difference does it make?
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He's charged with possession, not distribution.
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So the, one, it doesn't matter
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who on the end of the house does it.
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And I simply used the defendant as a description
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for whoever is on the computer.
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It does not matter for purposes of proof
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what platform it's uploaded to.
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The issue here is what matters is what was actually done
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that the police are aware of.
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And that's described in the affidavit
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to show that whoever was on that computer
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deliberately possessed it and intentionally possessed it.
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And without any description of the process
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of how it's uploaded, why it's uploaded, what's done?
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Whether it involves individual clicks or any of that.
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And that's why--
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But isn't that really an issue for a trial
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and not for a motion to suppress?
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Well it's an issue for probable causes.
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Because, if one looks at Raymonda,
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one of the ways that Raymonda distinguishes
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between who's a collector and who's not
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is by the intentionality of the steps that are taken.
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And the reason why whether one is a collector or not matters
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is that the affidavit alleges that collectors
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are more likely to continue to keep items
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for a long period of time.
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They don't delete them, and all of this stuff.
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And the fact that the defendant
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or whoever has uploaded it as a collector
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is simply assumed in the affidavit.
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And that's one of the bases that establishes
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that this file is gonna be on this computer
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because collectors are hoarders.
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And once one possesses an item of this nature
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one never gets rid of it.
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One would never get rid of the devices.
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One would preserve backups of the device.
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Well doesn't he retain the uploaded file?
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There's no indication that the uploaded file was retained.
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There's no indication that the
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particular uploaded file was found.
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And even if the uploaded file had been found
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as a result of the search warrant,
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what's at issue here is whether there was probable cause
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to issue--
If they didn't find the file
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what are you moving to suppress?
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I'm moving to suppress any
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and all of the items that were found.
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And the items that were found as a result of this
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were child pornography, which what we're charged
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with possessing--
Recognizing we don't
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do post-talk analysis.
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Which is what you're referring to.
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There's a part of this jurisprudence
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in the affidavit that says that these files
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can never be deleted because it takes
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someone really sophisticated to do so.
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And the average person doesn't do so.
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in their opinions to that.
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How long is reasonable for that technology
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never to be deleted for them to execute a search warrant?
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It's a very good question.
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I don't know what's necessarily reasonable.
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One, we don't have any idea--
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It can't be forever.
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Right.
All right, that's number one
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but for how long?
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'Cause it would mean that the person,
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and take the predilection and the hoarder stuff out of it.
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But the person, say they were searching the computer
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for evidence in a murder case.
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How do I poison my spouse, right?
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That type of stuff.
Right.
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It would mean that you have to either replace
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the computer or destroy a hard drive.
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And people replace computers
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in today's consumer world, right?
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So how long is reasonable?
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It seems like six months.
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People keep computers for six months.
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Seven months.
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People may keep computers for years.
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But the issue is, again, there's no indication
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in this as to how long he had had the equipment
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that he had in the first place.
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We don't know at all from this affidavit
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whether this is a 10 year old computer
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that's on the verge of replacement,
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and he went to the store the next day.
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Or whether it was a brand new computer
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that he's gonna have for several years.
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And so the question becomes:
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I think a fairer way to look at this is,
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is there any reason why given the urgency
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with which the Commonwealth contends these matters
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need to be investigated.
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The danger these cases possess: is there any reason
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in a case where the Commonwealth has had this information
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since March 15th of 2017.
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Or at the very least, since May 4th of 2017.
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It took them two months just to determine
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what even the internet address of this home is.
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To just sit there and do nothing.
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We don't have penalty clauses, right?
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Our jurisprudence is whether or not there's staleness
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and whether or not there probable cause
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to believe this material is still in this computer.
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And of course, arguing for your client,
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you're gonna say, the forever delete thing
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prong of this analysis, seven months is outside of that.
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Right.
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So what's inside of it, though?
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How long is okay?
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Six months, five months, four months?
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How will you do this?
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I think that the best way to look at it is
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that when this information is developed,
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if the Commonwealth is investigating this,
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and there's some reason.
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One, if they get the information and act on it,
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then it's likely that this information
268
00:12:51.200 --> 00:12:52.411
is still going to be there.
269
00:12:52.411 --> 00:12:56.250
The question is, if you just sit on it,
270
00:12:56.250 --> 00:12:59.590
and just sit on it, and there's no indication
271
00:12:59.590 --> 00:13:01.535
of anything ongoing, as we approach--
272
00:13:01.535 --> 00:13:04.040
I don't see, I really don't understand that argument.
273
00:13:04.040 --> 00:13:06.990
I think Justice Gaziano just made the same point.
274
00:13:06.990 --> 00:13:10.530
It's not about how long the police sit on the information.
275
00:13:10.530 --> 00:13:12.853
They may have all sorts of reasons
276
00:13:12.853 --> 00:13:14.950
why they wanna sit on the information
277
00:13:14.950 --> 00:13:18.448
from an investigatory purpose, if they don't wanna move.
278
00:13:18.448 --> 00:13:20.340
Or they may not have reasons.
279
00:13:20.340 --> 00:13:21.840
This issue is not how long they waited.
280
00:13:21.840 --> 00:13:26.450
The issue is whether or not the affidavit
281
00:13:26.450 --> 00:13:27.948
and the search warrant's stale.
282
00:13:27.948 --> 00:13:32.948
And we know that people who keep and distribute
283
00:13:35.670 --> 00:13:38.660
child pornography tend to hold on to it.
284
00:13:38.660 --> 00:13:40.586
It's special to them.
285
00:13:40.586 --> 00:13:43.050
Well--
So I guess I'd start...
286
00:13:43.050 --> 00:13:44.963
What I'm saying is you started your argument,
287
00:13:44.963 --> 00:13:48.400
something along the lines that the Commonwealth
288
00:13:48.400 --> 00:13:51.136
cannot sit on information for seven months.
289
00:13:51.136 --> 00:13:54.230
They can sit on it for as long as they want to sit on it.
290
00:13:54.230 --> 00:13:57.092
That's a separate analysis from whether or not
291
00:13:57.092 --> 00:13:58.980
we're gonna determine whether or not it's stale.
292
00:13:58.980 --> 00:14:00.181
And they may have a good reason to sit
293
00:14:00.181 --> 00:14:02.873
on it for months or years.
294
00:14:04.134 --> 00:14:07.590
I think I'd phrase it I guess differently.
295
00:14:07.590 --> 00:14:10.017
If they are simply sitting on information,
296
00:14:10.017 --> 00:14:11.949
if they wanna come back later
297
00:14:11.949 --> 00:14:13.864
and argue that there is probable cause,
298
00:14:13.864 --> 00:14:18.864
in most, in every other application of the law,
299
00:14:19.279 --> 00:14:23.123
when information has just sat and become old,
300
00:14:23.123 --> 00:14:28.049
it's often revived by some new fact
301
00:14:28.049 --> 00:14:31.380
that demonstrates that it is an ongoing act.
302
00:14:31.380 --> 00:14:33.577
And there's nothing here, after seven months
303
00:14:33.577 --> 00:14:37.009
to demonstrate any kind of an on-going act.
304
00:14:37.009 --> 00:14:39.266
They certainly do so at their peril.
305
00:14:39.266 --> 00:14:41.930
I guess that's your point.
306
00:14:41.930 --> 00:14:43.810
If they don't act on it right away.
307
00:14:43.810 --> 00:14:48.673
It could be that they get 30 of these tips a week.
308
00:14:48.673 --> 00:14:51.860
And we're looking at your snapshot.
309
00:14:51.860 --> 00:14:53.120
But that's irrelevant for your client,
310
00:14:53.120 --> 00:14:58.120
'Cause you're arguing probable cause as to your client.
311
00:14:58.480 --> 00:15:02.250
But we have to look at the nature of the crime
312
00:15:02.250 --> 00:15:05.270
and the nature of the item being searched for, correct?
313
00:15:05.270 --> 00:15:08.975
So the old analogy: Drugs moving in and out of houses,
314
00:15:08.975 --> 00:15:12.290
guns, collection of firearms, not so much.
315
00:15:12.290 --> 00:15:14.036
That's where we typically look at, right?
316
00:15:14.036 --> 00:15:19.036
I agree, and I thing firearms are in some ways...
317
00:15:19.570 --> 00:15:22.000
May I, I see I'm just about to run out of time?
318
00:15:22.000 --> 00:15:25.870
May I answer it Mr. Justice Gaziano's question?
319
00:15:25.870 --> 00:15:29.740
Firearms are, I think, in some ways apt in the sense
320
00:15:29.740 --> 00:15:33.305
that people that own firearms tend to wanna keep them.
321
00:15:33.305 --> 00:15:35.770
And there's some jurisprudence to that effect.
322
00:15:35.770 --> 00:15:38.580
And in the Commonwealth's brief,
323
00:15:38.580 --> 00:15:39.950
they site Commonwealth versus Hart.
324
00:15:39.950 --> 00:15:41.991
Which is a recent appeals court case.
325
00:15:41.991 --> 00:15:44.450
And in that case, they found that
326
00:15:44.450 --> 00:15:46.167
absent of any kind of indication
327
00:15:46.167 --> 00:15:51.000
that the possession was ongoing, 60 days was too much.
328
00:15:51.000 --> 00:15:54.470
I'm not necessarily saying 60 days is too much.
329
00:15:54.470 --> 00:15:56.730
I'm not sure whether there's a bright line rule.
330
00:15:56.730 --> 00:15:59.140
You also run against not binding on us.
331
00:15:59.140 --> 00:16:01.210
But there's a lot of circuit court decisions
332
00:16:01.210 --> 00:16:06.210
that say, because of predilections and characteristics
333
00:16:06.890 --> 00:16:09.382
of people that view child pornography,
334
00:16:09.382 --> 00:16:12.220
seems not to be a lot of time limits
335
00:16:12.220 --> 00:16:13.784
on staleness in those cases.
336
00:16:13.784 --> 00:16:14.761
Yes.
Not saying we're gonna
337
00:16:14.761 --> 00:16:18.900
go there but you run into that case law too, right?
338
00:16:18.900 --> 00:16:23.760
Yes, and that does bring me back to one final point.
339
00:16:23.760 --> 00:16:27.960
In the below end here, I've argued
340
00:16:27.960 --> 00:16:28.793
that there's no probable cause
341
00:16:28.793 --> 00:16:31.600
under article 14 in the 4th Amendment.
342
00:16:31.600 --> 00:16:34.774
To the extent that Your Honors find that the
343
00:16:34.774 --> 00:16:39.000
circuit precedent is unpersuasive,
344
00:16:39.000 --> 00:16:41.620
there's room under Article 14 to find
345
00:16:41.620 --> 00:16:43.222
that there's no probable cause.
346
00:16:43.222 --> 00:16:44.622
And if there are no further questions--
347
00:16:44.622 --> 00:16:45.730
On last question I have.
348
00:16:45.730 --> 00:16:48.970
What can we infer from the fact
349
00:16:48.970 --> 00:16:53.890
that this photo was uploaded to Skype?
350
00:16:53.890 --> 00:16:57.013
I think that's all we know from the affidavit, correct?
351
00:16:57.013 --> 00:16:59.190
Correct, and I--
So what do you say
352
00:16:59.190 --> 00:17:01.053
is a fair inference from that?
353
00:17:02.664 --> 00:17:05.746
I think the only fair inference from that is
354
00:17:05.746 --> 00:17:09.400
that it existed on a computer.
355
00:17:09.400 --> 00:17:11.530
And that it--
On his computer,
356
00:17:11.530 --> 00:17:12.846
or on a computer?
On a computer.
357
00:17:12.846 --> 00:17:17.846
On a computer that was connect to the IP address,
358
00:17:20.127 --> 00:17:22.168
associated with that home.
359
00:17:22.168 --> 00:17:26.770
And that that image came from being on that computer
360
00:17:26.770 --> 00:17:28.180
to being on the internet.
361
00:17:28.180 --> 00:17:29.510
That's all we know.
362
00:17:29.510 --> 00:17:31.530
Okay, when you say it's on a computer,
363
00:17:31.530 --> 00:17:34.516
can we infer that it was on a computer to be searched?
364
00:17:34.516 --> 00:17:38.750
Well they're looking to search
365
00:17:38.750 --> 00:17:40.460
all of the computers in the home.
366
00:17:40.460 --> 00:17:41.661
Right, right, but I mean,
367
00:17:41.661 --> 00:17:43.438
that's what I'm trying to get a since of.
368
00:17:43.438 --> 00:17:47.930
Do you agree that the uploading indicates
369
00:17:47.930 --> 00:17:50.100
that in one point in time, at the time
370
00:17:50.100 --> 00:17:52.800
of the uploading, at least, that photograph
371
00:17:52.800 --> 00:17:55.553
was on one of the computers in the home?
372
00:17:55.553 --> 00:17:59.210
Or it was on some electronic device
373
00:17:59.210 --> 00:18:01.635
that was connected to a network in that home.
374
00:18:01.635 --> 00:18:04.010
Okay, all right, thank you.
375
00:18:04.010 --> 00:18:05.010
Thank you Your Honors.
376
00:18:05.010 --> 00:18:05.883
Mr. Pell.
377
00:18:08.244 --> 00:18:09.880
Thank you Mr. Chief Justice.
378
00:18:09.880 --> 00:18:11.330
Good morning and may it please the court,
379
00:18:11.330 --> 00:18:13.808
Gabriel Pell, Assistant District Attorney from Middlesex,
380
00:18:13.808 --> 00:18:15.431
on behalf of the Commonwealth.
381
00:18:15.431 --> 00:18:17.670
The denial of the defense motion to suppress
382
00:18:17.670 --> 00:18:19.790
and the subsequent judgements of conviction
383
00:18:19.790 --> 00:18:21.880
arising from the conditional plea afterwards
384
00:18:21.880 --> 00:18:23.740
should all be affirmed because his challenges
385
00:18:23.740 --> 00:18:25.050
to the warrant fail.
386
00:18:25.050 --> 00:18:27.497
And as Justices Lowy and Gaziano both pointed out,
387
00:18:27.497 --> 00:18:29.630
this is not a question of whether police
388
00:18:29.630 --> 00:18:30.500
sat on the information.
389
00:18:30.500 --> 00:18:33.000
It's simply a question of when they went to search,
390
00:18:33.000 --> 00:18:34.930
was there probable cause to believe
391
00:18:34.930 --> 00:18:37.600
that the evidence they were looking for was still there?
392
00:18:37.600 --> 00:18:41.163
But what about the Chief's last question to your brother?
393
00:18:42.180 --> 00:18:46.163
If it's not clear what computer the image was uploaded from,
394
00:18:48.050 --> 00:18:50.358
is there really probable cause to believe that it was
395
00:18:50.358 --> 00:18:53.610
a computer that belonged to him?
396
00:18:53.610 --> 00:18:55.132
The ownership of the computer,
397
00:18:55.132 --> 00:18:57.470
and I think my brother is upfront about this.
398
00:18:57.470 --> 00:18:59.240
The identity of the target at the time
399
00:18:59.240 --> 00:19:01.260
that the police go to search is irrelevant.
400
00:19:01.260 --> 00:19:02.660
They don't know who it is at that point.
401
00:19:02.660 --> 00:19:04.562
They know someone utilizing the IP address
402
00:19:04.562 --> 00:19:06.970
associated with a Verizon service address
403
00:19:06.970 --> 00:19:09.048
uploaded a file to Skype.
404
00:19:09.048 --> 00:19:11.770
That gave them probable cause to go into the residence
405
00:19:11.770 --> 00:19:14.500
and try to find out what computer had uploaded it.
406
00:19:14.500 --> 00:19:16.460
To try to find the file itself.
407
00:19:16.460 --> 00:19:18.910
And try to find the identity of the user
408
00:19:18.910 --> 00:19:20.690
who was using that IP address.
409
00:19:20.690 --> 00:19:22.460
And again, it wasn't litigated.
410
00:19:22.460 --> 00:19:24.540
I think my brother did concede it below.
411
00:19:24.540 --> 00:19:29.086
But the identity of the user isn't relevant at that point.
412
00:19:29.086 --> 00:19:31.900
It's only a question of whether or not
413
00:19:31.900 --> 00:19:33.324
the information is still stale.
414
00:19:33.324 --> 00:19:35.291
Is still fresh seven months later.
415
00:19:35.291 --> 00:19:38.050
Well I guess it does matter though,
416
00:19:38.050 --> 00:19:39.910
what computer it came off of, right, or no?
417
00:19:39.910 --> 00:19:41.100
Well so one of the things that the
418
00:19:41.100 --> 00:19:42.520
affiant did in his affidavit.
419
00:19:42.520 --> 00:19:43.790
And it's a pretty lengthy affidavit.
420
00:19:43.790 --> 00:19:45.970
Is he went and he surveilled that residence.
421
00:19:45.970 --> 00:19:48.457
And he said there are no open unsecured networks there.
422
00:19:48.457 --> 00:19:50.500
And so that supports the inference
423
00:19:50.500 --> 00:19:52.400
that whoever was using that IP address
424
00:19:52.400 --> 00:19:55.775
was using it with the password.
425
00:19:55.775 --> 00:19:57.650
So it's probably, and we're talking
426
00:19:57.650 --> 00:19:59.030
about probabilities here throughout.
427
00:19:59.030 --> 00:20:00.790
I'm not gonna be able to say it enough times.
428
00:20:00.790 --> 00:20:02.810
We don't have to exclude all the hypotheses.
429
00:20:02.810 --> 00:20:04.950
So somebody in that residence used
430
00:20:04.950 --> 00:20:06.520
the IP address to upload to Skype.
431
00:20:06.520 --> 00:20:07.660
That's where we start.
432
00:20:07.660 --> 00:20:09.770
And then the question is, seven months later,
433
00:20:09.770 --> 00:20:11.650
is that information still sufficiently fresh?
434
00:20:11.650 --> 00:20:13.599
And it is, both because of the profile
435
00:20:13.599 --> 00:20:15.770
of child pornography collectors,
436
00:20:15.770 --> 00:20:16.937
and because of, as Judge Posner
437
00:20:16.937 --> 00:20:18.680
recognized in the 7th circuit;
438
00:20:18.680 --> 00:20:20.610
basically, the way that the technology works
439
00:20:20.610 --> 00:20:21.812
and the way we use the technology.
440
00:20:21.812 --> 00:20:23.820
So I would like to talk about--
441
00:20:23.820 --> 00:20:25.510
Before you leave that, so okay,
442
00:20:25.510 --> 00:20:30.413
so you say because they're password protected internet
443
00:20:30.413 --> 00:20:32.483
at this house, you can--
444
00:20:32.483 --> 00:20:33.760
That the inference from him saying
445
00:20:33.760 --> 00:20:35.350
there's no open unsecured, yeah.
446
00:20:35.350 --> 00:20:37.982
So I just wanna make sure I understand.
447
00:20:37.982 --> 00:20:39.147
'Cause we've got that fact.
448
00:20:39.147 --> 00:20:40.844
And we have that's it's uploaded.
449
00:20:40.844 --> 00:20:42.915
What is the significance between uploaded
450
00:20:42.915 --> 00:20:44.309
and downloaded then?
451
00:20:44.309 --> 00:20:47.040
Sure, I think the significance of uploaded,
452
00:20:47.040 --> 00:20:49.270
and some of the cases recognize it explicitly.
453
00:20:49.270 --> 00:20:50.500
United States versus Chezem.
454
00:20:50.500 --> 00:20:52.480
And there's a state case that I site in my brief
455
00:20:52.480 --> 00:20:54.590
is that if you're uploading a file,
456
00:20:54.590 --> 00:20:56.800
the common sense inference, not just beyond,
457
00:20:56.800 --> 00:20:57.920
way beyond probable cause is
458
00:20:57.920 --> 00:20:59.800
that you already possess that file.
459
00:20:59.800 --> 00:21:00.814
If you downloaded it, the inference is
460
00:21:00.814 --> 00:21:03.150
you found it and you put it on your computer,
461
00:21:03.150 --> 00:21:04.737
or on a network drive, or on the cloud.
462
00:21:04.737 --> 00:21:07.510
By the way, and that's my common sense.
463
00:21:07.510 --> 00:21:08.960
But I'm not an IT professional.
464
00:21:08.960 --> 00:21:11.062
Would an IT professional agree with that?
465
00:21:11.062 --> 00:21:12.292
You know, one of the things that I know
466
00:21:12.292 --> 00:21:14.440
is that I'm also not an IT professional.
467
00:21:14.440 --> 00:21:16.359
And I think the world, the universe that we're talking
468
00:21:16.359 --> 00:21:17.957
about is the common sense inferences
469
00:21:17.957 --> 00:21:20.217
that a clerk magistrate reviewing an application
470
00:21:20.217 --> 00:21:22.520
for a search warrant would have in this court
471
00:21:22.520 --> 00:21:23.460
under and open review.
472
00:21:23.460 --> 00:21:24.654
And I'm just pushing you a little bit.
473
00:21:24.654 --> 00:21:26.600
I'm not trying to be difficult here.
474
00:21:26.600 --> 00:21:29.450
But people who are dealing in child porn
475
00:21:29.450 --> 00:21:31.802
on the internet tend to be pretty good computer users
476
00:21:31.802 --> 00:21:33.427
'cause they're protecting themselves.
477
00:21:33.427 --> 00:21:37.193
So do we draw, I mean 'cause--
478
00:21:37.193 --> 00:21:39.330
I would not agree with that Justice Kafker--
479
00:21:39.330 --> 00:21:44.330
I mean, this guys got a number on the picture.
480
00:21:44.750 --> 00:21:49.320
He's got a different name on the account, right?
481
00:21:49.320 --> 00:21:52.745
He's not completely unsophisticated with a computer.
482
00:21:52.745 --> 00:21:55.980
I just don't think we can generalize from that.
483
00:21:55.980 --> 00:21:57.430
You're generalizing the other way.
484
00:21:57.430 --> 00:21:59.860
So I'm just trying to make sure I understand--
485
00:21:59.860 --> 00:22:01.620
I think what we can generalize about people
486
00:22:01.620 --> 00:22:02.671
who possess child pornography.
487
00:22:02.671 --> 00:22:04.917
And it think that this is the important thing is,
488
00:22:04.917 --> 00:22:06.298
and the importance of the collector inference
489
00:22:06.298 --> 00:22:09.030
is that that means that somebody has come
490
00:22:09.030 --> 00:22:10.550
in contact with it intentionally,
491
00:22:10.550 --> 00:22:11.770
because they're interested in it,
492
00:22:11.770 --> 00:22:14.120
such that if they have a file,
493
00:22:14.120 --> 00:22:15.370
they're either gonna keep that file.
494
00:22:15.370 --> 00:22:17.240
Or if by some chance they don't have that file
495
00:22:17.240 --> 00:22:18.851
they're gonna replace it by acquiring another one.
496
00:22:18.851 --> 00:22:20.980
Can we draw that inference,
497
00:22:20.980 --> 00:22:22.726
because this is a particularly explicit
498
00:22:22.726 --> 00:22:25.410
piece of child pornography, right?
499
00:22:25.410 --> 00:22:28.557
We have an open shot of the child's private.
500
00:22:28.557 --> 00:22:31.330
And then I'm not gonna start kind of gauging
501
00:22:31.330 --> 00:22:33.260
the spectrum of these but they get far worse.
502
00:22:33.260 --> 00:22:34.220
And I think that's one of the things
503
00:22:34.220 --> 00:22:35.300
that's important to recognize here,
504
00:22:35.300 --> 00:22:36.864
is when we talk about child pornography,
505
00:22:36.864 --> 00:22:39.391
there's a tendency to do so in innocuous terms
506
00:22:39.391 --> 00:22:40.975
that gloss over it's true nature.
507
00:22:40.975 --> 00:22:43.040
And I'm guilty of this too, 'cause in my brief
508
00:22:43.040 --> 00:22:44.650
to save space against the page limit,
509
00:22:44.650 --> 00:22:46.149
I said CP a bunch of times.
510
00:22:46.149 --> 00:22:47.690
But even spelling it out doesn't
511
00:22:47.690 --> 00:22:49.656
adequately convey what this material is.
512
00:22:49.656 --> 00:22:51.923
And what it is it memorializes instances
513
00:22:51.923 --> 00:22:54.386
of child sexual abuse and child rape.
514
00:22:54.386 --> 00:22:56.400
And it's probably more properly referred
515
00:22:56.400 --> 00:22:59.260
to as child sexual abuse imagery, child rape imagery.
516
00:22:59.260 --> 00:23:00.610
I get the rhetoric.
517
00:23:00.610 --> 00:23:02.694
I'm just trying to understand again,
518
00:23:02.694 --> 00:23:04.760
the science a little bit.
519
00:23:04.760 --> 00:23:09.760
So we have a pretty explicit picture of child pornography.
520
00:23:10.540 --> 00:23:14.680
We have an upload rather than a download.
521
00:23:14.680 --> 00:23:18.320
And we have a secured network at the house.
522
00:23:18.320 --> 00:23:21.190
So those are the key facts we have in terms
523
00:23:21.190 --> 00:23:23.620
of whether this is gonna be retained or not?
524
00:23:23.620 --> 00:23:24.950
They are and I just have to say, Your Honor,
525
00:23:24.950 --> 00:23:25.860
it's not just rhetoric.
526
00:23:25.860 --> 00:23:27.140
And I mean, Justice Gaziano recognized
527
00:23:27.140 --> 00:23:28.130
in Commonwealth versus Feliz,
528
00:23:28.130 --> 00:23:29.050
which I didn't site in my brief.
529
00:23:29.050 --> 00:23:32.960
But this material, it's harmful, it re-victimizes people--
530
00:23:32.960 --> 00:23:34.409
We all know it's despicable stuff.
531
00:23:34.409 --> 00:23:36.271
That's not what--
But that's--
532
00:23:36.271 --> 00:23:38.476
We're trying to figure out though,
533
00:23:38.476 --> 00:23:41.076
how likely it is to be retained--
534
00:23:41.076 --> 00:23:44.100
It's not standard internet fair, is the point.
535
00:23:44.100 --> 00:23:45.643
It's just possessing this material.
536
00:23:45.643 --> 00:23:47.450
Because of that harm has been made
537
00:23:47.450 --> 00:23:48.820
illegal just to possess it.
538
00:23:48.820 --> 00:23:51.160
It's taboo, it's public shame inducing.
539
00:23:51.160 --> 00:23:52.604
It's potentially liberty depriving.
540
00:23:52.604 --> 00:23:55.117
So the idea is that, if you run those risks,
541
00:23:55.117 --> 00:23:57.359
how probable is it that you're gonna hold on to it?
542
00:23:57.359 --> 00:23:59.926
Right, some of the cases, and I don't know.
543
00:23:59.926 --> 00:24:04.590
You only have to defend this affidavit.
544
00:24:04.590 --> 00:24:07.309
But do you agree that there's no such thing
545
00:24:07.309 --> 00:24:09.121
as forever probable cause?
546
00:24:09.121 --> 00:24:12.030
Because when we look at the cases that talked
547
00:24:12.030 --> 00:24:15.404
about collectors, and hoarders, and predilection.
548
00:24:15.404 --> 00:24:18.679
And we look a the cases that say things are never deleted.
549
00:24:18.679 --> 00:24:21.597
If you take that to one extreme
550
00:24:21.597 --> 00:24:26.597
you would say, there's probable cause two years out, right?
551
00:24:27.100 --> 00:24:27.933
Sure.
552
00:24:27.933 --> 00:24:29.452
So how far is to far?
553
00:24:29.452 --> 00:24:31.539
Well to answer the first part of your question,
554
00:24:31.539 --> 00:24:33.736
I don't agree that it's forever probable cause.
555
00:24:33.736 --> 00:24:35.270
And I don't know if you're gonna find
556
00:24:35.270 --> 00:24:37.297
this satisfying or not, but I think the only answer
557
00:24:37.297 --> 00:24:39.270
is that what this court recognizes
558
00:24:39.270 --> 00:24:40.963
in Commonwealth versus Achu years and years ago
559
00:24:40.963 --> 00:24:43.060
is that each case has to be determined
560
00:24:43.060 --> 00:24:44.655
on it's own facts when it comes to staleness.
561
00:24:44.655 --> 00:24:46.262
That we don't like bright line rules.
562
00:24:46.262 --> 00:24:47.910
'Cause that's inconsistent with the
563
00:24:47.910 --> 00:24:49.290
touch tone of reasonableness.
564
00:24:49.290 --> 00:24:51.398
And as the 1st Circuit and other courts have recognized,
565
00:24:51.398 --> 00:24:53.564
staleness is not simply a matter of counting days.
566
00:24:53.564 --> 00:24:56.672
So every case has to be evaluated on it's facts.
567
00:24:56.672 --> 00:24:59.604
In the 2nd Circuit's of the United States versus Raymonda,
568
00:24:59.604 --> 00:25:02.260
it's not just we say, "Oh, digital child pornography,
569
00:25:02.260 --> 00:25:03.680
you can look for this forever."
570
00:25:03.680 --> 00:25:05.140
You look at the facts, and in that case
571
00:25:05.140 --> 00:25:06.760
all you had was the webpage view,
572
00:25:06.760 --> 00:25:08.490
where there were thumbnails of child pornography
573
00:25:08.490 --> 00:25:09.770
that were never downloaded.
574
00:25:09.770 --> 00:25:11.580
So obviously, the staleness of the analysis there
575
00:25:11.580 --> 00:25:13.330
is gonna be very different from a case
576
00:25:13.330 --> 00:25:15.640
where you can prove at least to the extent
577
00:25:15.640 --> 00:25:17.210
of probable cause in the affidavit,
578
00:25:17.210 --> 00:25:18.857
that a user took the next affirmative step--
579
00:25:18.857 --> 00:25:20.835
The strange part about Raymonda and some of that
580
00:25:20.835 --> 00:25:23.870
is it's almost like a morality play
581
00:25:23.870 --> 00:25:27.426
where it says this violation wasn't that bad.
582
00:25:27.426 --> 00:25:32.070
So we're gonna give you pass, versus, someone that hoards.
583
00:25:32.070 --> 00:25:34.220
So I mean, that's a charging decision,
584
00:25:34.220 --> 00:25:35.890
not a probable cause decision.
585
00:25:35.890 --> 00:25:40.890
So if in Raymonda, you could get evidence of the thumbnails.
586
00:25:40.990 --> 00:25:43.200
And I think the language of Raymonda is,
587
00:25:43.200 --> 00:25:47.070
well, a user who just has inadvertently would be
588
00:25:47.070 --> 00:25:48.920
disgusted and would delete it.
589
00:25:48.920 --> 00:25:50.240
But then you go to the other cases and say,
590
00:25:50.240 --> 00:25:51.877
well, it can never be deleted,
591
00:25:51.877 --> 00:25:53.680
and it's illegal to possess.
592
00:25:53.680 --> 00:25:55.643
So how does that play in without us sayin',
593
00:25:55.643 --> 00:25:58.660
"We like this, we don't wanna prosecute
594
00:25:58.660 --> 00:26:00.920
these type of offenders.
595
00:26:00.920 --> 00:26:03.970
We'll just come at it inadvertently 'cause it's unfair.
596
00:26:03.970 --> 00:26:07.120
Versus, a cold probable cause determination.
597
00:26:07.120 --> 00:26:08.650
I don't think it's a charging decision,
598
00:26:08.650 --> 00:26:11.220
I think it's about the technology.
599
00:26:11.220 --> 00:26:12.910
And so, I read a bunch of these cases.
600
00:26:12.910 --> 00:26:13.854
I don't remember how much Raymonda
601
00:26:13.854 --> 00:26:15.190
gets into this, specifically.
602
00:26:15.190 --> 00:26:17.910
But the idea is, if all you do it on a webpage
603
00:26:17.910 --> 00:26:19.350
it's not gonna of to your hard drive.
604
00:26:19.350 --> 00:26:21.205
It may go into your temporary internet folder.
605
00:26:21.205 --> 00:26:22.754
But that's a different place where things
606
00:26:22.754 --> 00:26:25.700
that get deleted are gonna be rewritten much more quickly.
607
00:26:25.700 --> 00:26:27.321
And so, when we talk about probable cause
608
00:26:27.321 --> 00:26:29.862
based on how the technology works, it's not a pass,
609
00:26:29.862 --> 00:26:32.760
it's not because it's a different level of culpability.
610
00:26:32.760 --> 00:26:34.950
It's because if you didn't download it to your hard drive.
611
00:26:34.950 --> 00:26:36.040
Raymonda was not downloaded.
612
00:26:36.040 --> 00:26:37.680
Raymonda was not downloaded.
613
00:26:37.680 --> 00:26:40.440
That's the thing, as they say, that the webpage was viewed.
614
00:26:40.440 --> 00:26:42.410
But as I recall, they weren't even sure
615
00:26:42.410 --> 00:26:44.050
if they had enlarged the thumbnails.
616
00:26:44.050 --> 00:26:45.430
But even enlarging the them would be different
617
00:26:45.430 --> 00:26:46.835
than saying, "Put this on my computer."
618
00:26:46.835 --> 00:26:49.299
But if you have an upload, to go to one of the questions
619
00:26:49.299 --> 00:26:51.640
we started with, it means that it is already
620
00:26:51.640 --> 00:26:53.990
on either a drive, on your device itself,
621
00:26:53.990 --> 00:26:56.170
or that you've downloaded it on a thumb drive.
622
00:26:56.170 --> 00:26:58.300
That was the Chief's question to your brother.
623
00:26:58.300 --> 00:27:01.250
Which is, does it necessarily mean
624
00:27:01.250 --> 00:27:03.281
it's on your computer to download?
625
00:27:03.281 --> 00:27:04.661
What's your answer to that?
626
00:27:04.661 --> 00:27:05.980
I mean to upload it.
627
00:27:05.980 --> 00:27:06.859
My first answer is that nothing
628
00:27:06.859 --> 00:27:08.543
that I'm gonna talk about means necessarily.
629
00:27:08.543 --> 00:27:10.680
Because it's a probable cause analysis.
630
00:27:10.680 --> 00:27:12.660
So we're not gonna exclude every potential hypothesis
631
00:27:12.660 --> 00:27:14.860
and indulge in possibilities.
632
00:27:14.860 --> 00:27:17.180
But from a commons sense inference from all of us,
633
00:27:17.180 --> 00:27:18.890
we're not IT professionals using it as
634
00:27:18.890 --> 00:27:21.200
if you upload a file, it means it's accessible
635
00:27:21.200 --> 00:27:22.300
to you from a directory.
636
00:27:22.300 --> 00:27:23.956
It can be a directory on your device.
637
00:27:23.956 --> 00:27:25.520
It could be a thumb drive that
638
00:27:25.520 --> 00:27:26.609
you've plugged into your device.
639
00:27:26.609 --> 00:27:28.466
It could be a cloud solution that
640
00:27:28.466 --> 00:27:30.410
you can access through your device.
641
00:27:30.410 --> 00:27:32.712
But how much of that is in the affidavit?
642
00:27:32.712 --> 00:27:34.988
Or said another way, when you say
643
00:27:34.988 --> 00:27:37.890
we're all not IT professionals.
644
00:27:37.890 --> 00:27:40.460
How much, if you upload it you said,
645
00:27:40.460 --> 00:27:42.991
there's an inference that you possess it?
646
00:27:42.991 --> 00:27:47.510
So does your average neutral
647
00:27:47.510 --> 00:27:50.390
and detached magistrate understand that concept?
648
00:27:50.390 --> 00:27:52.470
I believe so because I think, you know,
649
00:27:52.470 --> 00:27:54.600
at this point, we're all using computers all the time.
650
00:27:54.600 --> 00:27:56.840
So it you're using email, and you go to attach
651
00:27:56.840 --> 00:27:59.731
something to your email, consider that an upload process.
652
00:27:59.731 --> 00:28:01.370
And if you're doing it to Skype,
653
00:28:01.370 --> 00:28:02.669
the difference is the client isn't...
654
00:28:02.669 --> 00:28:05.160
The email program might be on your computer.
655
00:28:05.160 --> 00:28:07.810
But if you do it on Gmail, you're accessing that on the web,
656
00:28:07.810 --> 00:28:09.882
so your attachment isn't uploaded, as I understand it.
657
00:28:09.882 --> 00:28:11.800
The ordinary magistrate is also
658
00:28:11.800 --> 00:28:13.860
the ordinary computer user?
659
00:28:13.860 --> 00:28:15.860
That's an interesting question.
660
00:28:15.860 --> 00:28:18.800
I think what we have to think is the clerk magistrate
661
00:28:18.800 --> 00:28:21.134
can draw average, common sense inferences
662
00:28:21.134 --> 00:28:24.190
that are available to the average user.
663
00:28:24.190 --> 00:28:26.290
And I think that's true in all aspects.
664
00:28:26.290 --> 00:28:27.690
Not just digital warrants.
665
00:28:27.690 --> 00:28:29.930
But you know, going back to Commonwealth versus Gentile,
666
00:28:29.930 --> 00:28:32.300
where we can say that the clerk magistrate
667
00:28:32.300 --> 00:28:34.105
can infer facts about the geography of the area
668
00:28:34.105 --> 00:28:36.180
even if they're not in the affidavit.
669
00:28:36.180 --> 00:28:38.070
Or Commonwealth versus Achu, where we say
670
00:28:38.070 --> 00:28:40.920
you can infer that locker at a bus station
671
00:28:40.920 --> 00:28:42.380
was rented for a short time.
672
00:28:42.380 --> 00:28:45.400
Does any particular clerk magistrate make that inference?
673
00:28:45.400 --> 00:28:47.430
Maybe, maybe not, but it's from the general pool
674
00:28:47.430 --> 00:28:48.437
of knowledge that they can draw on,
675
00:28:48.437 --> 00:28:49.630
and this court can draw on.
676
00:28:49.630 --> 00:28:51.953
Can I ask you, probably a stupid question?
677
00:28:51.953 --> 00:28:53.260
When I--
There are
678
00:28:53.260 --> 00:28:55.690
no stupid questions.
When I read my newspaper
679
00:28:55.690 --> 00:28:58.641
in the morning and it lets me copy a story,
680
00:28:58.641 --> 00:29:01.036
and then send it to somebody else,
681
00:29:01.036 --> 00:29:03.565
am I uploading that story?
682
00:29:03.565 --> 00:29:05.955
Like, I'm sending and email.
683
00:29:05.955 --> 00:29:08.391
I wanna send my kid the story.
684
00:29:08.391 --> 00:29:11.880
So I read the story in the "Globe" or the "Harold,"
685
00:29:11.880 --> 00:29:15.670
or the "Worcester Telegram," and I hit on the thing
686
00:29:15.670 --> 00:29:16.820
that allows me to send.
687
00:29:18.005 --> 00:29:18.838
Am I uploading or downloading that thing.
688
00:29:18.838 --> 00:29:20.070
I could give you my best guess,
689
00:29:20.070 --> 00:29:21.500
but that's beyond kind of the facts
690
00:29:21.500 --> 00:29:22.333
that we're dealing with here.
691
00:29:22.333 --> 00:29:24.481
But it relates to that common sense
692
00:29:24.481 --> 00:29:26.073
thing you're talking about.
693
00:29:26.073 --> 00:29:28.750
Our understanding of what uploading
694
00:29:28.750 --> 00:29:29.930
versus downloading means.
695
00:29:29.930 --> 00:29:30.900
From the case law I would say
696
00:29:30.900 --> 00:29:33.030
you're not downloading that, and you're not uploading it.
697
00:29:33.030 --> 00:29:35.316
You're using the webpage service
698
00:29:35.316 --> 00:29:37.960
to send it from that webpage.
699
00:29:37.960 --> 00:29:39.102
There might be--
Neither a download
700
00:29:39.102 --> 00:29:41.389
or an upload, it's somethin' else?
701
00:29:41.389 --> 00:29:42.320
It's something else.
702
00:29:42.320 --> 00:29:45.450
Your viewing of that webpage based on the Raymonda analogy
703
00:29:45.450 --> 00:29:47.430
is going to be tracked on your computer.
704
00:29:47.430 --> 00:29:48.610
There might be temporary internet
705
00:29:48.610 --> 00:29:49.890
files that result from that.
706
00:29:49.890 --> 00:29:51.760
There could be a cookie that results from that.
707
00:29:51.760 --> 00:29:53.402
But your sending it is you're actually interacting
708
00:29:53.402 --> 00:29:56.510
with that newspaper's web server.
709
00:29:56.510 --> 00:29:58.410
As opposed to bringing something to your server.
710
00:29:58.410 --> 00:29:59.690
You could do it a different way.
711
00:29:59.690 --> 00:30:02.980
If you set I wanna print this to PDF and download it,
712
00:30:02.980 --> 00:30:04.287
and then send that to your child.
713
00:30:04.287 --> 00:30:06.070
Then you'd have downloaded it.
714
00:30:06.070 --> 00:30:07.860
And then it would be on your hard drive.
715
00:30:07.860 --> 00:30:09.930
And that would a different kind of a digital
716
00:30:09.930 --> 00:30:12.385
fingerprint or footprint than if you had just viewed it.
717
00:30:12.385 --> 00:30:16.568
So let's examine there reach of the appropriate inference.
718
00:30:16.568 --> 00:30:19.083
Okay, I take your point that need not be certain.
719
00:30:19.934 --> 00:30:24.934
So you say that then a reasonable magistrate
720
00:30:25.150 --> 00:30:29.800
reading this affidavit can say that it was
721
00:30:29.800 --> 00:30:33.331
in the possession, or that it was on one of the devices
722
00:30:33.331 --> 00:30:36.640
at the time that it was sent, correct?
723
00:30:36.640 --> 00:30:39.640
On the device or accessible from the device running Skype.
724
00:30:39.640 --> 00:30:41.500
Accessible from a cloud solution,
725
00:30:41.500 --> 00:30:43.870
or thumb drive, or an external hard drive.
726
00:30:43.870 --> 00:30:45.930
But yes, accessible through that same device.
727
00:30:45.930 --> 00:30:47.610
And when you say accessible from the cloud,
728
00:30:47.610 --> 00:30:49.690
do you mean accessible from information
729
00:30:49.690 --> 00:30:52.725
in the possession of somebody in that household
730
00:30:52.725 --> 00:30:55.000
that's stored in the cloud?
731
00:30:55.000 --> 00:30:56.840
The person sitting at the console, yes.
732
00:30:56.840 --> 00:31:01.520
Okay, so that it may not be physically on the hard drive.
733
00:31:01.520 --> 00:31:03.576
It could be in the cloud, but accessible?
734
00:31:03.576 --> 00:31:07.844
Okay, and so, you know that whoever did
735
00:31:07.844 --> 00:31:12.844
that had access to that photograph and chose to send it.
736
00:31:13.800 --> 00:31:16.740
Do we know that from the fact that it was uploaded to Skype?
737
00:31:16.740 --> 00:31:19.325
We can infer an intent to share it to a 3rd party.
738
00:31:19.325 --> 00:31:20.690
We know that is was uploaded.
739
00:31:20.690 --> 00:31:23.300
We don't know that it was sent.
740
00:31:23.300 --> 00:31:24.450
And we don't know who the recipient was.
741
00:31:24.450 --> 00:31:25.283
But it think...
742
00:31:25.283 --> 00:31:27.010
And I have to address this, as my brother was saying,
743
00:31:27.010 --> 00:31:28.110
we don't know much about Skype.
744
00:31:28.110 --> 00:31:31.250
Page 47 of the record, Skype is an application
745
00:31:31.250 --> 00:31:33.110
that facilitates video and voice chat.
746
00:31:33.110 --> 00:31:35.700
But it says explicitly, it also says you can exchange
747
00:31:35.700 --> 00:31:38.175
digital documents, such as images, and text, and video.
748
00:31:38.175 --> 00:31:40.244
And you can transmit both text and video messages.
749
00:31:40.244 --> 00:31:44.120
So it is a communication platform is the clear inference.
750
00:31:44.120 --> 00:31:48.920
So what else to you think can be inferred?
751
00:31:48.920 --> 00:31:51.730
You refer to it as the profile of the collector.
752
00:31:51.730 --> 00:31:54.342
Is it your view that you can infer
753
00:31:54.342 --> 00:31:56.981
that if a person does this once,
754
00:31:56.981 --> 00:32:01.980
that they therefore, are a collectors of child porn?
755
00:32:01.980 --> 00:32:03.340
And do you need that inference
756
00:32:03.340 --> 00:32:04.730
in order to get probable cause?
757
00:32:04.730 --> 00:32:06.602
We do not need that inference to get probable cause.
758
00:32:06.602 --> 00:32:09.960
I think you can infer from it from these facts
759
00:32:09.960 --> 00:32:11.470
that somebody did this intentionally.
760
00:32:11.470 --> 00:32:13.380
And it does satisfy two of the scenarios
761
00:32:13.380 --> 00:32:14.504
that the 2nd Circuit identified
762
00:32:14.504 --> 00:32:16.480
in the United States versus Raymonda.
763
00:32:16.480 --> 00:32:18.599
An upload to Skype infers that there is
764
00:32:18.599 --> 00:32:21.525
at least an attempt at redistribution after prior access.
765
00:32:21.525 --> 00:32:23.630
That's one collector based inference.
766
00:32:23.630 --> 00:32:24.760
And the other is that you've done
767
00:32:24.760 --> 00:32:26.964
a series of sufficiently complicated steps
768
00:32:26.964 --> 00:32:29.577
to show intentional interaction with it.
769
00:32:29.577 --> 00:32:31.374
But we don't need the collector inference here.
770
00:32:31.374 --> 00:32:33.440
We just need to know how the technology works.
771
00:32:33.440 --> 00:32:35.960
As Judge Posner recognized, a realistic understanding
772
00:32:35.960 --> 00:32:38.740
of modern computer technology and usual behavior users.
773
00:32:38.740 --> 00:32:41.047
That's the files don't get deleted even if you try.
774
00:32:41.047 --> 00:32:42.300
So it doesn't matter if you're
775
00:32:42.300 --> 00:32:43.458
affirmatively trying to preserve them.
776
00:32:43.458 --> 00:32:46.884
It's that people backup their data on external drives.
777
00:32:46.884 --> 00:32:48.530
It's that the size of the drives
778
00:32:48.530 --> 00:32:49.660
are getting bigger and bigger.
779
00:32:49.660 --> 00:32:50.670
So there's no real reason to delete.
780
00:32:50.670 --> 00:32:53.020
And even if you do, because a file
781
00:32:53.020 --> 00:32:54.162
strays until it's overwritten,
782
00:32:54.162 --> 00:32:56.120
it's less likely it's gonna be overwritten.
783
00:32:56.120 --> 00:32:58.742
So everyone understands that point
784
00:32:58.742 --> 00:33:02.340
and it answers the question that Judge Lowy
785
00:33:02.340 --> 00:33:04.290
obviously was answering when he said it was uploaded.
786
00:33:04.290 --> 00:33:07.394
But everything that you just said,
787
00:33:07.394 --> 00:33:12.394
does Joe assistant clerk magistrate in the District Court,
788
00:33:14.404 --> 00:33:19.404
who might not have a computer on her desk, know this stuff?
789
00:33:21.818 --> 00:33:24.008
What's the limit of the inference?
790
00:33:24.008 --> 00:33:25.970
Those last three factors that I recited,
791
00:33:25.970 --> 00:33:27.370
they actually are in the affidavit.
792
00:33:27.370 --> 00:33:30.448
The deleted files not being gone until they're overwritten,
793
00:33:30.448 --> 00:33:31.637
and the increasing sized of hard drives.
794
00:33:31.637 --> 00:33:33.976
Right, right, but the core issue
795
00:33:33.976 --> 00:33:38.976
is the inference that if you uploaded it you possessed it?
796
00:33:39.280 --> 00:33:41.070
That's the core inference, right?
797
00:33:41.070 --> 00:33:42.515
I think multiple cases recognize that you can't
798
00:33:42.515 --> 00:33:46.330
really expect the affiant to set set out from the ground up,
799
00:33:46.330 --> 00:33:48.540
exactly every part about how computers work.
800
00:33:48.540 --> 00:33:53.328
Every part, I mean, there's two lines in the ruling.
801
00:33:53.328 --> 00:33:55.560
And I think the first line was something.
802
00:33:55.560 --> 00:33:57.327
This is uploaded not downloaded.
803
00:33:57.327 --> 00:33:59.190
Something like this, not everything.
804
00:33:59.190 --> 00:34:00.740
It's the key point.
805
00:34:00.740 --> 00:34:02.962
Right, well I think again, today most users
806
00:34:02.962 --> 00:34:05.200
would understand what it means to download
807
00:34:05.200 --> 00:34:06.680
something is to take it from the internet
808
00:34:06.680 --> 00:34:07.531
and put it on your computer.
809
00:34:07.531 --> 00:34:09.406
And to upload, to take it from your computer
810
00:34:09.406 --> 00:34:11.494
and put it back out there for someone else to have it.
811
00:34:11.494 --> 00:34:13.640
And as United States versus Chezem,
812
00:34:13.640 --> 00:34:15.773
the 9th Circuit recognized, that's a key distinction.
813
00:34:15.773 --> 00:34:18.828
I think it's Dinath in a state based case
814
00:34:18.828 --> 00:34:20.184
also recognized that distinction
815
00:34:20.184 --> 00:34:22.392
between downloading and uploading is key.
816
00:34:22.392 --> 00:34:25.120
And we have to let clerk magistrates
817
00:34:25.120 --> 00:34:27.188
and reviewing courts make those inferences
818
00:34:27.188 --> 00:34:30.340
from common sense and the average
819
00:34:30.340 --> 00:34:31.417
computer user's experience.
820
00:34:31.417 --> 00:34:33.347
I see that my time is up.
821
00:34:33.347 --> 00:34:34.420
Indeed it is.
822
00:34:34.420 --> 00:34:35.781
Can I press you on one last point
823
00:34:35.781 --> 00:34:38.332
in regard to the durational issue?
824
00:34:38.332 --> 00:34:41.323
So let's assume that somebody decides
825
00:34:41.323 --> 00:34:43.402
they're going to get rid of their computer
826
00:34:43.402 --> 00:34:44.973
and get a newer model.
827
00:34:46.275 --> 00:34:49.007
The affidavit says, well, they're not gonna...
828
00:34:49.007 --> 00:34:50.640
They may throw away the computer,
829
00:34:50.640 --> 00:34:54.165
but they're not gonna throw away all the stored data.
830
00:34:54.165 --> 00:34:59.165
They're going then to some other storage medium,
831
00:34:59.660 --> 00:35:01.350
and either put it back into the new computer
832
00:35:01.350 --> 00:35:02.633
or store it separately.
833
00:35:03.913 --> 00:35:07.038
If it had been deleted from the old computer,
834
00:35:07.038 --> 00:35:12.038
when you basically, gather up the data from the hard disk,
835
00:35:14.010 --> 00:35:16.683
are you gathering data, or only saved files?
836
00:35:17.580 --> 00:35:20.920
Again, that's a technical question.
837
00:35:20.920 --> 00:35:23.170
It's possible that if you migrated old data,
838
00:35:23.170 --> 00:35:25.030
that then had a deleted file on it.
839
00:35:25.030 --> 00:35:27.020
And I know this from reading some of the cases for this.
840
00:35:27.020 --> 00:35:28.180
I don't wanna go too far outside.
841
00:35:28.180 --> 00:35:30.810
That this could be still a residual part of it.
842
00:35:30.810 --> 00:35:32.475
A thumbnail that if it had ever been,
843
00:35:32.475 --> 00:35:34.440
kinda if the directorate had ever
844
00:35:34.440 --> 00:35:35.860
been archived, even if it's deleted,
845
00:35:35.860 --> 00:35:38.045
a fingerprint might still be there.
846
00:35:38.045 --> 00:35:39.800
But I think the bigger point is,
847
00:35:39.800 --> 00:35:40.653
and I make this in the brief.
848
00:35:40.653 --> 00:35:43.290
That just because you've upgraded your device these days,
849
00:35:43.290 --> 00:35:45.130
doesn't mean that you've gotten rid of your old device.
850
00:35:45.130 --> 00:35:46.340
And the cases bare this out.
851
00:35:46.340 --> 00:35:48.287
And I think in Anthony, we had a homeless defendant
852
00:35:48.287 --> 00:35:50.050
who had multiple computers.
853
00:35:50.050 --> 00:35:51.650
And I cataloged them in the brief.
854
00:35:51.650 --> 00:35:52.671
Every time you go into these houses
855
00:35:52.671 --> 00:35:53.952
there's multiple computers.
856
00:35:53.952 --> 00:35:56.090
So one possibility is, you upgrade
857
00:35:56.090 --> 00:35:57.186
and you retain the device.
858
00:35:57.186 --> 00:35:58.760
In which case, it's still there.
859
00:35:58.760 --> 00:36:00.400
And if you deleted it on that device,
860
00:36:00.400 --> 00:36:01.970
the police will find it when they go into the house
861
00:36:01.970 --> 00:36:03.183
and be able to recover the deleted file.
862
00:36:03.183 --> 00:36:05.150
Or you migrated the data over,
863
00:36:05.150 --> 00:36:07.130
because in this day and age, it'd be a crisis
864
00:36:07.130 --> 00:36:08.980
for most of us if we didn't have access
865
00:36:08.980 --> 00:36:11.310
to the data that we use on our previous devices,
866
00:36:11.310 --> 00:36:12.388
just because we got a new device.
867
00:36:12.388 --> 00:36:14.930
And so, with the collector inference,
868
00:36:14.930 --> 00:36:16.220
you can believe that they took
869
00:36:16.220 --> 00:36:17.890
affirmative steps to preserve it.
870
00:36:17.890 --> 00:36:18.980
But even if you don't have that,
871
00:36:18.980 --> 00:36:20.700
there's no reason to believe they deleted it.
872
00:36:20.700 --> 00:36:22.683
And even if you want to say that they deleted it,
873
00:36:22.683 --> 00:36:24.769
there's no reason to believe that they did so
874
00:36:24.769 --> 00:36:26.236
in an irretrievable way.
875
00:36:26.236 --> 00:36:28.330
And if they did on that particular device,
876
00:36:28.330 --> 00:36:29.650
it could've been backed up at some point.
877
00:36:29.650 --> 00:36:32.170
Again some of these backups are running automatically.
878
00:36:32.170 --> 00:36:33.003
I don't understand the difference
879
00:36:33.003 --> 00:36:36.578
between that and forever period of time.
880
00:36:36.578 --> 00:36:39.260
I think it depends on the facts in the affidavits.
881
00:36:39.260 --> 00:36:40.811
So, like I said, in Raymonda,
882
00:36:40.811 --> 00:36:42.740
we're not gonna say that that's forever.
883
00:36:42.740 --> 00:36:44.060
Because where there's no indication
884
00:36:44.060 --> 00:36:46.575
that someone went to take the fundamentals on that webpage.
885
00:36:46.575 --> 00:36:48.682
But here you're saying it could be forever?
886
00:36:48.682 --> 00:36:50.690
Doesn't have to be seven months, it could be,
887
00:36:50.690 --> 00:36:53.340
I don't know, 18 months, two years, five years, 10 years.
888
00:36:53.340 --> 00:36:55.596
In this case, it could certainly be a significantly longer
889
00:36:55.596 --> 00:36:58.325
period than seven years, seven months.
890
00:36:58.325 --> 00:37:00.320
And the cases from the Federal Circuits
891
00:37:00.320 --> 00:37:01.470
recognize that as well.
892
00:37:01.470 --> 00:37:02.600
They go out to three years.
893
00:37:02.600 --> 00:37:04.080
In Purdo, once the 7th Circuit declined
894
00:37:04.080 --> 00:37:06.710
to say as a matter that even if it was
895
00:37:06.710 --> 00:37:08.947
two or four years old, that it would be stale.
896
00:37:08.947 --> 00:37:10.280
But as technology develops...
897
00:37:10.280 --> 00:37:11.117
I'm sorry to cut you off.
898
00:37:11.117 --> 00:37:12.950
But as technology develops, basically,
899
00:37:12.950 --> 00:37:16.730
you are sort of nearing the verge of a forever
900
00:37:16.730 --> 00:37:18.770
kind of a prospect, aren't we?
901
00:37:18.770 --> 00:37:20.700
I think it depends which technology application.
902
00:37:20.700 --> 00:37:23.448
So you know, one, there's Snapchat out there.
903
00:37:23.448 --> 00:37:26.060
So if somebody were to send a child pornography image
904
00:37:26.060 --> 00:37:28.070
to somebody else via Snapchat,
905
00:37:28.070 --> 00:37:29.780
we couldn't necessarily say we're gonna take
906
00:37:29.780 --> 00:37:31.443
the recipient's device and search for it.
907
00:37:31.443 --> 00:37:33.280
Because the way that technology works,
908
00:37:33.280 --> 00:37:35.930
is unless you take an affirmative step to preserve it,
909
00:37:35.930 --> 00:37:37.840
that file's gonna go away.
910
00:37:37.840 --> 00:37:39.640
So we'd have to know more about that recipient
911
00:37:39.640 --> 00:37:41.600
to know if they wanted to receive it
912
00:37:41.600 --> 00:37:42.620
before we go search for it.
913
00:37:42.620 --> 00:37:44.129
So the fact that it's a digital file
914
00:37:44.129 --> 00:37:45.415
wouldn't do that for us.
915
00:37:45.415 --> 00:37:47.070
And that's why each case does have
916
00:37:47.070 --> 00:37:49.204
to be evaluated on it's own facts.
917
00:37:49.204 --> 00:37:50.267
I guess one last question.
918
00:37:50.267 --> 00:37:52.490
I guess this is my second last question,
919
00:37:52.490 --> 00:37:54.532
since the last one was not, apparently.
920
00:37:54.532 --> 00:37:57.980
How much credence do we give to the federal case law,
921
00:37:57.980 --> 00:38:01.524
where they are applying the good faith principle
922
00:38:01.524 --> 00:38:05.064
to their evaluation and search warrant, and we don't?
923
00:38:05.064 --> 00:38:07.370
Well, you know, I wanna echo Justice's
924
00:38:07.370 --> 00:38:08.426
Lowy and Cipher and their call,
925
00:38:08.426 --> 00:38:10.540
that we should be considering good faith here
926
00:38:10.540 --> 00:38:11.373
and in appropriate cases.
927
00:38:11.373 --> 00:38:12.610
But I don't think--
Let's assume that
928
00:38:12.610 --> 00:38:13.501
we haven't got there yet.
929
00:38:13.501 --> 00:38:15.936
Fair enough, I don't think we need it in this case.
930
00:38:15.936 --> 00:38:19.970
I think there are some cases, where they rely on good faith.
931
00:38:19.970 --> 00:38:20.980
But we don't need those.
932
00:38:20.980 --> 00:38:23.016
The overwhelming weight of the federal cases
933
00:38:23.016 --> 00:38:26.459
from many, many circuits is that this information
934
00:38:26.459 --> 00:38:29.330
isn't gonna be stale after a month, and even years,
935
00:38:29.330 --> 00:38:32.550
even before they get to a good faith analysis.
936
00:38:32.550 --> 00:38:34.826
So in Forshette, I think it's 15 months.
937
00:38:34.826 --> 00:38:36.663
In Chezem, it's 20 months.
938
00:38:36.663 --> 00:38:39.870
And I'm not going to be able to do all of them by months.
939
00:38:39.870 --> 00:38:44.850
But it goes, in the 1st Circuit Aldonis Miraldo case,
940
00:38:44.850 --> 00:38:46.723
I think it goes to three years.
941
00:38:46.723 --> 00:38:48.382
Again, it all depends on the facts.
942
00:38:48.382 --> 00:38:52.270
But we don't need the good faith exception in this case.
943
00:38:52.270 --> 00:38:53.604
This was a solid warrant.
944
00:38:53.604 --> 00:38:55.193
(judge murmurs)
Thank you.