WEBVTT
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SJC-12868 Commonwealth the Edward Long.
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Mr. Warren, good morning.
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Good morning, Chief Justice,
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and may I please the Court, John Warren
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on behalf of Edward Long who is present today.
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I'm asking that this Court reverse the motion judge's order
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for two reasons.
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First, because under Commonwealth vs law, the defendant
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met his initial burden under the framework
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which the Commonwealth failed to rebut.
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And second because the Commonwealth failed
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to meet its burden that the empowerment of the vehicle
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was reasonably necessary under these circumstances,
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and that the inventory search was
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for non investigatory purposes.
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In fact to begin with the Laura issue,
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there is a persistent and pervasive problem,
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which is that not everyone's treated equally on the road.
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And our constitutional principles do not tolerate that.
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In Laura, this court sought to alleviate those concerns
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by establishing a practical framework.
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Not just one that could nominally allow a defendant
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to make a claim, but one that actually, in fact,
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could allow a defendant to make a claim
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and a successful claim at that.
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And that's what we did in this case.
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In this case, we use relevant and available stop data.
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We use an approach appropriate benchmark with which to view
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that stop data, which actually was an over estimate
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of the likely motorists that these officers
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would have encountered on the roadway.
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And the data revealed racial disparities
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that were statistically significant.
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What happened here was the motion judge,
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set the bar too high.
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And I think one way of looking at this case is to look at it
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in light of Commonwealth versus Laura,
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the facts of that case.
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(audience member coughs)
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In that case, as a benchmark
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with which to view the citations,
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the defendant used, essentially the census data
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of a small town, the town of Auburn,
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to determine who the motorists would have been
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on an interstate highway heading into Worcester.
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So, Laura is too small and to show this,
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it's the whole state.
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But here you use the sense for your benchmark,
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which I think comes out to something like 44%,
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you're going through the neighborhoods involved,
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and six blocks per square feet.
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And you indicate that's a good benchmark.
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And I didn't really understand what Judge Leighton's
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criticism of the benchmark issue was.
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To your point, I think it is a good benchmark,
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because what we did here is we,
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the statistician looked at every FIO that these officers
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made over a six year period.
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And from that established,
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well, we know where they patrol because we know where
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they're making FIOs.
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And then very specifically looked at who lives
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in these exact areas, and what the population was
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of that patrol area.
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And then from there, looked,
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well what does the population look 300 feet, 600 feet,
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1000 feet, five miles, 10 out to 30 miles.
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And in this particular case, what happened was,
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the areas were less black, less black and less black.
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And so when we use that 44% that's an appropriate benchmark
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because it almost certainly was an over estimate of who
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these officers would have encountered on the road way.
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We can translate and have that that if you go out further
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and further that the numbers don't change that much,
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did he have that before him?
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He did have that.
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And it was in Professor Fowler's report,
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which was provided to the court in the Commonwealth,
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five months prior the hearing.
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And in her report, she indicated what would happen
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300 feet, 600 feet, 1000 feet and up to 10 miles.
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And then at the hearing, there was some dispute
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about whether the court could consider,
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essentially the defendant we provided in from maps
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and graphs regarding up to 30 miles,
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but the court did hear testimony on that from Dr. Fowler.
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So, in essence, the answer is yes, the court did hear
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up to 30 miles, what the racial demographics were.
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And that strongly supports Dr. Fowler's testimony,
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which was that 44% is more than appropriate
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because it's an over estimate of who these officers actually
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would have seen on the roadway.
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So, assuming that the Laura framework
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make sense, right?
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Right.
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What if it doesn't?
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So, Laura was a step in the right direction.
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And I think the issue with Laura is that it needs
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to be analyzed appropriately.
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And there is some wisdom in laura, because what it does
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is it puts the initial burden on the defendant
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to come forward with relevant stop data.
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And then it shifts the burden to the Commonwealth
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to explain any disparities in that data.
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What we do about the data not really being
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compiled appropriately?
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Appropriately in terms of the
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The hour at all, in some instances,
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what will we do about this.
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That's the problem.
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I think, whatever this court does, going forward,
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it needs to incentivize law enforcement to track all
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of their traffic stops, because this is a systemic problem.
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It's a pervasive problem, and it's one
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in which law enforcement alone must fix.
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How do you incentivize law enforcement
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to do something like that?
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How would we do that?
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How would,
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One way is reversing the order in this case,
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and holding that a defendant can meet his burden
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by putting forth the available data,
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the data that's available.
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And this is why that could incentivize is
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because if this court holds
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that a defendant could put forth relevant
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and available data, and that's enough
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to make the defendants claim,
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it would behoove law enforcement to start tracking
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all of their stops.
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So in fact, one of the criticisms that the judge had
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of the data was that it did include all the traffic stops.
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Are you saying if we say what,
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if a case is made based upon available data,
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the incentive is to include all data
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for more realistic picture of the traffic stop.
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Well, the data is evidently non existent at this point.
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So, what I'm saying is if a defendant could use
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available data, and that shows racial disparities,
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it then shifts the burden to the Commonwealth
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to explain that come up in law enforcement.
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And if law enforcement is saying,
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look you using the wrong things, FIOs, citations,
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this is not what you should be looking at,
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then come forward with the total stops and show us
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why officers Rodriguez and Lopes,
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were not disproportionately pulling over black drivers.
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Because if they had that data,
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it might be a very easy hearing,
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and there might not really be much of an argument.
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And the reason that's important is because
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that will identify illuminate the problem,
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it really will and it will illuminate the scope
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of the problem.
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And from there, the problem can be suggest can be fixed.
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If this case were heard today,
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what data would be available to you for the city of Boston.
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It sounds like so in terms of FiOS--
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Would you still have the FIOs which identify race?
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They do.
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They do, so they still do that.
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I, they still do that, although, to my in terms
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of the news articles, they're no longer
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publicly making it available.
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Part of what I did hear was partially rely
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on publicly available FiOS
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and then make a discovery requesting
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and gain some FIOS that were not publicly
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available to use my data.
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I would imagine that they're still keeping track
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of FiOS and through a discovery request,
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a defendant could obtain that.
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Now, with respect to citations,
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my understanding based on the new law is that a defendant
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could no longer obtain officer specific citation data,
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because that has been made unavailable in the change
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of the law.
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So, if you were to do this today,
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you would not be able to present your second category
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of data, which is the disparity in terms
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of the issuance of citations.
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No, I suppose I could historically,
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if I'm looking like I did here seven years back,
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citation data.
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But to put it another way, seven years down the line,
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no one could not look back seven years
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under the current state of the law,
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and that would render the laura framework plan workable.
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And the laura framework,
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can I ask you about the second stage?
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'Cause it doesn't really get discussed all that much.
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I wanna get your take on it.
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It just basically says, well, there's a way
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'cause we've never gotten past the stage one, right?
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So, if the defense satisfies and make this prima facie case,
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the burden then shifts the government to rebut
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that inference.
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The stops predicated on impermissible grounds here race.
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One way to do it, I think you argue is for the government
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to show the statistical flawed, right?
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Right.
That's, I guess, easy.
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Secondly, we're not easy to do
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but that's one way to attack.
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But the second ground I want your take on,
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is it possible to rebut that first stage inference
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with other evidence beyond just a mere denial by the police
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that they didn't do it for impermissible grounds?
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Is your Honor, so, I don't think it's sufficient
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to introduce evidence regarding the particular stop.
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I think
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Okay, that's what I'm asking you.
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No, I don't think that's efficient.
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But what if the evidence is that we stopped the car
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because we had a bolo, that this red Audi was involved
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in an armed robbery?
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No, I don't think what the laura framework did is, put
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the initial burden on the defendant to set forth statistics
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and to make his prime of facial case using statistics.
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And for rebuttal, that's what the Commonwealth
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has throughout.
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The Commonwealth takes a different view.(mumbles)
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Okay if I could just finish one followup please?
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So, the police officers testify that there was a car
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that sped by 90 miles an hour and a 30 mile zone
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we couldn't even see inside the car
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and one final bolo, is it admissible to report it?
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I don't think it would be a good rule to say
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that an officer can come and testify,
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I didn't see the race of the driver.
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If it was a case, which is not this case,
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if it were a case where it would have been impossible
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for an officer to have seen who was in the car,
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I think the outcome with would have a good argument.
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Thank you.
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So, under your theory, if we had perfect data,
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and we had a record of racial disparity,
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police officer could never successfully or could stop
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an African American but it would always be suppressed
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because you could never offer evidence of the reason
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why that particular officer made that stuff.
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Right, I mean, I think it would need a change
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in behavior and the Commonwealth coming forward,
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let's say the next law motion happens
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a year down the line, the Commonwealth coming forward
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and say, look, here's what's been happening in that year,
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there has been a change.
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But you understand the problem.
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I mean, just as Gaziano gave an example you know,
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armed robbery or shooting, bolo with respect
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to a particular car, even a particular license,
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or at least a few numbers of the license everything matches
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that stop would be suppressed because there's a history
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of essentially stop and frisk of motor vehicles
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which are discriminatory against African Americans.
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So, I think there's a different issue
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because I guess it would, I was just
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When you limit this to only two motor vehicle stops.
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Is that what you're limiting it to
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or you're limiting it to all stops?
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Are you saying it applies to all stops?
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The Laura framework was limited to motor vehicle stops.
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I think the framework could be used
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in other contexts though.
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But is it, let's just think about that answer
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00:13:08.760 --> 00:13:12.320
for a moment because I may have this one
266
00:13:12.320 --> 00:13:16.760
but what you're talking about pre tech stops
267
00:13:16.760 --> 00:13:21.760
based on motor vehicle violations.
268
00:13:22.080 --> 00:13:26.017
Now, if there's reasonable and articulable suspicion
269
00:13:26.017 --> 00:13:29.630
or probable cause you're not saying that
270
00:13:29.630 --> 00:13:32.047
they'd be a ceasure right now?
271
00:13:33.101 --> 00:13:34.510
That exactly right, now I apologize,
272
00:13:34.510 --> 00:13:36.120
and if I could amend my answer.
273
00:13:36.120 --> 00:13:38.190
Can I ask seriously, that's right there, isn't it?
274
00:13:38.190 --> 00:13:41.090
It is right, and if I could amend the answer and say,
275
00:13:41.090 --> 00:13:44.020
what we're not dealing with are reasonable suspicion
276
00:13:44.020 --> 00:13:46.420
of criminality, probable cause, we're dealing
277
00:13:46.420 --> 00:13:50.540
in this medium of there's no reasonable suspicion,
278
00:13:50.540 --> 00:13:53.069
and yet the car is being stopped for a minor motor vehicle
279
00:13:53.069 --> 00:13:54.650
infractions so I apologize.
280
00:13:54.650 --> 00:13:56.450
Would you ever need statistics
281
00:13:56.450 --> 00:13:59.690
of how many motor vehicles that had minor
282
00:13:59.690 --> 00:14:03.663
motor vehicle infractions apparent that they did not stop.
283
00:14:04.780 --> 00:14:08.250
I think the Commonwealth brief addresses
284
00:14:08.250 --> 00:14:13.250
that nicely to say that's very difficult to obtain.
285
00:14:14.970 --> 00:14:18.570
Can I ask about the so this is a gang unit.
286
00:14:18.570 --> 00:14:23.560
And I find your argument persuasive on the first prong
287
00:14:23.560 --> 00:14:27.440
that the statistics here are concerning.
288
00:14:27.440 --> 00:14:30.260
And then I'm trying to get to the second stage.
289
00:14:30.260 --> 00:14:34.000
So, but they're gang officers, they're not traffic cops.
290
00:14:34.000 --> 00:14:36.760
These aren't steadies on the highway.
291
00:14:36.760 --> 00:14:40.290
There I take it I don't know what the record shows a lot of
292
00:14:40.290 --> 00:14:41.630
I assume they're pulling over people
293
00:14:41.630 --> 00:14:44.410
they know a lot of the time, not this time.
294
00:14:44.410 --> 00:14:49.073
But isn't that going to work the statistics sum?
295
00:14:50.646 --> 00:14:55.620
'Cause these are not blind stops or their stops
296
00:14:55.620 --> 00:14:59.300
of again, a group of people they've gotten a whist, right?
297
00:14:59.300 --> 00:15:00.863
I mean, the whist may be wrong.
298
00:15:01.780 --> 00:15:04.891
That's first of all, that's not this case because it is
299
00:15:04.891 --> 00:15:06.160
but to your point,
300
00:15:06.160 --> 00:15:08.690
Isn't it what say you win,
301
00:15:08.690 --> 00:15:11.270
and you've made a good case that the first stage
302
00:15:11.270 --> 00:15:12.200
is satisfied.
303
00:15:12.200 --> 00:15:14.380
And we remember this 'cause we've gotta clarify
304
00:15:14.380 --> 00:15:16.800
with the second stages.
305
00:15:16.800 --> 00:15:19.400
And the second stage, I assume the Commonwealth is gonna say
306
00:15:19.400 --> 00:15:20.910
these are gang officers.
307
00:15:20.910 --> 00:15:23.870
So, they're different from steadies,
308
00:15:23.870 --> 00:15:25.700
and they're different from those cases that
309
00:15:25.700 --> 00:15:28.593
we've been reading about in other states.
310
00:15:30.183 --> 00:15:32.720
And then we gotta look at, the neighborhoods
311
00:15:32.720 --> 00:15:34.710
where the different gangs in the neighborhoods
312
00:15:34.710 --> 00:15:38.740
and their makeup, I just, how do we do that?
313
00:15:38.740 --> 00:15:41.940
Because isn't that again, if you win,
314
00:15:41.940 --> 00:15:44.750
isn't the next stage, stage two is just as Gaziano says,
315
00:15:44.750 --> 00:15:46.440
we don't have very much guidance on how
316
00:15:46.440 --> 00:15:48.003
you're gonna do stage two.
317
00:15:49.240 --> 00:15:52.130
I think to your point, again, it's not this case,
318
00:15:52.130 --> 00:15:56.030
because in this case, you're gonna see just query and.
319
00:15:56.030 --> 00:16:01.030
Well, but they're, again, they're not traffic cops.
320
00:16:01.300 --> 00:16:03.580
For some reason they thought this Mercedes
321
00:16:03.580 --> 00:16:05.440
in that neighborhood is indicative of something.
322
00:16:05.440 --> 00:16:07.010
I'm not sure that's justified.
323
00:16:07.010 --> 00:16:07.910
That's the problem.
324
00:16:07.910 --> 00:16:11.900
But I take it their statistics are more complicated
325
00:16:11.900 --> 00:16:15.770
than a state police officer pulling people over
326
00:16:15.770 --> 00:16:17.310
because they're pulling people over
327
00:16:17.310 --> 00:16:19.893
because they're concerned about gang activity.
328
00:16:20.922 --> 00:16:22.480
It raises an important point,
329
00:16:22.480 --> 00:16:25.200
which is that I'm not necessarily
330
00:16:27.280 --> 00:16:29.700
sure that it's explainable,
331
00:16:29.700 --> 00:16:33.950
if they have a list comprised of black and Hispanic people.
332
00:16:33.950 --> 00:16:35.700
And those are the people that they're targeting
333
00:16:35.700 --> 00:16:37.180
for minor motor vehicle infractions.
334
00:16:37.180 --> 00:16:38.350
I mean, it could be say they're
335
00:16:38.350 --> 00:16:42.940
in a different neighborhood, and there's a gang of X,
336
00:16:42.940 --> 00:16:45.410
that number is gonna,
337
00:16:45.410 --> 00:16:48.753
that may skew the statistics sum, right?
338
00:16:48.753 --> 00:16:51.280
I mean, if you're, you know, I don't know
339
00:16:51.280 --> 00:16:52.870
we have all different kinds of gangs.
340
00:16:52.870 --> 00:16:56.570
We have Cambodian gangs, we have different kinds of gangs.
341
00:16:56.570 --> 00:16:59.690
Isn't the number gonna be different?
342
00:16:59.690 --> 00:17:02.140
Isn't gonna be I'm not saying that the number
343
00:17:02.140 --> 00:17:03.360
is gonna be justified here.
344
00:17:03.360 --> 00:17:06.220
I'm just saying isn't the statistical analysis
345
00:17:06.220 --> 00:17:09.090
is gonna be more complicated than a traffic stop
346
00:17:09.090 --> 00:17:10.763
on a state highway, isn't it?
347
00:17:11.910 --> 00:17:15.420
So, I think the Commonwealth attempted
348
00:17:15.420 --> 00:17:20.200
to make that some of those rebuttal points and argument,
349
00:17:20.200 --> 00:17:24.540
but conceded we don't have the data to back them up.
350
00:17:24.540 --> 00:17:27.990
Okay, so that, but we have to give guidance
351
00:17:27.990 --> 00:17:31.722
on the second stage, if you win,
352
00:17:31.722 --> 00:17:34.680
what kind of statistical despair?
353
00:17:34.680 --> 00:17:38.430
How do you prove a statistical disparity,
354
00:17:38.430 --> 00:17:39.263
as you say?
355
00:17:39.263 --> 00:17:41.370
What kinds of factors?
356
00:17:41.370 --> 00:17:43.970
'cause when you do the standard deviation analysis,
357
00:17:43.970 --> 00:17:45.850
you have to remove all the factors
358
00:17:45.850 --> 00:17:49.110
and it's very complicated, at least in employment cases.
359
00:17:49.110 --> 00:17:51.210
I just don't how's it gonna work here
360
00:17:51.210 --> 00:17:55.120
when you've got these skewing factors out there?
361
00:17:55.120 --> 00:18:00.120
So, I think I would go back to the original point
362
00:18:00.270 --> 00:18:03.300
which is this is why law enforcement needs to keep track
363
00:18:03.300 --> 00:18:05.890
of all the traffic stops, because that
364
00:18:05.890 --> 00:18:10.023
would be the easiest way to rebut what this data shows.
365
00:18:11.040 --> 00:18:13.770
We will, we're the standard or we make clear
366
00:18:13.770 --> 00:18:18.530
that the standard is impossible to prove.
367
00:18:18.530 --> 00:18:20.980
If you put this type of statistical disparity
368
00:18:20.980 --> 00:18:24.920
that satisfies prong one, prong two then the Commonwealth
369
00:18:24.920 --> 00:18:27.070
of that wants to satisfy prong two is gonna have
370
00:18:27.070 --> 00:18:29.940
to create much better data
371
00:18:29.940 --> 00:18:34.040
in order to show a statistical disparity that's justifiable.
372
00:18:34.040 --> 00:18:36.210
I think that would be the best way to rebut it.
373
00:18:36.210 --> 00:18:38.680
Frankly, I don't exactly know.
374
00:18:38.680 --> 00:18:41.260
It's hard for me to know exactly what the Commonwealth
375
00:18:41.260 --> 00:18:44.000
would do in rebuttal, because I don't know
376
00:18:44.000 --> 00:18:46.680
what sort of justification they would have had
377
00:18:46.680 --> 00:18:51.240
for stopping and then citing 81% black individuals,
378
00:18:51.240 --> 00:18:53.030
I don't know what that's gonna look like.
379
00:18:53.030 --> 00:18:55.790
Can I take us away from the statistics for a minute,
380
00:18:55.790 --> 00:18:58.000
with modern technology.
381
00:18:58.000 --> 00:19:01.860
If I go through Mass Pike without paying,
382
00:19:01.860 --> 00:19:05.010
I will get a notification in the mail and a bill.
383
00:19:05.010 --> 00:19:09.240
Now we're talking about minor traffic violations, correct?
384
00:19:09.240 --> 00:19:12.160
Why can't those just be simple citations mailed
385
00:19:12.160 --> 00:19:15.133
to the automobile owner rather than a stop?
386
00:19:16.600 --> 00:19:19.343
I don't see any any issue with that.
387
00:19:20.570 --> 00:19:21.610
I hadn't thought of that.
388
00:19:21.610 --> 00:19:24.940
I think it makes quite a bit of sense
389
00:19:24.940 --> 00:19:27.610
and would alleviate some problems.
390
00:19:27.610 --> 00:19:30.450
Mr. Warren on just on this case,
391
00:19:30.450 --> 00:19:32.190
in your view about the rebuttal,
392
00:19:32.190 --> 00:19:34.700
and I wanna ask you, so do you have a chance
393
00:19:34.700 --> 00:19:39.380
to respond to what I think the D.A's proposal is?
394
00:19:39.380 --> 00:19:42.250
But on your rebuttal point, you say, well,
395
00:19:42.250 --> 00:19:47.250
they didn't raise the issue as it relates to this case,
396
00:19:47.480 --> 00:19:48.970
before the superior court judge,
397
00:19:48.970 --> 00:19:50.623
so there shouldn't be a remand.
398
00:19:51.960 --> 00:19:54.560
Which issue the fact that.
399
00:19:54.560 --> 00:19:57.330
The law of statistics, they didn't come forward
400
00:19:57.330 --> 00:20:01.060
with statistics to rebut, estimated rebut.
401
00:20:01.060 --> 00:20:02.380
So, as it relates to this case,
402
00:20:02.380 --> 00:20:05.470
you're saying that this should not be remanded, correct?
403
00:20:05.470 --> 00:20:07.990
Right, I'm saying they had the opportunity to do that.
404
00:20:07.990 --> 00:20:11.650
Okay, so from your perspective,
405
00:20:11.650 --> 00:20:14.850
this really complicated issue about what you do
406
00:20:14.850 --> 00:20:19.850
with the prong two really, from your view,
407
00:20:20.060 --> 00:20:21.630
she can't be remanded to address
408
00:20:21.630 --> 00:20:23.920
because they didn't wave below, is that right?
409
00:20:23.920 --> 00:20:27.680
Exactly, and they had Dr. Fowler's report five months
410
00:20:27.680 --> 00:20:28.980
prior to the hearing.
411
00:20:28.980 --> 00:20:31.290
It was an extensive report,
412
00:20:31.290 --> 00:20:33.930
essentially what she testified to.
413
00:20:33.930 --> 00:20:36.270
So, they knew exactly what was gonna be presented
414
00:20:36.270 --> 00:20:39.080
at the hearing and made the decision.
415
00:20:39.080 --> 00:20:42.093
Why would they go to stage two if they won stage one?
416
00:20:43.770 --> 00:20:48.130
So, I mean, I think the answer to that is they need
417
00:20:48.130 --> 00:20:51.980
to be prepared to address both stages at the hearing.
418
00:20:51.980 --> 00:20:54.320
And there was no statement from the Commonwealth
419
00:20:54.320 --> 00:20:58.500
at the hearing to say, judge by the way, just to clarify,
420
00:20:58.500 --> 00:21:00.900
this is on stage one or before you make your decision,
421
00:21:00.900 --> 00:21:03.400
we wanna make sure that we have the opportunity
422
00:21:03.400 --> 00:21:06.580
for to rebut anything they didn't present
423
00:21:06.580 --> 00:21:08.630
any evidence as to stage two.
424
00:21:08.630 --> 00:21:10.930
Can I ask just a more general question,
425
00:21:10.930 --> 00:21:13.910
which is the two amicus briefs here filed
426
00:21:13.910 --> 00:21:15.950
by the defense bar, wanna know whether
427
00:21:15.950 --> 00:21:18.640
you are embracing those?
428
00:21:18.640 --> 00:21:21.670
And of course, we have the brief by the Commonwealth,
429
00:21:21.670 --> 00:21:23.570
which also does not like Laura, apparently
430
00:21:23.570 --> 00:21:25.100
and wants to supersede it.
431
00:21:25.100 --> 00:21:27.540
Do you agree with the kind of last position?
432
00:21:27.540 --> 00:21:29.380
I wanna know what your position is with respect
433
00:21:29.380 --> 00:21:30.280
to these positions?
434
00:21:30.280 --> 00:21:31.113
I suppose.
435
00:21:32.210 --> 00:21:36.610
So, Laura, was a step in the right direction.
436
00:21:36.610 --> 00:21:39.210
I think the standard for the reasons I articulated need
437
00:21:39.210 --> 00:21:40.760
to be clarified in the sense that
438
00:21:40.760 --> 00:21:43.900
a defendant can use available and relevant data
439
00:21:43.900 --> 00:21:46.110
and an appropriate benchmark.
440
00:21:46.110 --> 00:21:49.760
That would be the first step and I think
441
00:21:49.760 --> 00:21:52.213
that would be another step in the right direction.
442
00:21:53.960 --> 00:21:57.450
To the extent the court wishes to change
443
00:21:57.450 --> 00:22:01.330
at either another manner, an alternative manner
444
00:22:01.330 --> 00:22:04.450
in which a defendant can raise an equal protection claim
445
00:22:04.450 --> 00:22:07.490
or go back and look at some of the cases
446
00:22:07.490 --> 00:22:11.080
that might have really be the core issue Buckley
447
00:22:11.080 --> 00:22:13.160
and Santana here.
448
00:22:13.160 --> 00:22:17.093
That would be a bigger step in the correct direction.
449
00:22:17.960 --> 00:22:22.890
Whatever the court does, I think incentivizing
450
00:22:22.890 --> 00:22:27.890
law enforcement to track the data should be a focus.
451
00:22:27.980 --> 00:22:31.190
So arguably, to do that we could have a rule that said,
452
00:22:31.190 --> 00:22:33.930
if you don't have enough data, that's your problem.
453
00:22:33.930 --> 00:22:38.460
That's the government's problem, not the defendants.
454
00:22:38.460 --> 00:22:41.950
Right, I think a defendants job is to provide relevant
455
00:22:41.950 --> 00:22:43.060
and available data.
456
00:22:43.060 --> 00:22:46.390
Can we just you talked a little bit about it,
457
00:22:46.390 --> 00:22:50.300
but what does it take for you to get the statistics
458
00:22:50.300 --> 00:22:51.133
that you got?
459
00:22:51.133 --> 00:22:53.510
How, practically speaking, how does the defendant
460
00:22:53.510 --> 00:22:55.093
go about doing this?
461
00:22:56.858 --> 00:23:00.120
I just wanna figure out, okay, you brought some
462
00:23:00.120 --> 00:23:02.810
statistics and they seem to be pretty good.
463
00:23:02.810 --> 00:23:05.280
How about the next person?
464
00:23:05.280 --> 00:23:07.660
What we did was file.
465
00:23:07.660 --> 00:23:11.430
So for the FiOS part of it was publicly available.
466
00:23:11.430 --> 00:23:16.390
So, we obtained that, we did real 17th for additional FiOS
467
00:23:16.390 --> 00:23:19.170
and the citation data citations compiled
468
00:23:19.170 --> 00:23:20.810
by the Merit Rating Board.
469
00:23:20.810 --> 00:23:25.210
And then that was both a real 17 motions that were led
470
00:23:25.210 --> 00:23:28.420
by the court and then sent that to the statistician
471
00:23:28.420 --> 00:23:31.570
who was tasked with organizing, compiling
472
00:23:31.570 --> 00:23:34.320
and analyzing that data.
473
00:23:34.320 --> 00:23:35.490
Chief (mumbles)
474
00:23:35.490 --> 00:23:36.323
Sure.
475
00:23:36.323 --> 00:23:39.440
So, I just wanna see if you could have a chance
476
00:23:39.440 --> 00:23:43.260
to respond to what I think the Commonwealth argument is.
477
00:23:43.260 --> 00:23:45.070
Because before you sit down,
478
00:23:45.070 --> 00:23:49.300
because I think if there was a remand in this case,
479
00:23:49.300 --> 00:23:51.763
or if they have the same proposal, another case,
480
00:23:52.620 --> 00:23:56.210
then what happens once you satisfy Laura
481
00:23:56.210 --> 00:23:59.750
or out actually in any way through testimony satisfy
482
00:24:00.690 --> 00:24:04.823
That might have been an equal protection issue.
483
00:24:05.810 --> 00:24:07.390
I think what they're saying in the next poem
484
00:24:07.390 --> 00:24:09.460
is it gets subjective.
485
00:24:09.460 --> 00:24:12.790
And you look at discriminatory purpose
486
00:24:13.870 --> 00:24:17.780
discriminatory result as well, actually,
487
00:24:17.780 --> 00:24:21.590
what's the effect of the discrimination along
488
00:24:21.590 --> 00:24:23.310
with the discriminatory purpose.
489
00:24:23.310 --> 00:24:27.470
And that it's equal protection so that it's subjective
490
00:24:27.470 --> 00:24:29.710
of course, we'll ask Miss Campbell, flush yourself,
491
00:24:29.710 --> 00:24:31.310
but you're not gonna be able to stand up again.
492
00:24:31.310 --> 00:24:33.910
So, I'd love to know what you think about their proposal.
493
00:24:33.910 --> 00:24:36.650
So, first of all, I'm not entirely sure
494
00:24:36.650 --> 00:24:40.440
what their proposal is, because on the one hand,
495
00:24:40.440 --> 00:24:44.530
it's simply restates what Laura says, almost verbatim,
496
00:24:44.530 --> 00:24:47.390
and then it says the court should adopt this new rule.
497
00:24:47.390 --> 00:24:50.860
And then at the end says, by the way, the court needs
498
00:24:50.860 --> 00:24:54.230
to look at subjective motivations of the police officers,
499
00:24:54.230 --> 00:24:59.230
which would completely undercut this, the lower framework.
500
00:24:59.970 --> 00:25:02.610
I mean, if a police officer could testify
501
00:25:02.610 --> 00:25:06.660
and say, no, no, no, I that wasn't my intention
502
00:25:07.997 --> 00:25:10.600
and a defendant would have to introduce direct evidence
503
00:25:10.600 --> 00:25:13.840
as to an officer's subjective intent.
504
00:25:13.840 --> 00:25:16.790
That would be a complete departure from what Laura says.
505
00:25:16.790 --> 00:25:18.950
Laura says a defendant can meet its burden
506
00:25:18.950 --> 00:25:20.780
through statistics alone.
507
00:25:20.780 --> 00:25:21.760
And I would suggest that's
508
00:25:21.760 --> 00:25:23.510
what the Commonwealth has to rebut.
509
00:25:23.510 --> 00:25:27.410
But they, I guess that will hear what Common has to say.
510
00:25:27.410 --> 00:25:30.330
But it seems like we don't really
511
00:25:30.330 --> 00:25:32.600
have much information.
512
00:25:32.600 --> 00:25:35.820
You know, even going back to justice grannies concurrences
513
00:25:35.820 --> 00:25:39.410
about exactly what rebut means.
514
00:25:39.410 --> 00:25:41.017
I think the Sodo case,
515
00:25:41.017 --> 00:25:42.225
The New Jersey case,
516
00:25:42.225 --> 00:25:44.280
The New Jersey case describes it very well.
517
00:25:44.280 --> 00:25:45.270
Yeah, sure.
518
00:25:45.270 --> 00:25:48.330
And I would ask this court to look at that language and it
519
00:25:48.330 --> 00:25:50.210
Do you agree the remedy is dismissal
520
00:25:50.210 --> 00:25:52.310
and not suppression?
521
00:25:52.310 --> 00:25:57.310
No, I don't know where that's, I was kind of
522
00:25:58.870 --> 00:26:00.500
I don't know where that's coming from.
523
00:26:00.500 --> 00:26:02.853
I don't think it makes a lot of sense.
524
00:26:04.620 --> 00:26:07.320
The harm here is the stop.
525
00:26:07.320 --> 00:26:10.190
So, I think the suppression should be related to that just
526
00:26:10.190 --> 00:26:12.100
as it is in the fourth, fifth, sixth amendment.
527
00:26:12.100 --> 00:26:14.080
But the case would be completely dismissed
528
00:26:14.080 --> 00:26:15.780
under the power of analysis.
529
00:26:15.780 --> 00:26:17.501
Right, and that's fine.
530
00:26:17.501 --> 00:26:18.880
(laughing)
531
00:26:18.880 --> 00:26:20.525
That's fine.
532
00:26:20.525 --> 00:26:23.970
But it is irrelevant in this case.
533
00:26:23.970 --> 00:26:24.962
It is irrelevant in this case,
534
00:26:24.962 --> 00:26:27.760
but they don't think it's fine.
535
00:26:27.760 --> 00:26:32.760
They think it ups the ante, and then it's so draconian,
536
00:26:33.830 --> 00:26:35.280
that it's counterproductive?
537
00:26:35.280 --> 00:26:38.110
It would, it would and I'm not sure if that's the point
538
00:26:38.110 --> 00:26:40.460
that the Commonwealth is trying to make,
539
00:26:40.460 --> 00:26:41.680
Commonwealth is trying to up the ante.
540
00:26:41.680 --> 00:26:45.590
But so right, it would up the ante, I think, doctrinally,
541
00:26:45.590 --> 00:26:46.423
it doesn't make sense.
542
00:26:46.423 --> 00:26:48.980
It would lead to cases where the hypothetical
543
00:26:48.980 --> 00:26:51.460
I put in the footnote was we have a murder case.
544
00:26:51.460 --> 00:26:53.610
There's a minor piece of evidence seized
545
00:26:53.610 --> 00:26:56.600
from a bad everyone agrees a bad traffic stop.
546
00:26:56.600 --> 00:26:58.090
Murder case dismissed.
547
00:26:58.090 --> 00:27:01.850
I don't think I mean, I think the suppression it's related
548
00:27:01.850 --> 00:27:02.683
to what's happening.
549
00:27:02.683 --> 00:27:04.900
So, it's not that I would agree that
550
00:27:04.900 --> 00:27:07.670
Mr. Long's case shouldn't be dismissed.
551
00:27:07.670 --> 00:27:10.490
But here is a distinction without a difference.
552
00:27:10.490 --> 00:27:12.230
And I just don't think it makes a lot of sense,
553
00:27:12.230 --> 00:27:14.400
and at that it could make a defendants burden
554
00:27:14.400 --> 00:27:16.090
much, much harder.
555
00:27:16.090 --> 00:27:20.850
A burden that's been very difficult to achieve.
556
00:27:20.850 --> 00:27:24.290
And you had said that we should say that a defendant
557
00:27:24.290 --> 00:27:26.130
may use available and relevant data
558
00:27:26.130 --> 00:27:27.823
to make the prima facie case.
559
00:27:29.198 --> 00:27:31.750
But you also said that the amount of available
560
00:27:31.750 --> 00:27:35.020
and relevant data today is less than it was
561
00:27:35.020 --> 00:27:36.800
when you brought your motion.
562
00:27:36.800 --> 00:27:40.080
What do we do if there's not available and relevant data?
563
00:27:40.080 --> 00:27:42.140
What if, say Boston decides
564
00:27:42.140 --> 00:27:47.027
we're not gonna keep racial information in our FIO?
565
00:27:48.940 --> 00:27:52.040
So under the new lie, my reading of it is
566
00:27:52.040 --> 00:27:57.040
that police departments as a whole will have their own data.
567
00:27:57.650 --> 00:28:00.980
And so I think the CPCS-Amicus brief makes the point
568
00:28:00.980 --> 00:28:05.240
that the court could strip the presumption of regularity
569
00:28:05.240 --> 00:28:08.150
and traffic stops with entire departments
570
00:28:08.150 --> 00:28:13.150
that either that and the point that they make speeches
571
00:28:14.070 --> 00:28:17.150
strip the presumption of regularity with departments
572
00:28:17.150 --> 00:28:19.800
that have issues with racial profiling work,
573
00:28:19.800 --> 00:28:23.000
where disparities are shown in that data.
574
00:28:23.000 --> 00:28:26.000
The other remedy would be remove the presumption
575
00:28:26.000 --> 00:28:29.890
of regularity where a police department declines
576
00:28:29.890 --> 00:28:31.733
to make this data available.
577
00:28:33.030 --> 00:28:34.560
And by presumption of regularity,
578
00:28:34.560 --> 00:28:35.740
you would mean essentially
579
00:28:35.740 --> 00:28:38.100
you satisfied your prima facie case with regard
580
00:28:38.100 --> 00:28:41.180
to a motor vehicle violation.
581
00:28:41.180 --> 00:28:44.120
And that suffices to essentially put the burden
582
00:28:44.120 --> 00:28:46.870
on the Commonwealth to show that it was race neutral.
583
00:28:46.870 --> 00:28:47.703
Right.
584
00:28:49.430 --> 00:28:50.990
Now, I have one last question for you,
585
00:28:50.990 --> 00:28:55.990
which is what are the states should we look to for guidance?
586
00:28:57.730 --> 00:29:01.960
Now manager, we have New Jersey, it's about it.
587
00:29:01.960 --> 00:29:02.793
Is it.
588
00:29:03.740 --> 00:29:05.980
As far as I can tell from my research.
589
00:29:05.980 --> 00:29:06.813
Okay,
590
00:29:06.813 --> 00:29:07.646
unfortunately.
591
00:29:07.646 --> 00:29:09.403
Wait, wait, wait, I'm sorry, so,
592
00:29:13.550 --> 00:29:15.120
I'm not sure I understood the answer
593
00:29:15.120 --> 00:29:19.863
to the Chiefs question if there are no available statistics.
594
00:29:20.850 --> 00:29:23.623
So, the defendant has nothing to present.
595
00:29:24.910 --> 00:29:25.933
What happens?
596
00:29:27.100 --> 00:29:28.220
I mean, what should happen?
597
00:29:28.220 --> 00:29:32.090
So I think there's, I mean,
598
00:29:32.090 --> 00:29:33.440
the court could go many directions,
599
00:29:33.440 --> 00:29:36.260
but I think either you put the burden
600
00:29:36.260 --> 00:29:40.360
on the Commonwealth to present evidence
601
00:29:40.360 --> 00:29:41.670
that it was raised neutral,
602
00:29:41.670 --> 00:29:46.000
or the defendant has to make some limited showing.
603
00:29:46.000 --> 00:29:50.760
And this is addressed in the McDole Amicus brief,
604
00:29:50.760 --> 00:29:54.030
but some sort of variation on the would have test.
605
00:29:54.030 --> 00:29:56.400
So if it so we start we stripped the presumption
606
00:29:56.400 --> 00:29:59.010
of regularity, and a defendant says, look,
607
00:29:59.010 --> 00:30:03.040
these were gang needed officers not typically law enfor,
608
00:30:03.040 --> 00:30:05.750
sorry, traffic enforcement.
609
00:30:05.750 --> 00:30:09.540
And here are some other factors that happened in that case
610
00:30:09.540 --> 00:30:12.390
that and again, a low bar because we've stripped
611
00:30:12.390 --> 00:30:15.220
the presumption that this is a regular traffic stop.
612
00:30:15.220 --> 00:30:17.930
So you're saying you didn't go to the would have test,
613
00:30:17.930 --> 00:30:20.760
or you wouldn't have to go to the would have test.
614
00:30:20.760 --> 00:30:23.550
So I think there's two ways to do it I guess.
615
00:30:23.550 --> 00:30:26.560
You could either and you could put the burden
616
00:30:26.560 --> 00:30:29.000
on the Commonwealth prove its race neutral,
617
00:30:29.000 --> 00:30:32.620
or make the defendant make some minor showing
618
00:30:32.620 --> 00:30:35.483
as to this doesn't seem to be.
619
00:30:37.100 --> 00:30:40.730
I guess one of the things I'm thinking about is
620
00:30:40.730 --> 00:30:44.770
that this is a systemic issue built into society.
621
00:30:44.770 --> 00:30:48.380
And so to defend any particular officer
622
00:30:48.380 --> 00:30:50.680
or accuse any particular officer,
623
00:30:50.680 --> 00:30:53.380
regardless of that officer's race or ethnicity
624
00:30:53.380 --> 00:30:58.110
might be more difficult than one would want.
625
00:30:58.110 --> 00:31:01.700
If it were if since it says systemic problem.
626
00:31:01.700 --> 00:31:04.930
I'm wondering do we need a more systemic solution?
627
00:31:04.930 --> 00:31:08.860
Right and I think that would be looking
628
00:31:08.860 --> 00:31:12.510
at macros answer for taking another look at Santana,
629
00:31:12.510 --> 00:31:14.520
which I know this court just did in Buckley
630
00:31:14.520 --> 00:31:17.520
but another reexamination.
631
00:31:17.520 --> 00:31:20.030
But remember that was under a fourth amendment analysis
632
00:31:20.030 --> 00:31:21.380
you would be asking us to employ
633
00:31:21.380 --> 00:31:23.950
that under an equal protection analysis.
634
00:31:23.950 --> 00:31:26.810
So, I guess my first answer would be take another look
635
00:31:26.810 --> 00:31:28.190
at Santana and Buckley.
636
00:31:28.190 --> 00:31:31.550
The second would be, how do we use some of the principles
637
00:31:31.550 --> 00:31:35.240
that the Washington and New Mexico courts have applied
638
00:31:35.240 --> 00:31:37.430
in the fourth amendment context,
639
00:31:37.430 --> 00:31:42.430
under an equal protection where we have a gigantic issue?
640
00:31:42.810 --> 00:31:45.570
We don't have the data because the people who are in charge
641
00:31:45.570 --> 00:31:48.250
of recording the data aren't recording it.
642
00:31:48.250 --> 00:31:53.250
And we're left with no options and the status quo.
643
00:31:53.650 --> 00:31:56.993
I think everyone agrees the status quo is not good enough.
644
00:31:59.360 --> 00:32:00.193
Thank you.
645
00:32:01.660 --> 00:32:02.493
Miss Campbell.
646
00:32:08.510 --> 00:32:11.020
Good morning, I believe still I may please the Court.
647
00:32:11.020 --> 00:32:13.270
Kalen Campbell on behalf of the Commonwealth.
648
00:32:14.230 --> 00:32:17.810
To make it very simple the Commonwealth,
649
00:32:17.810 --> 00:32:19.310
as it argued in his brief believes
650
00:32:19.310 --> 00:32:20.870
that the lower standard should change,
651
00:32:20.870 --> 00:32:23.980
and it's how exactly it should change that the court
652
00:32:23.980 --> 00:32:26.373
is tasked with figuring out today.
653
00:32:28.580 --> 00:32:31.150
In some of the questions that were posed,
654
00:32:31.150 --> 00:32:32.570
there were a lot of questions posed about how
655
00:32:32.570 --> 00:32:34.670
we incentivize police departments
656
00:32:34.670 --> 00:32:36.030
to actually collect this data.
657
00:32:36.030 --> 00:32:38.850
And that's why the Commonwealth propose that change
658
00:32:38.850 --> 00:32:40.720
in remedy that it did.
659
00:32:40.720 --> 00:32:45.710
I think the remedy use you skip the hard work
660
00:32:45.710 --> 00:32:47.060
and go right to the remedy.
661
00:32:47.060 --> 00:32:48.740
We can talk about the hard work first.
662
00:32:48.740 --> 00:32:50.480
Lets skip through the hard work first,
663
00:32:50.480 --> 00:32:54.970
tell us whether or not you agree that the judge was wrong
664
00:32:54.970 --> 00:32:58.680
in his decision as to prong one,
665
00:32:58.680 --> 00:33:00.800
and then tell us what prong two looks like.
666
00:33:00.800 --> 00:33:03.320
Sure, as two prong one is the district
667
00:33:03.320 --> 00:33:05.830
attorney's position that it should be remanded
668
00:33:05.830 --> 00:33:09.070
with for application of the new, the new standard.
669
00:33:09.070 --> 00:33:11.490
However, it's articulated because no one had the benefit
670
00:33:11.490 --> 00:33:13.240
of that at the motion hearing.
671
00:33:13.240 --> 00:33:14.073
Are you wrong or not.
672
00:33:14.073 --> 00:33:16.110
It was okay under the old standard.
673
00:33:16.110 --> 00:33:16.943
Yes.
674
00:33:18.210 --> 00:33:19.800
He was he did not hear.
675
00:33:19.800 --> 00:33:20.670
Correct.
676
00:33:20.670 --> 00:33:22.680
And I think when you look at the type of data
677
00:33:22.680 --> 00:33:25.020
that was presented, I disagree with my brother
678
00:33:25.020 --> 00:33:28.960
and I disagree with the immediate Amicus that F IO data
679
00:33:28.960 --> 00:33:31.260
standing alone is sufficient to meet the burden.
680
00:33:31.260 --> 00:33:35.930
And that's because it misunderstands what f biofield entire
681
00:33:35.930 --> 00:33:38.610
and investigative observations are.
682
00:33:38.610 --> 00:33:40.610
And what I think is important when you look
683
00:33:40.610 --> 00:33:42.710
at a case like Laura, when you look at all these cases
684
00:33:42.710 --> 00:33:44.420
is that there's a triggering event, right,
685
00:33:44.420 --> 00:33:46.810
which is typically a traffic stop,
686
00:33:46.810 --> 00:33:50.500
which is undeniably a stop in the constitutional sense.
687
00:33:50.500 --> 00:33:53.270
When you look at an fo what they are, are compilations
688
00:33:53.270 --> 00:33:56.380
of all types of observations that aren't necessarily
689
00:33:56.380 --> 00:33:58.530
anything that would trigger any constitutional right.
690
00:33:58.530 --> 00:34:01.750
It might be that they saw you and I Justice gaziano speaking
691
00:34:01.750 --> 00:34:04.300
on the street, there is no constitutional right
692
00:34:04.300 --> 00:34:05.703
that is triggered in that sort of lump,
693
00:34:05.703 --> 00:34:08.440
that that type of observation with a stop
694
00:34:08.440 --> 00:34:10.200
in the constitutional sense with a Frisk
695
00:34:10.200 --> 00:34:13.960
with a traffic stop, I think is a good basis by which
696
00:34:13.960 --> 00:34:15.770
a judge could look at that data and say that's not the
697
00:34:15.770 --> 00:34:18.350
correct type of data that we should be looking at.
698
00:34:18.350 --> 00:34:20.880
Now, that's not to say that that type of data
699
00:34:20.880 --> 00:34:23.440
would never be relevant to this type of motion.
700
00:34:23.440 --> 00:34:26.660
I think that could be relevant both in determining
701
00:34:26.660 --> 00:34:29.040
whether the inference is raised in as to the step two
702
00:34:29.040 --> 00:34:31.330
analysis which is you could look at an officers
703
00:34:31.330 --> 00:34:33.840
pattern of sort of his interactions
704
00:34:35.717 --> 00:34:38.850
with individuals how he patrols and you could infer
705
00:34:38.850 --> 00:34:41.700
some sort of inference as to that.
706
00:34:41.700 --> 00:34:44.270
But can't you say that the and I think I know
707
00:34:44.270 --> 00:34:47.570
I read this but that I think the FMO are
708
00:34:47.570 --> 00:34:49.730
over something like seven year period
709
00:34:49.730 --> 00:34:53.790
and and there's something like 80% minority
710
00:34:54.960 --> 00:34:57.040
if my memories right, but correct and
711
00:34:57.040 --> 00:35:00.510
and then I can't remember where I read it, but
712
00:35:00.510 --> 00:35:04.770
there's discrimination built into the BIOS as to
713
00:35:04.770 --> 00:35:06.200
who's fit as well.
714
00:35:06.200 --> 00:35:10.723
So in other words, that it's an underrepresented number.
715
00:35:12.620 --> 00:35:15.470
I don't know if I agree with that assertion
716
00:35:15.470 --> 00:35:18.380
that there's discrimination built into the FIOs itself?
717
00:35:18.380 --> 00:35:20.090
Are you talking about the FBI goes
718
00:35:20.090 --> 00:35:23.173
as uses statistics to support the defense personnel?
719
00:35:24.170 --> 00:35:28.870
The FBI OHS are over represented with people of color be
720
00:35:28.870 --> 00:35:30.780
that that's the contention.
721
00:35:30.780 --> 00:35:32.460
I can't remember if it's the defendants
722
00:35:32.460 --> 00:35:33.720
prefer the amicus briefs.
723
00:35:33.720 --> 00:35:37.560
So it it actually undervalues that number
724
00:35:37.560 --> 00:35:39.133
for the lower part.
725
00:35:42.400 --> 00:35:43.900
I do, I do understand your question,
726
00:35:43.900 --> 00:35:46.030
and I think that but I think that when
727
00:35:46.030 --> 00:35:50.520
you're looking at sort of, again, to go back
728
00:35:50.520 --> 00:35:52.430
if you're looking at sort of what type of data
729
00:35:52.430 --> 00:35:55.060
we should be looking at when determining what the data
730
00:35:55.060 --> 00:35:57.970
should be comprised of and and what should it focus on,
731
00:35:57.970 --> 00:36:00.800
I think I think framing it in terms of
732
00:36:00.800 --> 00:36:03.550
Was there a stopping the constitutional senses is sort of
733
00:36:03.550 --> 00:36:06.995
it the cleanest, easiest way to look at it?
734
00:36:06.995 --> 00:36:08.500
And then that's not to say that you can't consider
735
00:36:08.500 --> 00:36:11.630
that other data, but but sort of the type of data
736
00:36:11.630 --> 00:36:12.917
that should be sort of the stop
737
00:36:12.917 --> 00:36:15.190
and the constitutional sense the stop of this car.
738
00:36:15.190 --> 00:36:17.940
Yeah, and I and I know you're, you're dealing
739
00:36:17.940 --> 00:36:21.920
with a different structure than Lauren,
740
00:36:21.920 --> 00:36:23.860
you're gonna answer Justice gaziano his question,
741
00:36:23.860 --> 00:36:25.850
but what plan to it look like?
742
00:36:25.850 --> 00:36:29.317
But I asked the question in terms of whether the
743
00:36:29.317 --> 00:36:33.943
spiritual judge got it wrong that Laura was satisfied.
744
00:36:33.943 --> 00:36:37.010
And no, no, is the answer to my question.
745
00:36:37.010 --> 00:36:39.200
But But even if you this court were to look
746
00:36:39.200 --> 00:36:42.233
at these statistics and find that Laura was satisfied.
747
00:36:43.230 --> 00:36:44.730
That's only stage one.
748
00:36:44.730 --> 00:36:46.210
There was never any finding.
749
00:36:46.210 --> 00:36:48.110
If you look at the way that it is structured,
750
00:36:48.110 --> 00:36:49.663
there has to be that there is a finding that
751
00:36:49.663 --> 00:36:53.490
there's a reasonable inference and then it then only then
752
00:36:53.490 --> 00:36:54.960
when there's the finding is that is that triggered
753
00:36:54.960 --> 00:36:56.940
that the Commonwealth has to rebut that inference?
754
00:36:56.940 --> 00:37:00.317
So I say, at best we're asking for
755
00:37:00.317 --> 00:37:03.560
And so you're saying that the in every Morrow type case
756
00:37:03.560 --> 00:37:05.450
there's to be two evidentiary hearings?
757
00:37:05.450 --> 00:37:08.590
One, we don't do that discrimination cases
758
00:37:08.590 --> 00:37:10.300
we don't do anywhere else that we have
759
00:37:10.300 --> 00:37:13.220
two evidentiary hearings unless the judge says,
760
00:37:13.220 --> 00:37:15.780
I'm going to bifurcate the hearing
761
00:37:15.780 --> 00:37:18.112
and only decide the first issue.
762
00:37:18.112 --> 00:37:20.283
Was that was that done here?
763
00:37:21.130 --> 00:37:22.130
That was not done here.
764
00:37:22.130 --> 00:37:24.330
But there was also no finding us to the first prom.
765
00:37:24.330 --> 00:37:26.120
So I'd say the combo was never ends when
766
00:37:26.120 --> 00:37:28.810
Since when do you get the privilege
767
00:37:28.810 --> 00:37:31.370
of a bifurcated evidentiary hearing to say
768
00:37:31.370 --> 00:37:34.900
we only will discuss prong one at this evidentiary hearing
769
00:37:34.900 --> 00:37:38.310
will offer no evidence in the event you make the finding,
770
00:37:38.310 --> 00:37:40.930
and we reserve the right then to then come back
771
00:37:40.930 --> 00:37:42.720
and have a second evidentiary hearing.
772
00:37:42.720 --> 00:37:45.240
I'd say the problem with any kind of question
773
00:37:45.240 --> 00:37:47.400
about how these hearings should go is that
774
00:37:47.400 --> 00:37:50.570
there haven't been many that have been successful,
775
00:37:50.570 --> 00:37:52.250
so there isn't any sort of guidance as to how
776
00:37:52.250 --> 00:37:53.230
they should go.
777
00:37:53.230 --> 00:37:55.770
I'd say looking at the standard itself would suggest
778
00:37:55.770 --> 00:37:59.903
that as to how the Commonwealth could present evidence.
779
00:38:01.700 --> 00:38:04.070
That's why I mean, there's a lot of confusion generally
780
00:38:04.070 --> 00:38:06.910
as to how it happens, because you have sort of
781
00:38:06.910 --> 00:38:09.420
what happens is because it's largely the same witnesses,
782
00:38:09.420 --> 00:38:14.290
you have sort of, at least in my experience,
783
00:38:14.290 --> 00:38:16.340
the Commonwealth goes versus to the officer,
784
00:38:16.340 --> 00:38:17.840
but just on the fourth amendment issue,
785
00:38:17.840 --> 00:38:19.430
and so there's that type of testimony
786
00:38:19.430 --> 00:38:21.560
and then the statistician either goes first or go second.
787
00:38:21.560 --> 00:38:23.930
And it really is jumbled and confused
788
00:38:23.930 --> 00:38:26.300
as to the the two different types of issues.
789
00:38:26.300 --> 00:38:29.670
Let's assume you we figured all that out.
790
00:38:29.670 --> 00:38:30.503
Okay.
791
00:38:30.503 --> 00:38:31.990
What would you have presented?
792
00:38:31.990 --> 00:38:35.070
Had you had the opportunity for the stuff to park?
793
00:38:35.070 --> 00:38:37.100
Sure and so as as to this case,
794
00:38:37.100 --> 00:38:38.340
I don't want to talk in specifics
795
00:38:38.340 --> 00:38:40.130
because it isn't supported by the record.
796
00:38:40.130 --> 00:38:42.840
But I think it could be instructive as to sort of
797
00:38:42.840 --> 00:38:45.810
what is stage two hearings should look like?
798
00:38:45.810 --> 00:38:49.480
And I disagree with my brother that it only
799
00:38:49.480 --> 00:38:51.740
should be refuting the statistics,
800
00:38:51.740 --> 00:38:54.380
because if you look at equal protection claims generally
801
00:38:54.380 --> 00:38:56.820
but I think the most instructive are the selective
802
00:38:56.820 --> 00:38:58.320
prosecution claims.
803
00:38:58.320 --> 00:38:59.670
What you're really looking for,
804
00:38:59.670 --> 00:39:03.550
is the selective effect and a discriminatory effect
805
00:39:03.550 --> 00:39:05.350
with a discriminatory purpose.
806
00:39:05.350 --> 00:39:08.310
And I do assert in my brief and I do believe the case
807
00:39:08.310 --> 00:39:11.330
law supports that the discriminatory discriminatory purpose
808
00:39:11.330 --> 00:39:12.363
is subjective.
809
00:39:13.260 --> 00:39:15.957
I think in it an easy way to think about this is almost
810
00:39:15.957 --> 00:39:19.020
to analogize this to a Batson claim,
811
00:39:19.020 --> 00:39:21.300
in which, you know, there's numbers that you can point
812
00:39:21.300 --> 00:39:24.140
to in that instance, it's the striking of jurors
813
00:39:24.140 --> 00:39:26.570
to see if there's a pattern and then it switches
814
00:39:26.570 --> 00:39:29.330
to the prosecutor to state the race neutral reason
815
00:39:29.330 --> 00:39:31.350
why they exercise that that challenge.
816
00:39:31.350 --> 00:39:35.810
I think, a similar type of sort of analogous analysis
817
00:39:35.810 --> 00:39:37.630
could work and should work.
818
00:39:38.630 --> 00:39:40.690
How does that help the harm?
819
00:39:40.690 --> 00:39:44.520
If if say, this played out right in the stats
820
00:39:44.520 --> 00:39:46.430
of what they are in this case,
821
00:39:46.430 --> 00:39:51.047
and then collapsed here and police officers get back
822
00:39:51.047 --> 00:39:53.240
on the stand and they say we really,
823
00:39:53.240 --> 00:39:56.450
really telling you judge, we didn't stop the person
824
00:39:56.450 --> 00:39:58.090
because they were black.
825
00:39:58.090 --> 00:40:00.880
And the judge says, good for me, it's over?
826
00:40:00.880 --> 00:40:04.260
No, I think there has to be more and
827
00:40:04.260 --> 00:40:05.300
That's our race neutral.
828
00:40:05.300 --> 00:40:07.550
We stopped, we stopped it because we ran the
829
00:40:07.550 --> 00:40:10.470
inspection sticker and inspection sticker was invalid.
830
00:40:10.470 --> 00:40:11.960
We pull everybody over that has
831
00:40:11.960 --> 00:40:14.250
an invalid inspection sticker.
832
00:40:14.250 --> 00:40:16.550
That's similar to what happens in Batson source.
833
00:40:16.550 --> 00:40:18.467
It's a reasonable reason.
834
00:40:18.467 --> 00:40:20.990
But how does that help the systemic calm
835
00:40:20.990 --> 00:40:22.553
that Laura's trying to combat?
836
00:40:24.070 --> 00:40:26.940
I think my answer to that is is twofold.
837
00:40:26.940 --> 00:40:29.530
I think looking at the statistics and the broader
838
00:40:29.530 --> 00:40:31.360
statistics are sort of a pattern of behavior
839
00:40:31.360 --> 00:40:33.770
of any kind of officer would inform the credibility
840
00:40:33.770 --> 00:40:36.840
determination that a judge hearing any officer saying
841
00:40:36.840 --> 00:40:38.640
that would would make.
842
00:40:38.640 --> 00:40:41.080
The second is I don't think that you can just point
843
00:40:41.080 --> 00:40:43.550
at statistics when you think and this case shows
844
00:40:43.550 --> 00:40:47.320
why as to sort of what officers are tasked
845
00:40:47.320 --> 00:40:49.920
with investigating and the type of units that
846
00:40:49.920 --> 00:40:51.430
they're tasked with being in.
847
00:40:51.430 --> 00:40:53.890
So for example, if you have an officer who is part
848
00:40:53.890 --> 00:40:55.550
of the youth violence strike force in Boston
849
00:40:55.550 --> 00:40:58.720
and is tasked with investigating Cape verdean gang violence,
850
00:40:58.720 --> 00:41:00.120
then of course, the statistics
851
00:41:00.120 --> 00:41:02.940
as to his BIOS are going to look very different
852
00:41:02.940 --> 00:41:04.460
than the statistics of someone who's just
853
00:41:04.460 --> 00:41:08.190
on a routine traffic patrol or someone who is tasked
854
00:41:08.190 --> 00:41:10.790
with investigating crime in Chinatown.
855
00:41:10.790 --> 00:41:15.790
The specific sort of investigatory tasks that these officers
856
00:41:16.090 --> 00:41:18.290
are given have to be taken into account
857
00:41:18.290 --> 00:41:20.860
when looking at the statistics that are presented.
858
00:41:20.860 --> 00:41:22.190
And that's important.
859
00:41:22.190 --> 00:41:23.830
Again, I don't want to bring bring it back to
860
00:41:23.830 --> 00:41:26.730
this sort of triggering event and what should the focus be,
861
00:41:26.730 --> 00:41:29.610
but there's no constitutional right not to be investigated.
862
00:41:29.610 --> 00:41:32.220
And so there has to be a balance against police officers
863
00:41:32.220 --> 00:41:34.820
valid right to investigate crimes, often serious crimes
864
00:41:34.820 --> 00:41:38.770
of violence, against individual rights of of people
865
00:41:38.770 --> 00:41:41.290
and recognizing the systemic problems of racism,
866
00:41:41.290 --> 00:41:44.250
racism in society, and that's almost an impossible balance
867
00:41:44.250 --> 00:41:45.083
I recognize that.
868
00:41:45.083 --> 00:41:46.520
Are we talking we're I thought
869
00:41:46.520 --> 00:41:48.920
we weren't talking about investigating crimes
870
00:41:48.920 --> 00:41:53.000
that we were talking about basic minor traffic violations.
871
00:41:53.000 --> 00:41:55.380
Sure, but I think if you look at so if you were
872
00:41:55.380 --> 00:41:57.610
to use the benchmark of FiOS, for example,
873
00:41:57.610 --> 00:41:58.760
that's investigatory.
874
00:41:58.760 --> 00:42:00.050
That's investigating crime.
875
00:42:00.050 --> 00:42:02.230
Sort of pointed FiOS and say, you know,
876
00:42:02.230 --> 00:42:05.230
they stop 80% of people of color that they look at that
877
00:42:05.230 --> 00:42:07.663
that's not really a true picture of,
878
00:42:08.610 --> 00:42:11.780
of sort of the discriminatory intent or purpose
879
00:42:11.780 --> 00:42:13.680
of the interactions that this officer had
880
00:42:13.680 --> 00:42:15.340
with an individual.
881
00:42:15.340 --> 00:42:16.340
So I agree with you.
882
00:42:16.340 --> 00:42:18.420
That's where I think the data is important.
883
00:42:18.420 --> 00:42:20.300
And what data that that is look at is.
884
00:42:20.300 --> 00:42:24.120
Can you think of any way to address the systemic harm
885
00:42:24.120 --> 00:42:29.120
without putting the weight on the individuals involved in it
886
00:42:29.190 --> 00:42:30.940
in this instance.
887
00:42:30.940 --> 00:42:32.120
Without putting it on
888
00:42:32.120 --> 00:42:34.610
The weight on the individual police officer or the weight
889
00:42:34.610 --> 00:42:36.810
on the individual defendant?
890
00:42:36.810 --> 00:42:39.380
Because it is a broader systemic issue, isn't it?
891
00:42:39.380 --> 00:42:40.213
Correct.
892
00:42:40.213 --> 00:42:43.410
So how do we remedy that with individual
893
00:42:43.410 --> 00:42:45.653
little individual remedies?
894
00:42:47.580 --> 00:42:50.020
I think in the same way, and again, not to bring it back
895
00:42:50.020 --> 00:42:51.663
to Bateson, but Bateson also recognizes that
896
00:42:51.663 --> 00:42:54.560
there's sort of system, I can't say this word
897
00:42:54.560 --> 00:42:57.990
systemic problems of racism and jury selection, right.
898
00:42:57.990 --> 00:43:00.070
And so the way that they do that is create a burden
899
00:43:00.070 --> 00:43:03.510
for defendant which is initially low and then to shift
900
00:43:03.510 --> 00:43:06.340
that burden prosecutor to state the reasons
901
00:43:06.340 --> 00:43:08.880
why this would be a valid exercise of power
902
00:43:08.880 --> 00:43:09.840
exercise of a parameter.
903
00:43:09.840 --> 00:43:13.220
But you seem to agree that that right now
904
00:43:13.220 --> 00:43:15.980
we have Laura which is the end that first prong is
905
00:43:15.980 --> 00:43:19.100
is so difficult because we just liquid a chicken
906
00:43:19.100 --> 00:43:22.763
New Jersey on the New Jersey Turnpike to the man hours.
907
00:43:23.850 --> 00:43:28.560
So it's it's too much I mean, even this case was
908
00:43:28.560 --> 00:43:31.990
was a lot of legwork over a lot seven years
909
00:43:31.990 --> 00:43:32.930
or something like that.
910
00:43:32.930 --> 00:43:37.930
So, it seems like you're agreeing that that that first prong
911
00:43:39.100 --> 00:43:41.300
shouldn't just like in Batson I guess
912
00:43:41.300 --> 00:43:44.900
you shouldn't be very weighty, what should it be?
913
00:43:44.900 --> 00:43:47.060
Now and I think it should,
What should.
914
00:43:47.060 --> 00:43:48.385
What should it be or what shouldn't it be?
915
00:43:48.385 --> 00:43:51.050
What should it be, what would you need to
916
00:43:51.050 --> 00:43:54.070
if Lauren's just too much too much,
917
00:43:54.070 --> 00:43:57.500
which I think you're saying then then what do you need
918
00:43:57.500 --> 00:43:59.790
to be able to show to get to this
919
00:44:01.860 --> 00:44:03.183
almost two prong two.
920
00:44:04.950 --> 00:44:08.660
The answer to that, I think is the problem
921
00:44:08.660 --> 00:44:10.660
that I could identify with the lower standard
922
00:44:10.660 --> 00:44:13.680
was that similarly situated,
923
00:44:13.680 --> 00:44:15.970
that the defendant would have to point to someone
924
00:44:15.970 --> 00:44:18.340
who is similarly situated and Laura,
925
00:44:18.340 --> 00:44:20.620
and this is at page 438.
926
00:44:20.620 --> 00:44:23.540
It was described as credible evidence that persons
927
00:44:23.540 --> 00:44:25.890
similarly situated to himself have been deliberately
928
00:44:25.890 --> 00:44:28.170
or consistently not prosecuted because
929
00:44:29.770 --> 00:44:32.580
How do you show the people who weren't stop?
930
00:44:32.580 --> 00:44:33.790
Absolutely, I agree with you.
931
00:44:33.790 --> 00:44:34.623
So I say that's the problem,
932
00:44:34.623 --> 00:44:37.100
because you're asking the definitive proven negative
933
00:44:37.100 --> 00:44:40.550
as opposed to point to evidence which shows a positive.
934
00:44:40.550 --> 00:44:44.670
And so the common loss proposition is that the change
935
00:44:44.670 --> 00:44:47.390
in that first prong is is is really the change away
936
00:44:47.390 --> 00:44:50.480
from the negative which is similarly situated persons
937
00:44:50.480 --> 00:44:53.340
to the positive which is using data and seeing
938
00:44:53.340 --> 00:44:55.610
if there's a statistically significant,
939
00:44:55.610 --> 00:44:58.060
anything about sort of the stops as they compare to.
940
00:44:58.060 --> 00:45:01.070
Do you agree that if the particular department
941
00:45:01.070 --> 00:45:05.373
is not keeping was sharing the data
942
00:45:05.373 --> 00:45:09.093
that should ignore to the detriment of a strong one.
943
00:45:10.550 --> 00:45:13.190
Yeah, that's a difficult question and and you know
944
00:45:13.190 --> 00:45:15.670
it the Commonwealth I think wishes that
945
00:45:15.670 --> 00:45:17.138
there was more data available as well.
946
00:45:17.138 --> 00:45:20.610
I'm getting totally confused at this point of
947
00:45:20.610 --> 00:45:22.790
because I don't understand the
948
00:45:22.790 --> 00:45:26.320
because we got traffic stops, we got units
949
00:45:26.320 --> 00:45:27.200
and traffic stuff.
950
00:45:27.200 --> 00:45:30.380
So this is a gang unit doing traffic stops,
951
00:45:30.380 --> 00:45:34.980
but it's not has no intention of giving traffic citation.
952
00:45:34.980 --> 00:45:37.540
So how do and then you're telling us we should look
953
00:45:37.540 --> 00:45:40.880
at the traffic stops maybe but not the FiOS.
954
00:45:40.880 --> 00:45:42.860
But that's the data we got fit.
955
00:45:42.860 --> 00:45:47.860
So how, but how do we do I mean, is, is this a would give us
956
00:45:48.590 --> 00:45:50.393
a little practical guidance here.
957
00:45:51.750 --> 00:45:56.750
He got two masses of information, Ci FiOS and traffic stops?
958
00:45:58.870 --> 00:46:02.350
And both of them have apparent disparities,
959
00:46:02.350 --> 00:46:04.670
particularly the FiOS.
960
00:46:04.670 --> 00:46:08.810
Now, I understand it's a gang unit but are we allowed to?
961
00:46:08.810 --> 00:46:11.260
Is has he done his job on those two things?
962
00:46:11.260 --> 00:46:14.620
Because he can't do any better given what he's been given?
963
00:46:14.620 --> 00:46:17.880
I would say no and so as to the FiOS no because.
964
00:46:17.880 --> 00:46:20.490
He can't do any better or know what,
965
00:46:20.490 --> 00:46:22.230
Who's know who's?
966
00:46:22.230 --> 00:46:24.530
Defendant defense the heat the he is defendant
967
00:46:25.450 --> 00:46:27.910
as to the two categories of that information
968
00:46:27.910 --> 00:46:28.980
as to the FBI owes.
969
00:46:28.980 --> 00:46:31.470
The problem is when you look at the experts report,
970
00:46:31.470 --> 00:46:33.220
she lumps all the FiOS together
971
00:46:33.220 --> 00:46:35.430
so she doesn't segregate out the FiOS that
972
00:46:35.430 --> 00:46:37.850
we're a traffic stop, as opposed to FIOs
973
00:46:37.850 --> 00:46:39.170
that were observations.
974
00:46:39.170 --> 00:46:42.730
So I'd say that and she made assumptions that in FAO
975
00:46:42.730 --> 00:46:45.080
was conducted in every single traffic stop,
976
00:46:45.080 --> 00:46:47.270
which there was evidence to support that that wasn't true.
977
00:46:47.270 --> 00:46:49.790
So I'd say that's a problem with methodology
978
00:46:49.790 --> 00:46:53.290
that the expert used to to make conclusions
979
00:46:53.290 --> 00:46:54.123
based on the statistics.
980
00:46:54.123 --> 00:46:57.260
Just to evaluate the defendant has a problem,
981
00:46:57.260 --> 00:46:59.903
which is they're pulling over people
982
00:46:59.903 --> 00:47:04.100
minority communities in a much higher rate.
983
00:47:04.100 --> 00:47:07.940
why they're doing it is, you know the cops are doing
984
00:47:07.940 --> 00:47:11.430
their especially the gang related is not in traffic patrol.
985
00:47:11.430 --> 00:47:14.580
They're using these excuses for FiOS, right?
986
00:47:14.580 --> 00:47:15.803
I disagree with that.
987
00:47:17.000 --> 00:47:19.650
What are they then why are they pulling over this?
988
00:47:19.650 --> 00:47:21.260
Why are they pulling over this car?
989
00:47:21.260 --> 00:47:23.380
Well, I disagree that an officer that witnesses
990
00:47:23.380 --> 00:47:25.700
a traffic violation necessarily has to be assigned
991
00:47:25.700 --> 00:47:28.880
to a traffic stop to be able to pull that car over.
992
00:47:28.880 --> 00:47:32.330
I thought one of the two officers pulled over 1000 people
993
00:47:32.330 --> 00:47:36.260
and gave five traffic's it some astronomical number
994
00:47:36.260 --> 00:47:39.190
indicating he's not doing traffic patrol, right?
995
00:47:39.190 --> 00:47:40.023
Sure, sure.
996
00:47:40.023 --> 00:47:43.040
What do we do with that good to take that example.
997
00:47:43.040 --> 00:47:45.080
Say that's all we presented,
998
00:47:45.080 --> 00:47:47.343
is that enough to meet stage one?
999
00:47:48.280 --> 00:47:51.540
When it's 80% of the people I'm just seems like
1000
00:47:51.540 --> 00:47:55.070
that seems like a compelling number that
1001
00:47:55.070 --> 00:47:58.330
we should be analyzing, because the statistics I mean,
1002
00:47:58.330 --> 00:47:59.730
I don't know a lot about statistics,
1003
00:47:59.730 --> 00:48:04.320
but that is a really big number.
1004
00:48:04.320 --> 00:48:08.680
Sure, and and I would say that pointing
1005
00:48:08.680 --> 00:48:10.470
to those statistics a judge could find
1006
00:48:10.470 --> 00:48:12.410
that a judge could find that doesn't mean
1007
00:48:12.410 --> 00:48:14.380
that a judge necessarily has to find that.
1008
00:48:14.380 --> 00:48:16.610
And I think that's where the difference lies in sort of the
1009
00:48:16.610 --> 00:48:19.900
Commonwealth articulation as to the moral standard,
1010
00:48:19.900 --> 00:48:21.960
the new law standard that it says this court should adopt
1011
00:48:21.960 --> 00:48:23.200
in the current law standard.
1012
00:48:23.200 --> 00:48:26.590
What is the new, I mean, the lower standard
1013
00:48:26.590 --> 00:48:28.590
made perfect sense at the time,
1014
00:48:28.590 --> 00:48:32.130
it was a time in which people were recognizing the
1015
00:48:32.130 --> 00:48:33.870
importance of maintaining data
1016
00:48:33.870 --> 00:48:35.960
to deal with racial profiling.
1017
00:48:35.960 --> 00:48:38.470
And it was written with the expectation that
1018
00:48:38.470 --> 00:48:41.550
we were going to have data on traffic stops based
1019
00:48:41.550 --> 00:48:45.860
on race so that we could do the analysis in Laura.
1020
00:48:45.860 --> 00:48:49.210
And that turns out that to not be true.
1021
00:48:49.210 --> 00:48:52.310
So we have one alternative,
1022
00:48:52.310 --> 00:48:54.820
which is what the defendant argues,
1023
00:48:54.820 --> 00:48:58.350
which is we have to defend it has to play the cards
1024
00:48:58.350 --> 00:49:01.210
that they're dealt and we have to be essentially
1025
00:49:01.210 --> 00:49:05.120
quite forgiving in terms of what stand what
1026
00:49:05.120 --> 00:49:08.560
when it meets the promise fashi case because
1027
00:49:08.560 --> 00:49:11.010
we don't have the best available data.
1028
00:49:11.010 --> 00:49:12.160
Do you agree with that?
1029
00:49:15.250 --> 00:49:18.580
I yes and not qualify it, but yes.
1030
00:49:18.580 --> 00:49:21.250
And so far that that could be enough to meet the standard.
1031
00:49:21.250 --> 00:49:23.010
That doesn't necessarily mean that emotion judge
1032
00:49:23.010 --> 00:49:23.950
would have to find that.
1033
00:49:23.950 --> 00:49:26.590
And why is the you've discussed the FIO.
1034
00:49:26.590 --> 00:49:30.140
Why is the motor vehicle citation data here,
1035
00:49:30.140 --> 00:49:31.750
not enough here.
1036
00:49:31.750 --> 00:49:34.400
I think the motor vehicle citation is not enough here,
1037
00:49:34.400 --> 00:49:36.920
if you look at the judge's findings.
1038
00:49:36.920 --> 00:49:40.000
He found that with respect to Dorchester itself,
1039
00:49:40.000 --> 00:49:43.250
Dr. Fowler found that 19 of the 38 citations
1040
00:49:43.250 --> 00:49:45.490
are 50% were issued to black drivers,
1041
00:49:45.490 --> 00:49:47.800
and that the racial composition of Dorchester
1042
00:49:47.800 --> 00:49:51.740
is 46.31% black per census data.
1043
00:49:51.740 --> 00:49:53.480
After running the Z test on this data,
1044
00:49:53.480 --> 00:49:55.640
Dr. Fowler found that the resulting p value
1045
00:49:55.640 --> 00:49:59.100
does not cast out on the assumption of no racial profiling.
1046
00:49:59.100 --> 00:50:01.480
So I'd say that expert that there was a finding
1047
00:50:01.480 --> 00:50:03.650
from the judge that the experts own analysis
1048
00:50:03.650 --> 00:50:06.620
of the statistics as compared to African American drivers
1049
00:50:06.620 --> 00:50:08.380
who were stopped as compared to this neighborhood
1050
00:50:08.380 --> 00:50:10.184
and day in Dorchester doesn't work
1051
00:50:10.184 --> 00:50:12.940
Different in Roxbury I believe that was
1052
00:50:12.940 --> 00:50:15.180
it was a finding that it was distinctly significant
1053
00:50:15.180 --> 00:50:16.620
with regard to Roxbury.
1054
00:50:16.620 --> 00:50:19.410
Okay, So, you're saying this is not enough here,
1055
00:50:19.410 --> 00:50:24.410
even though we have a considerable effort on the part
1056
00:50:24.530 --> 00:50:26.910
of enabled defense lawyer and enable statistician
1057
00:50:26.910 --> 00:50:29.830
to attempt to do the best they can with the data they have.
1058
00:50:29.830 --> 00:50:32.226
Under the old law standard, yes.
1059
00:50:32.226 --> 00:50:35.900
So you said the old lower standard ain't gonna work.
1060
00:50:35.900 --> 00:50:39.630
Because even when you have enable attorney
1061
00:50:39.630 --> 00:50:43.080
and enable statistician, given the quality of the data,
1062
00:50:43.080 --> 00:50:45.160
it's not going to be enough.
1063
00:50:45.160 --> 00:50:48.490
So what but you also recognize that there
1064
00:50:48.490 --> 00:50:52.410
is a reasonable concern about selective enforcement
1065
00:50:52.410 --> 00:50:54.080
through racial profiling, correct?
1066
00:50:54.080 --> 00:50:54.913
Absolutely.
1067
00:50:54.913 --> 00:50:59.740
Okay, so give us the new prama fashi test.
1068
00:50:59.740 --> 00:51:04.100
Sure, the new premier fascia test is and this is what
1069
00:51:04.100 --> 00:51:06.380
I wrote in my brief credible showing that either
1070
00:51:06.380 --> 00:51:08.480
those similarly situated were not stopped.
1071
00:51:08.480 --> 00:51:11.450
So, that's like New Jersey where they count the cars.
1072
00:51:11.450 --> 00:51:13.860
You could do it that way or
1073
00:51:13.860 --> 00:51:15.990
You cannot mean,
No, I mean.
1074
00:51:15.990 --> 00:51:19.180
How we gonna I mean defense Park and barely pay
1075
00:51:19.180 --> 00:51:22.400
for investigation we're gonna they're gonna hire people
1076
00:51:22.400 --> 00:51:24.660
to be counting cars on city streets.
1077
00:51:24.660 --> 00:51:26.380
I'm not disagreeing with you there.
1078
00:51:26.380 --> 00:51:29.220
C'mon I mean, don't get don't give us a formula
1079
00:51:29.220 --> 00:51:33.142
which you know, is impracticable.
1080
00:51:33.142 --> 00:51:35.810
I don't believe that i think i think i'm giving a formula
1081
00:51:35.810 --> 00:51:37.810
that recognizes that that what is one avenue,
1082
00:51:37.810 --> 00:51:40.130
however impractical that someone could choose to take,
1083
00:51:40.130 --> 00:51:41.980
especially with the advent of new technology
1084
00:51:41.980 --> 00:51:44.710
where there are some cases, the Federal cases
1085
00:51:44.710 --> 00:51:46.350
where they talk about setting up cameras
1086
00:51:46.350 --> 00:51:48.500
and counting based on the cameras that are set up.
1087
00:51:48.500 --> 00:51:50.310
So that some sense.
1088
00:51:50.310 --> 00:51:51.920
And what the defense counsel to have access
1089
00:51:51.920 --> 00:51:55.910
to all of the all of the cameras that a police force
1090
00:51:55.910 --> 00:52:00.160
has so they can gather all that data as part of a defense.
1091
00:52:00.160 --> 00:52:02.180
I am putting it forth simply as an avenue
1092
00:52:02.180 --> 00:52:05.120
by which a defendant could try to meet it not
1093
00:52:05.120 --> 00:52:09.470
Give us one that a defense lawyer with reasonable means
1094
00:52:09.470 --> 00:52:12.810
and reasonable ability can pragmatically meet.
1095
00:52:12.810 --> 00:52:15.400
Where there is, in fact, racial profile.
1096
00:52:15.400 --> 00:52:19.640
Sure and the second is looking at I don't disagree
1097
00:52:19.640 --> 00:52:22.290
with my brother that looking at what is available,
1098
00:52:22.290 --> 00:52:24.500
so long as what is available accounts
1099
00:52:24.500 --> 00:52:26.940
for the correct type of data.
1100
00:52:26.940 --> 00:52:29.740
So, you know, the, my argument
1101
00:52:31.760 --> 00:52:34.360
sort of depends on what police officers collect.
1102
00:52:34.360 --> 00:52:36.090
I think there's a problem with the new passage
1103
00:52:36.090 --> 00:52:39.630
of the law that doesn't necessitate the notation of race.
1104
00:52:39.630 --> 00:52:41.330
But I think, in this instance,
1105
00:52:41.330 --> 00:52:43.200
looking at the merit rating board,
1106
00:52:43.200 --> 00:52:44.940
looking at who's stopped,
1107
00:52:44.940 --> 00:52:47.040
I don't think that it necessarily has to be indicative
1108
00:52:47.040 --> 00:52:48.240
of everyone that was stopped.
1109
00:52:48.240 --> 00:52:50.307
But looking at that data at those stops
1110
00:52:50.307 --> 00:52:51.560
and saying, is there a difference
1111
00:52:51.560 --> 00:52:53.980
between is there a higher number
1112
00:52:53.980 --> 00:52:56.440
or a statistically significant number of people of color
1113
00:52:56.440 --> 00:52:59.200
who are stopped as opposed to as opposed to people
1114
00:52:59.200 --> 00:53:00.363
that are not of color?
1115
00:53:01.210 --> 00:53:04.730
So are you saying that if the data reflects that Boston
1116
00:53:04.730 --> 00:53:08.130
or Brockton early in or for that matter, Wellesley
1117
00:53:08.130 --> 00:53:11.470
or Lexington, indicates that there's racial disparity
1118
00:53:11.470 --> 00:53:15.190
in terms of a stop that that suffices for all cases
1119
00:53:15.190 --> 00:53:18.390
by those police officers to meet the promise fashi case
1120
00:53:18.390 --> 00:53:21.520
and shifts the burden to the prosecutor to show
1121
00:53:21.520 --> 00:53:22.770
that it was race neutral.
1122
00:53:24.729 --> 00:53:26.226
Are you saying that, I'm sorry,
1123
00:53:26.226 --> 00:53:27.811
I just don't understand the question, are you saying that.
1124
00:53:27.811 --> 00:53:30.390
Let's assume for the sake of argument,
1125
00:53:30.390 --> 00:53:32.750
okay, that that data when it's generated,
1126
00:53:32.750 --> 00:53:35.550
shows that there are various jurisdictions
1127
00:53:35.550 --> 00:53:39.710
with substantial racial disparity among who is stopped
1128
00:53:39.710 --> 00:53:41.810
and that the racial disparity indicates
1129
00:53:41.810 --> 00:53:45.780
that African Americans are considerably more likely
1130
00:53:45.780 --> 00:53:47.840
to be stopped given their percentage
1131
00:53:47.840 --> 00:53:51.323
of the population than white persons.
1132
00:53:52.850 --> 00:53:55.600
Your brother says, well, that means then
1133
00:53:55.600 --> 00:53:58.830
with regard to every case, involving a police officer
1134
00:53:58.830 --> 00:54:01.500
from that jurisdiction, that should suffice
1135
00:54:01.500 --> 00:54:04.490
to meet the promise fashi case of racial profiling
1136
00:54:04.490 --> 00:54:07.330
or selective enforcement, and that should shift the burden
1137
00:54:07.330 --> 00:54:09.890
to the Commonwealth to prove that this
1138
00:54:09.890 --> 00:54:11.813
was a race neutral stuff.
1139
00:54:12.800 --> 00:54:16.330
So, generally a town generally
1140
00:54:16.330 --> 00:54:19.194
engaging in racial profiling, that fits wirelessly.
1141
00:54:19.194 --> 00:54:22.330
It's the wealthy police officer making the
1142
00:54:22.330 --> 00:54:24.570
motor vehicle stop which results in
1143
00:54:25.580 --> 00:54:30.580
in a non motor vehicle prosecution, then that would suffice.
1144
00:54:33.880 --> 00:54:36.533
Under the current data that's collected, under...
1145
00:54:39.358 --> 00:54:40.191
Under the new state law.
1146
00:54:40.191 --> 00:54:45.191
Under the new state law, absent if it really is true,
1147
00:54:45.470 --> 00:54:48.080
that they aren't collecting it individually by officer
1148
00:54:48.080 --> 00:54:50.630
and it's that problem, then yes,
1149
00:54:50.630 --> 00:54:53.150
I could see how that could be a workable solution.
1150
00:54:53.150 --> 00:54:55.520
I would caution against that insofar as we don't know
1151
00:54:55.520 --> 00:54:58.270
how actually that's going to shake out.
1152
00:54:58.270 --> 00:54:59.720
We don't know if it is in fact true.
1153
00:54:59.720 --> 00:55:02.190
We don't What does sort of citations look like.
1154
00:55:02.190 --> 00:55:04.560
I don't know how that information wouldn't be collected
1155
00:55:04.560 --> 00:55:07.260
by merit of the way that traffic citations are issued.
1156
00:55:08.730 --> 00:55:10.690
So that's what gives me pause in that answer,
1157
00:55:10.690 --> 00:55:13.450
but hypothetically, assuming that there is no universe
1158
00:55:13.450 --> 00:55:15.000
in which you can reasonably figure out
1159
00:55:15.000 --> 00:55:19.590
which officers issued wishes citations, then yes.
1160
00:55:19.590 --> 00:55:21.890
That the macro brief offers an alternative,
1161
00:55:21.890 --> 00:55:26.130
which is, if there is a showing that it is a pretextual stop
1162
00:55:26.130 --> 00:55:28.760
that is that the true purpose for the motor vehicle stuff
1163
00:55:28.760 --> 00:55:33.530
was not to make a motor vehicle, the citation
1164
00:55:33.530 --> 00:55:38.073
but in fact to attempt to do a criminal investigation,
1165
00:55:39.073 --> 00:55:40.880
but there essentially was a stop and frisk policy
1166
00:55:40.880 --> 00:55:44.640
with regard to automobiles, that that would suffice
1167
00:55:44.640 --> 00:55:46.340
to meet the fashi case.
1168
00:55:46.340 --> 00:55:48.101
Do you agree with that?
1169
00:55:48.101 --> 00:55:50.450
No, I don't, I don't agree with that.
1170
00:55:50.450 --> 00:55:54.300
And I disagree with that insofar as it though,
1171
00:55:54.300 --> 00:55:56.930
it doesn't explicitly ithat it really does
1172
00:55:56.930 --> 00:55:59.620
is switches the presumption that traffic stops
1173
00:55:59.620 --> 00:56:01.180
are undertaking a good faith.
1174
00:56:01.180 --> 00:56:03.163
Well, but maybe it's time to do that.
1175
00:56:04.200 --> 00:56:06.273
I don't believe that you should
1176
00:56:06.273 --> 00:56:08.060
I understand that that is something that that
1177
00:56:08.060 --> 00:56:11.000
that the court could do I caution against that insofar
1178
00:56:11.000 --> 00:56:14.530
as that presumption exists because it asks the court
1179
00:56:14.530 --> 00:56:17.440
to exercise a judicial power over special problems
1180
00:56:17.440 --> 00:56:21.420
of the executive and where it touches on separation
1181
00:56:21.420 --> 00:56:25.620
of powers, I strongly, strongly urge the court not to do so.
1182
00:56:25.620 --> 00:56:27.840
But I do fully understand that is something the court
1183
00:56:27.840 --> 00:56:28.673
could do.
1184
00:56:28.673 --> 00:56:32.040
What about the idea of always making this be by citation
1185
00:56:32.040 --> 00:56:33.560
as opposed to by stopping?
1186
00:56:33.560 --> 00:56:37.463
I hadn't thought about that until you guys are good.
1187
00:56:41.322 --> 00:56:42.750
I disagree with that, insofar as
1188
00:56:42.750 --> 00:56:46.000
there's certain sort of motor vehicle infractions
1189
00:56:46.000 --> 00:56:48.590
that could impinge on the safety of the road
1190
00:56:48.590 --> 00:56:49.670
and I wouldn't want
1191
00:56:49.670 --> 00:56:52.510
That'd be different than some other kind of
1192
00:56:52.510 --> 00:56:54.020
motor vehicle citation.
1193
00:56:54.020 --> 00:56:56.970
Sure, just blanket when you see a motor vehicle citation
1194
00:56:56.970 --> 00:56:59.180
By motor vehicle translate, they would only be subject
1195
00:56:59.180 --> 00:57:00.600
to fines.
1196
00:57:00.600 --> 00:57:01.530
Broken taillight
1197
00:57:02.820 --> 00:57:03.653
Five lines.
1198
00:57:04.658 --> 00:57:06.908
(laughter)
1199
00:57:08.220 --> 00:57:13.220
Understanding of potential public safety.
1200
00:57:13.896 --> 00:57:15.340
So, what do we do?
1201
00:57:15.340 --> 00:57:16.720
I mean, you say this infringed.
1202
00:57:16.720 --> 00:57:20.640
We have an officer here, who says that he made
1203
00:57:20.640 --> 00:57:24.170
hundreds of traffic stops every year and gave
1204
00:57:24.170 --> 00:57:26.470
only a handful of traffic citations.
1205
00:57:26.470 --> 00:57:29.790
So we know that when he's making those stops
1206
00:57:29.790 --> 00:57:32.440
in the vast majority of cases he's not doing either
1207
00:57:32.440 --> 00:57:37.410
he's not doing it to give a motor vehicle citation
1208
00:57:37.410 --> 00:57:41.320
or his evaluation of whether there's probable cause
1209
00:57:41.320 --> 00:57:42.643
or reasonable suspicion that there is
1210
00:57:42.643 --> 00:57:47.040
a motor vehicle citation is terribly poor.
1211
00:57:47.040 --> 00:57:52.040
So let's assume it's the first is that is that
1212
00:57:52.110 --> 00:57:55.670
within a law enforcement prerogative to essentially say that
1213
00:57:55.670 --> 00:57:58.140
if we have reasonable suspicion to believe
1214
00:57:58.140 --> 00:58:00.990
or probable cause believe this motor vehicle, citation.
1215
00:58:00.990 --> 00:58:02.370
And that's not our intent.
1216
00:58:02.370 --> 00:58:05.590
But our intent is to stop the car.
1217
00:58:05.590 --> 00:58:06.990
Give us an opportunity to see if
1218
00:58:06.990 --> 00:58:08.660
there's an outstanding warrant.
1219
00:58:08.660 --> 00:58:11.420
See if the person looks nervous, and if we can find guns
1220
00:58:11.420 --> 00:58:13.460
or drugs, see if something happens
1221
00:58:13.460 --> 00:58:15.470
to justify the empowerment of the vehicle
1222
00:58:15.470 --> 00:58:18.440
and therefore do an inventory search and maybe find drugs
1223
00:58:18.440 --> 00:58:22.750
or guns, that that is something which is permissible
1224
00:58:22.750 --> 00:58:25.490
for police to do and that we as a judiciary
1225
00:58:25.490 --> 00:58:30.490
should not in any way prevent that or or or have any,
1226
00:58:30.500 --> 00:58:35.500
or it's not within our judicial power to take any steps
1227
00:58:35.550 --> 00:58:37.263
with regard to that.
1228
00:58:37.263 --> 00:58:39.780
I think you could, I think you could take steps in saying
1229
00:58:39.780 --> 00:58:42.680
that that type of showing could result in a finding
1230
00:58:42.680 --> 00:58:44.803
by a judge of the first problem.
1231
00:58:47.320 --> 00:58:49.250
But I don't think you want to create a rule
1232
00:58:49.250 --> 00:58:52.280
by which an officer has to issue a citation every time
1233
00:58:52.280 --> 00:58:55.500
they pull someone over for a minor motor vehicle infraction
1234
00:58:55.500 --> 00:58:58.060
that's mostly as a driver in this Commonwealth but.
1235
00:58:58.060 --> 00:59:00.070
But so but when I presented their possibility
1236
00:59:00.070 --> 00:59:02.660
that is showing a pretext would suffice.
1237
00:59:02.660 --> 00:59:04.680
You said, No, we can't do that.
1238
00:59:04.680 --> 00:59:06.520
And I'm trying to figure out why we can't do that.
1239
00:59:06.520 --> 00:59:08.840
I know you asked me if I thought that
1240
00:59:08.840 --> 00:59:10.850
that was a standard that you should adopt.
1241
00:59:10.850 --> 00:59:12.820
No, that's not the Commonwealth position that the
1242
00:59:12.820 --> 00:59:14.703
that's the standard you should adopt.
1243
00:59:16.440 --> 00:59:19.270
Because I What, what gives me pause
1244
00:59:19.270 --> 00:59:23.780
there is sort of the definition and meaning of protectable
1245
00:59:23.780 --> 00:59:28.380
And what gives me pause there is especially I am glad that
1246
00:59:28.380 --> 00:59:31.630
we ended up here because I wanted to respond to my brothers.
1247
00:59:31.630 --> 00:59:33.730
What he ended on which was asking the court
1248
00:59:33.730 --> 00:59:37.030
to revisit Buckley and Santana there,
1249
00:59:37.030 --> 00:59:39.440
there really does exist under the Fourth Amendment
1250
00:59:39.440 --> 00:59:42.940
is separate and apart remedy for fourth amendment violations
1251
00:59:42.940 --> 00:59:45.240
as to where there isn't an objective basis for this stuff.
1252
00:59:45.240 --> 00:59:50.240
And, and this even, you know, the equal protection claim
1253
00:59:50.270 --> 00:59:53.010
and violation here is really it should stand separate,
1254
00:59:53.010 --> 00:59:54.610
because it recognizes that even where
1255
00:59:54.610 --> 00:59:56.910
there's an objective basis for these types of stops,
1256
00:59:56.910 --> 01:00:00.150
there could be an improper motivation for those stops.
1257
01:00:00.150 --> 01:00:04.210
And so to mix the two together, I just don't think that
1258
01:00:04.210 --> 01:00:07.310
that analytically really serves any anybody's best purpose
1259
01:00:07.310 --> 01:00:09.300
where there are these two different remedies.
1260
01:00:09.300 --> 01:00:10.920
I'm sorry, but what is it mixed it together
1261
01:00:10.920 --> 01:00:14.220
if we say Buckley was a fourth amendment case,
1262
01:00:14.220 --> 01:00:16.300
and we're not going to say that pretext matters
1263
01:00:16.300 --> 01:00:20.480
for fourth amendment claim, but it might matter
1264
01:00:20.480 --> 01:00:22.620
with regard to legal protection claim.
1265
01:00:22.620 --> 01:00:26.260
And I guess I don't understand what you mean by by pretext
1266
01:00:26.260 --> 01:00:27.800
is they're finding that they're.
1267
01:00:27.800 --> 01:00:30.870
I think that the true reason for the motor vehicle stuff
1268
01:00:30.870 --> 01:00:32.780
was not the motor vehicle violation,
1269
01:00:32.780 --> 01:00:36.760
but it was an excuse to do all the things that can happen
1270
01:00:36.760 --> 01:00:39.670
when you stop somebody the same motivation that was found
1271
01:00:39.670 --> 01:00:43.150
in New York with regard to stop and frisk policy
1272
01:00:43.150 --> 01:00:46.480
is all the things that can happen when you stop a vehicle
1273
01:00:46.480 --> 01:00:49.350
and interact with the individual and the potentials
1274
01:00:49.350 --> 01:00:53.230
for the arrest on outstanding warrant the possibility
1275
01:00:53.230 --> 01:00:54.853
of inventory sameen of impalement and inventory search.
1276
01:00:56.879 --> 01:01:01.879
I think you mean no I know it goes a lot on the street.
1277
01:01:04.950 --> 01:01:05.800
I don't know, I agree.
1278
01:01:05.800 --> 01:01:08.002
Well, I understand the question that you're asking,
1279
01:01:08.002 --> 01:01:13.002
and i would say, sort of what you're touching upon
1280
01:01:14.100 --> 01:01:16.550
is is more of a second problem,
1281
01:01:16.550 --> 01:01:19.283
discriminatory effect and discriminatory intent.
1282
01:01:20.290 --> 01:01:24.270
So So if the intent of the officer was not necessarily
1283
01:01:24.270 --> 01:01:28.020
to do a traffic stop if the intent of the officer was
1284
01:01:28.020 --> 01:01:30.060
to do something else, that surely is something
1285
01:01:30.060 --> 01:01:32.020
that could be considered at that at that second stage.
1286
01:01:32.020 --> 01:01:34.090
So I don't think that it necessarily
1287
01:01:34.090 --> 01:01:35.490
never comes into play at all.
1288
01:01:35.490 --> 01:01:38.210
And independence surely could argue that but I think
1289
01:01:38.210 --> 01:01:40.330
in the framework that the Commonwealth has presented
1290
01:01:40.330 --> 01:01:42.850
that there is room for that evidence to come forth
1291
01:01:42.850 --> 01:01:43.683
and for the judge to consider it.
1292
01:01:43.683 --> 01:01:45.520
But the first stage can be very high
1293
01:01:45.520 --> 01:01:47.510
and that's why I don't understand to me
1294
01:01:47.510 --> 01:01:51.330
if you had these facts, you have a police officer who
1295
01:01:51.330 --> 01:01:56.030
over the course of years is given so few traffic citations
1296
01:01:57.290 --> 01:02:01.150
for minimal vehicle infractions.
1297
01:02:01.150 --> 01:02:06.150
Why that should get you to that second question.
1298
01:02:06.490 --> 01:02:07.890
And it could it could.
1299
01:02:07.890 --> 01:02:09.720
And I think I think that's where pointing
1300
01:02:09.720 --> 01:02:12.950
I think that's where sort of re articulating
1301
01:02:12.950 --> 01:02:14.940
and explaining what is in that first prong
1302
01:02:14.940 --> 01:02:16.730
is what the court should do.
1303
01:02:16.730 --> 01:02:19.020
Now, that doesn't necessarily mean that a judge
1304
01:02:19.020 --> 01:02:21.600
has to credit that or judge has to find that.
1305
01:02:21.600 --> 01:02:24.470
And that's why I caution that you the real reason
1306
01:02:24.470 --> 01:02:27.040
why the Commonwealth is advocating
1307
01:02:27.040 --> 01:02:27.873
well, not the real reason,
1308
01:02:27.873 --> 01:02:29.240
but a reason that the Commonwealth
1309
01:02:29.240 --> 01:02:31.010
is advocating for remand in this case is
1310
01:02:31.010 --> 01:02:34.530
because none of this was clear when the evidence
1311
01:02:34.530 --> 01:02:36.930
was being presented to the judge because of the lack
1312
01:02:36.930 --> 01:02:40.470
of any type of case law on this type of of this issue.
1313
01:02:40.470 --> 01:02:42.530
So it wasn't really clear what could suffice
1314
01:02:42.530 --> 01:02:45.230
for the first prong and it never has really been discussed
1315
01:02:45.230 --> 01:02:47.080
what should be considered at the second problem.
1316
01:02:47.080 --> 01:02:48.900
So it seems in the interest of justice to sort of let
1317
01:02:48.900 --> 01:02:50.260
everybody with guidance of
1318
01:02:50.260 --> 01:02:52.350
The remand, the interest of justice
1319
01:02:52.350 --> 01:02:55.940
in this particular case, you couldn't robot it.
1320
01:03:00.520 --> 01:03:04.310
The Laura evidence it doesn't seem fair mean,
1321
01:03:04.310 --> 01:03:06.060
it might be the next case.
1322
01:03:06.060 --> 01:03:09.320
But in this case for this defendant, Tennessee inferior,
1323
01:03:09.320 --> 01:03:12.180
remanded because it could have been the bottle
1324
01:03:12.180 --> 01:03:14.050
could have been presented it this motion to
1325
01:03:14.050 --> 01:03:15.400
So, my response is twofold.
1326
01:03:15.400 --> 01:03:17.970
The first is I don't think that that was clear first
1327
01:03:17.970 --> 01:03:21.030
based on the lorry standard that the Commonwealth
1328
01:03:21.030 --> 01:03:23.730
had an obligation to do so at the hearing but the second is
1329
01:03:23.730 --> 01:03:26.350
if you're looking at what was before the judge
1330
01:03:26.350 --> 01:03:28.450
and what the judge found, and whether
1331
01:03:28.450 --> 01:03:31.040
that would be sufficient to rebut the presumption.
1332
01:03:31.040 --> 01:03:34.940
I would point to the officers specific
1333
01:03:34.940 --> 01:03:38.020
crediting the judges specific crediting of the officers
1334
01:03:38.020 --> 01:03:39.790
that they didn't know the race of the individuals
1335
01:03:39.790 --> 01:03:43.080
at the time they decided to run the the license plate
1336
01:03:43.080 --> 01:03:44.200
through sieges.
1337
01:03:44.200 --> 01:03:48.750
May I ask you, one I understand that
1338
01:03:48.750 --> 01:03:50.840
in some circumstances, there's difficulty
1339
01:03:50.840 --> 01:03:53.240
for defendants just getting a lower hearing,
1340
01:03:53.240 --> 01:03:55.940
which would be the threshold to trigger the
1341
01:03:55.940 --> 01:03:57.770
lower hearing itself.
1342
01:03:57.770 --> 01:03:59.980
So, I think similar to a motion for new trial
1343
01:03:59.980 --> 01:04:02.210
If you look at sort of the papers that are presented
1344
01:04:02.210 --> 01:04:07.049
and ask whether it raises I forget sufficiently sufficiently
1345
01:04:07.049 --> 01:04:09.130
financial issue or substantial issue,
1346
01:04:09.130 --> 01:04:10.770
I think it should be similar to that motion
1347
01:04:10.770 --> 01:04:11.920
for new trial standard.
1348
01:04:13.710 --> 01:04:15.020
We still have the impairment issue,
1349
01:04:15.020 --> 01:04:16.310
which I don't want to dwell on.
1350
01:04:16.310 --> 01:04:18.720
But the Boston Police Department policy,
1351
01:04:18.720 --> 01:04:20.630
at least as articulated in the brief of not going back
1352
01:04:20.630 --> 01:04:25.230
to look at the policy apparently says that securing
1353
01:04:25.230 --> 01:04:30.230
a car even if you don't tow it requires an inventory search.
1354
01:04:31.140 --> 01:04:34.070
First of all, does the policy say that?
1355
01:04:34.070 --> 01:04:36.143
If you have to go into the car, yes.
1356
01:04:37.730 --> 01:04:39.180
If Why would you have to go into the core
1357
01:04:39.180 --> 01:04:41.010
if you're merely securing it,
1358
01:04:41.010 --> 01:04:42.760
if you're really basically say, we're going to lock it
1359
01:04:42.760 --> 01:04:44.190
and park it on the street?
1360
01:04:44.190 --> 01:04:46.830
It depends on there could be an instance
1361
01:04:46.830 --> 01:04:47.930
where you have to go get the keys
1362
01:04:47.930 --> 01:04:49.910
or you have to go get valuables out.
1363
01:04:49.910 --> 01:04:52.560
It's meant to protect the Boston Police Department
1364
01:04:52.560 --> 01:04:56.763
from claims of theft insofar as they entered the car.
1365
01:04:58.020 --> 01:04:59.790
So you're saying every time they enter record for
1366
01:04:59.790 --> 01:05:01.810
protective search, they're entitled
1367
01:05:01.810 --> 01:05:03.163
to do an inventory search?
1368
01:05:05.643 --> 01:05:07.810
Every time every time police officer enters a car
1369
01:05:07.810 --> 01:05:10.710
for any reason, even for a protective sweep,
1370
01:05:10.710 --> 01:05:13.700
they're permitted to do an inventory search.
1371
01:05:13.700 --> 01:05:17.423
I guess it typically, if they're going to tell it, Yes.
1372
01:05:18.310 --> 01:05:19.143
Leave it
1373
01:05:19.143 --> 01:05:19.997
Or leave it.
1374
01:05:19.997 --> 01:05:20.830
What if they decide they're gonna
1375
01:05:20.830 --> 01:05:21.663
just let it going to lock it
1376
01:05:21.663 --> 01:05:24.770
and leave it Don't leave it to be on the street.
1377
01:05:24.770 --> 01:05:26.860
If they have to actually go inside the car
1378
01:05:26.860 --> 01:05:28.180
to take the keys to lock it,
1379
01:05:28.180 --> 01:05:29.900
then then yes to present themselves
1380
01:05:29.900 --> 01:05:34.650
from the the risk that a defendant would say I had X amount
1381
01:05:34.650 --> 01:05:37.673
of property in the car, and it wasn't there when I returned.
1382
01:05:39.530 --> 01:05:41.690
That does give an incentive for police to find a reason
1383
01:05:41.690 --> 01:05:43.940
to go inside the car, because then they would get
1384
01:05:43.940 --> 01:05:46.363
an inventory search under your theory.
1385
01:05:47.340 --> 01:05:49.240
Yes, but I think that can be resolved by looking
1386
01:05:49.240 --> 01:05:50.820
at the specific facts of the stop
1387
01:05:50.820 --> 01:05:53.303
and what was necessary to secure it.
1388
01:05:54.340 --> 01:05:55.770
If the court has no further questions,
1389
01:05:55.770 --> 01:05:57.670
the comma four restaurants Yuri Perry.
1390
01:05:58.627 --> 01:05:59.544
All rise.