Announcer: SJC-12879.
Commonwealth of the Ervin Feliz.
-: Mr. Levin.
-: Thank you, your Honor.
May it please the court,
Patrick Levin on behalf of Ervin Feliz.
Our law has few principles as fundamental as the requirement
that a law enforcement officer have a specific reason
for conducting a search of an individual.
In fact, commitment to that principle
was one of the driving forces
behind the American Revolution itself.
This court has
accordingly maintained individualized suspicion
for searches of the people
of Massachusetts as an essential building block
of our rights under Article 14.
Although probationers' expectations
of privacy are reduced,
they are not altogether forfeited.
For more than 30 years,
this court has held that the proper balance
between the goals of probation
and the probationers' expectation of privacy
is to permit searches on a lesser showing
than as required for other searches of others.
But this court has consistently maintained
the bedrock principle of requiring
some specific reason prior to a search.
That principle was reaffirmed just four years ago
in Commonwealth vs Moore,
where this court emphasized
that individualized suspicion remains an important safeguard
against unfettered law enforcement authority
even for parolees who maintain less of an expectation
of privacy than probationers.
The condition at issue in this case flaunts
that bedrock principle
and permits just the unfettered law enforcement authority
that Article 14 forbids.
It authorizes Mr. Feliz's probation officer
to search any part of every electronic device he owns
whenever and however often he chooses
for any reason or for no reason at all.
In today's world,
this is the equivalent
of a founding era officer being authorized
to search at his leisure through all of a person's diaries,
written correspondence and financial records,
and it also will open up types of information
that no founding era officer could have obtained,
potentially including historical location data,
medical information and the very contents
of the probationer's mind in the form of internet history
and search queries.
The analogy to the revile general warrant
is nearly inescapable.
In Commonwealth versus LaFrance.
This court held that suspicion with searches
of a probationer are not permissible
and remanded for revision of the offending condition
to authorize a search only on reasonable suspicion.
This court should now follow that binder precedent--
-: Mr. Levin, Mr. Levin,
I want to interrupt you here
to ask you a few questions please.
-: Yes, your Honor.
-: Now you notice that the
(audio distorts)
LaFrance line of cases is based on searches of the home,
which are always accorded a special role
in our search and seizure analysis.
So that's number one.
Number two, you rely a lot on Riley.
In Riley, the issue wasn't just search was intrusive,
which of course it was,
it was that the government failed to demonstrate how it was,
how the search of the phone was sufficiently tethered
to the purported justifications for the search
which are officer's safety and evidence preservation.
So even if we agree that the search
is an issue here are intrusive,
aren't they more tailored
to the underlying child porn offenses?
-: Your Honor,
so there's two questions there.
First, I don't agree that the LaFrance line of cases
is limited to the home.
The conditioned issue--
-: Have you got cases that are not?
Levine: I'm sorry.
-: Have you got any cases that are not limited to the home?
-: LaFrance was not limited to the home.
Justice Lenk: It wasn't?
-: The condition of LaFrance authorized
a search of the probationer,
her possessions, her surroundings.
-: Herself and her surroundings.
-: Yes and her possessions,
Justice Lenk: Her home, herself and her home.
-: Herself, her possessions,
and any place where she may be.
-: Okay. -: That was
the condition in LaFrance.
(audio distorted)
-: And this court said that condition was not permissible,
that the reasonable suspicion standard has to apply
and at the end of the LaFrance opinion,
the court sets out
what a permissible probation condition would look like.
And that condition says
that the probationer shall be required
to submit to searches of herself
or her possessions or her,
or any place where she may be upon reasonable suspicion
and with or without a warrant,
depending on the requirements of the law.
So I don't agree that the case is limited to home searches.
Its language is not so limited.
It specifically says reasonable suspicion
is required for a search
of a probationer or her home.
As to the second question--
-: Well, okay, here though,
there's no suggestion that he was going
to be searched, right?
It was a question of whether or not his computers
are going to be searched.
His computers and cell phones.
-: Yes, your Honor, that's correct.
The condition here as to his possessions,
specifically any electronic device
that he owns. -: Yep.
You don't think that was more tailored
to the underlying child porn offenses
that he clearly committed by virtue
of his computer and by virtue of his cell phone?
-: Your Honor, it's somewhat more tailored
than the LaFrance condition,
but I don't believe it's more tailored
than the condition at issue in Commonwealth vs Waller.
Waller is a case where the defendant was convicted
of animal cruelty,
and one of her probation conditions forbid her
from owning pets during the probationary term
and the offending condition permitted the MSPCA
in conjunction with the probation office
to search her home and her yard in order
to enforce that condition.
That condition is tailored to the offense
and I would say his privacy invaded.
-: But also it's limited to the home.
It's in her home.
It has to do with her home, doesn't it?
-: Yes, your Honor, it does,
but Riley specifically says
that a search of a cell phone
will reveal more potentially
than the most exhaustive search
of a probationer's home.
When it comes to the privacy issues at stake,
a cell phone search is on par with a home search.
-: Justice Cypher has a question.
-: Yes, I do.
Similar to the animal cruelty case,
could the judge have not or probation
have not ordered that the defendant not be permitted
to possess electronic devices?
-: A similar condition to that was imposed
in this case forbidding him to use the internet
or internet connected devices,
except for work purposes
and that condition is not an issue in this appeal.
-: Can I ask you, Mr. Levin, about Feliz One?
-: Yes your Honor.
-: And whether we should use the balance
and tests that we set forth
in that case where we balance the extent
of that search advanced as a Commonwealth's interest
against the privacy intrusion on the probationer?
Is that before us?
That's the standard we should look at, right?
-: Feliz One,
I think the GPS condition is a bit sui generis.
It's a very unusual condition
where the imposition of the condition itself
is a search because you have to attach the GPS device
to the probationer's person
and the physical attachment itself constitutes a search.
And then the search obviously is ongoing
throughout the probationary term.
-: Right, but Grady tells us it's a search.
I just found it odd that you didn't really address
the balance and test in Feliz One
and you're not--
(audio distorts)
LaFrance. -: Well, your Honor,
in Feliz one, this court specifically said
that as to searches that authorized,
as to conditions that authorized individual searches
of a probationer,
LaFrance governs and reasonable suspicion is required.
That was still the law in Feliz One.
So I don't think that a different test,
I don't think that case calls for a different test here.
-: Can you walk me through the balancing test
in Feliz One?
-: In Feliz One, the balancing,
the balancing that this court did related
to the imposition on the probationer's privacy
as compared with the government's interests.
-: Okay and where does that stack up against your case?
-: Well, your Honor,
I think that the answer to that is that
the imposition on Mr. Feliz's privacy here
is enormous and totally untethered from any guidance
to the probation officer.
So the absolute discretion granted
to the probation officer to search any device
whenever and however he wants to
without any guidance whatsoever
is totally at odds,
even with this court's administrative search
in special needs type cases.
-: I don't think there's an argument
this is a special needs,
because it would be a short argument
if we just decided that all of these
were special needs.
It's-- -: Your Honor--
-: No, no, but I'm agreeing with you. Mr Levin.
Give me a chance to agree with you.
What I'm saying,
there's no argument there,
because we keep that doctrine appropriately narrow.
What I'm asking you on the governmental interest
is it's basically deterrence in this case, realistically
that the--
-: I think that's right.
-: Convicted of this behavior,
which implies some compulsiveness to it
that we should,
the person should know.
If you get a cell phone,
we're going to be watching.
So don't visit those sites you shouldn't
be going into, correct?
-: Yeah, I agree that deterrence
is the primary interest served
by the condition. -: Okay.
-: But I guess,
just as to the government's interest
and whether it would be adequately served
by the reasonable suspicion standard,
I would suggest that it would.
I don't know if Justice Kafker,
if you wanna...
-: I thought we'd moved away in this context
from reasonable suspicion
to a reasonable relation, haven't we?
That's what-- -: No, your Honor
Feliz doesn't use the word reasonable suspicion
all the time, right?
It talks about a reasonable relationship.
-: Your Honor, the reasonable relationship test
is a due process test
that is sort of a,
it's not on point here.
For example, say Mr. Feliz had been ordered
not to eat hamburgers during his probationary term,
that would violate due process
because it's not reasonably related
to the goals of probation.
But it would present no Article 14
or any other problem as to his other fundamental rights.
-: But I thought Feliz said
a search has to be reasonable
and in order to be reasonable,
it laid out the balance and test.
-: Your Honor,
if Feliz says individual searches conducted
by probation officers are required
to be supported by reasonable suspicion of wrongdoing.
Feliz specifically sites to LaFrance
and preserves its holding.
It's, I believe it's footnote 19
in the Feliz opinion.
(audio distorts)
-: Push back on that.
Can I ask you one other question?
-: Yes, your Honor.
-: If we,
what could you do here
that was narrower given the concern
about his looking at child pornography,
besides just giving up under your view?
What could be narrower to do?
-: Your Honor, the narrower condition
is a condition authorizing searches
of his digital devices on reasonable suspicion,
which reasonable suspicion could develop
in any number of ways,
including conversations with the probation
or his associates,
information from sex offender therapy groups,
independent law enforcement activity,
or as occurred in the underlying case here,
information coming from websites
or file sharing programs
or internet service providers.
But to step back a little bit
on that specific point,
infallible enforcement of the probation conditions
is never possible in the absence
of a total big brother style surveillance.
-: I'm confused, though.
So we have a drug offense
and we have drug testing.
Do we only get to do the drug testing
if there's a reasonable suspicion
that they are using again?
Or do we just get to do it as a deterrent?
Because there's a reasonable relationship
between the condition and the offense
-: Your Honor, this court has never conducted
an Article 14 analysis of a drug testing condition.
But my sense is that the privacy invasion imposed
by that condition is sufficiently minimal
as to fall under the special needs type of cases.
And you can see that from cases
like Landry versus Attorney General and the O'Connor case
that authorizes drug testing police cadets
that there is not a significant invasion
of privacy at stake
as it applies to the drug testing condition.
-: What about in Eldred?
-: I'm sorry, your Honor.
Justice Lenk: What about Eldred?
-: Eldred was not an Article 14 case.
That's an Article 26 case.
-: Justice Lowy and then Justice Cypher.
-: Thank you.
Mr. Levin, you point out
it depends to some extent
on the level of the intrusion. -: Yes.
-: So maybe you're right in this case,
maybe you're wrong in this case,
but we've never had this case,
because LaFrance is a search in the home.
Waller is a search in the home.
You may win,
but we don't have anything on point.
-: Your Honor, I disagree.
For more than 30 years,
LaFrance's holding has been reasonable suspicion
is the baseline requirement
for a probation officer to search a probationer
-: Probation officers constitutionally search probationers
in many circumstances.
You just mentioned drug screens,
which happen every day
all across the Commonwealth.
And you just answered, I think correctly,
the question, well, it depends on the extent
of the intrusion
and you can't divorce Waller from its facts.
You can't divorce the LaFrance from its fact.
You can analogize to it
and we can figure out
whether or not you need reasonable suspicion here,
but we don't have this case.
We've never had this case before.
-: Well, your Honor,
then if I disagree,
but then in making that analogy,
I think the U.S. Supreme Court's decision
in Riley is highly salient
where he specific,
just Chief Justice Roberts specifically says
a search of a cell phone
in the modern world is even more invasive
of privacy in many cases than a search of the home.
-: Yes, but Riley, excuse me.
-: Justice Cypher had a question,
then Justice Lenke can follow up.
-: I wanna go back to my first question
which was about can't they just tell him he can't
have a cell phone or a computer?
You said he can't be on the internet,
but what if they just say you cannot have a device?
Isn't that a decent probation condition
under these circumstances
and then don't worry about searching it.
It's not there.
-: Your Honor, perhaps.
That condition may present separate issues
under the First Amendment.
But I can't speak to that on this record.
Justice Cypher: Okay.
-: Any further questions for Mr. Levin?
Justice Lenk.
-: I have a couple.
One of them,
I want it to observe that Riley involved arrestees
rather than probationers and--
-: That's correct, your Honor.
-: And so I think that might have a,
parolees may have,
probationers may have a lower expectation
of privacy than arrestees,
don't you think?
-: I agree.
I'm not claiming that Riley is controlling here.
I was responding to Justice Lowy's suggestion
that we need to analogize in terms of the degree
of intrusion on privacy that's happening.
-: Now on Commonwealth versus Ships.
You know, there's similar,
there was an appeals court decision in 2020.
You're familiar with that?
-: I am, I am council in Ships as well.
-: Uh huh, and they are,
the appeals court said it would be difficult
to imagine how the probation department
could effectively monitor
the defendant's adherence to the condition
that he not possess child pornography on
his cell phone.
Absent a condition permitting
is unannounced targeted search.
You disagree with that presumably.
-: I do disagree.
I listed a number of possible sources
for reasonable suspicion earlier.
And the other thing I will say is just
that a judicial decision to place a defendant
on probation incorporates a judicial finding
that the defendant is a good candidate
for probation and inclined to obey the orders of the court.
A certain degree of trust is a fundamental part
of the probation system
and in fact is an indispensable element
of the rehabilitative goal of the probationary system.
-: Well-- -: Simply put,
if there's no reason to think
that the probationer is not complying
with the conditions,
then there's no reason to think
that the probation is not compliant with the conditions.
-: Well, then what then what is the justification
for doing the drug testing,
the random drug tests?
-: Your Honor, that's not the case you have before you.
-: I understand what we have before us,
(audio distorts)
I mean, why isn't that,
if you're correct in that,
that we should always trust probationers
to do the right thing unless not,
then I don't understand the basis
for random drug searches at all.
-: Perhaps there is no such basis, your Honor,
but they present a very different Article 14 question
in light of the extent of the privacy intrusion they entail.
-: Thank you, Mr. Levin.
Levin: Thank you very much, your Honor
-: Ms. Campbell.
-: Good afternoon and may it please the court,
Caillin Campbell on behalf of the Commonwealth.
We ask you today to uphold the denial
of the defendant's motion to revise the terms
of his probation.
As the term, which allowed for the random inspection
of his electronic devices was individualized
to the defendant and reasonably related to
the crime he committed.
That's all that's required of a probation condition,
even one that allows for a random search
under the Fourth Amendment in Article 14.
To answer a question posed by Justice Gaziano,
yes, the test in Feliz One should apply.
And it's both Feliz One,
the test announced in Feliz One
and the reasoning and test announced in Eldred
that should apply.
And I disagree with my brother
that Eldred is solely a due process case
because if you look at it,
it is indisputably a search
and the court mentions the fact that it's a search
under the Fourth Amendment in Article 14.
It was a reported question
and they decided to uphold
that this probation condition
was to be upheld so long as it was reasonably related.
And it's important that reasonably related language applies
across the board in policing conditions that you see,
not only with the Fourth Amendment,
but the First Amendment and other constitutional issues.
So it's the reasonably related tests that should apply,
which makes sense in a Fourth Amendment context anyway
because the touchstone of the Fourth Amendment
in Article 14 is reasonableness at its base.
And certainly here it is a reasonable search.
Now you can't divorce this case from the crime itself
and that's so imperative
to why this condition should be upheld.
As explained by this court in Eldred,
the success of probation
as a correctional tool at all
depends on giving judges wide latitude
and flexibility to fashion probation conditions
that are tailored to individual defendants,
their circumstances, and the circumstances of their crime.
Under that framework,
a judge is permitted to impose a condition
that removes a defendant from a situation
that presents a danger and risk of recidivism,
and the probation condition here does all these things.
It can't be stressed enough
that the defendant pleaded guilty
to possessing child pornography on an electronic device.
He disseminated it using electronic device.
He used an electronic device to speak
to others about child pornography.
Electronic devices are a depository of his crime.
They're an instrument of his crime
and they facilitated his crime.
A crime that takes place in secret.
-: Good, could I ask you a question, Ms. Campbell, please?
Isn't the condition broader than electronic devices?
It allows the Department of Probation
to inspect and to search at random
and without announcements,
any computer electronic device,
digital media, videotape, photographs
and other item capable of storing photographs,
images, or depictions for the purpose
of monitoring compliance with his conditions of probation.
Are you saying that this only effects in electronic devices?
It doesn't seem to me that that's the case.
-: I disagree with that,
in that a computer is an electronic device,
why it's listed separately.
-: But there's other things.
(audio distorts)
About photographs, video tapes.
Video tapes are not electronic devices, are they?
-: They're certainly not and--
-: Photographs, photographs, images of depictions.
-: Well here, I would say an image and depiction
and a photograph could also be electronic.
So, and the places that they--
-: You're basically saying to any extent
we have to read this as being only limited
to electronic devices.
We can limit it to the device.
-: I don't,
you know, if the court wants to say
that it's not okay to say that you know,
possession of these physical items,
you can't go into his home
and search for these physical items, that's fine.
You know, I think that there is a difference
between a probationer's home
and a device that he possesses
that is an instrument of the crime that he committed.
The Commonwealth is not alleging that they can go
into his home or search his bodily person for these items.
Our focus is in this case, on the computer
on the electronic items that have the capability
of storing those items.
-: What about LaFrance in the language in LaFrance
that essentially allowed a search on site?
-: Sure, I think LaFrance can be distinguished
in two separate ways.
The first is that it's a search of a home
and though the condition is sound--
-: Well, not necessarily.
If they saw Miss,
I'm assuming it was Mr. LaFrance.
If they saw Mr. LaFrance on the street corner,
he couldn't be searched.
-: It's actually a female.
Justice Gaziano: It was, yeah.
-: And Waller is, as well.
But if they saw Ms. LaFrance on the street, yes,
that probation condition did say
that they could search her bodily person.
I don't think that there's
a difference that what they actually analyze
in that case was the search of her home
and they talked about the entrance into her home.
But I think it's different
because even if you were to apply
that reasonably related test,
she was convicted of burglary and larceny,
and there's nothing to show
why they would believe that the burglary or items,
you know, you could have a tool in your home
or in your possession
and it wouldn't necessarily be reasonably related
to the crime that you committed.
-: Apart from reasonably related,
they use a reasonable suspicion standard, right?
So it says it's not probable cause.
It's a lesser search and seizure standard.
A search and seizure standard nonetheless.
-: Absolutely, but I--
-: How's that not applicable here?
-: I'd say it's not applicable here.
LaFrance comes before Feliz One
and in Feliz One it undeniably was a search
of the defendant's person
and then if his data.
And the defendant in Feliz One asked this court
to apply a reasonable suspicion test
and it did not.
It adopted the balancing test
and just said that it needed to be individualized
to the defendant.
And really when you think about that,
what the court is looking at
is a nexus between the probation condition
and the crime and the furthering the goals of probation.
And when you look at it that way,
it's very different from LaFrance or even Waller,
because in those cases,
the item or the place that was to be searched
wasn't an instrument of the crime
and wouldn't necessarily be a depository
or used to facilitate the crime
that the defendant had pled guilty to.
So in that way,
it's vastly different
and can be factually distinguished from those cases.
But those cases both were also decided both
before Feliz One and before Eldred,
which have not and did not rely,
use that reasonable suspicion test.
And even more than that,
you know, when we're looking
at any search and seizure question,
it doesn't fall or rise on the level
of what articulated test the court applies.
It has to do the touchstone as reasonable.
So at its base,
the very most basic question
that the court should ask
is whether this is a reasonable search
in relation to all of the circumstances that are present.
-: May I ask a question?
-: Mmh hmm. -: Yes, okay.
My question is this.
Now don't you think the trial court judge
sort of undervalued the degree of intrusiveness here?
I mean, he really didn't give much attention
to this at all.
-: I don't and I think,
I don't, I don't,
and I don't for two reasons.
The first is that,
the first is that I think he appropriately applied Eldred
and recognized that the defendant has a probationer
or had a lessened expectation of privacy.
But more than that, as has been,
as was spoken about during my brother's argument,
it would be entirely permissible
for a judge to say that a defendant
could not possess one of these electronic devices at all
and I don't think that that should be lost--
-: Do you think that's worse than being able to search
through something that somebody has?
-: Yes. -: I don't think Riley
would agree with you.
I don't think the Supreme Court and Riley
would agree with you.
I think that they're using the search
of a cell phone is very intrusive,
but I'm sure that that's dispositive,
however, Ms. Campbell.
-: I don't believe Riley is dispositive,
but I disagree.
I think it's more restricted
to say you as an individual can never
have possession of electronic device at all.
I think if we are to look
at the legitimate goals of probation
and the wide latitude that judges are given,
allowing these searches in this type of crime,
and it's important to know
that the Commonwealth is limiting its arguments
to this type of crime,
strikes the appropriate balance
between giving the defendant ability
to access this type of device
and protecting the public,
protecting the re-victimization
of child victims in this case,
as opposed to just outright banning his ability
to possess or use these items at all.
-: Well, supposed we disagree with you on this.
Suppose we disagree with you
on the degree of intrusiveness,
but there's still a balancing here to be done.
What are the government interests here?
-: So the government interests, I think,
are two fold.
The first is to prevent recidivism,
which is to place a watchful eye
on whether the defendant could engage
in these type of activities the same way
as if you were to order a random drug and alcohol screen,
the cell phone, like urine in that case,
is a depository of the criminal act, right?
It would, looking at it randomly
would show evidence as to compliance
of the probation condition.
And for the same reasons you would allow
on the random drug and urine, drug and alcohol screen,
as it relates to urine,
that same analysis
and that same justification has explained better
than I am right now,
but explained in Eldred applies here.
And so, for that reason,
I think that it furthers that goal.
Yes, Justice Cypher.
-: My question is,
if we permitted this
and the limitation was
to look for child pornography
or make sure you're not using it
and they're checking the cell phone
looking for that,
but they've see evidence of another kind of crime,
would that be admissible evidence,
wouldn't it, under some kind of plain view doctrine?
-: Yes -: Use it for a new crime.
-: Yes and you know,
my brother raised in his argument, I think.
I didn't read his brief to be arguing
that the problem with his pro date probation condition
was that a gave too much discretion
to the probation officer.
I read it more that these type of conditions
could never exist regardless of how limited that they were.
But yes, Justice Lowy.
-: So am I remembering correctly
the context of this decision was a motion
of the probation to remove the condition?
-: Yes. -: Okay.
So we don't have, in this case,
what if probation showed up
and was given consent to come in the home
and then took the computer
or what if he was walking down the street
and he had his phone out
and the police officer went up to him
or the probation officer and took the phone?
We just don't have that case.
-: We don't.
-: So this is a little bit difficult to figure out
where this line is.
As Mr. Levin said,
it depends on the extent of the intrusion.
I agree with that. -: Mmh hmm.
-: And what would your position be
if the probation officers went into the house
without reasonable meticulous suspicion
and grabbed the computer or the phone
and started to go through it,
(audio distorts)
Would that constitute a seizure and require suppression?
-: Entering the home, yes,
because the home,
the home indisputably
has different constitutional protections
under search and seizure law.
-: And as far as if we have this case,
we don't have it here
since it was a motion to remove the condition,
so it seems like the focus would be,
how the condition fit the crime.
But if we had the case
where the probationer is walking down the street,
the police come and they grab the phone.
Well, yeah, that may well be
too much of an intrusion.
But that, again, it's not this case.
-: Sure and if you look at the probation term itself,
Condition Eight, it contemplates,
I think it says
the probation department conducting the search.
So I don't think it would fall
into the factual scenario that,
you know, police officers under the guise
of doing something else
just come and grab his phone
and have the ability to search it.
I think it's contemplated
that it would be a probation officer
to monitor for compliance with the terms of probation.
-: All right, so, so it's important to try
and develop where this line is.
We know you can't go into the home
and grab the computer.
You agree with that?
-: Yes -: Mr. Levin hasn't taken
a firm position but he recognized
and said the random screen condition
might be a difficult case
and it's somewhere perhaps in the middle.
And I wonder if a case where a motion
to remove a probation condition is the right case
to sort of flush out the doctrinal approach to that middle.
-: I don't see why it wouldn't be,
where the reasons why it's challenged
by the defendant are that you could never
have such a condition.
And I think saying you could have a condition
so long as it's narrowly tailored, individualized
and reasonably related
to the legitimate goals of probation.
I think so long as it reaches all those things,
then that's the question that should be answered
and it would be okay.
Now, Justice Lowy, it appears that your question
is more about how this is actually executed,
which I think presents a different legal question
and a different legal analysis--
-: But that's my point.
-: Yes, but the actual analysis as to whether,
you know, academically, this could exist.
I think the answer to that is yes
and I think that this case is the right case
in which to answer that.
Yes, Judge Lenk.
-: Just like I--
-: It's true, isn't it?
I mean, the defendant's probation.
He's no longer on probation.
He's been released from probation, right?
This December. -: No, he's still on,
he's still on probation.
He was released from Condition Nine.
-: I misunderstood that.
-: I believe he's still on probation until April of 2021.
I'm not entirely clear.
-: This case it's not moot.
-: I don't believe so.
-: All right, okay.
-: And just, maybe finally, Ms. Campbell,
Justice Lenk asked you
for the governmental interest.
You got to number one
and you said there were two.
You didn't give us number two.
Number one had to do with deterrence.
What's number two?
-: To prevent recidivism,
which is a judge can lawfully and permissively
sort of take away the temptation
for the defendant to commit the crime.
To say that he cannot be in a position
so that he can commit crime.
-: Is this similar to,
I mean, we have these conditions
in drug and alcohol and OUI cases.
It seems to me that we have
these conditions that involve compulsive behavior
that we wanna deter. -: Yes.
-: Okay, any further questions for Ms. Campbell?
-: I will rest on my brief. thank you.
-: Thank you, Council.
Thank you, Mr.Levin.
-: Thank you, your Honor.