Clerk: SJC-12930.
Commonwealth V Washington Pearson.
-: Mr. Crane.
-: Good morning.
-: May it please the court,
we're trying on behalf of Washington Pearson.
The issue before the court here, is the proper application
of the Independent Source Doctrine, under Article 14.
It's the defendant's position that the doctrine
is correctly applied, by looking to whether
the involved officers were influenced
to seek a search warrant, by the observations they made
during the unlawful entry.
-: This application. -: Mr. Crane, I'm trying
to figure out what's more defendant friendly.
The one they use kind of a tongue twister.
You parse it out for me as to
whether you really wanna win this case.
(laughing)
-: Sure.
I think just looking at the facts of this case,
I think that the doctrine that we're arguing for
is certainly more helpful to the defendant than-
-: I know, on this case, absolutely.
But just as far as how you compare them,
because I don't wanna change the law
if it's gonna hurt defendants.
-: Well, certainly not.
So I think if we're more generally looking
at what doctrine is gonna protect more defendants,
I mean, I, the way I look at it is the doctrine
that they've adopted, is really only gonna help defendants
in the very rare instance where you have a police officer
who testifies that he subjectively intended
to seek a search warrant, despite not having probable cause.
And then a motion judge, somehow crediting that testimony.
I would say that that's a very rare instance,
whereas the doctrine that the defendant wants applied
would help the defendant in situations
where the police officer does not subjectively intend
to seek a search warrant, but does have probable cause.
I think that's a much more likely scenario
that's gonna arise in many more instances.
Then this very rare scenario that I think the appeals courts
somewhat dreamed up.
I mean, this is sort of a hypothetical situation
where a motion judge is gonna credit a police officer.
-: Your standard is, was it objective, or reasonable
for the police officer to obtain a search warrant
without the information obtained?
I.e, the prior legal search, right?
-: No, that's the end of it here,
the appeals court has adopted.
-: You want, you-
-: I know, I'm sorry, I haven't been conflated.
It was the decision to obtain a search warrant,
prompted by the illegally obtained.
-: Exactly. -: Information.
Which is subjective, right?
-: It's subjective.
I think it does get a little confusing
in the use of objective and subjective,
but essentially what we're arguing for
is you have to objectively look at the the words and deeds
that the officer...
His words and deeds to assess his subjective intent.
Whether he intended to seek the search warrant or not.
-: What about when the police officer says,
"No, I was gonna get one anyway."
-: Well, you have to look objectively
at the facts and circumstances.
I mean, certainly, no judge is required
to simply credit a police officer's testimony
to that effect, if all of his actions
and then his other words contradict that.
-: So I think that's what the Appeals Court struggle with,
is the ability of police just to say, "Not a big deal.
I wouldn't have done it."
-: Well, I just don't-
-: Because the second prong is easy,
because you got to excise the illegality anyway,
and didn't determine probable cause, right?
That doesn't get us anywhere.
So I'm just struggling with the subjectivity
and the ability of the police to always satisfy that,
and whether that truly protects the defendants
in the way you're seeking to do so.
-: Well, I see it as a-
-: I mean, I think you might be right on the footnote,
that kind of gets read out of the cases,
the hazus footnote.
And I think I agree with you, but I'm just wondering
if we're gonna cause more harm than good
by ruling your way in this case.
-: I'm not so familiar with what this case means,
as a matter of fact.
I'm really not sure what it means.
If we can start from the fact that the Supreme Court
says that there are these two prongs, right?
You have to be satisfied.
And then you're saying Massachusetts,
has with the first instance of Pearson case,
Christian one, read it out without prong one, right?
And you're saying that that is not more protective
of defendants than it would be to keep it in.
So you want the United States Supreme Court take the case,
basically to govern Article 14, as well as...
It's on search and seizure document,
as well as the United States Constitution.
You wanna say Article 14 of our constitution
is also most protective of the defendants when in comparison
with the Supreme Court doctrine, right?
Two prongs.
-: Yes, and that's where this case does get quite confusing,
in that it's sort of a situation that's completely unique
in that the defendants actually arguing
for the federal constitutional standard to apply.
The court in Pearson one, frankly,
applied this new state constitutional standard
to defeat the defendant's claim, which, I mean,
it's sort of unheard of.
I so-
-: I said it was more protective, the court was saying
it was more protective of defendant's right?
To do it that way.
-: They do say it.
They do make that claim,
but I don't think that really...
When you really look at it, that's not accurate.
-: But is that right?
I mean, 'cause there are two parts
to both the federal and state standard.
We both have the same problem, 'cause on the second part,
the issue is whether there's a subjective standard
on the first part, or an objective standard
on the first part.
And it gets even more ridiculous
to fight over this in certain ways,
because there's an objective component
to analyzing this objective one, (indistinct).
Is this kind of angels on pinheads
that we're fighting over here?
And as Justice Gaziano, points out,
I mean it's a little harder to meet that objective standard
in the first part, normally, than a subjective standard.
'Cause the cops are always gonna say
they would have gotten it.
So just, or you're hurting yourself here over a distinction
without much of a difference.
-: I actually, I don't see it.
I certainly don't agree that it's a small distinction.
I mean, if this test is applied in every instance
where a police officer has no real intent
to seek a search warrant, but does have probable cause
and goes ahead with the search,
I guess you could refer to it as a confirmatory search.
In every instance, this test is-
-: No, it's not what Pearson One said.
Pearson One said, in the first part,
we look at whether an objective police officer.
An objective standard of whether a police officer
would request the search warrant.
Isn't that what Justice Cipher was saying in Pearson One?
As opposed to determining,
and it may be a slight distinction between what the feds do
in the first part, which is
whether these particular officers would have done it,
but isn't as Justice Gaziano said, more protective for you,
because we're gonna raise the standard to an objective one
on the first part.
So it seems like the state standard is more protective
on part one than the federal one.
It may be a little different,
but isn't it in the end of the day, more protective?
-: I cannot see how this is more protective to a defendant,
because what's gonna happen is, there's gonna be
way more instances like this case,
where the police haven't formed the intent
to seek a search warrant, but they do have probable cause.
So in every instance, in every single instance,
lists up the test adopted by the Appeals Court,
is gonna help the Commonwealth.
Because despite the fact that the police
don't intend to seek a search warrant,
it's gonna win cirque,
this objectively reasonable police officer, in their place,
in the place of a police officer who frankly
has been found to have acted unreasonable.
And then- -: Mr. Crane, on the objective.
One that's used by the Appeals Court.
Is it more like we're looking at,
is it objective reasonable?
Should we have expected them objectively speaking,
to obtain a search warrant at the moment they entered?
-: Well, I think that that's a great question.
-: That's what we're looking at, right?
'Cause we want them to get search warrants
when they have probable cause, and we don't want them
to do this post-hoc, "Yeah, I would've gotten one anyway."
Analysis.
But isn't that what we're kind of looking at?
-: I think that question sort of gets at the heart,
I think of where the Appeals Court
got off track on this case.
Because when we're assessing police conduct,
we do look at that objectively.
But the problem is, in this test,
we're not assessing police conduct.
We're not saying whether police conduct
was reasonable or not.
The whole point of the Independent Source Doctrine,
it's really a factual question.
Would the police still have got this search warrant,
if not for their unlawful entry>
And on that question, it's basically making a prediction,
what would have happened if not for the unlawful entry.
And I think again, when the Appeals Court
sort of mixed the ,the assessment of police conduct,
which certainly is always objective,
with the other Independent Source Doctrine
does not assess police conduct.
It's an exception to the exclusionary rule,
and the whole point behind it is, you've already found
that the police have acted unreasonably
in some aspect of the case.
And the question is, does that unlawful conduct,
did that taint the subsequent securing of a search warrant?
So I think that that's sort of
where the confusion came from,
when we're looking to predict.
-: Can I just ask you, I'm trying to figure out right?
Assuming that you're right, that the federal standard
is more protective, and we should always look
to the subjective.
Isn't the best you can get, a remand,
and have a hearing to see
if these officers actually, subjectively,
would have sought a search warrant?
-: Yeah, I'll admit I'm not certain either way
on the exact to remedy here, because sort of
the procedural circumstances that led to this
are somewhat unique.
So what I would say is, I think that it's really,
it's the Commonwealth's burden to establish
that there's an exception
to the exclusionary rule that applies.
And nowhere in this case, has the Commonwealth
made any attempt to meet that burden.
So I think the court could say,
"Look, the Commonwealth failed to meet its burden."
And that the motion to suppress therefore should be allowed.
But I certainly wouldn't say that.
And I wouldn't quibble if the court said,
"No, this needs to be remanded,
and really the correct test needs to be applied."
And the factual question
as to whether Detective McDonald was influenced
to seek a search warrant by what he saw
during the lawful entry.
That's the critical question that needs to be answered here.
So again-
-: Do you think that there's any real possibility,
given the extent of this crime spree
and the amount of evidence they have here,
including that Ms. Johnson left her license
at the burglary, that they wouldn't have gotten
a search warrant here?
I mean, this is a tough case on that.
Yeah.
This isn't one of the, wow.
They stumbled on some evidence illegally.
They've got a whole pile of it here.
-: Well, I think if you look objectively
at what Detective McDonald did,
on the first step though, I think we, we can't be confused
and say that it just depends on the commitment
to the investigation.
I think that that is not the analysis.
It's the commitment to securing a search warrant.
Did he show commitment to securing a search warrant?
And here, he had opportunity to seek a search warrant,
he didn't.
And I think even more telling,
is you look at what he's compiled in the affidavit
before this entry.
There's nothing in there to indicate that he even knew
where Mr. Pearson lived.
All they have prior to this entry, there's no evidence
as to how they even knew that he lived there,
or why they showed up there.
The only thing they have is that his car was parked
somewhere in the vicinity.
According to his affidavit, that's all we know.
So to jump into the conclusion
that, oh, he was absolutely committed
to securing a search warrant for this home,
I think it's a huge jump.
Certainly, he was committed to the investigation,
but I think there's this comparison
to Danny Reagan from "Blue Bloods," is appropriate,
because look, if you just look at the commitment
to the investigation, yeah, he's always committed.
But the question is, is he committed
to doing it by the book?
Is he committed to getting a search warrant?
And I think those two things,
commitment to the investigation,
versus commitment to a search warrant,
it two different things.
-: Mr. Crane, why you're asking to have your cake
and eat it too.
And the first prong have satisfied,
both subjective and objective.
-: Well, frankly I think the test
is really quite well laid out, to getting at.
Again, the question in this doctrine is,
what would these officers have done,
if not for the unlawful entry.
Would they have gone in and sought a search warrant anyways?
And I think the first part of the test,
really is the question is, would they have sought
the search warrant?
The second part of the test is,
would that search warrant had been granted?
So I think that the two-prong test is actually,
I think it's very well fashioned
for this particular inquiry.
So I think there does need to be...
I mean, again, it does go back to,
what's the whole purpose of the Independent Source Doctrine?
The purpose is, it's a factual question.
Would these officers still have obtained the search warrant
without this unlawful entry?
And again, I think that's why that the two prongs,
looking at both, what would the officers have done,
and then the second question is really,
what would the Clerk and Magistrate have done.
Would they have granted the search warrant.
-: Absolute illegality of the search,
of the entry into the household.
Putting that aside for a second.
Do you disagree or agree, that the evidence
was sufficient to provide the police with probable cause
to get a search warrant?
-: I think the evidence before the entry,
would have been certainly insufficient,
because again, nothing for the entry.
If you read the affidavit,
and I don't even think you have to even look,
it's not really looking closely at it, just simply.
When is the first time they even mentioned 471 Broadway?
They don't mention 471 Broadway,
until there's a disguise that his car
is parked somewhere near that location.
And then it's completely unexplained as to why
they even go to this house.
From what I can discern from the affidavit,
it sounds like they knew his car was parked near there,
so they went over there with what they thought
were arrest warrants, and who knows what happened
when they've got over there?
Maybe they were just looking around,
and they saw her out in the front yard of a house,
she goes inside the house and they say, let's go get her,
we have these arrest warrants.
So this idea that somehow, they were narrowing in
on 471 Broadway, and they knew that they lived there,
and this was inevitable
that they were gonna seek a search warrant
before entering the home.
I think it rests on a lot of speculation.
-: You don't think there was probable cause in other words.
-: I'm sorry.
-: Absolute of what they might have gotten
for by virtue of having been there,
you don't think that there was probable cause before then?
Before the entry.
-: There's absolutely no way they had probable cause
before the entry.
Barbara: Okay.
-: And that's simply because again,
they had probable cause to arrest.
I think absolutely, they had probable cause
to arrest these two, but probable cause
to search the home, there's no, nothing in this affidavit
that connects the home to the defendants at all,
before the entry.
There's no explanation as to why they even entered the home.
Barbara: Okay. -: Did any other stuff come up
during the first motion to suppress?
Was it the two prong test,
and whether or not they would've subjectively
gotten the search warrant?
-: No, none of this came up at really at any point.
And this is why I do think the defendant has suffered
from some procedural unfairness here,
because, I mean, this whole Independent Source Doctrine
was applied Sus Aponte,
in the initial motion hearing in Norfolk.
It was applied Sus Aponte, there was no discussion
about applicant applicability
of the Independent Source Doctrine.
That judge didn't bring it up,
the Commonwealth didn't argue it,
it was solely a question, as to whether the arrest warrants
were there at the time of the search.
And then on appeal, again, there's no discussion
about whether Article 14 has a different test
as opposed to the federal test, and then again,
this is the Commonwealth's burden really to argue that,
in exception to the exclusionary rule applies.
So I think if we're saying that,
"Oh, the defendant should have not only argued
that he has met his burden, but also that the Commonwealth,
hasn't met its burden," I think that it's tough
to hold that against him.
-: We can't fault a judge for applying the law, right?
Well, let me ask you a different question, Mr. Crane.
And this might be a hail Mary,
but in your, in your research,
have other States reformulated this test
to be more protective of defendants that we can look to?
-: No, I haven't found any State that applies it differently
from how the Supreme court applied it in Marie.
It seems like there's pretty much a complete agreement,
that this is a two-part test.
-: And we're the outlier on this.
-: I do think that this is an outlier, certainly.
-: Okay, thank you, Mr. Crane, for the questions.
Mr. Ferriter, please.
-: Thank you.
-: Thank you, good afternoon.
If I may please the court, Tivity Theater,
Assistant District Attorney for Middlesex,
on behalf of the Commonwealth.
My brother and I, agree that the He Zeus and Murray,
require a two-pronged test
for the Independent Source Doctrine.
Where we disagree, is how that impacts his case.
This claim was that the defendant raters on appeal
was not raised before any judge in Middlesex,
and no ADA in Middlesex was given notice to respond to it.
The only evidence of what was actually raised in Middlesex,
is from judge Lori's opinion,
but the defendant simply challenged probable cause,
and had he challenged that at Cambridge, police officer
couldn't make a search without applying for a search warrant
in Middlesex County.
Justice Lori, gave the defendant the benefit
of the Norfolk finding, that there was
an initial illegal re-entry, struck that section,
and then did the probable cause analysis.
There was no pleading from the defendant
that's before this court, or before the Appeals Court,
in Pearson two, that the argument being raised on appeal
was ever made raised in Middlesex County.
I think therefore the appeals court correctly applied
to Hezus, under the Substantial Risk Doctrine,
and looked where the detectives
from both Brookline and Cambridge, were clearly committed
to this case, that it's unreasonable to think
that they wouldn't have sought a search warrant.
This is a similar approach that this court took
recently in a case that came out
after releasing Fernandez-
-: Mr. Ferriter, Justice Budd, asked the question
about sort of the procedural posture.
I'm now getting confused,
did the Independent Source Doctrine,
how did that get into the case?
Did somebody stay in the case
on the Independent Source Doctrine,
even though it hadn't been brought up?
I can't remember the procedural posture of that.
-: So that's in Judge Fishman's opinion from Norfolk.
The transcripts from Norfolk and the pleadings from Norfolk,
aren't part of this appeal.
So I can't confirm, Mr. Crane's assertion
that was brought up Sus Aponte.
It's in his opinion, I don't know if the Commonwealth
brought it up or not.
So I can't answer that question,
'cause the Norfolk pleadings and transcripts
aren't part of Middlesex case.
-: Judge Fishman's decision relies on the independent source
that you're in.
I'm concerned about the cases where we come up
with a new rationale on appeal.
That's not the issue here.
(audio breaking up)
He is the one to discern that Independent Source frame,
came into play, is that right?
-: Correct, in the Norfolk case,
and the defendant filed his motion in Middlesex,
subsequent to the decision in Norfolk,
and never raised the issue. -: Wait.
Before you go to the Middlesex and the Norfolk case,
did judge Fishman apply that two-prong test,
where you have to see the subjective and then
whether there's there's probable cause?
-: It is not in his opinion,
but again, I don't know if it was a genuine issue
raised by the defendant below, similar to Dave Zeus,
where it wasn't a genuine issue, it wasn't raised below.
So with the transcripts and the pleadings of the court-
-: But none of it was raised.
None of this, this wasn't an issue in that case, so-
-: It wasn't an issue in what way, your honor?
-: Right, okay.
-: You don't dispute that Mr. Crane haqs advised
that the Heuzus was on footnote 11
includes the two-part standard, correct?
-: Correct.
There's definitely should be a two-pronged standard.
And I think we're gonna through inadvertent,
some of the opinions have dropped one of the prongs.
There are cases, there are several interests.
There are no several unpublished Appeals Court's decisions
that keep applying Murray correctly, but published opinions
seem to be only focusing on the first prong.
I don't know why that is.
I think in most cases it is fairly obvious
that they were going to get a search warrant.
-: That is danger of putting in something in a footnote.
-: It is.
(laughing)
-: When you say there's a two-prong, there's two prompts.
You're saying that the first prong you agree
is the subjective prong or are you saying
it could be objective?
-: I think it's usually most course expressive objective,
the first circuit, and to show if I'm saying that correctly,
instructed the trial courts in that circuit
to also look at the totality of the circumstances
and not just focus on an after the fact insurance.
I mean, I think Justice Henry and her dissent
in Pearson two, got it right when she said,
"It's really a distinction without a difference."
Barbara: Okay.
It's the same reasons why an officer
would be subjectively credible,
because he had done X, Y, and Z, are the same reasons
why he would be objectively reasonable,
because he did the same thing.
-: Did did Mr. Crane, miss a hanging curve ball.
and I asked him if the first prompt
should be both objective and subjective.
-: No, I think he squared that one up.
(laughing)
I think it is a subjective analysis,
but because the problem with this test
is you're answering a hypothetical.
What would someone have done if X had not occurred?
So to get to that subjective,
I think you have to look at the totality
of the circumstances, and see whether or not
that's credible, based on everything that had happened,
we really believe the officer would have gotten a warrant.
In this case, it has to be a substantial risk analysis,
not pleaded at all.
It's way in Middlesex.
I know that the defendant keeps pointing
to the Commonwealth burden,
but there's first day of pleading burden under rule 13,
that didn't come close to be met in this case,
and no one was put on notice in the Middlesex.
So this was an argument
that was gonna be made until appeal.
And looking at everything that Brookline and Cambridge
had done together, including in this case.
And this case is kind of rare
in the Independent Source Doctrine.
The illegal entry is a technical error
because a warrant wasn't done correctly,
but they had probable cause assessed
by a Neutral and Detached Magistrate.
They went to the house pleading they had a search warrant,
-: because they knew-
-: Because they had an arrest warrant.
-: Sorry, arrest warrant, believe they had an arrest warrant.
It's in the search warrant affidavit
is one of the first things they do is they ask for consent.
And when they don't get consent to search the house,
they haven't really seen much in the house.
If they didn't already know is gonna be there,
they go and seek a search warrant.
And-
-: What's the entry, I asked this of your brother.
I asked him to find out whether or not you thought
there was probable cause to get a search warrant,
even before the entry.
Was there?
-: The entry, I believe the only thing they viewed
in the entry is they viewed a couple of the things
that she had purchased at Macy's.
-: Okay, so what does that mean?
-: I think it means very little in this case.
I mean, they had done already done a lot in this case.
They had found Johnson's ID at one of the scenes.
They had the surveillance cameras from the forest stores,
where they made the illegal purchases.
They had the photo array with the positive ID.
They contacted Lynn, who did the master name search
and found that Johnson and Pearson were in Linden the night
before they went to effectuate the arrest,
that his car was still there the afternoon and night before.
And when they knocked on the door,
Johnson is the one that answers the door.
That's also a legal observation before the entry.
So I think the probable cause in this case,
before they even made any entry was overwhelming,
I know there's also an attenuation argument.
I don't want to think that for us to get there,
the probable cause was more than sufficient
before they ever-
-: Okay.
So let's assume that there was probable cause
to get the warrant, search warrant.
Does it suppose though that the evidence showed also
that the police officer would never have done that,
absolute entry.
You usually somehow was I'm going to be entry,
heading on down the entry, you need to make the arrest,
sticking out of the restaurant.
He wouldn't have gotten the search warrant.
I mean, so I don't understand what the role
of the first prong is, to tell you the truth
in this analysis.
If the second prong is that they would've been enough,
objectively to get it without the entry.
Then what difference does it make what's the police officer
would have, or would not have done?
I don't understand.
Is that enough to sort of knock it out of the park?
Is that enough to take it away from, to the Commonwealth?
If the police officer didn't somehow satisfy that prompt?
-: I mean, if the police officer testified
that he would never have done the search warrant
except for what he saw,
you'd think that's the purpose of the first prong,
and I think there's also looking
at the totality of circumstances,
and after the fact insurance helps the courts to decide
whether or not the officer is being credible.
-: Right.
-: That's the purpose of the search warrant.
-: We try to encourage search warrants,
not discouraged, correct?
-: Correct.
And I think this is-
-: And early when they have probable cause
to apply for search warrants.
-: Correct.
And I would say that,
I know my brother brings up the issue
of possible confirmatory searches and going around
with search warrant requirement.
I don't think that 22 years since marie,
there was any evidence that it's happening,
but if that were to happen in the case,
I don't think the court is without a way to prevent that.
One of the cases I cited U.S. versus Dent,
from the first circuit.
And that was a lengthy discussion about egregious conduct,
where if a court finds that the initial entry
was so egregious, they will even go to
let the Commonwealth or the government
get to the independence were assaulted.
So police forces are using this as a tool
to get around the document.
-: Mr. Ferriter, you're starting to get very muffled,
which I suspect may be your earplugs, just so you know.
-: I'm sorry.
As I was saying, I think there are tools,
if the court starts to find
that when officers are blaming
disregarding the warrant requirement to stop the government
from even getting to the Independent Source Doctrine,
and that's from U.S. versus Dent,
which has a lengthy discussion about the case Madrid
from the circuit where officers under the guise
of a protective sweep,
went through her house multiple times,
went through papers and various things
that you normally don't do it in a protective sweep.
And that case, the court said,
we're not even going to let the government get
to the Independence Source Doctrine.
The initial, you a gallon, it was so egregious.
Here, we're in a totally different circumstance.
The initial legality, illegal entry was not egregious.
The officers did enter the hole believing
they had legal arrest warrants
and they had that probable cause reviewed
and signed off on by Neutral Magistrate.
-: Was that part of the findings that the officers believed
that the arrest warrant had been issued?
-: Yeah.
That is injustice predicament.
I believe it states that they went there
believing they had an arrest warrant.
-: Back to the standard, we should employ,
because I'm getting confused now.
So we have an inconsistency,
at least between Pearson one and the federal standard.
Does the Commonwealth want us to...
Because there is a possibility
that a subjective police officer,
this particular police officer wouldn't have sought it
even though objectively another police officer would.
So do we need if we wanna preserve this
into this objective part of Pearson
to also have it be both a subjective
and objective perspective, just as low as hanging curveball.
-: Yeah, I think that's what the first circuit expression
to show that they use a bit of both.
-: Can I ask you?
So do you want us just to adopt
the way the first circuit has done it,
which is a subjective standard evaluated,
based on objective circumstances?
Is that what you're requesting that we do as well?
-: Yeah.
I think that makes sense
because of the hypothetical nature
of the question that's being asked.
Using purely subjective would be very difficult
and not taking into account
the totality of the circumstances.
I'm gonna try and answer something.
You're trying to find something subjective intent
that didn't actually occur,
which is kind of difficult in this case.
-: So if we don't agree with you
that the defendant waived it,
should it go back to a superior court for a hearing or what?
-: It would have to I think go back for a hearing
on this issue, because the judge
would have misapplied the law and factual finding.
If you don't think we're fining on this issue
to go back to the judge to make a fine.
(laughing)
But in this case where it wasn't flat,
I think the gap in the finding
is because it wasn't by below and it wasn't raised below.
I think that's easy for them.
-: I'm sorry, I'm having trouble understanding you.
I think it is a little muffled.
-: I think the gap in the finding is
because defendant didn't make this challenge below,
which is why there is a factual gap,
which is why this is a waiver issue and should be reviewed
at substantial risk, and come out the same way
that he has his kids in a way Fernandez did more reasonably.
-: So basically your argument is waiver,
not a disagreement with the analysis,
otherwise if the defendant.
-: Right.
-: Okay.
Thank you.
-: Any further question?
-: No further questions,
I'll rest of my brief, and congratulations Justice Gaziano.
-: Thank you counsel.
Hon. Kimberly: Thank you.