Speaker 1: I'm sorry.
Speaker 2: SJC-12938,
Commonwealth V Dondre J Snow.
-: And um, we'll hear from Ms. Campbell first.
-: Thank you, your honor. Good morning.
And may it please the court,
Cailin Campbell on behalf of the Commonwealth.
I'd like to acknowledge the trial prosecutor, David McGowen,
as well as members of the victim Maurice Scott's family
who are watching this argument virtually.
We ask you today to reverse the allowance
of the defendant's Motion to Suppress.
Very simply, this is a case about nexus.
The motion judge erred
because she required too narrow a view of nexus.
She ruled and this can be found in-
-: I'm sorry, Ms. Campbell.
I think Ms. Belger has a problem with the audio.
Amy Belger: Hello?
Justice Gaziano: Yes. Ms. Belger, can you hear us now?
Ms. Belger: Yes, I apologize, sir.
I don't know what happened. Sorry.
-: No, that's quite all right.
That's to be expected with this technology.
So we'll, we'll continue with Ms. Campbell.
Ms. Belger: Okay, sorry.
-: and Ms. Belger if another problem arises,
please do what you did, tell me,
and I'll- and we'll we'll readjust.
Ms. Belger: Thanks, yep.
Justice Gaziano: Ms. Campbell.
-: Thank you.
The motion judge ruled- and this can be found
at rec- Commonwealth's Record Appendix page 69,
that the affidavit was faulty in this case
because the information was not sufficient
to establish that the phone he was using
was used to commit the crime.
That is an incorrect legal standard.
As explained in Holley,
there is no requirement that the search warrant affidavit
show that the cell phone itself
was an instrumentality of the crime.
Moreover, both the motion judge
and my sister's reasoning is fatally flawed,
in that it does not look at the information
in the search warrant affidavit
in the light most favorable to the Commonwealth,
drawing all reasonable inferences there from.
These inferences can be based on common sense
and the practicalities of everyday life.
Looking at the facts, the inferences,
and the practicalities of everyday life
there was ample probable cause in this case to believe
that the defendant was not only implicated in the murder,
but that his cell phone would contain
evidence of that murder.
And that nexus can be found
in the fact that minutes after the murder,
while the defendant and his co-defendants
were engaged in the active cover up of the murder,
the defendant was speaking to the woman
who rented him the murder car.
Those facts,
though not the only facts that establish probable cause,
are sufficient standing alone
to create and establish probable cause and a nexus
to search the defendant's phone for communications.
Finally- -: Can you talk
a little bit more about that?
I'm sorry Ms. Campbell.
Can you talk a little bit more about that
because I'm trying to understand what that shows?
What, what is the inference that we are to draw
from the fact that he was talking to his girlfriend
and telling her that he was about to be arrested?
-: Sure.
I think it's important the temporal proximity
of when that conversation happens to the murder,
which is as the affidavit search warrant establishes,
if it's minutes after the murder
it's while he's still in the car
that was used in the murder.
And it's very close in time to when his co-
when he is seen by a eyewitness
appearing as if he's changing his clothes
and when his co-defendant inferably disposes
of the murder weapon.
That when the police come upon the car,
again which was minutes after the murder,
he's on the phone speaking to the person
who rented the murder car for him,
and that is in and of itself evidence related to the crime
because it's evidence as to
what he's doing when he's arrested,
who he's speaking to when he's arrested.
And it's talking to the person who,
who obtained the murder car for him.
That in and of itself is a communication
that is related to the crime
and establishes the necessary nexus.
Now it's important- my sister makes much of the fact
that the that the police later interview the girlfriend
the day after,
and ask her about what the conversation was about.
And innocent explanations don't vitiate probable cause
in a search warrant affidavit,
but it cannot be ignored that
first of all the girlfriend is a self interested witness
when she's speaking to the police,
but that the defendant made upon being brought into custody,
many efforts to speak to the police,
to try to get the car back to the girlfriend.
And this is the car that just minutes before
was used in a shooting.
It has inferably and reasonably
evidence of the crime related to it.
So for all those reasons there's a direct nexus
between this communication and the murder.
Not that there needs to be.
If you look at a case like Commonwealth v. Holley,
and especially-
Commonwealth v. Holley had two co-defendants,
Mr. Holley and Mr. Pritchett.
And Mr. Holley's probable cause to search his phone-
He's on the phone before the murder.
It's a drug deal.
He's the last person who called the victim,
but Mr. Pritchett wasn't on the phone before the murder.
What you have to get
Mr. Pritchett's text messages in that case,
is when Mr. Pritchett,
minutes after the murder in that case,
he's fleeing the scene of the murder, he's at a T station.
All we have in that case is the surveillance video
where it appears as if he is texting.
And the court- this court held that in that case
that appearance of texting so close in time to the murder
was enough to get his communications.
It was not necessary that the Commonwealth prove
that the substance of the communication was actually
or certifiably or with any degree of certainty
related to the crime.
Here we have that it was related to the crime,
but it's not- it was not necessary
for the Commonwealth to make that showing.
-: Can I ask you about the change of the clothes?
There's a dispute in a briefs as to
how far that evidence goes.
As to whether or not it's one guy putting a sweatshirt on
versus people actually bringing clothes
to show more of a planned hit.
Ms. Campbell: Sure.
-: Can you go through the affidavit?
Can you tell me what that tells us?
-: Sure, if you look at it's specifically
paragraph five of the affidavit, it's a Mr. McDonald,
who's a named person who calls the police.
He stated he could see people moving or-
and I'm reading from paragraph five.
He could see people moving around in the car,
leaving the impression on him
that they might be changing their clothes.
So it's not just one person it's movements with-
consistent with changing their clothes.
And that should be read in relation to a later paragraph,
and that's paragraph-
15,
in which an eyewitness to the shooting itself,
when he's shown the co-defendant,
he says that it looks like the man
who he saw commit the shooting
but he was in different clothes.
So it is confirmed that there was
clothes changing in the car.
-: How do you distinguish White,
which deals with multiple defendants
and the crime does not equal nexus?
-: Absolutely.
There are many ways which White
can be distinguished on this fact.
The first is you have the defendant using his phone
minutes after the murder.
You don't have that in White.
Even more than that though, in White you have
a joint venture of there's three individuals
but two of them live next door to each other.
And the murder is committed.
It's a robbery of a convenience store a block away
that goes wrong.
And so there's nothing to show
that they necessarily would have had to use a cell phone
to communicate with each other.
But even more than that,
the facts of the murder itself in White
don't implicate electronic communications
or the use of any sort of electronic device at all.
As I just explained it's a block away from the two,
at least two of the co-defendant's homes,
they're robbing a clerk
and it's a murder that happens
during the course of this robbery.
In contrast here, at least we have-
we know that the motive for this crime
the co-defendant and the victim
were exchanging threatening messages back and forth.
So electronic messaging in and of itself
is implicated in the very fabric of this murder.
More than that though you have the car itself,
which was specifically rented,
the girlfriend tells the police,
that it was rented to facilitate her move to Fall River.
So you have a car that's outside of Boston,
it's, it's Fall River, so it's a good location,
a good distance away from Boston.
You then have the defendant borrowing it.
Which he would have to facilitate
getting the car, going back to Boston,
which we know because the car is seen in Boston,
had stopped in Boston, his GPS puts him in Boston.
And you have two other individuals who end up in the car.
And so that suggests that's-
that's very different from Onyx White
in which you have none of those sorts of factors.
Justice Gaziano: What about Moran?
How do you distinguish Moran?
-: So um, to distinguish from Moran,
in Moran, the distinguishing factor- I think there are two.
The first is the defendant himself in Moran
was not implicated in the murder.
At least at the time that they tried
to get into his cell phone.
The second is it doesn't have
that same temporal proximity as it does here.
It affidavit simply said that
they were in communications the day of the murder.
It wasn't minutes after the murder.
And it wasn't a person who was on his phone talking
to the person who rented the murder car.
I think those are significant factors
that distinguish it from Moran as well.
The Commonwealth would also like to point out-
I think it's very important to note
what this case argued below.
What the defendant raised in his motion to suppress
and what he didn't raise in his motion to suppress.
If you look at the defendant's motion to suppress,
and if you look at the judges memorandum
and decision on this motion to suppress
the defendants solely raised a question of nexus.
He said there was no probable cause to believe
that there was a nexus for evidence related to this murder
to be inside the defendant's cell phone.
Yes, Judge Cypher.
-: Attorney Campbell, I think when we go back
and look at all these cases like White, Moran,
and when we start with White-
some of the ways that the trial courts
have interpreted White might have been
a little more rigidly than we may have anticipated.
How would you suggest if we, if we believe that-
how would you suggest we frame the language for nexus
with regard to cell phones?
What is the ideal language for this concept?
Won't be too broad, but won't be too narrow.
-: Sure.
I think the ideal language would recognize that
as the court has an Augustine and Hobbs in many cases,
although they have to do with CSLI,
that cell phones are increasingly used
in everyday communications,
they're increasingly used in everyday life.
And that's a practicality of life
that cannot be ignored when you're looking at a nexus
that's a factor that absolutely should be considered.
But there should be- I believe it really is
the traditional probable cause standard right?
That the Commonwealth does not have to prove
with any certainty that the items are there.
It just has to point to sufficiently credible evidence
that the cell phone based on the facts in-
facts in the affidavit,
the reasonable inferences from the affidavit,
and the common sense practicalities of everyday life,
that it would contain evidence related to that crime.
And certainly communications here in a joint venture murder,
where it suggests that there is coordination,
would fall into that category.
I disagree with my sister's assertion
that there is no factual basis to conclude
that there was coordination in this case.
As I mentioned before it's a car
that was rented to facilitate a move to Fall River.
But as the search warrant affidavit states,
and can be found specifically in paragraph 30,
this was a brazen and unprovoked murder.
By all eye witness accounts the car pulled up,
it parked yards in front of where the shooting happened.
The front seat passenger jumped out,
shot the victim multiple times,
and ran back into the car.
-: On the- Mrs. Campbell, on the point of coordination-
Correct me if I'm wrong, does-
the affidavit doesn't list or separate out
where these folks live?
Ms. Campbell: It does not.
-: Isn't it, isn't that a problem?
Because if there are- if there-
if there are three roommates
and they're going out to get a burger
and all of a sudden they come upon the victim,
that's one thing.
If we have people who live across the city
and they necessarily, logically
would use their cell phones to
to come together for that purpose, that's a different thing.
And here a flaw in the affidavit
is the failure to list where they live, correct?
-: It certainly would be better if it listed that.
I, but I don't think it's fatal.
I would rely on the Arthur Case,
in which there wasn't that type of information there.
And based on the circumstances of the murder
the court still found and held that
there was a coordination that would be involved
in that type of shooting.
I also think that-
-: It'd be much stronger if we had that information, right?
-: Absolutely.
But that doesn't mean that this inference is not reasonable
or not one that you can look
in the probable cause calculus as a whole.
It's really easy to separate all of these factors out
and say this standing alone
is insufficient to create probable cause,
but that's not how the search warrant should be read,
and that's not how the analysis should take place.
And when you look at this all
and sort of the critical and primary factor is
the recency with the phone call in relation to the murder.
But I also think it's essential,
and I'm anticipating some arguments
that my sister will make,
that the scope of the search was never raised below.
And that there was no challenge
to the timing of the search warrant execution.
-: Right? Yeah. I'll get-
I'll get to Justice Captain in a second,
and I think Justice Slang.
But let me ask you about the breadth of this.
Ms. Campbell: Yes.
-: Shouldn't this have been for the time of the shooting?
Why do we need like all these cell phone warrants,
such a wide breadth, and isn't that a problem in this case?
-: So my, my answer to that will be,
there is no case that talks about having to limit-
In cell phone searching, there is no case
that talks about having to limit the time.
And I would caution the court against that because
of the way that these searches take place.
And because it's easy for individuals
to conceal timing on their phone.
But even if the court were to find that,
what you would do is partially suppress
the part that was over broad
and partially suppress the part
for which there isn't probable cause
and let the part for which there is probable cause stand.
-: Well, on that point were there other categories
that would have led you to-
of evidence that would have been found on the cell phone
that would be supported by probable cause?
-: Um, in this case?
Justice Gaziano: Yes.
-: Um, I think the defendant's location
and the Commonwealth notes this in his brief his footnote.
The GPS that was contained in the phone
of the defendant's location at critical times.
I believe there's probable cause as to that,
whether or not that was it. -: If, if, if-
If they came to you prior
to this search warrant being requested
would you have told them let's look
at a day before and a day after,
or hours before and hours after the shooting?
-: Yes, but just because I would have advised to do something
doesn't mean that it's legally insufficient
or that it should lead to suppression of the entire-
the entire search warrant.
Do I agree that it could be more limited,
that it could be better,
that I would have a much easier argument if it was?
Absolutely.
Do I believe that that means
that we should throw the baby out with the bath water
and not hold that there is probable cause
for certain categories of evidence in this case-
specifically in this case communications?
Absolutely not.
-: I may have missed somebody, and I apologize,
but I think we had questions
from Justice Kafker and Justice Lenk.
-: You, you took my breath away. I'm done.
Justice Gaziano: Okay Justice Lenk?
Justice Lenk: Mine too.
-: Justice Cypher did you have a question, I thought?
Oh, Justice Budd has a question.
-: I just wanted to go back to the question
that Justice Cypher asked you about
trying to figure out what the rule-
how we should express what the rule is.
And it sounded like what you were saying would really
just would allow almost any cell phone to be searched.
If you're saying that
well we all know that cell phones are used,
and all you have to do is show a nexus.
I mean that's, that's what we have said right?
Here, um, if cell phones are used so often,
why should we assume that the defendant here
was making a phone call that had to do with a crime?
And I under- and I, I got that, you know,
it's because he's calling the person who rented the vehicle,
but I'm not sure he's also calling his girlfriend
and saying I'm being arrested.
I guess I'm just trying to figure out why that means
that his cell phone-
you could find evidence of the crime of his cellphone.
-: Certainly.
And I would go back to the Holley case in which it shows
that the Commonwealth doesn't have to show
that the communication actually is about the crime.
I would disagree with you here in that
I think the fact that he's using the phone
and he's calling the person who rented the car,
I think that in a- at trial that would be
evidence that you could admit
and it would be relevant to establish what was going on,
the circumstances under which he was arrested,
and what he was doing upon being arrested.
I don't think it could be discounted that
though you could say that's innocent,
there is another interpretation
in which you could say that it's not innocent,
'cause it has to do with the,
the obtaining of the car
that was actually used in the murder.
And, and- -: And I can understand-
I understand if- if it was before the murder,
I could get that.
But after the murder?
And in here there's no evidence that-
I know it said it in the, in the appeals court opinion
that he made the call while fleeing the scene.
And I know that that's what happened in Holley,
but I don't see that in the affidavit.
-: Oh, Oh your honor, I disagree with that entirely.
It's minutes after the murder, he's in the car.
It's while people are getting changed as well.
His co-defendant disposes of the murder,
and then the police come upon the scene.
It's still minutes after the murder.
How this isn't the act of flight
and concealment of the crime-
I don't know how to say that other than
that it's absolutely in there.
And I think where you get the flight
is that temporal proximity.
I think it's actually less in time
than if you look at the specific timing
and you were to look at the affidavit in Pritchett-
then they were going to a T station
that was a number of blocks away.
This was 2.2 miles away.
They got the call minutes after the murder,
the police were right there and they came upon the scene.
And so that sort of tight temporal proximity
is what I think gets you there.
Now, I, I hear your concerns
about the standard that I articulated
but I think where you look at where search warrants are-
search warrant affidavits are insufficient
and where they are sufficient,
it's those connecting specific facts.
So it wouldn't be that we have an instance where,
you know, we don't have any indication that
a defendant even had a cell phone or was using a cell phone
or that communications were implicated in the crime at all.
Right?
In that instance, then yes, that would be like Onyx White,
in which we were just relying on
the existence of cell phones itself
and the existence of a joint venture.
-: Well, Ms. Campbell we have an nexus standard.
And what I believe we do is apply the law-
the facts to the law. -: Yes.
-: And Onyx White wasn't sufficient.
Here you are arguing this is sufficient.
-: Correct. Correct.
-: Do we have further questions for Ms. Campbell?
I'm tempted to call upon Ms. Belger as Atticus Finch.
(everyone laughs)
Based in part on the wonderful icon that she put up,
but I'll call on Ms. Belger instead of Atticus Finch.
Ms. Belger: (laughs) Thank you.
Good morning, your honors.
May it please the court, Amy Belgium for Dondre Snow.
Two and a half years ago,
immediately before trial was to commence
the trial court correctly ruled in favor of suppression
of evidence illegally seized from my client's cell phone.
The trial court correctly found that the search warrant
was not supported by probable cause
in that within its four corners,
it failed to establish a nexus between
Snow's use of his cell phone and the murder committed.
The trial court correctly applied Commonwealth versus White
in finding that there was no particularized evidence
to suggest evidence of the crime under investigation
would be found on Snow's phone.
The trial court also correctly applied
Commonwealth vs Dorelas
and did not look beyond the four corners
of the search warrant affidavit in reaching its decision.
A divided appeals court erroneously
reversed the trial court's decision by misapplying
Commonwealth vs Holley and Commonwealth vs Arthur.
Those cases are factually distinct from this case.
Both of those cases involve search warrant affidavits
that contained particularized facts,
establishing a nexus between those defendants' phones
and the crimes under investigation.
Here, as the trial court noted,
there is no information in the search warrant
to connect Dondre Snow's phone to the victim,
to his co-defendant Diggs's dispute with the victim,
or to any plan to kill the victim.
As established by White,
there must be a substantial basis for concluding
that a cell phone contains particularized evidence
connected or related to the crime under investigation.
Only then do police have probable cause
to seize and search the device in pursuit of evidence.
This is so even where there was probable cause
to suspect the defendant of a crime.
As the appeals court dissent noted,
this court has already acknowledged
that the issues at stake here
had substantial constitutional significance.
In addition, this court has repeatedly recognized
that cell phones contain vast amounts
of sensitive information about their users.
Cellphones are uniquely important, especially now,
in light of the ongoing global pandemic,
and the role they have played in documenting police violence
and coordinating protests against that violence.
They are deserving of stringent privacy protections.
Finally, this court has repeatedly concluded
that Article 14's protections against searches and seizures
are broader and more restrictive of police power
than those of the 14th Amendment.
Accordingly, this court should uphold
the trial court's decision
and by so doing affirm from the White test
and the considerations that caused this court to adopt it.
Thank you. Justice Budd: Ms. Belger?
Ms. Belger: Yes? Justice Budd: Ms. Belger?
So can you just respond to Attorney Campbell's argument that
because the defendant was calling
the person who rented the car, that's-
just after the murder-
that's enough of the nexus right there?
Ms. Belger: Yes, your honor.
So my sister described my client's girlfriend
as the person who rented the murder car for him.
There's no evidence in the record whatsoever
to suggest that that is true.
He calls his girlfriend when he is getting arrested
or he inevitably realizes he's about to arrested
because that car is not in his name.
It's rented in the girlfriend's name.
That is an expected use of a cell phone of any one of us
who would find ourselves in that position at that time.
Any citizen who finds himself
standing in the shoes of Dondre Snow
at the time that he realizes he's going to be arrested
is going to call the person whose car
is about to be seized in connection with the arrests
and let them know what is happening.
And in fact, the search warrant affidavit
spells this out very clearly and supplies corroboration
for what my client told them on the scene
was the use of the phone
through the girlfriends interview with police.
And when the government offers
a search warrant affidavit in court
we accept the contents of the search warrant affidavit
as true.
And I would suggest that all of those facts
militate against a finding a probable cause of any kind
that this phone was used in connection with the murder.
The evidence that comes before the court
is the phone is used in connection
with the girlfriend's retrieval of her car
because he is about to be arrested.
There's no evidence that phone was used
in connection with the murder at the time of the shooting,
before the shooting, or in flight from the shooting,
other than when the police cars come to the scene
and it's clear that there's going to be arrests.
And for that reason, I would say that there's no nexus
in that search warrant connecting his phone to the murder.
The only nexus in that search warrant
that connects anyone's phone to the murder
is the co-defendant Diggs.
And if you excise out everything having to do with Diggs
there's nothing left in terms of nexus
to Dondre Snow's phone and the crime committed
or to the victim or to the dispute
between the co-defendant and the victim.
Justice Gaziano: Justice Kafker.
-: Well, I'm trying to understand.
And I don't remember the affidavit right now.
Did, did the affidavit indicate
that the girlfriend also had another car?
So that not only does she have one car
but she's renting a car in addition to that, right?
Ms. Belger: She is because she's moving to Fall River.
And she- -: Now, that's-
That's again, we look at these facts,
we can look at the inferences both ways right?
The other inference is that they've rented a car
that's not going to be traced to anybody that effectively.
You know you don't, you don't-
you tend not to drive to murders, uh, you know?
So I have trouble with some of your arguments
that we can't infer collaboration here.
The three of them are in the car.
An additional car is rented.
He's not calling his mom saying he was arrested.
He's calling the person who rented the car
that's used in the murder.
I just, I don't see this as being like White
where there's just three guys with
(indistinct) having cell phones.
Ms. Belger: If you're just-
if you're saying that this is not like White,
it has to be because you're saying that the fact
that he used his cell phone at the scene of his arrest,
is the nexus. -: No I think
that he used his cell phone
to call the person who rented the car.
Again, a person who has her own car.
Isn't that as suspicious fact?
We have a lot of these crimes committed
when people rent cars,
particularly drug runs, this is a murder,
where they're renting a car
that's more difficult to trace back to them.
I'm just, it doesn't seem like it's White to me.
This is not just guys-
Everybody has a cell phone.
You arrest- you pull over three guys,
they all have cell phones.
White makes that clear that's not enough.
Although your sister seems to be
pushing us a little on that,
but this is different.
Ms. Belger: I don't see this as different, Your Honor,
for the following reason.
If I'm moving tomorrow
and I have my car and a rental car in my driveway,
and I'm driving in Boston
and my son jumps out of the passenger seat
and goes shoot someone and gets back in, right?
And you know, we get pulled over and I call my husband
and say, "Can you please come get this rental car
so we don't get charged for it?"
I don't see where that's probable cause
for the police to take my cell phone and search it.
Okay. So when you look for probable cause-
-: Under your hypothetical, you and your son,
you rent the car and your son goes out
and murders somebody and then he calls you.
I'm wondering why you were-
you gave him the car to go off and do a murder.
I'm not sure I-
-: But let me, let me ask a different question.
On the issue of coordination,
isn't it relevant as to whether or not
these folks met up beforehand
and you can quibble over the change of clothes,
but they certainly,
three people do a coordinated attack on someone
and then are caught minutes later.
Who those three people are-
are, are the- really the $64,000 question.
Your client could say at trial,
"They picked me up hitchhiking. I wasn't there at the time."
But if we look at his cell phone
and we see that they plan to meet up,
that kind of blows that out of the water.
Isn't that evidence of coordination?
And isn't that evidence that gives- supports probable cause?
Ms. Belger: Well, no, Your honor.
We have evidence that there's three people in a car, okay.
We don't have any evidence that
they planned and coordinated to get together
to commit a murder.
We had evidence that Diggs exited the car
and committed a murder.
That's all we have.
There's no connection to planning or coordinating the murder
with phones of those three.
They're in a car. -: If you go, if you go-
If you go out to dinner with two of your friends
and I see you in a bistro in the back bay,
how did you get there, by carrier pigeon?
Ms. Belger: Well, it doesn't mean that
you all arrived in the same car, does it?
-: No, but the point is, how did you get to that bistro
when I see you having dinner?
You had to coordinate the trip somehow,
and it's by cell phone.
Ms. Belger: Not necessarily, Your Honor,
is it by cell phone.
And you know, there wouldn't be any reason
for the police to be searching in our cell phones
to decide how it is we got there at the bistro.
We're getting far afield of where we need to be
with the analysis of the seizure of Dondre's cell phone
at the time that he was being arrested.
At the time he was being arrested he's using the cell phone
the way any of us would if we're driving a rental car
that needs to be returned by somebody to not incur fees.
Right? That's the use of the cell phone at the time.
And that is what is said in the warrant as accepted as true
by the warrant- the appliant Detective McLaughlin, as true.
That that's what he was using the cell phone for.
So he's not saying there's any connection,
there's no nexus between any planning and coordination
to the murder and the use of his cell phone.
That is not- -: Isn't is a
reasonable inference that the way they get together
to do this murder is by use of cellphone.
That's how they -that's the only way
they could have planned this.
And that's how they ended up in the car together.
Ms. Belger: We can't make up evidence that we got-
they got together to plan the murder 'cause there isn't any.
The only evidence in the search warrant affidavit
and in the record is the three people were in a car
and one got out and shot somebody.
There isn't any evidence
that there was planning -: I think we have
a question from Justice Cypher, then Justice Kafker,
and then Justice Budd, in order of hands being raised.
And then Justice Lenk I guess, we'll see how it goes.
Justice Cypher.
-: My question just goes back to some of the language
you were using in your argument.
First one was you there's no connection-
there's no evidence of connection
of the cell phone to the murder.
And later you said it's not necessarily so
that they use the cell phones to get to the bistro perhaps,
or to coordinate that.
And to me, to say those are two ends-
they're very extreme on that spectrum.
We're not necessarily looking for a connection
between the phone and the murder, are we?
We're looking for the phone to maybe contain-
it's not like he hit the guy over the head with the phone,
but then it needs to- we have a probable cause
that there's likely to be evidence on his cell phone
related to the murder.
It's just the probable cause standard.
which also goes back to your necessarily.
So, where's the, where's the flexibility in the standard
as you, as you characterize it?
Ms. Belger: As long as if there's facts
that are stated with particularity,
White tells us that there's a nexus
between the phone and the murder,
the White standard says probable cause is satisfied.
What I'm arguing that as to Snow
there are no particularized facts
that connect his phone to the murder.
The only facts we have are that he called his girlfriend
as he was about to be arrested
to say come pick up this rental car.
That's it.
Any of us who are going to be arrested by the police
are going to call somebody.
If we're driving a rental car
that needs to be dealt with at the time,
that is a natural and expected
and acceptable use of a phone.
That is a generally understood use of a phone at the time.
Any citizen who's about to be arrested, that has-
-: Well Ms. Belger, let me cut you off.
If you've gone through this before.
Let me ask Justice Kafker for his question.
-: I guess, you know we're, we're not dealing with suspects
who are covering their tracks.
We're, we have the shooter sends violent texts, threats.
Right? Is that correct?
Am I remembering that correctly?
Ms. Belger: Yes. -: The shooter has sent
to the victim.
They're going to the murder with GPS devices on their legs.
He is calling someone right afterwards.
Doesn't the fact that the we've got a lot of phone activity
with this group also suggest that Buddha may have-
Buddha's not thinking too clearly.
He's threatening and then shooting, um, he's with this guy-
Doesn't that also lend support to the idea that
the phone may have communications from Buddha
that are not all that sophisticated?
He's not covering his tracks here.
Ms. Belger: I, I don't see how that reconciles
with cases like, you know, Mauren and Arthur
where, you know, there has to-
you have cases where co-defendants are calling each other
and that's not enough, right?
This court has said.
So, you know- -: No, it's not, Buddha-
Buddha is, Buddha is threatening people in texts.
Buddha is going to a murder wearing his GPS device.
Doesn't that also suggest that Buddha may be
leaving traces on other people's phones,
particularly the two other guys he's with
when he does the murder?
Ms. Belger: That is certainly probable cause
to search his phone and find that out right?
That Dwayne Diggs- take his phone, okay?
You have probable cause to take his phone.
And as an investigatory approach
you can see where that leads you.
But the fact that Diggs is a bad actor
and jumping out of cars and shooting people
and escalating things on social media,
doesn't give you any right to go into
Dondre Snow's phone at that point.
You know, take your investigation where it leads you,
but where it leads you is probable cause
to search Diggs's phone at that, at that point.
Not Snow's phone.
Justice Gazaino: Justice Budd.
-: First of all, I think Diggs is Butta, not Buddha.
(Justice Lenk laughs)
Anyway, enough of that.
Um, I was looking at the affidavit,
and just trying to see whether or not
there was anything in there
about rental cars being used for, you know, for,
for crimes or anything like that.
Cause I understand that, that that may be, you know,
something that you might assume,
but I didn't know if it was in the um, in the affidavit.
Ms. Belger: It is, it is not in the affidavit.
And I think it's re- it's Butta?
Um, Butta Bear and Slime Butta,
depending on who you talk to.
Which are all these nicknames for Diggs
and the police get that from the victim's phone
calling him Slide Butta as a contact,
and from their investigation that that's his nickname.
Right?
So that's where the nexus is for Diggs.
There's nothing in the,
in the search warrant affidavit talking about,
you know, rental cars being connected to crimes.
Rental cars are more often than not,
not connected to crimes than connected to crimes.
I would pause it in our society
and you know, I also think it it gives pause
when the appeals court describes my client using his phone
to call the girlfriend whose rental car it is,
as behaving like a nonchalant criminal.
That all he wants to do is you know,
communicate information he's being arrested,
please come get your cell phone.
It seems to me he's being a responsible person
in that situation to someone accountable for that car.
You know, to, to, to ascribe criminality
to him over what he's done,
in this case, I think is unfair and inappropriate.
Justice Gaziano: Justice Lenk.
-: Well, I've heard you rely upon White,
but White's not the only case in the, in the um,
in the ballpark here.
How about maybe you have distinguished the case
that your sister relies upon so heavily, that I also wrote,
which is the uh, the case involving co-defendants
in which we said the texts were admissible.
Ms. Belger: So I think that's Mr. Pritchett, right?
From Holley. -: That's right.
Ms. Belger: Yeah.
So, so we have Holley and Pritchett
and that's a, that's a drug case
and there's a lot of information in that
affidavit talking about- -: Wait, I'll jump in.
Justice Lenk: I'm sorry.
I couldn't understand what you just said.
There was a drug- it was a what case?
Ms. Belger: A drug transaction.
Justice Lenk: A drug trans- ah, a drug case, okay, okay.
Ms. Belger: So there's a lot of information
in the Holley case about, you know,
the specific use of cell phones
in connection with drug transactions.
And what you have is you have evidence,
you have video surveillance evidence
of Holley using the cell phone
right before he goes up to the victim's apartment
to do the drug transaction.
Then you have the co-defendant Pritchett
leaving the scene at the MBA, texting.
You have the additional information
that they don't reside together, and you know,
they reside separately and come to the same place.
So in that situation, I would say those facts
are what I would call particularized facts
that connect to Mr. Pritchett and Mr. Holley,
not just to the arrest- right?
So all we have here is connecting
Dondre Snow to I'm being arrested
something needs to be done with this rental car.
That is connecting them to the transaction
because we have those particularized facts about how,
in law enforcement's experience,
drug transactions work with respect to cell phones.
And we have no evidence of Mr. Pritchett
using his cell phone for anything
other than what maybe probable cause to believe
has something to do with the drug transaction
that just ended.
Where his co-defendant is on the phone before and after,
he's texting and they come,
you know from different locations.
We don't have particularized facts like that here.
The only facts we have is that when the police were about
to arrest Dondre Snow he called his girlfriend
to come get the rental car.
That's it.
And that's the distinction.
And I think that is why this
is a straightforward application of White,
where you find there are no particularized facts
that connect his cell phone to this murder
because the only particularized facts we have
are that he engaged in normal activities of any citizen
of calling his girlfriend at the time of arrest
to come get her rental car.
Those are the only facts we have.
-: Now, I guess I'd like to follow that up with um,
what is your reaction to your sister's articulation
of the proper test that we should be formulating?
Ms. Belger: I think you should use the White test.
The White test is there must be particularized facts
in the search warrant affidavit
that connect the defendant's cell phone to the crime.
And if you apply the test that you already developed
to this case just as the trial court did-
This is what the trial court judge did.
She took White, she applied it to the facts.
She said, "There's no particularized evidence.
This evidence doesn't come in."
And of course, you know I accept the point
that certain things weren't briefed below
that I brought before the court.
I, I didn't, I didn't come involved in this
until further appellate review, but I looked at it.
And when you look at what the Commonwealth
was looking to introduce off that cell phone-
it's Snapchat videos, it's, you know, pictures of my client.
They have no temporal relationship whatsoever
to anything having to do with this crime.
There's no temporal component whatsoever.
It's 80 days after they seize his phone
that they even bother to go look for a warrant.
And that, there wasn't any case I've found anywhere
that says 80 days of seizing a person's personal cell phone
is anything other than a non-constitute-
unconstitutional seizure.
So, you know, for that reason too, it's not just search
that we protect- -: Was that raised?
Ms. Belger: It was not raised below,
but I cited Va Meng Joe in my brief to say,
a non-appealing party can bring an issue before the court
and consider it in your discretion.
-: I don't think that Va Meng Joe says that,
but you could argue it.
Ms. Belger: I will argue it then.
That is, that is a very important and significant intrusion.
Right?
To seize anyone's personal cell phone, hold it for 80 days,
and not- -: Well let-
Let me cut you off there.
You're arguing an issue that's not raised on appeal.
And so, all right.
Any further questions to Ms. Belger?
All right. Thank you council.
Ms. Belger: Thank you.