Male Speaker: SJC-12975,
Commonwealth v. Kevin O. Ortiz.
-: [Chief Justice Budd] Mr. Schnipper, good morning.
-: [Attorney Schnipper] Oh, there we go.
Good morning, may it please the court.
It's nice to be back.
I'm Merritt Schnipper for Kevin Ortiz.
I think this case raises some fundamental questions
about what in-court identifications really serve,
what purpose they really serve in terms of evidence.
The record here leaves little question
that Officer Mansonone was correct
when he said that Mr. Ortiz
was the person who sold him heroin.
It also gives us no reason to believe
that Officer Mansonone was testifying
based on his own personal perceptions
and his individual observations when he gave that evidence.
So based on these facts,
I think we need to ask ourselves
what the identification is supposed to be
showing the jurors in this case.
Is it supposed to be showing the jurors
that Officer Mansonone actually recognized the defendant
after 18 months
when they had spent a couple minutes together
18 months earlier?
Justice Gaziano: Mr. Schnipper,
assume that I agree with your Creighton analysis
that there was no good reason for him
to have done a court ID absent identification procedure.
Could you address the prejudice component of that
given the fact that this is an undercover buy,
the buy money was found on him,
and then some timing issues in surveillance.
So can you give me the flavor of what surrounded that?
Like after the buy, what's the evidence
and how was the in-court prejudicial to your client, please?
-: [Attorney Schnipper] Sure.
Well, I think first,
we do acknowledge the significant amount of evidence
against Mr. Ortiz.
I think what we need to do is ask ourselves
what the differential evidence was between Mr. Ortiz
and his conviction for distribution
and Jose Vargas, the individual acquitted,
his co-defendant based on a distribution charge.
He was also acquitted a distribution
based on his role as the lookout in this transaction.
So we have a significant amount of evidence
against Mr. Ortiz
in terms of his transit to the transaction.
Getting in the car, you know,
the officer gets in the car,
has pick up in the car, the buy money.
We have Mr. Vargas surveilled, arriving,
departing, observing the undercover officer,
making a call, giving the all clear.
Then you're seeing Mr. Ortiz
dispatch to the site of the buy.
You have Mr. Ortiz returning to the scene,
attempting to interfere with the officers
who are searching the car
and interfering with the officers
who were searching the home
that the operation appears to be being run out of.
Female Speaker: Did you mean Ortiz or Vargas?
-: [Attorney Schnipper] The differential
between these two defendants
is the in-court identification
by the undercover officer himself.
Justice Gaziano: Isn't the differential
the presence of the buy money?
-: [Attorney Schnipper] I think that's a differential.
Justice Gaziano: That's kind of a big one, isn't it?
-: [Justice Georges Jr.] Counsel,
isn't there also evidence of the other officers
that were at other positions
that track your client from the Acura to the gas station?
-: [Attorney Schnipper] Oh yes, absolutely.
-: [Justice Georges Jr.] So again,
so to Justice Gaziano's point,
assume that we agree with you on the Creighton issue,
don't we have folks that put your client
all along the path from the house to the Acura
to the gas station to the Dunkin Donuts
to the arrest that identify him in court?
-: [Attorney Schnipper] Yes, we have all those officers
and we have all those officers
who identify Mr. Vargas making the analogous steps
that he takes in his role in the crime.
And I would say that while we have all that surveillance,
what's missing here is that there's one person in this case
who witnesses the actual crime of distribution.
And that person is Officer Mansonone,
the undercover officer.
Now, Officer Mansonone is permitted to point to Mr. Ortiz
and say, that's the person who sold me the heroin,
but when immediately afterwards,
the prosecutor says to him,
and do you recognize the person
who was acting as a lookout
and who watched you for 10 minutes before that?
He says, yes, I do.
The prosecutor says, can you point him out?
Objection, and the trial judge sustains that objection.
And then we see Mr. Vargas acquitted.
And we see Mr. Vargas acquitted
not only in the face of this percipient testimony,
but we see him acquitted in the face of expert testimony
that explains, if briefly,
the role that a lookout plays
in this type of drug operation.
So while I do think it's easy
to look at a controlled purchase
with a setup and an undercover officer,
and say, there may be legal error here,
but there just simply isn't prejudice
because this person was going to be convicted
based on overwhelming evidence,
I think it's troubling to note
that when you have to uncoordinated notifications
by the central officer,
sorry, you have one uncoordinated identification
and then one co-defendant as to whom
an in-court identification is not permitted,
and then that co-defendant is acquitted of that crime,
I do think you have a real question about prejudice
because you have to ask yourself
why was Mr. Vargas acquitted?
And if Mr. Vargas was acquitted simply because,
you know, the joint venture instructions were confusing
or maybe he never put his hands on drugs
and the jury might've thought that was enough,
but can the court assure itself,
I mean, you know, we have a prejudicial error analysis here,
and can the court assure itself
that that was really not the difference making factor?
And I think just when you look at the application
of Creighton to this type of identification in court,
you have to ask yourself
what's the differential from the judge's perspective?
I mean, if you look at the sidebar discussion,
the judge doesn't ask
about the good reason factors under Creighton.
He asked, this is the guy, right?
I mean, that's what he says to the prosecutor.
Well, we know this is the guy, right?
This is the guy, I picked him up.
Okay, okay.
And he doesn't even actually just allow
the in-court identification
based on that assurance from the prosecutor.
He actually allows the undercover officer
to use Mr. Ortiz's name in a narrative.
Before Kevin Ortiz arrived,
what's Mr. Ortiz's first name.
I got in Mr. Ortiz's car.
So he's really describing actions by Mr. Ortiz
that there really isn't any basis in his own perceptions
that we know about to support that kind of testimony.
But there is, I'm sure,
is an investigative file
held by the Springfield Police Department
that has all sorts of information about Mr. Ortiz
and his co-defendants in it.
-: Attorney, Attorneyship,
does this ever have anything,
does the doctrine of collective knowledge
of police officers ever enter into this analysis?
-: [Attorney Schnipper] I don't believe it should,
Justice Cypher.
And the reason I don't believe it should is
that we're at a point where we're talking about in-person,
in-court testimony before a jury, at which point,
you know, Officer Mansonone is not testifying
as a corporate representative
of the Springfield Police Department.
He's testifying as an individual
who is supposed to be telling the jurors
about evidence that he observed.
And it's the same reason
that we don't have just Officer Bruno,
the officer who ran this entire investigation
simply writing a narrative overview
and then asking the jurors
to make their decision based on that,
because that's just fundamentally incompatible
with the evidence rules that we live by.
So while I think it's,
I mean, collective knowledge,
you know, for purposes of probable cause, yes,
for purposes of suppression issues, possibly.
But when we're before a jury who is not a judge
and is basically being asked to decide facts
based on very specific pieces of evidence,
we need to be assured that those pieces of evidence
actually have underlying support.
I mean, the Commonwealth has the obligation in this context
to show that this evidence is admissible.
And I don't think
that based on the existing rules of Creighton,
they made that shown.
-: Can you, Mr. Schnipper.
Sorry, I didn't mean to cut someone off.
-: [Attorney Schnipper] No, you're great.
-: So can you shift to your second argument
about the probable cause to get to the car
'cause that seems to be a little more complicated?
The black car.
-: [Attorney Schnipper] Sure.
In terms of probable (indistinct) into the car,
I think the issue here is
that we're not dealing with an investigation
where police are monitoring an area
that they know for crime,
and they're watching for signs
that something might be going on,
and they're looking for indications
of where they can look for evidence of that crime
based on their observations.
They've organized the crime.
You know, they've obtained information
about what they say is an ongoing operation
that they're surveilling.
Their undercover, sorry, not their undercover,
but their confidential informant
is providing them with information,
information that they confirm
with regard to Mr. Ortiz's phone number
and that he's the person who will show up
in response to a call.
So they've to some extent
corroborated this informant's information.
However, that information is all
about an apartment based operation that in part,
the complaints that are coming from the neighbors
are about an operation coming out of an apartment.
So there's no doubt
that he engages in a strange piece of behavior
when he stops at the car on the way to the transaction.
Justice Gaziano: But wouldn't you say, Mr. Schnipper,
there's a whole bunch of,
it became hard to follow.
That's a whole bunch of skullduggery involved in this
to use a phrase where there's a trail car
and there's all sorts of strange behavior
that the police, I think, are appropriately suspicious of.
Where does that come into this?
This isn't just your average hand to hand.
-: [Attorney Schnipper] No, it's not.
And that's, I think, why we have to look at,
we have to say,
so based on everything the police knew
up to the moment that Mr. Ortiz stopped at the Acura,
what was the basis of the information
that they were working on?
And then we look at did,
and that was of an apartment based distribution network.
So generally, when this court has analyzed--
Justice Gaziano: But then they're on the move.
-: [Attorney Schnipper] Then they're on the move.
But the only reason to believe that this stop
is the place from which
Mr. Ortiz obtains the heroin that he's gonna distribute
is the idea of following him from the location
that he originally was operating out of, the apartment,
to this place where he stops, the Acura,
and then to the transaction site.
But the problem here, and my brother has agreed with me,
the motion judge was wrong about evidence
that Mr. Ortiz was at the apartment that morning.
In other words,
they set this deal up the afternoon before
and made a confirmatory call in the morning.
They have no location for Mr. Ortiz at any time
up until the moment that he stops in the Acura
at the suppression hearing.
You know, there was a separate evidence at trial,
but at the suppression hearing,
there's no evidence about his location
any time from that afternoon call on the 14th
to the morning of the 15th when he arrives at the car.
So while I agree that it's an eyebrow raiser,
well, this guy just stopped at a car
on the way to a drug deal
and he's pulling out a vest.
That's strange.
The question is, does it nudge us over
into worthy of investigation into probable cause
given the entirety of the police investigation
that was reported by Detective Bruno to that point?
-: Is there any evidence
that they take the drugs out of the vest?
It does seem odd to pull over, grab the vest.
Does he put the vest on?
I mean, do we have any fact finding on any of this?
-: [Attorney Schnipper] We do not have any fact finding.
I mean, Judge (indistinct) did find,
he inferred that Mr. Ortiz had obtained the drugs
from the Acura when he retrieved the vest,
but there's no evidence about what he does with the vest
other than that he carries it back to his own car with him,
although I would note
that there's no report of it being found in his car
at the time of his arrest.
Justice Gaziano: What's the innocent explanation
for this strange grabbing of the vest?
-: [Attorney Schnipper] That even drug dealers
have to do things other than deal drugs.
You know, there is no real innocent explanation.
I think the burden is on the Commonwealth
to demonstrate probable cause.
Justice Gaziano: Well, I know,
but when something's out of the ordinary,
it becomes suspicious.
And was it a reflective vest?
-: [Attorney Schnipper] It was.
It was sort of like the protests in France,
those yellow vests.
So you know, it's the type of vest that a person might wear
if they were fixing their car on the side of the road,
and that is a pretty good reason to keep one in a car.
But there is no innocent explanation,
I don't think,
other than that people sometimes need to get things
even if they're engaged in criminal acts otherwise.
Some people have to do things.
There's no particular reason to think
that stopping at the Dunkin Donuts drive through
was part of a drug deal either.
It's just something that he was doing
in addition to participating in a drug deal.
So I think the question here is just again,
recognizing that the erroneous factual finding
with regard to his presence at the apartment
before he goes to the Acura,
which I think is really essential here
because there's lots of case law talking about
if you're going to travel from one point to another,
you either have to have the drugs when you originate
or you have to stop somewhere to get them.
Here, he stopped somewhere,
but we don't really know where he was coming from
so we don't have any basis to say,
oh, not withstanding the fact
that we have a CI telling us
that there's an apartment based distribution case
going on here.
What we actually have is some people live in an apartment
and they've got their stash over here
in a car on the street.
And they're using this remote access mechanism to,
I guess, coordinate the obtaining of those drugs.
You know, again,
like that is more or less validated
by the subsequent search,
but we can't use that to go back upstream
for probable cause.
And I think one of the other very salient facts on that
is that when the police conduct their searches,
and they searched both the apartment and the car,
they searched the car first
even though all their information is
that the operation is being run out of the apartment.
So it certainly,
I think we would have a different scenario
if we searched the apartment.
Wow, there's no drugs here.
Well, he also stopped at the car,
and now we have that extra fact that suggests,
well, whatever the relationship
of the apartment to the sales was,
it's not the entire story
because we know that this is an ongoing operation,
and yet the place from which we thought it was being run
doesn't have any evidence in it.
So that, I think, is a really a key fact
that the police moved right to this car.
And there is no,
the police don't give any understanding
of why there was attention on this car
other than that they were investigating
both Kevin and Ray Ortiz
and this car was registered to Ray Ortiz.
So they don't have, excuse me,
they don't give any information
or give any support to the idea
that this car was a factor in their investigation.
They just saw something odd.
And while I agree
that it certainly bore further investigation,
the question is,
are we at the moment
where they can just enter that car without a warrant?
I would say, no.
I see my time is almost up.
I'd like to very briefly
if there are no more questions on probable cause
talk about the duplicative conviction issue,
which I just think is glaring here
because you really just have two separate amounts of drugs.
The judge does not associate those amounts
with the two different charges
at any time during his instruction.
Justice Lowy: I assume, Mr. Schnipper,
you'd say that the prosecutor's closing doesn't do any good
because it has to come from the judge?
-: [Attorney Schnipper] Well,
I'm saying it doesn't do any good for a couple of reasons.
One, it has to come from the judge.
I mean, this court in both Beale and Kelly
said the prosecutorial argument is not going to be enough
to remove the risk of duplicative convictions
if the court itself can not determine
on what facts each separate conviction rested.
In this particular case,
the prosecutor simply says
I'm gonna ask you to associate these.
He doesn't say the judge is gonna tell you you must.
And of course, that's not his role.
Justice Gaziano: There's no objection, right?
-: [Attorney Schnipper] There is substantial risk analysis.
Justice Gaziano: One is a stash that was in the vehicle.
Another is the drugs
that were sold to the other cover, right?
-: [Attorney Schnipper] Correct.
Justice Gaziano: All right.
So one would be the distribution of it.
The other one would be the possession.
How's that difficult?
-: [Attorney Schnipper] Well, I mean,
because possession with intent to distribute
is necessarily a lesser included offense of distribution.
That's really why the risk exists here.
Justice Gaziano: But it's not like it's a mystery
that the jury said,
ah, he's guilty of distribution
'cause he distributed it to the undercover.
-: [Attorney Schnipper] Of course.
But I think when you look at
there's a three co-defendant case,
I mean, you look at the way the verdicts play out,
it strongly suggests that Mr. Ortiz
was held responsible for the drugs
he transferred Officer Mansonone,
but Ray Ortiz's brother,
'cause Mr. Ortiz, of course,
was acquitted of constructive possession
of the cocaine that was in the car.
So if he was going to be held responsible on the basis
of a joint venture constructive possession theory
for the heroin that was in the car,
he had equal access to the cocaine.
You know, he's going in the same car.
They're all right next to each other.
So why if the jury indeed
assigned the amounts to the different charges,
then why did they acquit Mr. Ortiz
of the cocaine possession charge?
-: [Chief Justice Budd] Okay.
Thank you.
-: [Attorney Schnipper] My time is up?
Thank you so much. -: Yes, thank you.
Mr. Sheppard-Brick.
-: Thank you.
May it please the court,
David Sheppard-Brick on behalf of the Commonwealth.
Addressing the last issue first,
what you have here is you have Ray Ortiz
being held responsible by the jury
for the drugs found in the car
because he was the only one who had the key fob.
You have the defendant here being held responsible
for only the heroin in the vehicle
because the car was,
the jury reasonably inferred,
unlocked for him by Ray Ortiz.
And then he only went into underneath the front seat
where the heroin was stored.
The cocaine was inside a glove
inside a tire on the passenger side of the vehicle.
So completely, you know,
it was not easily accessible in the sense
the police had to bring in a police dog to find it.
So I think it really shows that the jury was very,
had no issue differentiating
between the different amounts of drugs
and what charge they're related to.
And I think that also,
the lack of an objection really shows
that no one was concerned.
Three defense attorneys weren't concerned
that the jury would confuse those different amounts.
Justice Gaziano: Mr. Sheppard-Brick,
let me turn you to the Creighton issue.
What's the good reason for the in-court identification?
-: Well, so, what I would say is
this doesn't fit squarely within Creighton,
but it also doesn't fall completely outside of Creighton.
And why I would say that is that the concern--
Justice Gaziano: Well, Creighton says
if you're an arresting officer,
the arresting officer's an eye witness to the crime,
so we've got both.
And then importantly says,
where an in-court identification merely confirms
that the person standing in the courtroom
essentially was the person arrested.
Here, there's an identification issue, correct?
-: See, I would disagree with that because there was simply,
this was not an ID case
and the trial judge said that early on.
He goes, I don't see this as an identification case.
Justice Gaziano: The judge may not have.
I think the defendant probably did.
Let me ask you a hypothetical.
So if a police officer is on patrol
and observes someone running from a bank
in the throes of an armed robbery,
there's a foot chase, right?
The suspect gets away.
An hour later, the person's arrested
or someone's arrested wearing the same general clothing.
Do you think that the police officer
who made the first observation
should be able to give an in-court identification?
-: No, and here's why.
And I think I may have discussed this in my brief.
Look, in that situation,
you have a police officer with absolutely no knowledge
of who this person is.
They're out on a patrol
and they see this person for an instant.
You have this undercover
who he's been involved in this investigation
for at least two days.
He's called to make contact with this defendant before.
Justice Gaziano: Has he met him?
-: Hm? -: Has he met him?
-: So. -: Has he laid eyes on him?
-: So, no one ever asked him that.
And so it's kind of unfortunate
because it seems like the judge
was about to do a voir dire
with this undercover officer.
And then he just sort of
let him do the in-court ID without it.
When the prosecutor is asked, you know,
has he seen the picture in the file?
We know his picture was in the file.
One of the other detectives testified to that.
The prosecutor said, I don't know.
And so that would have been an appropriate time
for a voir dire to ask him, you know,
have you seen the file?
Did you see him before the arrest?
Did you see him after the arrest?
It's unfortunate that didn't happen
'cause that would have given more clarity on this issue.
But ultimately, you know, again,
as I said, it doesn't squarely fit within Creighton.
It doesn't fall completely outside of Creighton
because there's really no serious risk of misidentification.
-: [Justice Georges Jr.] Counsel,
can I just probe that statement
'cause you've made it twice now?
Why isn't this squarely a Creighton issue?
Officer Mansonone is not an arresting officer, right?
-: [Attorney Sheppard-Brick] Correct.
-: [Justice Georges Jr.] Okay, so he's an eye witness, right?
-: Yes.
-: [Justice Georges Jr.] And he's making
an in-court identification.
So why isn't this squarely a Creighton issue?
-: I mean, it is a Creighton issue.
What I'm suggesting is that it doesn't,
the identification here doesn't sort of
go against what Creighton was really stabbing at,
which was a serious risk of misidentification.
And when you're involved in an ongoing investigation
of an individual.
Justice Gaziano: I guess it depends
on whose ox is being gored.
You may not think so.
I bet the defendant does.
I mean, I think what you're arguing to us is prejudice,
which is completely different.
But as far as a Creighton violation,
I don't get it, how it's not a Creighton violation.
-: Well, I, again,
my argument is, I mean,
my primary argument certainly is lack of prejudice
because there was no prejudice here.
He's identified by a police officer
who clearly fits both within the good reason
as the arresting officer
and also as someone with familiarity.
That's Detective Cassias who--
Justice Gaziano: But the basis of Creighton
is the in-court identification is essentially a gag.
Who's the guy that you sold drugs to?
It's the guy sitting next to Schnipper.
That's what Creighton says is you can't do that.
-: Right.
No, I mean, I understand what Creighton says.
I think with a police officer involved
in an ongoing investigation,
it's a slightly different situation,
but I agree with you that this case should be decided
on a prejudice issue because there was no prejudice.
-: [Justice Wendlandt] Can you tell me why a police officer
involved in an ongoing investigation
would not involve a Creighton issue
given that there's no evidence or suggestion
that the undercover had previously known about,
seen the defendant at all?
You've said that now a few times.
I don't understand.
-: So, I'm not saying it's not a Creighton issue.
I'm saying that, you know,
and again, the lack of voir dire is unfortunate
because we don't know what his knowledge was.
And so we can't really answer the question either way.
-: [Justice Wendlandt] Well, we know there's no evidence
that he had any knowledge.
-: There is no affirmative evidence
that he had specific knowledge of this defendant.
There's nothing on the record.
Justice Gaziano: On the government
who's offering the in-court identification, correct?
-: That's correct.
Justice Gaziano: With an objection.
-: You know, and I agree.
And that's, again, why I'm focusing my argument on
because I do,
there was a Creighton problem.
I don't disagree that there's a Creighton problem.
-: Does he show up?
Does he show up at the arrest
or is he never appear at the arrest?
'Cause if he came one second
after two other people arrested him,
does that change things?
But does he even show up at the arrest or is he?
-: He does.
He goes directly to the police station
to log in the drugs that are purchased.
-: I mean, I could see why Creighton may need to be extended
when someone shows up three minutes after the arrest
or one second after the arrest,
the non-arresting officer.
But this guy seems to be in a different category.
He never appears at the arrest whatsoever, right?
-: That's correct.
Again, it's, as I said,
we don't know what his knowledge was
and for whatever reason.
-: [Chief Justice Budd] Counsel, you should probably,
have you said all you want to say
about the prejudice portion
'cause I think we've all established
that there's Creighton issue.
So do you want to say more about prejudice
or do you want to move on to the next issue?
-: I mean, I can briefly address
a little bit more on prejudice.
I just, what I would say is,
you know, the defendant points to Vargas's acquittal to say,
oh, well, you know, it was the in-court ID by the undercover
that made the difference in the case.
Well, except that Vargas was identified
by the detective who was watching.
He was at the gas station watching as the vehicle
that the defendant was identified driving
both before and afterwards pulls up.
So he sees the undercover come in.
He watches Vargas show up,
you know, check out the undercover.
His testimony as to what Vargas did was almost identical.
It was actually more,
more descriptive than what the undercover testified to.
And he gave an in-court ID,
which was entirely proper fit
within the Creighton good reason exception
because he testified to familiarity with the defendant.
He'd investigated them numerous times.
I believe he also participated the arrest,
so he fits in into both of those exceptions.
So it wasn't the in-court ID by the undercover
that caused the not guilty verdict.
It was the fact that all he was seeing
was watching this guy
and then making a phone call.
And I guess the jury determined
that that simply wasn't enough.
Justice Gaziano: Can you turn
to the probable cause argument
and give us your best summary
of why it was probable cause to get into the vehicle?
-: Right.
So I think first of all,
the motion judge made this sort of factual finding
that he pulled drugs from the vehicle.
So I don't know that we're necessarily
so much concerned with probable cause
as to whether or not
that factual finding was supported by the record.
So I think we're under a different umbrella here.
Whatever one we're under,
what you have is you have an informant
who says the defendant is a drug dealer.
You call him, you make an arrangement,
he delivers the drugs to you.
They set up this deal.
He calls.
He's told to go to this gas station.
Vargas, who we do have evidence in the motion to suppress,
leaves the place, you know,
leaves the apartment where they informant says,
this is their base of operations,
goes, checks out the undercover,
makes a phone call.
And then within the next minute or two,
the defendant pops up at the Acura,
does this extremely suspicious,
really, there's no really good explanation for it
other than--
-: I mean, if he picked up a coat and it was cold, right,
it'd be completely understandable.
I have no idea what.
He's wearing this weird jacket,
this sort of emergency vehicle jacket.
But I'm not sure why it's so strange.
I mean, people go get their coats
out of their cars all the time, right?
-: The police officer described it as a traffic vest.
It was in his hands.
He never put it on.
-: So if the case,
if it were cold and he put on his jacket,
that would be completely understandable.
But because of the oddity of this jacket,
that's what makes this probable cause?
'Cause I mean, all the CI stuff suggests
they do their drug dealing out of the apartment, right?
There's no other connection to this car
except for this one thing, right?
That they go to the car right before and grab this jacket.
But then you tell me that the drugs are actually stashed,
hidden totally elsewhere in the car.
I mean, I know we can't rely on the retro,
you know, going backwards from that.
But it just seems like all we've got
is they grab a coat out of the car
and it's a strange coat.
-: Well, so, he doesn't.
What he does is he reaches into the car.
He's digging under the front seat.
Then he pushes the car, the door,
I'm sorry, the seat forward,
and then is digging around in the back.
So he's taken something not just out of the car,
but stuffed pretty well underneath the front driver's seat.
So I think that adds significantly.
-: It's a concealed coat as well as a coat.
-: [Attorney Sheppard-Brick] Right.
-: And does this coat have big pockets and stuff?
I mean, do we know anything about this coat?
-: It was only described as a traffic vest.
I think the police officer said,
something like you would wear on the side of the road,
but it wasn't really described in great detail.
-: We don't have a picture of this vest
or what it looks like.
-: No, no.
-: We don't know if it has pockets or anything?
-: No, it was never recovered, so.
-: Besides watching the French protests,
I don't know what these things look like, you know?
But we assume that they're filled with pockets
and you can stuff drugs in them.
-: You know, I guess.
He may just have been using it to conceal.
I mean, it was very bright and very flashy,
so it makes sense as a counter surveillance technique
to use something like this to conceal whatever, you know,
because if you're being watched.
And they clearly had
a lot of counter surveillance techniques.
I mean, they have the undercover
go from one location to another.
-: That one loses me.
You wear something bright
to set them off on another track?
I don't know.
-: No, see, so they can't see the drugs
because their eyes are drawn away.
You know, all they can see is this bright flashy vest.
-: [Chief Justice Budd] Does anybody
have any other questions?
Okay, thank you.
-: [Attorney Sheppard-Brick] Thank you.