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SJC one, two, nine, eight, nine, Commonwealth fee.
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Abdirahman A. Yusuf.
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Mr Levin, please.
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Thank you very much.
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Good morning.
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May it please the court, Patrick Levin
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on behalf of Abdirahman Yusuf
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who appeals this morning from the denial
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of his motion to suppress.
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In this case, police responded
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to a call for a domestic disturbance at Mr. Yusuf's house
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and one of the officers,
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while he was there,
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made a video recording of the inside
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of the home without notice
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and without asking for permission to record.
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Subsequently, other officers in the gang unit
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who are conducting an investigation
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that was unrelated to the domestic disturbance
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obtained that video recording,
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made their own copy of it
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which they kept on a DVD in their desk
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and subsequently used that video
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to develop probable cause for a search warrant.
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This sequence of events violated Mr. Yusuf's right
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to be secure in his house against unreasonable searches.
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Your position, Mr. Levin,
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is that the,
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the review of the body cam at some point
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after entry into the home, constituted another,
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not just search,
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but seizure that required constitutional justification.
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Is that right?
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Yes, that's right.
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I'm not sure it's necessary to--
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What do you rely on for that, please?
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Well, Your Honor,
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I guess it would go back
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as far as Katz, I suppose.
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It's a police action that intruded
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on his reasonable expectation of privacy in his home.
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Other cases that I rely on
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in terms of the subsequent inspection of evidence
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that the police already had in their custody,
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potentially constituting a search requiring
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a warrant would include cases like Riley versus California,
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Commonwealth versus Arzola,
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Maryland versus King,
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Commonwealth versus Johnson.
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Well, before you get to Johnson,
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which is an interesting choice for a case,
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what about Justice Gaziano's opinion
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in Commwonwealth versus McCarthy where looking
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at the automatic license plate data
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did not constitute in that particular circumstance
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a search where you have, of course,
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much more data than you have from one entry
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with a body cam.
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Yes, that's right, Your Honor.
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I think McCarthy also supports my position in this case.
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The reason the inspection of the ALPR data
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in McCarthy was not a search,
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was that it did not intrude
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on Mr. McCarthy's reasonable expectation of privacy
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because all it revealed was his physical location
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in public at a few times.
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In this case,
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the inspection of the video recording
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of the inside of Mr. Yusuf's home revealed information
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about the inside of his home,
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a location where he's entitled
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to the most heightened privacy
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under the Fourth Amendment in Article 14
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where all details are intimate, private details.
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Mr. Levin, I,
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I understand your,
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your argument about there being two separate searches,
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both requiring either permission or a warrant,
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but let me ask you a hypothetical.
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Let's assume for the sake of this question
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that we find the first recording to be permissible.
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This really focuses on the second argument.
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If the police suspect that someone,
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that he's involved in a string of burglaries
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and they surveil the person
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and he discards a soda bottle,
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walks away, the police pick up the soda bottle
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from the trash and they fingerprint it
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and they just keep that in their desk,
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or that data to themselves.
Yes.
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There's a subsequent burglary
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and the police obtain latent fingerprints
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from that burglary
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and they compare it to the soda bottle.
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Is that okay?
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Yes, Your Honor.
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Commonwealth versus Arzola discusses this
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in the context of DNA analysis
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but it compares it to fingerprint analysis
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very explicitly in that opinion.
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Right.
And the--
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Go on, go on.
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I'm sorry, I didn't mean to cut you off.
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Please explain.
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So, the holding in Arzola
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is that the DNA analysis of the shirt,
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it's a shirt in that case that was lawfully seized
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from the defendant,
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the DNA analysis is not a search
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because it doesn't reveal any information
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in which Mr. Arzola had a reasonable expectation
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of privacy.
Right.
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So again, it's the same--
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But that, that's, that, that's what,
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that's what I have a question about.
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And I was going to ask you about Arzola.
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That was my second question about that,
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'cause in Arzola,
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Chief Justice Gantz writes
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where the shirt was lawfully seized.
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There was no reasonable expectation
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of privacy to prevent police
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from analyzing the shirt to determine basically the source
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of the bloodstain doing a DNA analysis.
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Right.
Where here,
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so no reasonable expectation of privacy
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in the DNA identification characteristics.
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He had later kind of said, "well, if they did a full,"
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I guess genome, that's a different story, right?
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That's right.
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But here the analysis is of someone's curtains,
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a distinctive pattern in the curtains.
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How is that more,
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how is that information more protected
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than a DNA profile?
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That's what I'm trying to tease out
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for your argument.
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Your Honor, I think,
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I think Kyllo disposes of that question
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by holding that every single detail about the inside
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of a person's home is an intimate detail
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in which they have a reasonable expectation of privacy.
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And so what Kyllo obviously is just about
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the relative warmth of various areas
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of the person's house.
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It's a thermal imaging case.
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But what the court says is
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that it doesn't matter how little information
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or how seemingly insignificant the information is.
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If it's information about the inside of someone's home,
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that is information in which the person
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has a reasonable expectation of privacy.
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Thank you, Mr Levin.
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You answered my question.
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Mr. Levin,
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so, let me,
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so assume that there is the second search for a second.
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Assuming the first search is consensual
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and also I have no trouble with the body cam
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being turned on,
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but I know you disagree with that.
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But assume the first search is,
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they let them in on a consensual basis
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and it was appropriate
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for the police to turn on the body cam.
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Now we get to sort of the next review of that information.
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It, I'm just trying to understand how we evaluate that.
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'Cause body cam information
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is a type of information we're going
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to want to preserve, right?
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It benefits defendants as well as the Commonwealth, right?
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Well, Your Honor, that's true
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if there is something on the video
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that is relevant in some way to, you know,
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say a crime that occurred
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or an investigation of a crime that was going on
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when the video was recorded.
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That's not what this case is about.
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But that's often the case with body cams.
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We have disagreements about what occurred.
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That's why we want police to wear body cams, right?
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Yes, Your Honor, but in this case--
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So let me just posit something.
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Sure.
Because I'm struggling
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with the second part of this.
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'Cause in Johnson, we didn't have to,
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we decided there was no search
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because probationer with a the GPS on
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should know better.
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Right.
But I see this as different,
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but I'm trying to figure out the standard.
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If it is a search could the standard
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be our Feliz standard,
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which is a reasonableness standard
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on the second search?
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Is that an appropriate place to turn?
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And if not, why not?
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No, it's not.
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The Feliz case relies on the fact
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that the search in that case involved a minimal intrusion
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on an already diminished expectation of privacy,
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or that the intrusion wasn't minimal,
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but that Mr. Feliz's expectation of privacy was diminished
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by his status as a probationer.
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But, but, but again,
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we were looking at,
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weren't we looking at the whole use of GPS
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and sort of the status--
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As a condition of probation, Your Honor.
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Okay, so you say we can't turn there
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because it's just a probation case.
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It's his expectation of privacy
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is substantially diminished
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by the fact that he's serving a sentence on a conviction.
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But don't we make the larger point
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in Feliz that the Fourth Amendment in Article 14,
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we look to a reasonableness standard.
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That's, that's the ultimate touchstone in this area.
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That's right, Your Honor.
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But the way to determine whether a search of a home
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is reasonable is to figure out
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whether there's a warrant
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or if some exception to the warrant requirement applies.
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Well, but this isn't,
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this isn't the original search of the home.
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This is, this is a secondary review
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because someone remembers they have this body camera
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of this home.
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Your Honor, I do,
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I also want to emphasize that I'm not suggesting
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that they can't ever look at this footage.
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I'm just suggesting that they need
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to have a neutral magistrate interposed there.
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The warrant requirement is--
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What makes this a little unusual, Mr. Levin,
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is normally when police lawfully,
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and I think Trembly says that there's a lot
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of cases that say this,
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in the ordinary scope of a case
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when the police lawfully obtain evidence or information,
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they don't need a separate warrant
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to go to the DNA group.
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They don't need a warrant to go to the fingerprint group.
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They don't, as you, as you,
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as you well know.
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Well--
That's what makes this
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a bit unusual.
Your Honor--
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You're going to have a lawful seizure of evidence
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and then you were saying
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that to further look at that evidence.
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There's a warrant requirement.
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Your Honor, respectfully,
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I'm not sure about that generalization.
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The fact that police have lawfully seized evidence
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does not necessarily make a subsequent search
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of that evidence without a warrant permissible
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if the subsequent search--
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That's, that's a fair point
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because we've said that in a cell phone context.
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We said that in, in other contexts.
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That's a fair question.
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And the question
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is whether the subsequent search invades
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an expectation of privacy that society considers reasonable.
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Counsel, I have a question,
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if you've satisfied Justice Gaziano.
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Are you content just to--
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I'm sorry, are we talking over you?
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I can't hear you.
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I'm sorry, do you,
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are you, has he answered your question?
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I have a question.
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Yeah and I just,
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before you answer Justice Cypher,
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and you would agree with me, Mr. Levin,
276
00:11:16.020 --> 00:11:18.500
that this all revolves around
277
00:11:18.500 --> 00:11:19.813
was there a search.
278
00:11:21.670 --> 00:11:24.200
Yes--
A second search.
279
00:11:24.200 --> 00:11:26.190
Well, the part of the case
280
00:11:26.190 --> 00:11:27.950
that we're talking about is about whether
281
00:11:27.950 --> 00:11:30.630
the subsequent inspection was a separate search.
282
00:11:30.630 --> 00:11:31.600
Yes.
Right.
283
00:11:31.600 --> 00:11:33.920
I do, I mean,
284
00:11:33.920 --> 00:11:35.640
I would like to go back
285
00:11:35.640 --> 00:11:37.153
and try to convince Justice Kafker
286
00:11:37.153 --> 00:11:39.793
that there is a problem with the initial recording
287
00:11:39.793 --> 00:11:41.680
at some point, but--
288
00:11:41.680 --> 00:11:44.230
I think we're all assuming that for right now,
289
00:11:44.230 --> 00:11:45.563
but we've got your argument on that,
290
00:11:45.563 --> 00:11:46.900
but I think Justice Cypher has a question,
291
00:11:46.900 --> 00:11:48.450
so I don't want to cut her off anymore.
292
00:11:48.450 --> 00:11:50.280
Thank you, it's a short question
293
00:11:50.280 --> 00:11:51.970
and that is that, do you,
294
00:11:51.970 --> 00:11:55.610
would you agree that if there were no body cam,
295
00:11:55.610 --> 00:11:58.570
but we had a police officer was an exceptional memory
296
00:11:58.570 --> 00:11:59.403
and he said, you know,
297
00:11:59.403 --> 00:12:00.407
"I've seen that curtain before.
298
00:12:00.407 --> 00:12:03.220
"That is where that so-and-so's house,"
299
00:12:03.220 --> 00:12:05.406
and then he went and swore that out in an affidavit
300
00:12:05.406 --> 00:12:06.460
and got it,
301
00:12:06.460 --> 00:12:08.140
that would be okay, wouldn't it?
302
00:12:08.140 --> 00:12:09.510
Yes, I agree, Your Honor.
303
00:12:09.510 --> 00:12:10.428
So would you also be okay
304
00:12:10.428 --> 00:12:11.261
with the police officer in this case saying,
305
00:12:11.261 --> 00:12:15.237
"you know, I think I remember that.
306
00:12:15.237 --> 00:12:17.677
"I'm not sure, it probably was on the body cam.
307
00:12:17.677 --> 00:12:19.760
"I'd like to look at the body cam,"
308
00:12:19.760 --> 00:12:21.130
and then, but he needs a warrant
309
00:12:21.130 --> 00:12:22.780
to get the body cam's footage?
310
00:12:22.780 --> 00:12:24.140
Is that what you're saying?
311
00:12:24.140 --> 00:12:24.973
That's right.
312
00:12:24.973 --> 00:12:27.990
What the officers in this case should have done
313
00:12:27.990 --> 00:12:30.080
is to just show that Snapchat video
314
00:12:30.080 --> 00:12:33.326
to the officers who responded to the domestic
315
00:12:33.326 --> 00:12:36.800
and see if they recognize anything in the video.
316
00:12:36.800 --> 00:12:38.810
And that's how you develop probable cause
317
00:12:38.810 --> 00:12:41.500
without conducting a subsequent search first
318
00:12:41.500 --> 00:12:42.400
without a warrant.
319
00:12:44.990 --> 00:12:46.140
Mr. Levin, I'm,
320
00:12:47.680 --> 00:12:49.130
go ahead Justice Kafker.
321
00:12:49.130 --> 00:12:50.307
I'm just trying to understand,
322
00:12:50.307 --> 00:12:54.160
did somewhere in the follow up to Justice Cypher's point,
323
00:12:54.160 --> 00:12:58.930
so it's okay to rely on an imperfect memory.
324
00:12:58.930 --> 00:13:00.780
Yes.
'Cause we know,
325
00:13:00.780 --> 00:13:05.170
we know that that's really guesswork.
326
00:13:05.170 --> 00:13:07.900
But we can't go and check
327
00:13:07.900 --> 00:13:10.020
to see if that memory is correct.
328
00:13:10.020 --> 00:13:14.740
It seems odd and kind of we're relying
329
00:13:14.740 --> 00:13:17.433
on worse evidence rather than better evidence.
330
00:13:19.872 --> 00:13:21.790
Am I wrong there?
331
00:13:21.790 --> 00:13:22.823
Well, Your Honor,
332
00:13:28.260 --> 00:13:33.020
the entire thrust of this court's cases trying
333
00:13:33.020 --> 00:13:35.673
to apply Article 14 to developing technology
334
00:13:35.673 --> 00:13:38.760
is that we want to protect the degree of privacy
335
00:13:38.760 --> 00:13:40.960
that was present at the founding
336
00:13:40.960 --> 00:13:42.200
and at the founding,
337
00:13:42.200 --> 00:13:44.220
if a police officer saw something
338
00:13:44.220 --> 00:13:47.100
and then remembered it later, that's fine.
339
00:13:47.100 --> 00:13:50.250
That, and there would be no way
340
00:13:50.250 --> 00:13:55.250
for him to capture that event with totally perfect recall
341
00:13:56.644 --> 00:14:00.803
and have later footage that can be enhanced,
342
00:14:00.803 --> 00:14:03.053
slowed down, paused,
343
00:14:05.578 --> 00:14:07.760
and potentially, police would be able
344
00:14:07.760 --> 00:14:10.123
to see something from inspecting body cam footage
345
00:14:10.123 --> 00:14:13.090
that the officer who was present at the time
346
00:14:13.090 --> 00:14:15.170
not only didn't happen to notice,
347
00:14:15.170 --> 00:14:17.550
but in fact couldn't possibly have noticed
348
00:14:17.550 --> 00:14:19.851
just from his presence at the scene.
349
00:14:19.851 --> 00:14:22.450
And it's also important to note
350
00:14:22.450 --> 00:14:23.283
that what we're talking about is a rule
351
00:14:23.283 --> 00:14:28.283
that will govern future inspections
352
00:14:28.340 --> 00:14:30.620
of body cam footage in general.
353
00:14:30.620 --> 00:14:33.430
And as every police officer is outfitted with a camera,
354
00:14:33.430 --> 00:14:35.894
we're talking about mountains of digital footage
355
00:14:35.894 --> 00:14:38.242
that potentially is subject
356
00:14:38.242 --> 00:14:41.450
to scanning with digital software.
357
00:14:41.450 --> 00:14:43.632
including facial recognition technology,
358
00:14:43.632 --> 00:14:47.990
you know, algorithmic searching of the video footage.
359
00:14:47.990 --> 00:14:51.970
We're talking about potentially enormous archives
360
00:14:51.970 --> 00:14:55.178
of video information that the Commonwealth says, please--
361
00:14:55.178 --> 00:14:56.680
That may have to await,
362
00:14:56.680 --> 00:14:58.818
as we said in Commonwealth versus McCarthy,
363
00:14:58.818 --> 00:15:01.700
just a different factual predicate.
364
00:15:01.700 --> 00:15:03.470
But I'm going to,
365
00:15:03.470 --> 00:15:05.890
I'm going to ask you about your take,
366
00:15:05.890 --> 00:15:07.650
you talk about Commonwealth versus Johnson
367
00:15:07.650 --> 00:15:08.900
and the second search.
368
00:15:08.900 --> 00:15:11.420
Just there was no second search
369
00:15:11.420 --> 00:15:13.260
and I imagine you'd say that
370
00:15:13.260 --> 00:15:15.790
because looking at a GPS data,
371
00:15:15.790 --> 00:15:18.630
somebody was on probation
372
00:15:18.630 --> 00:15:21.290
and perhaps even that's the argument with the stay
373
00:15:21.290 --> 00:15:23.780
in Garcia versus the Commonwealth.
374
00:15:23.780 --> 00:15:28.000
So assume for the moment that you are correct
375
00:15:28.000 --> 00:15:30.000
in this a second search.
376
00:15:30.000 --> 00:15:34.380
When you look at cases like Commonwealth versus Almonor
377
00:15:34.380 --> 00:15:35.843
and other cases,
378
00:15:35.843 --> 00:15:38.910
picking up on Justice Kafker's last point,
379
00:15:38.910 --> 00:15:41.300
why wouldn't the second search
380
00:15:41.300 --> 00:15:43.913
be absolutely reasonable here?
381
00:15:45.300 --> 00:15:46.890
Your Honor, the reason is
382
00:15:46.890 --> 00:15:49.380
that the police aren't allowed to obtain information
383
00:15:49.380 --> 00:15:52.030
about the inside of someone's home without a warrant.
384
00:15:53.560 --> 00:15:54.393
But they have--
385
00:15:54.393 --> 00:15:55.270
The United States Supreme,
386
00:15:55.270 --> 00:15:56.740
the United States Supreme court
387
00:15:56.740 --> 00:15:58.413
has been very clear about this.
388
00:15:59.435 --> 00:16:02.530
Counsel, can I ask you to explain that reason?
389
00:16:02.530 --> 00:16:04.430
And I think this goes back to your wish
390
00:16:04.430 --> 00:16:07.620
to return to Justice Kafker's question or premise,
391
00:16:07.620 --> 00:16:11.490
which is is that first search not consented to?
392
00:16:11.490 --> 00:16:12.860
What's the scope of the consent,
393
00:16:12.860 --> 00:16:14.830
given that the body cam as I understand it,
394
00:16:14.830 --> 00:16:16.540
beeps and flashes.
395
00:16:16.540 --> 00:16:19.060
Why is that not consented to?
396
00:16:19.060 --> 00:16:19.893
Well, Your Honor,
397
00:16:19.893 --> 00:16:21.020
I don't know if you've had a chance
398
00:16:21.020 --> 00:16:22.170
to look at the video yet.
399
00:16:22.170 --> 00:16:24.111
I have.
I did file it for...
400
00:16:24.111 --> 00:16:28.540
So she doesn't ever have a chance
401
00:16:28.540 --> 00:16:31.510
to individually consent to this police officer's entry.
402
00:16:31.510 --> 00:16:33.920
There's already police in the house when he gets there.
403
00:16:33.920 --> 00:16:35.550
He goes right by her, you know.
404
00:16:35.550 --> 00:16:36.770
He talks to her for a moment,
405
00:16:36.770 --> 00:16:39.300
goes by her, up, up the stairs.
406
00:16:39.300 --> 00:16:40.370
You can see the,
407
00:16:40.370 --> 00:16:42.507
you can hear the beeps on the video.
408
00:16:42.507 --> 00:16:44.880
The thing doesn't beep at any time
409
00:16:44.880 --> 00:16:47.023
when he's in proximity to her, certainly.
410
00:16:48.162 --> 00:16:50.830
And just more generally, I just,
411
00:16:50.830 --> 00:16:53.660
it's, it is not reasonable to expect
412
00:16:53.660 --> 00:16:56.570
that in order to get help from the police,
413
00:16:56.570 --> 00:17:00.270
you have to exceed to the creation
414
00:17:00.270 --> 00:17:03.098
of a video recording of the inside of your house.
415
00:17:03.098 --> 00:17:07.017
It's fine if they want to tell you, "hey, I'm recording,
416
00:17:07.017 --> 00:17:08.039
"is that okay?"
417
00:17:08.039 --> 00:17:09.680
That's one thing,
418
00:17:09.680 --> 00:17:12.130
but in this case he didn't do anything like that.
419
00:17:13.230 --> 00:17:15.470
Mr. Levin, would you have a different answer
420
00:17:15.470 --> 00:17:17.750
if the body,
421
00:17:17.750 --> 00:17:18.839
if the police were called
422
00:17:18.839 --> 00:17:21.379
and they go to a public park
423
00:17:21.379 --> 00:17:23.350
and they record your client
424
00:17:23.350 --> 00:17:26.420
and then later on they use that data,
425
00:17:26.420 --> 00:17:27.910
'cause it'll be no more different
426
00:17:27.910 --> 00:17:30.010
than using traffic cameras
427
00:17:30.010 --> 00:17:32.780
or any other ubiquitous cameras
428
00:17:32.780 --> 00:17:34.620
that we have all of the city and--
429
00:17:34.620 --> 00:17:36.940
Yeah, in public places I think
430
00:17:36.940 --> 00:17:39.380
that body cameras are going to be controlled
431
00:17:39.380 --> 00:17:41.230
by a similar analysis to McCarthy
432
00:17:41.230 --> 00:17:44.860
where it's a question of how much information
433
00:17:44.860 --> 00:17:47.002
and what type of information.
434
00:17:47.002 --> 00:17:49.881
Like a traffic stop or something's episodic.
435
00:17:49.881 --> 00:17:52.377
If they say, "geez, I think I saw a guy
436
00:17:52.377 --> 00:17:55.270
"that was six foot six with bright red hair,"
437
00:17:55.270 --> 00:17:56.103
they could say,
438
00:17:56.103 --> 00:17:57.980
"oh, let's pull that camera up," right?
439
00:17:57.980 --> 00:17:59.330
That's okay?
440
00:17:59.330 --> 00:18:00.272
Yeah, I mean,
441
00:18:00.272 --> 00:18:02.860
the crux of this case
442
00:18:02.860 --> 00:18:04.774
is the interior of the home
443
00:18:04.774 --> 00:18:07.250
where the privacy interest is most heightened.
444
00:18:07.250 --> 00:18:09.570
In public places none of the--
445
00:18:09.570 --> 00:18:11.480
Counsel.
You answered the question
446
00:18:11.480 --> 00:18:15.513
from Justice Wendlandt about consent.
447
00:18:15.513 --> 00:18:17.803
What about exigent circumstances?
448
00:18:18.660 --> 00:18:20.690
Your Honor, there are no exigent circumstances
449
00:18:20.690 --> 00:18:21.884
in this case.
450
00:18:21.884 --> 00:18:23.030
It's just not--
451
00:18:23.030 --> 00:18:24.505
To domestic violence
452
00:18:24.505 --> 00:18:27.120
and they go to quell a domestic violence,
453
00:18:27.120 --> 00:18:28.410
it's not exigent?
454
00:18:28.410 --> 00:18:30.040
There is no allegation of violence.
455
00:18:30.040 --> 00:18:31.625
She just says they're arguing too much
456
00:18:31.625 --> 00:18:34.113
and she wants the girlfriend to leave.
457
00:18:35.190 --> 00:18:37.450
There's there's no hint or suggestion
458
00:18:37.450 --> 00:18:39.583
of violence at any point in this video.
459
00:18:40.660 --> 00:18:43.540
The other thing I would say
460
00:18:43.540 --> 00:18:46.867
is that even if there were exigent circumstances,
461
00:18:46.867 --> 00:18:50.420
that those exceptions to the warrant requirement
462
00:18:50.420 --> 00:18:51.929
are exceedingly narrow
463
00:18:51.929 --> 00:18:56.750
and police conduct in excess of what's necessary
464
00:18:56.750 --> 00:18:59.650
to address the triggering exception
465
00:18:59.650 --> 00:19:01.960
to the warrant requirement is not reasonable.
466
00:19:01.960 --> 00:19:03.287
And so if--
467
00:19:04.580 --> 00:19:06.250
I'm sorry, thank you.
468
00:19:06.250 --> 00:19:07.760
You've answered that question.
469
00:19:07.760 --> 00:19:09.470
Let me ask my colleagues if there are further,
470
00:19:09.470 --> 00:19:10.510
Justice Cypher has a question.
471
00:19:10.510 --> 00:19:11.343
Yes, I do.
472
00:19:11.343 --> 00:19:13.395
And my question is, Counsel,
473
00:19:13.395 --> 00:19:15.770
considering that your client
474
00:19:15.770 --> 00:19:18.840
put the interior of his home on Snapchat
475
00:19:18.840 --> 00:19:22.075
which he was exposed to other people,
476
00:19:22.075 --> 00:19:25.090
isn't there a good argument he waived his expectation
477
00:19:25.090 --> 00:19:29.240
of privacy at least in how that presentation
478
00:19:29.240 --> 00:19:31.587
of what was viewed in the Snapchat
479
00:19:31.587 --> 00:19:33.075
No.
which had been seen
480
00:19:33.075 --> 00:19:34.050
on the body cam?
481
00:19:34.050 --> 00:19:35.080
Why not, why not?
482
00:19:35.080 --> 00:19:35.913
No, Your Honor.
483
00:19:35.913 --> 00:19:37.180
He didn't have an expectation
484
00:19:37.180 --> 00:19:38.740
of privacy in the Snapchat video
485
00:19:38.740 --> 00:19:41.700
But it is this video of his home
486
00:19:41.700 --> 00:19:44.720
and so he's revealed the video of his home to the public.
487
00:19:44.720 --> 00:19:46.810
Your Honor, Your Honor, respectfully,
488
00:19:46.810 --> 00:19:47.860
that begs the question,
489
00:19:47.860 --> 00:19:49.100
the whole question in this case
490
00:19:49.100 --> 00:19:51.870
is whether or not he was in his home when that snap,
491
00:19:51.870 --> 00:19:53.070
when he took that video.
492
00:19:54.393 --> 00:19:55.963
(sighs)
493
00:19:55.963 --> 00:19:57.734
I think Justice Kafker has a question.
494
00:19:57.734 --> 00:20:02.734
I'm concerned about the consent and the police cameras
495
00:20:04.120 --> 00:20:05.640
'cause--
yes, Your Honor.
496
00:20:05.640 --> 00:20:06.720
Are we gonna,
497
00:20:06.720 --> 00:20:09.730
are we gonna say that everyone has the right
498
00:20:09.730 --> 00:20:12.570
to tell the police to turn off their camera?
499
00:20:12.570 --> 00:20:14.393
I'm confused about that.
500
00:20:16.130 --> 00:20:18.825
Aren't we encouraging the use of these cameras
501
00:20:18.825 --> 00:20:23.130
when the police are interacting in a situation
502
00:20:25.150 --> 00:20:26.640
where someone may be arrested
503
00:20:26.640 --> 00:20:29.177
or someone may have to be removed from the house?
504
00:20:29.177 --> 00:20:32.190
I'm nervous that you're imposing
505
00:20:32.190 --> 00:20:34.380
an unrealistic standard here.
506
00:20:34.380 --> 00:20:36.180
Well, Your Honor--
507
00:20:36.180 --> 00:20:40.400
And you want to encourage the use of body cameras
508
00:20:40.400 --> 00:20:42.950
because it allows us to evaluate
509
00:20:42.950 --> 00:20:45.727
what actually happened fairly.
510
00:20:45.727 --> 00:20:47.740
Yes, well, Your Honor,
511
00:20:47.740 --> 00:20:49.967
when you say, "we're encouraging,"
512
00:20:49.967 --> 00:20:53.810
of course there is no legislative authorization
513
00:20:53.810 --> 00:20:55.440
for the body cam program at all
514
00:20:55.440 --> 00:20:57.486
at the time that this occurred.
515
00:20:57.486 --> 00:20:59.290
It's just a decision by the police--
516
00:20:59.290 --> 00:21:03.940
The CPCS position that body cameras are discouraged?
517
00:21:03.940 --> 00:21:06.030
Your Honor, I don't have a CPCS position.
518
00:21:06.030 --> 00:21:09.070
I represent Mr. Yusuf and--
519
00:21:09.070 --> 00:21:11.583
Yeah, but you get training programs, don't you?
520
00:21:13.650 --> 00:21:16.910
Your Honor, Mr. Yusuf's rights were violated
521
00:21:16.910 --> 00:21:21.420
in this case by the filming of the interior
522
00:21:21.420 --> 00:21:24.100
of his home and the subsequent inspection of that footage
523
00:21:24.100 --> 00:21:26.400
and the public policy questions
524
00:21:26.400 --> 00:21:28.640
that you're talking about, Your Honors,
525
00:21:28.640 --> 00:21:30.590
certainly are weighty,
526
00:21:30.590 --> 00:21:33.140
and I suggest in the brief that perhaps
527
00:21:33.140 --> 00:21:35.040
a special needs analysis would be appropriate
528
00:21:35.040 --> 00:21:36.097
in a case like this.
529
00:21:36.097 --> 00:21:38.954
But the whole point of the special needs doctrine
530
00:21:38.954 --> 00:21:41.680
is that those searches are strictly divorced
531
00:21:41.680 --> 00:21:43.910
from the general interest in law enforcement
532
00:21:43.910 --> 00:21:45.500
and information,
533
00:21:45.500 --> 00:21:48.010
and that they're not conducted together evidence
534
00:21:48.010 --> 00:21:49.820
for law enforcement purposes.
535
00:21:49.820 --> 00:21:52.120
And so in order for the body cam program
536
00:21:52.120 --> 00:21:55.337
to be announced permissible on a special needs analysis
537
00:21:55.337 --> 00:21:59.096
the use of that footage would have to be strictly limited
538
00:21:59.096 --> 00:22:01.940
and a warrant requirement interposed
539
00:22:01.940 --> 00:22:04.330
between subsequent police rummaging
540
00:22:04.330 --> 00:22:07.933
through the footage is necessary.
541
00:22:09.690 --> 00:22:11.720
Any further questions for Mr. Levin?
542
00:22:11.720 --> 00:22:12.553
One minor one,
543
00:22:12.553 --> 00:22:14.940
one short question, Council.
544
00:22:14.940 --> 00:22:16.840
In terms of the special needs searches
545
00:22:18.430 --> 00:22:20.940
being not for investigatory purposes,
546
00:22:20.940 --> 00:22:22.440
If, and this is again,
547
00:22:22.440 --> 00:22:23.460
I know it's a hypothetical,
548
00:22:23.460 --> 00:22:26.794
but if the police wanted to just remove guns
549
00:22:26.794 --> 00:22:30.070
from the streets or guns from people who should not have,
550
00:22:30.070 --> 00:22:31.450
who are not licensed
551
00:22:31.450 --> 00:22:33.600
but they didn't charge them,
552
00:22:33.600 --> 00:22:35.380
there was no charge,
553
00:22:35.380 --> 00:22:39.460
would there be an issue here? Would they be able to go
554
00:22:39.460 --> 00:22:42.023
under a special needs analysis of public safety?
555
00:22:44.900 --> 00:22:48.530
Your Honor, that is not a small question.
556
00:22:48.530 --> 00:22:49.363
I think that's
557
00:22:49.363 --> 00:22:52.770
a really complicated Fourth Amendment question. (chuckling)
558
00:22:52.770 --> 00:22:54.748
I mean, you would have to go back to,
559
00:22:54.748 --> 00:22:56.663
start with Kamara
560
00:22:57.738 --> 00:23:00.170
and look at all those administrative search cases
561
00:23:00.170 --> 00:23:01.610
and try to figure out,
562
00:23:01.610 --> 00:23:03.350
you know, do that balancing analysis.
563
00:23:03.350 --> 00:23:05.690
I mean, if it's not for criminal investigative purposes,
564
00:23:05.690 --> 00:23:07.717
that is a significant factor.
565
00:23:07.717 --> 00:23:10.056
But whether it then becomes reasonable
566
00:23:10.056 --> 00:23:13.950
to have the police, do, you know, sweeps
567
00:23:13.950 --> 00:23:17.040
of everyone's home in the city of Boston
568
00:23:17.040 --> 00:23:19.146
is a totally different question.
569
00:23:19.146 --> 00:23:19.979
You don't need to be signing to something,
570
00:23:19.979 --> 00:23:21.770
but okay, I understand.
571
00:23:21.770 --> 00:23:22.603
You're right.
572
00:23:22.603 --> 00:23:23.563
It is a bigger question.
573
00:23:24.603 --> 00:23:26.197
Thank you, Mr. Levin.
574
00:23:26.197 --> 00:23:27.750
Mr. Levin] Thank you very much, Your Honor.
575
00:23:27.750 --> 00:23:29.903
We'll hear from Ms. Martino now, please.
576
00:23:32.490 --> 00:23:33.330
Good morning, Your Honors.
577
00:23:33.330 --> 00:23:34.240
May it please the court,
578
00:23:34.240 --> 00:23:36.605
Elizabeth Martino on behalf of the Commonwealth
579
00:23:36.605 --> 00:23:37.900
and the Commonwealth is asking
580
00:23:37.900 --> 00:23:39.790
that the court affirm the motion judge's ruling
581
00:23:39.790 --> 00:23:41.240
that they use to the body camera footage
582
00:23:41.240 --> 00:23:44.126
in this case was not a search in the constitutional sense
583
00:23:44.126 --> 00:23:47.800
because it was a memorialization of a civilian encounter
584
00:23:47.800 --> 00:23:49.130
between the police and the defendant
585
00:23:49.130 --> 00:23:50.137
from a place that the police
586
00:23:50.137 --> 00:23:53.230
had lawful authorization to be.
587
00:23:53.230 --> 00:23:54.400
Are there, are there any limits
588
00:23:54.400 --> 00:23:56.210
to the use of body camera footage?
589
00:23:56.210 --> 00:24:01.210
Mr. Levin posits that if we just say everything's fine,
590
00:24:03.450 --> 00:24:05.300
the police can just catalog this
591
00:24:05.300 --> 00:24:07.740
and then mine it for facial recognition data
592
00:24:07.740 --> 00:24:12.210
and do all sorts of things that would require warrant.
593
00:24:12.210 --> 00:24:14.273
What do we say about limits and
594
00:24:14.273 --> 00:24:15.730
and what's your position
595
00:24:15.730 --> 00:24:18.790
on any reasonable restrictions on this data?
596
00:24:18.790 --> 00:24:19.623
Right, absolutely.
597
00:24:19.623 --> 00:24:21.210
I think that the court has sort of indicated
598
00:24:21.210 --> 00:24:23.570
and I agree that there's a two part inquiry,
599
00:24:23.570 --> 00:24:24.640
a basic framework here,
600
00:24:24.640 --> 00:24:27.630
which is whether the initial recording implicates
601
00:24:27.630 --> 00:24:29.460
any of the defendant's privacy rights
602
00:24:29.460 --> 00:24:31.048
and then whether the subsequent access
603
00:24:31.048 --> 00:24:33.776
by the police implicates any privacy rights.
604
00:24:33.776 --> 00:24:35.420
And I think, you know,
605
00:24:35.420 --> 00:24:37.900
when the footage is originally made
606
00:24:37.900 --> 00:24:39.619
for the first question when it's recorded,
607
00:24:39.619 --> 00:24:42.750
the inquiry is sort of whether police
608
00:24:42.750 --> 00:24:44.070
were lawfully authorized to be
609
00:24:44.070 --> 00:24:46.030
in the defendant's home as they were here
610
00:24:46.030 --> 00:24:48.270
and was it within the scope of their lawful duties,
611
00:24:48.270 --> 00:24:49.210
right as it was here,
612
00:24:49.210 --> 00:24:50.860
as this court said in Balicki.
613
00:24:50.860 --> 00:24:52.260
Then turning to the second question,
614
00:24:52.260 --> 00:24:55.170
which is I think what you're asking more specifically,
615
00:24:55.170 --> 00:24:57.740
is when it was when the footage is accessed
616
00:24:57.740 --> 00:24:59.170
is that a reasonable,
617
00:24:59.170 --> 00:25:01.381
is it accessed in a reasonable way, right.
618
00:25:01.381 --> 00:25:03.430
And I think that the court can look
619
00:25:03.430 --> 00:25:06.930
to this sort of technology cases to get a framework
620
00:25:06.930 --> 00:25:09.220
of when the police can access the footage
621
00:25:09.220 --> 00:25:11.260
and the things that the court
622
00:25:11.260 --> 00:25:14.780
has looked at is sort of is it an aggregation of data?
623
00:25:14.780 --> 00:25:19.113
Is it data, you know, taken over a long duration of time?
624
00:25:20.300 --> 00:25:23.390
Does the technology needs--
625
00:25:23.390 --> 00:25:25.190
You're drawing parallels to McCarthy,
626
00:25:25.190 --> 00:25:27.070
but here what's troubling
627
00:25:27.070 --> 00:25:31.010
is that the police basically take this footage
628
00:25:31.010 --> 00:25:34.660
and they store it because they have their eye on this guy.
629
00:25:34.660 --> 00:25:36.480
So it's not just happenstance
630
00:25:36.480 --> 00:25:37.690
and they're not just looking for it.
631
00:25:37.690 --> 00:25:40.497
They, they say, "ah, now we've got a picture
632
00:25:40.497 --> 00:25:41.657
"of this guy's bedroom.
633
00:25:41.657 --> 00:25:44.371
"Let's use it for later investigative purposes," correct?
634
00:25:44.371 --> 00:25:46.820
No, no, I would respectfully disagree.
635
00:25:46.820 --> 00:25:48.400
I think that the footage,
636
00:25:48.400 --> 00:25:50.717
so it was a it was a service call, right?
637
00:25:50.717 --> 00:25:52.050
Right.
This district call.
638
00:25:52.050 --> 00:25:54.906
No, assume the first one was okay,
639
00:25:54.906 --> 00:25:57.220
but then they burn a copy
640
00:25:57.220 --> 00:26:00.230
and they keep it for later investigative use, correct?
641
00:26:00.230 --> 00:26:02.270
Well, I think that the record indicates
642
00:26:02.270 --> 00:26:03.820
that it was not.
643
00:26:03.820 --> 00:26:05.083
It was 10 days.
644
00:26:06.145 --> 00:26:09.480
So the gang unit was looking into the defendant
645
00:26:09.480 --> 00:26:10.940
because of his Snapchat videos, right,
646
00:26:10.940 --> 00:26:12.471
and he had multiple Snapchat videos.
647
00:26:12.471 --> 00:26:15.609
And about 10 days after this domestic call
648
00:26:15.609 --> 00:26:17.390
to the defendant's home, right,
649
00:26:17.390 --> 00:26:18.490
nobody knew that,
650
00:26:18.490 --> 00:26:20.380
nobody had linked to the calls yet.
651
00:26:20.380 --> 00:26:22.630
They were looking at the Snapchat videos
652
00:26:22.630 --> 00:26:25.737
and then the officer said, "let's see if anybody's
653
00:26:25.737 --> 00:26:27.460
"been to the defendant's house recently."
654
00:26:27.460 --> 00:26:30.390
So they did a search of his residence
655
00:26:30.390 --> 00:26:34.140
and they found, oh, 10 days earlier police responded
656
00:26:34.140 --> 00:26:36.720
to his home for for a service call.
657
00:26:36.720 --> 00:26:38.187
And then they said, "oh, and somebody
658
00:26:38.187 --> 00:26:39.707
"was wearing a body camera.
659
00:26:39.707 --> 00:26:41.310
"Let's look at the footage."
660
00:26:41.310 --> 00:26:42.500
So I guess, stop there.
661
00:26:42.500 --> 00:26:44.530
Why is not an invasion
662
00:26:44.530 --> 00:26:46.450
of a reasonable expectation of privacy?
663
00:26:46.450 --> 00:26:49.760
You're positing that the only question
664
00:26:49.760 --> 00:26:50.810
that we need to answer is
665
00:26:50.810 --> 00:26:53.330
whether they accessed this in a reasonable way.
666
00:26:53.330 --> 00:26:55.310
Mmh hmm.
And I guess I'm still stuck
667
00:26:55.310 --> 00:26:58.740
at whether or not that second reviewing
668
00:26:58.740 --> 00:27:03.199
of the data of that address is a search.
669
00:27:03.199 --> 00:27:05.280
Right, so the Commonwealth's position, right,
670
00:27:05.280 --> 00:27:07.790
is that the recording itself has not necessarily
671
00:27:07.790 --> 00:27:09.570
a trait because it's just a memorialization
672
00:27:09.570 --> 00:27:11.060
of what happened within Balicki.
673
00:27:11.060 --> 00:27:12.240
So going back to look
674
00:27:12.240 --> 00:27:15.470
at the footage is not a search
675
00:27:15.470 --> 00:27:18.131
because it's just a record of what happened
676
00:27:18.131 --> 00:27:21.049
when the police were inside by consent, right.
677
00:27:21.049 --> 00:27:23.000
So assume I don't agree with you
678
00:27:23.000 --> 00:27:25.202
that the recording of the body cam,
679
00:27:25.202 --> 00:27:27.500
the body cam recording is not a search.
680
00:27:27.500 --> 00:27:29.540
Let's just say it is a search,
681
00:27:29.540 --> 00:27:30.823
but it was consented to,
682
00:27:31.920 --> 00:27:34.472
making it not a Fourth Amendment violation.
683
00:27:34.472 --> 00:27:36.170
Okay.
Posit that.
684
00:27:36.170 --> 00:27:38.140
Okay.
Now answer my question.
685
00:27:38.140 --> 00:27:41.450
Is the second accessing of the data a search?
686
00:27:41.450 --> 00:27:43.130
Does it invade a reasonable expectation
687
00:27:43.130 --> 00:27:45.630
of privacy, subjectively and objectively?
688
00:27:45.630 --> 00:27:46.590
No.
Why not?
689
00:27:46.590 --> 00:27:48.320
Okay, so I think there are certainly situations
690
00:27:48.320 --> 00:27:49.660
where it could, right?
691
00:27:49.660 --> 00:27:51.570
Where it could amount to an implication
692
00:27:51.570 --> 00:27:52.740
of the defendant's rights,
693
00:27:52.740 --> 00:27:53.954
but not here and that's because
694
00:27:53.954 --> 00:27:57.860
if the officer's slowed down the videos,
695
00:27:57.860 --> 00:27:59.160
zoomed in, if they were to find,
696
00:27:59.160 --> 00:28:02.690
look for details that were otherwise unknowable, right,
697
00:28:02.690 --> 00:28:05.430
that's what the technology cases focus on,
698
00:28:05.430 --> 00:28:06.800
by combing through data.
699
00:28:06.800 --> 00:28:08.133
You know, whether it's cell phone records,
700
00:28:08.133 --> 00:28:11.160
license plate readers, pole cameras,
701
00:28:11.160 --> 00:28:13.250
all of these technology cases talk
702
00:28:13.250 --> 00:28:16.910
about revealing information that was otherwise unknowable.
703
00:28:16.910 --> 00:28:18.070
So can I stop you, Counsel,
704
00:28:18.070 --> 00:28:20.270
because you're going to whether or not the access
705
00:28:20.270 --> 00:28:22.680
was done in a reasonable way,
706
00:28:22.680 --> 00:28:24.770
by zooming in, slowing down, whatever.
707
00:28:24.770 --> 00:28:29.770
I'm still stuck at whether or not the accessing itself
708
00:28:29.909 --> 00:28:31.190
is a search.
709
00:28:31.190 --> 00:28:32.023
Right and so--
710
00:28:32.023 --> 00:28:34.220
Invading the defendant's reasonable expectation
711
00:28:34.220 --> 00:28:35.053
of privacy.
Right.
712
00:28:35.053 --> 00:28:37.970
So I think what my answer is
713
00:28:37.970 --> 00:28:39.660
is the only way we determine
714
00:28:39.660 --> 00:28:40.630
if it's a search or not,
715
00:28:40.630 --> 00:28:42.250
is if it's unreasonable, right?
716
00:28:42.250 --> 00:28:45.620
So does it invade on the defendant's reasonable expectation
717
00:28:45.620 --> 00:28:48.210
of privacy and the answer is only yes
718
00:28:48.210 --> 00:28:50.120
if it was an unreasonable accessing.
719
00:28:50.120 --> 00:28:53.562
You know, revealing of information otherwise unknowable.
720
00:28:53.562 --> 00:28:54.784
Which here, no.
721
00:28:54.784 --> 00:28:56.563
Is that too narrow?
722
00:28:56.563 --> 00:28:59.650
I mean, Justice Wendlandt's point.
723
00:28:59.650 --> 00:29:01.370
I mean, when I under,
724
00:29:01.370 --> 00:29:03.740
I'm comparing it to Johnson.
725
00:29:03.740 --> 00:29:07.845
If I'm a probationer wearing a GPS device,
726
00:29:07.845 --> 00:29:09.890
I know that they're going to look
727
00:29:09.890 --> 00:29:12.850
to see what that data shows.
728
00:29:12.850 --> 00:29:15.880
But this guy, once they leave his house,
729
00:29:15.880 --> 00:29:18.963
he doesn't think they're going to save this data.
730
00:29:20.110 --> 00:29:21.777
And isn't it reasonable?
731
00:29:21.777 --> 00:29:24.680
He says, okay, this was a domestic incident
732
00:29:24.680 --> 00:29:26.283
that ended peacefully.
733
00:29:27.600 --> 00:29:31.990
There's no claim of police brutality or anything like that.
734
00:29:31.990 --> 00:29:35.053
So he thinks this is over and done with,
735
00:29:35.940 --> 00:29:37.260
so doesn't he have a,
736
00:29:37.260 --> 00:29:39.050
I mean, whether it's reasonable for them
737
00:29:39.050 --> 00:29:41.820
to access this is, to me, the next question.
738
00:29:41.820 --> 00:29:44.320
But in response to Justice Wendlandt question,
739
00:29:44.320 --> 00:29:47.330
doesn't he have a reasonable expectation of privacy
740
00:29:47.330 --> 00:29:52.330
in that in the storage of that body camera information?
741
00:29:54.300 --> 00:29:56.420
No.
He doesn't think
742
00:29:56.420 --> 00:29:58.470
they're gonna, if I,
743
00:29:58.470 --> 00:30:00.530
I wouldn't think anyone would be saving
744
00:30:00.530 --> 00:30:02.220
that kind of stuff on me.
745
00:30:02.220 --> 00:30:04.880
If they showed up at my house, I mean,
746
00:30:04.880 --> 00:30:07.297
why would, why would I think they'd save that?
747
00:30:07.297 --> 00:30:10.120
Right, the answer, you know,
748
00:30:10.120 --> 00:30:11.130
quite directly is no,
749
00:30:11.130 --> 00:30:13.009
there is no reasonable expectation of privacy
750
00:30:13.009 --> 00:30:14.920
that the police are not--
751
00:30:14.920 --> 00:30:17.300
Tell me why as opposed to there isn't.
752
00:30:17.300 --> 00:30:19.790
Right and I think that's because, you know,
753
00:30:19.790 --> 00:30:20.750
if, when you,
754
00:30:20.750 --> 00:30:22.864
when an individual calls the police
755
00:30:22.864 --> 00:30:25.490
to come to their home to aid a first service call
756
00:30:25.490 --> 00:30:27.185
for domestic violence, whatever,
757
00:30:27.185 --> 00:30:29.380
they know that the police are gonna come in
758
00:30:29.380 --> 00:30:31.210
and that they're going to see what they are going to see
759
00:30:31.210 --> 00:30:32.160
in their home
760
00:30:32.160 --> 00:30:33.590
and that the police are going to document
761
00:30:33.590 --> 00:30:35.854
that encounter in some way, right?
762
00:30:35.854 --> 00:30:37.015
Whether it's writing--
763
00:30:37.015 --> 00:30:38.860
They're going to document
764
00:30:38.860 --> 00:30:41.383
what my shades look like in my house?
765
00:30:43.167 --> 00:30:45.830
They're going to document this,
766
00:30:45.830 --> 00:30:47.750
how my house is laid out,
767
00:30:47.750 --> 00:30:50.904
even though the incident is over and done with?
768
00:30:50.904 --> 00:30:52.375
Absolutely, they're gonna have a memory
769
00:30:52.375 --> 00:30:53.620
of what occurred
770
00:30:53.620 --> 00:30:55.638
and like what Justice Cypher mentioned,
771
00:30:55.638 --> 00:30:57.607
there would be no question if,
772
00:30:57.607 --> 00:31:00.830
you know, the gang unit here had the Snapchat videos
773
00:31:00.830 --> 00:31:01.830
and they went and they looked,
774
00:31:01.830 --> 00:31:02.750
has anybody responded
775
00:31:02.750 --> 00:31:04.430
to the defendant's home recently?
776
00:31:04.430 --> 00:31:07.310
Oh, look, 10 days ago, they responded to a domestic call.
777
00:31:07.310 --> 00:31:08.965
Let's show these officers the Snapchat--
778
00:31:08.965 --> 00:31:12.080
Didn't Justice Alito tell us not to do that?
779
00:31:12.080 --> 00:31:13.730
Didn't justice Alito tell us
780
00:31:13.730 --> 00:31:17.120
that if you could, you know,
781
00:31:17.120 --> 00:31:20.050
saying that the police could just follow someone
782
00:31:20.050 --> 00:31:21.856
or use their great memory,
783
00:31:21.856 --> 00:31:23.210
that's not the,
784
00:31:23.210 --> 00:31:24.770
that's not how we look at this,
785
00:31:24.770 --> 00:31:29.040
these enhancements, because, you know,
786
00:31:29.040 --> 00:31:30.850
if that were the case, we would just say
787
00:31:30.850 --> 00:31:33.760
all GPSs are fine because the cops could put armies
788
00:31:33.760 --> 00:31:36.150
of cops out on the street and follow people.
789
00:31:36.150 --> 00:31:38.163
So that can't be the answer, right?
790
00:31:39.870 --> 00:31:42.000
When you cite to us McCarthy,
791
00:31:42.000 --> 00:31:44.150
the pole camera cases,
792
00:31:44.150 --> 00:31:46.903
as Mr. Levin points out with citing Kyllo,
793
00:31:47.910 --> 00:31:52.230
what you're not addressing is the home aspect of this
794
00:31:52.230 --> 00:31:54.520
as opposed to the outside aspect.
795
00:31:54.520 --> 00:31:57.810
That's a question I asked Mr. Levin about.
796
00:31:57.810 --> 00:32:01.620
If this was a car stop, different story.
797
00:32:01.620 --> 00:32:04.140
Address the home protections inherent
798
00:32:04.140 --> 00:32:06.530
in the Fourth Amendment and Article 14
799
00:32:06.530 --> 00:32:08.100
on the reasonable expectation privacy.
800
00:32:08.100 --> 00:32:08.933
Right, absolutely.
801
00:32:08.933 --> 00:32:11.890
So those cases are where, you know,
802
00:32:11.890 --> 00:32:14.785
the police are in a lawful place, perhaps,
803
00:32:14.785 --> 00:32:16.960
outside of the home
804
00:32:16.960 --> 00:32:18.866
and then they're trying to gather information
805
00:32:18.866 --> 00:32:22.158
from inside the home using technological enhancements.
806
00:32:22.158 --> 00:32:24.060
That's not the situation here.
807
00:32:24.060 --> 00:32:26.160
The defense, the police were lawfully
808
00:32:26.160 --> 00:32:29.800
inside the defendant's home by consent, right?
809
00:32:29.800 --> 00:32:32.090
It's a totally different situation than Kyllo,
810
00:32:32.090 --> 00:32:33.510
which is a thermal imaging case
811
00:32:33.510 --> 00:32:35.410
where the police are outside the home
812
00:32:35.410 --> 00:32:37.620
and then they're using technological enhancements
813
00:32:37.620 --> 00:32:39.770
to try to garner information from the home.
814
00:32:39.770 --> 00:32:41.400
That's why the Supreme Court said
815
00:32:41.400 --> 00:32:42.990
all details are intimate details.
816
00:32:42.990 --> 00:32:45.150
You're crossing a threshold.
817
00:32:45.150 --> 00:32:46.850
I think you're reading it a little bit narrowly,
818
00:32:46.850 --> 00:32:50.040
because the issue is in our fourth,
819
00:32:50.040 --> 00:32:54.130
of all our search and seizure case law involves this,
820
00:32:54.130 --> 00:32:56.090
the added protections of the home,
821
00:32:56.090 --> 00:32:58.323
as opposed to being outside the home.
822
00:32:58.323 --> 00:33:00.064
Right.
The intimate details
823
00:33:00.064 --> 00:33:04.380
of one's home which gathers the most protection,
824
00:33:04.380 --> 00:33:07.420
as opposed to a vehicle or your whereabouts
825
00:33:07.420 --> 00:33:08.343
on a public street.
826
00:33:08.343 --> 00:33:10.040
Right, those are when the police
827
00:33:10.040 --> 00:33:11.527
are not lawfully inside the home.
828
00:33:11.527 --> 00:33:12.860
That's the major difference here.
829
00:33:12.860 --> 00:33:14.650
Isn't there a difference in kind?
830
00:33:14.650 --> 00:33:17.150
You know, I invite somebody over to my living room.
831
00:33:17.150 --> 00:33:19.476
I don't expect them to be videotaping
832
00:33:19.476 --> 00:33:22.870
the living room for later review.
833
00:33:22.870 --> 00:33:25.250
I mean, I just, I guess I'm still stuck
834
00:33:25.250 --> 00:33:28.133
at the reasonableness of the storage
835
00:33:28.133 --> 00:33:30.740
and the accessing of this at the end.
836
00:33:30.740 --> 00:33:32.150
Well, I think it all
837
00:33:32.150 --> 00:33:33.900
has to be sort of taken in context, right,
838
00:33:33.900 --> 00:33:35.933
and I think that the videotaping here
839
00:33:35.933 --> 00:33:40.490
was a pure memorialization of the officers.
840
00:33:40.490 --> 00:33:41.880
But then when they access it,
841
00:33:41.880 --> 00:33:43.960
it's not memorialization anymore.
842
00:33:43.960 --> 00:33:46.020
They're using it for investigative purposes
843
00:33:46.020 --> 00:33:48.570
to compare it to the Snapchat that's been recorded.
844
00:33:49.650 --> 00:33:52.385
Right, but what they're going back to look at is just,
845
00:33:52.385 --> 00:33:53.480
it's the same thing.
846
00:33:53.480 --> 00:33:55.534
So in Balicki, right, this court said,
847
00:33:55.534 --> 00:33:57.870
if the police are somewhere
848
00:33:57.870 --> 00:33:59.430
where they're lawfully allowed to be,
849
00:33:59.430 --> 00:34:01.160
like executing a search warrant
850
00:34:01.160 --> 00:34:02.640
or they're inside the home
851
00:34:02.640 --> 00:34:04.380
because of an exception to the search warrant,
852
00:34:04.380 --> 00:34:07.500
they're allowed to photograph or videotape.
853
00:34:07.500 --> 00:34:09.010
It's a limited intrusion
854
00:34:09.010 --> 00:34:11.965
that doesn't implicate constitutional rights.
855
00:34:11.965 --> 00:34:15.547
They are allowed to videotape just what's
856
00:34:15.547 --> 00:34:16.963
within the scope of their duties.
857
00:34:16.963 --> 00:34:17.950
But what they can't do
858
00:34:17.950 --> 00:34:20.113
is turn over the,
859
00:34:22.050 --> 00:34:23.657
the toaster to look at serial numbers
860
00:34:23.657 --> 00:34:25.055
to see if it's stolen.
861
00:34:25.055 --> 00:34:27.127
They can make general observations and the like,
862
00:34:27.127 --> 00:34:28.450
but they can't do,
863
00:34:28.450 --> 00:34:29.830
and that's what Balicki says
864
00:34:29.830 --> 00:34:31.010
and a lot of cases say
865
00:34:31.010 --> 00:34:34.900
is the police exceed the scope of their authority,
866
00:34:34.900 --> 00:34:37.376
as Justice Wendlandt is asking you,
867
00:34:37.376 --> 00:34:40.700
but they can't do added things,
868
00:34:40.700 --> 00:34:42.484
like we'll get serial numbers
869
00:34:42.484 --> 00:34:45.933
or look into the closets or the drawers, right?
870
00:34:45.933 --> 00:34:46.766
Of course, which--
871
00:34:46.766 --> 00:34:48.130
But here digitally,
872
00:34:48.130 --> 00:34:51.140
they're looking at this for granular information
873
00:34:51.140 --> 00:34:53.373
as to what what the curtains look like.
874
00:34:54.610 --> 00:34:55.950
Well, I would respectfully disagree.
875
00:34:55.950 --> 00:34:56.860
So Balicki, right,
876
00:34:56.860 --> 00:34:59.840
this court said as long as you're lawfully inside,
877
00:34:59.840 --> 00:35:02.140
you can video, you can preserve, you know,
878
00:35:02.140 --> 00:35:04.400
what the officers did within the lawful scope--
879
00:35:04.400 --> 00:35:06.053
But this is an extension of Balicki,
880
00:35:06.053 --> 00:35:08.980
because now you're saying use what you lawfully obtain.
881
00:35:08.980 --> 00:35:10.170
Balicki says it's fine.
882
00:35:10.170 --> 00:35:12.790
And now use it for a second investigation.
883
00:35:12.790 --> 00:35:14.360
And Counselor, I would push back on that
884
00:35:14.360 --> 00:35:15.634
because in Balicki,
885
00:35:15.634 --> 00:35:20.550
didn't we say you could memorialize what you were there for,
886
00:35:20.550 --> 00:35:22.490
Mmh hmm.
but then when you get more
887
00:35:22.490 --> 00:35:23.760
than what you were there for,
888
00:35:23.760 --> 00:35:28.760
you can't use that extra to then get another search
889
00:35:29.320 --> 00:35:30.760
to do more.
890
00:35:30.760 --> 00:35:32.023
And isn't that exactly what they did here?
891
00:35:32.023 --> 00:35:34.607
Isn't that what we said they couldn't do in Balicki?
892
00:35:34.607 --> 00:35:37.320
No, because the police didn't see anything more
893
00:35:37.320 --> 00:35:39.270
than what they did exactly in their lawful duties
894
00:35:39.270 --> 00:35:40.607
and in fact, that's why we have
895
00:35:40.607 --> 00:35:42.710
the motions to suppress, right.
896
00:35:42.710 --> 00:35:44.270
I think that the motion to suppress
897
00:35:44.270 --> 00:35:45.727
is the protective measure here
898
00:35:45.727 --> 00:35:48.420
for a defendant's rights, right.
899
00:35:48.420 --> 00:35:49.850
So we have the footage,
900
00:35:49.850 --> 00:35:52.255
was taken--
I thought we were.
901
00:35:52.255 --> 00:35:53.967
(laughing)
902
00:35:53.967 --> 00:35:56.350
Yes, we were reviewing what the motion judge, right,
903
00:35:56.350 --> 00:35:57.500
made the decision
904
00:35:57.500 --> 00:36:00.200
and then we're also here to make sure
905
00:36:00.200 --> 00:36:01.860
that the motion judge was correct.
906
00:36:01.860 --> 00:36:03.030
And it's because, right,
907
00:36:03.030 --> 00:36:04.897
the footage was taken
908
00:36:04.897 --> 00:36:07.070
when the police were lawfully inside.
909
00:36:07.070 --> 00:36:08.560
It was totally within the scope
910
00:36:08.560 --> 00:36:10.100
of what the officer was supposed to be doing.
911
00:36:10.100 --> 00:36:11.160
If you look at the video, right,
912
00:36:11.160 --> 00:36:13.280
it shows just that he went upstairs,
913
00:36:13.280 --> 00:36:14.440
removed the defendant and left.
914
00:36:14.440 --> 00:36:16.620
He did not go outside the scope of his duties at all.
915
00:36:16.620 --> 00:36:17.940
He did not rummage through drawers.
916
00:36:17.940 --> 00:36:19.690
He did not inventory the house.
917
00:36:19.690 --> 00:36:20.880
He did not do anything
918
00:36:20.880 --> 00:36:23.070
outside of the scope of his duties, right.
919
00:36:23.070 --> 00:36:26.680
And then the police later access the video for,
920
00:36:26.680 --> 00:36:27.680
they didn't enhance it,
921
00:36:27.680 --> 00:36:29.140
they didn't slow it down.
922
00:36:29.140 --> 00:36:31.130
They didn't, you know, aggregate any data.
923
00:36:31.130 --> 00:36:32.570
It was from 10 days before.
924
00:36:32.570 --> 00:36:34.010
It was a timely nexus.
925
00:36:34.010 --> 00:36:37.130
And they found just a detail that was in plain view.
926
00:36:37.130 --> 00:36:39.070
It was not otherwise unknowable, right.
927
00:36:39.070 --> 00:36:40.630
Counsel, Counsel.
928
00:36:40.630 --> 00:36:43.030
I'm sorry.
I'm sorry, Counsel.
929
00:36:43.030 --> 00:36:44.670
I'm listening to this
930
00:36:44.670 --> 00:36:46.330
and then the question comes to my mind,
931
00:36:46.330 --> 00:36:49.490
why is it so difficult for the police
932
00:36:49.490 --> 00:36:52.250
at that point to just write an affidavit
933
00:36:52.250 --> 00:36:54.580
and say I think I do remember something.
934
00:36:54.580 --> 00:36:56.170
I'd like to confirm it.
935
00:36:56.170 --> 00:36:57.430
It's, you know,
936
00:36:57.430 --> 00:36:59.130
that could reach probable cause,
937
00:36:59.130 --> 00:37:01.410
especially with the Snapchat information
938
00:37:01.410 --> 00:37:03.889
and get a warrant to search the estate.
939
00:37:03.889 --> 00:37:05.810
You know, the simple answer is that
940
00:37:05.810 --> 00:37:08.760
it's not required because there's not a search, you know,
941
00:37:08.760 --> 00:37:09.690
to access the video.
942
00:37:09.690 --> 00:37:10.640
But if it wasn't--
943
00:37:10.640 --> 00:37:13.990
If there were a search, if you, if it were a search.
944
00:37:13.990 --> 00:37:15.291
If we said, "this is a search."
945
00:37:15.291 --> 00:37:17.643
Absolutely,
The warrant was--
946
00:37:17.643 --> 00:37:19.870
They would have had probable cause for that.
947
00:37:19.870 --> 00:37:22.883
One more question and I'll turn it back over.
948
00:37:24.170 --> 00:37:26.450
Do you have any cases or examples
949
00:37:26.450 --> 00:37:28.870
where police have gone into a home,
950
00:37:28.870 --> 00:37:32.340
taken photographs for a valid reason,
951
00:37:32.340 --> 00:37:33.760
gone back to the police station,
952
00:37:33.760 --> 00:37:35.840
tucked them away somewhere because they don't need them,
953
00:37:35.840 --> 00:37:37.880
and then some day later somebody is going through
954
00:37:37.880 --> 00:37:40.277
and says, "ah, this is the photo I need to show
955
00:37:40.277 --> 00:37:42.300
"that so-and-so's connected to this crime."
956
00:37:42.300 --> 00:37:43.308
Do we have anything like that?"
957
00:37:43.308 --> 00:37:44.610
I don't think I have that case, Your Honor,
958
00:37:44.610 --> 00:37:47.380
because police do that all the time, right?
959
00:37:47.380 --> 00:37:49.800
Police take pictures all the time of a crime scene.
960
00:37:49.800 --> 00:37:51.670
How is that different from this?
961
00:37:51.670 --> 00:37:53.760
It's not and that's the point, right?
962
00:37:53.760 --> 00:37:55.410
Police take pictures all the time.
963
00:37:55.410 --> 00:37:58.680
They, you know, if there had been injuries
964
00:37:58.680 --> 00:37:59.513
in this case
965
00:37:59.513 --> 00:38:00.620
or if there had been a melee
966
00:38:00.620 --> 00:38:02.770
and you know, furniture had been knocked down,
967
00:38:02.770 --> 00:38:05.370
the police may have had to record that by taking pictures,
968
00:38:05.370 --> 00:38:06.330
and there's no question they
969
00:38:06.330 --> 00:38:07.270
would have been able to go back
970
00:38:07.270 --> 00:38:08.630
and look at those pictures, right.
971
00:38:08.630 --> 00:38:09.660
That's why we don't have a case
972
00:38:09.660 --> 00:38:11.960
on point saying you are allowed to do that
973
00:38:11.960 --> 00:38:14.310
because police routinely go back and look
974
00:38:14.310 --> 00:38:17.451
at their pictures of crime scenes taken inside the home,
975
00:38:17.451 --> 00:38:21.640
of pictures of, you know, victim's injuries taken
976
00:38:21.640 --> 00:38:22.473
inside the home,
977
00:38:22.473 --> 00:38:24.900
of police reports written about, you know,
978
00:38:24.900 --> 00:38:26.120
things that happened inside the home.
979
00:38:26.120 --> 00:38:27.790
They routinely go back and look at that stuff
980
00:38:27.790 --> 00:38:29.710
and we never questioned whether they're allowed to do that.
981
00:38:29.710 --> 00:38:30.543
Of course they are.
982
00:38:30.543 --> 00:38:32.742
It's a memorialization of the encounter that incurred
983
00:38:32.742 --> 00:38:37.020
inside the home with the legal authorization to be inside.
984
00:38:37.020 --> 00:38:38.320
Can I ask you a question I probably
985
00:38:38.320 --> 00:38:39.310
should know the answer to?
986
00:38:39.310 --> 00:38:41.060
Yes.
But you'll help me out.
987
00:38:41.060 --> 00:38:46.060
Is there any BPD guidelines that govern retention
988
00:38:46.860 --> 00:38:49.380
in search of body camera footage?
989
00:38:49.380 --> 00:38:50.874
There is, yeah.
990
00:38:50.874 --> 00:38:52.870
I believe, you know, that there is a policy.
991
00:38:52.870 --> 00:38:53.703
I think I--
992
00:38:53.703 --> 00:38:54.536
Is that in the record?
993
00:38:54.536 --> 00:38:56.784
It's not in the record, no.
994
00:38:56.784 --> 00:38:58.130
So it's not in the record
995
00:38:58.130 --> 00:39:00.470
and I don't think that that's necessarily a problem
996
00:39:00.470 --> 00:39:01.380
for the Commonwealth's case.
997
00:39:01.380 --> 00:39:03.257
I know that there was a testimony--
998
00:39:04.783 --> 00:39:05.680
Well, if you exceeded,
999
00:39:05.680 --> 00:39:07.320
if you exceeded those guidelines,
1000
00:39:07.320 --> 00:39:08.470
you'd probably have a problem
1001
00:39:08.470 --> 00:39:11.330
'cause that would indicate a reasonable expectation
1002
00:39:11.330 --> 00:39:13.260
of privacy based on those guidelines.
1003
00:39:13.260 --> 00:39:16.850
So I guess the question is why aren't they in the record?
1004
00:39:16.850 --> 00:39:19.510
Well, I would disagree with that, Your Honor.
1005
00:39:19.510 --> 00:39:23.230
I don't think that the policy sort of indicates
1006
00:39:23.230 --> 00:39:25.780
that answer to the constitutional question--
1007
00:39:25.780 --> 00:39:26.613
But it would give,
1008
00:39:26.613 --> 00:39:29.904
it will give the citizens of this, of Boston,
1009
00:39:29.904 --> 00:39:33.180
some expectation of privacy knowing that the police
1010
00:39:33.180 --> 00:39:35.430
shouldn't exceed their own guidelines, right?
1011
00:39:36.750 --> 00:39:38.310
Well, no, I would disagree.
1012
00:39:38.310 --> 00:39:39.360
I would disagree with that, Your Honor.
1013
00:39:39.360 --> 00:39:41.050
I think the basic question here
1014
00:39:41.050 --> 00:39:44.960
was were the police lawfully inside the defendant's home
1015
00:39:44.960 --> 00:39:46.190
and they were by consent.
1016
00:39:46.190 --> 00:39:47.870
It's not even contested, right?
1017
00:39:47.870 --> 00:39:49.740
And then it just becomes a question of, you know,
1018
00:39:49.740 --> 00:39:50.573
was the later access to the--
1019
00:39:50.573 --> 00:39:53.010
Right, and if, and if the use of the,
1020
00:39:53.010 --> 00:39:56.630
if the mining of this data exceeded the BPD guidelines,
1021
00:39:56.630 --> 00:39:58.080
it probably is an issue.
1022
00:39:58.080 --> 00:39:59.590
Well and I would disagree again
1023
00:39:59.590 --> 00:40:02.023
that there was any type of mining of any data, right?
1024
00:40:02.023 --> 00:40:05.170
I know characteristics, things are important.
1025
00:40:05.170 --> 00:40:06.930
Yeah.
But--
1026
00:40:06.930 --> 00:40:07.763
And I think--
1027
00:40:07.763 --> 00:40:08.596
Can I ask--
1028
00:40:08.596 --> 00:40:09.429
Be as it may,
1029
00:40:09.429 --> 00:40:10.641
that's not part of the record, right?
1030
00:40:10.641 --> 00:40:12.580
It was not introduced at the--
1031
00:40:12.580 --> 00:40:14.773
And isn't the record,
1032
00:40:15.790 --> 00:40:17.910
I mean, I'm remembering Mr. Levin's brief
1033
00:40:17.910 --> 00:40:20.110
and I may be, I haven't checked the record,
1034
00:40:20.110 --> 00:40:22.500
but I think there's an argument in the brief
1035
00:40:22.500 --> 00:40:27.080
that the police testimony was we preserve this data forever.
1036
00:40:27.080 --> 00:40:28.430
Is that correct?
1037
00:40:28.430 --> 00:40:30.170
And is that what we have to work
1038
00:40:30.170 --> 00:40:32.190
from here even though it's inaccurate?
1039
00:40:32.190 --> 00:40:34.122
I think so.
1040
00:40:34.122 --> 00:40:36.502
I think so, you know, sort of,
1041
00:40:36.502 --> 00:40:38.600
that is the record before the court,
1042
00:40:38.600 --> 00:40:39.732
but what I think is important--
1043
00:40:39.732 --> 00:40:40.565
But doesn't that,
1044
00:40:40.565 --> 00:40:42.722
does that raise some troubling issues for us,
1045
00:40:42.722 --> 00:40:45.220
because if the record we're dealing with
1046
00:40:45.220 --> 00:40:47.952
is they keep this data forever,
1047
00:40:47.952 --> 00:40:52.630
doesn't that raise sort of some McCarthy
1048
00:40:52.630 --> 00:40:56.670
or issues about a glomeration of data
1049
00:40:56.670 --> 00:40:59.720
that can be misused if it's not controlled?
1050
00:40:59.720 --> 00:41:00.553
No, it doesn't
1051
00:41:00.553 --> 00:41:01.960
and that's because the question
1052
00:41:01.960 --> 00:41:03.632
is what actually happened in this case
1053
00:41:03.632 --> 00:41:05.320
and what actually happened in this case
1054
00:41:05.320 --> 00:41:08.300
is that the officer's accessed one body camera
1055
00:41:08.300 --> 00:41:09.262
from 10 days earlier.
1056
00:41:09.262 --> 00:41:12.760
It doesn't matter that it may be kept forever here.
1057
00:41:12.760 --> 00:41:14.380
It was a timely nexus, right?
1058
00:41:14.380 --> 00:41:15.890
It was 10 days earlier.
1059
00:41:15.890 --> 00:41:18.530
Well, waive to the Balicki issue
1060
00:41:18.530 --> 00:41:21.950
of whether everything here is, you know,
1061
00:41:21.950 --> 00:41:24.300
are we using it for this case
1062
00:41:24.300 --> 00:41:29.300
or are we data mining in ways that are troublesome?
1063
00:41:30.021 --> 00:41:31.850
Because Balicki says okay,
1064
00:41:31.850 --> 00:41:34.250
you can take pictures as part of a search, right,
1065
00:41:34.250 --> 00:41:36.212
because it memorializes the search
1066
00:41:36.212 --> 00:41:39.830
for that particular case, right?
1067
00:41:39.830 --> 00:41:42.920
Balicki is a little bit different, right?
1068
00:41:42.920 --> 00:41:45.803
The issue was whether it was all part of that case.
1069
00:41:45.803 --> 00:41:49.120
This is a totally separate incident being used here,
1070
00:41:49.120 --> 00:41:49.953
isn't it?
1071
00:41:49.953 --> 00:41:51.360
Doesn't that raise different sets of questions
1072
00:41:51.360 --> 00:41:54.003 line:15%
if the data is going to be used forever.
1073
00:41:55.490 --> 00:41:58.440
No, because it's about when the police access it
1074
00:41:58.440 --> 00:42:00.770
and here they accessed it 10 days later.
1075
00:42:00.770 --> 00:42:02.250
And that's the issue before this court,
1076
00:42:02.250 --> 00:42:03.860
whether what the police did when they accessed
1077
00:42:03.860 --> 00:42:05.440
the video was reasonable.
1078
00:42:05.440 --> 00:42:07.360
So if they access it a year later,
1079
00:42:07.360 --> 00:42:08.210
it would be unreasonable?
1080
00:42:08.210 --> 00:42:09.200
Possibly, I don't know.
1081
00:42:09.200 --> 00:42:10.033
I mean, I guess--
1082
00:42:10.033 --> 00:42:12.080
What is the limit to this 10 day period?
1083
00:42:12.080 --> 00:42:14.470
Well, I think it would be, you know,
1084
00:42:14.470 --> 00:42:16.377
litigated at the motion to suppress, right?
1085
00:42:16.377 --> 00:42:17.750
And that's the protective measure
1086
00:42:17.750 --> 00:42:18.900
that we have for defendants here
1087
00:42:18.900 --> 00:42:21.290
about whether their privacy rights were implicated.
1088
00:42:21.290 --> 00:42:23.530
So 10 days later, no privacy,
1089
00:42:23.530 --> 00:42:26.173
but maybe 20 days later there'll be privacy?
1090
00:42:27.050 --> 00:42:27.883
We don't know?
1091
00:42:28.800 --> 00:42:30.458
That's the legal issue you want us to set up?
1092
00:42:30.458 --> 00:42:32.010
Well, I think it's probably, you know,
1093
00:42:32.010 --> 00:42:34.300
it's the standards.
1094
00:42:34.300 --> 00:42:35.490
I'm not saying necessarily
1095
00:42:35.490 --> 00:42:37.540
the standards of a search warrant exactly.
1096
00:42:37.540 --> 00:42:39.940
But here, right, the officers wanted the information
1097
00:42:39.940 --> 00:42:41.010
to put it in a search warrant,
1098
00:42:41.010 --> 00:42:43.040
so they needed to have a timely nexus, right.
1099
00:42:43.040 --> 00:42:46.016
The body, the curtains needed to be at a time
1100
00:42:46.016 --> 00:42:48.540
where they could still say the guns
1101
00:42:48.540 --> 00:42:49.373
are probably in the house.
1102
00:42:49.373 --> 00:42:50.407
How is this data accessed?
1103
00:42:50.407 --> 00:42:52.285
Wasn't it by address?
1104
00:42:52.285 --> 00:42:54.180
Yes.
So when you say
1105
00:42:54.180 --> 00:42:56.750
it's not data mining, it actually is, right?
1106
00:42:56.750 --> 00:43:01.040
If there has been more than one service call this address,
1107
00:43:01.040 --> 00:43:04.900
it would have pulled up all of the body cam recordings
1108
00:43:04.900 --> 00:43:06.150
from this address, right?
1109
00:43:07.375 --> 00:43:09.880
I don't know if there was more than one.
1110
00:43:09.880 --> 00:43:11.580
I mean, it would have probably pulled
1111
00:43:11.580 --> 00:43:12.547
up all the times that the officers were there.
1112
00:43:12.547 --> 00:43:14.380
Right, so I'm a police officer
1113
00:43:14.380 --> 00:43:17.370
and I'm investigating a defendant for whatever crime
1114
00:43:17.370 --> 00:43:19.580
and I know that he lives at X address.
1115
00:43:19.580 --> 00:43:20.524
All I have to do now,
1116
00:43:20.524 --> 00:43:22.860
because this data according to the record
1117
00:43:22.860 --> 00:43:24.610
is kept forever,
1118
00:43:24.610 --> 00:43:26.530
is look in the database
1119
00:43:26.530 --> 00:43:29.480
and see if there's ever been video footage of his apartment.
1120
00:43:29.480 --> 00:43:30.420
Right. but again,
1121
00:43:30.420 --> 00:43:31.253
as this case,
1122
00:43:31.253 --> 00:43:32.400
as this court has said in all these kinds
1123
00:43:32.400 --> 00:43:33.700
of technology cases,
1124
00:43:33.700 --> 00:43:35.910
yes, there's a world of data out there,
1125
00:43:35.910 --> 00:43:38.090
but it's about how the police use it, right?
1126
00:43:38.090 --> 00:43:42.070
And here it's a targeted limited analysis.
1127
00:43:42.070 --> 00:43:43.910
It's one time, right?
1128
00:43:43.910 --> 00:43:47.150
One entry by the police by consent.
1129
00:43:47.150 --> 00:43:48.190
I understand you want
1130
00:43:48.190 --> 00:43:49.790
to limit the discussion to this case.
1131
00:43:49.790 --> 00:43:51.413
I'm trying to get into a more,
1132
00:43:52.700 --> 00:43:54.340
I want to figure out what legal regime we
1133
00:43:54.340 --> 00:43:55.220
should be setting up,
1134
00:43:55.220 --> 00:43:58.120
because it sounds like based on the record here,
1135
00:43:58.120 --> 00:43:59.770
the police are collecting data
1136
00:43:59.770 --> 00:44:02.153
on the interior of people's homes,
1137
00:44:04.040 --> 00:44:06.430
making it searchable by address
1138
00:44:06.430 --> 00:44:10.810
and then searching it for defendant's addresses.
1139
00:44:10.810 --> 00:44:11.850
I would disagree with that.
1140
00:44:11.850 --> 00:44:12.683
I don't think,
1141
00:44:12.683 --> 00:44:14.590
what happened here is that the gang unit looked
1142
00:44:14.590 --> 00:44:17.350
to see if anybody had responded to the defendant's home
1143
00:44:17.350 --> 00:44:19.436
because they were investigating the defendant.
1144
00:44:19.436 --> 00:44:20.269
[Justice Wendlandt] Do you think this is a one op?
1145
00:44:20.269 --> 00:44:22.670
When they found that police had responded
1146
00:44:22.670 --> 00:44:23.820
to the defendant's home,
1147
00:44:23.820 --> 00:44:25.850
they saw that one of the officers was assigned
1148
00:44:25.850 --> 00:44:27.230
to wear a body camera.
1149
00:44:27.230 --> 00:44:28.490
It wasn't like that they
1150
00:44:28.490 --> 00:44:31.690
were looking for body camera evidence.
1151
00:44:31.690 --> 00:44:33.568
I guess that's the issue.
1152
00:44:33.568 --> 00:44:35.877
You're saying that this is episodic.
1153
00:44:35.877 --> 00:44:38.346
Mmh hmm.
And if you zoom out
1154
00:44:38.346 --> 00:44:41.187
to Justice Wendlandt's question,
1155
00:44:41.187 --> 00:44:44.638
let's say they then get the address,
1156
00:44:44.638 --> 00:44:47.070
they go and they input the address
1157
00:44:47.070 --> 00:44:50.180
to see how many service calls have resulted
1158
00:44:50.180 --> 00:44:52.840
in police going to that address
1159
00:44:52.840 --> 00:44:56.560
and there are 50 entries,
1160
00:44:56.560 --> 00:44:58.200
and then they go further to see
1161
00:44:58.200 --> 00:44:59.937
whether or not anyone that responded
1162
00:44:59.937 --> 00:45:02.590
had a body worn camera.
Mmh hmm.
1163
00:45:02.590 --> 00:45:07.590
And then they go to the footage of October 1st, 2017.
1164
00:45:09.687 --> 00:45:13.760
That's kept forever to see if they see anything.
1165
00:45:13.760 --> 00:45:15.310
Mmh hmm.
I guess that's the,
1166
00:45:15.310 --> 00:45:20.160
the regime question is this is a question of applicability
1167
00:45:20.160 --> 00:45:21.670
to the entire Commonwealth,
1168
00:45:21.670 --> 00:45:23.270
not just this case.
Right.
1169
00:45:23.270 --> 00:45:25.460
So what do you say about that?
1170
00:45:25.460 --> 00:45:28.700
Well, I would say that would be, you know,
1171
00:45:28.700 --> 00:45:32.256
perhaps a situation where the defendant's privacy rights
1172
00:45:32.256 --> 00:45:34.900
could be implicated, right,
1173
00:45:34.900 --> 00:45:37.565
if it were that long ago and it were, you know,
1174
00:45:37.565 --> 00:45:41.750
the police had mined through lots of data
1175
00:45:41.750 --> 00:45:43.810
in order to get there and had, you know,
1176
00:45:43.810 --> 00:45:45.620
used these sort of technological enhancements.
1177
00:45:45.620 --> 00:45:46.453
Perhaps, of course.
1178
00:45:46.453 --> 00:45:47.620
I'm not being, you know, unreasonable.
1179
00:45:47.620 --> 00:45:50.410
There may be a situation where the access
1180
00:45:50.410 --> 00:45:52.153
does implicate the defendant's rights.
1181
00:45:52.153 --> 00:45:53.630
And I think you can look,
1182
00:45:53.630 --> 00:45:55.760
I know Justice Kafker was looking for it, you know,
1183
00:45:55.760 --> 00:45:58.500
sort of a way to figure out
1184
00:45:58.500 --> 00:45:59.930
where it does implicate their rights
1185
00:45:59.930 --> 00:46:01.830
and I think you look at those technology cases.
1186
00:46:01.830 --> 00:46:03.060
Are we aggregating data?
1187
00:46:03.060 --> 00:46:04.840
Are we data mining?
1188
00:46:04.840 --> 00:46:07.770
You know, is it timely?
1189
00:46:07.770 --> 00:46:10.180
Is this, do you have to use technological enhancements?
1190
00:46:10.180 --> 00:46:11.490
You can look at the McCarthy,
1191
00:46:11.490 --> 00:46:13.090
the Amora line of cases, right?
1192
00:46:13.090 --> 00:46:14.094
Well, Mrs. Martino,
1193
00:46:14.094 --> 00:46:16.180
I think what you're saying
1194
00:46:16.180 --> 00:46:20.739
is that these are really important issues
1195
00:46:20.739 --> 00:46:22.840
to be litigated,
1196
00:46:22.840 --> 00:46:24.790
but like Commonwealth versus McCarthy,
1197
00:46:24.790 --> 00:46:27.270
we've got four cameras on a bridge.
1198
00:46:27.270 --> 00:46:29.009
Let's decide that case.
Right.
1199
00:46:29.009 --> 00:46:31.798
And then we've got all these huge issues
1200
00:46:31.798 --> 00:46:34.190
that we should decide when we have those facts.
1201
00:46:34.190 --> 00:46:35.093
Right.
I think
1202
00:46:35.093 --> 00:46:35.926
that's what you're saying.
1203
00:46:35.926 --> 00:46:36.759
Exactly and of course,
1204
00:46:36.759 --> 00:46:38.650
each individual defendant may bring
1205
00:46:38.650 --> 00:46:41.470
a motion to suppress to say I believe
1206
00:46:41.470 --> 00:46:43.411
under these circumstances, you know--
1207
00:46:43.411 --> 00:46:44.870
Then you have those facts.
1208
00:46:44.870 --> 00:46:46.350
Exactly, may have been violated.
1209
00:46:46.350 --> 00:46:47.890
And then you have the recordings.
1210
00:46:47.890 --> 00:46:49.930
The motion judge at the motion to suppress
1211
00:46:49.930 --> 00:46:51.080
can look at the recording,
1212
00:46:51.080 --> 00:46:53.150
can look to see if when it was recorded,
1213
00:46:53.150 --> 00:46:54.670
did it go outside of the scope,
1214
00:46:54.670 --> 00:46:56.190
were the defendant's rights implicated?
1215
00:46:56.190 --> 00:46:57.090
They'll have the video,
1216
00:46:57.090 --> 00:46:59.500
so they can look at the time the recording was made,
1217
00:46:59.500 --> 00:47:00.771
were the defendant's rights implicated
1218
00:47:00.771 --> 00:47:03.080
and then they can look at the access, right?
1219
00:47:03.080 --> 00:47:04.532
The motion judge can look at the access.
1220
00:47:04.532 --> 00:47:05.630
Or if you look at the subjective
1221
00:47:05.630 --> 00:47:09.533
and objective expectations of privacy with facts.
1222
00:47:10.697 --> 00:47:12.560
Exactly, exactly.
1223
00:47:12.560 --> 00:47:13.393
So that can be,
1224
00:47:13.393 --> 00:47:16.980
but these facts in this case,
1225
00:47:16.980 --> 00:47:20.030
there was no expectation of privacy,
1226
00:47:20.030 --> 00:47:21.920
no privacy rights implicated when the,
1227
00:47:21.920 --> 00:47:24.050
when the officers entered the defendant's home,
1228
00:47:24.050 --> 00:47:27.030
because the sister consented for them to be in there.
1229
00:47:27.030 --> 00:47:29.398
The officers stayed within the scope of his duties
1230
00:47:29.398 --> 00:47:31.170
when he went and removed the defendant
1231
00:47:31.170 --> 00:47:32.670
and his girlfriend from the house.
1232
00:47:32.670 --> 00:47:35.720
He did not film anything outside of the scope of his duties.
1233
00:47:35.720 --> 00:47:38.450
And when the officers later went to access the footage,
1234
00:47:38.450 --> 00:47:40.170
they did so in a reasonable manner.
1235
00:47:40.170 --> 00:47:41.946
There was no aggregation of data.
1236
00:47:41.946 --> 00:47:44.375
You know, it wasn't over a long duration of time.
1237
00:47:44.375 --> 00:47:46.360
It was a targeted analysis.
1238
00:47:46.360 --> 00:47:47.193
It was all--
1239
00:47:47.193 --> 00:47:49.450
That's a, John's, that's a John's,
1240
00:47:49.450 --> 00:47:54.450
that's a second part Feliz analysis, though,
1241
00:47:55.691 --> 00:47:56.710
Yes.
That mean,
1242
00:47:56.710 --> 00:47:58.315
so I mean, it gets me back
1243
00:47:58.315 --> 00:48:01.860
to the question I asked your brother.
1244
00:48:01.860 --> 00:48:06.210
So is if we find the second one is a search,
1245
00:48:06.210 --> 00:48:10.160
can a sort of a re reasonableness standard
1246
00:48:10.160 --> 00:48:11.185
be imposed there
1247
00:48:11.185 --> 00:48:16.185
or does it have to be probable cause, or like Arcola,
1248
00:48:17.540 --> 00:48:21.880
minimal, absolutely minimal type of intrusion?
1249
00:48:21.880 --> 00:48:24.620
So, it doesn't have to be probable cause
1250
00:48:24.620 --> 00:48:25.830
and I know that we keep going back
1251
00:48:25.830 --> 00:48:27.435
to, like, this was inside the home,
1252
00:48:27.435 --> 00:48:31.850
but it was inside the home because the police officers
1253
00:48:31.850 --> 00:48:34.045
were consented to come inside the home, right?
1254
00:48:34.045 --> 00:48:38.540
So again, like a probationer's diminished expectation
1255
00:48:38.540 --> 00:48:41.467
of privacy 'cause he knows that he's got the GPS on,
1256
00:48:41.467 --> 00:48:43.660
here the defendant knows that the police
1257
00:48:43.660 --> 00:48:44.796
were inside his home, right.
1258
00:48:44.796 --> 00:48:46.427
His sister said come on in.
1259
00:48:46.427 --> 00:48:48.620
And so when somebody calls the police,
1260
00:48:48.620 --> 00:48:50.380
they expect that the police are going to come in,
1261
00:48:50.380 --> 00:48:51.240
that they're going to look around,
1262
00:48:51.240 --> 00:48:53.510
they're going to see what they're gonna see
1263
00:48:53.510 --> 00:48:55.130
and that they're gonna document it, right.
1264
00:48:55.130 --> 00:48:57.250
So there is this diminished expectation of privacy
1265
00:48:57.250 --> 00:48:58.370
or as the Commonwealth would say,
1266
00:48:58.370 --> 00:49:00.680
no expectation of privacy at all.
1267
00:49:00.680 --> 00:49:02.603
I don't, again, I don't see them,
1268
00:49:02.603 --> 00:49:05.840
I have trouble with the documenting point.
1269
00:49:05.840 --> 00:49:08.020
They document the incident.
1270
00:49:08.020 --> 00:49:10.047
They don't document the curtains
1271
00:49:10.047 --> 00:49:14.003
or whether the guy has a nice house or not.
1272
00:49:15.231 --> 00:49:17.240
You know, it just, that's where I get,
1273
00:49:17.240 --> 00:49:19.810
I wonder whether we're going beyond Balicki
1274
00:49:19.810 --> 00:49:23.530
when we save the inside of the house
1275
00:49:23.530 --> 00:49:26.030
when it has nothing to do with the police incident
1276
00:49:26.030 --> 00:49:27.507
that we're dealing with here.
1277
00:49:27.507 --> 00:49:28.777
Well, I would say that, you know,
1278
00:49:28.777 --> 00:49:31.400
within, what the police did here was within Balicki.
1279
00:49:31.400 --> 00:49:33.186
And so then the question is, you know,
1280
00:49:33.186 --> 00:49:35.440
what the accessing of it.
1281
00:49:35.440 --> 00:49:36.470
And I think, again,
1282
00:49:36.470 --> 00:49:38.880
imposing a reasonableness standard to determine
1283
00:49:38.880 --> 00:49:42.880
if there is some type of privacy right,
1284
00:49:42.880 --> 00:49:44.830
implicated, is the appropriate one.
1285
00:49:44.830 --> 00:49:46.030
And I think that the factors
1286
00:49:46.030 --> 00:49:49.030
that the court can look at are sort of, you know,
1287
00:49:49.030 --> 00:49:50.104
did they have to zoom in,
1288
00:49:50.104 --> 00:49:51.860
how much data did they go through.
1289
00:49:51.860 --> 00:49:54.505
Sort of the things in McCarthy Johnson, Amora.
1290
00:49:54.505 --> 00:49:59.086
Was it, you know, historical data over a lot of time?
1291
00:49:59.086 --> 00:50:01.770
Was it multiple, you know, data points
1292
00:50:01.770 --> 00:50:05.410
or was it a targeted analysis such as it was?
1293
00:50:05.410 --> 00:50:07.790
Let me ask if there are any more questions.
1294
00:50:07.790 --> 00:50:08.875
Thank you, Mrs. Martino.
1295
00:50:08.875 --> 00:50:09.875
Thank you.