-: SJC one, two, nine, eight, nine, Commonwealth fee.
Abdirahman A. Yusuf.
-: Mr Levin, please.
-: Thank you very much.
Good morning.
May it please the court, Patrick Levin
on behalf of Abdirahman Yusuf
who appeals this morning from the denial
of his motion to suppress.
In this case, police responded
to a call for a domestic disturbance at Mr. Yusuf's house
and one of the officers,
while he was there,
made a video recording of the inside
of the home without notice
and without asking for permission to record.
Subsequently, other officers in the gang unit
who are conducting an investigation
that was unrelated to the domestic disturbance
obtained that video recording,
made their own copy of it
which they kept on a DVD in their desk
and subsequently used that video
to develop probable cause for a search warrant.
This sequence of events violated Mr. Yusuf's right
to be secure in his house against unreasonable searches.
-: Your position, Mr. Levin,
is that the,
the review of the body cam at some point
after entry into the home, constituted another,
not just search,
but seizure that required constitutional justification.
Is that right?
-: Yes, that's right.
I'm not sure it's necessary to--
-: What do you rely on for that, please?
-: Well, Your Honor,
I guess it would go back
as far as Katz, I suppose.
It's a police action that intruded
on his reasonable expectation of privacy in his home.
Other cases that I rely on
in terms of the subsequent inspection of evidence
that the police already had in their custody,
potentially constituting a search requiring
a warrant would include cases like Riley versus California,
Commonwealth versus Arzola,
Maryland versus King,
Commonwealth versus Johnson.
-: Well, before you get to Johnson,
which is an interesting choice for a case,
what about Justice Gaziano's opinion
in Commwonwealth versus McCarthy where looking
at the automatic license plate data
did not constitute in that particular circumstance
a search where you have, of course,
much more data than you have from one entry
with a body cam.
-: Yes, that's right, Your Honor.
I think McCarthy also supports my position in this case.
The reason the inspection of the ALPR data
in McCarthy was not a search,
was that it did not intrude
on Mr. McCarthy's reasonable expectation of privacy
because all it revealed was his physical location
in public at a few times.
In this case,
the inspection of the video recording
of the inside of Mr. Yusuf's home revealed information
about the inside of his home,
a location where he's entitled
to the most heightened privacy
under the Fourth Amendment in Article 14
where all details are intimate, private details.
-: Mr. Levin, I,
I understand your,
your argument about there being two separate searches,
both requiring either permission or a warrant,
but let me ask you a hypothetical.
Let's assume for the sake of this question
that we find the first recording to be permissible.
This really focuses on the second argument.
If the police suspect that someone,
that he's involved in a string of burglaries
and they surveil the person
and he discards a soda bottle,
walks away, the police pick up the soda bottle
from the trash and they fingerprint it
and they just keep that in their desk,
or that data to themselves. -: Yes.
-: There's a subsequent burglary
and the police obtain latent fingerprints
from that burglary
and they compare it to the soda bottle.
Is that okay?
-: Yes, Your Honor.
Commonwealth versus Arzola discusses this
in the context of DNA analysis
but it compares it to fingerprint analysis
very explicitly in that opinion.
-: Right. -: And the--
-: Go on, go on.
I'm sorry, I didn't mean to cut you off.
Please explain.
-: So, the holding in Arzola
is that the DNA analysis of the shirt,
it's a shirt in that case that was lawfully seized
from the defendant,
the DNA analysis is not a search
because it doesn't reveal any information
in which Mr. Arzola had a reasonable expectation
of privacy. -: Right.
-: So again, it's the same--
-: But that, that's, that, that's what,
that's what I have a question about.
And I was going to ask you about Arzola.
That was my second question about that,
'cause in Arzola,
Chief Justice Gantz writes
where the shirt was lawfully seized.
There was no reasonable expectation
of privacy to prevent police
from analyzing the shirt to determine basically the source
of the bloodstain doing a DNA analysis.
-: Right. -: Where here,
so no reasonable expectation of privacy
in the DNA identification characteristics.
He had later kind of said, "well, if they did a full,"
I guess genome, that's a different story, right?
-: That's right.
-: But here the analysis is of someone's curtains,
a distinctive pattern in the curtains.
How is that more,
how is that information more protected
than a DNA profile?
That's what I'm trying to tease out
for your argument.
-: Your Honor, I think,
I think Kyllo disposes of that question
by holding that every single detail about the inside
of a person's home is an intimate detail
in which they have a reasonable expectation of privacy.
And so what Kyllo obviously is just about
the relative warmth of various areas
of the person's house.
It's a thermal imaging case.
But what the court says is
that it doesn't matter how little information
or how seemingly insignificant the information is.
If it's information about the inside of someone's home,
that is information in which the person
has a reasonable expectation of privacy.
-: Thank you, Mr Levin.
You answered my question.
-: Mr. Levin,
so, let me,
so assume that there is the second search for a second.
Assuming the first search is consensual
and also I have no trouble with the body cam
being turned on,
but I know you disagree with that.
But assume the first search is,
they let them in on a consensual basis
and it was appropriate
for the police to turn on the body cam.
Now we get to sort of the next review of that information.
It, I'm just trying to understand how we evaluate that.
'Cause body cam information
is a type of information we're going
to want to preserve, right?
It benefits defendants as well as the Commonwealth, right?
Well, Your Honor, that's true
if there is something on the video
that is relevant in some way to, you know,
say a crime that occurred
or an investigation of a crime that was going on
when the video was recorded.
That's not what this case is about.
-: But that's often the case with body cams.
We have disagreements about what occurred.
That's why we want police to wear body cams, right?
-: Yes, Your Honor, but in this case--
-: So let me just posit something.
-: Sure. -: Because I'm struggling
with the second part of this.
'Cause in Johnson, we didn't have to,
we decided there was no search
because probationer with a the GPS on
should know better.
-: Right. -: But I see this as different,
but I'm trying to figure out the standard.
If it is a search could the standard
be our Feliz standard,
which is a reasonableness standard
on the second search?
Is that an appropriate place to turn?
And if not, why not?
-: No, it's not.
The Feliz case relies on the fact
that the search in that case involved a minimal intrusion
on an already diminished expectation of privacy,
or that the intrusion wasn't minimal,
but that Mr. Feliz's expectation of privacy was diminished
by his status as a probationer.
-: But, but, but again,
we were looking at,
weren't we looking at the whole use of GPS
and sort of the status--
-: As a condition of probation, Your Honor.
-: Okay, so you say we can't turn there
because it's just a probation case.
-: It's his expectation of privacy
is substantially diminished
by the fact that he's serving a sentence on a conviction.
-: But don't we make the larger point
in Feliz that the Fourth Amendment in Article 14,
we look to a reasonableness standard.
That's, that's the ultimate touchstone in this area.
-: That's right, Your Honor.
But the way to determine whether a search of a home
is reasonable is to figure out
whether there's a warrant
or if some exception to the warrant requirement applies.
Well, but this isn't,
this isn't the original search of the home.
This is, this is a secondary review
because someone remembers they have this body camera
of this home.
-: Your Honor, I do,
I also want to emphasize that I'm not suggesting
that they can't ever look at this footage.
I'm just suggesting that they need
to have a neutral magistrate interposed there.
The warrant requirement is--
-: What makes this a little unusual, Mr. Levin,
is normally when police lawfully,
and I think Trembly says that there's a lot
of cases that say this,
in the ordinary scope of a case
when the police lawfully obtain evidence or information,
they don't need a separate warrant
to go to the DNA group.
They don't need a warrant to go to the fingerprint group.
They don't, as you, as you,
as you well know.
-: Well-- -: That's what makes this
a bit unusual. -: Your Honor--
-: You're going to have a lawful seizure of evidence
and then you were saying
that to further look at that evidence.
There's a warrant requirement.
-: Your Honor, respectfully,
I'm not sure about that generalization.
The fact that police have lawfully seized evidence
does not necessarily make a subsequent search
of that evidence without a warrant permissible
if the subsequent search--
-: That's, that's a fair point
because we've said that in a cell phone context.
We said that in, in other contexts.
That's a fair question.
-: And the question
is whether the subsequent search invades
an expectation of privacy that society considers reasonable.
-: Counsel, I have a question,
if you've satisfied Justice Gaziano.
Are you content just to--
-: I'm sorry, are we talking over you?
I can't hear you.
-: I'm sorry, do you,
are you, has he answered your question?
I have a question.
-: Yeah and I just,
before you answer Justice Cypher,
and you would agree with me, Mr. Levin,
that this all revolves around
was there a search.
-: Yes-- -: A second search.
Well, the part of the case
that we're talking about is about whether
the subsequent inspection was a separate search.
Yes. -: Right.
-: I do, I mean,
I would like to go back
and try to convince Justice Kafker
that there is a problem with the initial recording
at some point, but--
-: I think we're all assuming that for right now,
but we've got your argument on that,
but I think Justice Cypher has a question,
so I don't want to cut her off anymore.
-: Thank you, it's a short question
and that is that, do you,
would you agree that if there were no body cam,
but we had a police officer was an exceptional memory
and he said, you know,
"I've seen that curtain before.
"That is where that so-and-so's house,"
and then he went and swore that out in an affidavit
and got it,
that would be okay, wouldn't it?
-: Yes, I agree, Your Honor.
-: So would you also be okay
with the police officer in this case saying,
"you know, I think I remember that.
"I'm not sure, it probably was on the body cam.
"I'd like to look at the body cam,"
and then, but he needs a warrant
to get the body cam's footage?
Is that what you're saying?
-: That's right.
What the officers in this case should have done
is to just show that Snapchat video
to the officers who responded to the domestic
and see if they recognize anything in the video.
And that's how you develop probable cause
without conducting a subsequent search first
without a warrant.
-: Mr. Levin, I'm,
go ahead Justice Kafker.
-: I'm just trying to understand,
did somewhere in the follow up to Justice Cypher's point,
so it's okay to rely on an imperfect memory.
-: Yes. -: 'Cause we know,
we know that that's really guesswork.
But we can't go and check
to see if that memory is correct.
It seems odd and kind of we're relying
on worse evidence rather than better evidence.
Am I wrong there?
-: Well, Your Honor,
the entire thrust of this court's cases trying
to apply Article 14 to developing technology
is that we want to protect the degree of privacy
that was present at the founding
and at the founding,
if a police officer saw something
and then remembered it later, that's fine.
That, and there would be no way
for him to capture that event with totally perfect recall
and have later footage that can be enhanced,
slowed down, paused,
and potentially, police would be able
to see something from inspecting body cam footage
that the officer who was present at the time
not only didn't happen to notice,
but in fact couldn't possibly have noticed
just from his presence at the scene.
And it's also important to note
that what we're talking about is a rule
that will govern future inspections
of body cam footage in general.
And as every police officer is outfitted with a camera,
we're talking about mountains of digital footage
that potentially is subject
to scanning with digital software.
including facial recognition technology,
you know, algorithmic searching of the video footage.
We're talking about potentially enormous archives
of video information that the Commonwealth says, please--
-: That may have to await,
as we said in Commonwealth versus McCarthy,
just a different factual predicate.
But I'm going to,
I'm going to ask you about your take,
you talk about Commonwealth versus Johnson
and the second search.
Just there was no second search
and I imagine you'd say that
because looking at a GPS data,
somebody was on probation
and perhaps even that's the argument with the stay
in Garcia versus the Commonwealth.
So assume for the moment that you are correct
in this a second search.
When you look at cases like Commonwealth versus Almonor
and other cases,
picking up on Justice Kafker's last point,
why wouldn't the second search
be absolutely reasonable here?
-: Your Honor, the reason is
that the police aren't allowed to obtain information
about the inside of someone's home without a warrant.
-: But they have--
-: The United States Supreme,
the United States Supreme court
has been very clear about this.
-: Counsel, can I ask you to explain that reason?
And I think this goes back to your wish
to return to Justice Kafker's question or premise,
which is is that first search not consented to?
What's the scope of the consent,
given that the body cam as I understand it,
beeps and flashes.
Why is that not consented to?
-: Well, Your Honor,
I don't know if you've had a chance
to look at the video yet.
-: I have. -: I did file it for...
So she doesn't ever have a chance
to individually consent to this police officer's entry.
There's already police in the house when he gets there.
He goes right by her, you know.
He talks to her for a moment,
goes by her, up, up the stairs.
You can see the,
you can hear the beeps on the video.
The thing doesn't beep at any time
when he's in proximity to her, certainly.
And just more generally, I just,
it's, it is not reasonable to expect
that in order to get help from the police,
you have to exceed to the creation
of a video recording of the inside of your house.
It's fine if they want to tell you, "hey, I'm recording,
"is that okay?"
That's one thing,
but in this case he didn't do anything like that.
-: Mr. Levin, would you have a different answer
if the body,
if the police were called
and they go to a public park
and they record your client
and then later on they use that data,
'cause it'll be no more different
than using traffic cameras
or any other ubiquitous cameras
that we have all of the city and--
-: Yeah, in public places I think
that body cameras are going to be controlled
by a similar analysis to McCarthy
where it's a question of how much information
and what type of information.
-: Like a traffic stop or something's episodic.
If they say, "geez, I think I saw a guy
"that was six foot six with bright red hair,"
they could say,
"oh, let's pull that camera up," right?
That's okay?
-: Yeah, I mean,
the crux of this case
is the interior of the home
where the privacy interest is most heightened.
In public places none of the--
-: Counsel. -: You answered the question
from Justice Wendlandt about consent.
What about exigent circumstances?
-: Your Honor, there are no exigent circumstances
in this case.
It's just not--
-: To domestic violence
and they go to quell a domestic violence,
it's not exigent?
-: There is no allegation of violence.
She just says they're arguing too much
and she wants the girlfriend to leave.
There's there's no hint or suggestion
of violence at any point in this video.
The other thing I would say
is that even if there were exigent circumstances,
that those exceptions to the warrant requirement
are exceedingly narrow
and police conduct in excess of what's necessary
to address the triggering exception
to the warrant requirement is not reasonable.
And so if--
-: I'm sorry, thank you.
You've answered that question.
Let me ask my colleagues if there are further,
Justice Cypher has a question.
-: Yes, I do.
And my question is, Counsel,
considering that your client
put the interior of his home on Snapchat
which he was exposed to other people,
isn't there a good argument he waived his expectation
of privacy at least in how that presentation
of what was viewed in the Snapchat
-: No. -: which had been seen
on the body cam?
Why not, why not?
-: No, Your Honor.
He didn't have an expectation
of privacy in the Snapchat video
-: But it is this video of his home
and so he's revealed the video of his home to the public.
-: Your Honor, Your Honor, respectfully,
that begs the question,
the whole question in this case
is whether or not he was in his home when that snap,
when he took that video.
(sighs)
-: I think Justice Kafker has a question.
-: I'm concerned about the consent and the police cameras
'cause-- -: yes, Your Honor.
-: Are we gonna,
are we gonna say that everyone has the right
to tell the police to turn off their camera?
I'm confused about that.
Aren't we encouraging the use of these cameras
when the police are interacting in a situation
where someone may be arrested
or someone may have to be removed from the house?
I'm nervous that you're imposing
an unrealistic standard here.
-: Well, Your Honor--
-: And you want to encourage the use of body cameras
because it allows us to evaluate
what actually happened fairly.
-: Yes, well, Your Honor,
when you say, "we're encouraging,"
of course there is no legislative authorization
for the body cam program at all
at the time that this occurred.
It's just a decision by the police--
-: The CPCS position that body cameras are discouraged?
-: Your Honor, I don't have a CPCS position.
I represent Mr. Yusuf and--
-: Yeah, but you get training programs, don't you?
-: Your Honor, Mr. Yusuf's rights were violated
in this case by the filming of the interior
of his home and the subsequent inspection of that footage
and the public policy questions
that you're talking about, Your Honors,
certainly are weighty,
and I suggest in the brief that perhaps
a special needs analysis would be appropriate
in a case like this.
But the whole point of the special needs doctrine
is that those searches are strictly divorced
from the general interest in law enforcement
and information,
and that they're not conducted together evidence
for law enforcement purposes.
And so in order for the body cam program
to be announced permissible on a special needs analysis
the use of that footage would have to be strictly limited
and a warrant requirement interposed
between subsequent police rummaging
through the footage is necessary.
-: Any further questions for Mr. Levin?
-: One minor one,
one short question, Council.
In terms of the special needs searches
being not for investigatory purposes,
If, and this is again,
I know it's a hypothetical,
but if the police wanted to just remove guns
from the streets or guns from people who should not have,
who are not licensed
but they didn't charge them,
there was no charge,
would there be an issue here? Would they be able to go
under a special needs analysis of public safety?
-: Your Honor, that is not a small question.
I think that's
a really complicated Fourth Amendment question. (chuckling)
I mean, you would have to go back to,
start with Kamara
and look at all those administrative search cases
and try to figure out,
you know, do that balancing analysis.
I mean, if it's not for criminal investigative purposes,
that is a significant factor.
But whether it then becomes reasonable
to have the police, do, you know, sweeps
of everyone's home in the city of Boston
is a totally different question.
-: You don't need to be signing to something,
but okay, I understand.
You're right.
It is a bigger question.
-: Thank you, Mr. Levin.
-: Mr. Levin] Thank you very much, Your Honor.
-: We'll hear from Ms. Martino now, please.
-: Good morning, Your Honors.
May it please the court,
Elizabeth Martino on behalf of the Commonwealth
and the Commonwealth is asking
that the court affirm the motion judge's ruling
that they use to the body camera footage
in this case was not a search in the constitutional sense
because it was a memorialization of a civilian encounter
between the police and the defendant
from a place that the police
had lawful authorization to be.
-: Are there, are there any limits
to the use of body camera footage?
Mr. Levin posits that if we just say everything's fine,
the police can just catalog this
and then mine it for facial recognition data
and do all sorts of things that would require warrant.
What do we say about limits and
and what's your position
on any reasonable restrictions on this data?
-: Right, absolutely.
I think that the court has sort of indicated
and I agree that there's a two part inquiry,
a basic framework here,
which is whether the initial recording implicates
any of the defendant's privacy rights
and then whether the subsequent access
by the police implicates any privacy rights.
And I think, you know,
when the footage is originally made
for the first question when it's recorded,
the inquiry is sort of whether police
were lawfully authorized to be
in the defendant's home as they were here
and was it within the scope of their lawful duties,
right as it was here,
as this court said in Balicki.
Then turning to the second question,
which is I think what you're asking more specifically,
is when it was when the footage is accessed
is that a reasonable,
is it accessed in a reasonable way, right.
And I think that the court can look
to this sort of technology cases to get a framework
of when the police can access the footage
and the things that the court
has looked at is sort of is it an aggregation of data?
Is it data, you know, taken over a long duration of time?
Does the technology needs--
-: You're drawing parallels to McCarthy,
but here what's troubling
is that the police basically take this footage
and they store it because they have their eye on this guy.
So it's not just happenstance
and they're not just looking for it.
They, they say, "ah, now we've got a picture
"of this guy's bedroom.
"Let's use it for later investigative purposes," correct?
-: No, no, I would respectfully disagree.
I think that the footage,
so it was a it was a service call, right?
-: Right. -: This district call.
-: No, assume the first one was okay,
but then they burn a copy
and they keep it for later investigative use, correct?
-: Well, I think that the record indicates
that it was not.
It was 10 days.
So the gang unit was looking into the defendant
because of his Snapchat videos, right,
and he had multiple Snapchat videos.
And about 10 days after this domestic call
to the defendant's home, right,
nobody knew that,
nobody had linked to the calls yet.
They were looking at the Snapchat videos
and then the officer said, "let's see if anybody's
"been to the defendant's house recently."
So they did a search of his residence
and they found, oh, 10 days earlier police responded
to his home for for a service call.
And then they said, "oh, and somebody
"was wearing a body camera.
"Let's look at the footage."
-: So I guess, stop there.
Why is not an invasion
of a reasonable expectation of privacy?
You're positing that the only question
that we need to answer is
whether they accessed this in a reasonable way.
-: Mmh hmm. -: And I guess I'm still stuck
at whether or not that second reviewing
of the data of that address is a search.
-: Right, so the Commonwealth's position, right,
is that the recording itself has not necessarily
a trait because it's just a memorialization
of what happened within Balicki.
So going back to look
at the footage is not a search
because it's just a record of what happened
when the police were inside by consent, right.
-: So assume I don't agree with you
that the recording of the body cam,
the body cam recording is not a search.
Let's just say it is a search,
but it was consented to,
making it not a Fourth Amendment violation.
-: Okay. -: Posit that.
-: Okay. -: Now answer my question.
Is the second accessing of the data a search?
Does it invade a reasonable expectation
of privacy, subjectively and objectively?
-: No. -: Why not?
-: Okay, so I think there are certainly situations
where it could, right?
Where it could amount to an implication
of the defendant's rights,
but not here and that's because
if the officer's slowed down the videos,
zoomed in, if they were to find,
look for details that were otherwise unknowable, right,
that's what the technology cases focus on,
by combing through data.
You know, whether it's cell phone records,
license plate readers, pole cameras,
all of these technology cases talk
about revealing information that was otherwise unknowable.
-: So can I stop you, Counsel,
because you're going to whether or not the access
was done in a reasonable way,
by zooming in, slowing down, whatever.
I'm still stuck at whether or not the accessing itself
is a search.
-: Right and so--
-: Invading the defendant's reasonable expectation
of privacy. -: Right.
So I think what my answer is
is the only way we determine
if it's a search or not,
is if it's unreasonable, right?
So does it invade on the defendant's reasonable expectation
of privacy and the answer is only yes
if it was an unreasonable accessing.
You know, revealing of information otherwise unknowable.
Which here, no.
-: Is that too narrow?
I mean, Justice Wendlandt's point.
I mean, when I under,
I'm comparing it to Johnson.
If I'm a probationer wearing a GPS device,
I know that they're going to look
to see what that data shows.
But this guy, once they leave his house,
he doesn't think they're going to save this data.
And isn't it reasonable?
He says, okay, this was a domestic incident
that ended peacefully.
There's no claim of police brutality or anything like that.
So he thinks this is over and done with,
so doesn't he have a,
I mean, whether it's reasonable for them
to access this is, to me, the next question.
But in response to Justice Wendlandt question,
doesn't he have a reasonable expectation of privacy
in that in the storage of that body camera information?
-: No. -: He doesn't think
they're gonna, if I,
I wouldn't think anyone would be saving
that kind of stuff on me.
If they showed up at my house, I mean,
why would, why would I think they'd save that?
-: Right, the answer, you know,
quite directly is no,
there is no reasonable expectation of privacy
that the police are not--
-: Tell me why as opposed to there isn't.
-: Right and I think that's because, you know,
if, when you,
when an individual calls the police
to come to their home to aid a first service call
for domestic violence, whatever,
they know that the police are gonna come in
and that they're going to see what they are going to see
in their home
and that the police are going to document
that encounter in some way, right?
Whether it's writing--
-: They're going to document
what my shades look like in my house?
They're going to document this,
how my house is laid out,
even though the incident is over and done with?
-: Absolutely, they're gonna have a memory
of what occurred
and like what Justice Cypher mentioned,
there would be no question if,
you know, the gang unit here had the Snapchat videos
and they went and they looked,
has anybody responded
to the defendant's home recently?
Oh, look, 10 days ago, they responded to a domestic call.
Let's show these officers the Snapchat--
-: Didn't Justice Alito tell us not to do that?
Didn't justice Alito tell us
that if you could, you know,
saying that the police could just follow someone
or use their great memory,
that's not the,
that's not how we look at this,
these enhancements, because, you know,
if that were the case, we would just say
all GPSs are fine because the cops could put armies
of cops out on the street and follow people.
So that can't be the answer, right?
When you cite to us McCarthy,
the pole camera cases,
as Mr. Levin points out with citing Kyllo,
what you're not addressing is the home aspect of this
as opposed to the outside aspect.
That's a question I asked Mr. Levin about.
If this was a car stop, different story.
Address the home protections inherent
in the Fourth Amendment and Article 14
on the reasonable expectation privacy.
-: Right, absolutely.
So those cases are where, you know,
the police are in a lawful place, perhaps,
outside of the home
and then they're trying to gather information
from inside the home using technological enhancements.
That's not the situation here.
The defense, the police were lawfully
inside the defendant's home by consent, right?
It's a totally different situation than Kyllo,
which is a thermal imaging case
where the police are outside the home
and then they're using technological enhancements
to try to garner information from the home.
That's why the Supreme Court said
all details are intimate details.
You're crossing a threshold.
-: I think you're reading it a little bit narrowly,
because the issue is in our fourth,
of all our search and seizure case law involves this,
the added protections of the home,
as opposed to being outside the home.
-: Right. -: The intimate details
of one's home which gathers the most protection,
as opposed to a vehicle or your whereabouts
on a public street.
-: Right, those are when the police
are not lawfully inside the home.
That's the major difference here.
-: Isn't there a difference in kind?
You know, I invite somebody over to my living room.
I don't expect them to be videotaping
the living room for later review.
I mean, I just, I guess I'm still stuck
at the reasonableness of the storage
and the accessing of this at the end.
-: Well, I think it all
has to be sort of taken in context, right,
and I think that the videotaping here
was a pure memorialization of the officers.
-: But then when they access it,
it's not memorialization anymore.
They're using it for investigative purposes
to compare it to the Snapchat that's been recorded.
-: Right, but what they're going back to look at is just,
it's the same thing.
So in Balicki, right, this court said,
if the police are somewhere
where they're lawfully allowed to be,
like executing a search warrant
or they're inside the home
because of an exception to the search warrant,
they're allowed to photograph or videotape.
It's a limited intrusion
that doesn't implicate constitutional rights.
They are allowed to videotape just what's
within the scope of their duties.
-: But what they can't do
is turn over the,
the toaster to look at serial numbers
to see if it's stolen.
They can make general observations and the like,
but they can't do,
and that's what Balicki says
and a lot of cases say
is the police exceed the scope of their authority,
as Justice Wendlandt is asking you,
but they can't do added things,
like we'll get serial numbers
or look into the closets or the drawers, right?
-: Of course, which--
-: But here digitally,
they're looking at this for granular information
as to what what the curtains look like.
-: Well, I would respectfully disagree.
So Balicki, right,
this court said as long as you're lawfully inside,
you can video, you can preserve, you know,
what the officers did within the lawful scope--
-: But this is an extension of Balicki,
because now you're saying use what you lawfully obtain.
Balicki says it's fine.
And now use it for a second investigation.
-: And Counselor, I would push back on that
because in Balicki,
didn't we say you could memorialize what you were there for,
-: Mmh hmm. -: but then when you get more
than what you were there for,
you can't use that extra to then get another search
to do more.
And isn't that exactly what they did here?
Isn't that what we said they couldn't do in Balicki?
-: No, because the police didn't see anything more
than what they did exactly in their lawful duties
and in fact, that's why we have
the motions to suppress, right.
I think that the motion to suppress
is the protective measure here
for a defendant's rights, right.
So we have the footage,
was taken-- -: I thought we were.
(laughing)
-: Yes, we were reviewing what the motion judge, right,
made the decision
and then we're also here to make sure
that the motion judge was correct.
And it's because, right,
the footage was taken
when the police were lawfully inside.
It was totally within the scope
of what the officer was supposed to be doing.
If you look at the video, right,
it shows just that he went upstairs,
removed the defendant and left.
He did not go outside the scope of his duties at all.
He did not rummage through drawers.
He did not inventory the house.
He did not do anything
outside of the scope of his duties, right.
And then the police later access the video for,
they didn't enhance it,
they didn't slow it down.
They didn't, you know, aggregate any data.
It was from 10 days before.
It was a timely nexus.
And they found just a detail that was in plain view.
It was not otherwise unknowable, right.
-: Counsel, Counsel.
-: I'm sorry. -: I'm sorry, Counsel.
I'm listening to this
and then the question comes to my mind,
why is it so difficult for the police
at that point to just write an affidavit
and say I think I do remember something.
I'd like to confirm it.
It's, you know,
that could reach probable cause,
especially with the Snapchat information
and get a warrant to search the estate.
-: You know, the simple answer is that
it's not required because there's not a search, you know,
to access the video.
But if it wasn't--
-: If there were a search, if you, if it were a search.
If we said, "this is a search."
-: Absolutely, -: The warrant was--
-: They would have had probable cause for that.
-: One more question and I'll turn it back over.
Do you have any cases or examples
where police have gone into a home,
taken photographs for a valid reason,
gone back to the police station,
tucked them away somewhere because they don't need them,
and then some day later somebody is going through
and says, "ah, this is the photo I need to show
"that so-and-so's connected to this crime."
Do we have anything like that?"
-: I don't think I have that case, Your Honor,
because police do that all the time, right?
Police take pictures all the time of a crime scene.
-: How is that different from this?
-: It's not and that's the point, right?
Police take pictures all the time.
They, you know, if there had been injuries
in this case
or if there had been a melee
and you know, furniture had been knocked down,
the police may have had to record that by taking pictures,
and there's no question they
would have been able to go back
and look at those pictures, right.
That's why we don't have a case
on point saying you are allowed to do that
because police routinely go back and look
at their pictures of crime scenes taken inside the home,
of pictures of, you know, victim's injuries taken
inside the home,
of police reports written about, you know,
things that happened inside the home.
They routinely go back and look at that stuff
and we never questioned whether they're allowed to do that.
Of course they are.
It's a memorialization of the encounter that incurred
inside the home with the legal authorization to be inside.
-: Can I ask you a question I probably
should know the answer to?
-: Yes. -: But you'll help me out.
Is there any BPD guidelines that govern retention
in search of body camera footage?
-: There is, yeah.
I believe, you know, that there is a policy.
I think I--
-: Is that in the record?
-: It's not in the record, no.
So it's not in the record
and I don't think that that's necessarily a problem
for the Commonwealth's case.
I know that there was a testimony--
-: Well, if you exceeded,
if you exceeded those guidelines,
you'd probably have a problem
'cause that would indicate a reasonable expectation
of privacy based on those guidelines.
So I guess the question is why aren't they in the record?
-: Well, I would disagree with that, Your Honor.
I don't think that the policy sort of indicates
that answer to the constitutional question--
-: But it would give,
it will give the citizens of this, of Boston,
some expectation of privacy knowing that the police
shouldn't exceed their own guidelines, right?
-: Well, no, I would disagree.
I would disagree with that, Your Honor.
I think the basic question here
was were the police lawfully inside the defendant's home
and they were by consent.
It's not even contested, right?
And then it just becomes a question of, you know,
was the later access to the--
-: Right, and if, and if the use of the,
if the mining of this data exceeded the BPD guidelines,
it probably is an issue.
-: Well and I would disagree again
that there was any type of mining of any data, right?
-: I know characteristics, things are important.
-: Yeah. -: But--
And I think--
-: Can I ask--
-: Be as it may,
that's not part of the record, right?
-: It was not introduced at the--
-: And isn't the record,
I mean, I'm remembering Mr. Levin's brief
and I may be, I haven't checked the record,
but I think there's an argument in the brief
that the police testimony was we preserve this data forever.
Is that correct?
And is that what we have to work
from here even though it's inaccurate?
-: I think so.
I think so, you know, sort of,
that is the record before the court,
but what I think is important--
-: But doesn't that,
does that raise some troubling issues for us,
because if the record we're dealing with
is they keep this data forever,
doesn't that raise sort of some McCarthy
or issues about a glomeration of data
that can be misused if it's not controlled?
-: No, it doesn't
and that's because the question
is what actually happened in this case
and what actually happened in this case
is that the officer's accessed one body camera
from 10 days earlier.
It doesn't matter that it may be kept forever here.
It was a timely nexus, right?
It was 10 days earlier.
-: Well, waive to the Balicki issue
of whether everything here is, you know,
are we using it for this case
or are we data mining in ways that are troublesome?
Because Balicki says okay,
you can take pictures as part of a search, right,
because it memorializes the search
for that particular case, right?
Balicki is a little bit different, right?
The issue was whether it was all part of that case.
This is a totally separate incident being used here,
isn't it?
Doesn't that raise different sets of questions
if the data is going to be used forever.
-: No, because it's about when the police access it
and here they accessed it 10 days later.
And that's the issue before this court,
whether what the police did when they accessed
the video was reasonable.
Wendlandt: So if they access it a year later,
it would be unreasonable?
-: Possibly, I don't know.
I mean, I guess--
-: What is the limit to this 10 day period?
-: Well, I think it would be, you know,
litigated at the motion to suppress, right?
And that's the protective measure
that we have for defendants here
about whether their privacy rights were implicated.
-: So 10 days later, no privacy,
but maybe 20 days later there'll be privacy?
We don't know?
That's the legal issue you want us to set up?
-: Well, I think it's probably, you know,
it's the standards.
I'm not saying necessarily
the standards of a search warrant exactly.
But here, right, the officers wanted the information
to put it in a search warrant,
so they needed to have a timely nexus, right.
The body, the curtains needed to be at a time
where they could still say the guns
are probably in the house.
-: How is this data accessed?
Wasn't it by address?
-: Yes. -: So when you say
it's not data mining, it actually is, right?
If there has been more than one service call this address,
it would have pulled up all of the body cam recordings
from this address, right?
-: I don't know if there was more than one.
I mean, it would have probably pulled
up all the times that the officers were there.
-: Right, so I'm a police officer
and I'm investigating a defendant for whatever crime
and I know that he lives at X address.
All I have to do now,
because this data according to the record
is kept forever,
is look in the database
and see if there's ever been video footage of his apartment.
-: Right. but again,
as this case,
as this court has said in all these kinds
of technology cases,
yes, there's a world of data out there,
but it's about how the police use it, right?
And here it's a targeted limited analysis.
It's one time, right?
One entry by the police by consent.
-: I understand you want
to limit the discussion to this case.
I'm trying to get into a more,
I want to figure out what legal regime we
should be setting up,
because it sounds like based on the record here,
the police are collecting data
on the interior of people's homes,
making it searchable by address
and then searching it for defendant's addresses.
-: I would disagree with that.
I don't think,
what happened here is that the gang unit looked
to see if anybody had responded to the defendant's home
because they were investigating the defendant.
-: [Justice Wendlandt] Do you think this is a one op?
-: When they found that police had responded
to the defendant's home,
they saw that one of the officers was assigned
to wear a body camera.
It wasn't like that they
were looking for body camera evidence.
-: I guess that's the issue.
You're saying that this is episodic.
-: Mmh hmm. -: And if you zoom out
to Justice Wendlandt's question,
let's say they then get the address,
they go and they input the address
to see how many service calls have resulted
in police going to that address
and there are 50 entries,
and then they go further to see
whether or not anyone that responded
had a body worn camera. -: Mmh hmm.
-: And then they go to the footage of October 1st, 2017.
That's kept forever to see if they see anything.
-: Mmh hmm. -: I guess that's the,
the regime question is this is a question of applicability
to the entire Commonwealth,
not just this case. -: Right.
-: So what do you say about that?
-: Well, I would say that would be, you know,
perhaps a situation where the defendant's privacy rights
could be implicated, right,
if it were that long ago and it were, you know,
the police had mined through lots of data
in order to get there and had, you know,
used these sort of technological enhancements.
Perhaps, of course.
I'm not being, you know, unreasonable.
There may be a situation where the access
does implicate the defendant's rights.
And I think you can look,
I know Justice Kafker was looking for it, you know,
sort of a way to figure out
where it does implicate their rights
and I think you look at those technology cases.
Are we aggregating data?
Are we data mining?
You know, is it timely?
Is this, do you have to use technological enhancements?
You can look at the McCarthy,
the Amora line of cases, right?
-: Well, Mrs. Martino,
I think what you're saying
is that these are really important issues
to be litigated,
but like Commonwealth versus McCarthy,
we've got four cameras on a bridge.
Let's decide that case. -: Right.
-: And then we've got all these huge issues
that we should decide when we have those facts.
-: Right. -: I think
that's what you're saying.
-: Exactly and of course,
each individual defendant may bring
a motion to suppress to say I believe
under these circumstances, you know--
-: Then you have those facts.
-: Exactly, may have been violated.
And then you have the recordings.
The motion judge at the motion to suppress
can look at the recording,
can look to see if when it was recorded,
did it go outside of the scope,
were the defendant's rights implicated?
They'll have the video,
so they can look at the time the recording was made,
were the defendant's rights implicated
and then they can look at the access, right?
The motion judge can look at the access.
-: Or if you look at the subjective
and objective expectations of privacy with facts.
-: Exactly, exactly.
So that can be,
but these facts in this case,
there was no expectation of privacy,
no privacy rights implicated when the,
when the officers entered the defendant's home,
because the sister consented for them to be in there.
The officers stayed within the scope of his duties
when he went and removed the defendant
and his girlfriend from the house.
He did not film anything outside of the scope of his duties.
And when the officers later went to access the footage,
they did so in a reasonable manner.
There was no aggregation of data.
You know, it wasn't over a long duration of time.
It was a targeted analysis.
It was all--
-: That's a, John's, that's a John's,
that's a second part Feliz analysis, though,
-: Yes. -: That mean,
so I mean, it gets me back
to the question I asked your brother.
So is if we find the second one is a search,
can a sort of a re reasonableness standard
be imposed there
or does it have to be probable cause, or like Arcola,
minimal, absolutely minimal type of intrusion?
-: So, it doesn't have to be probable cause
and I know that we keep going back
to, like, this was inside the home,
but it was inside the home because the police officers
were consented to come inside the home, right?
So again, like a probationer's diminished expectation
of privacy 'cause he knows that he's got the GPS on,
here the defendant knows that the police
were inside his home, right.
His sister said come on in.
And so when somebody calls the police,
they expect that the police are going to come in,
that they're going to look around,
they're going to see what they're gonna see
and that they're gonna document it, right.
So there is this diminished expectation of privacy
or as the Commonwealth would say,
no expectation of privacy at all.
-: I don't, again, I don't see them,
I have trouble with the documenting point.
They document the incident.
They don't document the curtains
or whether the guy has a nice house or not.
You know, it just, that's where I get,
I wonder whether we're going beyond Balicki
when we save the inside of the house
when it has nothing to do with the police incident
that we're dealing with here.
-: Well, I would say that, you know,
within, what the police did here was within Balicki.
And so then the question is, you know,
what the accessing of it.
And I think, again,
imposing a reasonableness standard to determine
if there is some type of privacy right,
implicated, is the appropriate one.
And I think that the factors
that the court can look at are sort of, you know,
did they have to zoom in,
how much data did they go through.
Sort of the things in McCarthy Johnson, Amora.
Was it, you know, historical data over a lot of time?
Was it multiple, you know, data points
or was it a targeted analysis such as it was?
-: Let me ask if there are any more questions.
Thank you, Mrs. Martino.
-: Thank you.