Clerk: Hear ye, hear ye, hear ye.
All persons having anything to do before
the Honorable Justices of the Supreme Judicial Court
now sitting in Boston, within and for the Commonwealth,
draw near and give your attendance and you shall be heard.
God save the Commonwealth of Massachusetts.
Court is now open.
Please be seated.
Budd: Good morning.
-: SJC-13119, Commonwealth v. Richard Comenzo.
Budd: Attorney Noonan.
-: Thank you very much.
May it please the court, my name is Patrick Noonan.
I represent the defendant appellant,
Richard Comenzo, in this matter.
I'd like to recognize co-counsel attorney Scott Martin.
I'd also like to recognize the amici in this case.
I appreciate their support.
This case deals with a pole camera.
In Commonwealth versus Mora, this court found
that the government's continuous use of a pole camera
targeted at the residence of the defendants
was a search under our state constitution.
The co-defendant in Mora, who is defendant Suarez,
the pole camera was pointed at his house for
eight and a half weeks.
The motion judge in this case correctly found
that 15 days of full camera surveillance targeted
at Mr. Comenzo's residence was a search.
The motion judge also correctly found
that the appropriate unit of measurement to determine
the search is the entire time the pole camera is up,
which was 17 days in this case.
The pole camera remained up two days after
the search warrant was executed, even after Mr. Comenzo
had been arrested and arraigned.
Finally, because the defendant met his burden
of proving a search, the burden shifted to the Commonwealth
to prove both prongs of the Mora test.
It is the defendant's contention that the Commonwealth
did not meet its burden on prong two of the Mora test,
which is at the time the pole sur, pole cameras surveillance
began, the pole camera would produce evidence of a crime.
Lowy: Well that's not the only provision.
Would produce evidence of a crime or would aid
in the apprehension of a person, were the applicant
have probable cause to believe has committed an offense.
-: Yes, and there is two components to that second prong
for the aiding and the apprehension of the suspect.
The pole camera in this case was not needed
to apprehend Mr. Comenzo.
Before they even engaged in any pole camera surveillance,
the government knew where he lived.
They knew his apartment building.
They watched him come in and out of the front door.
They even went to his law office.
They even followed his vehicle.
So they didn't need a pole camera to apprehend him.
They could have picked him up anytime they wanted.
They knew where he lived, they knew where his business was.
They knew where his law practice was.
So this wasn't a case where you had a fugitive
or somebody whose whereabouts was unknown.
They were surveilling Mr. Comenzo very closely.
So I would say on the element of aiding in the apprehension,
the pole camera was not necessary for them.
-: I think, if they arrested him outside the, the home,
then what happens to the evidence if they don't do a search?
-: Well, they would still need probable cause
to arrest Mr. Comenzo.
The Commonwealth states that they have probable cause
that evidence of a crime would be contained somewhere
inside 15 Walnut Ave., that there would be computers
located somewhere inside 15 Walnut Ave.
However, the Commonwealth would, in my opinion,
have to establish more of a connection between Mr. Comenzo
and the apartment where these images
were supposedly uploaded.
-: Would the pole camera help do that?
Patrick: I'm sorry, Your Honor?
-: Wouldn't a pole camera help do that?
-: The pole camera in my opinion would not,
the reason why they requested this pole camera
was not because it would produce evidence of a crime.
It was because they didn't know the exact apartment
and they needed this information to establish
particularity to get the search warrant.
So I don't believe that.
Georges: Counsel, let me, let me,
test you on that point. -: Yes, Your Honor.
-: So of the things that you say the Commonwealth was able
to glean from the use of the pole camera,
was it good old fashioned police work?
Didn't it, didn't it, didn't it just parrot
what they already knew, as in the affidavits say,
they did old-fashioned stakeouts, and they,
they observed him coming in and out.
They observed going into the dwelling
and then the subsequent lights that would go on
in particular areas or windows of, of the,
of the structure of the dwelling.
So they had the stuff that they ended up
getting from the pole camera.
Wasn't it just duplicative of what
they already physically observed?
-: I would say no, Your Honor.
They, they did do a traditional investigation
and they did do 10 days of surveillance
before they got the pole camera.
However, they were still stumped.
They still did not know what floor, in which apartments
he was living in because they had a lot
of conflicting information as to where his precise.
-: Well, drill down on that for me.
What specifically do you allege they got
from the pole cameras surveillance that helped
localize it to a particular unit?
-: So to get back to your, to your first question,
which is, they only got to a certain point where they had
to use the pole camera if they had probable cause.
-: Sure, I, I'm conceding that point.
Tell me specifically what you allege that they were able
to take from the surveillance that they were not able
to get from good, old fashioned physical observation.
-: So the pole camera was continuously surveilling him.
They were able to see his pattern in terms of every time
he came home and went through the front door,
the lights on the areas, one, two,
and three windows came up.
-: That's what I'm getting at.
Didn't they already physically observe that
prior to the pole camera?
-: They did on only one occasion, and when they did do that,
they only observed the lights turn on
in the area of three window, but when they did
the surveillance with the pole camera, they saw that
lights came on and the areas one, two, and three windows.
Cypher: And how many times did they get information
about that, how many different events?
-: So the, the detective relied on 10 days
of full camera surveillance.
Cypher: Okay, and within those 10 days, how many times
did he see the defendant come in and those windows come on?
-: Almost every time I would, if I could just,
if I can just double, double check that because it's,
it's nearly, it's nearly every time save for maybe
one or two occasions.
-: So you're saying eight times it happened.
Patrick: Yes.
-: That's fine, we'll check the record.
You can keep going.
-: Isn't this good police work?
They have probable cause that somebody in this building
is downloading child pornography, and then,
but they're not exactly sure which unit it is.
So instead of getting a search warrant
for the whole building, which was probably inappropriate,
they get a search warrant for the pole camera,
which allows them to pin down which unit
they're going to search.
So again, isn't that good police work and also good
from an Article 14 perspective because you,
you particularize the search and narrow it down?
-: Well, I think Your Honor said when,
in terms of good police work.
-: Well, good, good Article 14 procedures 'cause we, again,
we have probable cause and a limited search
with the pole camera, but we don't enter into people's homes
without having more precision about who
is downloading the child porn.
So it isn't that good from an Article 14 perspective?
-: So, the Commonwealth did do a good investigation,
but that only took them to a certain point.
They weren't able to pinpoint the floor
or the apartments that he was living in.
Wendlandt: Wasn't the IP address associated
with apartment three, 15 Walnut Street and Mr. Comenzo?
-: Yeah, so the IP address came back for the Tumblr account
as being Richard Comenzo, apartment three.
-: Why isn't that good enough?
-: Because we had all the other conflicting evidence
as to whether he lived in apartment three.
-: But it's not certainty, it's probable cause, right?
-: Right, but there's also a real danger that the,
that the residents of another could have been searched
in this case because they had evidence conflicting
that Mr. Comenzo either resided
in apartment two or apartment three.
They also had evidence that another party, Nicholas Hill,
was also either residing
in apartment two and apartment three.
-: And so given that confusion that you're articulating,
wasn't the pole camera useful in aiding
in the apprehension of Mr. Comenzo?
-: Well, again, I don't think it was necessary.
-: Not necessary, the question is, does it aid?
-: It did not, I'm sorry to interrupt there.
It did not aid in the apprehension
'cause they knew where to find him.
They could have picked him up anytime.
-: You're just articulating some level of confusion,
given the mailbox saying it was Mr. Hill, apartment three.
Verizon says it's Comenzo.
-: But isn't it, isn't it aid in
a criminal investigation we're looking at?
So let me ask, so a search, search warrant issues
for the entire building, 15 Walnut.
You run into court and say, no particularity,
'cause they're play, they're playing digital whack-a-mole.
They can go into any apartment, that's no good, right?
So instead they use this technology,
they get the apartment unit and as Justice Kafker says,
now they have particularity and your, your, your
search warrant or the illegal, the illegality of the search
is dissipated by the apartment number.
Didn't the use of the pole camera aid
in the investigation of this crime?
-: So the, the, the Attorney General's position
in their amicus is that the government need only show
that pole camera would somehow move the investigation
forward or be helpful to the investigation,
and they're trying to build off of the CSLI cases,
but I would say in this particular circumstance,
when you're dealing with a pole camera
and a pole camera targeted at, at somebody's home
and also the advanced technology of the pole camera,
that you have to establish more of a tighter nexus.
-: How's that possible?
In the, the CSLI cases, we've talked about the mosaic
and you can track people.
It's a, it's a GPS, you can see where they're going.
The pole camera's a fixed spot, you know, and,
and you, you come and go and, and, and, and, and that's it.
Why should we have a different rule for
the Augustine type cases than we do for pole cameras?
-: So it's a, it's a great question and the answer is.
Gaziano: Thank you.
-: The answer is this, because pole camera surveillance
is far more intrusive than CSLI ever could be.
Gaziano: Really?
-: Yes, in my opinion, because for the CSLI,
you're just trying to determine somebody's past whereabouts.
-: Right, and you can track them like a, like a GPS.
You can see whether they go to the political rally.
You could see whether they go to their doctor's office.
You can see, our cases have litanies of horror stories
about the dangers of CSLI and, and,
and, and tracking people, right.
-: But also CSLI, in comparison to a pole camera.
-: And nationally, all the CSLI GPS cases are
heavily weighted towards privacy.
Mora is somewhat of an outlier nationally for,
for pole camera and privacy interests, right?
-: So, the reason why the pole camera is more intrusive
than CSLI is because we're dealing with surveillance
targeted at somebody's home.
-: But, address that nationally, right.
Supreme Court precedents, you look at all
the federal cases on pole cameras.
They say open spaces, you're good to go.
We said something different.
We said something different in Mora,
and now you're arguing to us a pole camera's
more restrictive, more of a privacy interest than CSLI.
-: I, I strongly believe that.
The, the federal cases are only examining the pole cameras
under the Fourth Amendment, but, you know, in particular,
with a case like this, if you look at the record,
the pole camera was incredibly intrusive.
We had a pole camera that was 82 feet away
from his front door.
We had a pole camera that surveilled
every single person that went through there.
-: Right, so maybe we're, maybe we're going to agree
with you and Justice Cosgrove that there was
a Fourth Amendment or Article 14 privacy interest.
Then we go to the next step in Mora, right.
-: Right, right, and Justice.
-: Because the Commonwealth is going to argue that,
that, I mean, that there was no privacy violation.
-: Well, the record strongly supports
that there was a privacy violation absolutely.
-: I'll, I'll for purposes of this, I'll agree with you.
Now we have to confront the next step of Mora,
as far as whether it's going to aid in the investigation
and you're telling us when you have an IP address,
you don't know what apartment it's in,
that didn't aid in the investigation?
-: Well, again, I, I disagree with, you know,
the standard being that it has to aid in the investigation.
I think that the standard has to be that the pole camera,
when it goes up, has to produce evidence of a crime,
and here the Commonwealth even admits in their own brief
that the pole camera didn't capture any illegal activity
and Mr. Comenzo didn't. -: But what, what's your,
what's your support for that?
Because again, as Justice Wendlandt already,
before we even got to the pole camera,
they got the administrative subpoena.
They knew the IP address was localized to that structure,
right, and they even had a name and apartment number, right,
even before the pole camera.
So, so they didn't even need the pole camera
to at least get them to the, to the physical dwelling.
I'm still struggling with how it is that, that, that,
that the pole camera would be necessary
when they already knew all of that.
-: Well, if the pole camera was unnecessary,
they would have just applied for the pole,
they just would've applied for the search warrant
without even going to the.
-: No, it goes to the second point you made.
So now trying to try to figure out which one of this
is unit three or whatever the appropriate unit is,
you said yourself, but prior to that,
they did physical surveillance and couldn't localize it.
So how did the pole camera not help them
particularize which unit it was?
You said yourself, they couldn't do it without it,
but then when they were able to look at the footage and say,
he comes in, these lights go on,
these lights are located in these, this particular unit.
So now we know.
-: So I'm not sure if I understand your question, I'm sorry.
-: You're saying that the pole camera wasn't necessarily
to aid the investigation, but you've also said to us
that they couldn't particularize the unit with
the physical observations they had done
prior to the pole camera.
So now with the footage that they get from the pole camera
as to your client going in, and then subsequently
which particular lights come on to be able
to identify which unit he's in,
how can you say it didn't aid in the investigation?
-: It didn't aid in the apprehension of Mr. Comenzo.
-: I'm not talking about the apprehension.
I'm talking about the investigation as to where
the child pornography was being downloaded, in what unit,
where that computer would be.
-: So the pole camera establishes his consistent pattern
of every single day coming in and out, and the lights
going up on the second floor and pinpointing
window one, two and three, which is information
that was not something they could have gotten
without the pole camera, 'cause Detective Doherty admits
that the pole camera gave us information that was otherwise
unknowable to us because she says specifically
that the reason for the pole camera is we cannot determine
where he lives in this building, and we are hoping
the pole camera will determine the same.
So that's the reason why she is saying
that we need a pole camera.
She's not saying we need a pole camera
because that's gonna produce evidence of Mr. Comenzo
committing a crime, or it's gonna produce
evidence of child pornography.
She's requesting it so that we can find out the floor
and the apartment so we can get that particularity,
so we can get the search warrant.
Cypher: And does he have a right of privacy in his floor
and apartment, of the identity of that?
Patrick: Oh, I'm sorry.
-: I'm sorry, sorry.
Does he have a right to privacy or privacy interest
in what apartment he lives in and what floor he's on?
-: Well, I think so because one of the things here
is when you're doing this constant surveillance
and they see the lights turning on, on the second floor
and in certain windows, they know this is him
and they know every single time that.
-: Right, but that doesn't establish that,
that he has a reasonable expectation
of privacy in that information.
It just means they can see it that way.
-: But one reason why somebody may want to live
in a multilevel apartment building is because they
maybe don't want to disclose exactly which apartment
is theirs is in the building, and I do think somebody
would have reasonable expectation of privacy in.
-: In when their light goes on?
-: Well, when their light goes on continuously
and it's being recorded and the government can tell
each time Mr. Comenzo goes to bed every single night
and what time he wakes up every single morning
by the lights going on in the morning
and the lights going off at night.
You're getting a window into this person's life.
They're living in the apartment.
You're tracking the movements with a precise law
of every single time he gets up,
and every single time he goes to bed,
I think I'm, I may be out of time.
Budd: Okay, any other questions?
Thank you so much.
Patrick: Thank you so much.
Budd: Okay, Attorney Cusick.
-: Good morning, Your Honors.
May it please the court, my name
is Tracey Cusick for the Commonwealth.
Your Honors, the Commonwealth is asking this court
to affirm the motion, Judge's denial of the motion
to suppress the search of the defendant's apartment,
which was performed pursuant to a warrant,
which did have some information from the pole camera in it.
The judge applied the Mora test and found that
the Commonwealth had satisfied the Mora test,
that when the surveillance began there was probable cause
to believe a particular offense had been committed
and that the footage would aid in the apprehension
of the perpetrator or produce evidence of the offense,
and here, prior to any pole camera going up,
the investigators knew that there was child
sexual abuse material being uploaded from 15 Walnut,
from an IP address at that structure, 15 Walnut Avenue,
that came back to Richard Comenzo.
That alone was enough to suggest that there was probable,
that there was probable cause that a crime
was being committed at that location.
Police had information that Mr. Comenzo was
in apartment two, based on national grid records,
or in apartment three, based on the Verizon records,
and there were other people associated with
that physical address who also came back as associated
with apartments two and three.
So here, a pole camera aided police in identifying
which apartment was occupied by Mr. Comenzo,
and when they searched, as to get the warrant
to search it, to obtain electronic evidence
of the offenses that were committed.
It also aided in the identification
and apprehension of the suspect.
Certainly Mr. Comenzo was connected to the IP address
and the, and the physical address of that building,
but perhaps someone else had been committing
this offense from that location.
It aided in identifying Mr. Comenzo as being physically
at that house and in connection with the IP address where,
from which the child's sexual assault material was uploaded,
and certainly there was no requirement that they capture
images of him at that address at the exact time of.
-: Can I ask about the, the point that Justice Wendlandt
brought up, which is that the IP address
identified the apartment number.
How does it do that?
Is that from the person who requested it?
I mean, is that the kind of thing you can write down
something inaccurate to keep people away from you,
or how do they know where the IP, you know,
how do they connect the IP address to apartment three?
I knew they did it, how did they do it?
-: The Verizon records, so Verizon provided
the, the internet service.
Verizon had the service address, billing address
as apartment three, so that was what police went on for,
for that particular point.
It's unclear in the record how Verizon came
to have that address, whether it's something provided
by the person when they sign up for the service
or some other reason, but that is indeed
the address it came from.
-: 'Cause if we have a person using their computer
for child pornography, they have some incentive to conceal,
you know, where they're doing that, right.
-: I, it's a reasonable inference, I'd suggest, to certainly
think that if you're going to use an electronic device
and an internet connection, you might wish to not have that
known exactly where it traces back to, but again,
the record doesn't have a lot of information on that
other than a lot of confusion about exactly
where in the building Mr. Comenzo was living.
-: How is this case different from Mora?
You know, I know there's a time difference,
but why should we not extend privacy rights
and say this is a search?
-: Well, certainly the motion judge said it was a search
based on the calculation of the,
the length of the surveillance being, I think the judge
said 17 days, and the Commonwealth's position
is the amount considered for the purposes of this motion
should have been the time up until the warrant was,
the affiant ended the observation
for the purposes of the warrant.
This case is different from Mora
because this case isn't a drug case.
It seems that most of these cases
involve narcotics or firearms.
This case is different in large part because this was
a cyber crime being committed from a particular structure,
and at the time police.
-: How, you may be going to go on and explain,
but how is that different?
The, the, the, the privacy interest is the police looking
at someone's comings and goings with visits and et cetera.
What difference does it make
what crime is being investigated?
-: In this case, it was less surveillance,
significantly less surveillance than in the Mora case.
I believe Mora was 169 days, and then 62 days
for the other house.
Here, it was 12 days approximately
of actual, actual surveillance.
There was a break.
The camera stopped working for a couple of days.
So there was certainly a break in the surveillance.
So I, the Commonwealth doesn't disagree that there
is a privacy interest in one's home.
The question is, when does the time cut?
When does it become something for which
a warrant is required.
Here, the court may not even reach it
because the judge did find that.
-: Doesn't this detect personal information?
I may be misremembering the record, but for example,
don't they see that somebody visits him
at three in the morning and the lights immediately,
or late at night, and the lights immediately go, it's a man.
Then another time it's a woman and the lights
immediately don't go on, they go off.
It's odd, right?
It gives you some personal information.
People are visiting him late at night
and the lights go off.
-: I mean, it is what the camera showed, but certainly
that's something that had, had police been there,
they could have seen it.
Now, again, it is different.
It's a camera so the camera does record a lot more
than what a person could have recorded.
Other people in the building may have been aware
of somebody coming up and down the stairs,
but I suggest here where the judge did find there was,
did satisfy the Mora test, if a search is going to capture
some sort of information about a person,
about an individual's life,
that's why probable cause is required.
-: Can you help me out on the,
how we're supposed to count the days, because as counsel
points out and amici point out, we usually go
to evidence gathering versus evidence that's used.
In here, they didn't take the pole camera down,
given logistics or whatever, but what, what analogy
should we draw or how you get to
a truncated version of the days?
-: Here, the whole purpose.
-: Is there any cases you have or anything that's useful
for our analysis in this, in this area?
-: Search warrant cases where, what happens afterwards
doesn't affect whether there was probable cause
for the search warrant.
So if the police went in there and didn't find evidence,
it wouldn't mean they didn't have probable cause,
or if you go in there and you find something,
it can't give you probable cause.
You can't say, oh, well, we did have probable cause
if you didn't at the time that the search was performed
or, and here, the affidavit wraps up with an observation,
I believe that, on the morning, and then the judge
signed the warrant later that day.
-: The police have a search warrant for an apartment
and they go into the child's bedroom and they don't find
any evidence in the child's bedroom.
They still search the bedroom.
It's still a privacy violation, right?
-: If we're looking at a warrant, I mean, if there was
a warrant to go in there, it certainly somebody's privacy
in their bedroom, certainly from a, from a personal view,
yes, that person would likely think their privacy
had been violated, but there was a warrant to search
where a court had said there is probable cause
to go in there and conduct a search.
-: So I think if we, we take the defendant's argument,
part of the argument is that he could have
been arrested anywhere, he didn't have to be
arrested in the apartment.
So keeping in mind that this search was about what,
six years before Mora came out, okay, and we've got
this two-part test, assume there's probable cause to believe
that a crime been committed based on all the information
before the pole camera went up, and putting aside
the first test of the second prong about whether
there'd be evidence of such an offense,
just put that aside for a minute.
Then the next part is, as we've been talking a lot about,
will aid in the apprehension of the person.
So I think that what the defendant is saying is
it won't aid in the apprehension of the person,
because it could, could have picked them out
outside of this apartment any time.
Why, why are they wrong about that?
-: In this case, the police had probable cause to,
to believe this crime was being committed.
They didn't, they had probable cause, also I suggested,
it was Mr. Comenzo committing this crime,
but the pole camera footage again, showing Mr. Comenzo
at that building provided additional evidence.
-: I understand that, and, and, and, and that may just be it.
You, you, you may be absolutely right.
That may satisfy, you got the first prong satisfied,
and the second prong is two parts.
We're putting the first part aside, and the second part
you, you may be absolutely right that, that knowing
the particular apartment is helpful for Article 14 purposes
as Justice Kafker said.
As Justice Georges said, it's going to aid in letting us
know which apartment it is,
but I'm just trying to get your, but the defendant
has a response as to the second part of prong two,
and their response is no, it doesn't aid in the apprehension
because you did have probable cause and you could
have arrested him outside of the apartment at any time.
That's what they said.
What's your response to them?
-: It aided in the identification of the perpetrator
and the identification of the perpetrator
aided in the apprehension of the perpetrator.
-: Wasn't there, over here, surveillance of the defendant
by police officers so that they knew that he
resided or attended 15 Walnut Street before?
They didn't need the pole camera for that.
-: They had information from traditional surveillance of him,
his car being there, him being there,
seeing him coming in and out, seeing him opening
the door with the key.
They did have that, but the pole camera
gave additional information, so it did give them.
-: It certainly gave additional information,
which is why it was a privacy violation.
The question, I think, for prong two of Mora,
at least as articulated in Mora is how
it aided in his apprehension.
-: It aided in his apprehension by contributing
to his identification as the perpetrator.
It can, finding that electronic devices connected to him
in the apartment he lived in aided in the identification
of the person who was uploading
the child sexual abuse material.
-: Did the pole, was there a matching between when there was
an upload of the child pornography and the timing
of Mr. Mora being at his apartment?
Tracey: No.
-: I'm sorry, Mr. Comenzo being at his apartment.
-: No, there was never a matching of him being there.
-: All right, so, so, wait.
There isn't any connection between the crime
and his physical presence there?
-: No, Your Honor.
The connection was between his computer, which was found
through the search, which was premised in part
on pole camera surveillance indicating where
in that building Mr. Comenzo lived and had access to.
-: So the pole camera shows him coming in with his computer.
I'm confused by your connection.
-: No, the pole camera shows Mr. Comenzo coming in
and out of the house.
I don't think it ever shows him with a computer.
-: Right, as the police surveillance had done before.
-: Right.
If I could follow up on Justice Wendlandt's part,
because this is the issue that I had
with the identification part.
I forget the name of the case, but there was another case
where it happened to be that there was another occupant
of the residence, that it wasn't the, the,
the apartment holder or the lease, the person on the lease.
It was somebody else that was physically in the unit.
So there arguably could be some need
to see who's there and who's not.
They knew who was coming in and out
prior to the pole camera.
So there wasn't that, the pole camera didn't say,
help them identify whether somebody else
was going in and out that ostensibly could have
been doing the uploading.
So they had known before that it was just
Mr. Comenzo going in and out.
So I'm still struggling with how could it help identify him
when there was no evidence that anyone else was going
in and out that it would arguably be helpful to?
-: Well, there was, there were other people
observed going in and out.
I think that's a large part of the defense argument
is that other people were coming in and out of the building.
This was establishing which part of the building
Mr. Comenzo was accessing when he was going in and out
of the building, which would again lead police
to the particular device where the child
sexual assault material, there was reasonable belief,
probable cause to believe, would be found
on his devices, not someone else's devices.
-: So is your position that the Mora test was mis-articulated
and that actually it should be the second prong
should be aid in the, not just the apprehension
of the defendant, but aid in the investigation generally?
-: I wouldn't say it was mis-articulated.
I would suggest it's the identification of the perpetrator
is always gonna be part of the investigation,
and I suggest that's always gonna be part
of looking to apprehend the perpetrator is who is it?
Who are we looking for, and I would suggest this case
is somewhat different than the other cases and from Mora,
because this is not a narcotics investigation
where perhaps there was interest in
who was coming and going.
The interest here was in the person who was there,
what parts of the building was that person using?
-: Right, so you already had identified the suspect.
You were just gathering more information.
-: Yes, a suspect had been identified and.
-: Right, so the pole camera actually aided in the confusion
'cause there were other people coming
in and out of 15 Walnut.
It didn't actually aid in the identification
or the apprehension of this particular person.
-: Well, it aided in the identification
of this particular person's whereabouts in the building,
which allowed police to find the electronic devices
that this particular person was using
to commit this particular offense by uploading.
-: That satisfies the first part of the second prong,
and that may well be as well as, as well,
and I understand what you're saying is the police cannot,
under Article 14, just sort of flip a coin and say,
it's apartment two or apartment three.
They need the particularities, but I think what
the defendant's saying and some of the questions
are getting at is, how literal is that about
apprehension of the person, 'cause again,
the defendant's saying you don't need the pole camera
to apprehend the person.
You can apprehend them right on the,
when he comes out the front door.
-: Your Honor, there are, I believe there is at least
one case that says the police don't need to arrest
a person at the moment that they have probable cause.
-: I understand that, I understand that.
I'm just trying to figure out whether or not in this case,
the, the, the second way to satisfy the second prong
of Mora is satisfied with that language.
That's all.
-: Can I ask a sort of a really simple, and I may be
misunderstanding it, but so the, the cops aren't watching
the house all the time, right.
They're, they have this pole camera up.
It'll tell them when he showed up.
Won't that aid in the apprehension of him?
-: Well, it won't tell them specific.
I mean, they can go look at the footage and see.
-: Aren't they, they can't monitor it simultaneously?
-: Someone presumably could monitor it simultaneously
and then say, go now, he's there, that's true.
-: And would that aid the apprehension of him?
-: I suppose it could.
I don't think there's anything in the record to suggest
that the defendant's whereabouts were unknown.
-: They may not need it but, you know, they can track,
it can track him that way when he's there
and arrest him, right.
-: I wouldn't say so much track him,
but they could certainly look at the footage and discern
when he was there, and if the police, say,
gathered somewhere else and discerned that he was present.
-: So the first day they put the pole camera up,
they see, they're watching the pole camera,
they see which unit he walks into and they see he's there,
and they go arrest him.
Does that meet the Mora test?
-: I think it would, Your Honor.
I mean, I think that would meet the test,
but, I think that would meet the test.
Budd: Okay, thank you.
Tracey: Thank you.