WEBVTT 1 00:00:01.640 --> 00:00:06.640 SJC-13122, Commonwealth V. Averyk Carrasquillo. 2 00:00:07.500 --> 00:00:09.657 Okay, attorney run out. 3 00:00:20.860 --> 00:00:22.640 Thank you, your Honors. 4 00:00:22.640 --> 00:00:23.510 Can you hear me? 5 00:00:23.510 --> 00:00:24.410 [Justice Wendlandt] Yes. 6 00:00:24.410 --> 00:00:26.476 Thank you, Suzanne Renaud for Averyk Carrasquillo. 7 00:00:26.476 --> 00:00:27.309 [Justice Wendlandt] Yeah, actually, 8 00:00:27.309 --> 00:00:28.634 just a little bit louder. 9 00:00:28.634 --> 00:00:29.730 Much louder. 10 00:00:29.730 --> 00:00:32.300 Your Honors, this case came before the Lower Court 11 00:00:32.300 --> 00:00:33.910 as an issue of consent. 12 00:00:33.910 --> 00:00:35.630 But obviously the predicate question 13 00:00:35.630 --> 00:00:38.770 is whether there's privacy attaching to social media. 14 00:00:38.770 --> 00:00:40.630 And it's a newish technology, 15 00:00:40.630 --> 00:00:44.290 the judge below the approach would basically say that nobody 16 00:00:44.290 --> 00:00:47.670 who is operating in a social atmosphere 17 00:00:47.670 --> 00:00:49.040 would ever be entitled to 18 00:00:49.040 --> 00:00:51.130 any kind of expectation of privacy. 19 00:00:51.130 --> 00:00:53.450 I think there's a better approach to that. 20 00:00:53.450 --> 00:00:56.830 What these social media companies have in common 21 00:00:59.110 --> 00:01:01.680 is irrespective of their terms of service, 22 00:01:01.680 --> 00:01:04.110 or if they're like Snapchat which is a femoral 23 00:01:04.110 --> 00:01:06.360 and needs to have a lot of notifications based on video 24 00:01:06.360 --> 00:01:09.330 and it's a little bit more akin to oral communications, 25 00:01:09.330 --> 00:01:11.740 or it's more traditional like Facebook, 26 00:01:11.740 --> 00:01:13.680 is that they divide themselves 27 00:01:13.680 --> 00:01:16.480 into two different kind of categories, public and private. 28 00:01:16.480 --> 00:01:19.690 And those, those words have meaning to the users. 29 00:01:19.690 --> 00:01:23.700 The users look at that, if it's public, 30 00:01:23.700 --> 00:01:25.150 it means that the posts that they put 31 00:01:25.150 --> 00:01:26.770 are available to anybody to see. 32 00:01:26.770 --> 00:01:28.000 But counsel, I understand 33 00:01:28.000 --> 00:01:29.850 the conceptual argument you're making, 34 00:01:29.850 --> 00:01:33.430 but isn't their testimony that the defendant in this case 35 00:01:33.430 --> 00:01:35.570 really didn't pay too much attention to his public 36 00:01:35.570 --> 00:01:37.410 or private, or at least he didn't get it right, 37 00:01:37.410 --> 00:01:39.950 because he admitted a friend that wasn't really his friend, 38 00:01:39.950 --> 00:01:42.100 he didn't know him, and he really didn't know 39 00:01:42.100 --> 00:01:43.510 what his settings were. 40 00:01:43.510 --> 00:01:45.500 Well, your Honor, that is a factual question. 41 00:01:45.500 --> 00:01:46.420 I think I'm, 42 00:01:46.420 --> 00:01:48.530 I was just wanting to frame the issue initially, 43 00:01:48.530 --> 00:01:51.200 but the point that is made there, 44 00:01:51.200 --> 00:01:53.320 whether or not he knew this person was a friend, 45 00:01:53.320 --> 00:01:54.200 let's put it this way. 46 00:01:54.200 --> 00:01:55.520 If you were having a house party 47 00:01:55.520 --> 00:01:56.353 and you were letting people in 48 00:01:56.353 --> 00:01:57.470 and you invited 10 people, 49 00:01:57.470 --> 00:01:59.410 and one of your friends brought a friend. 50 00:01:59.410 --> 00:02:00.637 All you have to do is say, 51 00:02:00.637 --> 00:02:02.390 "can that person come in or can they not come in?" 52 00:02:02.390 --> 00:02:04.830 You don't have to scrutinize their bonafides. 53 00:02:04.830 --> 00:02:05.820 It's not the job - 54 00:02:05.820 --> 00:02:08.250 Now suppose that friend is an undercover cop 55 00:02:08.250 --> 00:02:10.180 and sees something illegal at your house. 56 00:02:10.180 --> 00:02:12.020 Well, your Honor, that's an issue of consent. 57 00:02:12.020 --> 00:02:13.110 The question is there, 58 00:02:13.110 --> 00:02:16.550 you have the right to say that your home is private, 59 00:02:16.550 --> 00:02:18.010 and if you've consented, 60 00:02:18.010 --> 00:02:20.310 if it's legitimate consent to the police officer coming in, 61 00:02:20.310 --> 00:02:21.736 that's a question of the consent. 62 00:02:21.736 --> 00:02:23.340 Wait, you don't know he's the police, he's undercover. 63 00:02:23.340 --> 00:02:24.840 Well, that's a ruse and ruse, 64 00:02:24.840 --> 00:02:28.507 the question of ruses always indicate the issue of consent. 65 00:02:28.507 --> 00:02:30.950 A police officer undercover can not go into 66 00:02:30.950 --> 00:02:32.940 another's home without consent, 67 00:02:32.940 --> 00:02:34.540 knowing that they're undercover? 68 00:02:35.460 --> 00:02:37.050 Your Honor, that's essentially what a ruse is. 69 00:02:37.050 --> 00:02:38.590 It's saying that you have consented 70 00:02:38.590 --> 00:02:41.240 to let that person in to see the, 71 00:02:41.240 --> 00:02:43.870 usually it has to do with some kind of criminality 72 00:02:43.870 --> 00:02:46.500 that you're engaged in, but that is absolutely the case. 73 00:02:46.500 --> 00:02:48.410 It's that when you're dealing with the ruse, 74 00:02:48.410 --> 00:02:49.740 it's a second level question, 75 00:02:49.740 --> 00:02:52.070 you already have that expectation of privacy 76 00:02:52.070 --> 00:02:54.140 surrounding you, they have to get consent. 77 00:02:54.140 --> 00:02:55.823 Now they can use trickery, 78 00:02:56.790 --> 00:02:58.150 they can't go over the line to coercion, 79 00:02:58.150 --> 00:02:59.880 but they can use trickery to gain that consent. 80 00:02:59.880 --> 00:03:03.290 But that is a second question that is comes after 81 00:03:03.290 --> 00:03:05.700 the question of whether or not you had an expectation 82 00:03:05.700 --> 00:03:07.770 of privacy in that area to begin with. 83 00:03:07.770 --> 00:03:08.741 And so with - 84 00:03:08.741 --> 00:03:10.470 [Justice Wendlandt] Does that apply outside the home? 85 00:03:10.470 --> 00:03:11.303 I'm sorry? 86 00:03:11.303 --> 00:03:12.840 Have you found cases where that's applied 87 00:03:12.840 --> 00:03:13.720 outside the home? 88 00:03:13.720 --> 00:03:17.320 Here we're talking about a social media electronic platform, 89 00:03:17.320 --> 00:03:21.910 and you're saying that that space is like a calm 90 00:03:21.910 --> 00:03:23.780 and I'm wondering if there's any support 91 00:03:23.780 --> 00:03:25.083 for that proposition given the way 92 00:03:25.083 --> 00:03:28.750 that the home is so unique for search and seizure cases. 93 00:03:28.750 --> 00:03:30.950 Well, I can think of two cases that both 94 00:03:30.950 --> 00:03:33.760 the Commonwealth and I cite, I think we both cite them. 95 00:03:33.760 --> 00:03:35.380 The Hinds case and the Kaupp case, 96 00:03:35.380 --> 00:03:38.020 both of those have to do with computer networks. 97 00:03:38.020 --> 00:03:39.130 They're not social media networks. 98 00:03:39.130 --> 00:03:42.300 So they obviously are different in kind, but in both cases, 99 00:03:42.300 --> 00:03:45.940 the police received consent from one of the authorized users 100 00:03:45.940 --> 00:03:47.340 to be able to get into that network. 101 00:03:47.340 --> 00:03:50.100 So even though the information was being shared 102 00:03:50.100 --> 00:03:51.890 among a network of people and in the Kaupp case, 103 00:03:51.890 --> 00:03:55.430 it was an entire school, they were able, 104 00:03:55.430 --> 00:03:57.360 they had to get the consent to come in. 105 00:03:57.360 --> 00:04:00.090 So yes, it would apply that same principle would apply 106 00:04:00.090 --> 00:04:01.680 even outside of the home. 107 00:04:01.680 --> 00:04:03.460 If I was having a private party at a hotel, 108 00:04:03.460 --> 00:04:04.430 that would also apply. 109 00:04:04.430 --> 00:04:07.780 If I was sending, you know, 110 00:04:07.780 --> 00:04:10.350 if I was sending an email to 50 people, 111 00:04:10.350 --> 00:04:11.360 because it was a Christmas letter, 112 00:04:11.360 --> 00:04:12.470 the police can't get into it 113 00:04:12.470 --> 00:04:13.810 just because I sent it to other people. 114 00:04:13.810 --> 00:04:15.720 So that's not a case, it's just an example, 115 00:04:15.720 --> 00:04:19.140 but there are certainly cases out there that say 116 00:04:19.140 --> 00:04:21.810 that consent is necessary 117 00:04:21.810 --> 00:04:23.640 even when something is being shared. 118 00:04:23.640 --> 00:04:25.798 Did that answer your question, your Honor? 119 00:04:25.798 --> 00:04:26.631 [Justice Wendlandt] I think it did, yeah. 120 00:04:26.631 --> 00:04:29.655 Ms. Renaud, you gave us an attractive option 121 00:04:29.655 --> 00:04:34.054 to basically rule based on private or public settings, 122 00:04:34.054 --> 00:04:35.970 which would be easy to apply. 123 00:04:35.970 --> 00:04:37.980 But when you wrote your brief, 124 00:04:37.980 --> 00:04:40.420 you didn't have the benefit of Delgado-Rivera. 125 00:04:40.420 --> 00:04:41.877 That is true, your Honor. 126 00:04:41.877 --> 00:04:45.750 Okay, so we go to Delgado-Rivera and we look at that case, 127 00:04:45.750 --> 00:04:50.690 in the text message in that case certainly was private. 128 00:04:50.690 --> 00:04:53.453 So your private/public kind of falls apart, 129 00:04:54.459 --> 00:04:56.850 but what doesn't fall apart 130 00:04:56.850 --> 00:04:59.070 is the discussion in footnote seven 131 00:05:00.384 --> 00:05:05.384 about ephemeral messaging and expectation privacy. 132 00:05:05.440 --> 00:05:09.540 So can you reframe your argument or give me an argument 133 00:05:09.540 --> 00:05:12.940 regarding footnote seven and why that applies in this case? 134 00:05:12.940 --> 00:05:14.010 About whether it's a ephemeral? 135 00:05:14.010 --> 00:05:15.330 Well, I would say your Honor, the question - 136 00:05:15.330 --> 00:05:17.350 Of why there's a reasonable expectation of privacy 137 00:05:17.350 --> 00:05:19.450 in light of what we wrote in Delgado-Rivera. 138 00:05:19.450 --> 00:05:20.840 Well, I, I certainly will. 139 00:05:20.840 --> 00:05:22.908 And the issue in Delgado-Rivera 140 00:05:22.908 --> 00:05:24.543 and it's one that was identified by the Commonwealth 141 00:05:24.543 --> 00:05:26.720 and the DC Circuit Case that they, 142 00:05:26.720 --> 00:05:29.380 that they cited in other cases that you say, well, 143 00:05:29.380 --> 00:05:31.840 there's no expectation of privacy in this thing 144 00:05:31.840 --> 00:05:33.756 that they lost control over. 145 00:05:33.756 --> 00:05:35.600 But I would say that your Honors, 146 00:05:35.600 --> 00:05:38.450 that logic is actually just kind of shorthand 147 00:05:38.450 --> 00:05:41.450 for a greater picture context that you've provided 148 00:05:41.450 --> 00:05:44.330 because in, if you give me just a moment, 149 00:05:44.330 --> 00:05:47.400 on page 15621 in Delgado-Rivera, 150 00:05:47.400 --> 00:05:51.940 you don't just talk about that, in a vacuum. 151 00:05:51.940 --> 00:05:52.940 You say that, 152 00:05:52.940 --> 00:05:55.990 that there is a risk that the confidant will reveal 153 00:05:55.990 --> 00:05:58.185 the information that frustrated 154 00:05:58.185 --> 00:05:59.450 the original expectation of privacy. 155 00:05:59.450 --> 00:06:01.300 Making something that was once private 156 00:06:01.300 --> 00:06:03.200 now into something that was public. 157 00:06:03.200 --> 00:06:05.220 When you frame the issue on page 559, 158 00:06:05.220 --> 00:06:07.310 you said this was the issue of the sent text message 159 00:06:07.310 --> 00:06:11.840 being captured by, by the police officer. 160 00:06:11.840 --> 00:06:14.360 So the issue there, isn't just, you know, 161 00:06:14.360 --> 00:06:17.030 when you're talking about this third party consent 162 00:06:17.030 --> 00:06:19.030 or assumption of the risk question, 163 00:06:19.030 --> 00:06:21.740 you're not simply talking about it just, oh, 164 00:06:21.740 --> 00:06:23.700 you just don't have any expectation of privacy period, 165 00:06:23.700 --> 00:06:25.560 that's never how we framed the law. 166 00:06:25.560 --> 00:06:27.900 If you were to frame the law that way, 167 00:06:27.900 --> 00:06:30.170 we wouldn't have any expectation of privacy 168 00:06:30.170 --> 00:06:32.280 in anything that we ever said. 169 00:06:32.280 --> 00:06:35.290 And so what you are actually talking about is that 170 00:06:35.290 --> 00:06:38.010 the police can go to a friend 171 00:06:38.010 --> 00:06:39.567 and see if they'll quote, unquote, 172 00:06:39.567 --> 00:06:41.580 "rat out" the person in question, 173 00:06:41.580 --> 00:06:44.080 or they'll get, they can get a search warrant for a friend 174 00:06:44.080 --> 00:06:45.470 and get the question, 175 00:06:45.470 --> 00:06:47.980 but it is not hypothetical 176 00:06:47.980 --> 00:06:49.420 or theoretical that that will happen. 177 00:06:49.420 --> 00:06:51.610 It's something that has actually happened. 178 00:06:51.610 --> 00:06:52.443 So in that sense, 179 00:06:52.443 --> 00:06:55.160 I don't think Delgado-Rivera changes the situation, 180 00:06:55.160 --> 00:06:57.820 the expectation of privacies at all. 181 00:06:57.820 --> 00:07:00.960 In any of this, it is not material, 182 00:07:00.960 --> 00:07:04.137 whether that you share with 50 people, 183 00:07:04.137 --> 00:07:06.750 100, 1,000 people within your social network, 184 00:07:06.750 --> 00:07:10.830 because unless the police actually get the item 185 00:07:10.830 --> 00:07:13.250 from that person, that principle of assumption, 186 00:07:13.250 --> 00:07:15.067 the risk simply does not apply. 187 00:07:15.067 --> 00:07:17.550 And that is the case here, I'm sorry. 188 00:07:17.550 --> 00:07:20.127 Here are the police tried to capture the Snapchat 189 00:07:20.127 --> 00:07:21.730 and they couldn't. 190 00:07:21.730 --> 00:07:24.388 Well, your Honor, this is that, 191 00:07:24.388 --> 00:07:26.100 that issue about the police actually trying to 192 00:07:26.100 --> 00:07:28.130 capture the Snapchat came after 193 00:07:28.130 --> 00:07:30.760 they purported to get consent. 194 00:07:30.760 --> 00:07:33.420 But the question that the way the Commonwealth 195 00:07:33.420 --> 00:07:34.470 and the judge below framed it 196 00:07:34.470 --> 00:07:36.260 is that they didn't even have to get to the point 197 00:07:36.260 --> 00:07:37.970 of asking for consent because there was never 198 00:07:37.970 --> 00:07:38.940 an expectation of privacy. 199 00:07:38.940 --> 00:07:41.300 Right, so I mean, your case might fall into 200 00:07:41.300 --> 00:07:43.000 footnote seven of Delgado-Rivera. 201 00:07:43.000 --> 00:07:46.010 I guess the bigger issue that you have as far as 202 00:07:47.270 --> 00:07:49.660 the judge's findings are her first findings 203 00:07:49.660 --> 00:07:52.590 regarding no subjective expectation of privacy. 204 00:07:52.590 --> 00:07:54.040 Is that supported by the evidence, 205 00:07:54.040 --> 00:07:56.190 or why is that clearly erroneous? 206 00:07:56.190 --> 00:07:57.023 Well, your Honor, 207 00:07:57.023 --> 00:07:58.730 I would say there are two things about that. 208 00:07:58.730 --> 00:08:02.040 First, the way I wanted to make sure to frame social network 209 00:08:02.040 --> 00:08:04.370 and I just want to get this out there, 210 00:08:04.370 --> 00:08:05.590 is that social networks, 211 00:08:05.590 --> 00:08:06.720 when you were talking about private ones, 212 00:08:06.720 --> 00:08:07.750 is that there's a circle 213 00:08:07.750 --> 00:08:09.650 and there's conversation inside of that. 214 00:08:09.650 --> 00:08:13.560 And that the defendant is, or the user is the gatekeeper, 215 00:08:13.560 --> 00:08:15.170 It's like the circle of trust, 216 00:08:15.170 --> 00:08:16.483 Essentially, yes. 217 00:08:17.610 --> 00:08:20.610 To quote Robert De Niro but go on. 218 00:08:21.610 --> 00:08:23.850 Says we're supposed to be able to share with others, 219 00:08:23.850 --> 00:08:26.490 groups of people and be able to keep the government out 220 00:08:26.490 --> 00:08:28.250 and objectively. 221 00:08:28.250 --> 00:08:31.800 So we have that sense of it meets the legal definition 222 00:08:31.800 --> 00:08:32.950 and objectively here, 223 00:08:32.950 --> 00:08:35.310 not even based on Mr. Carrasquillo's testimony, 224 00:08:35.310 --> 00:08:37.590 but based on Officer Connolly's testimony, 225 00:08:37.590 --> 00:08:38.720 and that's why I'm trying to bring it back, 226 00:08:38.720 --> 00:08:40.040 from that for a moment. 227 00:08:40.040 --> 00:08:43.150 He said that "I saw 'Frio Fresh' existed, 228 00:08:43.150 --> 00:08:44.950 but I couldn't see any of the content, 229 00:08:44.950 --> 00:08:46.900 I made a friend request." 230 00:08:46.900 --> 00:08:49.680 He said something happened, which we know from common sense, 231 00:08:49.680 --> 00:08:51.330 and from Snapchat's terms of services 232 00:08:51.330 --> 00:08:53.260 that the user actually has to be the gatekeeper 233 00:08:53.260 --> 00:08:55.620 and let him in, and then "I could see everything." 234 00:08:55.620 --> 00:08:57.750 So on the day he was seeking consent, 235 00:08:57.750 --> 00:09:00.630 we objectively had a private account. 236 00:09:00.630 --> 00:09:03.180 This court in Commonwealth vs. Mora 237 00:09:03.180 --> 00:09:05.280 suggests that you can extrapolate, 238 00:09:05.280 --> 00:09:07.750 even without much else on the record, 239 00:09:07.750 --> 00:09:10.123 that somebody who has an objectively 240 00:09:10.123 --> 00:09:13.220 objective expectation of privacy would also have 241 00:09:13.220 --> 00:09:15.490 a subjective expectation of privacy in part, 242 00:09:15.490 --> 00:09:17.060 because it's based on their conduct, 243 00:09:17.060 --> 00:09:19.860 if their conduct shows that they had a private account 244 00:09:19.860 --> 00:09:21.982 on that day, why wouldn't they - 245 00:09:21.982 --> 00:09:24.580 Counsel, well, can I interrupt you with one, 246 00:09:24.580 --> 00:09:25.950 one question on that? 247 00:09:25.950 --> 00:09:28.740 So when we're looking at the expectation of privacy 248 00:09:28.740 --> 00:09:30.600 and you say, okay, if you walk, talk and act 249 00:09:30.600 --> 00:09:32.710 like you want this to be private, 250 00:09:32.710 --> 00:09:36.730 how does that square with just accepting friend requests 251 00:09:36.730 --> 00:09:39.070 from folks that you just don't know? 252 00:09:39.070 --> 00:09:41.610 So when you're talking about marrying the two concepts, 253 00:09:41.610 --> 00:09:43.550 and now there's another point to that. 254 00:09:43.550 --> 00:09:45.290 I know somewhere in somebody's brief, 255 00:09:45.290 --> 00:09:47.100 they talked about the fact that you could have 256 00:09:47.100 --> 00:09:48.150 a really big wedding 257 00:09:48.150 --> 00:09:51.270 and it wouldn't convert into a public wedding. 258 00:09:51.270 --> 00:09:55.160 But by extension, if you have an account owner, 259 00:09:55.160 --> 00:09:58.750 who's just indiscriminately accepting folks 260 00:09:58.750 --> 00:10:01.390 into this circle of trust, 261 00:10:01.390 --> 00:10:04.910 and now it's 1,000, 2,000, 3,000. 262 00:10:04.910 --> 00:10:07.470 At what point does it become absurd 263 00:10:07.470 --> 00:10:09.420 that you say that you have a circle 264 00:10:09.420 --> 00:10:11.580 or an expectation of privacy 265 00:10:11.580 --> 00:10:13.890 in what you're sharing with these folks 266 00:10:13.890 --> 00:10:17.470 when you don't, when you don't legislate who comes in 267 00:10:17.470 --> 00:10:19.740 because you're letting in people you don't really know. 268 00:10:19.740 --> 00:10:21.960 And it could arguably grow to a point 269 00:10:21.960 --> 00:10:24.720 of just an inordinate amount of people 270 00:10:24.720 --> 00:10:26.473 that are in this private setting? 271 00:10:27.352 --> 00:10:28.185 So, what I would say to that, your Honor, 272 00:10:28.185 --> 00:10:29.690 is where do you set the lines? 273 00:10:29.690 --> 00:10:31.090 That would be a problem, 274 00:10:31.090 --> 00:10:34.330 a legal problem of where is that line going to be set? 275 00:10:34.330 --> 00:10:36.940 Is it 50, 100, 500, what number is too many? 276 00:10:36.940 --> 00:10:38.230 Well, let's start with the first question 277 00:10:38.230 --> 00:10:41.310 about just indiscriminately allowing people into that pool. 278 00:10:41.310 --> 00:10:42.810 Well, I would say to that, your Honor, 279 00:10:42.810 --> 00:10:45.380 if it is a private account, and if Blood says that, 280 00:10:45.380 --> 00:10:47.060 the point is that you're supposed to be able to keep 281 00:10:47.060 --> 00:10:49.400 the government out, if it's not indiscriminate. 282 00:10:49.400 --> 00:10:50.270 I mean, in this case, 283 00:10:50.270 --> 00:10:52.370 we do have at least some evidence 284 00:10:52.370 --> 00:10:55.960 and I'm going back to Justice Gaziano's question of, 285 00:10:55.960 --> 00:10:58.510 you know, did he say that, you know, 286 00:10:58.510 --> 00:10:59.450 he didn't let the police? 287 00:10:59.450 --> 00:11:01.750 He said he didn't let the police in. 288 00:11:01.750 --> 00:11:04.060 It's not completely indiscriminate if you, 289 00:11:04.060 --> 00:11:05.250 the whole point is to say, oh, 290 00:11:05.250 --> 00:11:06.932 we're just not going to get, let the police in. 291 00:11:06.932 --> 00:11:08.120 And this is an undercover officer, 292 00:11:08.120 --> 00:11:10.670 who didn't identify himself as a police officer. 293 00:11:10.670 --> 00:11:11.560 If that was the case, 294 00:11:11.560 --> 00:11:14.360 when you have 50 or 100 or 500 friends, 295 00:11:14.360 --> 00:11:15.920 that's the only point 296 00:11:18.907 --> 00:11:19.740 of factual information that I think 297 00:11:19.740 --> 00:11:21.070 that you would need to know, 298 00:11:21.070 --> 00:11:24.000 because otherwise it's not the court's job 299 00:11:24.000 --> 00:11:26.820 to be scrutinizing how well we know all of these people. 300 00:11:26.820 --> 00:11:29.910 It may not, but this is important here. 301 00:11:29.910 --> 00:11:32.980 Let's just presume for the sake of the argument 302 00:11:32.980 --> 00:11:35.010 that what you're doing or you're posting, 303 00:11:35.010 --> 00:11:39.750 you know is illegal, like taking videos of flashing guns, 304 00:11:39.750 --> 00:11:44.370 that you don't have a lawful right to possess. 305 00:11:44.370 --> 00:11:46.810 So irrespective of whether or not you know, 306 00:11:46.810 --> 00:11:49.840 this person is an undercover police officer, 307 00:11:49.840 --> 00:11:52.880 you're letting folks in that you don't know 308 00:11:52.880 --> 00:11:56.030 to see stuff that arguably could be illegal. 309 00:11:56.030 --> 00:11:57.880 Well, the problem with that approach, your Honor, 310 00:11:57.880 --> 00:12:00.440 is at what point do you have to make that scrutiny? 311 00:12:00.440 --> 00:12:02.330 Because what - Wait, wait, wait, 312 00:12:02.330 --> 00:12:06.290 suppose you as an attorney or just a person 313 00:12:06.290 --> 00:12:11.290 came upon the account and took a fake name and signed on. 314 00:12:11.300 --> 00:12:12.819 That's fine, isn't it? 315 00:12:12.819 --> 00:12:13.652 That's a very different situation. 316 00:12:13.652 --> 00:12:14.485 Why? 317 00:12:15.690 --> 00:12:17.460 That's the United States versus White, 318 00:12:17.460 --> 00:12:18.450 frustration of purpose. 319 00:12:18.450 --> 00:12:21.200 I've already brought people in, I'm assuming a risk, 320 00:12:21.200 --> 00:12:23.750 but this is actually coming to pass that a person 321 00:12:23.750 --> 00:12:24.583 who I'm friends with, 322 00:12:24.583 --> 00:12:26.300 is going to end up sharing it with the police. 323 00:12:26.300 --> 00:12:28.210 No, but this is different though, 324 00:12:28.210 --> 00:12:30.300 because he's sharing it with 325 00:12:30.300 --> 00:12:32.580 the person he intended to share with. 326 00:12:32.580 --> 00:12:35.813 This is different from Delgado in that sense. 327 00:12:37.070 --> 00:12:40.610 He made he, whatever this person's name is, 328 00:12:40.610 --> 00:12:42.490 he deliberately sent it to him. 329 00:12:42.490 --> 00:12:44.120 Well that's a question of - 330 00:12:44.120 --> 00:12:45.100 And ruse? 331 00:12:45.100 --> 00:12:48.400 You're gonna ask us to overturn all of the ruse cases? 332 00:12:48.400 --> 00:12:49.420 Certainly not, your Honor. 333 00:12:49.420 --> 00:12:50.927 Okay so how do we? 334 00:12:50.927 --> 00:12:52.440 What I'm saying that factually here, 335 00:12:52.440 --> 00:12:54.587 so what you're pointing out your Honor, is that, 336 00:12:54.587 --> 00:12:57.870 you know, he consented to let this officer in. 337 00:12:57.870 --> 00:12:59.360 So that comes to question 338 00:12:59.360 --> 00:13:01.415 that second question that I wanted - 339 00:13:01.415 --> 00:13:03.050 He consented to let this person in. 340 00:13:03.050 --> 00:13:05.360 And he has, and again, 341 00:13:05.360 --> 00:13:08.680 we're measuring a subjective expectation of privacy, right? 342 00:13:08.680 --> 00:13:13.680 So he, he's not someone who keeps his circle of trust close. 343 00:13:13.920 --> 00:13:17.743 He's showing someone he barely knows, 344 00:13:18.720 --> 00:13:20.760 that he's engaging in illegal activity. 345 00:13:20.760 --> 00:13:22.598 Does that reflect that he has - 346 00:13:22.598 --> 00:13:23.431 I have a problem with that approach, your Honor, 347 00:13:23.431 --> 00:13:27.360 because you are presuming that it's his burden 348 00:13:27.360 --> 00:13:29.670 to show that, he had to keep it close. 349 00:13:29.670 --> 00:13:31.550 Because that's how the judge below addressed the question. 350 00:13:31.550 --> 00:13:33.963 It's his burden to establish 351 00:13:33.963 --> 00:13:35.637 an expectation of privacy, right? 352 00:13:35.637 --> 00:13:39.650 But if he has established that he is, 353 00:13:39.650 --> 00:13:43.560 that the account itself fundamentally is private. 354 00:13:43.560 --> 00:13:44.990 The account itself is private 355 00:13:44.990 --> 00:13:47.967 because only people in that circle that he lets in. 356 00:13:47.967 --> 00:13:49.960 But wait, there's another step here, 357 00:13:49.960 --> 00:13:52.630 is it private because he took an affirmative step 358 00:13:52.630 --> 00:13:53.610 to make it private, 359 00:13:53.610 --> 00:13:56.400 or does Snapchat just default you to private? 360 00:13:56.400 --> 00:13:57.430 I don't know that that matters, 361 00:13:57.430 --> 00:13:59.774 your Honor. I think, why not, why not? 362 00:13:59.774 --> 00:14:01.070 He did in fact have a private account 363 00:14:01.070 --> 00:14:03.190 and it is also defaulted to private. 364 00:14:03.190 --> 00:14:04.920 We, both of those things can be true. 365 00:14:04.920 --> 00:14:07.050 But the problem is the judge made findings 366 00:14:07.050 --> 00:14:09.266 that are contrary to you. 367 00:14:09.266 --> 00:14:10.490 But not on that point, your Honor. 368 00:14:10.490 --> 00:14:12.980 Not on the point of whether or not, you know, 369 00:14:12.980 --> 00:14:14.640 she discredited what he said, 370 00:14:14.640 --> 00:14:16.320 but if you look at not his testimony, 371 00:14:16.320 --> 00:14:18.320 but Officer Connolly's testimony, 372 00:14:18.320 --> 00:14:20.310 that is clearly a private account. 373 00:14:20.310 --> 00:14:21.630 Oh no, no, no, no, 374 00:14:21.630 --> 00:14:23.733 there's no questions of private account, 375 00:14:23.733 --> 00:14:26.057 and that's why your first. 376 00:14:26.057 --> 00:14:30.750 As far as her discrediting him, I mean, 377 00:14:30.750 --> 00:14:32.240 as I noted in the reply brief, 378 00:14:32.240 --> 00:14:35.490 there are certainly many issues that are involved with, 379 00:14:35.490 --> 00:14:38.210 I think that the reason why she discredited him 380 00:14:38.210 --> 00:14:41.263 are based on some misreading of some of the facts. 381 00:14:42.730 --> 00:14:44.440 We have to dive into that to see 382 00:14:44.440 --> 00:14:45.760 if it's supported by the evidence 383 00:14:45.760 --> 00:14:47.930 or if it's clearly erroneous rather. 384 00:14:47.930 --> 00:14:49.600 And then, but your other argument is 385 00:14:49.600 --> 00:14:52.180 that we should look at more in some of the other cases 386 00:14:52.180 --> 00:14:55.150 and assume a subjective expectation of privacy? 387 00:14:55.150 --> 00:14:56.430 There is that. And you know, 388 00:14:56.430 --> 00:14:57.580 I feel like I'm running out of time, 389 00:14:57.580 --> 00:14:59.340 I haven't even addressed the consent issue. 390 00:14:59.340 --> 00:15:01.120 I mean, you know, with Mora as well. 391 00:15:01.120 --> 00:15:02.910 I just, just to throw this out here, 392 00:15:02.910 --> 00:15:06.000 I know that the Commonwealth cited Mora for this purpose, 393 00:15:06.000 --> 00:15:07.320 if you did not find that 394 00:15:07.320 --> 00:15:10.987 he had a subjective or objective expectation of privacy 395 00:15:10.987 --> 00:15:11.820 under the mosaic theory, 396 00:15:11.820 --> 00:15:14.460 you can certainly find that sitting on a couch for a month 397 00:15:14.460 --> 00:15:16.530 using this unlimited technology, 398 00:15:16.530 --> 00:15:18.450 would create an expectation of privacy, 399 00:15:18.450 --> 00:15:21.418 which would also be, get the need to make sure 400 00:15:21.418 --> 00:15:22.251 that there was consent and that this ruse 401 00:15:22.251 --> 00:15:23.710 was not done in appropriately. 402 00:15:23.710 --> 00:15:25.930 But I just wanted to mention one thing on the ruse question, 403 00:15:25.930 --> 00:15:27.790 because obviously it's the court Commonwealth's burden 404 00:15:27.790 --> 00:15:29.760 and I don't believe that they supported that 405 00:15:29.760 --> 00:15:31.040 with sufficient evidence, 406 00:15:31.040 --> 00:15:33.670 but there's also a question of reasonableness of the use of 407 00:15:33.670 --> 00:15:37.080 the ruse and Pagan-Gonzalez, which the Commonwealth cites, 408 00:15:37.080 --> 00:15:38.820 also cites Lefave which says 409 00:15:38.820 --> 00:15:42.660 this is about a consent to a ruse to see something criminal. 410 00:15:42.660 --> 00:15:45.270 There was nothing criminal, in this case. 411 00:15:45.270 --> 00:15:46.610 The government was just using the ruse 412 00:15:46.610 --> 00:15:48.600 for an unlimited general search, 413 00:15:48.600 --> 00:15:50.260 a fishing expedition, if you would, 414 00:15:50.260 --> 00:15:51.940 and I would say to even say, 415 00:15:51.940 --> 00:15:54.040 get to the point where they're allowed to use 416 00:15:54.040 --> 00:15:57.850 that very, very powerful law enforcement tool 417 00:15:57.850 --> 00:15:59.450 with no suspicion, 418 00:15:59.450 --> 00:16:02.563 is also unreasonable under the circumstances. 419 00:16:04.239 --> 00:16:06.530 So are there again, just so I'm trying to understand, 420 00:16:06.530 --> 00:16:11.530 are there cases that say that ruses can't be used by police? 421 00:16:13.300 --> 00:16:17.680 I mean, police unless there's reasonable suspicion 422 00:16:17.680 --> 00:16:21.065 of criminal activity, I'm just tryna get a sense of the - 423 00:16:21.065 --> 00:16:21.935 Thank you, your Honor. 424 00:16:21.935 --> 00:16:22.770 I think I just want to make sure 425 00:16:22.770 --> 00:16:25.410 I cite to the correct case here. 426 00:16:25.410 --> 00:16:28.480 Lewis at page 211 suggests 427 00:16:28.480 --> 00:16:30.720 that there has to be a specific, limited purpose. 428 00:16:30.720 --> 00:16:33.710 But then Gon, Gonzalez at footnote 9 cites to Lefave, 429 00:16:33.710 --> 00:16:35.547 which is just, you know, it's not, it's not the case, 430 00:16:35.547 --> 00:16:38.313 but it is something that you might look at that, 431 00:16:38.313 --> 00:16:40.123 that says that there has to be, 432 00:16:41.260 --> 00:16:43.200 that there is a choice 433 00:16:43.200 --> 00:16:45.330 to expose your criminal activity to other people. 434 00:16:45.330 --> 00:16:47.210 And if you look at all of the cases, 435 00:16:47.210 --> 00:16:49.140 the ruse cases that are cited in my brief 436 00:16:49.140 --> 00:16:50.880 and the Commonwealth's brief, 437 00:16:50.880 --> 00:16:53.770 every one of those cases in the Commonwealth 438 00:16:53.770 --> 00:16:57.155 has a connection to some kind of criminal activity. 439 00:16:57.155 --> 00:16:59.583 But they're gonna be because they were arrested. 440 00:17:01.386 --> 00:17:03.350 'Cause I mean, we can't, 441 00:17:03.350 --> 00:17:05.780 cops can't basically dress as meter readers 442 00:17:05.780 --> 00:17:08.140 and knock on doors and say, "hey, can I come in? 443 00:17:08.140 --> 00:17:10.221 I gotta check the meter." 444 00:17:10.221 --> 00:17:11.054 Which is exactly what they're doing right here. 445 00:17:11.054 --> 00:17:13.300 They see "Frio Fresh," don't know who he is, 446 00:17:13.300 --> 00:17:14.500 don't know anything about him. 447 00:17:14.500 --> 00:17:16.400 They don't, once they find out, is skewed, 448 00:17:16.400 --> 00:17:19.670 they have absolutely no reason to suspect that he's involved 449 00:17:19.670 --> 00:17:20.620 in any kind of crime, 450 00:17:20.620 --> 00:17:23.140 except for the fact that he had an old gun case 451 00:17:23.140 --> 00:17:25.740 when he was younger, that he had served his time on. 452 00:17:27.543 --> 00:17:29.770 So has any, any court imposes 453 00:17:29.770 --> 00:17:33.610 prerequisite on the police for ruses? 454 00:17:33.610 --> 00:17:36.230 I think that there has to be some, you know, 455 00:17:36.230 --> 00:17:37.590 maybe it doesn't have to be him. 456 00:17:37.590 --> 00:17:39.720 Maybe he - I'll, I'll, I'll 457 00:17:39.720 --> 00:17:42.980 I'm showing it a Lefave as you cited, 458 00:17:42.980 --> 00:17:44.600 but nobody's done that, correct? 459 00:17:44.600 --> 00:17:46.150 No, I don't think that there is a case 460 00:17:46.150 --> 00:17:47.140 directly on this point. 461 00:17:47.140 --> 00:17:49.600 I think this is something that you could look at 462 00:17:49.600 --> 00:17:51.100 under article 14, 463 00:17:51.100 --> 00:17:54.890 because I think that there has to be some suspicion 464 00:17:54.890 --> 00:17:56.390 because otherwise the ruses is, 465 00:17:56.390 --> 00:17:58.730 especially when you use technology for it, 466 00:17:58.730 --> 00:18:00.850 it's just a matter of sitting there 467 00:18:00.850 --> 00:18:03.160 and waiting for somebody to commit a crime, 468 00:18:03.160 --> 00:18:04.660 if they in fact do it. 469 00:18:04.660 --> 00:18:07.680 And with almost no police resources - 470 00:18:07.680 --> 00:18:10.650 Now council, what if an undercover police officer 471 00:18:10.650 --> 00:18:14.080 decided to go sit in the Boston Common on a bench and wait. 472 00:18:14.080 --> 00:18:15.747 And eventually somebody came up and said, 473 00:18:15.747 --> 00:18:17.180 "you wanna buy some drugs?" 474 00:18:17.180 --> 00:18:18.480 Well, your Honor, that would be different. 475 00:18:18.480 --> 00:18:19.623 Why? 476 00:18:19.623 --> 00:18:21.560 Because I don't believe this, again, is a private account. 477 00:18:21.560 --> 00:18:22.850 So if you're not accepting the premise 478 00:18:22.850 --> 00:18:25.520 that this is a private account than your analogies' apt. 479 00:18:25.520 --> 00:18:27.973 But if you accept the premise that this was in fact, 480 00:18:27.973 --> 00:18:29.730 a private account where he at least had 481 00:18:29.730 --> 00:18:31.780 some role of letting people in and out, 482 00:18:31.780 --> 00:18:33.530 it doesn't have to be a highly scrutinized role, 483 00:18:33.530 --> 00:18:36.170 but some rule of letting people in and out, 484 00:18:36.170 --> 00:18:37.700 then the people who he's letting in and out 485 00:18:37.700 --> 00:18:40.960 have to actually be people to whom he really consents to. 486 00:18:40.960 --> 00:18:42.750 That is very different than sitting on Boston - 487 00:18:42.750 --> 00:18:43.770 This isn't very different, 488 00:18:43.770 --> 00:18:47.230 you've got somebody who has about a hundred followers, 489 00:18:47.230 --> 00:18:49.390 sends out a Snapchat to people, 490 00:18:49.390 --> 00:18:52.090 including people who he doesn't know, 491 00:18:52.090 --> 00:18:53.600 who he has let in, 492 00:18:53.600 --> 00:18:57.630 and every one of those people can take a screenshot 493 00:18:57.630 --> 00:18:59.077 of that Snapchat. 494 00:18:59.077 --> 00:19:03.780 And in Delgado-Rivera, the police went and took the phone. 495 00:19:03.780 --> 00:19:07.370 Here, they're receiving the information. 496 00:19:07.370 --> 00:19:08.420 There, they took it. 497 00:19:08.420 --> 00:19:10.160 Here, they're just receiving. 498 00:19:10.160 --> 00:19:13.450 Well, your Honor, I would say to that, number one, 499 00:19:13.450 --> 00:19:14.960 he's sending it to all of those people, 500 00:19:14.960 --> 00:19:16.860 and if one of those people brought it to the police, 501 00:19:16.860 --> 00:19:18.200 we'd be in a different situation. 502 00:19:18.200 --> 00:19:20.700 That would be closer, or if the police, you know, 503 00:19:20.700 --> 00:19:22.080 like I said, you know, had a search warrant 504 00:19:22.080 --> 00:19:23.330 for one of those other people's phones 505 00:19:23.330 --> 00:19:24.250 and they saw the Snapchat, 506 00:19:24.250 --> 00:19:26.200 that would be like Delgado-Rivera. 507 00:19:26.200 --> 00:19:28.891 But here the question is, you know, 508 00:19:28.891 --> 00:19:32.061 the police officer became one of those, 509 00:19:32.061 --> 00:19:35.100 those friends by seeking consent. 510 00:19:35.100 --> 00:19:37.068 And I think that, that makes it, 511 00:19:37.068 --> 00:19:39.690 sorry, I lost my train of thought, here. 512 00:19:39.690 --> 00:19:43.760 It makes it somewhat different because you know, 513 00:19:44.663 --> 00:19:46.500 I know that there's a problem with crediting 514 00:19:46.500 --> 00:19:48.040 Mr. Carrasquillo. And the judge said, "well, 515 00:19:48.040 --> 00:19:51.280 I don't know if he knew who he was really friending." 516 00:19:51.280 --> 00:19:52.790 But you can look at it the other way. 517 00:19:52.790 --> 00:19:56.280 Why did he think this police officer was somebody he knew? 518 00:19:56.280 --> 00:19:59.220 What were the attributes that made him think that? 519 00:19:59.220 --> 00:20:00.053 So, you know, 520 00:20:00.053 --> 00:20:01.970 she ultimately ends up discrediting him 521 00:20:01.970 --> 00:20:05.170 because she's looking at it from the first prong. 522 00:20:05.170 --> 00:20:07.420 When, if you look at it from the consent issue, 523 00:20:07.420 --> 00:20:09.760 why does he even think that this police officer, 524 00:20:09.760 --> 00:20:11.860 who incidentally isn't identifying himself 525 00:20:11.860 --> 00:20:12.693 as a police officer, 526 00:20:12.693 --> 00:20:15.460 and we don't know anything else about his profile, 527 00:20:15.460 --> 00:20:18.213 why did he think that this was somebody he knew? 528 00:20:18.213 --> 00:20:20.010 [Justice Wendlandt] Maybe he didn't. 529 00:20:20.010 --> 00:20:21.197 And maybe he didn't, you know, 530 00:20:21.197 --> 00:20:24.290 but we don't have enough facts on this, on this record. 531 00:20:24.290 --> 00:20:26.670 And it's, the court is supposed to be able 532 00:20:26.670 --> 00:20:28.840 to scrutinize the record to figure out where that line 533 00:20:28.840 --> 00:20:30.870 was between consent and coercion. 534 00:20:30.870 --> 00:20:33.040 And you just don't know what happened here 535 00:20:33.040 --> 00:20:35.280 because we don't have the facts. 536 00:20:35.280 --> 00:20:37.530 Can I, can I ask just a distinguishing question? 537 00:20:37.530 --> 00:20:42.170 So the cops often pretend to be young children, 538 00:20:42.170 --> 00:20:47.170 to identify people who are interested in kiddie porn or so, 539 00:20:49.000 --> 00:20:51.670 and they use social media to track that stuff down. 540 00:20:51.670 --> 00:20:52.550 So how do, 541 00:20:52.550 --> 00:20:57.550 how do you distinguish the ruse, that ruse from this ruse? 542 00:20:57.860 --> 00:20:59.370 'Cause there, I take it, 543 00:20:59.370 --> 00:21:01.900 they're just generally exploring out there. 544 00:21:01.900 --> 00:21:03.781 Sorry, it's hard for me to see you. 545 00:21:03.781 --> 00:21:05.962 (Suzanne laughs) 546 00:21:05.962 --> 00:21:08.040 I don't know that they're generally exploring 547 00:21:08.040 --> 00:21:08.873 because your Honor, 548 00:21:08.873 --> 00:21:09.990 I think those are different situations 549 00:21:09.990 --> 00:21:11.850 where they come upon a server 550 00:21:11.850 --> 00:21:13.770 that is sending out child pornography, 551 00:21:13.770 --> 00:21:15.433 and then they're seeing who is actually 552 00:21:15.433 --> 00:21:17.970 attaching themselves to that server. 553 00:21:17.970 --> 00:21:20.810 I'm not saying the technology correctly at all, 554 00:21:20.810 --> 00:21:23.410 but there is actually a suspicion there because the, 555 00:21:24.734 --> 00:21:27.500 because the server hosting the child pornography, 556 00:21:27.500 --> 00:21:30.170 in and of itself is criminal. 557 00:21:30.170 --> 00:21:32.703 I think they're going more broadly than that. 558 00:21:32.703 --> 00:21:35.100 At least, some of the cases we see, 559 00:21:35.100 --> 00:21:37.700 they're, they're out on social media prowling around 560 00:21:39.830 --> 00:21:41.090 in the same way that these, 561 00:21:41.090 --> 00:21:45.300 this gang unit is monitoring things too. 562 00:21:45.300 --> 00:21:47.230 I'm not saying you're not right, 563 00:21:47.230 --> 00:21:50.510 that there should be some guidance maybe, 564 00:21:50.510 --> 00:21:52.560 but I'm just not aware of any. 565 00:21:52.560 --> 00:21:56.600 Well, I would just say that there is a factual distinction 566 00:21:56.600 --> 00:22:00.440 because if they are trying to inculcate themselves 567 00:22:00.440 --> 00:22:03.943 into the child pornography network, 568 00:22:04.940 --> 00:22:07.297 there's already fundamentally a problem there. 569 00:22:07.297 --> 00:22:08.730 And they're inculcating themselves 570 00:22:08.730 --> 00:22:10.710 into Mr. Carrasquillo's social media network, 571 00:22:10.710 --> 00:22:14.113 he's just some random guy, and that is a big distinction. 572 00:22:16.030 --> 00:22:17.111 [Justice Wendlandt] Okay, thank you very much. 573 00:22:17.111 --> 00:22:19.194 Thank you, your Honors. 574 00:22:23.935 --> 00:22:24.983 [Justice Wendlandt] Hey, Mr. MacLean. 575 00:22:30.094 --> 00:22:31.080 Good morning, may I please the court, 576 00:22:31.080 --> 00:22:32.830 Ian MacLean, on behalf of the Commonwealth, 577 00:22:32.830 --> 00:22:34.640 along with the Assistant District Attorney that handled 578 00:22:34.640 --> 00:22:37.540 the case at the trial level behind me, Caitlin Fitzgerald. 579 00:22:39.020 --> 00:22:40.685 Your Honors this court should 580 00:22:40.685 --> 00:22:41.518 affirm the defendant's convictions 581 00:22:41.518 --> 00:22:43.270 because the defendant failed to meet either prong 582 00:22:43.270 --> 00:22:45.160 of his burden of establishing a reasonable 583 00:22:45.160 --> 00:22:46.730 expectation of privacy. 584 00:22:46.730 --> 00:22:48.430 The case is that simple. 585 00:22:48.430 --> 00:22:50.260 We begin with the subjective prong, 586 00:22:50.260 --> 00:22:52.090 the defendant offered his own testimony, 587 00:22:52.090 --> 00:22:53.700 which was expressly discredited, 588 00:22:53.700 --> 00:22:55.940 his testimony about the privacy settings 589 00:22:55.940 --> 00:22:58.480 he employed on his account and who the people he was - 590 00:22:58.480 --> 00:23:01.740 We need to review the record to see if, if, 591 00:23:01.740 --> 00:23:04.060 if in fact it's supported or if it's clearly erroneous, 592 00:23:04.060 --> 00:23:06.440 but let's skip to objective. 593 00:23:06.440 --> 00:23:07.672 Yes, your Honor. 594 00:23:07.672 --> 00:23:09.960 That the nature and what's marketed 595 00:23:09.960 --> 00:23:12.520 as I understand it about Snapchat 596 00:23:12.520 --> 00:23:15.210 is it's a femoral, it's a femoral message 597 00:23:15.210 --> 00:23:18.820 as opposed to other means social media. 598 00:23:18.820 --> 00:23:22.690 How does that not fit footnote seven of Delgado-Rivera? 599 00:23:22.690 --> 00:23:24.260 Well, your Honor, the features of the, 600 00:23:24.260 --> 00:23:26.330 of the social media application that exists 601 00:23:26.330 --> 00:23:28.270 that were employed would feature into the analysis. 602 00:23:28.270 --> 00:23:30.750 As this court noted in Delgado-Rivera, 603 00:23:30.750 --> 00:23:33.290 it's basically a totality of the circumstances task 604 00:23:33.290 --> 00:23:35.100 to evaluate what steps this person 605 00:23:35.100 --> 00:23:37.070 took to attempt to maintain any privacy. 606 00:23:37.070 --> 00:23:39.740 Right, so he's not sending a video out on the Instagram. 607 00:23:39.740 --> 00:23:40.940 He's not putting it on Facebook, 608 00:23:40.940 --> 00:23:42.960 he's doing it on something that's meant to disappear. 609 00:23:42.960 --> 00:23:44.270 Now whether it doesn't, 610 00:23:44.270 --> 00:23:48.640 people with more dexterous thumbs than me can screenshot, 611 00:23:48.640 --> 00:23:49.830 it's a different matter. 612 00:23:49.830 --> 00:23:52.760 But the marketing in the nature of Snapchat, 613 00:23:52.760 --> 00:23:54.980 is it disappears, correct? 614 00:23:54.980 --> 00:23:55.813 Correct, your Honor. 615 00:23:55.813 --> 00:23:58.440 With 24 of this, using this feature, the Story feature, 616 00:23:58.440 --> 00:24:00.220 when you post an image or a video, 617 00:24:00.220 --> 00:24:02.150 it remains available to all of the people 618 00:24:02.150 --> 00:24:04.710 that you have friended for a 24-hour period. 619 00:24:04.710 --> 00:24:05.900 For an unlimited number of times, 620 00:24:05.900 --> 00:24:08.270 they can access it in that 24-hour period. 621 00:24:08.270 --> 00:24:10.580 And I point you to transcript 14 for the discussion 622 00:24:10.580 --> 00:24:12.984 of the basic features of Snapchat in this record. 623 00:24:12.984 --> 00:24:15.974 Can we go back to footnote seven because - 624 00:24:15.974 --> 00:24:18.246 Can I get the answer to that question? 625 00:24:18.246 --> 00:24:20.570 So your Honor, it is a factor that would be considered, 626 00:24:20.570 --> 00:24:22.850 but it is essentially almost no import here 627 00:24:22.850 --> 00:24:24.347 because once the image is sent out 628 00:24:24.347 --> 00:24:27.200 and the defendant has lost control of it to the recipient, 629 00:24:27.200 --> 00:24:29.670 they have unlimited access for 24 hours. 630 00:24:29.670 --> 00:24:31.230 They can show it to as many people 631 00:24:31.230 --> 00:24:33.100 on their own devices they want to. 632 00:24:33.100 --> 00:24:34.310 As I believe your Honor pointed out 633 00:24:34.310 --> 00:24:36.380 during closing counsel's argument, 634 00:24:36.380 --> 00:24:37.820 they can take a screenshot of it, 635 00:24:37.820 --> 00:24:40.830 they can record it, they can memorialize it themselves. 636 00:24:40.830 --> 00:24:43.330 They could then upload it anywhere to anyone in the world, 637 00:24:43.330 --> 00:24:44.900 almost exactly as this court noted 638 00:24:44.900 --> 00:24:47.090 with the text message in Delgado-Rivera. 639 00:24:47.090 --> 00:24:48.920 Once the sender has lost control 640 00:24:48.920 --> 00:24:51.060 of the content to the recipient, 641 00:24:51.060 --> 00:24:52.610 they no longer have an objectively reasonable 642 00:24:52.610 --> 00:24:53.980 expectation of privacy. 643 00:24:53.980 --> 00:24:57.200 Here because Snapchat allows that image or video 644 00:24:57.200 --> 00:24:59.420 to be available for 24 hours, 645 00:24:59.420 --> 00:25:00.810 in an unlimited number of times 646 00:25:00.810 --> 00:25:02.690 for that recipient to access it, 647 00:25:02.690 --> 00:25:03.990 it's essentially the same. 648 00:25:03.990 --> 00:25:06.120 They've completely lost control of the content 649 00:25:06.120 --> 00:25:07.420 of the communication. 650 00:25:07.420 --> 00:25:09.543 You've answered my question, thank you. 651 00:25:10.820 --> 00:25:12.150 I didn't know that. 652 00:25:12.150 --> 00:25:15.350 So when, when you send something out on Snapchat, 653 00:25:15.350 --> 00:25:19.320 I thought it did disappear in the question left open 654 00:25:19.320 --> 00:25:22.160 in footnote seven of Delgado-Rivera, 655 00:25:22.160 --> 00:25:23.710 it's a question, not an answer, 656 00:25:24.600 --> 00:25:26.287 that we might have to address it, 657 00:25:26.287 --> 00:25:29.633 but I didn't understand that was the technology. 658 00:25:29.633 --> 00:25:31.716 Your Honor, there are two different primary functions 659 00:25:31.716 --> 00:25:32.549 that Snapchat has. 660 00:25:32.549 --> 00:25:35.090 I could send, if you and I were friends on Snapchat, 661 00:25:35.090 --> 00:25:37.190 I could send you directly an image. 662 00:25:37.190 --> 00:25:38.023 And in the settings, 663 00:25:38.023 --> 00:25:39.870 I can determine how long that image will exist 664 00:25:39.870 --> 00:25:42.370 before it then disappears and it's gone forever. 665 00:25:42.370 --> 00:25:44.630 I could set it as short as just a few seconds, 666 00:25:44.630 --> 00:25:47.150 but if I've posted something to what we commonly refer 667 00:25:47.150 --> 00:25:48.610 to as my Story, 668 00:25:48.610 --> 00:25:50.860 meaning every person who I've friended can see it, 669 00:25:50.860 --> 00:25:53.360 it remains available for 24 hours 670 00:25:53.360 --> 00:25:54.850 and every friend can access it 671 00:25:54.850 --> 00:25:56.350 as many times as they want to, 672 00:25:56.350 --> 00:25:57.860 unless I take the affirmative step 673 00:25:57.860 --> 00:26:00.420 of then deleting an image or a video from my Story. 674 00:26:00.420 --> 00:26:03.010 All right, I'm sorry that this was so far over my head, 675 00:26:03.010 --> 00:26:06.200 but do we know which one of those occurred in this case? 676 00:26:06.200 --> 00:26:08.930 Your Honor, he was posting images to his Story, 677 00:26:08.930 --> 00:26:13.930 and you can see that in the transcript at 14, 678 00:26:14.330 --> 00:26:17.000 where again when he's describing his understood, 679 00:26:17.000 --> 00:26:18.650 the officer's describing his understanding 680 00:26:18.650 --> 00:26:21.330 of how the Snapchat functions, how it works itself. 681 00:26:21.330 --> 00:26:22.700 And that he had to friend the person, 682 00:26:22.700 --> 00:26:26.240 and then once you were friended at, I believe it was 33, 683 00:26:26.240 --> 00:26:27.800 he indicated that he could see them - 684 00:26:27.800 --> 00:26:30.480 If this thing was available for 24 hours 685 00:26:30.480 --> 00:26:34.640 and was readily saveable, 686 00:26:34.640 --> 00:26:36.290 how come the cops couldn't do it? 687 00:26:37.420 --> 00:26:39.000 Your Honor, I think you have a slight confusion 688 00:26:39.000 --> 00:26:39.833 about the facts here. 689 00:26:39.833 --> 00:26:42.120 There were two separate videos that were viewed. 690 00:26:42.120 --> 00:26:44.660 One was saved and actually I introduced 691 00:26:44.660 --> 00:26:46.460 into evidence as exhibit one. 692 00:26:46.460 --> 00:26:48.260 That was the video that showed the defendant, 693 00:26:48.260 --> 00:26:49.700 holding the gun itself. 694 00:26:49.700 --> 00:26:51.330 The second video that was observed 695 00:26:51.330 --> 00:26:54.317 is how the officers were able to think where he was, 696 00:26:54.317 --> 00:26:55.660 'cause they recognized the background. 697 00:26:55.660 --> 00:26:58.525 That video was deleted before they were able to memorialize. 698 00:26:58.525 --> 00:27:00.400 Was that a Story or was that the second type? 699 00:27:00.400 --> 00:27:02.369 Story, your Honor. 700 00:27:02.369 --> 00:27:03.269 But no - 701 00:27:03.269 --> 00:27:04.102 [Justice Wendlandt] The second one. 702 00:27:04.102 --> 00:27:05.629 The second's down - 703 00:27:05.629 --> 00:27:06.508 [Justice Wendlandt] The one recognized. 704 00:27:06.508 --> 00:27:08.660 That gave them the location, 705 00:27:08.660 --> 00:27:10.830 was that a story or is it the other thing? 706 00:27:10.830 --> 00:27:12.447 It's our understanding that it's a Story, your Honor. 707 00:27:12.447 --> 00:27:14.440 And that's because the officer testified 708 00:27:14.440 --> 00:27:16.760 that he never had any direct one-on-one communications 709 00:27:16.760 --> 00:27:17.593 with the defendant. 710 00:27:17.593 --> 00:27:20.100 So from that we infer that because he was able to see it 711 00:27:20.100 --> 00:27:21.810 and he never had any direct communications 712 00:27:21.810 --> 00:27:24.470 it had to have been a posting to the Story. 713 00:27:24.470 --> 00:27:26.550 That the defendant must have for some reason, 714 00:27:26.550 --> 00:27:29.110 chosen to enter his Snapchat application 715 00:27:29.110 --> 00:27:30.580 and take that video down. 716 00:27:30.580 --> 00:27:31.840 And that's why it didn't remain there 717 00:27:31.840 --> 00:27:33.940 for them to access it again, to record it. 718 00:27:35.630 --> 00:27:39.220 I should probably ask my children this instead of you. 719 00:27:39.220 --> 00:27:42.650 But if, if somebody sends a personal Snapchat 720 00:27:42.650 --> 00:27:46.110 to somebody else and they say that it's only good 721 00:27:46.110 --> 00:27:49.980 for a couple of seconds, those couple of seconds don't start 722 00:27:49.980 --> 00:27:51.740 until the person opens it up 723 00:27:51.740 --> 00:27:53.330 and gets a chance to look at it, right? 724 00:27:53.330 --> 00:27:54.990 Right, your Honor, correct your Honor. 725 00:27:54.990 --> 00:27:57.260 Is this a different case with the couple seconds snap 726 00:27:57.260 --> 00:27:58.353 versus the Story? 727 00:27:59.650 --> 00:28:01.570 Respectfully, no, your Honor. 728 00:28:01.570 --> 00:28:04.990 If I, if the defendant had sent a Snapchat message 729 00:28:04.990 --> 00:28:06.820 to a direct friend, 730 00:28:06.820 --> 00:28:09.310 that person still has complete access over it 731 00:28:09.310 --> 00:28:10.410 while the image shows up, 732 00:28:10.410 --> 00:28:11.760 but just takes a click of the phone 733 00:28:11.760 --> 00:28:14.631 to create a screenshot image of it, 734 00:28:14.631 --> 00:28:15.650 and then you have it permanently. 735 00:28:15.650 --> 00:28:19.170 So he still lost control of the content 736 00:28:19.170 --> 00:28:20.510 if he had would have taken an additional - 737 00:28:20.510 --> 00:28:23.440 Well, how do you justify that answer 738 00:28:23.440 --> 00:28:26.280 in light of our jurisprudence under Blood? 739 00:28:26.280 --> 00:28:27.280 I mean, at that point, 740 00:28:27.280 --> 00:28:32.070 he's just talking to somebody effectively in his home 741 00:28:32.070 --> 00:28:35.030 under Justice Gaziano's analysis. 742 00:28:35.030 --> 00:28:36.990 So your Honor, in, in Delgado-Rivera, 743 00:28:36.990 --> 00:28:38.770 we factor in all of the circumstances. 744 00:28:38.770 --> 00:28:40.500 So that certainly would be a circumstance 745 00:28:40.500 --> 00:28:41.970 that would be factored in, 746 00:28:41.970 --> 00:28:44.650 how, what specific function he was using within Snapchat 747 00:28:44.650 --> 00:28:47.499 and how he had altered the settings or whatever. 748 00:28:47.499 --> 00:28:49.740 So your answer to Justice Gaziano's question is 749 00:28:49.740 --> 00:28:52.750 yes, it depends, not, it's the same. 750 00:28:52.750 --> 00:28:54.930 But my answer is it sort of, your Honor, 751 00:28:54.930 --> 00:28:56.670 my answer is it factors into the analysis 752 00:28:56.670 --> 00:28:57.503 because it's essentially - 753 00:28:57.503 --> 00:28:59.480 But it's loading, 754 00:28:59.480 --> 00:29:01.320 you basically want all social media 755 00:29:01.320 --> 00:29:05.110 to be open to the police, if that's the case. 756 00:29:05.110 --> 00:29:05.943 Your Honor, here, 757 00:29:05.943 --> 00:29:08.130 it's social media that the defendant chose to friend 758 00:29:08.130 --> 00:29:09.670 an undercover officer to. 759 00:29:09.670 --> 00:29:12.511 So drawing an analogy to the line of ruse cases 760 00:29:12.511 --> 00:29:13.344 that someone - 761 00:29:13.344 --> 00:29:14.340 Then we shouldn't have written 762 00:29:14.340 --> 00:29:17.693 the footnote seven in Delgado-Rivera. 763 00:29:18.739 --> 00:29:20.000 I, I would disagree with that as well, your Honor. 764 00:29:20.000 --> 00:29:22.610 It is that the features of the device being used 765 00:29:22.610 --> 00:29:24.590 are something that could be factored into your analysis. 766 00:29:24.590 --> 00:29:28.591 You want to factor it in, but it's, it's, it's, it's, 767 00:29:28.591 --> 00:29:30.560 it's a nothing burger under your analysis, right? 768 00:29:30.560 --> 00:29:32.248 (all laughs) 769 00:29:32.248 --> 00:29:35.260 I guess I don't understand how one does not 770 00:29:35.260 --> 00:29:37.940 have a reasonable expectation of privacy 771 00:29:37.940 --> 00:29:40.450 on a direct message snap that one sends 772 00:29:40.450 --> 00:29:41.990 and deletes in, in a second. 773 00:29:41.990 --> 00:29:44.020 I mean, that seems like your, 774 00:29:44.020 --> 00:29:46.610 your definition of privacy is very narrow. 775 00:29:46.610 --> 00:29:48.360 Once you've taken it down to a second as, 776 00:29:48.360 --> 00:29:50.260 as the Commonwealth conceives all of these things 777 00:29:50.260 --> 00:29:51.480 will be factored into the analysis 778 00:29:51.480 --> 00:29:52.730 and the totality of circumstances. 779 00:29:52.730 --> 00:29:55.120 Once you've taken it down, setting down to a second, 780 00:29:55.120 --> 00:29:57.290 you're not much closer to the hypothetical you posted up to 781 00:29:57.290 --> 00:30:00.000 being essentially the equivalent of a communication, 782 00:30:00.000 --> 00:30:00.980 a direct communication. 783 00:30:00.980 --> 00:30:02.560 But what if it's an hour? 784 00:30:02.560 --> 00:30:03.820 An hour would mean I would have, 785 00:30:03.820 --> 00:30:04.930 I could set the phone down, 786 00:30:04.930 --> 00:30:06.040 go for a walk, come back, 787 00:30:06.040 --> 00:30:08.127 and it was still be there available to me. 788 00:30:08.127 --> 00:30:11.050 It would be so easy for a person to take a screen capture 789 00:30:11.050 --> 00:30:14.310 or take a video of it, to memorialize it, permanently. 790 00:30:14.310 --> 00:30:15.700 But then you're getting to a real problem here, 791 00:30:15.700 --> 00:30:18.260 because if we're supposed to be providing guidance 792 00:30:18.260 --> 00:30:20.100 to the lower courts, 793 00:30:20.100 --> 00:30:22.800 where are we going to draw the line then? 794 00:30:22.800 --> 00:30:23.633 Well, respectfully, your Honor, 795 00:30:23.633 --> 00:30:25.610 it's the totality of the circumstance type test 796 00:30:25.610 --> 00:30:27.400 as so many other legal tests exists. 797 00:30:27.400 --> 00:30:28.807 Sure, but it could - 798 00:30:28.807 --> 00:30:30.351 Evaluated on a fact by fact, in a case by case, 799 00:30:30.351 --> 00:30:31.184 and fact by fact basis. 800 00:30:31.184 --> 00:30:33.360 Here, the defendant didn't do anything 801 00:30:33.360 --> 00:30:36.510 to maintain any semblance of privacy over his account. 802 00:30:36.510 --> 00:30:39.360 He was posting the videos we're talking about in this case, 803 00:30:39.360 --> 00:30:42.073 to his Story, making them available for 24 hours. 804 00:30:43.120 --> 00:30:45.050 Let's, let's, let's assume for the sake of argument 805 00:30:45.050 --> 00:30:46.510 that he has demonstrated 806 00:30:46.510 --> 00:30:48.717 a subjective expectation of privacy. 807 00:30:48.717 --> 00:30:52.530 Can we go to, whether that is reasonable in this day and age 808 00:30:52.530 --> 00:30:54.387 with the way social media is handled 809 00:30:54.387 --> 00:30:57.394 and the way people get into accounts, 810 00:30:57.394 --> 00:31:00.150 and why does anybody have an objectively reasonable 811 00:31:00.150 --> 00:31:04.830 expectation of privacy in any, any electronic communication? 812 00:31:04.830 --> 00:31:06.070 Well, respectfully your Honor, 813 00:31:06.070 --> 00:31:07.860 employing the analysis this court just used 814 00:31:07.860 --> 00:31:08.870 in the Delgado-Rivera, 815 00:31:08.870 --> 00:31:10.680 it's once you've lost control over it, 816 00:31:10.680 --> 00:31:13.110 it's the same analysis that have been used, 817 00:31:13.110 --> 00:31:14.800 starting with letters, then through packages, 818 00:31:14.800 --> 00:31:18.110 then emails, phone calls, text messages, most recently, 819 00:31:18.110 --> 00:31:19.170 You have the expectation 820 00:31:19.170 --> 00:31:21.090 while you still control the information. 821 00:31:21.090 --> 00:31:22.680 Then while it's in transit, 822 00:31:22.680 --> 00:31:24.880 was a letter or a package as UPS is shipping it - 823 00:31:24.880 --> 00:31:27.850 Well, but those are covered by federal regulation. 824 00:31:27.850 --> 00:31:31.190 Letters are covered by the mail laws. 825 00:31:31.190 --> 00:31:32.823 Yes, your Honor, but the, 826 00:31:32.823 --> 00:31:33.900 the reasonable expectation of privacy analysis 827 00:31:33.900 --> 00:31:35.000 is still the same. 828 00:31:35.000 --> 00:31:37.760 We recognize a reasonable expectation of privacy while the, 829 00:31:37.760 --> 00:31:40.220 the information or the content of the package 830 00:31:40.220 --> 00:31:42.230 is sealed and in transit. 831 00:31:42.230 --> 00:31:44.280 But once the recipient receives it, 832 00:31:44.280 --> 00:31:46.690 the sender has lost all control over it. 833 00:31:46.690 --> 00:31:50.100 And then that basically means your initial subject 834 00:31:50.100 --> 00:31:52.310 of expectation is no longer objectively reasonable 835 00:31:52.310 --> 00:31:55.570 because as the recipient, I can disseminate it to anyone. 836 00:31:55.570 --> 00:31:57.730 When we get down to using a tool 837 00:31:57.730 --> 00:32:00.320 that would only make the information available for a second 838 00:32:00.320 --> 00:32:01.610 or a fraction of a second, 839 00:32:01.610 --> 00:32:04.993 you're much closer than to a one-to-one communication. 840 00:32:05.880 --> 00:32:07.370 But again, that's not what happened here. 841 00:32:07.370 --> 00:32:10.320 He sent videos that were available for a 24-hour period 842 00:32:10.320 --> 00:32:13.120 to every one of his people on his friends list, 843 00:32:13.120 --> 00:32:14.250 and it's clear from the record 844 00:32:14.250 --> 00:32:17.190 he was employing no real security protocol. 845 00:32:17.190 --> 00:32:18.240 So we're sort of in the realm of, 846 00:32:18.240 --> 00:32:20.480 kind of like the D'Onofrio case from quite a while ago, 847 00:32:20.480 --> 00:32:21.530 where it was a private club 848 00:32:21.530 --> 00:32:24.370 that had a policy about security measures. 849 00:32:24.370 --> 00:32:25.630 But just because they had a policy 850 00:32:25.630 --> 00:32:27.540 doesn't mean they were actually employing it. 851 00:32:27.540 --> 00:32:30.440 Which essentially meant the doors are open to our business, 852 00:32:30.440 --> 00:32:33.160 which is basically what the defendant did here. 853 00:32:33.160 --> 00:32:34.367 Someone sent him a friend request 854 00:32:34.367 --> 00:32:36.130 and he just accepted the friend request 855 00:32:36.130 --> 00:32:38.920 and then voluntarily chose to send them information. 856 00:32:38.920 --> 00:32:40.060 When he did that, 857 00:32:40.060 --> 00:32:42.320 when he voluntarily sent them the information, 858 00:32:42.320 --> 00:32:44.300 he lost control over the information. 859 00:32:44.300 --> 00:32:46.250 Now, counsel, could you answer, 860 00:32:46.250 --> 00:32:49.100 'cause you brought up the D'Onofrio case, 861 00:32:49.100 --> 00:32:51.620 your, your Assistant's argument about, 862 00:32:51.620 --> 00:32:53.240 but at least in that case, 863 00:32:53.240 --> 00:32:56.180 they had a suspicion of criminal activity 864 00:32:56.180 --> 00:32:58.220 that they were investigating. 865 00:32:58.220 --> 00:32:59.980 This, this isn't that. 866 00:32:59.980 --> 00:33:02.530 There was no indication here that, 867 00:33:02.530 --> 00:33:04.390 that the defendant had been involved 868 00:33:04.390 --> 00:33:08.410 in any criminal activity, when the friend request was made, 869 00:33:08.410 --> 00:33:09.840 when the ruse was employed. 870 00:33:09.840 --> 00:33:12.845 Correct, your Honor and there doesn't need to be. 871 00:33:12.845 --> 00:33:14.965 An undercover officer, could in Boston Common 872 00:33:14.965 --> 00:33:16.840 dress himself with the appearance 873 00:33:16.840 --> 00:33:18.990 of what he thinks a typical drug user looks like 874 00:33:18.990 --> 00:33:20.930 and randomly approach people in Boston Common 875 00:33:20.930 --> 00:33:22.950 to see if they're willing to sell him drugs or not. 876 00:33:22.950 --> 00:33:25.650 He doesn't have to have even a reasonable suspicion 877 00:33:26.485 --> 00:33:28.220 to engage in a voluntary encounter with a citizen somewhere. 878 00:33:28.220 --> 00:33:29.650 That's basically what happened here. 879 00:33:29.650 --> 00:33:31.742 Well, not really, because in that case, you're, 880 00:33:31.742 --> 00:33:34.700 the police officers kind of creating it, right? 881 00:33:34.700 --> 00:33:36.920 Because you're going in, you're affirmatively asking, 882 00:33:36.920 --> 00:33:39.420 you know, can, you have drugs to sell? 883 00:33:39.420 --> 00:33:40.590 In this case, the, the, 884 00:33:40.590 --> 00:33:44.193 the point I was making that your counsel referenced, 885 00:33:45.100 --> 00:33:47.090 going back and saying, 886 00:33:47.090 --> 00:33:50.905 you can just sit back and watch, right? 887 00:33:50.905 --> 00:33:51.830 You, you employ the ruse, 888 00:33:51.830 --> 00:33:55.080 You have no suspicion of any criminal activity, 889 00:33:55.080 --> 00:33:56.750 but now you get into Mora, right? 890 00:33:56.750 --> 00:33:57.870 Where you're just sitting back 891 00:33:57.870 --> 00:34:00.320 and just waiting for somebody to step in it. 892 00:34:00.320 --> 00:34:01.930 Well, I have two responses, your Honor. 893 00:34:01.930 --> 00:34:04.180 First, I'd say it's categorically different than Mora 894 00:34:04.180 --> 00:34:06.950 where it's surreptitiously recording everything 895 00:34:06.950 --> 00:34:07.783 that you're doing. 896 00:34:07.783 --> 00:34:09.500 Where in Mora, it was the outside of your house. 897 00:34:09.500 --> 00:34:11.390 So who's coming and going, when they're coming and going, 898 00:34:11.390 --> 00:34:13.524 interfering with your associations. 899 00:34:13.524 --> 00:34:14.870 Here, the only information that they're accessing 900 00:34:14.870 --> 00:34:17.350 is what the defendant himself is voluntarily choosing 901 00:34:17.350 --> 00:34:19.300 to send directly to them. 902 00:34:19.300 --> 00:34:21.460 So it's categorically different from Mora in that regard. 903 00:34:21.460 --> 00:34:23.070 Second response would, 904 00:34:23.070 --> 00:34:24.660 would loop in Justice Kafker's point 905 00:34:24.660 --> 00:34:27.020 about the To Catch A Predator type of cases. 906 00:34:27.020 --> 00:34:31.010 Where an undercover officer will pose as a minor or a child, 907 00:34:31.010 --> 00:34:34.690 and then work their way into communication networks. 908 00:34:34.690 --> 00:34:35.900 In the older days, 909 00:34:35.900 --> 00:34:37.610 when I worked those cases at the U.S. Attorney's Office, 910 00:34:37.610 --> 00:34:39.910 it was message boards, they were communicating on. 911 00:34:39.910 --> 00:34:41.340 I'm not current with how they're doing it now, 912 00:34:41.340 --> 00:34:42.950 but they must be using tools 913 00:34:43.805 --> 00:34:46.670 like Snapchat, Facebook, other social media applications, 914 00:34:46.670 --> 00:34:49.270 to work themselves into these communication networks, 915 00:34:49.270 --> 00:34:51.520 to see who then they should be taking a closer look at. 916 00:34:51.520 --> 00:34:54.290 It's basically the same activity here. 917 00:34:54.290 --> 00:34:56.500 This gets more concerning, 918 00:34:56.500 --> 00:34:59.620 in the breadth of this is kind of, 919 00:34:59.620 --> 00:35:01.590 is what seems to be worrisome. 920 00:35:01.590 --> 00:35:04.340 So under your approach, 921 00:35:04.340 --> 00:35:09.250 and I get that cops are doing this to detect porn 922 00:35:09.250 --> 00:35:11.510 and other things, particularly kitty porn and other things, 923 00:35:11.510 --> 00:35:15.020 but we're basically, you're basically saying that 924 00:35:15.020 --> 00:35:19.910 they can just go out on social media and go exploring. 925 00:35:19.910 --> 00:35:22.770 Any public, and you may be right, 926 00:35:22.770 --> 00:35:25.730 but it is concerning that they can just basically 927 00:35:25.730 --> 00:35:28.663 look through everyone's social media accounts, 928 00:35:30.280 --> 00:35:35.090 particularly any public aspects of those media accounts 929 00:35:35.090 --> 00:35:38.653 and sort of you know, basically go hunting. 930 00:35:40.200 --> 00:35:41.033 Is that right? 931 00:35:41.033 --> 00:35:43.890 'Cause you're essentially saying they can do that, right? 932 00:35:43.890 --> 00:35:44.723 Yes, your Honor. 933 00:35:44.723 --> 00:35:47.050 Just as any law enforcement officer can have a voluntary 934 00:35:47.050 --> 00:35:49.420 encounter with any citizen on any street corner. 935 00:35:49.420 --> 00:35:50.470 It's a little different though, 936 00:35:50.470 --> 00:35:52.920 when we're talking about social media, which is, 937 00:35:52.920 --> 00:35:56.330 as you know, basically the Supreme court says in Carpenter, 938 00:35:56.330 --> 00:35:59.433 you know, our whole lives are out on social media, right? 939 00:36:01.159 --> 00:36:03.890 And so the police now have, I'm not, again, 940 00:36:03.890 --> 00:36:05.380 I'm not saying they can't do this, 941 00:36:05.380 --> 00:36:09.000 but it's concerning that they have complete access 942 00:36:09.000 --> 00:36:11.550 to this unlimited amount of social media 943 00:36:13.730 --> 00:36:15.173 for all of us, right? 944 00:36:16.050 --> 00:36:16.883 No, your Honor. 945 00:36:16.883 --> 00:36:19.670 And I disagree with the analogy to Carpenter and the, 946 00:36:19.670 --> 00:36:23.087 then the cell phones becoming an appendage 947 00:36:23.087 --> 00:36:24.600 and an essential part of modern life. 948 00:36:24.600 --> 00:36:26.440 You can use social media here 949 00:36:26.440 --> 00:36:28.670 without friending unknown people. 950 00:36:28.670 --> 00:36:29.503 Right. 951 00:36:29.503 --> 00:36:31.330 Just as you can allow people into your house 952 00:36:31.330 --> 00:36:33.460 and exclude unknown people. 953 00:36:33.460 --> 00:36:35.170 And is that would be completely permissible 954 00:36:35.170 --> 00:36:36.260 in the context of a house, 955 00:36:36.260 --> 00:36:37.870 which we consider first among equals 956 00:36:37.870 --> 00:36:39.670 for privacy protections. 957 00:36:39.670 --> 00:36:42.730 You can't afford more protections to someone's social media 958 00:36:42.730 --> 00:36:44.310 than to the front door of their house. 959 00:36:44.310 --> 00:36:45.830 Right, I know, but the problem we have is 960 00:36:45.830 --> 00:36:49.740 that our social media is revealing of our personal lives 961 00:36:49.740 --> 00:36:52.190 as our house is at this point. 962 00:36:52.190 --> 00:36:54.253 So it gets tricky. 963 00:36:55.240 --> 00:36:56.760 Only what you what you choose 964 00:36:56.760 --> 00:36:58.520 or volunteer to put out there. 965 00:36:58.520 --> 00:37:00.330 Right, I getcha. 966 00:37:00.330 --> 00:37:01.340 You can participate in modern life as I do, 967 00:37:01.340 --> 00:37:03.810 without being a participant on social media networks. 968 00:37:03.810 --> 00:37:05.340 That's a choice that someone has made, 969 00:37:05.340 --> 00:37:06.640 just as you would make a choice 970 00:37:06.640 --> 00:37:08.310 when someone knocks on your front door, 971 00:37:08.310 --> 00:37:09.750 whether to let them in or not. 972 00:37:09.750 --> 00:37:11.670 The check that you employ there in the, 973 00:37:11.670 --> 00:37:13.970 at your front door is listening to their voice, 974 00:37:13.970 --> 00:37:15.010 do you recognize the voice, 975 00:37:15.010 --> 00:37:15.843 looking through the peephole, 976 00:37:15.843 --> 00:37:16.930 do you recognize the person, 977 00:37:16.930 --> 00:37:18.250 do you want to let them in or not? 978 00:37:18.250 --> 00:37:20.310 That's employing some level of security 979 00:37:20.310 --> 00:37:23.820 and the burden or the onus is on the person in their house. 980 00:37:23.820 --> 00:37:25.200 In the social media context, 981 00:37:25.200 --> 00:37:27.760 you still have to employ some level of security, 982 00:37:27.760 --> 00:37:28.990 some level of check. 983 00:37:28.990 --> 00:37:31.526 If you just let anybody in who solicits, 984 00:37:31.526 --> 00:37:33.570 you have an open door policy, 985 00:37:33.570 --> 00:37:35.510 and they can view whatever you choose to put out there 986 00:37:35.510 --> 00:37:37.550 into the world and you vitiated any objectively 987 00:37:37.550 --> 00:37:39.250 reasonable expectation of privacy. 988 00:37:40.866 --> 00:37:44.140 If we get past the subjective expectation of privacy here, 989 00:37:44.140 --> 00:37:45.460 and we're looking at the objective, 990 00:37:45.460 --> 00:37:47.300 do we need to address the defendant's 991 00:37:47.300 --> 00:37:49.743 argument property-based argument? 992 00:37:50.587 --> 00:37:54.460 No, your Honor, there's no property interest in the, 993 00:37:54.460 --> 00:37:56.330 in the content of the communication. 994 00:37:56.330 --> 00:37:58.880 Once you have sent it out to a hundred people 995 00:37:58.880 --> 00:38:00.630 with their ability to have complete 996 00:38:01.535 --> 00:38:02.400 and unfettered access to it for 24 hours 997 00:38:02.400 --> 00:38:04.290 to duplicate it in any way they choose 998 00:38:04.290 --> 00:38:06.810 and to send it on to anyone they choose to. 999 00:38:06.810 --> 00:38:10.210 You've lost any, any even arguable property interest 1000 00:38:10.210 --> 00:38:11.210 that you would have, 1001 00:38:12.175 --> 00:38:15.110 which in part is through the ability to excise or exercise 1002 00:38:15.110 --> 00:38:16.400 exclusive community control, 1003 00:38:16.400 --> 00:38:18.290 and we've given that part in parcel 1004 00:38:18.290 --> 00:38:19.480 with losing control over it, 1005 00:38:19.480 --> 00:38:22.213 just as the text messages in Delgado-Rivera. 1006 00:38:23.683 --> 00:38:26.183 Can I ask you one last question for, for me anyway. 1007 00:38:27.680 --> 00:38:31.500 When do we measure the reasonable expectation of privacy 1008 00:38:31.500 --> 00:38:33.290 and the consent issue? 1009 00:38:33.290 --> 00:38:34.143 Is it, 1010 00:38:35.070 --> 00:38:38.849 is it with each story posts? 1011 00:38:38.849 --> 00:38:40.430 You know, did I have a reasonable expectation of privacy 1012 00:38:40.430 --> 00:38:41.510 in that post? 1013 00:38:41.510 --> 00:38:42.617 Or is it vis-à-vis the account? 1014 00:38:42.617 --> 00:38:46.030 'Cause it seems like we're all talking about the account, 1015 00:38:46.030 --> 00:38:49.680 but each time one posts a Story on Snapchat, 1016 00:38:49.680 --> 00:38:52.120 you make a choice as to who you send it to. 1017 00:38:52.120 --> 00:38:55.750 It sounds like you can direct, directly snap a person 1018 00:38:55.750 --> 00:38:58.678 for a particular period of time, but then you can also snap, 1019 00:38:58.678 --> 00:39:01.170 you know, everybody who you're friends with 1020 00:39:01.170 --> 00:39:03.380 and you can also unfriend people, right? 1021 00:39:03.380 --> 00:39:05.400 So each time you post something, 1022 00:39:05.400 --> 00:39:09.200 there's a choice that you're making as the user of Snapchat. 1023 00:39:09.200 --> 00:39:11.590 Is that when we measure the reasonable expectation 1024 00:39:11.590 --> 00:39:13.600 of privacy or is it vis-à-vis the account 1025 00:39:13.600 --> 00:39:15.660 as a whole once set up? 1026 00:39:15.660 --> 00:39:17.630 Well, your Honor, I think under Delgado-Rivera, 1027 00:39:17.630 --> 00:39:18.760 totality of the circumstances, 1028 00:39:18.760 --> 00:39:20.230 so you'd have to factor in the ability 1029 00:39:20.230 --> 00:39:21.670 to change your privacy settings 1030 00:39:21.670 --> 00:39:24.330 on every individual interaction. 1031 00:39:24.330 --> 00:39:27.390 So as the defendant testified to the officer, did not, 1032 00:39:27.390 --> 00:39:28.550 the defendant testified some, 1033 00:39:28.550 --> 00:39:30.740 you can make a choice for each individual post, 1034 00:39:30.740 --> 00:39:33.610 whether it's going to be publicly available to the world 1035 00:39:33.610 --> 00:39:35.640 or available only to your friend group or whether 1036 00:39:35.640 --> 00:39:38.190 it's going to be a direct one-to-one communication. 1037 00:39:39.256 --> 00:39:40.930 So it's gonna be on a case by case basis 1038 00:39:40.930 --> 00:39:43.700 and what the defendant is trying to suppress. 1039 00:39:43.700 --> 00:39:46.910 'Cause it could be a case where some of the things they 1040 00:39:46.910 --> 00:39:49.570 sent out, they sent to the entire world, writ large. 1041 00:39:49.570 --> 00:39:50.860 Some of the things they sent 1042 00:39:50.860 --> 00:39:52.370 were just to their friend group, 1043 00:39:52.370 --> 00:39:55.140 some of the things were a direct one-to-one communication. 1044 00:39:55.140 --> 00:39:57.670 So there'll be a different analysis for each one. 1045 00:39:57.670 --> 00:39:59.320 So I think the answer has to be 1046 00:39:59.320 --> 00:40:01.920 a case by case analysis of what we're talking about here. 1047 00:40:01.920 --> 00:40:04.300 Now as to when we conduct the analysis about, 1048 00:40:04.300 --> 00:40:07.430 about the ruse your Honor, that would be when, 1049 00:40:07.430 --> 00:40:08.650 when it occurred. 1050 00:40:08.650 --> 00:40:12.110 Just as an undercover officer knocking on your front door 1051 00:40:12.110 --> 00:40:13.557 and asking to come in to buy some drugs, 1052 00:40:13.557 --> 00:40:17.290 you conduct the analysis right then about the defendant, 1053 00:40:17.290 --> 00:40:20.150 giving them, the undercover officer access to the house. 1054 00:40:20.150 --> 00:40:22.030 And then what the undercover officer sees or does 1055 00:40:22.030 --> 00:40:24.380 inside the house, will be evaluated separately. 1056 00:40:25.670 --> 00:40:28.731 There are no more further questions? 1057 00:40:28.731 --> 00:40:29.660 [Justice Wendlandt] Thank you very much. 1058 00:40:29.660 --> 00:40:31.904 We'll take our morning break. 1059 00:40:31.904 --> 00:40:33.654 All rise!