WEBVTT

1
00:00:00.000 --> 00:00:04.133
<v ->SJC-13144, Commonwealth V Jiran Perry.</v>

2
00:00:06.060 --> 00:00:07.810
<v ->Okay. Attorney Tenant, when you're ready.</v>

3
00:00:07.810 --> 00:00:08.740
<v ->Good morning, your honors.</v>

4
00:00:08.740 --> 00:00:09.580
May it please the Court,

5
00:00:09.580 --> 00:00:11.430
Eric Tenant on behalf of Jiran Perry.

6
00:00:12.490 --> 00:00:14.910
Your honors, an order authorizing the government

7
00:00:14.910 --> 00:00:17.740
to obtain cell tower dump data of anyone

8
00:00:17.740 --> 00:00:19.760
in the general vicinity of a crime

9
00:00:19.760 --> 00:00:23.490
when there is no known suspect nor known phone number

10
00:00:23.490 --> 00:00:24.960
is simply a general warrant

11
00:00:24.960 --> 00:00:27.720
that contravenes society's expectations of privacy.

12
00:00:27.720 --> 00:00:31.920
<v ->So no matter how serious the crime,</v>

13
00:00:31.920 --> 00:00:34.960
no matter how many separate crimes there are,

14
00:00:34.960 --> 00:00:38.800
no matter how similar the crimes are, you know how...

15
00:00:38.800 --> 00:00:41.890
No matter how much probable cause that there is,

16
00:00:41.890 --> 00:00:45.560
that a suspect would be discovered,

17
00:00:45.560 --> 00:00:49.960
no matter how distant the cell towers are from each other,

18
00:00:49.960 --> 00:00:53.270
and no matter how considerable the mitigation is,

19
00:00:53.270 --> 00:00:56.040
and no matter how unlikely the crime

20
00:00:56.040 --> 00:00:59.890
would be solved without the information,

21
00:00:59.890 --> 00:01:02.500
the government cannot,

22
00:01:02.500 --> 00:01:05.443
even with a warrant, ever have a cell tower?

23
00:01:06.600 --> 00:01:09.480
<v ->There is no convenience exception to the Fourth Amendment,</v>

24
00:01:09.480 --> 00:01:12.540
there's no serious crime exception to the Fourth Amendment

25
00:01:12.540 --> 00:01:14.880
or Article 14 for that matter.

26
00:01:14.880 --> 00:01:16.180
<v ->Well, there's sort of are, aren't there?</v>

27
00:01:16.180 --> 00:01:18.070
Like if there's an emergency

28
00:01:18.070 --> 00:01:21.140
or there are some exceptions based

29
00:01:21.140 --> 00:01:26.140
on hot pursuit or based on life and death situations.

30
00:01:27.140 --> 00:01:28.825
So there are exceptions.

31
00:01:28.825 --> 00:01:32.210
<v ->Those are exceptions that the court has said,</v>

32
00:01:32.210 --> 00:01:35.090
in this situation, the search is reasonable.

33
00:01:35.090 --> 00:01:37.330
<v ->All right, so that's what we want to look at here, right?</v>

34
00:01:37.330 --> 00:01:38.163
<v Eric>Correct.</v>

35
00:01:38.163 --> 00:01:38.996
<v ->Is the search reasonable?</v>

36
00:01:38.996 --> 00:01:40.500
<v Eric>So, correct. And--</v>

37
00:01:40.500 --> 00:01:41.800
<v ->So why isn't this, like,</v>

38
00:01:41.800 --> 00:01:44.930
this is just a narrowing and an excluding process.

39
00:01:44.930 --> 00:01:47.380
It gets more and more narrow, doesn't it?

40
00:01:47.380 --> 00:01:49.515
<v ->Actually, this broadens, so.</v>

41
00:01:49.515 --> 00:01:50.348
<v Elspeth>It got broader?</v>

42
00:01:50.348 --> 00:01:53.670
<v ->It broadens multiplied by,</v>

43
00:01:53.670 --> 00:01:54.980
you know, thousands in this case.

44
00:01:54.980 --> 00:01:59.233
So you have precedence that says you can get CSLI data

45
00:02:00.820 --> 00:02:03.850
for an identified suspect, one.

46
00:02:03.850 --> 00:02:06.540
You know, the person or the phone number, if you know it.

47
00:02:06.540 --> 00:02:08.530
And this broadens it to say,

48
00:02:08.530 --> 00:02:11.570
we can get CSLI data for tens of thousands

49
00:02:11.570 --> 00:02:14.493
of unknown persons, unknown phone numbers--

50
00:02:14.493 --> 00:02:15.389
<v ->Then once they do--</v>

51
00:02:15.389 --> 00:02:16.222
<v ->All but one who are innocent.</v>

52
00:02:16.222 --> 00:02:17.055
<v ->Once they do that,</v>

53
00:02:17.055 --> 00:02:19.150
don't they do a further narrowing

54
00:02:19.150 --> 00:02:23.180
of the CSLI until they focus in on that number,

55
00:02:23.180 --> 00:02:26.100
or do they just pull those numbers out of that first search?

56
00:02:26.100 --> 00:02:29.720
<v ->The... When the government seeks a tower dump data,</v>

57
00:02:29.720 --> 00:02:33.160
what they get are all of the phone numbers

58
00:02:33.160 --> 00:02:35.650
that were in the vicinity,

59
00:02:35.650 --> 00:02:38.160
the geographic vicinity of those towers.

60
00:02:38.160 --> 00:02:39.390
So there is no narrowing.

61
00:02:39.390 --> 00:02:41.250
It starts tremendously broad.

62
00:02:41.250 --> 00:02:43.470
And in that moment, at that moment,

63
00:02:43.470 --> 00:02:45.050
that is the unconstitutional moment.

64
00:02:45.050 --> 00:02:48.090
That search obtaining that data of all

65
00:02:48.090 --> 00:02:52.560
of those persons who are not guilty of anything,

66
00:02:52.560 --> 00:02:56.340
who are just in or near or at the scene of a crime.

67
00:02:56.340 --> 00:02:57.790
That's the unconstitutional part.

68
00:02:57.790 --> 00:03:00.220
Even if they can later narrow the data.

69
00:03:00.220 --> 00:03:03.490
<v ->Mr. Tenant, what do we do with our holdings</v>

70
00:03:03.490 --> 00:03:06.440
in Estabrook and Augustine about whether

71
00:03:06.440 --> 00:03:09.680
or not something is a search in the safe harbor?

72
00:03:09.680 --> 00:03:10.620
<v Eric>I didn't hear the last part.</v>

73
00:03:10.620 --> 00:03:11.820
Where something's in search?

74
00:03:11.820 --> 00:03:14.714
<v ->Or the safe... The six hours--</v>

75
00:03:14.714 --> 00:03:15.576
<v Eric>The safe harbor.</v>

76
00:03:15.576 --> 00:03:16.820
<v ->Safe harbor.</v>
<v ->Certainly, your honor.</v>

77
00:03:16.820 --> 00:03:18.520
I think the best way to read that...

78
00:03:18.520 --> 00:03:19.770
There's a couple of responses to that.

79
00:03:19.770 --> 00:03:21.950
Hopefully I can get them all out.

80
00:03:21.950 --> 00:03:24.900
The first is that extra book and Augustine admit

81
00:03:24.900 --> 00:03:26.380
that there's a subjective expectation,

82
00:03:26.380 --> 00:03:27.697
individual expectation of privacy.

83
00:03:27.697 --> 00:03:30.033
And so as I understand those cases,

84
00:03:30.033 --> 00:03:32.300
what they're saying is, there's societal expectations.

85
00:03:32.300 --> 00:03:33.440
That's a sort of the second part

86
00:03:33.440 --> 00:03:35.680
of the expectations of privacy test.

87
00:03:35.680 --> 00:03:39.680
And society does not have an expectation of privacy

88
00:03:39.680 --> 00:03:42.050
in the government searching six hours

89
00:03:42.050 --> 00:03:45.390
or less of an individual known suspect's CSLI.

90
00:03:45.390 --> 00:03:47.460
This is not that. This is not...

91
00:03:47.460 --> 00:03:49.620
So you have to ask what is society's expectation

92
00:03:49.620 --> 00:03:51.550
of privacy of the government searching,

93
00:03:51.550 --> 00:03:54.890
not an individual known suspect's CSLI, but everyone at--

94
00:03:54.890 --> 00:03:58.770
<v ->But you're appropriately focused</v>

95
00:03:58.770 --> 00:04:01.360
on your client's expectation of privacy.

96
00:04:01.360 --> 00:04:05.460
You can't raise the 50,000 others,

97
00:04:05.460 --> 00:04:09.910
or 49,099 other people's expectation of privacy.

98
00:04:09.910 --> 00:04:11.640
So when you look at...

99
00:04:11.640 --> 00:04:14.870
Well, I guess you're not arguing,

100
00:04:14.870 --> 00:04:16.740
or are you, that Estabrook

101
00:04:16.740 --> 00:04:19.190
and Augustine don't survive Carpenter,

102
00:04:19.190 --> 00:04:21.460
they were wrongly decided.

103
00:04:21.460 --> 00:04:24.050
<v ->There is a question in terms of the six-hour rule.</v>

104
00:04:24.050 --> 00:04:26.510
What... How much of that, if any, survives Carpenter,

105
00:04:26.510 --> 00:04:27.980
and then, so that is up in the air.

106
00:04:27.980 --> 00:04:28.813
<v Frank>Okay.</v>

107
00:04:28.813 --> 00:04:30.480
<v ->And again, in response to your question,</v>

108
00:04:30.480 --> 00:04:31.510
there's two parts to it.

109
00:04:31.510 --> 00:04:33.664
So the first part I would argue is--

110
00:04:33.664 --> 00:04:36.340
<v ->And I should, I thought you finished, but go ahead.</v>

111
00:04:36.340 --> 00:04:37.710
<v ->The first part you...</v>

112
00:04:37.710 --> 00:04:39.467
Is, what is society's expectations of privacy?

113
00:04:39.467 --> 00:04:40.810
And we're talking about whether something's

114
00:04:40.810 --> 00:04:42.970
a search in the constitutional sense.

115
00:04:42.970 --> 00:04:45.900
I would say that when the court has to decide that,

116
00:04:45.900 --> 00:04:47.470
what is society's expectations of privacy,

117
00:04:47.470 --> 00:04:50.440
it does have to consider not just

118
00:04:50.440 --> 00:04:53.510
that I am the counsel on behalf

119
00:04:53.510 --> 00:04:55.320
of the person raising the issue,

120
00:04:55.320 --> 00:04:57.400
but what is the government doing

121
00:04:57.400 --> 00:04:58.980
and what's society's expectations

122
00:04:58.980 --> 00:05:01.020
as to what the government is doing to determine

123
00:05:01.020 --> 00:05:03.180
whether it's a search in the constitutional sense?

124
00:05:03.180 --> 00:05:05.490
The second part of that answer, separate from that is,

125
00:05:05.490 --> 00:05:07.690
does the six-hour rule, what does it mean,

126
00:05:07.690 --> 00:05:09.500
and does it survive Carpenter?

127
00:05:09.500 --> 00:05:10.710
And my response to that,

128
00:05:10.710 --> 00:05:13.240
so different from the sort of constitutional question,

129
00:05:13.240 --> 00:05:15.830
what did this court mean when it said six hours?

130
00:05:15.830 --> 00:05:19.060
I would argue that the only plausible reading

131
00:05:19.060 --> 00:05:20.200
of that is this court was trying

132
00:05:20.200 --> 00:05:21.870
to establish a bright-line rule,

133
00:05:21.870 --> 00:05:25.140
and that bright-line rule is six continuous hours.

134
00:05:25.140 --> 00:05:27.760
So if this court meant something different,

135
00:05:27.760 --> 00:05:31.070
it meant no, it's just whatever 360 minutes

136
00:05:31.070 --> 00:05:32.940
the government wants to use.

137
00:05:32.940 --> 00:05:34.510
It's not creating a bright-line rule

138
00:05:34.510 --> 00:05:36.710
because now the government can, what,

139
00:05:36.710 --> 00:05:40.340
for 10 minutes, for 36 days look for CSLI data

140
00:05:40.340 --> 00:05:41.440
'cause that's less than six hours

141
00:05:41.440 --> 00:05:43.680
or five minutes over 72 days

142
00:05:43.680 --> 00:05:46.280
or one minute over 360 days, right?

143
00:05:46.280 --> 00:05:49.490
The six-hour rule, in that sense, eviscerates

144
00:05:49.490 --> 00:05:54.490
because it starts to create the kind of data gathering

145
00:05:54.600 --> 00:05:56.260
that implicates the mosaic theory.

146
00:05:56.260 --> 00:05:57.210
The court was trying to say,

147
00:05:57.210 --> 00:06:00.840
we are saying there is a small sliver

148
00:06:00.840 --> 00:06:03.460
of time in which there is no expectation of privacy.

149
00:06:03.460 --> 00:06:05.300
But once you start splitting up that time

150
00:06:05.300 --> 00:06:06.570
over days and months--

151
00:06:06.570 --> 00:06:07.403
<v Frank>Yeah, I don't know if--</v>

152
00:06:07.403 --> 00:06:08.236
<v ->You lose that narrow window.</v>

153
00:06:08.236 --> 00:06:09.830
<v ->So I think what we wrote</v>

154
00:06:09.830 --> 00:06:13.070
in either Estabrook and Augustine, I conflate them,

155
00:06:13.070 --> 00:06:14.933
is that when we have a CSLI...

156
00:06:14.933 --> 00:06:16.980
There's a murder investigation.

157
00:06:16.980 --> 00:06:18.291
<v Eric>Yes.</v>

158
00:06:18.291 --> 00:06:21.400
<v ->And we have a suspect, John Doe,</v>

159
00:06:21.400 --> 00:06:25.530
and let's find out where John Doe was for six hours,

160
00:06:25.530 --> 00:06:27.147
you know, or around the time of the crime.

161
00:06:27.147 --> 00:06:29.850
And we can either eliminate him as a suspect

162
00:06:29.850 --> 00:06:32.780
or move on to someone else or build that case on him.

163
00:06:32.780 --> 00:06:37.750
But either way, when we do our six-hour snapshot of Mr. Doe,

164
00:06:37.750 --> 00:06:39.440
there's no expectation of privacy

165
00:06:39.440 --> 00:06:43.020
in his movements for just that particular six-hour period.

166
00:06:43.020 --> 00:06:43.870
<v ->I believe that's right.</v>

167
00:06:43.870 --> 00:06:48.120
And as I interpret that, that is a six continuous hour rule.

168
00:06:48.120 --> 00:06:49.830
Not we can...

169
00:06:49.830 --> 00:06:52.357
So meaning not requiring a probable cause warrant.

170
00:06:52.357 --> 00:06:53.820
<v ->But if... So you're saying,</v>

171
00:06:53.820 --> 00:06:58.030
if you slice up that six hours, it becomes problematic.

172
00:06:58.030 --> 00:07:00.460
<v ->Yes, because the intent,</v>

173
00:07:00.460 --> 00:07:04.730
as I understand Estabrook and Augustine was, it's not...

174
00:07:04.730 --> 00:07:06.030
There's no expectation of privacy

175
00:07:06.030 --> 00:07:09.250
in this very narrow time of window.

176
00:07:09.250 --> 00:07:10.630
And when you start to slice it up,

177
00:07:10.630 --> 00:07:13.030
you expand that narrow time of window

178
00:07:13.030 --> 00:07:15.580
to get to the point where you are gathering data

179
00:07:15.580 --> 00:07:20.580
that begins to paint a pattern and that's the...

180
00:07:20.750 --> 00:07:22.680
That's where you start to...

181
00:07:22.680 --> 00:07:25.520
Now it blends into the other argument.

182
00:07:25.520 --> 00:07:27.560
That's when you start to contravene expectations

183
00:07:27.560 --> 00:07:30.350
of privacy that require probable cause warrants.

184
00:07:30.350 --> 00:07:32.300
So the six-hour continuous rule

185
00:07:32.300 --> 00:07:36.430
is a clean rule and it's easy to apply.

186
00:07:36.430 --> 00:07:37.490
But when you split it up,

187
00:07:37.490 --> 00:07:39.070
it doesn't become a clean rule.

188
00:07:39.070 --> 00:07:42.110
It expand... It goes beyond expectations

189
00:07:42.110 --> 00:07:44.160
of privacy requiring a probable cause warrant.

190
00:07:44.160 --> 00:07:46.520
<v ->I'm sorry. You've answered my question.</v>

191
00:07:46.520 --> 00:07:47.839
Thank you, Mr. Tenant.

192
00:07:47.839 --> 00:07:49.610
<v ->Thank you.</v>

193
00:07:49.610 --> 00:07:51.370
<v ->Don't you have to look and see</v>

194
00:07:51.370 --> 00:07:54.290
if there was less than six hours due

195
00:07:54.290 --> 00:07:58.313
in fact and create a mosaic?

196
00:07:59.340 --> 00:08:02.540
<v ->I think that would not be a bright-line rule</v>

197
00:08:02.540 --> 00:08:04.380
that this court was trying to create.

198
00:08:04.380 --> 00:08:07.150
So a bright-line rule is six continuous hours.

199
00:08:07.150 --> 00:08:10.140
If you say, "No, what we meant was any amount

200
00:08:10.140 --> 00:08:13.550
of less than six hours that doesn't create a pattern."

201
00:08:13.550 --> 00:08:15.700
Then you do not have a bright-line rule.

202
00:08:15.700 --> 00:08:19.920
And now you are doing the kinds of balancing acts that...

203
00:08:19.920 --> 00:08:22.640
Or the Commonwealth is not giving guidance as to,

204
00:08:22.640 --> 00:08:24.660
are we asking for enough or not enough data

205
00:08:24.660 --> 00:08:26.710
that doesn't create a pattern or does create a pattern

206
00:08:26.710 --> 00:08:28.050
that we need a probable cause warrant.

207
00:08:28.050 --> 00:08:30.220
So it doesn't create that rule

208
00:08:30.220 --> 00:08:31.740
if that's what the intention was.

209
00:08:31.740 --> 00:08:33.337
<v ->I'm with you up to the point.</v>

210
00:08:33.337 --> 00:08:36.620
I'm with you that I think it may be a search.

211
00:08:36.620 --> 00:08:38.160
But doesn't the judge finds

212
00:08:38.160 --> 00:08:42.023
there is probable cause here and it's particularized, right?

213
00:08:43.417 --> 00:08:45.133
And why... Isn't he right?

214
00:08:46.540 --> 00:08:47.373
Go ahead.

215
00:08:47.373 --> 00:08:48.810
<v ->Sure, sir.</v>

216
00:08:48.810 --> 00:08:49.850
Obviously, I disagree.

217
00:08:49.850 --> 00:08:51.421
<v Scott>Yeah (chuckles).</v>

218
00:08:51.421 --> 00:08:53.200
<v ->So if it's a search in the constitutional sense, right.</v>

219
00:08:53.200 --> 00:08:54.270
Then the question is--

220
00:08:54.270 --> 00:08:56.190
<v Scott>You agree with that part of it?</v>

221
00:08:56.190 --> 00:08:57.770
<v ->So you need a probable cause warrant.</v>

222
00:08:57.770 --> 00:08:59.730
Was there particularity, was there nexus?

223
00:08:59.730 --> 00:09:01.050
<v Scott>Right.</v>
<v ->Two different questions.</v>

224
00:09:01.050 --> 00:09:02.030
<v ->Right, what was produced?</v>

225
00:09:02.030 --> 00:09:03.130
Is it probable that

226
00:09:03.130 --> 00:09:05.960
this is gonna produce relevant evidence here?

227
00:09:05.960 --> 00:09:07.290
<v Eric>Right. So--</v>

228
00:09:07.290 --> 00:09:08.123
<v ->Yeah, go ahead.</v>

229
00:09:08.123 --> 00:09:10.410
<v ->So to take those individually, if I may.</v>

230
00:09:10.410 --> 00:09:13.210
So particularity, the...

231
00:09:13.210 --> 00:09:15.240
This is akin to the prohibition

232
00:09:15.240 --> 00:09:17.367
against an all-person warrant, an all-building warrant.

233
00:09:17.367 --> 00:09:18.720
<v ->I don't... I find that completely...</v>

234
00:09:18.720 --> 00:09:20.150
I don't look at this as a general warrant.

235
00:09:20.150 --> 00:09:22.660
This is not allowing the police to go rummaging

236
00:09:22.660 --> 00:09:24.970
in anyone's house whenever they want.

237
00:09:24.970 --> 00:09:28.700
This is a very narrow...

238
00:09:28.700 --> 00:09:32.140
They're looking for numbers that are...

239
00:09:32.140 --> 00:09:33.630
They're looking for, you know,

240
00:09:33.630 --> 00:09:36.230
basically telephone numbers, you know,

241
00:09:36.230 --> 00:09:41.130
hitting off the CSLI towers for very short periods of time.

242
00:09:41.130 --> 00:09:44.130
And they're looking to intersect the same,

243
00:09:44.130 --> 00:09:46.100
you know, find that, filter it out

244
00:09:46.100 --> 00:09:49.360
so that the same numbers are produced.

245
00:09:49.360 --> 00:09:51.510
It doesn't seem like a general warrant to me.

246
00:09:51.510 --> 00:09:52.410
<v Eric>So--</v>

247
00:09:52.410 --> 00:09:55.200
<v ->It seems like it's very narrow and specific and smart.</v>

248
00:09:55.200 --> 00:09:57.390
<v ->So the...</v>

249
00:09:58.382 --> 00:10:03.382
What particularity does is assures that the government,

250
00:10:03.470 --> 00:10:05.510
when they conduct that search,

251
00:10:05.510 --> 00:10:07.990
does not search innocent persons.

252
00:10:07.990 --> 00:10:09.410
So for example, the reason you don't have

253
00:10:09.410 --> 00:10:11.980
an all-person warrant is because we know that

254
00:10:11.980 --> 00:10:14.640
if you go to this home to search everyone there,

255
00:10:14.640 --> 00:10:16.030
unless we have probable cause

256
00:10:16.030 --> 00:10:18.910
to search everyone there, it's invalid.

257
00:10:18.910 --> 00:10:20.047
If I know that someone is--

258
00:10:20.047 --> 00:10:21.750
<v ->But innocent people can end</v>

259
00:10:21.750 --> 00:10:25.640
up being caught up in something, correct?

260
00:10:25.640 --> 00:10:27.280
They... I mean, we don't have that sort

261
00:10:27.280 --> 00:10:29.180
of innocent, non-innocent divide.

262
00:10:29.180 --> 00:10:30.620
We have whether this is going

263
00:10:30.620 --> 00:10:33.620
to produce relevant information.

264
00:10:33.620 --> 00:10:36.220
<v ->If you agree it's a search, then what you agree is</v>

265
00:10:36.220 --> 00:10:38.140
that when the government obtains this data,

266
00:10:38.140 --> 00:10:40.610
they are conducting searches of everyone,

267
00:10:40.610 --> 00:10:41.881
every phone number is a search,

268
00:10:41.881 --> 00:10:42.768
every one person is a search.

269
00:10:42.768 --> 00:10:44.800
<v ->You want it to be particularized to a particular person.</v>

270
00:10:44.800 --> 00:10:46.910
I'm not... That's not my understanding

271
00:10:46.910 --> 00:10:50.690
of the way that the Fourth Amendment Article 14 words.

272
00:10:50.690 --> 00:10:53.370
<v ->So, again, look at an all-person warrant</v>

273
00:10:53.370 --> 00:10:56.320
that this court has said, and the Supreme court has said

274
00:10:56.320 --> 00:10:59.210
those kinds of warrants are only valid if every person...

275
00:10:59.210 --> 00:11:01.730
If you know that where you are going to search all persons,

276
00:11:01.730 --> 00:11:04.810
every... There's probable cause to search every person.

277
00:11:04.810 --> 00:11:07.520
So it is an individual...

278
00:11:07.520 --> 00:11:09.240
It does require the probable cause

279
00:11:09.240 --> 00:11:12.500
for each person being sought, or an all-building warrant.

280
00:11:12.500 --> 00:11:14.233
If you have information that there is--

281
00:11:14.233 --> 00:11:17.430
<v ->Well, if you've got probable cause to search a place,</v>

282
00:11:17.430 --> 00:11:19.490
even though you don't know who's in it.

283
00:11:19.490 --> 00:11:22.690
<v ->So you get to search the place</v>

284
00:11:22.690 --> 00:11:25.210
and innocent people may be in it.

285
00:11:25.210 --> 00:11:27.860
You know, the girlfriend of the person

286
00:11:27.860 --> 00:11:31.520
who's ultimately dealing the drugs may be there, right?

287
00:11:31.520 --> 00:11:33.040
<v ->So I think the better analogy, again,</v>

288
00:11:33.040 --> 00:11:34.170
think of an all-building warrant.

289
00:11:34.170 --> 00:11:36.210
So for example, the government might have

290
00:11:36.210 --> 00:11:37.770
maybe they're conducting surveillance

291
00:11:37.770 --> 00:11:39.590
and they have information that there was

292
00:11:39.590 --> 00:11:43.200
a drug transactions coming out of a place.

293
00:11:43.200 --> 00:11:45.500
If that place is a single-family home,

294
00:11:45.500 --> 00:11:46.790
then it's particular enough to say,

295
00:11:46.790 --> 00:11:49.468
okay, we're gonna get a warrant for that single-family home.

296
00:11:49.468 --> 00:11:50.301
<v Elspeth>Yeah, but what--</v>

297
00:11:50.301 --> 00:11:51.370
<v ->If that place is the person is walking</v>

298
00:11:51.370 --> 00:11:53.810
into a 25-unit apartment building,

299
00:11:53.810 --> 00:11:56.970
you cannot get a warrant to search every unit in that 25.

300
00:11:56.970 --> 00:12:00.430
<v ->But let's go back to Justice Packer's original question,</v>

301
00:12:00.430 --> 00:12:02.280
which was, you've got a single-family home

302
00:12:02.280 --> 00:12:03.430
and you've got people in there

303
00:12:03.430 --> 00:12:06.620
that are not criminal or not subject to the warrant.

304
00:12:06.620 --> 00:12:08.283
They're still affected by this.

305
00:12:09.880 --> 00:12:13.050
<v ->As I understand particularity, it's the...</v>

306
00:12:13.050 --> 00:12:14.770
So that's not an all-person warrant, right?

307
00:12:14.770 --> 00:12:16.700
That's to search the place, not the people there.

308
00:12:16.700 --> 00:12:19.910
<v ->Okay. Well, what if it was an all-person-present warrant?</v>

309
00:12:19.910 --> 00:12:21.530
<v Eric>Then you would have to know that</v>

310
00:12:21.530 --> 00:12:23.480
there is probable cause that every person

311
00:12:23.480 --> 00:12:25.720
who you're gonna come in contact with in that...

312
00:12:25.720 --> 00:12:27.416
Or sorry, that there is probable cause for a person--

313
00:12:27.416 --> 00:12:30.160
<v ->That makes it a bad analogy for this case, right?</v>

314
00:12:30.160 --> 00:12:30.993
<v Eric>I'm sorry, your honor.</v>

315
00:12:30.993 --> 00:12:33.360
<v ->That would make it a not a good analogy for this case.</v>

316
00:12:33.360 --> 00:12:34.240
<v ->I don't think it's apt.</v>

317
00:12:34.240 --> 00:12:38.550
I think the better analogy is we are searching...

318
00:12:38.550 --> 00:12:40.410
It's like searching, you know,

319
00:12:40.410 --> 00:12:42.440
you know that there is a drug transaction

320
00:12:42.440 --> 00:12:44.930
in this apartment building, but you don't know which unit.

321
00:12:44.930 --> 00:12:46.990
You cannot get a warrant for all that. Just like--

322
00:12:46.990 --> 00:12:48.720
<v ->What if I decide I'm gonna sit</v>

323
00:12:48.720 --> 00:12:50.760
at the corner of the road and collect all

324
00:12:50.760 --> 00:12:53.560
the license plate numbers that go down the street one day,

325
00:12:53.560 --> 00:12:55.240
and then I'm gonna do it again the next day.

326
00:12:55.240 --> 00:12:59.530
And I'm gonna see who's consistently showing up to...

327
00:13:00.480 --> 00:13:02.010
That would be fine. Wouldn't it?

328
00:13:02.010 --> 00:13:04.700
<v ->So like this court talked about</v>

329
00:13:04.700 --> 00:13:06.690
that in, I think, it's McCarthy.

330
00:13:06.690 --> 00:13:08.330
I got the names wrong. I'm sorry.

331
00:13:08.330 --> 00:13:10.410
Thank you, Justice Gaziano. And McCarthy.

332
00:13:10.410 --> 00:13:15.410
So the issue there is that data gathering

333
00:13:16.960 --> 00:13:18.650
so much so as to be a search

334
00:13:18.650 --> 00:13:20.820
in the constitutional sense or not.

335
00:13:20.820 --> 00:13:24.010
And when you're asking me about particularity and nexus,

336
00:13:24.010 --> 00:13:25.870
we've already answered that question and we're moving

337
00:13:25.870 --> 00:13:27.870
on to whether the warrant to get that data

338
00:13:27.870 --> 00:13:30.020
is particular or has a nexus,

339
00:13:30.020 --> 00:13:31.900
or sorry, and has an nexus, I should say.

340
00:13:31.900 --> 00:13:33.650
<v ->So it doesn't matter?</v>

341
00:13:33.650 --> 00:13:35.630
<v ->If that goes to whether it's</v>

342
00:13:35.630 --> 00:13:36.589
a search in the constitutional sense.

343
00:13:36.589 --> 00:13:38.100
<v ->That it's a search. And we agree it's a search.</v>

344
00:13:38.100 --> 00:13:40.697
<v ->So if you agree it's a search then we're onto,</v>

345
00:13:40.697 --> 00:13:43.000
did this order have particularity

346
00:13:43.000 --> 00:13:44.973
in nexus to comply with the warrant?

347
00:13:44.973 --> 00:13:46.540
<v ->But why... But it has...</v>

348
00:13:46.540 --> 00:13:50.500
But what they're looking for in that, in this case,

349
00:13:50.500 --> 00:13:52.520
the particularity in nexus goes

350
00:13:52.520 --> 00:13:56.300
to particularity of phones and location.

351
00:13:56.300 --> 00:13:58.060
I mean, it's not...

352
00:13:58.060 --> 00:14:00.100
That's the nexus and the particularity.

353
00:14:00.100 --> 00:14:04.700
It's not like, give me everybody all over the state.

354
00:14:04.700 --> 00:14:07.900
It's a drawn circle. It's a narrowed area.

355
00:14:07.900 --> 00:14:09.760
<v ->Sure. I don't think it's quite that simple.</v>

356
00:14:09.760 --> 00:14:12.380
I think, again, when we talk about particularity,

357
00:14:12.380 --> 00:14:15.610
we're talking about crafting the warrant

358
00:14:15.610 --> 00:14:19.580
in such a way that you're only searching for,

359
00:14:19.580 --> 00:14:21.960
or searching people or places

360
00:14:21.960 --> 00:14:24.000
for which you have probable cause.

361
00:14:24.000 --> 00:14:27.160
So it's not that we have narrowed the geographic zone

362
00:14:27.160 --> 00:14:28.677
to Dorchester and not Massachusetts.

363
00:14:28.677 --> 00:14:29.757
<v Dalila>Or things, right?</v>

364
00:14:29.757 --> 00:14:30.590
<v ->I'm sorry, your honor.</v>

365
00:14:30.590 --> 00:14:31.530
<v Dalila>Or things.</v>

366
00:14:31.530 --> 00:14:32.780
<v ->Or whatever it is you're searching.</v>

367
00:14:32.780 --> 00:14:34.160
<v Dalila>So the thing that</v>

368
00:14:34.160 --> 00:14:37.310
is being particularly described in these

369
00:14:37.310 --> 00:14:40.900
warrants is the phone number?

370
00:14:40.900 --> 00:14:43.520
No, because we know the location,

371
00:14:43.520 --> 00:14:45.607
we know the window of time,

372
00:14:45.607 --> 00:14:47.590
and we're just looking for the thing,

373
00:14:47.590 --> 00:14:50.870
that number that matches across each one of these six.

374
00:14:50.870 --> 00:14:52.230
<v ->Well, we're not particular to.</v>

375
00:14:52.230 --> 00:14:53.240
So put it this way, your honor,

376
00:14:53.240 --> 00:14:55.260
or I would put it this way.

377
00:14:55.260 --> 00:14:58.840
So it may be that we know there's

378
00:14:58.840 --> 00:15:00.230
a suspect and there's a crime.

379
00:15:00.230 --> 00:15:02.270
And so when we get this data,

380
00:15:02.270 --> 00:15:04.940
we know that we will have probable cause

381
00:15:04.940 --> 00:15:06.590
for that phone number.

382
00:15:06.590 --> 00:15:08.320
But we also know that we're not going

383
00:15:08.320 --> 00:15:10.340
to have probable cause for the tens of thousands

384
00:15:10.340 --> 00:15:12.010
of phone numbers that come with that.

385
00:15:12.010 --> 00:15:13.660
And that is what makes a general warrant.

386
00:15:13.660 --> 00:15:15.960
When you are seeking...

387
00:15:15.960 --> 00:15:17.120
When you have a warrant to search

388
00:15:17.120 --> 00:15:19.810
a person or a place or a thing,

389
00:15:19.810 --> 00:15:22.310
that you do not have probable cause for it,

390
00:15:22.310 --> 00:15:24.830
even though you might have for some subset of that.

391
00:15:24.830 --> 00:15:26.730
So I have probable cause for one person

392
00:15:26.730 --> 00:15:28.360
in this house, but not all persons,

393
00:15:28.360 --> 00:15:31.010
for one unit in this building, but not all buildings.

394
00:15:31.010 --> 00:15:34.870
So in the CSLI case, for one person's CSLI,

395
00:15:34.870 --> 00:15:38.133
but not the 49,999 other CSLIs

396
00:15:38.133 --> 00:15:42.420
that this warrant is going to bring to me.

397
00:15:42.420 --> 00:15:46.710
<v ->Well, the CSLI cases talk about not just</v>

398
00:15:46.710 --> 00:15:51.710
who are we to assess that information concerning a crime.

399
00:15:53.268 --> 00:15:55.320
But just put that aside for a moment

400
00:15:55.320 --> 00:15:57.803
as it relates to particularity here.

401
00:15:59.310 --> 00:16:01.693
We've got, I don't have it exactly right.

402
00:16:02.590 --> 00:16:04.860
Five armed robberies while masked,

403
00:16:04.860 --> 00:16:06.980
one attempted armed robbery while masked

404
00:16:06.980 --> 00:16:08.763
in conjunction with a murder.

405
00:16:09.620 --> 00:16:10.480
<v Eric>Six total, yes.</v>

406
00:16:10.480 --> 00:16:13.130
<v ->Yeah, and you've got a limited amount</v>

407
00:16:13.130 --> 00:16:17.700
of time on each side of the alleged event.

408
00:16:17.700 --> 00:16:21.000
That suggests a level of particularity.

409
00:16:21.000 --> 00:16:22.357
And what you're bringing up

410
00:16:22.357 --> 00:16:25.340
and Justice Gaziano and others have talked about

411
00:16:25.340 --> 00:16:28.680
the constitutional rights being particular to an individual.

412
00:16:28.680 --> 00:16:30.960
Your argument seems to be,

413
00:16:30.960 --> 00:16:33.880
well, what about all these other phone numbers,

414
00:16:33.880 --> 00:16:37.610
the raw data of all these other phone numbers?

415
00:16:37.610 --> 00:16:42.080
Don't we have to take into account issues

416
00:16:42.080 --> 00:16:43.720
like the ACLU brought up?

417
00:16:43.720 --> 00:16:45.170
I know they agree with your argument,

418
00:16:45.170 --> 00:16:47.990
but brought up about minimization.

419
00:16:47.990 --> 00:16:51.050
For instance, in Commonwealth versus Yusuf,

420
00:16:51.050 --> 00:16:52.603
in the body cam case.

421
00:16:54.030 --> 00:16:55.543
It's clear, okay.

422
00:16:56.740 --> 00:16:59.260
When you go into the home,

423
00:16:59.260 --> 00:17:01.880
there's certain observations that are captured.

424
00:17:01.880 --> 00:17:03.500
But you know, don't go back

425
00:17:03.500 --> 00:17:06.160
and start looking through this raw data.

426
00:17:06.160 --> 00:17:07.185
<v Eric>Right.</v>

427
00:17:07.185 --> 00:17:11.230
<v ->There's just minimization infused into the doctrine.</v>

428
00:17:11.230 --> 00:17:12.810
<v ->So there can be,</v>

429
00:17:12.810 --> 00:17:15.020
and if I can take a moment to address that.

430
00:17:15.020 --> 00:17:18.570
I know my time's up, but so the ACLU talks

431
00:17:18.570 --> 00:17:20.850
about that in the context of the Berger case.

432
00:17:20.850 --> 00:17:22.500
And I do think it's helpful to look at that,

433
00:17:22.500 --> 00:17:24.230
but to understand very clearly,

434
00:17:24.230 --> 00:17:25.750
Berger was a Supreme court case

435
00:17:25.750 --> 00:17:28.500
about eavesdropping and wiretapping.

436
00:17:28.500 --> 00:17:29.700
And so what the court said is

437
00:17:29.700 --> 00:17:32.380
what they did here was unconstitutional.

438
00:17:32.380 --> 00:17:33.570
End of sentence.

439
00:17:33.570 --> 00:17:36.480
If, however, these procedures were

440
00:17:36.480 --> 00:17:38.080
to be put in place that minimize this,

441
00:17:38.080 --> 00:17:40.430
then that might not be unconstitutional.

442
00:17:40.430 --> 00:17:43.480
And that later became the eavesdropping

443
00:17:43.480 --> 00:17:45.527
or the wiretapping statute that they said,

444
00:17:45.527 --> 00:17:47.830
"Okay, now that you have put these in place,

445
00:17:47.830 --> 00:17:48.980
it's not unconstitutional

446
00:17:48.980 --> 00:17:50.660
for these various reasons that you said."

447
00:17:50.660 --> 00:17:53.080
So to come back to this case,

448
00:17:53.080 --> 00:17:55.650
none of that minimization was done here.

449
00:17:55.650 --> 00:17:58.660
So if this court thinks there is a way to minimize

450
00:17:58.660 --> 00:18:01.110
these kinds of warrants to make it

451
00:18:01.110 --> 00:18:03.030
so that it's not unconstitutional,

452
00:18:03.030 --> 00:18:04.990
I'm agnostic on that, and I really am,

453
00:18:04.990 --> 00:18:06.280
but that doesn't save this case

454
00:18:06.280 --> 00:18:08.230
because none of that was in place here.

455
00:18:09.360 --> 00:18:10.627
<v Elspeth>Okay. Any other questions?</v>

456
00:18:10.627 --> 00:18:11.870
<v Scott>Can I ask one last question?</v>

457
00:18:11.870 --> 00:18:13.046
<v Elspeth>Of course.</v>

458
00:18:13.046 --> 00:18:17.700
<v ->So the Google Map cases, are you familiar with those?</v>

459
00:18:17.700 --> 00:18:18.785
<v ->Geo-fence cases?</v>

460
00:18:18.785 --> 00:18:19.770
<v Scott>Yeah, the geo-fence.</v>
<v ->A little bit, your honor.</v>

461
00:18:19.770 --> 00:18:22.200
<v ->So in the geo-fence cases,</v>

462
00:18:22.200 --> 00:18:25.000
Google has its own sort of protocol

463
00:18:25.000 --> 00:18:27.680
for how to filter out numbers.

464
00:18:27.680 --> 00:18:32.680
And should we be considering something like what they do?

465
00:18:34.310 --> 00:18:37.490
<v ->I don't know if you can in the sense that,</v>

466
00:18:37.490 --> 00:18:40.160
as I understand it, and I might be wrong about this,

467
00:18:40.160 --> 00:18:42.040
that Google has the technology to do that.

468
00:18:42.040 --> 00:18:45.380
So I don't know if you could go to T-Mobile for example,

469
00:18:45.380 --> 00:18:47.410
and say, "We only want X, Y, and Z

470
00:18:47.410 --> 00:18:48.970
the way Google gives it to us."

471
00:18:48.970 --> 00:18:51.680
<v ->But from what I understand, they break it into steps,</v>

472
00:18:51.680 --> 00:18:56.480
that the police won't get all the numbers.

473
00:18:56.480 --> 00:19:00.120
They don't get that giant drop of everybody

474
00:19:00.120 --> 00:19:04.320
who was using a Google Map or whatever it is at the time.

475
00:19:04.320 --> 00:19:06.970
But rather, they're multiple steps

476
00:19:06.970 --> 00:19:10.883
so that the police only get the sort of end product.

477
00:19:12.070 --> 00:19:14.720
Would that be something that we could consider doing?

478
00:19:15.570 --> 00:19:16.820
<v ->Maybe I don't know enough,</v>

479
00:19:16.820 --> 00:19:18.380
or maybe I misunderstand that.

480
00:19:18.380 --> 00:19:20.430
What I understand about a geo-fence warrant

481
00:19:20.430 --> 00:19:22.320
is that it's not just CSLI.

482
00:19:22.320 --> 00:19:24.830
So for example, there's GPS and there's other things

483
00:19:24.830 --> 00:19:26.810
that allow them to narrow down.

484
00:19:26.810 --> 00:19:27.809
<v Scott>Right.</v>

485
00:19:27.809 --> 00:19:29.957
<v ->I don't think it allows them to say,</v>

486
00:19:29.957 --> 00:19:31.730
"This is the one person you're looking for."

487
00:19:31.730 --> 00:19:33.447
So a geo-fence warrant might say,

488
00:19:33.447 --> 00:19:36.510
"Look, if you are talking about a two-block radius,

489
00:19:36.510 --> 00:19:38.720
we can give you that as opposed to a cell tower

490
00:19:38.720 --> 00:19:40.730
that gives you a much bigger geographic zone."

491
00:19:40.730 --> 00:19:42.760
<v ->What I'm asking is, and again,</v>

492
00:19:42.760 --> 00:19:44.900
I'm not sure the technology exists for this,

493
00:19:44.900 --> 00:19:47.640
but if instead of, I mean,

494
00:19:47.640 --> 00:19:49.980
you talk about the 54,000 people

495
00:19:49.980 --> 00:19:53.120
whose phone numbers got dropped off at the police.

496
00:19:53.120 --> 00:19:57.620
If they were only allowed to produce.

497
00:19:57.620 --> 00:19:58.685
<v Eric>I see.</v>

498
00:19:58.685 --> 00:19:59.540
<v ->When there was a nexus.</v>

499
00:19:59.540 --> 00:20:02.340
Meaning so that you're really limiting

500
00:20:02.340 --> 00:20:06.060
it to the people who were in the five locations

501
00:20:06.060 --> 00:20:09.650
where the robberies were as opposed to 54,000 people.

502
00:20:09.650 --> 00:20:11.090
<v Eric>I understand, so--</v>
<v ->Would that be better?</v>

503
00:20:11.090 --> 00:20:13.560
<v ->So I think if... The short answer is,</v>

504
00:20:13.560 --> 00:20:14.393
of course it would be better.

505
00:20:14.393 --> 00:20:15.807
So if the technology existed, for example,

506
00:20:15.807 --> 00:20:18.610
and it may one day, and maybe it's Google's, I'm not sure.

507
00:20:18.610 --> 00:20:21.217
So for example, I thought of maybe there's

508
00:20:21.217 --> 00:20:24.440
a nighttime warehouse robbery where you know

509
00:20:24.440 --> 00:20:28.008
no one should be there except people who are robbing it.

510
00:20:28.008 --> 00:20:29.077
And so you had the technology to say,

511
00:20:29.077 --> 00:20:31.220
"We can tell you what cell phones were

512
00:20:31.220 --> 00:20:33.090
in that warehouse and nowhere else."

513
00:20:33.090 --> 00:20:34.680
You have met particularity.

514
00:20:34.680 --> 00:20:35.980
You would still have to show nexus

515
00:20:35.980 --> 00:20:38.410
to show that there's information

516
00:20:38.410 --> 00:20:40.020
that those persons had cell phones.

517
00:20:40.020 --> 00:20:43.050
But yes, I think that solves the particularity problem,

518
00:20:43.050 --> 00:20:44.830
if the technology exists.

519
00:20:44.830 --> 00:20:46.170
Obviously, it's not in this case.

520
00:20:46.170 --> 00:20:48.520
I'm not sure if geo-fence warrants are there yet,

521
00:20:48.520 --> 00:20:49.820
but they might be one day.

522
00:20:51.530 --> 00:20:52.687
<v Elspeth>Okay. Thank you.</v>

523
00:20:52.687 --> 00:20:53.687
<v ->Thank you,</v>

524
00:20:54.600 --> 00:20:55.550
<v ->Caitlyn Campbell.</v>

525
00:21:00.610 --> 00:21:02.010
<v ->Good morning, and may it please the court,</v>

526
00:21:02.010 --> 00:21:03.810
Caitlyn Campbell on behalf of the Commonwealth.

527
00:21:03.810 --> 00:21:05.380
With me today is Jennifer Hickman

528
00:21:05.380 --> 00:21:07.790
who's the trial prosecutor in this case.

529
00:21:07.790 --> 00:21:09.940
I would also like to acknowledge the victim's family

530
00:21:09.940 --> 00:21:11.780
who's watching over the webcast.

531
00:21:11.780 --> 00:21:13.420
We ask you today to uphold the denial

532
00:21:13.420 --> 00:21:15.760
of the defendant's motion to suppress.

533
00:21:15.760 --> 00:21:16.960
I think I'll start with what

534
00:21:16.960 --> 00:21:19.650
the Commonwealth specifically is asking this court to do,

535
00:21:19.650 --> 00:21:21.870
and there are three things the court is that...

536
00:21:21.870 --> 00:21:24.410
Three things we are asking this court to do.

537
00:21:24.410 --> 00:21:27.600
The first is to formally abandon the standing analysis.

538
00:21:27.600 --> 00:21:30.480
The second is to hold that a search warrant is not required

539
00:21:30.480 --> 00:21:34.190
for an aggregate of six hours or less of data

540
00:21:34.190 --> 00:21:35.720
that's collected from a cell tower dump.

541
00:21:35.720 --> 00:21:37.660
And the third is to reaffirm the premise

542
00:21:37.660 --> 00:21:39.940
that cell phones are indispensable to everyday life

543
00:21:39.940 --> 00:21:42.440
and people are using them and they're turned on.

544
00:21:42.440 --> 00:21:44.710
I'll start with the first topic

545
00:21:44.710 --> 00:21:47.284
that the Commonwealth is asking for and--

546
00:21:47.284 --> 00:21:48.610
<v ->Actually, counsel, if you wouldn't mind,</v>

547
00:21:48.610 --> 00:21:50.420
may I have you invert your order because this

548
00:21:50.420 --> 00:21:53.260
is the problem that I have most with with this case,

549
00:21:54.297 --> 00:21:57.200
and even Carpenter, to be quite honest with you,

550
00:21:57.200 --> 00:22:02.200
is this premise that at the motion to suppress part,

551
00:22:02.390 --> 00:22:05.930
the government gets to pass first-base

552
00:22:05.930 --> 00:22:08.150
without any showing whatsoever

553
00:22:08.150 --> 00:22:11.480
that a cell phone was at all part of this crime.

554
00:22:11.480 --> 00:22:16.480
And, you know, looking at the trial court judge's decision

555
00:22:17.090 --> 00:22:18.880
and that was parroted,

556
00:22:18.880 --> 00:22:22.120
or I should say was always so repeated in Carpenter,

557
00:22:22.120 --> 00:22:23.460
that there's just this notion

558
00:22:23.460 --> 00:22:28.050
that everybody has cell phones, everybody has them on,

559
00:22:28.050 --> 00:22:31.120
and all of this data is being collected.

560
00:22:31.120 --> 00:22:34.060
And in this case, I know that you heard Justice Lowy list

561
00:22:34.060 --> 00:22:37.070
all of the really important things about these crimes.

562
00:22:37.070 --> 00:22:39.840
<v Caitlyn>Correct.</v>
<v ->But nowhere at all,</v>

563
00:22:39.840 --> 00:22:43.610
other than just the small speculation of the affiant,

564
00:22:43.610 --> 00:22:46.030
that everybody carries cell phones

565
00:22:46.030 --> 00:22:48.120
so that's why we want this data dump.

566
00:22:48.120 --> 00:22:51.190
We have no information whatsoever

567
00:22:51.190 --> 00:22:53.250
that the person that we alleged committed

568
00:22:53.250 --> 00:22:55.850
all of these crimes had a cell phone,

569
00:22:55.850 --> 00:22:58.940
which is gonna presume that he did,

570
00:22:58.940 --> 00:23:00.620
and that it was being utilized or that

571
00:23:00.620 --> 00:23:02.730
it was emanating all of this information,

572
00:23:02.730 --> 00:23:04.650
even while just passively on.

573
00:23:04.650 --> 00:23:06.420
That's a part that really bugs me.

574
00:23:06.420 --> 00:23:09.420
Can you help me understand how that's okay?

575
00:23:09.420 --> 00:23:10.420
<v ->I can try.</v>

576
00:23:10.420 --> 00:23:13.790
And I'll start with the probable cause standard itself.

577
00:23:13.790 --> 00:23:15.320
Not that, I mean, we argue that this

578
00:23:15.320 --> 00:23:17.270
isn't a search in the constitutional sense.

579
00:23:17.270 --> 00:23:19.710
But looking at the probable cause standard itself,

580
00:23:19.710 --> 00:23:22.130
you can look at the practicalities of everyday life

581
00:23:22.130 --> 00:23:23.720
and common sense inferences that

582
00:23:23.720 --> 00:23:25.960
you can draw from those practicalities.

583
00:23:25.960 --> 00:23:29.590
In cases like, I think it goes prior to Carpenter, right?

584
00:23:29.590 --> 00:23:32.470
I think if you look at a case like Dorelas or Onyx White,

585
00:23:32.470 --> 00:23:36.620
the cell phone search cases, they recognize that these...

586
00:23:36.620 --> 00:23:39.230
That cell phones are indispensable to everyday life.

587
00:23:39.230 --> 00:23:40.520
Now whether that is...

588
00:23:40.520 --> 00:23:44.210
And when they do so, they cite certain studies.

589
00:23:44.210 --> 00:23:46.220
Specifically, there's a CITA.

590
00:23:46.220 --> 00:23:48.510
I don't know if it's called CITA, but CITA.

591
00:23:48.510 --> 00:23:50.440
There's also a number of congressional studies

592
00:23:50.440 --> 00:23:52.760
in which prior to the Trump administration,

593
00:23:52.760 --> 00:23:55.140
so prior to 2016, there was a federal law

594
00:23:55.140 --> 00:23:57.710
which required cellular phone companies

595
00:23:57.710 --> 00:24:00.510
to report certain statistics and data,

596
00:24:00.510 --> 00:24:02.610
which was compiled into a report.

597
00:24:02.610 --> 00:24:04.880
What that showed was the number

598
00:24:04.880 --> 00:24:06.830
of individuals who did have cell phone.

599
00:24:06.830 --> 00:24:08.810
And at least as it could capture data

600
00:24:08.810 --> 00:24:11.407
as to the cell phones and their usage--

601
00:24:11.407 --> 00:24:13.711
<v ->And Chief Justice Roberts pointed to that,</v>

602
00:24:13.711 --> 00:24:15.938
that there were more cell phones for even

603
00:24:15.938 --> 00:24:18.531
the members of the population, right?

604
00:24:18.531 --> 00:24:19.364
<v Caitlyn>Correct.</v>

605
00:24:19.364 --> 00:24:21.560
<v ->Okay, I get all of that. Sure.</v>

606
00:24:21.560 --> 00:24:24.810
But I just I still have the problem saying

607
00:24:24.810 --> 00:24:28.460
that just because statistically, that may be so,

608
00:24:28.460 --> 00:24:32.080
the fact that we have no information whatsoever means

609
00:24:32.080 --> 00:24:33.650
that we can request all of these

610
00:24:33.650 --> 00:24:37.460
and begin the process of trying to mind whether or not

611
00:24:37.460 --> 00:24:40.460
there were any common denominators to all of this.

612
00:24:40.460 --> 00:24:43.290
<v ->So I think that gets to the...</v>

613
00:24:43.290 --> 00:24:45.370
What the Fourth Amendment and Article 14,

614
00:24:45.370 --> 00:24:47.630
what it lets you draw inferences from.

615
00:24:47.630 --> 00:24:49.350
And I think if you look at everyday life,

616
00:24:49.350 --> 00:24:51.480
if you look there, it says there are more cell phones

617
00:24:51.480 --> 00:24:52.760
than there are than people.

618
00:24:52.760 --> 00:24:56.730
It is a reasonable and inappropriate inference

619
00:24:56.730 --> 00:24:59.120
to draw that people do have cell phones.

620
00:24:59.120 --> 00:25:01.450
And so far as the reservation report,

621
00:25:01.450 --> 00:25:04.370
which I know your honor did asked for specific statistics

622
00:25:04.370 --> 00:25:07.330
to support that they were on and being used.

623
00:25:07.330 --> 00:25:11.230
You know, I was able to find sources

624
00:25:11.230 --> 00:25:15.060
which do support that people generally,

625
00:25:15.060 --> 00:25:17.400
and a majority of people carry their cell phones with them,

626
00:25:17.400 --> 00:25:19.590
which would support that it would use their location,

627
00:25:19.590 --> 00:25:21.500
that they are turned on.

628
00:25:21.500 --> 00:25:24.170
You know, I think sort of, if you look at,

629
00:25:24.170 --> 00:25:27.040
specifically Apple did a study of their users,

630
00:25:27.040 --> 00:25:28.670
which everybody knows the proliferation

631
00:25:28.670 --> 00:25:30.540
of smartphones and iPhones.

632
00:25:30.540 --> 00:25:33.240
So I think it's a good snapshot of what you're asking about,

633
00:25:33.240 --> 00:25:36.790
that they unlocked their phones 80 times a day,

634
00:25:36.790 --> 00:25:39.050
which amounts to about six to seven times per hour

635
00:25:39.050 --> 00:25:40.680
if you account for an amount of time

636
00:25:40.680 --> 00:25:42.260
an average person would sleep.

637
00:25:42.260 --> 00:25:46.070
So I think if you look at those specific types of facts,

638
00:25:46.070 --> 00:25:48.320
it gets you there, it gets you there.

639
00:25:48.320 --> 00:25:51.140
Now I would say that because of that, you--

640
00:25:51.140 --> 00:25:52.660
<v Scott>We've also said it in a bunch</v>

641
00:25:52.660 --> 00:25:55.460
of our own cases that it's an indispensable.

642
00:25:55.460 --> 00:25:56.794
<v Serge>Yeah.</v>
<v Caitlyn>Correct.</v>

643
00:25:56.794 --> 00:26:00.420
<v ->And so... And also wasn't there evidence</v>

644
00:26:00.420 --> 00:26:03.213
that there was a second driver here?

645
00:26:04.180 --> 00:26:09.180
So this isn't, you know, completely sort of speculation

646
00:26:09.830 --> 00:26:11.710
that he's communicating with somebody.

647
00:26:11.710 --> 00:26:12.543
<v ->It's not.</v>

648
00:26:12.543 --> 00:26:14.010
I think, you know, if you're asking

649
00:26:14.010 --> 00:26:16.320
for what underlies coming to that conclusion

650
00:26:16.320 --> 00:26:18.180
in the first place, I think it's supported.

651
00:26:18.180 --> 00:26:20.680
And I think that this court should reaffirm and support that

652
00:26:20.680 --> 00:26:23.375
because the probable cause standard recognizes that

653
00:26:23.375 --> 00:26:27.690
you can point to common things that happen in everyday life.

654
00:26:27.690 --> 00:26:30.090
Because what we're talking about is probable cause,

655
00:26:30.090 --> 00:26:31.680
which is probably, you do have to have

656
00:26:31.680 --> 00:26:33.370
a substantial basis to believe.

657
00:26:33.370 --> 00:26:35.460
And I believe that there is a substantial basis

658
00:26:35.460 --> 00:26:37.840
to believe based on the sources

659
00:26:37.840 --> 00:26:39.460
that this court has historically cited

660
00:26:39.460 --> 00:26:41.690
and it's sources that I cite in my brief.

661
00:26:41.690 --> 00:26:43.520
<v David>Ms. Campbell, I know you've listed three things,</v>

662
00:26:43.520 --> 00:26:45.400
and we're only at number one.

663
00:26:45.400 --> 00:26:47.549
<v ->We're at three, but yeah, yes.</v>

664
00:26:47.549 --> 00:26:49.280
<v ->And that means we haven't gotten</v>

665
00:26:49.280 --> 00:26:51.573
to indispensable to everyday life yet--

666
00:26:51.573 --> 00:26:52.406
<v Caitlyn>Correct.</v>

667
00:26:52.406 --> 00:26:54.623
<v ->But one thing I've been thinking about.</v>

668
00:26:54.623 --> 00:26:55.456
Justice Kafker's right.

669
00:26:55.456 --> 00:26:57.590
We said, even in Elmanar,

670
00:26:57.590 --> 00:27:00.340
that it's indispensable part of daily life

671
00:27:00.340 --> 00:27:05.340
and exists almost as a permanent attachment to our bodies.

672
00:27:06.820 --> 00:27:10.400
And that's the whole reason that we have all these cases

673
00:27:10.400 --> 00:27:11.720
where we want to be able

674
00:27:11.720 --> 00:27:16.570
to protect individual liberty as technology evolves.

675
00:27:16.570 --> 00:27:17.403
<v Caitlyn>Correct.</v>

676
00:27:17.403 --> 00:27:18.236
<v ->But instead of...</v>

677
00:27:18.236 --> 00:27:19.160
I've been thinking about going

678
00:27:19.160 --> 00:27:20.863
in Justice George's point is,

679
00:27:21.750 --> 00:27:24.110
what about all these innocent people?

680
00:27:24.110 --> 00:27:26.660
Isn't there going to be a point in time

681
00:27:26.660 --> 00:27:30.200
where there anyone who's thinking

682
00:27:30.200 --> 00:27:32.600
through a crime is going to shut off the phone

683
00:27:32.600 --> 00:27:35.600
and the only people you're going to get are innocent people?

684
00:27:38.920 --> 00:27:41.170
<v ->So here's what I have to say about that.</v>

685
00:27:41.170 --> 00:27:42.850
I think as to the innocent people,

686
00:27:42.850 --> 00:27:45.300
and I would point to McCarthy for that,

687
00:27:45.300 --> 00:27:47.740
specifically page 508,

688
00:27:47.740 --> 00:27:50.030
is that the Fourth Amendment and Article 14 cases

689
00:27:50.030 --> 00:27:52.540
must be decided on the facts of each case,

690
00:27:52.540 --> 00:27:55.100
not by extravagant generalizations.

691
00:27:55.100 --> 00:27:56.700
The court has never held that potential

692
00:27:56.700 --> 00:27:58.170
as opposed to actual invasions

693
00:27:58.170 --> 00:27:59.720
of privacy constitutes searches

694
00:27:59.720 --> 00:28:01.700
for purposes of the Fourth Amendment.

695
00:28:01.700 --> 00:28:03.800
And you may be right. You may...

696
00:28:03.800 --> 00:28:05.290
What you're talking about are people

697
00:28:05.290 --> 00:28:06.770
that their Fourth Amendment rights

698
00:28:06.770 --> 00:28:07.890
haven't been implicated, right?

699
00:28:07.890 --> 00:28:09.630
Because they're not charged with a crime.

700
00:28:09.630 --> 00:28:11.110
I don't think that the Fourth Amendment

701
00:28:11.110 --> 00:28:13.480
or Article 14 provides a remedy to that.

702
00:28:13.480 --> 00:28:15.400
That's not saying that there isn't a legal remedy,

703
00:28:15.400 --> 00:28:16.540
but when you look at what

704
00:28:16.540 --> 00:28:19.400
the Fourth Amendment and Article 14 is designed to do,

705
00:28:19.400 --> 00:28:22.810
it's designed to protect individual personal rights,

706
00:28:22.810 --> 00:28:26.300
not rights wholesale of large or 50,000 people.

707
00:28:26.300 --> 00:28:28.400
So a good example, I think,

708
00:28:28.400 --> 00:28:30.740
it's sort of legally how that could happen

709
00:28:30.740 --> 00:28:35.390
is if you think about your toll reader in your car.

710
00:28:35.390 --> 00:28:36.430
There's a statute that says

711
00:28:36.430 --> 00:28:39.040
if the government wants to get that type of information,

712
00:28:39.040 --> 00:28:40.730
they have to get a search warrant.

713
00:28:40.730 --> 00:28:42.900
So there certainly are other legal avenues

714
00:28:42.900 --> 00:28:45.580
by which you could try to mitigate

715
00:28:45.580 --> 00:28:47.320
or minimize sort of invasions of privacy

716
00:28:47.320 --> 00:28:49.070
that happen to innocent people.

717
00:28:49.070 --> 00:28:50.570
That being said, I think it's important

718
00:28:50.570 --> 00:28:51.770
to look at the type of data

719
00:28:51.770 --> 00:28:54.670
that was requested and obtained in this case.

720
00:28:54.670 --> 00:28:56.690
That's not to say the ends justify the means.

721
00:28:56.690 --> 00:28:58.820
But it's always difficult in these type

722
00:28:58.820 --> 00:29:01.270
of cases where we're talking about data, generally,

723
00:29:01.270 --> 00:29:03.550
to sort of paint a picture of what it actually is.

724
00:29:03.550 --> 00:29:04.470
And when you look at it,

725
00:29:04.470 --> 00:29:07.970
it's the location of the cell tower which was connected to,

726
00:29:07.970 --> 00:29:10.703
and it's phone numbers and it's the type of message.

727
00:29:12.350 --> 00:29:13.910
I hear what you're saying, Justice Lowy,

728
00:29:13.910 --> 00:29:16.130
and I think that the mosaic theory

729
00:29:16.130 --> 00:29:17.810
is trying to get that balance, right?

730
00:29:17.810 --> 00:29:19.500
It's trying to look at the usefulness

731
00:29:19.500 --> 00:29:21.480
of these electronic surveillance tools,

732
00:29:21.480 --> 00:29:24.970
is recognizing that there could be...

733
00:29:24.970 --> 00:29:27.040
That there needs to be a balance.

734
00:29:27.040 --> 00:29:31.050
But it also is guarding against the power of technology

735
00:29:31.050 --> 00:29:33.990
to shrink the realm of guaranteed privacy.

736
00:29:33.990 --> 00:29:36.180
And I think it's that realm of guaranteed privacy

737
00:29:36.180 --> 00:29:38.060
that's important to look at because look

738
00:29:38.060 --> 00:29:40.160
at the data that was collected in this case

739
00:29:40.160 --> 00:29:42.570
as this court should and look at, historically,

740
00:29:42.570 --> 00:29:43.920
whether that type of information

741
00:29:43.920 --> 00:29:45.840
would be offered to any protections.

742
00:29:45.840 --> 00:29:47.740
And I say that it wouldn't.

743
00:29:47.740 --> 00:29:50.130
You know, locations historically so far,

744
00:29:50.130 --> 00:29:53.060
even if you look at it during the mosaic theory.

745
00:29:53.060 --> 00:29:55.910
<v ->But people don't have an expectation that...</v>

746
00:29:55.910 --> 00:29:57.690
I mean, they do have an expectation

747
00:29:57.690 --> 00:29:59.950
that the police aren't pinging them

748
00:29:59.950 --> 00:30:02.400
and trying to figure out whether they're at the...

749
00:30:02.400 --> 00:30:05.680
I mean, I find it hard to say this isn't a search.

750
00:30:05.680 --> 00:30:09.490
You're... I don't think everyone thinks,

751
00:30:09.490 --> 00:30:13.180
I had my phone on and I'm near the location of this place.

752
00:30:13.180 --> 00:30:16.313
Suddenly I'm in the realm of suspects.

753
00:30:17.910 --> 00:30:21.300
So I'm bothered by that.

754
00:30:21.300 --> 00:30:23.400
I understand this was localized.

755
00:30:23.400 --> 00:30:27.620
And that's why I'm interested in the geo-fence analogy,

756
00:30:27.620 --> 00:30:30.550
which doesn't give the cops the information

757
00:30:30.550 --> 00:30:32.360
until you've narrowed it down

758
00:30:32.360 --> 00:30:35.540
to somebody who actually might be a suspect.

759
00:30:35.540 --> 00:30:38.410
The idea that 52,000 people

760
00:30:38.410 --> 00:30:43.183
are potential suspects seems a little much.

761
00:30:45.840 --> 00:30:48.190
<v ->But I disagree that 52,000 people</v>

762
00:30:48.190 --> 00:30:49.350
are potential suspects, right?

763
00:30:49.350 --> 00:30:51.760
<v ->But the police are looking... I mean, they're not...</v>

764
00:30:51.760 --> 00:30:54.790
Yes, they're not targets at this point, but...

765
00:30:54.790 --> 00:30:55.856
<v Caitlyn>They're not.</v>

766
00:30:55.856 --> 00:30:58.250
<v ->But they're... I don't think... Don't we...</v>

767
00:30:58.250 --> 00:31:02.890
Doesn't society have an objective expectation

768
00:31:02.890 --> 00:31:04.490
that you're not gonna be swept

769
00:31:04.490 --> 00:31:09.170
into the police search this way without some more control?

770
00:31:09.170 --> 00:31:11.693
<v ->Well, my answer to that is twofold, right?</v>

771
00:31:12.930 --> 00:31:14.587
The first is if you look at Augustine

772
00:31:14.587 --> 00:31:16.870
and the cases going on from Augustine,

773
00:31:16.870 --> 00:31:18.540
but I think Chief Justice Gants' dissent

774
00:31:18.540 --> 00:31:20.550
in Augustine really describes this balancing

775
00:31:20.550 --> 00:31:22.160
that has to go on well.

776
00:31:22.160 --> 00:31:24.260
Where it talks about the reasonable expectation

777
00:31:24.260 --> 00:31:26.130
of privacy that exists when we're talking

778
00:31:26.130 --> 00:31:29.600
about electronic surveillance, which I'm not sure that...

779
00:31:29.600 --> 00:31:32.500
This does survey in as it reveals location,

780
00:31:32.500 --> 00:31:35.410
but it's not qualitatively the same type of surveillance.

781
00:31:35.410 --> 00:31:40.410
But he speaks about, you know, drawing that durational line

782
00:31:41.530 --> 00:31:43.980
and looking at what is collected.

783
00:31:43.980 --> 00:31:46.940
That the reasonable expectation of privacy is that,

784
00:31:46.940 --> 00:31:49.160
and this is under Article 14,

785
00:31:49.160 --> 00:31:51.230
a person may reasonably be subjected

786
00:31:51.230 --> 00:31:53.160
to extended electronic surveillance

787
00:31:53.160 --> 00:31:54.840
by the government targeted at his movement.

788
00:31:54.840 --> 00:31:57.320
So it is the extended nature of that.

789
00:31:57.320 --> 00:31:59.537
<v Frank>Does all that survive Carpenter?</v>

790
00:31:59.537 --> 00:32:01.160
<v ->All of that does survive Carpenter.</v>

791
00:32:01.160 --> 00:32:04.670
I would point the court to page 2,217, note three,

792
00:32:04.670 --> 00:32:08.980
which specifically states that it is...

793
00:32:08.980 --> 00:32:11.480
There is some duration. It is extremely limited.

794
00:32:11.480 --> 00:32:12.770
And they're talking about the duration

795
00:32:12.770 --> 00:32:14.580
which was requested in Carpenter,

796
00:32:14.580 --> 00:32:16.220
and it need not decide whether there is

797
00:32:16.220 --> 00:32:18.900
a limited period for which the government may obtain

798
00:32:18.900 --> 00:32:20.690
an individual's historic CSLI free

799
00:32:20.690 --> 00:32:22.540
from Fourth Amendment scrutiny.

800
00:32:22.540 --> 00:32:25.890
<v ->Does that, as Mr. Tenant points out,</v>

801
00:32:25.890 --> 00:32:29.830
survive being sliced and diced into six different episodes?

802
00:32:29.830 --> 00:32:32.110
<v ->I believe it does. I believe it does.</v>

803
00:32:32.110 --> 00:32:36.080
I believe it does because if you apply the mosaic theory,

804
00:32:36.080 --> 00:32:37.300
which this court should,

805
00:32:37.300 --> 00:32:39.970
because it's involving the electronic collection of data.

806
00:32:39.970 --> 00:32:42.150
But when you apply the mosaic theory,

807
00:32:42.150 --> 00:32:44.470
what you're looking at is the points that are revealed.

808
00:32:44.470 --> 00:32:46.090
I think it's similar,

809
00:32:46.090 --> 00:32:48.990
and this is an answer to your question too, Justice Kafker,

810
00:32:48.990 --> 00:32:51.620
about innocent people being swept up in this,

811
00:32:51.620 --> 00:32:53.590
you know, this surveillance that's going on.

812
00:32:53.590 --> 00:32:55.660
If you look at a case like McCarthy,

813
00:32:55.660 --> 00:32:57.320
every car that's going over the bridge,

814
00:32:57.320 --> 00:32:59.220
their license plate is being recorded.

815
00:32:59.220 --> 00:33:02.200
So you don't say, "We can't look for this license plate

816
00:33:02.200 --> 00:33:04.870
just because all these other license plates were collected."

817
00:33:04.870 --> 00:33:07.200
The same is true if you look at a case like Maura,

818
00:33:07.200 --> 00:33:08.620
which is pole cam cases.

819
00:33:08.620 --> 00:33:10.410
Everybody that walks by the view

820
00:33:10.410 --> 00:33:12.450
of that camera is getting recorded.

821
00:33:12.450 --> 00:33:13.687
You don't say,

822
00:33:13.687 --> 00:33:15.760
"You know, for the pole cameras that are in public places,

823
00:33:15.760 --> 00:33:18.280
that the government can't obtain it

824
00:33:18.280 --> 00:33:20.800
because other innocent people may be walking by."

825
00:33:20.800 --> 00:33:23.310
That's where I disagree, too, with my brothers,

826
00:33:23.310 --> 00:33:24.610
and I'm skipping around here,

827
00:33:24.610 --> 00:33:26.140
but I want to make sure that I make this point,

828
00:33:26.140 --> 00:33:27.870
argument about particularity.

829
00:33:27.870 --> 00:33:29.600
Because particularity has nothing

830
00:33:29.600 --> 00:33:30.820
to do with innocent people.

831
00:33:30.820 --> 00:33:32.600
Particularity has to do with defining

832
00:33:32.600 --> 00:33:34.740
the limits and scope of the search.

833
00:33:34.740 --> 00:33:36.780
And looking here, the limits in the scope

834
00:33:36.780 --> 00:33:39.110
of the search are clearly defined.

835
00:33:39.110 --> 00:33:40.260
Now that's not to say, again,

836
00:33:40.260 --> 00:33:41.870
that there isn't some other legal remedy

837
00:33:41.870 --> 00:33:45.480
which may be applied to people who do not wish

838
00:33:45.480 --> 00:33:47.530
to have this type of information revealed to the government,

839
00:33:47.530 --> 00:33:48.610
but I don't believe the remedy

840
00:33:48.610 --> 00:33:50.990
is Article 14 or the Fourth Amendment.

841
00:33:50.990 --> 00:33:53.390
Now to get your answer at...

842
00:33:53.390 --> 00:33:56.500
<v ->I mean, we can make a refinement</v>

843
00:33:56.500 --> 00:33:58.490
of this apply prospectively.

844
00:33:58.490 --> 00:34:00.940
So because I mean, we're sort of,

845
00:34:00.940 --> 00:34:04.350
just what Justice Lowy says, we're keeping up with...

846
00:34:04.350 --> 00:34:05.660
The criminals are getting smarter.

847
00:34:05.660 --> 00:34:06.850
The police are getting smarter.

848
00:34:06.850 --> 00:34:10.630
There's sort of a constant changing of the game here.

849
00:34:10.630 --> 00:34:15.460
But I don't see why the police get all this...

850
00:34:15.460 --> 00:34:17.050
If there's a way of limiting

851
00:34:17.050 --> 00:34:20.430
what the police get to the targeted person,

852
00:34:20.430 --> 00:34:21.880
wouldn't you want that?

853
00:34:21.880 --> 00:34:24.230
<v ->So my answer to that is,</v>

854
00:34:24.230 --> 00:34:26.703
we don't have the record to do that in this case.

855
00:34:27.580 --> 00:34:29.150
We don't have the record to do this in this case.

856
00:34:29.150 --> 00:34:31.000
And, you know, I can tell you,

857
00:34:31.000 --> 00:34:33.003
speaking outside the record and my experience with...

858
00:34:33.003 --> 00:34:34.470
<v ->I mean, Google can do it.</v>

859
00:34:34.470 --> 00:34:36.250
I'm not sure why the government...

860
00:34:36.250 --> 00:34:39.133
Why the telecommunication companies can't do it.

861
00:34:40.070 --> 00:34:43.030
<v ->Your honor, all I can say is you would be surprised</v>

862
00:34:43.030 --> 00:34:45.020
what you get back when you send...

863
00:34:45.020 --> 00:34:46.850
Even when you're getting a call detail record

864
00:34:46.850 --> 00:34:48.050
and administrative subpoena,

865
00:34:48.050 --> 00:34:51.860
it is extremely difficult, in my experience sometimes,

866
00:34:51.860 --> 00:34:54.440
to deal with the telephone companies and how they keep

867
00:34:54.440 --> 00:34:57.680
or sort of disseminate this information.

868
00:34:57.680 --> 00:35:00.190
So I hear what you're saying. It's not on this record.

869
00:35:00.190 --> 00:35:03.510
And I would say, looking at it here,

870
00:35:03.510 --> 00:35:04.950
and I think that this is important

871
00:35:04.950 --> 00:35:07.610
when you look at the burdens and emotion to suppress,

872
00:35:07.610 --> 00:35:09.510
it is the defendant's burden to prove that

873
00:35:09.510 --> 00:35:12.690
his reasonable expectation of privacy was intruded upon.

874
00:35:12.690 --> 00:35:15.200
Looking at the data that was collected,

875
00:35:15.200 --> 00:35:18.280
which I think is critical under the mosaic theory.

876
00:35:18.280 --> 00:35:20.810
And under any principle, the defendant has not done

877
00:35:20.810 --> 00:35:24.380
that here because you only, with locational data,

878
00:35:24.380 --> 00:35:26.080
gain an expectation of privacy.

879
00:35:26.080 --> 00:35:31.080
If it reveals the intricacies and private associations,

880
00:35:31.900 --> 00:35:34.190
private things that happen in your life.

881
00:35:34.190 --> 00:35:35.920
And there's absolutely no showing

882
00:35:35.920 --> 00:35:38.030
on this record that any of that happened here.

883
00:35:38.030 --> 00:35:39.907
I mean, and the best case...

884
00:35:39.907 --> 00:35:40.933
<v Serge>How about where you go?</v>

885
00:35:41.780 --> 00:35:42.780
<v ->where you go,</v>

886
00:35:42.780 --> 00:35:45.610
you only have an expectation of privacy in where you go

887
00:35:45.610 --> 00:35:50.230
if the whole picture that is captured by...

888
00:35:50.230 --> 00:35:51.480
You know, think of the mosaic theory,

889
00:35:51.480 --> 00:35:52.700
every single tile is something

890
00:35:52.700 --> 00:35:54.720
that you wouldn't necessarily get.

891
00:35:54.720 --> 00:35:56.630
I don't think that there is that showing here

892
00:35:56.630 --> 00:35:58.200
because of the limited duration.

893
00:35:58.200 --> 00:36:01.010
We have that this person was hitting off this cell tower,

894
00:36:01.010 --> 00:36:02.820
but we don't even have movement, as you do,

895
00:36:02.820 --> 00:36:04.190
in some of these cases.

896
00:36:04.190 --> 00:36:06.840
So I just think if you look at it under the mosaic theory,

897
00:36:06.840 --> 00:36:09.210
that it doesn't rise to that level.

898
00:36:09.210 --> 00:36:10.770
Now I want to hit my first point,

899
00:36:10.770 --> 00:36:12.860
which is formerly abandoning the standing and--

900
00:36:12.860 --> 00:36:14.220
<v ->Can you? I'm sorry.</v>

901
00:36:14.220 --> 00:36:16.110
Before you go to the first point.

902
00:36:16.110 --> 00:36:17.527
On your second point,

903
00:36:17.527 --> 00:36:20.510
which I talked about the six hours issue,

904
00:36:20.510 --> 00:36:22.070
and this goes to a lot of questions

905
00:36:22.070 --> 00:36:24.890
that you've already discussed.

906
00:36:24.890 --> 00:36:28.530
But when you talk about the mosaic theory,

907
00:36:28.530 --> 00:36:33.530
what about when the six hours are broken off and there's...

908
00:36:34.220 --> 00:36:37.110
And you're looking over the course of four hours,

909
00:36:37.110 --> 00:36:41.410
you can see that the person was at this political event

910
00:36:41.410 --> 00:36:45.700
or at this other association six times.

911
00:36:45.700 --> 00:36:49.540
So the question that Mr. Tanner raised

912
00:36:49.540 --> 00:36:52.100
about breaking up the time.

913
00:36:52.100 --> 00:36:55.630
Could the six hours mean six continuous hours

914
00:36:55.630 --> 00:36:58.070
from the Augustine incident?

915
00:37:00.920 --> 00:37:05.470
<v ->So I think how you should look at it.</v>

916
00:37:05.470 --> 00:37:07.240
I think there is a recognition that

917
00:37:07.240 --> 00:37:08.830
there is some limited period of time

918
00:37:08.830 --> 00:37:11.550
in which individuals don't have an expectation of privacy

919
00:37:11.550 --> 00:37:15.220
and because the picture that it reveals is not big enough.

920
00:37:15.220 --> 00:37:17.970
I think the Maura and McCarthy

921
00:37:17.970 --> 00:37:20.790
have really good language as to this question.

922
00:37:20.790 --> 00:37:22.360
Maura says, "Whether this surveillance

923
00:37:22.360 --> 00:37:24.120
was so targeted and extensive,

924
00:37:24.120 --> 00:37:25.470
and that the data it generated

925
00:37:25.470 --> 00:37:28.130
in the aggregate exposed otherwise unknowable details

926
00:37:28.130 --> 00:37:29.490
of a person's life."

927
00:37:29.490 --> 00:37:32.160
McCarthy says, "The analysis should focus ultimately

928
00:37:32.160 --> 00:37:34.020
on the extent to which a substantial picture

929
00:37:34.020 --> 00:37:37.610
of the defendant's movements are revealed by surveillance."

930
00:37:37.610 --> 00:37:39.410
I don't think that six hours,

931
00:37:39.410 --> 00:37:41.630
whether you look at it as a continuous six hours,

932
00:37:41.630 --> 00:37:45.090
or whether you look it up as a broken up piece by piece.

933
00:37:45.090 --> 00:37:46.820
Six hours gets you there.

934
00:37:46.820 --> 00:37:49.297
But even so, even if this court were to say,

935
00:37:49.297 --> 00:37:52.250
"Okay, maybe we should look on it at a case by case basis."

936
00:37:52.250 --> 00:37:54.820
Here, it would be the defendant's burden to prove that

937
00:37:54.820 --> 00:37:57.260
the electronic surveillance in this instance did.

938
00:37:57.260 --> 00:37:58.093
And he...

939
00:37:58.093 --> 00:38:01.700
There is absolutely nothing on this record to show if--

940
00:38:01.700 --> 00:38:06.090
<v ->Counsel, can I ask you to address opposing counsel's point</v>

941
00:38:06.090 --> 00:38:08.360
regarding the bright-line rule?

942
00:38:08.360 --> 00:38:10.260
I mean, the whole reason the six hours

943
00:38:10.260 --> 00:38:13.660
was set forth was to create this bright-line rule.

944
00:38:13.660 --> 00:38:18.660
Now if I start allowing six hours from whatever day,

945
00:38:21.107 --> 00:38:23.147
you know, arguably the police could say,

946
00:38:23.147 --> 00:38:26.910
"Well, let's see if Mr. Smith is home

947
00:38:26.910 --> 00:38:28.828
at 4:00 a.m, all right?

948
00:38:28.828 --> 00:38:30.420
Let's monitor his...

949
00:38:30.420 --> 00:38:33.860
The cell tower closest to his home for 10 minutes.

950
00:38:33.860 --> 00:38:37.110
And then on Sundays at 10:00 a.m.,

951
00:38:37.110 --> 00:38:39.340
let's see if he's at the Catholic church,

952
00:38:39.340 --> 00:38:41.570
and do that for another 10 minutes."

953
00:38:41.570 --> 00:38:43.710
And so I can start painting

954
00:38:43.710 --> 00:38:48.370
a really good mosaic picture of Mr. Smith

955
00:38:48.370 --> 00:38:51.710
if the rule suddenly becomes six hours

956
00:38:51.710 --> 00:38:53.720
from wherever, you know,

957
00:38:53.720 --> 00:38:56.740
as opposed to the bright-line of six continuous hours.

958
00:38:56.740 --> 00:38:58.130
Can I ask you to address that?

959
00:38:58.130 --> 00:39:03.130
<v ->Certainly. So, again, I don't...</v>

960
00:39:03.380 --> 00:39:05.700
Looking at Augustine itself and looking at Estabrook,

961
00:39:05.700 --> 00:39:07.590
I don't see the word continuous in there

962
00:39:07.590 --> 00:39:09.740
so that's my first response.

963
00:39:09.740 --> 00:39:13.090
The second is that may be so, but on the facts of this case,

964
00:39:13.090 --> 00:39:14.870
that showing hasn't been made.

965
00:39:14.870 --> 00:39:15.780
So it could be then if--

966
00:39:15.780 --> 00:39:18.530
<v ->So if we wanted to stick with the bright-line rule,</v>

967
00:39:18.530 --> 00:39:19.363
that you would agree that

968
00:39:19.363 --> 00:39:21.800
the continuousness would be important.

969
00:39:21.800 --> 00:39:25.477
Because if you allow the police just to say,

970
00:39:25.477 --> 00:39:28.760
"Okay, six hours in Justice Wendlandt's life,

971
00:39:28.760 --> 00:39:31.250
whatever six hours you may choose."

972
00:39:31.250 --> 00:39:35.300
You can choose specific hours and figure out where I am

973
00:39:35.300 --> 00:39:38.730
and start painting a picture of Justice Wendlandt's life.

974
00:39:38.730 --> 00:39:40.020
<v Caitlyn>And that may be so.</v>

975
00:39:40.020 --> 00:39:40.938
<v ->Yeah.</v>

976
00:39:40.938 --> 00:39:43.010
<v ->And that may be so. I would say that it would be--</v>

977
00:39:43.010 --> 00:39:44.320
<v ->It may not have happened here.</v>

978
00:39:44.320 --> 00:39:45.760
I'm just saying in general,

979
00:39:45.760 --> 00:39:47.930
if we wanted to issue a bright-line rule,

980
00:39:47.930 --> 00:39:50.639
which is why in Estabrook we said six hours.

981
00:39:50.639 --> 00:39:51.472
<v Caitlyn>Correct.</v>

982
00:39:51.472 --> 00:39:52.460
<v ->Or in Augustine.</v>

983
00:39:52.460 --> 00:39:54.690
It starts getting into a slippery slope

984
00:39:54.690 --> 00:39:57.200
if I let you break it up.

985
00:39:57.200 --> 00:39:58.033
<v ->It may.</v>

986
00:39:58.033 --> 00:40:00.530
I would say, you need not reach that question here

987
00:40:00.530 --> 00:40:02.780
because it is not on the record here.

988
00:40:02.780 --> 00:40:04.820
And I would say that if a defendant wishes

989
00:40:04.820 --> 00:40:07.480
to make that argument

990
00:40:07.480 --> 00:40:11.840
and it could be in certain instances that they could show

991
00:40:11.840 --> 00:40:14.410
though this bright-line rule exists, look here.

992
00:40:14.410 --> 00:40:15.740
This mosaic that we're talking about,

993
00:40:15.740 --> 00:40:17.860
these unknowable details of personal life,

994
00:40:17.860 --> 00:40:18.703
that's what happened here.

995
00:40:18.703 --> 00:40:20.460
<v ->Right, and so that would defeat</v>

996
00:40:20.460 --> 00:40:22.180
the whole point of the six-hour rule,

997
00:40:22.180 --> 00:40:24.123
is if it's case by case, then,

998
00:40:25.160 --> 00:40:27.763
you know, why delineate this rule?

999
00:40:29.640 --> 00:40:31.600
<v ->It would, I would say, if you look at the...</v>

1000
00:40:31.600 --> 00:40:32.590
If you look at Augustine,

1001
00:40:32.590 --> 00:40:35.040
in a footnote is where they talk about a limited duration.

1002
00:40:35.040 --> 00:40:36.990
They pick six hours.

1003
00:40:36.990 --> 00:40:38.840
If you look at Chief Justice Gants' dissent,

1004
00:40:38.840 --> 00:40:41.270
he talks about figuring out some sort

1005
00:40:41.270 --> 00:40:43.940
of duration for which there wouldn't be.

1006
00:40:43.940 --> 00:40:45.900
But really, this balancing test.

1007
00:40:45.900 --> 00:40:48.060
I would say that, you know,

1008
00:40:48.060 --> 00:40:50.560
where the mosaic theory has been more developed here

1009
00:40:50.560 --> 00:40:53.160
and talks about the development of the points

1010
00:40:53.160 --> 00:40:54.590
and looking at these points and looking

1011
00:40:54.590 --> 00:40:56.160
at the picture that the points,

1012
00:40:56.160 --> 00:40:59.220
that the overall big picture that the points creates,

1013
00:40:59.220 --> 00:41:02.280
I, you know, it wouldn't be dispositive

1014
00:41:02.280 --> 00:41:04.140
to this case and it wouldn't matter.

1015
00:41:04.140 --> 00:41:05.010
<v Dalila>Thank you.</v>

1016
00:41:05.010 --> 00:41:06.820
<v Elspeth>Would you go on to the first point?</v>

1017
00:41:06.820 --> 00:41:08.610
<v ->Thank you (chuckles).</v>

1018
00:41:08.610 --> 00:41:10.610
I will happily go on to the first point.

1019
00:41:12.820 --> 00:41:15.280
As this court and as chief...

1020
00:41:15.280 --> 00:41:18.420
As Justice Cypher wrote

1021
00:41:18.420 --> 00:41:22.410
in her concurrence in Delgado-Rivera,

1022
00:41:22.410 --> 00:41:24.880
I think it is time for this court to revisit

1023
00:41:24.880 --> 00:41:27.560
the standing issue as a separate analysis.

1024
00:41:27.560 --> 00:41:29.010
I don't believe...

1025
00:41:29.010 --> 00:41:31.760
If you even look at a Commonwealth V Amendola

1026
00:41:31.760 --> 00:41:35.190
which adopted the separate standing analysis in 1990,

1027
00:41:35.190 --> 00:41:37.860
even in that case, it doesn't make much sense.

1028
00:41:37.860 --> 00:41:40.210
They find that the defendant has standing to challenge

1029
00:41:40.210 --> 00:41:41.900
yet they remand it for the question

1030
00:41:41.900 --> 00:41:43.410
of reasonable expectation of privacy,

1031
00:41:43.410 --> 00:41:45.150
whether he had a subjective expectation

1032
00:41:45.150 --> 00:41:46.460
of privacy in the trunk.

1033
00:41:46.460 --> 00:41:49.870
So the dispositive factor is this expectation of privacy.

1034
00:41:49.870 --> 00:41:51.930
I think it gets even more complicated

1035
00:41:51.930 --> 00:41:54.520
when we're talking about electronic data search...

1036
00:41:54.520 --> 00:41:57.590
And searches that happen and continue

1037
00:41:57.590 --> 00:41:59.160
to happen with more frequency here.

1038
00:41:59.160 --> 00:42:02.090
Because if you look at this traditional standing analysis,

1039
00:42:02.090 --> 00:42:04.440
which looks at whether the person was present

1040
00:42:04.440 --> 00:42:07.380
or whether the person has a substantial possessory interest

1041
00:42:07.380 --> 00:42:08.540
in the items searched,

1042
00:42:08.540 --> 00:42:10.670
or the place search or the item seized,

1043
00:42:10.670 --> 00:42:13.000
it gets really convoluted and complicated

1044
00:42:13.000 --> 00:42:15.180
to try to understand.

1045
00:42:15.180 --> 00:42:19.130
I think it has only gotten more complicated post

1046
00:42:19.130 --> 00:42:21.720
the announcement of adopting it in 1990.

1047
00:42:21.720 --> 00:42:24.690
Specifically, if you look at a case like Mob D

1048
00:42:24.690 --> 00:42:26.810
in which, you know, they discuss Amendola.

1049
00:42:26.810 --> 00:42:28.960
They then turned to reasonable expectation of privacy.

1050
00:42:28.960 --> 00:42:30.610
They say it's the defendant's burden to prove

1051
00:42:30.610 --> 00:42:33.300
that someone has a reasonable expectation of privacy.

1052
00:42:33.300 --> 00:42:34.630
They cite to the Carter case,

1053
00:42:34.630 --> 00:42:38.500
which expressly disavows that very notion.

1054
00:42:38.500 --> 00:42:39.730
But even more so than that,

1055
00:42:39.730 --> 00:42:42.190
if you look at this idea of an objective somebody,

1056
00:42:42.190 --> 00:42:43.560
it's against the very text

1057
00:42:43.560 --> 00:42:45.690
of the Fourth Amendment in Article 14,

1058
00:42:45.690 --> 00:42:47.310
which talk about the right of people

1059
00:42:47.310 --> 00:42:49.710
to be secure in their person's houses, papers, and effects.

1060
00:42:49.710 --> 00:42:51.277
<v Dalila>My understanding is the Fourth Amendment</v>

1061
00:42:51.277 --> 00:42:53.440
and Article 14 are personal rights.

1062
00:42:53.440 --> 00:42:54.370
<v ->They are personal.</v>

1063
00:42:54.370 --> 00:42:57.100
And, you know, the text of Article 14

1064
00:42:57.100 --> 00:42:58.300
and the Fourth Amendment support that.

1065
00:42:58.300 --> 00:42:59.290
Look at Article 14.

1066
00:42:59.290 --> 00:43:01.700
They say, "Searches and seizures of his person,

1067
00:43:01.700 --> 00:43:04.850
his houses, his papers, and his possessions."

1068
00:43:04.850 --> 00:43:06.700
So it was always meant to be personal

1069
00:43:06.700 --> 00:43:10.130
to that person exerting their rights,

1070
00:43:10.130 --> 00:43:11.450
which I think is important here

1071
00:43:11.450 --> 00:43:14.590
when we can't go down and look at the 50,000 other people.

1072
00:43:14.590 --> 00:43:16.740
We have to look at the defendant himself

1073
00:43:16.740 --> 00:43:18.083
and his privacy interests.

1074
00:43:19.350 --> 00:43:22.340
So thank you for letting me get to my first point,

1075
00:43:22.340 --> 00:43:26.780
but I ask that this court formally abandon this standing.

1076
00:43:26.780 --> 00:43:28.237
<v Dalila>Thank you.</v>

1077
00:43:28.237 --> 00:43:30.263
<v Elspeth>Thank you.</v>
<v ->Thank you.</v>