-: SJC-13171 Commonwealth V Christopher D. De Jesus.
-: Attorney Hagar?
-: Yeah. -: That's how you say it?
-: Yes, Hagar, yes, Arnold, thank you.
Good morning.
May it please the Court, Mr. Hagar for Mr. Jesus.
We have published this on appeal.
I'll deal with the (indistinct) first.
We got it standing.
We have a situation, both crime while possession,
two (indistinct) outstanding.
One is the search happened at the time of the crime,
and he was present on the premises
at the time of the search,
which we have in this situation.
He was in the porch on the side when the police arrived,
and he was on the premise at the time
the police cut to the search.
But I'll also point to the Franklin case,
where point of a Stoffel,
where the Commonwealth even put the defendant-
Chief Justice: I'm sorry, Attorney Hagar,
can I just ask you to slow down just a little bit?
-: Okay.
-: And then just before you go on,
can you just tell us why we should consider it
a curtilage argument?
Hagar: Oh yes, the curtilage argument, yes.
-: Why should we?
Why should we think about it at all
since it wasn't raised at the appeals court?
-: Oh, the waiver, yes.
As I cited in our brief, Your Honor,
you can certainly view our arguments a ways below,
so long as the record is sufficient
to have a find of the curtilage.
And he was slow with the standard,
so the record here was sufficient to show
that the cellar was part of the curtilage of the home.
And also there's, if the evidence is suppressed,
insufficient evidence,
which creates a substantial risk miscarriage of justice.
And that's enough to now view the waiver argument
and that it should be reversed.
So that's the reasons why it was raised.
-: So you're saying just,
if there's a substantial risk of a miscarriage of justice,
we should look at it regardless
of whether it was raised at the appeals court?
-: Yes, case law in point
that if record is sufficient to make the argument,
which it is here, and insufficient evidence equates
a substantial risk of miscarriage of justice,
therefore you can review it.
-: But is that your secondary argument
if the first one doesn't go forward?
-: Yeah, well basically it's, there's no evidence,
so certainly it's only harmless error,
but certainly it's also created a substantial risk
of miscarriage of justice when you're both present here,
and even though it's making waves,
you can still review it as if I was
here to state. -: Okay.
-: Standing up- -: On that issue,
it wouldn't be reached if the theory is
that he was not alleged to have possessed the firearm
at the time that he was on the side of the house,
that the time of possession was the time in the Snapchat.
-: Yeah well, if he's present, Amendola outstanding,
we have possessionary crime,
both charges, the feeding device and the firearm
of a possession- -: Wait, wait, wait.
Did you say if he's present?
-: Yes, he's present- -: But that's not
my understanding of Amendola.
My understanding is that if he's charged
with a possessory offense, he has automatic standing
whether or not he is present.
That's what I thought Amendola said.
-: Yeah, Amendola, the overall policy of Amendola is
you need to show that the individual,
the search happened with a conscious of sense.
And I'll say Amendola states that-
-: [Justice Wendlandt] Counsel, can I ask you again
to slow down?
It's just really difficult for me understand you-
-: All right, sorry, Your Honor.
-: Given the mask and the speed
at which you're speaking. -: And you know,
you can take off your mask if you want.
-: Well, I'm at that state.
I'm sorry, Your Honor. -: I'm not saying you want to.
-: Okay.
Yes, Your Honor.
So essentially Amendola law stands for the principle
that you don't want to put the individual
in a dilemma of self-incrimination.
And here he's here with the police in the night,
at 10:30 at night, he's being held by the police.
He shouldn't be forced to say, "That's my firearm."
It's the general principle of Amendola outstanding is
in the event the defendant be in a dilemma
of self incrimination or be impeached at trial,
but certainly his presence,
the Franklin case is pretty much on point.
You got in presence and that the individual prior
to the event, should find Andrew's girlfriend,
police arrived later on.
He was still- -: I'm so sorry.
Did you say you're not vaccinated?
-: I'm sorry, what?
-: You say you're not? -: Yes.
Chief Justice: Okay, so you do have
to wear your mask. -: You gotta wear your mask.
Chief Justice: Yeah, I'm sorry.
-: So anyway, so the Franklin case,
the individual was still present on the premises
when the police arrived.
He was not in an exact location
that he was in an adjacent room,
but he's on the property.
So the Franklin case is pretty much on point,
and the principle that if you're present on the property,
if we get standing a challenge to search-
-: Well, Counsel, I just,
I'm just trying to follow your progression.
You keep saying that Mr. De Jesus was on, he wasn't there.
There was a factual finding by the court
that he wasn't onsite.
He was next door at four, I believe it was number four,
whatever the name of the street was.
But you keep saying he wasn't.
Where's your support for that he was there at number 14?
-: He was on the porch on the side and the police arrived,
and that's, it's not a factual finding.
It's more, it's really a presence of a legal argument
as much as a factual argument.
Justice: You are really hard to follow.
Could you slow down and enunciate a little more clearly?
-: Yeah. -: 'Cause we're gonna lose
your whole argument.
-: Oh yeah, the presence is also a legal argument,
and the point is is he actually there.
And he was present on the premises when the police arrived
and he was on the porch on the side (indistinct).
And then when the police exited the cruiser,
he started to walk away.
-: Right. -: Then they detained him.
So I would argue that he's present on the property,
but I also argue that Amendola and automatic standing
comes down to the issue of you don't put the defendant
in a situation where he has to self incriminate himself.
-: Okay. -: And that's the
overlying principle.
I'd also argue that on the Franklin case,
that when you have a situation
where the Commonwealth takes a position
that he's present on the property,
which he did at closing argument,
they're not allowed to flip flop and use the,
from a stopper standpoint,
I got something else at the motion special hearing.
So Franklin stands to the point from a fairness standpoint,
if the Commonwealth takes the position
that he's present on the property
to support an investigation,
they cannot use the other argument that he's not there
for motion express argument.
I'd also argue, I might do a (indistinct)
is also a possibility of target standing,
where he was the target of the investigation,
the Snapchat video.
And I would argue as you read his conduct by the police
to show up there with 20 officers at 10:30 at night,
and chase people into the cellar.
And also see the overall principle of Amendola,
of exclusionary rule is that it's not fair
to not give the opportunity to challenge the search.
And the police activity here, I think i was egregious
and that explicitly we should apply
the (indistinct) have automatic standing.
We go to the curtilage argument, expectation of privacy.
This is a home.
And therefore he has two ways of challenging the search.
One is to show the area as part of the curtilage
of the house.
And in parallel to that, he can show that somebody,
one of the tenants or landlord,
had an expectation of privacy in the cellar.
They're mutually exclusive.
They're side by side.
And contrary to the first preposition,
expectation of privacy does not supplant
the curtilage argument.
Curtilage is tied to the home,
and it's a certain (indistinct) I think you can make.
Regarding the curtilage, looking at the done factors
on proximity and enclosure,
the cellar was below the three apartments
connected by a stairway.
So certainly proximity and enclosure was part of the home.
Regarding nature of use, if you look back
at the motion special hearing,
there was likely about two laundry rooms.
There was tables.
There was chairs.
There was benches.
There was bureaus.
There was a couple of locked stowage areas,
the tennis shoes, the area where you have the guests
down there, they have it for the video.
So they use the dumpster in that section of the house.
It's almost like a living room, or a man-cave, if you will.
So, given that being said,
that's certainly that nature of use was one
in which the area was used as if (indistinct) extends
and that they used the area as if it's a living room,
entertainment, laundry, and storage.
Regarding our technical observation, it's the cellar.
It was in, the cellar was in the foundation.
You had to go down below grade,
a flight of stairs to get downstairs.
The door was in the back of the house,
not in the front of the house.
It was away from the street.
There's no evidence there's any windows in the home.
There's no evidence to anybody use it.
There's no evidence that the guests came through the cellar
as a front doorway.
And so we'd say that certainly they took steps
to protect it from observation.
So in that situation that certainly the cellar
in this situation, based on the record,
we can find it's part of the curtilage.
I would also argue that the Escolera case,
which the court, this court, found
to support a search warrant, found that a cellar
in a three-family home is part of the curtilage.
Now the only exception to what's been in Escolora
in our case is only one tenant had use of the cellar,
and there was a lock on the door.
Jeanette Leslie found that
when you're dealing with curtilage,
you don't have to have exclusive use by one tenant.
If the tenants are collectively used in the same manner,
it'd still part of the curtilage.
Also regarding locks, the motion judge found no locks.
I direct the court to the cross-examination
of Officer Mendez in that he said that there was a knob
on the door, but he cannot say for sure, lock or no lock.
So we can't say for sure there's no locks.
So I would strongly argue that Escolera case is on point
to show this cellar is part of the curtilage.
When that happens, we find that the area
is a contradiction (indistinct) area.
And then we try to find whether or not
there's any police intrusion into the area.
If the police intrude into a curtilage,
(indistinct) in the curtilage,
which is a constitutionally protected area,
police intrude in that area, it's deemed a search.
If there's a physical intrusion into the curtilage
or the cellar, it's deemed a search.
I'd also argue that it's said you have to redeem part
of the curtilage, given the done factors.
-: Can I ask you one question about the done factors,
because you make mention of it in talking about the record?
Was it, one of the things that struck me about this case was
the rear of the home seemed to be a little bit different
than you would have with a typical home.
It seemed as if there were other residents,
there were other homes behind number 14,
that if I remember correctly,
there wasn't a fence between those,
the dwelling behind there.
It was the big open yard.
Again, knowing that done's not necessarily dispositive,
doesn't that change the whole access part,
because it was evidence in the record
that the door was ajar, whether or not the door knob
had a locking mechanism or not.
If you couple that with the fact
that it was a big open backyard
that other folks use to access the rear dwellings
behind number 14, doesn't that cut against?
Doesn't that cut against you?
-: No, Your Honor.
We're dealing with observation, not trespass.
And I think the door leads down to a stair
in a long hallway.
So we're dealing with a done fact that deals with
can people observe and to the cellar.
That's the key question, Your Honor.
So yes, there might be observation.
The key thing is was there such observation
where you can look into the cellar?
So the issue is more along the lines
of not trespassing per se,
but showing that you took steps
to exclude viewing from passer-by.
Now, I would say that the cellar door,
there's no evidence that the cellar door was all windows.
And you went down a flight of stairs into a long hallway.
So I don't think the cellar could be viewed,
based on the record, from the neighboring homes.
-: [Justice Wendlandt] What is your legal authority
for the proposition that it's about observation?
-: Well, the Leslie case,
all the cases that the observation has to deal with.
The Leslie case dealt with, we talked about fences,
enclosures, they had recycling bins
blocking the porch and whatnot.
So the fourth done factor deals with observation,
whether or not a passerby can see into it,
like a plain view, if you will.
So the fourth done factor deals with can people-
-: I see, so you're focused on the fourth done factor.
-: Yes, I was asking you an honest question
regarding that issue.
If the area can be viewed easily,
that cuts against the curtilage argument, but here it's-
-: But the curtilage argument really focuses
on whether or not the area is intimately tied
with activities that you would normally associate
with the home.
-: Yes, you would, Your Honor.
In regarding that, Your Honor, nature of use,
you have a situation where there's two laundry rooms,
there's tables, there's chairs, there's benches,
there's bureaus, there's a video itself,
people being there to make videos.
And so you can almost got,
it's not really a man-cave per se,
but the cellar was used for laundry, which is everyday life.
People do laundry all the time.
There was tables and chairs.
Even the defendant's girlfriend said it's a public place.
-: What is the evidence of who had access to the cellar?
-: Well, the police indicated that they thought
that all three tenants had access to the cellar.
The police indicated that they thought,
I think Officer Mendez indicated he thought, the police,
that three tenants had access to the cellar.
That was the police's opinion.
So the police, I don't know, I saw it on site,
but the police indicated that.
And so there's no evidence
that the public at large came through this.
It's not a front doorway.
There's no evidence that the public at large
came through the cellar to enter to the unit.
In regard to the intrusion, police have a license
to enter on the property,
which is basically come on the property,
ask questions, and leave, implied license,
which is limited in scope, duration, and purpose.
And here, there's no justification for the police
to chase the individuals into the side yard,
much less the cellar.
So at a minimum when they entered the cellar,
they certainly overstepped their license.
Any justifications, there's no justification.
There's no probable cause here.
There's no extant circumstances here.
So the entry at the cellar triggered the search.
That's when started.
The search happened when they entered the cellar.
Based on the Leslie case,
there's no justification here for the search.
It's getting back to standing again, Your Honor,
as I like to say that,
some of the reasons why there's standing,
he was present on the property.
This entire event happened, the same transaction occurred
once he was still there, when they searched the cellar.
He was being held by one of the officers.
The Amendola- -: Counsel,
can I interrupt you just 'cause the one thing you said,
I don't want your time to run out.
You mentioned that you thought
that there were no exigent circumstances here.
You don't think that viewing that video
where those firearms are depicted,
localizing it to number 14, going there,
and seeing all of these folks disperse,
including a bunch of, I forget,
the guy who's the account holder running around back
and alighting down the stairs into the basement.
You don't think that that's,
those are exigent circumstances?
-: I'm pretty sure, from my recollection of the record,
Your Honor, they weren't sure where the firearm was.
They weren't, they didn't know-
-: Oh no, I'm not saying that they did,
but they say that if a bunch of folks run down
into the basement of number 14,
where they knew that's where they were at,
doesn't that help?
-: Nope.
Your Honor, they didn't know what the cellar was.
They're not, in the Snapchat video,
Officer Mendez I'm pretty sure, check me on this.
I'm almost positive he said,
"I don't know where the cellar was."
-: Mm-hm. -: So I don't think
that is enough.
And I think on the Warren case, I believe, you know,
flight is only one factor,
but not itself going into exigent circumstances.
And I'd argue the Alexis case
is supposed to be treated into the house.
And so I'd argue that because he did not,
I also think, well, you say, you know,
probable cause before and during the surveillance.
I would not say that, Your Honor.
Chief Justice: Okay, I'm sold.
Is that it?
Does that answer...
-: Yes.
-: Okay, I'm gonna tell you that your time is up.
And I thank you.
-: Oh, thank you, Your Honor.
-: Okay, Attorney Stern.
-: Good morning, Your Honors,
Shoshana Stern for the Commonwealth.
Your Honors, the Commonwealth takes the position
that the appeals court reached the correct conclusions
in its decision in this case regarding standing,
which we argue is dispositive.
-: You do agree though that their understanding of standing,
where they sit, if they're present at the time of search,
is not necessary to automatic standing?
-: I suppose it would be a rare circumstance
in which a defendant, yes-
-: Yeah, but I mean, I'm just talking about our case law,
what are these- -: Yeah, no,
the standard is if you're charged with possession
at the time of the search.
So in theory, if it's constructive possession
through somebody else,
then I imagine you would likely not need to be present.
I think frequently-
-: And then I want to know where
in the case law that popped up.
I just, I'm trying to, find it, but anyway-
-: I actually had not thought about that, Your Honor.
I'm sorry. (laughing) -: Never mind.
-: I looked into many things and that was,
but I could look into it if you want.
Justice Cypher: No, no.
-: I do think it would be a rare case
in which you would be present and not be charged
with possession at the time of the offense,
and therefore sort of from the perspective of,
you would frequently be present.
They would frequently merge.
But that is true.
I had not sort of-
-: Well, in Frazier, the defendant wasn't present
at the time of the search of the handbag.
-: Well, again, there is,
there's a lot of language specifically, I think about,
you know, relative positions of co-defendants
and constructive possession.
I mean, for constructive possession,
you don't need to be present, so-
-: But Frazier wasn't a constructive possession case, was it?
-: Off the top of my head, unfortunately...
-: Yeah, just to refresh your recollection-
-: Yes, thank you.
-: Frazier was a case where the defendant's girlfriend
had a handbag that had the cocaine in it.
She was in a doughnut store.
He was in a car.
And so he was arguing that he would have automatic standing
because he was charged with a crime
where possession was an element.
So he was neither there at the time of the search,
nor was he charged with possessing the cocaine
at the time of the search either.
-: I don't, with particularly with Frazier,
I don't know, Your Honor.
The language about at the time
of the offense goes back to Jones.
So it's not, and it was applied in Morabi
before the adoption-
-: And Jones, you're talking about your
Supreme Court Jones? -: V United States, yes.
-: Okay. -: So it's not,
it was not a belatedly added or sort of,
I know what the source of that is, at least
at that far back.
-: You mean, you know the source
of present at the time of search?
-: No, I know the search is the source of
at the time that I'm charged with possession
at the time of the search.
-: Okay, but that said, well, never mind.
-: Yes, no, but unfortunately I cannot answer at the moment,
your question with regard to Frazier.
-: No problem. -: I'm sorry.
So...
-: Where are we now?
Particularly after Delgado-Rivera,
where are we on standing then
on this automatic standing when you're not present?
-: I mean, Delgado-Rivera says
that Mubdy is within the context
of somebody else related to the offense.
So that does not by itself contain an element of presence.
It does contain an element of limited world
of people who can have a reasonable expectation of privacy.
And the appeals court, I would argue,
properly found that in this case,
no one had a reasonable expectation of privacy
in the basement, in this particular basement.
-: But doesn't, I mean,
we've got a constructive possession case, right,
based on a Snapchat video from the day before.
It's not present in the building when they find the,
this is turning into like, I don't know.
It's turning into a mess, isn't it?
I mean, I'm-
Shoshana: It's a very unusual fact pattern,
I would think.
I would not think this would come up very often.
-: But I mean, I guess, isn't it important
in a constructive possession case that, I mean,
it's a video where three guys, right, the Snapchat video,
three people, do they change the firearm?
Do they pass the same firearm?
Are they all showing different firearms?
I can't remember.
-: I think two people are holding this firearm,
but the defendant is very clearly holding the firearm
and dangling it as described in the video.
So he's not, I don't think that the focus was on
what the other people in the group we're doing with the gun.
And it was made clear, the Commonwealth, I mean,
a lot of the theory behind automatic standing is
that the Commonwealth can't have it both ways.
You can't say, "Well, you didn't say you possessed it,
so you can't challenge it, but you totally did possess it
at the time, and we're gonna prosecute you for it."
Here, the Commonwealth was, I believe, clear at trial
and evidently clear that there,
I don't think anyone ordered the second transcript,
the transcript of the second motion hearing
that was just argument, that judged a pre-finding
that the Commonwealth had already committed
that the possession was at the time of the video.
And I, frankly, I don't know that we could have shown
in any event possession at the time that this gun was found
in a basement of a place the defendant didn't live.
There's no evidence.
And we didn't allege that it was his gun.
We didn't allege that it was his place.
We alleged that there's video evidence.
And so I think in that sense,
it's analogous to Mora that there's evidence from,
in that case, a witness in this case,
a video that the defendant had the thing, but that...
-: But are we gutting?
I mean, I'm not sure Mugdy made sense to begin with,
but are we gutting this principle at this point,
where, you know, you're being,
it's a possession case, right?
It's a constructive possession case,
and now we're not giving him an ability to challenge it.
Correct? -: I wouldn't say
it is a constructive possession case.
-: Well, it is. -: I think we might've,
I think that on different facts
it could have become a, if there was-
-: It was a pure possession case
because he's pictured in the video passing it around, yeah?
-: Well, that he is pictured posing with it
in a fairly dramatic fashion that is intended
to show his demanding control over the gun.
If he were to just hold, I mean, I guess you could argue,
but I mean, possession of a firearm these days is
in general having it at all.
And in this case that he was clearly intending to convey
to the audience that he was in control over this gun.
-: Ms. Stern, I agree with you.
These are unusual facts.
But I'm trying to understand the rationale
for standing in this circumstance, and if there is,
whether we ever, or isn't, whether we even reach the issue
of expectation of privacy.
So if the point of automatic standing for possessory crimes
is it's just unfair for a defendant and a co-defendant
to have different dispositions, number one,
how was that concept applicable to a search
when a time of possession is not at the time of the search
and there's no constructive possession argument,
it's joint possession?
And number two, if there isn't, where it is standing,
do we necessarily, in all circumstances, nonetheless,
analyze expectation of privacy, or does Mumdy stand
for the position that if you have standing, then that's it,
you can borrow anybody else's expectation of privacy?
-: Well, I read Delgado-Rivera to read Mubdy to say
that it has to be a relevant person's
expectation of privacy.
I think there is wisdom in that because in so far
as suppression works as, I mean,
obviously there could be a deterrent effect on police,
but to allow a defendant to assert the rights
of someone else who were violated only really makes sense
as a remedy for the violation
of the violated parties rights,
if the violated party shares the defendant's interest
in suppression of the evidence.
You know, if the defendant,
you can imagine many people might be offended
that police entered their property,
but would not feel that the, to find evidence of a crime
that they didn't hypothetically know about on the property,
but would not feel that it had solved the problem
to have the person committing a crime on their property
not be able to be prosecuted.
They might have very different interests than the defendant.
So I think that having a nexus between the rights violated
and the actual suppression as a remedy
for that makes a lot of sense.
-: This is, I know that I'm interrupting you
before you got the rest of my question,
but along those lines, what you're saying is,
as a prophylactic remedy, it makes no sense
if the other individual's expectation of privacy
has no connection to the person seeking suppression.
-: Yes, and in so far as they are,
as noted in Delgado-Rivera, as noted elsewhere,
generally personal rights,
that to say that a search in the constitutional sense
occurred essentially requires some nexus to the person
between the person and the rights and that it's,
the rights are held by the people rather than the police.
I'm in though, houses, homes are special, obviously,
but with regard to the sort of have the fairness element
and automatic standing in this case, well,
I think you reach on the standing
before you reach reasonable expectation of privacy,
reasonable expectation of privacy informs
why it's not an unreasonable result, because essentially,
you know, if you post a Snapchat video
on your friend's account, not even your Snapchat account,
so you might not know who's following it,
of you committing a crime, and you believe the evidence,
or the evidence stays under whatever circumstances
in a basement that none of you have any known connection to
and you never assert one,
you're sort of on notice that anything could happen to it,
as a practical matter.
-: Okay, so when you say they merged,
I know this is a difficult question with our case law,
but if you have standing because it's a possessory crime,
is there a separate analysis that has to take place
as to expectation of privacy?
Shoshana: It takes place if-
-: As to expectation of privacy?
-: I mean, I think that, well, first of all,
it depends where one thinks Mugdy stands at this point-
-: Exactly. -: But I know
Justice Cypher and her Delgado-Rivera concurrence
was emphasizing different for an automatic standing
and automatic expectation of privacy.
I mean...
I mean, I think that they do, I mean,
I think conceptually, they remain different,
but they do ultimately, if the expectation of privacy is
somebody within the sort of the nexus of the offense,
then the standing is likely to be in terms
of constructive possession or other factors.
-: But would you put it this way?
Could you say that if you have a reasonable expectation
of privacy of standing, but that doesn't always mean
that just because you have standing,
you have a reasonable expectation of privacy?
-: That sounds reasonable to me.
And certainly you have fourth amendment, you know,
standing anyway, so, or whatever you want to call it.
So at that point, you have your legal sort of ground.
So it makes sense for Massachusetts.
-: What you mean by that is
that the United States Constitution
provides the bottom of protection.
-: Provides what? -: The bottom, a minimum
of protection. -: Yes.
So in that sense, you would already have,
colloquially speaking, standing
without the standing element, (laughing)
and get your motion to suppress,
be able to challenge the seizure of that evidence.
-: Can I ask, are you done?
So Wesley, how do we square Leslie
with there is no search here?
How did the police get into this basement?
What are their grounds for running into somebody's basement?
And just because it's a multifamily home,
there's, they can run into that basement?
-: Well, I think that there, well, first of all,
I think the question of can the police do it
and who has standing to contest the fact that they did it-
-: No, I get it.
It's complicated.
Who, do we from this record know
who's the different families?
Are any of them involved in this?
-: No, there's no evidence
of how they felt about any of it.
There's evidence that one person who was out
with the crowd, but was not involved in the offense,
had a girlfriend in the apartment.
The defendant's girlfriend called as a witness for, well,
who didn't live there, called as a witness for the defense,
named some people that she thought had lived there once
that she vaguely recalled things about, but that's,
there's no, they have never weighed in for,
we have no idea how they felt about any of this,
the police or the guns or-
-: Well, Leslie kind of rewrites a little bit of this
and says, okay, we're not gonna treat people
who live in multifamily homes differently than rich people
who have their own house.
So isn't this a search of that basement?
-: Mm-hm. -: I understand
we got a whole lot of standing stuff to sort out,
but I don't see how the police get to run into that house.
-: Well, to give a slightly complicated answer
to a complicated question, well first of all, I mean, again,
there are all sorts of situations that the law recognizes
where whether the exclusionary rule is a remedy
does not turn on whether you could do it going forward.
I mean, the police could walk into anyone's house,
look around and be nosy, sees no evidence and leave,
and you can't exclude anything
'cause they didn't try to prosecute.
-: But they came out with- -: But something else
after the- -: They came out
with the gun here. -: What?
Justice Kafker: They came out with the gun here.
-: Yes, no, I mean, I agree with what you're saying-
-: And they ran into the house. -: Yeah.
-: What grounds do they have to run into that house?
Forget about, if this were just one person's home,
and that door was open in the basement,
as most of us leave our outer doors
to that kind of stuff open,
so, go ahead.
So how do they run in?
I'm confused.
Why did they get to run in there and rummage around?
-: Well, again, to sort of to make two different points,
one is we're not resting on the legitimacy
of what they did here.
I think there is evidence that they weren't trying
to do anything surreptitious.
They were chasing people they thought had guns
on possibly insufficient- -: No, but this is your house.
This is your house, and you've left your back door open.
They don't get to run into that house, do they?
-: Certainly not in the usual course of things, no.
-: Just because you got a bunch of kids running out
and around in the back,
you also don't get the run into the house, right?
-: Yes, but once they were there,
it was, I mean, -: I don't care.
Why are they, why do they get to, I mean, do they get-
-: I'm not necessarily arguing that they do get to
at this point. -: Okay but so then,
so then this case is gonna rise or fall
on the standing issue?
-: Yes, Your Honor.
And the, I mean, again, the standing and the existence
of rights to challenge the search
in the people implicated by the search.
Because again, we don't know whether the residents,
how they, what they considered to be the greater
and lesser evils here.
We don't know how they felt about it.
We don't know if they thought the defense, I mean,
there there's a lot going on.
I think that Leslie informs the general issue
of how to assert a recognizing that it,
if there are attempts to assert
curtilage reasonable expectations
of privacy- -: Can I ask
one other question, because again,
I find this really difficult,
and it may be just I don't understand it, but,
so we've got the Snapchat video,
and the gun in the Snapchat is distinctive enough,
there's no issue about whether this gun they found
is the same gun in the Snapchat video.
It's, 'cause I'm just, again,
I'm caught up in the fact that this seems odd
that he's being charged by for the Snapchat one,
but he can't challenge that 'cause he doesn't have standing
on his friend's Snapchat,
or he doesn't have a reasonable expectation
in that. -: Yeah, I mean,
that's a whole other issue that I-
-: And then he, but then he, they're running into the home
and taking out this gun.
They have no right to go in there
as far as I can figure out.
Then that gun is being matched to the other one.
And they're just, there are lots of,
a lot of things are held together here
by some very good luring by you, I think.
-: Well, again, I mean sort of to touch
on the target standing general idea
that my brother brought up that I think it is important
that they were not doing that all of this as a pretense
to get into the basement
because they thought there was a gun there.
They did, they had, it seems like they were expecting
the guns on the named people.
-: That's assumed you can go in.
Forget about pretense. -: Yeah.
-: They can't, if I'm right- -: I just wanted to make that-
-: They can't run in there.
It doesn't matter whether they're doing it
on a pretense or not.
I mean, Justice George may be right.
There may be some kind of exigency, but I'm not,
it's not obvious to me, but...
-: Well again, I think it comes down to, I mean,
there's a difference between whether anybody has the sort
of reasonable expectation of privacy
that even under how the appeals court construed Mubdy
and whether the police actually can walk in,
that they're, the things that keep the police
from walking into single family, I mean, again,
that the exclusionary rule is not the be all and end all
of the things the police can do.
And that I think that that ultimately,
there are a number of practical checks
on what anybody's ability to wander into basements
that are not, and a lot does not solely turn on that.
I mean, and just with regard to, you know,
the relative rights of people
of different financial abilities, you know,
there were parts of this basement that were secured
there clearly had people's personal property.
There were parts that were open.
The backyard did not have a fence.
It was facing people's front doors.
There's a lot of ways that you can demonstrate
an expectation of privacy or at the existence
of the intimacies of the home in a multi-family dwelling
that would not exist in every basement in every yard.
And I think it would, as this has always been,
be a fact of specific determination about that,
and it would not be unreasonable to conclude
that this particular basement, the open areas,
which frankly was full of people with no known connection
to the house, but also all of the other information
about it, that there was not a reasonable expectation
of privacy in the conventional sense,
held by anybody in the house,
but also more particularly anybody who had any investment
in the gun that was there by itself.
Chief Justice: Does anyone have any other questions?
Okay, thank you so much.
-: Thank you, Your Honors.