-: SJC-13395, Commonwealth v. Joseph W. James.
-: Okay, Attorney Levin.
-: Good morning, Your Honors.
May it please the court,
Patrick Levin on behalf of Joseph James.
This case is about the disposition of property seized
pursuant to a valid search warrant
after the criminal case is over
and the Commonwealth no longer needs that property
for purposes of an investigation or a prosecution.
At common law, the state had no power
to seize lawfully owned property
just because it would help them investigate
or prosecute a crime.
Instead, every government seizure had to be founded
on an assertion of a superior claim of right.
-: Can I ask you just to kind of cut to the chase, Mr. Levin,
the practical realities of what's going on in,
and I get your interpretation
that the one paragraph isn't a standalone,
you have to comply with the procedures in the ensuing.
Atty. Levin: Yes, Your Honor.
-: Which is really the heart of, I think,
your statutory argument or rule argument.
So the police conduct, have a search warrant for drugs,
they go into an apartment, they find drugs, they find a gun.
After the case is over, we have lots of rules
about what they can do with the gun and the drugs.
Atty. Levin: That's right.
-: They also find during the search warrant execution,
a box of plastic Baggies, just a generic store brand,
not even the good Ziplocs, right?
A scale, and a bottle of an inositol,
which could be used as cut, but is a vitamin supplement.
At the end of the case,
can the police throw away those items,
do they have to give them back to the defendant
so he can use them to manufacture more drugs,
or do they have to have a trial?
-: Okay, so the answer to that question,
so this is a warranted search,
so under section three, the police hold those items
until after they're no longer needed for the trial.
J. Gaziano: Correct.
-: And then the judge has to make an order
about what to do with them.
So if the defendant, in practice, practically speaking,
most of the time there's not gonna be a fight
about that kind of stuff.
-: Right, 'cause he's not gonna ask
for the return of these things.
Atty. Levin: Right. -: Okay, but we're making
a rule in this case that's gonna affect every case,
and I don't know if the rule doesn't say
the defendant has to initiate it
with a request for return of property.
-: That's right, and that's part of my argument is that
he doesn't, he shouldn't have.
-: Right, right, and then if you look at the rules strictly,
he doesn't, so when you say, "Don't worry about it,
it's not gonna be an issue," I do worry about because-
-: Well, so that's partially just to explain
why it's 2023, and this is only coming up now,
J. Gaziano: Right. -: Is that most of the time,
there's not a fight about this stuff.
J. Gaziano: Sure.
-: But I think the answer to the question is found
in the federal cases that I've cited in my brief,
which is that there is a presumption
at the end of a criminal case,
once the government doesn't need the property anymore,
the presumption is that the property should be returned
to the person it was seized from,
unless it's subject to forfeiture or contraband,
or the government has some other interest in it, and the-
-: So they can't throw it away without a trial.
-: So they can't, I mean,
they don't necessarily need to have a trial
if they talk to the defendant first,
and he doesn't assert any rights in it.
-: Yeah, but I'm trying to get you to the extreme case,
of course, where he does,
and we would have to have every bag of Glad,
every Glad Baggie or ShopRite Baggies,
and we have to have a trial.
-: Right, and so part of that depends
on how the case was resolved, and one thing that, you know,
could have saved a lot of trouble in this case is,
so there's a difference between a trial
and a guilty plea, right?
And so if there's a trial,
and those items are entered into evidence at trial,
and then the jury convicts the defendant in part based
on his having used those as instrumentalities of the crime,
at that point, there's been the relevant finding
beyond a reasonable doubt.
If there's no trial, and the case is a guilty plea,
one thing that it might behoove the Commonwealth to do,
if there's a concern about this kind of thing,
is to have the forfeiture
of whatever the property is be part of the guilty plea.
And so for example, in this case, if they had, you know,
if they had required Mr. James to agree to the forfeiture
as part of his sentence in his guilty plea,
that criminal forfeiture could have been constitutional.
-: If it's an instrument of the crime,
it doesn't fall in the ensuing paragraphs?
It's still, you still have to have.
-: If it's an instrumentality of the crime,
then a forfeiture is permissible.
-: Right, but then-
Atty. Levin: But the process, the question.
-: That still has to have notice in the trial.
-: The question of the process is like,
so the simple answer to your question is yes,
if no one thinks about this or does anything about it,
and then there is some assertion of a claim of right,
it has to be resolved by means of a trial,
except that in the particular case that Your Honor raised
as a hypothetical, that's a case under Chapter 94 C,
which has its own forfeiture provisions
that are much less onerous
in terms of what procedures are required,
and so in that particular case, it would be a lot easier.
They would only have to, you know, make the motion
in the criminal case, and show that there was probable cause
and then the forfeiture could ensue.
But in a case like this one,
which doesn't have its own separate forfeiture provisions,
and the general search warrant forfeiture provisions are
the only ones that apply, then what is required is
the notice and a subsequent jury trial,
which is to be conducted, you know,
to the extent possible in accordance with the provisions
that would apply in criminal cases,
which includes a jury trial
and proof beyond a reasonable doubt
that the property is subject to forfeiture.
-: Because in this case, they weren't evidence at trial,
or well, if it's a plea, right?
Atty. Levin: Right.
-: And it's an assault and battery,
and the allegation is the, and they do a search warrant,
and they find a baseball bat, ABDW, and it's a plea,
so the baseball bat isn't introduced as evidence.
-: Right, but the prosecutor presumably will give
a factual basis for the charge during the plea,
and the defendant will admit,
yes, I did assault and batter with that bat.
J. Gaziano: Does he get his bat back?
-: No, because that is an admission
that the bat was an instrumentality of the crime.
-: Does he get his bat back without a trial?
-: He doesn't, he doesn't get his bat back at all,
because he's made, so the guilty plea can establish
that something is subject to forfeiture
if the plea itself necessarily admits the relevant fact.
-: That's under the paragraph A, though, right?
Because then the ensuing paragraphs give him a right
to notice in the trial, correct?
I thought your whole premise was that provision
that they used in the other case
involving the Douglas murders,
that doesn't, that isn't enough.
You need to go through the procedural processes.
-: So the distinction here is that
Mr. James has never admitted, and in fact,
there has never been any meaningful allegation
that anything he wants back is connected
to the crime that he pled guilty to.
-: Can I just ask you a factual question about that?
'Cause I thought the Commonwealth suggested that some
of the servers were linked to the underlying child porn.
Is that?
-: So it's a little, so if you look at page 36 and 37
of the record appendix,
you can sort of see what it is we're talking about.
There's a picture of the computer
with the four discs inside it.
The question of the links between the various hard drives is
sort of beside the point, I think.
J. Gaziano: Well, they're on the same tower, right?
-: They're in the same tower, right, and so you know,
the analogy that defense counsel was sort of trying to use
during the hearing below is like, photo albums,
and so if it would be sort of like a bookcase
with four photo albums on it.
At this point, they have returned the bookcase
and one of the albums,
and they're seeking to retain the other three.
There's also a separate external hard drive
that I wanna make clear is completely independent.
It's not implicated by that claim at all,
and that's what actually contains the bulk
of Mr. James' portfolio.
-: So the external drive is not subject to the claim
of this connectivity?
Atty. Levin: Right.
-: Okay, thank you.
That helps, thanks.
-: But
to the extent that there is a factual dispute about that,
it needs to be hashed out through something.
J. Wendlandt: At the jury trial.
-: Evidentiary proceeding, which yeah,
if he doesn't waive his right to a jury trial,
then that's where it would happen.
-: Is that the same for these,
so I understand there are pictures of other young women.
We don't know their ages.
He hasn't been prosecuted for other crimes,
but I take it the police are worried maybe some
of these people are underage,
but so that has to be sorted out at a trial, I take it.
They can't just hang on to this
because they're concerned that this may be other juveniles
half naked. -: That's right.
And I want to be clear about what the allegation is
in the affidavit from the state trooper.
It's, "I don't know how old these people are,
and some of the images may be child pornography,
if any of them are under the age of 18."
It's not even, he doesn't even assert
that any of them would be child pornography
if the people were under the age of 18.
Now, the affidavit from Mr. James
that's in the record shows that he does in fact know
that none of these people were under the age of 18.
And in fact, he says that he's pretty confident
he would be able to prove that if he had access to the data
that's on this computer, but-
-: That data is on the external drive?
Atty. Levin: No.
-: No.
-: Only the photographs are on the external drive.
All of his business records and everything else is
on the computer itself, is my understanding.
But that's not really clear in the record,
because we didn't have any evidentiary proceedings below.
But at this point,
the Commonwealth wouldn't even be able to get a warrant
and institute a seizure and a temporary deprivation
of the property based on the allegations
that have been made about those other photos.
What's in the affidavit is far short of probable cause
that anything is illegal.
J. Wendlandt: But he's basically saying, "I don't know."
Atty. Levin: Exactly. -: Yeah.
-: And I don't have enough to,
I can't make a judgment call about whether to investigate.
I don't know I have enough information.
I have these pictures.
They may be porn, child porn, they may not be,
but I don't know anything about these people, right?
I take it that's-
-: Yeah, that's the essential nature of the allegation,
and you know, at some point,
the First Amendment overlay comes in,
which is to say that to the extent
that these photographs are not either obscenity
or child pornography,
they are a constitutionally protected speech,
and there's a whole separate more demanding-
J. Kafker: In your view, that would be-
-: But we just don't know though,
at this point with the record, correct?
Nobody's gone through these.
How can you make a First Amendment determination
when nobody really knows what's on there?
-: That's what I was about to say is that
even this court would not be able to make
a determination as to probable cause
without seeing the photographs.
-: Or whether it's constitutionally protected speech.
-: Right.
Probable cause, yeah, and you know,
we know that from Commonwealth versus Rex that like,
this court would need to look just to see
whether there was probable cause of anything illegal
in the photographs.
-: So that would be again, in your view,
that's why we have to have a trial on this stuff.
-: Well, in my view,
it's actually probably too late to have a trial.
-: That was my question is when,
when does this trial that you envision gonna happen?
-: So what chapter 276 section three says is
as soon as may be thereafter.
At this point, we're well past that.
I think, in fact, by the time Mr. James filed
his first motion for return of property,
we were probably past the point where it was too late
for the Commonwealth to make a proper petition
for forfeiture, which, you know, we're talking like,
a five, six month delay after they didn't need this property
anymore in order to investigate or prosecute the crime.
And if you look at the federal cases,
they suggest that that length of deprivation of property
without justification is a due process violation.
-: So not in this case should there be a trial,
because you're just saying your client should just it back.
Atty. Levin: That's right.
Chief J. Budd: But going forward-
-: With one exception,
which is that he never asked for the main hard drive
of his computer back because he does agree
that his guilty plea establishes
that it contains contraband,
and so what, in my view, what is sort of the more-
-: Can I ask, is there a statute?
I'm just looking at 276 section three right now,
that there isn't a time,
there's no time provision in here, right?
Atty. Levin: What it says is
as soon as may be thereafter.
-: As soon as may, all property seized shall be restored
to the owner, okay.
Chief J. Budd: So in your view.
-: That as soon as may be thereafter,
they're required either, the presumption would be,
to return any non-contraband property to the person
that they seized it from or to,
if they didn't wanna do that,
to institute the forfeiture proceedings as required by law.
-: So just back to Justice Gaziano's practicality point,
so all those evidence lockers filled with junk,
they should have been returned once the case is over.
-: Well, so the thing is,
there are a lot of different statutes that potentially apply
to different kinds of evidence and different kinds of cases,
and none of those statutes apply
to the evidence in this case, so I've only briefed
the chapter 276 sections three through eight.
But you know, in drug cases,
the 94 C provisions apply, and you know, a lot,
a lot of the junk that's sitting around
in evidence rooms relates to chapter 94 C cases.
Obviously, these weren't provisions only applied
to stuff that was seized pursuant to search warrants,
so any kind of warrantless seizures,
any search incidents to arrest seizures have
different rules, and those relate,
and the other thing is-
-: I'm sure you and Justice Gaziano know this, I just don't.
The clothing in these rape cases that are 20 years old,
that doesn't have to be returned, I take it,
or does it have to be returned?
-: So the victim's clothing
in a rape case would be subject to-
-: I'm talking about the defendant's clothing.
-: Oh, the defendant's clothing.
So I think that that kind of evidence probably is subject
to chapter 278A section 16,
the forensic evidence preservation provisions,
and which does make more specific provisions
for preserving that kind of evidence until a date certain.
-: I'm still a little bit confused
about your statutory argument, 'cause if you look at 276-3,
it basically says all property seized has to restored
to the owner and could be forfeited,
and forfeited means either sold or destroyed.
They want it destroyed.
Atty. Levin: Right.
-: As the public interest requires,
sorry, go back to the baseball bat.
So we have the baseball bat in an ABDW, case is over.
You say, well, if the bat was used to hit somebody
over the head, you don't get your baseball bat,
but then when you look at the ensuing sections,
four, five, six, seven and eight, they all deal with notice,
a trial before an appeal, and the like.
So when you say, well, if it's established in a plea
that the baseball bat was used
to hit someone over the head, you get to destroy it.
But if you also incorporate four through eight,
you don't get to destroy it, you have to have a trial.
-: Well, okay, so I guess what I would say is
what you should have to do if you're gonna follow
those statutes to the letter of the law-
-: Which is what you're asking us to do.
-: Is issue the required notice,
and see if anyone appears to contest the forfeiture.
And if someone does appear, then at that point,
you have to have whatever proceedings they ask for.
-: Right, and I don't know
if maybe the statute trumps practicality, but-
-: Well, in going to the baseball bat hypothetical, right?
J. Gaziano: Right.
-: Someone else besides the defendant might appear and say,
"Hey, that was my bat," and it maybe is not fair to them
to destroy it without letting them come to court.
-: I'm just taking this procedural nightmare
you're asking us the cause, basically.
-: Well, I'm not asking you-
-: Doesn't section 3-B answer Justice Gaziano's question
about dangerous weapons?
Because it says that, it specifies that those kind
of dangerous weapons used unlawfully shall be forfeited
to the Commonwealth.
-: Right, and so that's why I say that-
-: Stop without a trial.
-: That's why I say that
if the criminal proceeding establishes that something-
J. Wendlandt: It was used.
-: Was used unlawfully,
then that's probably gonna do the trick.
-: So we're just talking about the extra stuff.
-: You're talking about the Baggies and the-
(overlapping speech)
Right, yeah, just, yeah, because you know,
the baseball bat is like a diseased animal, right?
So we don't have to worry about diseased animals,
firearms, money, and weapons.
Atty. Levin: And I will say like-
-: What about telephones?
How do telephones fit into this?
'Cause I assume that those are gonna be things taken,
and they're of value to everybody, right?
-: So if a phone is seized pursuant to a warrant.
J. Kafker: Right.
-: Then the presumption would be that at the end of the case,
the person whose phone it was should get the phone back,
and this is a presumption just to, you know,
one final word is this is a presumption that, in my view,
should be a lot stronger in Massachusetts than it is
in the federal system, because we have
an enumerated substantive right under Article one
to possess and protect and enjoy property,
which doesn't exist as enumerated
in the federal Constitution.
Chief J. Budd: Okay, thank you.
Atty. Levin: Thank you.
-: Okay, Attorney McGee.
-: Good morning, Chief Justice Budd, Chief Justices,
may it please the court, Michael McGee for the Commonwealth.
-: Can I ask you why does the government get to keep
something that they don't know is connected
at all to any criminal activity?
-: As in the case here,
the defendant was convicted of possessing child pornography,
statutory rape, and enticement of a child.
It's well within the discretion portion
of 276 section three for the defendant,
for the judge when provided an affidavit, had a hearing,
and evidence by form of affidavit also from the defendant,
to weigh that and protect the vital public interests
of protecting children from sexual exploitation.
-: I'm sorry, you think section three exists in isolation,
and we have to ignore sections four through eight?
-: It's from a procedural due process.
-: And life would be easy if there was no section four
through eight for you, but there is.
-: In practicality, these circumstances happen at, like here,
a motion for return of property from the defendant.
As was the case in Gilday,
the defendant here filed a motion for return of property,
believing some of it was non-contraband and personal
in nature, asked for a drive to be inventoried,
and some items to be returned.
In fact, there were some items
that the Commonwealth had agreed to return.
As counsel alluded to, oftentimes,
the parties come to some kind of decision there.
To answer your question,
the Commonwealth was not mandated to pursue forfeiture
of the items here.
The proper procedure was done here.
The defendant, in fact, was given a fair opportunity,
had competent counsel, notice, and the opportunity
to present evidence in the form of an affidavit.
In fact, after-
-: You're saying the default position is
you get to throw things away unless they ask for a return.
-: Oftentimes, and what I suggest be the proper procedure is
that after a case has run its course,
and this is again alluding to 278A section 16,
is that once a defendant has gone through probation,
the appellate process-
-: But 270A is the biological.
Atty. McGee: And other evidence.
-: But I think you have to stick
with 276 three through eight.
Atty. McGee: Correct.
-: And not go not to the DNA statute.
-: From a policy standpoint,
this benefits both the defendant and the Commonwealth.
As Your Honors are very well aware, there's appeals
at all different points in time, and there's different,
the retention of property is for a number
of different reasons.
This defendant here is charged.
-: But that's a little bit different,
and the issue that I am having here is these are things
that he's asking for that are unconnected
to the underlying prosecution and conviction
or guilty plea, what have you.
You would concede that, wouldn't you?
-: What I would suggest is that the devices
in themselves are,
there's a nexus between them and the crime.
The defendant was convicted of possessing child pornography.
-: Correct, I know what he was convicted of,
but the issue that I'm having is,
the affidavit that was presented on behalf
of the Commonwealth seems to me to screaming
to CYA affidavit, where I don't know what it is,
it could be potentially illegal,
but I have no information that it is, so therefore,
we don't turn it back over.
-: With all due respect, Your Honor,
what I would suggest is that affidavit from a person
that is well educated and well experienced
in internet crimes against children-
-: Doesn't say that anything's illegal.
-: Says that even that trooper with all that experience,
and that civilian forensic examiner, and no examiner
and no expert could determine the ages and identities
of these individuals based upon just seeing them.
J. Georges: Sure.
-: That that risk, that substantial risk
of providing child pornography back to a convicted child,
a person that's been convicted of that,
that risk is substantial, and that the judge here was
well within his discretion to not require the Commonwealth
and its police that unwarranted and unsubstantiated burden
of going through all of that, and having to go
through thousands of unidentified image files,
and really reaching the result that they can't decide,
they can't determine
whether it's someone under the age of 18.
And that there is exactly why the judge was well
within his discretion to deny the defendant's motion in part
and not require that the Commonwealth go through
and inventory that Kingston drive.
-: Let me ask you the further corollary to that, though.
So if these items were seized pursuant to a warrant
that we knew, or at least was in the possession
of the defendant,
why would the tie go to the government?
-: The government didn't entice or possess child pornography,
and most importantly,
the government didn't co-mingle photographs,
a cache of photographs of a 15 year old girl
within his own personal property.
-: But was it co-mingled?
I thought they were all on the main drive.
-: There's a gaming tower, the Kingston Drive,
which had evidence of the crime,
admittedly to the defendant.
-: He's not asking for that back.
-: He's not asking for it.
It was within the gaming drive, one of those,
as we no longer have now, these computer towers.
As explained by the trooper-
-: So because he had other drives in there,
you're saying he's responsible for co-mingling,
and this process that's delineated
in the statute just doesn't apply.
-: What the judge was free to consider is that
the trooper unambiguously explained
that this was one interconnected-
-: I mean, I think the trooper's affidavit says,
"I don't know, I can't tell."
It's a lot.
-: To just get back to this one computer aspect,
that there was credible evidence there
that these additional drives,
the Seagate drives, the Barracuda,
and the other drive were all added to increase space,
that essentially, you have a gaming tower.
J. Wendlandt: As one does.
-: One screen, and that there's evidence
within the Kingston drive that had the evidence
of child pornography, of LNK files,
link files that show that interconnectivity.
There was credible evidence here that this was one computer
and just simply additional drives
to add more space for the user.
So it was well within the judge's discretion here
to allow the Commonwealth to retain those items,
and not to return it to defendant.
-: All of the items?
'Cause I take it there's a huge number of pictures here,
some of which I take it are clearly adult, you know,
adult pictures as opposed to potential kids, right?
I'm just, I'm trying to understand
your co-mingling argument, how far it goes.
If there's some interconnection between these computers,
even though a lot of this is totally innocuous stuff,
the Commonwealth can keep everything.
Is that your argument?
-: There was competing motions here, but one of them
with respect to my co-mingling argument was with respect
to the Kingston drive that the defendant asked
that the Commonwealth take screenshots
so that he could identify what was personal,
and then later on seek a copy of those.
The co-mingling in here,
and what I'm suggesting now is that the Commonwealth,
that the judge was well within his discretion to deny is
on that drive, the defendant had pictures
of the 15 year old girl nude, he was convicted.
-: I understand that the drive that has the pictures
of the 15 year old girl who he's been prosecuted for,
you can keep that, 'cause I mean, I guess you can keep it,
but if the other stuff is only potentially,
if it's severable, why doesn't he get to have it back?
Even if it's got, I mean, okay, we got some people
who are 50 years old in these pictures.
We know they're not kids.
They look like me.
He doesn't get that back?
-: Going piece by piece here, there are three Seagate drives,
as I was explaining, that were part of the gaming tower,
which I would suggest they're part of the one computer,
that there's a potential that children could be exploited
by providing them back to the person
that was convicted of possessing child pornography.
The other, Western drive six-
-: Because again, I'm not a computer person,
but meaning because there may be something in this computer
that we can't, we're gonna have to dig too deep
into this computer to know
that there might not be some child porn on it.
Is that the argument?
-: It's not a box of of photos.
These are sophisticated devices.
They talked about ghost files,
they talked about different sectors of the computer systems.
They didn't image any of them, but what they could determine
from just going through the files,
and even to your point about they could be on there,
one of the Seagate devices had a similar file structure
as even the Western, where it has the name of a woman,
and then proceeds to have a bunch of image files,
not identifiable, that are all of a nude woman.
Don't know her age, don't know who she is.
It simply could be a capacity issue
as to why that ended up on that Seagate.
As to the Western drive, it's six terabytes.
There was, I think hundreds of thousands were referenced
in Trooper Clark's affidavit, and again described
as like, image one, image 161.
To ask a police officer or the staff to spend months going
through these individual photographs to determine something
that's undeterminable, whether they are children-
-: So the computers are different from baseball bats
and other things where you can separate the items.
A computer is sort of indivisible.
-: Absolutely, and that's something that from a federal end,
they alleged they're statutory-
-: Are there cases that say that?
Do the feds have cases that say that,
that a computer is indivisible that way?
-: Yes.
-: Because that would be helpful,
and those are in your brief?
-: They are, and what I cited to is 18 USC-2253,
and Warnick was one of the cases,
and the other name of the cases alludes me,
but essentially, the process that the case law suggests
that the devices that are, if there's a nexus
between the crime and the device, it's all gone.
J. Gaziano: This is statutory interpretation, right?
Atty. McGee: And it's mandated.
-: Right, that's federal statutory interpretation.
We have to interpret 276 section three to see whether
or not four through eight are part of it,
or whether section three is a standalone, essentially.
-: Correct, and what I would suggest to the court,
and it was said, and I know it's a non-published decision
in Ricci is that it's not required of the Commonwealth
to seek a forfeiture proceeding
to retain and eventually destroy-
-: As a matter of statutory construction,
what's your best argument that it's a standalone?
-: It's a standalone? J. Gaziano: Yeah.
-: As a matter of statutory construction,
when a item is seized pursuant to a search warrant,
it's under the direction of the court,
and as its unambiguous and the letter of the law,
it states that a judge has a discretion to dispose of,
destroy, forfeit within the public interest.
-: 'Cause when you read the statute, it's section three says
all the stuff may be forfeited, except,
and it goes on to the things
that Justice Wendlandt identified.
But then it says, hey, here's the forfeiture procedures.
Atty. McGee: Correct.
-: So how isn't it tied?
How isn't section three tied to four through eight?
'Cause it gives you the procedures for forfeiture.
-: What I would suggest to the court is that
the Commonwealth would be well within its right
to seek forfeiture of items and proceed with it.
-: That's why I'm just wondering whether we have to have
trials for ski masks or plastic Baggies.
-: And what I'd suggest is that it's not mandated,
and I don't, I there's, and-
-: So we hand back the ski mask to the robber?
-: No, what I would suggest is that Superior Court rule 61
and 276-3 taken together provide due process
for a defendant like this one to have to seek property
that they believe is theirs,
that say if it was jewelry, commingled within jewelry,
and to have a hearing, to have an evidentiary hearing even.
-: Nowhere in the statute does it say
the stuff gets thrown out
unless you file a motion for return.
The burden's on the government to destroy
and justify destruction, right?
-: There's nowhere in the statute that says
whose burden it is to prove, but what I would say-
-: Well, there's the constitutional provision
that your opposing counsel mentioned,
that property belongs to-
-: It would be a little backwards if we said
everything gets thrown out unless you prove.
-: This is a civil equitable remedy, though,
at the end of the day.
This is not deprivation of liberty.
-: Well, Beldotti was easy.
The judge basically said, "Come on, you're kidding me.
We're gonna get rid of that," but that's not this case?
-: Well, Your Honor, the Commonwealth and its citizens have
a interest in protecting children and their safety.
-: Right, but you don't know.
All you have is that officer saying,
"I can't tell if these are children."
-: Thousands and thousands of pictures.
-: Right, and I don't if any one of them is a child.
I can't possibly tell,
'cause it would take me too long,
but I'm gonna keep it and destroy it,
even the wedding pictures of somebody else
who owns a copyright to those.
-: And the judge was free to credit
that the officer did refer to them as young,
and that we have a defendant here that went to stay prison
for seven years for enticing, for explaining to her
how she could sneak out of her house to meet with him,
and took photographs of her and kept those photographs.
He was free, being the judge that took that plea,
and also that did the first motion in 2018,
and heard all these arguments, to reject that,
based upon that affidavit,
and allow the Commonwealth to retain them.
He denied the Commonwealth's motion to destroy it
without prejudice, but he refused to return this
to the person who admittedly possessed child pornography.
-: None of which is the, right, none of which was
the other things that he's asking for.
Atty. McGee: Excuse me?
-: He admitted to possessing child pornography,
but none of it was the things
on the four drives he's asking for.
-: No, and what I believe, and I would suggest was
well within the judge's discretion is not requiring
the Commonwealth, who did not commingle
all this, and did not possess all-
-: Counsel, I know you're over time,
but I can still go back to Justice Gaziano's point
about do you just get to carve this out or not?
Because you can still say co-mingling.
So I understand there's one tower,
and just for the uninitiated,
that you could slide in four different drives,
and just because,
and you could pull out four different drives.
You can take out two, you can take out three,
you can take out four, so when you say co-mingling,
just because they're all housed
in the same tower doesn't mean
that they're not easily segregated,
so we could pull that out, right?
So the ones that we're talking about that we don't know
what the images are and that they could potentially be
contraband or unlawful, why isn't it that
the other parts of the statute then aren't triggered?
Isn't it even more important that they're triggered,
the procedural aspects?
Because we don't know if they're at all unlawful
or that they may be potentially contraband,
so wouldn't that make sense that we have
these other procedures that we go through this trial,
particularly in this case?
-: In this case, and in particular to this case,
the defendant had that opportunity,
and had a zealous counsel arguing for all of that,
and making all of those arguments in a hearing.
In 2018, had notice, provided an affidavit,
waited till 2022 to then say, "Oh, there might be,
through the form of an affidavit, these other persons,"
never providing names or anybody that's actually seeking
any of these wedding photographs or engagement photographs,
none of that, and the judge was free
and well within his discretion
to discredit the defendant's affidavit.
J. Georges: Thank you.
-: Unless there's anything further,
I'd rest on my brief and ask the court to affirm.