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<v ->SJC-13395, Commonwealth v. Joseph W. James.</v>

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<v ->Okay, Attorney Levin.</v>

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<v ->Good morning, Your Honors.</v>

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May it please the court,

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Patrick Levin on behalf of Joseph James.

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This case is about the disposition of property seized

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pursuant to a valid search warrant

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after the criminal case is over

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and the Commonwealth no longer needs that property

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for purposes of an investigation or a prosecution.

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At common law, the state had no power

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to seize lawfully owned property

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just because it would help them investigate

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or prosecute a crime.

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Instead, every government seizure had to be founded

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on an assertion of a superior claim of right.

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<v ->Can I ask you just to kind of cut to the chase, Mr. Levin,</v>

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the practical realities of what's going on in,

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and I get your interpretation

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that the one paragraph isn't a standalone,

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you have to comply with the procedures in the ensuing.

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<v Atty. Levin>Yes, Your Honor.</v>

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<v ->Which is really the heart of, I think,</v>

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your statutory argument or rule argument.

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So the police conduct, have a search warrant for drugs,

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they go into an apartment, they find drugs, they find a gun.

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After the case is over, we have lots of rules

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about what they can do with the gun and the drugs.

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<v Atty. Levin>That's right.</v>

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<v ->They also find during the search warrant execution,</v>

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a box of plastic Baggies, just a generic store brand,

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not even the good Ziplocs, right?

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A scale, and a bottle of an inositol,

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which could be used as cut, but is a vitamin supplement.

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At the end of the case,

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can the police throw away those items,

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do they have to give them back to the defendant

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so he can use them to manufacture more drugs,

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or do they have to have a trial?

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<v ->Okay, so the answer to that question,</v>

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so this is a warranted search,

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so under section three, the police hold those items

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until after they're no longer needed for the trial.

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<v J. Gaziano>Correct.</v>

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<v ->And then the judge has to make an order</v>

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about what to do with them.

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So if the defendant, in practice, practically speaking,

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most of the time there's not gonna be a fight

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about that kind of stuff.

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<v ->Right, 'cause he's not gonna ask</v>

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for the return of these things.

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<v Atty. Levin>Right.</v>
<v ->Okay, but we're making</v>

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a rule in this case that's gonna affect every case,

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and I don't know if the rule doesn't say

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the defendant has to initiate it

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with a request for return of property.

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<v ->That's right, and that's part of my argument is that</v>

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he doesn't, he shouldn't have.

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<v ->Right, right, and then if you look at the rules strictly,</v>

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he doesn't, so when you say, "Don't worry about it,

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it's not gonna be an issue," I do worry about because-

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<v ->Well, so that's partially just to explain</v>

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why it's 2023, and this is only coming up now,

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<v J. Gaziano>Right.</v>
<v ->Is that most of the time,</v>

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there's not a fight about this stuff.

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<v J. Gaziano>Sure.</v>

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<v ->But I think the answer to the question is found</v>

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in the federal cases that I've cited in my brief,

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which is that there is a presumption

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at the end of a criminal case,

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once the government doesn't need the property anymore,

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the presumption is that the property should be returned

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to the person it was seized from,

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unless it's subject to forfeiture or contraband,

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or the government has some other interest in it, and the-

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<v ->So they can't throw it away without a trial.</v>

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<v ->So they can't, I mean,</v>

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they don't necessarily need to have a trial

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if they talk to the defendant first,

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and he doesn't assert any rights in it.

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<v ->Yeah, but I'm trying to get you to the extreme case,</v>

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of course, where he does,

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and we would have to have every bag of Glad,

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every Glad Baggie or ShopRite Baggies,

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and we have to have a trial.

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<v ->Right, and so part of that depends</v>

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on how the case was resolved, and one thing that, you know,

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could have saved a lot of trouble in this case is,

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so there's a difference between a trial

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and a guilty plea, right?

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And so if there's a trial,

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and those items are entered into evidence at trial,

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and then the jury convicts the defendant in part based

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on his having used those as instrumentalities of the crime,

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at that point, there's been the relevant finding

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beyond a reasonable doubt.

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If there's no trial, and the case is a guilty plea,

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one thing that it might behoove the Commonwealth to do,

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if there's a concern about this kind of thing,

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is to have the forfeiture

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of whatever the property is be part of the guilty plea.

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And so for example, in this case, if they had, you know,

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if they had required Mr. James to agree to the forfeiture

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as part of his sentence in his guilty plea,

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that criminal forfeiture could have been constitutional.

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<v ->If it's an instrument of the crime,</v>

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it doesn't fall in the ensuing paragraphs?

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It's still, you still have to have.

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<v ->If it's an instrumentality of the crime,</v>

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then a forfeiture is permissible.

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<v ->Right, but then-</v>

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<v Atty. Levin>But the process, the question.</v>

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<v ->That still has to have notice in the trial.</v>

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<v ->The question of the process is like,</v>

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so the simple answer to your question is yes,

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if no one thinks about this or does anything about it,

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and then there is some assertion of a claim of right,

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it has to be resolved by means of a trial,

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except that in the particular case that Your Honor raised

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as a hypothetical, that's a case under Chapter 94 C,

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which has its own forfeiture provisions

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that are much less onerous

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in terms of what procedures are required,

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and so in that particular case, it would be a lot easier.

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They would only have to, you know, make the motion

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in the criminal case, and show that there was probable cause

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and then the forfeiture could ensue.

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But in a case like this one,

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which doesn't have its own separate forfeiture provisions,

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and the general search warrant forfeiture provisions are

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the only ones that apply, then what is required is

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the notice and a subsequent jury trial,

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which is to be conducted, you know,

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to the extent possible in accordance with the provisions

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that would apply in criminal cases,

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which includes a jury trial

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and proof beyond a reasonable doubt

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that the property is subject to forfeiture.

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<v ->Because in this case, they weren't evidence at trial,</v>

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or well, if it's a plea, right?

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<v Atty. Levin>Right.</v>

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<v ->And it's an assault and battery,</v>

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and the allegation is the, and they do a search warrant,

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and they find a baseball bat, ABDW, and it's a plea,

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so the baseball bat isn't introduced as evidence.

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<v ->Right, but the prosecutor presumably will give</v>

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a factual basis for the charge during the plea,

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and the defendant will admit,

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yes, I did assault and batter with that bat.

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<v J. Gaziano>Does he get his bat back?</v>

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<v ->No, because that is an admission</v>

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that the bat was an instrumentality of the crime.

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<v ->Does he get his bat back without a trial?</v>

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<v ->He doesn't, he doesn't get his bat back at all,</v>

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because he's made, so the guilty plea can establish

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that something is subject to forfeiture

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if the plea itself necessarily admits the relevant fact.

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<v ->That's under the paragraph A, though, right?</v>

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Because then the ensuing paragraphs give him a right

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to notice in the trial, correct?

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I thought your whole premise was that provision

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that they used in the other case

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involving the Douglas murders,

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that doesn't, that isn't enough.

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You need to go through the procedural processes.

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<v ->So the distinction here is that</v>

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Mr. James has never admitted, and in fact,

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there has never been any meaningful allegation

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that anything he wants back is connected

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to the crime that he pled guilty to.

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<v ->Can I just ask you a factual question about that?</v>

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'Cause I thought the Commonwealth suggested that some

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of the servers were linked to the underlying child porn.

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Is that?

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<v ->So it's a little, so if you look at page 36 and 37</v>

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of the record appendix,

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you can sort of see what it is we're talking about.

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There's a picture of the computer

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with the four discs inside it.

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The question of the links between the various hard drives is

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sort of beside the point, I think.

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<v J. Gaziano>Well, they're on the same tower, right?</v>

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<v ->They're in the same tower, right, and so you know,</v>

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the analogy that defense counsel was sort of trying to use

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during the hearing below is like, photo albums,

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and so if it would be sort of like a bookcase

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with four photo albums on it.

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At this point, they have returned the bookcase

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and one of the albums,

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and they're seeking to retain the other three.

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There's also a separate external hard drive

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that I wanna make clear is completely independent.

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It's not implicated by that claim at all,

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and that's what actually contains the bulk

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of Mr. James' portfolio.

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<v ->So the external drive is not subject to the claim</v>

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of this connectivity?

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<v Atty. Levin>Right.</v>

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<v ->Okay, thank you.</v>

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That helps, thanks.

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<v ->But</v>

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to the extent that there is a factual dispute about that,

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it needs to be hashed out through something.

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<v J. Wendlandt>At the jury trial.</v>

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<v ->Evidentiary proceeding, which yeah,</v>

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if he doesn't waive his right to a jury trial,

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then that's where it would happen.

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<v ->Is that the same for these,</v>

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so I understand there are pictures of other young women.

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We don't know their ages.

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He hasn't been prosecuted for other crimes,

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but I take it the police are worried maybe some

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of these people are underage,

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but so that has to be sorted out at a trial, I take it.

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They can't just hang on to this

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because they're concerned that this may be other juveniles

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half naked.
<v ->That's right.</v>

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And I want to be clear about what the allegation is

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in the affidavit from the state trooper.

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It's, "I don't know how old these people are,

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and some of the images may be child pornography,

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if any of them are under the age of 18."

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It's not even, he doesn't even assert

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that any of them would be child pornography

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if the people were under the age of 18.

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Now, the affidavit from Mr. James

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that's in the record shows that he does in fact know

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that none of these people were under the age of 18.

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And in fact, he says that he's pretty confident

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he would be able to prove that if he had access to the data

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that's on this computer, but-

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<v ->That data is on the external drive?</v>

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<v Atty. Levin>No.</v>

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<v ->No.</v>

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<v ->Only the photographs are on the external drive.</v>

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All of his business records and everything else is

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on the computer itself, is my understanding.

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But that's not really clear in the record,

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because we didn't have any evidentiary proceedings below.

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But at this point,

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the Commonwealth wouldn't even be able to get a warrant

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and institute a seizure and a temporary deprivation

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of the property based on the allegations

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that have been made about those other photos.

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What's in the affidavit is far short of probable cause

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that anything is illegal.

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<v J. Wendlandt>But he's basically saying, "I don't know."</v>

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<v Atty. Levin>Exactly.</v>
<v ->Yeah.</v>

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<v ->And I don't have enough to,</v>

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00:11:55.980 --> 00:11:58.650
I can't make a judgment call about whether to investigate.

251
00:11:58.650 --> 00:12:00.480
I don't know I have enough information.

252
00:12:00.480 --> 00:12:01.890
I have these pictures.

253
00:12:01.890 --> 00:12:05.130
They may be porn, child porn, they may not be,

254
00:12:05.130 --> 00:12:07.590
but I don't know anything about these people, right?

255
00:12:07.590 --> 00:12:08.700
I take it that's-

256
00:12:08.700 --> 00:12:12.060
<v ->Yeah, that's the essential nature of the allegation,</v>

257
00:12:12.060 --> 00:12:14.370
and you know, at some point,

258
00:12:14.370 --> 00:12:16.593
the First Amendment overlay comes in,

259
00:12:17.460 --> 00:12:19.707
which is to say that to the extent

260
00:12:19.707 --> 00:12:23.160
that these photographs are not either obscenity

261
00:12:23.160 --> 00:12:24.540
or child pornography,

262
00:12:24.540 --> 00:12:26.883
they are a constitutionally protected speech,

263
00:12:27.750 --> 00:12:31.128
and there's a whole separate more demanding-

264
00:12:31.128 --> 00:12:31.961
<v J. Kafker>In your view, that would be-</v>

265
00:12:31.961 --> 00:12:33.390
<v ->But we just don't know though,</v>

266
00:12:33.390 --> 00:12:35.745
at this point with the record, correct?

267
00:12:35.745 --> 00:12:38.310
Nobody's gone through these.

268
00:12:38.310 --> 00:12:40.470
How can you make a First Amendment determination

269
00:12:40.470 --> 00:12:42.270
when nobody really knows what's on there?

270
00:12:42.270 --> 00:12:43.358
<v ->That's what I was about to say is that</v>

271
00:12:43.358 --> 00:12:46.050
even this court would not be able to make

272
00:12:46.050 --> 00:12:48.030
a determination as to probable cause

273
00:12:48.030 --> 00:12:49.560
without seeing the photographs.

274
00:12:49.560 --> 00:12:51.690
<v ->Or whether it's constitutionally protected speech.</v>

275
00:12:51.690 --> 00:12:52.765
<v ->Right.</v>

276
00:12:52.765 --> 00:12:55.710
Probable cause, yeah, and you know,

277
00:12:55.710 --> 00:12:57.990
we know that from Commonwealth versus Rex that like,

278
00:12:57.990 --> 00:12:59.820
this court would need to look just to see

279
00:12:59.820 --> 00:13:03.480
whether there was probable cause of anything illegal

280
00:13:03.480 --> 00:13:04.923
in the photographs.

281
00:13:05.790 --> 00:13:07.950
<v ->So that would be again, in your view,</v>

282
00:13:07.950 --> 00:13:10.380
that's why we have to have a trial on this stuff.

283
00:13:10.380 --> 00:13:12.033
<v ->Well, in my view,</v>

284
00:13:13.860 --> 00:13:16.770
it's actually probably too late to have a trial.

285
00:13:16.770 --> 00:13:18.105
<v ->That was my question is when,</v>

286
00:13:18.105 --> 00:13:21.450
when does this trial that you envision gonna happen?

287
00:13:21.450 --> 00:13:23.820
<v ->So what chapter 276 section three says is</v>

288
00:13:23.820 --> 00:13:26.223
as soon as may be thereafter.

289
00:13:27.360 --> 00:13:29.130
At this point, we're well past that.

290
00:13:29.130 --> 00:13:32.100
I think, in fact, by the time Mr. James filed

291
00:13:32.100 --> 00:13:34.170
his first motion for return of property,

292
00:13:34.170 --> 00:13:36.270
we were probably past the point where it was too late

293
00:13:36.270 --> 00:13:39.570
for the Commonwealth to make a proper petition

294
00:13:39.570 --> 00:13:41.850
for forfeiture, which, you know, we're talking like,

295
00:13:41.850 --> 00:13:46.850
a five, six month delay after they didn't need this property

296
00:13:47.010 --> 00:13:49.650
anymore in order to investigate or prosecute the crime.

297
00:13:49.650 --> 00:13:51.330
And if you look at the federal cases,

298
00:13:51.330 --> 00:13:55.259
they suggest that that length of deprivation of property

299
00:13:55.259 --> 00:13:59.400
without justification is a due process violation.

300
00:13:59.400 --> 00:14:02.130
<v ->So not in this case should there be a trial,</v>

301
00:14:02.130 --> 00:14:05.430
because you're just saying your client should just it back.

302
00:14:05.430 --> 00:14:06.263
<v Atty. Levin>That's right.</v>

303
00:14:06.263 --> 00:14:07.260
<v Chief J. Budd>But going forward-</v>

304
00:14:07.260 --> 00:14:08.820
<v ->With one exception,</v>

305
00:14:08.820 --> 00:14:11.880
which is that he never asked for the main hard drive

306
00:14:11.880 --> 00:14:15.060
of his computer back because he does agree

307
00:14:15.060 --> 00:14:16.980
that his guilty plea establishes

308
00:14:16.980 --> 00:14:18.720
that it contains contraband,

309
00:14:18.720 --> 00:14:23.720
and so what, in my view, what is sort of the more-

310
00:14:23.790 --> 00:14:25.390
<v ->Can I ask, is there a statute?</v>

311
00:14:27.930 --> 00:14:30.510
I'm just looking at 276 section three right now,

312
00:14:30.510 --> 00:14:32.280
that there isn't a time,

313
00:14:32.280 --> 00:14:34.020
there's no time provision in here, right?

314
00:14:34.020 --> 00:14:34.853
<v Atty. Levin>What it says is</v>

315
00:14:34.853 --> 00:14:36.363
as soon as may be thereafter.

316
00:14:37.950 --> 00:14:40.680
<v ->As soon as may, all property seized shall be restored</v>

317
00:14:40.680 --> 00:14:42.390
to the owner, okay.

318
00:14:42.390 --> 00:14:44.824
<v Chief J. Budd>So in your view.</v>

319
00:14:44.824 --> 00:14:47.340
<v ->That as soon as may be thereafter,</v>

320
00:14:47.340 --> 00:14:50.220
they're required either, the presumption would be,

321
00:14:50.220 --> 00:14:55.110
to return any non-contraband property to the person

322
00:14:55.110 --> 00:14:57.690
that they seized it from or to,

323
00:14:57.690 --> 00:14:58.650
if they didn't wanna do that,

324
00:14:58.650 --> 00:15:02.430
to institute the forfeiture proceedings as required by law.

325
00:15:02.430 --> 00:15:05.820
<v ->So just back to Justice Gaziano's practicality point,</v>

326
00:15:05.820 --> 00:15:09.573
so all those evidence lockers filled with junk,

327
00:15:12.150 --> 00:15:17.150
they should have been returned once the case is over.

328
00:15:17.700 --> 00:15:19.740
<v ->Well, so the thing is,</v>

329
00:15:19.740 --> 00:15:22.470
there are a lot of different statutes that potentially apply

330
00:15:22.470 --> 00:15:25.590
to different kinds of evidence and different kinds of cases,

331
00:15:25.590 --> 00:15:26.720
and none of those statutes apply

332
00:15:26.720 --> 00:15:30.000
to the evidence in this case, so I've only briefed

333
00:15:30.000 --> 00:15:33.060
the chapter 276 sections three through eight.

334
00:15:33.060 --> 00:15:34.410
But you know, in drug cases,

335
00:15:34.410 --> 00:15:38.610
the 94 C provisions apply, and you know, a lot,

336
00:15:38.610 --> 00:15:40.560
a lot of the junk that's sitting around

337
00:15:40.560 --> 00:15:44.253
in evidence rooms relates to chapter 94 C cases.

338
00:15:45.120 --> 00:15:49.230
Obviously, these weren't provisions only applied

339
00:15:49.230 --> 00:15:51.570
to stuff that was seized pursuant to search warrants,

340
00:15:51.570 --> 00:15:53.340
so any kind of warrantless seizures,

341
00:15:53.340 --> 00:15:55.560
any search incidents to arrest seizures have

342
00:15:55.560 --> 00:15:57.480
different rules, and those relate,

343
00:15:57.480 --> 00:15:59.299
and the other thing is-

344
00:15:59.299 --> 00:16:02.160
<v ->I'm sure you and Justice Gaziano know this, I just don't.</v>

345
00:16:02.160 --> 00:16:07.160
The clothing in these rape cases that are 20 years old,

346
00:16:07.185 --> 00:16:10.110
that doesn't have to be returned, I take it,

347
00:16:10.110 --> 00:16:11.610
or does it have to be returned?

348
00:16:11.610 --> 00:16:15.010
<v ->So the victim's clothing</v>

349
00:16:16.230 --> 00:16:20.070
in a rape case would be subject to-

350
00:16:20.070 --> 00:16:21.600
<v ->I'm talking about the defendant's clothing.</v>

351
00:16:21.600 --> 00:16:23.250
<v ->Oh, the defendant's clothing.</v>

352
00:16:23.250 --> 00:16:27.780
So I think that that kind of evidence probably is subject

353
00:16:27.780 --> 00:16:31.830
to chapter 278A section 16,

354
00:16:31.830 --> 00:16:35.070
the forensic evidence preservation provisions,

355
00:16:35.070 --> 00:16:38.487
and which does make more specific provisions

356
00:16:40.980 --> 00:16:44.910
for preserving that kind of evidence until a date certain.

357
00:16:44.910 --> 00:16:46.050
<v ->I'm still a little bit confused</v>

358
00:16:46.050 --> 00:16:50.335
about your statutory argument, 'cause if you look at 276-3,

359
00:16:50.335 --> 00:16:53.861
it basically says all property seized has to restored

360
00:16:53.861 --> 00:16:57.750
to the owner and could be forfeited,

361
00:16:57.750 --> 00:17:00.240
and forfeited means either sold or destroyed.

362
00:17:00.240 --> 00:17:01.230
They want it destroyed.

363
00:17:01.230 --> 00:17:02.273
<v Atty. Levin>Right.</v>

364
00:17:04.290 --> 00:17:05.790
<v ->As the public interest requires,</v>

365
00:17:05.790 --> 00:17:07.920
sorry, go back to the baseball bat.

366
00:17:07.920 --> 00:17:12.390
So we have the baseball bat in an ABDW, case is over.

367
00:17:12.390 --> 00:17:15.270
You say, well, if the bat was used to hit somebody

368
00:17:15.270 --> 00:17:17.640
over the head, you don't get your baseball bat,

369
00:17:17.640 --> 00:17:22.290
but then when you look at the ensuing sections,

370
00:17:22.290 --> 00:17:26.103
four, five, six, seven and eight, they all deal with notice,

371
00:17:27.385 --> 00:17:31.470
a trial before an appeal, and the like.

372
00:17:31.470 --> 00:17:36.030
So when you say, well, if it's established in a plea

373
00:17:36.030 --> 00:17:37.230
that the baseball bat was used

374
00:17:37.230 --> 00:17:40.380
to hit someone over the head, you get to destroy it.

375
00:17:40.380 --> 00:17:42.900
But if you also incorporate four through eight,

376
00:17:42.900 --> 00:17:45.600
you don't get to destroy it, you have to have a trial.

377
00:17:46.620 --> 00:17:51.380
<v ->Well, okay, so I guess what I would say is</v>

378
00:17:53.670 --> 00:17:55.950
what you should have to do if you're gonna follow

379
00:17:55.950 --> 00:17:57.690
those statutes to the letter of the law-

380
00:17:57.690 --> 00:17:59.168
<v ->Which is what you're asking us to do.</v>

381
00:17:59.168 --> 00:18:01.710
<v ->Is issue the required notice,</v>

382
00:18:01.710 --> 00:18:05.640
and see if anyone appears to contest the forfeiture.

383
00:18:05.640 --> 00:18:08.010
And if someone does appear, then at that point,

384
00:18:08.010 --> 00:18:11.790
you have to have whatever proceedings they ask for.

385
00:18:11.790 --> 00:18:13.980
<v ->Right, and I don't know</v>

386
00:18:13.980 --> 00:18:16.800
if maybe the statute trumps practicality, but-

387
00:18:16.800 --> 00:18:19.350
<v ->Well, in going to the baseball bat hypothetical, right?</v>

388
00:18:19.350 --> 00:18:20.730
<v J. Gaziano>Right.</v>

389
00:18:20.730 --> 00:18:24.337
<v ->Someone else besides the defendant might appear and say,</v>

390
00:18:24.337 --> 00:18:28.320
"Hey, that was my bat," and it maybe is not fair to them

391
00:18:28.320 --> 00:18:30.770
to destroy it without letting them come to court.

392
00:18:31.648 --> 00:18:33.210
<v ->I'm just taking this procedural nightmare</v>

393
00:18:33.210 --> 00:18:35.430
you're asking us the cause, basically.

394
00:18:35.430 --> 00:18:36.552
<v ->Well, I'm not asking you-</v>

395
00:18:36.552 --> 00:18:39.518
<v ->Doesn't section 3-B answer Justice Gaziano's question</v>

396
00:18:39.518 --> 00:18:41.790
about dangerous weapons?

397
00:18:41.790 --> 00:18:44.700
Because it says that, it specifies that those kind

398
00:18:44.700 --> 00:18:48.750
of dangerous weapons used unlawfully shall be forfeited

399
00:18:48.750 --> 00:18:49.680
to the Commonwealth.

400
00:18:49.680 --> 00:18:51.030
<v ->Right, and so that's why I say that-</v>

401
00:18:51.030 --> 00:18:52.020
<v ->Stop without a trial.</v>

402
00:18:52.020 --> 00:18:53.574
<v ->That's why I say that</v>

403
00:18:53.574 --> 00:18:56.430
if the criminal proceeding establishes that something-

404
00:18:56.430 --> 00:18:57.263
<v J. Wendlandt>It was used.</v>

405
00:18:57.263 --> 00:18:58.680
<v ->Was used unlawfully,</v>

406
00:18:58.680 --> 00:19:00.390
then that's probably gonna do the trick.

407
00:19:00.390 --> 00:19:02.310
<v ->So we're just talking about the extra stuff.</v>

408
00:19:02.310 --> 00:19:04.204
<v ->You're talking about the Baggies and the-</v>

409
00:19:04.204 --> 00:19:06.180
(overlapping speech)

410
00:19:06.180 --> 00:19:10.470
Right, yeah, just, yeah, because you know,

411
00:19:10.470 --> 00:19:13.443
the baseball bat is like a diseased animal, right?

412
00:19:14.580 --> 00:19:16.320
So we don't have to worry about diseased animals,

413
00:19:16.320 --> 00:19:19.230
firearms, money, and weapons.

414
00:19:19.230 --> 00:19:20.400
<v Atty. Levin>And I will say like-</v>

415
00:19:20.400 --> 00:19:22.470
<v ->What about telephones?</v>

416
00:19:22.470 --> 00:19:24.030
How do telephones fit into this?

417
00:19:24.030 --> 00:19:27.540
'Cause I assume that those are gonna be things taken,

418
00:19:27.540 --> 00:19:30.270
and they're of value to everybody, right?

419
00:19:30.270 --> 00:19:33.090
<v ->So if a phone is seized pursuant to a warrant.</v>

420
00:19:33.090 --> 00:19:34.134
<v J. Kafker>Right.</v>

421
00:19:34.134 --> 00:19:37.140
<v ->Then the presumption would be that at the end of the case,</v>

422
00:19:37.140 --> 00:19:39.940
the person whose phone it was should get the phone back,

423
00:19:44.670 --> 00:19:48.060
and this is a presumption just to, you know,

424
00:19:48.060 --> 00:19:51.030
one final word is this is a presumption that, in my view,

425
00:19:51.030 --> 00:19:52.950
should be a lot stronger in Massachusetts than it is

426
00:19:52.950 --> 00:19:54.848
in the federal system, because we have

427
00:19:54.848 --> 00:19:59.130
an enumerated substantive right under Article one

428
00:19:59.130 --> 00:20:01.590
to possess and protect and enjoy property,

429
00:20:01.590 --> 00:20:03.420
which doesn't exist as enumerated

430
00:20:03.420 --> 00:20:04.820
in the federal Constitution.

431
00:20:06.210 --> 00:20:07.290
<v Chief J. Budd>Okay, thank you.</v>

432
00:20:07.290 --> 00:20:08.123
<v Atty. Levin>Thank you.</v>

433
00:20:13.560 --> 00:20:15.090
<v ->Okay, Attorney McGee.</v>

434
00:20:15.090 --> 00:20:17.640
<v ->Good morning, Chief Justice Budd, Chief Justices,</v>

435
00:20:18.510 --> 00:20:22.294
may it please the court, Michael McGee for the Commonwealth.

436
00:20:22.294 --> 00:20:23.760
<v ->Can I ask you why does the government get to keep</v>

437
00:20:23.760 --> 00:20:27.180
something that they don't know is connected

438
00:20:27.180 --> 00:20:29.283
at all to any criminal activity?

439
00:20:30.150 --> 00:20:31.980
<v ->As in the case here,</v>

440
00:20:31.980 --> 00:20:35.982
the defendant was convicted of possessing child pornography,

441
00:20:35.982 --> 00:20:38.610
statutory rape, and enticement of a child.

442
00:20:38.610 --> 00:20:41.250
It's well within the discretion portion

443
00:20:41.250 --> 00:20:44.790
of 276 section three for the defendant,

444
00:20:44.790 --> 00:20:49.737
for the judge when provided an affidavit, had a hearing,

445
00:20:49.737 --> 00:20:53.850
and evidence by form of affidavit also from the defendant,

446
00:20:53.850 --> 00:20:57.450
to weigh that and protect the vital public interests

447
00:20:57.450 --> 00:21:00.638
of protecting children from sexual exploitation.

448
00:21:00.638 --> 00:21:05.550
<v ->I'm sorry, you think section three exists in isolation,</v>

449
00:21:05.550 --> 00:21:08.760
and we have to ignore sections four through eight?

450
00:21:08.760 --> 00:21:12.945
<v ->It's from a procedural due process.</v>

451
00:21:12.945 --> 00:21:15.960
<v ->And life would be easy if there was no section four</v>

452
00:21:15.960 --> 00:21:18.450
through eight for you, but there is.

453
00:21:18.450 --> 00:21:23.450
<v ->In practicality, these circumstances happen at, like here,</v>

454
00:21:23.580 --> 00:21:26.520
a motion for return of property from the defendant.

455
00:21:26.520 --> 00:21:28.293
As was the case in Gilday,

456
00:21:29.370 --> 00:21:32.040
the defendant here filed a motion for return of property,

457
00:21:32.040 --> 00:21:35.700
believing some of it was non-contraband and personal

458
00:21:35.700 --> 00:21:39.810
in nature, asked for a drive to be inventoried,

459
00:21:39.810 --> 00:21:41.250
and some items to be returned.

460
00:21:41.250 --> 00:21:42.960
In fact, there were some items

461
00:21:42.960 --> 00:21:44.910
that the Commonwealth had agreed to return.

462
00:21:44.910 --> 00:21:47.880
As counsel alluded to, oftentimes,

463
00:21:47.880 --> 00:21:50.280
the parties come to some kind of decision there.

464
00:21:53.264 --> 00:21:54.960
To answer your question,

465
00:21:54.960 --> 00:21:59.220
the Commonwealth was not mandated to pursue forfeiture

466
00:21:59.220 --> 00:22:00.750
of the items here.

467
00:22:00.750 --> 00:22:03.360
The proper procedure was done here.

468
00:22:03.360 --> 00:22:06.630
The defendant, in fact, was given a fair opportunity,

469
00:22:06.630 --> 00:22:10.140
had competent counsel, notice, and the opportunity

470
00:22:10.140 --> 00:22:12.300
to present evidence in the form of an affidavit.

471
00:22:12.300 --> 00:22:13.410
In fact, after-

472
00:22:13.410 --> 00:22:15.120
<v ->You're saying the default position is</v>

473
00:22:15.120 --> 00:22:19.143
you get to throw things away unless they ask for a return.

474
00:22:20.370 --> 00:22:24.810
<v ->Oftentimes, and what I suggest be the proper procedure is</v>

475
00:22:24.810 --> 00:22:27.120
that after a case has run its course,

476
00:22:27.120 --> 00:22:31.890
and this is again alluding to 278A section 16,

477
00:22:31.890 --> 00:22:36.660
is that once a defendant has gone through probation,

478
00:22:36.660 --> 00:22:37.710
the appellate process-

479
00:22:37.710 --> 00:22:41.250
<v ->But 270A is the biological.</v>

480
00:22:41.250 --> 00:22:43.000
<v Atty. McGee>And other evidence.</v>

481
00:22:44.280 --> 00:22:45.902
<v ->But I think you have to stick</v>

482
00:22:45.902 --> 00:22:48.240
with 276 three through eight.

483
00:22:48.240 --> 00:22:49.555
<v Atty. McGee>Correct.</v>

484
00:22:49.555 --> 00:22:51.930
<v ->And not go not to the DNA statute.</v>

485
00:22:51.930 --> 00:22:53.220
<v ->From a policy standpoint,</v>

486
00:22:53.220 --> 00:22:56.400
this benefits both the defendant and the Commonwealth.

487
00:22:56.400 --> 00:22:59.430
As Your Honors are very well aware, there's appeals

488
00:22:59.430 --> 00:23:02.760
at all different points in time, and there's different,

489
00:23:02.760 --> 00:23:05.160
the retention of property is for a number

490
00:23:05.160 --> 00:23:05.993
of different reasons.

491
00:23:05.993 --> 00:23:07.200
This defendant here is charged.

492
00:23:07.200 --> 00:23:08.550
<v ->But that's a little bit different,</v>

493
00:23:08.550 --> 00:23:13.230
and the issue that I am having here is these are things

494
00:23:13.230 --> 00:23:16.530
that he's asking for that are unconnected

495
00:23:16.530 --> 00:23:19.350
to the underlying prosecution and conviction

496
00:23:19.350 --> 00:23:21.513
or guilty plea, what have you.

497
00:23:22.974 --> 00:23:24.824
You would concede that, wouldn't you?

498
00:23:25.817 --> 00:23:29.280
<v ->What I would suggest is that the devices</v>

499
00:23:29.280 --> 00:23:30.690
in themselves are,

500
00:23:30.690 --> 00:23:33.210
there's a nexus between them and the crime.

501
00:23:33.210 --> 00:23:35.327
The defendant was convicted of possessing child pornography.

502
00:23:35.327 --> 00:23:38.160
<v ->Correct, I know what he was convicted of,</v>

503
00:23:38.160 --> 00:23:41.520
but the issue that I'm having is,

504
00:23:41.520 --> 00:23:43.950
the affidavit that was presented on behalf

505
00:23:43.950 --> 00:23:48.130
of the Commonwealth seems to me to screaming

506
00:23:48.130 --> 00:23:51.971
to CYA affidavit, where I don't know what it is,

507
00:23:51.971 --> 00:23:54.240
it could be potentially illegal,

508
00:23:54.240 --> 00:23:57.543
but I have no information that it is, so therefore,

509
00:23:59.006 --> 00:24:00.356
we don't turn it back over.

510
00:24:01.290 --> 00:24:02.640
<v ->With all due respect, Your Honor,</v>

511
00:24:02.640 --> 00:24:05.070
what I would suggest is that affidavit from a person

512
00:24:05.070 --> 00:24:07.830
that is well educated and well experienced

513
00:24:07.830 --> 00:24:10.140
in internet crimes against children-

514
00:24:10.140 --> 00:24:12.510
<v ->Doesn't say that anything's illegal.</v>

515
00:24:12.510 --> 00:24:16.260
<v ->Says that even that trooper with all that experience,</v>

516
00:24:16.260 --> 00:24:19.560
and that civilian forensic examiner, and no examiner

517
00:24:19.560 --> 00:24:23.670
and no expert could determine the ages and identities

518
00:24:23.670 --> 00:24:28.670
of these individuals based upon just seeing them.

519
00:24:28.770 --> 00:24:30.090
<v J. Georges>Sure.</v>

520
00:24:30.090 --> 00:24:33.060
<v ->That that risk, that substantial risk</v>

521
00:24:33.060 --> 00:24:37.020
of providing child pornography back to a convicted child,

522
00:24:37.020 --> 00:24:40.290
a person that's been convicted of that,

523
00:24:40.290 --> 00:24:44.233
that risk is substantial, and that the judge here was

524
00:24:45.300 --> 00:24:50.300
well within his discretion to not require the Commonwealth

525
00:24:50.700 --> 00:24:55.080
and its police that unwarranted and unsubstantiated burden

526
00:24:55.080 --> 00:24:57.150
of going through all of that, and having to go

527
00:24:57.150 --> 00:25:00.990
through thousands of unidentified image files,

528
00:25:00.990 --> 00:25:04.650
and really reaching the result that they can't decide,

529
00:25:04.650 --> 00:25:05.483
they can't determine

530
00:25:05.483 --> 00:25:07.980
whether it's someone under the age of 18.

531
00:25:07.980 --> 00:25:11.130
And that there is exactly why the judge was well

532
00:25:11.130 --> 00:25:15.030
within his discretion to deny the defendant's motion in part

533
00:25:15.030 --> 00:25:16.890
and not require that the Commonwealth go through

534
00:25:16.890 --> 00:25:18.390
and inventory that Kingston drive.

535
00:25:18.390 --> 00:25:20.400
<v ->Let me ask you the further corollary to that, though.</v>

536
00:25:20.400 --> 00:25:24.870
So if these items were seized pursuant to a warrant

537
00:25:24.870 --> 00:25:27.840
that we knew, or at least was in the possession

538
00:25:27.840 --> 00:25:29.100
of the defendant,

539
00:25:29.100 --> 00:25:31.293
why would the tie go to the government?

540
00:25:35.206 --> 00:25:40.080
<v ->The government didn't entice or possess child pornography,</v>

541
00:25:40.080 --> 00:25:41.376
and most importantly,

542
00:25:41.376 --> 00:25:46.376
the government didn't co-mingle photographs,

543
00:25:46.410 --> 00:25:48.819
a cache of photographs of a 15 year old girl

544
00:25:48.819 --> 00:25:50.443
within his own personal property.

545
00:25:50.443 --> 00:25:51.960
<v ->But was it co-mingled?</v>

546
00:25:51.960 --> 00:25:55.173
I thought they were all on the main drive.

547
00:25:57.390 --> 00:26:00.300
<v ->There's a gaming tower, the Kingston Drive,</v>

548
00:26:00.300 --> 00:26:01.560
which had evidence of the crime,

549
00:26:01.560 --> 00:26:03.189
admittedly to the defendant.

550
00:26:03.189 --> 00:26:04.827
<v ->He's not asking for that back.</v>

551
00:26:04.827 --> 00:26:05.660
<v ->He's not asking for it.</v>

552
00:26:05.660 --> 00:26:09.390
It was within the gaming drive, one of those,

553
00:26:09.390 --> 00:26:13.260
as we no longer have now, these computer towers.

554
00:26:13.260 --> 00:26:16.260
As explained by the trooper-

555
00:26:16.260 --> 00:26:18.210
<v ->So because he had other drives in there,</v>

556
00:26:18.210 --> 00:26:21.180
you're saying he's responsible for co-mingling,

557
00:26:21.180 --> 00:26:23.400
and this process that's delineated

558
00:26:23.400 --> 00:26:25.950
in the statute just doesn't apply.

559
00:26:25.950 --> 00:26:28.480
<v ->What the judge was free to consider is that</v>

560
00:26:29.610 --> 00:26:32.580
the trooper unambiguously explained

561
00:26:32.580 --> 00:26:34.283
that this was one interconnected-

562
00:26:34.283 --> 00:26:36.609
<v ->I mean, I think the trooper's affidavit says,</v>

563
00:26:36.609 --> 00:26:38.847
"I don't know, I can't tell."

564
00:26:40.260 --> 00:26:41.790
It's a lot.

565
00:26:41.790 --> 00:26:45.360
<v ->To just get back to this one computer aspect,</v>

566
00:26:45.360 --> 00:26:47.250
that there was credible evidence there

567
00:26:47.250 --> 00:26:48.540
that these additional drives,

568
00:26:48.540 --> 00:26:50.670
the Seagate drives, the Barracuda,

569
00:26:50.670 --> 00:26:55.230
and the other drive were all added to increase space,

570
00:26:55.230 --> 00:26:57.030
that essentially, you have a gaming tower.

571
00:26:57.030 --> 00:26:58.050
<v J. Wendlandt>As one does.</v>

572
00:26:58.050 --> 00:27:00.150
<v ->One screen, and that there's evidence</v>

573
00:27:00.150 --> 00:27:03.570
within the Kingston drive that had the evidence

574
00:27:03.570 --> 00:27:07.260
of child pornography, of LNK files,

575
00:27:07.260 --> 00:27:10.230
link files that show that interconnectivity.

576
00:27:10.230 --> 00:27:12.660
There was credible evidence here that this was one computer

577
00:27:12.660 --> 00:27:14.340
and just simply additional drives

578
00:27:14.340 --> 00:27:16.590
to add more space for the user.

579
00:27:16.590 --> 00:27:19.630
So it was well within the judge's discretion here

580
00:27:21.150 --> 00:27:24.660
to allow the Commonwealth to retain those items,

581
00:27:24.660 --> 00:27:26.297
and not to return it to defendant.

582
00:27:26.297 --> 00:27:27.300
<v ->All of the items?</v>

583
00:27:27.300 --> 00:27:31.020
'Cause I take it there's a huge number of pictures here,

584
00:27:31.020 --> 00:27:34.980
some of which I take it are clearly adult, you know,

585
00:27:34.980 --> 00:27:39.600
adult pictures as opposed to potential kids, right?

586
00:27:39.600 --> 00:27:41.012
I'm just, I'm trying to understand

587
00:27:41.012 --> 00:27:44.280
your co-mingling argument, how far it goes.

588
00:27:44.280 --> 00:27:47.820
If there's some interconnection between these computers,

589
00:27:47.820 --> 00:27:52.820
even though a lot of this is totally innocuous stuff,

590
00:27:54.094 --> 00:27:57.060
the Commonwealth can keep everything.

591
00:27:57.060 --> 00:27:58.110
Is that your argument?

592
00:27:58.110 --> 00:28:02.160
<v ->There was competing motions here, but one of them</v>

593
00:28:02.160 --> 00:28:04.590
with respect to my co-mingling argument was with respect

594
00:28:04.590 --> 00:28:07.320
to the Kingston drive that the defendant asked

595
00:28:07.320 --> 00:28:09.840
that the Commonwealth take screenshots

596
00:28:09.840 --> 00:28:11.790
so that he could identify what was personal,

597
00:28:11.790 --> 00:28:14.460
and then later on seek a copy of those.

598
00:28:14.460 --> 00:28:15.870
The co-mingling in here,

599
00:28:15.870 --> 00:28:19.830
and what I'm suggesting now is that the Commonwealth,

600
00:28:19.830 --> 00:28:22.854
that the judge was well within his discretion to deny is

601
00:28:22.854 --> 00:28:25.950
on that drive, the defendant had pictures

602
00:28:25.950 --> 00:28:30.950
of the 15 year old girl nude, he was convicted.

603
00:28:31.500 --> 00:28:35.280
<v ->I understand that the drive that has the pictures</v>

604
00:28:35.280 --> 00:28:39.270
of the 15 year old girl who he's been prosecuted for,

605
00:28:39.270 --> 00:28:43.710
you can keep that, 'cause I mean, I guess you can keep it,

606
00:28:43.710 --> 00:28:47.943
but if the other stuff is only potentially,

607
00:28:50.220 --> 00:28:55.220
if it's severable, why doesn't he get to have it back?

608
00:28:55.909 --> 00:29:00.750
Even if it's got, I mean, okay, we got some people

609
00:29:00.750 --> 00:29:02.790
who are 50 years old in these pictures.

610
00:29:02.790 --> 00:29:04.830
We know they're not kids.

611
00:29:04.830 --> 00:29:06.093
They look like me.

612
00:29:07.320 --> 00:29:08.793
He doesn't get that back?

613
00:29:11.280 --> 00:29:14.910
<v ->Going piece by piece here, there are three Seagate drives,</v>

614
00:29:14.910 --> 00:29:18.570
as I was explaining, that were part of the gaming tower,

615
00:29:18.570 --> 00:29:20.850
which I would suggest they're part of the one computer,

616
00:29:20.850 --> 00:29:25.850
that there's a potential that children could be exploited

617
00:29:27.630 --> 00:29:30.030
by providing them back to the person

618
00:29:30.030 --> 00:29:32.700
that was convicted of possessing child pornography.

619
00:29:32.700 --> 00:29:34.350
The other, Western drive six-

620
00:29:34.350 --> 00:29:36.480
<v ->Because again, I'm not a computer person,</v>

621
00:29:36.480 --> 00:29:41.190
but meaning because there may be something in this computer

622
00:29:41.190 --> 00:29:43.800
that we can't, we're gonna have to dig too deep

623
00:29:43.800 --> 00:29:45.270
into this computer to know

624
00:29:45.270 --> 00:29:48.203
that there might not be some child porn on it.

625
00:29:48.203 --> 00:29:49.350
Is that the argument?

626
00:29:49.350 --> 00:29:52.110
<v ->It's not a box of of photos.</v>

627
00:29:52.110 --> 00:29:54.180
These are sophisticated devices.

628
00:29:54.180 --> 00:29:55.950
They talked about ghost files,

629
00:29:55.950 --> 00:29:59.160
they talked about different sectors of the computer systems.

630
00:29:59.160 --> 00:30:02.966
They didn't image any of them, but what they could determine

631
00:30:02.966 --> 00:30:05.580
from just going through the files,

632
00:30:05.580 --> 00:30:09.960
and even to your point about they could be on there,

633
00:30:09.960 --> 00:30:14.400
one of the Seagate devices had a similar file structure

634
00:30:14.400 --> 00:30:19.282
as even the Western, where it has the name of a woman,

635
00:30:19.282 --> 00:30:22.140
and then proceeds to have a bunch of image files,

636
00:30:22.140 --> 00:30:24.930
not identifiable, that are all of a nude woman.

637
00:30:24.930 --> 00:30:27.903
Don't know her age, don't know who she is.

638
00:30:28.980 --> 00:30:30.570
It simply could be a capacity issue

639
00:30:30.570 --> 00:30:34.560
as to why that ended up on that Seagate.

640
00:30:34.560 --> 00:30:37.290
As to the Western drive, it's six terabytes.

641
00:30:37.290 --> 00:30:39.570
There was, I think hundreds of thousands were referenced

642
00:30:39.570 --> 00:30:43.830
in Trooper Clark's affidavit, and again described

643
00:30:43.830 --> 00:30:46.920
as like, image one, image 161.

644
00:30:46.920 --> 00:30:51.920
To ask a police officer or the staff to spend months going

645
00:30:53.040 --> 00:30:57.240
through these individual photographs to determine something

646
00:30:57.240 --> 00:31:00.110
that's undeterminable, whether they are children-

647
00:31:00.110 --> 00:31:04.050
<v ->So the computers are different from baseball bats</v>

648
00:31:04.050 --> 00:31:07.470
and other things where you can separate the items.

649
00:31:07.470 --> 00:31:09.840
A computer is sort of indivisible.

650
00:31:09.840 --> 00:31:14.490
<v ->Absolutely, and that's something that from a federal end,</v>

651
00:31:14.490 --> 00:31:18.840
they alleged they're statutory-

652
00:31:18.840 --> 00:31:20.690
<v ->Are there cases that say that?</v>

653
00:31:20.690 --> 00:31:22.803
Do the feds have cases that say that,

654
00:31:22.803 --> 00:31:25.440
that a computer is indivisible that way?

655
00:31:25.440 --> 00:31:26.273
<v ->Yes.</v>

656
00:31:26.273 --> 00:31:27.272
<v ->Because that would be helpful,</v>

657
00:31:27.272 --> 00:31:28.260
and those are in your brief?

658
00:31:28.260 --> 00:31:33.000
<v ->They are, and what I cited to is 18 USC-2253,</v>

659
00:31:33.000 --> 00:31:35.187
and Warnick was one of the cases,

660
00:31:35.187 --> 00:31:37.830
and the other name of the cases alludes me,

661
00:31:37.830 --> 00:31:42.830
but essentially, the process that the case law suggests

662
00:31:42.840 --> 00:31:47.840
that the devices that are, if there's a nexus

663
00:31:48.259 --> 00:31:53.259
between the crime and the device, it's all gone.

664
00:31:53.640 --> 00:31:55.677
<v J. Gaziano>This is statutory interpretation, right?</v>

665
00:31:55.677 --> 00:31:56.880
<v Atty. McGee>And it's mandated.</v>

666
00:31:56.880 --> 00:31:59.760
<v ->Right, that's federal statutory interpretation.</v>

667
00:31:59.760 --> 00:32:04.760
We have to interpret 276 section three to see whether

668
00:32:04.830 --> 00:32:07.790
or not four through eight are part of it,

669
00:32:07.790 --> 00:32:10.890
or whether section three is a standalone, essentially.

670
00:32:10.890 --> 00:32:13.740
<v ->Correct, and what I would suggest to the court,</v>

671
00:32:13.740 --> 00:32:16.170
and it was said, and I know it's a non-published decision

672
00:32:16.170 --> 00:32:20.066
in Ricci is that it's not required of the Commonwealth

673
00:32:20.066 --> 00:32:22.440
to seek a forfeiture proceeding

674
00:32:22.440 --> 00:32:24.720
to retain and eventually destroy-

675
00:32:24.720 --> 00:32:26.280
<v ->As a matter of statutory construction,</v>

676
00:32:26.280 --> 00:32:29.010
what's your best argument that it's a standalone?

677
00:32:29.010 --> 00:32:31.530
<v ->It's a standalone?</v>
<v J. Gaziano>Yeah.</v>

678
00:32:31.530 --> 00:32:33.753
<v ->As a matter of statutory construction,</v>

679
00:32:35.010 --> 00:32:37.860
when a item is seized pursuant to a search warrant,

680
00:32:37.860 --> 00:32:39.630
it's under the direction of the court,

681
00:32:39.630 --> 00:32:44.630
and as its unambiguous and the letter of the law,

682
00:32:45.210 --> 00:32:50.210
it states that a judge has a discretion to dispose of,

683
00:32:50.400 --> 00:32:53.580
destroy, forfeit within the public interest.

684
00:32:53.580 --> 00:32:56.910
<v ->'Cause when you read the statute, it's section three says</v>

685
00:32:56.910 --> 00:33:00.690
all the stuff may be forfeited, except,

686
00:33:00.690 --> 00:33:01.920
and it goes on to the things

687
00:33:01.920 --> 00:33:04.710
that Justice Wendlandt identified.

688
00:33:04.710 --> 00:33:09.180
But then it says, hey, here's the forfeiture procedures.

689
00:33:09.180 --> 00:33:10.013
<v Atty. McGee>Correct.</v>

690
00:33:10.013 --> 00:33:11.580
<v ->So how isn't it tied?</v>

691
00:33:11.580 --> 00:33:15.120
How isn't section three tied to four through eight?

692
00:33:15.120 --> 00:33:17.850
'Cause it gives you the procedures for forfeiture.

693
00:33:17.850 --> 00:33:19.410
<v ->What I would suggest to the court is that</v>

694
00:33:19.410 --> 00:33:22.740
the Commonwealth would be well within its right

695
00:33:22.740 --> 00:33:26.010
to seek forfeiture of items and proceed with it.

696
00:33:26.010 --> 00:33:28.980
<v ->That's why I'm just wondering whether we have to have</v>

697
00:33:28.980 --> 00:33:33.980
trials for ski masks or plastic Baggies.

698
00:33:34.080 --> 00:33:37.350
<v ->And what I'd suggest is that it's not mandated,</v>

699
00:33:37.350 --> 00:33:38.910
and I don't, I there's, and-

700
00:33:38.910 --> 00:33:41.430
<v ->So we hand back the ski mask to the robber?</v>

701
00:33:41.430 --> 00:33:46.430
<v ->No, what I would suggest is that Superior Court rule 61</v>

702
00:33:46.710 --> 00:33:51.660
and 276-3 taken together provide due process

703
00:33:51.660 --> 00:33:56.660
for a defendant like this one to have to seek property

704
00:33:56.970 --> 00:33:58.710
that they believe is theirs,

705
00:33:58.710 --> 00:34:02.268
that say if it was jewelry, commingled within jewelry,

706
00:34:02.268 --> 00:34:05.454
and to have a hearing, to have an evidentiary hearing even.

707
00:34:05.454 --> 00:34:07.451
<v ->Nowhere in the statute does it say</v>

708
00:34:07.451 --> 00:34:09.420
the stuff gets thrown out

709
00:34:09.420 --> 00:34:12.870
unless you file a motion for return.

710
00:34:12.870 --> 00:34:15.840
The burden's on the government to destroy

711
00:34:15.840 --> 00:34:17.613
and justify destruction, right?

712
00:34:18.690 --> 00:34:22.500
<v ->There's nowhere in the statute that says</v>

713
00:34:22.500 --> 00:34:26.012
whose burden it is to prove, but what I would say-

714
00:34:26.012 --> 00:34:27.450
<v ->Well, there's the constitutional provision</v>

715
00:34:27.450 --> 00:34:30.150
that your opposing counsel mentioned,

716
00:34:30.150 --> 00:34:31.737
that property belongs to-

717
00:34:31.737 --> 00:34:32.820
<v ->It would be a little backwards if we said</v>

718
00:34:32.820 --> 00:34:36.120
everything gets thrown out unless you prove.

719
00:34:36.120 --> 00:34:38.100
<v ->This is a civil equitable remedy, though,</v>

720
00:34:38.100 --> 00:34:39.200
at the end of the day.

721
00:34:41.250 --> 00:34:43.503
This is not deprivation of liberty.

722
00:34:44.991 --> 00:34:46.137
<v ->Well, Beldotti was easy.</v>

723
00:34:46.137 --> 00:34:49.200
The judge basically said, "Come on, you're kidding me.

724
00:34:49.200 --> 00:34:51.330
We're gonna get rid of that," but that's not this case?

725
00:34:51.330 --> 00:34:56.330
<v ->Well, Your Honor, the Commonwealth and its citizens have</v>

726
00:34:57.060 --> 00:35:01.764
a interest in protecting children and their safety.

727
00:35:01.764 --> 00:35:03.216
<v ->Right, but you don't know.</v>

728
00:35:03.216 --> 00:35:04.447
All you have is that officer saying,

729
00:35:04.447 --> 00:35:06.510
"I can't tell if these are children."

730
00:35:06.510 --> 00:35:07.980
<v ->Thousands and thousands of pictures.</v>

731
00:35:07.980 --> 00:35:11.220
<v ->Right, and I don't if any one of them is a child.</v>

732
00:35:11.220 --> 00:35:12.390
I can't possibly tell,

733
00:35:12.390 --> 00:35:13.830
'cause it would take me too long,

734
00:35:13.830 --> 00:35:16.110
but I'm gonna keep it and destroy it,

735
00:35:16.110 --> 00:35:18.000
even the wedding pictures of somebody else

736
00:35:18.000 --> 00:35:19.380
who owns a copyright to those.

737
00:35:19.380 --> 00:35:21.480
<v ->And the judge was free to credit</v>

738
00:35:21.480 --> 00:35:26.190
that the officer did refer to them as young,

739
00:35:26.190 --> 00:35:28.860
and that we have a defendant here that went to stay prison

740
00:35:28.860 --> 00:35:33.860
for seven years for enticing, for explaining to her

741
00:35:34.110 --> 00:35:36.750
how she could sneak out of her house to meet with him,

742
00:35:36.750 --> 00:35:38.940
and took photographs of her and kept those photographs.

743
00:35:38.940 --> 00:35:41.940
He was free, being the judge that took that plea,

744
00:35:41.940 --> 00:35:46.200
and also that did the first motion in 2018,

745
00:35:46.200 --> 00:35:49.380
and heard all these arguments, to reject that,

746
00:35:49.380 --> 00:35:51.570
based upon that affidavit,

747
00:35:51.570 --> 00:35:54.030
and allow the Commonwealth to retain them.

748
00:35:54.030 --> 00:35:56.480
He denied the Commonwealth's motion to destroy it

749
00:35:57.690 --> 00:36:01.410
without prejudice, but he refused to return this

750
00:36:01.410 --> 00:36:05.280
to the person who admittedly possessed child pornography.

751
00:36:05.280 --> 00:36:08.340
<v ->None of which is the, right, none of which was</v>

752
00:36:08.340 --> 00:36:10.980
the other things that he's asking for.

753
00:36:10.980 --> 00:36:11.813
<v Atty. McGee>Excuse me?</v>

754
00:36:11.813 --> 00:36:14.580
<v ->He admitted to possessing child pornography,</v>

755
00:36:14.580 --> 00:36:17.490
but none of it was the things

756
00:36:17.490 --> 00:36:19.350
on the four drives he's asking for.

757
00:36:19.350 --> 00:36:23.310
<v ->No, and what I believe, and I would suggest was</v>

758
00:36:23.310 --> 00:36:26.460
well within the judge's discretion is not requiring

759
00:36:26.460 --> 00:36:28.620
the Commonwealth, who did not commingle

760
00:36:28.620 --> 00:36:30.900
all this, and did not possess all-

761
00:36:30.900 --> 00:36:32.790
<v ->Counsel, I know you're over time,</v>

762
00:36:32.790 --> 00:36:35.400
but I can still go back to Justice Gaziano's point

763
00:36:35.400 --> 00:36:38.700
about do you just get to carve this out or not?

764
00:36:38.700 --> 00:36:40.830
Because you can still say co-mingling.

765
00:36:40.830 --> 00:36:42.840
So I understand there's one tower,

766
00:36:42.840 --> 00:36:44.790
and just for the uninitiated,

767
00:36:44.790 --> 00:36:48.060
that you could slide in four different drives,

768
00:36:48.060 --> 00:36:48.893
and just because,

769
00:36:48.893 --> 00:36:50.820
and you could pull out four different drives.

770
00:36:50.820 --> 00:36:52.920
You can take out two, you can take out three,

771
00:36:52.920 --> 00:36:55.620
you can take out four, so when you say co-mingling,

772
00:36:55.620 --> 00:36:57.330
just because they're all housed

773
00:36:57.330 --> 00:36:59.550
in the same tower doesn't mean

774
00:36:59.550 --> 00:37:01.563
that they're not easily segregated,

775
00:37:02.820 --> 00:37:04.110
so we could pull that out, right?

776
00:37:04.110 --> 00:37:07.170
So the ones that we're talking about that we don't know

777
00:37:07.170 --> 00:37:09.858
what the images are and that they could potentially be

778
00:37:09.858 --> 00:37:14.130
contraband or unlawful, why isn't it that

779
00:37:14.130 --> 00:37:17.731
the other parts of the statute then aren't triggered?

780
00:37:17.731 --> 00:37:21.420
Isn't it even more important that they're triggered,

781
00:37:21.420 --> 00:37:22.530
the procedural aspects?

782
00:37:22.530 --> 00:37:26.700
Because we don't know if they're at all unlawful

783
00:37:26.700 --> 00:37:29.130
or that they may be potentially contraband,

784
00:37:29.130 --> 00:37:31.170
so wouldn't that make sense that we have

785
00:37:31.170 --> 00:37:33.660
these other procedures that we go through this trial,

786
00:37:33.660 --> 00:37:35.910
particularly in this case?

787
00:37:35.910 --> 00:37:38.490
<v ->In this case, and in particular to this case,</v>

788
00:37:38.490 --> 00:37:40.500
the defendant had that opportunity,

789
00:37:40.500 --> 00:37:45.500
and had a zealous counsel arguing for all of that,

790
00:37:46.200 --> 00:37:48.930
and making all of those arguments in a hearing.

791
00:37:48.930 --> 00:37:53.190
In 2018, had notice, provided an affidavit,

792
00:37:53.190 --> 00:37:58.110
waited till 2022 to then say, "Oh, there might be,

793
00:37:58.110 --> 00:38:00.330
through the form of an affidavit, these other persons,"

794
00:38:00.330 --> 00:38:03.270
never providing names or anybody that's actually seeking

795
00:38:03.270 --> 00:38:06.000
any of these wedding photographs or engagement photographs,

796
00:38:06.000 --> 00:38:08.400
none of that, and the judge was free

797
00:38:08.400 --> 00:38:09.671
and well within his discretion

798
00:38:09.671 --> 00:38:12.210
to discredit the defendant's affidavit.

799
00:38:12.210 --> 00:38:13.193
<v J. Georges>Thank you.</v>

800
00:38:14.310 --> 00:38:16.470
<v ->Unless there's anything further,</v>

801
00:38:16.470 --> 00:38:18.920
I'd rest on my brief and ask the court to affirm.