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SJC-13433
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Commonwealth v. Warrens Gelin.
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We'll figure it out.
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(gavel bangs)
Okay, Attorney Lynch.
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I'm sorry. Attorney Murphy, I apologize.
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Thank you. Good morning, your Honors.
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Owen Murphy for Mr. Warrens Gelin.
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Excuse me. (clears throat)
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Now, I think the first issue in this case
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is pretty straightforward.
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And it boils down to the question of whether
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the commonwealth can use evidence that it seizes through
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racially biased law enforcement.
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(clears throat) And then introduce that evidence. Thank you.
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At a violation hearing with the end result
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of placing somebody in jail and revoking their liberty.
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And I'd suggest that the very most basic concepts
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of the equal protection clause in human rights
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continents against such proposition.
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And that that issue is rather straightforward.
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In regard to the second...
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So, putting individual instances
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of biased law enforcement aside,
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the rule prohibiting probationers from moving to-
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Counsel, I'm gonna interrupt you.
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And again, I know that you're here
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to advocate on behalf of your client,
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but you're saying a bunch of things that haven't been proven
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or haven't been tested,
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and it's your view of the evidence
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that it was racially biased.
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I'd like to get back to the main point about whether
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or not the exclusionary rule should apply
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in probation, surrender matters.
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And I know you're saying that it's tethered
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to a different constitutional rule,
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but just a couple years ago in Commonwealth v. Rainey,
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we again reaffirmed our jurisprudence
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that it doesn't for a variety of different reasons
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that have nothing to do with what,
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but constitutional protection
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that the policy reasons
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behind why we don't apply the exclusionary rule
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in probation surrender matters continues to enforce.
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And we said that just a couple years ago in Rainey.
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So, why should we say something differently now?
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In Rainey, the court qualified,
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it generally doesn't apply.
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Not that it always doesn't apply.
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Sure, and that we reaffirmed
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the same kind of safety valves that we had no O'Brien
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from the beginning,
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which aren't applicable in this case.
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So, why is this not the general guard variety reaffirmation
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of what we've said all the way since O'Brien?
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Well, I think what strikes me the most is that, one.
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Olson, excuse me. (sniffs)
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Well, one of the reasons in Rainey and a lot of the cases
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discussing the application of the exclusionary rule,
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one of the justifications is rehabilitation, right?
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The idea being that you can place all the evidence
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in the light of justice for a court to consider
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when they're considering whether to rehabilitate
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the probation or that's been found in
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possession of contraband.
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So, I would suggest to you that
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that can never really take hold in an instance
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where the evidence was produced in the pedestal
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that the court and the probation department are standing on,
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is the evidence that we seized
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through racially biased law enforcement.
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And the reason being that in an effort
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to rehabilitate somebody,
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you need at least some semblance of credibility.
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And I think the-
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Can we just go back to the precise question?
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And address, absent the circumstances held out in Olson
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and implicated by the generally and Rainy where the law
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enforcement officer knows the person is on probation,
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how can the purposes of the exclusionary rule
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be advanced when the purpose is deterrence not remedy?
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Deterrence is one of the purposes,
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I think it's pretty clear from this court's decision
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that judicial integrity is also another purpose
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that serves by the exclusionary rule.
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And uniquely in the case of equal protection claim
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such as this, there's really nothing to deter,
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deterrence isn't an effective remedy
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because in a case of implicit bias,
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the officer might not even know
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that he's acting out of bias.
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It could be a subconscious action
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which deterrence really isn't gonna affect.
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But as I cite my reply brief.
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I thought equal protection requires
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discriminatory intent, not implicit bias.
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Discriminatory intent can take place either, you know,
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consciously or subconsciously.
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So, I think a lot of times it can take place subconsciously
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without a conscious decision by that.
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I understand your argument.
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What I'm looking at, obviously the violation of the law
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that you posit is equal protection.
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But what is it unique about that violation
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of law versus a Fourth Amendment violation
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or other violations where you said
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the exclusionary rule doesn't apply?
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Because a violation of-
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They have a police officer
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who breaks down someone's door, right?
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And seizes contraband.
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That's, you know, we'll get to what egregious means
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when we ask other counsel for that.
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And I'm sure you're anticipating that argument.
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But anyway, why this constitutional violation?
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I mean, they're different harms, right?
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So, I mean, if you are gonna create a rule
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that says you can't move under the equal protection clause
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to challenge evidence that's admitted
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at a violation hearing,
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that's only affecting one subset of the population.
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Unreasonable searches can be levied upon really anyone.
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And I think predominantly,
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they're unfortunately unloved against minority people.
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But the fact of the matter is that an instance of bias law
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enforcement is very predominantly affected
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towards one subset of people.
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And again, by. (clears throat)
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I guess, I don't understand that.
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Why is the equal protection clause different
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than the Fourth Amendment?
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Or the Fifth.
Or the Fifth.
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Because in Olsen we cited the Fifth
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for that same proposition.
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Why is it different?
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I think the Equal Protection Clause by its nature
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is that it was erected to correct an injustice
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that was happening upon a subset of the population.
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So, the idea of the-
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But when a right was created to correct an objectionable
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conduct aimed at a particular subset of the population,
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then the exclusionary rule does not apply.
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Is that your argument?
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My argument is that,
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the exclusionary rule as it's been interpreted
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to not apply at probation violation hearings,
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it simply doesn't mesh with the equal protection clause
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for a number of reasons,
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judicial integrity being among them,
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deterrence being among them.
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But the right itself is just different in nature
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from those other rights the court is discussing.
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But can you get more granular?
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You've said that now a few times.
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What is it about that right, that makes it different.
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(clears throat) They talk about,
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as this court talks about in Long and Lora,
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and other cases of that nature.
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Again, the right was established to correct wrongs
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of the past discrimination.
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So, that's what I'm trying to get at,
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is that the metric that we used when a right was created
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to correct wrongs of the past, as you say,
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then when it's violated,
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the evidence seized in violation of that clause cannot
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be used in a probation revocation hearing,
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otherwise, it can be.
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Is that your rule?
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My suggestion is,
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I think you just really need to,
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I'm not sure I completely understand the question,
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but if you look at the-
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Well, it's your position.
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I mean, I'm trying to figure out your position.
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You're saying that the Equal Protection Clause is different
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than the Fourth Amendment, and I'm trying to figure out why.
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And all you've articulated this morning is that
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it was a right created to correct wrongs of the past.
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And based on the wrongs of the past to correct the wrongs
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of the future, I should say,
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would be more accurate interpretation of it.
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And this is one of those wrongs, I think.
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You don't think the Fourth Amendment was created
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to correct wrongs of the past?
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I do. I just think that it's in of a very different nature
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when it comes to an unreasonable search,
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which could happen to anyone.
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And biased law enforcement.
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Well, you say that, but how?
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I mean, if you're gonna take that position,
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isn't implicit bias, if not explicit bias,
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certainly infused in some of the criticisms of search
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and seizure reasonable suspicion analysis.
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I mean, don't we have those same concerns when it comes
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to the Fourth Amendment in Article 12?
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Absolutely.
So, again, so going back
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to Justice Wenlant's point,
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I'm trying to figure out
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what's the difference between the two,
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because you can make that same argument
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under Article 12 in the Fourth Amendment,
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that you could under equal protection.
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I think this court needs to ask itself
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if it's just for somebody and under the rule
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that's promulgated by the Commonwealth in this case,
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for an officer to declare his racist intentions,
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go and search somebody on the basis of their skin
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or some other classification like that,
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and then use that evidence to place that person in jail.
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And whether that meshes
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with our constitutional rights that we believe in.
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But wouldn't it come into Olsen where we look at whether
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or not there's a egregious police misconduct
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and known probation violations.
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Correct.
Doesn't that cover
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that situation?
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I think that that is a different situation
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where there could be some type of.
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So, let's have the hypothetical of course is right.
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The police officer knows that this person
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that they don't like is on probation
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and they kick down the door, right?
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Right.
For no reason.
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And they go, "Gotcha."
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And then, they come to a VOP versus the criminal trial.
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And they say, "Well, no exclusionary rule."
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Right.
I think that's what Olsen
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basically, says and prohibits.
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Correct?
I agree with that.
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I think Olson's broader than that.
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And Rainy as well.
Right.
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I don't know that that's really,
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I'm not sure how categories were rainy like that.
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I think.
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Implicitly when it says generally in Rainy,
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before getting into the details of the wiretap statute,
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it's pretty clear that if we've got a horrible,
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horribles here, that the exclusionary rule
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is not going to be unable to be utilized.
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Right, my reading and my understanding of that,
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the rule or the exception I guess, in Olsen would be that
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if you have some type of egregious misconduct,
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then, that could open the gate to making a motion
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to suppress an unreasonable search based on the fact that
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it was misconduct that led to that unreasonable search.
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And if you look at this case, if you look at-
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Oh, I thought Olsen doesn't deal with exclusion.
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It just says we're not gonna allow that evidence in the.
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And this is the violation of probation proceedings.
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Correct?
Correct.
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That's correct.
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But I think, there's probably two different causes of action
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that at least could be theoretically considered
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when you consider Olsen
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and it's discussion of egregious misconduct,
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but then, also Long, which says that we're not gonna allow
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this type of e evidence to be permitted in.
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And that was a criminal case yesterday.
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However, my sent the reading, I get out of Long,
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the sentiment is broader than that as well.
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There was a pretrial situation though,
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but I think it's the amici to point out that
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now as technology advances,
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it's easier for police officers to know
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pretty quickly correct whether
266
00:11:50.940 --> 00:11:52.710
somebody is on probation.
Correct.
267
00:11:52.710 --> 00:11:56.580
Why don't you utilize that argument
268
00:11:56.580 --> 00:11:57.990
as we think about whether
269
00:11:57.990 --> 00:12:00.730
or not the factors in Rosetti are present
270
00:12:01.710 --> 00:12:05.940
to reverse so quickly our previous holdings.
271
00:12:05.940 --> 00:12:07.350
Now, I'd actually look,
272
00:12:07.350 --> 00:12:09.540
ask this court to take a look at the second video clip
273
00:12:09.540 --> 00:12:11.910
that's on the disc that I submitted to this court.
274
00:12:11.910 --> 00:12:15.766
And upon studying that again in preparation for today,
275
00:12:15.766 --> 00:12:19.500
it's pretty obvious to me that the officer first learns
276
00:12:19.500 --> 00:12:21.600
that Mr. Lockett Simmons is in the back.
277
00:12:21.600 --> 00:12:23.340
He learns that he was just recently
278
00:12:23.340 --> 00:12:25.020
released from incarceration.
279
00:12:25.020 --> 00:12:26.058
It's pretty much-
The front seat passenger
280
00:12:26.058 --> 00:12:27.674
says it, right?
281
00:12:27.674 --> 00:12:29.898
Yes. It's disclosed.
That's when he finds out
282
00:12:29.898 --> 00:12:31.380
Yeah.
When the front
283
00:12:31.380 --> 00:12:32.735
seat passes and goes,
284
00:12:32.735 --> 00:12:34.280
"Hey, he was just incarcerated, right?"
285
00:12:34.280 --> 00:12:37.050
I think Mr. Lockett Simmons is answering,
286
00:12:37.050 --> 00:12:38.400
but the officer can't hear him.
287
00:12:38.400 --> 00:12:40.950
And my client, Mr. Gelin repeats it, yes.
288
00:12:40.950 --> 00:12:42.240
But it's at that point when he learns
289
00:12:42.240 --> 00:12:44.462
that he was recently released from incarceration.
290
00:12:44.462 --> 00:12:46.358
But I think what would be more problematic
291
00:12:46.358 --> 00:12:49.020
for government would be if they pulled him over
292
00:12:49.020 --> 00:12:50.166
with that knowledge, right?
293
00:12:50.166 --> 00:12:51.100
Right.
They run a plate
294
00:12:51.100 --> 00:12:52.710
and it comes back to-
295
00:12:52.710 --> 00:12:54.122
Right,
You know,
296
00:12:54.122 --> 00:12:56.310
Gaziano, and they go, "Oh, this guy's on probation."
297
00:12:56.310 --> 00:12:58.380
Then all of a sudden, the blue lights come on.
298
00:12:58.380 --> 00:13:00.748
I think you have to look at the totality
299
00:13:00.748 --> 00:13:02.070
of the circumstances.
300
00:13:02.070 --> 00:13:03.510
And the stop here was,
301
00:13:03.510 --> 00:13:05.460
I would suggest pretty pretextual, but.
302
00:13:05.460 --> 00:13:07.980
What do we do with the fact that the driver
303
00:13:07.980 --> 00:13:09.693
who was stopped was white?
304
00:13:11.250 --> 00:13:14.010
How does that affect the analysis at all?
305
00:13:14.010 --> 00:13:17.790
That is the stop was of a white male,
306
00:13:17.790 --> 00:13:20.550
not of a Black person.
307
00:13:20.550 --> 00:13:22.830
Well, I would suggest that you have
308
00:13:22.830 --> 00:13:24.030
to look at the total picture.
309
00:13:24.030 --> 00:13:27.060
And the idea that a stop takes place,
310
00:13:27.060 --> 00:13:29.430
whether or not that stop was racially motivated.
311
00:13:29.430 --> 00:13:32.130
Implicit bias can set into the investigation
312
00:13:32.130 --> 00:13:33.180
that follows thereafter,
313
00:13:33.180 --> 00:13:35.880
and the decision-making process that follows thereafter.
314
00:13:35.880 --> 00:13:37.950
I'd say that that was the case in this case.
315
00:13:37.950 --> 00:13:41.370
But didn't you just say the stop was clearly pretextual
316
00:13:41.370 --> 00:13:46.370
and didn't you have tinted windows?
317
00:13:46.794 --> 00:13:51.794
And again, in response, I think, in reaction
318
00:13:52.803 --> 00:13:54.299
to just Swindon's point,
319
00:13:54.299 --> 00:13:57.780
didn't you say the stop was pretextual initially?
320
00:13:57.780 --> 00:14:00.923
I said that judging by the totality of the circumstances,
321
00:14:00.923 --> 00:14:03.022
it's our position that the stop was pretextual.
322
00:14:03.022 --> 00:14:05.562
And again, I direct the court to the video evidence where-
323
00:14:05.562 --> 00:14:07.202
We looked at the video evidence.
324
00:14:07.202 --> 00:14:10.856
And we have a dash cam that shows us exactly
325
00:14:10.856 --> 00:14:13.027
what the trooper sees that we see, right?
326
00:14:13.027 --> 00:14:15.762
Right.
You see the motor vehicle.
327
00:14:15.762 --> 00:14:17.160
And I can understand
328
00:14:17.160 --> 00:14:19.410
that you might now have some criticism
329
00:14:19.410 --> 00:14:20.640
of the authorization rule,
330
00:14:20.640 --> 00:14:24.266
but there is an observed traffic violation.
331
00:14:24.266 --> 00:14:28.020
And so again, I'm still wondering what do we do
332
00:14:28.020 --> 00:14:30.275
with the fact that we have what we have,
333
00:14:30.275 --> 00:14:31.787
and we see what he saw.
334
00:14:31.787 --> 00:14:35.700
And to the extent that there was an observed
335
00:14:35.700 --> 00:14:38.151
traffic speeding and lane violation.
336
00:14:38.151 --> 00:14:39.570
What do we do with that?
337
00:14:39.570 --> 00:14:43.590
Well, I think we can look at that in comparison
338
00:14:43.590 --> 00:14:44.640
to his later remarks,
339
00:14:44.640 --> 00:14:47.280
which in his later remarks before the grand jury,
340
00:14:47.280 --> 00:14:48.780
he suggests that this was some type
341
00:14:48.780 --> 00:14:50.100
of egregious speeding incident,
342
00:14:50.100 --> 00:14:51.510
and that the car went over the lane.
343
00:14:51.510 --> 00:14:54.060
And in retrospect, when you look at the dash cam,
344
00:14:54.060 --> 00:14:55.680
I mean, it's going around a bend in the highway
345
00:14:55.680 --> 00:14:56.970
and barely touches that.
346
00:14:56.970 --> 00:14:59.130
It pulls over, reasonably.
347
00:14:59.130 --> 00:15:01.410
And I would suggest to you that we need to look at
348
00:15:01.410 --> 00:15:03.345
what happens thereafter to maybe put some of those
349
00:15:03.345 --> 00:15:06.000
dash cam videos in his decision-making
350
00:15:06.000 --> 00:15:07.500
at that point into context.
351
00:15:07.500 --> 00:15:08.940
And really, the important part,
352
00:15:08.940 --> 00:15:11.370
I thought your brief was a little strained
353
00:15:11.370 --> 00:15:13.950
because you barely mentioned
354
00:15:13.950 --> 00:15:16.080
that the guy was an Uber driver.
355
00:15:16.080 --> 00:15:16.913
And you said,
356
00:15:16.913 --> 00:15:18.270
"Well, they treated the white passenger differently."
357
00:15:18.270 --> 00:15:19.950
Clearly they treat the Uber driver
358
00:15:19.950 --> 00:15:21.480
different than the passengers.
359
00:15:21.480 --> 00:15:23.790
This isn't a run of the Mill Uber driver either, right?
360
00:15:23.790 --> 00:15:26.878
And yet, they're so very willing to accept his
361
00:15:26.878 --> 00:15:28.644
odd suggestions.
Does it matter?
362
00:15:28.644 --> 00:15:30.900
I think it does matter.
363
00:15:30.900 --> 00:15:33.138
Okay, so, explain that. Yeah.
364
00:15:33.138 --> 00:15:36.194
I think the fact that they're very willing to suggest this
365
00:15:36.194 --> 00:15:38.790
odd suggestion that he's a hood Uber driver,
366
00:15:38.790 --> 00:15:41.250
and then turn their back to him for minutes at a time
367
00:15:41.250 --> 00:15:42.120
after that,
368
00:15:42.120 --> 00:15:44.580
and to let him while they're approaching the car,
369
00:15:44.580 --> 00:15:46.470
go through his pockets and manipulate his phone
370
00:15:46.470 --> 00:15:47.671
and things like that nature,
371
00:15:47.671 --> 00:15:50.610
and contrast to the way Mr. Gelin
372
00:15:50.610 --> 00:15:52.380
and Mr. Lockett Simmons were treated.
373
00:15:52.380 --> 00:15:55.290
I think that events is some level of implicit bias,
374
00:15:55.290 --> 00:15:57.570
certainly enough to raise a rebuttable presumption along
375
00:15:57.570 --> 00:15:59.472
with the statistics that he should have been allowed to.
376
00:15:59.472 --> 00:16:04.472
Only if we find the observation of the backseat passenger
377
00:16:05.119 --> 00:16:07.770
to be not credible, right?
378
00:16:07.770 --> 00:16:10.560
So, if the observation of the backseat, your client,
379
00:16:10.560 --> 00:16:12.330
that he's moving around,
380
00:16:12.330 --> 00:16:14.580
which I think spring loads,
381
00:16:14.580 --> 00:16:17.190
how the police treat the backseat passenger,
382
00:16:17.190 --> 00:16:18.707
at least facially.
383
00:16:18.707 --> 00:16:23.670
If we think that he's making this up,
384
00:16:23.670 --> 00:16:24.870
it's a different story.
385
00:16:24.870 --> 00:16:29.870
But wouldn't that be a significant factor in the analysis?
386
00:16:30.990 --> 00:16:34.170
Yeah, that might be a turning point of the investigation,
387
00:16:34.170 --> 00:16:35.667
but I think all of the evidence
388
00:16:35.667 --> 00:16:38.160
and the statistics can actually shine a light on
389
00:16:38.160 --> 00:16:40.650
what he's thinking when he discuss or interacts
390
00:16:40.650 --> 00:16:42.759
with the backseat passenger, at least implicitly.
391
00:16:42.759 --> 00:16:44.550
I don't think it becomes irrelevant
392
00:16:44.550 --> 00:16:45.990
by the fact that it happens after it,
393
00:16:45.990 --> 00:16:47.500
because it's still demonstrative of the mindset that he has.
394
00:16:47.500 --> 00:16:51.277
Can I ask you, I'm sorry, about the statistics?
395
00:16:51.277 --> 00:16:56.277
Why are the relevant, (clears throat) excuse me, statistics,
396
00:16:57.540 --> 00:17:01.729
the instances in which this officer has pulled over Black
397
00:17:01.729 --> 00:17:05.253
or Hispanic drivers?
398
00:17:06.540 --> 00:17:08.940
Was?
That this driver was white?
399
00:17:08.940 --> 00:17:13.940
Again, I don't think that it's a one for one comparison.
400
00:17:14.539 --> 00:17:16.110
When you look at the statistics,
401
00:17:16.110 --> 00:17:18.810
the idea is that they could establish that somebody
402
00:17:18.810 --> 00:17:20.820
is prone to act with implicit bias.
403
00:17:20.820 --> 00:17:22.110
That that's something that's within.
404
00:17:22.110 --> 00:17:24.120
So, it doesn't really matter the context,
405
00:17:24.120 --> 00:17:27.120
it's just these traffic stops.
406
00:17:27.120 --> 00:17:29.178
Even though this particular traffic stop
407
00:17:29.178 --> 00:17:31.890
was of a white driver.
408
00:17:31.890 --> 00:17:32.723
In general,
409
00:17:32.723 --> 00:17:37.094
this officer stops Black people more often than he should
410
00:17:37.094 --> 00:17:41.460
given the demographics of the community he's serving.
411
00:17:41.460 --> 00:17:44.280
Right. And that would-
What is your authority
412
00:17:44.280 --> 00:17:48.071
for the fact that that's an apples to apples comparison?
413
00:17:48.071 --> 00:17:50.116
Really, Van Rader and Long,
414
00:17:50.116 --> 00:17:53.633
I would suggest that those cases to me in my mind-
415
00:17:53.633 --> 00:17:56.460
But those cases, well, at least Long,
416
00:17:56.460 --> 00:17:57.630
is about a traffic stop.
417
00:17:57.630 --> 00:17:59.517
So, it makes sense statistically
418
00:17:59.517 --> 00:18:03.000
to compare this officer's stop in this situation
419
00:18:03.000 --> 00:18:06.750
to compare it to his stops in other situations.
420
00:18:06.750 --> 00:18:10.920
What your scenario is more of a,
421
00:18:10.920 --> 00:18:13.134
it's more of a Van Rader stop, right?
422
00:18:13.134 --> 00:18:14.130
It's more of like,
423
00:18:14.130 --> 00:18:16.080
how are you treating pedestrians, almost.
424
00:18:16.080 --> 00:18:17.880
They happen to be in the car and not walking.
425
00:18:17.880 --> 00:18:21.303
But did your statistician look at that?
426
00:18:22.410 --> 00:18:23.790
No, I don't think he looked at that.
427
00:18:23.790 --> 00:18:25.014
But I would suggest that-
428
00:18:25.014 --> 00:18:26.655
Is that a problem for you?
429
00:18:26.655 --> 00:18:27.720
Or do we just accept it, you know,
430
00:18:27.720 --> 00:18:30.849
racist in the context of a traffic stop,
431
00:18:30.849 --> 00:18:35.849
therefore, racist in the context of passenger frisk as well?
432
00:18:37.530 --> 00:18:39.780
I think that the traffic stop
433
00:18:39.780 --> 00:18:42.390
statistics demonstrate that there's an implicit bias
434
00:18:42.390 --> 00:18:43.650
residing with this officer
435
00:18:43.650 --> 00:18:45.570
that's affected his decision-making process.
436
00:18:45.570 --> 00:18:46.963
And his decision-making process
437
00:18:46.963 --> 00:18:49.110
affects more than just the stop.
438
00:18:49.110 --> 00:18:50.778
It affects the subsequent investigation.
439
00:18:50.778 --> 00:18:53.047
And Van Rader talks about that word too.
440
00:18:53.047 --> 00:18:54.870
It talks about not only the stop,
441
00:18:54.870 --> 00:18:56.370
but the decision-making process
442
00:18:56.370 --> 00:18:58.740
and the subsequent investigation.
443
00:18:58.740 --> 00:19:01.971
And I think that's an instance here where we have statistics
444
00:19:01.971 --> 00:19:05.370
that demonstrate his decision-making process in addition
445
00:19:05.370 --> 00:19:07.655
to evidence of his decision-making process.
446
00:19:07.655 --> 00:19:12.480
Which events further suggestions of implicit bias.
447
00:19:12.480 --> 00:19:15.720
I think you have to consider it all when you're asking
448
00:19:15.720 --> 00:19:18.210
a litigant to make a rebuttable presumption.
449
00:19:18.210 --> 00:19:19.890
'Cause these, like, this court is reflected
450
00:19:19.890 --> 00:19:21.213
from the beginning.
451
00:19:22.560 --> 00:19:26.340
It's difficult thing to prove somebody's bias, you know?
452
00:19:26.340 --> 00:19:28.000
And so, we need to look at all the circumstances
453
00:19:28.000 --> 00:19:29.577
that could speak to that.
454
00:19:29.577 --> 00:19:31.020
So, it's implicit bias,
455
00:19:31.020 --> 00:19:34.023
it's a long way from egregious police misconduct, correct?
456
00:19:37.620 --> 00:19:41.180
It's egregious.
Under our case
457
00:19:41.180 --> 00:19:42.543
under Owens, right?
458
00:19:43.860 --> 00:19:47.872
It's egregious in that I think really any unfair violation
459
00:19:47.872 --> 00:19:49.650
of law enforcement like that.
460
00:19:49.650 --> 00:19:51.240
That's why you want us to change the precedent,
461
00:19:51.240 --> 00:19:53.940
because you don't win under our precedent.
462
00:19:53.940 --> 00:19:55.200
I disagree with that because
463
00:19:55.200 --> 00:19:57.240
I think the police knew that Mr. Lockets Simmons
464
00:19:57.240 --> 00:19:59.141
was on probation before he said all that.
465
00:19:59.141 --> 00:20:00.360
I said, oh, I met Olsen and Owens.
466
00:20:00.360 --> 00:20:04.500
But you think.
467
00:20:04.500 --> 00:20:06.597
I don't think I'm asking this court
468
00:20:06.597 --> 00:20:07.680
to change its precedent.
469
00:20:07.680 --> 00:20:11.585
I think I'm asking it to allow the long lower motions
470
00:20:11.585 --> 00:20:13.833
at a probation violation hearing
471
00:20:13.833 --> 00:20:16.945
'cause that's really the only just outcome that
472
00:20:16.945 --> 00:20:20.250
(clears throat) could take place in a case like this.
473
00:20:20.250 --> 00:20:21.240
That would require us
474
00:20:21.240 --> 00:20:22.308
to overturn Olsen.
475
00:20:22.308 --> 00:20:23.721
I'm sorry, your Honor.
That would require us
476
00:20:23.721 --> 00:20:25.890
to overturn Olsen.
477
00:20:25.890 --> 00:20:27.300
That's what you're arguing, isn't it?
478
00:20:27.300 --> 00:20:29.850
No. Olsen only applies to Fourth Amendment searches
479
00:20:29.850 --> 00:20:31.650
and unreasonable searches by its own terms.
480
00:20:31.650 --> 00:20:33.030
Olson says exclusionary rule,
481
00:20:33.030 --> 00:20:34.797
and it also dealt with the Fifth Amendment.
482
00:20:34.797 --> 00:20:36.450
But I get the clever lawyering,
483
00:20:36.450 --> 00:20:38.310
but let's not do this, right?
484
00:20:38.310 --> 00:20:42.450
Okay, yeah, I think that's my honest take on it.
485
00:20:42.450 --> 00:20:45.480
I think that they talk about the Fifth Amendment by analogy,
486
00:20:45.480 --> 00:20:47.610
but I don't think that decision was applicable
487
00:20:47.610 --> 00:20:48.840
to equal protection clause claims.
488
00:20:48.840 --> 00:20:51.720
In any event, Lora wasn't decided until after that fact.
489
00:20:51.720 --> 00:20:54.370
And there's nothing within that decision, Olsen, that
490
00:20:55.230 --> 00:20:58.890
foresees a new basis to move to suppress evidence
491
00:20:58.890 --> 00:20:59.723
and forecloses it.
492
00:20:59.723 --> 00:21:01.800
Certainly, I would suggest that it doesn't apply
493
00:21:01.800 --> 00:21:04.200
to equal protection clause claims at all.
494
00:21:04.200 --> 00:21:06.270
And to the extent that it does is certainly distinguishable,
495
00:21:06.270 --> 00:21:08.340
especially by its own exceptions that it creates
496
00:21:08.340 --> 00:21:10.170
for egregious misconduct
497
00:21:10.170 --> 00:21:12.750
or conduct that shocks the conscious,
498
00:21:12.750 --> 00:21:15.030
which I think even in a case of implicit bias,
499
00:21:15.030 --> 00:21:16.950
it's a little bit conscious shocking
500
00:21:16.950 --> 00:21:18.810
to consider the different stakes adhere
501
00:21:18.810 --> 00:21:22.533
for a person at a disadvantage like Mr. Gelin.
502
00:21:25.920 --> 00:21:29.020
And Justice Lowy, I know I didn't get to your question about
503
00:21:30.360 --> 00:21:31.193
the information technology
504
00:21:31.193 --> 00:21:32.673
and things of that nature.
505
00:21:33.524 --> 00:21:36.690
I'm gonna ask the Apley about that.
506
00:21:36.690 --> 00:21:37.523
All right, fair enough.
507
00:21:37.523 --> 00:21:39.573
Thank you
Okay, Thank you very much.
508
00:21:42.420 --> 00:21:44.043
Okay, Attorney Lynch.
509
00:21:51.180 --> 00:21:52.290
Morning, may I please the court?
510
00:21:52.290 --> 00:21:53.370
Travis Lynch, assistant
511
00:21:53.370 --> 00:21:55.320
district attorney for the Commonwealth.
512
00:21:58.170 --> 00:22:01.143
You would have to overturn Olsen for you to grant this.
513
00:22:04.050 --> 00:22:07.620
Do you think that a traffic stop
514
00:22:07.620 --> 00:22:12.510
that's tainted by racist profiling
515
00:22:12.510 --> 00:22:14.700
would constitute egregious police misconduct?
516
00:22:14.700 --> 00:22:17.160
Not necessarily. And let me just say that,
517
00:22:17.160 --> 00:22:21.033
I think that paragraph and Olsen is really talking about,
518
00:22:23.280 --> 00:22:25.470
I mean, the court doesn't actually say in Olsen
519
00:22:25.470 --> 00:22:28.410
that the court would use the exclusionary rule
520
00:22:28.410 --> 00:22:30.390
if there was actually egregious misconduct.
521
00:22:30.390 --> 00:22:34.290
It's just saying this case Olsen doesn't have it.
522
00:22:34.290 --> 00:22:35.123
Okay, so,
523
00:22:35.123 --> 00:22:40.075
what do you take to be egregious police misconduct
524
00:22:41.490 --> 00:22:43.500
that would take my analogy?
525
00:22:43.500 --> 00:22:45.650
Sure, I think in.
Police know Gaziono
526
00:22:45.650 --> 00:22:46.681
is on probation, right?
527
00:22:46.681 --> 00:22:49.470
They go to his apartment, they say, "We got him now."
528
00:22:49.470 --> 00:22:51.450
And they just kick in the door.
529
00:22:51.450 --> 00:22:52.980
But I think the paragraph and Olsen
530
00:22:52.980 --> 00:22:54.120
that we're discussing-
531
00:22:54.120 --> 00:22:55.860
Does that constitute egregious police misconduct?
532
00:22:55.860 --> 00:22:58.453
Yes, because then the police would be exploiting the fact
533
00:22:58.453 --> 00:23:01.140
that their target is on probation.
534
00:23:01.140 --> 00:23:05.160
This is what Olsen is contemplating or left open.
535
00:23:05.160 --> 00:23:06.960
Olson actually doesn't even say we would
536
00:23:06.960 --> 00:23:08.520
suppress under those circumstances either.
537
00:23:08.520 --> 00:23:13.110
It simply says maybe we would suppress if the police knew.
538
00:23:13.110 --> 00:23:16.260
Okay, assume that we take that hint from Olsen.
539
00:23:16.260 --> 00:23:17.550
Right.
And we don't just say
540
00:23:17.550 --> 00:23:18.383
it's open-ended.
541
00:23:18.383 --> 00:23:23.270
And we do say there is at least some rules here, right?
542
00:23:24.120 --> 00:23:27.030
There is I think a hypothetical case
543
00:23:27.030 --> 00:23:32.030
where the police know that the target of their misconduct
544
00:23:32.940 --> 00:23:36.031
is on probation and they are intentionally trying
545
00:23:36.031 --> 00:23:38.670
to jam 'em up at a violation of probation pursuit.
546
00:23:38.670 --> 00:23:39.900
That's essentially what we're concerned about.
547
00:23:39.900 --> 00:23:42.630
All right, well, what about an equal protection violation?
548
00:23:42.630 --> 00:23:46.263
Police know that someone's on probation
549
00:23:48.180 --> 00:23:52.708
and the police officer has a bad Lora, Long, Van Rader
550
00:23:52.708 --> 00:23:55.893
history upon over minorities.
551
00:23:57.030 --> 00:23:58.830
Is that egregious police misconduct?
552
00:24:00.689 --> 00:24:03.990
I think only because the police officer knows
553
00:24:03.990 --> 00:24:05.340
the target's on probation.
554
00:24:05.340 --> 00:24:07.792
So, you can target somebody who's Black,
555
00:24:07.792 --> 00:24:11.071
so long as you don't know they're on probation.
556
00:24:11.071 --> 00:24:14.790
What I'm saying is that we have to consider the purpose
557
00:24:14.790 --> 00:24:17.940
of the exclusionary rule, which is deterrence.
558
00:24:17.940 --> 00:24:22.620
And Olsen already said that the deterrence rationale
559
00:24:22.620 --> 00:24:25.950
is not served by excluding evidence in a violation.
560
00:24:25.950 --> 00:24:27.120
But practically speaking,
561
00:24:27.120 --> 00:24:31.290
and I was argue this as a trial judge,
562
00:24:31.290 --> 00:24:34.740
someone is on probation for a very serious crime, right?
563
00:24:34.740 --> 00:24:38.880
They arm robbery. They're on probation for five years.
564
00:24:38.880 --> 00:24:41.130
The underlying offense that they,
565
00:24:41.130 --> 00:24:43.890
or the new violation is, you know,
566
00:24:43.890 --> 00:24:48.890
possession of a switchblade, just to use a hypothetical.
567
00:24:51.420 --> 00:24:53.440
They pull over the person,
568
00:24:53.440 --> 00:24:57.240
they get some relatively minor offense,
569
00:24:57.240 --> 00:25:01.170
and they go in front of a judge on a violation of probation
570
00:25:01.170 --> 00:25:02.553
for the armed robbery,
571
00:25:03.420 --> 00:25:07.020
and they're subject to any sentence up to life,
572
00:25:07.020 --> 00:25:10.710
and they could get 20 years versus the misdemeanor
573
00:25:10.710 --> 00:25:14.460
that would be the exclusionary rule purpose.
574
00:25:14.460 --> 00:25:16.740
Where's the deterrence in that?
575
00:25:16.740 --> 00:25:18.031
All right, you got me.
576
00:25:18.031 --> 00:25:21.933
The misdemeanors out, but the guy's serving 20 years.
577
00:25:23.640 --> 00:25:24.790
Where's the deterrence?
578
00:25:27.780 --> 00:25:30.660
On the hypothetical that you just outlined
579
00:25:30.660 --> 00:25:32.616
with a possession of a switch blade.
580
00:25:32.616 --> 00:25:35.791
I mean, I don't wanna fight the hypothetical,
581
00:25:35.791 --> 00:25:39.413
but I don't see anyone getting 20 years for that.
582
00:25:39.413 --> 00:25:41.880
I mean, I know that they're being sentenced on
583
00:25:41.880 --> 00:25:43.680
the underlying offense, but as a practical matter,
584
00:25:43.680 --> 00:25:44.970
that's not going to happen
585
00:25:44.970 --> 00:25:47.760
because the judge isn't going to send somebody for 20 years
586
00:25:47.760 --> 00:25:49.140
for having a switch plate.
587
00:25:49.140 --> 00:25:50.786
That's their violation.
588
00:25:50.786 --> 00:25:51.773
They're being sentenced for the-
589
00:25:52.658 --> 00:25:53.491
They're being sentenced.
They're given the grace
590
00:25:53.491 --> 00:25:54.780
of probation as the case law says.
591
00:25:54.780 --> 00:25:56.310
Right.
They don't conform
592
00:25:56.310 --> 00:25:58.590
the conduct of the requirements of law.
593
00:25:58.590 --> 00:26:03.590
And now, they're being punished on the probation violation,
594
00:26:04.050 --> 00:26:06.539
not the underlying offense.
595
00:26:06.539 --> 00:26:08.343
That's what the law says, at least.
596
00:26:11.760 --> 00:26:14.120
I would just, again say that in Olsen...
597
00:26:16.346 --> 00:26:18.746
So, what does Olsen mean if it means anything?
598
00:26:19.590 --> 00:26:22.770
Olsen means that there are different interests
599
00:26:22.770 --> 00:26:24.810
in different types of proceedings.
600
00:26:24.810 --> 00:26:26.850
The interest that the violation of probation
601
00:26:26.850 --> 00:26:29.540
is to check on or to make sure that we have all
602
00:26:29.540 --> 00:26:32.340
of the reliable evidence available
603
00:26:32.340 --> 00:26:35.760
to supervise the probationer to see if they violated
604
00:26:35.760 --> 00:26:36.870
their probation.
605
00:26:36.870 --> 00:26:41.184
Even if that evidence was obtained through a violation,
606
00:26:41.184 --> 00:26:44.463
through targeting somebody because of their skin color.
607
00:26:45.510 --> 00:26:49.860
You don't think that constitutes egregious police misconduct
608
00:26:49.860 --> 00:26:54.780
or something that undermines the integrity of the judiciary.
609
00:26:54.780 --> 00:26:58.620
The exclusionary rule, I'm sorry.
610
00:26:58.620 --> 00:27:00.423
When this court in Lora decided
611
00:27:00.423 --> 00:27:02.790
that the exclusionary rule was a remedy
612
00:27:02.790 --> 00:27:04.740
for an equal protection violation,
613
00:27:04.740 --> 00:27:08.787
it's cited directly to the deterrence rationale.
614
00:27:08.787 --> 00:27:11.910
There's references to the judicial integrity rationale.
615
00:27:11.910 --> 00:27:13.680
Right, which were not implicated
616
00:27:13.680 --> 00:27:15.450
in the Fourth Amendment context.
617
00:27:15.450 --> 00:27:17.850
But I'm asking you the question.
618
00:27:17.850 --> 00:27:20.280
In the context of somebody being targeted
619
00:27:20.280 --> 00:27:22.950
because of the color of their skin,
620
00:27:22.950 --> 00:27:26.013
doesn't that undermine judicial integrity?
621
00:27:27.180 --> 00:27:30.060
It doesn't happen in the Fourth Amendment context.
622
00:27:30.060 --> 00:27:33.690
But does it happen in the context of somebody being targeted
623
00:27:33.690 --> 00:27:35.610
because of who they are?
624
00:27:35.610 --> 00:27:38.730
But that's not why the court adopted
625
00:27:38.730 --> 00:27:40.410
the exclusionary rule in Lora.
626
00:27:40.410 --> 00:27:43.470
In Lora, the court cites mainly
627
00:27:43.470 --> 00:27:45.123
to the deterrence rationale.
628
00:27:45.990 --> 00:27:47.591
So, the underlying claim.
629
00:27:47.591 --> 00:27:48.424
Talking about Olson,
630
00:27:48.424 --> 00:27:50.760
Olsen says in the Fourth Amendment contexts,
631
00:27:50.760 --> 00:27:53.550
the judicial integrity is not implicated.
632
00:27:53.550 --> 00:27:56.730
I'm asking you in terms of the equal protection argument,
633
00:27:56.730 --> 00:28:01.290
isn't judicial integrity implicated if we allow evidence
634
00:28:01.290 --> 00:28:04.350
to be used to revoke somebody's probation in order
635
00:28:04.350 --> 00:28:07.560
to send them back to prison
636
00:28:07.560 --> 00:28:10.080
based on the color of their skin effectively?
637
00:28:10.080 --> 00:28:13.170
No. And I say that because in Lora,
638
00:28:13.170 --> 00:28:15.480
the court relies on the deterrence rationale
639
00:28:15.480 --> 00:28:17.646
to justify having the exclusionary rule be a remedy
640
00:28:17.646 --> 00:28:19.950
for this type of claim at all.
641
00:28:19.950 --> 00:28:21.873
That's my answer to your question.
642
00:28:23.355 --> 00:28:26.580
What branch of government is the probation department?
643
00:28:26.580 --> 00:28:29.010
They're in the judiciary.
Right.
644
00:28:29.010 --> 00:28:30.832
Right, but we already said that,
645
00:28:30.832 --> 00:28:35.001
but our main point in using the exclusionary rule,
646
00:28:35.001 --> 00:28:35.834
it's deterrence.
But it's not
647
00:28:35.834 --> 00:28:37.773
the only point, right?
648
00:28:37.773 --> 00:28:39.805
It's the main point.
It is usually in the context
649
00:28:39.805 --> 00:28:42.390
of the Fourth, and the Fifth,
650
00:28:42.390 --> 00:28:46.348
and maybe even the Sixth Amendment, the main point.
651
00:28:46.348 --> 00:28:49.988
But is it not possible that in the context of race,
652
00:28:49.988 --> 00:28:51.843
that it's different?
653
00:28:52.770 --> 00:28:55.110
And that the exclusionary rule...
654
00:28:55.110 --> 00:28:57.420
What's your best argument that it shouldn't be used
655
00:28:57.420 --> 00:28:59.160
in this context other than telling me that
656
00:28:59.160 --> 00:29:01.460
in the Fourth Amendment context it's not used?
657
00:29:03.570 --> 00:29:07.170
Because Lora again, relies on the deterrence rationale
658
00:29:07.170 --> 00:29:09.510
to justify suppressing the evidence in the criminal case.
659
00:29:09.510 --> 00:29:11.550
And that was a Fourth Amendment violation.
660
00:29:11.550 --> 00:29:13.110
Lora, I'm talking about the case
661
00:29:13.110 --> 00:29:15.630
that created the equal protection motion suppress.
662
00:29:15.630 --> 00:29:19.620
I see. Okay. So, in Lora itself, the court says,
663
00:29:19.620 --> 00:29:22.020
we think that this type of motion is suppressed,
664
00:29:22.020 --> 00:29:24.150
will deter this type of misconduct.
665
00:29:24.150 --> 00:29:28.080
So, in the criminal case, the rationale is deterrence.
666
00:29:28.080 --> 00:29:30.420
Here we are in the violation of probation.
667
00:29:30.420 --> 00:29:33.570
We are not concerned about the deterrence rationale here.
668
00:29:33.570 --> 00:29:34.860
That's what Olsen says.
669
00:29:34.860 --> 00:29:36.796
But shouldn't we be concerned about judicial integrity
670
00:29:36.796 --> 00:29:39.030
because of the probation department,
671
00:29:39.030 --> 00:29:41.106
the member of the judiciary is coming to us and saying,
672
00:29:41.106 --> 00:29:44.010
this person violated the law.
673
00:29:44.010 --> 00:29:47.640
Please revoke the probation, right?
674
00:29:47.640 --> 00:29:49.826
No, because in Lora that's not the rationale
675
00:29:49.826 --> 00:29:52.320
for doing so in the criminal case.
676
00:29:52.320 --> 00:29:55.380
So, is he a point then that
677
00:29:55.380 --> 00:29:59.013
if there's a suppression issue,
678
00:30:00.180 --> 00:30:04.560
and the purpose of the exclusionary rule is deterrence,
679
00:30:04.560 --> 00:30:08.370
then, in the underlying probation matter,
680
00:30:08.370 --> 00:30:10.080
the evidence would be admissible,
681
00:30:10.080 --> 00:30:13.653
in the present arrest, it wouldn't be?
682
00:30:14.760 --> 00:30:19.760
But it's different if the police officers
683
00:30:20.190 --> 00:30:23.910
who pull the person over know they're on probation
684
00:30:23.910 --> 00:30:25.650
at the time of the seizure.
685
00:30:25.650 --> 00:30:28.350
Right, that's the possibility that's left open in Olsen.
686
00:30:28.350 --> 00:30:32.340
Then, let's go to what I think is the amici point,
687
00:30:32.340 --> 00:30:35.550
which is it's a whole new world now.
688
00:30:35.550 --> 00:30:39.660
People have information at the tip of their fingers,
689
00:30:39.660 --> 00:30:42.270
and it's not like it might've been,
690
00:30:42.270 --> 00:30:44.460
oh, I remember that person was on probation
691
00:30:44.460 --> 00:30:47.074
because I was in court when they were sentenced.
692
00:30:47.074 --> 00:30:52.074
Now, this information right there, a keyboard away.
693
00:30:52.230 --> 00:30:55.950
So, does technology require a second look here?
694
00:30:55.950 --> 00:30:58.140
I don't think so, because again, the only thing
695
00:30:58.140 --> 00:31:00.570
that would make a difference is the officer's knowledge
696
00:31:00.570 --> 00:31:02.583
that the target is on probation.
697
00:31:03.450 --> 00:31:04.470
I don't think you need to reach
698
00:31:04.470 --> 00:31:05.640
that question in this case,
699
00:31:05.640 --> 00:31:06.900
because there's no evidence,
700
00:31:06.900 --> 00:31:08.490
as far as I recall from the record,
701
00:31:08.490 --> 00:31:11.340
that the trooper knows that Mr. Gelin was on probation.
702
00:31:11.340 --> 00:31:16.340
Well, the point is that perhaps the we should reconsider
703
00:31:16.530 --> 00:31:21.393
Olsen and Rainey because the exception in Olsen
704
00:31:21.393 --> 00:31:26.393
is now possible almost all the time.
705
00:31:26.640 --> 00:31:28.530
Well, just because it's possible all the time
706
00:31:28.530 --> 00:31:29.670
as a hypothetical matter,
707
00:31:29.670 --> 00:31:31.950
doesn't mean that it actually happened in this case.
708
00:31:31.950 --> 00:31:35.040
There's no evidence in this case that that happened.
709
00:31:35.040 --> 00:31:37.588
I'd also note, I believe there was an SJC case
710
00:31:37.588 --> 00:31:40.020
that was dismissed as moot.
711
00:31:40.020 --> 00:31:41.760
Where I believe that same question
712
00:31:41.760 --> 00:31:44.403
was raised just a few years ago.
713
00:31:45.279 --> 00:31:49.680
It was Commonwealth against Velazquez JC12788.
714
00:31:49.680 --> 00:31:51.300
I mean, I just glanced at the briefs in that case.
715
00:31:51.300 --> 00:31:53.280
I think that issue was mentioned there.
716
00:31:53.280 --> 00:31:54.780
And then there was another case
717
00:31:54.780 --> 00:31:57.900
that was in the appeals court that was decided recently,
718
00:31:57.900 --> 00:32:02.220
Farm and Williams, which is 22P373.
719
00:32:02.220 --> 00:32:03.840
And the defendant in that case sought
720
00:32:03.840 --> 00:32:07.350
direct appellate review, DAR28848.
721
00:32:07.350 --> 00:32:10.200
And this lineup of the court decided
722
00:32:10.200 --> 00:32:12.420
not to take that case for whatever reason.
723
00:32:12.420 --> 00:32:15.657
I don't think this record squarely presents
724
00:32:15.657 --> 00:32:18.180
that abstract question.
725
00:32:18.180 --> 00:32:22.477
So, I don't think that this case presents an occasion
726
00:32:22.477 --> 00:32:26.403
to reconsider that aspect of Olsen and I mean-
727
00:32:27.359 --> 00:32:29.800
But if there were evidence though,
728
00:32:29.800 --> 00:32:32.580
we wouldn't even have to maybe reconsider Olsen
729
00:32:32.580 --> 00:32:36.180
because if you had a trail of the trooper going back
730
00:32:36.180 --> 00:32:41.180
to his MDT and inputting the bonafides of the passenger
731
00:32:41.640 --> 00:32:43.593
or the rear seat passenger,
732
00:32:45.030 --> 00:32:47.220
because he does get the information
733
00:32:47.220 --> 00:32:48.540
that he was just released
734
00:32:48.540 --> 00:32:50.782
and that couldn't hypothetically make him
735
00:32:50.782 --> 00:32:52.397
go look him up, right?
736
00:32:52.397 --> 00:32:53.706
Right.
But you'd have a trail
737
00:32:53.706 --> 00:32:55.247
of that.
He would, yes.
738
00:32:55.247 --> 00:32:59.608
So, if anything, it would be easier if a defendant,
739
00:32:59.608 --> 00:33:04.110
you know, tried it to make a record to get within Olsen,
740
00:33:04.110 --> 00:33:06.180
but I don't think that that's here.
741
00:33:06.180 --> 00:33:07.650
So, I don't think the court needs
742
00:33:07.650 --> 00:33:09.100
to decide that question here.
743
00:33:10.680 --> 00:33:13.650
How should we define egregious police misconduct?
744
00:33:13.650 --> 00:33:15.540
As I said before,
745
00:33:15.540 --> 00:33:19.320
it should be defined in terms of the police officer
746
00:33:19.320 --> 00:33:22.860
intentionally attempting to exploit the fact that
747
00:33:22.860 --> 00:33:25.323
the probationary target is on probation.
748
00:33:27.150 --> 00:33:29.220
Because again, that's what Olsen states,
749
00:33:29.220 --> 00:33:30.920
or that's what I think Olsen says.
750
00:33:33.510 --> 00:33:36.960
There was a suggestion that the Olsen rule,
751
00:33:36.960 --> 00:33:39.600
sorry, the Olsen rule itself somehow is creates
752
00:33:39.600 --> 00:33:40.773
disparate impact.
753
00:33:41.610 --> 00:33:44.640
I don't think that that claim has any merit,
754
00:33:44.640 --> 00:33:47.532
because I don't think that this court intended
755
00:33:47.532 --> 00:33:49.410
for there to be disparate impact
756
00:33:49.410 --> 00:33:52.050
by the court saying the exclusionary rule won't apply
757
00:33:52.050 --> 00:33:53.610
at a violation of probation.
758
00:33:53.610 --> 00:33:55.650
I just wanted to point that out.
759
00:33:55.650 --> 00:34:00.120
There was also an interesting letter filed by the BBA,
760
00:34:00.120 --> 00:34:01.860
which I think raises a variety
761
00:34:01.860 --> 00:34:03.690
of interesting practical problems
762
00:34:03.690 --> 00:34:06.330
that would occur if we started having these motions
763
00:34:06.330 --> 00:34:09.390
to suppress in violations of probation hearings.
764
00:34:09.390 --> 00:34:14.250
Because I mean, they say it would be really inefficient
765
00:34:14.250 --> 00:34:17.220
if we started having these motions to suppress
766
00:34:17.220 --> 00:34:19.170
that were both in the new criminal case
767
00:34:19.170 --> 00:34:20.520
and in a violation of probation.
768
00:34:20.520 --> 00:34:22.380
So, they suggest that we should have tracking,
769
00:34:22.380 --> 00:34:23.760
but we generally don't have tracking in
770
00:34:23.760 --> 00:34:25.161
violations of probation.
771
00:34:25.161 --> 00:34:28.770
And I'm not primarily arguing all this efficiency
772
00:34:28.770 --> 00:34:31.470
as a reason not to change the rule.
773
00:34:31.470 --> 00:34:33.180
I mean, but it's a factor to consider
774
00:34:33.180 --> 00:34:35.680
when we're talking about a stare decisis argument.
775
00:34:37.140 --> 00:34:38.730
I would just note that in this case,
776
00:34:38.730 --> 00:34:41.550
the violation of probation was concluded within a few months
777
00:34:41.550 --> 00:34:43.400
of the new indictment being returned.
778
00:34:44.610 --> 00:34:47.701
The motion to suppress took until March of 2023
779
00:34:47.701 --> 00:34:49.653
this year to be resolved.
780
00:34:50.970 --> 00:34:53.356
So, that's more than an extra year of litigation
781
00:34:53.356 --> 00:34:55.740
in a violation of probation proceeding.
782
00:34:55.740 --> 00:34:59.400
And we've already said that that judges shouldn't track.
783
00:34:59.400 --> 00:35:00.510
We've said that before.
784
00:35:00.510 --> 00:35:01.343
Right.
I don't wanna
785
00:35:01.343 --> 00:35:02.176
lose you before,
786
00:35:02.176 --> 00:35:04.200
because we didn't get a chance to ask
787
00:35:04.200 --> 00:35:08.073
Attorney Murphy about the sufficiency claims.
788
00:35:09.270 --> 00:35:13.260
Understanding that there, it's not the full range of rights
789
00:35:13.260 --> 00:35:16.023
and burdens that we have at trial,
790
00:35:17.220 --> 00:35:18.881
where you have situations like this back
791
00:35:18.881 --> 00:35:20.550
to Justice Gaziano's point,
792
00:35:20.550 --> 00:35:24.000
where you can get hit pretty hard on the probation sentence
793
00:35:24.000 --> 00:35:25.553
for the violation.
794
00:35:25.553 --> 00:35:29.880
Should we have more than we have here
795
00:35:29.880 --> 00:35:31.890
in terms of not only the contraband,
796
00:35:31.890 --> 00:35:35.463
but also the firearm and whether it was operable or not?
797
00:35:37.020 --> 00:35:39.810
No, it's just a preponderance of the evidence standard.
798
00:35:39.810 --> 00:35:43.876
I mean, the hearsay was found to be substantially reliable.
799
00:35:43.876 --> 00:35:45.960
A rational finder, I mean,
800
00:35:45.960 --> 00:35:47.604
it's not proved beyond a reasonable doubt.
801
00:35:47.604 --> 00:35:49.134
We all know-
No, it's, not.
802
00:35:49.134 --> 00:35:50.224
Right, right.
I'm sorry, go ahead.
803
00:35:50.224 --> 00:35:51.057
No, please.
804
00:35:51.057 --> 00:35:52.523
See, you're asking just what I'm meant.
805
00:35:52.523 --> 00:35:57.210
It's not, but we have witnesses that are the conduit
806
00:35:57.210 --> 00:35:59.880
to whatever preponderance of the evidence or the quantum
807
00:35:59.880 --> 00:36:02.400
of proof standard is applicable to the proceeding.
808
00:36:02.400 --> 00:36:05.313
And why should we change this dramatically,
809
00:36:06.990 --> 00:36:10.750
what the witnesses get to say in a probation violation
810
00:36:10.750 --> 00:36:14.190
that we wouldn't let them say in a criminal matter?
811
00:36:14.190 --> 00:36:15.461
Again, I understand it's not the same,
812
00:36:15.461 --> 00:36:17.820
but we're going from one here to the other
813
00:36:17.820 --> 00:36:19.770
where you made expert testimony here,
814
00:36:19.770 --> 00:36:21.870
and you don't need expert testimony there.
815
00:36:26.850 --> 00:36:30.120
Well, I mean, I'm not even sure if in a civil case,
816
00:36:30.120 --> 00:36:31.500
if we were proving it to the ordinary.
817
00:36:31.500 --> 00:36:33.360
You know, like in a regular civil case, I'm not even...
818
00:36:33.360 --> 00:36:35.550
I think this evidence would be sufficient
819
00:36:35.550 --> 00:36:37.770
if we were proving a criminal violation, you know,
820
00:36:37.770 --> 00:36:40.743
to do the regular civil preponderance standard, and.
821
00:36:43.680 --> 00:36:48.680
But you know, we talked for a few seconds about tracking
822
00:36:48.900 --> 00:36:50.958
and Justice Gaziano raised a hypothetical
823
00:36:50.958 --> 00:36:53.715
about the incredible consequences
824
00:36:53.715 --> 00:36:56.343
of a probation violation hearing.
825
00:36:57.240 --> 00:37:01.680
And I see it on lack of license.
826
00:37:01.680 --> 00:37:05.850
I see it on possession with intent.
827
00:37:05.850 --> 00:37:09.222
But operable, isn't there just some line
828
00:37:09.222 --> 00:37:14.222
in evidence that it was loaded, the firearm was loaded?
829
00:37:15.810 --> 00:37:18.063
Is there anything more inoperable?
830
00:37:20.730 --> 00:37:21.750
I apologize if I don't remember.
831
00:37:21.750 --> 00:37:23.040
I thought the trooper said,
832
00:37:23.040 --> 00:37:25.067
and they thought it was operable.
833
00:37:25.067 --> 00:37:28.104
Right, and then, well, it's loaded.
834
00:37:28.104 --> 00:37:30.087
Right?
Is that?
835
00:37:30.087 --> 00:37:33.990
I guess, I'm just repeating Justice George's question
836
00:37:33.990 --> 00:37:35.571
that seems a little thin
837
00:37:35.571 --> 00:37:39.813
for the no tracking huge implications.
838
00:37:44.430 --> 00:37:46.230
That may be,
I wanna just go back
839
00:37:46.230 --> 00:37:48.210
to your definition of egregious.
840
00:37:48.210 --> 00:37:50.580
Right.
It seems awfully narrow,
841
00:37:50.580 --> 00:37:51.413
doesn't it?
842
00:37:51.413 --> 00:37:54.856
Egregious police misconduct is only a situation
843
00:37:54.856 --> 00:37:59.095
where the officer knows that the defendant or the, yeah,
844
00:37:59.095 --> 00:38:01.860
the defendant's on probation.
845
00:38:01.860 --> 00:38:05.610
Aren't there other ways that police could
846
00:38:05.610 --> 00:38:08.250
act in an egregious manner?
847
00:38:08.250 --> 00:38:09.510
Maybe if they tortured somebody
848
00:38:09.510 --> 00:38:11.596
that might be egregious, but that's not what we have here.
849
00:38:11.596 --> 00:38:13.140
Well, yeah, I don't think we have to go that far.
850
00:38:13.140 --> 00:38:15.051
Right.
Actually, no, I mean,
851
00:38:15.051 --> 00:38:20.051
situations where people or the Fourth Amendment issue,
852
00:38:20.910 --> 00:38:25.910
kicking down someone's door knowing that they can do it
853
00:38:26.040 --> 00:38:28.923
without any kind of repercussions,
854
00:38:30.510 --> 00:38:35.510
pulling somebody over because of their skin color,
855
00:38:35.700 --> 00:38:39.248
knowing full-well that the person is Black,
856
00:38:39.248 --> 00:38:43.443
and just wanted to see what was going on with that person.
857
00:38:46.740 --> 00:38:49.200
Again, I do tie it to the fact
858
00:38:49.200 --> 00:38:50.640
that there's no evidence.
859
00:38:50.640 --> 00:38:51.900
No, no, no. No, I understand.
860
00:38:51.900 --> 00:38:54.300
And I just wanna make sure,
861
00:38:54.300 --> 00:38:56.327
and this is a hypothetical,
862
00:38:56.327 --> 00:38:58.224
I understand that that's not
863
00:38:58.224 --> 00:39:02.800
what you argue is going on in this case.
864
00:39:02.800 --> 00:39:06.510
I'm asking what should we be looking at with regard
865
00:39:06.510 --> 00:39:09.393
to egregious police misconduct means?
866
00:39:10.500 --> 00:39:14.790
I'm just curious as to whether you are actually saying that,
867
00:39:14.790 --> 00:39:18.777
because Olsen talks about that one particular situation.
868
00:39:20.970 --> 00:39:24.033
That's all egregious police misconduct is.
869
00:39:24.900 --> 00:39:26.790
For present purposes,
870
00:39:26.790 --> 00:39:27.623
yes.
Okay.
871
00:39:27.623 --> 00:39:29.040
I wouldn't go any further than that.
872
00:39:29.040 --> 00:39:29.890
Okay.
873
00:39:32.280 --> 00:39:33.473
I'd ask that you.