-: SJC-13433
Commonwealth v. Warrens Gelin.
-: We'll figure it out.
(gavel bangs) -: Okay, Attorney Lynch.
I'm sorry. Attorney Murphy, I apologize.
-: Thank you. Good morning, your Honors.
Owen Murphy for Mr. Warrens Gelin.
Excuse me. (clears throat)
Now, I think the first issue in this case
is pretty straightforward.
And it boils down to the question of whether
the commonwealth can use evidence that it seizes through
racially biased law enforcement.
(clears throat) And then introduce that evidence. Thank you.
At a violation hearing with the end result
of placing somebody in jail and revoking their liberty.
And I'd suggest that the very most basic concepts
of the equal protection clause in human rights
continents against such proposition.
And that that issue is rather straightforward.
In regard to the second...
So, putting individual instances
of biased law enforcement aside,
the rule prohibiting probationers from moving to-
-: Counsel, I'm gonna interrupt you.
And again, I know that you're here
to advocate on behalf of your client,
but you're saying a bunch of things that haven't been proven
or haven't been tested,
and it's your view of the evidence
that it was racially biased.
I'd like to get back to the main point about whether
or not the exclusionary rule should apply
in probation, surrender matters.
And I know you're saying that it's tethered
to a different constitutional rule,
but just a couple years ago in Commonwealth v. Rainey,
we again reaffirmed our jurisprudence
that it doesn't for a variety of different reasons
that have nothing to do with what,
but constitutional protection
that the policy reasons
behind why we don't apply the exclusionary rule
in probation surrender matters continues to enforce.
And we said that just a couple years ago in Rainey.
So, why should we say something differently now?
-: In Rainey, the court qualified,
it generally doesn't apply.
Not that it always doesn't apply.
-: Sure, and that we reaffirmed
the same kind of safety valves that we had no O'Brien
from the beginning,
which aren't applicable in this case.
So, why is this not the general guard variety reaffirmation
of what we've said all the way since O'Brien?
-: Well, I think what strikes me the most is that, one.
-: Olson, excuse me. (sniffs)
-: Well, one of the reasons in Rainey and a lot of the cases
discussing the application of the exclusionary rule,
one of the justifications is rehabilitation, right?
The idea being that you can place all the evidence
in the light of justice for a court to consider
when they're considering whether to rehabilitate
the probation or that's been found in
possession of contraband.
So, I would suggest to you that
that can never really take hold in an instance
where the evidence was produced in the pedestal
that the court and the probation department are standing on,
is the evidence that we seized
through racially biased law enforcement.
And the reason being that in an effort
to rehabilitate somebody,
you need at least some semblance of credibility.
And I think the-
-: Can we just go back to the precise question?
And address, absent the circumstances held out in Olson
and implicated by the generally and Rainy where the law
enforcement officer knows the person is on probation,
how can the purposes of the exclusionary rule
be advanced when the purpose is deterrence not remedy?
-: Deterrence is one of the purposes,
I think it's pretty clear from this court's decision
that judicial integrity is also another purpose
that serves by the exclusionary rule.
And uniquely in the case of equal protection claim
such as this, there's really nothing to deter,
deterrence isn't an effective remedy
because in a case of implicit bias,
the officer might not even know
that he's acting out of bias.
It could be a subconscious action
which deterrence really isn't gonna affect.
But as I cite my reply brief.
-: I thought equal protection requires
discriminatory intent, not implicit bias.
-: Discriminatory intent can take place either, you know,
consciously or subconsciously.
So, I think a lot of times it can take place subconsciously
without a conscious decision by that.
-: I understand your argument.
What I'm looking at, obviously the violation of the law
that you posit is equal protection.
But what is it unique about that violation
of law versus a Fourth Amendment violation
or other violations where you said
the exclusionary rule doesn't apply?
-: Because a violation of-
-: They have a police officer
who breaks down someone's door, right?
And seizes contraband.
That's, you know, we'll get to what egregious means
when we ask other counsel for that.
And I'm sure you're anticipating that argument.
But anyway, why this constitutional violation?
-: I mean, they're different harms, right?
So, I mean, if you are gonna create a rule
that says you can't move under the equal protection clause
to challenge evidence that's admitted
at a violation hearing,
that's only affecting one subset of the population.
Unreasonable searches can be levied upon really anyone.
And I think predominantly,
they're unfortunately unloved against minority people.
But the fact of the matter is that an instance of bias law
enforcement is very predominantly affected
towards one subset of people.
And again, by. (clears throat)
-: I guess, I don't understand that.
Why is the equal protection clause different
than the Fourth Amendment?
-: Or the Fifth. -: Or the Fifth.
Because in Olsen we cited the Fifth
for that same proposition.
Why is it different?
-: I think the Equal Protection Clause by its nature
is that it was erected to correct an injustice
that was happening upon a subset of the population.
So, the idea of the-
-: But when a right was created to correct an objectionable
conduct aimed at a particular subset of the population,
then the exclusionary rule does not apply.
Is that your argument?
-: My argument is that,
the exclusionary rule as it's been interpreted
to not apply at probation violation hearings,
it simply doesn't mesh with the equal protection clause
for a number of reasons,
judicial integrity being among them,
deterrence being among them.
But the right itself is just different in nature
from those other rights the court is discussing.
-: But can you get more granular?
You've said that now a few times.
What is it about that right, that makes it different.
-: (clears throat) They talk about,
as this court talks about in Long and Lora,
and other cases of that nature.
Again, the right was established to correct wrongs
of the past discrimination.
-: So, that's what I'm trying to get at,
is that the metric that we used when a right was created
to correct wrongs of the past, as you say,
then when it's violated,
the evidence seized in violation of that clause cannot
be used in a probation revocation hearing,
otherwise, it can be.
Is that your rule?
-: My suggestion is,
I think you just really need to,
I'm not sure I completely understand the question,
but if you look at the-
-: Well, it's your position.
I mean, I'm trying to figure out your position.
You're saying that the Equal Protection Clause is different
than the Fourth Amendment, and I'm trying to figure out why.
And all you've articulated this morning is that
it was a right created to correct wrongs of the past.
-: And based on the wrongs of the past to correct the wrongs
of the future, I should say,
would be more accurate interpretation of it.
And this is one of those wrongs, I think.
-: You don't think the Fourth Amendment was created
to correct wrongs of the past?
-: I do. I just think that it's in of a very different nature
when it comes to an unreasonable search,
which could happen to anyone.
And biased law enforcement.
-: Well, you say that, but how?
I mean, if you're gonna take that position,
isn't implicit bias, if not explicit bias,
certainly infused in some of the criticisms of search
and seizure reasonable suspicion analysis.
I mean, don't we have those same concerns when it comes
to the Fourth Amendment in Article 12?
-: Absolutely. -: So, again, so going back
to Justice Wenlant's point,
I'm trying to figure out
what's the difference between the two,
because you can make that same argument
under Article 12 in the Fourth Amendment,
that you could under equal protection.
-: I think this court needs to ask itself
if it's just for somebody and under the rule
that's promulgated by the Commonwealth in this case,
for an officer to declare his racist intentions,
go and search somebody on the basis of their skin
or some other classification like that,
and then use that evidence to place that person in jail.
And whether that meshes
with our constitutional rights that we believe in.
-: But wouldn't it come into Olsen where we look at whether
or not there's a egregious police misconduct
and known probation violations.
-: Correct. -: Doesn't that cover
that situation?
-: I think that that is a different situation
where there could be some type of.
-: So, let's have the hypothetical of course is right.
The police officer knows that this person
that they don't like is on probation
and they kick down the door, right?
-: Right. -: For no reason.
And they go, "Gotcha."
And then, they come to a VOP versus the criminal trial.
And they say, "Well, no exclusionary rule."
-: Right. -: I think that's what Olsen
basically, says and prohibits.
Correct? -: I agree with that.
I think Olson's broader than that.
-: And Rainy as well. -: Right.
I don't know that that's really,
I'm not sure how categories were rainy like that.
I think.
-: Implicitly when it says generally in Rainy,
before getting into the details of the wiretap statute,
it's pretty clear that if we've got a horrible,
horribles here, that the exclusionary rule
is not going to be unable to be utilized.
-: Right, my reading and my understanding of that,
the rule or the exception I guess, in Olsen would be that
if you have some type of egregious misconduct,
then, that could open the gate to making a motion
to suppress an unreasonable search based on the fact that
it was misconduct that led to that unreasonable search.
And if you look at this case, if you look at-
-: Oh, I thought Olsen doesn't deal with exclusion.
It just says we're not gonna allow that evidence in the.
And this is the violation of probation proceedings.
Correct? -: Correct.
That's correct.
But I think, there's probably two different causes of action
that at least could be theoretically considered
when you consider Olsen
and it's discussion of egregious misconduct,
but then, also Long, which says that we're not gonna allow
this type of e evidence to be permitted in.
And that was a criminal case yesterday.
However, my sent the reading, I get out of Long,
the sentiment is broader than that as well.
-: There was a pretrial situation though,
but I think it's the amici to point out that
now as technology advances,
it's easier for police officers to know
pretty quickly correct whether
somebody is on probation. -: Correct.
-: Why don't you utilize that argument
as we think about whether
or not the factors in Rosetti are present
to reverse so quickly our previous holdings.
-: Now, I'd actually look,
ask this court to take a look at the second video clip
that's on the disc that I submitted to this court.
And upon studying that again in preparation for today,
it's pretty obvious to me that the officer first learns
that Mr. Lockett Simmons is in the back.
He learns that he was just recently
released from incarceration.
It's pretty much- -: The front seat passenger
says it, right?
-: Yes. It's disclosed. -: That's when he finds out
-: Yeah. -: When the front
seat passes and goes,
"Hey, he was just incarcerated, right?"
-: I think Mr. Lockett Simmons is answering,
but the officer can't hear him.
And my client, Mr. Gelin repeats it, yes.
But it's at that point when he learns
that he was recently released from incarceration.
-: But I think what would be more problematic
for government would be if they pulled him over
with that knowledge, right?
-: Right. -: They run a plate
and it comes back to-
-: Right, -: You know,
Gaziano, and they go, "Oh, this guy's on probation."
Then all of a sudden, the blue lights come on.
-: I think you have to look at the totality
of the circumstances.
And the stop here was,
I would suggest pretty pretextual, but.
-: What do we do with the fact that the driver
who was stopped was white?
How does that affect the analysis at all?
That is the stop was of a white male,
not of a Black person.
-: Well, I would suggest that you have
to look at the total picture.
And the idea that a stop takes place,
whether or not that stop was racially motivated.
Implicit bias can set into the investigation
that follows thereafter,
and the decision-making process that follows thereafter.
I'd say that that was the case in this case.
-: But didn't you just say the stop was clearly pretextual
and didn't you have tinted windows?
And again, in response, I think, in reaction
to just Swindon's point,
didn't you say the stop was pretextual initially?
-: I said that judging by the totality of the circumstances,
it's our position that the stop was pretextual.
And again, I direct the court to the video evidence where-
-: We looked at the video evidence.
And we have a dash cam that shows us exactly
what the trooper sees that we see, right?
-: Right. -: You see the motor vehicle.
And I can understand
that you might now have some criticism
of the authorization rule,
but there is an observed traffic violation.
And so again, I'm still wondering what do we do
with the fact that we have what we have,
and we see what he saw.
And to the extent that there was an observed
traffic speeding and lane violation.
What do we do with that?
-: Well, I think we can look at that in comparison
to his later remarks,
which in his later remarks before the grand jury,
he suggests that this was some type
of egregious speeding incident,
and that the car went over the lane.
And in retrospect, when you look at the dash cam,
I mean, it's going around a bend in the highway
and barely touches that.
It pulls over, reasonably.
And I would suggest to you that we need to look at
what happens thereafter to maybe put some of those
dash cam videos in his decision-making
at that point into context.
And really, the important part,
I thought your brief was a little strained
because you barely mentioned
that the guy was an Uber driver.
And you said,
"Well, they treated the white passenger differently."
Clearly they treat the Uber driver
different than the passengers.
-: This isn't a run of the Mill Uber driver either, right?
And yet, they're so very willing to accept his
odd suggestions. -: Does it matter?
-: I think it does matter.
-: Okay, so, explain that. Yeah.
-: I think the fact that they're very willing to suggest this
odd suggestion that he's a hood Uber driver,
and then turn their back to him for minutes at a time
after that,
and to let him while they're approaching the car,
go through his pockets and manipulate his phone
and things like that nature,
and contrast to the way Mr. Gelin
and Mr. Lockett Simmons were treated.
I think that events is some level of implicit bias,
certainly enough to raise a rebuttable presumption along
with the statistics that he should have been allowed to.
-: Only if we find the observation of the backseat passenger
to be not credible, right?
So, if the observation of the backseat, your client,
that he's moving around,
which I think spring loads,
how the police treat the backseat passenger,
at least facially.
If we think that he's making this up,
it's a different story.
But wouldn't that be a significant factor in the analysis?
-: Yeah, that might be a turning point of the investigation,
but I think all of the evidence
and the statistics can actually shine a light on
what he's thinking when he discuss or interacts
with the backseat passenger, at least implicitly.
I don't think it becomes irrelevant
by the fact that it happens after it,
because it's still demonstrative of the mindset that he has.
-: Can I ask you, I'm sorry, about the statistics?
Why are the relevant, (clears throat) excuse me, statistics,
the instances in which this officer has pulled over Black
or Hispanic drivers?
-: Was? -: That this driver was white?
-: Again, I don't think that it's a one for one comparison.
When you look at the statistics,
the idea is that they could establish that somebody
is prone to act with implicit bias.
That that's something that's within.
-: So, it doesn't really matter the context,
it's just these traffic stops.
Even though this particular traffic stop
was of a white driver.
In general,
this officer stops Black people more often than he should
given the demographics of the community he's serving.
-: Right. And that would- -: What is your authority
for the fact that that's an apples to apples comparison?
-: Really, Van Rader and Long,
I would suggest that those cases to me in my mind-
-: But those cases, well, at least Long,
is about a traffic stop.
So, it makes sense statistically
to compare this officer's stop in this situation
to compare it to his stops in other situations.
What your scenario is more of a,
it's more of a Van Rader stop, right?
It's more of like,
how are you treating pedestrians, almost.
They happen to be in the car and not walking.
But did your statistician look at that?
-: No, I don't think he looked at that.
But I would suggest that-
-: Is that a problem for you?
Or do we just accept it, you know,
racist in the context of a traffic stop,
therefore, racist in the context of passenger frisk as well?
-: I think that the traffic stop
statistics demonstrate that there's an implicit bias
residing with this officer
that's affected his decision-making process.
And his decision-making process
affects more than just the stop.
It affects the subsequent investigation.
And Van Rader talks about that word too.
It talks about not only the stop,
but the decision-making process
and the subsequent investigation.
And I think that's an instance here where we have statistics
that demonstrate his decision-making process in addition
to evidence of his decision-making process.
Which events further suggestions of implicit bias.
I think you have to consider it all when you're asking
a litigant to make a rebuttable presumption.
'Cause these, like, this court is reflected
from the beginning.
It's difficult thing to prove somebody's bias, you know?
And so, we need to look at all the circumstances
that could speak to that.
-: So, it's implicit bias,
it's a long way from egregious police misconduct, correct?
-: It's egregious. -: Under our case
under Owens, right?
-: It's egregious in that I think really any unfair violation
of law enforcement like that.
-: That's why you want us to change the precedent,
because you don't win under our precedent.
-: I disagree with that because
I think the police knew that Mr. Lockets Simmons
was on probation before he said all that.
I said, oh, I met Olsen and Owens.
But you think.
-: I don't think I'm asking this court
to change its precedent.
I think I'm asking it to allow the long lower motions
at a probation violation hearing
'cause that's really the only just outcome that
(clears throat) could take place in a case like this.
-: That would require us
to overturn Olsen.
-: I'm sorry, your Honor. -: That would require us
to overturn Olsen.
That's what you're arguing, isn't it?
-: No. Olsen only applies to Fourth Amendment searches
and unreasonable searches by its own terms.
-: Olson says exclusionary rule,
and it also dealt with the Fifth Amendment.
But I get the clever lawyering,
but let's not do this, right?
-: Okay, yeah, I think that's my honest take on it.
I think that they talk about the Fifth Amendment by analogy,
but I don't think that decision was applicable
to equal protection clause claims.
In any event, Lora wasn't decided until after that fact.
And there's nothing within that decision, Olsen, that
foresees a new basis to move to suppress evidence
and forecloses it.
Certainly, I would suggest that it doesn't apply
to equal protection clause claims at all.
And to the extent that it does is certainly distinguishable,
especially by its own exceptions that it creates
for egregious misconduct
or conduct that shocks the conscious,
which I think even in a case of implicit bias,
it's a little bit conscious shocking
to consider the different stakes adhere
for a person at a disadvantage like Mr. Gelin.
And Justice Lowy, I know I didn't get to your question about
the information technology
and things of that nature.
-: I'm gonna ask the Apley about that.
-: All right, fair enough.
-: Thank you -: Okay, Thank you very much.
-: Okay, Attorney Lynch.
-: Morning, may I please the court?
Travis Lynch, assistant
district attorney for the Commonwealth.
You would have to overturn Olsen for you to grant this.
-: Do you think that a traffic stop
that's tainted by racist profiling
would constitute egregious police misconduct?
-: Not necessarily. And let me just say that,
I think that paragraph and Olsen is really talking about,
I mean, the court doesn't actually say in Olsen
that the court would use the exclusionary rule
if there was actually egregious misconduct.
It's just saying this case Olsen doesn't have it.
-: Okay, so,
what do you take to be egregious police misconduct
that would take my analogy?
-: Sure, I think in. -: Police know Gaziono
is on probation, right?
They go to his apartment, they say, "We got him now."
And they just kick in the door.
-: But I think the paragraph and Olsen
that we're discussing-
-: Does that constitute egregious police misconduct?
-: Yes, because then the police would be exploiting the fact
that their target is on probation.
This is what Olsen is contemplating or left open.
Olson actually doesn't even say we would
suppress under those circumstances either.
It simply says maybe we would suppress if the police knew.
-: Okay, assume that we take that hint from Olsen.
-: Right. -: And we don't just say
it's open-ended.
And we do say there is at least some rules here, right?
-: There is I think a hypothetical case
where the police know that the target of their misconduct
is on probation and they are intentionally trying
to jam 'em up at a violation of probation pursuit.
That's essentially what we're concerned about.
-: All right, well, what about an equal protection violation?
Police know that someone's on probation
and the police officer has a bad Lora, Long, Van Rader
history upon over minorities.
Is that egregious police misconduct?
-: I think only because the police officer knows
the target's on probation.
-: So, you can target somebody who's Black,
so long as you don't know they're on probation.
-: What I'm saying is that we have to consider the purpose
of the exclusionary rule, which is deterrence.
And Olsen already said that the deterrence rationale
is not served by excluding evidence in a violation.
-: But practically speaking,
and I was argue this as a trial judge,
someone is on probation for a very serious crime, right?
They arm robbery. They're on probation for five years.
The underlying offense that they,
or the new violation is, you know,
possession of a switchblade, just to use a hypothetical.
They pull over the person,
they get some relatively minor offense,
and they go in front of a judge on a violation of probation
for the armed robbery,
and they're subject to any sentence up to life,
and they could get 20 years versus the misdemeanor
that would be the exclusionary rule purpose.
Where's the deterrence in that?
All right, you got me.
The misdemeanors out, but the guy's serving 20 years.
Where's the deterrence?
-: On the hypothetical that you just outlined
with a possession of a switch blade.
I mean, I don't wanna fight the hypothetical,
but I don't see anyone getting 20 years for that.
I mean, I know that they're being sentenced on
the underlying offense, but as a practical matter,
that's not going to happen
because the judge isn't going to send somebody for 20 years
for having a switch plate.
That's their violation.
-: They're being sentenced for the-
-: They're being sentenced. -: They're given the grace
of probation as the case law says.
-: Right. -: They don't conform
the conduct of the requirements of law.
And now, they're being punished on the probation violation,
not the underlying offense.
That's what the law says, at least.
-: I would just, again say that in Olsen...
-: So, what does Olsen mean if it means anything?
-: Olsen means that there are different interests
in different types of proceedings.
The interest that the violation of probation
is to check on or to make sure that we have all
of the reliable evidence available
to supervise the probationer to see if they violated
their probation.
-: Even if that evidence was obtained through a violation,
through targeting somebody because of their skin color.
You don't think that constitutes egregious police misconduct
or something that undermines the integrity of the judiciary.
-: The exclusionary rule, I'm sorry.
When this court in Lora decided
that the exclusionary rule was a remedy
for an equal protection violation,
it's cited directly to the deterrence rationale.
There's references to the judicial integrity rationale.
Right, which were not implicated
in the Fourth Amendment context.
But I'm asking you the question.
In the context of somebody being targeted
because of the color of their skin,
doesn't that undermine judicial integrity?
It doesn't happen in the Fourth Amendment context.
But does it happen in the context of somebody being targeted
because of who they are?
-: But that's not why the court adopted
the exclusionary rule in Lora.
In Lora, the court cites mainly
to the deterrence rationale.
So, the underlying claim.
-: Talking about Olson,
Olsen says in the Fourth Amendment contexts,
the judicial integrity is not implicated.
I'm asking you in terms of the equal protection argument,
isn't judicial integrity implicated if we allow evidence
to be used to revoke somebody's probation in order
to send them back to prison
based on the color of their skin effectively?
-: No. And I say that because in Lora,
the court relies on the deterrence rationale
to justify having the exclusionary rule be a remedy
for this type of claim at all.
That's my answer to your question.
-: What branch of government is the probation department?
-: They're in the judiciary. -: Right.
-: Right, but we already said that,
but our main point in using the exclusionary rule,
it's deterrence. -: But it's not
the only point, right?
-: It's the main point. -: It is usually in the context
of the Fourth, and the Fifth,
and maybe even the Sixth Amendment, the main point.
But is it not possible that in the context of race,
that it's different?
And that the exclusionary rule...
What's your best argument that it shouldn't be used
in this context other than telling me that
in the Fourth Amendment context it's not used?
-: Because Lora again, relies on the deterrence rationale
to justify suppressing the evidence in the criminal case.
-: And that was a Fourth Amendment violation.
-: Lora, I'm talking about the case
that created the equal protection motion suppress.
I see. Okay. So, in Lora itself, the court says,
we think that this type of motion is suppressed,
will deter this type of misconduct.
So, in the criminal case, the rationale is deterrence.
Here we are in the violation of probation.
We are not concerned about the deterrence rationale here.
That's what Olsen says.
-: But shouldn't we be concerned about judicial integrity
because of the probation department,
the member of the judiciary is coming to us and saying,
this person violated the law.
Please revoke the probation, right?
-: No, because in Lora that's not the rationale
for doing so in the criminal case.
-: So, is he a point then that
if there's a suppression issue,
and the purpose of the exclusionary rule is deterrence,
then, in the underlying probation matter,
the evidence would be admissible,
in the present arrest, it wouldn't be?
But it's different if the police officers
who pull the person over know they're on probation
at the time of the seizure.
-: Right, that's the possibility that's left open in Olsen.
-: Then, let's go to what I think is the amici point,
which is it's a whole new world now.
People have information at the tip of their fingers,
and it's not like it might've been,
oh, I remember that person was on probation
because I was in court when they were sentenced.
Now, this information right there, a keyboard away.
So, does technology require a second look here?
-: I don't think so, because again, the only thing
that would make a difference is the officer's knowledge
that the target is on probation.
I don't think you need to reach
that question in this case,
because there's no evidence,
as far as I recall from the record,
that the trooper knows that Mr. Gelin was on probation.
-: Well, the point is that perhaps the we should reconsider
Olsen and Rainey because the exception in Olsen
is now possible almost all the time.
-: Well, just because it's possible all the time
as a hypothetical matter,
doesn't mean that it actually happened in this case.
There's no evidence in this case that that happened.
I'd also note, I believe there was an SJC case
that was dismissed as moot.
Where I believe that same question
was raised just a few years ago.
It was Commonwealth against Velazquez JC12788.
I mean, I just glanced at the briefs in that case.
I think that issue was mentioned there.
And then there was another case
that was in the appeals court that was decided recently,
Farm and Williams, which is 22P373.
And the defendant in that case sought
direct appellate review, DAR28848.
And this lineup of the court decided
not to take that case for whatever reason.
I don't think this record squarely presents
that abstract question.
So, I don't think that this case presents an occasion
to reconsider that aspect of Olsen and I mean-
-: But if there were evidence though,
we wouldn't even have to maybe reconsider Olsen
because if you had a trail of the trooper going back
to his MDT and inputting the bonafides of the passenger
or the rear seat passenger,
because he does get the information
that he was just released
and that couldn't hypothetically make him
go look him up, right?
-: Right. -: But you'd have a trail
of that. -: He would, yes.
So, if anything, it would be easier if a defendant,
you know, tried it to make a record to get within Olsen,
but I don't think that that's here.
So, I don't think the court needs
to decide that question here.
-: How should we define egregious police misconduct?
-: As I said before,
it should be defined in terms of the police officer
intentionally attempting to exploit the fact that
the probationary target is on probation.
Because again, that's what Olsen states,
or that's what I think Olsen says.
There was a suggestion that the Olsen rule,
sorry, the Olsen rule itself somehow is creates
disparate impact.
I don't think that that claim has any merit,
because I don't think that this court intended
for there to be disparate impact
by the court saying the exclusionary rule won't apply
at a violation of probation.
I just wanted to point that out.
There was also an interesting letter filed by the BBA,
which I think raises a variety
of interesting practical problems
that would occur if we started having these motions
to suppress in violations of probation hearings.
Because I mean, they say it would be really inefficient
if we started having these motions to suppress
that were both in the new criminal case
and in a violation of probation.
So, they suggest that we should have tracking,
but we generally don't have tracking in
violations of probation.
And I'm not primarily arguing all this efficiency
as a reason not to change the rule.
I mean, but it's a factor to consider
when we're talking about a stare decisis argument.
I would just note that in this case,
the violation of probation was concluded within a few months
of the new indictment being returned.
The motion to suppress took until March of 2023
this year to be resolved.
So, that's more than an extra year of litigation
in a violation of probation proceeding.
-: And we've already said that that judges shouldn't track.
We've said that before.
-: Right. -: I don't wanna
lose you before,
because we didn't get a chance to ask
Attorney Murphy about the sufficiency claims.
Understanding that there, it's not the full range of rights
and burdens that we have at trial,
where you have situations like this back
to Justice Gaziano's point,
where you can get hit pretty hard on the probation sentence
for the violation.
Should we have more than we have here
in terms of not only the contraband,
but also the firearm and whether it was operable or not?
-: No, it's just a preponderance of the evidence standard.
I mean, the hearsay was found to be substantially reliable.
A rational finder, I mean,
it's not proved beyond a reasonable doubt.
We all know- -: No, it's, not.
-: Right, right. -: I'm sorry, go ahead.
-: No, please.
See, you're asking just what I'm meant.
-: It's not, but we have witnesses that are the conduit
to whatever preponderance of the evidence or the quantum
of proof standard is applicable to the proceeding.
And why should we change this dramatically,
what the witnesses get to say in a probation violation
that we wouldn't let them say in a criminal matter?
Again, I understand it's not the same,
but we're going from one here to the other
where you made expert testimony here,
and you don't need expert testimony there.
-: Well, I mean, I'm not even sure if in a civil case,
if we were proving it to the ordinary.
You know, like in a regular civil case, I'm not even...
I think this evidence would be sufficient
if we were proving a criminal violation, you know,
to do the regular civil preponderance standard, and.
-: But you know, we talked for a few seconds about tracking
and Justice Gaziano raised a hypothetical
about the incredible consequences
of a probation violation hearing.
And I see it on lack of license.
I see it on possession with intent.
But operable, isn't there just some line
in evidence that it was loaded, the firearm was loaded?
Is there anything more inoperable?
-: I apologize if I don't remember.
I thought the trooper said,
and they thought it was operable.
-: Right, and then, well, it's loaded.
-: Right? -: Is that?
I guess, I'm just repeating Justice George's question
that seems a little thin
for the no tracking huge implications.
-: That may be, -: I wanna just go back
to your definition of egregious.
-: Right. -: It seems awfully narrow,
doesn't it?
Egregious police misconduct is only a situation
where the officer knows that the defendant or the, yeah,
the defendant's on probation.
Aren't there other ways that police could
act in an egregious manner?
-: Maybe if they tortured somebody
that might be egregious, but that's not what we have here.
-: Well, yeah, I don't think we have to go that far.
-: Right. -: Actually, no, I mean,
situations where people or the Fourth Amendment issue,
kicking down someone's door knowing that they can do it
without any kind of repercussions,
pulling somebody over because of their skin color,
knowing full-well that the person is Black,
and just wanted to see what was going on with that person.
-: Again, I do tie it to the fact
that there's no evidence.
-: No, no, no. No, I understand.
And I just wanna make sure,
and this is a hypothetical,
I understand that that's not
what you argue is going on in this case.
I'm asking what should we be looking at with regard
to egregious police misconduct means?
I'm just curious as to whether you are actually saying that,
because Olsen talks about that one particular situation.
That's all egregious police misconduct is.
-: For present purposes,
yes. -: Okay.
-: I wouldn't go any further than that.
Justice: Okay.
Lynch: I'd ask that you.