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SJC-13454, Commonwealth v. Warren W. Dunn.
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And Attorney DeMayo, whenever you're ready.
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Thank you, may it please the court,
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Christopher DeMayo for Warren Dunn.
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And with me today is Sabrina Bonanno,
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who was counsel for Mr. Dunn in the Superior Court.
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Time permitting, I'd like to talk about three things today.
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The first is whether the search warrant application here
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established probable cause
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that there would be child pornography
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in Mr. Dunn's house on his devices.
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I'm gonna briefly suggest that this court adopt a rule
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like they have in the First Circuit
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that magistrates look at allegedly lewd images.
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That's not the rule.
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Well, it's a best practice rule.
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Okay, that's not the rule.
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Okay.
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And third, if I have time,
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I'll talk about the Franks issue.
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So, before getting into whether there's probable cause,
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I think it's best to a clear up one point.
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And I think this was assumed
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by Judge Buckley and the trooper,
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which is that unless the two photos are themselves lewd,
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there would not be probable cause to go
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and search somebody's house for child pornography.
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And I think that there'd be First Amendment issues
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if protected materials that were not lewd
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could be used as a predicate to go and search someone.
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I only mentioned that because parts of the red brief
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seemed to suggest, well,
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there were nude minors and Mr. Dunn was a sexual offender,
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so that's good enough for probable cause.
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I don't think that's the case.
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And I have a cite, actually,
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from this court's 2014 Rollins case,
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which says, this is page 80 of Rollins, it says,
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"We fail to see how the possession of legal photographs
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"is probative of the defendant's
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"knowing or intentional possession of illegal photographs."
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So, seems our position is the question for the magistrate,
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and then for Judge Buckley,
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were these two photographs lewd
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such that there would be probable cause?
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To what extent does the Microsoft flagging of the images,
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plus the NCMEC hashtag values
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associated with pornographic images
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impact probable cause?
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I read this court's Rex case
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to say that whether an image is lewd or not lewd
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depends on the four corners of the image itself.
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And I have it.
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It's in a footnote, I could read,
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but I think it's footnote 13 of the Rex case.
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So, to me, I mean that's why I think
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this best practice rule makes a lot of sense,
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'cause you actually see what the image is.
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But barring that-
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It's a best practice if the description
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is inadequate, but-
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Yes, sure.
Okay, so let's-
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But to get to Microsoft,
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you know, I guess my answer is it's lewd or it's not lewd.
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And it's not really a vote
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until it gets up to an appellate court.
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So, it was for the magistrate to say,
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and the magistrate had to-
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But isn't that a fact the magistrate
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can take into consideration along with the description?
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If the magistrate knew something
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about this Microsoft process, perhaps.
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But I have no idea what...
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I assume Microsoft has some algorithms
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or artificial intelligence that screens millions of images
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and reports a certain subset of them.
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The hash value is a flagged
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known pornographic images, correct?
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Microsoft assigned them some, yeah, B2.
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The National Center has cataloged these images
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and assigned hash values
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to known pornographic images, correct?
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Well, my understanding is the National Center,
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I thought, was just a clearing house
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and forwarded it from the service provider
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to the whatever the local authority is.
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So I'm not prepared to agree with that as I stand here.
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Although, I'm not disagreeing with it either.
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But I guess to know if the question is broadly
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other people or other companies
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thought these were suspicious photos as well,
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I don't really think that can play into the probable cause-
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That doesn't add anything to the probable cause
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determination?
Unless we know
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why they thought-
Answer the question.
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Does that add anything to the probable cause determination?
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Does what add anything?
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The fact that there are known images of child pornography
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as reflected in the hash values.
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I don't understand what it means
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to say they're known images.
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Known to the National Center-
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They're flagged as known images of child pornography,
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and I'm trying to ask you whether or not
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it's appropriate for an issuing magistrate
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to take that into consideration along with the description.
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I think that should be based
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on the four corners of the image itself.
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But if you couldn't look at the image,
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I agree that, in theory,
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if you had some other reliable source,
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and I don't actually know anything about
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how this came to be given that label B2,
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that could perhaps be something you take into account.
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But I read the Rex case to say,
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you look at the image itself and it's lewd or it isn't lewd,
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and the same goes for Mr. Dunn.
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Or you pay attention to the description.
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The Rex case doesn't say you look at the image.
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The question is whether the description is adequate
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to establish probable cause.
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Right, well, the Rex case wasn't really
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this kind of issue about the sufficiency of the warrant.
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It was actually looking at the images themselves.
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But yes, yeah, correct.
That's the issue
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before the Court is whether the description was adequate
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to establish probable cause.
Correct, correct.
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Is the magistrate better equipped to figure out
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whether an image is lewd than the National Center?
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Well, I mean, I don't know.
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I don't see how...
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The First Amendment requires that there's
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a judicial officer who's making the initial call.
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So I don't see how that can be delegated
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to any third parties or-
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Well, it's not delegated, but,
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I guess I'm thinking about the magistrate.
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I understand you're saying it's best practice
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to look at the photograph,
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but you'll agree it's not required.
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It's not-
Like it to be required,
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but it's not.
Yeah, sure.
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As the law stands, it's not required, I agree.
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So you want us to change the law?
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Well, I mean,
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if what's required is that the description is sufficient,
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I guess, at this point,
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and it doesn't get any better than having the image,
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so that's why we think the-
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Is that why we say a picture is worth a thousand words?
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Correct, that's correct.
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So that's why we think the Brunette Rule makes sense.
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But if the description satisfies the Dost Factors,
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it's fine.
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That's, yes, that's what courts have held.
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And I mean even in the first-
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The Dost Factors, why wouldn't that also,
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in addition to the description,
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in addition to Microsoft,
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in addition to the focal point issue,
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why couldn't the Dost Factors also take into account
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if we look at our previous case law,
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that he's already been convicted of child pornography?
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Because I believe in the Rex case it says specifically,
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I mean it...
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I guess I keep getting back to it's an objective,
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or it's not objective,
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but it doesn't become,
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it's either lewd or it's not lewd, and it doesn't-
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But what you're saying, and I think this is the point,
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I just gotta ask questions.
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I mean, what you're saying is yeah,
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if you attach it to the affidavit,
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the magistrate can take a look at it.
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But if you're not required to attach to the affidavit,
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and every time somebody looks at this,
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the child is re-victimized,
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so if you don't attach it to the affidavit,
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whatever the best practice might be in the First Circuit
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and other places, Why wouldn't all these other factors
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be considered in trying to calibrate
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whether it reaches the level of probable cause?
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Well, if you're not gonna actually attach it,
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it seems to me you need to have a very,
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the magistrate is the one who has to make the call.
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He needs to have sufficient facts to be
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the neutral judge who's and not the police.
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So, in the record, you see both sides
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go on describing these photos for a page or two each,
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and they have somewhat different descriptions.
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But that's a detailed description.
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And I guess, if you're not going to require
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the actual photo, you need...
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Saying the photo of,
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the focus of the photos is the genitals,
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I agree it's a little bit better than Brunette,
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where they just said it's lewd,
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'cause that's a legal word,
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but it's not a whole lot better, because it's-
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When you say it's best practice in Brunette,
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Brunette, as I read it says,
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"Because you use statutory language, it was deficient."
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And then the case goes on to say,
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"Because the affiant used the statutory language,
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"the magistrate should have viewed the images."
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That's not the law in the First Circuit.
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We also cite the Sheehan case where they did not use this
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from just a few months ago.
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And they used a description, albeit a short one,
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and the court applied Brunette and Sheehan,
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and ruled that there was no probable cause.
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There was no focal point in the image in Sheehan, though.
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That's true, they didn't use the word focal.
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The problem with focal point-
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Where they used the word, there was no...
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You talked about the four corners.
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There was no focal point in the Sheehan case.
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I think the Sheehan case said like
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it consists of photos of prepubescent genitals
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or something like that.
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And the U.S. attorney argued,
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well, if it consists of them, then that, that's what it is.
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And they tried to argue that was the,
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that means it is the focal point.
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I guess-
Isn't that
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your best argument is the focal point is subjective
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unless you look at the picture, right?
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I mean you're trying to expand that we have to look
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at every single picture,
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and we can't take into account other factors.
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But your best argument is the focal point,
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whether it's on the sexual organs,
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can't really be discerned unless
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you look at the picture, right?
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In my opinion, it's just subjective
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in that different things can be,
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you know, reasonable people could disagree
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about the focal point.
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So to get back to the-
There's nothing else
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also in the affidavit that suggests that this is lewd
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besides the focus on the-
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No, it says it's nude males aged 13 to 15.
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And we know, it's well settled, that nude is not,
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nudity alone is not lewd.
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So the whole thing stands or falls, it seems to me,
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on the focus issue,
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unless you give some value to the,
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what Microsoft or somebody or other said.
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Even if you do give some value,
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which our cases do do that,
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you still have to decide whether it's a focal point, right?
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I think you do, and I think,
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I mean, you have to decide, I should say,
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that it's lewd, and one of the Dost Factors is focal point.
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And that since that was the only one
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that was proffered here by the trooper,
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you know, the magistrate really just took him at his word,
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it seems to me.
And we don't
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really have much in the way of detail of
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why the officer thought it was focused
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on the sexual organs, right?
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We just don't have much to work from in the affidavit.
263
00:11:47.220 --> 00:11:48.600
It doesn't say this is a closeup,
264
00:11:48.600 --> 00:11:49.770
or whatever, right?
It doesn't say,
265
00:11:49.770 --> 00:11:50.850
yeah, there's many, I mean,
266
00:11:50.850 --> 00:11:53.190
it could be a closeup, it could be,
267
00:11:53.190 --> 00:11:55.350
you know, just the way the picture,
268
00:11:55.350 --> 00:11:58.140
you see cases where legs are spread.
269
00:11:58.140 --> 00:12:00.030
There's many different ways it could be the focus,
270
00:12:00.030 --> 00:12:02.460
and because we just don't know.
271
00:12:02.460 --> 00:12:03.360
It's a very..
272
00:12:03.360 --> 00:12:05.490
It's not legally conclusory like in Brunette
273
00:12:05.490 --> 00:12:07.560
where they said it's lascivious,
274
00:12:07.560 --> 00:12:09.630
but it's conclusory in kind of a factual way
275
00:12:09.630 --> 00:12:12.360
where the magistrate is really not in a position here
276
00:12:12.360 --> 00:12:15.213
to make the independent call that he's supposed to make.
277
00:12:16.290 --> 00:12:20.340
Conclusory with regard to the first Dost Factor, right?
278
00:12:20.340 --> 00:12:22.410
Which is what is the focal point?
279
00:12:22.410 --> 00:12:23.243
Correct.
280
00:12:23.243 --> 00:12:25.140
But the other factors
281
00:12:25.140 --> 00:12:28.050
are something that the magistrate couldn't have weighed.
282
00:12:28.050 --> 00:12:28.883
Well, he could have, I mean,
283
00:12:28.883 --> 00:12:30.510
one of the Dost Factors is are they naked?
284
00:12:30.510 --> 00:12:32.760
And no one's disputing that, I think.
285
00:12:32.760 --> 00:12:36.660
But yeah, it doesn't say anything about the poses
286
00:12:36.660 --> 00:12:39.063
or whether they're sexually suggestive.
287
00:12:39.930 --> 00:12:42.930
I'll just represent to the court, they're outside.
288
00:12:42.930 --> 00:12:44.530
It's pictures of
289
00:12:45.900 --> 00:12:48.090
two boys standing out in the out of doors.
290
00:12:48.090 --> 00:12:50.010
It doesn't strike me as designed
291
00:12:50.010 --> 00:12:52.500
to elicit a sexual response.
292
00:12:52.500 --> 00:12:54.270
Really, you can't, that's again,
293
00:12:54.270 --> 00:12:56.400
you can't really decide these things without,
294
00:12:56.400 --> 00:12:58.620
it all turns on the details, without looking at them.
295
00:12:58.620 --> 00:13:01.180
So I appreciate that it shouldn't lightly
296
00:13:02.294 --> 00:13:04.560
go spreading these pictures about,
297
00:13:04.560 --> 00:13:06.840
but on the other hand, I mean Mr...
298
00:13:06.840 --> 00:13:07.980
People have a...
299
00:13:07.980 --> 00:13:09.570
There's two First Amendment rights at stake here.
300
00:13:09.570 --> 00:13:10.403
It's not just the...
301
00:13:10.403 --> 00:13:12.120
Or two constitutional rights,
302
00:13:12.120 --> 00:13:13.170
not just the First Amendment.
303
00:13:13.170 --> 00:13:14.520
It's the Fourth, because they're
304
00:13:14.520 --> 00:13:15.720
going into somebody's house.
305
00:13:15.720 --> 00:13:17.420
So if you go into somebody's house
306
00:13:18.630 --> 00:13:21.300
on the alleged probable cause created by something
307
00:13:21.300 --> 00:13:24.240
that's not in fact lewd you have a Fourth Amendment issue
308
00:13:24.240 --> 00:13:26.146
and a First Amendment issue, so-
309
00:13:26.146 --> 00:13:28.410
Can I pin you down on one more factual issue?
310
00:13:28.410 --> 00:13:31.921
Yeah.
The Microsoft targeting.
311
00:13:31.921 --> 00:13:33.750
I may have misread this,
312
00:13:33.750 --> 00:13:37.560
was it suggesting that these children have been identified
313
00:13:37.560 --> 00:13:42.150
as having previously been in child porn pictures?
314
00:13:42.150 --> 00:13:44.700
Is that what the label there?
315
00:13:44.700 --> 00:13:45.800
That is not-
Is that what
316
00:13:45.800 --> 00:13:47.340
that B2 label means or no?
317
00:13:47.340 --> 00:13:49.590
I thought the B2 label just meant
318
00:13:49.590 --> 00:13:51.930
that somehow through some process, Microsoft,
319
00:13:51.930 --> 00:13:54.597
they say what A1 means and A2 and B2.
320
00:13:54.597 --> 00:13:56.880
And what does B2 mean, exactly?
321
00:13:56.880 --> 00:13:58.980
B2 means it kind of parrots the,
322
00:13:58.980 --> 00:14:01.770
it's lewd and lascivious display of the-
323
00:14:01.770 --> 00:14:03.270
But it's not that these children
324
00:14:03.270 --> 00:14:05.790
had been previously identified-
325
00:14:05.790 --> 00:14:07.230
That's not what I understood it as,
326
00:14:07.230 --> 00:14:08.580
although, I know Justice Gaziano
327
00:14:08.580 --> 00:14:09.840
was talking about the hashtag,
328
00:14:09.840 --> 00:14:13.020
and that's why I said I'm not prepared to,
329
00:14:13.020 --> 00:14:16.740
it seems to me this is just a routine thing
330
00:14:16.740 --> 00:14:19.560
where service providers report certain,
331
00:14:19.560 --> 00:14:21.780
through their screening, but which we don't know about.
332
00:14:21.780 --> 00:14:23.550
But is it we don't know about it
333
00:14:23.550 --> 00:14:25.380
because you don't know about it standing there?
334
00:14:25.380 --> 00:14:26.970
Or is it just not in the record?
335
00:14:26.970 --> 00:14:28.110
I don't think it's in the record.
336
00:14:28.110 --> 00:14:28.943
Okay.
Yeah.
337
00:14:29.940 --> 00:14:33.180
Has any court gone further than the Ninth Circuit
338
00:14:33.180 --> 00:14:34.833
in saying it's preferable?
339
00:14:36.392 --> 00:14:38.880
No, not that I'm aware of.
340
00:14:38.880 --> 00:14:41.430
I mean, the First Circuit says preferable to.
341
00:14:41.430 --> 00:14:42.900
Again, in the, in the Sheehan case
342
00:14:42.900 --> 00:14:45.933
from just a few months ago, they've actually,
343
00:14:47.520 --> 00:14:50.367
they've, you know, reversed a conviction because of this.
344
00:14:50.367 --> 00:14:53.850
But Sheehan does not have a personal view and requirement.
345
00:14:53.850 --> 00:14:54.683
No, I agree.
346
00:14:57.130 --> 00:14:58.440
I'm not arguing this court should do anything
347
00:14:58.440 --> 00:14:59.790
other than make it a best practice.
348
00:14:59.790 --> 00:15:01.410
I mean, I'm not saying-
I thought that's
349
00:15:01.410 --> 00:15:03.330
what your brief said the other, opposite.
350
00:15:03.330 --> 00:15:04.230
Yeah.
You said that
351
00:15:04.230 --> 00:15:05.430
we should make it a requirement.
352
00:15:05.430 --> 00:15:06.330
Well, you should make it a,
353
00:15:06.330 --> 00:15:08.040
you should tell people that
354
00:15:08.040 --> 00:15:10.552
if the police and prosecutors-
355
00:15:10.552 --> 00:15:12.120
Don't run away from your brief.
356
00:15:12.120 --> 00:15:14.240
You said we should make it a requirement.
357
00:15:14.240 --> 00:15:15.120
You should make it a requirement.
358
00:15:15.120 --> 00:15:19.050
But I mean, if there's a lot of other,
359
00:15:19.050 --> 00:15:21.060
well, I can't think of a,
360
00:15:21.060 --> 00:15:22.500
I can't think of an exception,
361
00:15:22.500 --> 00:15:25.020
but if you don't want it to be an iron-clad rule,
362
00:15:25.020 --> 00:15:26.400
it should certainly be a best practice,
363
00:15:26.400 --> 00:15:29.310
and the Commonwealth should know that at their peril-
364
00:15:29.310 --> 00:15:31.010
Well, that's the issue is it's at their peril.
365
00:15:31.010 --> 00:15:33.030
So if they use statutory language,
366
00:15:33.030 --> 00:15:35.970
or if we think focal point is not enough,
367
00:15:35.970 --> 00:15:37.980
then it is at their peril if they don't attach it.
368
00:15:37.980 --> 00:15:39.630
That's absolutely right.
Yeah.
369
00:15:40.484 --> 00:15:42.210
All right, I didn't have time to get into the Franks,
370
00:15:42.210 --> 00:15:44.520
but I'll leave it-
Rest on your brief?
371
00:15:44.520 --> 00:15:45.353
Yeah.
Okay.
372
00:15:45.353 --> 00:15:46.540
Thank you.
Thank you.
373
00:15:50.730 --> 00:15:51.930
Okay, Attorney Marvel.
374
00:15:52.830 --> 00:15:54.540
Good morning, if it may please the court,
375
00:15:54.540 --> 00:15:57.450
Elizabeth Mello Marvel for the Commonwealth.
376
00:15:57.450 --> 00:16:00.630
Just to clarify the Commonwealth's position
377
00:16:00.630 --> 00:16:02.730
in regards to the corroborating factors
378
00:16:02.730 --> 00:16:05.670
and in looking at the Microsoft
379
00:16:05.670 --> 00:16:08.970
and National Center for Missing and Exploited Children,
380
00:16:08.970 --> 00:16:10.650
I think there's a little bit of confusion,
381
00:16:10.650 --> 00:16:13.920
and I would just direct the court to page seven
382
00:16:13.920 --> 00:16:15.630
of the trooper's affidavit,
383
00:16:15.630 --> 00:16:20.160
which is page 45 of the defendant's record appendix.
384
00:16:20.160 --> 00:16:22.320
That's where the discussion begins about how
385
00:16:22.320 --> 00:16:25.380
Microsoft reports that there are two uploaded images.
386
00:16:25.380 --> 00:16:29.280
They flag them that these may be of concern.
387
00:16:29.280 --> 00:16:30.660
And then the National Center
388
00:16:30.660 --> 00:16:32.130
for Missing and Exploited Children,
389
00:16:32.130 --> 00:16:34.650
they maintain a cyber tip line
390
00:16:34.650 --> 00:16:38.910
where providers, such as Microsoft, can forward those,
391
00:16:38.910 --> 00:16:40.140
and it's the National Center
392
00:16:40.140 --> 00:16:41.850
for Missing and Exploited Children
393
00:16:41.850 --> 00:16:44.400
that have the hashtag values,
394
00:16:44.400 --> 00:16:47.220
and those are described at the top of page eight
395
00:16:47.220 --> 00:16:50.880
where they're talking about whether or not
396
00:16:50.880 --> 00:16:52.950
it's a child previously identified,
397
00:16:52.950 --> 00:16:55.950
whether or not these are photos that they've seen before.
398
00:16:55.950 --> 00:16:58.200
So I just wanted to direct the court's attention,
399
00:16:58.200 --> 00:17:00.180
'cause I know that it gets a little bit confusing
400
00:17:00.180 --> 00:17:02.160
in the affidavit, but again,
401
00:17:02.160 --> 00:17:04.620
this goes to the trooper describing-
402
00:17:04.620 --> 00:17:06.930
So hold on this, so what does that mean then?
403
00:17:06.930 --> 00:17:11.220
So what do we take from what's in the record?
404
00:17:11.220 --> 00:17:14.100
Is this child, were these pictures of kids
405
00:17:14.100 --> 00:17:16.360
that had previously been exploited or not?
406
00:17:16.360 --> 00:17:18.450
Well, these particular photos
407
00:17:18.450 --> 00:17:22.590
were given the hashtag value, and I can find that.
408
00:17:22.590 --> 00:17:24.600
I did mention it in my brief.
409
00:17:24.600 --> 00:17:27.480
It doesn't necessarily mean that they are,
410
00:17:27.480 --> 00:17:29.760
if I remember correctly,
411
00:17:29.760 --> 00:17:31.950
I don't believe that they were necessarily,
412
00:17:31.950 --> 00:17:34.110
the children were identified or known,
413
00:17:34.110 --> 00:17:37.170
but that they were photos that had previously been known
414
00:17:37.170 --> 00:17:39.480
to the National Center for Missing and Exploited Children.
415
00:17:39.480 --> 00:17:41.580
But that does not mean that they're saying
416
00:17:41.580 --> 00:17:44.725
they're actually child pornography
417
00:17:44.725 --> 00:17:46.980
under the Commonwealth statute.
418
00:17:46.980 --> 00:17:49.470
They're just saying these are photos that have come across,
419
00:17:49.470 --> 00:17:50.880
they've been flagged.
420
00:17:50.880 --> 00:17:52.650
They may have been flagged in Utah.
421
00:17:52.650 --> 00:17:54.840
They may have, it could have been from anywhere.
422
00:17:54.840 --> 00:17:59.840
And do we know the algorithm that was used to flag them?
423
00:18:00.510 --> 00:18:01.343
I do not,
424
00:18:01.343 --> 00:18:02.670
I do not know enough about-
Okay, so,
425
00:18:02.670 --> 00:18:04.530
we only know that these photos have
426
00:18:04.530 --> 00:18:06.150
at some point been flagged.
427
00:18:06.150 --> 00:18:08.310
We don't know why, but they're now part
428
00:18:08.310 --> 00:18:10.140
of a database at the National Center.
429
00:18:10.140 --> 00:18:11.880
Correct, that's my understanding.
430
00:18:11.880 --> 00:18:14.220
And again, this is by way of the trooper describing
431
00:18:14.220 --> 00:18:15.960
how he became aware,
432
00:18:15.960 --> 00:18:18.330
the mechanism by which he became aware of this.
433
00:18:18.330 --> 00:18:20.610
So he can just say that based on the hashtag
434
00:18:20.610 --> 00:18:22.380
it's suspected child pornography.
435
00:18:22.380 --> 00:18:24.120
Exactly, they're not saying that it is,
436
00:18:24.120 --> 00:18:25.800
they're just saying this is suspected.
437
00:18:25.800 --> 00:18:27.870
Then he goes on to talk about
438
00:18:27.870 --> 00:18:30.120
all of his training and experience,
439
00:18:30.120 --> 00:18:33.270
talks about what he knows of the defendant,
440
00:18:33.270 --> 00:18:35.700
and, not that that means that his child pornography,
441
00:18:35.700 --> 00:18:38.700
but again, it's another factor that can be considered.
442
00:18:38.700 --> 00:18:41.850
And then talks about viewing the photos himself
443
00:18:41.850 --> 00:18:43.890
and giving a description.
444
00:18:43.890 --> 00:18:48.240
Do other courts take into consideration
445
00:18:48.240 --> 00:18:50.400
the experience of the officer
446
00:18:50.400 --> 00:18:52.563
identifying the photos as lewd?
447
00:18:53.400 --> 00:18:56.880
Well, he didn't identify them as lewd, just to clarify.
448
00:18:56.880 --> 00:18:59.640
He gave a verbal description of it.
449
00:18:59.640 --> 00:19:02.700
But you're asking us to rely on his 12 years' experience,
450
00:19:02.700 --> 00:19:04.650
which is substantially different than Brunette,
451
00:19:04.650 --> 00:19:05.483
who only had-
452
00:19:05.483 --> 00:19:07.020
Correct.
I think a year and a half.
453
00:19:07.020 --> 00:19:10.503
But I'm wondering, are other courts relying on,
454
00:19:11.896 --> 00:19:14.970
in any way, on an officer's experience
455
00:19:14.970 --> 00:19:19.970
to conclude there's probable cause for a lewd image?
456
00:19:21.930 --> 00:19:24.150
I think there's reliance on
457
00:19:24.150 --> 00:19:27.060
an officer's training and experience in an affidavit,
458
00:19:27.060 --> 00:19:28.560
in a variety of cases.
459
00:19:28.560 --> 00:19:31.080
Right, but in specifically where the First Amendment
460
00:19:31.080 --> 00:19:32.310
is an issue, yeah.
Right, well,
461
00:19:32.310 --> 00:19:34.890
if you look at Commonwealth v Gaustucci,
462
00:19:34.890 --> 00:19:39.890
G-A-U-S-T-U-C-C-I, 486 Mass 22, that's a 2020 case,
463
00:19:41.220 --> 00:19:46.220
that had to do with the staleness of a search warrant
464
00:19:46.230 --> 00:19:47.790
in regards to child pornography.
465
00:19:47.790 --> 00:19:49.830
So a little bit different issue.
466
00:19:49.830 --> 00:19:53.610
But in that particular case,
467
00:19:53.610 --> 00:19:56.640
they did talk about the corroborating factors,
468
00:19:56.640 --> 00:19:58.380
the defendant's interest,
469
00:19:58.380 --> 00:20:02.160
so there was description there about the officer.
470
00:20:02.160 --> 00:20:04.350
I can't remember if it's an officer or a trooper.
471
00:20:04.350 --> 00:20:08.700
The experience in describing people who have,
472
00:20:08.700 --> 00:20:11.640
quote unquote, collected these types of images in the past.
473
00:20:11.640 --> 00:20:12.840
So there's a whole discussion
474
00:20:12.840 --> 00:20:16.830
about the officer's knowledge in that particular area.
475
00:20:16.830 --> 00:20:18.910
So, it'd be my position that-
I'm sorry, sorry,
476
00:20:18.910 --> 00:20:20.130
sorry, sorry, sorry, just to be clear,
477
00:20:20.130 --> 00:20:23.490
the officer's knowledge as to
478
00:20:23.490 --> 00:20:28.080
a particular photo being lewd or-
479
00:20:28.080 --> 00:20:30.900
Again, I apologize.
Violation or,
480
00:20:30.900 --> 00:20:32.940
or was it just the officer's knowledge
481
00:20:32.940 --> 00:20:35.790
as to the type of person that.
482
00:20:35.790 --> 00:20:37.560
It was a hoarding issue in Gaustucci
483
00:20:37.560 --> 00:20:40.411
and whether or not he'd still have the images because he's-
484
00:20:40.411 --> 00:20:41.244
Correct.
In the chat room
485
00:20:41.244 --> 00:20:42.540
and he was hoarding the images.
486
00:20:42.540 --> 00:20:44.820
And the officer's experience saying that people
487
00:20:44.820 --> 00:20:48.030
that possess child pornography are likely to cache them
488
00:20:48.030 --> 00:20:49.980
and hold them for particular amounts of time.
489
00:20:49.980 --> 00:20:51.870
Correct, I apologize.
It was a different issue.
490
00:20:51.870 --> 00:20:53.700
Correct, I apologize if I misunderstood the question.
491
00:20:53.700 --> 00:20:56.010
I thought the question had to do with
492
00:20:56.010 --> 00:20:58.530
what kind of value are we giving,
493
00:20:58.530 --> 00:21:01.530
or what kind of consideration should a magistrate be giving
494
00:21:01.530 --> 00:21:04.860
to the officer's experience in this particular area?
495
00:21:04.860 --> 00:21:07.560
Yeah, in connection with identifying,
496
00:21:07.560 --> 00:21:09.420
determining whether there's probable cause
497
00:21:09.420 --> 00:21:11.160
that the image is lewd.
498
00:21:11.160 --> 00:21:12.540
Correct.
Yes.
499
00:21:12.540 --> 00:21:14.550
So these-
Gaustucci case
500
00:21:14.550 --> 00:21:16.548
doesn't sound like it is on point.
501
00:21:16.548 --> 00:21:19.200
Are you aware of any cases that
502
00:21:19.200 --> 00:21:21.480
defer to the officer's experience in connection
503
00:21:21.480 --> 00:21:24.393
with making this First Amendment determination?
504
00:21:25.560 --> 00:21:27.870
That would've been my best case for that particular.
505
00:21:27.870 --> 00:21:30.123
I think in other areas of law,
506
00:21:31.380 --> 00:21:34.890
it is pretty clear that that is what is done.
507
00:21:34.890 --> 00:21:37.800
And I think as far as the First Amendment issue,
508
00:21:37.800 --> 00:21:40.860
in other types of cases, when you're looking at,
509
00:21:40.860 --> 00:21:42.810
say for example, a threats case
510
00:21:42.810 --> 00:21:45.963
and an application for complaint, a criminal complaint,
511
00:21:46.860 --> 00:21:50.610
the officer is describing the threat and what happened.
512
00:21:50.610 --> 00:21:54.040
He isn't required to bring in visual documentation
513
00:21:55.342 --> 00:21:57.690
of the threat itself.
514
00:21:57.690 --> 00:22:02.690
So in those kind of cases, you're aware of a affidavit
515
00:22:03.450 --> 00:22:06.130
where the officer says he threatened
516
00:22:08.130 --> 00:22:09.480
without describing the threat?
517
00:22:09.480 --> 00:22:13.200
You know, like he got face-to-face with him and whatever?
518
00:22:13.200 --> 00:22:14.790
I'm saying the opposite, I guess.
519
00:22:14.790 --> 00:22:18.203
I'm not aware of a rule that where an officer's required-
520
00:22:18.203 --> 00:22:19.183
But it's
521
00:22:19.183 --> 00:22:20.016
completely different-
To attach that.
522
00:22:20.016 --> 00:22:23.850
Those other cases, the nature of the crime
523
00:22:23.850 --> 00:22:26.760
is not the image.
524
00:22:26.760 --> 00:22:31.760
It's analogous to a best evidence rule issue,
525
00:22:32.130 --> 00:22:33.780
in a lotta ways.
526
00:22:33.780 --> 00:22:36.060
And what you have here is the crime
527
00:22:36.060 --> 00:22:39.600
is the possession of the image, so-
528
00:22:39.600 --> 00:22:43.410
Correct.
The description
529
00:22:43.410 --> 00:22:48.410
really matters a lot more than the training and experience.
530
00:22:48.660 --> 00:22:50.850
And even if the training and experience somehow
531
00:22:50.850 --> 00:22:53.010
on what's lewd and what isn't lewd
532
00:22:53.010 --> 00:22:55.620
might count for something,
533
00:22:55.620 --> 00:22:59.610
the magistrate has no way to evaluate that
534
00:22:59.610 --> 00:23:03.060
if the magistrate doesn't have a description
535
00:23:03.060 --> 00:23:05.400
that's not just bare bones.
536
00:23:05.400 --> 00:23:07.710
Well, the question here is whether or not,
537
00:23:07.710 --> 00:23:09.540
for the purposes of probable cause,
538
00:23:09.540 --> 00:23:13.380
which is a very low standard, as we are all aware,
539
00:23:13.380 --> 00:23:18.090
whether or not an officer's affidavit is enough.
540
00:23:18.090 --> 00:23:19.680
And that's really what we're talking about.
541
00:23:19.680 --> 00:23:23.940
Is it enough for an officer to describe what he sees?
542
00:23:23.940 --> 00:23:25.050
And the system is
543
00:23:25.050 --> 00:23:26.463
set up where-
Counsel, can I,
544
00:23:26.463 --> 00:23:27.390
could I just follow up on,
545
00:23:27.390 --> 00:23:29.400
both your point and Justice Lowy's point?
546
00:23:29.400 --> 00:23:32.910
So, we are talking about the adequacy
547
00:23:32.910 --> 00:23:37.020
of the description in the affidavit's averments.
548
00:23:37.020 --> 00:23:39.360
Is there any meaningful difference
549
00:23:39.360 --> 00:23:43.770
between what was done here and what was done in Brunette?
550
00:23:43.770 --> 00:23:47.380
And I say that because Brunette's problem was
551
00:23:48.240 --> 00:23:51.780
the affiant just used conclusory,
552
00:23:51.780 --> 00:23:55.230
just parroted conclusory language from the statute.
553
00:23:55.230 --> 00:23:58.320
And doesn't the affiant here just do the same thing
554
00:23:58.320 --> 00:23:59.823
under the Dost Factors?
555
00:24:01.140 --> 00:24:05.257
He just takes the first Dost Factor and says,
556
00:24:05.257 --> 00:24:07.020
"This is the focal point."
557
00:24:07.020 --> 00:24:10.390
There's really no meat to that description.
558
00:24:10.390 --> 00:24:13.260
There's no definition to that.
559
00:24:13.260 --> 00:24:16.080
There's no description of, here's the photograph,
560
00:24:16.080 --> 00:24:19.050
there's an enlargement of the picture.
561
00:24:19.050 --> 00:24:22.500
It zooms in on this particular part of the picture.
562
00:24:22.500 --> 00:24:24.180
It just does the same thing
563
00:24:24.180 --> 00:24:26.190
that the affiant did in Brunette.
564
00:24:26.190 --> 00:24:27.090
What's the difference?
565
00:24:27.090 --> 00:24:29.730
The difference is in Brunette you had,
566
00:24:29.730 --> 00:24:31.293
I believe it was an agent,
567
00:24:32.490 --> 00:24:35.310
the law enforcement personnel there was not experienced.
568
00:24:35.310 --> 00:24:36.143
That was clear.
569
00:24:36.143 --> 00:24:37.530
And simply parroted the language.
570
00:24:37.530 --> 00:24:39.900
The trooper here did not parrot the language.
571
00:24:39.900 --> 00:24:43.830
He did not say, "This photo is lewd."
572
00:24:43.830 --> 00:24:47.467
He said-
The first Dost Factor says,
573
00:24:47.467 --> 00:24:51.157
"Whether the focal point of the visual depiction
574
00:24:51.157 --> 00:24:54.660
"is on the child's genitals or pubic area."
575
00:24:54.660 --> 00:24:57.127
And Trooper Donovan says, quote.
576
00:24:57.127 --> 00:24:59.797
"That the photo depicts a pubescent male
577
00:24:59.797 --> 00:25:03.097
"standing completely naked with the focus of the image
578
00:25:03.097 --> 00:25:04.860
"on the young boy's penis."
579
00:25:04.860 --> 00:25:07.230
Now we can argue all day long
580
00:25:07.230 --> 00:25:10.920
about whether or not it's verbatim ,
581
00:25:10.920 --> 00:25:14.160
what it says in the first Dost Factor, it's not.
582
00:25:14.160 --> 00:25:15.780
But as a practical matter,
583
00:25:15.780 --> 00:25:17.490
that's all he does is repeat
584
00:25:17.490 --> 00:25:18.960
what's in the first Dost Factor.
585
00:25:18.960 --> 00:25:20.280
So again, I go back to,
586
00:25:20.280 --> 00:25:21.660
what's the functional difference
587
00:25:21.660 --> 00:25:24.660
between what's done here and what was done in Brunette?
588
00:25:24.660 --> 00:25:26.700
Because he's describing what he saw,
589
00:25:26.700 --> 00:25:29.580
and the officer in Brunette did not do that.
590
00:25:29.580 --> 00:25:32.970
He got to the conclusion and didn't describe,
591
00:25:32.970 --> 00:25:35.250
didn't look at it and describe it.
592
00:25:35.250 --> 00:25:38.250
The fact that his description happens to fit
593
00:25:38.250 --> 00:25:40.650
and follow one of the Dost Factors,
594
00:25:40.650 --> 00:25:43.560
that's simply something to be taken into account.
595
00:25:43.560 --> 00:25:46.740
But he looked at the photo, he described it,
596
00:25:46.740 --> 00:25:49.560
he gave the other information that he had.
597
00:25:49.560 --> 00:25:53.820
If the magistrate felt that, hey, I need more detail,
598
00:25:53.820 --> 00:25:55.860
go back and add more description,
599
00:25:55.860 --> 00:25:57.060
or I don't think it's enough,
600
00:25:57.060 --> 00:25:59.520
I'm denying this.
But how do you do that
601
00:25:59.520 --> 00:26:00.960
without looking at the picture?
602
00:26:00.960 --> 00:26:05.960
I mean, how do you know that it's focused that way?
603
00:26:06.330 --> 00:26:08.100
It's just so subjective.
604
00:26:08.100 --> 00:26:12.540
I mean, you cite the Sullivan case,
605
00:26:12.540 --> 00:26:14.130
which I'm familiar with.
606
00:26:14.130 --> 00:26:15.960
I remember sitting there, you know,
607
00:26:15.960 --> 00:26:17.910
we had 25 different appellate judges
608
00:26:17.910 --> 00:26:18.960
looking at this picture,
609
00:26:18.960 --> 00:26:22.203
trying to figure out where the focus was.
610
00:26:24.330 --> 00:26:27.330
It's how do we do that when we don't have,
611
00:26:27.330 --> 00:26:28.980
this is a close cropped image?
612
00:26:28.980 --> 00:26:31.800
We don't have, you know, this is,
613
00:26:31.800 --> 00:26:33.990
I don't know the terminology where,
614
00:26:33.990 --> 00:26:35.910
you know, where they're close to the crotch
615
00:26:35.910 --> 00:26:37.410
or close to the breasts.
616
00:26:37.410 --> 00:26:40.680
We don't have any kind of precise detail here.
617
00:26:40.680 --> 00:26:44.520
We just have a picture that there's a naked child
618
00:26:44.520 --> 00:26:49.520
with the focus, according to the cop, on the sexual organs.
619
00:26:49.710 --> 00:26:52.500
But no description of why he comes to that conclusion.
620
00:26:52.500 --> 00:26:56.438
The question is, can a magistrate reasonably rely
621
00:26:56.438 --> 00:27:00.597
on an affidavit from, you know,
622
00:27:00.597 --> 00:27:02.220
and the trooper has spelled out,
623
00:27:02.220 --> 00:27:04.331
I've got x number of years experience-
624
00:27:04.331 --> 00:27:05.280
Just 'cause he's-
625
00:27:05.280 --> 00:27:08.100
And I'm describing-
20-year cop,
626
00:27:08.100 --> 00:27:11.220
I mean that's, that seems to be a (indistinct) factor.
627
00:27:11.220 --> 00:27:12.540
I mean I,
628
00:27:12.540 --> 00:27:13.830
I just don't,
629
00:27:13.830 --> 00:27:16.350
I mean, every one of the police officer affidavits
630
00:27:16.350 --> 00:27:18.180
describes their experience.
631
00:27:18.180 --> 00:27:19.590
If an officer's been doing this
632
00:27:19.590 --> 00:27:21.900
for one year versus eight years,
633
00:27:21.900 --> 00:27:22.980
in terms of looking at pictures,
634
00:27:22.980 --> 00:27:24.510
that makes a big difference?
635
00:27:24.510 --> 00:27:28.440
Again, you can't parse out one individual.
636
00:27:28.440 --> 00:27:31.410
You're looking at all of the pieces that together
637
00:27:31.410 --> 00:27:32.640
make the probable cause,
638
00:27:32.640 --> 00:27:34.680
no different than if you look, I mean, again,
639
00:27:34.680 --> 00:27:36.210
it's a completely different situation,
640
00:27:36.210 --> 00:27:37.890
but similar to looking at, you know,
641
00:27:37.890 --> 00:27:40.830
you look at a drug case like Fontaine,
642
00:27:40.830 --> 00:27:42.300
where you're talking about additional facts
643
00:27:42.300 --> 00:27:43.230
known by the officer.
644
00:27:43.230 --> 00:27:45.090
In that case-
Yeah, I think you're right.
645
00:27:45.090 --> 00:27:46.710
You know, you do look at the totality,
646
00:27:46.710 --> 00:27:51.150
but each individual piece seems to be lacking in something.
647
00:27:51.150 --> 00:27:53.610
You know, first we don't know in the record
648
00:27:53.610 --> 00:27:55.893
how these hashtags get assigned.
649
00:27:57.293 --> 00:28:00.030
And so we have no idea what the algorithm is.
650
00:28:00.030 --> 00:28:03.060
You know, second, as Justice Kafker was saying, you know,
651
00:28:03.060 --> 00:28:07.140
12 years versus a year and a half identifying lewd images
652
00:28:07.140 --> 00:28:08.910
and being exposed to them,
653
00:28:08.910 --> 00:28:12.210
I'm not sure that qualifies this officer
654
00:28:12.210 --> 00:28:14.223
anymore than a magistrate.
655
00:28:15.326 --> 00:28:17.760
And then we have a description
656
00:28:17.760 --> 00:28:21.990
that is consistent with art in some ways,
657
00:28:21.990 --> 00:28:25.380
and so protected by the First Amendment.
658
00:28:25.380 --> 00:28:28.950
So in the absence of a fuller description,
659
00:28:28.950 --> 00:28:32.130
or you know, the attached image,
660
00:28:32.130 --> 00:28:34.800
I'm not sure how the magistrate makes the assessment
661
00:28:34.800 --> 00:28:36.450
without violating the First Amendment.
662
00:28:36.450 --> 00:28:38.070
Can you address that?
663
00:28:38.070 --> 00:28:39.510
Yes, I-
I mean I agree with you.
664
00:28:39.510 --> 00:28:41.010
It's the totality of everything,
665
00:28:41.010 --> 00:28:44.853
but each piece seems to be substantially lacking.
666
00:28:46.260 --> 00:28:47.773
I would respectfully disagree with that.
667
00:28:47.773 --> 00:28:50.250
I mean, we're talking about hashtag values
668
00:28:50.250 --> 00:28:54.273
being assigned by the National Center, which is the,
669
00:28:55.380 --> 00:28:57.360
that is the center that's the focus.
670
00:28:57.360 --> 00:29:01.212
This is what they do is exploitation of children.
671
00:29:01.212 --> 00:29:02.490
We don't know how they do that,
672
00:29:02.490 --> 00:29:04.110
or at least the record doesn't tell us.
673
00:29:04.110 --> 00:29:07.110
Okay, so the fact...
674
00:29:07.110 --> 00:29:11.500
And then you have the officer who's primary job
675
00:29:12.360 --> 00:29:14.790
and training and experience is all focused
676
00:29:14.790 --> 00:29:18.570
on cyber crime and children, that that is what they know.
677
00:29:18.570 --> 00:29:21.570
I would argue that is something to be considered,
678
00:29:21.570 --> 00:29:25.110
as opposed to an officer that has no experience
679
00:29:25.110 --> 00:29:26.610
and no training or a magistrate
680
00:29:26.610 --> 00:29:28.740
that has no experience and no training,
681
00:29:28.740 --> 00:29:31.320
simply looking at the four corners of a photo,
682
00:29:31.320 --> 00:29:33.210
Would we be moving a goal line?
683
00:29:33.210 --> 00:29:36.570
We told police officers don't use statutory language.
684
00:29:36.570 --> 00:29:37.403
They don't use statutory.
685
00:29:37.403 --> 00:29:39.120
We said use the Dost Factors.
686
00:29:39.120 --> 00:29:40.836
This officer used the Dost Factors,
687
00:29:40.836 --> 00:29:43.567
and then we say, "Well, don't just use the Dost Factors.
688
00:29:43.567 --> 00:29:45.510
"Those are conclusory."
689
00:29:45.510 --> 00:29:48.120
And here we're not dealing with beyond a reasonable doubt.
690
00:29:48.120 --> 00:29:50.280
We're dealing with probable cause.
691
00:29:50.280 --> 00:29:52.020
Correct, and that would be the question,
692
00:29:52.020 --> 00:29:54.450
is then what should, if the officer looks at the image
693
00:29:54.450 --> 00:29:58.530
and says this is the age, this is a male,
694
00:29:58.530 --> 00:30:00.360
they're standing here, they're nude.
695
00:30:00.360 --> 00:30:01.410
The focus is...
696
00:30:01.410 --> 00:30:04.050
I guess the direction would be
697
00:30:04.050 --> 00:30:06.570
how much specific do they have to be?
698
00:30:06.570 --> 00:30:08.606
How much language do they have to put in
699
00:30:08.606 --> 00:30:12.720
in order to satisfy the PC standard?
700
00:30:12.720 --> 00:30:14.730
Again, we're not talking about-
701
00:30:14.730 --> 00:30:17.460
That argument seems to really
702
00:30:17.460 --> 00:30:20.100
support the defendant's argument here
703
00:30:20.100 --> 00:30:23.130
that the best practices would be to just attach the photo
704
00:30:23.130 --> 00:30:26.220
and not try to use the thousand words to describe the photo.
705
00:30:26.220 --> 00:30:28.320
I'm not suggesting that that is the standard.
706
00:30:28.320 --> 00:30:29.160
Right.
But that might be
707
00:30:29.160 --> 00:30:30.720
the best practice.
708
00:30:30.720 --> 00:30:32.220
Again, the Commonwealth's position
709
00:30:32.220 --> 00:30:33.840
would be that it would not be the best practice.
710
00:30:33.840 --> 00:30:36.840
What that would result in is every single affidavit
711
00:30:36.840 --> 00:30:39.450
in one of these cases across the entire Commonwealth
712
00:30:39.450 --> 00:30:41.730
would have all of these images attached.
713
00:30:41.730 --> 00:30:44.364
Every time an officer was applying for a search warrant,
714
00:30:44.364 --> 00:30:46.443
they then would need to be impounded.
715
00:30:47.400 --> 00:30:49.200
Again, and it's not necessarily
716
00:30:49.200 --> 00:30:50.291
something-
So the standard practice
717
00:30:50.291 --> 00:30:52.595
is not to look at the photos?
718
00:30:52.595 --> 00:30:54.626
This is not, is that right?
719
00:30:54.626 --> 00:30:55.459
The standard practice
720
00:30:55.459 --> 00:30:58.327
is not to attach photos in these cases.
721
00:30:58.327 --> 00:31:00.090
I don't know that I can speak
722
00:31:00.090 --> 00:31:01.950
for every single detective-
'Cause it just seems odd.
723
00:31:01.950 --> 00:31:05.448
I don't believe that they would want to distribute
724
00:31:05.448 --> 00:31:07.140
and put it out there.
725
00:31:07.140 --> 00:31:08.475
We're not the public.
726
00:31:08.475 --> 00:31:09.780
I understand.
It's a judicial officer.
727
00:31:09.780 --> 00:31:11.133
Right? It's a judge.
728
00:31:13.080 --> 00:31:14.250
They're not gonna,
729
00:31:14.250 --> 00:31:16.440
we're not putting this on the internet.
730
00:31:16.440 --> 00:31:17.910
Can I ask one last question?
731
00:31:17.910 --> 00:31:21.480
You said that the fact that he'd been previously convicted-
732
00:31:21.480 --> 00:31:22.860
Mm-hm.
733
00:31:22.860 --> 00:31:25.623
What's the best case about how you weigh that factor?
734
00:31:26.490 --> 00:31:28.473
I'm just trying to understand that.
735
00:31:29.640 --> 00:31:31.110
Defendant's past, if you, again,
736
00:31:31.110 --> 00:31:33.330
if you look at the Fontaine case, it's a drug case,
737
00:31:33.330 --> 00:31:36.540
but it does talk about the defendant's history.
738
00:31:36.540 --> 00:31:39.173
That's the 84 Mass app court
739
00:31:39.173 --> 00:31:40.006
for 2014.
Are there good cases
740
00:31:40.006 --> 00:31:42.450
for us to look at where the fact that
741
00:31:42.450 --> 00:31:45.570
someone's been previously convicted of child pornography?
742
00:31:45.570 --> 00:31:47.430
I had mentioned Gaustucci,
743
00:31:47.430 --> 00:31:49.050
again, for a little bit different reason.
744
00:31:49.050 --> 00:31:51.810
But again, considering someone's history,
745
00:31:51.810 --> 00:31:53.880
in a sense.
Well someone's convicted
746
00:31:53.880 --> 00:31:56.190
of distribution of drugs,
747
00:31:56.190 --> 00:31:57.840
and then when there's a drug affidavit,
748
00:31:57.840 --> 00:31:58.920
we can consider the fact
749
00:31:58.920 --> 00:32:00.330
that they had prior conviction of drugs.
750
00:32:00.330 --> 00:32:01.323
Right?
Correct.