-: SJC-13454, Commonwealth v. Warren W. Dunn.
-: And Attorney DeMayo, whenever you're ready.
-: Thank you, may it please the court,
Christopher DeMayo for Warren Dunn.
And with me today is Sabrina Bonanno,
who was counsel for Mr. Dunn in the Superior Court.
Time permitting, I'd like to talk about three things today.
The first is whether the search warrant application here
established probable cause
that there would be child pornography
in Mr. Dunn's house on his devices.
I'm gonna briefly suggest that this court adopt a rule
like they have in the First Circuit
that magistrates look at allegedly lewd images.
Justice Gaziano: That's not the rule.
-: Well, it's a best practice rule.
Justice Gaziano: Okay, that's not the rule.
-: Okay.
And third, if I have time,
I'll talk about the Franks issue.
So, before getting into whether there's probable cause,
I think it's best to a clear up one point.
And I think this was assumed
by Judge Buckley and the trooper,
which is that unless the two photos are themselves lewd,
there would not be probable cause to go
and search somebody's house for child pornography.
And I think that there'd be First Amendment issues
if protected materials that were not lewd
could be used as a predicate to go and search someone.
I only mentioned that because parts of the red brief
seemed to suggest, well,
there were nude minors and Mr. Dunn was a sexual offender,
so that's good enough for probable cause.
I don't think that's the case.
And I have a cite, actually,
from this court's 2014 Rollins case,
which says, this is page 80 of Rollins, it says,
"We fail to see how the possession of legal photographs
"is probative of the defendant's
"knowing or intentional possession of illegal photographs."
So, seems our position is the question for the magistrate,
and then for Judge Buckley,
were these two photographs lewd
such that there would be probable cause?
-: To what extent does the Microsoft flagging of the images,
plus the NCMEC hashtag values
associated with pornographic images
impact probable cause?
-: I read this court's Rex case
to say that whether an image is lewd or not lewd
depends on the four corners of the image itself.
And I have it.
It's in a footnote, I could read,
but I think it's footnote 13 of the Rex case.
So, to me, I mean that's why I think
this best practice rule makes a lot of sense,
'cause you actually see what the image is.
But barring that-
-: It's a best practice if the description
is inadequate, but-
-: Yes, sure. -: Okay, so let's-
-: But to get to Microsoft,
you know, I guess my answer is it's lewd or it's not lewd.
And it's not really a vote
until it gets up to an appellate court.
So, it was for the magistrate to say,
and the magistrate had to-
-: But isn't that a fact the magistrate
can take into consideration along with the description?
-: If the magistrate knew something
about this Microsoft process, perhaps.
But I have no idea what...
I assume Microsoft has some algorithms
or artificial intelligence that screens millions of images
and reports a certain subset of them.
-: The hash value is a flagged
known pornographic images, correct?
-: Microsoft assigned them some, yeah, B2.
-: The National Center has cataloged these images
and assigned hash values
to known pornographic images, correct?
-: Well, my understanding is the National Center,
I thought, was just a clearing house
and forwarded it from the service provider
to the whatever the local authority is.
So I'm not prepared to agree with that as I stand here.
Although, I'm not disagreeing with it either.
But I guess to know if the question is broadly
other people or other companies
thought these were suspicious photos as well,
I don't really think that can play into the probable cause-
-: That doesn't add anything to the probable cause
determination? -: Unless we know
why they thought- -: Answer the question.
Does that add anything to the probable cause determination?
-: Does what add anything?
-: The fact that there are known images of child pornography
as reflected in the hash values.
-: I don't understand what it means
to say they're known images.
Known to the National Center-
-: They're flagged as known images of child pornography,
and I'm trying to ask you whether or not
it's appropriate for an issuing magistrate
to take that into consideration along with the description.
-: I think that should be based
on the four corners of the image itself.
But if you couldn't look at the image,
I agree that, in theory,
if you had some other reliable source,
and I don't actually know anything about
how this came to be given that label B2,
that could perhaps be something you take into account.
But I read the Rex case to say,
you look at the image itself and it's lewd or it isn't lewd,
and the same goes for Mr. Dunn.
-: Or you pay attention to the description.
The Rex case doesn't say you look at the image.
The question is whether the description is adequate
to establish probable cause.
-: Right, well, the Rex case wasn't really
this kind of issue about the sufficiency of the warrant.
It was actually looking at the images themselves.
But yes, yeah, correct. -: That's the issue
before the Court is whether the description was adequate
to establish probable cause. -: Correct, correct.
-: Is the magistrate better equipped to figure out
whether an image is lewd than the National Center?
-: Well, I mean, I don't know.
I don't see how...
The First Amendment requires that there's
a judicial officer who's making the initial call.
So I don't see how that can be delegated
to any third parties or-
-: Well, it's not delegated, but,
I guess I'm thinking about the magistrate.
I understand you're saying it's best practice
to look at the photograph,
but you'll agree it's not required.
-: It's not- -: Like it to be required,
but it's not. -: Yeah, sure.
As the law stands, it's not required, I agree.
-: So you want us to change the law?
-: Well, I mean,
if what's required is that the description is sufficient,
I guess, at this point,
and it doesn't get any better than having the image,
so that's why we think the-
-: Is that why we say a picture is worth a thousand words?
-: Correct, that's correct.
So that's why we think the Brunette Rule makes sense.
-: But if the description satisfies the Dost Factors,
it's fine.
-: That's, yes, that's what courts have held.
And I mean even in the first-
-: The Dost Factors, why wouldn't that also,
in addition to the description,
in addition to Microsoft,
in addition to the focal point issue,
why couldn't the Dost Factors also take into account
if we look at our previous case law,
that he's already been convicted of child pornography?
-: Because I believe in the Rex case it says specifically,
I mean it...
I guess I keep getting back to it's an objective,
or it's not objective,
but it doesn't become,
it's either lewd or it's not lewd, and it doesn't-
-: But what you're saying, and I think this is the point,
I just gotta ask questions.
I mean, what you're saying is yeah,
if you attach it to the affidavit,
the magistrate can take a look at it.
But if you're not required to attach to the affidavit,
and every time somebody looks at this,
the child is re-victimized,
so if you don't attach it to the affidavit,
whatever the best practice might be in the First Circuit
and other places, Why wouldn't all these other factors
be considered in trying to calibrate
whether it reaches the level of probable cause?
-: Well, if you're not gonna actually attach it,
it seems to me you need to have a very,
the magistrate is the one who has to make the call.
He needs to have sufficient facts to be
the neutral judge who's and not the police.
So, in the record, you see both sides
go on describing these photos for a page or two each,
and they have somewhat different descriptions.
But that's a detailed description.
And I guess, if you're not going to require
the actual photo, you need...
Saying the photo of,
the focus of the photos is the genitals,
I agree it's a little bit better than Brunette,
where they just said it's lewd,
'cause that's a legal word,
but it's not a whole lot better, because it's-
-: When you say it's best practice in Brunette,
Brunette, as I read it says,
"Because you use statutory language, it was deficient."
And then the case goes on to say,
"Because the affiant used the statutory language,
"the magistrate should have viewed the images."
-: That's not the law in the First Circuit.
We also cite the Sheehan case where they did not use this
from just a few months ago.
And they used a description, albeit a short one,
and the court applied Brunette and Sheehan,
and ruled that there was no probable cause.
-: There was no focal point in the image in Sheehan, though.
-: That's true, they didn't use the word focal.
The problem with focal point-
-: Where they used the word, there was no...
You talked about the four corners.
There was no focal point in the Sheehan case.
-: I think the Sheehan case said like
it consists of photos of prepubescent genitals
or something like that.
And the U.S. attorney argued,
well, if it consists of them, then that, that's what it is.
And they tried to argue that was the,
that means it is the focal point.
I guess- -: Isn't that
your best argument is the focal point is subjective
unless you look at the picture, right?
I mean you're trying to expand that we have to look
at every single picture,
and we can't take into account other factors.
But your best argument is the focal point,
whether it's on the sexual organs,
can't really be discerned unless
you look at the picture, right?
-: In my opinion, it's just subjective
in that different things can be,
you know, reasonable people could disagree
about the focal point.
So to get back to the- -: There's nothing else
also in the affidavit that suggests that this is lewd
besides the focus on the-
-: No, it says it's nude males aged 13 to 15.
And we know, it's well settled, that nude is not,
nudity alone is not lewd.
So the whole thing stands or falls, it seems to me,
on the focus issue,
unless you give some value to the,
what Microsoft or somebody or other said.
-: Even if you do give some value,
which our cases do do that,
you still have to decide whether it's a focal point, right?
-: I think you do, and I think,
I mean, you have to decide, I should say,
that it's lewd, and one of the Dost Factors is focal point.
And that since that was the only one
that was proffered here by the trooper,
you know, the magistrate really just took him at his word,
it seems to me. -: And we don't
really have much in the way of detail of
why the officer thought it was focused
on the sexual organs, right?
We just don't have much to work from in the affidavit.
It doesn't say this is a closeup,
or whatever, right? -: It doesn't say,
yeah, there's many, I mean,
it could be a closeup, it could be,
you know, just the way the picture,
you see cases where legs are spread.
There's many different ways it could be the focus,
and because we just don't know.
It's a very..
It's not legally conclusory like in Brunette
where they said it's lascivious,
but it's conclusory in kind of a factual way
where the magistrate is really not in a position here
to make the independent call that he's supposed to make.
-: Conclusory with regard to the first Dost Factor, right?
Which is what is the focal point?
-: Correct.
-: But the other factors
are something that the magistrate couldn't have weighed.
-: Well, he could have, I mean,
one of the Dost Factors is are they naked?
And no one's disputing that, I think.
But yeah, it doesn't say anything about the poses
or whether they're sexually suggestive.
I'll just represent to the court, they're outside.
It's pictures of
two boys standing out in the out of doors.
It doesn't strike me as designed
to elicit a sexual response.
Really, you can't, that's again,
you can't really decide these things without,
it all turns on the details, without looking at them.
So I appreciate that it shouldn't lightly
go spreading these pictures about,
but on the other hand, I mean Mr...
People have a...
There's two First Amendment rights at stake here.
It's not just the...
Or two constitutional rights,
not just the First Amendment.
It's the Fourth, because they're
going into somebody's house.
So if you go into somebody's house
on the alleged probable cause created by something
that's not in fact lewd you have a Fourth Amendment issue
and a First Amendment issue, so-
-: Can I pin you down on one more factual issue?
-: Yeah. -: The Microsoft targeting.
I may have misread this,
was it suggesting that these children have been identified
as having previously been in child porn pictures?
Is that what the label there?
-: That is not- -: Is that what
that B2 label means or no?
-: I thought the B2 label just meant
that somehow through some process, Microsoft,
they say what A1 means and A2 and B2.
-: And what does B2 mean, exactly?
-: B2 means it kind of parrots the,
it's lewd and lascivious display of the-
-: But it's not that these children
had been previously identified-
-: That's not what I understood it as,
although, I know Justice Gaziano
was talking about the hashtag,
and that's why I said I'm not prepared to,
it seems to me this is just a routine thing
where service providers report certain,
through their screening, but which we don't know about.
-: But is it we don't know about it
because you don't know about it standing there?
Or is it just not in the record?
-: I don't think it's in the record.
-: Okay. -: Yeah.
-: Has any court gone further than the Ninth Circuit
in saying it's preferable?
-: No, not that I'm aware of.
I mean, the First Circuit says preferable to.
Again, in the, in the Sheehan case
from just a few months ago, they've actually,
they've, you know, reversed a conviction because of this.
-: But Sheehan does not have a personal view and requirement.
-: No, I agree.
I'm not arguing this court should do anything
other than make it a best practice.
I mean, I'm not saying- -: I thought that's
what your brief said the other, opposite.
-: Yeah. -: You said that
we should make it a requirement.
-: Well, you should make it a,
you should tell people that
if the police and prosecutors-
-: Don't run away from your brief.
You said we should make it a requirement.
-: You should make it a requirement.
But I mean, if there's a lot of other,
well, I can't think of a,
I can't think of an exception,
but if you don't want it to be an iron-clad rule,
it should certainly be a best practice,
and the Commonwealth should know that at their peril-
-: Well, that's the issue is it's at their peril.
So if they use statutory language,
or if we think focal point is not enough,
then it is at their peril if they don't attach it.
That's absolutely right. -: Yeah.
All right, I didn't have time to get into the Franks,
but I'll leave it- -: Rest on your brief?
-: Yeah. -: Okay.
-: Thank you. -: Thank you.
-: Okay, Attorney Marvel.
-: Good morning, if it may please the court,
Elizabeth Mello Marvel for the Commonwealth.
Just to clarify the Commonwealth's position
in regards to the corroborating factors
and in looking at the Microsoft
and National Center for Missing and Exploited Children,
I think there's a little bit of confusion,
and I would just direct the court to page seven
of the trooper's affidavit,
which is page 45 of the defendant's record appendix.
That's where the discussion begins about how
Microsoft reports that there are two uploaded images.
They flag them that these may be of concern.
And then the National Center
for Missing and Exploited Children,
they maintain a cyber tip line
where providers, such as Microsoft, can forward those,
and it's the National Center
for Missing and Exploited Children
that have the hashtag values,
and those are described at the top of page eight
where they're talking about whether or not
it's a child previously identified,
whether or not these are photos that they've seen before.
So I just wanted to direct the court's attention,
'cause I know that it gets a little bit confusing
in the affidavit, but again,
this goes to the trooper describing-
-: So hold on this, so what does that mean then?
So what do we take from what's in the record?
Is this child, were these pictures of kids
that had previously been exploited or not?
-: Well, these particular photos
were given the hashtag value, and I can find that.
I did mention it in my brief.
It doesn't necessarily mean that they are,
if I remember correctly,
I don't believe that they were necessarily,
the children were identified or known,
but that they were photos that had previously been known
to the National Center for Missing and Exploited Children.
But that does not mean that they're saying
they're actually child pornography
under the Commonwealth statute.
They're just saying these are photos that have come across,
they've been flagged.
They may have been flagged in Utah.
They may have, it could have been from anywhere.
-: And do we know the algorithm that was used to flag them?
-: I do not,
I do not know enough about- -: Okay, so,
we only know that these photos have
at some point been flagged.
We don't know why, but they're now part
of a database at the National Center.
-: Correct, that's my understanding.
And again, this is by way of the trooper describing
how he became aware,
the mechanism by which he became aware of this.
-: So he can just say that based on the hashtag
it's suspected child pornography.
-: Exactly, they're not saying that it is,
they're just saying this is suspected.
Then he goes on to talk about
all of his training and experience,
talks about what he knows of the defendant,
and, not that that means that his child pornography,
but again, it's another factor that can be considered.
And then talks about viewing the photos himself
and giving a description.
-: Do other courts take into consideration
the experience of the officer
identifying the photos as lewd?
-: Well, he didn't identify them as lewd, just to clarify.
He gave a verbal description of it.
-: But you're asking us to rely on his 12 years' experience,
which is substantially different than Brunette,
who only had-
-: Correct. -: I think a year and a half.
But I'm wondering, are other courts relying on,
in any way, on an officer's experience
to conclude there's probable cause for a lewd image?
-: I think there's reliance on
an officer's training and experience in an affidavit,
in a variety of cases.
-: Right, but in specifically where the First Amendment
is an issue, yeah. -: Right, well,
if you look at Commonwealth v Gaustucci,
G-A-U-S-T-U-C-C-I, 486 Mass 22, that's a 2020 case,
that had to do with the staleness of a search warrant
in regards to child pornography.
So a little bit different issue.
But in that particular case,
they did talk about the corroborating factors,
the defendant's interest,
so there was description there about the officer.
I can't remember if it's an officer or a trooper.
The experience in describing people who have,
quote unquote, collected these types of images in the past.
So there's a whole discussion
about the officer's knowledge in that particular area.
So, it'd be my position that- -: I'm sorry, sorry,
sorry, sorry, sorry, just to be clear,
the officer's knowledge as to
a particular photo being lewd or-
-: Again, I apologize. -: Violation or,
or was it just the officer's knowledge
as to the type of person that.
-: It was a hoarding issue in Gaustucci
and whether or not he'd still have the images because he's-
-: Correct. -: In the chat room
and he was hoarding the images.
And the officer's experience saying that people
that possess child pornography are likely to cache them
and hold them for particular amounts of time.
-: Correct, I apologize. -: It was a different issue.
-: Correct, I apologize if I misunderstood the question.
I thought the question had to do with
what kind of value are we giving,
or what kind of consideration should a magistrate be giving
to the officer's experience in this particular area?
-: Yeah, in connection with identifying,
determining whether there's probable cause
that the image is lewd.
-: Correct. -: Yes.
-: So these- -: Gaustucci case
doesn't sound like it is on point.
Are you aware of any cases that
defer to the officer's experience in connection
with making this First Amendment determination?
-: That would've been my best case for that particular.
I think in other areas of law,
it is pretty clear that that is what is done.
And I think as far as the First Amendment issue,
in other types of cases, when you're looking at,
say for example, a threats case
and an application for complaint, a criminal complaint,
the officer is describing the threat and what happened.
He isn't required to bring in visual documentation
of the threat itself.
-: So in those kind of cases, you're aware of a affidavit
where the officer says he threatened
without describing the threat?
You know, like he got face-to-face with him and whatever?
-: I'm saying the opposite, I guess.
I'm not aware of a rule that where an officer's required-
-: But it's
completely different- -: To attach that.
-: Those other cases, the nature of the crime
is not the image.
It's analogous to a best evidence rule issue,
in a lotta ways.
And what you have here is the crime
is the possession of the image, so-
-: Correct. -: The description
really matters a lot more than the training and experience.
And even if the training and experience somehow
on what's lewd and what isn't lewd
might count for something,
the magistrate has no way to evaluate that
if the magistrate doesn't have a description
that's not just bare bones.
-: Well, the question here is whether or not,
for the purposes of probable cause,
which is a very low standard, as we are all aware,
whether or not an officer's affidavit is enough.
And that's really what we're talking about.
Is it enough for an officer to describe what he sees?
And the system is
set up where- -: Counsel, can I,
could I just follow up on,
both your point and Justice Lowy's point?
So, we are talking about the adequacy
of the description in the affidavit's averments.
Is there any meaningful difference
between what was done here and what was done in Brunette?
And I say that because Brunette's problem was
the affiant just used conclusory,
just parroted conclusory language from the statute.
And doesn't the affiant here just do the same thing
under the Dost Factors?
He just takes the first Dost Factor and says,
"This is the focal point."
There's really no meat to that description.
There's no definition to that.
There's no description of, here's the photograph,
there's an enlargement of the picture.
It zooms in on this particular part of the picture.
It just does the same thing
that the affiant did in Brunette.
What's the difference?
-: The difference is in Brunette you had,
I believe it was an agent,
the law enforcement personnel there was not experienced.
That was clear.
And simply parroted the language.
The trooper here did not parrot the language.
He did not say, "This photo is lewd."
He said- -: The first Dost Factor says,
"Whether the focal point of the visual depiction
"is on the child's genitals or pubic area."
And Trooper Donovan says, quote.
"That the photo depicts a pubescent male
"standing completely naked with the focus of the image
"on the young boy's penis."
Now we can argue all day long
about whether or not it's verbatim ,
what it says in the first Dost Factor, it's not.
But as a practical matter,
that's all he does is repeat
what's in the first Dost Factor.
So again, I go back to,
what's the functional difference
between what's done here and what was done in Brunette?
-: Because he's describing what he saw,
and the officer in Brunette did not do that.
He got to the conclusion and didn't describe,
didn't look at it and describe it.
The fact that his description happens to fit
and follow one of the Dost Factors,
that's simply something to be taken into account.
But he looked at the photo, he described it,
he gave the other information that he had.
If the magistrate felt that, hey, I need more detail,
go back and add more description,
or I don't think it's enough,
I'm denying this. -: But how do you do that
without looking at the picture?
I mean, how do you know that it's focused that way?
It's just so subjective.
I mean, you cite the Sullivan case,
which I'm familiar with.
I remember sitting there, you know,
we had 25 different appellate judges
looking at this picture,
trying to figure out where the focus was.
It's how do we do that when we don't have,
this is a close cropped image?
We don't have, you know, this is,
I don't know the terminology where,
you know, where they're close to the crotch
or close to the breasts.
We don't have any kind of precise detail here.
We just have a picture that there's a naked child
with the focus, according to the cop, on the sexual organs.
But no description of why he comes to that conclusion.
-: The question is, can a magistrate reasonably rely
on an affidavit from, you know,
and the trooper has spelled out,
I've got x number of years experience-
-: Just 'cause he's-
-: And I'm describing- -: 20-year cop,
I mean that's, that seems to be a (indistinct) factor.
I mean I,
I just don't,
I mean, every one of the police officer affidavits
describes their experience.
If an officer's been doing this
for one year versus eight years,
in terms of looking at pictures,
that makes a big difference?
-: Again, you can't parse out one individual.
You're looking at all of the pieces that together
make the probable cause,
no different than if you look, I mean, again,
it's a completely different situation,
but similar to looking at, you know,
you look at a drug case like Fontaine,
where you're talking about additional facts
known by the officer.
In that case- -: Yeah, I think you're right.
You know, you do look at the totality,
but each individual piece seems to be lacking in something.
You know, first we don't know in the record
how these hashtags get assigned.
And so we have no idea what the algorithm is.
You know, second, as Justice Kafker was saying, you know,
12 years versus a year and a half identifying lewd images
and being exposed to them,
I'm not sure that qualifies this officer
anymore than a magistrate.
And then we have a description
that is consistent with art in some ways,
and so protected by the First Amendment.
So in the absence of a fuller description,
or you know, the attached image,
I'm not sure how the magistrate makes the assessment
without violating the First Amendment.
Can you address that?
-: Yes, I- -: I mean I agree with you.
It's the totality of everything,
but each piece seems to be substantially lacking.
-: I would respectfully disagree with that.
I mean, we're talking about hashtag values
being assigned by the National Center, which is the,
that is the center that's the focus.
This is what they do is exploitation of children.
-: We don't know how they do that,
or at least the record doesn't tell us.
-: Okay, so the fact...
And then you have the officer who's primary job
and training and experience is all focused
on cyber crime and children, that that is what they know.
I would argue that is something to be considered,
as opposed to an officer that has no experience
and no training or a magistrate
that has no experience and no training,
simply looking at the four corners of a photo,
-: Would we be moving a goal line?
We told police officers don't use statutory language.
They don't use statutory.
We said use the Dost Factors.
This officer used the Dost Factors,
and then we say, "Well, don't just use the Dost Factors.
"Those are conclusory."
And here we're not dealing with beyond a reasonable doubt.
We're dealing with probable cause.
-: Correct, and that would be the question,
is then what should, if the officer looks at the image
and says this is the age, this is a male,
they're standing here, they're nude.
The focus is...
I guess the direction would be
how much specific do they have to be?
How much language do they have to put in
in order to satisfy the PC standard?
Again, we're not talking about-
-: That argument seems to really
support the defendant's argument here
that the best practices would be to just attach the photo
and not try to use the thousand words to describe the photo.
I'm not suggesting that that is the standard.
-: Right. -: But that might be
the best practice.
-: Again, the Commonwealth's position
would be that it would not be the best practice.
What that would result in is every single affidavit
in one of these cases across the entire Commonwealth
would have all of these images attached.
Every time an officer was applying for a search warrant,
they then would need to be impounded.
Again, and it's not necessarily
something- -: So the standard practice
is not to look at the photos?
This is not, is that right?
The standard practice
is not to attach photos in these cases.
-: I don't know that I can speak
for every single detective- -: 'Cause it just seems odd.
-: I don't believe that they would want to distribute
and put it out there.
-: We're not the public.
-: I understand. -: It's a judicial officer.
Right? It's a judge.
They're not gonna,
we're not putting this on the internet.
Can I ask one last question?
You said that the fact that he'd been previously convicted-
Attorney Marvel: Mm-hm.
-: What's the best case about how you weigh that factor?
I'm just trying to understand that.
-: Defendant's past, if you, again,
if you look at the Fontaine case, it's a drug case,
but it does talk about the defendant's history.
That's the 84 Mass app court
for 2014. -: Are there good cases
for us to look at where the fact that
someone's been previously convicted of child pornography?
-: I had mentioned Gaustucci,
again, for a little bit different reason.
But again, considering someone's history,
in a sense. -: Well someone's convicted
of distribution of drugs,
and then when there's a drug affidavit,
we can consider the fact
that they had prior conviction of drugs.
Right? -: Correct.