WEBVTT

1
00:00:00.060 --> 00:00:00.893
<v ->Good morning, your honors.</v>

2
00:00:00.893 --> 00:00:03.430
May please the court, Paul Lin, for the commonwealth.

3
00:00:04.350 --> 00:00:08.100
Simply put a straightforward reading of the statute

4
00:00:08.100 --> 00:00:11.411
and case law cannot support the suggestion

5
00:00:11.411 --> 00:00:15.660
that a recording made with a device known to record audio

6
00:00:15.660 --> 00:00:18.510
and held in plain view is secret.

7
00:00:18.510 --> 00:00:19.343
Those are the words

8
00:00:19.343 --> 00:00:20.176
of the First Circuit-
<v ->Isn't that inconsistent</v>

9
00:00:20.176 --> 00:00:22.113
with the testimony in this case

10
00:00:22.113 --> 00:00:25.381
that in fact, the defendant had no idea

11
00:00:25.381 --> 00:00:30.030
that he was being recorded, that it was secret,

12
00:00:30.030 --> 00:00:33.213
because otherwise, it would be ineffective police work?

13
00:00:34.680 --> 00:00:37.881
<v ->The police absolutely admitted</v>

14
00:00:37.881 --> 00:00:42.720
that this was a recording that they wanted to be secret.

15
00:00:42.720 --> 00:00:46.650
And I do not doubt the defendant's assertion

16
00:00:46.650 --> 00:00:48.190
that he was unaware of it.

17
00:00:48.190 --> 00:00:51.240
<v ->Okay.</v>
<v ->But it is past time</v>

18
00:00:51.240 --> 00:00:54.810
to retire the phrase actual knowledge

19
00:00:54.810 --> 00:00:59.100
and connection with the wiretap statute.

20
00:00:59.100 --> 00:01:03.330
Recent case law, Glick, Ashley, Morris,

21
00:01:03.330 --> 00:01:05.908
and especially, Rivera, make it clear

22
00:01:05.908 --> 00:01:10.441
that the standard is whether their objective circumstances

23
00:01:10.441 --> 00:01:13.380
that put the defendant on notice.

24
00:01:13.380 --> 00:01:15.150
They might-
<v ->Well, that's overstating</v>

25
00:01:15.150 --> 00:01:15.983
it a little bit,

26
00:01:15.983 --> 00:01:17.907
because first, Glick is a federal case.

27
00:01:17.907 --> 00:01:22.907
And in that case, while the arrest of the other individual

28
00:01:24.390 --> 00:01:29.390
was going on, Mr. Glick is standing there

29
00:01:30.060 --> 00:01:34.050
with this camera out facing the police.

30
00:01:34.050 --> 00:01:35.880
And at one point,

31
00:01:35.880 --> 00:01:38.880
they say something to him like, "Stop taking pictures."

32
00:01:38.880 --> 00:01:40.470
And he says, "I'm recording."
<v ->Right.</v>

33
00:01:40.470 --> 00:01:42.450
<v ->So, that's different than where,</v>

34
00:01:42.450 --> 00:01:45.570
again, I haven't seen the videos just yet,

35
00:01:45.570 --> 00:01:48.990
but taking the testimony at the hearing

36
00:01:48.990 --> 00:01:51.570
where to his credit, the officer said of,

37
00:01:51.570 --> 00:01:54.240
yeah, would be really a bad police work

38
00:01:54.240 --> 00:01:56.010
if he knew we were recording him.

39
00:01:56.010 --> 00:01:57.936
That your proposition

40
00:01:57.936 --> 00:02:00.450
that we should now take the view that

41
00:02:00.450 --> 00:02:02.250
just because all of these phones

42
00:02:02.250 --> 00:02:03.820
have recording capabilities,

43
00:02:03.820 --> 00:02:06.300
it means that the wiretap statute

44
00:02:06.300 --> 00:02:08.620
really doesn't mean anything anymore.

45
00:02:08.620 --> 00:02:13.620
<v ->That is a sad fact more than the commonwealth's position.</v>

46
00:02:14.940 --> 00:02:17.280
It is true that virtually everything we should do

47
00:02:17.280 --> 00:02:19.650
and say these days is recorded.

48
00:02:19.650 --> 00:02:21.750
<v ->But with the ubiquity of cell phones,</v>

49
00:02:21.750 --> 00:02:23.970
if I'm at Starbucks with one of my friends

50
00:02:23.970 --> 00:02:27.000
and the person has a cell phone on the table,

51
00:02:27.000 --> 00:02:29.000
I don't think that they're recording me.

52
00:02:30.810 --> 00:02:32.363
I just don't get your point.
<v ->Right.</v>

53
00:02:32.363 --> 00:02:35.700
<v ->I think that everyone has a cell phone out.</v>

54
00:02:35.700 --> 00:02:38.460
It's hard to see someone not with the cell phone out

55
00:02:38.460 --> 00:02:40.650
and you don't think that people will press and record

56
00:02:40.650 --> 00:02:42.030
<v ->Right.</v>
<v ->on the sly.</v>

57
00:02:42.030 --> 00:02:42.863
<v ->Particularly with all</v>

58
00:02:42.863 --> 00:02:45.450
of the other capabilities that phones have.

59
00:02:45.450 --> 00:02:46.462
<v ->True.</v>

60
00:02:46.462 --> 00:02:49.260
Which the Glick court held was irrelevant,

61
00:02:49.260 --> 00:02:51.300
where the phone was in plain view.

62
00:02:51.300 --> 00:02:54.810
I don't think it is a bad distinction

63
00:02:54.810 --> 00:02:59.220
that the Mass Association of Criminal Defense Lawyers makes.

64
00:02:59.220 --> 00:03:01.677
And if I may use my phone, it's off as a prop here.

65
00:03:01.677 --> 00:03:03.407
(Justice Gaziano chuckles)
Yeah. Between-

66
00:03:03.407 --> 00:03:04.314
<v ->[Justice Wendlandt] How do we know that?</v>

67
00:03:04.314 --> 00:03:06.474
(Paul laughing)

68
00:03:06.474 --> 00:03:10.800
<v ->Because it is a reasonable difference to say</v>

69
00:03:10.800 --> 00:03:14.790
there's a difference between this and this and this.

70
00:03:14.790 --> 00:03:16.200
<v Justice Gaziano>Right.</v>

71
00:03:16.200 --> 00:03:17.790
<v ->Which you could use in this case</v>

72
00:03:17.790 --> 00:03:20.070
to distinguish this case from the other cases.

73
00:03:20.070 --> 00:03:21.870
But nonetheless, the commonwealth

74
00:03:21.870 --> 00:03:24.000
does not have to prove actual knowledge.

75
00:03:24.000 --> 00:03:28.320
It just has to prove that there is objective notice

76
00:03:28.320 --> 00:03:32.820
that the recorded party's behavior

77
00:03:32.820 --> 00:03:34.980
is being memorialized in some way.

78
00:03:34.980 --> 00:03:37.470
And Glick, the officer made it clear

79
00:03:37.470 --> 00:03:40.500
that he did not realize he was being audio recorded,

80
00:03:40.500 --> 00:03:42.810
'cause he says, "No more pictures."

81
00:03:42.810 --> 00:03:46.827
And when the defendant responds, "I'm audio taping you,"

82
00:03:48.780 --> 00:03:50.412
that's when he's arrested.

83
00:03:50.412 --> 00:03:52.110
So, it's clear that the officer

84
00:03:52.110 --> 00:03:54.360
did not have actual knowledge

85
00:03:54.360 --> 00:03:55.757
that he was being audio recorded.

86
00:03:55.757 --> 00:03:58.533
But as you pointed out, your honor, Justice Georges,

87
00:04:03.275 --> 00:04:07.380
there was clearly an objective knowledge

88
00:04:07.380 --> 00:04:10.173
that he was being memorialized in some way.

89
00:04:11.940 --> 00:04:13.230
<v ->But I'm still confused.</v>

90
00:04:13.230 --> 00:04:15.810
Even if we modify the rule as you would like,

91
00:04:15.810 --> 00:04:16.687
<v ->Paul Mm-hmm.</v>

92
00:04:18.045 --> 00:04:19.260
<v ->where does that get you here?</v>

93
00:04:19.260 --> 00:04:21.340
Because he's clearly not

94
00:04:23.310 --> 00:04:25.288
putting the phone out like this.

95
00:04:25.288 --> 00:04:26.280
He's-
<v ->No, clearly not.</v>

96
00:04:26.280 --> 00:04:29.459
<v ->So, where does that get you?</v>

97
00:04:29.459 --> 00:04:33.150
<v ->It gets you a phone in plain view.</v>

98
00:04:33.150 --> 00:04:34.140
<v ->Any phone in...</v>

99
00:04:34.140 --> 00:04:35.880
Just back to Justice Gaziano's view,

100
00:04:35.880 --> 00:04:40.880
anytime somebody's put their phone out anywhere,

101
00:04:41.100 --> 00:04:41.940
that's your rule.

102
00:04:41.940 --> 00:04:43.770
That's the new rule you want us to adopt

103
00:04:43.770 --> 00:04:46.977
that then you know you're being recorded.

104
00:04:46.977 --> 00:04:48.690
You don't really want us to write that,

105
00:04:48.690 --> 00:04:49.523
do you?
<v ->Mm.</v>

106
00:04:50.490 --> 00:04:53.340
No. (chuckles) I think that was too broad.

107
00:04:53.340 --> 00:04:55.980
But here, he's got the phone out. He's not hiding it.

108
00:04:55.980 --> 00:04:57.360
<v ->Modify it for us.</v>

109
00:04:57.360 --> 00:05:01.027
The rule you want is what?
<v ->Mm-hmm.</v>

110
00:05:01.027 --> 00:05:05.193
That when a person has a phone out in plain view,

111
00:05:06.872 --> 00:05:09.393
and I will say the video,

112
00:05:10.590 --> 00:05:12.453
the videos in this case,

113
00:05:13.530 --> 00:05:17.970
show that he's holding it in his hand.

114
00:05:17.970 --> 00:05:19.500
You never see his hand,

115
00:05:19.500 --> 00:05:21.571
but it's clear from the way the video,

116
00:05:21.571 --> 00:05:24.750
the footage moves that he's holding it.

117
00:05:24.750 --> 00:05:26.280
Sometimes he changes

118
00:05:26.280 --> 00:05:27.750
the direction of it.
<v ->But, counsel,</v>

119
00:05:27.750 --> 00:05:30.660
we have no factual findings of this kind below,

120
00:05:30.660 --> 00:05:33.630
because the commonwealth did not argue secrecy below,

121
00:05:33.630 --> 00:05:34.800
correct?
<v ->Correct.</v>

122
00:05:34.800 --> 00:05:36.270
But-
<v ->So can you please</v>

123
00:05:36.270 --> 00:05:37.410
make an argument as to why

124
00:05:37.410 --> 00:05:39.390
we should even reach this issue on this record?

125
00:05:39.390 --> 00:05:40.620
<v ->As I say, a matter would probably be,</v>

126
00:05:40.620 --> 00:05:42.171
I have three reasons.

127
00:05:42.171 --> 00:05:45.480
The first reason is because we need guidance on this issue

128
00:05:45.480 --> 00:05:47.505
in light of Glick and Rivera.

129
00:05:47.505 --> 00:05:51.840
The second reason is because we don't dispute

130
00:05:51.840 --> 00:05:54.120
any of the findings that the judge made.

131
00:05:54.120 --> 00:05:56.160
As you pointed out that the officer

132
00:05:56.160 --> 00:05:58.680
candidly admitted that the police

133
00:05:58.680 --> 00:06:01.620
intended for the recording to remain secret.

134
00:06:01.620 --> 00:06:05.220
He said the phone wouldn't necessarily be hidden.

135
00:06:05.220 --> 00:06:06.480
We all agree with that.

136
00:06:06.480 --> 00:06:09.917
And as for the video recordings,

137
00:06:09.917 --> 00:06:11.970
those are reviewed de novo.

138
00:06:11.970 --> 00:06:14.700
So, the fact that the judge was not able to make findings

139
00:06:14.700 --> 00:06:17.730
regarding the video is completely irrelevant,

140
00:06:17.730 --> 00:06:19.350
because this court can-
<v ->The point I think</v>

141
00:06:19.350 --> 00:06:22.140
is not the ability to make the finding.

142
00:06:22.140 --> 00:06:25.849
It's the failure of the commonwealth to make the argument.

143
00:06:25.849 --> 00:06:28.709
<v ->Oh, we certainly did not make that argument.</v>

144
00:06:28.709 --> 00:06:30.840
<v ->Okay.</v>
<v ->By the time I got that case,</v>

145
00:06:30.840 --> 00:06:33.960
that opportunity has passed.
(Justice Kafker laughing)

146
00:06:33.960 --> 00:06:38.430
<v ->And if we reach the argument here as you want us to,</v>

147
00:06:38.430 --> 00:06:43.430
it would be to reverse the judgment of the trial court.

148
00:06:43.920 --> 00:06:46.830
<v ->Correct.</v>
<v ->And in what legal</v>

149
00:06:46.830 --> 00:06:49.370
proposition do you have for that?

150
00:06:49.370 --> 00:06:53.220
That we should look de novo at evidence

151
00:06:53.220 --> 00:06:56.040
to address an argument that was never marshaled

152
00:06:56.040 --> 00:06:58.323
in order to reverse the trial court?

153
00:07:00.708 --> 00:07:03.330
<v ->I don't have a case off the top of my head for that.</v>

154
00:07:03.330 --> 00:07:04.530
<v ->[Justice Wendlandt] Usually we don't do that,</v>

155
00:07:04.530 --> 00:07:05.363
in fact.
<v ->Yes.</v>

156
00:07:05.363 --> 00:07:07.593
But as again, where there's no,

157
00:07:08.610 --> 00:07:10.860
you would not be rejecting the judge's findings-

158
00:07:10.860 --> 00:07:12.540
<v ->Isn't an alpha in those whole line</v>

159
00:07:12.540 --> 00:07:14.760
of cases say we can't do that.

160
00:07:14.760 --> 00:07:17.730
That we can't decide a case in your...

161
00:07:17.730 --> 00:07:20.665
We can't do just what Justice Wendlandt said.

162
00:07:20.665 --> 00:07:22.020
There's a whole line of cases

163
00:07:22.020 --> 00:07:23.763
say that that's not permissible.

164
00:07:25.260 --> 00:07:27.780
Not only are there no cases saying it is permissible,

165
00:07:27.780 --> 00:07:30.413
but we got a whole line of cases say it's not permissible.

166
00:07:31.300 --> 00:07:33.510
<v ->I can't think of a case</v>

167
00:07:33.510 --> 00:07:34.380
that says-
<v ->So, let's just assume</v>

168
00:07:34.380 --> 00:07:36.303
we're gonna follow the law.
<v ->Yeah.</v>

169
00:07:37.920 --> 00:07:40.380
<v ->Can you address why the video</v>

170
00:07:40.380 --> 00:07:44.340
is not suppressible as contents of an audio recording?

171
00:07:44.340 --> 00:07:45.349
<v ->Yes.</v>

172
00:07:45.349 --> 00:07:50.349
Because there's absent the audio recording,

173
00:07:50.886 --> 00:07:54.343
there is no evidence whatsoever

174
00:07:54.343 --> 00:07:57.330
of any communication that was intercepted.

175
00:07:57.330 --> 00:07:58.163
<v Justice Gaziano>Does it show</v>

176
00:07:58.163 --> 00:07:59.010
the identity of the parties?

177
00:07:59.010 --> 00:08:00.870
<v ->It certainly shows the identity of the parties,</v>

178
00:08:00.870 --> 00:08:02.118
but it would've shown the identity

179
00:08:02.118 --> 00:08:05.970
of the parties even if-
<v ->By it, I mean the video</v>

180
00:08:05.970 --> 00:08:06.803
shows the identity

181
00:08:06.803 --> 00:08:07.710
of the parties, right?
<v ->Yes, definitely.</v>

182
00:08:07.710 --> 00:08:08.550
Definitely shows the...
<v ->Okay.</v>

183
00:08:08.550 --> 00:08:11.129
<v ->Well, it shows the identity of the defendant.</v>

184
00:08:11.129 --> 00:08:12.120
<v ->Right.</v>

185
00:08:12.120 --> 00:08:13.770
So, if we do the math

186
00:08:13.770 --> 00:08:15.750
and we go to suppression of evidence,

187
00:08:15.750 --> 00:08:17.443
because we're not talking about constitutional suppression,

188
00:08:17.443 --> 00:08:18.276
we're talking about

189
00:08:18.276 --> 00:08:19.109
statutory suppression.
<v ->We're definitely</v>

190
00:08:19.109 --> 00:08:20.670
talking about the wiretap statute.

191
00:08:20.670 --> 00:08:23.760
It wasn't-
<v ->So, under 99 Section P,</v>

192
00:08:23.760 --> 00:08:26.670
it says any person, i.e,

193
00:08:26.670 --> 00:08:30.180
the defendant may move to suppress the contents, right?

194
00:08:30.180 --> 00:08:34.216
And then, it defines contents in 99 B5

195
00:08:34.216 --> 00:08:37.440
as contents were used in respect to this

196
00:08:37.440 --> 00:08:38.700
means any information

197
00:08:38.700 --> 00:08:41.430
concerning the identity of the parties.

198
00:08:41.430 --> 00:08:46.430
<v ->But without any evidence of an intercepted communication,</v>

199
00:08:49.470 --> 00:08:50.303
there's no evidence

200
00:08:50.303 --> 00:08:52.740
to the parties of an intercepted communication.

201
00:08:52.740 --> 00:08:55.621
The defendant here was arrested after the third by...

202
00:08:55.621 --> 00:08:59.330
This isn't a case as-
<v ->But the video shows</v>

203
00:08:59.330 --> 00:09:02.999
that at least the defendant is speaking.

204
00:09:02.999 --> 00:09:06.051
<v ->It shows that he's moving his lips,</v>

205
00:09:06.051 --> 00:09:07.500
so we can infer he is speaking.

206
00:09:07.500 --> 00:09:11.070
But again, a silent video would do exactly the same thing.

207
00:09:11.070 --> 00:09:13.170
If the commonwealth would go out tomorrow-

208
00:09:13.170 --> 00:09:16.500
<v ->But this is an integrated audio and visual recording.</v>

209
00:09:16.500 --> 00:09:17.333
<v ->Paul Absolutely true.</v>

210
00:09:17.333 --> 00:09:18.420
There's no question about that.

211
00:09:18.420 --> 00:09:20.197
<v ->Yeah, I don't know about-</v>
<v ->But it doesn't...</v>

212
00:09:20.197 --> 00:09:24.210
The video is not the fruit of the audio here.

213
00:09:24.210 --> 00:09:25.800
I realize we're talking about-

214
00:09:25.800 --> 00:09:26.633
<v Justice Gaziano>Right. I don't know if the-</v>

215
00:09:26.633 --> 00:09:27.960
<v ->Constitutional law.</v>

216
00:09:27.960 --> 00:09:31.140
But where the jury is going to have no knowledge whatsoever

217
00:09:31.140 --> 00:09:33.659
that anything was ever recorded,

218
00:09:33.659 --> 00:09:38.659
it seems perverted to say that we're exploiting-

219
00:09:40.260 --> 00:09:44.340
<v ->But the statute says any, which is means any.</v>

220
00:09:44.340 --> 00:09:45.269
And it means
<v ->Mm-hmm.</v>

221
00:09:45.269 --> 00:09:50.269
<v ->we've identified the parties by visual means.</v>

222
00:09:50.280 --> 00:09:52.650
And we've also shown this as an existence

223
00:09:52.650 --> 00:09:55.143
of a communication, 'cause he's lips are moving.

224
00:09:57.030 --> 00:09:59.250
<v ->True, but the entire...</v>

225
00:09:59.250 --> 00:10:01.830
I mean, yes, granted there's that language in the statute

226
00:10:01.830 --> 00:10:02.910
and I'm not going to deny it,

227
00:10:02.910 --> 00:10:06.090
but to apply it in this situation again,

228
00:10:06.090 --> 00:10:08.220
would be what this-
<v ->I have no problem</v>

229
00:10:08.220 --> 00:10:10.860
if this was a constitutional usual suppression

230
00:10:10.860 --> 00:10:12.870
that I think you'd have much stronger grounds.

231
00:10:12.870 --> 00:10:13.703
But here, I'm just trying

232
00:10:13.703 --> 00:10:15.150
to interpret the statute.
<v ->Right.</v>

233
00:10:15.150 --> 00:10:19.777
And my position is that, the commonwealth's position is that

234
00:10:20.669 --> 00:10:24.420
we have no evidence of an intercepted recording.

235
00:10:24.420 --> 00:10:26.010
That the knowledge,

236
00:10:26.010 --> 00:10:29.190
the information regarding the identity of parties

237
00:10:29.190 --> 00:10:31.030
to this now non-existent

238
00:10:31.920 --> 00:10:36.870
unknown interception of communications

239
00:10:36.870 --> 00:10:39.120
does not require suppression of the video,

240
00:10:39.120 --> 00:10:43.663
'cause of course, if you had two people separately doing it,

241
00:10:43.663 --> 00:10:46.263
you wouldn't suppress the video.

242
00:10:47.370 --> 00:10:50.121
If they had only done video and never done recording,

243
00:10:50.121 --> 00:10:51.059
of course you wouldn't do,

244
00:10:51.059 --> 00:10:52.680
suppressing the video.
<v ->What case are you relying on</v>

245
00:10:52.680 --> 00:10:56.283
for the proposition that video is not suppressed?

246
00:10:57.540 --> 00:11:01.200
<v ->Oh, well, the first thing I'm relying on</v>

247
00:11:01.200 --> 00:11:05.220
is the statute itself, which has of course, videotape.

248
00:11:05.220 --> 00:11:10.220
Well, the statute itself, it says of course communications.

249
00:11:12.540 --> 00:11:15.420
And then, hold on a second, I'm gonna have to check this,

250
00:11:15.420 --> 00:11:18.750
but I know I cite in my brief a case,

251
00:11:18.750 --> 00:11:23.750
several cases that say video recordings are fine.

252
00:11:24.780 --> 00:11:27.420
They do not violate the wiretap statute.

253
00:11:27.420 --> 00:11:28.380
So, the only question here

254
00:11:28.380 --> 00:11:29.520
is does the worst-
<v ->That's in your brief,</v>

255
00:11:29.520 --> 00:11:32.550
you have a series of cases that in Massachusetts

256
00:11:32.550 --> 00:11:34.850
have held video doesn't violate

257
00:11:34.850 --> 00:11:36.054
<v ->the wiretap-</v>
<v ->Yes.</v>

258
00:11:36.054 --> 00:11:36.887
<v ->Okay.</v>

259
00:11:36.887 --> 00:11:40.578
<v ->Silent video does not violate the wiretap statute.</v>

260
00:11:40.578 --> 00:11:45.578
So, even if it did show the defendant's lips moving,

261
00:11:45.810 --> 00:11:47.130
that's not an interception.

262
00:11:47.130 --> 00:11:48.510
It would be an interesting case

263
00:11:48.510 --> 00:11:51.030
if we brought in a lip reader, then I think you'd come back

264
00:11:51.030 --> 00:11:55.350
into the realm of interception

265
00:11:55.350 --> 00:11:57.150
of communication.
<v ->The cases you rely on,</v>

266
00:11:57.150 --> 00:11:59.190
you're relying right on hide

267
00:11:59.190 --> 00:12:01.320
and sort of dictum in those cases.

268
00:12:01.320 --> 00:12:05.430
You don't have any case that squarely holds that, right?

269
00:12:05.430 --> 00:12:08.910
That video is not covered or is there-

270
00:12:08.910 --> 00:12:10.110
<v ->No, there is, there is.</v>

271
00:12:10.110 --> 00:12:11.760
I can find it in just-

272
00:12:11.760 --> 00:12:12.593
<v ->If that were the case,</v>

273
00:12:12.593 --> 00:12:13.993
every traffic camera case you had,

274
00:12:13.993 --> 00:12:15.480
you couldn't introduce it.

275
00:12:15.480 --> 00:12:16.590
Every 7-11 video

276
00:12:16.590 --> 00:12:17.490
you couldn't introduce.
<v ->Right, of course.</v>

277
00:12:17.490 --> 00:12:18.330
Absolutely.
(Justice Gaziano chuckles)

278
00:12:18.330 --> 00:12:19.920
We've seen these silent,

279
00:12:19.920 --> 00:12:22.330
the cases in which there's a whole

280
00:12:23.412 --> 00:12:24.960
<v ->Right.</v>
<v ->collection</v>

281
00:12:24.960 --> 00:12:26.490
of surveillance cameras.

282
00:12:26.490 --> 00:12:28.380
But no, there is case law that explicitly said,

283
00:12:28.380 --> 00:12:31.530
and I cited in my brief, that explicitly says silent video.

284
00:12:31.530 --> 00:12:35.438
So, the only question is whether this language,

285
00:12:35.438 --> 00:12:38.940
the identity of the parties to the communication,

286
00:12:38.940 --> 00:12:42.360
requires suppression in this case,

287
00:12:42.360 --> 00:12:45.420
regardless of whether the commonwealth benefits in any way.

288
00:12:45.420 --> 00:12:47.190
<v ->And it also says any information,</v>

289
00:12:47.190 --> 00:12:48.673
it doesn't say any communication.

290
00:12:48.673 --> 00:12:50.430
Its says any information.
<v ->No, it says any information</v>

291
00:12:50.430 --> 00:12:52.230
regarding the identity

292
00:12:52.230 --> 00:12:53.063
of the parties
<v ->Identity of the parties.</v>

293
00:12:53.063 --> 00:12:54.600
<v ->to the communication.</v>
<v ->Yeah. Right.</v>

294
00:12:54.600 --> 00:12:56.454
<v ->That connects back to communication, but does...</v>

295
00:12:56.454 --> 00:12:57.540
It connects back

296
00:12:57.540 --> 00:12:58.551
to the communication,
<v ->Yes. Thank you.</v>

297
00:12:58.551 --> 00:13:01.950
<v ->but it's when it's integrated,</v>

298
00:13:01.950 --> 00:13:05.063
when it's the same thing that it's...

299
00:13:05.063 --> 00:13:07.680
I mean, the camera's on,

300
00:13:07.680 --> 00:13:10.110
we're all familiar with this one, we can talk to...

301
00:13:10.110 --> 00:13:11.010
Your camera's on,

302
00:13:11.010 --> 00:13:15.570
the red light's on, it's recording audio and video.

303
00:13:15.570 --> 00:13:18.741
Can we really separate out this?

304
00:13:18.741 --> 00:13:20.730
<v ->[Justice Wendlandt] Isn't there a mute button?</v>

305
00:13:20.730 --> 00:13:22.164
<v ->Oh, of course. I don't know-</v>

306
00:13:22.164 --> 00:13:25.800
<v ->So, though, it's taken at the same time simultaneously,</v>

307
00:13:25.800 --> 00:13:29.460
it's not non-separable?

308
00:13:29.460 --> 00:13:31.863
<v ->No, it's entirely separable.</v>

309
00:13:33.210 --> 00:13:34.043
You can do it.

310
00:13:34.043 --> 00:13:36.150
The officers testified that he didn't know

311
00:13:36.150 --> 00:13:38.850
whether he could have muted it at the time.

312
00:13:38.850 --> 00:13:40.410
So, there wouldn't have been any question

313
00:13:40.410 --> 00:13:42.264
of a wiretap violation.

314
00:13:42.264 --> 00:13:47.264
But we can certainly mute the tape now. That's easy.

315
00:13:47.730 --> 00:13:50.620
<v ->But when he does it simultaneously</v>

316
00:13:51.540 --> 00:13:54.360
and we know there's an oral communication

317
00:13:54.360 --> 00:13:59.360
going on between the defendant and the police officer,

318
00:14:00.030 --> 00:14:00.930
and we also know

319
00:14:00.930 --> 00:14:05.930
there's a visual memorialization of that,

320
00:14:06.090 --> 00:14:08.150
can we really separate this out?

321
00:14:08.150 --> 00:14:10.015
It just seems like it cov...

322
00:14:10.015 --> 00:14:13.020
It fits right within the definition of contents then.

323
00:14:13.020 --> 00:14:14.560
<v ->Well, no, contents</v>

324
00:14:15.570 --> 00:14:18.840
are the actual contents of the communication.

325
00:14:18.840 --> 00:14:21.390
Transcripts are the classic

326
00:14:21.390 --> 00:14:22.290
example.
<v ->But that's not how</v>

327
00:14:22.290 --> 00:14:24.060
it's defined.
<v ->That says identity.</v>

328
00:14:24.060 --> 00:14:25.290
<v ->But by case laws we've defined</v>

329
00:14:25.290 --> 00:14:26.752
as anything that's derivative.

330
00:14:26.752 --> 00:14:28.050
Right?
<v ->Yeah.</v>

331
00:14:28.050 --> 00:14:28.883
<v ->So,</v>

332
00:14:31.743 --> 00:14:32.730
you couldn't have someone listen to the illegal tape

333
00:14:34.440 --> 00:14:37.080
and then say, oh, I think this is what they said.

334
00:14:37.080 --> 00:14:37.913
<v ->Yeah.</v>
<v ->And you can't</v>

335
00:14:37.913 --> 00:14:38.790
have a transcript of it.

336
00:14:38.790 --> 00:14:40.751
It's all derivative of it.
<v ->Right.</v>

337
00:14:40.751 --> 00:14:44.620
<v ->And here, the video is not derivative of the audio.</v>

338
00:14:44.620 --> 00:14:45.510
It's-
<v ->Yeah, I don't know</v>

339
00:14:45.510 --> 00:14:49.980
if this unitary audiovisual has legal significance,

340
00:14:49.980 --> 00:14:51.450
but I'm just, again,
(paper rustles)

341
00:14:51.450 --> 00:14:54.000
I keep, I guess, beating that dead horse,

342
00:14:54.000 --> 00:14:55.290
I'm stuck on the statute

343
00:14:55.290 --> 00:14:56.984
in the language, which is
<v ->Yeah.</v>

344
00:14:56.984 --> 00:14:59.371
<v ->problematic for you.</v>
<v ->The language is confusing,</v>

345
00:14:59.371 --> 00:15:00.270
'cause you are saying the-
<v ->I don't think</v>

346
00:15:00.270 --> 00:15:02.073
it's confusing, I think it's bad for you.

347
00:15:02.073 --> 00:15:03.360
(judges laughing)

348
00:15:03.360 --> 00:15:04.590
<v ->I prefer confusing,</v>

349
00:15:04.590 --> 00:15:05.423
your honor.
<v ->Right.</v>

350
00:15:05.423 --> 00:15:06.300
(judges laughing)

351
00:15:06.300 --> 00:15:07.500
<v ->I see my time is up.</v>

352
00:15:07.500 --> 00:15:08.580
Are there any further questions?

353
00:15:08.580 --> 00:15:09.413
<v ->I have one,</v>

354
00:15:09.413 --> 00:15:11.490
because I need to go back to the limiting principle here,

355
00:15:11.490 --> 00:15:12.323
'cause I'm still stuck

356
00:15:12.323 --> 00:15:14.190
on what Justice Gaziano asked you.

357
00:15:14.190 --> 00:15:16.398
So, you keep saying that it's assuming

358
00:15:16.398 --> 00:15:18.090
that there's an interception here.

359
00:15:18.090 --> 00:15:22.110
So, you are seemingly arguing exactly what he said,

360
00:15:22.110 --> 00:15:23.850
you are arguing, but you said you weren't.

361
00:15:23.850 --> 00:15:26.460
The visibility of the phone

362
00:15:26.460 --> 00:15:29.130
and that the visibility of the phone

363
00:15:29.130 --> 00:15:33.570
in your view negates any notion of secrecy.

364
00:15:33.570 --> 00:15:37.020
And so, again, how would you limit that?

365
00:15:37.020 --> 00:15:39.418
How would you address a situation

366
00:15:39.418 --> 00:15:44.340
where a person is not paying attention

367
00:15:44.340 --> 00:15:47.100
and somebody just has their phone out

368
00:15:47.100 --> 00:15:50.940
and how can you always interpret that,

369
00:15:50.940 --> 00:15:55.020
that the person is always potentially being recorded?

370
00:15:55.020 --> 00:15:57.690
What's the limiting principle to your world?

371
00:15:57.690 --> 00:16:00.964
<v ->Well, certainly if it's open,</v>

372
00:16:00.964 --> 00:16:03.390
again, going back to my phone,

373
00:16:03.390 --> 00:16:06.630
certainly if it's out in front of the person like this

374
00:16:06.630 --> 00:16:09.130
or at a concert up like this,

375
00:16:09.130 --> 00:16:10.650
(attendee coughing)

376
00:16:10.650 --> 00:16:12.240
the person is obvious recording.

377
00:16:12.240 --> 00:16:13.440
And that is clear.

378
00:16:13.440 --> 00:16:18.378
That's also the situation in the Counselor O'Neal case

379
00:16:18.378 --> 00:16:21.976
where the recorder simply has a camcorder

380
00:16:21.976 --> 00:16:26.130
perched on his shoulder at a public event.

381
00:16:26.130 --> 00:16:27.660
And it's clear in that case,

382
00:16:27.660 --> 00:16:30.039
and this is why I talk about the actual knowledge standard,

383
00:16:30.039 --> 00:16:33.450
that the counselor was oblivious to the camera.

384
00:16:33.450 --> 00:16:35.010
But that's not a secret recording

385
00:16:35.010 --> 00:16:36.630
when you have it up on your shoulder

386
00:16:36.630 --> 00:16:38.640
or you have it in those positions that I illustrated.

387
00:16:38.640 --> 00:16:41.040
<v ->Is that inconsistent with your other argument,</v>

388
00:16:41.040 --> 00:16:42.060
your second argument,

389
00:16:42.060 --> 00:16:44.700
which is that video is completely severable,

390
00:16:44.700 --> 00:16:48.573
so maybe it's just a video that's going on.

391
00:16:51.030 --> 00:16:52.761
<v ->I'm afraid I don't understand</v>

392
00:16:52.761 --> 00:16:54.074
your concern.
<v ->You're saying</v>

393
00:16:54.074 --> 00:16:57.000
if the phone's out, you know you're recording,

394
00:16:57.000 --> 00:16:57.833
right?
<v ->Yeah.</v>

395
00:16:57.833 --> 00:17:00.120
<v ->But you're also saying in your other argument,</v>

396
00:17:02.741 --> 00:17:03.673
the phone's out, it may be just doing video.

397
00:17:06.150 --> 00:17:06.983
I don't know.

398
00:17:06.983 --> 00:17:09.900
I just find that the two can't be separated out.

399
00:17:09.900 --> 00:17:11.820
<v ->You're going back to the second point,</v>

400
00:17:11.820 --> 00:17:12.653
the video.
<v ->Yeah.</v>

401
00:17:12.653 --> 00:17:15.361
<v ->Oh, yeah, I think it can, because you really,</v>

402
00:17:15.361 --> 00:17:20.361
unless you interpret the language of the statute

403
00:17:22.860 --> 00:17:24.930
to an almost persnickety level,

404
00:17:24.930 --> 00:17:26.400
there's just no benefit here.

405
00:17:26.400 --> 00:17:27.715
There's no connection.

406
00:17:27.715 --> 00:17:31.170
Once you eliminate the evidence

407
00:17:31.170 --> 00:17:33.385
that there was an intercepted communication

408
00:17:33.385 --> 00:17:35.370
and you're left with the video,

409
00:17:35.370 --> 00:17:38.490
the video is no different than it would be

410
00:17:38.490 --> 00:17:40.620
if it hadn't recorded sound in the first place.

411
00:17:40.620 --> 00:17:42.133
And to suppress them,

412
00:17:42.133 --> 00:17:45.330
to suppress the video in that circumstances

413
00:17:45.330 --> 00:17:46.530
will not be consistent

414
00:17:46.530 --> 00:17:48.750
with either the purpose of the wiretap statute

415
00:17:48.750 --> 00:17:50.820
or purpose of the Fourth Amendment.

416
00:17:50.820 --> 00:17:52.923
<v ->Can I ask one final question? Sorry.</v>

417
00:17:53.850 --> 00:17:57.540
So, I'm just looking at 99 P.

418
00:17:57.540 --> 00:17:58.373
<v ->Paul Mm-hmm.</v>

419
00:17:58.373 --> 00:18:00.572
<v ->and it says that the person</v>

420
00:18:00.572 --> 00:18:05.520
who's been subject of a wiretap violation may move

421
00:18:05.520 --> 00:18:09.834
to suppress the content of any intercepted communication

422
00:18:09.834 --> 00:18:13.620
or evidence derived there from.

423
00:18:13.620 --> 00:18:17.252
And it seems to me that or evidence derived there from

424
00:18:17.252 --> 00:18:22.252
counters your point about the video a bit,

425
00:18:22.350 --> 00:18:25.289
because it allows the suppression of the contents,

426
00:18:25.289 --> 00:18:26.790
which is a defined term,

427
00:18:26.790 --> 00:18:29.040
which Justice Gaziano took you through,

428
00:18:29.040 --> 00:18:31.500
but then it also has the ability

429
00:18:31.500 --> 00:18:36.500
to suppress the transcripts of somebody else hearing it

430
00:18:37.545 --> 00:18:41.610
or, I dunno, evidence that fruit

431
00:18:41.610 --> 00:18:43.830
of the poisonous tree type kind of evidence.

432
00:18:43.830 --> 00:18:46.845
So, your argument that contents

433
00:18:46.845 --> 00:18:51.845
can't possibly mean all the fruit of the poisonous tree

434
00:18:53.426 --> 00:18:58.050
is it really doesn't fit with the statute,

435
00:18:58.050 --> 00:19:00.119
which says you can suppress contents

436
00:19:00.119 --> 00:19:03.003
and the fruit of the poisonous tree.

437
00:19:05.231 --> 00:19:09.090
<v ->But again, the fruit of the poisonous tree</v>

438
00:19:09.090 --> 00:19:10.923
is something that you get from that.

439
00:19:12.600 --> 00:19:14.940
If he said, the defendant said,

440
00:19:14.940 --> 00:19:18.000
oh, yeah, I live on St. James Street,

441
00:19:18.000 --> 00:19:20.340
and you went back and you found, aha, there's a guy

442
00:19:20.340 --> 00:19:22.973
with his name who lives at 20 St. James Street,

443
00:19:22.973 --> 00:19:25.560
that's derivative evidence.

444
00:19:25.560 --> 00:19:27.513
That's fruit of the poisonous tree.

445
00:19:27.513 --> 00:19:29.340
You don't have that here.

446
00:19:29.340 --> 00:19:30.270
Here you have something,

447
00:19:30.270 --> 00:19:32.070
two things that are made simultaneously.

448
00:19:32.070 --> 00:19:34.088
Neither one depends on the other.

449
00:19:34.088 --> 00:19:36.600
It could be an audio recording without a video recording.

450
00:19:36.600 --> 00:19:38.700
It could be a video recording without an audio recording.

451
00:19:38.700 --> 00:19:41.550
Here, it happens to be one in the same.

452
00:19:41.550 --> 00:19:43.440
But that doesn't mean you can't separate them out

453
00:19:43.440 --> 00:19:45.594
and say that the video

454
00:19:45.594 --> 00:19:48.300
does not violate the purpose of the statute.

455
00:19:48.300 --> 00:19:49.143
The audio does.

456
00:19:50.799 --> 00:19:51.930
<v ->[Justice Wendlandt] Okay. Thank you.</v>

457
00:19:51.930 --> 00:19:53.663
<v ->Thank you very much, your honors.</v>

458
00:19:55.590 --> 00:19:57.963
<v ->Okay. Attorney Dahlberg.</v>

459
00:20:00.420 --> 00:20:01.380
<v ->May it please the court,</v>

460
00:20:01.380 --> 00:20:02.801
I'm Nancy Dahlberg on behalf of

461
00:20:02.801 --> 00:20:03.634
(indistinct)

462
00:20:03.634 --> 00:20:06.960
Dew, and we are asking the court to suppress both the audio

463
00:20:06.960 --> 00:20:08.160
and video components

464
00:20:08.160 --> 00:20:11.819
of these unitary audio-video recordings.

465
00:20:11.819 --> 00:20:14.970
I'm happy to answer any questions about the audio.

466
00:20:14.970 --> 00:20:19.320
I will simply say, unless there are questions

467
00:20:19.320 --> 00:20:23.400
that this case does not present

468
00:20:23.400 --> 00:20:27.180
any far-reaching issues regarding the audio.

469
00:20:27.180 --> 00:20:29.491
There was no...

470
00:20:29.491 --> 00:20:31.890
The court will have an opportunity obviously

471
00:20:31.890 --> 00:20:33.000
to look at the videos.

472
00:20:33.000 --> 00:20:34.620
But as the appeals court found,

473
00:20:34.620 --> 00:20:36.229
and I assume as the reason

474
00:20:36.229 --> 00:20:38.970
that the commonwealth never raised this issue

475
00:20:38.970 --> 00:20:43.770
before Judge Ham, is that they don't show anything.

476
00:20:43.770 --> 00:20:45.750
They don't suggest anything

477
00:20:45.750 --> 00:20:49.680
about how the cell phone was displayed.

478
00:20:49.680 --> 00:20:52.890
And that was found by the appeals court who reviewed them.

479
00:20:52.890 --> 00:20:57.120
And I think it'll be clear to this court upon reviewing them

480
00:20:57.120 --> 00:21:00.450
that the issue here is nothing

481
00:21:00.450 --> 00:21:03.180
other than these were secretly made.

482
00:21:03.180 --> 00:21:05.160
There's no evidence to the contrary.

483
00:21:05.160 --> 00:21:05.993
<v ->Can I ask you</v>

484
00:21:05.993 --> 00:21:07.092
about your statement
<v ->Yes.</v>

485
00:21:07.092 --> 00:21:09.791
<v ->that this is a unitary recording?</v>

486
00:21:09.791 --> 00:21:12.354
<v ->So, this-</v>
<v ->Why does that matter?</v>

487
00:21:12.354 --> 00:21:13.830
<v ->Well, it matters,</v>

488
00:21:13.830 --> 00:21:17.220
because the video is accompanying the audio.

489
00:21:17.220 --> 00:21:20.730
So, the way the Callio app works, at least in this case,

490
00:21:20.730 --> 00:21:22.359
according to the testimony,

491
00:21:22.359 --> 00:21:27.150
it is recording the audio and the video

492
00:21:27.150 --> 00:21:29.370
and you can't turn off one or the other.

493
00:21:29.370 --> 00:21:30.203
So, the police-

494
00:21:30.203 --> 00:21:31.887
<v ->So, you can't mute the audio?</v>

495
00:21:31.887 --> 00:21:33.810
<v ->Not when the recording's being made.</v>

496
00:21:33.810 --> 00:21:34.800
I think that,
<v ->No, but when</v>

497
00:21:34.800 --> 00:21:35.790
it's being played.

498
00:21:35.790 --> 00:21:36.855
<v ->But when it's being played,</v>

499
00:21:36.855 --> 00:21:38.550
I suppose you can always do that.

500
00:21:38.550 --> 00:21:39.630
And there are other problems

501
00:21:39.630 --> 00:21:41.763
that I can get to on the video for that.

502
00:21:44.220 --> 00:21:47.940
So, this is a situation and only a situation

503
00:21:47.940 --> 00:21:50.400
where the video is accompanying the audio.

504
00:21:50.400 --> 00:21:53.430
And it was interesting to me to learn that the state police,

505
00:21:53.430 --> 00:21:55.260
when they promulgated their regulation

506
00:21:55.260 --> 00:21:58.440
concerning covert audio recordings,

507
00:21:58.440 --> 00:22:02.776
defined it as audio that was accompanying,

508
00:22:02.776 --> 00:22:05.490
the video that was accompanying audio.

509
00:22:05.490 --> 00:22:09.464
So, that is how it works.

510
00:22:09.464 --> 00:22:12.690
They're together, they're not being recorded separately.

511
00:22:12.690 --> 00:22:14.880
They're not being recorded at separate times.

512
00:22:14.880 --> 00:22:16.770
And that goes to the definition.

513
00:22:16.770 --> 00:22:19.530
But I don't wanna get too far ahead of myself.

514
00:22:19.530 --> 00:22:21.240
<v ->Two phones on him,</v>

515
00:22:21.240 --> 00:22:24.492
one recording audio and one recording video.

516
00:22:24.492 --> 00:22:26.100
How would that play out?

517
00:22:26.100 --> 00:22:27.210
It's the same event,

518
00:22:27.210 --> 00:22:29.670
but we often have these drug dealers

519
00:22:29.670 --> 00:22:31.350
with two phones.
<v ->Right.</v>

520
00:22:31.350 --> 00:22:33.120
<v ->And cops with two phones.</v>

521
00:22:33.120 --> 00:22:35.040
So, how would that work?

522
00:22:35.040 --> 00:22:36.540
<v ->Well, it's a separate issue</v>

523
00:22:36.540 --> 00:22:39.540
that's not addressed in this case.

524
00:22:39.540 --> 00:22:42.060
The problem, and I don't wanna get too far ahead

525
00:22:42.060 --> 00:22:44.613
of myself if there are questions about the audio.

526
00:22:45.480 --> 00:22:47.220
<v ->I think we're all very interested</v>

527
00:22:47.220 --> 00:22:48.480
in the video.
<v ->The video.</v>

528
00:22:48.480 --> 00:22:52.230
So, the video, I would go back

529
00:22:52.230 --> 00:22:56.164
to the definition that has already been discussed.

530
00:22:56.164 --> 00:23:01.164
So, though Mr. Dew has the opportunity here

531
00:23:02.610 --> 00:23:05.400
to move for suppression of the contents.

532
00:23:05.400 --> 00:23:08.185
Any information concerning the identity of the parties

533
00:23:08.185 --> 00:23:11.610
to the communications or the existence contents

534
00:23:11.610 --> 00:23:13.570
substance program-
<v ->Does that modify</v>

535
00:23:15.000 --> 00:23:17.190
wire communication though?

536
00:23:17.190 --> 00:23:20.310
<v ->That would be oral or wire communications,</v>

537
00:23:20.310 --> 00:23:22.740
all of which are implicated in this case.

538
00:23:22.740 --> 00:23:23.573
<v ->Right.</v>
<v ->But they're all</v>

539
00:23:23.573 --> 00:23:24.709
covered-
<v ->The audio.</v>

540
00:23:24.709 --> 00:23:27.630
When we talk about oral and wire,

541
00:23:27.630 --> 00:23:30.000
we're talking about audio communications, not-

542
00:23:30.000 --> 00:23:32.040
<v ->The audio, and in this case,</v>

543
00:23:32.040 --> 00:23:35.220
the contents includes the video.

544
00:23:35.220 --> 00:23:39.060
<v ->Not if it says the contents of an oral-</v>

545
00:23:39.060 --> 00:23:40.920
<v ->Oral or wire communications.</v>

546
00:23:40.920 --> 00:23:41.880
And in this case,

547
00:23:41.880 --> 00:23:43.980
<v ->Wire communications-</v>
<v ->the recordings-</v>

548
00:23:43.980 --> 00:23:45.016
<v ->It's not oral.</v>

549
00:23:45.016 --> 00:23:47.639
So, you're saying the wire communications

550
00:23:47.639 --> 00:23:50.220
is the video portion?

551
00:23:50.220 --> 00:23:51.053
<v ->No.</v>
<v ->Okay.</v>

552
00:23:51.053 --> 00:23:52.163
<v ->The unitary recording</v>

553
00:23:52.163 --> 00:23:54.330
covers-
<v ->That's a made up term,</v>

554
00:23:54.330 --> 00:23:55.440
the unitary recording.

555
00:23:55.440 --> 00:23:56.340
That was-
<v ->Well-</v>

556
00:23:56.340 --> 00:23:57.450
<v ->That's not in the statute-</v>

557
00:23:57.450 --> 00:24:00.330
<v ->The appeals court, I think it's a very apt term.</v>

558
00:24:00.330 --> 00:24:02.400
It's a recording made of audio

559
00:24:02.400 --> 00:24:05.370
and video at the same time, in the same file.

560
00:24:05.370 --> 00:24:07.697
<v ->And you're saying that that together</v>

561
00:24:07.697 --> 00:24:12.697
constitutes an oral or wire communication as-

562
00:24:12.990 --> 00:24:15.840
<v ->Yes, and I think as the appeals court described aptly,</v>

563
00:24:15.840 --> 00:24:18.737
the original recording of the oral communication

564
00:24:18.737 --> 00:24:21.270
then became a wire communication

565
00:24:21.270 --> 00:24:23.455
in the subsequent recorded events.

566
00:24:23.455 --> 00:24:26.310
So-
<v ->But do you think that's,</v>

567
00:24:26.310 --> 00:24:29.220
are you saying that that's what the legislature had in mind,

568
00:24:29.220 --> 00:24:31.886
that oral and wire communications

569
00:24:31.886 --> 00:24:36.150
encompasses both audio and video recordings?

570
00:24:36.150 --> 00:24:39.761
<v ->Well, what the legislature had in mind</v>

571
00:24:39.761 --> 00:24:44.310
was the ability to suppress the contents.

572
00:24:44.310 --> 00:24:45.210
In this case,

573
00:24:45.210 --> 00:24:50.210
the contents includes the unitary audiovisual file.

574
00:24:50.760 --> 00:24:52.440
<v ->I'm just having a little trouble with that,</v>

575
00:24:52.440 --> 00:24:55.554
because as I think Justice Gaziano pointed out,

576
00:24:55.554 --> 00:24:58.320
the question is what does contents,

577
00:24:58.320 --> 00:25:00.123
what's the modifier here?

578
00:25:00.123 --> 00:25:03.000
What does contents encompass?

579
00:25:03.000 --> 00:25:05.070
And you're saying your argument

580
00:25:05.070 --> 00:25:08.880
is that it is the unitary audio

581
00:25:08.880 --> 00:25:10.956
and video recording.
<v ->Yes. And that-</v>

582
00:25:10.956 --> 00:25:14.823
<v ->I'm not sure what the basis for that is,</v>

583
00:25:16.056 --> 00:25:17.610
<v ->It's the oral-</v>
<v ->because oral</v>

584
00:25:17.610 --> 00:25:19.110
wire communications are audio.

585
00:25:20.014 --> 00:25:21.600
<v ->Oral and wire communications</v>

586
00:25:21.600 --> 00:25:23.520
are both implicated in this recording.

587
00:25:23.520 --> 00:25:26.100
<v ->Can you explain that? I'm sorry to interrupt you.</v>

588
00:25:26.100 --> 00:25:27.180
<v ->No, I think that's</v>

589
00:25:27.180 --> 00:25:28.866
what I'm trying to get.
<v ->So, yes-</v>

590
00:25:28.866 --> 00:25:30.602
<v ->So, there is an oral communication</v>

591
00:25:30.602 --> 00:25:34.674
between the undercover officer and the defendant?

592
00:25:34.674 --> 00:25:38.330
<v ->Yes. And it is part of this audiovisual file.</v>

593
00:25:38.330 --> 00:25:40.080
They made, when they-

594
00:25:41.115 --> 00:25:42.881
<v ->So, there's an oral communication</v>

595
00:25:42.881 --> 00:25:46.380
between the undercover officer and the defendant.

596
00:25:46.380 --> 00:25:48.747
And then, I'm sorry, what is the wire communication?

597
00:25:48.747 --> 00:25:50.106
<v ->And it is recorded</v>

598
00:25:50.106 --> 00:25:51.330
(Paul sneezes)

599
00:25:51.330 --> 00:25:53.040
<v ->Excuse me.</v>
<v ->and transmitted</v>

600
00:25:53.040 --> 00:25:54.607
and the transmittal to the-

601
00:25:54.607 --> 00:25:56.061
<v ->But the communication
(attendee coughing)</v>

602
00:25:56.061 --> 00:25:57.083
between the officer

603
00:25:57.083 --> 00:26:02.083
and the defendant is not being made by means of a wire?

604
00:26:04.320 --> 00:26:06.230
No, that is being recorded

605
00:26:06.230 --> 00:26:08.460
on the phone.
<v ->That's separate.</v>

606
00:26:08.460 --> 00:26:10.440
<v ->There's a recording between officer one</v>

607
00:26:10.440 --> 00:26:11.850
and officer two.
<v ->Right.</v>

608
00:26:11.850 --> 00:26:13.140
<v ->Then, that's consented to,</v>

609
00:26:13.140 --> 00:26:15.300
because they both know that that's happening.

610
00:26:15.300 --> 00:26:18.873
What I don't understand is how there's these,

611
00:26:19.710 --> 00:26:23.790
I think the appeals court calls it four interceptions, or.

612
00:26:23.790 --> 00:26:27.390
<v ->So, the initial recording of the oral communications,</v>

613
00:26:27.390 --> 00:26:29.410
which is accompanied with the video

614
00:26:31.593 --> 00:26:34.121
is a secret interception

615
00:26:34.121 --> 00:26:37.890
of these communications made by Mr. Dew.

616
00:26:37.890 --> 00:26:41.455
<v ->But Mr. Dew is not using any wire</v>

617
00:26:41.455 --> 00:26:44.280
to talk to the undercover cop.

618
00:26:44.280 --> 00:26:46.986
<v ->Right. So, it's being recorded.</v>

619
00:26:46.986 --> 00:26:48.993
<v ->Yes.</v>
<v ->And then, at the same time,</v>

620
00:26:48.993 --> 00:26:52.676
it's being transmitted to these other officers,

621
00:26:52.676 --> 00:26:53.998
and it's going to-

622
00:26:53.998 --> 00:26:57.091
<v ->But Mr. Dew is not doing that.</v>

623
00:26:57.091 --> 00:26:58.620
(judge chuckles)
<v ->No.</v>

624
00:26:58.620 --> 00:27:02.070
But his communications are being intercepted by the police.

625
00:27:02.070 --> 00:27:05.103
<v ->No, but for it to be a wire communication,</v>

626
00:27:07.482 --> 00:27:10.952
his communication needs to be by means of the wire

627
00:27:10.952 --> 00:27:14.340
and his is just oral or speech.

628
00:27:14.340 --> 00:27:16.440
<v ->So, what the appeals court explained,</v>

629
00:27:16.440 --> 00:27:17.820
and I think correctly,

630
00:27:17.820 --> 00:27:22.410
is that the oral communications are being recorded.

631
00:27:22.410 --> 00:27:25.080
Mr. Dew's oral communications are being recorded

632
00:27:25.080 --> 00:27:27.900
in violation of the statute, because they were secret

633
00:27:27.900 --> 00:27:29.790
and they were not pursuant to a warrant

634
00:27:29.790 --> 00:27:31.600
or an exception to the statute.

635
00:27:31.600 --> 00:27:34.890
The second step is when they are being transmitted

636
00:27:34.890 --> 00:27:38.940
to the other cell phones, that is a wire communication.

637
00:27:38.940 --> 00:27:40.080
<v ->Is it?</v>
<v ->I don't...</v>

638
00:27:40.080 --> 00:27:41.532
<v ->I guess that's my question.</v>

639
00:27:41.532 --> 00:27:42.510
<v ->The definition.</v>
<v ->That's my question.</v>

640
00:27:42.510 --> 00:27:45.330
Yeah, like how does that fit with the definition?

641
00:27:45.330 --> 00:27:47.700
Is that a communication-
<v ->A wire communication</v>

642
00:27:47.700 --> 00:27:49.317
includes transmissions

643
00:27:49.317 --> 00:27:52.830
made over cellular networks as they describe,

644
00:27:52.830 --> 00:27:55.800
as the definition is made in part through the use

645
00:27:55.800 --> 00:27:57.390
of facilities for the transmission

646
00:27:57.390 --> 00:27:59.550
of communications by the aid of wire, cable,

647
00:27:59.550 --> 00:28:01.200
or other like connection

648
00:28:01.200 --> 00:28:02.460
between the point of origin

649
00:28:02.460 --> 00:28:04.170
and the point of reception.
<v ->Right.</v>

650
00:28:04.170 --> 00:28:05.647
And the point of origin-
<v ->Which has been interpreted,</v>

651
00:28:05.647 --> 00:28:09.180
in Moody, cellular calls are included.

652
00:28:09.180 --> 00:28:10.170
<v ->That's not my point.</v>

653
00:28:10.170 --> 00:28:11.730
My point is Mr. Dew
<v ->Oh.</v>

654
00:28:11.730 --> 00:28:14.189
<v ->isn't communicating with anyone over a wire.</v>

655
00:28:14.189 --> 00:28:16.440
<v ->No, but the recording now</v>

656
00:28:16.440 --> 00:28:18.663
of him is being sent far and wide.

657
00:28:18.663 --> 00:28:21.420
<v ->That has to do with how many violations</v>

658
00:28:21.420 --> 00:28:22.827
of the wiretap statute.
<v ->Right.</v>

659
00:28:22.827 --> 00:28:24.408
But that's-
<v ->Alls you need is one.</v>

660
00:28:24.408 --> 00:28:26.370
<v ->Yes. So, I agree.</v>
<v ->Okay, so now,</v>

661
00:28:26.370 --> 00:28:29.960
let's get to the
<v ->Okay, so to the video.</v>

662
00:28:29.960 --> 00:28:31.263
<v ->video, yeah. (chuckles)</v>
<v ->Video, okay.</v>

663
00:28:31.263 --> 00:28:36.263
So, the suggestion, so this is all recorded.

664
00:28:37.710 --> 00:28:39.840
There's audio and video at the same time.

665
00:28:39.840 --> 00:28:43.260
The identity, his identity is clear on the video.

666
00:28:43.260 --> 00:28:45.780
The existence of the communications is clear on the video.

667
00:28:45.780 --> 00:28:48.330
What the commonwealth would like to suggest

668
00:28:48.330 --> 00:28:53.010
is that the video be altered and presented at trial,

669
00:28:53.010 --> 00:28:53.970
because after all,

670
00:28:53.970 --> 00:28:57.720
the police officer is able to provide live testimony.

671
00:28:57.720 --> 00:29:01.110
So, the suggestion is that this video

672
00:29:01.110 --> 00:29:03.930
would be presented to the jury even though an interception

673
00:29:03.930 --> 00:29:06.720
of violation of the law has occurred.

674
00:29:06.720 --> 00:29:08.940
So, they would be presented to the jury

675
00:29:08.940 --> 00:29:11.370
as though there was no violation,

676
00:29:11.370 --> 00:29:13.170
even though it is evidence

677
00:29:13.170 --> 00:29:14.610
of the violation.
<v ->So, hypothetically,</v>

678
00:29:14.610 --> 00:29:16.290
if Mr. Dew said, that wasn't me,

679
00:29:16.290 --> 00:29:18.676
that was my brother, they got the wrong guy,

680
00:29:18.676 --> 00:29:21.907
they could play the video portion

681
00:29:21.907 --> 00:29:24.660
to identify him as the speaker, correct?

682
00:29:24.660 --> 00:29:26.220
<v ->They could play the video portion</v>

683
00:29:26.220 --> 00:29:28.770
and say, this is where I had a conversation

684
00:29:28.770 --> 00:29:31.032
with Mr. Dew and this is what he said.

685
00:29:31.032 --> 00:29:35.820
So, of course they benefit from the existence of the video.

686
00:29:35.820 --> 00:29:40.820
And deterrence is an articulated goal of this statute,

687
00:29:40.860 --> 00:29:43.440
deterrence of interference

688
00:29:43.440 --> 00:29:46.860
with privacy rights of individuals by law enforcement.

689
00:29:46.860 --> 00:29:49.830
This is the fact that police in Boston

690
00:29:49.830 --> 00:29:53.763
and Worcester, I mentioned Worcester in there as well.

691
00:29:54.630 --> 00:29:57.813
<v ->If they had video from a dash cam,</v>

692
00:29:58.920 --> 00:30:01.713
no audio, that wouldn't be a problem at all, would it?

693
00:30:02.850 --> 00:30:04.323
<v ->Not to my knowledge.</v>

694
00:30:05.370 --> 00:30:06.870
But this accompanies-

695
00:30:06.870 --> 00:30:10.590
<v ->Yeah, two cell phones, one doing audio, one doing video.</v>

696
00:30:10.590 --> 00:30:12.521
The video would come in.

697
00:30:12.521 --> 00:30:13.950
<v ->As far as I know,</v>

698
00:30:13.950 --> 00:30:15.083
this case is really-
<v ->You're really</v>

699
00:30:15.083 --> 00:30:16.830
putting a premium on the fact

700
00:30:16.830 --> 00:30:19.536
that they're being done simultaneously.

701
00:30:19.536 --> 00:30:21.669
<v ->And that's-</v>
<v ->The being done,</v>

702
00:30:21.669 --> 00:30:25.380
the audio is implicated, the video is implicated here,

703
00:30:25.380 --> 00:30:28.590
because it's part of this,
<v ->The same thing.</v>

704
00:30:28.590 --> 00:30:31.320
<v ->I'm sorry, unitary file that would-</v>

705
00:30:31.320 --> 00:30:33.270
<v ->Which file? Because-</v>
<v ->Well-</v>

706
00:30:33.270 --> 00:30:35.040
<v ->Does that work technically that way?</v>

707
00:30:35.040 --> 00:30:36.750
Because I think the video file

708
00:30:36.750 --> 00:30:38.610
would be separate from the audio file

709
00:30:38.610 --> 00:30:40.456
in my understanding.
<v ->Well, so this is being done</v>

710
00:30:40.456 --> 00:30:45.456
simultaneously with the same software on the same phone.

711
00:30:45.840 --> 00:30:48.320
So, it's an audiovisual recording

712
00:30:48.320 --> 00:30:51.452
made at one time with one app

713
00:30:51.452 --> 00:30:56.452
that violates the rights of people who are being recorded.

714
00:30:58.108 --> 00:30:59.220
And the-
<v ->Why can't you take away</v>

715
00:30:59.220 --> 00:31:04.220
the illegal part, the part where there's oral communication,

716
00:31:04.440 --> 00:31:06.440
take that away, 'cause that was illegal,

717
00:31:06.440 --> 00:31:10.110
and what you're left with is the visual part.

718
00:31:10.110 --> 00:31:13.170
<v ->So, I do wanna go back to my deterrence point on that.</v>

719
00:31:13.170 --> 00:31:16.950
But to go back, so what the court would be suggesting,

720
00:31:16.950 --> 00:31:18.240
or the commonwealth has suggested

721
00:31:18.240 --> 00:31:20.330
is you would take something,

722
00:31:20.330 --> 00:31:23.520
scrub out the part that was illegal,

723
00:31:23.520 --> 00:31:25.500
and then you would have the police officer

724
00:31:25.500 --> 00:31:27.480
using that to his benefit

725
00:31:27.480 --> 00:31:30.960
and saying, this is where we were having this conversation

726
00:31:30.960 --> 00:31:33.720
and presenting it, excuse me,

727
00:31:33.720 --> 00:31:36.660
as something that was allowed when it wasn't,

728
00:31:36.660 --> 00:31:38.160
it was a violation of law.

729
00:31:38.160 --> 00:31:39.810
They're gonna be presenting-
<v ->But that's the question</v>

730
00:31:39.810 --> 00:31:42.540
presented, do you get...

731
00:31:42.540 --> 00:31:46.860
There was a violation audio, do you then,

732
00:31:46.860 --> 00:31:51.304
does the statute require the suppression of the video?

733
00:31:51.304 --> 00:31:53.473
And it seems like you're-
<v ->Yes, because...</v>

734
00:31:53.473 --> 00:31:54.820
<v ->Because it was made</v>

735
00:31:54.820 --> 00:31:56.051
at the same time?
<v ->Because it shows</v>

736
00:31:56.051 --> 00:31:58.770
it's evidence of a violation.

737
00:31:58.770 --> 00:32:00.480
It is evidence of a violation.

738
00:32:00.480 --> 00:32:02.790
If someone were to cross-examinee the police officer

739
00:32:02.790 --> 00:32:04.971
and say, well, did you do this secretly?

740
00:32:04.971 --> 00:32:07.170
Yes, I did it secretly.

741
00:32:07.170 --> 00:32:09.210
<v ->It supports the oral stuff</v>

742
00:32:09.210 --> 00:32:12.270
clearly meets all the definitions of the statute

743
00:32:12.270 --> 00:32:14.565
and the video helps establish,

744
00:32:14.565 --> 00:32:17.430
provides further proof of the oral.

745
00:32:17.430 --> 00:32:18.780
<v Nancy>Exactly. And-</v>

746
00:32:18.780 --> 00:32:22.230
<v ->And it's inseparable in the sense that it's good proof,</v>

747
00:32:22.230 --> 00:32:24.300
because it's not two separate phones or anything.

748
00:32:24.300 --> 00:32:26.666
It's the exact same thing.
<v ->Yes. And-</v>

749
00:32:26.666 --> 00:32:27.499
<v ->That's why the appeals court</v>

750
00:32:27.499 --> 00:32:29.250
puts so much emphasis on unitary.

751
00:32:29.250 --> 00:32:30.783
<v ->But are we reading that</v>
<v ->Absolutely.</v>

752
00:32:30.783 --> 00:32:31.830
<v ->into the statute?</v>

753
00:32:31.830 --> 00:32:34.829
This inextricably intertwined or unitary

754
00:32:34.829 --> 00:32:38.070
doesn't appear in our case law or the statute, right?

755
00:32:38.070 --> 00:32:40.266
<v ->I think the definitions are clear, your honor.</v>

756
00:32:40.266 --> 00:32:44.670
As we know, we've said many times the statutes from 1968,

757
00:32:44.670 --> 00:32:47.220
but things have been updated

758
00:32:47.220 --> 00:32:50.610
and at that time, we did not have these iPhones.

759
00:32:50.610 --> 00:32:52.894
So, you could carry around and the police,

760
00:32:52.894 --> 00:32:55.770
using in the way that they did here.

761
00:32:55.770 --> 00:32:59.307
I think the statute clearly encompasses this, but I-

762
00:32:59.307 --> 00:33:02.337
<v ->You think in 1968, there was an audiovisual?</v>

763
00:33:02.337 --> 00:33:04.825
<v ->There wasn't the ability to walk around</v>

764
00:33:04.825 --> 00:33:05.790
with an iPhone.
<v ->No,</v>

765
00:33:05.790 --> 00:33:07.170
but there was audiovisual.

766
00:33:07.170 --> 00:33:10.890
So, this unitary concept existed in 1968, right?

767
00:33:10.890 --> 00:33:13.620
<v ->Right, but undercover police officers were not using this.</v>

768
00:33:13.620 --> 00:33:15.330
They were using some kind of, right,

769
00:33:15.330 --> 00:33:16.860
they didn't have this ability.

770
00:33:16.860 --> 00:33:17.693
They didn't-

771
00:33:17.693 --> 00:33:19.745
They had monitoring devices called KELS.

772
00:33:19.745 --> 00:33:21.270
It's in the statute
(Justice Kafker laughing)

773
00:33:21.270 --> 00:33:23.636
where they were just broadcast for officer safety.

774
00:33:23.636 --> 00:33:25.823
But that was clearly

775
00:33:25.823 --> 00:33:28.140
<v ->I do wanna talk-</v>
<v ->not preserved.</v>

776
00:33:28.140 --> 00:33:28.973
<v ->I'm sorry.</v>

777
00:33:28.973 --> 00:33:29.970
I do wanna talk about deterrence

778
00:33:29.970 --> 00:33:31.560
a little more before my time runs out,

779
00:33:31.560 --> 00:33:34.740
because it's clear from the testimony in this case,

780
00:33:34.740 --> 00:33:37.830
and as I say this case in Worcester where Judge LoConto

781
00:33:37.830 --> 00:33:41.073
recently granted a whole bunch of motions for a new trial,

782
00:33:42.240 --> 00:33:46.370
that the police have been using Callio

783
00:33:46.370 --> 00:33:48.420
with no thought to the statute.

784
00:33:48.420 --> 00:33:50.460
They have been recording people

785
00:33:50.460 --> 00:33:55.200
in violation of this statute quite a bit widely.

786
00:33:55.200 --> 00:33:57.647
And if the court were to say,

787
00:33:57.647 --> 00:33:59.820
well, we're gonna just scrub this,

788
00:33:59.820 --> 00:34:01.620
we're gonna pretend there wasn't a violation,

789
00:34:01.620 --> 00:34:04.410
we're gonna show this video,

790
00:34:04.410 --> 00:34:07.334
there's no reason for them to stop.

791
00:34:07.334 --> 00:34:09.210
And-
<v ->Well, how helpful</v>

792
00:34:09.210 --> 00:34:11.430
is the video without the audio?

793
00:34:11.430 --> 00:34:13.140
<v ->Oh, it'd be very helpful.</v>

794
00:34:13.140 --> 00:34:14.640
<v ->So, they could just start</v>

795
00:34:14.640 --> 00:34:16.350
using the video portion.
<v ->Right.</v>

796
00:34:16.350 --> 00:34:18.030
So just do the video.
<v ->They just video</v>

797
00:34:18.030 --> 00:34:19.080
the transaction.
<v ->They can...</v>

798
00:34:19.080 --> 00:34:20.850
If they don't wanna violate the law,

799
00:34:20.850 --> 00:34:22.800
that's an opportunity they can have.

800
00:34:22.800 --> 00:34:24.660
They can, yes, but-

801
00:34:24.660 --> 00:34:28.170
<v ->When we say that using the audio</v>

802
00:34:28.170 --> 00:34:33.170
and visual unitary thing is not legal,

803
00:34:33.437 --> 00:34:37.860
I would hope that they would hear that and not do it.

804
00:34:37.860 --> 00:34:41.001
But if they do, they don't get to use the audio.

805
00:34:41.001 --> 00:34:41.834
(judge clears throat)

806
00:34:41.834 --> 00:34:44.130
<v ->They also subject themselves to criminal liability.</v>

807
00:34:44.130 --> 00:34:45.510
<v ->Exactly.
(Justice Kafker laughing)</v>

808
00:34:45.510 --> 00:34:48.480
<v ->Well, there is an exception in the statute.</v>

809
00:34:48.480 --> 00:34:52.511
If something is done for officer safety,

810
00:34:52.511 --> 00:34:56.880
it's subject to suppression, but not to liability.

811
00:34:56.880 --> 00:35:00.000
I would only say that in terms of the police

812
00:35:00.000 --> 00:35:01.893
recording audio and video,

813
00:35:02.752 --> 00:35:06.390
the problem is the violation of the statute.

814
00:35:06.390 --> 00:35:10.980
Yes, if they stopped using Callio the way they're doing it,

815
00:35:10.980 --> 00:35:12.030
but one might've thought

816
00:35:12.030 --> 00:35:14.550
that that would've occurred prior to now.

817
00:35:14.550 --> 00:35:18.810
And certainly yes, I would hope that the court

818
00:35:18.810 --> 00:35:22.800
would encourage compliance with the statute,

819
00:35:22.800 --> 00:35:26.820
which has a lot of important goals.

820
00:35:26.820 --> 00:35:28.770
So, we would ask for suppression

821
00:35:28.770 --> 00:35:31.263
of both the audio and video in this case.