-: Good morning, your honors.
May please the court, Paul Lin, for the commonwealth.
Simply put a straightforward reading of the statute
and case law cannot support the suggestion
that a recording made with a device known to record audio
and held in plain view is secret.
Those are the words
of the First Circuit- -: Isn't that inconsistent
with the testimony in this case
that in fact, the defendant had no idea
that he was being recorded, that it was secret,
because otherwise, it would be ineffective police work?
-: The police absolutely admitted
that this was a recording that they wanted to be secret.
And I do not doubt the defendant's assertion
that he was unaware of it.
-: Okay. -: But it is past time
to retire the phrase actual knowledge
and connection with the wiretap statute.
Recent case law, Glick, Ashley, Morris,
and especially, Rivera, make it clear
that the standard is whether their objective circumstances
that put the defendant on notice.
They might- -: Well, that's overstating
it a little bit,
because first, Glick is a federal case.
And in that case, while the arrest of the other individual
was going on, Mr. Glick is standing there
with this camera out facing the police.
And at one point,
they say something to him like, "Stop taking pictures."
And he says, "I'm recording." -: Right.
-: So, that's different than where,
again, I haven't seen the videos just yet,
but taking the testimony at the hearing
where to his credit, the officer said of,
yeah, would be really a bad police work
if he knew we were recording him.
That your proposition
that we should now take the view that
just because all of these phones
have recording capabilities,
it means that the wiretap statute
really doesn't mean anything anymore.
-: That is a sad fact more than the commonwealth's position.
It is true that virtually everything we should do
and say these days is recorded.
-: But with the ubiquity of cell phones,
if I'm at Starbucks with one of my friends
and the person has a cell phone on the table,
I don't think that they're recording me.
I just don't get your point. -: Right.
-: I think that everyone has a cell phone out.
It's hard to see someone not with the cell phone out
and you don't think that people will press and record
-: Right. -: on the sly.
-: Particularly with all
of the other capabilities that phones have.
-: True.
Which the Glick court held was irrelevant,
where the phone was in plain view.
I don't think it is a bad distinction
that the Mass Association of Criminal Defense Lawyers makes.
And if I may use my phone, it's off as a prop here.
(Justice Gaziano chuckles) Yeah. Between-
-: [Justice Wendlandt] How do we know that?
(Paul laughing)
-: Because it is a reasonable difference to say
there's a difference between this and this and this.
Justice Gaziano: Right.
-: Which you could use in this case
to distinguish this case from the other cases.
But nonetheless, the commonwealth
does not have to prove actual knowledge.
It just has to prove that there is objective notice
that the recorded party's behavior
is being memorialized in some way.
And Glick, the officer made it clear
that he did not realize he was being audio recorded,
'cause he says, "No more pictures."
And when the defendant responds, "I'm audio taping you,"
that's when he's arrested.
So, it's clear that the officer
did not have actual knowledge
that he was being audio recorded.
But as you pointed out, your honor, Justice Georges,
there was clearly an objective knowledge
that he was being memorialized in some way.
-: But I'm still confused.
Even if we modify the rule as you would like,
-: Paul Mm-hmm.
-: where does that get you here?
Because he's clearly not
putting the phone out like this.
He's- -: No, clearly not.
-: So, where does that get you?
-: It gets you a phone in plain view.
-: Any phone in...
Just back to Justice Gaziano's view,
anytime somebody's put their phone out anywhere,
that's your rule.
That's the new rule you want us to adopt
that then you know you're being recorded.
You don't really want us to write that,
do you? -: Mm.
No. (chuckles) I think that was too broad.
But here, he's got the phone out. He's not hiding it.
-: Modify it for us.
The rule you want is what? -: Mm-hmm.
That when a person has a phone out in plain view,
and I will say the video,
the videos in this case,
show that he's holding it in his hand.
You never see his hand,
but it's clear from the way the video,
the footage moves that he's holding it.
Sometimes he changes
the direction of it. -: But, counsel,
we have no factual findings of this kind below,
because the commonwealth did not argue secrecy below,
correct? -: Correct.
But- -: So can you please
make an argument as to why
we should even reach this issue on this record?
-: As I say, a matter would probably be,
I have three reasons.
The first reason is because we need guidance on this issue
in light of Glick and Rivera.
The second reason is because we don't dispute
any of the findings that the judge made.
As you pointed out that the officer
candidly admitted that the police
intended for the recording to remain secret.
He said the phone wouldn't necessarily be hidden.
We all agree with that.
And as for the video recordings,
those are reviewed de novo.
So, the fact that the judge was not able to make findings
regarding the video is completely irrelevant,
because this court can- -: The point I think
is not the ability to make the finding.
It's the failure of the commonwealth to make the argument.
-: Oh, we certainly did not make that argument.
-: Okay. -: By the time I got that case,
that opportunity has passed. (Justice Kafker laughing)
-: And if we reach the argument here as you want us to,
it would be to reverse the judgment of the trial court.
-: Correct. -: And in what legal
proposition do you have for that?
That we should look de novo at evidence
to address an argument that was never marshaled
in order to reverse the trial court?
-: I don't have a case off the top of my head for that.
-: [Justice Wendlandt] Usually we don't do that,
in fact. -: Yes.
But as again, where there's no,
you would not be rejecting the judge's findings-
-: Isn't an alpha in those whole line
of cases say we can't do that.
That we can't decide a case in your...
We can't do just what Justice Wendlandt said.
There's a whole line of cases
say that that's not permissible.
Not only are there no cases saying it is permissible,
but we got a whole line of cases say it's not permissible.
-: I can't think of a case
that says- -: So, let's just assume
we're gonna follow the law. -: Yeah.
-: Can you address why the video
is not suppressible as contents of an audio recording?
-: Yes.
Because there's absent the audio recording,
there is no evidence whatsoever
of any communication that was intercepted.
Justice Gaziano: Does it show
the identity of the parties?
-: It certainly shows the identity of the parties,
but it would've shown the identity
of the parties even if- -: By it, I mean the video
shows the identity
of the parties, right? -: Yes, definitely.
Definitely shows the... -: Okay.
-: Well, it shows the identity of the defendant.
-: Right.
So, if we do the math
and we go to suppression of evidence,
because we're not talking about constitutional suppression,
we're talking about
statutory suppression. -: We're definitely
talking about the wiretap statute.
It wasn't- -: So, under 99 Section P,
it says any person, i.e,
the defendant may move to suppress the contents, right?
And then, it defines contents in 99 B5
as contents were used in respect to this
means any information
concerning the identity of the parties.
-: But without any evidence of an intercepted communication,
there's no evidence
to the parties of an intercepted communication.
The defendant here was arrested after the third by...
This isn't a case as- -: But the video shows
that at least the defendant is speaking.
-: It shows that he's moving his lips,
so we can infer he is speaking.
But again, a silent video would do exactly the same thing.
If the commonwealth would go out tomorrow-
-: But this is an integrated audio and visual recording.
-: Paul Absolutely true.
There's no question about that.
-: Yeah, I don't know about- -: But it doesn't...
The video is not the fruit of the audio here.
I realize we're talking about-
Justice Gaziano: Right. I don't know if the-
-: Constitutional law.
But where the jury is going to have no knowledge whatsoever
that anything was ever recorded,
it seems perverted to say that we're exploiting-
-: But the statute says any, which is means any.
And it means -: Mm-hmm.
-: we've identified the parties by visual means.
And we've also shown this as an existence
of a communication, 'cause he's lips are moving.
-: True, but the entire...
I mean, yes, granted there's that language in the statute
and I'm not going to deny it,
but to apply it in this situation again,
would be what this- -: I have no problem
if this was a constitutional usual suppression
that I think you'd have much stronger grounds.
But here, I'm just trying
to interpret the statute. -: Right.
And my position is that, the commonwealth's position is that
we have no evidence of an intercepted recording.
That the knowledge,
the information regarding the identity of parties
to this now non-existent
unknown interception of communications
does not require suppression of the video,
'cause of course, if you had two people separately doing it,
you wouldn't suppress the video.
If they had only done video and never done recording,
of course you wouldn't do,
suppressing the video. -: What case are you relying on
for the proposition that video is not suppressed?
-: Oh, well, the first thing I'm relying on
is the statute itself, which has of course, videotape.
Well, the statute itself, it says of course communications.
And then, hold on a second, I'm gonna have to check this,
but I know I cite in my brief a case,
several cases that say video recordings are fine.
They do not violate the wiretap statute.
So, the only question here
is does the worst- -: That's in your brief,
you have a series of cases that in Massachusetts
have held video doesn't violate
-: the wiretap- -: Yes.
-: Okay.
-: Silent video does not violate the wiretap statute.
So, even if it did show the defendant's lips moving,
that's not an interception.
It would be an interesting case
if we brought in a lip reader, then I think you'd come back
into the realm of interception
of communication. -: The cases you rely on,
you're relying right on hide
and sort of dictum in those cases.
You don't have any case that squarely holds that, right?
That video is not covered or is there-
-: No, there is, there is.
I can find it in just-
-: If that were the case,
every traffic camera case you had,
you couldn't introduce it.
Every 7-11 video
you couldn't introduce. -: Right, of course.
Absolutely. (Justice Gaziano chuckles)
We've seen these silent,
the cases in which there's a whole
-: Right. -: collection
of surveillance cameras.
But no, there is case law that explicitly said,
and I cited in my brief, that explicitly says silent video.
So, the only question is whether this language,
the identity of the parties to the communication,
requires suppression in this case,
regardless of whether the commonwealth benefits in any way.
-: And it also says any information,
it doesn't say any communication.
Its says any information. -: No, it says any information
regarding the identity
of the parties -: Identity of the parties.
-: to the communication. -: Yeah. Right.
-: That connects back to communication, but does...
It connects back
to the communication, -: Yes. Thank you.
-: but it's when it's integrated,
when it's the same thing that it's...
I mean, the camera's on,
we're all familiar with this one, we can talk to...
Your camera's on,
the red light's on, it's recording audio and video.
Can we really separate out this?
-: [Justice Wendlandt] Isn't there a mute button?
-: Oh, of course. I don't know-
-: So, though, it's taken at the same time simultaneously,
it's not non-separable?
-: No, it's entirely separable.
You can do it.
The officers testified that he didn't know
whether he could have muted it at the time.
So, there wouldn't have been any question
of a wiretap violation.
But we can certainly mute the tape now. That's easy.
-: But when he does it simultaneously
and we know there's an oral communication
going on between the defendant and the police officer,
and we also know
there's a visual memorialization of that,
can we really separate this out?
It just seems like it cov...
It fits right within the definition of contents then.
-: Well, no, contents
are the actual contents of the communication.
Transcripts are the classic
example. -: But that's not how
it's defined. -: That says identity.
-: But by case laws we've defined
as anything that's derivative.
Right? -: Yeah.
-: So,
you couldn't have someone listen to the illegal tape
and then say, oh, I think this is what they said.
-: Yeah. -: And you can't
have a transcript of it.
It's all derivative of it. -: Right.
-: And here, the video is not derivative of the audio.
It's- -: Yeah, I don't know
if this unitary audiovisual has legal significance,
but I'm just, again, (paper rustles)
I keep, I guess, beating that dead horse,
I'm stuck on the statute
in the language, which is -: Yeah.
-: problematic for you. -: The language is confusing,
'cause you are saying the- -: I don't think
it's confusing, I think it's bad for you.
(judges laughing)
-: I prefer confusing,
your honor. -: Right.
(judges laughing)
-: I see my time is up.
Are there any further questions?
-: I have one,
because I need to go back to the limiting principle here,
'cause I'm still stuck
on what Justice Gaziano asked you.
So, you keep saying that it's assuming
that there's an interception here.
So, you are seemingly arguing exactly what he said,
you are arguing, but you said you weren't.
The visibility of the phone
and that the visibility of the phone
in your view negates any notion of secrecy.
And so, again, how would you limit that?
How would you address a situation
where a person is not paying attention
and somebody just has their phone out
and how can you always interpret that,
that the person is always potentially being recorded?
What's the limiting principle to your world?
-: Well, certainly if it's open,
again, going back to my phone,
certainly if it's out in front of the person like this
or at a concert up like this,
(attendee coughing)
the person is obvious recording.
And that is clear.
That's also the situation in the Counselor O'Neal case
where the recorder simply has a camcorder
perched on his shoulder at a public event.
And it's clear in that case,
and this is why I talk about the actual knowledge standard,
that the counselor was oblivious to the camera.
But that's not a secret recording
when you have it up on your shoulder
or you have it in those positions that I illustrated.
-: Is that inconsistent with your other argument,
your second argument,
which is that video is completely severable,
so maybe it's just a video that's going on.
-: I'm afraid I don't understand
your concern. -: You're saying
if the phone's out, you know you're recording,
right? -: Yeah.
-: But you're also saying in your other argument,
the phone's out, it may be just doing video.
I don't know.
I just find that the two can't be separated out.
-: You're going back to the second point,
the video. -: Yeah.
-: Oh, yeah, I think it can, because you really,
unless you interpret the language of the statute
to an almost persnickety level,
there's just no benefit here.
There's no connection.
Once you eliminate the evidence
that there was an intercepted communication
and you're left with the video,
the video is no different than it would be
if it hadn't recorded sound in the first place.
And to suppress them,
to suppress the video in that circumstances
will not be consistent
with either the purpose of the wiretap statute
or purpose of the Fourth Amendment.
-: Can I ask one final question? Sorry.
So, I'm just looking at 99 P.
-: Paul Mm-hmm.
-: and it says that the person
who's been subject of a wiretap violation may move
to suppress the content of any intercepted communication
or evidence derived there from.
And it seems to me that or evidence derived there from
counters your point about the video a bit,
because it allows the suppression of the contents,
which is a defined term,
which Justice Gaziano took you through,
but then it also has the ability
to suppress the transcripts of somebody else hearing it
or, I dunno, evidence that fruit
of the poisonous tree type kind of evidence.
So, your argument that contents
can't possibly mean all the fruit of the poisonous tree
is it really doesn't fit with the statute,
which says you can suppress contents
and the fruit of the poisonous tree.
-: But again, the fruit of the poisonous tree
is something that you get from that.
If he said, the defendant said,
oh, yeah, I live on St. James Street,
and you went back and you found, aha, there's a guy
with his name who lives at 20 St. James Street,
that's derivative evidence.
That's fruit of the poisonous tree.
You don't have that here.
Here you have something,
two things that are made simultaneously.
Neither one depends on the other.
It could be an audio recording without a video recording.
It could be a video recording without an audio recording.
Here, it happens to be one in the same.
But that doesn't mean you can't separate them out
and say that the video
does not violate the purpose of the statute.
The audio does.
-: [Justice Wendlandt] Okay. Thank you.
-: Thank you very much, your honors.
-: Okay. Attorney Dahlberg.
-: May it please the court,
I'm Nancy Dahlberg on behalf of
(indistinct)
Dew, and we are asking the court to suppress both the audio
and video components
of these unitary audio-video recordings.
I'm happy to answer any questions about the audio.
I will simply say, unless there are questions
that this case does not present
any far-reaching issues regarding the audio.
There was no...
The court will have an opportunity obviously
to look at the videos.
But as the appeals court found,
and I assume as the reason
that the commonwealth never raised this issue
before Judge Ham, is that they don't show anything.
They don't suggest anything
about how the cell phone was displayed.
And that was found by the appeals court who reviewed them.
And I think it'll be clear to this court upon reviewing them
that the issue here is nothing
other than these were secretly made.
There's no evidence to the contrary.
-: Can I ask you
about your statement -: Yes.
-: that this is a unitary recording?
-: So, this- -: Why does that matter?
-: Well, it matters,
because the video is accompanying the audio.
So, the way the Callio app works, at least in this case,
according to the testimony,
it is recording the audio and the video
and you can't turn off one or the other.
So, the police-
-: So, you can't mute the audio?
-: Not when the recording's being made.
I think that, -: No, but when
it's being played.
-: But when it's being played,
I suppose you can always do that.
And there are other problems
that I can get to on the video for that.
So, this is a situation and only a situation
where the video is accompanying the audio.
And it was interesting to me to learn that the state police,
when they promulgated their regulation
concerning covert audio recordings,
defined it as audio that was accompanying,
the video that was accompanying audio.
So, that is how it works.
They're together, they're not being recorded separately.
They're not being recorded at separate times.
And that goes to the definition.
But I don't wanna get too far ahead of myself.
-: Two phones on him,
one recording audio and one recording video.
How would that play out?
It's the same event,
but we often have these drug dealers
with two phones. -: Right.
-: And cops with two phones.
So, how would that work?
-: Well, it's a separate issue
that's not addressed in this case.
The problem, and I don't wanna get too far ahead
of myself if there are questions about the audio.
-: I think we're all very interested
in the video. -: The video.
So, the video, I would go back
to the definition that has already been discussed.
So, though Mr. Dew has the opportunity here
to move for suppression of the contents.
Any information concerning the identity of the parties
to the communications or the existence contents
substance program- -: Does that modify
wire communication though?
-: That would be oral or wire communications,
all of which are implicated in this case.
-: Right. -: But they're all
covered- -: The audio.
When we talk about oral and wire,
we're talking about audio communications, not-
-: The audio, and in this case,
the contents includes the video.
-: Not if it says the contents of an oral-
-: Oral or wire communications.
And in this case,
-: Wire communications- -: the recordings-
-: It's not oral.
So, you're saying the wire communications
is the video portion?
-: No. -: Okay.
-: The unitary recording
covers- -: That's a made up term,
the unitary recording.
That was- -: Well-
-: That's not in the statute-
-: The appeals court, I think it's a very apt term.
It's a recording made of audio
and video at the same time, in the same file.
-: And you're saying that that together
constitutes an oral or wire communication as-
-: Yes, and I think as the appeals court described aptly,
the original recording of the oral communication
then became a wire communication
in the subsequent recorded events.
So- -: But do you think that's,
are you saying that that's what the legislature had in mind,
that oral and wire communications
encompasses both audio and video recordings?
-: Well, what the legislature had in mind
was the ability to suppress the contents.
In this case,
the contents includes the unitary audiovisual file.
-: I'm just having a little trouble with that,
because as I think Justice Gaziano pointed out,
the question is what does contents,
what's the modifier here?
What does contents encompass?
And you're saying your argument
is that it is the unitary audio
and video recording. -: Yes. And that-
-: I'm not sure what the basis for that is,
-: It's the oral- -: because oral
wire communications are audio.
-: Oral and wire communications
are both implicated in this recording.
-: Can you explain that? I'm sorry to interrupt you.
-: No, I think that's
what I'm trying to get. -: So, yes-
-: So, there is an oral communication
between the undercover officer and the defendant?
-: Yes. And it is part of this audiovisual file.
They made, when they-
-: So, there's an oral communication
between the undercover officer and the defendant.
And then, I'm sorry, what is the wire communication?
-: And it is recorded
(Paul sneezes)
-: Excuse me. -: and transmitted
and the transmittal to the-
-: But the communication (attendee coughing)
between the officer
and the defendant is not being made by means of a wire?
No, that is being recorded
on the phone. -: That's separate.
-: There's a recording between officer one
and officer two. -: Right.
-: Then, that's consented to,
because they both know that that's happening.
What I don't understand is how there's these,
I think the appeals court calls it four interceptions, or.
-: So, the initial recording of the oral communications,
which is accompanied with the video
is a secret interception
of these communications made by Mr. Dew.
-: But Mr. Dew is not using any wire
to talk to the undercover cop.
-: Right. So, it's being recorded.
-: Yes. -: And then, at the same time,
it's being transmitted to these other officers,
and it's going to-
-: But Mr. Dew is not doing that.
(judge chuckles) -: No.
But his communications are being intercepted by the police.
-: No, but for it to be a wire communication,
his communication needs to be by means of the wire
and his is just oral or speech.
-: So, what the appeals court explained,
and I think correctly,
is that the oral communications are being recorded.
Mr. Dew's oral communications are being recorded
in violation of the statute, because they were secret
and they were not pursuant to a warrant
or an exception to the statute.
The second step is when they are being transmitted
to the other cell phones, that is a wire communication.
-: Is it? -: I don't...
-: I guess that's my question.
-: The definition. -: That's my question.
Yeah, like how does that fit with the definition?
Is that a communication- -: A wire communication
includes transmissions
made over cellular networks as they describe,
as the definition is made in part through the use
of facilities for the transmission
of communications by the aid of wire, cable,
or other like connection
between the point of origin
and the point of reception. -: Right.
And the point of origin- -: Which has been interpreted,
in Moody, cellular calls are included.
-: That's not my point.
My point is Mr. Dew -: Oh.
-: isn't communicating with anyone over a wire.
-: No, but the recording now
of him is being sent far and wide.
-: That has to do with how many violations
of the wiretap statute. -: Right.
But that's- -: Alls you need is one.
-: Yes. So, I agree. -: Okay, so now,
let's get to the -: Okay, so to the video.
-: video, yeah. (chuckles) -: Video, okay.
So, the suggestion, so this is all recorded.
There's audio and video at the same time.
The identity, his identity is clear on the video.
The existence of the communications is clear on the video.
What the commonwealth would like to suggest
is that the video be altered and presented at trial,
because after all,
the police officer is able to provide live testimony.
So, the suggestion is that this video
would be presented to the jury even though an interception
of violation of the law has occurred.
So, they would be presented to the jury
as though there was no violation,
even though it is evidence
of the violation. -: So, hypothetically,
if Mr. Dew said, that wasn't me,
that was my brother, they got the wrong guy,
they could play the video portion
to identify him as the speaker, correct?
-: They could play the video portion
and say, this is where I had a conversation
with Mr. Dew and this is what he said.
So, of course they benefit from the existence of the video.
And deterrence is an articulated goal of this statute,
deterrence of interference
with privacy rights of individuals by law enforcement.
This is the fact that police in Boston
and Worcester, I mentioned Worcester in there as well.
-: If they had video from a dash cam,
no audio, that wouldn't be a problem at all, would it?
-: Not to my knowledge.
But this accompanies-
-: Yeah, two cell phones, one doing audio, one doing video.
The video would come in.
-: As far as I know,
this case is really- -: You're really
putting a premium on the fact
that they're being done simultaneously.
-: And that's- -: The being done,
the audio is implicated, the video is implicated here,
because it's part of this, -: The same thing.
-: I'm sorry, unitary file that would-
-: Which file? Because- -: Well-
-: Does that work technically that way?
Because I think the video file
would be separate from the audio file
in my understanding. -: Well, so this is being done
simultaneously with the same software on the same phone.
So, it's an audiovisual recording
made at one time with one app
that violates the rights of people who are being recorded.
And the- -: Why can't you take away
the illegal part, the part where there's oral communication,
take that away, 'cause that was illegal,
and what you're left with is the visual part.
-: So, I do wanna go back to my deterrence point on that.
But to go back, so what the court would be suggesting,
or the commonwealth has suggested
is you would take something,
scrub out the part that was illegal,
and then you would have the police officer
using that to his benefit
and saying, this is where we were having this conversation
and presenting it, excuse me,
as something that was allowed when it wasn't,
it was a violation of law.
They're gonna be presenting- -: But that's the question
presented, do you get...
There was a violation audio, do you then,
does the statute require the suppression of the video?
And it seems like you're- -: Yes, because...
-: Because it was made
at the same time? -: Because it shows
it's evidence of a violation.
It is evidence of a violation.
If someone were to cross-examinee the police officer
and say, well, did you do this secretly?
Yes, I did it secretly.
-: It supports the oral stuff
clearly meets all the definitions of the statute
and the video helps establish,
provides further proof of the oral.
Nancy: Exactly. And-
-: And it's inseparable in the sense that it's good proof,
because it's not two separate phones or anything.
It's the exact same thing. -: Yes. And-
-: That's why the appeals court
puts so much emphasis on unitary.
-: But are we reading that -: Absolutely.
-: into the statute?
This inextricably intertwined or unitary
doesn't appear in our case law or the statute, right?
-: I think the definitions are clear, your honor.
As we know, we've said many times the statutes from 1968,
but things have been updated
and at that time, we did not have these iPhones.
So, you could carry around and the police,
using in the way that they did here.
I think the statute clearly encompasses this, but I-
-: You think in 1968, there was an audiovisual?
-: There wasn't the ability to walk around
with an iPhone. -: No,
but there was audiovisual.
So, this unitary concept existed in 1968, right?
-: Right, but undercover police officers were not using this.
They were using some kind of, right,
they didn't have this ability.
They didn't-
They had monitoring devices called KELS.
It's in the statute (Justice Kafker laughing)
where they were just broadcast for officer safety.
But that was clearly
-: I do wanna talk- -: not preserved.
-: I'm sorry.
I do wanna talk about deterrence
a little more before my time runs out,
because it's clear from the testimony in this case,
and as I say this case in Worcester where Judge LoConto
recently granted a whole bunch of motions for a new trial,
that the police have been using Callio
with no thought to the statute.
They have been recording people
in violation of this statute quite a bit widely.
And if the court were to say,
well, we're gonna just scrub this,
we're gonna pretend there wasn't a violation,
we're gonna show this video,
there's no reason for them to stop.
And- -: Well, how helpful
is the video without the audio?
-: Oh, it'd be very helpful.
-: So, they could just start
using the video portion. -: Right.
So just do the video. -: They just video
the transaction. -: They can...
If they don't wanna violate the law,
that's an opportunity they can have.
They can, yes, but-
-: When we say that using the audio
and visual unitary thing is not legal,
I would hope that they would hear that and not do it.
But if they do, they don't get to use the audio.
(judge clears throat)
-: They also subject themselves to criminal liability.
-: Exactly. (Justice Kafker laughing)
-: Well, there is an exception in the statute.
If something is done for officer safety,
it's subject to suppression, but not to liability.
I would only say that in terms of the police
recording audio and video,
the problem is the violation of the statute.
Yes, if they stopped using Callio the way they're doing it,
but one might've thought
that that would've occurred prior to now.
And certainly yes, I would hope that the court
would encourage compliance with the statute,
which has a lot of important goals.
So, we would ask for suppression
of both the audio and video in this case.