-: SJC-13616, Commonwealth versus Dasahn Crowder.
-: Attorney Taylor.
-: Good morning, your Honors.
May it please the Court,
Hannah Taylor on behalf of Dasahn Crowder.
I'd like to focus my argument today on two primary issues.
The first being the one just discussed
about the appropriate remedy
for insufficient evidence of lack of licensure.
And the second, time permitting of course,
would be the denial
of the motion to suppress in this matter.
I'd like to briefly address some of the questions
that were asked just recently.
First addressing Justice Wolohojian's question
about whether this is instructional error
or insufficiency of the evidence.
So I believe that there were both instructional error here
as well as an insufficiency of the evidence claim.
So those are related but two distinct claims.
And the reason
that insufficiency of the evidence comes in
is, as was argued by my sister,
is that the Commonwealth was on notice as of Bruin.
And so it's not just the instructional error
but also the insufficient evidence.
-: I agree with you as to all of that,
except perhaps the last part, which is the notice.
So can we just drill down on that?
I've got Guardado in front of me, Guardado I,
and strictly speaking, the holding of Guardado I,
the pertinent part of Guardado I for these purposes
was the conclusion that the absence of a license
is an essential element of an offense of unlawful possession
under Section 10a
and that chapter 278, Section 7,
which provides that licensure is an affirmative defense
is no longer applicable to a Section 10a charge.
If that is the holding,
you know, I mean, to state the obvious,
that's not said in Bruin, right?
That is not said in Bruin.
So how do we then get to Bruin put everyone on notice,
including this judge, the trial judge,
of something that no one raised,
which is that Chapter 278, Section 7 will no longer apply
to a prosecution under Section 10a?
-: Sure.
Well, as you just indicated,
there was sort of a two-part holding in Guardado I,
the first being that lack of a license
is an essential element and sort of relatedly-
-: And overrules Grouse and- -: Yes, right.
And sort of related to that,
that it could no longer be maintained,
or licensure could no longer be maintained
as an affirmative defense.
-: And then says that the statute
that talks about the defense,
well, 278, Section 7, will no longer apply.
-: Yes, right.
And 278-7, or Gouse, which talked about that,
talked about not only did that statute create
an affirmative defense,
but in so doing, it recognized an accompanying presumption
that any possession is unlawful
unless the defendant raises the affirmative defense.
That's sort of facially inconsistent
with what is stated in Bruin,
which was not directly on point,
but which was that carrying a firearm
outside the home now for the very first time
is not only presumptively legal
but presumptively constitutionally protected,
and so that was enough-
-: But then you have Justice Alito concurring
and pointing out and saying, "We are doing nothing
to disturb a state's ability to have a licensing regime."
-: Yes, and we're not challenging the licensing regime,
which was in this state actually changed post Bruin
to ensure compliance with the Supreme Court's-
-: I mean, you would have a stronger argument
if Bruin outlawed state licensing schemes altogether, right?
In that case, it would be very clear.
-: I suppose, but we're not raising a claim
that the prosecution of this crime period
violated constitutional principles,
but only that because it is ultimately
or in part prosecuting constitutionally protected conduct
that in light of Bruin, it was clear
that the Commonwealth had to present some fact
that would take the conduct being prosecuted
outside the scope of the Second Amendment
because otherwise, essentially, they're prosecuting
and getting convictions
solely on the basis of evidence
that somebody engaged in conduct
that is constitutionally protected,
and that is not-
-: But that takes you back to the instructional error
'cause when you read the instruction,
the old instruction basically creates
the opposite regime that the Supreme Court wanted
'cause it doesn't deal with licensing at all, right?
It just says if you carry a gun
and you carry it outside of the home,
you're guilty essentially.
-: Yeah, that is correct, your Honor.
The difference is, I think as was asked earlier,
is whose error is it?
So the instructional error
is about whether the court made an error,
or the trial court made an error.
And this court has actually previously said
in Commonwealth versus Bookman that the answer was yes
even as to,
not even just to cases such as Crowder's tried post Bruin,
but to cases tried pre Bruin.
Bookman was tried pre Bruin
and that was still, this court still held
that it was error not to instruct in light of Bruin
that licensure was an essential element.
-: [Justice Wolohojian] Right,
so, but that would just get you substantial risk
because no one objected to that error.
-: Yes, because that was pre Bruin.
But post Bruin-
-: But even post Bruin,
you'd have an unpreserved instructional error.
-: As to the court's error.
The Commonwealth's error was not an instructional error.
The Commonwealth's error was failure to put forth evidence
of lack of licensure.
And yes, that was unpreserved in this case,
but it's well established in this jurisdiction
that insufficiency of the evidence is a sufficiently-
-: Substantial risk,
would result in substantial,
again, that would get you a new trial.
-: Except that insufficiency
because it essentially is a judgment
that acquittal should have issued
double jeopardy necessarily attaches
to insufficiency of the evidence claims and-
-: But the US Supreme Court
hasn't directly resolved the issue.
We've intuited it and we've made it,
but at the time this case is tried,
we don't have, again, an exact Supreme Court case
dealing with this
and we're not sure exactly
how they're gonna deal with it even now.
We don't know how they're gonna,
'cause Justice Alito's point,
you can have a licensing scheme.
They may not agree with us on that, right?
-: If I could ask a clarifying question,
when you're saying they weren't clear about this issue,
are you talking about the issue of the effect
of a claim insufficiency- -: It's the burden of proof.
How you resolve the licensing issue,
who has to put in evidence.
Until Guardado,
and again, Guardado is like we're acting
like a federal circuit court.
We're just discerning
what we think the Supreme Court's gonna do.
But the Supreme Court hasn't conclusively
resolved this thing.
So at the time this case is tried, we have neither Guardado
nor the US Supreme Court having definitively resolved this.
Right?
So we're sort of in,
I'm trying to analogize
to his federal court cases pre-decision.
In a certain way, this is a pre-decision case.
-: So a couple points on that.
The first, as I noted in my reply brief,
the federal cases cited by the Commonwealth
are actually not analogous to this situation,
but are analogous to Guardado
where the Supreme Court case
ultimately resulting in a change in the circuit law
in those cases
occurred after the defendant's trial.
So that's different from the situation here
where the Supreme Court case triggering a change
in local law came before. -: But our case
doesn't come down until after this.
Guardado post dates this trial.
Hannah: Yes.
-: And so as a matter of interpretive law,
we're interpreting Bruin after this case to say,
"This old methodology doesn't work."
But Bruin hasn't, we seem to be in a betwixt and between.
The US Supreme Court hasn't directly addressed this issue
and we don't directly address it until Guardado.
-: That is true, but the case of Amirault says
that we do not need a decision directly on point
to put a party fairly on notice of a change in the law.
It's just, as I-
-: What if there's a decision directly on point,
in fact, decades of that decision directly on point
the other way?
Is that Amirault?
Justice Kafker: In a statute.
-: So I don't know that the,
well, a state statute that is unconstitutional
has to yield under the supremacy clause
to federal jurisprudence
and federal constitutional principles.
As to the 40 years plus of precedent,
I don't know that it's as clear
as the Commonwealth would suggest.
The relevant point for examining
whether that precedent is analogous to the situation here
would be the issuance of Heller,
which was the first United States Supreme Court case
to say that there's any Second Amendment right
for individual possession of a firearm.
And, for example, in Loadholt I,
the issue there,
the claim raised was not about presumptions.
It was just about the fact of prosecution
under the Second Amendment,
and this court rejected that claim
because at the time, it was pre pre-McDonald
and so they said that there was no application
of the Second Amendment to the states.
Once the Supreme Court issued their opinion in McDonald
and vacated and remanded that decision,
Loadholt II, as this court recognized in Guardado I,
did not actually address the defendant's claim
that our affirmative defense framework
created an unconstitutional presumption
under the Second Amendment
because the defendant had not raised that at trial
or in his original brief.
Similarly, Powell raised a similar claim as in Loadholt I
about the fact of prosecution in the first instance,
but not about the presumptions under the Second Amendment.
The insufficiency claim raised there
was about the due process clause, not the Second Amendment.
Similarly in Humphreys,
which was cited too by the Commonwealth,
that wasn't a holding
that the affirmative defense framework was constitutional,
but it was that the framework could not be applied
to a defendant who was being prosecuted
on a co-venture theory
where it was the co-defendant who had the gun.
The case of Allen, similarly, was about a murder
and carrying a firearm without a license
and ammunition outside of the home.
So that was sort of
in a similarly situated position to Gouse
and Heller and McDonald simply did not apply.
And similarly in Morris.
That was also about license to carry,
which would be outside the home.
So I don't know that we have a case directly on point
that says that in light of Heller,
it's still okay to put as an affirmative defense,
to put licensure as an affirmative defense
on the defendant.
And in fact- -: I thought that's what
the holding of Gouse was.
Did I misread that?
-: The holding in Gouse said
that the Second Amendment was not implicated
'cause that also dealt with a carrying,
a case of carrying a firearm outside the home
and Heller only established a right to carry
or to possess inside the home
and so therefore the Second Amendment
was simply not implicated at all.
And they, in fact, pointed,
as this court did in Guardado I,
to a D.C. Court of Appeals case
of Harrington versus United States,
which was directly on point as to possession in the home
and the effect of Heller on presumptions in such cases.
And they noted that the Harrington court held
that in light of Heller,
they could not put it on the defendant
as an affirmative defense
to raise registration of ammunition
that was possessed in the home,
but instead registration had to be proven by the government
as an essential element of the offense charged.
And so with that language, the Gouse court foreshadowed
what the import to a similar presumption would be
in the case of carrying outside the home.
And then Bruin came in
and in fact held
actually now there is a Second Amendment right
to carry outside the home.
And so if you look at, I do think Bruin alone is enough
to put the Commonwealth on notice,
at least that what they were now doing was prosecuting-
-: Have the federal courts,
have any of the federal circuit courts
opined on Bruin on this production issue?
-: Not that I'm aware of.
I did look for that prior to this morning.
-: So they haven't had,
they haven't had to confront this issue
on the federal side that we're aware of.
Hannah: I don't wanna make an absolute,
but not that I'm aware. -: No, no.
To the best of your,
your research hasn't indicated
that they've confronted this problem yet?
Hannah: Not that I'm aware of.
Justice Gaziano: Can you address
the search and seizure issue?
-: Yes, if I could just make
one quick point. -: Sure.
-: Just quickly as to a question
of whether we have ever applied
insufficiency of the evidence framework
to implicate double jeopardy
and therefore require,
or to prohibit retrial
where an element of the offense has been changed or added
after a defendant's trial, we have.
That was the case of Commonwealth versus Ashford
and the cite is 486 Mass. 450.
In that case, the defendant was convicted
of possessing a loaded firearm after his trial.
In the case of Brown, 479 Mass. 600,
interpreted the statute of 269 10n
to require that to prosecute someone for possession
of a loaded firearm- -: That was a preexisting,
that was a preexisting case though, right, Brown was?
-: Brown was not a preexisting case as to Ashford
because Ashford was a case that was up on collateral review.
And in that case, we said that,
or this court said that the new rule
or the new essential element requiring knowledge
would be applied retroactively on collateral review
to Ashford's case
and therefore, and that was in part because the Brown ruling
was foreshadowed by other cases
dealing with a different crime of possession of ammunition.
And so under that framework,
there was insufficient evidence
at Ashford's much earlier trial
and his conviction was vacated
and the charge was dismissed with prejudice.
So turning, as your Honor would like,
to the motion to suppress.
My first argument is that the pat frisk was impermissible
because the trooper lacked reasonable suspicion
that Crowder was both armed and dangerous and-
-: Is someone that, there's a traffic stop,
it's four V one,
and he sees this blading, which is problematic,
but he also sees a pat of the same area.
He suspects it's a gun.
In your position, it's unreasonable to pat frisk them?
-: So the testimony was not actually
that he suspected it was a gun.
The only testimony on what he inferred from that conduct
was that he thought that the defendant was attempting
to, in his words, secrete or conceal something.
He used the word something.
He did not- -: He's supposed to guess
what the something is?
-: I'm sorry?
-: He's supposed to just posit what the something is?
He can't pat frisk to find out?
-: Well, there's significant case law saying
that efforts to conceal something
are not enough to supply reasonable suspicion.
They certainly contribute to reasonable suspicion,
but they can't on their own.
And as this court suggested admittedly in dissent
that the armed and dangerous standard for a pat frisk
as opposed to just sort of reasonable suspicion
of general criminal activity,
which would support a stop,
requires facts specific and particularized
to that defendant.
And then kind of relatedly,
they say that attempts to conceal
simply on their own are not enough.
And so where that is the only fact
particularized and individualized to this defendant,
that wasn't enough to get to reasonable suspicion,
particularly where he didn't specify
that he had any suspicion that,
or a specific suspicion
that Crowder was possessing a firearm.
He didn't see any weapons.
Nobody had done anything to suggest dangerousness,
which I should also mention
that the standard is not just armed,
and because someone is armed, they're inherently dangerous,
but two separate but related analyses.
-: Well, what do we do with the fact that it's four on one
and it's at night and it's a concealed weapon?
Doesn't that affect dangerousness?
-: It does not affect dangerousness of Mr. Crowder.
The fact that-
-: Well, he's the one that's armed and concealing it.
-: So I think the sort of general circumstances
of the fact that it was late at night
and that there were four people
does go to sort of generalized safety concerns,
which would, I think, get you to a stop.
But he's already been stopped
because the officer was lawfully affecting a traffic stop
but not related to anything that Crowder had done.
It was related solely
to the speeding of the driver of the car
who was not my client.
And then sort of it became apparent during the stop
that the car was also unregistered.
But, again, that didn't have anything to do with my client.
-: So if there is reasonable suspicion
that he's armed and dangerous, enough for the pat frisk,
what about the seizure of the firearm
once he says it's a Smith & Wesson?
-: So I will concede that if there was reasonable suspicion,
not just that he was armed, but that he was dangerous,
then yes, the officer would've been permitted
to temporarily detain the weapon.
But unless he also had probable cause
that the weapon was possessed unlawfully, which he did not,
again, there's a lot of case law
talking about how efforts to conceal are not enough
to get to that probable cause standard,
then he could not have also,
he could not have seized it as evidence of a crime.
There's sort of two different types of seizures, right?
So he can seize it temporarily for safety purposes,
but he can't seize it as evidence of a crime.
And the totality of the circumstances of what happened here
I think suggests that the seizure
was not just for safety purposes,
but primarily was that probable cause seizure
as evidence of a crime,
particularly because he immediately arrested my client
upon seizing that weapon
without even asking the question first
whether he had a valid license to carry.
And so, you know, what they could have done, I think,
is answered by a civil case
in the Federal District Court of Massachusetts of Schubert.
And in that case, I believe it actually was an attorney
who had a concealed firearm
and he was walking towards
the Springfield District Courthouse.
And so an officer saw the firearm,
stopped him, disarmed him,
then let him go on his way into the courthouse.
He did not proceed to arrest him.
And I think, and that was a pre-Bruin case,
but I think-
-: [Justice Wendlandt] He gave the firearm back?
-: He did not give the firearm back.
So it was a detention of the weapon,
but not sort of a concurrent detention-
-: Of the person -: Or a concurrent arrest
of the person.
And I believe in that case, the petitioner was permitted
to pick up the firearm at the station at a later date
if he were able to present, you know, valid,
or prove licensure, which he was, as far as I know.
Justice Kafker: I think your time's up, Counsel.
-: Okay. Yes. -: Thank you.
-: I'll rest on my brief. Thank you.
-: Good afternoon, your Honors.
Assistant District Attorney Jamie Michael Charles
from Middlesex on behalf of the Commonwealth.
Again, still with me is ADA Timothy Ferriter.
Just a couple of rebuttal points
with respect to the Second Amendment issue
and then I'll address the suppression questions.
With respect to the Harrington case
that my sister referenced,
that was a 2010 decision of the D.C. circuit,
which I would suggest means
that the SJC was presumably aware of it in 2011
when in the Powell case they declined
to revisit 278, Section 7,
both as to 10a and 10h prosecutions.
So, again, in terms of the water being muddied
based on the past responses of this court
to the Heller and McDonald decision,
I would say that that furthers the Commonwealth's argument.
I think Justice Kafker,
it's a little bit ashamed to admit it,
but made my argument better than I was making it
in sort of asserting that this is akin
to a pre change in the law case
'cause in all those federal circuit cases
that the Commonwealth cited to you in its brief,
those were circumstances
where the United States Supreme Court case on point
was a direct addressing of a criminal statute
that the defendant was charged with violating
and changed the standard of proof
or the articulation of an element in those cases.
Because Bruin was not that, I would submit to the court
that you can look to those cases as analogous
because really it was Guardado I that interpreted that case
and clarified prior controlling precedent of this court.
-: Can I ask you to address then,
she says Amirault says
we don't need a case directly on point.
How do we deal with that?
Jamie: Mm-hm.
So I'm not specifically aware with the particular portion
of that decision
that she's citing. -: It's a long decision.
-: I do think there is a sliding scale.
It's not just you're aware or you're not aware.
I think if you have the, I'll just say this,
the Commonwealth would submit that here,
these broad sweeping pronouncements
in a decision of the United States Supreme Court
that was not remotely dealing with a criminal statute,
that was not dealing
with the burden of proof for production,
that was not dealing with a statute
like we have in Massachusetts like 278, Section 7,
didn't come close
to putting the Commonwealth sufficiently on notice
such that it should have known it had to do this thing
that is now being alleged it should have done.
The last thing I'd like to note,
and I didn't get to this in my original argument,
is just from a policy perspective.
When you look at,
again, when you look at Vasquez and you look at Runyon
and you look at the pronouncement that this court has made
about what lower courts should do
when there is, say, like we have here,
a decision from a higher court
that may ultimately be binding,
but that is not directly on point,
parties are advised and lower courts are advised
to follow the precedent of the court of their jurisdiction
unless and until that precedent is overruled.
And I think if this court that what was said in Bruin
was so clear that the Commonwealth
should have just immediately known it,
then we're essentially encouraging trial judges
to take matters into their own hands,
where in a situation where there may be binding,
controlling, direct precedent from this court
on point for decades,
you're gonna have 50 different trial judges
interpreting that 50 different ways
in light of a vague Supreme Court pronouncement
that's not directly on point
and that's gonna lead to more appeals and more litigation.
We want our trial courts
to be able to follow clear guidance,
and when they don't have that on a federal question
from the United States Supreme Court,
it makes sense that they should continue
to follow the controlling precedent of this court
and uniformly apply the law.
-: [Justice Wendlandt] Well, they could reserve and report.
-: Without question, under the rules of criminal procedure-
-: That might be actually a better way of doing it
as opposed to just saying,
"Well, until the SJC tells me otherwise,
I'm just gonna violate the second amendment
of this particular defendant."
-: But again, here, recognizing this is not in any way meant
to be a controlling point,
anecdotally, no judge here did that
in this 14-month intervening period, plus,
you know, it was not clear enough to anyone
that this is what Bruin was saying
that any judge felt compelled to do that.
(Jamie speaks indistinctly) -: Right, I would suggest
that that's your strongest point
as opposed to the policy of encouraging judges
to continue to violate- -: Understood, your Honor.
-: Could you- -: Constitutional rights.
-: Sorry, could you address the motion to suppress?
Jamie: Yes.
-: And specifically, what established reasonable suspicion
that this defendant was armed and dangerous?
-: Yes, so the Commonwealth's position
is that here it was the combination of the blading,
which I would submit this trooper did explain what he meant.
So consistent with this court's instruction in prior cases
that the term should just not be used in a vacuum,
this officer did explain what he meant by that,
turning the body to hide something.
It was the combination of the blading
and also what he specifically testified to,
I believe it was at pages six and seven
of the transcript, of guarding,
which is this idea of patting- -: Patting his pocket.
-: Which I would submit is essentially
the functional equivalent of these retention checks.
-: So that gets you to maybe contraband,
which could be, you know, arms or drugs
or something contraband.
You think that's enough, those two things together,
to get you to armed?
-: Certainly on these facts, I do believe they are
because this trooper testified
that he was specifically trained
to believe that those are actions
that are consistent with the,
well, my sister is right
that ultimately he said he thought he had an object.
If you read the transcript
and you understand the context
in which the motion is happening,
his testimony was that these are things
that he has been trained to understand
are indications that someone is carrying a weapon.
So he specifically tied these terms in his training
regarding these terms to the existence of a weapon.
-: Well, then the standard is reasonable suspicion,
not certainty, right?
So if he thought 50/50 it's contraband and gun-
Jamie: Correct.
-: That gets you to reasonable suspicion.
-: And I do wanna make a key point.
The Commonwealth made it in its brief,
or ADA Ferriter made it in his brief,
but I'll make it here.
My sister is relying on cases,
when you look at DePeiza, Garner, Resende, Matta,
those are cases
that talk about reasonable suspicion for a stop.
And the Commonwealth does not dispute
that the mere possession of a weapon
is enough to stop someone
because yes, you do have to establish
that that possession is unlawful.
So all of those cases are assessing reasonable suspicion
in the context of what beyond the mere fact
that someone is armed
established that they were unlawfully armed.
We're in a different posture in this case.
There's no dispute that the stop was appropriate.
There's no dispute that the exit order was appropriate.
So now it's not is he unlawfully possessing anything?
If someone's lawfully possessing a firearm,
Terry and our precedent here in the Commonwealth,
I would submit authorize a law enforcement officer
in the context of an appropriate Terry stop
to disarm someone not only for their safety
but for the safety of the individuals
with whom they're dealing.
If someone is armed
while a law enforcement officer is dealing with them,
that's gonna cause them to react differently
to movements or mannerisms
that could put those people in jeopardy
if the officer responds in kind
because they believe they are armed.
-: Okay, so what I hear you saying
is that if there's reasonable suspicion
in the context of a lawful stop and exit order,
that the person is armed, that's enough.
Jamie: Yes.
-: That doesn't need the end dangerous.
The armed satisfies both.
-: I think here it's sort of an irrelevant additional point
because if you have a belief
that someone has a firearm on them,
whether it is a lawfully owned firearm
or an illegally possessed firearm,
I think you would be hard pressed
to find anyone willing to say
that that person is not dangerous.
Justice Gaziano: Is it in the context
of the stop four V one or?
-: I do think that the four V one,
I disagree with my sister
that the four V one is completely irrelevant.
I do agree that it's much less relevant
than the specific observations of the officer
that would establish
that this individual is armed and dangerous.
-: But that gets you the,
that amps up the dangerousness of him being armed.
-: Yes, I would agree with that.
Stop at night on the side of the road,
outnumbered four V one.
This is not a situation,
as my sister attempts to distinguish in her brief,
where we're talking about like a cab driver
and two completely unrelated people.
Presumably these four people are operating
a private personal vehicle
and have some association with one another
and so it is-
-: But the Commonwealth's position,
as I heard you articulate,
was that just being armed is enough for the pat frisk.
So the end dangerousness is redundant.
-: The Commonwealth has not seen any discussion
at length in our case law
that would suggest
that this is a completely divorced concept from armed.
I can see- -: Well, not divorced,
but is it different?
Is there any added value to and dangerous?
Is it when somebody is armed, they are per se dangerous?
Is that your position?
-: That essentially would be the Commonwealth's position
and I haven't seen anything in the case law
that would lead me to a contrary conclusion.
Also, just to put a bow on the point
regarding this allegation
that Bruin changed things regarding our Terry case law
and our reasonable suspicion stop case law,
someone being armed,
whether they're lawfully armed or unlawfully armed,
is completely beside the point
to the question of the reason why we authorize pat frisk
and we authorize police officers
to take weapons away from individuals
who they believe to be armed
when they're interacting with them in these contexts.
So just to play out the analogy,
this court in Canjura said
that switchblades are no longer dangerous weapons
that can be prosecuted.
But if I'm an officer on the street
and I'm interacting with someone
and I have reasonable suspicion
to believe they're armed with a switchblade,
I can still take that weapon from them.
It's still a dangerous weapon
that they can use to harm me or others,
and I'm not required
just because they're lawfully in possession of it
to allow them to maintain it.
Justice Gaziano: Same if he has a baseball bat
in the truck.
-: Yes. -: Right.
It's anything that could harm the police officer or others.
-: That's correct.
And I mean, anecdotally I would suggest
that someone who is trained to possess a firearm
who has gone through the necessary steps to get trained
to be lawfully in possession of a firearm
is arguably a greater danger
if they elect to use that firearm
than someone who has no training.
So, I mean, the argument can be played out.
And just to address my sister's point
regarding why the weapon was seized,
I'll preliminarily note that this hearing,
this suppression hearing,
was almost entirely focused
on what happened up to the time of the seizure.
So there really was nothing raised below
about how long the weapon could be seized
after it was seized.
So this wasn't a question below
where the testimony was really fleshed out
about why he seized the weapon.
But again, once an officer has that weapon,
he's allowed to maintain it until the end of the stop.
Now, here there's a separate question
about whether the question about licensure was appropriate
and I'll just rely on what the Commonwealth said
in its brief there
'cause that wasn't admitted at trial
and this defendant is getting a new trial.
But this idea that you would have to give the weapon back
or that you couldn't explore criminality further
once you have it,
I don't think there's any legs to that suggestion.
And as this, well, not as this court,
as the appeals court,
and I think this court actually has said,
you know, the defendant's not a suppressible fruit.
So once the officer has the firearm,
even if he improperly asked him
about whether he was licensed or not,
he could still confirm that in other ways
and the defendant can still be prosecuted
for possessing that weapon
if we introduce evidence of, say, his age,
here he was 18,
or (indistinct) witnesses
that establish the lack of licensure,
assuming this court ultimately affirms those
as an appropriate way to do it,
which I understand is still somewhat in limbo.
-: So can I just back up for one second?
Am I correct in my understanding from your brief
on the Miranda issue
that the Commonwealth is not conceding
that it would not attempt
to introduce the statement at a future trial
if there is one?
-: I'm not the trial ADA.
It was not admitted in the first trial,
and I think here this defendant was 18
at the time that this gun was found on him
so statutorily he could not possess a firearm.
So I'd be shocked if the trial ADA
would create an appellate issue,
another appellate issue,
by admitting that at a second trial
and we can independently establish
his lack of licensure based on his age
and also the fact that he didn't have a,
could not have a license to carry firearms.
So, I mean, I guess I would happily concede
that we'll not admit it,
it was not admitted at the first trial,
and I wouldn't see any tactical advantage
to admitting it in the second trial
where we have completely independent,
clearly untainted ways
of establishing that he couldn't lawfully possess a firearm.
Justice Dewar: Thank you.
-: If there are no further questions,
the Commonwealth will rest on its brief
and ask that it be allowed to retry Mr. Crowder
and that this court affirm
the denial of the motion to suppress.