-: SJC-13635, Commonwealth versus Manuel Diaz.
-: Mr. Warren.
-: Good morning
and may it please the Court,
John Warren on behalf of Manuel Diaz.
There was no valid reason for the stop of Mr. Diaz,
only an invalid reason, he was stopped because of his race.
Both of the constitutional violations in this case
required suppression of the drugs.
First, as for Article 14,
attenuation factors one and three
indisputably favored Mr. Diaz.
And while there was an intervening event,
Mr. Diaz's flight was directly.
-: You concede that the exceptions
to exclusionary rule apply?
John Warren: Could you say that again, Your Honor?
-: That the exceptions to the exclusionary rule apply
in equal protection.
-: Sure, Your Honor.
My argument with respect to the equal protection
is that attenuation is gonna apply differently.
-: Right. -: And would You Honor.
Justice Gaziano: When we go through the factors, right?
Please. -: Correct, Your Honor.
And so turning to equal protection,
I would suggest the case is even stronger,
and that this is the case to put into action
what Chief Justice Gants said, concurring in Long,
which is that the prohibition against racial profiling
must be given teeth.
So turning to Your Honor's point about
how the case is gonna look under equal protection,
I think there's three things I'd like to highlight
in this case about how the factors would apply differently.
With respect to factor three,
not only is racial profiling incredibly flagrant,
but I'd ask the Court to look
to the purposes of racial profiling,
one of which is to do just this.
It's to look for contraband based on improper stereotypes
about the color of someone's skin.
-: Can I ask you on flagrancy,
when we look at equal protection,
because it differs of course
from search and seizure law,
as we've said in Dilworth, and other cases, and Long,
one way to violate equal protection
is to run a license plate,
where the driver's completely unaware
that that happened, right?
That's a violation of equal protection?
John Warren: Correct.
-: Is that an example of,
where the flagrancy of unlawful conduct
is less than that of a stop, a physical stop of a person?
-: Perhaps, I would say Your Honor that.
Justice Gaziano: Shouldn't we look at the.
-: Racially motivated police conduct
we're gonna say is. -: Right, no.
Right, you get.
I just wonder if it's a self-fulfilling prophecy
if you say the third part of attenuation
because it's a equal protection violation
means it leads to exclusion.
What I'm asking you about is,
if we break down the equal protection violations to stops
and physical interactions with people
versus running a license plate on the street corner,
is that a way to judge flagrancy?
-: Sure, Your Honor.
I think the fact that someone's
physically being stopped,
forced to, their privacy interests are being invaded,
would make it more flagrant as we have in this case.
And so I would agree with Your Honor, yes.
You should look to that and.
-: And it also has to do with
the quantum of the police misconduct
in that if someone, right?
That's the other part of flagrancy, correct?
-: Correct, Your Honor.
And, so then going beyond factor three to
a case where there's intervening conduct,
in particular, flight,
what I would suggest is that
flight is even more interconnected to the illegal stop.
It's more directly related to the illegal stop
when it involves racial profiling,
based on this court's precedent in Warren and Evelyn.
-: Don't we have, on attenuation,
an issue where there are a bunch of cases,
and I haven't done a deep dive on it,
but I know there are a lot of cases
where the person just flees, right?
Either they run away or they run,
and there's a line of cases
that aren't good for you on that.
-: Well, Your Honor,
the flight on foot cases are very good for me.
-: I meant in vehicle where they, you know,
in the New Jersey case in the footnotes speaks of that.
-: So Your Honor, the flight in vehicle cases,
so first of all,
I would suggest that the question isn't about how,
whether the conduct,
the intervening conduct was appropriate.
It's about the connection between the intervening conduct
and the police illegality.
Here Mr. Diaz was
fleeing direct. -: Can I just stop,
stop doing this?
I just wanna make sure I understand it.
So if the intervening conduct here,
the specific intervening conduct,
he drives off like a maniac,
they can prosecute him for that separate,
they could have brought a criminal charge on that, right?
John Warren: Correct, he can be arrested and charged.
-: Okay so that. -: The question is,
is whether the illegality,
whether there's attenuation from that preliminary illegality
and so that's where.
-: No, I just wanna make sure I understand
'cause the thing that cuts against you
is his flight is dangerous
and has some criminal elements.
So he's not prosecuted for it.
I understand that,
but I just wanna make sure
when I understand conceptually how this works,
when his intervening conduct,
if it constitutes something criminal,
he's not protected
from criminal prosecution for that, right?
John Warren: Correct, Your Honor.
-: Okay. -: Correct.
-: I just wanna make sure I get that.
-: So he could be arrested
and charged with that intervening conduct.
But the question here is one of attenuation
and so when you look at this court's precedent,
Borges, Martin and King,
I would suggest the question is the relationship in duration
and in nature between the intervening conduct
and that police illegality.
Here, Mr. Diaz was. -: So, can I.
May I stop you there please?
I think
attenuation is evaluated from a point A to a point B.
And point A is the initial police conduct.
And point B is what?
Because I think point B is actually
the conduct that results in the
evidence you're seeking to suppress.
John Warren: Point B, right?
-: Right? -: I think under Long
-: So in this the case -: it's the discovery.
-: that's right.
It's the discovery. -: Right.
And. -: So in this case,
because I think this is not something that was really,
you didn't really tie to that in your brief.
So here we've got the stop
and then we've got two point Bs I believe,
one is the inventory search of the car,
which you don't challenge.
And one is the discovery at some subsequent point,
which I don't believe the record tells us when exactly
of the drugs in the woods.
But it's not immediately after all this
because it's done by other officers
and I think after a search for your client,
which was fruitless.
So I think those are the point A and the point Bs.
Am I missing something there?
John Warren: No, I would agree with Your Honor.
And the. -: Okay, so then,
isn't there a lot of stuff that happens
between point A and point B?
And why are those not taken into account
in determining whether there has been attenuation?
-: So first of all, Your Honor,
and I did raise this in my brief,
is the Commonwealth did not
present the details of how that cocaine was found.
-: [Justice Wolohojian] We know some things about it.
-: We know some things about it,
but we don't know exactly when.
-: We know it was after your client abandoned them.
-: Sure it was after he went into the woods,
which was 36 seconds after he started driving off.
We don't know when exactly it was found,
which officer found it,
how they found it, where it was found.
-: [Justice Wolohojian] All we know is that it was later.
-: And it's the Commonwealth's burden to prove attenuation.
Not having those factors, Your Honor,
as I argued in my brief,
the Commonwealth didn't meet its burden.
And this court could -: Okay.
-: stop right there. -: But we do know,
but we do know,
well I don't agree with you that we can just stop there
because we do know it's after your client drove off,
drove recklessly, crashed his car, abandoned the car,
ran into the woods and abandoned the drugs.
Now, that's some number of facts.
And I, at least in our intervene, in our attenuation cases,
haven't seen anything where we said
with that constellation of facts, this is not attenuated.
-: So first of all,
our cases haven't addressed racial profiling.
Our cases also haven't addressed an Article 14 violation
where there was absolutely no justification for the stop
and where the officer wasn't credible.
But even putting those issues aside, when you turn to.
-: But how would those, I mean analytically,
how does that connect to
whether or not the point A is attenuated from the point B?
-: Your Honor, because of the three factor test
and none of the factors are determinative
and factor three, which is flagrancy,
has been deemed the most important factor.
-: But wouldn't flagrancy also come to,
certainly comes to play in the Article 14 situation, right?
So if you had, getting back to my earlier question,
if you had a violation of equal protection
where someone runs a license plate
and the person's unawares,
versus an Article 14 violation of a strip search, right?
I think the flagrancy
and the harm to the defendant is quite apparent more so
in the Article 14 violation, correct?
-: Correct.
And I would also say it's not just flagrancy
in that third factor, it's also purpose.
And here it's an unusual case
and it's beneficial for Mr. Diaz
because the judge didn't say this was a valid hunch,
but wasn't enough.
There was no basis for this stop
because the officer wasn't credible.
-: No, you've got the best factual findings
you'll probably ever get in an equal protection case.
John Warren: The best I've ever gotten, Your Honor.
-: Right.
-: Your Honor, I think,
but picking up on what Justice Wolohojian was saying
and going to what I think is helpful
to look at the appeals court decisions,
I would suggest as a continuum of vehicular flight cases.
This court hasn't dealt with vehicular flight,
but the appeals court has,
and I would suggest Mr. Diaz's case
is way over here in favor of suppression.
Then there's O'Laughlin,
which is a defendant speeding off from officers
in a parking garage.
They have to blockade the exit.
He then speeds to the top of the garage
and throws a jacket full of drugs
over the parking garage and runs away.
The drugs were suppressed in that case.
-: Where do you line up in the circuit courts,
in the federal circuit courts on vehicle flight cases?
-: So, Your Honor, and with respect to the federal cases,
I think they are more all over the place, Your Honor.
I think in this case,
the limiting principles when you look at the federal cases
to keep in mind is, this is 36 seconds of flight.
And we know under Borges,
we need to look at the duration of the intervening act.
36 seconds is extremely brief.
I haven't seen a federal case like that.
Article 14, we apply that more strictly
than federal courts would.
Fourth Amendment.
None of the federal cases are dealing with equal protection
where the flagrancy is extreme.
None of the federal cases that I'm aware of.
-: So if the person had gotten away
and they stopped him three hours later,
that would play against your client.
-: Exactly, Your Honor, exactly.
And I think when you look at the key cases,
Borges and Martin, this court's intervening act precedent.
It's about is the conduct directly related
to the illegality?
Here it is.
He's fleeing from the illegal stop.
I'm--
-: But he's not,
he's going way overboard though, you know?
He driving off in a dangerous way.
I can't remember, he crashes, right, quickly
and he runs away after that.
It's not like he's,
like in Martin where he's slapping away the officer's hand.
You know, this is like, does that matter?
The flagrancy of his reaction.
-: So, Your Honor, I don't think it's determinative.
And I think going back to the appeals court cases,
because I do think that's helpful.
We talked about O'Laughlin
but there's also Alston,
which was the defendant drives away for two miles
over a span of five minutes, nearly sideswipes another car.
They have to use a mechanism in the road
to deflate his tires to get him to stop.
And the judge says that's suppression.
And I think this court could look at this case,
Alston and O'Laughlin and contrast that with Coleman.
Coleman was miles and miles of police chase,
the defendant
multiple times is crossing 50 feet across the median,
going into traffic on the opposite direction.
-: But why does that matter how successful a fleer he was?
-: It matters because, Your Honor,
it goes to the test in Borges,
which is the relationship in time
and in nature to the police illegality.
And so when you look at Coleman,
you might say
it started off as something that was very connected.
Had it lasted a couple minutes.
-: So we look at New Jersey cases
'cause I think us and New Jersey are alone
in the equal protection jurisprudence.
And in that Scott case, the footnote five says
that the attenuation doctrine,
it echoes what Justice Kafker said
about the public policy component of attenuation
in vehicle flight says that it,
"There's a need to deter
private individuals from engaging in dangerous conduct,
such as fighting or fleeing the police
after a constitutional violation."
That's the public policy
concern that cuts against your position
recognized by the New Jersey court?
-: I would agree with that, Your Honor.
And that's why I'm not asking for a per se rule
that all vehicular flight is going to
establish attenuation or frankly not establish attenuation.
I think it needs to be a fact by fact analysis.
And I think,
speaking about deterrence and incentivizing proper conduct,
we can't have a scenario
where there's a per se rule about vehicular flight
where police can stop anybody they want based,
not only for no reason,
but for their race, the color of their skin,
and then if that person drives off,
they can seize whatever evidence they want.
We can't have that as
a per se rule. -: Do we have any cases
where the three factor test was used
on the intervening event was a new crime?
-: Yes, that's Martin.
And in fact, Martin goes beyond this case
because Martin, when he pushed the officer's hand,
who was attempting to pat frisk him,
not only was that criminal conduct on the face,
but he in fact was charged
with assault and battery on a police officer.
And this court, nevertheless suppressed the drugs,
the evidence, I think it was a gun later in discovery.
-: Written the appeals court case that got reversed,
I remember it well,
but 'cause it was very odd
just because of the question that Justice Wolohojian raised,
which is, it was a new crime.
-: It was a new crime and that's not enough.
And I think when you look at Borges,
-: [Justice Wolohojian] Well, it may be enough.
-: It may be enough, but it's not enough per se.
And when you look at Borges, the facts are
he's being arrested, he actually struggles with the officers
and attempts to get away from them.
But the Borges, discord in Borges
distinguished the case from King
because although he was struggling with officers,
again, that's not appropriate conduct,
that's not the way anybody should respond to being arrested,
but that's not the question.
The question's not the appropriateness.
It's-- -: But
because of the racial profiling,
the government gets its operating to endanger case,
but not its trafficking case.
-: Excuse me, I don't understand.
-: That was my. -: Oh, exactly.
-: That's exactly my initial. -: Correct, Your Honor.
And absolutely.
On the street, police can continue pursuit.
They can make an arrest and they can charge.
But that's not the question we're answering here.
This is about.
Justice Gaziano: This is the kilo of cocaine
or whatever it was.
-: Right.
And frankly when you back up,
it's about public policy of
one person being charged with a large amount of cocaine
versus how is this court gonna realize its goal
of eliminating racial profiling?
Which in Long, it stated was a goal.
-: Can I ask you please,
briefly to distinguish between flagrancy and purpose,
which I understand have distinct meanings.
And I understand your arguments for flagrancy here
and I understand that you have an affirmative finding
that there is no basis for this stop,
but you don't have a finding with respect to purpose
that's similar to cases such as Borges
where they were looking for heroin
and that they got the heroin.
And can you address purpose here?
-: Yes, Your Honor, and I have two responses.
The first is
that we know the initial purpose was racially motivated
and the Commonwealth didn't sufficiently disconnect
that initial purpose from the continued pursuit.
All they ever did was continue to pursue him
and that initial purpose had no basis and was unlawful.
And so that's how I would ask the court
to analyze that factor.
Secondly, I would ask the court to consider
the fundamental purposes behind racial profiling,
which as I mentioned,
one of which is to improper bias
and stereotyping about the way someone looks
in order to get in their car
and search them and try to find contraband.
This is,
so it's not only that his purpose was improper,
it was flagrant
and it directly coincides to
how we understand racial profiling.
Justice Gaziano: Would the purpose
of the unlawful conduct be in its pretextual nature?
-: Could you say that again?
-: The purpose of the unlawful conduct, that's the, right?
Do we know the purpose of?
-: Well, the purpose was racial animus.
That was the only purpose here.
The judge did not credit the officer's justification
that he gave for the stop.
There was no justification.
So the only purpose here was race,
which is about as terrible a purpose you could have.
-: I think as Justice Dewar points out,
or the question asked, the purpose is usually,
I'm going to do something in a illegally contextual manner
to further another investigation.
That I can't do it lawfully?
John Warren: Right, right.
And so, and I think.
-: Here it's just, who knows why this, well.
-: Well we know it's race. -: Other than it's racial.
-: We know it's race.
It's the extreme case of purpose and flagrancy
because not only is there,
it's not a hunch that just wasn't enough.
It's, I don't,
the judge did not credit his purpose.
And he did say that the purpose was unlawful.
-: Didn't he write something like it's a,
didn't he say it was a mystery of some?
-: So after the initial Article 14 hearing,
he wrote in his decision that it was a mystery
because there was no articulated way.
The judge then sua sponte asked for a briefing after Long
and after the second hearing he determined
this was in fact racially motivated.
Justice Dewar: Well, I think what the judge held was that
it was at least in part racially motivated.
Correct? -: Correct.
Correct.
Justice Dewar: And there being no other part.
Yes. -: No other part.
And so in.
-: So the purpose, the purpose as you describe it,
relates to did the police purpose change at any point
during the chasing of him,
which you're saying that the car accident
didn't change the purpose.
And then secondly,
the purpose doesn't only specifically relate
to the evidence that was discovered.
John Warren: Correct.
That's how, I think a good way of putting it.
-: Is it that the officer stopped the defendant
because he thought he was Black
and so his purpose was just to stop him
and search him for whatever he might find,
whether it was firearms or drugs or,
just sort of a hope and a prayer?
-: Right. -: That maybe this guy,
because I think he's Black, is doing something wrong
and I'm gonna pull him over.
And that's both the purpose and the flagrancy.
-: Right, and that's the, right, exactly.
And that's really the only way based on.
-: So does the Commonwealth get to,
I mean, so,
I guess I'm trying to,
I'm struggling with separating the reckless driving
and endangering the public
and the separation between that
and the finding of the drugs incident to that arrest,
or investigation, versus the illegal stop.
Like, how do you say,
so if the Commonwealth can charge your client
for reckless endangerment,
isn't part and parcel of that new crime,
the discovery of the drugs?
-: So, I think what the attenuation,
the overall picture is, did the taint dissipate?
Justice Gaziano: It's a suppression remedy.
-: Right, it's a suppression remedy.
And the question is,
did the taint dissipate by the time they found the drugs?
And it's the three factor test.
And so when you look at the time,
is incredibly brief, 36 seconds.
-: [Justice Wolohojian] Well that was not the time
between then and the discovery of the drugs.
-: That's right.
That's right. -: It's longer than 36 seconds.
We don't know how much longer,
but it's longer than 36 seconds.
-: Correct, correct.
However, the Commonwealth did not.
-: It could be three hours.
-: The Commonwealth did not present that evidence.
And I would, it is their burden.
-: How do you distinguish this kind of intervening,
I'm trying to think of a holding here.
How would you distinguish
this kind of intervening illegal conduct
and if the defendant had just shot the police officer.
-: Which was the. -: How do we
distinguish that?
That's a serious crime versus serious crime?
-: So Your Honor, I think
what you can do is you can look at two sets of cases.
The first being cases which are avoidance cases
where the defendant is directly avoiding
the illegal conduct that the police are doing wrong.
And that's the case here.
He's directly fleeing from the illegal conduct.
That was also the case in Borges and Martin.
And then you can have another,
when you look at the cases, there's another set
that you can group together,
which are the unprovoked attacks on police officers,
which would be King and appeals court cases like Mock.
And so that's the holding, Your Honor.
-: What do you mean by unprovoked?
They would've been, I mean I'm not sure this is provoked.
-: Well he was. -: It follows,
it follows the police conduct.
But does that mean it's provoked?
-: What I would suggest, Your Honor,
is just like in Borges,
struggling with police officers who are trying to arrest
the defendant and running away
and trying to get away
is just like
illegally stopping someone for racially motivated purposes
and the defendant trying to get away.
Which is why these are avoidance cases.
Again, I'm not saying it's gonna be a per se rule
where every time you flee in a car,
but where it's incredibly brief, 36 seconds,
this case should.
-: And abandoning the car is part of that flight?
Why isn't that something new?
-: So,
sure, it's part of the events
but I think what the Commonwealth relied on was
the vehicular flight
because abandoning.
-: [Justice Wolohojian] But don't we look at
attenuation de novo?
-: Yes.
-: And that's the legal question.
So we would have to take into account
the abandonment of the car and the abandonment of the drugs.
-: Sure, Your Honor.
But I think the cases are pretty clear that
once police initiate a stop,
abandoning contraband doesn't become part of the calculus.
So,
in other words,
if police illegally initiate a stop,
a defendant runs and throws a gun,
that doesn't become part of the calculus.
Justice Gaziano: Any further questions?
Thank you, Counsel. -: Thank you.
And I would just say in conclusion,
I'd ask the court to look
back at its intervening act precedent
and then forward at how
racially motivated stops are gonna be
deterred and prevented.
Thank you.
-: Attorney Lynch.
-: Good morning.
May it please the Court,
Travis Lynch for the Commonwealth asking the court to affirm
the denial of the defendant's motion to suppress
and the denial of the motion to reconsider.
I think it sounds like everyone agrees
that attenuation applies in the equal protection context,
which makes sense
because the court said in Lora that it does.
So,
to answer the point A point B question,
as was suggested,
there was a lot that went between
the initial illegal stop
and the discovery of the cocaine in the woods.
The police were inferrably looking for the defendant
in order to arrest him
after he left the traffic stop illegally
and then recklessly operated his car,
both of which are arrestable offenses.
So they are looking for the defendant at that point.
And then it sounded as if during opposing counsel's argument
that it's conceded.
-: But they can prosecute him for driving to endanger
or resisting arrest, I guess.
But the question is, is there real attenuation,
does all that activity attenuate sufficiently, right?
That's the trickier question, right?
You don't prosecute them for driving to endanger.
-: You're correct. -: You don't prosecute
them for resisting arrest.
-: You're right.
There's no charge here for a 90 24 or a 90 25,
you're correct.
-: Which there should have been, but there wasn't.
So now we get into whether there really is attenuation
and that gets harder because it's quick.
His flight is a direct result of the stop,
which is problematic.
Gets hard, right?
-: The fact that it's a direct result is not,
at least on the circumstances of this case,
where the defendant, unprovoked,
the officer. -: Provoked.
He's provoked
but instead of saying to the officer,
hey, you have no reason to stop me,
you know, what are you doing here?
He drives off and almost, you know,
he drives off and crashes the car and then he runs away.
You know, he doesn't sort of behave responsibly.
-: Right, the car's damaged
and then you can actually see in the video
there are skid marks on the road
that the defendant inferrably left behind
when he crashed the car.
That's, I mean.
-: So what is the length of time
between the unlawful race-based stop
and the discovery of the evidence?
Travis Lynch: It's not clear from the record when.
-: And to whom does that inure,
to whose benefit does that inure?
-: I would agree
that the defendant gets the benefit of that.
And that's. -: All right.
So there's a short. -: I would agree that.
-: So we don't know when. -: Right.
-: So the government has not shown that.
So on the second factor then,
the circumstances that intervened between the illegal act
and the discovery of the evidence, didn't he?
What was the evidence?
I know what happened, right?
Because we see it on the video
and the officer testified to
the defendant leaving for 36 seconds
and driving dangerously.
But is there a connection
between being stopped while Black and flight there?
Or is there an absence of that connection?
Isn't the reason he's leaving, inferrably,
is because he's been stopped
when all the other white motorists are allowed to go by?
-: I'm not sure what you mean by other, we don't even know.
-: Well, you know, sort of to counsel's point
on the analogy between this case and the Borges case,
you know, is there a direct connection
between these intervening acts and the race-based stop?
Justice Gaziano: There's nothing intervening, correct?
-: Well, I mean, the defendant just leaves the traffic stop.
But in the cases where the police,
where the person shoots at the police,
there's nothing there either.
But we still won't suppress in the shooting cases.
Now, I think this is a more difficult case
if we're not driving like a maniac on the public way.
I think we would be, you know, as the judge says,
if the defendant just takes his traffic stop
like he's supposed to, this cocaine's getting suppressed.
The judge even says in his findings,
"I would suppress if the defendant fled the initial
traffic stop on foot."
He would suppress that too probably.
The thing that makes the difference here
is that the defendant is driving so dangerously
and recklessly to the.
-: Does it go to that public policy argument
that I alluded to in the New Jersey case?
-: Right, we don't want to, I mean,
the exclusionary rule is all about deterrence,
but at the same time, we don't want to encourage people
to do what the defendant in this case did,
which is driving dangerously
and recklessly at everyone else's peril.
-: We could also discourage it by prosecuting it
'cause they,
even he can see is they could have
prosecuted him for driving to endanger, but they don't.
So then the question is, the additional deterrence
that's provided by not suppressing the evidence,
that gets a little harder, right?
'Cause you have obvious deterrence, prosecute him for that.
If he shoots the cop, you also prosecute him for that.
-: Right, but in say in the shooting case,
let's say the defendant illegally possesses the firearm
that he uses to shoot the police officer,
that gun is not going to be suppressed
even though it was only found
as a result of the initial illegal stop.
And obviously the shooting
is not going to be suppressed either.
This officer's observations
and that video of the traffic,
of the crash are not going to be suppressed.
But they only, they find the cocaine because.
-: Let's change the hypothetical and you're shooting.
If they stop him and he,
the guy and he shoots him, they can prosecute him,
but they may not be able to prosecute him
for the drugs they find there 'cause that's separate.
And that's a direct result
of the stop that was illegal, right?
-: Well. -: It's harder
'cause it's,
I understand why you don't suppress the gun,
but in your, if I add another factor, that hypothetical,
I can see you still suppress the drugs
if it was an illegal stop or a race-based stop.
Travis Lynch: Well, not, I mean.
-: I mean if the drugs are on him,
you're gonna get him for incident to arrest, right?
-: Well we, I mean if we found him.
I don't think he's even arrested on this.
-: No, in Justice Kafker's -: Oh in.
-: hypothetical.
-: Right, well, yeah,
in that situation we wouldn't suppress the drugs either.
So it really doesn't make any, I mean,
they find the drugs in the woods
because they're looking for him
because they're looking for him to find him
because of the observed traffic violation.
That's what attenuates.
-: Well, actually,
so one thing that your brief doesn't address
is that in the video you actually hear the officer lie
to his fellow officers, right?
Because he says, "He tried to back up into me."
And do you concede, the video does not show
him trying to back up into the officer, correct?
-: I think his,
I would agree that the defendant
doesn't actually move the car backwards.
I don't think that, I think the brake lights are on.
I'm not exactly sure what he meant by that.
-: But he's talking to the other officers by radio
as he's looking into the woods
and he says, "He tried to back up into me."
So at that point, you know,
the misconduct by this officer is continuing, right?
Like, after he's already fled.
I don't know if there's a single case we have
with a bad stop where you see conduct
that actually continues into the,
like past the moment of the flight.
-: I would agree that that's not particularly helpful,
but I don't think that.
-: Can I ask you analytically,
when we look at the three factors in attenuation
and we argue or it's raised about
a fleeing suspect harming a police officer,
shooting a police officer, putting hands on a police officer
or causing a traffic accident and running someone over,
that those really add a fourth component
that'd be in the threat to the public.
Travis Lynch: I mean, I guess that.
-: Or where does that stuff that I just talked about
fit into those three factors?
-: That's the factor about the nature
of the intervening conduct,
but I mean,
sometimes it seems as though
that's the most important factor.
But.
-: Well if we're, if the. -: Where's the nature
of the intervening conduct, the circumstances?
-: It's in factor two. -: Factor two.
-: I think it's factor two. -: It's in factor.
Travis Lynch: That was my understanding.
-: The intervening circumstances.
-: Yeah the presence of intervening circumstances.
-: Okay. -: I mean, a lot, I think.
-: That encompasses public harm, to affect the public harm.
-: Yes, I think that the second factor
does an enormous amount of work.
There's a lot subsumed into that.
I mean that's like
the shooting the police officers situation.
-: Alright, thank you. -: Right.
-: So down below, you, in terms of attenuation,
you argued, the Commonwealth argued only
that the attenuation was caused
by the act of flight, correct?
The act of driving off and then driving recklessly.
It didn't look at anything subsequent to that
or didn't argue about anything subsequent to that.
Am I correct on that?
-: I don't recall exactly what our memo below said,
but that sounds correct,
but we can affirm on any basis that's in the record.
I mean, I understand that we,
the Commonwealth obviously has the burden of proof here
and our primary argument was that the initial stop was legal
because the defendant was speeding, but.
-: Do you agree with my view
that attenuation is measured from the point of initial,
like the point A is the police conduct that's unlawful
and the point B is the
discovery of the items that are to be suppressed?
-: I think that's a helpful way to conceptualize it.
-: And what happens, as Justice Dewar points out,
where that illegal racist conduct is continuing?
When is A measured?
-: I guess that would go to the,
hypothetically, if the misconduct is continuing,
I guess that's factor three.
The flagrancy of the misconduct.
I suppose.
-: But if he's allowed to run,
that would still be,
if he flees without getting, running the car,
the judge says that's all part of,
that's still illegal for them to chase him
or something to that effect, right?
I'm just trying to understand
when does point A end,
when does the illegality end here?
I think you say it ends as soon as he starts rushing away,
when his brake light goes on and he shoots off.
-: Right, 'cause he's not even stopped at that point.
The stops over when he flees.
So that's when A ends.
There's nothing else illegal happens here.
The inventory, assuming there's attenuation,
the inventory of the car is also illegal.
Not even challenged on appeal.
There's other stuff that's,
they don't find cocaine in the car,
but they find other things in there
that were not suppressed.
Unless there's any additional questions
I'd ask simply that you affirm.