-: SJC-13656, Commonwealth vs. Victor Mercedes.
-: Okay, Attorney Janssen.
-: Good morning, may it please the court,
Kathryn Janssen on behalf of the Commonwealth.
Commonwealth respectfully requests
that the court reverse the allowance
of the motion to suppress.
It is the Commonwealth's position that in footnote 11
in Colandris, this court left to open the question
of whether a search authorized
by an anticipatory search warrant
may nevertheless be constitutional
if the triggering conditions don't occur
if the other information in the affidavit
otherwise provides probable cause.
Gaziano: You'll provide the hybrid model
in the footnote, right? -: I'm sorry?
-: You were provided a hybrid option by that footnote.
Kathryn: That's correct, but that was-
-: That wasn't utilized.
-: It was not, your Honor, and I would suggest
that Footnote 11 left open this question.
The first paragraph suggests that this could be permissible,
and even the judge at the non-evidentiary hearing
expressed some confusion about what to do
and whether you can analyze an anticipatory search warrant
also as a traditional search warrant
because I would say the second paragraph
where it does provide guidance,
and it would probably be best practice and more clear,
it's not mandated,
and so it's just the Commonwealth's position
that we are looking for clarity.
If this is the required procedure, we would like to know.
-: It seems odd to me that when you apply
for an anticipatory warrant as opposed to a,
what's called a probable, well, a non-anticipatory warrant,
when you apply for an anticipatory warrant,
you were saying to the magistrate,
"We have probable cause to search this location
or this vehicle if this condition happens."
Then the condition doesn't happen,
and then the alternative is,
well, we had probable cause anyway?
-: Well your, your Honor,
I think there's a few parts to my answer.
First, I don't think we just go
by what the affiant's subjective intent or mindset is
or what they think there is only probable cause for.
I think we assume or should assume the magistrate
is looking at all the information sworn
in the affidavit as a whole and that I don't think,
and I'm not aware of under any case law by this court,
that we have to assume that the magistrate's only looking
at that triggering condition
for a finding of probable cause.
-: Well, I think the magistrate's doing that
because you asked him to.
-: I understand the court's position.
However, I think especially in this case in particular,
that magistrate necessarily had to consider all
of the information in the affidavit
in order to find probable cause
to search the defendant's apartment in this case.
And I do see a distinction,
although it's generally analogous to the excising cases,
and I understand the court's distinction
that you would make to that because the Commonwealth
is asking or the police are asking for this.
I think what's all that's required
under the text of Article 14 is that the cause
or foundation be sworn under oath,
and if that information is provided
to the magistrate at the time it is issued,
there is probable cause and there's a valid warrant.
-: Just 'cause the other option
when the triggering event doesn't happen,
and we've given you a lead way for equivalency,
if the triggering event doesn't happen,
the other option the police reason we have
is to not execute the warrant
Kathryn: That's correct.
-: and have delivery of package number 23.
-: Correct, your Honor, that is an option,
but however, I think when you're looking at,
and I understand the issue is not necessarily just
whether there's probable cause,
but the probable cause determination
by a neutral and detached magistrate.
I would say this is just not akin
to saying a slippery slope argument,
which I also understand would be a concern by the court
that let's just not get a warrant at all
and just go on 'cause we have probable cause,
and we'll do this post hoc evaluation.
I understand that would be a concern.
However, this is not just a post hoc evaluation.
I think we assume,
and I think in this case we know the magistrate-
-: Well, my concern is particularity
because what you were saying to the magistrate is,
"We have probable cause to believe
that it's going to happen.
We could hit this house or the apartment if this occurs,"
meaning that that has to be a condition precedent
to get probable cause.
Then you say, "Well, we didn't need it anyway."
-: But I think when you're looking at all-
-: 'Cause it doesn't happen, "Let's just go in."
So it gives the police somewhat of a blank check
in this instance, right? -: I mean, I don't think so,
and I think the same could be said
about equivalent compliance cases
because even there it's when there's an evidentiary hearing
after the strict compliance isn't met,
the Commonwealth just has to prove conditions that are
as likely or more likely to establish probable cause,
and while they're usually similar and close to it,
they don't necessarily have to be by the letter of the law.
So in that case, you're actually allowing the police
to have discretion in when there's probable cause
to go in also,
and this court has found that doesn't violate Article 14,
and also in Colandris said,
"There is no risk of unfettered discretion
or a concern about deterrence
because if there's no probable cause
or the conditions didn't align to suggest that they make it
as likely or more likely to establish probable cause,"
or in this case, I would say,
if there's no probable cause before the magistrate,
then the remedy is suppression.
And I don't think the police have an incentive
to do what they do here.
I don't think it's a safer course, but I think it's-
-: But the warrant defines the scope
of the what otherwise would be an unconstitutional,
presumptively unconstitutional search,
and the warrant here in light of what was applied for
was limited to the triggering event or an equivalency
because life doesn't always happen as one anticipates,
and that was the scope of the authority.
Otherwise, it's an unconstitutional search.
So, you know, I think the problem
with the Commonwealth's position
is that it is effectively a blank check
because the default is you can't go
into somebody's house without a warrant,
and so the scope of the authority
was here's the warrant if X happens,
and X didn't happen in this case.
-: I understand the court's position
and the point your Honor is making-
-: I'm not suggesting what my position is.
I'm asking you the question
and giving you the opportunity to respond
because that is what is troubling
about the Commonwealth's position.
-: Correct, and I would say that I think even
in the equivalent compliance cases,
my reading of Colandris is that you have to show
that conditions that led to the execution of the warrant
are as likely or more likely to establish probable cause,
and those conditions don't necessarily have
to be what was outlined and authorized by the magistrate.
So I think- -: 'Cause life
doesn't always happen as anticipated,
and I thought that was the rationale
behind the case that you mentioned as opposed
to the event didn't happen at all, nothing like it happened,
and so now we're taking this piece of paper
which authorizes us to do something
that is otherwise unconstitutional,
and we're gonna transform it into something that,
on its face, says probable cause existed
to enter the gentleman's home.
-: I still think you're still essentially,
in the equivalent compliance cases,
potentially giving the police a blank check,
but also under Article 14, and there's nothing to say,
I don't think there's anything to suggest that,
just because a warrant
contains authorized triggering conditions
or anticipatory language doesn't mean it
can't be reviewed as a traditional warrant
where there is probable cause
'cause we are assuming the magistrate
is looking at everything in the warrant.
-: I'm sorry, did you just say that there is a potential
that we'd be giving the police a blank check?
Is that that not a concern of the Commonwealth's?
-: I did not phrase that correctly. I'm sorry.
I just think there is a similar concern
that Colandris addressed that there
wouldn't be unfettered discretion
in the equivalent compliance cases because even there,
I think the concern could have been
that you could have give the police a blank check
if the conditions aren't based strictly
as authorized by the magistrate.
However, that's not really a concern by the court or they-
-: I'm confused by your answer and what you say
about what the magistrate's thought process subjective
is that we supposed to guess. -: Well, I-
-: Because what you're saying
is that the magistrate would've thought,
"Well, there's probable cause to search this apartment.
So they probably have probable cause.
They could probably search this,
but they've got this anticipatory thing,
so I'm gonna issue the."
Doesn't the magistrate just say,
"I'm gonna look at the four corners of this,
and do they have probable cause based upon page one
to page 33 of the affidavit," period,
that they don't peer into parts of the affidavit
and do this parsing that you suggest?
I'm not aware of any cases that say they have this ability
to parse a warrant and say,
"Well, even though it's anticipatory, go ahead."
-: Well I think that is my point
is that they look at the four corners,
and they look at everything in it.
So they're not parsing it necessarily,
parsing it with just the anti-anticipatory language.
They're looking at everything in the warrant, and this is-
-: So if you submitted a warrant, right,
you know, a little farfetched,
and the affidavit's 33 pages long, and by some mistake,
pages 32 to 33 got torn off the sheet of paper,
and the magistrate signs it, are you saying that,
"Well, it's good enough
because they read the first part of it
and there's probable cause there"?
-: I would say that at that point,
I think you would have to necessarily look
at what's in front of the magistrate
and what they authorized,
and if they found that the information
that was contained within that warning,
if there were missing pages supported probable cause,
that would be constitutionally permissible.
Obviously that's not ideal and be more minstrel,
I'm sorry, I'm not gonna pronounce that word correctly,
error, but I think that's what the case law says.
And I think when the magistrate's looking
at the four corners and we review it de novo
or the court's review at de novo what's in the four corners,
we don't look at what is necessarily the linchpin
for the magistrate's probable cause determination,
and this is akin, generally analogous to excising cases,
whether it be Frank's intentional police misconduct
or when improperly obtained information
is included in a search warrant.
I mean, I can imagine a case where there is a confession
by a defendant or other very strong evidence
which would we look at and say,
"That's definitely the linchpin
in the magistrate's determination,"
but we excise it out, and nevertheless,
there's other information in the warrant that we find
that it would've otherwise issued but authorized.
So I think that's the basis of the Commonwealth's argument,
and I think that is constitutionally permissible.
I'm happy to address the other two issues in the brief.
-: What would happen if the warrant said,
"Go ahead and search house A,"
but the affidavit supported probable cause
to search house B, and then, when executing it,
the police go to house B and go ahead and execute it at B.
What would be the Commonwealth's position?
-: I would say that that's not-
-: Would that be a legitimate search?
-: If the warrant was to search house A,
but the it only contained information
to search probable cause to search house B,
I would say no because there, I mean,
part of the warrant requirement is limiting the place
to be searched and the items to be seized,
and so you're not doing that in that case.
I think that's different than whether there's probable cause
to search this place
that I'm saying there's probable cause to search.
So in this case, I'm asking to search this place,
and I'm providing probable cause to search this place,
and I think that's a different situation.
-: Can I just ask for a question of clarification
given the argument you've made today?
Do you agree that the only type of warrant
that was applied for was an anticipatory warrant?
-: Yes, your Honor. -: Okay.
And do you also agree that the only type of warrant
that was issued was an anticipatory warrant?
-: I would say yes 'cause under (speaks indistinctly),
the terms of the affidavit do inform the search warrant,
even though on the face,
the search warrant doesn't specify, I think.
-: Okay, so what do you then do with the statement
in Colandris that says, "Implicit in the definition
of an anticipatory warrant is that the occurrence
of the so-called triggering condition specified
in the affidavit is necessary to establish probable cause
and therefore is a condition precedent
to the execution of the warrant"?
-: I think in that case,
what makes an anticipatory warrant not valid at issuance
is that there's no probable cause in the warrant
at that time when it's issued,
but if there's probable cause supported by the information
in the warrant at the time it issues,
then it's a valid warrant, and I think-
-: But it's still just a valid anticipatory warrant,
and therefore, it needs the triggering condition
in order to be executed.
That's what I read that sentence to say.
-: I would suggest the Commonwealth's position
is that anticipatory warrant is a term of art
that it's not valid 'cause no probable cause
doesn't come to fruition yet.
But if there is probable cause when the warrant is issued,
then those facts have been considered by the magistrate,
then it's valid and 'cause I think we're talking
about whether there's a valid warrant or not,
and I would suggest there is a valid warrant.
Even if it's styled as an anticipatory warrant,
I think that's not necessarily dispositive.
-: So it would have been issued as a anticipatory warrant
that is not valid because the triggering condition
was not met, but we would somehow deem it or transform it
into a traditional warrant based
on the contents of the affidavit.
-: I think, right, 'cause I think the question,
and we're looking at what the warrant requirement is
under Article 14.
Article 14 doesn't talk about anticipatory warrants
or regular or traditional warrants.
It just talks about the warrant requirement
and what is, I think, the heart of it
is whether or not information sworn under oath provided
to a magistrate provides probable cause,
and that's what happened,
and so that would be the Commonwealth's position.
-: Even though you were asking us to guess as to the math
that the magistrate would have considered
and found probable cause even though we don't know that.
-: I think that happens in excising cases as well.
-: It does, but this is a big deal
because you're going into the house with a limited warrant
that now you're saying that this person that reviewed it
would have allowed it for all purposes in any event.
That's a big deal, but we have to draw that inference.
-: I mean, I think so based under the other case law
regarding excising-
Gaziano: The excising cases are a remedy, right?
For illegal information.
-: Well, correct.
Well, it's a remedy, but also,
it's whether or not the search comports
with Article 14 of the Fourth Amendment.
And so if it doesn't, if you excise it out
and the other information otherwise
doesn't provide probable cause, then it's suppression.
So I don't think it's just solely a remedy.
I think it also addresses whether or not the search
was unreasonable and unconstitutional.
-: Okay. Thank you. -: Thank you.
-: Okay, Attorney Masferrer.
-: Good morning, may it please the court,
Eduardo Masferrer for the appellee Victor Mercedes.
The Commonwealth asks this court to allow officers
to ignore the court's carefully laid out procedure
in Colandris and permit them unfettered discretion.
Wendlandt: Well, Colandris is dicta.
So why should that be the rule?
-: Respectfully, I don't think Colandris is dicta.
I think when the court goes-
Wendlandt: Well, regardless, let's just assume I do.
-: Of course, your Honor, and-
-: And so given that it's dicta,
tell me why that's the right procedure
and the only procedure, given that they're assuming
that there's probable cause to search this house
without the triggering event.
-: Because the court has held since Commonwealth versus Cruz
that a warrant that's issued
before the necessary events have occurred,
which will allow a constitutional search of the premises,
is how anticipatory search warrant is defined,
and the court has held if those events do not transpire,
the warrant is-
Gaziano: Why don't we adopt Vigno?
-: I'm sorry, your Honor? -: Why don't we adopt Vigno?
-: The First Circuit case. -: The First Circuit case.
-: Because again, it would create this sort of situation
where we're letting an officer decide
what it is they can do-
-: I look briefly at the circuits,
and there's Vigno, and there's a few other cases that say,
"Well, we're gonna do exactly
what the Commonwealth asked us to do in this case."
Are you aware of any case that says that's impermissible?
-: Judge, I would think this quote in Cruz said
that the warrant is void
if the anticipatory event doesn't occur.
Gaziano: It wasn't raised, the issue.
-: It was raised in Colandris.
In Colandris, the underlying court found
that adopted the Commonwealth's position.
When they appealed it to this court,
this court did not adopt it.
We all know what Colandris says.
So what I'm asking you squarely is are you aware
of any case where this issue was presented
in an appellate court, state or federal has said that no
and has rejected this proposition the Commonwealth asks us?
-: Judge, no is the short answer.
-: Okay, yeah. -: Of course.
-: Thank you. -: I apologize.
No is the short answer except
that the court certainly had the opportunity
in Colandris to affirm it, decided not to,
and in dicta provided them a complete procedure-
Wendlandt: So why not follow the First Circuit rule?
-: Because it's an outlier in the Article 14.
-: It's an outlier?
It seems like the only decision,
maybe another one that actually holds contrary
to the position that you're suggesting.
-: Article 14 provides greater protection
than the Fourth Amendment.
So the federal cases that are examining the Fourth Amendment
are not using the same standard
that this court has implied for Article 14.
-: So why should we in Article 14 have a greater standard
than the Fourth Amendment in this context
where the underlying affidavit provides probable cause
to search 10 first?
-: So because the Commonwealth,
when they ask for an anticipatory search warrant,
they're saying it only occurs in this circumstance.
If the court says, "Even though you've requested it
to only have probable cause in this circumstance,
we are now going to open the door
for a police officer to go in anyway," right?
The anticipatory event doesn't occur, we know-
Wendlandt: If there's probable cause.
-: But the officer doesn't know that.
The officer applied for probable cause
under one group of circumstances.
He said,
"I thought there was probable cause in this circumstance."
The magistrate says,
"I think there's probable cause in this circumstance."
When the triggering event doesn't occur,
if we now tell police,
"When the triggering event doesn't occur, go on in anyway,"
because later on a prosecutor can be creative and say,
"No, no, no, no, no, there was probable cause,"
then we have eliminated the warrant requirement.
What would be the difference then?
Sorry, the only exception to the warrant requirement
is probable cause plus exigency.
If we eliminated exigency, then why do you need a warrant?
You could just simply say, "I applied for a warrant.
I asked for an anticipatory one.
He said, yes, but you know what?
I should've done a probable cause warrant."
The next step for that is I applied for a warrant,
I thought I had probable cause, the magistrate said no,
and I decide as a police officer to do it anyway.
-: Come on. -: Because I think-
-: Masferrer, please. -: No, no, no, no.
You're straining your credibility by going to the next step.
Let me ask you a real question then,
Eduardo: Yes, your Honor.
-: not just this fanciful stuff.
How do you distinguish the cases
that the Commonwealth relies on
on excising bad information and still having probable cause
and that's what the court looks at?
-: Two ways.
First, because in this particular case,
an officer testified and was asked specifically,
"Did you think you could go into the house
if the triggering event did not occur?"
That is in the March 26th transcript, page 48.
He said, "No, I did not think I could do it."
So it's not like we're in a situation
where an officer made a good faith mistake
or perhaps put information that was incorrect to put in
and therefore we saved the warrant.
As your honor pointed out, it's a remedy.
So the difference in those cases
is we have a warrant before the court.
There's something either unconstitutional
or erroneous in the warrant, and instead of simply saying,
"The whole warrant's tossed," the court says,
"There's a remedy, let's excise out and see what's left."
-: And that test, I'm sorry,
is that based on the subjective intent
of the officer who's applied the erroneous information?
-: It's not based on the subjective intent.
It's the- -: So why should this one be?
-: Because it's not the subjective intent of the officer.
It's the magistrate. So the magistrate looks at it.
What the Commonwealth is saying,
"If the magistrate had looked at it
without this information,
he would've done or she would've done something."
We don't know that.
That's not been demonstrated to the magistrate.
They didn't call the magistrate as a witness to say,
"I would've done it anyway."
They don't know.
The officer doesn't say, "I went forward in this manner
because I thought this was correct."
-: Is the judge upon complaint by the defense
like you did in this case,
isn't the judge on a motion to suppress,
aren't they able to look at that same underlying affidavit
that was in front of the magistrate
to obviate the creativity of the prosecution
to recast the probable cause analysis?
-: They are not. -: How? How are they not?
-: Because the Article 14's point
is not does a police officer think there's probable cause.
It's after I present it to someone who is not me,
a neutral magistrate- -: I'm agreeing with you.
That's why I'm saying I'm not worried
about what the police officer testified to.
I'm saying what is in the affidavit that at least initially
was only for an anticipatory warrant.
But now on the complaint
that they go in and they get something,
and now you wanna file the motion to suppress.
I'm saying what's to keep the court from saying,
"Okay, what was in front of the magistrate
when they issued the anticipatory warrant
that perhaps there was more probable cause than just
if the triggering event happened or didn't happen?"
-: Because if we allowed that sort
of post-event analysis to occur, we're telling the police,
"You can always go into the house,
and someone else will then subsequently try
to justify your actions."
That's giving the police the discretion
that Article 14 is trying to take away.
Gaziano: Can you address particularity?
The particularity requirement. -: I can, Judge,
in the sense of if you tell the magistrate,
"This is the exact reason of why I'm entering
and where I'm going," your Honor says particularity.
I should've looked at the cause and foundation requirement.
"This is why I'm going in there."
The magistrate looks at that and says,
"Based on this information, what you've told me as a whole,
now I say you can go in."
If the Commonwealth would like to do a different item,
sort of do this traditional warrant analysis,
they have a solution for that.
The solution was the one
that the court proposed in Colandris.
It is not a heavy lift for the Commonwealth
to that procedure.
They take the same warrant,
and they staple it to a new cover sheet, and they say,
"Please analyze this, magistrate,
without the triggering event.
Look at it as a traditional warrant."
That is not a heavy limitation on the Commonwealth,
and then we would know from the magistrate's determination
whether they thought that was sufficient or not.
We don't need to second guess.
We don't need to let the police go into houses
and then decide if they had the right reason or not,
and that is my concern and I think the court's concern
in allowing this post-review analysis.
-: Can I ask?
I don't read Colandris as a classic Article 14 case.
It seems to be a Fourth Amendment type of analysis.
It throws in some state cases,
but it's not one of the cases
where we're saying we're providing greater protection.
Right? How do we know?
I mean, it looks
like they're just applying Fourth Amendment law here.
I mean- -: I think, Your Honor,
it's because in Colandris,
the way it came up was you had a motion judge saying,
adopting the Commonwealth argument,
"Even though it's applied as an anticipatory search warrant,
I don't find that there was compliance
with the triggering events,
but I do see that there's probable cause.
So therefore, I'm allowing the search anyway."
When it comes up on appeal,
that issue was squarely before the court.
The court did not go that route and instead said,
"Nope, the magistrate was incorrect.
There was equivalent compliance,
and that's why the triggering event was honored,"
and then said, "Here's a procedure.
If you, police"-
Kafker: Again, mine's a more specific question.
-: I'm sorry. -: The cites in Colandris
are to Grubbs, LaFave.
They're not citing any of the cases
in which we provide greater protection.
At least they're not promising anything on that, right?
-: They aren't because the court in Colandris,
for whatever reason, didn't outwardly reject,
instead kept leaving this door open,
which is what the Commonwealth
is asking the court to here do.
And so the court doesn't, I think,
squarely address that issue because it elected to find
that the warrant was valid on a different issue.
-: If we're looking at the Fourth Amendment law,
Justice Gaziano's question, it sounds like you lose.
So we need to do this under Article 14 for you to win?
-: No, I know there have been some federal courts
that have cited that.
Your Honor asked me did I know of a federal case
that specifically said they couldn't do this.
I don't.
If the distinguishing factor is that it's not
that there's uniform agreement under the Fourth Amendment-
Gaziano: There's no Supreme Court case on this.
-: That is correct, and it's not like all the circuits agree.
We have some, I view 'em as outlier,
but some cases where this has been permitted.
This court doesn't need to reach that issue
because it's repeatedly said in Article 14.
-: Can I ask you to address whether this really is a,
I don't know how we're pronouncing it,
but Vigno or Vigno type situation.
In Vigno, the condition
was that they literally just leave the package
outside the building and wait 10 or 15 minutes,
and Judge Boudin wrote,
"That did not add to probable cause.
The fact that the package sat there for 10
to 15 minutes didn't provide any additional probable cause."
So I have two questions here.
First, can you tell us your position on whether,
in this case, the same is true that,
with respect to the Salem address,
there was no material addition
to the probable cause calculus from the anticipated trigger.
Is that- -: Yes, there is a difference,
and that is because, as the court is well aware,
drugs are a disposable commodity.
We don't know if drugs are gonna be
in any particular location at a time.
In this particular case,
I think the logical inference is the police
were uncertain if the drugs were gonna be present
in any location, and therefore,
they were waiting for the arrival of the package to say,
"Oh, now they're ready to engage in distribution."
So since the package is arriving,
they'll be cut in a certain location.
There'll be baggies. There'll be-
-: But if they're arresting,
they're searching the person as soon as they pick up the box
and then they're executing the searches,
the fact of that anticipatory event
that the trigger being triggered does not mean
that there's any more or less evidence at the Salem address.
By definition, nothing's gonna get to the Salem address.
-: Understanding that we don't think there
is probable cause to search the Salem address
because it's only his residence.
In the light most favorable to the Commonwealth,
you would think that because he's ordered something,
maybe there now will be something at the Salem address
like a receipt or an invoice or something requesting it
or communication or they'll have money or cutting agents,
something to show they're prepared.
That's why the officer asked for it.
The officer had some reason,
he's not an inexperienced officer,
to seek an anticipatory warrant,
and I think the logical inference,
I appreciate he didn't say it and nobody asked him,
but it appears to be that he didn't believe
that there would be evidence-
-: Well, leaving aside subjective inquiry,
which second question.
So what if you had a case where it's very clear that the,
so here, the affidavit is a bit peculiar
because it does recite in numerous locations
that they believe they have probable cause of X.
There's a lot of statements.
"We have probable cause of X, we have probable cause,"
and then it says, "The triggering condition for execution
of this warrant will be," and describes whatever.
So what if you had an affidavit that said,
"The triggering condition for this warrant
will be that it will be noon tomorrow"?
So there's not any condition.
It's just they're stating when it will be executed,
but they frame it as an anticipatory warrant.
-: So that's a far cry from what we have here.
-: I understand that, but it goes to the question
of what is an anticipatory warrant?
And what Colandris says is that implicit
in an anticipatory warrant
is that there's not probable cause
without the triggering condition.
And you know, the question is at what moment
do we judge whether it truly is anticipatory?
-: I think under the facts of this case,
everyone agrees it's anticipatory.
The officer stated it, page 36.
He says that he did not apply for a traditional warrant.
I'm trying to get to the question, right, but we're saying,
"Well, what in the different circumstance
that's not presented here with a triggering event
isn't so specific where it's a closer cause
to whether it's anticipatory or traditional,"
that might be a different case.
That sounds like it's not an anticipatory search warrant.
It's a traditional warrant that's just listing out the time
that we're gonna execute it.
So I think that's the differentiating
in your Honor's hypothetical-
-: That'd be a question of law for the trial court
and then the reviewing court in the first instance,
whether it truly was an anticipatory warrant.
So if that's true, then why not the same here
where the court can say, "It was an anticipatory warrant
with respect to the Hamilton Street address
where the drugs were actually gonna arrive,
but it was not an anticipatory warrant
with respect to the Salem address because this
wasn't gonna materially add anything for Salem"?
-: Because if we don't require the police
to tell both to the magistrate, you're just, again,
giving them discretion at the time of execution
as to how they may want to read it,
or what really happened this case,
they went in knowing the triggering event didn't occur,
and then they just hope that someone else,
presumably the attorneys for the Commonwealth,
will come up with a way to justify it, and that is,
I think what should give the court a lot of concern here.
The court has said previously that it does not wanna engage
in what the court
has called leisured retrospective analysis,
which is where there's an after the fact discovery
of a justification that never occurred to
or was mentioned by the police
but is subsequently imputed to the police in an effort
to save a well-intentioned but flawed prosecution.
So it's not like the officers here said,
"We thought we could do this for these reasons,
and therefore that was the factual basis."
Gaziano: This is a different case
if we had a good faith exception.
-: It would be if there's a series of facts
where the officer said,
"Here's how I submitted the warrant.
I thought I was doing the Colandris system.
Maybe I didn't write it properly
or it doesn't come across properly."
I think that would be a very different case.
But the history that the court has here
is the Commonwealth thought
that there was equivalent compliance,
and after the court found there was no equivalent compliance
then switched to this argument to try to save one of them,
and that's the concern that I would submit to the court.
If the officer had said,
"Under any of the examples you've given,
I tried to follow a procedure.
I tried to do something different.
I had thought I had applied for two warrants,"
I think we'd be in a very different situation,
but this court has given the Commonwealth ample ways
of solving their warrant problems, right?
The only requirements are, one, be truthful and,
two, submit it to the magistrate.
The Colandris dicta,
if the court chooses to view it that way,
was meant to be helpful to the Commonwealth.
If you're uncertain about this,
if you really wanna sort of like apply for a traditional
and non-traditional search warrant,
here's the court telling everybody, "That is permissible."
It's telling magistrates. It's telling defense attorneys.