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SJC-13656, Commonwealth vs. Victor Mercedes.
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Okay, Attorney Janssen.
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Good morning, may it please the court,
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Kathryn Janssen on behalf of the Commonwealth.
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Commonwealth respectfully requests
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that the court reverse the allowance
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of the motion to suppress.
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It is the Commonwealth's position that in footnote 11
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in Colandris, this court left to open the question
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of whether a search authorized
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by an anticipatory search warrant
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may nevertheless be constitutional
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if the triggering conditions don't occur
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if the other information in the affidavit
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otherwise provides probable cause.
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You'll provide the hybrid model
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in the footnote, right?
I'm sorry?
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You were provided a hybrid option by that footnote.
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That's correct, but that was-
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That wasn't utilized.
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It was not, your Honor, and I would suggest
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that Footnote 11 left open this question.
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The first paragraph suggests that this could be permissible,
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and even the judge at the non-evidentiary hearing
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expressed some confusion about what to do
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and whether you can analyze an anticipatory search warrant
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also as a traditional search warrant
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because I would say the second paragraph
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where it does provide guidance,
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and it would probably be best practice and more clear,
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it's not mandated,
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and so it's just the Commonwealth's position
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that we are looking for clarity.
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If this is the required procedure, we would like to know.
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It seems odd to me that when you apply
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for an anticipatory warrant as opposed to a,
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what's called a probable, well, a non-anticipatory warrant,
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when you apply for an anticipatory warrant,
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you were saying to the magistrate,
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"We have probable cause to search this location
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or this vehicle if this condition happens."
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Then the condition doesn't happen,
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and then the alternative is,
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well, we had probable cause anyway?
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Well your, your Honor,
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I think there's a few parts to my answer.
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First, I don't think we just go
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by what the affiant's subjective intent or mindset is
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or what they think there is only probable cause for.
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I think we assume or should assume the magistrate
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is looking at all the information sworn
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in the affidavit as a whole and that I don't think,
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and I'm not aware of under any case law by this court,
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that we have to assume that the magistrate's only looking
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at that triggering condition
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for a finding of probable cause.
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Well, I think the magistrate's doing that
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because you asked him to.
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I understand the court's position.
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However, I think especially in this case in particular,
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that magistrate necessarily had to consider all
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of the information in the affidavit
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in order to find probable cause
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to search the defendant's apartment in this case.
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And I do see a distinction,
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although it's generally analogous to the excising cases,
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and I understand the court's distinction
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that you would make to that because the Commonwealth
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is asking or the police are asking for this.
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I think what's all that's required
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under the text of Article 14 is that the cause
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or foundation be sworn under oath,
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and if that information is provided
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to the magistrate at the time it is issued,
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there is probable cause and there's a valid warrant.
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Just 'cause the other option
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when the triggering event doesn't happen,
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and we've given you a lead way for equivalency,
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if the triggering event doesn't happen,
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the other option the police reason we have
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is to not execute the warrant
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That's correct.
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and have delivery of package number 23.
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Correct, your Honor, that is an option,
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but however, I think when you're looking at,
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and I understand the issue is not necessarily just
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whether there's probable cause,
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but the probable cause determination
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by a neutral and detached magistrate.
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I would say this is just not akin
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to saying a slippery slope argument,
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which I also understand would be a concern by the court
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that let's just not get a warrant at all
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and just go on 'cause we have probable cause,
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and we'll do this post hoc evaluation.
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I understand that would be a concern.
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However, this is not just a post hoc evaluation.
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I think we assume,
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and I think in this case we know the magistrate-
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Well, my concern is particularity
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because what you were saying to the magistrate is,
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"We have probable cause to believe
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that it's going to happen.
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We could hit this house or the apartment if this occurs,"
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meaning that that has to be a condition precedent
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to get probable cause.
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Then you say, "Well, we didn't need it anyway."
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But I think when you're looking at all-
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'Cause it doesn't happen, "Let's just go in."
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So it gives the police somewhat of a blank check
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in this instance, right?
I mean, I don't think so,
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and I think the same could be said
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about equivalent compliance cases
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because even there it's when there's an evidentiary hearing
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after the strict compliance isn't met,
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the Commonwealth just has to prove conditions that are
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as likely or more likely to establish probable cause,
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and while they're usually similar and close to it,
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they don't necessarily have to be by the letter of the law.
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So in that case, you're actually allowing the police
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to have discretion in when there's probable cause
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to go in also,
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and this court has found that doesn't violate Article 14,
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and also in Colandris said,
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"There is no risk of unfettered discretion
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or a concern about deterrence
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because if there's no probable cause
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or the conditions didn't align to suggest that they make it
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as likely or more likely to establish probable cause,"
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or in this case, I would say,
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if there's no probable cause before the magistrate,
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then the remedy is suppression.
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And I don't think the police have an incentive
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to do what they do here.
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I don't think it's a safer course, but I think it's-
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But the warrant defines the scope
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of the what otherwise would be an unconstitutional,
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presumptively unconstitutional search,
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and the warrant here in light of what was applied for
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was limited to the triggering event or an equivalency
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because life doesn't always happen as one anticipates,
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and that was the scope of the authority.
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Otherwise, it's an unconstitutional search.
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So, you know, I think the problem
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with the Commonwealth's position
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is that it is effectively a blank check
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because the default is you can't go
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into somebody's house without a warrant,
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and so the scope of the authority
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was here's the warrant if X happens,
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and X didn't happen in this case.
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I understand the court's position
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and the point your Honor is making-
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I'm not suggesting what my position is.
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I'm asking you the question
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and giving you the opportunity to respond
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because that is what is troubling
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about the Commonwealth's position.
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Correct, and I would say that I think even
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in the equivalent compliance cases,
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my reading of Colandris is that you have to show
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that conditions that led to the execution of the warrant
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are as likely or more likely to establish probable cause,
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and those conditions don't necessarily have
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to be what was outlined and authorized by the magistrate.
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So I think-
'Cause life
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doesn't always happen as anticipated,
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and I thought that was the rationale
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behind the case that you mentioned as opposed
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to the event didn't happen at all, nothing like it happened,
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and so now we're taking this piece of paper
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which authorizes us to do something
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that is otherwise unconstitutional,
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and we're gonna transform it into something that,
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on its face, says probable cause existed
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to enter the gentleman's home.
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I still think you're still essentially,
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in the equivalent compliance cases,
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potentially giving the police a blank check,
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but also under Article 14, and there's nothing to say,
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I don't think there's anything to suggest that,
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just because a warrant
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contains authorized triggering conditions
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or anticipatory language doesn't mean it
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can't be reviewed as a traditional warrant
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where there is probable cause
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'cause we are assuming the magistrate
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is looking at everything in the warrant.
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I'm sorry, did you just say that there is a potential
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that we'd be giving the police a blank check?
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Is that that not a concern of the Commonwealth's?
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I did not phrase that correctly. I'm sorry.
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I just think there is a similar concern
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that Colandris addressed that there
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wouldn't be unfettered discretion
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in the equivalent compliance cases because even there,
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I think the concern could have been
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that you could have give the police a blank check
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if the conditions aren't based strictly
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as authorized by the magistrate.
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However, that's not really a concern by the court or they-
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I'm confused by your answer and what you say
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about what the magistrate's thought process subjective
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is that we supposed to guess.
Well, I-
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Because what you're saying
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is that the magistrate would've thought,
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"Well, there's probable cause to search this apartment.
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So they probably have probable cause.
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They could probably search this,
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but they've got this anticipatory thing,
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so I'm gonna issue the."
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Doesn't the magistrate just say,
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"I'm gonna look at the four corners of this,
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and do they have probable cause based upon page one
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to page 33 of the affidavit," period,
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that they don't peer into parts of the affidavit
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and do this parsing that you suggest?
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I'm not aware of any cases that say they have this ability
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to parse a warrant and say,
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"Well, even though it's anticipatory, go ahead."
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Well I think that is my point
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is that they look at the four corners,
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and they look at everything in it.
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So they're not parsing it necessarily,
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parsing it with just the anti-anticipatory language.
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They're looking at everything in the warrant, and this is-
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So if you submitted a warrant, right,
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you know, a little farfetched,
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and the affidavit's 33 pages long, and by some mistake,
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pages 32 to 33 got torn off the sheet of paper,
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and the magistrate signs it, are you saying that,
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"Well, it's good enough
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because they read the first part of it
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and there's probable cause there"?
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I would say that at that point,
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I think you would have to necessarily look
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at what's in front of the magistrate
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and what they authorized,
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and if they found that the information
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that was contained within that warning,
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if there were missing pages supported probable cause,
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that would be constitutionally permissible.
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Obviously that's not ideal and be more minstrel,
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I'm sorry, I'm not gonna pronounce that word correctly,
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error, but I think that's what the case law says.
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And I think when the magistrate's looking
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at the four corners and we review it de novo
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or the court's review at de novo what's in the four corners,
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we don't look at what is necessarily the linchpin
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for the magistrate's probable cause determination,
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and this is akin, generally analogous to excising cases,
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whether it be Frank's intentional police misconduct
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or when improperly obtained information
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is included in a search warrant.
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I mean, I can imagine a case where there is a confession
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by a defendant or other very strong evidence
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which would we look at and say,
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"That's definitely the linchpin
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in the magistrate's determination,"
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but we excise it out, and nevertheless,
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there's other information in the warrant that we find
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that it would've otherwise issued but authorized.
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So I think that's the basis of the Commonwealth's argument,
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and I think that is constitutionally permissible.
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I'm happy to address the other two issues in the brief.
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What would happen if the warrant said,
267
00:11:24.757 --> 00:11:28.347
"Go ahead and search house A,"
268
00:11:29.310 --> 00:11:34.050
but the affidavit supported probable cause
269
00:11:34.050 --> 00:11:38.340
to search house B, and then, when executing it,
270
00:11:38.340 --> 00:11:42.300
the police go to house B and go ahead and execute it at B.
271
00:11:42.300 --> 00:11:44.400
What would be the Commonwealth's position?
272
00:11:50.084 --> 00:11:52.595
I would say that that's not-
273
00:11:52.595 --> 00:11:54.050
Would that be a legitimate search?
274
00:11:54.050 --> 00:11:57.120
If the warrant was to search house A,
275
00:11:57.120 --> 00:11:58.560
but the it only contained information
276
00:11:58.560 --> 00:12:00.810
to search probable cause to search house B,
277
00:12:00.810 --> 00:12:03.210
I would say no because there, I mean,
278
00:12:03.210 --> 00:12:05.970
part of the warrant requirement is limiting the place
279
00:12:05.970 --> 00:12:07.500
to be searched and the items to be seized,
280
00:12:07.500 --> 00:12:11.697
and so you're not doing that in that case.
281
00:12:11.697 --> 00:12:14.580
I think that's different than whether there's probable cause
282
00:12:14.580 --> 00:12:15.413
to search this place
283
00:12:15.413 --> 00:12:17.400
that I'm saying there's probable cause to search.
284
00:12:17.400 --> 00:12:20.160
So in this case, I'm asking to search this place,
285
00:12:20.160 --> 00:12:21.810
and I'm providing probable cause to search this place,
286
00:12:21.810 --> 00:12:24.390
and I think that's a different situation.
287
00:12:24.390 --> 00:12:28.710
Can I just ask for a question of clarification
288
00:12:28.710 --> 00:12:31.293
given the argument you've made today?
289
00:12:33.060 --> 00:12:35.760
Do you agree that the only type of warrant
290
00:12:35.760 --> 00:12:39.090
that was applied for was an anticipatory warrant?
291
00:12:39.090 --> 00:12:39.990
Yes, your Honor.
Okay.
292
00:12:39.990 --> 00:12:43.410
And do you also agree that the only type of warrant
293
00:12:43.410 --> 00:12:46.530
that was issued was an anticipatory warrant?
294
00:12:46.530 --> 00:12:47.910
I would say yes 'cause under (speaks indistinctly),
295
00:12:47.910 --> 00:12:51.030
the terms of the affidavit do inform the search warrant,
296
00:12:51.030 --> 00:12:51.863
even though on the face,
297
00:12:51.863 --> 00:12:53.730
the search warrant doesn't specify, I think.
298
00:12:53.730 --> 00:12:58.730
Okay, so what do you then do with the statement
299
00:13:00.210 --> 00:13:04.800
in Colandris that says, "Implicit in the definition
300
00:13:04.800 --> 00:13:07.260
of an anticipatory warrant is that the occurrence
301
00:13:07.260 --> 00:13:09.660
of the so-called triggering condition specified
302
00:13:09.660 --> 00:13:13.440
in the affidavit is necessary to establish probable cause
303
00:13:13.440 --> 00:13:15.270
and therefore is a condition precedent
304
00:13:15.270 --> 00:13:17.580
to the execution of the warrant"?
305
00:13:17.580 --> 00:13:19.020
I think in that case,
306
00:13:19.020 --> 00:13:21.210
what makes an anticipatory warrant not valid at issuance
307
00:13:21.210 --> 00:13:23.010
is that there's no probable cause in the warrant
308
00:13:23.010 --> 00:13:24.390
at that time when it's issued,
309
00:13:24.390 --> 00:13:27.060
but if there's probable cause supported by the information
310
00:13:27.060 --> 00:13:28.740
in the warrant at the time it issues,
311
00:13:28.740 --> 00:13:30.630
then it's a valid warrant, and I think-
312
00:13:30.630 --> 00:13:34.110
But it's still just a valid anticipatory warrant,
313
00:13:34.110 --> 00:13:36.450
and therefore, it needs the triggering condition
314
00:13:36.450 --> 00:13:38.670
in order to be executed.
315
00:13:38.670 --> 00:13:41.043
That's what I read that sentence to say.
316
00:13:42.600 --> 00:13:44.010
I would suggest the Commonwealth's position
317
00:13:44.010 --> 00:13:46.380
is that anticipatory warrant is a term of art
318
00:13:46.380 --> 00:13:50.100
that it's not valid 'cause no probable cause
319
00:13:50.100 --> 00:13:51.420
doesn't come to fruition yet.
320
00:13:51.420 --> 00:13:56.400
But if there is probable cause when the warrant is issued,
321
00:13:56.400 --> 00:13:58.740
then those facts have been considered by the magistrate,
322
00:13:58.740 --> 00:14:00.450
then it's valid and 'cause I think we're talking
323
00:14:00.450 --> 00:14:02.520
about whether there's a valid warrant or not,
324
00:14:02.520 --> 00:14:03.900
and I would suggest there is a valid warrant.
325
00:14:03.900 --> 00:14:05.820
Even if it's styled as an anticipatory warrant,
326
00:14:05.820 --> 00:14:08.763
I think that's not necessarily dispositive.
327
00:14:10.980 --> 00:14:15.980
So it would have been issued as a anticipatory warrant
328
00:14:16.290 --> 00:14:20.220
that is not valid because the triggering condition
329
00:14:20.220 --> 00:14:24.720
was not met, but we would somehow deem it or transform it
330
00:14:24.720 --> 00:14:29.370
into a traditional warrant based
331
00:14:29.370 --> 00:14:32.403
on the contents of the affidavit.
332
00:14:34.110 --> 00:14:35.340
I think, right, 'cause I think the question,
333
00:14:35.340 --> 00:14:37.200
and we're looking at what the warrant requirement is
334
00:14:37.200 --> 00:14:38.790
under Article 14.
335
00:14:38.790 --> 00:14:41.790
Article 14 doesn't talk about anticipatory warrants
336
00:14:41.790 --> 00:14:43.040
or regular or traditional warrants.
337
00:14:43.040 --> 00:14:44.760
It just talks about the warrant requirement
338
00:14:44.760 --> 00:14:46.770
and what is, I think, the heart of it
339
00:14:46.770 --> 00:14:49.890
is whether or not information sworn under oath provided
340
00:14:49.890 --> 00:14:53.820
to a magistrate provides probable cause,
341
00:14:53.820 --> 00:14:56.223
and that's what happened,
342
00:14:57.300 --> 00:14:59.790
and so that would be the Commonwealth's position.
343
00:14:59.790 --> 00:15:03.120
Even though you were asking us to guess as to the math
344
00:15:03.120 --> 00:15:05.760
that the magistrate would have considered
345
00:15:05.760 --> 00:15:09.510
and found probable cause even though we don't know that.
346
00:15:09.510 --> 00:15:12.060
I think that happens in excising cases as well.
347
00:15:12.060 --> 00:15:14.790
It does, but this is a big deal
348
00:15:14.790 --> 00:15:18.060
because you're going into the house with a limited warrant
349
00:15:18.060 --> 00:15:21.540
that now you're saying that this person that reviewed it
350
00:15:21.540 --> 00:15:25.350
would have allowed it for all purposes in any event.
351
00:15:25.350 --> 00:15:30.213
That's a big deal, but we have to draw that inference.
352
00:15:31.223 --> 00:15:34.890
I mean, I think so based under the other case law
353
00:15:34.890 --> 00:15:36.750
regarding excising-
354
00:15:36.750 --> 00:15:39.360
The excising cases are a remedy, right?
355
00:15:39.360 --> 00:15:40.803
For illegal information.
356
00:15:42.390 --> 00:15:43.223
Well, correct.
357
00:15:43.223 --> 00:15:44.880
Well, it's a remedy, but also,
358
00:15:44.880 --> 00:15:47.220
it's whether or not the search comports
359
00:15:47.220 --> 00:15:49.920
with Article 14 of the Fourth Amendment.
360
00:15:49.920 --> 00:15:52.590
And so if it doesn't, if you excise it out
361
00:15:52.590 --> 00:15:55.230
and the other information otherwise
362
00:15:55.230 --> 00:15:58.050
doesn't provide probable cause, then it's suppression.
363
00:15:58.050 --> 00:16:01.140
So I don't think it's just solely a remedy.
364
00:16:01.140 --> 00:16:03.690
I think it also addresses whether or not the search
365
00:16:03.690 --> 00:16:05.590
was unreasonable and unconstitutional.
366
00:16:07.860 --> 00:16:09.460
Okay. Thank you.
Thank you.
367
00:16:12.270 --> 00:16:13.653
Okay, Attorney Masferrer.
368
00:16:20.130 --> 00:16:21.870
Good morning, may it please the court,
369
00:16:21.870 --> 00:16:24.753
Eduardo Masferrer for the appellee Victor Mercedes.
370
00:16:26.970 --> 00:16:30.270
The Commonwealth asks this court to allow officers
371
00:16:30.270 --> 00:16:32.760
to ignore the court's carefully laid out procedure
372
00:16:32.760 --> 00:16:35.820
in Colandris and permit them unfettered discretion.
373
00:16:35.820 --> 00:16:37.140
Well, Colandris is dicta.
374
00:16:37.140 --> 00:16:40.530
So why should that be the rule?
375
00:16:40.530 --> 00:16:43.710
Respectfully, I don't think Colandris is dicta.
376
00:16:43.710 --> 00:16:44.700
I think when the court goes-
377
00:16:44.700 --> 00:16:46.650
Well, regardless, let's just assume I do.
378
00:16:46.650 --> 00:16:47.787
Of course, your Honor, and-
379
00:16:47.787 --> 00:16:50.430
And so given that it's dicta,
380
00:16:50.430 --> 00:16:52.980
tell me why that's the right procedure
381
00:16:52.980 --> 00:16:57.570
and the only procedure, given that they're assuming
382
00:16:57.570 --> 00:17:00.480
that there's probable cause to search this house
383
00:17:00.480 --> 00:17:02.460
without the triggering event.
384
00:17:02.460 --> 00:17:04.590
Because the court has held since Commonwealth versus Cruz
385
00:17:04.590 --> 00:17:05.790
that a warrant that's issued
386
00:17:05.790 --> 00:17:07.980
before the necessary events have occurred,
387
00:17:07.980 --> 00:17:10.620
which will allow a constitutional search of the premises,
388
00:17:10.620 --> 00:17:13.020
is how anticipatory search warrant is defined,
389
00:17:13.020 --> 00:17:16.080
and the court has held if those events do not transpire,
390
00:17:16.080 --> 00:17:17.520
the warrant is-
391
00:17:17.520 --> 00:17:19.470
Why don't we adopt Vigno?
392
00:17:19.470 --> 00:17:22.047
I'm sorry, your Honor?
Why don't we adopt Vigno?
393
00:17:22.047 --> 00:17:23.700
The First Circuit case.
The First Circuit case.
394
00:17:23.700 --> 00:17:25.920
Because again, it would create this sort of situation
395
00:17:25.920 --> 00:17:27.840
where we're letting an officer decide
396
00:17:27.840 --> 00:17:29.283
what it is they can do-
397
00:17:30.180 --> 00:17:34.020
I look briefly at the circuits,
398
00:17:34.020 --> 00:17:37.147
and there's Vigno, and there's a few other cases that say,
399
00:17:37.147 --> 00:17:38.670
"Well, we're gonna do exactly
400
00:17:38.670 --> 00:17:41.400
what the Commonwealth asked us to do in this case."
401
00:17:41.400 --> 00:17:44.640
Are you aware of any case that says that's impermissible?
402
00:17:44.640 --> 00:17:47.010
Judge, I would think this quote in Cruz said
403
00:17:47.010 --> 00:17:48.210
that the warrant is void
404
00:17:48.210 --> 00:17:49.980
if the anticipatory event doesn't occur.
405
00:17:49.980 --> 00:17:52.020
It wasn't raised, the issue.
406
00:17:52.020 --> 00:17:53.760
It was raised in Colandris.
407
00:17:53.760 --> 00:17:55.590
In Colandris, the underlying court found
408
00:17:55.590 --> 00:17:58.260
that adopted the Commonwealth's position.
409
00:17:58.260 --> 00:17:59.820
When they appealed it to this court,
410
00:17:59.820 --> 00:18:01.653
this court did not adopt it.
411
00:18:03.000 --> 00:18:04.830
We all know what Colandris says.
412
00:18:04.830 --> 00:18:07.950
So what I'm asking you squarely is are you aware
413
00:18:07.950 --> 00:18:10.860
of any case where this issue was presented
414
00:18:10.860 --> 00:18:15.720
in an appellate court, state or federal has said that no
415
00:18:15.720 --> 00:18:19.560
and has rejected this proposition the Commonwealth asks us?
416
00:18:19.560 --> 00:18:22.019
Judge, no is the short answer.
417
00:18:22.019 --> 00:18:22.852
Okay, yeah.
Of course.
418
00:18:22.852 --> 00:18:23.685
Thank you.
I apologize.
419
00:18:23.685 --> 00:18:24.750
No is the short answer except
420
00:18:24.750 --> 00:18:26.070
that the court certainly had the opportunity
421
00:18:26.070 --> 00:18:28.890
in Colandris to affirm it, decided not to,
422
00:18:28.890 --> 00:18:32.299
and in dicta provided them a complete procedure-
423
00:18:32.299 --> 00:18:34.350
So why not follow the First Circuit rule?
424
00:18:34.350 --> 00:18:36.630
Because it's an outlier in the Article 14.
425
00:18:36.630 --> 00:18:37.463
It's an outlier?
426
00:18:37.463 --> 00:18:38.850
It seems like the only decision,
427
00:18:38.850 --> 00:18:42.180
maybe another one that actually holds contrary
428
00:18:42.180 --> 00:18:45.390
to the position that you're suggesting.
429
00:18:45.390 --> 00:18:47.070
Article 14 provides greater protection
430
00:18:47.070 --> 00:18:48.540
than the Fourth Amendment.
431
00:18:48.540 --> 00:18:51.240
So the federal cases that are examining the Fourth Amendment
432
00:18:51.240 --> 00:18:52.800
are not using the same standard
433
00:18:52.800 --> 00:18:54.840
that this court has implied for Article 14.
434
00:18:54.840 --> 00:18:58.080
So why should we in Article 14 have a greater standard
435
00:18:58.080 --> 00:19:00.090
than the Fourth Amendment in this context
436
00:19:00.090 --> 00:19:03.180
where the underlying affidavit provides probable cause
437
00:19:03.180 --> 00:19:04.800
to search 10 first?
438
00:19:04.800 --> 00:19:06.690
So because the Commonwealth,
439
00:19:06.690 --> 00:19:08.850
when they ask for an anticipatory search warrant,
440
00:19:08.850 --> 00:19:11.490
they're saying it only occurs in this circumstance.
441
00:19:11.490 --> 00:19:14.430
If the court says, "Even though you've requested it
442
00:19:14.430 --> 00:19:16.620
to only have probable cause in this circumstance,
443
00:19:16.620 --> 00:19:18.510
we are now going to open the door
444
00:19:18.510 --> 00:19:21.480
for a police officer to go in anyway," right?
445
00:19:21.480 --> 00:19:22.950
The anticipatory event doesn't occur, we know-
446
00:19:22.950 --> 00:19:24.297
If there's probable cause.
447
00:19:24.297 --> 00:19:26.130
But the officer doesn't know that.
448
00:19:26.130 --> 00:19:27.630
The officer applied for probable cause
449
00:19:27.630 --> 00:19:29.340
under one group of circumstances.
450
00:19:29.340 --> 00:19:30.761
He said,
451
00:19:30.761 --> 00:19:31.950
"I thought there was probable cause in this circumstance."
452
00:19:31.950 --> 00:19:32.783
The magistrate says,
453
00:19:32.783 --> 00:19:35.310
"I think there's probable cause in this circumstance."
454
00:19:35.310 --> 00:19:36.690
When the triggering event doesn't occur,
455
00:19:36.690 --> 00:19:38.077
if we now tell police,
456
00:19:38.077 --> 00:19:41.010
"When the triggering event doesn't occur, go on in anyway,"
457
00:19:41.010 --> 00:19:43.447
because later on a prosecutor can be creative and say,
458
00:19:43.447 --> 00:19:46.140
"No, no, no, no, no, there was probable cause,"
459
00:19:46.140 --> 00:19:49.110
then we have eliminated the warrant requirement.
460
00:19:49.110 --> 00:19:50.670
What would be the difference then?
461
00:19:50.670 --> 00:19:53.190
Sorry, the only exception to the warrant requirement
462
00:19:53.190 --> 00:19:55.740
is probable cause plus exigency.
463
00:19:55.740 --> 00:19:58.920
If we eliminated exigency, then why do you need a warrant?
464
00:19:58.920 --> 00:20:02.610
You could just simply say, "I applied for a warrant.
465
00:20:02.610 --> 00:20:04.110
I asked for an anticipatory one.
466
00:20:04.110 --> 00:20:05.370
He said, yes, but you know what?
467
00:20:05.370 --> 00:20:07.530
I should've done a probable cause warrant."
468
00:20:07.530 --> 00:20:10.170
The next step for that is I applied for a warrant,
469
00:20:10.170 --> 00:20:13.890
I thought I had probable cause, the magistrate said no,
470
00:20:13.890 --> 00:20:16.470
and I decide as a police officer to do it anyway.
471
00:20:16.470 --> 00:20:17.473
Come on.
Because I think-
472
00:20:17.473 --> 00:20:19.830
Masferrer, please.
No, no, no, no.
473
00:20:19.830 --> 00:20:22.110
You're straining your credibility by going to the next step.
474
00:20:22.110 --> 00:20:23.546
Let me ask you a real question then,
475
00:20:23.546 --> 00:20:24.379
Yes, your Honor.
476
00:20:24.379 --> 00:20:25.353
not just this fanciful stuff.
477
00:20:26.880 --> 00:20:29.520
How do you distinguish the cases
478
00:20:29.520 --> 00:20:30.780
that the Commonwealth relies on
479
00:20:30.780 --> 00:20:33.900
on excising bad information and still having probable cause
480
00:20:33.900 --> 00:20:35.580
and that's what the court looks at?
481
00:20:35.580 --> 00:20:36.420
Two ways.
482
00:20:36.420 --> 00:20:38.460
First, because in this particular case,
483
00:20:38.460 --> 00:20:42.067
an officer testified and was asked specifically,
484
00:20:42.067 --> 00:20:43.980
"Did you think you could go into the house
485
00:20:43.980 --> 00:20:45.810
if the triggering event did not occur?"
486
00:20:45.810 --> 00:20:48.840
That is in the March 26th transcript, page 48.
487
00:20:48.840 --> 00:20:51.900
He said, "No, I did not think I could do it."
488
00:20:51.900 --> 00:20:53.400
So it's not like we're in a situation
489
00:20:53.400 --> 00:20:55.530
where an officer made a good faith mistake
490
00:20:55.530 --> 00:20:57.960
or perhaps put information that was incorrect to put in
491
00:20:57.960 --> 00:20:59.670
and therefore we saved the warrant.
492
00:20:59.670 --> 00:21:01.830
As your honor pointed out, it's a remedy.
493
00:21:01.830 --> 00:21:03.450
So the difference in those cases
494
00:21:03.450 --> 00:21:05.700
is we have a warrant before the court.
495
00:21:05.700 --> 00:21:07.380
There's something either unconstitutional
496
00:21:07.380 --> 00:21:10.057
or erroneous in the warrant, and instead of simply saying,
497
00:21:10.057 --> 00:21:11.947
"The whole warrant's tossed," the court says,
498
00:21:11.947 --> 00:21:14.400
"There's a remedy, let's excise out and see what's left."
499
00:21:14.400 --> 00:21:15.480
And that test, I'm sorry,
500
00:21:15.480 --> 00:21:17.460
is that based on the subjective intent
501
00:21:17.460 --> 00:21:20.250
of the officer who's applied the erroneous information?
502
00:21:20.250 --> 00:21:22.407
It's not based on the subjective intent.
503
00:21:22.407 --> 00:21:23.880
It's the-
So why should this one be?
504
00:21:23.880 --> 00:21:26.160
Because it's not the subjective intent of the officer.
505
00:21:26.160 --> 00:21:30.126
It's the magistrate. So the magistrate looks at it.
506
00:21:30.126 --> 00:21:30.959
What the Commonwealth is saying,
507
00:21:30.959 --> 00:21:32.400
"If the magistrate had looked at it
508
00:21:32.400 --> 00:21:34.140
without this information,
509
00:21:34.140 --> 00:21:36.240
he would've done or she would've done something."
510
00:21:36.240 --> 00:21:37.680
We don't know that.
511
00:21:37.680 --> 00:21:39.510
That's not been demonstrated to the magistrate.
512
00:21:39.510 --> 00:21:41.287
They didn't call the magistrate as a witness to say,
513
00:21:41.287 --> 00:21:42.900
"I would've done it anyway."
514
00:21:42.900 --> 00:21:43.860
They don't know.
515
00:21:43.860 --> 00:21:46.860
The officer doesn't say, "I went forward in this manner
516
00:21:46.860 --> 00:21:49.650
because I thought this was correct."
517
00:21:49.650 --> 00:21:53.580
Is the judge upon complaint by the defense
518
00:21:53.580 --> 00:21:55.260
like you did in this case,
519
00:21:55.260 --> 00:21:57.660
isn't the judge on a motion to suppress,
520
00:21:57.660 --> 00:22:02.603
aren't they able to look at that same underlying affidavit
521
00:22:02.603 --> 00:22:04.920
that was in front of the magistrate
522
00:22:04.920 --> 00:22:08.520
to obviate the creativity of the prosecution
523
00:22:08.520 --> 00:22:11.040
to recast the probable cause analysis?
524
00:22:11.040 --> 00:22:13.440
They are not.
How? How are they not?
525
00:22:13.440 --> 00:22:16.200
Because the Article 14's point
526
00:22:16.200 --> 00:22:18.780
is not does a police officer think there's probable cause.
527
00:22:18.780 --> 00:22:21.900
It's after I present it to someone who is not me,
528
00:22:21.900 --> 00:22:23.820
a neutral magistrate-
I'm agreeing with you.
529
00:22:23.820 --> 00:22:25.650
That's why I'm saying I'm not worried
530
00:22:25.650 --> 00:22:28.170
about what the police officer testified to.
531
00:22:28.170 --> 00:22:32.880
I'm saying what is in the affidavit that at least initially
532
00:22:32.880 --> 00:22:35.340
was only for an anticipatory warrant.
533
00:22:35.340 --> 00:22:39.300
But now on the complaint
534
00:22:39.300 --> 00:22:40.890
that they go in and they get something,
535
00:22:40.890 --> 00:22:43.080
and now you wanna file the motion to suppress.
536
00:22:43.080 --> 00:22:45.547
I'm saying what's to keep the court from saying,
537
00:22:45.547 --> 00:22:47.340
"Okay, what was in front of the magistrate
538
00:22:47.340 --> 00:22:49.620
when they issued the anticipatory warrant
539
00:22:49.620 --> 00:22:52.770
that perhaps there was more probable cause than just
540
00:22:52.770 --> 00:22:55.200
if the triggering event happened or didn't happen?"
541
00:22:55.200 --> 00:22:56.730
Because if we allowed that sort
542
00:22:56.730 --> 00:23:00.457
of post-event analysis to occur, we're telling the police,
543
00:23:00.457 --> 00:23:02.220
"You can always go into the house,
544
00:23:02.220 --> 00:23:04.740
and someone else will then subsequently try
545
00:23:04.740 --> 00:23:06.240
to justify your actions."
546
00:23:06.240 --> 00:23:07.950
That's giving the police the discretion
547
00:23:07.950 --> 00:23:09.720
that Article 14 is trying to take away.
548
00:23:09.720 --> 00:23:12.480
Can you address particularity?
549
00:23:12.480 --> 00:23:14.790
The particularity requirement.
I can, Judge,
550
00:23:14.790 --> 00:23:16.507
in the sense of if you tell the magistrate,
551
00:23:16.507 --> 00:23:18.870
"This is the exact reason of why I'm entering
552
00:23:18.870 --> 00:23:20.940
and where I'm going," your Honor says particularity.
553
00:23:20.940 --> 00:23:23.197
I should've looked at the cause and foundation requirement.
554
00:23:23.197 --> 00:23:24.930
"This is why I'm going in there."
555
00:23:24.930 --> 00:23:26.437
The magistrate looks at that and says,
556
00:23:26.437 --> 00:23:29.640
"Based on this information, what you've told me as a whole,
557
00:23:29.640 --> 00:23:31.587
now I say you can go in."
558
00:23:32.610 --> 00:23:35.550
If the Commonwealth would like to do a different item,
559
00:23:35.550 --> 00:23:38.010
sort of do this traditional warrant analysis,
560
00:23:38.010 --> 00:23:39.810
they have a solution for that.
561
00:23:39.810 --> 00:23:41.070
The solution was the one
562
00:23:41.070 --> 00:23:43.110
that the court proposed in Colandris.
563
00:23:43.110 --> 00:23:44.910
It is not a heavy lift for the Commonwealth
564
00:23:44.910 --> 00:23:46.260
to that procedure.
565
00:23:46.260 --> 00:23:47.400
They take the same warrant,
566
00:23:47.400 --> 00:23:49.897
and they staple it to a new cover sheet, and they say,
567
00:23:49.897 --> 00:23:52.110
"Please analyze this, magistrate,
568
00:23:52.110 --> 00:23:53.520
without the triggering event.
569
00:23:53.520 --> 00:23:55.230
Look at it as a traditional warrant."
570
00:23:55.230 --> 00:23:57.600
That is not a heavy limitation on the Commonwealth,
571
00:23:57.600 --> 00:24:00.300
and then we would know from the magistrate's determination
572
00:24:00.300 --> 00:24:02.580
whether they thought that was sufficient or not.
573
00:24:02.580 --> 00:24:04.080
We don't need to second guess.
574
00:24:04.080 --> 00:24:06.000
We don't need to let the police go into houses
575
00:24:06.000 --> 00:24:08.370
and then decide if they had the right reason or not,
576
00:24:08.370 --> 00:24:11.880
and that is my concern and I think the court's concern
577
00:24:11.880 --> 00:24:15.420
in allowing this post-review analysis.
578
00:24:15.420 --> 00:24:17.070
Can I ask?
579
00:24:17.070 --> 00:24:22.070
I don't read Colandris as a classic Article 14 case.
580
00:24:22.290 --> 00:24:26.580
It seems to be a Fourth Amendment type of analysis.
581
00:24:26.580 --> 00:24:28.440
It throws in some state cases,
582
00:24:28.440 --> 00:24:30.900
but it's not one of the cases
583
00:24:30.900 --> 00:24:33.180
where we're saying we're providing greater protection.
584
00:24:33.180 --> 00:24:34.770
Right? How do we know?
585
00:24:34.770 --> 00:24:35.603
I mean, it looks
586
00:24:35.603 --> 00:24:38.793
like they're just applying Fourth Amendment law here.
587
00:24:40.020 --> 00:24:41.370
I mean-
I think, Your Honor,
588
00:24:41.370 --> 00:24:42.420
it's because in Colandris,
589
00:24:42.420 --> 00:24:46.410
the way it came up was you had a motion judge saying,
590
00:24:46.410 --> 00:24:48.097
adopting the Commonwealth argument,
591
00:24:48.097 --> 00:24:50.580
"Even though it's applied as an anticipatory search warrant,
592
00:24:50.580 --> 00:24:52.350
I don't find that there was compliance
593
00:24:52.350 --> 00:24:53.490
with the triggering events,
594
00:24:53.490 --> 00:24:55.680
but I do see that there's probable cause.
595
00:24:55.680 --> 00:24:58.440
So therefore, I'm allowing the search anyway."
596
00:24:58.440 --> 00:25:00.780
When it comes up on appeal,
597
00:25:00.780 --> 00:25:02.640
that issue was squarely before the court.
598
00:25:02.640 --> 00:25:05.167
The court did not go that route and instead said,
599
00:25:05.167 --> 00:25:06.600
"Nope, the magistrate was incorrect.
600
00:25:06.600 --> 00:25:09.000
There was equivalent compliance,
601
00:25:09.000 --> 00:25:11.190
and that's why the triggering event was honored,"
602
00:25:11.190 --> 00:25:14.040
and then said, "Here's a procedure.
603
00:25:14.040 --> 00:25:15.210
If you, police"-
604
00:25:15.210 --> 00:25:17.790
Again, mine's a more specific question.
605
00:25:17.790 --> 00:25:19.590
I'm sorry.
The cites in Colandris
606
00:25:19.590 --> 00:25:21.603
are to Grubbs, LaFave.
607
00:25:23.880 --> 00:25:25.470
They're not citing any of the cases
608
00:25:25.470 --> 00:25:27.930
in which we provide greater protection.
609
00:25:27.930 --> 00:25:30.720
At least they're not promising anything on that, right?
610
00:25:30.720 --> 00:25:33.210
They aren't because the court in Colandris,
611
00:25:33.210 --> 00:25:35.670
for whatever reason, didn't outwardly reject,
612
00:25:35.670 --> 00:25:38.284
instead kept leaving this door open,
613
00:25:38.284 --> 00:25:39.117
which is what the Commonwealth
614
00:25:39.117 --> 00:25:40.080
is asking the court to here do.
615
00:25:40.080 --> 00:25:41.310
And so the court doesn't, I think,
616
00:25:41.310 --> 00:25:44.940
squarely address that issue because it elected to find
617
00:25:44.940 --> 00:25:47.340
that the warrant was valid on a different issue.
618
00:25:49.435 --> 00:25:51.420
If we're looking at the Fourth Amendment law,
619
00:25:51.420 --> 00:25:55.620
Justice Gaziano's question, it sounds like you lose.
620
00:25:55.620 --> 00:25:59.100
So we need to do this under Article 14 for you to win?
621
00:25:59.100 --> 00:26:01.950
No, I know there have been some federal courts
622
00:26:01.950 --> 00:26:02.790
that have cited that.
623
00:26:02.790 --> 00:26:05.070
Your Honor asked me did I know of a federal case
624
00:26:05.070 --> 00:26:06.630
that specifically said they couldn't do this.
625
00:26:06.630 --> 00:26:07.860
I don't.
626
00:26:07.860 --> 00:26:09.690
If the distinguishing factor is that it's not
627
00:26:09.690 --> 00:26:12.043
that there's uniform agreement under the Fourth Amendment-
628
00:26:12.043 --> 00:26:13.050
There's no Supreme Court case on this.
629
00:26:13.050 --> 00:26:15.240
That is correct, and it's not like all the circuits agree.
630
00:26:15.240 --> 00:26:17.430
We have some, I view 'em as outlier,
631
00:26:17.430 --> 00:26:19.650
but some cases where this has been permitted.
632
00:26:19.650 --> 00:26:21.570
This court doesn't need to reach that issue
633
00:26:21.570 --> 00:26:23.910
because it's repeatedly said in Article 14.
634
00:26:23.910 --> 00:26:27.570
Can I ask you to address whether this really is a,
635
00:26:27.570 --> 00:26:28.620
I don't know how we're pronouncing it,
636
00:26:28.620 --> 00:26:31.680
but Vigno or Vigno type situation.
637
00:26:31.680 --> 00:26:33.630
In Vigno, the condition
638
00:26:33.630 --> 00:26:36.630
was that they literally just leave the package
639
00:26:36.630 --> 00:26:39.930
outside the building and wait 10 or 15 minutes,
640
00:26:39.930 --> 00:26:41.377
and Judge Boudin wrote,
641
00:26:41.377 --> 00:26:44.160
"That did not add to probable cause.
642
00:26:44.160 --> 00:26:46.650
The fact that the package sat there for 10
643
00:26:46.650 --> 00:26:50.940
to 15 minutes didn't provide any additional probable cause."
644
00:26:50.940 --> 00:26:52.200
So I have two questions here.
645
00:26:52.200 --> 00:26:55.530
First, can you tell us your position on whether,
646
00:26:55.530 --> 00:26:58.680
in this case, the same is true that,
647
00:26:58.680 --> 00:27:01.260
with respect to the Salem address,
648
00:27:01.260 --> 00:27:03.510
there was no material addition
649
00:27:03.510 --> 00:27:08.510
to the probable cause calculus from the anticipated trigger.
650
00:27:08.622 --> 00:27:10.200
Is that-
Yes, there is a difference,
651
00:27:10.200 --> 00:27:12.780
and that is because, as the court is well aware,
652
00:27:12.780 --> 00:27:14.460
drugs are a disposable commodity.
653
00:27:14.460 --> 00:27:15.540
We don't know if drugs are gonna be
654
00:27:15.540 --> 00:27:18.270
in any particular location at a time.
655
00:27:18.270 --> 00:27:19.650
In this particular case,
656
00:27:19.650 --> 00:27:21.420
I think the logical inference is the police
657
00:27:21.420 --> 00:27:23.640
were uncertain if the drugs were gonna be present
658
00:27:23.640 --> 00:27:25.770
in any location, and therefore,
659
00:27:25.770 --> 00:27:29.017
they were waiting for the arrival of the package to say,
660
00:27:29.017 --> 00:27:31.410
"Oh, now they're ready to engage in distribution."
661
00:27:31.410 --> 00:27:33.000
So since the package is arriving,
662
00:27:33.000 --> 00:27:34.530
they'll be cut in a certain location.
663
00:27:34.530 --> 00:27:36.180
There'll be baggies. There'll be-
664
00:27:36.180 --> 00:27:37.380
But if they're arresting,
665
00:27:37.380 --> 00:27:39.660
they're searching the person as soon as they pick up the box
666
00:27:39.660 --> 00:27:42.153
and then they're executing the searches,
667
00:27:44.277 --> 00:27:46.170
the fact of that anticipatory event
668
00:27:46.170 --> 00:27:48.720
that the trigger being triggered does not mean
669
00:27:48.720 --> 00:27:52.200
that there's any more or less evidence at the Salem address.
670
00:27:52.200 --> 00:27:55.000
By definition, nothing's gonna get to the Salem address.
671
00:27:57.330 --> 00:27:58.860
Understanding that we don't think there
672
00:27:58.860 --> 00:28:00.690
is probable cause to search the Salem address
673
00:28:00.690 --> 00:28:02.700
because it's only his residence.
674
00:28:02.700 --> 00:28:04.590
In the light most favorable to the Commonwealth,
675
00:28:04.590 --> 00:28:06.390
you would think that because he's ordered something,
676
00:28:06.390 --> 00:28:08.880
maybe there now will be something at the Salem address
677
00:28:08.880 --> 00:28:12.120
like a receipt or an invoice or something requesting it
678
00:28:12.120 --> 00:28:15.060
or communication or they'll have money or cutting agents,
679
00:28:15.060 --> 00:28:17.100
something to show they're prepared.
680
00:28:17.100 --> 00:28:19.260
That's why the officer asked for it.
681
00:28:19.260 --> 00:28:20.670
The officer had some reason,
682
00:28:20.670 --> 00:28:22.500
he's not an inexperienced officer,
683
00:28:22.500 --> 00:28:24.746
to seek an anticipatory warrant,
684
00:28:24.746 --> 00:28:27.036
and I think the logical inference,
685
00:28:27.036 --> 00:28:28.740
I appreciate he didn't say it and nobody asked him,
686
00:28:28.740 --> 00:28:30.690
but it appears to be that he didn't believe
687
00:28:30.690 --> 00:28:31.523
that there would be evidence-
688
00:28:31.523 --> 00:28:34.530
Well, leaving aside subjective inquiry,
689
00:28:34.530 --> 00:28:36.870
which second question.
690
00:28:36.870 --> 00:28:41.870
So what if you had a case where it's very clear that the,
691
00:28:45.030 --> 00:28:48.000
so here, the affidavit is a bit peculiar
692
00:28:48.000 --> 00:28:51.010
because it does recite in numerous locations
693
00:28:51.930 --> 00:28:54.180
that they believe they have probable cause of X.
694
00:28:54.180 --> 00:28:56.257
There's a lot of statements.
695
00:28:56.257 --> 00:28:58.170
"We have probable cause of X, we have probable cause,"
696
00:28:58.170 --> 00:29:00.990
and then it says, "The triggering condition for execution
697
00:29:00.990 --> 00:29:04.650
of this warrant will be," and describes whatever.
698
00:29:04.650 --> 00:29:09.367
So what if you had an affidavit that said,
699
00:29:09.367 --> 00:29:13.170
"The triggering condition for this warrant
700
00:29:13.170 --> 00:29:17.460
will be that it will be noon tomorrow"?
701
00:29:17.460 --> 00:29:19.650
So there's not any condition.
702
00:29:19.650 --> 00:29:22.410
It's just they're stating when it will be executed,
703
00:29:22.410 --> 00:29:25.230
but they frame it as an anticipatory warrant.
704
00:29:25.230 --> 00:29:28.260
So that's a far cry from what we have here.
705
00:29:28.260 --> 00:29:29.850
I understand that, but it goes to the question
706
00:29:29.850 --> 00:29:31.740
of what is an anticipatory warrant?
707
00:29:31.740 --> 00:29:34.800
And what Colandris says is that implicit
708
00:29:34.800 --> 00:29:36.180
in an anticipatory warrant
709
00:29:36.180 --> 00:29:37.800
is that there's not probable cause
710
00:29:37.800 --> 00:29:40.200
without the triggering condition.
711
00:29:40.200 --> 00:29:44.790
And you know, the question is at what moment
712
00:29:44.790 --> 00:29:48.273
do we judge whether it truly is anticipatory?
713
00:29:51.090 --> 00:29:53.100
I think under the facts of this case,
714
00:29:53.100 --> 00:29:54.780
everyone agrees it's anticipatory.
715
00:29:54.780 --> 00:29:57.450
The officer stated it, page 36.
716
00:29:57.450 --> 00:30:00.510
He says that he did not apply for a traditional warrant.
717
00:30:00.510 --> 00:30:02.497
I'm trying to get to the question, right, but we're saying,
718
00:30:02.497 --> 00:30:04.140
"Well, what in the different circumstance
719
00:30:04.140 --> 00:30:06.390
that's not presented here with a triggering event
720
00:30:06.390 --> 00:30:08.460
isn't so specific where it's a closer cause
721
00:30:08.460 --> 00:30:11.100
to whether it's anticipatory or traditional,"
722
00:30:11.100 --> 00:30:12.270
that might be a different case.
723
00:30:12.270 --> 00:30:14.730
That sounds like it's not an anticipatory search warrant.
724
00:30:14.730 --> 00:30:17.400
It's a traditional warrant that's just listing out the time
725
00:30:17.400 --> 00:30:19.470
that we're gonna execute it.
726
00:30:19.470 --> 00:30:20.850
So I think that's the differentiating
727
00:30:20.850 --> 00:30:22.320
in your Honor's hypothetical-
728
00:30:22.320 --> 00:30:25.050
That'd be a question of law for the trial court
729
00:30:25.050 --> 00:30:26.850
and then the reviewing court in the first instance,
730
00:30:26.850 --> 00:30:29.040
whether it truly was an anticipatory warrant.
731
00:30:29.040 --> 00:30:32.580
So if that's true, then why not the same here
732
00:30:32.580 --> 00:30:36.000
where the court can say, "It was an anticipatory warrant
733
00:30:36.000 --> 00:30:37.710
with respect to the Hamilton Street address
734
00:30:37.710 --> 00:30:39.270
where the drugs were actually gonna arrive,
735
00:30:39.270 --> 00:30:41.220
but it was not an anticipatory warrant
736
00:30:41.220 --> 00:30:43.290
with respect to the Salem address because this
737
00:30:43.290 --> 00:30:46.260
wasn't gonna materially add anything for Salem"?
738
00:30:46.260 --> 00:30:48.240
Because if we don't require the police
739
00:30:48.240 --> 00:30:50.850
to tell both to the magistrate, you're just, again,
740
00:30:50.850 --> 00:30:53.130
giving them discretion at the time of execution
741
00:30:53.130 --> 00:30:55.920
as to how they may want to read it,
742
00:30:55.920 --> 00:30:57.870
or what really happened this case,
743
00:30:57.870 --> 00:31:00.270
they went in knowing the triggering event didn't occur,
744
00:31:00.270 --> 00:31:02.070
and then they just hope that someone else,
745
00:31:02.070 --> 00:31:03.630
presumably the attorneys for the Commonwealth,
746
00:31:03.630 --> 00:31:06.750
will come up with a way to justify it, and that is,
747
00:31:06.750 --> 00:31:10.470
I think what should give the court a lot of concern here.
748
00:31:10.470 --> 00:31:14.220
The court has said previously that it does not wanna engage
749
00:31:14.220 --> 00:31:15.210
in what the court
750
00:31:15.210 --> 00:31:18.240
has called leisured retrospective analysis,
751
00:31:18.240 --> 00:31:21.000
which is where there's an after the fact discovery
752
00:31:21.000 --> 00:31:24.030
of a justification that never occurred to
753
00:31:24.030 --> 00:31:26.100
or was mentioned by the police
754
00:31:26.100 --> 00:31:29.190
but is subsequently imputed to the police in an effort
755
00:31:29.190 --> 00:31:32.100
to save a well-intentioned but flawed prosecution.
756
00:31:32.100 --> 00:31:33.787
So it's not like the officers here said,
757
00:31:33.787 --> 00:31:36.480
"We thought we could do this for these reasons,
758
00:31:36.480 --> 00:31:37.980
and therefore that was the factual basis."
759
00:31:37.980 --> 00:31:38.910
This is a different case
760
00:31:38.910 --> 00:31:41.100
if we had a good faith exception.
761
00:31:41.100 --> 00:31:42.780
It would be if there's a series of facts
762
00:31:42.780 --> 00:31:44.587
where the officer said,
763
00:31:44.587 --> 00:31:46.110
"Here's how I submitted the warrant.
764
00:31:46.110 --> 00:31:49.470
I thought I was doing the Colandris system.
765
00:31:49.470 --> 00:31:50.700
Maybe I didn't write it properly
766
00:31:50.700 --> 00:31:51.930
or it doesn't come across properly."
767
00:31:51.930 --> 00:31:53.880
I think that would be a very different case.
768
00:31:53.880 --> 00:31:55.830
But the history that the court has here
769
00:31:55.830 --> 00:31:57.150
is the Commonwealth thought
770
00:31:57.150 --> 00:31:59.310
that there was equivalent compliance,
771
00:31:59.310 --> 00:32:01.680
and after the court found there was no equivalent compliance
772
00:32:01.680 --> 00:32:05.070
then switched to this argument to try to save one of them,
773
00:32:05.070 --> 00:32:07.950
and that's the concern that I would submit to the court.
774
00:32:07.950 --> 00:32:09.187
If the officer had said,
775
00:32:09.187 --> 00:32:11.220
"Under any of the examples you've given,
776
00:32:11.220 --> 00:32:12.870
I tried to follow a procedure.
777
00:32:12.870 --> 00:32:14.490
I tried to do something different.
778
00:32:14.490 --> 00:32:17.100
I had thought I had applied for two warrants,"
779
00:32:17.100 --> 00:32:19.470
I think we'd be in a very different situation,
780
00:32:19.470 --> 00:32:22.440
but this court has given the Commonwealth ample ways
781
00:32:22.440 --> 00:32:24.630
of solving their warrant problems, right?
782
00:32:24.630 --> 00:32:27.090
The only requirements are, one, be truthful and,
783
00:32:27.090 --> 00:32:28.800
two, submit it to the magistrate.
784
00:32:28.800 --> 00:32:30.330
The Colandris dicta,
785
00:32:30.330 --> 00:32:32.370
if the court chooses to view it that way,
786
00:32:32.370 --> 00:32:35.100
was meant to be helpful to the Commonwealth.
787
00:32:35.100 --> 00:32:37.170
If you're uncertain about this,
788
00:32:37.170 --> 00:32:39.780
if you really wanna sort of like apply for a traditional
789
00:32:39.780 --> 00:32:41.400
and non-traditional search warrant,
790
00:32:41.400 --> 00:32:44.850
here's the court telling everybody, "That is permissible."
791
00:32:44.850 --> 00:32:47.700
It's telling magistrates. It's telling defense attorneys.