-: SJC-13667, Commonwealth versus Michael P. McCarthy.
-: Okay, Attorney Johnson, whenever you're ready.
-: Thank you, and may it please the court, good morning.
My name is Melissa Johnson.
I'm a Special Assistant District Attorney
in Middlesex County here on behalf of the Commonwealth,
and I'm asking today for this Court to reverse the motion
to suppress judge's ruling here, because the detective,
our Lowell detective, did everything that was right,
everything that was reasonable,
everything that was constitutional in this case.
As the motion judge found, the seizure of the phone here
was based on probable cause and exigent circumstances.
In fact, the defendant was destroying evidence
on his phone, right in front of the detective's face.
-: It would be, if we had the good faith exception
that New Hampshire does,
that'd be a better argument, I think.
But let me ask you, if we can short circuit this
and get to inevitable discovery, then we don't have to deal
with the messy choice of our issue.
And the problem I've got with that argument,
as attractive as it may be, is we,
I think you're right that the New Hampshire police officer
certainly had probable cause to arrest this person
for destroying evidence in the officer's presence.
But we have two problems.
One is we have no testimony
by the New Hampshire police officer below,
and it doesn't seem like it was a theory
that Commonwealth was working on below.
And then secondly, probably more, well not probably,
but equally problematic, is we have a finding by the judge
that there would've been no arrest
by the New Hampshire police officer.
So how do you get around the fact that there's no testimony
by the New Hampshire police officer
in this finding by the judge for inevitable discovery?
-: Respectfully Your Honor, I think we're going
way far ahead here, because it's important to me
and to the Commonwealth that this Court understand
that what the detective did here was right.
You don't even- -: Okay but you,
before we get to that, could you answer my question?
-: I do believe, Your Honor, that the fact
that there was probable cause to search that phone,
that it was going to be searched anyway,
this officer seized it and obtained a warrant,
whether he had done it then because the defendant
was actually destroying evidence,
or whether he did it later, I don't think it really matters.
It's not an- -: If I go to New Hampshire,
I can't just seize somebody's phone.
Kafker: And so-
-: Can you just seize someone's phone,
as an officer? -: Yeah, I don't think
I can, no yeah, as an officer, as a citizen,
which is what this officer was in New Hampshire.
-: If you as an officer had probable cause,
and you had evidence that person was destroying
right in front of your face, yes absolutely-
-: But that- -: As a private citizen.
-: Well, you're mixing apples and oranges.
You're relying on the status
of the police officer extra territorially
to be a private citizen, make a citizen's arrest.
-: Right. -: So I,
all right, I'm gonna go back to my original question,
if you could answer it.
Are you abandoning the inevitable discovery argument
based upon the potential of an arrest
by the police officer in New Hampshire?
-: I'm not abandoning it at all,
but I don't think we even need to get there.
I do think that we were going to search this phone
no matter what, whether we would've seized it
under exigent circumstances, or whether we would've applied
for a warrant at some other time,
it was going to be searched.
This was a joint venture- -: Who is the we,
in your answer?
-: We, meaning the Massachusetts detectives.
-: So you're relying on inevitable disclosure
by the Massachusetts police.
-: Yes, but even before we get there,
it is important to the Commonwealth
that this panel understands what the officer did here,
what the detective did here,
whether we're talking New Hampshire law
or whether we're talking Massachusetts law.
And I do believe New Hampshire controls,
it doesn't matter either way, we get to the same result.
This detective here had the authority
to seize that phone as a private citizen.
-: Do we have to agree with you that the judge's findings,
that it wasn't a coordinated activity?
I mean, the judge finds a lot of coordination
but then concludes it's not a joint,
I can't remember the exact term of arc.
It's not a joint operation or whatever.
-: Right. -: Do we-
-: I don't- -: Do we find that as,
are we gonna reverse him on that?
Is that what you're saying?
Do we have to reverse his fact finding on that,
or his conclusions of law based on this fact finding?
-: I think you, that's part of it,
but I don't think it's absolutely necessary.
The motion judge relied very heavily on the Luna case here.
And I think, to be honest with you, Your Honor,
I spent a lot of time in my briefing
distinguishing that case based on the fact
that there was involvement,
and there was the presence of the Nashua PD here,
and so on that ground.
But honestly, I think Luna is much more narrow
than what the motion judge gave a credit for,
because in that case first of all,
the Commonwealth didn't raise the issue
as if the Springfield PD was acting as private citizens.
But if you think about it, in that case,
Springfield PD actually full-on searched the car,
which was actually in the driveway.
So there was issues with the search in and of itself.
I wonder if Springfield PD had just seized the car,
as our officer did in this case,
and then applied for a warrant,
whether we would've been talking
about the Chicopee PD present there at all.
And I think that's the issue.
They never kinda discussed that angle of it.
They didn't talk about the private citizen.
-: Luna, the other state's police officers
aren't even there, right?
-: They're not even there.
And here, our officer, our detectives,
actually contacted Nashua PD, they did everything right.
Not that I think it's required.
I do think it's best practice,
because you never know how these things-
-: Can you explain to me that your answer
to Justice Wendlandt, about how a private citizen
can seize someone's evidence?
-: Well, Your Honor, I do believe that we know
that private citizens do have the power of arrest,
on probable cause of felony.
So it just seems to be common sense
that anything that's less intrusive of that
should also be encompassed
by that power of a private citizen.
Gaziano: What's the case that says that?
-: We do have a small body of law.
We talk, we have Limone, we have La Riviere,
and we have Claiborne, all of which I've cited in my brief,
where there's a little bit less intrusive activities
that are still encompassed
by that private citizen kind of authority.
For example, in Limone, the officer,
it was a Somerville officer off duty,
who had seen someone drinking and driving,
so it was a misdemeanor.
So he doesn't quite have that kind of power of arrest.
However, this Court had found like, look,
he can do minimally intrusive things.
-: But we were very clear there that he was not acting
in an investigatory capacity, which is the opposite here,
and it was for public safety.
And he just asked the guy, "Please stay here,
like and don't move," and this is very, very different.
-: I don't think it's that different.
I agree there was a public safety issue here,
but here we have someone who is destroying evidence
right in front of the detective's face.
What is he supposed to do?
What if that were, for example,
if he was investigating a homicide
and the guy has a bloody knife in his pocket
and he's about to throw it into the Merrimack River,
is that officer or private citizen
supposed to just stand there and let that happen?
So I think that there's an immediacy, there's an exigency-
-: So you're relying on common sense extension.
There's no law out there, is that what you're saying?
-: It is a common sense, I mean we all-
Wendlandt: But no legal authority that you can point to.
-: It is private citizens, the authority of a private citizen
to do anything really that is reasonable and constitutional-
-: To investigate a crime. -: Up and to,
Up and to the idea, up and to the moment of arrest.
Sure, if you think about it, arrest is highly intrusive-
-: Don't you- -: Highly intrusive.
-: Don't you have a much better argument
that it's a coordinated investigation?
I mean, you're pushing the citizen's arrest thing
in a way that, you really don't want to go there, do you?
-: Well, Your Honor, that's an excellent, excellent point,
except for, and I agree this case is completely different
from Luna because we have the presence and involvement.
But I'm not just standing here for this case.
I am standing here for the authority
of all of our detectives who are investigating a case
within our own jurisdiction, or in their jurisdiction,
to be able to go outside of their jurisdiction
and interview witnesses.
And if by chance something happens in front of their face,
they should have the ability to address it
reasonably and constitutionally without the other-
-: The authority of officers- -: Post juris thing there.
-: The authority of officers under the rule you're proposing
would be nationwide.
-: It would be wherever the officer is going
outside of his jurisdiction to investigate a crime,
which happens every single day, to interview witnesses.
If something is happening in terms of destruction
of evidence right in front of their face-
-: The basic rule about the limited jurisdiction of officers,
you're suggesting should be changed,
so that officers can investigate
wherever the evidence takes them,
without having to reach out to the local authorities
to coordinate an investigation.
-: I always think it's good practice
to reach out to local authorities, 'cause you never know-
-: No, but as a constitutional motion to suppress matter,
you're saying it's not necessary-
-: Not necessary. -: That the rule should be
nationwide jurisdiction for any evidentiary investigation.
-: And I apologize for interrupting you, Your Honor.
It's a pretty straightforward formula
that is not going to change.
Number one, if a detective is acting
outside of his jurisdiction, you ask, number one,
is there a statute that applies?
And we have a handful of statutes here,
mutual aid agreements, you know,
fresh and continued pursuit.
If that doesn't apply, then we go to, okay,
is there a common law private citizen's authority there?
And we know also that that is very limited
to felony probable cause, to believe that there's a felony.
And we do have a little bit of wiggle room
if it is a misdemeanor.
You can do it some less intrusive things,
but you go to that-
-: But just to stop you at the felony,
it's the authority to arrest as a citizen we have, right?
-: Right, it is the authority to arrest,
but we have seen that in the past being applied
in other situations, like I said,
Limone, Claiborne, and La Riviere,
where it is a little bit less intrusive there, and you-
Wolohojian: It's a common law citizen's arrest-
-: Yes, Your Honor. -: For a felony.
Isn't there a requirement that the citizen
making the arrest witnessed the felony?
-: Well, in Massachusetts,
it's actually a probable cause standard.
But we've relaxed a little bit with officers.
We don't have a body of law
in New Hampshire that addresses it.
I think it's reasonably believed that a felony has occurred,
and here it was happening right in front of his face.
So I don't think we have an issue here, necessarily.
-: Oh, so you're not relying on the home invasion,
you're relying, as the felony,
you're relying on the destruction of the evidence?
-: I think it's both, but it's certainly
the destruction of the evidence
that's happening right in front of his face.
And that's a felony,
both in New Hampshire and in Massachusetts.
Gaziano: But there's no arrest here, right?
-: What's that? -: There's no arrest.
Johnson: There is no arrest, Your Honor.
-: So had he grabbed this person, arrested him,
then we'd have a search instance arrest,
and we'd be good to go.
-: Yes we would.
And so it's just, to me, I cannot make sense of the fact
that that intrusive an action
is allowable in this situation.
And yet something that is less intrusive,
that an officer is simply trying to address
an exigent circumstance where he has
probable cause to do so, that he cannot do that.
It just, I can't wrap my head around that, honestly.
Georges: Can I ask you one question
that follows up on Justice Kafker's question?
-: Yes, Your Honor.
-: If we're talking about the coordinated effort,
doesn't the term coordination
bake in some kind of active participation?
I mean, when we use coordinated where,
I think the common sense proposition is
that everybody's rowing in the same direction.
We're not having a situation like we have here,
where the New Hampshire authorities are just there.
They're just on scene.
They're not doing anything, they're not participating,
they're not asking any questions.
They're not doing any part of the investigation.
They're not doing anything.
Johnson: Well, I wouldn't say they're not-
-: So where's the coordination,
other than just being there?
-: Well, first of all, I think without Nashua PD,
they would not have found the defendant.
Obviously they were coordinating with them,
and trying to locate this defendant.
They knew his address.
He had a very long history with Nashua PD.
They were familiar with him,
they were familiar with the girlfriend,
who basically told them where the defendant was,
and the girlfriend had also corroborated the fact
that the defendant had used her car to travel
with the codee to Lowell, so-
Georges: They wouldn't have known about the girlfriend,
but for the Nashua police.
-: Exactly, but I don't wanna go down that path necessarily-
-: And they see that the- -: Because how do you measure,
I'm sorry.
-: And the Massachusetts officer
asked the New Hampshire officer, "Did he just destroy,
did he just delete some texts?"
And the New Hampshire, he says,
"Yeah, he just deleted the texts."
-: And he confirmed that.
So, but I don't necessarily wanna go down-
-: Are you waiving that argument then that,
the judge's finding that there was not
coordination between Nashua and Lowell,
was clearly erroneous?
Johnson: I do, I am not waiving it,
I do think there is-
-: So can you just walk me through your argument
that it was clearly erroneous?
-: I think it's clearly erroneous because if you,
he was basing his finding on Luna,
the fact that Chicopee PD was not present.
My point was not only were they present,
they were instrumental in our detectives
finding these defendants.
-: You don't need to have it clearly erroneous if,
we can agree with all his fact finding,
and reject his conclusion of law
that they weren't coordinating, can't we?
-: I agree, I agree, and that's my point was,
is that it's- -: By the way-
-: The authority of the- -: Do you wanna spend
at least a minute on the issue we took,
which is whose law applies?
-: Sure, may I just finish your,
the authority of the detective doesn't necessarily stem
from the fact that Nashua PD was present.
It stems from his ability as a private citizen,
an officer acting as a private citizen,
acting constitutionally.
-: But again, you're merging two doctrines there.
How about you- -: I'm trying
to harmonize them. -: Your best chance
of winning is, the New Hampshire law applies.
You wanna take a shot at that for a minute or two?
-: Sure, Your Honor, Gulick was decided 42 years ago.
It's never been overruled.
It says that the locus of the arrest
is where the law has been- -: There's no arrest.
-: It's the arrest, however, that has been applied
in situations where there was a search in Aarhus,
where there was a seizure in Kamara,
where there was a stop in Savage.
All of those applied that kind of Gulick, where it happens.
And if you think about it logically.
-: We have arrest cases, which this isn't,
that say it's the place of the arrest.
But then we have all the other cases, where we basically
didn't have to decide the issue,
because the law was equivalent.
-: Right, Your Honor- -: It seems like it's,
well the law is not, certainly not equivalent here.
-: Well, it- -: It's a big difference
between the New Hampshire law, in the remedy,
in the good faith exception versus Massachusetts law, right?
-: Okay, may I, I have two answers to that.
Number one, I don't think there was anything wrong here
in either sets of law, and I think the remedy
in terms of what the end result is, is the same, Your Honor.
Because even if there was no exclusionary rule
as there is in New Hampshire,
we know that obviously it won't get suppressed.
But even in Massachusetts, our common law rule of exclusion,
it's not automatic, it's not required.
It's still, it has to be a substantial violation.
And if you think about the deterrent is,
you know, to prevent the abuse of official power,
where is the misconduct here?
What are we deterring, when we have an officer
who's acting in an exigent circumstance
to prevent the destruction of evidence?
So even if we talk about the common law of exclusion
that we have here in Massachusetts,
it's still not gonna apply to this situation.
Just like in Coburn and just like in Leahy where they said,
"Look, this is not substantial.
It's not going to deter future or official misconduct."
I even question whether there was misconduct at all,
and there wasn't misconduct here.
This officer was acting reasonably,
he was acting constitutionally in an exigent situation.
-: Can I ask a legal, so the case that you are relying on,
again, as Justice Gaziano points out,
is an arrest case. -: Right.
-: Are there search cases?
'Cause you would think that the place of the search
would be important when we're dealing with, you know,
an Article 14 or the New Hampshire equivalent of Article 14,
or the Fourth Amendment. -: Yes Your Honor, there is-
-: We have no cases saying that that choice of law is,
for a motion to suppress, is the location of the search?
-: Yes. I cited one in my
brief, Aarhus- -: Which case is that?
-: That's Aarhus, A-A-R-H-U-S at 387 Mass 735-
Kafker: And that's a criminal case, not a civil case?
-: It is a criminal case, it was a case where this Court
had applied military law,
a search happened on a military reservation.
And even though we prosecuted the murder
in our Superior Court, it applied military law
in terms of deciding whether the search was reasonable.
Also, the appeals court in Kamara talked about applying
Rhode Island law to the seizure of a car.
There again, like here it was just a seizure,
it was not a search.
So in that case, yes, we have applied it.
And if you think about it, you know,
if we're gonna apply it when it comes time,
when it's an arrest in a certain location,
it doesn't make logical sense to not apply it
when you're talking about actions that are leading up
to arrest or tantamount to arrest,
or somehow around that arrest,
to somehow apply another law for that.
But yet at the moment of arrest,
you're going to apply the state where it happened,
that just doesn't make logical sense.
It all should be the same body of law.
-: But in Aarhus, that was just the question
of whether the search was reasonable.
They didn't reach the question of if it was unreasonable,
would suppression, whose law would apply to suppression?
-: No, and I think that they probably go hand in hand.
I don't know if you could divide it.
-: Well, a remedy, the remedy would seem to me, right,
and it's an evidentiary rule.
And do we have choice of law that says any choice of law
that says we apply the evidentiary rules
of a jurisdiction other than the jurisdiction
in which the trial is taking place?
-: You know, I've thought about this, Your Honor,
but if you're going to decide
that a search is not reasonable,
and if you're saying that the exclusionary rule
is there to deter that unreasonable conduct,
then they kinda have to go hand in hand.
So if you're gonna look at-
Wolohojian: But my question was a little different.
-: Okay.
-: My question actually asked for some law
on whether we have any cases that say
that you apply a different jurisdiction's law
in determining what evidence is admissible,
when the trial is occurring in a particular jurisdiction,
that the jurisdiction where the trial is taking place,
would apply another jurisdiction's evidentiary rules.
-: I'm not aware of any criminal case.
And that is the reason for,
because we have a constitution, we have an exclusionary rule
that's trying to deter official misconduct.
There may be civil cases that I'm unaware of,
but in criminal cases, I believe it goes hand in hand.
But I am not aware of it.
-: And then Kamara, I just looked it it up, it's a 128,
and it doesn't do what you say, it's a tossup.
It says the law's the same in Rhode Island
and in Massachusetts, so it doesn't decide the issue.
So we really have no cases
except for this military reservation case.
-: Right, Your Honor, that was just another example.
I think the only difference really is that remedy,
which is in New Hampshire we don't suppress
where it's a constitutional non-violation.
But in Massachusetts we do have
this common law exclusionary rule.
And as I explained, number one,
I don't think there was any misconduct here whatsoever.
And number two, it's not,
certainly not one that's substantial
or that would deter future misconduct
on the part of this detective or any detective.
And for that reason, I think we get to the same result.
Okay, if there are any further questions,
I'd ask this Court to reverse the motion judge's ruling.
Thank you. -: Thank you.
Okay, Attorney Schneiderman. -: Good morning.
Good morning, may it please the Court.
I'm Joseph Schneiderman, I represent Michael McCarthy.
I'd like to start by answering a few questions
that I think went unanswered by my sister.
First, Justice Wolohojian, you had asked
about the state of the law on choice of law.
The closest that I have to your question
is the Cosme case in 417 Mass,
talking about how remedies are procedural in nature,
and how a Massachusetts court would apply
Massachusetts remedies to a case
pending in a Massachusetts court.
Justice Gaziano and Justice Wendlandt had asked my sister
about why this is a citizen's arrest,
and the legal significance of it as a citizen's arrest.
The problem with a citizen's arrest argument as I see it,
is even though there is probable cause,
and Justice Wolohojian, you had asked my sister a minute ago
about what the standard is,
and Claiborne does relax that standard,
there just is not an arrest that occurred here.
Detective Bowler seizes the phone
of his own initiative and volition,
that's at suppression hearing volume one page 30,
"No, there was no arrest here."
So the problem with couching this
in terms of a citizen's arrest
or as a valid seizure incident to a citizen's arrest,
is that there is no arrest,
and this court and the appeals court have rejected
that there is such a concept
as search incident to probable cause to arrest.
The appeals court rejected that.
-: Could- -: Your Honor.
-: Could the defendant have been arrested
by the Lowell officer, could he have been?
-: No, Your Honor, the Lowell officer,
we wouldn't be here actually, Your Honor,
if Officer Zuposki had said,
"Get Mr. McCarthy, or grab that phone."
If the record bore that out, as Justice Gaziano pointed to,
if the Nashua officers had testified,
and if the record reflected that Officer Zuposki
or one of the other Nashua officers said,
"Get that phone or arrest that man," we wouldn't be here.
-: No, no, no, what if he- -: I'm sorry.
-: Was by himself, the Lowell officer was by himself,
could he have arrested the defendant, as a citizen?
Schneiderman: I suppose he could have arrested-
-: Yeah, so I think the Commonwealth's argument,
as I understand it, is that given that he could
have arrested the defendant,
doing something short of arresting him,
seizing the phone when he's destroying the evidence,
makes a lotta common sense.
Can you just address that?
-: Your Honor, I would agree that it would make
perhaps some common sense, but the problem is,
is that the rule in Massachusetts is that an officer
only has authority in their municipality of appointment.
The Commonwealth therefore, would have to show
that an exception applies, and there just isn't an exception
that applies on this record, and it actually goes
to something that Justice Kafker was asking,
which are the facts.
The facts here do not reflect coordination,
and Justice Georges had asked about this,
as a matter of fact or law,
the motion judge makes an express finding
that although the Nashua officers were present,
they were passive.
Passive presence of law enforcement officers
should not constitute coordinations out of law.
Kafker: They weren't, and Mr. Schneiderman,
you get very excited, so a little softer.
-: Of course.
-: So, but they are doing more
than just being present, right?
They're driving, you know, they're taking him to the place,
they're identifying the girlfriend,
they're identifying the deletion of the texts.
I mean yes, there's not an official appointment
where they're joint officers working together,
but as a practical matter, as your sister just argued,
the Massachusetts police are doing everything correctly.
Maybe not at the end they aren't, but they're speaking
to them, they're working together, they're not,
you know, showing up in some other state,
and you know, flashing a badge that's not applicable.
They're behaving appropriately.
Why isn't that really coordination in a practical sense?
-: Your Honor, I think actually the case law,
or the ancestry shows that the question of what officer acts
is the tip of whether or not
there is legally valid coordination.
So agreeing with Your Honor that there is an effort here
between the Nashua and the Lowell officers,
the legal question, or the nub of it, is who actually acted?
And here it was Detective Bowler.
-: But are there cases that can provide us good guidance
on how official, or I understand the judge
finds no coordination, but that's a legal conclusion,
I mean, he makes facts finding that we have to defer to.
But are there cases that tell us about what is adequate
for coordination in terms of extra-territorial operations?
-: Your Honor, I think Morrissey is an example of that,
because in Morrissey, the officer in charge
of the Sterling Police Department
asked the West Boylston officer to engage.
I think Limone actually might speak to that,
because the Somerville officer, he was in uniform,
but he waited for the Whitman officer.
So I think that goes to my point,
which is that coordination,
the end result of the coordination is what matters,
and what legally or validates or invalidates the seizure.
-: If we, assume for a second we disagree with you,
and disagree with the finding by the judge,
of a joint investigation.
Then we go to I guess the menu of all those cases
we've ignored in the footnote to Justice Pina's case,
which says, "Here's the three options,"
and we look at the law review article you submitted as well.
If we were looking at this as the majority of states
do want an exclusionary rule, right, focused?
Don't you lose?
Because to me, I think as counsel pointed out,
opposing counsel pointed out, there's really nothing
that this police officer did wrong.
It's just a question of who was closest
to this person to seize the phone.
So don't you lose under that analysis,
under exclusionary rule analysis?
-: I don't- -: For choice of law?
Or even police officer focused,
as the law review article suggests.
-: I think, Your Honor, under either actually I would win,
whether it's the exclusionary rule,
or it indeed it is the identity of the officer,
because this is actually something I wanted to respond to.
New Hampshire would not recognize
a good faith exception on these facts.
At page 56 and 71 of my brief,
New Hampshire recognizes a good faith exception
only to the extent an officer relies
on a ordinance or a statute to conduct some action.
We don't have that here, we don't have Detective Bowler
relying on some statute to do that.
So there's no good faith exception
that applies on these facts.
More to Your Honor's question
about the core purposes of suppression,
we have the intractable collision though
of the remedies of suppression here.
And given that this Court has recognized consistently
for a very long time, that the remedy for an officer
who exceeds their territorial boundaries is suppression,
I think a theory of suppression becomes compelling here,
because a Massachusetts court is very well suited
to determine misconduct by a Massachusetts officer
wherever it occurs, because parties have the right,
and this actually goes a little bit
to what Justice Wolohojian was asking about,
to rely on and have expectations of the forum.
And Massachusetts is the forum here.
Mr. McCarthy stands indicted in the Middlesex Superior Court
for a crime that occurred in Lowell.
He just happens to live in New Hampshire.
-: But the search that you contest is illegal,
and unconstitutional, takes place in New Hampshire.
Doesn't the fact that the unconstitutional conduct
that we're dealing with is in New Hampshire
more important than where the trial is gonna take place?
And I just don't understand why an arrest
is governed by the location, and the search wouldn't,
even though, and the arrest is a prosecution,
is taking place in Massachusetts,
but the arrest is in another state.
And the same thing here.
The prosecution is in Massachusetts,
but the search is in another state.
Why would you treat searches different than arrests?
-: Your Honor, I think searches and arrests
actually should be treated similarly,
and this Court has not had occasion to consider-
-: But don't you lose if we treat searches like arrests,
because the, whatever it's, the Gulickson case,
whatever that case is, is a Gulick case
is 50 years old at this point,
and it says we look at the arrest,
the location of the arrest.
Your brief was terrific,
except for it doesn't confront Gulick, so.
-: Your Honor, I'll confront Gulick now then.
Your Honor, Gulick, as far as I could tell from Gulick,
there was not an intractable legal collision here,
which is what we have on this record.
Massachusetts presumptively recognizes suppression
when an officer acts outside of their city or town,
New Hampshire does not, State versus Smith.
Gulick, there was no need to reach that question.
Prior cases following Gulick, like Aarhus,
or the North Carolina case in 63 Mass app,
I don't remember the defendant's name,
there was no intractable collision.
Here we have an intractable collision,
and indeed an intractable collision
that influences the ultimate result.
And because we have that intractable collision,
the site of the action cannot and should not be
the only thing that governs.
that would be inconsistent with how,
a few years after Gulick in Bushkin, this court recognized,
we don't believe in Lex Loci, law of the place, anymore.
So I think to say that the site
of the arrest or the seizure is a keystone card,
or is the only thing that matters, ignores developments.
So Banville is factually distinguishable,
and Banville does not account for Bushkin,
and Bushkin's progeny.
-: Would you agree with me that if we decide
it's a joint investigation, the place of the search governs,
on choice of law?
-: I'm not sure I fully, could I ask more about that,
Your Honor, please?
-: (chuckling) So as I read the treatise
and I look at the cases on choice of law,
it seems to say, whether exclusionary rule
or police officer focused,
it does say if it's a joint investigation,
the place where the investigation occurs
is the law we apply, do you agree with that?
-: Having heard it that way, Your Honor,
I would tend to agree with that.
Kafker: All right, I'll ask better questions next time.
-: Oh, no, no, no, Your Honor.
Kafker: I don't promise, I'll try.
-: I'm here to help you Your Honor, so-
-: Thank you. -: Can I ask you-
-: I need help. -: If there was a joint
investigation by Nashua and Lowell,
then those Nashua officers would have probable cause,
just like the Lowell officers did,
to seize the phone, right?
So the question is really not so much
whether Massachusetts or New Hampshire law applies,
and whether it's the locus, it's really about
whether that probable cause that existed
to seize the phone, whether the officers
get the benefit of that, because they were coordinating
with the New Hampshire officers.
-: I think Your Honor, if we were looking at it
through that lens of a transfer of probable cause,
which New Hampshire does recognize, I did brief that,
the problem is, is that again, we just don't have
an arrest to validate the seizure.
And as Justice Gaziano was asking my sister-
-: No, but the New Hampshire officers
didn't have to arrest the defendant,
they could have seized the phone.
-: That's correct, Your Honor, yes, that I agree with.
The problem is, is that we just don't have
an arrest to validate that.
Dewar: Can I go ask, back to Justice Gaziano's question?
-: Sure. -: So you seem to concede
that if it were a joint investigation,
the law of wherever the event took place would govern.
Do you make the same concession with respect to the remedy?
So, to put a finer point on it,
what if there's a joint investigation,
the officers engage in some sort of unconstitutional,
it's a New Hampshire-Massachusetts joint investigation.
they en engage in some sort of misconduct
here in Massachusetts, you know, the New Hampshire court,
then does the New Hampshire court provide suppression,
even though there wouldn't be suppression
under New Hampshire law usually,
because it happened here in Massachusetts?
And then similarly, you know, we have the opposite here.
-: I had not thought about it in that granular of terms,
Your Honor, but I think the rub of relying on the locus
just in a vacuum is that it does not account
for who's using that evidence, and it would not account
for the core purposes of suppression.
So I think in Your Honor's hypothetical, which, oh, sorry,
which turns the facts around to say it's New Hampshire,
but it's coming into Massachusetts, I think then
the Massachusetts Court would be in just as awkward
a position as a New Hampshire court would be,
trying to deter misconduct by someone who's outta state.
So I see I'm running out of time.
I just would make two very brief points, which is,
this whole scenario implicates is the rule
that Detective Bowler does not have authority
outside of Lowell, and the Commonwealth
is trying to box themselves into an exception,
and I don't think the record bears that out.
And I think to infer coordination
factually or legally is a stretch,
would be impermissible fact findings.
And very briefly about inevitable discovery,
we just don't have a record here
that bears out inevitable discovery,
because the Nashua officers did not testify,
and there was no testimony other than the fact
that we got a warrant, and that's not enough.
Unless Your Honors have further questions,
I thank you for your time.