-: SJC-13670,
Commonwealth versus Quentin Smith.
-: Okay, I see we have the battle of the Cranes.
(laughing)
Bernie Crane.
-: Morning, may it please the court,
Edward Crane on behalf of Quentin Smith.
Primary issue in this case is whether the Commonwealth
introduced sufficient evidence that the defendant
lacked a license to carry.
Philip Dowd testified that he ran a search
of the firearms licensing database
using some spelling of the name Quentin Smith
in a birthday of June 23rd, 2002.
This search failed to produce any licensing records.
However, there was insufficient evidence
to link the result of this search to the defendant.
There was no evidence that the defendant's birthday
was June 23rd, 2002, nor was there evidence
of how to spell the defendant's name
or evidence of how Dowd spelled the name Quentin Smith
when he ran the search.
To establish lack of licensure through a search
of the firearms licensing database,
there needs to be evidence linking the result
of the search to the defendant.
More specifically, the Commonwealth has to establish
that the biographical information, name and birthdate,
used to run the search matches that of the defendant.
-: Was it okay for it to be admissible though?
Are you saying it was admissible that the evidence
of whatever it was, was admissible for the jury
to look at and consider?
-: I think it was admissible because
there wasn't a relevancy objection.
I do think if there was a relevancy objection raised,
that it should have been sustained without the linkage.
-: Well, you're downstream one domino.
So you're getting at whether or not the search criteria
of the person that does the search.
But if I'm hearing Chief Justice Budd's concern,
it's the same one I have.
Go up one.
Are you saying then if there was a properly
foundational witness who was the sponsor of this,
that they went through CEGIS,
used the proper search parameters,
and if had that witness done that when they testified,
that that would have been admissible,
non-hearsay evidence under subsection 10?
-: Well, I think just with respect to,
I guess admissibility in the context of relevance
and admissibility in the context of hearsay
and confrontation are sort of three different issues.
And I think that on the admissibility aspect,
it's sort of, sorry, the relevance aspect,
it's a question of conditional relevance.
If this information about the search is testified to,
and there is no linkage of it to the defendant,
then it's sort of just evidence that is disconnected-
-: That sounds like sufficiency, not relevance to me.
So are you saying that the whole here
is that Officer Jones could have got on the witness stand
and said, "I booked your client.
"He told me his date of birth is whatever it is."
That's all they needed?
-: That's all they needed, and that would,
if it was established what the defendant's name
and birthday was, and that Dowd used that information
to run the search- -: And then Dowd later
testifies this to the same name and date of birth.
-: Correct.
Then it not only becomes relevant, it becomes sufficient.
I think the relevance issue and the sufficiency issue
are really largely the same.
-: If relevance means, I think it's certainly admissible
it would lead to an inference,
but I get you on sufficiency.
Here's all you need.
-: Thank you, Your Honor.
I'll stick to what I've briefed, what I've argued,
what I think is the strongest argument,
and certainly the argument that would result
in the best result for my client.
So I do think that the setting aside, I guess,
the relevancy and admissibility issue,
it really is a question very similar to that
that we've run into with a prior conviction
where it's the evidence that links this record
to the defendant, and here we're talking about
name and birthdate, and again, there's no evidence
with respect to the defendant's birthdate.
And then with respect to the defendant's name,
there's testimony that his name is Quentin Smith,
there is no testimony of how to spell his name,
nor is there testimony from Dowd as to what he input
when he input the name Quentin Smith into the search.
Judge: So you're saying if that's all they had,
which is all they had, that wasn't enough?
-: Yes.
Judge: Wasn't there evidence, though,
that he got the name from the DA's office?
-: Yes.
-: So why wouldn't it be a reasonable inference
that he got the name spelled
as the defendant spelled his name?
-: I don't think there's any way,
it's entirely speculative that the DA's office,
where the DA's office would've got this name from.
Judge: You don't think maybe from the complaint?
-: It's possible that they did, but-
-: Right, we're talking about inferences here,
and whether they're reasonable.
Why would we think,
why wouldn't it be a reasonable inference
that the DA prosecuting the case
wouldn't have given the person doing the CJIS search
the defendant's name as it was spelled on the complaint?
-: Well, even then, though, the complaint is not evidence.
I think we run into a real problem, too,
when we start to say that we can trust
that this information was the correct information
because it came from the DA's office.
I think there's a slippery slope there with respect to,
I mean, extrapolate that to other trial situations
where one could say, well, we think this information
was accurate, how do you know that information's accurate?
Because we got it from the DA's office.
Every trial is based on what the DA's office believes.
The DA's office believes that the defendant
committed some sort of crime.
DA's office has to prove that with evidence.
It can't just be proven through the mere fact
that the DA believes this to be true.
There needs to be some evidence here.
Not just that they got it from the DA's office,
but where did they get it from?
And just someone- -: So who's gonna provide
that testimony, where the DA's office got the name from?
-: Well, I don't think- -: You're thinking
the DA has to testify?
-: I think it's a lot easier than
having to follow that road.
In this case, if the booking officer had testified,
the booking officer could've got that information
into evidence and- -: Because that would've
come directly from the defendant?
-: Exactly, yes.
-: Perhaps.
I mean, in this situation, I think there was testimony
that some of that stuff gets ported into the report,
just if you've already been in there.
But may I ask you about Judge Pellegrini,
because I'm a little bit, I don't understand
the nature of his error, if he made one.
He accepts Dowd's testimony about the search parameters,
not for its truth.
He specifically says that, he's only using it
for what it is that Dowd used to come back
with the lack of record.
But he denies the motion for required finding.
So can you just tell us, if you can tell us
from the record, I couldn't get from his decision
where he got for the truth, 'cause he said,
I credit Dowd's testimony, there's no reason for me
to not credit, but that part of his testimony
was received not for its truth.
So is the error that the required finding
should have been allowed on that issue,
because there was nothing tethering the search
and the result to this particular defendant?
-: Yes, yes, Your Honor, I think the required finding
should have been allowed.
And I think where he made a mistake is,
and it's totally understandable,
is sort of this burden shifting.
He assumes that, based on Dowd's testimony,
that this information that he put into the search,
the biographical information, the date of birth,
was the defendant's, even though there's no evidence
to support that.
And I totally understand where one could assume
that, okay, this has gotta be the defendant's information,
despite there not being such evidence.
And then he shifts the burden.
What he says is, I didn't hear any evidence saying
that it's basically undermining
that this is the defendant's biographical information.
But the problem is, he didn't first hear any evidence
that it was the defendant's biographical information.
So I think it's a shifting of the burden
that's the problem here.
-: If I may, can we move on to the pat frisk question?
And could you possibly please,
or I guess it's disputed whether there was a pat frisk,
but could you address whether once the,
you do not challenge the validity of the exit order.
And once the exit order had been achieved
and the defendant was out of the car
and the firearm was in his back pocket in plain view,
is there not an inevitable discovery issue here?
-: Well, I believe that they discovered it
when they, once they handcuff him and turn him around.
So I would say, I guess at that point, yes,
the pat frisk has already begun.
There, obviously there's a huge gray area.
Where does a Pat Frisk begin?
Where does it end?
Or well, really just where does it begin
is a question here.
I think there would be an inevitable discovery.
I don't think it would inevitably have been discovered.
If he simply exited from the vehicle,
I'm not sure that they inevitably
would have discovered the weapon on him.
It's in his pants.
So they may have discovered it,
but I don't think it's inevitable that they discover it
if they simply exit him from the vehicle.
And I think that's where, that was proper.
But beyond that, that's where we run
into the impropriety here.
And I'm happy to turn to the admissibility arguments
with respect to hearsay and the confrontation clause.
I do think it notable that this,
though it is sort of one of the secondary arguments
that I raise, I do find in my review
of cases involving these Guardado issues,
this is an issue that's raised all the time.
So the sufficiency issue comes up here and there,
but I see this issue almost all the time
as to whether testimony about the absence
of a licensing record from the database,
whether it's hearsay and whether it violates
the confrontation clause, that's an issue
I see all the time.
So I think it is important to address it.
With respect to it being hearsay,
it's hearsay because everything in this database
is what we've termed computer-stored records
in that they're human-generated records
that are stored in a database.
And the testimony here is about the absence
of such a record in the database.
And Commonwealth v. Toronto does establish
that an absence of a record from a database,
it is still hearsay.
It doesn't take that out of the realm of hearsay.
And I would say that what's required here
is to fall into the absence of a public record exception,
the person testifying needs to know
how the database was created, maintained, and accessed.
I think those are the three prerequisites.
-: And we have that here.
I mean, you might disagree with it,
but one of the things about Justice Lowy's concurrence
is talking about that this just has to be
a preliminary determination by the trial judge
if there's a voir dire of doubt and say,
"Okay, how do you know this thing works?
"What does it do?"
And even though there wasn't this preliminary voir dire,
he testified to it.
And he overruled the objection of the defense
and he talked about how those records come into CJIS
and how we look at 'em and how I get them.
So all of those things about having some familiarity
with how CJIS, all these records pour into CJIS,
he testified to.
You may not like that, but he did testify
to his familiarity with this database
and how the records come into it.
So why doesn't that come into subsection 10
in our common law that now he can testify
to the lack of the record?
-: I think he definitely testified as to how they come in.
I think what's missing is the maintenance aspect.
-: Your brief suggests he'd have to be a coder
or a programmer, a computer person essentially,
to be able to testify.
-: I don't think he needs that level of expertise
to testify. -: Would you concede
he was a knowledgeable witness
for confrontation cause purposes?
-: I'm sorry?
-: Would you concede he was a knowledgeable witness
for confrontation cause purposes
under Bolt Common in those cases?
-: I would say he's knowledgeable
about certain aspects of the database,
but my position is essentially that he's acting
as a messenger in terms of he's running the search
and he's relaying what he's received from the search
to the fact finder.
But what's missing is his knowledge
of how that database is maintained
sort of on a day-to-day basis.
I don't think the doubt is someone
who's completely lacking in knowledge.
Certainly he knows how the system operates,
how licensing works in Massachusetts.
He's certainly someone who has a basis of knowledge
on those things.
But what's missing is just knowledge
of how the database is maintained,
how it's updated.
I think that's critically important.
And that doesn't mean that,
I honestly think if he had provided more testimony,
he may be someone-
-: He testified to how data's inputted, correct?
-: Yes. -: Where it comes from.
-: And to the extent that you have an issue with that,
isn't that what the whole point of the cross-examination is
to argue to the jury that you can't trust what he's saying
because he doesn't know if it hasn't been updated
and all these other things.
But I do wanna get to one thing in particular.
You're saying that this is the problem
with getting somebody in for CEGIS.
We're gonna have this case on right after
where they say, "Oh no, don't do this.
"You could just bring somebody in from CEGIS."
So what is the defense perspective here
about how it seems like on the defense side
that folks are talking out of both sides of their mouths
when it comes to this?
-: I understand that because I do think
that there have been arguments raised.
Frankly, the argument raised by trial counsel in this case
was essentially that the only person
that could potentially testify about this
is a licensing authority, someone from a municipality.
I'm not gonna go that far.
I think that what is adequate is,
and it doesn't have to be the keeper of the records
or a custodian of the records of CEGIS.
It can be one of these CEGIS employees.
They just have to lay the foundation first
that they know how, like Dowd did,
testifies all about how the records come into the database,
how the records are created.
He has to testify about how the search works.
That's sort of the latter half of it.
But then it's that middle third that's missing.
You have to have someone who testifies
about how the records are maintained.
Once they come in, what happens to them
between, say, creation and expiration?
That's what's missing.
Judge: Can you just walk me through
what you think that would entail?
-: I think that would entail someone describing
what happens to a record once it's created.
Does it stay there indefinitely?
How is a record updated once someone renews
or doesn't renew?
-: Suspended, expired. -: Yes.
-: Those sort of testimonial aspects
of beyond creation and access,
what happens to it in the middle?
-: Yes, exactly. -: I thought he
testified to that.
I thought he testified that you get entered
and then you're either revoked, suspended,
or the other category, or expires.
-: He did testify about those different statuses,
but he didn't testify about how those statuses are updated.
How does one go from active to revoked?
It clearly happens, but what's the process?
-: But on license and authority,
you'd have to call every police department
where the person's ever lived past 18.
-: Yes, Your Honor. -: I'm sorry, past 21.
-: Yes, Your Honor, and certainly that's
an impractical result, and I don't think
it's required by the law.
I think what's required is to someone who, again,
who can satisfy those three prerequisites,
knows how it's created, knows how it's maintained,
and knows how it's accessed.
-: Where's, what's your best case for the proposition
that a database that's maintained,
a database that aggregates local
or state governmental records is testimonial?
Crane: I would say Commonwealth v. Toronto.
-: That, that's your best case?
-: I think that's the best case,
'cause the court does say that those are-
-: Those weren't, well, I won't argue with you.
-: Okay, is it, is it testimonial,
the database isn't testimonial,
or is it the search that was done
for the purposes of presenting lack of license
and element of the crime, that's what's testimonial, right?
Crane: Yes.
-: And here you had access to Dowd,
Witness Dowd, who actually did the search,
so why is, why does it present a testimonial problem?
They're a confrontation clause problem.
You were able to confront the witness
who did the search for purposes of the trial.
-: I think that there are, there's a testimonial aspect
in Dowd's testimony that he ran the search,
but then there's also a testimonial aspect
of the records themselves.
Well, I guess, no, that's not-
-: No. -: No, that's not accurate.
-: No. -: It's really,
it's Dowd's testimony that-
-: But he was there, he was presented at trial,
so you were able to confront him.
-: And I guess the issue with the confrontation clause issue
would be that he can't be cross-examined about-
-: Maintenance. -: About the maintenance
aspect of it.
And I guess where the problem is, the hypothetical is-
Judge: Well, he can be cross-examined,
he just doesn't know.
-: Doesn't know, and if you put someone-
Judge: Well, maybe.
-: Who's even less knowledgeable than Dowd,
if they were someone, you put a teenager on the stand,
and they ran the search,
they're probably capable of running the search,
and then saying, "Well, this person, they ran the search,
"so you can cross-examine them,"
but they can just say, they have no,
I don't know, I don't know anything
about how this database is maintained.
And so it's not really, you know,
the confrontation right is sort of void in that situation.
-: Okay, thank you. -: Thank you, Your Honors.
-: Attorney Crane.
-: Good morning, and may it please the Court,
Jesse Crane for the Commonwealth.
I'll start with the first part of the sufficiency claim
in terms of whether the date of birth
and the name needed to come in.
-: How do you get past the DNA CODIS case, Sullivan?
-: Sullivan?
I think it's a reasonable inference
to draw from the testimony that came in at trial
that this came in through the booking process.
None of the officers who testified
were involved in the booking process,
but there was some discussion
during Officer Mazzoni's testimony
as to what kind of information is gathered
in the booking process. -: All of it
which was objected to and sustained.
Judge Pellegrini was very clear about that,
and the only effort that the Commonwealth made
was to say, I can get a booking officer here at 3:30,
but Judge Pellegrini didn't let him do that.
So going back to Justice Gaziano's question,
how do you get past that?
Because you also have to grapple with,
Judge Pellegrini says explicitly,
I'm not accepting the search parameters for its truth.
So where do you get the evidence
tethering what Dowd did to that defendant?
-: I mean, I think if you,
looking at it from the other end,
working backward from Dowd's testimony,
you get it in through the fact
that he got that information from the DA's office.
I think it's-
-: But that presents a problem
with which your opposing counsel has already articulated.
Can you address that?
-: Absolutely. -: Why are we gonna
just believe that the DA has the accurate spelling
and date of birth?
-: I don't think you have to.
I think the-
-: But don't you have to for
the sufficiency of the evidence?
I mean, that's what you're suggesting then.
Oh, the DA must have it right
because I guess they're the DA.
-: Well, I think the issue with Dowd's testimony
really is just whether he had sufficiently reliable
information to run the BOP-FI query.
And I think it's a reasonable inference
that getting that information from the DA's office
was at least reliable enough
to be admissible and sufficient.
-: Well, he could always testify to what he did, right?
He did that.
The question is whether it's sufficient
to link that information to the defendant who's on trial.
That's the piece that I think we're all struggling with.
-: And I think there are a couple of factors
about the BOP-FI search itself
that perhaps ameliorate some of these concerns.
There was a testimony about
the Soundex nature of the search.
-: Right, but it all fundamentally requires
the spelling of the defendant's name to be correct,
either the first or last name,
and also that the date of birth be correct.
And there was no evidence other than the suggestion
that the DA must have been accurate
when they gave these search parameters to Dowd
that those in fact were accurate.
I mean, I understand the search and how it works,
but if you, you know, bad data in, bad data out.
-: I think for the date of birth,
I have a little bit of a harder time.
-: Well, isn't that necessary?
I mean, given that the last name is Smith?
-: Right, I think for the name,
the fact that Officer Mazzoni identifies the defendant
as Quentin Smith and says he has,
he testifies to the fact that he knows the defendant
from prior interactions, I think that helps us
-: Does he testify that he gave Dowd that name spelling?
Crane: Mazzoni does not, no.
-: So he just says the name,
he doesn't spell it for the transcriber?
Crane: No, he does not.
-: Okay, so we don't know how he's spelling Quentin Smith.
-: We do not know, that's correct.
-: Could you turn to the question of
what inference can be drawn from the fact,
even if we were to assume
that the search parameters were correct,
but the fact that the search resulted in no records,
how are we supposed to know or anyone to reasonably infer
that that means that at some earlier point in time,
or the person has never had a license
as opposed to that that search simply means
that at the moment in time when the search was conducted,
he didn't have a license?
-: Right, so there was testimony from Dowd
that the Firearms Record Bureau is the repository
of all licensing records related to firearms
for the Commonwealth,
and in the beginning of his cross-examination,
Dowd also testified that if someone had a license
at some point, it would appear in the Bob Fye search,
and he further testifies that you would see the status
as either active, suspended, expired, or revoked.
Judge: For how long?
-: He does not say, but I think it is a reasonable inference
because of the nature of the statuses.
Judge: Yeah, what's the reasonable inference?
-: I think because he testifies
that a status could be expired or revoked,
it's a reasonable inference that it persists.
-: For how long? -: Indefinitely.
-: Really? -: Yes.
Judge: When was CJIS created?
-: I believe CJIS was created about 40 years ago.
I'm not sure, it's not in the trial record.
-: But what is in the trial record is Dowd testifies
that he was a state trooper for 28 years,
and he used it throughout his career.
-: That's correct, yes.
He was consistently running CJIS queries,
going back for his entire career.
And I do just wanna address
between the subsequent OUI records and the BOPFI query.
I don't think that's quite a good analogy in this case
because in the instance of the subsequent OUI,
the concern is really that defendant John Dowd
is not the same person as John Dowd
named in the prior conviction.
With the BOPFI query, it's not a record in and of itself,
and it also generates results that could be more inclusive
than what would come in,
than what could be connected to the-
-: Or less inclusive, right?
I just don't see why the OUI analogy isn't a good one.
-: I think the date of birth does limit it,
but again, the Soundex query,
the Soundex nature of the query
could potentially pull in more names
into the search results
than would necessarily include the defendant.
-: Wouldn't the difference be in an OUI second subsequent,
the government has to prove beyond a reasonable doubt
that element.
Here, this is an adjudicatory fact
towards proving he's unlicensed, correct?
Crane: Yes, that is correct.
-: But still, you have to get past sufficiency
even if it is an adjudicatory fact.
Crane: Yes, I agree with that.
-: All right.
-: If there are no further questions
on the sufficiency portion,
I will turn to the confrontation issue.
I think when you parse out what the statements are here,
there isn't really a confrontation issue.
So the testimonial statement here was no records found.
That was a function of Phil Dowd running the BOPFI query,
and he was available to testify.
He could testify to what he inputted.
He was a knowledgeable witness.
He extensively testified-
-: What was his testimony as to the maintenance
of the database?
-: He testified that the licensing authorities
and the Firearms Record Bureau
are the entities that can revoke the licenses,
and that would be reflected in Merck's
based on his testimony that
the status is updated in Merck's
once that event occurs.
-: But there's no testimony as to how long records
are maintained, how the entities responsible for updating
actually update the record.
Isn't that problematic from both the hearsay
and the confrontation clause problem?
-: I think there's a fair inference from the fact
that he so extensively describes the creation of the record
that the licensing authority also would probably go
through a similar process,
entering the fact that they've revoked
the license in Merck's
-: So as I understand, and you can correct me if I'm wrong,
'cause I'm not an expert in this.
As I understand the creation testimony,
it was that the local authority takes down the information,
it goes to some other entity for a background check,
and then it gets activated.
Is that what you're suggesting happens,
that I should infer from the evidence happens
when a record needs to be updated,
that the local authority does some sort of updating,
it goes to another entity for confirmation of some sort,
and then it gets updated?
-: I think the way the testimony came in,
as far as revocation goes, so for the updating portion,
it was that the local authority
or the Firearms Record Bureau directly
can revoke the license.
-: And that's in the transcript?
No, I mean, yes, they can revoke the license,
but how they update the record once they do that,
once they revoke it, once they suspend it,
once it's expired.
-: I don't believe there's direct testimony to that effect.
I do think it's a fair inference,
because MERCS does reflect those events.
There was testimony directly to the fact
that the status does change in MERCS.
And so if a licensing authority
is the entity that's revoking it,
the fact that that appears in MERCS,
I think, suggests that the licensing authority
has done something in MERCS to do that.
-: How hard would it be just to ask Dowd?
-: I think the defendant could have done that.
-: Right, no, no, but it's the Commonwealth's
burden of proof, as we all know.
-: Yes, I think we could have asked that,
but I think the fact that he did testify
to the fact that these records are updated in MERCS
is sufficient at least to establish
that he understands how the records were maintained.
And the fact that they're kept in MERCS,
they're updated in MERCS.
-: Indefinitely. -: Yes.
-: Okay, thank you.
Judge: Can I just go back to the sufficiency?
I might have missed how you explained how this document,
assuming it's admissible, is enough to show
that it was this defendant.
I understand that it goes towards proving
that it was this defendant, but I don't see,
help me understand how it's sufficient to find him guilty.
-: I think it's a two-part.
There's the information that Dowd received
from the DA's office in terms of this is the defendant
that was arrested by officer-
-: And that's taking for granted
that the name was spelled correctly
and the date of birth was given, all of that.
-: I think only, I think that can only come in
to prove what Dowd entered.
-: Right, well that-
-: But I think the second part of it is the fact
that Dowd does a search of the entire licensure database.
So the entire universe of records
is examined in that BOPFI query.
And the fact that there is no record found
based on that query provides an adequate basis
to infer that the defendant never received a license.
-: And he used all the different ways to spell Quentin?
-: There was not testimony to that.
He said, I searched for Quentin Smith
with the date of birth of June 23rd, 2002.
If I could just address the final,
the testimonial piece of the confrontation portion,
I would just note that the underlying records
are not testimonial.
Those are official or public records
that are issued by licensing authorities
pursuant to a statutory authority
to give someone who's eligible an LTC or an FIT.
The database itself is also not testimonial.
Mercs and CEGIS are maintained, again,
according to a statutory responsibility
of the Firearms Record Bureau to aggregate.
Judge: But Dowd's testimony is testimonial, right?
His search was for, okay, so let's focus on that.
-: Dowd's testimony is testimonial,
but he was present to be cross-examined.
-: And your brother, opposing counsel said
that because he didn't know how
the database was maintained,
it was not good enough.
It was like having a teenager
just run the search, he was saying.
-: I think that's a little bit of an unfair comparison.
Judge: Right, so tell me why.
-: I think he was very knowledgeable
about how records were created.
He testified extensively to that.
He testified about- -: Right, but focusing
on maintained, sorry, your time is running short.
Crane: Sure, of course.
-: So focusing on his presence at trial
to testify as to what he did
in light of the fact that he didn't testify
as to how the data was maintained or were maintained,
why isn't that a confrontation clause problem?
-: Well, I think his testimony did suggest
that he knew how it was maintained.
It certainly was not the most exhaustively developed
portion of his testimony, but I know I keep repeating this,
but he did know that the status
of the license would change.
He did know that the Firearms Records Bureau
or the licensing authority could revoke it.
I think the fact that it wasn't explored further
doesn't necessarily undermine the fact that the defendant,
it doesn't suggest that the defendant
couldn't have cross-examined him further,
and I think that did satisfy sort of the threshold question
of was this witness knowledgeable enough
to be cross-examined on that particular piece
of the database.
Judge: Chief, could I ask one question?
Judge: Please.
-: Go back to the suppression question.
I'm trying to figure out how putting this defendant
in custody bears on the issue of inevitable discovery,
because your brother says if he were just ordered
out of the car and not placed in the custody,
that's the part that brings to the attention
of the officers what might be
in his sweatpants, shorts pocket.
How does that figure into the argument that you're saying?
It wasn't even a pat for us,
which I don't necessarily disagree with you,
but that part about just get out of the car
rather than get out of the car and turn around
and put your hands behind your back,
and that's when they see it.
-: I think it would be more problematic for me
if the gun were all the way in his pocket,
but here we have the butt of the gun
sticking out of his pocket in plain view.
I mean, I understand that the order of events
was that he was coughed and turned around,
and that's how it was discovered,
but I guess I would suggest that the butt of a gun
hanging out of a pocket is in pretty plain view,
and that would lead inevitably to its discovery.