-: SJC-13711,
Commonwealth versus Eric A. Ferrara.
(papers rustling)
-: Okay. -: Good morning, Your Honors.
May it please the court, Adela Aprodu for Mr. Ferrara.
I will just very briefly address the Guardado issue.
I think it has been addressed quite a bit
in the last few months. (chuckling)
So I think a new trial's appropriate here
because the only exception that the court made
to the Guardado as of right now would be the Bookman case.
And in Bookman, the difference was
that there was direct evidence in the testimony
of the officer that the two co-defendants were unlicensed.
Not only was there no such testimony here,
but there was absolutely no evidence here
that the defendant could not possess the firearm
or did not have any license.
So for that reason, I do believe that in this case,
a new trial is appropriate.
Unless the court has any other questions about Guardado,
I would like to move on to the motion to suppress.
Thank you.
I think the first issue
to address is the Commonwealth's contention
that the issue was not preserved,
that the inventory search issue was not preserved,
and I do wanna point the court to the record appendix.
It's number 18, and that's the motion to suppress
that was filed by counsel, by trial counsel,
specifically paragraphs two and three.
Both of them talk specifically
about the backpack at issue here,
and paragraph three in fact talks about the fact
that the backpack search was not a valid search incident
to arrest or inventory search.
And I do submit that based on that,
there is sufficient evidence here
that the issue was preserved for appeal today.
And so again, if there's no questions
about the preservation issue, I-
J. Georges: Can you just give me
that paragraph number again please?
-: I apologize, number two and number three.
J. Georges: Okay. -: I believe
it's the record appendix page 18,
it's 18 on the bottom right.
J. Kafker: You also dropped your voice a little,
at least I couldn't hear.
What did those paragraphs say?
-: So the first one says the police did not have
probable cause to seize or search the backpack
at the time that they did so.
That's number two, and number three states the search
of the backpack was not a valid search incident to arrest
or inventory search and then it cites to two cases,
one dealing with an inventory search, Ortiz,
and one dealing specifically with, I believe
with the search incident to arrest, which was Rose.
Justice: Mm-hmm.
-: So I do believe that that issue was preserved
for the purposes of appeal today.
And so again I just wanna make sure
there's no questions about that.
So moving on to the inventory search itself,
I think when we look at inventory search, there's always,
we have to have one thing in the back of our minds,
and that is the fact
that an inventory search is not an investigative search.
And then we can move on to doing the analysis,
and I think that the case
of Commonwealth v. Silva talked about
and split the inventory search issue
into two prongs, so to speak.
And Silva says, "Impoundment of a car
and an inventory search of a car are not synonymous,
and the constitutional analysis is not unilateral."
This issue was also expanded upon in Nicolo,
and in that case, the court said, "The lawfulness
of the inventory search subsequent to impoundment implicates
distinct standards from those governing
the lawful impoundment of the vehicle."
So if I were to analyze, do like an analogy here,
I would say it's kind of like an exit order
and a pat frisk.
Even though they're kind of together,
they do have different standards
that we apply when we analyze them.
And so the first issue when looking at a motion to,
at impoundment is the constitutionality
of the decision to impound the vehicle itself.
And for the purposes of this oral argument,
I did go into my brief in great detail
about why I believe that was unconstitutional,
but I don't necessarily wanna focus on that
unless the court has specific questions about that issue.
I think the strongest issue
for Mr. Ferrara goes to the second prong,
and to put it simply is once you lawfully decide,
assuming it's lawful, you decide to impound the car,
what do you do with the property that's in the car?
And I think that that's what the issue comes up here.
-: I thought the argument was the police were required to
or should be required to suggest an alternative
or ask about alternatives, correct?
-: Correct, but it's a little bit different.
So when you impound the car,
my position is that if there's a third party
and that third party is licensed
and can take possession,
they can do that. -: Okay, so here,
we have two people, both don't have licenses.
The turning point in this case as I see it is
whether the police had to say, "Do you have someone?"
or if the defendant had said, "I have someone,"
and neither of those things happened, correct?
-: I think it's a little bit different than that,
respectfully.
I think that's as to the vehicle itself.
So as to what happens to the moped, the officer testified
that he was not told by the defendant
that he wants somebody else to take possession of it,
and that's uncontested.
So the issue as to whether or not the vehicle should have,
that the vehicle should have been taken possession
by someone else, I don't think is necessarily an issue
because the defendant didn't request that,
and that requires a request.
Whether if you want a third party to take the car
or the moped here, you need to request that.
But it's a different standard when you look at,
once you decide I have to impound the car,
what do you do with the property, at that point,
I believe that the case law mandates a mandatory
or an affirmative duty from the police to ask the defendant
and the passenger, "Do you have personal belongings?
What do you wanna do with them?"
With the caveat that there's no reason
to believe there's contraband
and there's no reason to believe
that there's any public danger by what's in the items.
And I think the case that talks about that is too-
-: But, I'm confused 'cause once,
if you satisfy the first prong
that they need to take the property away,
they need to take the moped away, then you're inventorying
to make sure that the police don't, you know,
run off with things or lose things, right?
-: Yes, and that's exactly what Nicolo talks about
when they talk about the fact that
if you don't have to keep the property in the vehicle
when you impound it
and you let the other party take possession of it,
there's no reason for you to be worried
about the issues that impoundment actually presents.
And so that's what here, that's what I'm saying here,
that the issue is, in Nicolo, the court,
the appeals court interpreted the Abdulla case,
which Abdulla just involved an inventory search pursuant
to an arrest in a hotel room, so not necessarily a car,
but in the footnote in Nicolo,
I think the court very clearly says that Abdulla instructs
that after the initial determination,
so the first prong of the test is made,
the defendant should be asked his preference
as to the disposition of his property.
Again, the defendant should be asked his preference
as to the disposition of the property, not the car,
not the moped, but the property in that car or moped.
J. Gaziano: Abdulla was a search
of like a hotel room or something, right?
-: Correct.
J. Gaziano: And this is a backpack in the hotel room?
-: Correct, but Nicolo-
-: Okay, so you're extrapolating Abdulla
to the inventory situation?
Atty. Aprodu: The appeals court did that
in Nicolo in the footnote.
-: Different court,
so close. -: Correct, correct,
but the appeals. -: So let me ask you,
so here, if you say, and we have to drill down,
but if the police hypothetically had the ability
to inventory, possess this moped
because of the threat of theft, you're suggesting
that they can't find out what else is inside
the compartments of the vehicle that are unlocked?
Atty. Aprodu: Correct, because-
-: Even if a policy says
you can look at the compartments unlocked
to see if there's a diamond ring in there,
or you know, all those hypotheticals that never exist,
we always find guns and drugs, but.
-: So the caveat is that before they can impound a car,
they have to make a decision,
what are you gonna do with the property?
So what are you gonna do with this backpack
before you impound the car?
You've already decided you're gonna impound.
J. Gaziano: But isn't that all governed by the policy?
-: I don't believe so.
I believe that that's governed by Nicolo,
which is the latest case in the string of it,
which says that the defendant should be given an opportunity
to take his property, and in fact-
-: Excuse me, is Nicolo the case
where the grandmother is already taking some of the property
and the police just didn't give the grandmother
all the stuff because they wanted to look
at one of the things?
And this is a little different
because when you have the moped
with the backpack under the seat, the police can't even see
that there's a backpack initially, correct?
-: Correct, they have to lift up the seat,
and you are correct as to what the Nicolo case is,
but Nicolo basically talked about the fact
that when there's an available third party, the grandmother,
and there are belongings in the vehicle
that's about to be impounded,
the defendant should be given the opportunity
to give those belongings to the third party
before they impound a car.
-: But if you think about,
I think your case would be stronger
if the backpack was in a basket
that was visible to the officers.
Like, they didn't even know.
They had to start searching, in some sense,
the moped, did they not,
before they even discovered the backpack, correct?
-: Correct, but I think that again,
the wording, and it is a footnote as I said,
but the wording talks about the fact
that the defendant should be given the opportunity
to take the property away, and so my position would be
that the police should have asked the defendant,
I'm sorry, the driver who was being arrested
and defendant who was free to go,
"Do you have belongings in this car?"
"Yes."
"What is it?"
"The backpack."
They take the backpack, and again,
there's nothing here to suggest
that there was any issue about contraband
or any issue about a weapon or safety,
and let him take it
and be on his way. -: Well,
didn't the officer actually testify
that he immediately felt
that there was something heavy inside the backpack
that felt like a gun?
-: I think he said it was something heavy.
I'm not sure that he said it was a gun,
'cause I think he had to open it up
to actually see that it was a weapon,
so I don't think that there was sufficient testimony there
about there actually being some sort
of issue about the contraband or-
-: You would be in a stronger position
if the decision was made to impound
and the defendant said, "I'd like to get my belongings
before you take my moped away."
-: Certainly it would've strengthened the position,
but I believe that he would still, again,
based on the fact that it creates, in my view it creates,
the case of Nicolo creates an affirmative duty
on the police to ask and it's very different than the issue,
the issue with the moped itself or with the vehicle itself.
There's case law that says
the police is not supposed to babysit or stay with that car
until somebody, a third party becomes available,
but it's not the same with the personal property.
And we have to keep in mind that this is an individual,
my client, who had no warrants,
who was not a part of this situation,
who was free to go at that point,
so there's no reason why he shouldn't be able to be asked,
"Take your property and go."
I think the issue here is that it was a moped
and it's smaller, but if you imagine a car-
J. Wendlandt: Was the driver free to go?
-: No, the driver was under arrest because he had a warrant.
-: How is the officer to know
that the backpack did not belong to the driver?
Without your client saying, "Hey, that's mine."
-: Well, I think that
that's what the affirmative duty create,
that's what the affirmative I'm talking about creates,
a requirement from the police to ask,
"Sir, you're free to go.
Do you have any belongings you wanna take before you leave?"
J. Gaziano: You are asking us
to add to our jurisprudence, correct?
-: Yes, to extend Nicolo
and Abdulla. -: And Abdulla
as you see it to this situation.
-: Correct, and I think the rationale
for that is very simple.
If a defendant who's under arrest
and who's gonna be taken into custody is given
the opportunity to have somebody else, a third party,
the grandmother or the passenger take his belongings
from the car, why shouldn't a passenger
who's committed no offense, who has no warrant,
and who's free to go, why should they not be given
the same opportunity to take their belongings
before any type of a inventory search?
And again, I wanna highlight the fact
that they're inventory searches,
so they're not, it's not an investigatory search.
You can't just go and search to see
did these people commit any other crimes
or anything like that?
Unless you have a reason, you have
to have some justification to open that backpack
once you determine that it doesn't belong to somebody
and it's gonna be taken as part of the impoundment.
-: So this would be a precondition in your view
before compliance
with whatever the local inventory policy is?
-: Correct, it would be that,
and I think the case law would create that duty,
creates that actual police officers telling them
you have to take it.
I think the commonwealth at some point
in their brief conceded one of the other points
which related to the car,
they say in their brief, if Mr. Pena,
the driver, asked the police to give the moped
to a third party, the police should have listened
to that and should have done that.
It's the same concept here,
the only difference is that here, it's an affirmative duty
of the police to ask rather than the defendant to ask.
I think that the defendant in the context
of the Commonwealth's concession, the defendant,
and I think it's very clear from all the cases
that are cited to, it's the defendant that has to say,
"I want the third party to take the car."
And it's equally clear, based on Abdulla and Nicolo,
that when you're talking about the property in the car,
the police have to ask and give an opportunity
to the people to take it.
-: What if when the officer lifted the seat up,
the firearm was just there,
and there was no backpack hiding it?
Would he have to ask the passenger,
"Hey, is that your firearm?
You wanna take it with you?
-: No, Your Honor, and there's actual case law
that talks about the fact
that when you do an inventory search,
the exception doesn't apply.
This affirmative duty doesn't apply
when there's contraband or when there's a reason
to believe that officer or the public safety is involved,
which is not present here at all.
The defendant was by all means cooperative.
He gave his license, they ran his name, they ran everything-
-: But your client's better off
because the backpack concealed the firearm.
-: Well, I mean, I think yes, (chuckling)
I think to some extent, yes, I think that-
-: I'm just reading from the Commonwealth's brief,
and you correct me if it's wrong.
On page eight, "He picked up the backpack
and felt something hard inside of it.
Based on his training and experience,
he believed the object was a firearm.
He opened the backpack and found a SIG Sauer P320."
So if that's,
unless he's mischaracterizing the facts,
they knew there was a problem
with contraband right when they touched the backpack.
-: Well, I think that's the issue that if that is in fact,
and I'm trying to pull it up,
but if that is in fact accurate, I think could be an issue
of whether or not there was sufficient evidence
of that brought at trial in terms of the actual testimony
that was presented in regards to what he actually felt,
'cause I if he just felt
that the bag was heavier than normal,
then I think it would be a very different issue.
-: Well, that's why I asked you about whether if he just saw
the firearm, he'd have to ask your client
if it was his and then allow him to take it,
because I read the testimony the same
as Justice Kafker did, which was he saw,
he felt the backpack and based on his training
and experience, understood
that there was a firearm inside it.
-: I still also have this issue with this,
that you're drawing this
and putting this in the same world as Nicola.
There was a factual finding, was there not,
in Nicola by the trial judge
that this was not an inventory search, it was a search
for evidence, and that was the turning point
because of the arbitrariness of you give some
to the grandmother, but you didn't give the backpack.
And so there was a finding
that this wasn't an inventory search.
There's no suggestion here that this was a search
for evidence, this was towing it,
I've gotta look to make sure that I'm protected
as the police officer that no one's gonna accuse me.
No one's saying this is your client's backpack,
so where is any suggestion
that this was anything other than an inventory search
incident to the decision to impound?
-: Well, I think the difficulty lies in the fact that,
I think it lies in the fact that here,
I think it was right at the beginning
of the search that this happened.
It was the first thing that he touched,
so we're not sure.
I think in Nicolo, it took a little bit
of time before they got to the backpack
and then the issue was,
and the same issue was present in Abdulla
in terms of some items were given to the third party
and some items were not.
J. Georges: Right.
-: I think here, we can't know
that that didn't happen here.
J. Georges: Okay, but the facts are what they are.
I mean, if it were- Atty. Aprodu: Correct.
-: If there were different facts, it'd be a different case,
but the facts of this case are that this is what happened.
So again I'm saying where is the suggestion
that somehow this was not a proper inventory search?
And that's what I just would like to get to.
-: Well, I think that it comes from the fact that,
again, my position is that there's an affirmative duty
to ask if there's property. J. Georges: Okay.
-: And that's where it comes from,
so if the second prong is not met,
then it makes the search unconstitutional
pursuant to the inventory search exception.
Chief J. Budd: Okay, thank you.
-: Thank you, Your Honor, thank you.
-: Attorney Hansen.
-: Thank you, Your Honor, good morning.
If it pleases the court, Arnold Hanson
of the Commonwealth of Massachusetts.
with respect to the Guardado issue,
I'd like to address this first.
Guardado created a new prospective rule
that said we had to now prove licensure moving forward
with all the gun cases.
There was a loophole created by that decision, though.
Any case that wasn't final or still pending appeal,
those convictions are essentially vacated
if the defendant chooses to file an appeal
and challenge those convictions.
The defendant in this case falls within that gray area
where during the pendency of the defendant's case,
the Commonwealth was not required to prove
that the defendant didn't have a license.
It was still an affirmative defense.
So there was no reason to gather that evidence
or present it to the court.
What we have here is a subset of defendants
that are convicted felons and therefore prohibited
by statute from possessing a license
who were tried under the old rule,
who can now challenge their convictions
and have their convictions vacated
as a result of the Guardado decision.
So what the Commonwealth is asking, succinctly,
because my brief didn't go to this court, it went
to the appeals court, is to get rid of that exception
and clarify that if you are a convicted felon, you-
-: So you want us to adjudicate,
the court to adjudicate and say as a matter of law,
the defendant doesn't get a new trial
because the defendant was under 21 or had a felony?
-: Correct, and it's harmless beyond a reasonable doubt
because as a matter of law,
we know that they're a prohibited person.
-: Well, but none of that evidence is in the trial,
because understandably, the Commonwealth didn't put it in
because it didn't understand
that it had that burden under the Second Amendment.
Atty. Hanson: Correct.
-: Right, so that makes it very different
than the Nutter case where there was evidence of,
I think an under-reporting of $5 million in income
and then it was harmless beyond a reasonable doubt
as to whether that was material misreporting.
Here, there's no evidence in the trial
as to the prior felony conviction, you know,
so it's a little different.
-: Yes, and that's fair,
and I think there's gonna- J. Wendlandt: So let's
move on to the motion to suppress.
Chief J. Budd: That's what we're here for.
-: Okay.
With respect to the motion to suppress,
it's clear that the officers followed the inventory policy.
The purpose of these types of motions
and the inventory policies are
to safeguard the belongings in the car,
to safeguard the police from accusations of stealing
or losing belongings, as well as to protect the public
from items that might be found in the car
that are dangerous such as weapons or illicit substances.
The inventory policy from the Eastwater,
Bridgewater Police Department follows that to the T.
It says this is the purpose,
it follows the case law Commonwealth v. Lek.
If the police choose to initiate a traffic stop,
they're responsible for the location of the stop,
and they're also responsible for the vehicle.
Here, the vehicle was stopped at a cul-de-sac,
so it wasn't illegally parked, but it was on the street.
-: Can't you just keep a moped on in a cul-de-sac?
Would it be like offensive to the HOA?
Like, why can't we keep a moped on the sidewalk?
-: Because of these specific instances here
so you can protect the car
or the moped in this case from vandalism or theft.
There was specific evidence in this case
that this moped could be started without a key,
and there was also evidence that the compartment
inside this moped couldn't be locked.
So if you leave the moped there, somebody could start it
and drive off with it, or could ransack it, go through it,
and there would be nothing that anyone could do with it
because there's no locks on this vehicle.
And that's why the officer made the right choice
to do the inventory of this vehicle.
Now, if you look at Crowley v. Chester, it states
that the test here is not whether this is a high crime area,
it's whether the likelihood of a theft
or vandalism is high given the circumstances.
Again, where this car
or this vehicle could be driven off by anyone,
that is very likely to happen, or at least in theory.
-: So I guess the, not to fast forward too much,
but so let's just say the moped
and now anybody could take it for a joy ride or ransack it,
and so it has to be impounded.
The next question I think
that opposing counsel is really arguing is that
at that point, the officer needed to ask, you know,
"Do you have property here, dear defendant passenger?
'Cause you're not under arrest.
Do you wanna just grab it and go?"
-: Yes, and I think the case law here is
very well established with regards to the actual vehicle.
So if there's another person on, and I'm getting there,
but there's another person on scene that could take control
of the vehicle, that person should be permitted to do so,
and the officer has an obligation
to let that person take the car.
J. Wendlandt: Right, but here,
we have two unlicensed drivers,
so nobody can take the moped.
-: Right, so my analogy is the same for materials
that might be found inside the vehicle.
So if you look at Oliviera as well as Ellerby,
they hold that where neither the driver
or the passengers ask the officer for a third party
to take control of the car that's not on scene,
the officer has no affirmative duty to let that person,
to then ask that person,
"Hey, do you want someone else to take the car?"
If one of those individuals, either the driver
or the passenger asks, "Hey,"
in Oliviera, it's a very good example.
It was Oliviera's girlfriend's car.
He parked in a parking lot in a shopping center.
He asked, "Hey, can my girlfriend come take this car?
She's the rightful owner.
She can get here in X amount of time,
and can she take the car?"
And the court ruled that he should have been given
that opportunity because he asked for it.
But conversely, the officer does not have an obligation
to ask the occupants of the car to then get some third party
from who knows where to come take the vehicle.
It's only when those individuals ask.
That's with regards to possession of the car.
My argument is it should be analogous
with materials contained inside the car.
In this case here, nobody asked,
"Can I grab my belongings out of the bag?"
J. Wendlandt: Why should it be the same?
-: Because it's property.
Car is property, the items inside are property,
they all belong to someone.
Chief J. Budd: Imagine it was a purse
in the backseat of a car.
-: I'm sorry, a purse? -: Imagine,
there's two people, one person's getting taken away,
car's gonna be impounded,
there's a purse in the backseat of the car.
What happens in that case?
Atty. Hanson: The purse would be inventoried.
-: So you're saying nobody would say, "Hey,
do you wanna grab that purse before we take this car away?"
Nobody's gonna, I mean, isn't that just?
-: I'm saying that the officer doesn't have a duty
to go through every single item in the car and say,
"Do you want this, do you want that, do you want that?"
I think the law is very clear with regards
to the car itself.
-: No, no, I understand.
We're talking about the property in the car.
So if there's something in there that appears
to be a personal item, right?
I'm just asking, just in real life, are you saying that,
you know, nobody says anything, whatever the person
to whom the personal property belongs is kind of,
you know, surprised by this whole thing
and isn't thinking straight,
the police officer is just gonna take everything?
Not gonna, I mean, is that just how they do it?
-: I think that would be a fair way to do it,
and I think that's the way that it's been happening
and has always happened. -: Is that how it happens?
They don't say, "Do you want your bag
before we take off with this car?"
-: I think that's just the way that it happens.
Where nobody says, "Hey, my bag is here,
can I grab it before we go?" I think it would be unfair
to put the duty on the officer
to then go through every single belonging
in the car- Chief J. Budd: No, yeah,
I understand your point. -: And say, "Do you want this,
do you want that?" -: I'm just trying to get
where the line is.
Atty. Hanson: Right.
-: Right, so if you see.
-: I think the line, I think it's a very delineated line.
I think if the individual asks,
then it's very clear the officer has to respect that,
but the officer doesn't have a duty
to then ask the individual,
"What do you want out of this car?"
-: If there were a licensed operator,
not the operator, but the passenger
in this case had had the ability
to operate the moped lawfully,
can you run out for me what the rule is in your view
with respect to the property in the moped?
-: If there, I think the law is very clear.
If there is somebody that is on scene that isn't intoxicated
and is duly licensed to take the vehicle,
they can take the vehicle and it shouldn't be inventoried.
J. Wolohojian: Okay. -: I think
the law is very clear on that. -: Okay,
so the question is, what's the principle,
what's the principled line to distinguish
that passenger's relationship
with the property in the vehicle?
Just based on the fact
that he has a license gives him
a different expectation of privacy with respect
to his own property in the vehicle?
Atty. Hanson: I'm not sure
I understand the court's question.
-: Okay, so I think what you just said is
that if he had had a license and could drive away the moped,
the officer couldn't have searched the moped.
Atty. Hanson: Correct.
-: Okay, so that person, just because he does,
the passenger who wasn't doing anything unlawful
because he was a passenger,
just because he doesn't have a license,
the Commonwealth's position is
his entitlement to prevent a search
of his own possessions in the moped changes
just because he's not licensed?
-: I understand what you're saying.
I don't think there's a direct line.
I think the line that I'm drawing is,
and I think the crux of the issue is whether
or not the individual asks
to remove their belongings should be treated the same
as whether or not an individual asks
for a third party to pick up the car.
So I'm saying that the onus is on the individual
who presumably owns the possessions inside the vehicle
to ask the officer, "Can I grab this?"
J. Wolohojian: How does that square with the purposes
of the inventory search?
-: The inventory search just needs to make sure
whatever's left in the car is tracked
so that the officers can maintain that
without it getting lost,
but also prevents dangerous items
from being left in the car.
-: Right, so if they're not gonna be left in the car,
then the purpose is, in other words,
if they're not gonna end up in the custody of the police,
then those purposes aren't really furthered, are they?
-: Right, but again, here, we have a case
where the officer is going to take possession of-
J. Gaziano: Right. -: Of the moped.
Nobody has said, "My stuff is in the moped."
He doesn't know what's in the moped
because it's in a compartment under the seat.
He only discovers the firearm
after he's initiated his search,
and there was nothing before him to suggest
that he should not have searched the vehicle,
because again, it's-
-: What if the backpack was in a basket,
and so the officer knew there's a backpack here?
Would that make a difference in terms
of whether he had an affirmative obligation
to ask the passenger, "Hey, do you wanna take that?
Is that yours?"
Atty. Hanson: I think from a legal perspective,
no, because- -: Okay, so it doesn't matter
that it was not visible to the officer
and it was under the seat from your perspective?
-: Not with respect to who has the duty
to request what happens with the items.
J. Wendlandt: And what if the backpack had been
on the passenger's back?
-: Look, yeah, then you can't search it
without probable cause.
I think that's a completely different argument.
He's not investigating a crime here.
He's effectuating a motor vehicle stop
because of a civil infraction,
and then as a result of that, discovers that one,
the operator has a warrant, so then he's dealing with that,
and because the defendant didn't have a license,
he had to deal with the moped
before he could effectuate the arrest on the warrant.
-: The fact question that I asked earlier from your brief,
I can't find the transcript, at least right now.
Is it clear that he identified the possibility of a gun
by touching as opposed to opening the bag?
-: That is my recollection of how it happened.
J. Wendlandt: Which is?
What's your recollection?
-: That he picked up the back, he opened the seat,
he picked up the backpack, felt that there was a gun
in there based on his training experience,
opened the backpack,
lo and behold, there's a gun in there.
-: And do we have that transcript?
Oh, I see there's a motion page 15.
Do we have that in our record?
-: It's the defendant's appeal,
so I don't know what was sent,
but I certainly had copies of the transcription
in preparing for this.
J. Kafker: But you think it's in our record?
I just couldn't dig it up. -: I would assume so.
J. Kafker: Yeah.
J. Wendlandt: No, that's good.
-: Again, it would be part of the trial file,
but photo, like, it-
J. Kafker: Yeah, but we don't have the whole,
we don't always have the whole trial file.
-: Right.
I don't know if it'd be part of your record as well,
but there's photographs of the backpack in question.
It's not a large backpack.
J. Kafker: It's not gonna help us any
'cause it's the feel issue.
Atty. Hanson: Right. -: You draw a distinction
saying that when he picked it up,
on page eight of your brief,
he could tell it was a firearm.
-: Right, so if that's, I'm not,
during the facts, the way
that I write my facts is very straightforward.
It's if that's what he said, that's what I put in.
J. Wendlandt: Why don't you give us the transcript?
Justice: Yeah.
-: I can certainly give it
to you. Chief J. Budd: I think
we have the transcript.
J. Wendlandt: Okay, great, thank you.
Chief J. Budd: Okay, all right.
-: May I ask a question?
On the sufficiency of the evidence of the defaced firearm?
Atty. Hanson: Yes.
-: Can you address
where the charge was, where the jury were instructed
in one way, how the evidence was sufficient
with respect to how the crime, charge was instructed?
-: So with respect to the Commonwealth's theory,
the case was always that the defendant was in possession
of a firearm with a defaced serial number.
Certainly there wasn't any evidence
that he defaced it on the side of the road
while he was riding the moped.
So if you look at the transcripts,
and I cite it in my brief, I think it's page 112,
ADA Ganz has a conversation with Judge Dilorati
about the jury instructions,
and the primary jury instruction focuses
on the actual act of defacing,
so that was going to be given.
There is a supplemental jury instruction
which ADA Ganz has a conversation with Judge Dilorati
about which discusses mere possession of a firearm
with a defaced serial number.
That's another way that the Commonwealth can prove guilt
beyond a reasonable doubt in these types of charges.
And they go through that, and both of them agree
that that's an instruction that's gonna be given.
That instruction is then given on page 143
of the transcript, which is the jury instructions.
-: I didn't see that there.
I only see an instruction
that the defendant was to remove, deface, alter,
obliterate, or mutilate the serial number.
Atty. Hanson: So referring to page 143, I don't know
if Your Honor has that.
-: I have it right in front of me.
-: It's the first full paragraph,
or the second paragraph in there.
It starts with, "You heard some evidence in this case
suggesting the defendant possessed a firearm
with a defaced serial number.
If you find that fact to be proven, you are permitted
to accept it also as proof the defendant was a person
who removed a faced, altered, obliterated
or mutilated the serial
or the aerial -- the serial," I'm sorry,
"or identification number on that firearm."
J. Wolohojian: Okay,
so you're- -: That's the instruction.
-: You're reading the first sentence
as being an alternate path,
the jury would've understand
that the first sentence was an alternate path
to the second sentence?
Atty. Hanson: Correct.
-: Chief, could I clarify one thing?
Counsel, so I think this is really important for us.
We do have, we have the sergeant's testimony at trial.
Atty. Hanson: Right. -: That's what's in here.
I don't know that we have the testimony at the motion
to suppress, and I think, don't we need that?
-: I certainly agree, obviously to evaluate
what was presented before the court.
I can send a copy of that transcript to the court.
Justice: Justice Dewar may have-
-: I think it's available in the clerk's office,
and it was not on our iPads.
I apologize for not- J. Georges: Oh, is that?
Okay. -: Highlighting that,
but we do have, the court has it,
it just didn't make it electronically into all locations.
J. Georges: Thank you, I appreciate that, thank you.
-: Can I ask a follow up question on this defacement issue?
So I read the statute as creating two crimes, 11C.
Number one is receiving a defaced firearm
and number two is defacing a firearm.
And then there's a further provision in 11C
that says it shall be prima facie evidence
that a defendant committed a violation of 11C
if a defendant is in possession of a defaced firearm.
Do you understand the statute the same way?
Atty. Hanson: Yes.
-: So the complaint here clearly charges
only defacement of a firearm.
It does not charge receiving a defaced firearm.
Do you agree with that?
Atty. Hanson: Yes.
-: And then at the charge conference,
the ADA specifically said she did not want
a receiving jury instruction.
She only wanted the defacing instruction, correct?
Atty. Hanson: Yes.
-: And so what's your best case
that it can be proof beyond a reasonable doubt
that a defendant himself defaced a firearm,
that he is in possession of a firearm that's defaced?
Atty. Hanson: So the Farrar case,
which I cite in my brief-
J. Dewar: That was a receiving case, was it not?
-: My understanding of the statute is that
if you are in possession of the gun
with a defaced serial number,
that is prima facie evidence that you defaced the gun.
J. Gaziano: By receipt. (chuckles)
-: Right.