WEBVTT

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<v ->SJC-13711,</v>

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Commonwealth versus Eric A. Ferrara.

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(papers rustling)

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<v ->Okay.</v>
<v ->Good morning, Your Honors.</v>

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May it please the court, Adela Aprodu for Mr. Ferrara.

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I will just very briefly address the Guardado issue.

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I think it has been addressed quite a bit

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in the last few months. (chuckling)

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So I think a new trial's appropriate here

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because the only exception that the court made

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to the Guardado as of right now would be the Bookman case.

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And in Bookman, the difference was

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that there was direct evidence in the testimony

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of the officer that the two co-defendants were unlicensed.

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Not only was there no such testimony here,

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but there was absolutely no evidence here

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that the defendant could not possess the firearm

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or did not have any license.

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So for that reason, I do believe that in this case,

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a new trial is appropriate.

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Unless the court has any other questions about Guardado,

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I would like to move on to the motion to suppress.

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Thank you.

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I think the first issue

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to address is the Commonwealth's contention

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that the issue was not preserved,

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that the inventory search issue was not preserved,

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and I do wanna point the court to the record appendix.

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It's number 18, and that's the motion to suppress

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that was filed by counsel, by trial counsel,

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specifically paragraphs two and three.

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Both of them talk specifically

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about the backpack at issue here,

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and paragraph three in fact talks about the fact

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that the backpack search was not a valid search incident

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to arrest or inventory search.

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And I do submit that based on that,

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there is sufficient evidence here

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that the issue was preserved for appeal today.

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And so again, if there's no questions

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about the preservation issue, I-

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<v J. Georges>Can you just give me</v>

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that paragraph number again please?

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<v ->I apologize, number two and number three.</v>

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<v J. Georges>Okay.</v>
<v ->I believe</v>

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it's the record appendix page 18,

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it's 18 on the bottom right.

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<v J. Kafker>You also dropped your voice a little,</v>

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at least I couldn't hear.

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What did those paragraphs say?

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<v ->So the first one says the police did not have</v>

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probable cause to seize or search the backpack

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at the time that they did so.

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That's number two, and number three states the search

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of the backpack was not a valid search incident to arrest

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or inventory search and then it cites to two cases,

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one dealing with an inventory search, Ortiz,

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and one dealing specifically with, I believe

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with the search incident to arrest, which was Rose.

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<v Justice>Mm-hmm.</v>

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<v ->So I do believe that that issue was preserved</v>

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for the purposes of appeal today.

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And so again I just wanna make sure

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there's no questions about that.

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So moving on to the inventory search itself,

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I think when we look at inventory search, there's always,

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we have to have one thing in the back of our minds,

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and that is the fact

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that an inventory search is not an investigative search.

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And then we can move on to doing the analysis,

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and I think that the case

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of Commonwealth v. Silva talked about

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and split the inventory search issue

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into two prongs, so to speak.

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And Silva says, "Impoundment of a car

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and an inventory search of a car are not synonymous,

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and the constitutional analysis is not unilateral."

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This issue was also expanded upon in Nicolo,

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and in that case, the court said, "The lawfulness

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of the inventory search subsequent to impoundment implicates

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distinct standards from those governing

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the lawful impoundment of the vehicle."

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So if I were to analyze, do like an analogy here,

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I would say it's kind of like an exit order

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and a pat frisk.

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Even though they're kind of together,

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they do have different standards

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that we apply when we analyze them.

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And so the first issue when looking at a motion to,

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at impoundment is the constitutionality

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of the decision to impound the vehicle itself.

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And for the purposes of this oral argument,

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I did go into my brief in great detail

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about why I believe that was unconstitutional,

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but I don't necessarily wanna focus on that

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unless the court has specific questions about that issue.

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I think the strongest issue

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for Mr. Ferrara goes to the second prong,

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and to put it simply is once you lawfully decide,

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assuming it's lawful, you decide to impound the car,

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what do you do with the property that's in the car?

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And I think that that's what the issue comes up here.

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<v ->I thought the argument was the police were required to</v>

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or should be required to suggest an alternative

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or ask about alternatives, correct?

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<v ->Correct, but it's a little bit different.</v>

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So when you impound the car,

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my position is that if there's a third party

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and that third party is licensed

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and can take possession,

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they can do that.
<v ->Okay, so here,</v>

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we have two people, both don't have licenses.

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The turning point in this case as I see it is

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whether the police had to say, "Do you have someone?"

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or if the defendant had said, "I have someone,"

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and neither of those things happened, correct?

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<v ->I think it's a little bit different than that,</v>

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respectfully.

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I think that's as to the vehicle itself.

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So as to what happens to the moped, the officer testified

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that he was not told by the defendant

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that he wants somebody else to take possession of it,

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and that's uncontested.

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So the issue as to whether or not the vehicle should have,

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that the vehicle should have been taken possession

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by someone else, I don't think is necessarily an issue

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because the defendant didn't request that,

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and that requires a request.

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Whether if you want a third party to take the car

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or the moped here, you need to request that.

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But it's a different standard when you look at,

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once you decide I have to impound the car,

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what do you do with the property, at that point,

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I believe that the case law mandates a mandatory

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or an affirmative duty from the police to ask the defendant

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and the passenger, "Do you have personal belongings?

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What do you wanna do with them?"

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With the caveat that there's no reason

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to believe there's contraband

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and there's no reason to believe

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that there's any public danger by what's in the items.

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And I think the case that talks about that is too-

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<v ->But, I'm confused 'cause once,</v>

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if you satisfy the first prong

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that they need to take the property away,

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they need to take the moped away, then you're inventorying

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to make sure that the police don't, you know,

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run off with things or lose things, right?

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<v ->Yes, and that's exactly what Nicolo talks about</v>

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when they talk about the fact that

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if you don't have to keep the property in the vehicle

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when you impound it

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and you let the other party take possession of it,

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there's no reason for you to be worried

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about the issues that impoundment actually presents.

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And so that's what here, that's what I'm saying here,

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that the issue is, in Nicolo, the court,

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the appeals court interpreted the Abdulla case,

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which Abdulla just involved an inventory search pursuant

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to an arrest in a hotel room, so not necessarily a car,

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but in the footnote in Nicolo,

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I think the court very clearly says that Abdulla instructs

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that after the initial determination,

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so the first prong of the test is made,

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the defendant should be asked his preference

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as to the disposition of his property.

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Again, the defendant should be asked his preference

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as to the disposition of the property, not the car,

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not the moped, but the property in that car or moped.

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<v J. Gaziano>Abdulla was a search</v>

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of like a hotel room or something, right?

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<v ->Correct.</v>

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<v J. Gaziano>And this is a backpack in the hotel room?</v>

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<v ->Correct, but Nicolo-</v>

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<v ->Okay, so you're extrapolating Abdulla</v>

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to the inventory situation?

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<v Atty. Aprodu>The appeals court did that</v>

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in Nicolo in the footnote.

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<v ->Different court,</v>

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so close.
<v ->Correct, correct,</v>

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but the appeals.
<v ->So let me ask you,</v>

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so here, if you say, and we have to drill down,

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but if the police hypothetically had the ability

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to inventory, possess this moped

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because of the threat of theft, you're suggesting

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that they can't find out what else is inside

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the compartments of the vehicle that are unlocked?

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<v Atty. Aprodu>Correct, because-</v>

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<v ->Even if a policy says</v>

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you can look at the compartments unlocked

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to see if there's a diamond ring in there,

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or you know, all those hypotheticals that never exist,

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we always find guns and drugs, but.

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<v ->So the caveat is that before they can impound a car,</v>

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they have to make a decision,

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what are you gonna do with the property?

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So what are you gonna do with this backpack

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before you impound the car?

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You've already decided you're gonna impound.

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<v J. Gaziano>But isn't that all governed by the policy?</v>

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<v ->I don't believe so.</v>

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I believe that that's governed by Nicolo,

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which is the latest case in the string of it,

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which says that the defendant should be given an opportunity

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to take his property, and in fact-

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<v ->Excuse me, is Nicolo the case</v>

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where the grandmother is already taking some of the property

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and the police just didn't give the grandmother

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all the stuff because they wanted to look

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at one of the things?

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And this is a little different

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because when you have the moped

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with the backpack under the seat, the police can't even see

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that there's a backpack initially, correct?

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<v ->Correct, they have to lift up the seat,</v>

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and you are correct as to what the Nicolo case is,

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but Nicolo basically talked about the fact

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that when there's an available third party, the grandmother,

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and there are belongings in the vehicle

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that's about to be impounded,

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the defendant should be given the opportunity

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to give those belongings to the third party

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before they impound a car.

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<v ->But if you think about,</v>

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I think your case would be stronger

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if the backpack was in a basket

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that was visible to the officers.

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Like, they didn't even know.

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They had to start searching, in some sense,

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the moped, did they not,

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before they even discovered the backpack, correct?

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<v ->Correct, but I think that again,</v>

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the wording, and it is a footnote as I said,

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but the wording talks about the fact

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that the defendant should be given the opportunity

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to take the property away, and so my position would be

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that the police should have asked the defendant,

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I'm sorry, the driver who was being arrested

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and defendant who was free to go,

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"Do you have belongings in this car?"

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"Yes."

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"What is it?"

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"The backpack."

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They take the backpack, and again,

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there's nothing here to suggest

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that there was any issue about contraband

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or any issue about a weapon or safety,

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and let him take it

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and be on his way.
<v ->Well,</v>

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didn't the officer actually testify

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that he immediately felt

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that there was something heavy inside the backpack

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that felt like a gun?

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<v ->I think he said it was something heavy.</v>

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I'm not sure that he said it was a gun,

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'cause I think he had to open it up

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00:10:42.090 --> 00:10:44.460
to actually see that it was a weapon,

258
00:10:44.460 --> 00:10:47.160
so I don't think that there was sufficient testimony there

259
00:10:47.160 --> 00:10:49.680
about there actually being some sort

260
00:10:49.680 --> 00:10:51.694
of issue about the contraband or-

261
00:10:51.694 --> 00:10:53.160
<v ->You would be in a stronger position</v>

262
00:10:53.160 --> 00:10:57.180
if the decision was made to impound

263
00:10:57.180 --> 00:11:01.140
and the defendant said, "I'd like to get my belongings

264
00:11:01.140 --> 00:11:04.920
before you take my moped away."

265
00:11:04.920 --> 00:11:06.720
<v ->Certainly it would've strengthened the position,</v>

266
00:11:06.720 --> 00:11:09.990
but I believe that he would still, again,

267
00:11:09.990 --> 00:11:12.900
based on the fact that it creates, in my view it creates,

268
00:11:12.900 --> 00:11:15.570
the case of Nicolo creates an affirmative duty

269
00:11:15.570 --> 00:11:19.020
on the police to ask and it's very different than the issue,

270
00:11:19.020 --> 00:11:22.260
the issue with the moped itself or with the vehicle itself.

271
00:11:22.260 --> 00:11:23.310
There's case law that says

272
00:11:23.310 --> 00:11:26.040
the police is not supposed to babysit or stay with that car

273
00:11:26.040 --> 00:11:28.440
until somebody, a third party becomes available,

274
00:11:28.440 --> 00:11:30.360
but it's not the same with the personal property.

275
00:11:30.360 --> 00:11:32.550
And we have to keep in mind that this is an individual,

276
00:11:32.550 --> 00:11:35.133
my client, who had no warrants,

277
00:11:36.180 --> 00:11:37.950
who was not a part of this situation,

278
00:11:37.950 --> 00:11:39.870
who was free to go at that point,

279
00:11:39.870 --> 00:11:42.637
so there's no reason why he shouldn't be able to be asked,

280
00:11:42.637 --> 00:11:44.340
"Take your property and go."

281
00:11:44.340 --> 00:11:46.050
I think the issue here is that it was a moped

282
00:11:46.050 --> 00:11:47.157
and it's smaller, but if you imagine a car-

283
00:11:47.157 --> 00:11:49.020
<v J. Wendlandt>Was the driver free to go?</v>

284
00:11:49.020 --> 00:11:52.140
<v ->No, the driver was under arrest because he had a warrant.</v>

285
00:11:52.140 --> 00:11:53.670
<v ->How is the officer to know</v>

286
00:11:53.670 --> 00:11:57.330
that the backpack did not belong to the driver?

287
00:11:57.330 --> 00:12:00.060
Without your client saying, "Hey, that's mine."

288
00:12:00.060 --> 00:12:00.893
<v ->Well, I think that</v>

289
00:12:00.893 --> 00:12:02.160
that's what the affirmative duty create,

290
00:12:02.160 --> 00:12:03.840
that's what the affirmative I'm talking about creates,

291
00:12:03.840 --> 00:12:06.727
a requirement from the police to ask,

292
00:12:06.727 --> 00:12:07.800
"Sir, you're free to go.

293
00:12:07.800 --> 00:12:10.170
Do you have any belongings you wanna take before you leave?"

294
00:12:10.170 --> 00:12:11.220
<v J. Gaziano>You are asking us</v>

295
00:12:11.220 --> 00:12:14.190
to add to our jurisprudence, correct?

296
00:12:14.190 --> 00:12:17.258
<v ->Yes, to extend Nicolo</v>

297
00:12:17.258 --> 00:12:18.091
and Abdulla.
<v ->And Abdulla</v>

298
00:12:18.091 --> 00:12:20.070
as you see it to this situation.

299
00:12:20.070 --> 00:12:21.360
<v ->Correct, and I think the rationale</v>

300
00:12:21.360 --> 00:12:22.350
for that is very simple.

301
00:12:22.350 --> 00:12:23.780
If a defendant who's under arrest

302
00:12:23.780 --> 00:12:27.240
and who's gonna be taken into custody is given

303
00:12:27.240 --> 00:12:30.060
the opportunity to have somebody else, a third party,

304
00:12:30.060 --> 00:12:33.390
the grandmother or the passenger take his belongings

305
00:12:33.390 --> 00:12:37.080
from the car, why shouldn't a passenger

306
00:12:37.080 --> 00:12:39.420
who's committed no offense, who has no warrant,

307
00:12:39.420 --> 00:12:42.150
and who's free to go, why should they not be given

308
00:12:42.150 --> 00:12:44.550
the same opportunity to take their belongings

309
00:12:44.550 --> 00:12:47.820
before any type of a inventory search?

310
00:12:47.820 --> 00:12:49.530
And again, I wanna highlight the fact

311
00:12:49.530 --> 00:12:51.360
that they're inventory searches,

312
00:12:51.360 --> 00:12:53.730
so they're not, it's not an investigatory search.

313
00:12:53.730 --> 00:12:55.240
You can't just go and search to see

314
00:12:55.240 --> 00:12:57.330
did these people commit any other crimes

315
00:12:57.330 --> 00:12:58.350
or anything like that?

316
00:12:58.350 --> 00:12:59.370
Unless you have a reason, you have

317
00:12:59.370 --> 00:13:03.150
to have some justification to open that backpack

318
00:13:03.150 --> 00:13:06.300
once you determine that it doesn't belong to somebody

319
00:13:06.300 --> 00:13:09.060
and it's gonna be taken as part of the impoundment.

320
00:13:09.060 --> 00:13:12.720
<v ->So this would be a precondition in your view</v>

321
00:13:12.720 --> 00:13:15.360
before compliance

322
00:13:15.360 --> 00:13:18.303
with whatever the local inventory policy is?

323
00:13:19.558 --> 00:13:21.090
<v ->Correct, it would be that,</v>

324
00:13:21.090 --> 00:13:24.593
and I think the case law would create that duty,

325
00:13:24.593 --> 00:13:27.630
creates that actual police officers telling them

326
00:13:27.630 --> 00:13:28.463
you have to take it.

327
00:13:28.463 --> 00:13:29.700
I think the commonwealth at some point

328
00:13:29.700 --> 00:13:32.490
in their brief conceded one of the other points

329
00:13:32.490 --> 00:13:33.540
which related to the car,

330
00:13:33.540 --> 00:13:35.610
they say in their brief, if Mr. Pena,

331
00:13:35.610 --> 00:13:38.130
the driver, asked the police to give the moped

332
00:13:38.130 --> 00:13:42.180
to a third party, the police should have listened

333
00:13:42.180 --> 00:13:43.890
to that and should have done that.

334
00:13:43.890 --> 00:13:45.630
It's the same concept here,

335
00:13:45.630 --> 00:13:48.120
the only difference is that here, it's an affirmative duty

336
00:13:48.120 --> 00:13:53.010
of the police to ask rather than the defendant to ask.

337
00:13:53.010 --> 00:13:54.900
I think that the defendant in the context

338
00:13:54.900 --> 00:13:57.840
of the Commonwealth's concession, the defendant,

339
00:13:57.840 --> 00:13:59.550
and I think it's very clear from all the cases

340
00:13:59.550 --> 00:14:01.927
that are cited to, it's the defendant that has to say,

341
00:14:01.927 --> 00:14:04.890
"I want the third party to take the car."

342
00:14:04.890 --> 00:14:08.370
And it's equally clear, based on Abdulla and Nicolo,

343
00:14:08.370 --> 00:14:11.040
that when you're talking about the property in the car,

344
00:14:11.040 --> 00:14:14.280
the police have to ask and give an opportunity

345
00:14:14.280 --> 00:14:15.113
to the people to take it.

346
00:14:15.113 --> 00:14:17.286
<v ->What if when the officer lifted the seat up,</v>

347
00:14:17.286 --> 00:14:19.830
the firearm was just there,

348
00:14:19.830 --> 00:14:24.660
and there was no backpack hiding it?

349
00:14:24.660 --> 00:14:27.307
Would he have to ask the passenger,

350
00:14:27.307 --> 00:14:28.830
"Hey, is that your firearm?

351
00:14:28.830 --> 00:14:30.030
You wanna take it with you?

352
00:14:30.030 --> 00:14:31.620
<v ->No, Your Honor, and there's actual case law</v>

353
00:14:31.620 --> 00:14:32.539
that talks about the fact

354
00:14:32.539 --> 00:14:35.763
that when you do an inventory search,

355
00:14:36.960 --> 00:14:38.403
the exception doesn't apply.

356
00:14:39.336 --> 00:14:41.610
This affirmative duty doesn't apply

357
00:14:41.610 --> 00:14:43.800
when there's contraband or when there's a reason

358
00:14:43.800 --> 00:14:47.190
to believe that officer or the public safety is involved,

359
00:14:47.190 --> 00:14:48.600
which is not present here at all.

360
00:14:48.600 --> 00:14:50.265
The defendant was by all means cooperative.

361
00:14:50.265 --> 00:14:53.910
He gave his license, they ran his name, they ran everything-

362
00:14:53.910 --> 00:14:55.200
<v ->But your client's better off</v>

363
00:14:55.200 --> 00:14:58.053
because the backpack concealed the firearm.

364
00:15:01.110 --> 00:15:02.910
<v ->Well, I mean, I think yes, (chuckling)</v>

365
00:15:02.910 --> 00:15:05.097
I think to some extent, yes, I think that-

366
00:15:05.097 --> 00:15:07.050
<v ->I'm just reading from the Commonwealth's brief,</v>

367
00:15:07.050 --> 00:15:09.060
and you correct me if it's wrong.

368
00:15:09.060 --> 00:15:11.130
On page eight, "He picked up the backpack

369
00:15:11.130 --> 00:15:13.140
and felt something hard inside of it.

370
00:15:13.140 --> 00:15:14.880
Based on his training and experience,

371
00:15:14.880 --> 00:15:16.893
he believed the object was a firearm.

372
00:15:18.030 --> 00:15:21.983
He opened the backpack and found a SIG Sauer P320."

373
00:15:23.940 --> 00:15:26.493
So if that's,

374
00:15:28.050 --> 00:15:30.813
unless he's mischaracterizing the facts,

375
00:15:32.910 --> 00:15:34.530
they knew there was a problem

376
00:15:34.530 --> 00:15:38.253
with contraband right when they touched the backpack.

377
00:15:39.251 --> 00:15:41.280
<v ->Well, I think that's the issue that if that is in fact,</v>

378
00:15:41.280 --> 00:15:42.360
and I'm trying to pull it up,

379
00:15:42.360 --> 00:15:44.370
but if that is in fact accurate, I think could be an issue

380
00:15:44.370 --> 00:15:47.550
of whether or not there was sufficient evidence

381
00:15:47.550 --> 00:15:50.880
of that brought at trial in terms of the actual testimony

382
00:15:50.880 --> 00:15:54.960
that was presented in regards to what he actually felt,

383
00:15:54.960 --> 00:15:56.220
'cause I if he just felt

384
00:15:56.220 --> 00:15:58.080
that the bag was heavier than normal,

385
00:15:58.080 --> 00:16:02.400
then I think it would be a very different issue.

386
00:16:02.400 --> 00:16:05.130
<v ->Well, that's why I asked you about whether if he just saw</v>

387
00:16:05.130 --> 00:16:07.932
the firearm, he'd have to ask your client

388
00:16:07.932 --> 00:16:10.620
if it was his and then allow him to take it,

389
00:16:10.620 --> 00:16:13.200
because I read the testimony the same

390
00:16:13.200 --> 00:16:17.250
as Justice Kafker did, which was he saw,

391
00:16:17.250 --> 00:16:19.590
he felt the backpack and based on his training

392
00:16:19.590 --> 00:16:21.450
and experience, understood

393
00:16:21.450 --> 00:16:23.223
that there was a firearm inside it.

394
00:16:25.650 --> 00:16:27.780
<v ->I still also have this issue with this,</v>

395
00:16:27.780 --> 00:16:28.920
that you're drawing this

396
00:16:28.920 --> 00:16:32.340
and putting this in the same world as Nicola.

397
00:16:32.340 --> 00:16:34.680
There was a factual finding, was there not,

398
00:16:34.680 --> 00:16:36.840
in Nicola by the trial judge

399
00:16:36.840 --> 00:16:40.200
that this was not an inventory search, it was a search

400
00:16:40.200 --> 00:16:43.170
for evidence, and that was the turning point

401
00:16:43.170 --> 00:16:45.270
because of the arbitrariness of you give some

402
00:16:45.270 --> 00:16:47.757
to the grandmother, but you didn't give the backpack.

403
00:16:47.757 --> 00:16:49.530
And so there was a finding

404
00:16:49.530 --> 00:16:51.720
that this wasn't an inventory search.

405
00:16:51.720 --> 00:16:54.510
There's no suggestion here that this was a search

406
00:16:54.510 --> 00:16:58.350
for evidence, this was towing it,

407
00:16:58.350 --> 00:17:00.930
I've gotta look to make sure that I'm protected

408
00:17:00.930 --> 00:17:03.810
as the police officer that no one's gonna accuse me.

409
00:17:03.810 --> 00:17:07.200
No one's saying this is your client's backpack,

410
00:17:07.200 --> 00:17:10.260
so where is any suggestion

411
00:17:10.260 --> 00:17:13.900
that this was anything other than an inventory search

412
00:17:15.360 --> 00:17:17.880
incident to the decision to impound?

413
00:17:17.880 --> 00:17:20.793
<v ->Well, I think the difficulty lies in the fact that,</v>

414
00:17:22.380 --> 00:17:25.770
I think it lies in the fact that here,

415
00:17:25.770 --> 00:17:27.060
I think it was right at the beginning

416
00:17:27.060 --> 00:17:28.860
of the search that this happened.

417
00:17:28.860 --> 00:17:30.690
It was the first thing that he touched,

418
00:17:30.690 --> 00:17:31.770
so we're not sure.

419
00:17:31.770 --> 00:17:33.330
I think in Nicolo, it took a little bit

420
00:17:33.330 --> 00:17:35.089
of time before they got to the backpack

421
00:17:35.089 --> 00:17:37.020
and then the issue was,

422
00:17:37.020 --> 00:17:39.000
and the same issue was present in Abdulla

423
00:17:39.000 --> 00:17:41.280
in terms of some items were given to the third party

424
00:17:41.280 --> 00:17:42.415
and some items were not.

425
00:17:42.415 --> 00:17:43.248
<v J. Georges>Right.</v>

426
00:17:43.248 --> 00:17:44.830
<v ->I think here, we can't know</v>

427
00:17:46.390 --> 00:17:47.820
that that didn't happen here.

428
00:17:47.820 --> 00:17:49.590
<v J. Georges>Okay, but the facts are what they are.</v>

429
00:17:49.590 --> 00:17:50.423
I mean, if it were-
<v Atty. Aprodu>Correct.</v>

430
00:17:50.423 --> 00:17:52.590
<v ->If there were different facts, it'd be a different case,</v>

431
00:17:52.590 --> 00:17:56.700
but the facts of this case are that this is what happened.

432
00:17:56.700 --> 00:17:59.610
So again I'm saying where is the suggestion

433
00:17:59.610 --> 00:18:02.760
that somehow this was not a proper inventory search?

434
00:18:02.760 --> 00:18:04.890
And that's what I just would like to get to.

435
00:18:04.890 --> 00:18:06.990
<v ->Well, I think that it comes from the fact that,</v>

436
00:18:06.990 --> 00:18:08.760
again, my position is that there's an affirmative duty

437
00:18:08.760 --> 00:18:09.990
to ask if there's property.
<v J. Georges>Okay.</v>

438
00:18:09.990 --> 00:18:11.190
<v ->And that's where it comes from,</v>

439
00:18:11.190 --> 00:18:13.140
so if the second prong is not met,

440
00:18:13.140 --> 00:18:14.867
then it makes the search unconstitutional

441
00:18:14.867 --> 00:18:19.312
pursuant to the inventory search exception.

442
00:18:19.312 --> 00:18:21.060
<v Chief J. Budd>Okay, thank you.</v>

443
00:18:21.060 --> 00:18:22.493
<v ->Thank you, Your Honor, thank you.</v>

444
00:18:24.570 --> 00:18:25.770
<v ->Attorney Hansen.</v>

445
00:18:25.770 --> 00:18:26.850
<v ->Thank you, Your Honor, good morning.</v>

446
00:18:26.850 --> 00:18:28.020
If it pleases the court, Arnold Hanson

447
00:18:28.020 --> 00:18:29.700
of the Commonwealth of Massachusetts.

448
00:18:29.700 --> 00:18:31.230
with respect to the Guardado issue,

449
00:18:31.230 --> 00:18:33.183
I'd like to address this first.

450
00:18:34.350 --> 00:18:37.800
Guardado created a new prospective rule

451
00:18:37.800 --> 00:18:40.140
that said we had to now prove licensure moving forward

452
00:18:40.140 --> 00:18:42.180
with all the gun cases.

453
00:18:42.180 --> 00:18:45.480
There was a loophole created by that decision, though.

454
00:18:45.480 --> 00:18:48.870
Any case that wasn't final or still pending appeal,

455
00:18:48.870 --> 00:18:51.480
those convictions are essentially vacated

456
00:18:51.480 --> 00:18:53.520
if the defendant chooses to file an appeal

457
00:18:53.520 --> 00:18:55.410
and challenge those convictions.

458
00:18:55.410 --> 00:18:59.200
The defendant in this case falls within that gray area

459
00:19:00.120 --> 00:19:03.630
where during the pendency of the defendant's case,

460
00:19:03.630 --> 00:19:05.730
the Commonwealth was not required to prove

461
00:19:05.730 --> 00:19:07.740
that the defendant didn't have a license.

462
00:19:07.740 --> 00:19:09.870
It was still an affirmative defense.

463
00:19:09.870 --> 00:19:12.420
So there was no reason to gather that evidence

464
00:19:12.420 --> 00:19:14.013
or present it to the court.

465
00:19:15.090 --> 00:19:18.360
What we have here is a subset of defendants

466
00:19:18.360 --> 00:19:20.459
that are convicted felons and therefore prohibited

467
00:19:20.459 --> 00:19:24.010
by statute from possessing a license

468
00:19:25.080 --> 00:19:29.040
who were tried under the old rule,

469
00:19:29.040 --> 00:19:31.320
who can now challenge their convictions

470
00:19:31.320 --> 00:19:32.910
and have their convictions vacated

471
00:19:32.910 --> 00:19:35.163
as a result of the Guardado decision.

472
00:19:36.330 --> 00:19:38.550
So what the Commonwealth is asking, succinctly,

473
00:19:38.550 --> 00:19:40.230
because my brief didn't go to this court, it went

474
00:19:40.230 --> 00:19:44.610
to the appeals court, is to get rid of that exception

475
00:19:44.610 --> 00:19:47.090
and clarify that if you are a convicted felon, you-

476
00:19:47.090 --> 00:19:49.440
<v ->So you want us to adjudicate,</v>

477
00:19:49.440 --> 00:19:52.410
the court to adjudicate and say as a matter of law,

478
00:19:52.410 --> 00:19:54.840
the defendant doesn't get a new trial

479
00:19:54.840 --> 00:19:59.840
because the defendant was under 21 or had a felony?

480
00:20:00.000 --> 00:20:04.350
<v ->Correct, and it's harmless beyond a reasonable doubt</v>

481
00:20:04.350 --> 00:20:06.000
because as a matter of law,

482
00:20:06.000 --> 00:20:08.211
we know that they're a prohibited person.

483
00:20:08.211 --> 00:20:10.620
<v ->Well, but none of that evidence is in the trial,</v>

484
00:20:10.620 --> 00:20:12.930
because understandably, the Commonwealth didn't put it in

485
00:20:12.930 --> 00:20:13.980
because it didn't understand

486
00:20:13.980 --> 00:20:17.100
that it had that burden under the Second Amendment.

487
00:20:17.100 --> 00:20:17.933
<v Atty. Hanson>Correct.</v>

488
00:20:17.933 --> 00:20:20.010
<v ->Right, so that makes it very different</v>

489
00:20:20.010 --> 00:20:24.420
than the Nutter case where there was evidence of,

490
00:20:24.420 --> 00:20:27.240
I think an under-reporting of $5 million in income

491
00:20:27.240 --> 00:20:29.670
and then it was harmless beyond a reasonable doubt

492
00:20:29.670 --> 00:20:31.890
as to whether that was material misreporting.

493
00:20:31.890 --> 00:20:35.220
Here, there's no evidence in the trial

494
00:20:35.220 --> 00:20:39.420
as to the prior felony conviction, you know,

495
00:20:39.420 --> 00:20:42.690
so it's a little different.

496
00:20:42.690 --> 00:20:44.520
<v ->Yes, and that's fair,</v>

497
00:20:44.520 --> 00:20:45.353
and I think there's gonna-
<v J. Wendlandt>So let's</v>

498
00:20:45.353 --> 00:20:47.460
move on to the motion to suppress.

499
00:20:47.460 --> 00:20:48.583
<v Chief J. Budd>That's what we're here for.</v>

500
00:20:48.583 --> 00:20:49.470
<v ->Okay.</v>

501
00:20:49.470 --> 00:20:50.820
With respect to the motion to suppress,

502
00:20:50.820 --> 00:20:53.520
it's clear that the officers followed the inventory policy.

503
00:20:53.520 --> 00:20:55.830
The purpose of these types of motions

504
00:20:55.830 --> 00:20:56.970
and the inventory policies are

505
00:20:56.970 --> 00:20:58.860
to safeguard the belongings in the car,

506
00:20:58.860 --> 00:21:01.410
to safeguard the police from accusations of stealing

507
00:21:01.410 --> 00:21:04.980
or losing belongings, as well as to protect the public

508
00:21:04.980 --> 00:21:06.630
from items that might be found in the car

509
00:21:06.630 --> 00:21:09.633
that are dangerous such as weapons or illicit substances.

510
00:21:10.710 --> 00:21:12.360
The inventory policy from the Eastwater,

511
00:21:12.360 --> 00:21:15.090
Bridgewater Police Department follows that to the T.

512
00:21:15.090 --> 00:21:16.080
It says this is the purpose,

513
00:21:16.080 --> 00:21:18.280
it follows the case law Commonwealth v. Lek.

514
00:21:19.320 --> 00:21:21.840
If the police choose to initiate a traffic stop,

515
00:21:21.840 --> 00:21:24.150
they're responsible for the location of the stop,

516
00:21:24.150 --> 00:21:25.740
and they're also responsible for the vehicle.

517
00:21:25.740 --> 00:21:28.500
Here, the vehicle was stopped at a cul-de-sac,

518
00:21:28.500 --> 00:21:31.020
so it wasn't illegally parked, but it was on the street.

519
00:21:31.020 --> 00:21:33.933
<v ->Can't you just keep a moped on in a cul-de-sac?</v>

520
00:21:34.920 --> 00:21:37.260
Would it be like offensive to the HOA?

521
00:21:37.260 --> 00:21:39.900
Like, why can't we keep a moped on the sidewalk?

522
00:21:39.900 --> 00:21:41.700
<v ->Because of these specific instances here</v>

523
00:21:41.700 --> 00:21:42.780
so you can protect the car

524
00:21:42.780 --> 00:21:46.650
or the moped in this case from vandalism or theft.

525
00:21:46.650 --> 00:21:48.720
There was specific evidence in this case

526
00:21:48.720 --> 00:21:51.540
that this moped could be started without a key,

527
00:21:51.540 --> 00:21:53.490
and there was also evidence that the compartment

528
00:21:53.490 --> 00:21:56.220
inside this moped couldn't be locked.

529
00:21:56.220 --> 00:22:00.180
So if you leave the moped there, somebody could start it

530
00:22:00.180 --> 00:22:04.170
and drive off with it, or could ransack it, go through it,

531
00:22:04.170 --> 00:22:07.080
and there would be nothing that anyone could do with it

532
00:22:07.080 --> 00:22:09.363
because there's no locks on this vehicle.

533
00:22:10.290 --> 00:22:13.230
And that's why the officer made the right choice

534
00:22:13.230 --> 00:22:16.230
to do the inventory of this vehicle.

535
00:22:16.230 --> 00:22:20.370
Now, if you look at Crowley v. Chester, it states

536
00:22:20.370 --> 00:22:23.910
that the test here is not whether this is a high crime area,

537
00:22:23.910 --> 00:22:26.550
it's whether the likelihood of a theft

538
00:22:26.550 --> 00:22:29.220
or vandalism is high given the circumstances.

539
00:22:29.220 --> 00:22:30.330
Again, where this car

540
00:22:30.330 --> 00:22:32.910
or this vehicle could be driven off by anyone,

541
00:22:32.910 --> 00:22:36.513
that is very likely to happen, or at least in theory.

542
00:22:37.980 --> 00:22:41.610
<v ->So I guess the, not to fast forward too much,</v>

543
00:22:41.610 --> 00:22:44.880
but so let's just say the moped

544
00:22:44.880 --> 00:22:47.580
and now anybody could take it for a joy ride or ransack it,

545
00:22:47.580 --> 00:22:49.350
and so it has to be impounded.

546
00:22:49.350 --> 00:22:51.540
The next question I think

547
00:22:51.540 --> 00:22:56.460
that opposing counsel is really arguing is that

548
00:22:56.460 --> 00:23:00.597
at that point, the officer needed to ask, you know,

549
00:23:01.897 --> 00:23:06.780
"Do you have property here, dear defendant passenger?

550
00:23:06.780 --> 00:23:08.220
'Cause you're not under arrest.

551
00:23:08.220 --> 00:23:10.327
Do you wanna just grab it and go?"

552
00:23:10.327 --> 00:23:12.570
<v ->Yes, and I think the case law here is</v>

553
00:23:12.570 --> 00:23:15.210
very well established with regards to the actual vehicle.

554
00:23:15.210 --> 00:23:18.180
So if there's another person on, and I'm getting there,

555
00:23:18.180 --> 00:23:20.610
but there's another person on scene that could take control

556
00:23:20.610 --> 00:23:22.647
of the vehicle, that person should be permitted to do so,

557
00:23:22.647 --> 00:23:24.090
and the officer has an obligation

558
00:23:24.090 --> 00:23:24.923
to let that person take the car.

559
00:23:24.923 --> 00:23:25.756
<v J. Wendlandt>Right, but here,</v>

560
00:23:25.756 --> 00:23:26.940
we have two unlicensed drivers,

561
00:23:26.940 --> 00:23:28.380
so nobody can take the moped.

562
00:23:28.380 --> 00:23:30.900
<v ->Right, so my analogy is the same for materials</v>

563
00:23:30.900 --> 00:23:32.880
that might be found inside the vehicle.

564
00:23:32.880 --> 00:23:37.880
So if you look at Oliviera as well as Ellerby,

565
00:23:38.760 --> 00:23:43.760
they hold that where neither the driver

566
00:23:45.060 --> 00:23:49.170
or the passengers ask the officer for a third party

567
00:23:49.170 --> 00:23:52.860
to take control of the car that's not on scene,

568
00:23:52.860 --> 00:23:57.860
the officer has no affirmative duty to let that person,

569
00:23:57.893 --> 00:23:59.077
to then ask that person,

570
00:23:59.077 --> 00:24:00.670
"Hey, do you want someone else to take the car?"

571
00:24:00.670 --> 00:24:03.030
If one of those individuals, either the driver

572
00:24:03.030 --> 00:24:04.980
or the passenger asks, "Hey,"

573
00:24:04.980 --> 00:24:06.900
in Oliviera, it's a very good example.

574
00:24:06.900 --> 00:24:08.580
It was Oliviera's girlfriend's car.

575
00:24:08.580 --> 00:24:11.250
He parked in a parking lot in a shopping center.

576
00:24:11.250 --> 00:24:13.110
He asked, "Hey, can my girlfriend come take this car?

577
00:24:13.110 --> 00:24:14.078
She's the rightful owner.

578
00:24:14.078 --> 00:24:16.410
She can get here in X amount of time,

579
00:24:16.410 --> 00:24:17.633
and can she take the car?"

580
00:24:17.633 --> 00:24:20.640
And the court ruled that he should have been given

581
00:24:20.640 --> 00:24:22.620
that opportunity because he asked for it.

582
00:24:22.620 --> 00:24:25.710
But conversely, the officer does not have an obligation

583
00:24:25.710 --> 00:24:30.710
to ask the occupants of the car to then get some third party

584
00:24:31.380 --> 00:24:34.020
from who knows where to come take the vehicle.

585
00:24:34.020 --> 00:24:36.153
It's only when those individuals ask.

586
00:24:37.650 --> 00:24:39.570
That's with regards to possession of the car.

587
00:24:39.570 --> 00:24:41.910
My argument is it should be analogous

588
00:24:41.910 --> 00:24:44.790
with materials contained inside the car.

589
00:24:44.790 --> 00:24:48.427
In this case here, nobody asked,

590
00:24:48.427 --> 00:24:50.070
"Can I grab my belongings out of the bag?"

591
00:24:50.070 --> 00:24:52.620
<v J. Wendlandt>Why should it be the same?</v>

592
00:24:52.620 --> 00:24:53.820
<v ->Because it's property.</v>

593
00:24:54.810 --> 00:24:57.450
Car is property, the items inside are property,

594
00:24:57.450 --> 00:24:59.730
they all belong to someone.

595
00:24:59.730 --> 00:25:00.900
<v Chief J. Budd>Imagine it was a purse</v>

596
00:25:00.900 --> 00:25:02.253
in the backseat of a car.

597
00:25:04.650 --> 00:25:06.810
<v ->I'm sorry, a purse?</v>
<v ->Imagine,</v>

598
00:25:06.810 --> 00:25:10.830
there's two people, one person's getting taken away,

599
00:25:10.830 --> 00:25:12.450
car's gonna be impounded,

600
00:25:12.450 --> 00:25:14.983
there's a purse in the backseat of the car.

601
00:25:14.983 --> 00:25:16.923
What happens in that case?

602
00:25:18.660 --> 00:25:20.599
<v Atty. Hanson>The purse would be inventoried.</v>

603
00:25:20.599 --> 00:25:22.470
<v ->So you're saying nobody would say, "Hey,</v>

604
00:25:22.470 --> 00:25:26.730
do you wanna grab that purse before we take this car away?"

605
00:25:26.730 --> 00:25:29.880
Nobody's gonna, I mean, isn't that just?

606
00:25:29.880 --> 00:25:32.640
<v ->I'm saying that the officer doesn't have a duty</v>

607
00:25:32.640 --> 00:25:35.197
to go through every single item in the car and say,

608
00:25:35.197 --> 00:25:38.311
"Do you want this, do you want that, do you want that?"

609
00:25:38.311 --> 00:25:40.350
I think the law is very clear with regards

610
00:25:40.350 --> 00:25:41.723
to the car itself.

611
00:25:41.723 --> 00:25:42.810
<v ->No, no, I understand.</v>

612
00:25:42.810 --> 00:25:44.940
We're talking about the property in the car.

613
00:25:44.940 --> 00:25:47.310
So if there's something in there that appears

614
00:25:47.310 --> 00:25:50.760
to be a personal item, right?

615
00:25:50.760 --> 00:25:54.870
I'm just asking, just in real life, are you saying that,

616
00:25:54.870 --> 00:25:59.870
you know, nobody says anything, whatever the person

617
00:25:59.880 --> 00:26:04.680
to whom the personal property belongs is kind of,

618
00:26:04.680 --> 00:26:06.360
you know, surprised by this whole thing

619
00:26:06.360 --> 00:26:07.830
and isn't thinking straight,

620
00:26:07.830 --> 00:26:10.500
the police officer is just gonna take everything?

621
00:26:10.500 --> 00:26:13.530
Not gonna, I mean, is that just how they do it?

622
00:26:13.530 --> 00:26:14.940
<v ->I think that would be a fair way to do it,</v>

623
00:26:14.940 --> 00:26:16.800
and I think that's the way that it's been happening

624
00:26:16.800 --> 00:26:18.510
and has always happened.
<v ->Is that how it happens?</v>

625
00:26:18.510 --> 00:26:19.649
They don't say, "Do you want your bag

626
00:26:19.649 --> 00:26:23.247
before we take off with this car?"

627
00:26:25.380 --> 00:26:27.030
<v ->I think that's just the way that it happens.</v>

628
00:26:27.030 --> 00:26:29.820
Where nobody says, "Hey, my bag is here,

629
00:26:29.820 --> 00:26:33.090
can I grab it before we go?" I think it would be unfair

630
00:26:33.090 --> 00:26:34.800
to put the duty on the officer

631
00:26:34.800 --> 00:26:36.995
to then go through every single belonging

632
00:26:36.995 --> 00:26:38.027
in the car-
<v Chief J. Budd>No, yeah,</v>

633
00:26:38.027 --> 00:26:38.860
I understand your point.
<v ->And say, "Do you want this,</v>

634
00:26:38.860 --> 00:26:40.620
do you want that?"
<v ->I'm just trying to get</v>

635
00:26:40.620 --> 00:26:41.923
where the line is.

636
00:26:41.923 --> 00:26:42.756
<v Atty. Hanson>Right.</v>

637
00:26:42.756 --> 00:26:44.363
<v ->Right, so if you see.</v>

638
00:26:44.363 --> 00:26:47.070
<v ->I think the line, I think it's a very delineated line.</v>

639
00:26:47.070 --> 00:26:48.720
I think if the individual asks,

640
00:26:48.720 --> 00:26:51.270
then it's very clear the officer has to respect that,

641
00:26:51.270 --> 00:26:52.650
but the officer doesn't have a duty

642
00:26:52.650 --> 00:26:53.797
to then ask the individual,

643
00:26:53.797 --> 00:26:55.410
"What do you want out of this car?"

644
00:26:55.410 --> 00:26:58.593
<v ->If there were a licensed operator,</v>

645
00:26:59.820 --> 00:27:01.710
not the operator, but the passenger

646
00:27:01.710 --> 00:27:03.600
in this case had had the ability

647
00:27:03.600 --> 00:27:05.913
to operate the moped lawfully,

648
00:27:06.780 --> 00:27:10.650
can you run out for me what the rule is in your view

649
00:27:10.650 --> 00:27:13.113
with respect to the property in the moped?

650
00:27:14.400 --> 00:27:15.930
<v ->If there, I think the law is very clear.</v>

651
00:27:15.930 --> 00:27:18.990
If there is somebody that is on scene that isn't intoxicated

652
00:27:18.990 --> 00:27:20.940
and is duly licensed to take the vehicle,

653
00:27:20.940 --> 00:27:23.730
they can take the vehicle and it shouldn't be inventoried.

654
00:27:23.730 --> 00:27:24.584
<v J. Wolohojian>Okay.</v>
<v ->I think</v>

655
00:27:24.584 --> 00:27:25.417
the law is very clear on that.
<v ->Okay,</v>

656
00:27:25.417 --> 00:27:28.143
so the question is, what's the principle,

657
00:27:30.360 --> 00:27:33.870
what's the principled line to distinguish

658
00:27:33.870 --> 00:27:36.330
that passenger's relationship

659
00:27:36.330 --> 00:27:38.493
with the property in the vehicle?

660
00:27:39.600 --> 00:27:41.100
Just based on the fact

661
00:27:41.100 --> 00:27:44.160
that he has a license gives him

662
00:27:44.160 --> 00:27:48.810
a different expectation of privacy with respect

663
00:27:48.810 --> 00:27:51.243
to his own property in the vehicle?

664
00:27:52.890 --> 00:27:53.723
<v Atty. Hanson>I'm not sure</v>

665
00:27:53.723 --> 00:27:54.840
I understand the court's question.

666
00:27:54.840 --> 00:27:58.710
<v ->Okay, so I think what you just said is</v>

667
00:27:58.710 --> 00:28:03.710
that if he had had a license and could drive away the moped,

668
00:28:05.160 --> 00:28:08.368
the officer couldn't have searched the moped.

669
00:28:08.368 --> 00:28:09.201
<v Atty. Hanson>Correct.</v>

670
00:28:09.201 --> 00:28:12.720
<v ->Okay, so that person, just because he does,</v>

671
00:28:12.720 --> 00:28:15.600
the passenger who wasn't doing anything unlawful

672
00:28:15.600 --> 00:28:17.430
because he was a passenger,

673
00:28:17.430 --> 00:28:20.640
just because he doesn't have a license,

674
00:28:20.640 --> 00:28:22.330
the Commonwealth's position is

675
00:28:25.873 --> 00:28:28.560
his entitlement to prevent a search

676
00:28:28.560 --> 00:28:32.520
of his own possessions in the moped changes

677
00:28:32.520 --> 00:28:34.473
just because he's not licensed?

678
00:28:36.750 --> 00:28:38.502
<v ->I understand what you're saying.</v>

679
00:28:38.502 --> 00:28:40.290
I don't think there's a direct line.

680
00:28:40.290 --> 00:28:42.210
I think the line that I'm drawing is,

681
00:28:42.210 --> 00:28:45.180
and I think the crux of the issue is whether

682
00:28:45.180 --> 00:28:47.430
or not the individual asks

683
00:28:47.430 --> 00:28:50.760
to remove their belongings should be treated the same

684
00:28:50.760 --> 00:28:52.620
as whether or not an individual asks

685
00:28:52.620 --> 00:28:54.470
for a third party to pick up the car.

686
00:28:55.500 --> 00:28:58.500
So I'm saying that the onus is on the individual

687
00:28:58.500 --> 00:29:02.850
who presumably owns the possessions inside the vehicle

688
00:29:02.850 --> 00:29:06.600
to ask the officer, "Can I grab this?"

689
00:29:06.600 --> 00:29:08.580
<v J. Wolohojian>How does that square with the purposes</v>

690
00:29:08.580 --> 00:29:10.383
of the inventory search?

691
00:29:14.250 --> 00:29:16.350
<v ->The inventory search just needs to make sure</v>

692
00:29:16.350 --> 00:29:20.610
whatever's left in the car is tracked

693
00:29:20.610 --> 00:29:23.790
so that the officers can maintain that

694
00:29:23.790 --> 00:29:25.200
without it getting lost,

695
00:29:25.200 --> 00:29:27.150
but also prevents dangerous items

696
00:29:27.150 --> 00:29:29.010
from being left in the car.

697
00:29:29.010 --> 00:29:30.990
<v ->Right, so if they're not gonna be left in the car,</v>

698
00:29:30.990 --> 00:29:35.100
then the purpose is, in other words,

699
00:29:35.100 --> 00:29:37.950
if they're not gonna end up in the custody of the police,

700
00:29:39.240 --> 00:29:42.123
then those purposes aren't really furthered, are they?

701
00:29:43.980 --> 00:29:46.620
<v ->Right, but again, here, we have a case</v>

702
00:29:46.620 --> 00:29:51.120
where the officer is going to take possession of-

703
00:29:51.120 --> 00:29:52.980
<v J. Gaziano>Right.</v>
<v ->Of the moped.</v>

704
00:29:52.980 --> 00:29:55.770
Nobody has said, "My stuff is in the moped."

705
00:29:55.770 --> 00:29:57.240
He doesn't know what's in the moped

706
00:29:57.240 --> 00:29:59.850
because it's in a compartment under the seat.

707
00:29:59.850 --> 00:30:01.200
He only discovers the firearm

708
00:30:01.200 --> 00:30:03.930
after he's initiated his search,

709
00:30:03.930 --> 00:30:06.600
and there was nothing before him to suggest

710
00:30:06.600 --> 00:30:10.200
that he should not have searched the vehicle,

711
00:30:10.200 --> 00:30:11.673
because again, it's-

712
00:30:11.673 --> 00:30:14.193
<v ->What if the backpack was in a basket,</v>

713
00:30:15.240 --> 00:30:18.690
and so the officer knew there's a backpack here?

714
00:30:18.690 --> 00:30:21.570
Would that make a difference in terms

715
00:30:21.570 --> 00:30:23.970
of whether he had an affirmative obligation

716
00:30:23.970 --> 00:30:27.900
to ask the passenger, "Hey, do you wanna take that?

717
00:30:27.900 --> 00:30:28.797
Is that yours?"

718
00:30:29.820 --> 00:30:31.080
<v Atty. Hanson>I think from a legal perspective,</v>

719
00:30:31.080 --> 00:30:32.550
no, because-
<v ->Okay, so it doesn't matter</v>

720
00:30:32.550 --> 00:30:34.860
that it was not visible to the officer

721
00:30:34.860 --> 00:30:37.260
and it was under the seat from your perspective?

722
00:30:38.730 --> 00:30:40.470
<v ->Not with respect to who has the duty</v>

723
00:30:40.470 --> 00:30:43.230
to request what happens with the items.

724
00:30:43.230 --> 00:30:45.270
<v J. Wendlandt>And what if the backpack had been</v>

725
00:30:45.270 --> 00:30:46.803
on the passenger's back?

726
00:30:48.990 --> 00:30:50.850
<v ->Look, yeah, then you can't search it</v>

727
00:30:50.850 --> 00:30:52.260
without probable cause.

728
00:30:52.260 --> 00:30:54.240
I think that's a completely different argument.

729
00:30:54.240 --> 00:30:56.460
He's not investigating a crime here.

730
00:30:56.460 --> 00:30:58.980
He's effectuating a motor vehicle stop

731
00:30:58.980 --> 00:31:00.570
because of a civil infraction,

732
00:31:00.570 --> 00:31:03.545
and then as a result of that, discovers that one,

733
00:31:03.545 --> 00:31:07.620
the operator has a warrant, so then he's dealing with that,

734
00:31:07.620 --> 00:31:09.540
and because the defendant didn't have a license,

735
00:31:09.540 --> 00:31:11.190
he had to deal with the moped

736
00:31:11.190 --> 00:31:13.923
before he could effectuate the arrest on the warrant.

737
00:31:14.760 --> 00:31:18.270
<v ->The fact question that I asked earlier from your brief,</v>

738
00:31:18.270 --> 00:31:21.240
I can't find the transcript, at least right now.

739
00:31:21.240 --> 00:31:25.950
Is it clear that he identified the possibility of a gun

740
00:31:25.950 --> 00:31:28.980
by touching as opposed to opening the bag?

741
00:31:28.980 --> 00:31:32.310
<v ->That is my recollection of how it happened.</v>

742
00:31:32.310 --> 00:31:33.570
<v J. Wendlandt>Which is?</v>

743
00:31:33.570 --> 00:31:34.403
What's your recollection?

744
00:31:34.403 --> 00:31:38.010
<v ->That he picked up the back, he opened the seat,</v>

745
00:31:38.010 --> 00:31:39.960
he picked up the backpack, felt that there was a gun

746
00:31:39.960 --> 00:31:41.850
in there based on his training experience,

747
00:31:41.850 --> 00:31:43.290
opened the backpack,

748
00:31:43.290 --> 00:31:44.760
lo and behold, there's a gun in there.

749
00:31:44.760 --> 00:31:46.803
<v ->And do we have that transcript?</v>

750
00:31:48.690 --> 00:31:51.960
Oh, I see there's a motion page 15.

751
00:31:51.960 --> 00:31:53.493
Do we have that in our record?

752
00:31:55.650 --> 00:31:57.180
<v ->It's the defendant's appeal,</v>

753
00:31:57.180 --> 00:31:58.440
so I don't know what was sent,

754
00:31:58.440 --> 00:32:01.800
but I certainly had copies of the transcription

755
00:32:01.800 --> 00:32:02.633
in preparing for this.

756
00:32:02.633 --> 00:32:04.045
<v J. Kafker>But you think it's in our record?</v>

757
00:32:04.045 --> 00:32:05.700
I just couldn't dig it up.
<v ->I would assume so.</v>

758
00:32:05.700 --> 00:32:06.533
<v J. Kafker>Yeah.</v>

759
00:32:06.533 --> 00:32:07.853
<v J. Wendlandt>No, that's good.</v>

760
00:32:09.960 --> 00:32:11.760
<v ->Again, it would be part of the trial file,</v>

761
00:32:11.760 --> 00:32:13.470
but photo, like, it-

762
00:32:13.470 --> 00:32:14.520
<v J. Kafker>Yeah, but we don't have the whole,</v>

763
00:32:14.520 --> 00:32:16.410
we don't always have the whole trial file.

764
00:32:16.410 --> 00:32:17.940
<v ->Right.</v>

765
00:32:17.940 --> 00:32:19.500
I don't know if it'd be part of your record as well,

766
00:32:19.500 --> 00:32:22.650
but there's photographs of the backpack in question.

767
00:32:22.650 --> 00:32:23.730
It's not a large backpack.

768
00:32:23.730 --> 00:32:24.600
<v J. Kafker>It's not gonna help us any</v>

769
00:32:24.600 --> 00:32:26.010
'cause it's the feel issue.

770
00:32:26.010 --> 00:32:27.930
<v Atty. Hanson>Right.</v>
<v ->You draw a distinction</v>

771
00:32:27.930 --> 00:32:30.480
saying that when he picked it up,

772
00:32:30.480 --> 00:32:31.650
on page eight of your brief,

773
00:32:31.650 --> 00:32:33.243
he could tell it was a firearm.

774
00:32:34.500 --> 00:32:37.440
<v ->Right, so if that's, I'm not,</v>

775
00:32:37.440 --> 00:32:39.030
during the facts, the way

776
00:32:39.030 --> 00:32:40.680
that I write my facts is very straightforward.

777
00:32:40.680 --> 00:32:43.350
It's if that's what he said, that's what I put in.

778
00:32:43.350 --> 00:32:44.730
<v J. Wendlandt>Why don't you give us the transcript?</v>

779
00:32:44.730 --> 00:32:45.565
<v Justice>Yeah.</v>

780
00:32:45.565 --> 00:32:46.398
<v ->I can certainly give it</v>

781
00:32:46.398 --> 00:32:47.231
to you.
<v Chief J. Budd>I think</v>

782
00:32:47.231 --> 00:32:48.064
we have the transcript.

783
00:32:48.064 --> 00:32:48.897
<v J. Wendlandt>Okay, great, thank you.</v>

784
00:32:48.897 --> 00:32:49.950
<v Chief J. Budd>Okay, all right.</v>

785
00:32:49.950 --> 00:32:51.810
<v ->May I ask a question?</v>

786
00:32:51.810 --> 00:32:56.610
On the sufficiency of the evidence of the defaced firearm?

787
00:32:56.610 --> 00:32:57.720
<v Atty. Hanson>Yes.</v>

788
00:32:57.720 --> 00:33:02.400
<v ->Can you address</v>

789
00:33:02.400 --> 00:33:06.130
where the charge was, where the jury were instructed

790
00:33:07.208 --> 00:33:12.208
in one way, how the evidence was sufficient

791
00:33:14.760 --> 00:33:19.760
with respect to how the crime, charge was instructed?

792
00:33:19.860 --> 00:33:21.840
<v ->So with respect to the Commonwealth's theory,</v>

793
00:33:21.840 --> 00:33:23.730
the case was always that the defendant was in possession

794
00:33:23.730 --> 00:33:25.830
of a firearm with a defaced serial number.

795
00:33:25.830 --> 00:33:27.000
Certainly there wasn't any evidence

796
00:33:27.000 --> 00:33:28.590
that he defaced it on the side of the road

797
00:33:28.590 --> 00:33:30.273
while he was riding the moped.

798
00:33:31.740 --> 00:33:36.093
So if you look at the transcripts,

799
00:33:37.050 --> 00:33:41.223
and I cite it in my brief, I think it's page 112,

800
00:33:43.140 --> 00:33:45.480
ADA Ganz has a conversation with Judge Dilorati

801
00:33:45.480 --> 00:33:47.700
about the jury instructions,

802
00:33:47.700 --> 00:33:50.340
and the primary jury instruction focuses

803
00:33:50.340 --> 00:33:52.800
on the actual act of defacing,

804
00:33:52.800 --> 00:33:54.240
so that was going to be given.

805
00:33:54.240 --> 00:33:56.370
There is a supplemental jury instruction

806
00:33:56.370 --> 00:33:59.880
which ADA Ganz has a conversation with Judge Dilorati

807
00:33:59.880 --> 00:34:03.540
about which discusses mere possession of a firearm

808
00:34:03.540 --> 00:34:04.560
with a defaced serial number.

809
00:34:04.560 --> 00:34:07.470
That's another way that the Commonwealth can prove guilt

810
00:34:07.470 --> 00:34:10.170
beyond a reasonable doubt in these types of charges.

811
00:34:10.170 --> 00:34:13.860
And they go through that, and both of them agree

812
00:34:13.860 --> 00:34:15.840
that that's an instruction that's gonna be given.

813
00:34:15.840 --> 00:34:19.410
That instruction is then given on page 143

814
00:34:19.410 --> 00:34:23.070
of the transcript, which is the jury instructions.

815
00:34:23.070 --> 00:34:24.600
<v ->I didn't see that there.</v>

816
00:34:24.600 --> 00:34:28.000
I only see an instruction

817
00:34:33.300 --> 00:34:37.607
that the defendant was to remove, deface, alter,

818
00:34:37.607 --> 00:34:40.620
obliterate, or mutilate the serial number.

819
00:34:40.620 --> 00:34:43.230
<v Atty. Hanson>So referring to page 143, I don't know</v>

820
00:34:43.230 --> 00:34:44.063
if Your Honor has that.

821
00:34:44.063 --> 00:34:45.240
<v ->I have it right in front of me.</v>

822
00:34:45.240 --> 00:34:47.100
<v ->It's the first full paragraph,</v>

823
00:34:47.100 --> 00:34:49.230
or the second paragraph in there.

824
00:34:49.230 --> 00:34:51.210
It starts with, "You heard some evidence in this case

825
00:34:51.210 --> 00:34:52.800
suggesting the defendant possessed a firearm

826
00:34:52.800 --> 00:34:54.240
with a defaced serial number.

827
00:34:54.240 --> 00:34:56.190
If you find that fact to be proven, you are permitted

828
00:34:56.190 --> 00:34:58.800
to accept it also as proof the defendant was a person

829
00:34:58.800 --> 00:35:01.290
who removed a faced, altered, obliterated

830
00:35:01.290 --> 00:35:03.150
or mutilated the serial

831
00:35:03.150 --> 00:35:06.667
or the aerial -- the serial," I'm sorry,

832
00:35:06.667 --> 00:35:08.670
"or identification number on that firearm."

833
00:35:08.670 --> 00:35:09.503
<v J. Wolohojian>Okay,</v>

834
00:35:09.503 --> 00:35:10.516
so you're-
<v ->That's the instruction.</v>

835
00:35:10.516 --> 00:35:12.090
<v ->You're reading the first sentence</v>

836
00:35:12.090 --> 00:35:13.950
as being an alternate path,

837
00:35:13.950 --> 00:35:15.240
the jury would've understand

838
00:35:15.240 --> 00:35:17.340
that the first sentence was an alternate path

839
00:35:17.340 --> 00:35:18.526
to the second sentence?

840
00:35:18.526 --> 00:35:19.776
<v Atty. Hanson>Correct.</v>

841
00:35:20.880 --> 00:35:23.400
<v ->Chief, could I clarify one thing?</v>

842
00:35:23.400 --> 00:35:27.330
Counsel, so I think this is really important for us.

843
00:35:27.330 --> 00:35:32.010
We do have, we have the sergeant's testimony at trial.

844
00:35:32.010 --> 00:35:33.883
<v Atty. Hanson>Right.</v>
<v ->That's what's in here.</v>

845
00:35:33.883 --> 00:35:37.860
I don't know that we have the testimony at the motion

846
00:35:37.860 --> 00:35:42.860
to suppress, and I think, don't we need that?

847
00:35:42.870 --> 00:35:44.820
<v ->I certainly agree, obviously to evaluate</v>

848
00:35:44.820 --> 00:35:47.670
what was presented before the court.

849
00:35:47.670 --> 00:35:51.810
I can send a copy of that transcript to the court.

850
00:35:51.810 --> 00:35:52.740
<v Justice>Justice Dewar may have-</v>

851
00:35:52.740 --> 00:35:54.720
<v ->I think it's available in the clerk's office,</v>

852
00:35:54.720 --> 00:35:56.910
and it was not on our iPads.

853
00:35:56.910 --> 00:35:58.080
I apologize for not-
<v J. Georges>Oh, is that?</v>

854
00:35:58.080 --> 00:35:59.310
Okay.
<v ->Highlighting that,</v>

855
00:35:59.310 --> 00:36:01.170
but we do have, the court has it,

856
00:36:01.170 --> 00:36:04.590
it just didn't make it electronically into all locations.

857
00:36:04.590 --> 00:36:06.630
<v J. Georges>Thank you, I appreciate that, thank you.</v>

858
00:36:06.630 --> 00:36:09.180
<v ->Can I ask a follow up question on this defacement issue?</v>

859
00:36:09.180 --> 00:36:13.470
So I read the statute as creating two crimes, 11C.

860
00:36:13.470 --> 00:36:16.380
Number one is receiving a defaced firearm

861
00:36:16.380 --> 00:36:19.560
and number two is defacing a firearm.

862
00:36:19.560 --> 00:36:21.570
And then there's a further provision in 11C

863
00:36:21.570 --> 00:36:24.300
that says it shall be prima facie evidence

864
00:36:24.300 --> 00:36:27.750
that a defendant committed a violation of 11C

865
00:36:27.750 --> 00:36:32.280
if a defendant is in possession of a defaced firearm.

866
00:36:32.280 --> 00:36:34.020
Do you understand the statute the same way?

867
00:36:34.020 --> 00:36:35.040
<v Atty. Hanson>Yes.</v>

868
00:36:35.040 --> 00:36:40.040
<v ->So the complaint here clearly charges</v>

869
00:36:40.050 --> 00:36:41.850
only defacement of a firearm.

870
00:36:41.850 --> 00:36:45.030
It does not charge receiving a defaced firearm.

871
00:36:45.030 --> 00:36:46.170
Do you agree with that?

872
00:36:46.170 --> 00:36:47.003
<v Atty. Hanson>Yes.</v>

873
00:36:47.003 --> 00:36:49.530
<v ->And then at the charge conference,</v>

874
00:36:49.530 --> 00:36:51.754
the ADA specifically said she did not want

875
00:36:51.754 --> 00:36:54.930
a receiving jury instruction.

876
00:36:54.930 --> 00:36:59.010
She only wanted the defacing instruction, correct?

877
00:36:59.010 --> 00:36:59.843
<v Atty. Hanson>Yes.</v>

878
00:36:59.843 --> 00:37:02.400
<v ->And so what's your best case</v>

879
00:37:02.400 --> 00:37:05.850
that it can be proof beyond a reasonable doubt

880
00:37:05.850 --> 00:37:09.780
that a defendant himself defaced a firearm,

881
00:37:09.780 --> 00:37:13.530
that he is in possession of a firearm that's defaced?

882
00:37:13.530 --> 00:37:15.000
<v Atty. Hanson>So the Farrar case,</v>

883
00:37:15.000 --> 00:37:16.443
which I cite in my brief-

884
00:37:16.443 --> 00:37:18.993
<v J. Dewar>That was a receiving case, was it not?</v>

885
00:37:22.680 --> 00:37:25.380
<v ->My understanding of the statute is that</v>

886
00:37:25.380 --> 00:37:27.630
if you are in possession of the gun

887
00:37:27.630 --> 00:37:30.000
with a defaced serial number,

888
00:37:30.000 --> 00:37:34.367
that is prima facie evidence that you defaced the gun.

889
00:37:37.980 --> 00:37:39.330
<v J. Gaziano>By receipt. (chuckles)</v>

890
00:37:39.330 --> 00:37:40.163
<v ->Right.</v>