WEBVTT 2 00:00:03.844 --> 00:00:23.740 of counsel. (Appearances tendered.) CHIEF JUSTICE RABNER: 3 00:00:23.740 --> 00:00:28.070 Good morning and welcome counsel. Mr. Doetator, please. PLAINTIFF'S 4 00:00:28.070 --> 00:00:32.882 COUNSEL: If I may, please, reserve a few moments on for rebuttal if necessary. 5 00:00:32.882 --> 00:00:40.546 Thank you. The State would like to start its argument maybe a bit unusual by 6 00:00:40.546 --> 00:00:43.384 expressing its gratitude to the Court. The stately that understands its motion to 7 00:00:43.384 --> 00:00:47.443 accelerate was both unusual and asks this Court to ask act with a speed that's 8 00:00:47.443 --> 00:00:51.758 uncommon in appellate matters. The State appreciates that this Court was willing 9 00:00:51.758 --> 00:00:56.171 to grant its motion and hear this case so quickly. Nonetheless, the State 10 00:00:56.171 --> 00:01:01.633 is now here before this Court asking for more. For they reversal of an order of 11 00:01:01.633 --> 00:01:06.371 expression that represents a break in the chain of an almost fifty years of 12 00:01:06.371 --> 00:01:12.771 unbroken precedent in this country and in this state. Since Tyler in 1978 and 13 00:01:12.771 --> 00:01:20.245 as adopted by or appellate courted in 2007 in aAmodio courts is have recognized 14 00:01:20.245 --> 00:01:23.847 that fire expression in investigation had activities can under the right set 15 00:01:23.847 --> 00:01:27.517 of the circumstances meets the requirements for a warrantless search or seizure. 16 00:01:27.517 --> 00:01:32.349 Such circumstances were present almost seven years ago owe Tilton Drive. 17 00:01:32.349 --> 00:01:37.507 During the less than is forty minutes that precede the successful seizure on 18 00:01:37.507 --> 00:01:42.118 top of the of the DVR although issue. The officerspsful facing an exigency that 19 00:01:42.118 --> 00:01:45.738 did not permit them time to secure a warrant president the repentance was on fire 20 00:01:45.738 --> 00:01:50.034 and the fire had started in the basement but had now spread through the house 21 00:01:50.034 --> 00:01:54.742 and the flamesps visible through the roof when the officers arrived. Despite 22 00:01:54.742 --> 00:02:02.015 being pretty quickly aware of a potential suspicion origin for the fire after 23 00:02:02.015 --> 00:02:09.286 fighting back thely melted gas can near the garage entrance Sergeant Mallone own 24 00:02:09.286 --> 00:02:12.794 prices the safety of his officers and the the community. He directed his officers 25 00:02:12.794 --> 00:02:16.507 away fair and accurate the residences before the arrival of firefights and 26 00:02:16.507 --> 00:02:20.895 it is hose trucks because they are they were not equipped handle a fewer of 27 00:02:20.895 --> 00:02:27.295 that side annot so closes to the gas meter. There was nothing offensive to the Fourth 28 00:02:27.295 --> 00:02:30.379 Amendment about law firm first he focusing on evacuating ultimate medication 29 00:02:30.379 --> 00:02:34.872 for their same time and clearing the straight for infrastructures. As the 30 00:02:34.872 --> 00:02:41.348 cameras show, the it was only after the the arrival of firefighters from multiple 31 00:02:41.348 --> 00:02:46.992 pyre firehouses that the sergeant believed the risk to officers was military gated 32 00:02:46.992 --> 00:02:50.195 sufficiently in and out of to start investigating at the garage to have this 33 00:02:50.195 --> 00:02:54.907 scene seek or a fire marshal fouring and to secure 2309 house that let lower 34 00:02:54.907 --> 00:03:00.636 court had found was still on fire a DVR that could contain a recording of the 35 00:03:00.636 --> 00:03:06.323 nine ordinancist and the can arrow family toll the place was near near shared 36 00:03:06.323 --> 00:03:10.716 wall polite residence property propose consideration the seven and a half top floors 37 00:03:10.716 --> 00:03:15.732 Trie the the DVR, the from amongst applet are a of electronics this was located 38 00:03:15.732 --> 00:03:19.757 amongst the fluid and dynamic circumstances caused by the still actively fire 39 00:03:19.757 --> 00:03:26.499 continued. Power was lost to the house you plunge the garage into dancer is 40 00:03:26.499 --> 00:03:33.185 utility workers were on scene fire hosesr through the tried to understand good person 41 00:03:33.185 --> 00:03:37.801 power tools were heard and a infrastructure's ladder was now over the 42 00:03:37.801 --> 00:03:42.659 roof of the house 307 in finding these dynamic and involving evolving 43 00:03:42.659 --> 00:03:47.340 circumstances were are not sufficiently exJanet that provided officers the am sift 44 00:03:47.340 --> 00:03:51.508 sufficient time to obtain a I happen warrant ate warrant it acknowledged it 45 00:03:51.508 --> 00:03:55.347 would be taken seven and a half minutes to get. Is in the he lower Court fell 46 00:03:55.347 --> 00:04:00.394 into awes trap which were long warned against. It reviewed the facts not from the 47 00:04:00.394 --> 00:04:06.039 perspective much the officers on the he scene but from the safety of 20/20 48 00:04:06.039 --> 00:04:09.615 hindsight knowing it could only have a the distance seven years which the residence 49 00:04:09.615 --> 00:04:17.336 of which 24 garage of a connected part would survive the fire and remain have 50 00:04:17.336 --> 00:04:21.051 you usually structure you will arrival in automatic contact. A Clifford law firm 51 00:04:21.051 --> 00:04:26.undefined wait over six hours post fire on before interrogate residence for to 2340 better 53 00:04:31.171 --> 00:04:36.640 of time forecalm reflection examine officer asafety and quicking but still 54 00:04:36.640 --> 00:04:39.764 reasonable on scene is decisionmation approximately in coming before this Court, 55 00:04:39.764 --> 00:04:43.822 the state is not asking for any changes in the rule of you Tyler. A rule that 56 00:04:43.822 --> 00:04:49.035 has worked for almost fifty years. The state civilian asks this Court to remind 57 00:04:49.035 --> 00:04:54.157 lower courts that exigency in the fire context does not require flames to be 58 00:04:54.157 --> 00:05:00.473 licking at the area to be searched. Does not require movie star level acts of 59 00:05:00.473 --> 00:05:03.529 the heroics that exigency should be found you wonder facts like those presented 60 00:05:03.529 --> 00:05:07.593 here. Thank you for allowing me that opening statement. I'm happy to answer 61 00:05:07.593 --> 00:05:13.662 any questions the Court might have. CHIEF JUSTICE RABNER: How Bic bull 62 00:05:13.662 --> 00:05:20.334 the home from one end to the otherr Monica do Outeiro L. MONICA DO 63 00:05:20.334 --> 00:05:23.317 OUTEIRO: I think sixty feet is potentially the corrected one wiretap we have 64 00:05:23.317 --> 00:05:28.133 photographs that are in evidence that Show that the fire was at the back corner of 65 00:05:28.133 --> 00:05:31.992 the residence. The fire that had start in the basement and the garage is on 66 00:05:31.992 --> 00:05:37.329 the other side of that residence but still attached to the main structure. 67 00:05:37.329 --> 00:05:40.036 CHIEF JUSTICE RABNER: That controverse which corner. MONICA DO OUTEIRO: 68 00:05:40.036 --> 00:05:44.779 If you are looking at the house from the road, it would be the back corner on 69 00:05:44.779 --> 00:05:47.304 the right and the garage is on the left. CHIEF JUSTICE RABNER: So that 70 00:05:47.304 --> 00:05:51.504 the far right end of the house? MONICA DO OUTEIRO: Yes. CHIEF 71 00:05:51.504 --> 00:05:56.328 JUSTICE RABNER: And how big in feet is the garage from the garage door till the 72 00:05:56.328 --> 00:05:59.535 entrance into the home? MONICA DO OUTEIRO: I don't believe that that 73 00:05:59.535 --> 00:06:04.059 was testified to in feet. But you can see on the body worn camera here that the 74 00:06:04.059 --> 00:06:11.289 location where this DVR is located it's a refrigerator. You can see the is 75 00:06:11.289 --> 00:06:16.134 entrance pat main house itself on that camera it's describe the location that 76 00:06:16.134 --> 00:06:19.266 was being searched. CHIEF JUSTICE RABNER: Do you know how far the 77 00:06:19.266 --> 00:06:23.602 refrigerator that door that connects the garage and the home to the place of the 78 00:06:23.602 --> 00:06:26.811 fire was approximately. MONICA DO OUTEIRO: Again the testimony we have 79 00:06:26.811 --> 00:06:33.045 from Sergeant Mallone own is a stipulation of between thirty and sixty feet. 80 00:06:33.045 --> 00:06:35.031 JUSTICE PATTERSON: And that wall I'm sorry. CHIEF JUSTICE RABNER: It'll 81 00:06:35.031 --> 00:06:41.221 you said thirty had to sixty feet represented length of the entire house. 82 00:06:41.221 --> 00:06:45.164 MONICA DO OUTEIRO: His testimony was asked to at one point said thirty and 83 00:06:45.164 --> 00:06:49.997 another point says sixty. State's belief from that testimony is that some 84 00:06:49.997 --> 00:06:54.826 duration and again the State would point the Court to the photographs that were 85 00:06:54.826 --> 00:06:57.350 moved into evidence and are part of the record here. CHIEF JUSTICE RABNER: 86 00:06:57.350 --> 00:07:02.419 You have to back out the length of the garage because that's where the deer 87 00:07:02.419 --> 00:07:05.795 was. MONICA DO OUTEIRO: No. The garage was against the wall was that adjacent 88 00:07:05.795 --> 00:07:09.207 to the house. Not closest to the garage I forget performance you're asking 89 00:07:09.207 --> 00:07:15.578 to subtract the length? Again it's like not super clear but you can see a 90 00:07:15.578 --> 00:07:21.186 photographs much this is a pretty at least for mon county I would say a pretty 91 00:07:21.186 --> 00:07:22.592 standard colonial style home. JUSTICE PATTERSON: Is it possible that the 92 00:07:22.592 --> 00:07:27.209 inconsistency for the testimony is that the entire length 69 house is sixty feet 93 00:07:27.209 --> 00:07:33.795 but the distance between the refrigerator DVR on top of it through that wall 94 00:07:33.795 --> 00:07:39.310 to the active fire was more like thirty feet does that it makes sense reading 95 00:07:39.310 --> 00:07:41.589 that testimony. MONICA DO OUTEIRO: That is a possibility. You don't want 96 00:07:41.589 --> 00:07:46.646 misstate the testimony. I want to be accurate with the Court that there are 97 00:07:46.646 --> 00:07:50.050 two two distances stimuluses in in the record. JUSTICE PATTERSON: And is it 98 00:07:50.050 --> 00:07:53.239 clear if the testimony that this wall that separated the house and the garage 99 00:07:53.239 --> 00:07:57.982 that's part of the main -- that's part of the main house so if the fire ongoing 100 00:07:57.982 --> 00:08:05.245 in the house had had denied 20 separate spread, it would have or could have 101 00:08:05.245 --> 00:08:08.899 presumably taken out that wall? MONICA DO OUTEIRO: Yes, I mean, the 102 00:08:08.899 --> 00:08:13.178 testimony and the paragraphs are they're this is an attached garage that it shares 103 00:08:13.178 --> 00:08:17.363 it shared a wall with a residence. This isn't a separate structure trot main 104 00:08:17.363 --> 00:08:25.366 house itself. JUSTICE HOFFMAN: You said earlier that the officers were 105 00:08:25.366 --> 00:08:33.485 seeking a DVR and you said that could contain a recording 69 ordinancist. So 106 00:08:33.485 --> 00:08:38.303 is it your that he came over at that point they were looking not necessarily to 107 00:08:38.303 --> 00:08:42.920 find out what caused the fire but who caused the fire? MONICA DO OUTEIRO: 108 00:08:42.920 --> 00:08:48.683 I think it would be both things. They had probable cause. That's not? Dispute. 109 00:08:48.683 --> 00:08:51.547 They had a fire that was happening at one location off the house near the 110 00:08:51.547 --> 00:08:55.705 gas heater. When the officers arrived they had a second fire. They had a melt gas 111 00:08:55.705 --> 00:09:02.502 can that was located there. As well as sworn scarf macros one of the vehicles 112 00:09:02.502 --> 00:09:08.597 parked outside. They were looking for evidence related to this fire cause 113 00:09:08.597 --> 00:09:12.542 presumably the officers knew that the surveillance cameras were located right 114 00:09:12.542 --> 00:09:16.829 there and so they were looking for a video that could identify the ordinance as well 115 00:09:16.829 --> 00:09:19.366 as show what had occurred. JUSTICE HOFFMAN: Don't you think it's critical 116 00:09:19.366 --> 00:09:25.835 what they were looking for? I mean, if cause and origin are one issue and if 117 00:09:25.835 --> 00:09:31.918 assailant or potential defendant or target is another issue, don't you think it matters 118 00:09:31.918 --> 00:09:34.748 what the purpose of that search was. MONICA DO OUTEIRO: I don't, Your Honor. 119 00:09:34.748 --> 00:09:42.971 And nor do I think that the law allows for such a distinction. It's clear 120 00:09:42.971 --> 00:09:52.539 that -- it's -- it's clear that when you're talking about cause and origin 121 00:09:52.539 --> 00:09:57.749 and when you're hooking looking at cases like Tyler like mode yes they're looking 122 00:09:57.749 --> 00:10:03.686 for originals but in at least one of those cases they also with also had a 123 00:10:03.686 --> 00:10:07.652 dead body and they were sorting through the the debris and that's going to give 124 00:10:07.652 --> 00:10:12.025 them evidence of more than that. Ultimately where we're talking about exigency 125 00:10:12.025 --> 00:10:18.516 is when we look at Tyler when it talks about exigency it's talking about we 126 00:10:18.516 --> 00:10:27.028 need to find out who he did this in order to protect the community from arson 127 00:10:27.028 --> 00:10:31.210 nists would allow for a distinction between cause and origin versus video evidence 128 00:10:31.210 --> 00:10:38.435 of the person who started the fire in light of the way that exigency and fire 129 00:10:38.435 --> 00:10:44.024 investigation situations has been crafted. JUSTICE WAINER-APTER: Could not that 130 00:10:44.024 --> 00:10:50.610 also be because part of an exigency analysis is safe guarding the evidence 131 00:10:50.610 --> 00:10:55.342 itself. So in a number of the cases that have talked about fire, it has held 132 00:10:55.342 --> 00:11:00.705 that for purposes of investigating how a fire has started, the police can search 133 00:11:00.705 --> 00:11:07.847 the home without a warrant even a pretty long time after the fire has been 134 00:11:07.847 --> 00:11:13.026 fully put out. So in Taylor, for example, it's a furniture store not a home 135 00:11:13.026 --> 00:11:19.181 but the fair starts at two a.m. It is fully put out by four a.m. and then there 136 00:11:19.181 --> 00:11:22.314 is searching that is still happening at nine a.m. and the Supreme Court says 137 00:11:22.314 --> 00:11:27.682 all of that is totally fine. For purposes of figuring out that how the fire 138 00:11:27.682 --> 00:11:32.089 started. In this case though regardless of whether it was to figure out how the 139 00:11:32.089 --> 00:11:37.583 fire started or who started the fire, the fire was still ongoing. So a big purpose 140 00:11:37.583 --> 00:11:43.053 of the search would be safe guarding the DVR from water damage or steam damage 141 00:11:43.053 --> 00:11:48.437 or itself burning up because there was still a fire that was happening whereas 142 00:11:48.437 --> 00:11:53.391 in Tyler and Clifford and Amodio we're talking about is that he used to be 143 00:11:53.391 --> 00:11:56.959 happen after the fire has been put out; is that correct? MONICA DO OUTEIRO: 144 00:11:56.959 --> 00:12:01.612 I think that's accurate and that's consistently with sergeant's testimony. 145 00:12:01.612 --> 00:12:05.332 He consistently that he saw and I understand subjective intent is, you know, 146 00:12:05.332 --> 00:12:11.170 not as revolt as objective but I ask you sergeant consistently testifies that that 147 00:12:11.170 --> 00:12:16.564 was his purpose and his thought process on ordering his on officers in at that 148 00:12:16.564 --> 00:12:20.609 time when firefighters were on the scene the fire as you said, Your Honor, 149 00:12:20.609 --> 00:12:26.468 was not fully extinguished but he felt there was a safe a mitigated risk at 150 00:12:26.468 --> 00:12:31.266 that point to sees the DVR to preserve that evidence from destruction. JUSTICE 151 00:12:31.266 --> 00:12:37.417 PATTERSON: One thing that is striking to me in the body the longer body cam video 152 00:12:37.417 --> 00:12:43.780 is that they refer to the defendant as a homeowner. And should we ask the home 153 00:12:43.780 --> 00:12:49.759 or an that and at one point, they're looking at the evidence that someone had 154 00:12:49.759 --> 00:12:55.490 started air fire right at the corner 69 garage and there was I guess gas and 155 00:12:55.490 --> 00:13:01.800 some damage on cars. And I forget exactly what is said but it's almost are 156 00:13:01.800 --> 00:13:06.801 you going to tell the the home or an this well, no approximate and it was -- is it 157 00:13:06.801 --> 00:13:13.154 the state's position that during this critical period there was no focus 158 00:13:13.154 --> 00:13:17.093 whatsoever on defendant as a potential suspect. MONICA DO OUTEIRO: Yes, 159 00:13:17.093 --> 00:13:21.259 at this time and I think Guinevere from sergeant's testimony that the defendant 160 00:13:21.259 --> 00:13:27.095 was seen as a home or an the state didn't have any suspicion with regard to 161 00:13:27.095 --> 00:13:32.383 him as a perfect traitor of the offense. I would say sore several hours if not days. 162 00:13:32.383 --> 00:13:37.334 JUSTICE HOFFMAN: It sounds to me like you're asking the blanket rule that 163 00:13:37.334 --> 00:13:44.879 just says fire, law research. It doesn't sound to me like it matters where 164 00:13:44.879 --> 00:13:51.174 the fire is is how strong the fire is or how close the fire is to being put 165 00:13:51.174 --> 00:13:57.539 out our where the area to be searched is under control you're just saying fire, 166 00:13:57.539 --> 00:14:01.173 warrantless search am a wrong. MONICA DO OUTEIRO: Unfortunately that is 167 00:14:01.173 --> 00:14:06.137 a misstatement the state's position. The state is aware that exigent 168 00:14:06.137 --> 00:14:09.574 circumstances is always a totalsty of the circumstances Tet that's at that time 169 00:14:09.574 --> 00:14:14.787 the Supreme Court said in Tyler that's what our court adopted in Amodio. I 170 00:14:14.787 --> 00:14:19.603 think there is as quote from Clifford that our Appellate Division cites to in Amodio 171 00:14:19.603 --> 00:14:24.416 it says even though it's recognizing that the had extinguishing of the fire 172 00:14:24.416 --> 00:14:32.915 doesn't necessarily dissipate pallet the it says P Par (Reading.) must be militia 173 00:14:32.915 --> 00:14:37.178 pursuant to a water or identification of some new exigency and so I would even in 174 00:14:37.178 --> 00:14:45.316 that quote, the as this Court when citing Riley and state versus Manning said 175 00:14:45.316 --> 00:14:50.270 there's certain circumstances with exceptions and had we can all think of 176 00:14:50.270 --> 00:14:54.753 alternative scenarios that are just kind of exigent but we always need to analyze 177 00:14:54.753 --> 00:15:00.562 the after she recollects this Court said child abduction, active shooter, bomb 178 00:15:00.562 --> 00:15:04.982 threats. And Tyler and the line of that I discussed this the state is asking this 179 00:15:04.982 --> 00:15:09.904 Court to adopt I think are similar in that line. It's about asking for a per 180 00:15:09.904 --> 00:15:14.543 se test or I blanket rule but it is saying this is a factor and you have to 181 00:15:14.543 --> 00:15:21.269 consider it and the factors here were not properly the state would submit. 182 00:15:21.269 --> 00:15:24.750 JUSTICE HOFFMAN: What are the narcotics a Court would look at to determine that 183 00:15:24.750 --> 00:15:30.474 even though a fire is ongoing the search warrant would be appropriate. What 184 00:15:30.474 --> 00:15:33.313 would they're an. MONICA DO OUTEIRO: That a search warrant was appropriate? 185 00:15:33.313 --> 00:15:36.685 JUSTICE HOFFMAN: What would determine that a fire was ongoing the search 186 00:15:36.685 --> 00:15:42.533 warrant would be appropriate. MONICA DO OUTEIRO: I think the Clifford 187 00:15:42.533 --> 00:15:46.822 quote that I just read. A fire personnel and law firm personnel had left the 188 00:15:46.822 --> 00:15:52.348 fire was fullily extinguished they had left the scene then you would need a 189 00:15:52.348 --> 00:15:56.424 warrant half who have what are the factors if you're not looking for I blank 190 00:15:56.424 --> 00:16:00.709 you rule, what are the factors that would determine that even though a fire is 191 00:16:00.709 --> 00:16:05.661 going a warrant would still be required? What would we look to. MONICA DO 192 00:16:05.661 --> 00:16:10.457 OUTEIRO: So I think we would look to the totality of the circumstances as if we 193 00:16:10.457 --> 00:16:15.598 do any exigent circumstances. Is it the fire actively ongoing? Again I don't think 194 00:16:15.598 --> 00:16:19.860 you can get away from the enact the if the fire is completely extinguished 195 00:16:19.860 --> 00:16:23.367 and police and fire are left the scene that that cuts against. JUSTICE 196 00:16:23.367 --> 00:16:26.330 WAINER-APTER: That's asking you to assume that the fire is ongoing and still 197 00:16:26.330 --> 00:16:31.282 gif an example of when a warrant would be required. Could it be, for example, a fifty 198 00:16:31.282 --> 00:16:34.710 thousand square feet warehouse where there is a tiny fire that is ongoing in 199 00:16:34.710 --> 00:16:38.850 one corner and then fifty thousand or, you know, many thousands of feet away 200 00:16:38.850 --> 00:16:42.671 on the other corner. MONICA DO OUTEIRO: Separate instruction let's say 201 00:16:42.671 --> 00:16:47.958 a large farm and a fire in one of the out buildings that wasn't affecting the, yes, 202 00:16:47.958 --> 00:16:54.238 you would need a warrant. Again I want to answer the Court's question irritates 203 00:16:54.238 --> 00:16:59.037 difficult because we can probably as Justice Wainer-Apter said you can imagine 204 00:16:59.037 --> 00:17:02.555 a situation where there is a large enough structure that the distance the same 205 00:17:02.555 --> 00:17:07.690 as if they were separate constructors instructions. I think the fact that this 206 00:17:07.690 --> 00:17:12.022 is the same matters. Again when the lower court found that that the garage 207 00:17:12.022 --> 00:17:16.377 approximate was structure Al enact he's only finding that because that we know 208 00:17:16.377 --> 00:17:21.182 it remains so he the entire time. The exigent circumstancestions always going 209 00:17:21.182 --> 00:17:26.764 to come down do and rings probabilities. What I think no Court has noir should 210 00:17:26.764 --> 00:17:31.431 this Court continue or department from that is say that there needs to be a situation 211 00:17:31.431 --> 00:17:36.990 where in unless the fire is on that shared wall officers need to get a warrant 212 00:17:36.990 --> 00:17:40.811 because the reality is in that situation no officer wagon would be going in. 213 00:17:40.811 --> 00:17:46.642 We know here that Sergeant Mallone own's first concern was the safety of his 214 00:17:46.642 --> 00:17:50.411 officers. So I think you would be looking at you'd have to look at officer safety 215 00:17:50.411 --> 00:17:54.816 and so whether 239 fire is in the ceremony structure or in a separate structure 216 00:17:54.816 --> 00:17:58.927 whether the fire autoion ongoing is going to matter. And I think the fire 217 00:17:58.927 --> 00:18:04.752 ongoing is a highly relevant factor again that's why the Courts that hav dealt 218 00:18:04.752 --> 00:18:11.917 with this in the past have always said when the fire is out fire personnel law firm 219 00:18:11.917 --> 00:18:15.179 have left absent some renewed exigency that he says to get a lot warrant but. 220 00:18:15.179 --> 00:18:19.565 JUSTICE PATTERSON: Is this significant that there was a fire there was 221 00:18:19.565 --> 00:18:24.055 an indication because the of the gas can that there was that this was a fire 222 00:18:24.055 --> 00:18:28.599 started by accelerate ants. MONICA DO OUTEIRO: I would say this would be 223 00:18:28.599 --> 00:18:35.641 a completely different scenario if it was a reliance fire that started in the early 224 00:18:35.641 --> 00:18:40.026 morning hours and you had no indication as to whether or not there was arson. 225 00:18:40.026 --> 00:18:45.175 In that case maybe the law firm doesn't even know or have any criminal 226 00:18:45.175 --> 00:18:47.500 suspicions until later and at that point, yes,ie warrant would have to be secured. 227 00:18:47.500 --> 00:18:51.325 JUSTICE HOFFMAN: You asked about you discussed Sergeant Mallone own's 228 00:18:51.325 --> 00:18:54.075 concerns you said his first concern was safety and security of the officers. 229 00:18:54.075 --> 00:19:00.268 But he was asked that question in trial and at the transcript at two two one 230 00:19:00.268 --> 00:19:05.264 zero four and the question was tell the you see told him to get on the DVR out of 231 00:19:05.264 --> 00:19:09.263 the of the garage what were your concerns. And his response was the concerns 232 00:19:09.263 --> 00:19:14.534 were that there was suspicious circumstances surrounding the cause of the fire 233 00:19:14.534 --> 00:19:18.737 and I was concerned the evidence was going to be destroyed, the potential to to 234 00:19:18.737 --> 00:19:24.256 find out who did it. So it doesn't sound to me like his response was that his 235 00:19:24.256 --> 00:19:27.208 initial and immediate and primary concern was the safety and security of the 236 00:19:27.208 --> 00:19:32.338 officers. It sounds to me like his primary concern was I need to find out who 237 00:19:32.338 --> 00:19:36.513 started this fire. MONICA DO OUTEIRO: I think that's a bit of a misreading 238 00:19:36.513 --> 00:19:42.238 of the transcript. Assistant often testifies before that about his immediate 239 00:19:42.238 --> 00:19:45.248 concerns being with regard to the safety of his officers. Those concerns change 240 00:19:45.248 --> 00:19:51.008 and he's able to shift the DVR once the fire official firefighters are there 241 00:19:51.008 --> 00:19:55.255 and he knows they're dealing with the fire. Why this is relevant is because 242 00:19:55.255 --> 00:19:58.537 in that in this totality of the circumstances analysis when we're looking at 243 00:19:58.537 --> 00:20:01.941 whether or not the officers had time to obtain a warrant we have to look at what 244 00:20:01.941 --> 00:20:06.309 other activities the officers were doing that were taking way time from 245 00:20:06.309 --> 00:20:10.153 potentially getting eat warrant. This Court founds that in state versus lot 246 00:20:10.153 --> 00:20:14.337 ofberg when it was a motor vehicle collision and we were discussing getting time 247 00:20:14.337 --> 00:20:24.809 to get a telephonic warrant for ate blood samp. The officers first had to 248 00:20:24.809 --> 00:20:29.142 prioritize clearly the road dealing the injured passengers., the fact that the 249 00:20:29.142 --> 00:20:34.672 officer had to wait at the hospital for over an hour before he was even given 250 00:20:34.672 --> 00:20:40.289 ther given access to it the defendant. Didn't neglect exJanet circumstances. First 251 00:20:40.289 --> 00:20:45.257 priority size safety, community safety their safety and do those activities 252 00:20:45.257 --> 00:20:52.965 first before they turn to criminal investigatory tasks. CHIEF JUSTICE 253 00:20:52.965 --> 00:20:55.253 RABNER: Reasonable after I am the 209 amount of time it would take to get a 254 00:20:55.253 --> 00:21:01.301 warrant at 5:30 in the morning. To prepare and get the adjudge only on the line 255 00:21:01.301 --> 00:21:05.275 to make a ruling. MONICA DO OUTEIRO: You unfortunately the time 256 00:21:05.275 --> 00:21:10.047 statements this Courtly set forth in stated verses wit are still the reasonable time 257 00:21:10.047 --> 00:21:14.911 estimates. Thirty minutes would be probably you one of the fastest warrants 258 00:21:14.911 --> 00:21:21.388 I've ever and obtained what this Court said it could take up to one, two and 259 00:21:21.388 --> 00:21:25.758 hours that's accurate. As Your Honor mentioned we can't really technology our 260 00:21:25.758 --> 00:21:31.791 way out of a passage of time. Sergeant Mallone own would have to contact and advise 261 00:21:31.791 --> 00:21:36.077 the facts. Seventy-nine assistant prosecutorial would then call the county 262 00:21:36.077 --> 00:21:40.184 radio room in order to have them ruche on the the on Kuhl judged. That takes 263 00:21:40.184 --> 00:21:47.195 time up to twenty minutes from what I H I dacted county dispatcher. Then the sit 264 00:21:47.195 --> 00:21:50.225 tight would speak, you know, the assistant prosecutor would eke spoot judge 265 00:21:50.225 --> 00:21:54.917 advise them of at least minimal facts, you know, the name the affiant why we 266 00:21:54.917 --> 00:21:58.866 were looking tow search and then the straight would then call the officer back 267 00:21:58.866 --> 00:22:05.370 advise them that they can call into the the radio room and then now you're startingr 268 00:22:05.370 --> 00:22:09.411 the warrant process. That's going to take however long it takes to discuss 269 00:22:09.411 --> 00:22:15.914 the facts which can take shorter or longer. So thirty mitochondrions best 270 00:22:15.914 --> 00:22:20.385 day everything goes right and the facts are very short is to two hours is an 271 00:22:20.385 --> 00:22:23.711 accurate estimate of the longest. JUSTICE NORIEGA: Is there anything in the 272 00:22:23.711 --> 00:22:27.452 record that we can look to suggest what the level of communication was between 273 00:22:27.452 --> 00:22:32.254 fire and police before this search was conducted in terms of alerts regarding 274 00:22:32.254 --> 00:22:36.891 where the fire was what was happening with it on the sorry side of the structure. 275 00:22:36.891 --> 00:22:40.169 MONICA DO OUTEIRO: I think the body worn camera I would submit had shows 276 00:22:40.169 --> 00:22:46.215 that but two also shows that this is a dynamic fluid scene. You see sergeant 277 00:22:46.215 --> 00:22:50.982 oftentimes trying to find out fire abnormals convey the information that heave 278 00:22:50.982 --> 00:22:54.828 received. You have firefighters that are coming out on the front lawn, some inside 279 00:22:54.828 --> 00:22:59.221 and ultimately Sergeant Mallone own makes he says the fire marshal or the fire 280 00:22:59.221 --> 00:23:04.037 officials the head on scene or wearing the white helmets he speaks to two of 281 00:23:04.037 --> 00:23:09.765 them because he you can't find the officer or the fire official that he's more 282 00:23:09.765 --> 00:23:11.637 familiar with. JUSTICE NORIEGA: There isn't anything on the video of Sergeant 283 00:23:11.637 --> 00:23:14.630 Mallone even asking for information about what's hamming with the activity 284 00:23:14.630 --> 00:23:20.364 on the other side while they're NATO garage area so there isn't an active call 285 00:23:20.364 --> 00:23:25.311 that's recorded saying, you know, we're about to go into the structure somebody let 286 00:23:25.311 --> 00:23:30.140 me knowly what's opposing other side right unless is I say missed something. 287 00:23:30.140 --> 00:23:33.032 MONICA DO OUTEIRO: There isn't that but I think that's not a function 288 00:23:33.032 --> 00:23:37.972 of some deficiency by the plaintiff's that should be held against of of a function 289 00:23:37.972 --> 00:23:42.874 of active fire. JUSTICE PIERRE-LOUIS: And aren't the firefighters busy 290 00:23:42.874 --> 00:23:46.218 containing the fire because you can see on the video I think about five or 291 00:23:46.218 --> 00:23:54.351 six minutes before the DVR's removed you can see smoke emanating from you can see 292 00:23:54.351 --> 00:23:58.214 smoke billowing from the roof of the house. I mean, the electricity goes off 293 00:23:58.214 --> 00:24:03.983 knot garage because there's a fire in the house. While sheer searching to 294 00:24:03.983 --> 00:24:08.356 the DVR and right after the DVR is removed you can hear what I believion the saw 295 00:24:08.356 --> 00:24:13.756 that the firefighters are using to, you know, release more smoke from the structure. 296 00:24:13.756 --> 00:24:18.725 So it seems as though the firefighters I'm guessing were occupied and not 297 00:24:18.725 --> 00:24:24.072 really in a position to GI a full debrief tell the when they were still trying 298 00:24:24.072 --> 00:24:27.068 to contain an active fire. MONICA DO OUTEIRO: Not to repeat or use the 299 00:24:27.068 --> 00:24:32.316 same words but when, I mean, kind of the good thing about body worn cameras is you 300 00:24:32.316 --> 00:24:37.146 the Court can see exactly watt officers saw and what they were doing. This 301 00:24:37.146 --> 00:24:41.797 was a very dynamic scene. The lower court doesn't fine to do that the firehouse 302 00:24:41.797 --> 00:24:44.931 extinguished. It's still being fought the and you can see it outsource could 303 00:24:44.931 --> 00:24:51.346 say when the officer comes out Marino comes out Ottawa DVR there's now the infrastructures' 304 00:24:51.346 --> 00:24:56.753 ladders extend over the the pitch of the roof. You can here the firefighter 305 00:24:56.753 --> 00:25:01.121 activities still occurring and so-so while a agree there's nothing specific 306 00:25:01.121 --> 00:25:05.940 in the record I think again the reason for that is because of the diagnosis 307 00:25:05.940 --> 00:25:12.226 situation. Again being able to get one of the two fire officials to have that 308 00:25:12.226 --> 00:25:17.331 communication I think the record bears outlets says quietly difficult. 309 00:25:17.331 --> 00:25:19.953 JUSTICE NORIEGA: So I guess I'm trying to swear two pieces of information because 310 00:25:19.953 --> 00:25:24.225 your suggestion was that there was say concern for officer safety. Before 311 00:25:24.225 --> 00:25:28.196 entering the structure and I'm not suggest suggesting that they had to pull 312 00:25:28.196 --> 00:25:31.461 fire officials from their duties of fighting the fire to get that information but 313 00:25:31.461 --> 00:25:35.557 there are enough personnel available to relay that information to the officers 314 00:25:35.557 --> 00:25:40.263 about to go into the structure. And that didn't seem to happen. I mean, if 315 00:25:40.263 --> 00:25:44.236 they were so concerned for their safety then I think there should have been 316 00:25:44.236 --> 00:25:48.578 some level of gathering of information before entering to say where the the fire 317 00:25:48.578 --> 00:25:52.616 is it getting close to that wall can you see it from that side something to 318 00:25:52.616 --> 00:25:57.554 suggest that they were in any kind of danger they would have topped on forecast 319 00:25:57.554 --> 00:26:01.612 that before walking into the building. MONICA DO OUTEIRO: I think that's 320 00:26:01.612 --> 00:26:06.278 something that we in a courtroom years later can think about. I don't think that 321 00:26:06.278 --> 00:26:09.922 is reasonable for officers at the time to do. Sergeant Mallone own made the 322 00:26:09.922 --> 00:26:15.371 decision to have the officers Gert and evidence go in and sees the DVR at a 323 00:26:15.371 --> 00:26:20.036 time that he knew that he could see for Mississippi without talking to fire 324 00:26:20.036 --> 00:26:24.188 enablers fire mitigation efforts were being made that that mitigated his the tricycles 325 00:26:24.188 --> 00:26:28.154 his officers whereas when he arrived and you had the uncontrolled fire because 326 00:26:28.154 --> 00:26:33.071 there's no firefighters auto scene by the gas meter he wasn't willing to that 327 00:26:33.071 --> 00:26:38.246 I risk. We ask officers to risk their safety all the time. The state I guess 328 00:26:38.246 --> 00:26:43.401 is not here saying exigent circumstances doesn't involve anything risk to officers 329 00:26:43.401 --> 00:26:49.119 and I agree that there was a risk to the officers here. Exigent circumstances 330 00:26:49.119 --> 00:26:53.313 allows officers so mitigate those risks. JUSTICE PATTERSON: And Malone 331 00:26:53.313 --> 00:26:59.206 was walking around. That's very telling from the video. He is really virtually 332 00:26:59.206 --> 00:27:02.925 everywhere in the front area of this house and garage. You don't see him going 333 00:27:02.925 --> 00:27:09.044 behind the house but he's aware he's communicating as he walks around and he 334 00:27:09.044 --> 00:27:13.566 certainly has a good view because the body cam provides a good view of what's going on. 335 00:27:13.566 --> 00:27:17.176 MONICA DO OUTEIRO: And to be clear there's only five or six police officers 336 00:27:17.176 --> 00:27:22.533 on scene total and many of them are involved in stationery tasks. You can 337 00:27:22.533 --> 00:27:25.811 see The To talk to neighbors they have to make sure the street stays open and 338 00:27:25.811 --> 00:27:30.221 you can see that that striate L streetion pretty much covered. There's a neighbor 339 00:27:30.221 --> 00:27:39.903 who has a fire or a fire SUV on their front lawn. This again I hate to to keep 340 00:27:39.903 --> 00:27:45.349 saying but it's a very dynamic scene and in total we're talking about forty 341 00:27:45.349 --> 00:27:50.472 and hints I think that's really the forty minutes is when, you know, the officer 342 00:27:50.472 --> 00:27:55.572 the DVR. I think they go in before they go in to get it before forty minutes 343 00:27:55.572 --> 00:27:59.715 have even passed before arrival on the scene and again I think that's the State's 344 00:27:59.715 --> 00:28:04.721 difficulty with the lower's ruling is in comparing this fact pattern to Clifford 345 00:28:04.721 --> 00:28:11.658 a case that we can all agree is not exigent in Clifford you ever an officer 346 00:28:11.658 --> 00:28:14.966 that just does other and it figures shows up six hours later without an warrant. 347 00:28:14.966 --> 00:28:20.116 This Court in state versus Manning told lavement you have time to get a warrant 348 00:28:20.116 --> 00:28:24.716 you need to get a warrant. If six hours had passed here the State would not be 349 00:28:24.716 --> 00:28:28.663 before this Court but we're talking about from arrival on the scene to seizure 350 00:28:28.663 --> 00:28:32.463 of the deer forty minutes. JUSTICE WAINER-APTER: Clifford wasn't even 351 00:28:32.463 --> 00:28:36.842 a case of exigency because the that a lot has -- there was no challenge to the state's 352 00:28:36.842 --> 00:28:41.486 court's in my understanding there was no exigent circumstances justifying are 353 00:28:41.486 --> 00:28:46.897 the search on the Clifford home inspect instead the state's argued acted in 354 00:28:46.897 --> 00:28:48.868 Clifford was that there should be a blanket exemption from the had the warrant 355 00:28:48.868 --> 00:28:53.156 requirement for all administrative investigations intoite kaz and origin of a 356 00:28:53.156 --> 00:28:57.232 fire which the Supreme Court refused so Clifford wasn't even a exigency cases 357 00:28:57.232 --> 00:29:01.242 the request was we want a separate rule administrative searches were a big 358 00:29:01.242 --> 00:29:06.039 thing that the U.S. Supreme Court was ruling on in in many connections at that 359 00:29:06.039 --> 00:29:10.548 time and the State was asking for a blanket rule for an administrative search not 360 00:29:10.548 --> 00:29:14.622 that require a warrant into anything related to the toot fire having nod nothing 361 00:29:14.622 --> 00:29:19.365 to do the exigency at all. MONICA DO OUTEIRO: Ultimatumth Clifford Court 362 00:29:19.365 --> 00:29:24.893 does discuss exJanet circumstances even though it's not being arguing because it 363 00:29:24.893 --> 00:29:30.721 does reaffirm Tyler and Tyler's hold which againion all this Courtion asking 364 00:29:30.721 --> 00:29:37.743 this Court to do. JUSTICE PATTERSON: Were the Manning factors the guiding 365 00:29:37.743 --> 00:29:39.272 principles here. MONICA DO OUTEIRO: Yes, I know we're talking about this 366 00:29:39.272 --> 00:29:42.541 in the fire investigationly skecks and I don't want that to in any way lead the 367 00:29:42.541 --> 00:29:48.874 Court astray that the Court is asking for anything other than exigency Essex jeans 368 00:29:48.874 --> 00:29:51.460 but the loiter court's evaluation from the exigency of the circumstances here 369 00:29:51.460 --> 00:29:59.025 was to too strict was too guided by 2020 hindsight and a didn't accord sufficient 370 00:29:59.025 --> 00:30:03.186 wait weight 209 circumstances nine totality of the 69 circumstances that the 371 00:30:03.186 --> 00:30:05.585 hut officers were facing here. CHIEF JUSTICE RABNER: Other questions anyone? 372 00:30:05.585 --> 00:30:09.182 Anything you'd like to add counseling. MONICA DO OUTEIRO: Now thank you very 373 00:30:09.182 --> 00:30:14.050 much I appreciate the time. CHIEF JUSTICE RABNER: Thank you Mr. Encroach. 374 00:30:14.050 --> 00:30:16.409 THOMAS CAROCCIA: Good morning urns. In the face of an active fire near 375 00:30:16.409 --> 00:30:22.757 a gas meter and with suspicions of ordinance Sergeant Mallone own enacted an 376 00:30:22.757 --> 00:30:25.811 objectively reasonable marine when he had I his officersr secure DVR with assistance 377 00:30:25.811 --> 00:30:29.988 from defendant and his daughter. That action says double injured given the 378 00:30:29.988 --> 00:30:33.178 limited nature the of the he retrieval which was to the to prevent the evidence from 379 00:30:33.178 --> 00:30:38.248 being damaged until police could seek consequent from defendant later on to 380 00:30:38.248 --> 00:30:42.301 search the DVR and at the time they did believe that he was aid victim not 381 00:30:42.301 --> 00:30:49.036 a suspect. Under these circumstances, this Court shoot reverse the Appellate Division's 382 00:30:49.036 --> 00:30:54.759 decision on. The touchstone of each ground is he reasonableness of the police 383 00:30:54.759 --> 00:30:59.472 action at the time the acts wasn made not hindsight. First as 1996 discussed 384 00:30:59.472 --> 00:31:06.064 the police acted reasonable bye retrieving the DVR from the garage in rightful 385 00:31:06.064 --> 00:31:09.256 quickly evolving exigency created data active fire. To do so was justified under 386 00:31:09.256 --> 00:31:14.300 Tyler. On top of that, given the known volatility of the firesr nine fact 387 00:31:14.300 --> 00:31:17.386 that it was near the gas line and the presences of the gasoline they're an the 388 00:31:17.386 --> 00:31:22.337 garage, the retrieval of the of the DVR was reasonably especially given the 389 00:31:22.337 --> 00:31:27.511 early morning hour and I am practicality ability of obtaining a warrant. Both 390 00:31:27.511 --> 00:31:33.980 courts below incorrectly relied on heightened side in expressing the DVR. 391 00:31:33.980 --> 00:31:38.641 Second, regardless of whether exigent circumstances existed defendant's 392 00:31:38.641 --> 00:31:42.149 because he shall written consent to the search the DVR was attenuated from that 393 00:31:42.149 --> 00:31:47.949 challenged conduct. It would be in appropriate to apply the exclusionary rule 394 00:31:47.949 --> 00:31:51.536 under these circumstances because each prong of the tennuation test it is satisfied. 395 00:31:51.536 --> 00:31:55.632 Defendant the consented aid full six hours later. JUSTICE PATTERSON: 396 00:31:55.632 --> 00:31:58.546 Is that an argument the tennuation argument and the concept argument that an 397 00:31:58.546 --> 00:32:05.783 argument that the State is still pressing or has that been essentially abandoned 398 00:32:05.783 --> 00:32:08.629 by the state. THOMAS CAROCCIA: No, it was not 2349 motion to appeal before 399 00:32:08.629 --> 00:32:13.296 this Court but it was ruled upon below and the record it is fully developed 400 00:32:13.296 --> 00:32:18.343 on this issue to the attorney general would submit that this Court could still look 401 00:32:18.343 --> 00:32:24.004 at the tennuation issue. His defendant's express consent to serve the DVR. 402 00:32:24.004 --> 00:32:27.955 CHIEF JUSTICE RABNER: Does that mean they're or they aren't. THOMAS 403 00:32:27.955 --> 00:32:31.582 CAROCCIA: The state did not include it in their motion to appeal. This is the 404 00:32:31.582 --> 00:32:37.945 attorney general's argument. His express consent do search the DVR was an intervening 405 00:32:37.945 --> 00:32:43.100 and I can say third no misconduct let alone afragrant misconduct too took place 406 00:32:43.100 --> 00:32:47.294 the they went to the exact spot pointed pout the defendant and his daughter 407 00:32:47.294 --> 00:32:51.812 securing the DVR until it was practicalitiable to ask for consent to 408 00:32:51.812 --> 00:32:55.447 search. And third by giving police the specific he location off the of the DVR and 409 00:32:55.447 --> 00:32:59.864 his daughter defendant and his daughter and whether or not I left don't police 410 00:32:59.864 --> 00:33:03.680 securing it. While you will attorney general does acknowledge this this 411 00:33:03.680 --> 00:33:07.865 argument was not made before the the trial court, it wasn't approximately. The 412 00:33:07.865 --> 00:33:11.571 automate the he clearly show the interaction. Defendant and his daughter 413 00:33:11.571 --> 00:33:15.432 directed officers to the DVR's exact location while they remained nearby president 414 00:33:15.432 --> 00:33:20.262 the police reasonable believed that defendant consented to the retrieval. 415 00:33:20.262 --> 00:33:23.779 On each of these grounds the police action in this case was reasonable. The 416 00:33:23.779 --> 00:33:30.381 panel's decision should therefore being be reverse and they surveillance footage 417 00:33:30.381 --> 00:33:35.957 admitted at trial. The attorney general would welcome questions. CHIEF 418 00:33:35.957 --> 00:33:38.940 JUSTICE RABNER: Anything you'd like to add, Counsel. THOMAS CAROCCIA: , 419 00:33:38.940 --> 00:33:43.318 no, I mean just to go to some of the one or two of the questions that were 420 00:33:43.318 --> 00:33:52.659 addressed to the State, I think that with the Manning factors against the Tyler ask 421 00:33:52.659 --> 00:33:56.786 Clifford case law that I think they are they're synergized so we have at Manning 422 00:33:56.786 --> 00:34:04.130 factors here which the Court goes through and when we talk about the factor, 423 00:34:04.130 --> 00:34:08.426 when we talk about the threaded that evidence would be destroyed and the 424 00:34:08.426 --> 00:34:13.428 urgency 69 situation and the time it would have taken to secure a warrant that I 425 00:34:13.428 --> 00:34:17.184 think Tyler especially Tyler and Amodio go towards those three factors strongly 426 00:34:17.184 --> 00:34:21.611 way weigh in favor of the state. JUSTICE PATTERSON: But all is it the 427 00:34:21.611 --> 00:34:26.200 AJ R's position that all of the Manning factors should be applied. 428 00:34:26.200 --> 00:34:30.225 THOMAS CAROCCIA: There was the fact that he was not armed and did not pose an imminent 429 00:34:30.225 --> 00:34:33.507 danger. JUSTICE PATTERSON: Perhaps that ways many it favor the defendant 430 00:34:33.507 --> 00:34:40.694 in that case. THOMAS CAROCCIA: Certainly but as the trial court noted 431 00:34:40.694 --> 00:34:42.677 the three disputed forgottens urgency of the situation, the time it would have 432 00:34:42.677 --> 00:34:47.264 taken to secure a warrant and the threat that the evidence would be destroyed and. 433 00:34:47.264 --> 00:34:51.570 JUSTICE PATTERSON: But doesn't Manning set the full set of the factor 434 00:34:51.570 --> 00:34:54.546 should consider whether or not they're disputed the disputes obviously part of 435 00:34:54.546 --> 00:35:02.358 the analysis but I was a little accused by the briefing in that regard because 436 00:35:02.358 --> 00:35:07.483 it's I thought that Manning set forth narcotics all are relevant to the Court's 437 00:35:07.483 --> 00:35:11.652 consideration whether or not there's a factual dispute as to a given factor. 438 00:35:11.652 --> 00:35:15.933 THOMAS CAROCCIA: That's correct it's just that Tyler it goes specifically 439 00:35:15.933 --> 00:35:21.215 Tyler and Amodio go specifically to those that I had noted that were disputed 440 00:35:21.215 --> 00:35:24.385 in this case specifically. But certainly all the factor are relevant and to 441 00:35:24.385 --> 00:35:34.025 the Court's analysis. And I I think that's it. I think the attorney general would 442 00:35:34.025 --> 00:36:05.819 just ask this Court to reverseth Appellate Division's decision. MONICA 443 00:36:05.819 --> 00:36:09.476 MASTELLONE: In the Appellate Division order be affirmed because those courts 444 00:36:09.476 --> 00:36:15.334 appropriately recognized that fierceness are not per se exigency that it is a tallet 445 00:36:15.334 --> 00:36:20.519 of the circumstances analysis under that analysis given the very unique distinct 446 00:36:20.519 --> 00:36:24.330 facts in this case there was no exigency that permitted the warrantless conduct. 447 00:36:24.330 --> 00:36:28.915 Pennsylvania. One thing I would really like to clarify at the outset is 448 00:36:28.915 --> 00:36:35.619 the test that should abbreviate played letter for exigency and as well as how 449 00:36:35.619 --> 00:36:40.345 Tyler and Clifford specifically come into play. So with respect to the 450 00:36:40.345 --> 00:36:45.320 test that this Court like the lower Court should administer it's just -- it 451 00:36:45.320 --> 00:36:51.339 is just it is the manning test it is exigency it is all of the factors. This 452 00:36:51.339 --> 00:36:56.594 Court like the lower Court should look at the urgency of the situation the time that 453 00:36:56.594 --> 00:37:01.438 it would have taken to secure a evidence the evidence being loss or removed 454 00:37:01.438 --> 00:37:06.810 from the scene whether anyone was in danger whether the premises is conducive 455 00:37:06.810 --> 00:37:14.157 to effective surveillance while the want is prore cured whether the suspect the 456 00:37:14.157 --> 00:37:25.009 time of entry the seriousness -- now with that said, Tyler and Clifford are 457 00:37:25.009 --> 00:37:30.045 relevant because our United States Supreme Court when they addressed those cases 458 00:37:30.045 --> 00:37:36.121 they wanted to look at how exigency comes into play with respect to none police 459 00:37:36.121 --> 00:37:41.087 actors specificsly in the firefighting function. Tyler discuss he is that 460 00:37:41.087 --> 00:37:48.539 Tyler X plisses says we are here to address the firefighting function and how that 461 00:37:48.539 --> 00:37:53.187 works in the context of firefighting exigency. We now that the fourth amend 462 00:37:53.187 --> 00:37:57.751 president applies to police officers we know that the fourth Amanda. Protects 463 00:37:57.751 --> 00:38:01.946 against unreasonable searches and seizures by law enforcement. What had 464 00:38:01.946 --> 00:38:07.663 not been addressed until Tyler in subsequently Clifford is what rights do 465 00:38:07.663 --> 00:38:13.042 firefighter official have fire - firm fire investigators who are respond to go a 466 00:38:13.042 --> 00:38:19.594 fire emergency an the Court said wap I think I have disagree when it cops to 467 00:38:19.594 --> 00:38:25.220 Tyler because it was not only firefighting personnel there was a police detective 468 00:38:25.220 --> 00:38:31.243 there the police detective who took the two containers at 4 a.m. and then the police 469 00:38:31.243 --> 00:38:37.095 detective who returned with the assistant fire chief at 9 a.m. which was fire 470 00:38:37.095 --> 00:38:40.800 hours after the fire had been continuing wished and the building was empty and they 471 00:38:40.800 --> 00:38:45.974 found additional evidence there. I don't see in Tyler it is about only how 472 00:38:45.974 --> 00:38:50.948 does the fourth amendment apply to none police detective. MONICA MASTELLONE: 473 00:38:50.948 --> 00:38:54.559 That is exactly right the distinction there is that the police were assisting 474 00:38:54.559 --> 00:39:00.912 the firefighting investigators who had not been determined origin and cause of the 475 00:39:00.912 --> 00:39:05.120 fire. So in other words the Court is saying again we know that the 476 00:39:05.120 --> 00:39:10.678 fourth A amendment applies to police what rights to firefighters and fire 477 00:39:10.678 --> 00:39:15.350 officials have they have a trite show is up at the scene and to the promises and 478 00:39:15.350 --> 00:39:18.646 extinguish the fire that is one right. They also have the right this is where 479 00:39:18.646 --> 00:39:23.416 the quote comes into play about the does \gone\go of the last flame that is 480 00:39:23.416 --> 00:39:27.786 not where the exigency ends we can see that. Because fire investigators are 481 00:39:27.786 --> 00:39:33.320 also tasked with determining the origin and cause of the fire. And in doing 482 00:39:33.320 --> 00:39:39.654 so oftentimes it takes longer than it do to extinguish the fire they may have 483 00:39:39.654 --> 00:39:44.610 to remain on scene to find out the origin and the cause. In both Tyler and 484 00:39:44.610 --> 00:39:50.126 Clifford that's what the fire investigators were there to do and the why is 485 00:39:50.126 --> 00:39:54.440 were there to assist. CHIEF JUSTICE RABNER: In this instance the Ard 486 00:39:54.440 --> 00:39:57.232 through the was Anna situation at Respondent preservation of the evidence in the 487 00:39:57.232 --> 00:40:00.879 face of an ongoing fire correct. MONICA MASTELLONE: Yes, that is correct. 488 00:40:00.879 --> 00:40:06.257 CHIEF JUSTICE RABNER: Tell us how far was the decals on top of the edge 489 00:40:06.257 --> 00:40:09.361 freight or from the tight of the ongoing fire can you give us an approximation 490 00:40:09.361 --> 00:40:13.849 in feet based on the record. MONICA MASTELLONE: I can. That's because the 491 00:40:13.849 --> 00:40:18.808 State didn't offer that into evidence. You agree with the state when we have is 492 00:40:18.808 --> 00:40:23.063 approximately 60 feet but it's the state's burden it is at the state's burden 493 00:40:23.063 --> 00:40:26.913 to prove the exigency and to establish the facts. CHIEF JUSTICE RABNER: 494 00:40:26.913 --> 00:40:30.659 But this say approximately 60 feet northern tire lent of the house difficult 495 00:40:30.659 --> 00:40:34.724 hear that incorrectly. MONICA MASTELLONE: No that I believe what was 496 00:40:34.724 --> 00:40:36.925 established that is all that was established. CHIEF JUSTICE RABNER: That 497 00:40:36.925 --> 00:40:40.660 is plus we have photos of the garage which shows that this was at the point 498 00:40:40.660 --> 00:40:46.708 closest to the living quarters of the home correct. MONICA MASTELLONE: 499 00:40:46.708 --> 00:40:50.676 Yes. CHIEF JUSTICE RABNER: Less than 0 feet based on the record. CHIEF 500 00:40:50.676 --> 00:40:54.312 JUSTICE RABNER: Based on the record it's -- CHIEF JUSTICE RABNER: The 501 00:40:54.312 --> 00:41:01.574 entirety of this courtroom is just shy of 60 feet that means that the decals 502 00:41:01.574 --> 00:41:09.366 was quite close to an ongoing fire. MONICA MASTELLONE: Sure. I think 503 00:41:09.366 --> 00:41:13.244 though two important dies continuation wishing the first is that it is 504 00:41:13.244 --> 00:41:17.864 understandable why the fact there is a fire alone alarming that is alarming. 505 00:41:17.864 --> 00:41:22.920 But that's why we we don't have a per se rule because we have to look at all of 506 00:41:22.920 --> 00:41:29.945 the factors and the tallet. The facts matter of circumstances matter. 507 00:41:29.945 --> 00:41:33.004 JUSTICE PATTERSON: Pro sizely we are talk you go about the particular dynamics of 508 00:41:33.004 --> 00:41:39.732 this particular property. This is not you know this is not a castle this is 509 00:41:39.732 --> 00:41:46.213 a home that is apparently around 60 feet in length. MONICA MASTELLONE: 510 00:41:46.213 --> 00:41:49.726 Yes. JUSTICE PATTERSON: Do you dispute that the prejudice rate or is up 511 00:41:49.726 --> 00:41:56.976 against a wall that is the opposite side of which was in the residence. 512 00:41:56.976 --> 00:42:02.778 MONICA MASTELLONE: I do not dispute that however, at the time of this search sergeant 513 00:42:02.778 --> 00:42:07.728 Maria loan conceded that the garage was intact the garage was structurally 514 00:42:07.728 --> 00:42:11.674 sound that the fire was not anywhere near the garage that the garage was undisturbed 515 00:42:11.674 --> 00:42:15.962 by the fire that he never saw the fire get close to the garage that it had 516 00:42:15.962 --> 00:42:20.150 a separate roof the fire was on the opposite end that he was not worried the garage 517 00:42:20.150 --> 00:42:26.226 was going to explode or the house was going to be up guardian in flames that 518 00:42:26.226 --> 00:42:30.950 no one was injured no one - he know fire in the garage the roof was not caving 519 00:42:30.950 --> 00:42:36.104 in know exposed wires or hazards in the garage. Similarly, the trial Court 520 00:42:36.104 --> 00:42:40.801 find those are quotes the garage here was not near the er compromised no October 521 00:42:40.801 --> 00:42:44.682 I will I threatened at time of the DVR at the time of seizure the garage was 522 00:42:44.682 --> 00:42:50.228 no longer an active active is your precious or investigation tied to danger. 523 00:42:50.228 --> 00:43:07.306 That is there was no -- to acts I have fire that the times ( cite had ) the garage 524 00:43:07.306 --> 00:43:14.444 was no longer an area of active firefighting with complete absent of visible -- 525 00:43:14.444 --> 00:43:16.532 JUSTICE PATTERSON: The further he possible point would the have been 30 feet we 526 00:43:16.532 --> 00:43:22.149 are not talking about 100 yards we are talking about a structure that could 527 00:43:22.149 --> 00:43:27.567 have as to which the flames may have reached that garage. MONICA MASTELLONE: 528 00:43:27.567 --> 00:43:32.666 So it could have right but I think that is the point this Court in state V Diana 529 00:43:32.666 --> 00:43:39.709 said we don't know exactly what a robbery just occurred means. Common sense 530 00:43:39.709 --> 00:43:44.322 said that. JUSTICE PATTERSON: There really anneal sir between a dispatchers' 531 00:43:44.322 --> 00:43:49.773 dhal a robbery just occurred with police officers out on the highway and an 532 00:43:49.773 --> 00:43:58.939 ongoing fire which which is in the early stages of being suppress had which is 533 00:43:58.939 --> 00:44:03.890 just inherently instruction predictable I don't see the analogy there. MONICA 534 00:44:03.890 --> 00:44:09.623 MASTELLONE: The analogy is there is missing in the records we can't speculation. 535 00:44:09.623 --> 00:44:14.425 I think that's what the State is really asking this Court to do because the 536 00:44:14.425 --> 00:44:19.799 State is saying you know that the Sergeant Malone arrived on scene and he was 537 00:44:19.799 --> 00:44:25.074 concerned. All of his yearns exactly generalized and we know that what we 538 00:44:25.074 --> 00:44:30.581 can't do is rely on generalization is to support exigency there has to be something 539 00:44:30.581 --> 00:44:36.816 very fact specific. Sergeant Malone's testimony - JUSTICE 540 00:44:36.816 --> 00:44:40.482 PATTERSON: Specifically fact specific that a garage TASA tetched a house and a 541 00:44:40.482 --> 00:44:49.178 house is on fire and it is up predict act how that is going to go because fires 542 00:44:49.178 --> 00:44:54.885 are inherently don't follow written schedule, what is it that we need more than 543 00:44:54.885 --> 00:44:58.277 that mass missing in information in the record. MONICA MASTELLONE: Missing 544 00:44:58.277 --> 00:45:04.830 information is what was the actual status of the this fire at the time of the 545 00:45:04.830 --> 00:45:15.571 search? At that time joint you can hear the says of the fire miters which are 546 00:45:15.571 --> 00:45:20.271 attained had to leaflet smoke out. So we dough no that the status of the firefighting 547 00:45:20.271 --> 00:45:28.606 is that it is -- there is an active fire it has not been put out correct. 548 00:45:28.606 --> 00:45:33.045 MONICA MASTELLONE: Right see I think the fact there is says and there is vent racial 549 00:45:33.045 --> 00:45:38.314 that is actually indicative of the fact that the fires either almost fully 550 00:45:38.314 --> 00:45:41.533 summary judgment priest had or suppress had because typically you are vent lathing 551 00:45:41.533 --> 00:45:47.948 with the says and opening up the area let the smoke out wap you can see smoke 552 00:45:47.948 --> 00:45:52.683 billowing Maria Massachusetts yes the smoke being mean a lots of things it gob the 553 00:45:52.683 --> 00:45:57.493 fire is ongoing it could mean the five is. THE JUSTICE: The police could 554 00:45:57.493 --> 00:46:02.461 not possibly had at the time like the garage did not share a foundation with 555 00:46:02.461 --> 00:46:09.898 the main house and the roof of the garage the no point thereafter was called 556 00:46:09.898 --> 00:46:14.633 into question so that the police would never have known at the time for example 557 00:46:14.633 --> 00:46:20.478 that there was no shared foundation correct -- I think the trial courts specific 558 00:46:20.478 --> 00:46:24.662 word was that the basement didn't share a foundation with the garage and because 559 00:46:24.662 --> 00:46:28.239 the fire was in the basement and the basement didn't share a foundation with 560 00:46:28.239 --> 00:46:34.147 the garage there was no threat to the garage there was no way for the officer to 561 00:46:34.147 --> 00:46:37.855 know at that time right? MONICA MASTELLONE: So that is specific fact 562 00:46:37.855 --> 00:46:45.970 possibly not but I think the bigger point is is that Sergeant Malone at the very 563 00:46:45.970 --> 00:46:50.806 least could have ascertained \with a\way more evident worth reasonable officer 564 00:46:50.806 --> 00:46:55.422 would have den under the circumstances before a warrantless intrusion if to 565 00:46:55.422 --> 00:47:02.227 a home is to ascertain is this fire a racist being to the garage there may be Anexsia 566 00:47:02.227 --> 00:47:07.056 here but does not mean that there is Anexsia over here. JUSTICE PATTERSON: 567 00:47:07.056 --> 00:47:12.243 Dough have an obligation you see from the bottom ma'am how really frantic this 568 00:47:12.243 --> 00:47:16.795 effort was question have an obligation to find the senior fight fighter on 569 00:47:16.795 --> 00:47:21.036 the scene give me a new Mercedes California assessment of the risk that this fire 570 00:47:21.036 --> 00:47:24.992 in the home is going to spread to the garage is that reasonable. MONICA 571 00:47:24.992 --> 00:47:29.821 MASTELLONE: What is reasonable is that Sergeant Malone earlier he testified that 572 00:47:29.821 --> 00:47:34.944 he knew the status of the fire earlier on because he had heard someone talk 573 00:47:34.944 --> 00:47:38.994 it over the radio so he didn't have to grab a firefighter that was rack I will 574 00:47:38.994 --> 00:47:43.448 I firefighting the scene in fact if you look at the body-worn camera there 575 00:47:43.448 --> 00:47:47.425 is liquefy fire he standing all he could have -- he brought a firefighter over to 576 00:47:47.425 --> 00:47:52.166 the garage himself and he asked -- was showing to show the firefighters what 577 00:47:52.166 --> 00:47:56.009 has observations were and the firefighters were essentially disinterested. 578 00:47:56.009 --> 00:47:58.975 At the time that he had an opportunity when he brought that firefighter over 579 00:47:58.975 --> 00:48:04.310 to say by the way like is there a concern about this area. What we do know if few 580 00:48:04.310 --> 00:48:07.649 fire earth did not say the firefighter did not say - you should -- you had 581 00:48:07.649 --> 00:48:11.830 should back up or this area contact catch on fire we are concerned about the 582 00:48:11.830 --> 00:48:16.150 fire spreading the firefighter is like thanks for showing me and that's pretty 583 00:48:16.150 --> 00:48:20.557 much it. So he did have an opportunity that was - that was several minutes 584 00:48:20.557 --> 00:48:24.526 before the search that was right prior maybe like five minutes before the search 585 00:48:24.526 --> 00:48:29.575 occurred. There is many tire man standing around what he the trial Court 586 00:48:29.575 --> 00:48:36.831 looked at M.A. sets \gone\go the totality was not just -- but also the body-worn 587 00:48:36.831 --> 00:48:42.260 camera footage which showed a complete absent of exigency in the garage area. 588 00:48:42.260 --> 00:48:46.694 There's no firefighting activities there is no flame there is you can't see smoke 589 00:48:46.694 --> 00:48:53.916 from the garage area it is completely intact there is like -- the fires -- 590 00:48:53.916 --> 00:48:55.458 THE JUSTICE: There is a complete exigency with the garage I have the does that mean 591 00:48:55.458 --> 00:49:00.932 that the only the if the garage itself was on fire could the police go in in 592 00:49:00.932 --> 00:49:06.440 order to simply sees they didn't search protect it because they don't want 593 00:49:06.440 --> 00:49:09.687 it to be destroyed can they only do that national garage is rack I will I or fire 594 00:49:09.687 --> 00:49:16.496 on someone in the process right then of spreading water at the DVR. MONICA 595 00:49:16.496 --> 00:49:22.108 MASTELLONE: No it is not extreme one way or other. They can't always do it with 596 00:49:22.108 --> 00:49:25.044 the main structure is on fire again you have to look at the size of the structure 597 00:49:25.044 --> 00:49:31.830 the size of the flame the active status of the flame and then also on top -- 598 00:49:31.830 --> 00:49:34.780 THE JUSTICE: Is it the same argument I understand here it is an attached 599 00:49:34.780 --> 00:49:39.730 garage and there was all this conversation with the trial Court that you know 600 00:49:39.730 --> 00:49:45.719 they didn't share a foundation under roof was structurally instruction fact 601 00:49:45.719 --> 00:49:50.106 what is it was the kitchen and the fire is in a different part of the house is 602 00:49:50.106 --> 00:49:53.027 everything curing the same that the police officers would not be able to go grab 603 00:49:53.027 --> 00:49:56.021 something from the kitchen in order to pro ticket and make sure that the evidence 604 00:49:56.021 --> 00:50:01.656 is not destroyed in the fire was in the same house but 30 feet away. MONICA 605 00:50:01.656 --> 00:50:06.590 MASTELLONE: I think again if the circumstances if the tallet of the analysis 606 00:50:06.590 --> 00:50:11.656 you know under those circumstances then the answers is always going to be due 607 00:50:11.656 --> 00:50:16.388 to change right tweaking one little fact could always change the entire analysis. 608 00:50:16.388 --> 00:50:20.855 And I think that the trial Court was very Congress shown of that he even says 609 00:50:20.855 --> 00:50:27.533 you know I recognize had that this is not -- no, sir not and analysis that it he 610 00:50:27.533 --> 00:50:33.426 did not - he says I understand it might seem you know extreme to suggest and 611 00:50:33.426 --> 00:50:40.580 I don't want to paraphrase I have this quote he basically to par gray. I don't 612 00:50:40.580 --> 00:50:47.332 want to rule I understand it is a fire scene but that does not mean that you 613 00:50:47.332 --> 00:50:52.623 always have exigency and when you look at the urgency of situation when you watch 614 00:50:52.623 --> 00:50:56.805 the officer acting on kithara at the time of the search there was no - throw 615 00:50:56.805 --> 00:51:01.738 was no surgery the time that it could have taken to a secure a warrant was 616 00:51:01.738 --> 00:51:09.111 not offered by the state in the to evidence and state V Louis back in 1989 this Court 617 00:51:09.111 --> 00:51:12.959 said we are troubled here because no effort was a to secure either a written 618 00:51:12.959 --> 00:51:19.753 or telephonic warrant we are talking 36 years ago. CHIEF JUSTICE RABNER: 619 00:51:19.753 --> 00:51:23.940 You dispute the representation is we heard from the state in terms of estimated 620 00:51:23.940 --> 00:51:28.034 time. MONICA MASTELLONE: No, I don't. I think essentially the Court took 621 00:51:28.034 --> 00:51:32.009 judicial notice of the how long it might take because the Court even says there 622 00:51:32.009 --> 00:51:37.972 was ample time to get A warrant. And that wasn't because the Court is looking 623 00:51:37.972 --> 00:51:46.550 with 2020 hindsight it is because this Court said previously that you don't -- you 624 00:51:46.550 --> 00:51:52.377 don't have to -- you are not looking at 2020 hindsight you are not going to 625 00:51:52.377 --> 00:51:58.218 put blinders on right we are not going to ignore the conduct of the officer 626 00:51:58.218 --> 00:52:04.190 in the case that I am referring to it was state that was manning and the was 627 00:52:04.190 --> 00:52:08.412 officer actions within the next three days. Here we are look at the actions of the 628 00:52:08.412 --> 00:52:13.112 officer at the time of the search. The officer he actions at the time of 629 00:52:13.112 --> 00:52:18.984 the search we lie this claim of he can sir. THE JUSTICE: That the about 630 00:52:18.984 --> 00:52:23.573 the decals minor it seems is there was a argument the officer exited a calm 631 00:52:23.573 --> 00:52:29.147 demeanor they they wrote not screaming another acted Frank particularly so 632 00:52:29.147 --> 00:52:32.428 there could not have been a exigency is that part of your argument. MONICA 633 00:52:32.428 --> 00:52:36.744 MASTELLONE: That is one way to frame it yes I think it is also the fact that 634 00:52:36.744 --> 00:52:41.016 the officer are at their standing there are five officer in the medicine vicinity 635 00:52:41.016 --> 00:52:45.988 of the garage and driveway area. They are guarding this area that's one of 636 00:52:45.988 --> 00:52:49.503 the factors right being it been under surveille absent it was under very 637 00:52:49.503 --> 00:52:58.955 active surveillance it is crime scene tape entire -- JUSTICE PATTERSON: 638 00:52:58.955 --> 00:53:01.878 That is keep officer out surveillance in that situation being control somebody 639 00:53:01.878 --> 00:53:06.039 appearing on the scene and taking the evidence. But we are talking about 640 00:53:06.039 --> 00:53:11.660 surveillance against a fire that company spread or could cause firefighting activities 641 00:53:11.660 --> 00:53:17.164 involving tense you know hundreds of gallons of water to destroy this evidence. 642 00:53:17.164 --> 00:53:22.239 So how could they possibly have standing around looking into the garage prevented 643 00:53:22.239 --> 00:53:27.191 that from happening. MONICA MASTELLONE: So I think again we can't assume 644 00:53:27.191 --> 00:53:32.667 right we scant over generalize and say what could have happened with the fire 645 00:53:32.667 --> 00:53:35.942 whether would have happened with the fire maybe if an plebbier throughout and landed 646 00:53:35.942 --> 00:53:42.082 on the garage and -- like this Court in state V manning we have never held 647 00:53:42.082 --> 00:53:47.296 a generalized person a public or police safety or the preservation of evidence 648 00:53:47.296 --> 00:53:52.675 would just files a warrantless search or seizure generalized fear. The detective 649 00:53:52.675 --> 00:53:57.836 in that case was unable to articulate anything more than than a generalized concern 650 00:53:57.836 --> 00:54:01.661 for public safety and the pest vacation of the evidence and the reasons for 651 00:54:01.661 --> 00:54:07.761 not complying with the I think that is what we here what we have here is Joan 652 00:54:07.761 --> 00:54:11.835 iced concerns specifically sergeant Maria loan all he testified was I was 653 00:54:11.835 --> 00:54:15.816 concerned the evidence was going to be destroyed that it was going to be burden off 654 00:54:15.816 --> 00:54:20.980 in the fire and there were propping questions about die the same and the 655 00:54:20.980 --> 00:54:26.357 site said we will have to can you articulate what the concerns are and he simply 656 00:54:26.357 --> 00:54:33.402 said the fire could have spread at any moment and then he said there is also 657 00:54:33.402 --> 00:54:41.458 a risk fire is unpredictable those are generalized concerns about fires. 658 00:54:41.458 --> 00:54:46.241 THE JUSTICE: Aren't they also true fires are unpredictable and they can spread and 659 00:54:46.241 --> 00:54:51.171 so if Ray house is on fire isn't it true that the fire might spread to a 660 00:54:51.171 --> 00:54:56.652 different part of the house? MONICA MASTELLONE: It is always true that 661 00:54:56.652 --> 00:54:59.502 fires can potentially been up decals pricket able it is not true in this case 662 00:54:59.502 --> 00:55:08.072 it was established that this fire was unpredictable. JUSTICE HOFFMAN: 663 00:55:08.072 --> 00:55:11.742 Isn't it more true in this case there was evidence of recollection is also racial 664 00:55:11.742 --> 00:55:16.526 when you talked about about generalities that is understandable there are some 665 00:55:16.526 --> 00:55:22.073 specifics that due some particularly relevant to the this issue when there is 666 00:55:22.073 --> 00:55:26.815 evidence of accelerants as there was here it is very - he it is more likely than 667 00:55:26.815 --> 00:55:31.805 isn't it that a fire could spread rapidly and the situation could change quickly. 668 00:55:31.805 --> 00:55:37.667 MONICA MASTELLONE: I think that waivers against exigency as far as the 669 00:55:37.667 --> 00:55:43.115 officer's actions we lying the exigency because yes there is a gas can right 670 00:55:43.115 --> 00:55:47.456 in front of the garage. You meadow - you can see it on the body-worn camera 671 00:55:47.456 --> 00:55:52.357 it is right there. There is a car with burn marks on it because of gasoline. They 672 00:55:52.357 --> 00:55:55.786 never moved the evidence out of the scene there was no exigency that that evidence 673 00:55:55.786 --> 00:56:01.088 was at risk. I would image if there was a writs being in the area the officer 674 00:56:01.088 --> 00:56:08.178 would be more concerned about the gas can can -- ignited than the DVR in the 675 00:56:08.178 --> 00:56:13.466 garage. But I also -- JUSTICE PATTERSON: Counsel they could photograph 676 00:56:13.466 --> 00:56:17.292 the gas can and they did. MONICA MASTELLONE: They can't fingerprint it 677 00:56:17.292 --> 00:56:23.894 in they lose it they can't dust it or death DNA off it those are critical points 678 00:56:23.894 --> 00:56:30.569 of evidence than a simple photograph. We are trying to find out who did it 679 00:56:30.569 --> 00:56:36.567 which going to Justice Hoffman is a critical part of this case A. 680 00:56:36.567 --> 00:56:42.102 Even exigency being the general test aside from that Tyler and Clifford make clear 681 00:56:42.102 --> 00:56:47.635 that it does matter with the object of the search is. So in that case - in 682 00:56:47.635 --> 00:56:51.867 those cases you have firefighters with police assisting performing therefore 683 00:56:51.867 --> 00:56:56.840 official duties extinguish the fire investigation gone the origin and the cause 684 00:56:56.840 --> 00:57:02.173 and as they are doing that if they come across evidence in plain view then they 685 00:57:02.173 --> 00:57:07.247 can sees it and times the firefighters are seizing it and the case that follow 686 00:57:07.247 --> 00:57:14.288 you know the authorities we cite had and sometimes police step into the shoes 687 00:57:14.288 --> 00:57:22.675 of fie fighter the firefighter cross across evidence so they don't feel art -- 688 00:57:22.675 --> 00:57:28.289 THE JUSTICE: Isn't Clifford not Anexsia case and the Supreme Court at page 291 ( 689 00:57:28.289 --> 00:57:46.464 cite had ) that is the Supreme Court very clear holding with the state wants 690 00:57:46.464 --> 00:57:49.836 an exception for all administrative investigation is into the cause and/or 691 00:57:49.836 --> 00:57:54.413 begin of a fire you don't have to think about exigency we are not going to grant 692 00:57:54.413 --> 00:57:58.297 that blanket change has nothing to do with exigency. MONICA MASTELLONE: 693 00:57:58.297 --> 00:58:03.555 Yes that was -- that was the purpose of the addressing the case but nonetheless 694 00:58:03.555 --> 00:58:09.798 they still discussed that regardless of exigency if the object of the search 695 00:58:09.798 --> 00:58:15.124 is to look for evidence of a grimaces opposed to evidence supporting origin and 696 00:58:15.124 --> 00:58:19.452 cause that that is an important distinction because once you have \police 697 00:58:19.452 --> 00:58:23.744 officers\post looking for evidence of a crime a warrant would be required and 698 00:58:23.744 --> 00:58:26.282 hear. THE JUSTICE: Did the that say that the in the context of exigency. 699 00:58:26.282 --> 00:58:32.005 I agree you are making a distinction with your signing for evidence of a crime 700 00:58:32.005 --> 00:58:36.719 always need a warrant if you are search for whether or not the fire how the 701 00:58:36.719 --> 00:58:42.101 fire was started you don't. I don't see that in the cases as a factor related to 702 00:58:42.101 --> 00:58:49.555 exigency. I see that as a factor related to the fire is out when can you keep 703 00:58:49.555 --> 00:58:53.747 serving without Anexsia that is what Clifford state. We are Wheaton \gone\go 704 00:58:53.747 --> 00:58:57.757 about when you keep serving without Anexsia. MONICA MASTELLONE: Yes. Agreed. 705 00:58:57.757 --> 00:59:06.570 And they jostler in police officers conducted search abscess various firefighter 706 00:59:06.570 --> 00:59:10.504 conducted search abscess and here if the Court agrees that we are not dealing 707 00:59:10.504 --> 00:59:15.594 with a cause an origin investigation and we are acknowledge willing that the 708 00:59:15.594 --> 00:59:19.009 only objective of the search was to get evidence of a crime then yes the only 709 00:59:19.009 --> 00:59:24.146 tests applies the test understanding. I would submit the Court appropriate apply 710 00:59:24.146 --> 00:59:28.949 the factors and found that the totality of circumstances demonstrate that the 711 00:59:28.949 --> 00:59:34.775 at time the officer entered the garage and sees the DVR the situation transcript 712 00:59:34.775 --> 00:59:38.868 not present an objective reasonable and warrantless action that the officer 713 00:59:38.868 --> 00:59:43.477 own coming date of birth photoreaction the ons of any perceived recollection that 714 00:59:43.477 --> 00:59:50.687 I on quiz on synovitis all I monitoring the properties the DVR was a fixed 715 00:59:50.687 --> 00:59:54.733 location with know suspect was act today remove or destroy. While the State 716 00:59:54.733 --> 01:00:01.762 suggestion that the under predictable nature of fires the record does not establish 717 01:00:01.762 --> 01:00:06.096 any specific emanant threat to the evidence at the time of the seasure. The says 718 01:00:06.096 --> 01:00:08.230 everything AO that the volume that the of the screen wreath had and ongoing 719 01:00:08.230 --> 01:00:14.921 Cristina cannot supported by the record. Which shows that the DVR was tape 720 01:00:14.921 --> 01:00:21.910 secure and. The DVR was fully observable ( (case cited) ) when we Lee at the 721 01:00:21.910 --> 01:00:27.209 standard of review we know that quivered to the file courts finding the trial Court 722 01:00:27.209 --> 01:00:30.921 had the benefit of getting the feel of the case listening to Sergeant Malone 723 01:00:30.921 --> 01:00:35.329 testimony as well as the other officer from the prior hearing six weeks prior 724 01:00:35.329 --> 01:00:40.566 as well as watching the video as well as looking at the photograph graphic 725 01:00:40.566 --> 01:00:47.428 evidence we know from state V SS that we outhear this Court and appellate courts 726 01:00:47.428 --> 01:00:51.161 defer to the how a trial Court is instruction interpreter prink that evidence 727 01:00:51.161 --> 01:00:56.264 as long as it's not clear I mistaken. I mean in state V SS you had the 728 01:00:56.264 --> 01:01:00.205 same video and the trial Court and at pelt Court disagreeing about whether there 729 01:01:00.205 --> 01:01:06.353 was an indication. Here I think yeah reasonable minds can make disagree about 730 01:01:06.353 --> 01:01:11.732 whether this factors should be interpreted or this conduct cabin interpreter 731 01:01:11.732 --> 01:01:16.337 receipt had this way unless it is clearly mistaken which I. JUSTICE PATTERSON: 732 01:01:16.337 --> 01:01:20.140 It is factual piend goes we are not talking about the application of the standard 733 01:01:20.140 --> 01:01:24.973 to -- to the facts as found by the trial Court. MONICA MASTELLONE: Yes 734 01:01:24.973 --> 01:01:31.680 of course. But that includes how the facts of this case apply to the factors 735 01:01:31.680 --> 01:01:35.487 like how those are interpreted for each factors. CHIEF JUSTICE RABNER: 736 01:01:35.487 --> 01:01:41.035 The critical fact I would suggest you have an ongoing fire feet away from the 737 01:01:41.035 --> 01:01:49.003 DVR in circumstances like that can you really have using your words specific 738 01:01:49.003 --> 01:01:52.791 eminates danger that you can point to way fire TASA blastemas Massachusetts of course 739 01:01:52.791 --> 01:01:59.737 you always can. CHIEF JUSTICE RABNER: Specific meaning how close 740 01:01:59.737 --> 01:02:05.577 how far how much time before it might even gulf an area nearby that specificity is 741 01:02:05.577 --> 01:02:10.330 capable. MONICA MASTELLONE: I think what he you can always have are 742 01:02:10.330 --> 01:02:14.733 facts more specific than what we have here you could have an officer testify 743 01:02:14.733 --> 01:02:20.706 yeah the fire was on the other side of the house but I overheard on the raid glow 744 01:02:20.706 --> 01:02:24.290 was strong wind gusts the was heading north which was the side of the fire. 745 01:02:24.290 --> 01:02:29.463 Or the garage rather. I talked a firefighter and he said yeah the 746 01:02:29.463 --> 01:02:32.854 garage is at some wrist rock you might want to grab what is in there if you want 747 01:02:32.854 --> 01:02:38.145 to. You can have on - firefighters Terry was working on the fire and it was 748 01:02:38.145 --> 01:02:43.442 still ongoing. JUSTICE PATTERSON: You have to have an analysis ongoing 749 01:02:43.442 --> 01:02:50.656 on the scene analysis of the level of risk to the garage in order for an officer 750 01:02:50.656 --> 01:02:55.136 to be reasonable in going and taking the DVR. CHIEF JUSTICE RABNER: As 751 01:02:55.136 --> 01:03:00.061 well as K change of information about that analysis in the movement. 752 01:03:00.061 --> 01:03:03.686 MONICA MASTELLONE: Not always an exchange of information I think the officer being 753 01:03:03.686 --> 01:03:08.257 use the his common sense he can't speculation he can't over generalize if 754 01:03:08.257 --> 01:03:13.238 he does if we say - he if we say -- if we are suggesting that you can never 755 01:03:13.238 --> 01:03:18.366 right it is a per se exigency rule. It is per se. Then essentially what is being 756 01:03:18.366 --> 01:03:25.093 suggested is as long as the house is on fire the cops the police law enforcement 757 01:03:25.093 --> 01:03:28.465 they can go and sees how carte blanche and sees whatever they want. I don't 758 01:03:28.465 --> 01:03:32.872 think that that's what our law would you allow I don't think that is what this 759 01:03:32.872 --> 01:03:36.700 Court allow at some point at Scott point you have to draw the line. Even 760 01:03:36.700 --> 01:03:40.854 if it's the same building even it's the same structure at some point you have to 761 01:03:40.854 --> 01:03:46.005 say yes there is a maybe there is an ongoing fire over here which I don't think 762 01:03:46.005 --> 01:03:50.616 is super clear from the record and you I dough in this that in the response 763 01:03:50.616 --> 01:03:54.116 group I think the trial Court had a lot of questions about the status of that 764 01:03:54.116 --> 01:03:59.937 fire part what is the video tell us. JUSTICE PATTERSON: There is a fire as 765 01:03:59.937 --> 01:04:03.136 the very is that correct we are talking about minutes and seconds that we are 766 01:04:03.136 --> 01:04:09.397 talking about there is an active very visible and rather dangerous looking 767 01:04:09.397 --> 01:04:15.969 fire in that home. Are you really disputing the fire was ongoing. MONICA 768 01:04:15.969 --> 01:04:19.813 MASTELLONE: Not that the suppression efforts were ongoing there is no -- JUSTICE 769 01:04:19.813 --> 01:04:23.237 PATTERSON: Not the suppression there is fire and suppression. It was clearly 770 01:04:23.237 --> 01:04:27.288 suppression the firefighters you will over the place there was an account I have 771 01:04:27.288 --> 01:04:30.059 fire in the house at the time we are talking about. MONICA MASTELLONE: 772 01:04:30.059 --> 01:04:36.705 Just to be clear, the fire that is seen on video on Sergeant Malone -- on Sergeant 773 01:04:36.705 --> 01:04:41.995 Malone body-worn camera when you first A tried that was approximately 30, 40 774 01:04:41.995 --> 01:04:46.614 minutes before the Court that fire is no longer active at the time of the garage 775 01:04:46.614 --> 01:04:51.552 search which why the trial Court find that the exigency had dissipated. At 776 01:04:51.552 --> 01:04:55.508 that time search there is no video of any fire of the the only video that you 777 01:04:55.508 --> 01:04:59.663 have is I think you can see some smoke and this is' why the trial Court says smoke 778 01:04:59.663 --> 01:05:03.527 being mean a lot of things I didn't have any testimony before me to explain what 779 01:05:03.527 --> 01:05:06.928 the smoke was. JUSTICE PATTERSON: The defendant's position that the 780 01:05:06.928 --> 01:05:11.304 fire was extinguished in the entire house. MONICA MASTELLONE: It is not 781 01:05:11.304 --> 01:05:16.997 -- no that is not on your position what our positions is that it's not clear 782 01:05:16.997 --> 01:05:23.294 and that the trial Court recognized this when the trial Court made findings 783 01:05:23.294 --> 01:05:26.477 on the record. JUSTICE PATTERSON: I thought it was aggrieved there was 784 01:05:26.477 --> 01:05:38.560 an ongoing fire at that time of this seizure is that true or not. MONICA 785 01:05:38.560 --> 01:05:42.977 MASTELLONE: All right I don't believe that it's true there is an ongoing fire that 786 01:05:42.977 --> 01:05:48.128 is clearly visible I think it's -- it is unclear in the record but I would agree 787 01:05:48.128 --> 01:05:52.420 with the trial Court's findings that there is active suppression efforts maybe 788 01:05:52.420 --> 01:05:59.242 an active fire but it's unclear. I think that's was highlighted by the Court's 789 01:05:59.242 --> 01:06:04.634 comments at the time in the third transcript the June 4 transcript when he 790 01:06:04.634 --> 01:06:08.698 posed a lot of questions I don't have enough information about this fire I don't 791 01:06:08.698 --> 01:06:16.890 know what the status of the fire was. And you know that problematic for 792 01:06:16.890 --> 01:06:20.483 the trial cart because he could not make a strong finding as to the status of 793 01:06:20.483 --> 01:06:25.111 the fire and whether or not it suppose posed any risk. That is what the record 794 01:06:25.111 --> 01:06:29.473 is missing low the recording missing what the actual status of this main fire 795 01:06:29.473 --> 01:06:37.059 and B sits ongoing did it compose any wrist rock to the garage area. When you watch 796 01:06:37.059 --> 01:06:42.436 the video I think it seems clear I believe the trial Court relied on that video 797 01:06:42.436 --> 01:06:48.684 in addition to all of the other evidence to determine there was exigent 798 01:06:48.684 --> 01:06:53.102 circumstances there was no medicine need to go into the garage take seven and a half 799 01:06:53.102 --> 01:07:02.580 minutes to climb on a ladder go on top of the refrigerator doing through wires and 800 01:07:02.580 --> 01:07:06.998 take a pin's property. CHIEF JUSTICE RABNER: Questions anyone? 801 01:07:06.998 --> 01:07:16.803 Anything you would like to add counsel in closing. MONICA MASTELLONE: The 802 01:07:16.803 --> 01:07:24.047 only thing I had add is just to reiterate that there has to be a limiting 803 01:07:24.047 --> 01:07:30.519 principal at some point. And I think here it is' problematic to suggest that simply 804 01:07:30.519 --> 01:07:36.902 because there is an active fire regardless of what generalization is or speculation 805 01:07:36.902 --> 01:07:40.944 we are making regardless of information we don't have we are going to assume 806 01:07:40.944 --> 01:07:46.379 that the because fires are instruction establishedly predictable we are alloy 807 01:07:46.379 --> 01:07:50.625 police officers to search a home we thief look at tallet of the circumstances the 808 01:07:50.625 --> 01:07:54.821 very unique very specific facts in each and every case. Here the trial Court 809 01:07:54.821 --> 01:08:00.436 did that. Here the pelt division did that deferring to the findings below 810 01:08:00.436 --> 01:08:05.709 I think the conclusion that there was no exigency and this was an on unlawful 811 01:08:05.709 --> 01:08:11.703 warrantless search should be up held. CHIEF JUSTICE RABNER: Thank you. 812 01:08:11.703 --> 01:08:16.263 Mr. Shalloon. ALEXANDER SHALOM: May I please the courts I have a great 813 01:08:16.263 --> 01:08:21.668 of lots meet address the factual questions just pattern I address to you page 62 814 01:08:21.668 --> 01:08:26.719 of third police where the trial cobbed at court good to a colloquy about whether 815 01:08:26.719 --> 01:08:32.412 she ever asked her witness whether the fire was ongoing. The trial Court is 816 01:08:32.412 --> 01:08:36.590 doubtful that he she did and says I wanted to know the answer to that. Because 817 01:08:36.590 --> 01:08:43.218 I think what we have is evidence there was smoke which just whiner apteria waste 818 01:08:43.218 --> 01:08:47.282 had I think the trial Court addressed head on smoke can be from an account 819 01:08:47.282 --> 01:08:52.672 I have fire or from the aftermath *F a fire. And almost was the sound of venting 820 01:08:52.672 --> 01:08:57.513 going on. Which also could be from an account I have fire or from the aftermath 821 01:08:57.513 --> 01:09:01.711 of a fire. That is page 62 of the third transcript. I would like to 822 01:09:01.711 --> 01:09:08.685 start by discussing the firefighting function if the case law that has 823 01:09:08.685 --> 01:09:13.276 sounded the firefight goes function start requesting Tyler because the State today 824 01:09:13.276 --> 01:09:19.654 says let's just rely on Tyler because I think a straight reading of Tyler is 825 01:09:19.654 --> 01:09:25.157 three different ways that this search would fail under Tyler. There is who 826 01:09:25.157 --> 01:09:32.854 there is a why and there is a how. So let's start with the who just advertise 827 01:09:32.854 --> 01:09:39.682 Hoffman you justice Wayne er apartment er in tile they are was both a fire chief 828 01:09:39.682 --> 01:09:43.612 and a police officer. In every single one of these cases Tyler and then the 829 01:09:43.612 --> 01:09:49.572 State Court case that he is dealt with it on page 24 testate supplemental brief 830 01:09:49.572 --> 01:09:54.236 filed miss Miss Mastrangelo loan it talks about fire official conducting search 831 01:09:54.236 --> 01:10:01.600 abscess or post standing in their shoes. There is no case that is allows a police 832 01:10:01.600 --> 01:10:06.899 officers to go where firefighters or authorized to go or have not go we know 833 01:10:06.899 --> 01:10:12.404 that is exactly what happened here. The fires government official to that 834 01:10:12.404 --> 01:10:17.658 you can to the garage in this case was a police officer. The only government 835 01:10:17.658 --> 01:10:22.153 official to walk into the garage was a police officer. That's a major distinction 836 01:10:22.153 --> 01:10:27.905 two Tyler. That is the who. THE JUSTICE: I agree with you that in 837 01:10:27.905 --> 01:10:33.398 Tyler there is a detective and there is the police chief 4 a.m. fire is extinguished 838 01:10:33.398 --> 01:10:40.229 everyone leaves the detective takes the two plastic Connecticut toil they are 839 01:10:40.229 --> 01:10:44.329 were observed they flammable liquid found in the building there was part of 840 01:10:44.329 --> 01:10:48.280 a search the detective takes them. Wherein Tyler do see we there is all about 841 01:10:48.280 --> 01:10:54.144 who takes the containers or because the detective was with the police chief I just 842 01:10:54.144 --> 01:10:57.990 didn't see any of that. ALEXANDER SHALOM: What I am saying if you Lou 843 01:10:57.990 --> 01:11:03.312 at the fact of Tyler the police go no further than the places the fire officials 844 01:11:03.312 --> 01:11:08.111 are allowed to go they are together. We know it is chief C and the detective 845 01:11:08.111 --> 01:11:12.057 they are together. THE JUSTICE: The U.S. Supreme Court didn't discuss 846 01:11:12.057 --> 01:11:18.660 that didn't say the detective did not step any feet ahead of assistants chief C. 847 01:11:18.660 --> 01:11:22.387 ALEXANDER SHALOM: Right. Tyler also is administrative search case the 848 01:11:22.387 --> 01:11:27.557 first question was is this covered by the fourth amendment in the first instance 849 01:11:27.557 --> 01:11:33.620 once they decided that re reached exigency must like they did in Clifford was 850 01:11:33.620 --> 01:11:38.405 not than the the issue they were tasked with deciding they ultimately did. Ever 851 01:11:38.405 --> 01:11:41.607 case thereafter that has looked at it there is no case that I have been able 852 01:11:41.607 --> 01:11:47.350 to identify where the police go beyond this Court would be the first one to 853 01:11:47.350 --> 01:11:53.135 say police regardless of where the fire officials are police can go further. 854 01:11:53.135 --> 01:11:57.842 THE JUSTICE: There a case is there a case that says that that matters? I under 855 01:11:57.842 --> 01:11:59.960 under star saying as a factual circumstance necessary all of these case the 856 01:11:59.960 --> 01:12:05.354 police were next a fire. ALEXANDER SHALOM: I think there are. -- well so 857 01:12:05.354 --> 01:12:09.919 the direct answer to your question is no I can't find one that said they wouldn't 858 01:12:09.919 --> 01:12:14.373 beyond in each of those the typical situation firefighters comes in and sees 859 01:12:14.373 --> 01:12:18.226 some contraband a gun and drugs I don't want to pick up this gun I don't know 860 01:12:18.226 --> 01:12:23.058 how do that let economy my buddy police officer who does and they come in and 861 01:12:23.058 --> 01:12:26.923 what the courts they are standing in the shoes of the fire officials when they do 862 01:12:26.923 --> 01:12:30.675 that. Ordinarily that sound like a law enforcement search that would require 863 01:12:30.675 --> 01:12:35.283 a warrant or exigency or consent or something like that. But they say 864 01:12:35.283 --> 01:12:39.763 these. ATTORNEY: He is there are standing in the shoes. Let me move pass 865 01:12:39.763 --> 01:12:45.037 the who who have half is that because they are standing in the sort for purpose 866 01:12:45.037 --> 01:12:47.822 -FS cause and/or anyone. ALEXANDER SHALOM: Which gets us to the Y. Why 867 01:12:47.822 --> 01:12:53.847 are you going in? And what these cases allow is you firefighters can go into put 868 01:12:53.847 --> 01:13:00.441 out a fire that's pretty up couldn't verse Al statement but the Court in Tyler 869 01:13:00.441 --> 01:13:05.595 said you are too narrow fire feet he is not just to does the flames but also 870 01:13:05.595 --> 01:13:10.059 just Hoffman to figure out cause and/or begin they talked become that as safety 871 01:13:10.059 --> 01:13:16.886 concern you want to know whether it is an electrical fire because that might 872 01:13:16.886 --> 01:13:23.237 rekindling if you don't shut off the electricity. You want ton no what I and or 873 01:13:23.237 --> 01:13:27.497 crock pot. That is the purpose that you Tyler and it's have deemed acceptable. 874 01:13:27.497 --> 01:13:33.531 But very clear once you are trying to go do a criminal investigation the who 875 01:13:33.531 --> 01:13:39.686 that's a different question. And here I will direct you to the second transcript 876 01:13:39.686 --> 01:13:44.964 page 104 we have very clear transcript from the sergeant I thought we would lose 877 01:13:44.964 --> 01:13:52.969 this DVR and our chance to know who lit the fire he is wondering the who. THE 878 01:13:52.969 --> 01:13:56.940 JUSTICE: I thought that the DVR would be damaged where in the people Court case 879 01:13:56.940 --> 01:14:02.452 do we see Florida if you are worried that evidence will be burned by a fire 880 01:14:02.452 --> 01:14:07.453 but the reason that you are interested in that evidence is to perhaps find out 881 01:14:07.453 --> 01:14:15.668 who started the fire you still cannot sees the fret a burning bidding. 882 01:14:15.668 --> 01:14:19.353 ALEXANDER SHALOM: You most currently can. There are fra dig example of exigency 883 01:14:19.353 --> 01:14:24.067 to pro se et cetera or protect Hyman life you can dispense fourth amendment 884 01:14:24.067 --> 01:14:29.916 or article one requirement. I am talk that what I am talk become right now 885 01:14:29.916 --> 01:14:34.761 what Tyler created which said we are going look at something differently when we 886 01:14:34.761 --> 01:14:40.250 are dealing with the firefighting function. That requires the right people for 887 01:14:40.250 --> 01:14:44.226 the rise often this is the east Yen one of all the critical thing is all these 888 01:14:44.226 --> 01:14:49.375 cases say when a firefighter or a post standing in therefore steps is on the 889 01:14:49.375 --> 01:14:54.622 scene and they seek contraband machine plain view they may sees it. What that tells 890 01:14:54.622 --> 01:14:59.913 us the plain view exception to the warrant requirement applies. I direct 891 01:14:59.913 --> 01:15:04.856 for a second to Arizona V Hicks if you remember that is the case where police 892 01:15:04.856 --> 01:15:09.122 are walking through an apartment and see some stereo equipment that they think might 893 01:15:09.122 --> 01:15:14.919 be stolen. So they turn the stereo equipment to read the serial number 894 01:15:14.919 --> 01:15:19.342 which confirms it's stolen and the U.S. Supreme Court says that manipulation 895 01:15:19.342 --> 01:15:24.987 of the stereo the fact that you returned it to read the stereo numbers national 896 01:15:24.987 --> 01:15:28.864 material was not immediately apparent and therefore the plain view exception 897 01:15:28.864 --> 01:15:34.567 does not apply. If you can't turn a piece of stereo equipment you certainly 898 01:15:34.567 --> 01:15:40.343 cannot take a ladder climb on to have a refrigerator and re -- JUSTICE 899 01:15:40.343 --> 01:15:43.327 PATTERSON: They are not relying on plain view. ALEXANDER SHALOM: These 900 01:15:43.327 --> 01:15:48.816 cases the firefighting exception cases require you. They don't say if there 901 01:15:48.816 --> 01:15:53.003 is a fire that you are looking for cause and/or begin you can search the whole 902 01:15:53.003 --> 01:15:58.456 how it says you can sees what you came upon fingerprint plain view. THE JUSTICE: 903 01:15:58.456 --> 01:16:03.011 That is always once the fire is put out. ALEXANDER SHALOM: Let's but I 904 01:16:03.011 --> 01:16:08.981 want to be clear but the talk today was Tyler gets this done for the State 905 01:16:08.981 --> 01:16:14.134 and it is simply does not. JUSTICE PATTERSON: The State also says the 906 01:16:14.134 --> 01:16:17.672 manning factors. ALEXANDER SHALOM: To be chair in the state's moving papers 907 01:16:17.672 --> 01:16:24.790 they said fire the essentially inherently exigent Justice Hoffman when were 908 01:16:24.790 --> 01:16:28.302 you wound what he can separated this from a per se riled a same question. Today 909 01:16:28.302 --> 01:16:32.916 we latter it is the manning factor. JUSTICE PATTERSON: Today and in the 910 01:16:32.916 --> 01:16:37.461 up. Al brief -- in their briefing they talked about the manning factors. 911 01:16:37.461 --> 01:16:43.162 ALEXANDER SHALOM: Let's talk about the question here. Will question is did they 912 01:16:43.162 --> 01:16:48.537 have enough time to get a warranty want to say a couple of things one is the 913 01:16:48.537 --> 01:16:53.577 burden. This is the state's burden and so the absent of evidence the fact 914 01:16:53.577 --> 01:17:00.170 that wire not shower how many feet you subtract tray 60 that is a failure of 915 01:17:00.170 --> 01:17:06.062 production on the state's part that we don't know how long it takes to get a 916 01:17:06.062 --> 01:17:09.526 telephoning warrant at 530 in the who aren't a failure of production on the state's 917 01:17:09.526 --> 01:17:14.310 part. I take the assistant prosecutor she can Ray specific lawyer and Hanusiewicz 918 01:17:14.310 --> 01:17:17.792 owes that is not in the record. The record does not reveal how long it would 919 01:17:17.792 --> 01:17:22.821 take have taken and that can't be held against Mr. Khan that is held against 920 01:17:22.821 --> 01:17:26.577 the State. JUSTICE PATTERSON: That is one factor how about the others. 921 01:17:26.577 --> 01:17:31.226 ALEXANDER SHALOM: Sure. It is certainly true that as flames are 922 01:17:31.226 --> 01:17:34.921 licking the wall you don't Meade today a fire miter mi need to be worried about 923 01:17:34.921 --> 01:17:39.418 what is on the other side of the wall. But that is not the case here. JUSTICE 924 01:17:39.418 --> 01:17:43.890 PATTERSON: Let's start with one the seriousness of the crime the is that. 925 01:17:43.890 --> 01:17:46.571 ALEXANDER SHALOM: Shall no, sir not four did he bathe this is not on you - don't 926 01:17:46.571 --> 01:17:52.640 think everyone counted Florida. JUSTICE PATTERSON: Two the urgency of 927 01:17:52.640 --> 01:17:54.838 the situation. ALEXANDER SHALOM: There were factual finding made by 928 01:17:54.838 --> 01:18:00.872 the trial Judge that is entitled to deferens that they said some of the right 929 01:18:00.872 --> 01:18:08.669 things like this was really urgent but their actions be lied that. And obtaining 930 01:18:08.669 --> 01:18:12.656 we know they are about # on officer on the scene and they were standing around. 931 01:18:12.656 --> 01:18:23.975 There were officer standing around that is two page 179. JUSTICE PIERRE-LOUIS: 932 01:18:23.975 --> 01:18:28.935 The did find the officer credited able. ALEXANDER SHALOM: That is not done 933 01:18:28.935 --> 01:18:31.420 detective railway the officer were redoable that does not mean they followed 934 01:18:31.420 --> 01:18:34.925 the cons fusion that is not a finding that he made they said they were credible 935 01:18:34.925 --> 01:18:41.072 they might have subjectively believed they needed to take quick action but 936 01:18:41.072 --> 01:18:45.183 the tests whether they were objectively reasonable in doing so. What the trial 937 01:18:45.183 --> 01:18:50.259 is said essentially is when you have got firefighters standing around before you 938 01:18:50.259 --> 01:18:54.858 are going to make predictions what is happening with the fire -- again when 939 01:18:54.858 --> 01:18:58.808 it's not clear because we don't know whether there was an account I have fire 940 01:18:58.808 --> 01:19:04.108 or whether it was largely out we don't know whether the gas line had been cut 941 01:19:04.108 --> 01:19:09.483 or not. With the trial Court find is asking a fire feet er it does have to be the 942 01:19:09.483 --> 01:19:15.196 senior person on the scene ask anybody. You don't need to quantify the percentage 943 01:19:15.196 --> 01:19:20.696 chance if they say I am worried about it we have a very different case. 944 01:19:20.696 --> 01:19:26.805 JUSTICE PATTERSON: With all experience and for the Amanda. Cases Mr. Shalom is 945 01:19:26.805 --> 01:19:32.557 the demeanor calm demeanor various screaming and frantic demeanor a relevant 946 01:19:32.557 --> 01:19:37.072 considerations I ask you to Judge general tell us whether we should be looking 947 01:19:37.072 --> 01:19:41.703 at video and seeing or are people screaming are people have they lost control 948 01:19:41.703 --> 01:19:46.843 of the situation or are they calmly going and the police business is that relevant. 949 01:19:46.843 --> 01:19:50.935 ALEXANDER SHALOM: I think it is it relevant which is not dispositive to 950 01:19:50.935 --> 01:19:55.128 say two things. One we specific the police officers are not going to be frantic 951 01:19:55.128 --> 01:19:58.867 that they are trained profession apes and they are going to kind of take thereof 952 01:19:58.867 --> 01:20:02.765 job with seriously. I don't think we hold it against police officers if they 953 01:20:02.765 --> 01:20:05.825 are not yelling abdomen screaming thousand sometimes they are yelling and screaming 954 01:20:05.825 --> 01:20:11.332 might be a fact that the State would introduce to show the urgency of the 955 01:20:11.332 --> 01:20:16.711 situation. But I pay the of the avert. JUSTICE PATTERSON: It seems 956 01:20:16.711 --> 01:20:21.276 too me the trial Court did hold it against them not personally made a point 957 01:20:21.276 --> 01:20:24.992 they are well-intentioned and credible that was a factor that are affected the 958 01:20:24.992 --> 01:20:28.604 Court's. ALEXANDER SHALOM: I don't think it was the calm demeanor I think 959 01:20:28.604 --> 01:20:33.009 it was the fact they were goofing around. They were laughing at the company 960 01:20:33.009 --> 01:20:37.946 ego who fell off a ladder that is not the same as calm demeanor. Calm demeanor 961 01:20:37.946 --> 01:20:42.042 might \gone\go something that you get from training and you get from experience 962 01:20:42.042 --> 01:20:46.965 but goofing around suggestion you go not as worried about flames about to over 963 01:20:46.965 --> 01:20:57.070 take the building. I know have been up here a we will if I can have 30 964 01:20:57.070 --> 01:21:00.627 more seconds on the Attorney General argument on consent. Those arguments if 965 01:21:00.627 --> 01:21:04.567 the Attorney General were a party in this case they are two reasons why those would 966 01:21:04.567 --> 01:21:10.117 be inappropriate. Because either they weren't advanced at the trial Court 967 01:21:10.117 --> 01:21:13.275 so they can't be raised for the first time on peel or they were advanced and 968 01:21:13.275 --> 01:21:19.227 then abandoned they would be inappropriate if a part party were Vince gone 969 01:21:19.227 --> 01:21:23.019 it. CHIEF JUSTICE RABNER: Seems to be the A Mecca who are the ones what 970 01:21:23.019 --> 01:21:25.452 are most focus on this argument. ALEXANDER SHALOM: I am asking the Court 971 01:21:25.452 --> 01:21:31.158 not to consider it because I love bringing up new arguments the Court is quick 972 01:21:31.158 --> 01:21:36.509 to tell me that is not my role what is I am here as a amicus I dent have the 973 01:21:36.509 --> 01:21:40.445 seem sweed the county prosecutor and taking over the cause which the American 974 01:21:40.445 --> 01:21:44.185 general asked and asked to take on these issues. The last thing I will 975 01:21:44.185 --> 01:21:50.107 say I understand the allegations in this case are incredible serious. But we 976 01:21:50.107 --> 01:21:56.407 have long standing principals of search and seizures including differens to 977 01:21:56.407 --> 01:22:01.545 trial Court factual findings even in light of the videotape and just you are last 978 01:22:01.545 --> 01:22:05.420 toll request his Massachusetts loan Witness perusing there was an active fire 979 01:22:05.420 --> 01:22:13.316 you saw in the some worried and pictures of flames really illustrate why we 980 01:22:13.316 --> 01:22:16.635 defer to the trial Court factual finding they are the ones who tabbed flew 981 01:22:16.635 --> 01:22:20.383 the whole hearing they understand the chronology and they are finding -- obviously 982 01:22:20.383 --> 01:22:25.529 the courts find that goes this was not exigency are legal determinations is 983 01:22:25.529 --> 01:22:31.228 but each of components that under GERD that legal determination is factual 984 01:22:31.228 --> 01:22:36.688 findings that are determined -- that are entitled to deferens -- THE JUSTICE: 985 01:22:36.688 --> 01:22:43.396 It came up a couple of times that you manning fact tort factual finding we 986 01:22:43.396 --> 01:22:46.898 have Toiboid by however the trial Court each one. ALEXANDER SHALOM: No, 987 01:22:46.898 --> 01:22:52.675 I don't think I would go that far just advertise. THE JUSTICE: The threat 988 01:22:52.675 --> 01:22:55.418 that the evidence would be destroyed that is a manning factor but it seemed 989 01:22:55.418 --> 01:22:59.944 like you are also argument that it is factual took to which we must defer. 990 01:22:59.944 --> 01:23:05.250 ALEXANDER SHALOM: No, I don't think you have to defer to that. That is strikes 991 01:23:05.250 --> 01:23:07.951 me as hybrid right component legal -- factual -- JUSTICE PATTERSON: It 992 01:23:07.951 --> 01:23:14.736 is a hybrid it is an application for a legal standard to facts then are we supposed 993 01:23:14.736 --> 01:23:20.663 today defer to the trial Court in saying that you know for example the let's 994 01:23:20.663 --> 01:23:26.163 say hypothetically let's say the trial Court said the crime wasn't serious I know 995 01:23:26.163 --> 01:23:30.113 everybody agrees it was. ALEXANDER SHALOM: Correct not entitled to 996 01:23:30.113 --> 01:23:35.750 deferens. However, when the trial Court find that the State failed to produce evidence 997 01:23:35.750 --> 01:23:41.352 that the fire was ongoing, that is a factual finding entitled to deferens when 998 01:23:41.352 --> 01:23:49.259 he find that the officer behavior we lied therefore pro if he is had concern 999 01:23:49.259 --> 01:23:54.281 about the surgeon that is a factual. JUSTICE HOFFMAN: Counsel are you 1000 01:23:54.281 --> 01:23:58.797 saying that the manning factors are applying facts to law or are you saying 1001 01:23:58.797 --> 01:24:03.646 the manning factor are answering factual questions. ALEXANDER SHALOM: I 1002 01:24:03.646 --> 01:24:08.362 think it's the former. I would have to go through each of seven certainly 1003 01:24:08.362 --> 01:24:13.948 when you ask was it a serious crime that is facts to law. JUSTICE HOFFMAN: 1004 01:24:13.948 --> 01:24:19.202 When you ask how much time would it take to secure a warrant. ALEXANDER SHALOM: 1005 01:24:19.202 --> 01:24:22.983 No I think that is a factual determination What. JUSTICE HOFFMAN: So the 1006 01:24:22.983 --> 01:24:26.482 answer would be both. ALEXANDER SHALOM: Yeah thank you. Thanks for 1007 01:24:26.482 --> 01:24:31.189 reminding me. Unless the Court has any Curt questions we due to affirm. 1008 01:24:31.189 --> 01:24:36.453 CHIEF JUSTICE RABNER: Ms. - they are A brief you address what the whether 1009 01:24:36.453 --> 01:24:42.631 the firearm was ongoing hat the time of the surgeon railway. MONICA DO 1010 01:24:42.631 --> 01:24:45.280 OUTEIRO: That is the first thing I wanted to bring in the very brief rebuttal 1011 01:24:45.280 --> 01:24:51.532 state 25 page 14 of lower Court's finding the lower count find the main fire in 1012 01:24:51.532 --> 01:24:55.133 the attic in the sought east corn effort rest Kent remains active that finding 1013 01:24:55.133 --> 01:24:59.563 is sports had by the testimony from Sergeant Malone that can be located pages 1014 01:24:59.563 --> 01:25:10.793 104, 120, 12 #, 184 and 198. Sor. THE JUSTICE: Can you say those again 1015 01:25:10.793 --> 01:25:19.578 months months *F. MONICA DO OUTEIRO: 104, 1894, 12 # and 198. 1016 01:25:19.578 --> 01:25:25.195 Only other thing I wanted to address is just this argument of that Tyler somehow 1017 01:25:25.195 --> 01:25:29.552 please to who and not the tallet of the circumstances. In Tyler there is 1018 01:25:29.552 --> 01:25:33.595 a second search or second description search that is suppress that had occurs 1019 01:25:33.595 --> 01:25:39.732 20 days after the fire was suppress had that that care that case was served by a 1020 01:25:39.732 --> 01:25:44.676 police officer only it was a state police fire cars son investigate or and 1021 01:25:44.676 --> 01:25:50.263 Tyler summary judgment priest he is that not because the status of the investigation 1022 01:25:50.263 --> 01:25:55.876 or is a police officer but because the path ache of time cliff around again 1023 01:25:55.876 --> 01:26:03.076 while it's not a exigency case at page 294 addresses this -- this idea of exigency 1024 01:26:03.076 --> 01:26:08.373 when he the reaffirms they are not going to apply a per se test they say exigency 1025 01:26:08.373 --> 01:26:14.712 and they only difficult verge how they talk about fire investigators and police 1026 01:26:14.712 --> 01:26:18.542 officer in that on - they say a fire official investigate \gone\go cause 1027 01:26:18.542 --> 01:26:22.944 and/or begin only needs administrator warrant where a police officers investigate 1028 01:26:22.944 --> 01:26:28.638 \gone\go the arson needs a search warrant that is the own time that it divulge he 1029 01:26:28.638 --> 01:26:33.775 is. JUSTICE PATTERSON: How do you six manning facts that are the 1030 01:26:33.775 --> 01:26:42.049 general exigency test imposed by this Court and the Tyler and Clifford causes 1031 01:26:42.049 --> 01:26:49.838 -- analysis which appears to derive from a different line of reasoning in cases. 1032 01:26:49.838 --> 01:26:53.446 MONICA DO OUTEIRO: I think they are easily resolved because they this 1033 01:26:53.446 --> 01:26:57.313 Court looked to Riley and to other cases of United States Supreme Court look 1034 01:26:57.313 --> 01:27:05.294 to sobering and miss our - V Monmouth lien I. What exigency should be in a 1035 01:27:05.294 --> 01:27:09.690 specific fact kind \gone\go. CHIEF JUSTICE RABNER: Dots not -- there is 1036 01:27:09.690 --> 01:27:15.947 nothing about miss our - that would dispute this Court's finding. JUSTICE 1037 01:27:15.947 --> 01:27:24.191 PATTERSON: Is the relevancy of Tyler and the urgency of the situation faced by 1038 01:27:24.191 --> 01:27:26.832 the officer. MONICA DO OUTEIRO: I think it is most relevant to that factor 1039 01:27:26.832 --> 01:27:33.456 correct Pennsylvania. JUSTICE HOFFMAN: I want to speak to two calls Yaz 1040 01:27:33.456 --> 01:27:39.467 that were not made because it bothering me. One one one call is to one of 1041 01:27:39.467 --> 01:27:46.187 the -- colleagues find out how long it would take to get a warrant and one call is 1042 01:27:46.187 --> 01:27:50.481 to one of the fire officials to say we are thinking about going into the garage 1043 01:27:50.481 --> 01:27:57.206 find out if that's safe. MONICA DO OUTEIRO: First, there is not testimony 1044 01:27:57.206 --> 01:28:02.380 about how long it would take toe a get a warrant because there is testimony from 1045 01:28:02.380 --> 01:28:08.527 Sergeant Malone that he believed based on his training experience being a police 1046 01:28:08.527 --> 01:28:12.100 officer in Monmouth that he didn't may have time to get a warn than the one 1047 01:28:12.100 --> 01:28:16.188 - JUSTICE HOFFMAN: You don't know who is awake it is a little unpredictable 1048 01:28:16.188 --> 01:28:22.566 time, right. MONICA DO OUTEIRO: Yes I would agree he believes there is 1049 01:28:22.566 --> 01:28:26.357 no I am not trying to supplement the record bias \gone\go your Honor question 1050 01:28:26.357 --> 01:28:32.874 we know from state V which the from the pilot prom how long telephonic warrants 1051 01:28:32.874 --> 01:28:36.638 take and nothing has changed that they do take time they take as the Judge hear 1052 01:28:36.638 --> 01:28:40.292 found the trial Court find it would take more than the seven and a half minutes 1053 01:28:40.292 --> 01:28:47.430 it would take to get a warrant. I understand that your Honor when Lee at 1054 01:28:47.430 --> 01:28:52.444 this fact pattern from you know the courtroom there is four attorneys and 1055 01:28:52.444 --> 01:28:57.048 seven smart he is attorneys in the state arguing on it we can think about 1056 01:28:57.048 --> 01:29:01.923 different things that the officer can do we can think do the officer have contacted 1057 01:29:01.923 --> 01:29:06.048 a fire feet er to ask about their safety and I think the reality is that that is 1058 01:29:06.048 --> 01:29:13.171 exactly what our precedent and exigent circumstances. When we look at the 1059 01:29:13.171 --> 01:29:17.477 we Lee wrath officer transcript not what the they they could have determined 1060 01:29:17.477 --> 01:29:19.813 when determining whether or not that conduct was reasonable. Pennsylvania 1061 01:29:19.813 --> 01:29:24.145 of. Ultimately I think here what are we dough from. PLF ATTORNEY: 1062 01:29:24.145 --> 01:29:30.036 Sergeant Maria credible testimony he believes that the fire mitigation changed 1063 01:29:30.036 --> 01:29:35.283 the calculation is where as when he first arrived he he is telling them I don't 1064 01:29:35.283 --> 01:29:40.015 know want to show it is not same I think he specifically tells them you he - 1065 01:29:40.015 --> 01:29:44.959 we are in the equipped to handle this type of fire and once he sees the fire 1066 01:29:44.959 --> 01:29:51.450 trucks on scene he can hear the fire on - the fire tools can power tools being 1067 01:29:51.450 --> 01:29:57.373 used he can see the hoses going he is taking a mitigating risk which is what we 1068 01:29:57.373 --> 01:30:02.666 ask post toss do all time I nomarch has been made boot demeanor of these police 1069 01:30:02.666 --> 01:30:08.373 urgent circumstances is not excited utterance we ask that the police 1070 01:30:08.373 --> 01:30:13.118 officers to ask like the they did take act calm and take risk it is not mitigating 1071 01:30:13.118 --> 01:30:18.152 those risk at that the point Sergeant Malone made the calculation whether he 1072 01:30:18.152 --> 01:30:23.672 knew exactly by talking to a fire official who is busy engage being in - condition 1073 01:30:23.672 --> 01:30:28.960 duct he has not been able to get in touch with he knows it is tape sor them 1074 01:30:28.960 --> 01:30:33.541 to go is that they are he is willing to take that risk because we ask police 1075 01:30:33.541 --> 01:30:37.820 officers to take those risks all the time. Again it is mitigated risks not know 1076 01:30:37.820 --> 01:30:42.051 risks ultimately we are extinguished event circumstances we are talk about 1077 01:30:42.051 --> 01:30:47.627 the possible and probability of evidence being destroyed not seriousness towed 1078 01:30:47.627 --> 01:30:51.513 that we can a.m. have now standing here and debating it. CHIEF JUSTICE RABNER: 1079 01:30:51.513 --> 01:30:57.034 Mr. - they are he can you can you telltales a taught last been jury selection 1080 01:30:57.034 --> 01:31:01.448 begins. MONICA DO OUTEIRO: The trial attorneys are so they correct me 1081 01:31:01.448 --> 01:31:06.496 Jana five is the currently rescheduled date for trial selection. CHIEF JUSTICE 1082 01:31:06.496 --> 01:31:09.496 RABNER: Enthusiastic enthusiastic for the helpful argument.