[00:00:40] Speaker 02:
Please the Court, my name is Stephanie Adraktas and I represent the petitioner, Quaid Cornell.

[00:00:45] Speaker 02:
Cornell's convictions should be vacated because his trial counsel was prejudicially ineffective in litigating the motion to suppress evidence that was unlawfully seized under the Fourth Amendment.

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Trial counsel admitted in his post-trial declaration that his representation was professionally unreasonable.

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unreasonably conceded that a handgun magazine inside a parked car, a car that Cornell shared with his mother, was properly seized because it was in plain view.

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However, an object can only be seized under the plain view exception to the warrant requirement if the officer is lawfully observing the object in the first place and searching that area and if the item itself

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somewhat different from the decision of the trial court on this.

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Both of them, however, found that the Plainview exception essentially didn't matter because they thought that this was a reasonable search of the interior of the car as a teary pat down, which is somewhat common.

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Because after watching somebody drop a gun, right, when people disperse as soon as they saw the police car arrive.

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If the court examines carefully the Court of Appeal opinion on that point, the court

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where the police officer arrives and he saw another person, Sloan, trying to get away.

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The officer then pointed his gun at Sloan.

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Sloan dropped a gun on the ground and the court of appeals said, well under those circumstances we think it was reasonable to pat search the people that were present.

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He saw the woman kind of scrunching down in the car to avoid being seen by the officer and this is all occurring within what a couple of hours

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There's two issues.

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One is Kirk's behavior.

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The court just referred to him as Kirk's crouching.

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And the second being the homicides.

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This incident had nothing to do with the homicides.

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There is nothing in the record that says that all they had was an anonymous call that people were congregating at this party and possibly with weapons.

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That was the only information.

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I don't think it is.

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Can we go through this because I think this is really important and I think that's what we're all getting at.

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I was trying to think out if they made eye contact.

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I think Officer Olvera testified or said, I believe he observed me.

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And Officer Olvera is in uniform, right?

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Apparently in a marked car, as far as I could tell.

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And everybody scatters.

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And they react.

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That's the third thing, I think.

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They react.

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The folks react to him.

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And then I think he sees maybe it's in that order.

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it was a weapon yet, but it's certainly a suspicious activity.

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Maybe weapons, maybe drugs, but certainly a suspicious action, it seems.

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And Danny sees the woman scrunching down on him.

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I think all those things had happened before the plain view of the magazine, but please correct me if I'm wrong.

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officer said that he saw what he claimed was a person quote acting as a lookout and we would challenge that characterization because acting as a lookout there was no basis for the essentially claim that reading this person's mind there was a person standing on the street not not in the same area that he he testified that he had to continue driving in order to reach the area where these people

[00:05:19] Speaker 00:
make a common sense observation that this guy was acting like a lookout, particularly where everybody scatters as soon as they see the police car.

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But they did not scatter when they saw the police car.

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What the officer said was, I saw the man, I continued driving.

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We don't even know how closely connected this man was to the group.

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He continued.

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Yes.

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So he describes that as acting as a lookout.

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That was his assumption, but there was absolutely no corroboration.

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That was just what he assumed was happening.

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And the report is a disturbance with firearms?

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There was no report.

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It wasn't a disturbance.

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They said there was a group of people.

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This was a birthday party.

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It was a group of people standing outside at a birthday party.

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There wasn't any report of a disturbance.

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Wasn't there concern in the 9-1-1 call that there may have been weapons?

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They said possibly weapons.

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actually did see a weapon.

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Okay, so you I interrupted you and I want to make sure.

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acting as a lookout but you started to say he kept driving and I want to make sure I understand the importance of that.

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He said that he kept driving it was not clear at all that this person who was supposedly acting as a lookout what their connection was to the scene and actually I don't believe it could have been Sloan because Sloan was at the party when the officer pulls up he's at the party they're all at the party they're all just standing there they don't scatter they're at a birthday party and they're standing outside

[00:07:14] Speaker 02:
There's my understanding is they're standing on the street and the party is across the street He pulls up and the suspicious thing that he sees is Sloan Sloan is the person who ultimately testified for the prosecution of trial Sloan tries to Sloan tries to crouch and then officer over a drug

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and that he's the one who is behaving suspiciously.

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Clearly, he is suspicious.

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Him alone.

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The court of appeal unreasonably determined and applied Michigan versus Long.

[00:08:03] Speaker 00:
Yes.

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There were several unreasonable determinations of the fact.

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One, beginning with, they said that Sloan had ditched his gun underneath my client's mother's Nissan.

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That didn't happen.

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There was no testimony to that point.

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It was somehow connecting my client.

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connected my client's car to what Sloan was doing but it just wasn't true.

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There was no testimony that that's what happened.

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There are other problems, factually.

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But the Court of Appeals said, well, you know, they'd found multiple guns, and so they had a good justification for searching the interior of the car, even without consent or other rationales.

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But there was no testimony as to finding the second gun.

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The second gun, we don't even know based on the record when that was discovered.

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It was discovered in the other car that was parked.

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How was it discovered in the other car?

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Is your point that it was temporarily?

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We don't know if that had happened already.

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Because the reasonableness of the search of my client's car has to be evaluated based on what the officer knew when he searched the car.

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I know.

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That's why we're doing this exercise.

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So if you could just take a breath and slow down a little bit, because this is important and I want to make sure we got it.

[00:09:29] Speaker 03:
And I think your point about, in response to Judge Tomlin's question, is that as of the time of this plain view, that's what we're looking at, you think that the California last reason decision may be wrong factually because there isn't anything

[00:10:11] Speaker 03:
the top of your, to mix a metaphor, but anyway, the top of the decision tree really has to be the detention of your client.

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And so I'm trying to figure out why you think it was unreasonable for the California court to decide that the officer had what he needed to detain your client.

[00:10:27] Speaker 02:
So when the court of appeals said it was reasonable for the officer to detain and pat down Mr. Cornell, his physical body outside the car, that's a reasonable

[00:10:44] Speaker 02:
with a gun, they're saying they're patting his body down as he's standing outside the car.

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The officer is concerned about his own safety.

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They find nothing.

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He doesn't have anything on his person.

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The real question which they skipped, they skipped in the decision was, was it justified for them to order Ms.

[00:11:03] Speaker 02:
Kirk to get out of the car?

[00:11:04] Speaker 02:
It was not the pat down.

[00:11:05] Speaker 03:
You're good with that?

[00:11:06] Speaker 03:
The pat down of his body?

[00:11:08] Speaker 03:
Okay, wait a minute.

[00:11:09] Speaker 03:
And the officer also said, wait a minute, don't walk away.

[00:11:11] Speaker 03:
You're okay with that?

[00:11:13] Speaker 03:
The pat down of his body was objectionable.

[00:11:16] Speaker 03:
That's a yes or no.

[00:11:17] Speaker 03:
Because the officer did a couple of things.

[00:11:18] Speaker 03:
One was I think he stopped your client from walking away and I don't hear you objecting to that.

[00:11:22] Speaker 03:
Then there's the pat down and you think that was okay.

[00:11:25] Speaker 03:
You should stop me if I'm wrong.

[00:11:27] Speaker 02:
Your Honor, the detention of Mr. Cornell, we do dispute.

[00:11:41] Speaker 02:
to make was when the Court of Appeal said that it was a reasonable decision on the part of the officer to pat people down on the scene when he got there.

[00:11:50] Speaker 02:
That doesn't excuse the entry into Mr. Cornell's PAR and the search of the interior media.

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Yeah, that's later in the sequence of events.

[00:11:59] Speaker 03:
That's later on there.

[00:12:01] Speaker 00:
But if you're making the same argument

[00:12:26] Speaker 00:
that the warrantless search of the center console compartment of Cornell's car did not violate the Fourth Amendment.

[00:12:32] Speaker 00:
And then they go on to say that the argument that you're making misses the point, the focus is on the totality of the circumstances, not on each individual circumstance as if it stood in isolation.

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And here, when we consider all

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We have no

[00:13:23] Speaker 03:
there's evidence that they had already found the other gun.

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Yeah, I get that.

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We understand that.

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But.

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The problem with the analysis, the analysis is that trial counsel never actually litigated the Terry issue, right?

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When, when they're arguing about plain view in this case, what they're trying to say is what was argued below and I argued here, is that trial counsel's assessment that this item was in plain view was just flatly wrong.

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And so,

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It was legally wrong that it could have been properly seized under the Plainview exception because the officer wasn't legally looking around inside the car.

[00:14:07] Speaker 02:
He couldn't legally intrude inside the car.

[00:14:09] Speaker 03:
Well, he asked her to step out.

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She scrunched him down.

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with asking her to step out of the car.

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It was about 9.30 p.m.

[00:14:35] Speaker 02:
Really?

[00:14:36] Speaker 02:
When the the arrest at the roadside or the stop at the roadside that the was about 9.30 is my understanding your honor.

[00:14:44] Speaker 03:
I thought nine okay that I'm mistaken so it's evening.

[00:14:48] Speaker 02:
At this time of year was it dark?

[00:14:50] Speaker 02:
I'm sure it was probably dark by that by that time.

[00:14:52] Speaker 03:
So that's helpful but I appreciate the correction but go on if you could I want to make sure I understand your why you think it

[00:15:04] Speaker 03:
Kirk's to step out of the car.

[00:15:07] Speaker 02:
Under Pennsylvania versus Mims, an officer can ask a person to step outside the vehicle if there is a reasonable suspicion individualized as to that person and the vehicle that there has been a crime committed and here the car is legally parked on the roadside.

[00:15:25] Speaker 02:
Ms.

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Kirk hadn't

[00:15:32] Speaker 02:
does not hold that a person can be asked to step out of the car solely for officer safety reasons.

[00:15:39] Speaker 00:
It says that there has to be- Well, Terry, Terry, after reaching inside the person's long coat in order to discover the sawed-off shotgun that was slung from his shoulder.

[00:15:50] Speaker 00:
I'm sorry.

[00:15:51] Speaker 00:
Terry.

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But that's a completely different set of facts.

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It didn't involve- I'm sure that it did.

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It didn't involve a car, and that's why MIMS is so

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that by making her get out and opening the door and leaving the door open, that's what gave him the opportunity to peer inside and see what was inside the car.

[00:16:24] Speaker 02:
It gave him the opportunity to search it.

[00:16:27] Speaker 03:
I appreciate that and understand the sequence, but it seems to me even after the 911 call concerned about

[00:16:43] Speaker 03:
the officer asking this, um, Kurtz, to get out of the car, and she was, you know, behaving suspiciously, but she slunched or slunching down, trying to hide, is the way he described it.

[00:16:52] Speaker 03:
And that's your position that he didn't, it was unreasonable for the California

[00:17:12] Speaker 02:
large group of people, this is a birthday party, that you cannot, under clearly established authority, attribute the actions of one person that are arguably suspicious to every single person in the area.

[00:17:26] Speaker 00:
I don't remember the date, but we have a decision from Bocava versus the City of Los Angeles that says that it's discretionary with the officers, whether they order

[00:17:39] Speaker 00:
in the car depending on officer safety concern.

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Why does that not apply here?

[00:17:45] Speaker 02:
We don't argue with that.

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What we argue with is that Ms.

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Kirk had done anything that was suggestive that she was committing a crime, and that's what MIMS requires.

[00:17:55] Speaker 00:
But it doesn't matter if all the other circumstances point to the fact that there may be weapons present that could be used against the officers while they're trying to figure out what's going on here.

[00:18:08] Speaker 02:
Your Honor, there isn't a case that says that only under Terry, which Terry even itself requires reasonable individualized suspicion, not suspicion that in that area there might be something threatening, it requires

[00:18:32] Speaker 02:
that Ms.

[00:18:32] Speaker 02:
Kirk was committing a crime, that she herself was doing anything that was right.

[00:18:37] Speaker 03:
And you don't think her hiding is enough?

[00:18:40] Speaker 03:
That's why you're really telling us, and I want to make sure I understand your argument.

[00:18:44] Speaker 02:
Your Honor, I would, I would dispute the idea that a person could hide in the position that she was in.

[00:18:49] Speaker 02:
She's sitting in an Altima sedan.

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She's in the front passenger seat.

[00:18:54] Speaker 02:
How in the world could anyone hide?

[00:18:56] Speaker 02:
It's sort of the kind of- By deflating backstations.

[00:18:59] Speaker 02:
By saying that you could hide.

[00:19:04] Speaker 02:
Right, from what we know, she's an adult, and it just doesn't make sense that a person- All right, I'm going to stop you because you're three and a half minutes from your- Well, no, we've taken you over.

[00:19:13] Speaker 03:
Please plan out two minutes when you come back with more time on the clock.

[00:19:16] Speaker 03:
Thank you for your patience with all our questions.

[00:19:19] Speaker 03:
And by the way, you're right, it was 9.30.

[00:19:21] Speaker 03:
I just, I know you knew that.

[00:19:23] Speaker 03:
But, and I appreciate the corruption.

[00:19:29] Speaker 01:
The State Court recently applied Strickland in

[00:20:00] Speaker 03:
We fully appreciate the layers of review here, and we are reminded of that frequently.

[00:20:08] Speaker 03:
But can you go to the Patterson case, please, and tell me why you think defense counsel was reasonable in not arguing Patterson?

[00:20:22] Speaker 03:
Six – you bet.

[00:20:23] Speaker 03:
It's a Sixth Circuit case, and the fact pattern – it's an out-of-circuit authority, no question.

[00:20:28] Speaker 03:
The fact pattern is strikingly similar.

[00:20:45] Speaker 01:
or drove where the people were in relation to others and what was going on, and that is a failing of petitioners in pleading prejudice for a Strickland claim.

[00:21:00] Speaker 01:
None of that was litigated, and indeed in the California Court of Appeal, beginning at the beginning of the decision tree, the initial detention,

[00:21:17] Speaker 01:
initial detention was forfeited, barred by Stone.

[00:21:22] Speaker 01:
And here, even if we throw out the California Court of Appeal opinion, I would note that the declaration from counsel doesn't touch on his decision to not challenge the initial detention at all.

[00:21:32] Speaker 01:
So the absence of evidence can overcome the presumption of competence.

[00:21:37] Speaker 01:
In this case, it seems clear that he believed his best argument was to challenge the search of the vehicle where the gun was found.

[00:21:51] Speaker 03:
was lawfully positioned and saw the magazine, right, asked her to step out, saw the magazine.

[00:21:56] Speaker 03:
Then from that point on, can you explain the justification for the search of the magazine?

[00:22:21] Speaker 01:
even if you didn't open the door and ask the woman to get out.

[00:22:49] Speaker 03:
the justification for searching the rest of the car?

[00:22:52] Speaker 01:
Well, first of all, I would note, again, that it's not clear that he would have standing to assert a Fourth Amendment right on her behalf, challenging her exiting of the vehicle.

[00:23:04] Speaker 03:
I'm not questioning her exiting.

[00:23:07] Speaker 01:
Right.

[00:23:07] Speaker 01:
So your question was, once she's out of the vehicle, why was the officer justified in searching the vehicle?

[00:23:14] Speaker 03:
I'm getting everything up until seizing the magazine, right?

[00:23:17] Speaker 03:
Up until seizing the magazine.

[00:23:27] Speaker 03:
So nobody can reach anything in the vehicle.

[00:23:29] Speaker 03:
And so what was your theory?

[00:23:31] Speaker 03:
What was the state's theory about why the rest of that search was permissible?

[00:23:35] Speaker 01:
Because the officer needed to, at some point, release people in order to release people back into the car.

[00:24:01] Speaker 03:
gun in the other car had already been located.

[00:24:03] Speaker 03:
Is there?

[00:24:04] Speaker 01:
I believe the officer testified that I searched the impala, found the handgun, and then I turned my attention to the red Nissan.

[00:24:10] Speaker 03:
Do you have an ER site opposing counsel?

[00:24:12] Speaker 03:
You heard her take issue with that.

[00:24:14] Speaker 03:
I'm thinking she thinks that's not in the record.

[00:24:16] Speaker 01:
I believe it's similar, right around 233.

[00:24:19] Speaker 01:
OK.

[00:24:19] Speaker 01:
I'll check.

[00:24:21] Speaker 01:
Thank you.

[00:24:23] Speaker 01:
And again, Your Honor, I'm sorry.

[00:24:26] Speaker 01:
I know I didn't answer the court's question.

[00:24:28] Speaker 01:
I'm looking for this sixth circuit.

[00:24:59] Speaker 01:
We know that that didn't result in any sort of prejudice.

[00:25:04] Speaker 01:
Number one, the officer said I could see the handgun through the window.

[00:25:08] Speaker 01:
Number two, the plain view doctrine and confiscating the handgun is not an issue.

[00:25:17] Speaker 01:
It's just the mere presence of the handgun magazine as one of the circumstances under the totality.

[00:25:25] Speaker 01:
And for that reason, the officer was justified in searching the vehicle because it was clear – it seemed clear to him that there was another vehicle inside – another weapon inside the vehicle.

[00:25:41] Speaker 01:
And this – the Patterson case is distinguishable

[00:25:53] Speaker 01:
individualized suspicion.

[00:25:55] Speaker 01:
She's trying to say there was no individualized suspicion of Mr. Cornell, so you couldn't search the vehicle.

[00:26:00] Speaker 01:
But that's not at all the standard, because there was individualized suspicion of the vehicle itself.

[00:26:06] Speaker 01:
It doesn't matter that Cornell was over there.

[00:26:09] Speaker 01:
There was somebody in the vehicle who was attempting to hide, and there's nothing to say

[00:26:23] Speaker 01:
such as somebody trying to hide.

[00:26:24] Speaker 01:
And it was individualized suspicion of the vehicle itself.

[00:26:27] Speaker 01:
Somebody trying to hide a handgun magazine.

[00:26:30] Speaker 03:
I think you consistently argued, the state consistently argued, officer safety was the concern.

[00:26:35] Speaker 03:
Yes.

[00:26:36] Speaker 03:
There's no warrant.

[00:26:37] Speaker 03:
I'm talking about officer safety.

[00:26:38] Speaker 03:
Yes, I believe they stipulated that this was part of the search.

[00:26:40] Speaker 03:
Right.

[00:26:40] Speaker 03:
So I'm trying to figure out what was the concern about officer safety after she's out of the car.

[00:26:45] Speaker 03:
Nobody's in the car.

[00:26:45] Speaker 03:
And now you're telling me the reasonable, the suspicion was that there was a gun in the car.

[00:26:54] Speaker 01:
And as I said in the brief, it would have been unreasonable to release this group of people back into the car without having checked it and turn around and walk back to the patrol car and get in.

[00:27:07] Speaker 01:
That's our position.

[00:27:13] Speaker 03:
I've lost my train of thought.

[00:27:24] Speaker 01:
at all in his declaration about why he didn't challenge the initial detention, it seems clear that he thought it was better to challenge the search of the vehicle.

[00:27:32] Speaker 01:
When it comes to the search of the vehicle, his mistaken belief that over capacity hangover magazine was illegal

[00:28:31] Speaker 02:
I would like to address counsel's statement that there was individualized suspicion of the vehicle itself, because given that this was a birthday party in a large group of people, there was no evidence of the connection between the individuals at the scene and the one person who was behaving suspiciously, that being Sloan, other than the fact that they were all attending the same birthday party.

[00:29:10] Speaker 02:
acting suspiciously that would violate that clearly established rule.

[00:29:16] Speaker 00:
Your argument ignores the fact that the original dispatch was that there were several individuals and there were guns present and the officer arrives, we have all this testimony about the people dispersing and the lookout and so on.

[00:29:43] Speaker ?:
And now he sees a magazine in the Nissan.

[00:29:50] Speaker 00:
And the question is, you know, doesn't the officer have a right to make sure that he can prevent himself from attack while he conducts a preliminary investigation to determine what all these people are doing during the night?

[00:30:04] Speaker 02:
Anytime there's a large group of people, an officer could say, well, I'm concerned about my safety.

[00:30:10] Speaker 02:
I'm going to just search every single one of these cars

[00:30:17] Speaker 02:
were all at the same party.

[00:30:19] Speaker 03:
They're across the street from the party.

[00:30:22] Speaker 03:
This group was not just part of the party, right?

[00:30:24] Speaker 03:
It was a setting.

[00:30:25] Speaker 03:
It was a setting standing separately and there had been the 911 call and then he sees the person he thinks is looking up and down the street and then he sees the gun being tossed.

[00:30:33] Speaker 03:
So why isn't that enough?

[00:30:36] Speaker 02:
Because we don't even know that the tip that they got, the anonymous call, didn't even say that there were weapons.

[00:30:43] Speaker 02:
It said we think there

[00:30:48] Speaker 02:
So there was nothing connecting Mr. Cornell's car to Mr. Sloan's suspicious behavior.

[00:30:56] Speaker 02:
And I will concede Mr. Sloan's behavior was suspicious.

[00:30:59] Speaker 02:
The state's prosecution witness, he did things that were inherently suspicious.

[00:31:04] Speaker 02:
That would justify a search of him, a search of his vehicle, arguably, those kinds of things.

[00:31:09] Speaker 02:
But Florida versus Royer says,

[00:31:18] Speaker 02:
arrived and that normal people will do that for perfectly legal valid reasons so this idea that because the people all of them that were standing around there started to walk away that meant that you could search mr. Cornell's car doesn't hold water it the over time so can I address Patterson your honor I think the court is correct that it is

[00:31:47] Speaker 02:
It was the strongest one that I could find that aligned with the issues.

[00:31:51] Speaker 03:
Facts are strikingly similar.

[00:31:52] Speaker 03:
It's not a circuit authority.

[00:31:54] Speaker 03:
It's not binding.

[00:31:54] Speaker 03:
Of course you know that.

[00:31:56] Speaker 03:
What's the closest in-circuit authority that mirrors Patterson?

[00:32:00] Speaker 03:
Is there any?

[00:32:01] Speaker 02:
Your Honor, I couldn't find one as close as Patterson in circuit, so that's why I cited it, understanding that the court is not bound by that case.

[00:32:09] Speaker 03:
What's your best in-circuit authority?

[00:32:12] Speaker 02:
Your Honor, I couldn't find a ninth circuit

[00:32:23] Speaker 02:
And that complicates the analysis.

[00:32:27] Speaker 02:
Partly, I would submit, because the State Court of Appeal confused the two when it was issuing its ruling.

[00:32:34] Speaker 02:
Instead of addressing plain view head on, it simply moved over to Terry and said, well, it doesn't matter that counsel was wrong.

[00:32:42] Speaker 02:
that he was wrong about that because Terry rescues us.

[00:32:46] Speaker 02:
That's why it's okay for the police to have done what they did.

[00:32:57] Speaker 02:
concession, because he was wrong to begin with, but then he also didn't litigate the suppression issue really at all on its merits.

[00:33:04] Speaker 02:
He never made the Terry argument.

[00:33:06] Speaker 02:
He never talked about whether or not the officer had a legal reason to be peering into the car and whether or not that was appropriate and based on individualized suspicion, which is what should have been argued.

[00:33:18] Speaker 03:
If it was permissible to look in the car and to take the magazine out, was there reason to search the rest of the car at that point?

[00:33:24] Speaker 02:
no your honor and that's the second element of Michigan versus Long there was never any basis even argued that there was anybody at that point who had access to a weapon and if this argument that well we have to let them drive away if that's really the reason then you can always search the car then the second element of Long doesn't even have any meaning and it should it's in the test

[00:33:52] Speaker 02:
at the time, and there wasn't any evidence of that, that anyone could possibly have heard the police.

[00:33:58] Speaker 00:
What about the search that you could remove the person before you conduct the search?

[00:34:01] Speaker 00:
I mean, the Supreme Court has never said that it has to be done while the person is still sitting in the car.

[00:34:07] Speaker 02:
They didn't say that in long.

[00:34:08] Speaker 02:
The person had been, I believe, already removed in long before they did the search.

[00:34:15] Speaker 02:
But in this case, as the Court has pointed out, why not get a warrant?

[00:34:19] Speaker 02:
There wasn't any evidence.

[00:34:29] Speaker 00:
Would you concede there was probable cause to believe that the car contained a weapon in order to get a warning?

[00:34:35] Speaker 02:
They would have had to have established that.

[00:34:38] Speaker 00:
Well, I know the question is, do you concede there was probable cause?

[00:34:43] Speaker ?:
No.