[00:00:04] Speaker 03:
Good morning counsel.

[00:00:06] Speaker 03:
Good morning your honor.

[00:00:13] Speaker 02:
Please proceed.

[00:00:14] Speaker 02:
Good morning and may it please the court.

[00:00:16] Speaker 02:
My name is Shelley Richter and I represent petitioner Melvin Hutzpath.

[00:00:20] Speaker 02:
I'll reserve three minutes for rebuttal and I'll watch my clock.

[00:00:23] Speaker 02:
Thank you.

[00:00:24] Speaker 02:
The Fourth Amendment violation in Melvin Hutzpah's case was so blatant that even the jury noticed it.

[00:00:30] Speaker 02:
But trial counsel didn't.

[00:00:32] Speaker 02:
Trial counsel didn't recognize that the police violated two clear U.S.

[00:00:36] Speaker 02:
Supreme Court precedents, Riley versus California and Arizona versus Gantt, in seizing and searching his cell phone multiple times without a warrant.

[00:00:45] Speaker 02:
I'll focus on three main ideas today.

[00:00:47] Speaker 03:
Counsel, could I ask you, was Raleigh the law when the search was conducted?

[00:00:52] Speaker 02:
Raleigh was issued a few months after the search, but under Griffith, it does apply and it does state the law that governed his trial.

[00:01:01] Speaker 03:
I was just curious because you said he violated Raleigh and I was just wanting to make sure that Raleigh had not been decided at the time of the search.

[00:01:08] Speaker 02:
Correct, a few months later.

[00:01:11] Speaker 02:
So I'll focus on three main ideas.

[00:01:13] Speaker 01:
Do you think that even if Riley was not the applicable rule and people v. Diaz was in fact the right case to be looking at, do you still prevail under Diaz?

[00:01:25] Speaker 02:
Yes, we do because Diaz is a search incident to arrest case where the cell phone was found on the arrestee's person.

[00:01:32] Speaker 02:
So that's different than what happened in Riley.

[00:01:35] Speaker 02:
There wasn't a valid search incident to arrest here.

[00:01:39] Speaker 02:
Of course, Mr. Hutzpah's phone wasn't found on his person, which is what happened in Diaz.

[00:01:43] Speaker 02:
It was in his car.

[00:01:45] Speaker 02:
At the time that the police retrieved the phone from his car, Melvin Hutzpah was in a police vehicle, so he was restrained.

[00:01:53] Speaker 02:
So the court should apply the search incident to arrest test in Arizona versus Gant.

[00:01:57] Speaker 02:
Under that test, the court would look at first, was Melvin Huspath within reaching distance of the vehicle?

[00:02:04] Speaker 02:
He was not.

[00:02:05] Speaker 02:
Second, was it reasonable to think that there was evidence of the offense of arrest in Melvin Huspath's car?

[00:02:12] Speaker 02:
Again, there was not.

[00:02:13] Speaker 02:
Deputy Juarez was extremely clear about what he arrested Mr. Huspath for.

[00:02:18] Speaker 02:
He arrested him for outstanding warrants for a grand larceny auto.

[00:02:22] Speaker 02:
So it wouldn't have been reasonable for Deputy Warris to think he can go into Melvin Hutzpah's car and find evidence of this past crime.

[00:02:30] Speaker 00:
Why wouldn't a car contain evidence of car theft?

[00:02:33] Speaker 00:
I mean, you could find the registration papers from the other car.

[00:02:36] Speaker 00:
You could find on the phone photos of him in the car that he stole.

[00:02:40] Speaker 00:
I mean, it seems like there's all kinds of evidence of car theft that you could find by searching a car, isn't there?

[00:02:46] Speaker 02:
There is no particularized record of it being plausible that such evidence would be found in this car.

[00:02:52] Speaker 02:
Deputy Wards had information that Melvin Husbeth was driving his own car, which he got from Denia Belton.

[00:02:58] Speaker 02:
There is an information about what this outstanding warrant was for or what sort of evidence might be found for it.

[00:03:03] Speaker 02:
And the state has never argued that such evidence would be found in the car.

[00:03:07] Speaker 02:
So it just would not be reasonable to think that he would be able to get such evidence.

[00:03:14] Speaker 00:
That may be right, but the 4th Amendment test is, and the good faith analysis is objective, right?

[00:03:20] Speaker 00:
What matters is not, isn't it true that what matters is not what the officer subjectively thought, it's what there was a good faith objective basis for him to do.

[00:03:30] Speaker 02:
question.

[00:03:30] Speaker 02:
I'm sorry.

[00:03:31] Speaker 02:
Yes, under Davis.

[00:03:31] Speaker 02:
It is an objective test, but it also requires a high degree of specificity.

[00:03:35] Speaker 02:
There needs to be binding appellate president specifically authorizing the police to act as they did.

[00:03:40] Speaker 00:
Okay.

[00:03:40] Speaker 00:
So where I'm going with this question is even if officer bar is thought that he was Mr. Odds path for the car offense.

[00:03:53] Speaker 00:
If he had objectively probable

[00:04:00] Speaker 00:
I take it you disagree with that part.

[00:04:03] Speaker 00:
But if we accept that part, it is surely reasonable to think that there would be evidence of that on the phone when he had been told that the phone was where the videos were, right?

[00:04:14] Speaker 02:
If Mr. Husbeth had been actually arrested for possession of child pornography, it would be reasonable to think that that would be in his car.

[00:04:21] Speaker 02:
But Mr. Husbeth wasn't arrested for that offense.

[00:04:24] Speaker 03:
Was there probable cause at that point?

[00:04:27] Speaker 03:
to suspect him of a child born.

[00:04:31] Speaker 02:
No, Your Honor.

[00:04:32] Speaker 02:
At most there was reasonable suspicion under this court's opinion in Hopkins.

[00:04:37] Speaker 02:
A witness's report without any investigation on that report is generally not enough to support probable cause.

[00:04:44] Speaker 02:
And here, Deputy Juarez's follow-up to Denia Belton's report is to reach into Melvin Hutzpah's car, to take his phone out, to open his phone, to look at the data, and then to provide it to another officer who did the same thing the next day.

[00:04:57] Speaker 01:
And they did, in fact, later obtain a search warrant, correct?

[00:05:01] Speaker 02:
Yes, after Detective Stafford had viewed all the videos on the phone in order to, according to him, determine if there was stuff on there he needed to get off.

[00:05:09] Speaker 02:
That's when he applied for a broad search warrant.

[00:05:12] Speaker 00:
And do you think under Hopkins, do you read Hopkins as establishing the proposition that no report from a witness can ever be enough to establish probable cause?

[00:05:22] Speaker 02:
No, Your Honor.

[00:05:22] Speaker 02:
I think if there is a really high degree of credibility from the witness, that can, in some instances, support probable cause.

[00:05:30] Speaker 02:
But that's not the situation here.

[00:05:32] Speaker 03:
Why wasn't there a high degree of credibility in this case?

[00:05:36] Speaker 02:
Deputy Warras didn't know much about Denia Belton.

[00:05:39] Speaker 02:
He didn't know her relationship to Melvin Hutt's path.

[00:05:43] Speaker 02:
He didn't know why she was calling the police.

[00:05:45] Speaker 02:
There could be any reason why she was making this report, including it being a false report.

[00:05:50] Speaker 02:
So it would have required him to do a little bit more.

[00:05:53] Speaker 02:
And one thing he could have easily done was just to ask her, did anyone else see these videos?

[00:05:57] Speaker 02:
She would have said, yes, Damon James did.

[00:05:59] Speaker 02:
And Damon James was there, and he could have followed up.

[00:06:01] Speaker 02:
So there were easy paths that he could have done to investigate to report a little bit more before reaching into Melvin Huspas' phone into his car to get his phone while the man was restrained in a police car.

[00:06:12] Speaker 00:
So I was a little bit confused by the officer's testimony on this point.

[00:06:17] Speaker 00:
So maybe you can correct me.

[00:06:18] Speaker 00:
I understood that the police department had received two different calls about the phone and the videos.

[00:06:26] Speaker 00:
Is that correct?

[00:06:27] Speaker 02:
Yes, Your Honor.

[00:06:28] Speaker 02:
There was a call placed from Las Vegas, but the testimony about the Las Vegas call is extremely vague.

[00:06:35] Speaker 02:
The reporter said something about videos being on a phone, so it's really not clear what the person in Las Vegas said.

[00:06:41] Speaker 00:
Do we know who that person was?

[00:06:43] Speaker 02:
It doesn't say, but presumably it's RH's mother.

[00:06:47] Speaker 00:
Okay, so right there isn't that something different from the Hopkins situation?

[00:06:52] Speaker 00:
You don't just have one witness with no corroboration, you have two different witnesses who have called to say more or less the same thing.

[00:07:01] Speaker 02:
I mean, maybe if the Las Vegas reporter had been a lot more specific, that would place it in a different situation.

[00:07:07] Speaker 02:
But again, I want to stress that under Arizona versus Gantt, the court looks at the offense of arrest.

[00:07:12] Speaker 02:
And the offense of arrest here were those outstanding warrants.

[00:07:16] Speaker 02:
It wasn't possession of child pornography.

[00:07:19] Speaker 02:
Deputy Warras was very specific about what it was for, and that's also supported in the declaration of search warrant that's filed later.

[00:07:27] Speaker 02:
So the record is...

[00:07:29] Speaker 02:
It's clear that what the offensive arrest was, and that's a really critical part of Gantt.

[00:07:34] Speaker 02:
Gantt repeats that language multiple times, and Gantt gets that offensive arrest language from Justice Scalia's concurrence in Thornton, which looks at 19th century resources.

[00:07:44] Speaker 02:
So this is a long line of authority that really centers the inquiry on the offensive arrest.

[00:07:50] Speaker 00:
But if what we're looking at now is the sort of objective good faith under Davis, isn't what matters what there was an objective basis for the arrest for, not what Juarez thought subjectively that he was arresting him for?

[00:08:07] Speaker 02:
But Deputy Juarez did objectively arrest him for the outstanding warrant because he did that before he developed probable cause, according to

[00:08:17] Speaker 00:
Well, that's the derivative of your argument.

[00:08:20] Speaker 00:
I understand your argument that there wasn't probable cause, but if we don't agree with that, if we think that there was probable cause from the two different phone calls, from Denea saying to the officer, that's him, then the analysis is different, isn't it?

[00:08:37] Speaker 02:
Deputy Juarez first arrested Mr. Husspeth before he spoke to Denea Belton at length.

[00:08:43] Speaker 02:
So the first thing he did was when he spoke to Mr. Husspeth is he got his information, his name, his date of birth.

[00:08:49] Speaker 02:
He ran his information, and then he arrested him.

[00:08:52] Speaker 02:
And only once Mr. Husspeth was already under arrest did he start talking to Denea Belton.

[00:08:57] Speaker 02:
So it's not about him having an objective basis to arrest him for something else.

[00:09:01] Speaker 02:
The facts clearly show what he was arrested for, because that was the first thing Deputy Juarez did.

[00:09:08] Speaker 00:
Can I just note that your your time appears to have frozen?

[00:09:15] Speaker 01:
Actually, it looks like it reversed it was I thought it was something minutes and now you're here all day Should I keep going okay?

[00:09:31] Speaker 02:
So the trial counsel

[00:09:35] Speaker 03:
Go ahead.

[00:09:35] Speaker 02:
Okay.

[00:09:36] Speaker 02:
Trial counsel was unreasonable for not raising this motion to suppress.

[00:09:40] Speaker 02:
It had potentially great benefit to him, and trial counsel did not think through the law or the facts that would have supported the motion.

[00:09:50] Speaker 02:
Any defense attorney would seek to exclude evidence that formed such a central part of the state's case.

[00:09:57] Speaker 02:
And three moments in the record, I think, really encapsulate the unreasonableness of trial counsel's performance.

[00:10:03] Speaker 02:
First, after the jury raised the issue, counsel showed that he did not know the legal or factual basis of the search.

[00:10:12] Speaker 02:
He said something like, obviously the deputy knows the law in California, which undermines counsel's role to subject the state's case to adversarial testing.

[00:10:23] Speaker 02:
He should have known what the basis of the search was legally and factually, and he didn't.

[00:10:28] Speaker 02:
And the way that this was represented as a search incident to arrest under Diaz, that should have set alarm bells going in trial counsel's mind because there wasn't a valid search incident to arrest here.

[00:10:39] Speaker 02:
Then at the post trial hearing,

[00:10:40] Speaker 02:
Counsel again was asked about this because Melvin Hutzpath himself brought up to the court that he asked trial counsel to file a motion to suppress and counsel did not.

[00:10:50] Speaker 02:
And counsel said that was because the phone was in plain view in the car.

[00:10:54] Speaker 02:
Of course the plain view doctrine under Horton would not have allowed the seizure and the search that happened here.

[00:11:00] Speaker 02:
The officer did not have a lawful right of access to the phone.

[00:11:03] Speaker 02:
He didn't have a lawful right of access to the data.

[00:11:05] Speaker 02:
The plain view doctrine is simply inapplicable.

[00:11:08] Speaker 02:
And maybe the best evidence of deficient performance is the fact that trial counsel eventually became appellate counsel.

[00:11:16] Speaker 02:
And when he became appellate counsel, the first issue that he raised was plain error to admit the cell phone evidence.

[00:11:24] Speaker 02:
He devoted the most space to it in his appellate brief, and it was place number one in the brief.

[00:11:28] Speaker 02:
So clearly, once trial counsel thought about the issue, he realized that it had potential merit and that it should be brought to the court's attention.

[00:11:38] Speaker 02:
The case for prejudice was also overwhelming here.

[00:11:41] Speaker 02:
The evidence for the charges were the videos, and that can be seen by looking at the prosecutor's closing argument and just as a matter of common sense.

[00:11:51] Speaker 02:
The prosecutor tied every single charge against Mr. Hutzpath to a video.

[00:11:57] Speaker 02:
All of the sex assault, all the lewdness charges, all the possession charges, all to a video with one exception, which is count seven.

[00:12:04] Speaker 02:
That was a lewdness charge that was not on video.

[00:12:07] Speaker 03:
So what do we do with the victim's testimony?

[00:12:11] Speaker 03:
Even if the video evidence were excluded, why wouldn't there be a lack of prejudice because of the testimony from the

[00:12:19] Speaker 03:
victim as bolstered by the other testimony, investigator and others who corroborated her testimony.

[00:12:26] Speaker 02:
There would not be prejudice because with that one count, count seven, not supported by a video, that's where the jury acquitted.

[00:12:32] Speaker 02:
So when the jury had to rely only on RH's testimony, the jury had such doubts that not only did it reach a mistrial, it actually acquitted.

[00:12:42] Speaker 01:
Did R.H.

[00:12:42] Speaker 01:
testify as to being photographed and videotaped?

[00:12:46] Speaker 01:
No, she did not.

[00:12:47] Speaker 02:
Her testimony doesn't even provide sufficient evidence for these charges, especially not the possession ones, but most of the sex assault and lewdness ones as well.

[00:12:58] Speaker 02:
She also testified for all of 17 pages.

[00:13:01] Speaker 02:
It was not a robust testimony.

[00:13:04] Speaker 02:
It was contradictory, inconsistent, at times false.

[00:13:07] Speaker 02:
But truly the prosecutor's closing argument is the best way to see the prejudice that this caused.

[00:13:13] Speaker 02:
Counsel, are you seeking a new trial?

[00:13:16] Speaker 02:
Yes, we are.

[00:13:16] Speaker 02:
We're seeking the writ be granted so that he can have a new trial.

[00:13:21] Speaker 02:
If there are no further questions, I'll reserve the rest of the time for rebuttal.

[00:13:24] Speaker 02:
Thank you.

[00:13:37] Speaker 04:
Good morning, Your Honors.

[00:13:39] Speaker 04:
My name is Jeri Lynn Hardcastle.

[00:13:40] Speaker 04:
I'm a Deputy Attorney General for the State of Nevada, and I represent the respondents.

[00:13:46] Speaker 04:
Respondents respectfully request that this Court affirm, because Hudspath has not met the high burden in Strickland v. Washington to prove that counsel performed deficiently or that he was prejudiced.

[00:14:00] Speaker 04:
To prevail, Hudspath must show

[00:14:03] Speaker 04:
that the trial court would have granted his motion to suppress and a reasonable likelihood of a different verdict without the evidence of the videos and photographs.

[00:14:14] Speaker 04:
He fails to do so.

[00:14:16] Speaker 00:
And can I just ask you to clarify something you said in the footnote in your brief.

[00:14:21] Speaker 00:
You're not asking us to apply Edpa deference to the state court's determination.

[00:14:26] Speaker 00:
We're just supposed to look at Strickland and decide whether he's satisfied the Strickland test.

[00:14:33] Speaker 04:
Yes, Your Honor.

[00:14:37] Speaker 04:
I would like to begin where this Court left off with Ms.

[00:14:41] Speaker 04:
Richter, which is by focusing on prejudice.

[00:14:46] Speaker 04:
The prosecution did submit sufficient evidence to convict Mr. Hudspath of the charges, even without the videos and photographs.

[00:14:57] Speaker 00:
But sufficient evidence in the, I mean, it may be sufficient in the Jackson against Virginia test, but that's not really the test for prejudice.

[00:15:05] Speaker 00:
Prejudice is, is there some reasonable probability of a different outcome?

[00:15:09] Speaker 00:
Correct.

[00:15:10] Speaker 04:
And Mr. Hudspath fails to show that.

[00:15:13] Speaker 04:
He speculates that there may have been a different argument.

[00:15:18] Speaker 01:
But what do you say with respect to the fact that RH did not testify as to any being photographed or videotaped?

[00:15:27] Speaker 01:
So even if the cell phone photos and videos were excluded, how could the jury have still convicted him

[00:15:35] Speaker 01:
But for the evidence that came in from the cell phone, if there was no testimony from RH or any direct testimony, wouldn't Nevada's best evidence rule bar all of the other statements from the individuals?

[00:15:49] Speaker 04:
No, Your Honor, it would not have.

[00:15:51] Speaker 04:
Under Ross v. State, a Nevada case, the court can allow evidence of videos and photographs when those videos are unavailable.

[00:16:04] Speaker 04:
And so because of that and because Dania's testimony and Damon's testimony were crucial to the narrative of this case, that evidence would have come, the trial court would have allowed that evidence.

[00:16:20] Speaker 04:
The videos and photos certainly were not available to Dania Belton.

[00:16:25] Speaker 04:
She couldn't have seized the phone without being convicted of theft.

[00:16:31] Speaker 04:
Therefore, if the videos had been excluded, Dania's testimony was certainly sufficient to sustain what shows that there's no reasonable likelihood of a different outcome.

[00:16:44] Speaker 00:
But there were, what, was it 15 different separate counts based on the separate videos?

[00:16:50] Speaker 00:
Is that right?

[00:16:51] Speaker 04:
based on the videos and photos?

[00:16:53] Speaker 00:
I thought there were separate counts based on separate videos or separate acts.

[00:16:57] Speaker 04:
There were separate counts based on videos for the possession and for the use of a child in production.

[00:17:07] Speaker 04:
There were eight counts.

[00:17:08] Speaker 04:
The remaining counts were for the sexual assault and the lewdness charges.

[00:17:15] Speaker 00:
But for those eight, you really think there's no reasonable

[00:17:19] Speaker 00:
I mean, it's one thing when you can see the 8 videos, when you, the jury, can see the 8 videos and say, OK, that's 8 videos.

[00:17:28] Speaker 00:
It's another to have this sort of testimony, well, I saw some videos.

[00:17:33] Speaker 00:
But to link that up to the specific accounts, you really think there isn't some reasonable chance that the jury would have entertained some doubts about that if all it had was secondhand reports from somebody who had seen the video?

[00:17:47] Speaker 04:
Yes, Your Honor.

[00:17:49] Speaker 04:
I do believe that there's no reasonable likelihood of a different outcome.

[00:17:54] Speaker 04:
There's no reason to believe that the jury would not have believed Dania Belton's testimony.

[00:18:02] Speaker 03:
And she testified that videos were made?

[00:18:05] Speaker 04:
She testified that she saw four or five videos.

[00:18:10] Speaker 04:
She testified that she saw or that she could hear Mr. Hutzpah's voice in some of the videos.

[00:18:18] Speaker 04:
She also testified that she recognized his distinctive belly button in other videos.

[00:18:25] Speaker 04:
She also recognized the victim in the videos.

[00:18:31] Speaker 04:
And so, yes, with that detail and with that testimony, there's no reasonable likelihood of a different outcome.

[00:18:39] Speaker 04:
Additionally, the fact that Ms.

[00:18:41] Speaker 04:
Belton contacted the victim's mother and told the victim's mother that she had seen these videos and asked if the child had this type of a t-shirt.

[00:18:53] Speaker 04:
The mother confirmed that she did.

[00:18:56] Speaker 04:
It's that testimony.

[00:19:00] Speaker 04:
is credible and the jury would not likely have reached a different verdict.

[00:19:07] Speaker 00:
Did you say a moment ago that she said she had seen four or five of the videos?

[00:19:11] Speaker 04:
She said she saw four or five videos.

[00:19:14] Speaker 00:
Okay, but there were eight separate video counts.

[00:19:18] Speaker 04:
Right.

[00:19:18] Speaker 00:
So how does her testimony?

[00:19:21] Speaker 04:
Four possession and four for use of a child in production of the videos.

[00:19:29] Speaker 04:
So it's not that those are separate videos.

[00:19:33] Speaker 04:
They're the four videos and two different charges relating to each video.

[00:19:43] Speaker 04:
Additionally, Deputy Juarez testified that during a police interview, Hudspath admitted that the telephone was his.

[00:19:52] Speaker 04:
That is sufficient to sustain the multiple convictions for possession of child pornography and using a child in the production of child pornography.

[00:20:05] Speaker 04:
Additionally, the victim testified to different acts, testifying

[00:20:14] Speaker 04:
and I'll spare the graphic details, but about touching, about oral sex and such.

[00:20:22] Speaker 04:
And Detective DeCaro, the forensic interviewer or the forensic detective who interviewed the victim, testified as to what the victim had said during that interview.

[00:20:35] Speaker 04:
where the victim would likely have been much more comfortable in expressing herself and explaining the details of the sexual abuse of Mr. HUD's past crimes.

[00:20:50] Speaker 00:
So you've made the argument in your brief that the search could be defended on good faith under the then prevailing California interpretation of Gantt that it extended to a cell phone in a car.

[00:21:06] Speaker 00:
Your friend on the other side says you can't invoke Gantt because the offense of arrest was this auto theft, not the child pornography.

[00:21:15] Speaker 00:
What's your answer to that?

[00:21:17] Speaker 04:
Well, first of all, I agree with Your Honor that proof of grand larceny auto could have been found in the vehicle.

[00:21:27] Speaker 04:
There was a reason, it was reasonable for Mr. or for deputy war as to suspect that.

[00:21:33] Speaker 04:
Also, to say that HUD's path was not also under arrest for the possession of child pornography videos is naive, even though

[00:21:47] Speaker 01:
Does the timing matter as your friend on the other side described?

[00:21:51] Speaker 01:
Officer Juarez did not speak to Denea about what she had seen until after the arrest was made for the warrant.

[00:22:05] Speaker 04:
But that factual assertion is belied by the record.

[00:22:08] Speaker 04:
At 6 ER 968, Deputy Juarez testified that he separated, he separated Hudspath from the others and then spoke to Dania and then subsequently arrested Mr. Hudspath.

[00:22:28] Speaker 01:
And what do you say about the sort of distinction in Gantt about whether or not the defendant is within an arm's reach or a reaching distance of the vehicle, which in this case was not the case.

[00:22:42] Speaker 01:
So Hutzbach was not near the car.

[00:22:47] Speaker 01:
Do we consider that at all for purposes of applying Gantt?

[00:22:53] Speaker 04:
But that was dictum.

[00:22:54] Speaker 04:
The actual holding.

[00:22:57] Speaker 04:
as I read Gantt, is whether the officer reasonably believes there or has probable cause to believe that there is evidence for the crime of arrest.

[00:23:13] Speaker 04:
So no, he was not in reaching distance.

[00:23:15] Speaker 04:
He was, I mean, that's indisputable.

[00:23:19] Speaker 04:
And it's also indisputable that he could not have reached into his vehicle at that time.

[00:23:25] Speaker 04:
But that is not the precise standard that Gantt sets.

[00:23:29] Speaker 01:
Can you give me the citation to the record again that you indicated that contradicts the timing that Ms.

[00:23:36] Speaker 01:
Richter described?

[00:23:37] Speaker 04:
Yes.

[00:23:37] Speaker 04:
It's 6ER968.

[00:23:51] Speaker 04:
And going to deficient performance, unless this court has any other questions about prejudice, Mr. Hudspath has not met his burden to show that counsel performed deficiently.

[00:24:10] Speaker 04:
Mr. Hudspath has shown that the search may have been incorrect under Diaz,

[00:24:20] Speaker 04:
He has also asserted that the search may have been incorrect.

[00:24:25] Speaker 04:
Well, he's asserted that the search was incorrect under Arizona versus Gantt.

[00:24:30] Speaker 04:
And even giving that is true, he's just shown that under those standards, the search was improper.

[00:24:39] Speaker 04:
But he hasn't shown that there was no other case law upon which

[00:24:48] Speaker 04:
Deputy Juarez relied in order to search that vehicle.

[00:24:53] Speaker 04:
As my friend on the other side stated, the record is not clear about the case upon which Deputy Juarez relied.

[00:25:04] Speaker 04:
The record does not explain that.

[00:25:07] Speaker 04:
Now granted in the state's opening brief on direct appeal, the state argued Diaz

[00:25:16] Speaker 04:
But the record does not show that that is what the deputy relied upon.

[00:25:21] Speaker 04:
And Mr. Hudspath has not shown that there might, has not shown that there was no other exception upon which Deputy Juarez could have relied.

[00:25:34] Speaker 04:
Therefore, it was reasonable for the, for council to,

[00:25:42] Speaker 04:
to decline to file a motion to suppress.

[00:25:47] Speaker 04:
That council raised the issue on direct appeal doesn't show that council then realized it.

[00:25:54] Speaker 04:
It showed that on direct appeal, council was looking at anything that he could find in order to find a way in which to reverse the convictions.

[00:26:07] Speaker 04:
And so that's what he argued.

[00:26:11] Speaker 04:
But again, that does not show that California did not have a law that would have allowed the search.

[00:26:17] Speaker 04:
Therefore, Mr. Hudspath has not met Strickland's high bar.

[00:26:22] Speaker 04:
And there is a high bar for relief on an IAC claim.

[00:26:30] Speaker 04:
Mr. Hudspath needs to show an extreme malfunction in the state court proceedings.

[00:26:36] Speaker 04:
But because he hasn't satisfied his burden of deficient performance, nor has he satisfied his burden for prejudice, it shows that habeas relief is not warranted, just as the lower court found.

[00:26:57] Speaker 04:
Unless your honors have any further questions,

[00:27:05] Speaker 04:
I have nothing further.

[00:27:07] Speaker 04:
Thank you, Council.

[00:27:08] Speaker 04:
Thank you.

[00:27:10] Speaker 03:
Rebuttal.

[00:27:19] Speaker 02:
Thank you, Your Honors.

[00:27:20] Speaker 02:
A few points on rebuttal.

[00:27:22] Speaker 02:
First, I'll start with the portion of the record that Ms.

[00:27:25] Speaker 02:
Hardcastle pointed to.

[00:27:26] Speaker 02:
That's 6ER968-969.

[00:27:31] Speaker 02:
that actually supports the timeline that I previously laid out as testimony by Deputy Juarez saying he asked Melvin Hutt's path for his identification.

[00:27:39] Speaker 02:
After it was provided, he says he was able to separate Melvin Hutt's path.

[00:27:45] Speaker 02:
And then he's asked if he started speaking to people.

[00:27:47] Speaker 02:
He says, yes.

[00:27:48] Speaker 02:
Who did you speak to first?

[00:27:50] Speaker 02:
He says, Dania.

[00:27:51] Speaker 02:
And then he says, she basically said she was going through the defendant's cell phone and had located some videos of a child performing sex acts on an adult.

[00:27:59] Speaker 02:
So first, he did separate Melvin Hutzpath.

[00:28:01] Speaker 02:
I think that's his way of saying, I arrested him because he's trying not to get into bad acts and things like that.

[00:28:06] Speaker 02:
And then he spoke to Denea Belton.

[00:28:08] Speaker 02:
So the record does support that timeline.

[00:28:12] Speaker 02:
And second just to but the this when did the search take place that the search didn't take place until after he had spoken to her is that is that right exactly after he got that information that detailed information from miss Belton that's when he went outside and took the phone out of the car.

[00:28:31] Speaker 00:
And so if, in some counterfactual, if he had said at that point, OK, I'm now going to arrest him for the child pornography offense, having already arrested him on the warrant, I am now arresting you on the child pornography offense, then under Gantt, can he search the car and look at the phone?

[00:28:52] Speaker 02:
And so but but then going back to the sort of Davis subjective nature of this.

[00:29:10] Speaker 00:
Assuming, and I realize for you, you may disagree that this is true, but assuming that there was an objectively reasonable basis for him to do that at that point, that he had probable cause, then why does it matter that he hadn't fully thought it through and realized that that could be the basis for the search that he was conducting?

[00:29:32] Speaker 00:
Isn't it enough that the objective basis was present?

[00:29:36] Speaker 02:
No, Your Honor.

[00:29:36] Speaker 02:
There needs to be an actual arrest under Knowles.

[00:29:39] Speaker 02:
That's a Supreme Court case.

[00:29:41] Speaker 02:
For the search incident to arrest doctrine to be implicated, there must be an actual arrest.

[00:29:47] Speaker 02:
Let me just get that case site really quickly.

[00:29:50] Speaker 02:
Knowles versus Iowa from 1998.

[00:29:53] Speaker 02:
I would also point the court to United States versus Davis.

[00:29:57] Speaker 02:
That's a Fourth Circuit decision from 2021.

[00:30:00] Speaker 02:
997 F3D 191, where they look at how important it is the actual offense of arrest is versus the officer's suspicions of other offenses.

[00:30:11] Speaker 02:
And I see my time has concluded.

[00:30:13] Speaker 02:
If there are no further questions, I would ask the court to grant the writ or remand for a hearing.

[00:30:18] Speaker 03:
Thank you.

[00:30:18] Speaker 03:
Thank you, counsel.

[00:30:20] Speaker 03:
Thank you to both counsel for your helpful arguments.

[00:30:22] Speaker 03:
The case just argued is submitted for a decision by the court.