[00:00:03] Speaker 00:
Good morning, Your Honors.

[00:00:04] Speaker 00:
Miles Pope for Cameron Campbell, and I'd like to reserve two minutes for rebuttal.

[00:00:08] Speaker 00:
My plan, unless the court has a different preference, is to first address the waiver issue and then turn to the merits.

[00:00:15] Speaker 00:
With respect to the government's argument that Mr. Campbell waived this argument or this issue by failing to raise it below, there are four reasons why the appellate claim is not waived here.

[00:00:26] Speaker 00:
The first reason is that it is ultimately a refinement of his unreasonable delay claim below.

[00:00:31] Speaker 00:
It is not a novel suppression theory.

[00:00:34] Speaker 00:
It goes through many of the same facts, and Mr. Campbell's briefing below recited many of the same facts and considerations that this court will consider in connection with unreasonable prolongation under the sort of, you know, even assuming there's probable cause.

[00:00:48] Speaker 02:
I mean, I don't want to stop you from going through all four, but didn't the district court actually just address?

[00:00:52] Speaker 00:
Yeah, that's the one.

[00:00:54] Speaker 00:
I'm going to move on.

[00:00:55] Speaker 00:
That's correct.

[00:00:56] Speaker 00:
No, I don't want to use my time that way.

[00:00:59] Speaker 00:
That's right.

[00:00:59] Speaker 00:
So district court addressed it, so then we get to the merits.

[00:01:02] Speaker 00:
And on the merits, we have the balancing test.

[00:01:05] Speaker 00:
From my perspective, this is a case that with respect to the police investigations, or the first side of the ledger, really is in all relevant respects on all fours with DAS.

[00:01:16] Speaker 00:
And so what we have is the government concedes that there was probable cause from its perspective at the moment of seizure.

[00:01:22] Speaker 00:
Even if we accept the government's shifting

[00:01:25] Speaker 02:
Can I ask about DOS?

[00:01:26] Speaker 02:
Because it is an interesting case, but we have cases after that that sort of scale back on DOS.

[00:01:34] Speaker 02:
You know, we have Albers, which was that there was no problem when there was a 7 to 10 day delay, and Sullivan when there was a 21 day delay.

[00:01:45] Speaker 02:
I mean, are those in conflict?

[00:01:47] Speaker 02:
How do we make sense of all of those?

[00:01:50] Speaker 00:
In my view, in each of those cases, when the court drilled down into the actual explanations for the lengthier delay than what Das recognized was appropriate, there were explanations that were related to the execution of the warrant itself, essentially.

[00:02:04] Speaker 00:
You know, in certain circumstances, there was diligence by the police, and there was sort of asserted diligence below by the police in terms of they had other obligations that they needed to take care of.

[00:02:16] Speaker 00:
And that's OK.

[00:02:17] Speaker 00:
This court has held that when there's sort of competing obligations in a different manner, that can factor into the reasonableness analysis.

[00:02:24] Speaker 01:
I'm just going to ask you also, while you're addressing the factors that you think are relevant, DAS, as I recall, the delay was between 16 and 23 days, which is considerably more than what happened here.

[00:02:39] Speaker 01:
So if you would address that as a factor while you're going through the other.

[00:02:45] Speaker 00:
In DAS, the delay was between seven and I think 28 days.

[00:02:49] Speaker 01:
I guess I'm going off the descent, which said it was unreasonable, but yeah.

[00:02:55] Speaker 02:
The majority opinion said it was...

[00:03:13] Speaker 00:
So there are two threads in Das that I draw on.

[00:03:16] Speaker 00:
The first is if you just look at the actual amount of time that Das affirmatively held was constitutionally unreasonable, the length of the prolongation that was constitutionally unreasonable.

[00:03:27] Speaker 00:
Seven days was affirmatively held in that case.

[00:03:30] Speaker 00:
There was a delay of seven days, one day longer than this, to be unreasonable even in a probable cause case.

[00:03:35] Speaker 00:
That's a holding of Das.

[00:03:36] Speaker 01:
What do you do about the fact that here there's evidence that there wasn't anybody available?

[00:03:42] Speaker 01:
This, you know, was seized on a Friday, then you had a weekend, you had people's days off and so on and so forth.

[00:03:49] Speaker 01:
There is a cogent explanation.

[00:03:52] Speaker 01:
What do we do with that?

[00:03:54] Speaker 00:
Well, I do two things with it, or maybe three.

[00:03:56] Speaker 00:
The first thing I would note is that it was a Thursday, not a weekend.

[00:03:59] Speaker 00:
The government argues that the Friday after that was Valentine's Day and says that, quote, almost everyone was off.

[00:04:07] Speaker 00:
And I stand with trial counsel.

[00:04:09] Speaker 00:
No one begrudges Valentine's.

[00:04:10] Speaker 00:
Are the criminals just running rampant on Valentine's Day?

[00:04:13] Speaker 00:
There's no police?

[00:04:15] Speaker 00:
I'm off on Valentine's Day, so I wouldn't know.

[00:04:18] Speaker 00:
But no, the answer to that is clearly not.

[00:04:20] Speaker 00:
And there are two serious points there.

[00:04:23] Speaker 00:
The first serious point is that the trial prosecutor says almost everyone was off on Valentine's Day.

[00:04:32] Speaker 00:
Everyone was not off on Valentine's Day.

[00:04:35] Speaker 00:
And folks were affirmatively doing work on this case.

[00:04:37] Speaker 02:
I think your point is well taken.

[00:04:39] Speaker 02:
And the district court seemed to recognize that, that this was not a model of how

[00:04:43] Speaker 02:
this should have been handled.

[00:04:45] Speaker 02:
But the question I guess for us is whether the district court, I mean in some ways it sort of helps the district court that he recognized there was a problem here, but then still found, or there were problematic facts, but then still found that it was not unreasonable.

[00:05:03] Speaker 02:
Isn't that, aren't we reviewing that for abusive

[00:05:05] Speaker 02:
What are we reviewing that for?

[00:05:09] Speaker 00:
Well, it's a constitutional reasonableness analysis.

[00:05:14] Speaker 02:
Well, yeah, but what about the fact, I mean, isn't there a factual, I guess, is it just pure de novo or do we get, don't we owe some deference to a reasonableness finding?

[00:05:25] Speaker 00:
I mean, certainly with respect to the findings of fact, there's deference owed, but with respect to the applications of those in the Fourth Amendment constitutional context, it's de novo.

[00:05:36] Speaker 00:
And I should say that the district court never addressed, there's one issue that's fairly glaring in this case, and again, I recognize I'm drilling you down into days, but days do matter in this context.

[00:05:45] Speaker 00:
There's one issue that the district court simply doesn't address and neither did the prosecutor below, which is there's an entire extra day, even if we accept

[00:05:53] Speaker 00:
that Valentine's Day is a special day.

[00:05:55] Speaker 00:
And even if we accept that the weekend is equally special, and even if we accept that the Constitution can be suspended because an entire investigatory team can decide to do 410s and everyone takes Monday off on the 410s even after a big drug bust.

[00:06:10] Speaker 00:
Even if we accept all of that, there's still the Tuesday.

[00:06:13] Speaker 00:
And absolutely nothing happened on Tuesday as far as the record reflects.

[00:06:16] Speaker 00:
And the government didn't give any explanation for why they weren't able to prepare this warrant, which I would emphasize, you know, the government sort of argues below.

[00:06:24] Speaker 00:
This was a, you know, it was a 51-page affidavit that was prepared that argues enormous amount of work.

[00:06:32] Speaker 00:
All but 12 of those pages were a cut-and-paste job from a previous warrant, and the 12 pages in addition were basic narrative fact about what they'd done on the day of the arrest.

[00:06:41] Speaker 02:
And so this is not a case where... How was your client prejudiced at the end of the day?

[00:06:45] Speaker 02:
I mean, our cases go through that where, you know, he never asked for the property back, right?

[00:06:56] Speaker 02:
It didn't affect his liberty interest in that sense.

[00:06:59] Speaker 02:
We're just talking about a possessory interest, correct?

[00:07:02] Speaker 00:
Yes, so agree with all of that.

[00:07:05] Speaker 00:
First, absolutely correct.

[00:07:06] Speaker 00:
No evidence you requested the property back.

[00:07:08] Speaker 00:
I would emphasize, though, that every single case the government cites with respect to you need to make that request is a consent case.

[00:07:16] Speaker 00:
It's a seeking to revoke consent.

[00:07:17] Speaker 00:
This was not a consent

[00:07:18] Speaker 00:
take you know seizure this was a seizure and I None of the cases the government sites and I'm aware of none say that sort of requesting property back is is a Is something you need to do in a case where the police?

[00:07:31] Speaker 00:
Affirmatively seized it from you.

[00:07:33] Speaker 00:
The second thing I would say is that this is your

[00:07:36] Speaker 00:
Again, agree with you with respect to the record on sort of specific articulated, you know, like prejudice that Cameron specifically stated to the court.

[00:07:47] Speaker 00:
But this is a unique case because you have two different sort of buckets of stuff that were seized, I guess.

[00:07:54] Speaker 00:
The first is a cell phone, which this court has recognized and the Supreme Court has recognized you intrinsically have very serious possessory interests in.

[00:08:01] Speaker 00:
It contains the most intimate details of our lives.

[00:08:04] Speaker 00:
And this court has said that, and the Supreme Court has too.

[00:08:07] Speaker 00:
And then the second is, and I would rely on place for this proposition, which I think is relevant even in the context that I'm arguing it.

[00:08:13] Speaker 00:
The second one is that he is a traveler, and travelers, when they travel, the possessory interest they have in the goods that they take with them is uniquely strong, and the court has recognized that for good reason.

[00:08:25] Speaker 00:
I'm going to reserve unless the court has questions.

[00:08:27] Speaker 02:
Very well.

[00:08:31] Speaker 03:
Good morning, Your Honor.

[00:08:32] Speaker 03:
It's Ian Gerstle, United States, based in Spokane, Washington.

[00:08:35] Speaker 03:
I'll jump straight into the issues that the court was addressing with my colleague here.

[00:08:40] Speaker 03:
In regard to DOS, the government would submit that DOS is distinguishable based on this court's later rulings in Sullivan and in Gill.

[00:08:54] Speaker 02:
Do you think that those stand for a straight line proposition that six days just can't be

[00:09:01] Speaker 02:
a constitutional problem.

[00:09:03] Speaker 03:
The problem is with Dawes is that Dawes essentially created a bright line rule, which the Supreme Court and the courts interpreting it in the Supreme Court's ruling since place have said there's no bright line rule.

[00:09:14] Speaker 03:
Judge Gorsuch said that when he was on the 10th Circuit in Christie, we're looking at the reasonableness based on the totality of circumstances.

[00:09:23] Speaker 03:
And Dawes didn't conduct any of the balancing that's required under place and Sullivan and the cases this court has then examined.

[00:09:32] Speaker 03:
And for example,

[00:09:34] Speaker 03:
Gill, this court's later case in Gill, totally rebuts Doss because in Doss basically the court established this bright line rule about the six days or what have you and I would agree with what Judge Graber said that in Doss the dissent is more poignant in terms of the actual delay there.

[00:09:52] Speaker 03:
because Judge Alarcon and the dissent points out that there were 16 to 23 days after the dog sniff that created the PC, whereas the majority in that found a 7 to 23 day delay after the reasonable suspicion.

[00:10:09] Speaker 03:
So that's relevant here for the timing in Dawes, and the government would submit that the real timing in Dawes is 16 to 23 days.

[00:10:18] Speaker 03:
But in Dawes, the court did not consider the totality of circumstances.

[00:10:23] Speaker 03:
There's no balancing of the government's need to temporarily seize this property pending a search warrant and balancing it against the possessory interest of the individual.

[00:10:36] Speaker 02:
Ultimately, are we actually deciding this on de novo review?

[00:10:41] Speaker 02:
Because it seems like a lot of the factual findings

[00:10:45] Speaker 02:
to the extent they were made below actually help the defendant, you know, that the government didn't act totally appropriately here.

[00:10:54] Speaker 02:
They didn't give a good reason or excuse.

[00:10:58] Speaker 02:
So are we ultimately deciding this on a de novo review, or do you think there are controlling factual findings that we would defer to that govern this case?

[00:11:09] Speaker 03:
The government believes, well, the factual, the emotion expressed is reviewed de novo, but the factual findings by the district court, if there aren't any, are subject to clear error review, and they have to be clearly

[00:11:21] Speaker 03:
that plays out because and I will even though the court and defense skip the waiver issue the government will get to that because the government does believe that the issue is waived here and that's right why you have minimal factual findings if any by the district court and I'll get to that in a minute but the facts here

[00:11:41] Speaker 03:
are that were actually allocated in any briefing or the actual hearing was that there was probable cause at the time of the seizure.

[00:11:51] Speaker 03:
The government already had a tracking warrant for the defendant's phone and his vehicle showing there was already probable cause.

[00:12:01] Speaker 03:
to seize these items temporarily, which is distinguishable from a lot of the cases cited by the defense, which are seizures based on reasonable suspicion at Terrystop.

[00:12:10] Speaker 03:
Different issue.

[00:12:11] Speaker 03:
They did continue the investigation.

[00:12:14] Speaker 03:
The government does agree there is some discrepancy about the Valentine's Day Friday because there was work that was done.

[00:12:20] Speaker 03:
There was continued investigation on that Friday where officers went and got video surveillance.

[00:12:25] Speaker 02:
I've got to be honest, counsel, that seems like such a just a weak argument.

[00:12:30] Speaker 02:
I mean, I'm kind of shocked that the government came in and said, well, because of Valentine's Day, we get an excuse.

[00:12:35] Speaker 03:
I think the point was more not Valentine's Day being a holiday, but the officers were off-duty.

[00:12:41] Speaker 03:
And there is case law to suggest that other circuits have held that off-duty days are, as the Seventh Circuit and Martin did not count two weekends in actual holiday for purposes of the delay.

[00:12:58] Speaker 02:
A true off-duty, 4th of July, OK, but a holiday, Christmas.

[00:13:04] Speaker 03:
Other courts have credited weekends as well.

[00:13:06] Speaker 02:
Well, weekends, I'm with you.

[00:13:08] Speaker 03:
Yes, understood.

[00:13:09] Speaker 03:
But in any event, it's to some extent irrelevant, because on that Valentine's Day, the government did do work.

[00:13:16] Speaker 03:
They went and got video that showed Mr. Campbell, the surveillance.

[00:13:20] Speaker 02:
The district court, actually on that point,

[00:13:23] Speaker 02:
that works against the government because the district court said, well, we can't consider that because you are, I mean, as you said, you already had probable cause.

[00:13:32] Speaker 02:
to arrest him.

[00:13:33] Speaker 02:
I thought the district court specifically said you can't rely on the work that you did to verify some of these facts.

[00:13:39] Speaker 03:
No, the district court was curious, and the district court at the time had not read the government's brief in response to the defendant's motion.

[00:13:47] Speaker 03:
And the issue with regard to the waiver is the fact that a defendant's motion is expressed if this court goes back and looks at the actual motion to express in the excerpts of record at

[00:14:02] Speaker 03:
second excerpt 111, 115, and 117, the defendant repeatedly is attacking this search or this seizure as a Terry stop.

[00:14:12] Speaker 03:
In 111, 115, the counsel in his motion repeatedly states, because no probable cause existed, law enforcement did not.

[00:14:24] Speaker 03:
this the six-day delay was a violation and that and the council cited almost exclusively United States versus place which that has to do with the Terry stop and what council was saying below was that because the government didn't have probable cause district judge find no probable cause the only available way they could hold on to this property

[00:14:47] Speaker 03:
was a Terry stop based on reasonable suspicion.

[00:14:51] Speaker 03:
But the 90-minute delay in place for this baggage at the airport was too long based on reasonable suspicion.

[00:14:58] Speaker 03:
That was their argument in their motion.

[00:15:00] Speaker 03:
That was their argument in district court.

[00:15:02] Speaker 03:
Defense counsel, it's in the transcript.

[00:15:05] Speaker 03:
Counsel, you don't disagree that at the end of the day, the district court analyzed this in two separate?

[00:15:13] Speaker 03:
The district court did not get to the

[00:15:16] Speaker 03:
The district court did not need to get to the delay, because once the district court found probable cause, we're not in the Terry Stop analysis.

[00:15:26] Speaker 03:
And then the district court's done.

[00:15:28] Speaker 03:
And in fact, the district court in its ruling, this is at 21ER13, the district court specifically says, in the end, the question went a delay requesting a warrant.

[00:15:42] Speaker 03:
delay in requesting a warrant results in an unconstitutionally unreasonable seizure is left for another case and another time.

[00:15:50] Speaker 03:
That is saying the district court did not consider that because the defendant did not present what the defendant was challenging was probable cause and that's what the government responded to.

[00:16:00] Speaker 03:
And that's why the waiver applies.

[00:16:02] Speaker 03:
Judge Nelson authored the opinion and Magdarella

[00:16:06] Speaker 03:
where there is a waiver, and it's citing Keyes as well.

[00:16:11] Speaker 03:
There is a waiver in Keyes.

[00:16:16] Speaker 03:
You can waive a particular ground for a motion to suppress when you argue something different on appeal with regard to that motion.

[00:16:22] Speaker 03:
And then Judge Nielsen and Magdarella expounded on that and explained

[00:16:29] Speaker 03:
Where the district court does not make a finding on precise factual issues regarding Fourth Amendment analysis, we uphold the district court's denial of a motion to suppress if there's a reasonable view to support it.

[00:16:42] Speaker 03:
There's a citation omitted there.

[00:16:44] Speaker 03:
The defendant may not, one and two and three, make a new legal argument in support of suppression unless the issue does not affect or rely on the factual record developed by the parties.

[00:16:56] Speaker 03:
And the issue here and why the defense counsel and the court may be somewhat puzzled, why is the record so thin?

[00:17:05] Speaker 03:
Well, because the issue below on the motions on the papers and at the hearing was whether or not there was probable cause.

[00:17:12] Speaker 03:
And if there was probable cause, we don't get into the Terry stop analysis and the whole 90 minute delay.

[00:17:19] Speaker 03:
And that's why when the district court

[00:17:22] Speaker 03:
I'm hypothesizing here, read the government's brief, issued its order, found probable cause.

[00:17:28] Speaker 03:
We don't need to get to the issue of delay because there's probable cause.

[00:17:31] Speaker 03:
This wasn't a Terry stop.

[00:17:33] Speaker 03:
Therefore, the defendant has waived that issue because

[00:17:37] Speaker 03:
the defendant did not allow an opportunity for those facts to be further developed.

[00:17:42] Speaker 03:
Had that, he attacked the delay independent of probable cause, said, oh, there's probable cause, or it doesn't matter.

[00:17:48] Speaker 03:
The delay is just too long.

[00:17:50] Speaker 03:
We'll concede there's probable cause.

[00:17:52] Speaker 03:
He didn't even say, even if there is probable cause, the delay is too long.

[00:17:56] Speaker 03:
He said, it's just too long regardless, because this was a Terry stop.

[00:18:01] Speaker 03:
And we know a Terry stop's not going to go on for six days.

[00:18:03] Speaker 03:
Everybody knows that.

[00:18:05] Speaker 03:
So the district court found there's probable cause and says in its order, we don't reach the issue of delay.

[00:18:13] Speaker 03:
So essentially, and that's why this court has announced the issue of the rule of waivers when it hasn't presented the district court and the parties with the opportunity to develop that factual record.

[00:18:23] Speaker 03:
Now circling back to the facts that you asked Judge Nelson is that here they had the tracking warrant for the phone.

[00:18:31] Speaker 03:
There was probable cause.

[00:18:33] Speaker 03:
I'm out of time.

[00:18:34] Speaker 03:
I can either answer

[00:18:37] Speaker 03:
There was probable cause.

[00:18:38] Speaker 03:
They continued the investigation the day of.

[00:18:41] Speaker 03:
And they, again, the Monday was off.

[00:18:44] Speaker 03:
They were off of work.

[00:18:46] Speaker 03:
And the defendant never, on the defendant's side, he never requested the items back, even though they had given him his business card.

[00:18:55] Speaker 03:
He never identified below how was his travel or any specific interest, possessory interest, affected.

[00:19:04] Speaker 03:
And we know he had a ride away.

[00:19:08] Speaker 03:
They developed that evidence.

[00:19:09] Speaker 03:
And again, he argued basically on place.

[00:19:13] Speaker 03:
And if the court looks at Gill, this case is very similar to Gill, where the court upheld a package seized on reasonable suspicion, not PC, and found that the six-day delay was OK.

[00:19:26] Speaker 03:
And on that case, the package was also seized on a Wednesday.

[00:19:30] Speaker 03:
There was investigation on a Friday here in that case and also here in Gill.

[00:19:36] Speaker 03:
No work done on the weekend.

[00:19:37] Speaker 03:
No work done.

[00:19:38] Speaker 03:
This court affirmed the magistrate judge was unavailable on Tuesday and the warrant was signed on Wednesday.

[00:19:45] Speaker 03:
There's no daylight between this case and Gill and therefore this court should affirm.

[00:19:50] Speaker 03:
And if the court doesn't have further questions, I'll submit it to the court.

[00:20:00] Speaker 00:
Despite its earth-shattering response, the government is wrong.

[00:20:02] Speaker 00:
Two sort of brief points, first on waiver.

[00:20:07] Speaker 00:
The district court squarely addresses this in its order.

[00:20:09] Speaker 00:
It says there are two issues raised by this motion to suppress.

[00:20:12] Speaker 00:
Second, whether the seizure on February 13, 2020 was constitutionally unreasonable because the law enforcement officer involved waited six days before he requested and obtained a warrant.

[00:20:22] Speaker 00:
And the questioning that was posed by the district court to the prosecutor at the suppression hearing delved directly into that, the district court.

[00:20:32] Speaker 00:
Framed it as, okay, even if we assume there's probable cause, explain to me why this six-day delay was appropriate.

[00:20:38] Speaker 00:
And then the district court walked the prosecutor through in great detail.

[00:20:41] Speaker 00:
And this is why I would submit we do have a good record on what the explanation was.

[00:20:44] Speaker 00:
It just happens to be inadequate.

[00:20:46] Speaker 00:
Walked the prosecutor through in great detail what happened on every one of those days and why there was the delay.

[00:20:52] Speaker 00:
And the prosecutor articulated that.

[00:20:54] Speaker 00:
It was just insufficient.

[00:20:55] Speaker 00:
Turning to that point, you know, a lot of this case has been sort of a debate between Das and Gill, and I would just emphasize that Gill does two things that ultimately are helpful to Cameron's cause.

[00:21:06] Speaker 00:
The first is it explains what happened in Das.

[00:21:09] Speaker 00:
It's sort of, it's gone through it, it characterizes Das, and it says, look, in Das we held that delays from 7 to, you know, 18 days or whatever the outer limit is, I don't have that in my mind, can be and have been held unreasonable.

[00:21:22] Speaker 00:
It then went on to say, here's why this case is not anything like what happened in Das.

[00:21:27] Speaker 00:
Because what happened in Das, and what our court concluded happened in Das, was that the police proceeded at a leisurely pace.

[00:21:36] Speaker 00:
And in this case, the police did not do that, they say in Gill, because they were tracking down leads.

[00:21:40] Speaker 00:
They were undertaking various important investigatory steps related to the development of and filing of the warrant.

[00:21:48] Speaker 00:
That just wasn't so.

[00:21:50] Speaker 00:
The record is we got Valentine's Day, we got Four Tens, and we've got nothing happening when they come back.

[00:21:56] Speaker 00:
And so this puts it squarely in Das Land, which remains good law, and this Court should reverse on that basis.

[00:22:01] Speaker 00:
Thank you.

[00:22:02] Speaker 03:
Thank you, Counsel.

[00:22:03] Speaker 03:
Thanks to both of you for your briefing and argument.

[00:22:04] Speaker 03:
Another interesting case.

[00:22:07] Speaker 03:
This matter is submitted, and we'll