[00:00:00] Speaker 01:
Good morning, your honors.

[00:00:01] Speaker 01:
Lisa Ma for Lamar Ryan.

[00:00:03] Speaker 01:
I'd like to focus first on the First and Fourth Amendment issue and then turn to sentencing, leaving about three minutes for rebuttal.

[00:00:10] Speaker 01:
Okay.

[00:00:11] Speaker 01:
On the Fourth Amendment issue, the key question is whether or not officer has had an objectively reasonable basis to associate the vehicle with the emergency in this case.

[00:00:23] Speaker 03:
Let me ask you, counsel, did Brigham City abrogate the nexus requirement of the emergency aid exception?

[00:00:30] Speaker 01:
I don't think it did.

[00:00:31] Speaker 01:
And I think this court, in a published opinion in Hopkins, articulated and explained its reasoning why it did not.

[00:00:41] Speaker 01:
This court in Hopkins specifically said the third prong of Cervantes, that is, there must be some reasonable basis approximating probable cause associated with the emergency, with the area of place research, was unaffected by either Brigham City or Snipes.

[00:00:58] Speaker 01:
and states our circuit's current law governing the emergency exception.

[00:01:03] Speaker 02:
Right, but then they didn't apply that third prong of Cervantes in Hopkins.

[00:01:08] Speaker 02:
So why isn't that just dicta?

[00:01:11] Speaker 01:
It's not just dicta because the published opinion squarely addresses the issue.

[00:01:16] Speaker 01:
And this court has said in Kuraluk, which we cited in our briefing, that when a court squarely addresses an issue, it is binding on a later panel.

[00:01:25] Speaker 01:
There also is sort of no, the reasoning that the government gives in saying that the third prong of Cervantes doesn't really make sense in this context, because why would Brigham City, which is about the subjective versus objective intent of the officers, abrogate the third prong of Cervantes, which is about the nexus requirement?

[00:01:52] Speaker 00:
In addition... So why isn't the third prong met here?

[00:01:55] Speaker 01:
The third problem isn't met here because there isn't a reasonable basis approximating probable cause to associate the vehicle with the emergency.

[00:02:04] Speaker 01:
The district court only identified two reasons particular to this vehicle.

[00:02:12] Speaker 01:
In other words, the government and the district court both had reasons associating with the emergency with the parking lot, but this particular vehicle was the one that was searched and that they needed to justify the association with.

[00:02:26] Speaker 00:
So because this vehicle was running, and if I recall from the photographic evidence, the agent even says, that one's running.

[00:02:39] Speaker 01:
Yes, Your Honor, that's correct.

[00:02:41] Speaker 01:
But as the government concedes in its answering brief, it was not the only vehicle that was running.

[00:02:46] Speaker 01:
The body worn camera shows there were at least eight and possibly as many as 10 or 12 vehicles in the parking lot.

[00:02:53] Speaker 00:
And as I said in my... I don't recall any evidence regarding most of the other vehicles, whether they were running or not.

[00:03:03] Speaker 01:
That's correct.

[00:03:04] Speaker 01:
And that is exactly the concession that the government makes, that we don't know how many other vehicles were running.

[00:03:11] Speaker 01:
It could be as many as, you know, the seven or eight other vehicles.

[00:03:14] Speaker 00:
Not likely in a parking lot, is it?

[00:03:16] Speaker 01:
I'm sorry?

[00:03:18] Speaker 00:
You think in a parking lot, most vehicles would be running?

[00:03:21] Speaker 01:
Your Honor, I think it's actually a critical fact in this case that it was a laundromat parking lot.

[00:03:26] Speaker 01:
And as the record shows, people who use a laundromat parking lot are sitting and waiting in their cars for them to switch their laundry.

[00:03:36] Speaker 01:
So the record in this case showed that at the end of interviewing the passenger, they actually asked her, oh, do you need to switch your laundry?

[00:03:44] Speaker 01:
And she does so.

[00:03:45] Speaker 01:
So there are people waiting in their cars in a laundromat packing lot.

[00:03:49] Speaker 01:
The evidence also indicates that this was an extremely hot day Unseasonably hot and that there was the use many people required the use of air conditioning So it makes perfect sense that there were numerous people waiting in their cars To turn over their laundry to wait for their laundry and that they were running their cars because of the air conditioning Do we have any of what you just said in the record?

[00:04:11] Speaker ?:
I

[00:04:11] Speaker 00:
It is in the record, Your Honor, in the sense that the... I don't recall seeing any evidence about seeing other people in the cars running their air conditioning, et cetera, et cetera, what you just said.

[00:04:26] Speaker 00:
Did I miss that?

[00:04:28] Speaker 01:
I don't think Your Honor missed it, but I do think that the, uh, Sergeant Brown clearly testified.

[00:04:33] Speaker 00:
You're asking me to speculate in your favor that that was what was going on because it was a laundromat parking lot.

[00:04:40] Speaker 01:
It's not a speculation because Sergeant Brown clearly testified at the bench trial that he did not know how many other cars were running.

[00:04:47] Speaker 00:
That's a different point.

[00:04:48] Speaker 00:
You're asserting there were a bunch of cars running.

[00:04:51] Speaker 01:
I'm asserting it's unknown.

[00:04:53] Speaker 01:
And because it's unknown and the government concedes

[00:04:57] Speaker 01:
The record does not establish whether Ryan's car was the only one in the parking lot that was running at the time, as the police only investigated the first two vehicles.

[00:05:06] Speaker 01:
That's the answering brief at page 32.

[00:05:09] Speaker 01:
So it's unknown how many, but common sense, I think, allows us to draw the inference that there could have been more than one, especially in this context, a laundromat context.

[00:05:21] Speaker 01:
And I don't think we leave our common sense at the door, especially when Sergeant Brown and the other officers specifically asked the passenger.

[00:05:29] Speaker 00:
I agree with you that we don't leave our common sense at the door.

[00:05:34] Speaker 00:
I never heard that before, but I agree with you completely.

[00:05:38] Speaker 00:
But isn't it common sense if you have an emergency, you've been told that a woman is being held at gunpoint in a car, you can't see inside the car because the windows are tinted, but you see that one of the cars, at least one of the cars right next to you,

[00:05:58] Speaker 00:
or close to you is running, so you go in this emergency and open the door.

[00:06:03] Speaker 00:
Why isn't that good old common sense, which we don't leave at the door?

[00:06:08] Speaker 01:
Your Honor, I think that's actually a question I guess I would answer in two parts.

[00:06:12] Speaker 01:
First of all, Your Honor said that she was held at gunpoint, and that is not the record here.

[00:06:17] Speaker 01:
Specifically, when you listen to the dispatch audio and the calls between Sergeant Brown and the caller,

[00:06:24] Speaker 01:
They specified that it was that the driver had showed a gun, and that's at Exhibit B. And specifically, the other... Oh, he just showed the gun because it seemed like a fun thing to do?

[00:06:36] Speaker 01:
Well, I don't think that is necessarily the conclusion that they need to draw, but I will say that the other information they received was that

[00:06:45] Speaker 01:
that he had wanted her to sell herself.

[00:06:48] Speaker 01:
And the record indicates that this is not an immediate process.

[00:06:52] Speaker 01:
It involves driving around, finding clients, booking hotels, and placing ads on adult websites.

[00:06:58] Speaker 02:
They've received information that someone has been forced into a car by someone that has a gun for the purposes of attempting to force prostitution.

[00:07:10] Speaker 02:
I'm just wondering, what are they supposed to do?

[00:07:13] Speaker 02:
What are they supposed to do to wait until they start driving around before they?

[00:07:19] Speaker 01:
No, Your Honor, that's not what we're asking.

[00:07:21] Speaker 01:
I think that the First Circuit in Giambro, which we cited in our briefs, clearly has held that officers may not ignore obvious and available options for gathering facts.

[00:07:31] Speaker 01:
And there were at least three options here that were clear and obvious from the circumstances.

[00:07:36] Speaker 01:
The first is that Sergeant Brown had a line of communication with the passenger on the phone.

[00:07:42] Speaker 01:
He was able to communicate with the caller to speak to the passenger.

[00:07:47] Speaker 01:
And specifically, when Sergeant Brown asked, she's not able to give you exactly what kind of card it is at Exhibit B, the answer he received was, she's refusing to tell me.

[00:08:00] Speaker 01:
It wasn't that she was unable to tell me or that this

[00:08:06] Speaker 01:
or that the line had gone dead, it was that she was refusing to tell me.

[00:08:10] Speaker 01:
And so this is kind of a rare circumstance where the person in need of the emergency aid is not providing information.

[00:08:16] Speaker 01:
So what could Sergeant Brown have done in this situation?

[00:08:19] Speaker 02:
But the officers, how would they know why there was a refusal to provide the information?

[00:08:25] Speaker 02:
I think that's equally susceptible of reading that the person doesn't want assistance as it is to a reading that the person is in

[00:08:33] Speaker 02:
in danger and doesn't feel safe to provide it.

[00:08:36] Speaker 02:
So I mean, I don't know why that fact helps you.

[00:08:40] Speaker 01:
So I think it helps me because they do articulate a reason.

[00:08:44] Speaker 01:
She's scared.

[00:08:45] Speaker 01:
And I think in this situation, Sergeant Brown could have said,

[00:08:49] Speaker 01:
You can assure her that there's an officer right behind the fence.

[00:08:52] Speaker 01:
You can assure her that the officers are actually present on the scene, and that she may be able to give some sort of signal, or she may be able to communicate which car she's in, because they could list the cars.

[00:09:03] Speaker 01:
They could say, look, we see the white Ford.

[00:09:05] Speaker 01:
We see the gray Audi.

[00:09:06] Speaker 01:
We see some other cars.

[00:09:07] Speaker 01:
Which one are you in?

[00:09:08] Speaker 01:
So the fact that they had this line of communication is incredibly unique in these circumstances.

[00:09:13] Speaker 03:
Council, would your argument be different if the Audi happened to be the last car they searched?

[00:09:20] Speaker 01:
I think it would be the same because the problem is that they kept on searching, that they did in fact search the first car.

[00:09:29] Speaker 01:
So if they had not discovered the occupants in the Audi, they would have kept going.

[00:09:34] Speaker 01:
And I think that's the problem.

[00:09:37] Speaker 01:
I do want to also just continuing on other obvious and available options for the officers.

[00:09:45] Speaker 01:
After the officers entered the vehicle,

[00:09:50] Speaker 01:
And they ended up running the license plate.

[00:09:55] Speaker 01:
And the dispatch audio indicates that it was quote current to a 2011 audit to Lamar Ryan in San Francisco.

[00:10:02] Speaker 01:
So in other words, they had the information of the license plates so they could have run it.

[00:10:08] Speaker 01:
And if they had done so, they could have also run Mr. Ryan's criminal history, which would have indicated both that he was on probation and that he

[00:10:20] Speaker 01:
and that he had a prior history of solicitation of prostitution.

[00:10:25] Speaker 01:
So the time to run the license plates is not after you enter the vehicle.

[00:10:30] Speaker 01:
It is before, because that is an obvious and available option.

[00:10:34] Speaker 01:
And when you look at the body worn camera footage, you can see the license plates are clearly visible.

[00:10:40] Speaker 01:
In addition, on this option, we saw that the officers in the bodywear camera video, Wong and Bertolone, were actually present at the scene at around 1210.

[00:10:54] Speaker 01:
And they said on the dispatch, we'll just wait till we see you guys.

[00:11:00] Speaker 01:
So in other words, they're waiting for Sergeant Brown to come.

[00:11:03] Speaker 01:
And they're not there gathering facts.

[00:11:06] Speaker 01:
They're not there running license plates.

[00:11:08] Speaker 01:
Um, and so I think their response is not one of gathering additional facts to establish that nexus.

[00:11:17] Speaker 01:
Theirs is just, let's wait around for Sergeant Brown to roll up.

[00:11:21] Speaker 03:
So council, let me just make sure I understand your position.

[00:11:24] Speaker 03:
Basically you're saying the police officers did not have any objective objectively reasonable basis to believe that AT was in the Audi when they searched it.

[00:11:36] Speaker 01:
It did not rise to the level of reasonable basis approximating probable cause.

[00:11:41] Speaker 03:
So not the tinted windows, not the car running.

[00:11:44] Speaker 01:
Again, the tinted windows, it was unclear how many cars had tinted windows.

[00:11:49] Speaker 01:
And the fact that they searched the first vehicle which had tinted vehicles but was not running shows that they were just intending to just keep acting on their hunches and just opening doors until they could find the occupants.

[00:12:02] Speaker 01:
I think the key fact that they did attempt to search and try to open the door of the white Lexus shows there was no reasonable basis or fact gathering in this case.

[00:12:15] Speaker 01:
That car was not running.

[00:12:17] Speaker 01:
I'll reserve some of my additional time for rebuttal.

[00:12:20] Speaker 02:
Okay, thank you.

[00:12:38] Speaker 04:
May it please the court.

[00:12:39] Speaker 04:
My name is Jared Bezien.

[00:12:40] Speaker 04:
I represent the United States in this appeal.

[00:12:43] Speaker 04:
This court should affirm Mr. Ryan's conviction because the district court did not err in denying Ryan's suppression motion under the emergency exception to the warrant requirement.

[00:12:51] Speaker 03:
Council, can I just get you to go ahead and jump right in?

[00:12:54] Speaker 03:
I'd like to hear the government's response to your friend on the other side where she said there was no reasonable basis.

[00:13:01] Speaker 03:
The car was running, but all the other cars could have been running or could not have been running.

[00:13:05] Speaker 03:
That wasn't really looked into.

[00:13:07] Speaker 03:
The fact that they

[00:13:08] Speaker 03:
check the Lexus first and that Lexus wasn't running and the issue with the tinted windows.

[00:13:13] Speaker 04:
Your Honor, I think there are a couple of things on that point.

[00:13:15] Speaker 04:
First, it's undisputed in this case that the officers were responding to an emergency and that oriented their approach to the parking lot.

[00:13:24] Speaker 04:
The record reflects that they took substantial steps as they were going to that parking lot

[00:13:29] Speaker 04:
to gather information to try and narrow and focus the search to find the victim here.

[00:13:35] Speaker 04:
If you listen to exhibit B, that's Sergeant Brown's body-worn camera where he's on the phone with the reporting party for 10 minutes as he's going to that laundromat, and he's repeatedly trying to get information to focus his search.

[00:13:47] Speaker 04:
He doesn't just ask for a description of the vehicle once.

[00:13:50] Speaker 04:
He asks repeatedly in case facts change on the ground at that time.

[00:13:53] Speaker 04:
But by the time he arrived at the laundromat,

[00:13:55] Speaker 04:
they simply did not have that information.

[00:13:58] Speaker 04:
What they did know is that the emergency was unfolding at this specific laundromat in a vehicle, and that is where they focused their search.

[00:14:06] Speaker 04:
They didn't go somewhere else.

[00:14:08] Speaker 04:
Instead, they went to the laundromat where the emergency was happening, and they looked at vehicles that had indicia of occupancy.

[00:14:14] Speaker 04:
I want to emphasize for the court that this all unfolded very, very quickly.

[00:14:22] Speaker 00:
Is it your position that even though there were arguably reasons why they should focus on the car they ultimately focused on, but even if we put that aside, the nature of the emergency allowed them to, in theory, search for all eight cars?

[00:14:41] Speaker 04:
Yes, Your Honor.

[00:14:42] Speaker 04:
That is our position, given the nature of the emergency.

[00:14:44] Speaker 04:
Unless, for example, there was a reason for them to believe that those cars were not occupied and were disassociated

[00:14:51] Speaker 04:
from the emergency information that they had been provided.

[00:14:53] Speaker 04:
But for example, they did not look into a car where they could see, because it didn't have tinted windows, that it was not occupied.

[00:15:00] Speaker 04:
But they focused on Mr. Ryan's car, because at that time, it had indicia of occupancy, it was running, and they could not, from the exterior, rule out that that is where the victim was located at the time.

[00:15:12] Speaker 00:
When the recordings, as the officers are saying, as they're going to the second car, it's running,

[00:15:19] Speaker 00:
Isn't it a reasonable conclusion from that that not every car there was running, that this was one that they saw was running?

[00:15:29] Speaker 04:
Yes, Your Honor.

[00:15:29] Speaker 04:
I think that that's why there was heightened focus on it.

[00:15:32] Speaker 04:
The Lexus to the left of Mr. Ryan's Audi did not appear to be running at the time.

[00:15:37] Speaker 04:
It was attempted to be checked, I would say, sort of from the outside, but that was all contemporaneous.

[00:15:44] Speaker 04:
From the time

[00:15:46] Speaker 04:
Sergeant Brown arrived at the laundromat parking lot and got out of his car and the officers started searching to the time when they opened up the cars of Mr. Ryan's vehicle was only 20 seconds.

[00:15:56] Speaker 04:
This was something that unfolded very quickly because it is undisputed they were responding to an emergency here.

[00:16:04] Speaker 00:
Can I shift gears for a moment to the sentencing?

[00:16:07] Speaker 04:
Yes, your honor.

[00:16:09] Speaker 00:
So

[00:16:12] Speaker 00:
The judge did not give the two points for acceptance of responsibility.

[00:16:21] Speaker 00:
And he gave at least as one of his reasons that this was a belated acceptance.

[00:16:28] Speaker 00:
That relates to the third point, not to the two points, correct?

[00:16:33] Speaker 04:
So I think, Your Honor, the third point for acceptance of responsibility relates to saving the government, the investment of resources.

[00:16:41] Speaker 00:
And so there's no reason he should have given the third point, and he didn't.

[00:16:47] Speaker 00:
But why shouldn't he have given the two points?

[00:16:49] Speaker 00:
The guy offered to plead guilty.

[00:16:53] Speaker 00:
providing only that he preserved his constitutional issue, which, as the discussion we're having today shows, was not a frivolous issue.

[00:17:04] Speaker 00:
The government said, no, we're going to go to trial.

[00:17:09] Speaker 00:
Forget about conditional plea.

[00:17:12] Speaker 00:
Then at the trial, he doesn't deny guilt at all.

[00:17:17] Speaker 00:
He just challenges the search issues.

[00:17:20] Speaker 00:
It's an effect and evidence you're hearing about.

[00:17:23] Speaker 00:
the search and not really a trial on the merits.

[00:17:29] Speaker 00:
What possible reason is there for not giving him the two points for acceptance of responsibility?

[00:17:35] Speaker 04:
Your Honor, I think Judge Oreck's comments need to be considered in the overall context in which they were made.

[00:17:40] Speaker 04:
He did remark that that attempted change of plea happened approximately three days before trial.

[00:17:45] Speaker 04:
That goes to the timeliness of Mr. Ryan's conduct purporting to reflect acceptance of responsibility, which the guidelines

[00:17:52] Speaker 04:
and this circuit have said is a permissible consideration in determining whether a defendant manifests genuine acceptance of responsibility, that genuine contrition.

[00:18:02] Speaker 00:
I think the key... Forgive me for interrupting, but I'm just not understanding the logic of the argument you're making right now.

[00:18:12] Speaker 00:
You're told by your lawyer, let's say you say to your lawyer in my hypothetical, I'm guilty of sin.

[00:18:20] Speaker 00:
And the lawyer says, fine, but we've got a issue that is of constitutional dimensions that is unsettled in this circuit.

[00:18:33] Speaker 00:
And so we're going to challenge that because if we went on that, the government might not be able to convict you at all.

[00:18:42] Speaker 00:
And so you say, fine, how does that assertion of the most basic fundamental Fourth Amendment rights

[00:18:52] Speaker 00:
coupled with no other indication that you're denying your guilt in any way, shape, or form constitute a failure to accept responsibility.

[00:19:00] Speaker 04:
And, Your Honor, I want to focus on the last thing you said there.

[00:19:03] Speaker 04:
Coupled with no indication that you are contesting your guilt other than preserving that appellate claim.

[00:19:09] Speaker 04:
That is not what happened here, Your Honor.

[00:19:11] Speaker 00:
I thought he offered to plead guilty by preserving only this issue.

[00:19:15] Speaker 04:
Your Honor, if you look to Judge Oreck's statements on page 41 of the record,

[00:19:20] Speaker 04:
Before he makes that comment about this attempted change of plea happening approximately three days before trial, he notes that the attempted change of plea happened

[00:19:28] Speaker 04:
only after Mr. Ryan's motion in Lemony seeking to exclude the evidence showing him with the firearm from being presented to the jury.

[00:19:38] Speaker 04:
That motion to exclude the jury from being able to see that evidence was not predicated on a constitutional claim.

[00:19:44] Speaker 00:
It was not predicated on a challenge to whether there was... But it wasn't premised on a denial of guilt.

[00:19:50] Speaker 04:
It certainly was, Your Honor.

[00:19:51] Speaker 00:
No, it was premised on that the, as I understand it, the motion in limine was that for legal grounds this evidence should be excluded.

[00:19:59] Speaker 04:
The argument that was made, Your Honor, was that the video, this inculpatory video,

[00:20:04] Speaker 04:
was only produced after the Rule 16 deadline, which was factually inaccurate.

[00:20:10] Speaker 00:
Well, that may be, but why is that in any way, shape, or form a denial of guilt?

[00:20:15] Speaker 00:
That's an assertion of a legal right to timely disclosure.

[00:20:19] Speaker 00:
Maybe they got it wrong, and the judge held they got it wrong, and the evidence came in.

[00:20:25] Speaker 00:
I think what you're saying is,

[00:20:29] Speaker 00:
In effect, someone gets indicted and even if there's no question in their own mind and in their lawyer's mind,

[00:20:45] Speaker 00:
that they are guilty and will ultimately have to accept guilt if their legal defenses don't hold water, that nevertheless, if they have meaningful legal defenses, the hell with that.

[00:21:01] Speaker 00:
We're just going to throw that away because, by gosh, pleading guilty in the government's view means giving up all your rights.

[00:21:10] Speaker 00:
Is that what you're saying?

[00:21:11] Speaker 04:
No, Your Honor.

[00:21:12] Speaker 04:
I think also it's important to keep in mind here that Judge Orrick was in a unique position being able to see Mr. Ryan and the way he litigated this case all the way up to and through trial as to whether he had genuinely manifested an acceptance of responsibility.

[00:21:26] Speaker 04:
And I want to highlight another portion.

[00:21:28] Speaker 00:
He didn't testify.

[00:21:29] Speaker 04:
He did not, Your Honor.

[00:21:30] Speaker 00:
So when you say you're saying, what are you talking about?

[00:21:33] Speaker 00:
He saw his lawyer making legal arguments.

[00:21:36] Speaker 00:
You never saw him.

[00:21:37] Speaker 00:
What are you talking about?

[00:21:39] Speaker 00:
Did he blink his eyes?

[00:21:41] Speaker 00:
Did he grimace?

[00:21:42] Speaker 00:
None of that's in the record.

[00:21:44] Speaker 00:
It probably didn't happen.

[00:21:45] Speaker 04:
By way of example, Your Honor, he filed motions in Lemony seeking to present this third party alternative perpetrator defense.

[00:21:52] Speaker 04:
I think

[00:21:52] Speaker 04:
That and his conduct with respect to the motion of limiting on the EVA trial distinguishes this case from one such as the Luang decision, where in that case, the defendant was not contesting his actual underlying conduct at all.

[00:22:06] Speaker 04:
All he was saying was simply, my conduct does not rise to the level of an interstate nexus.

[00:22:10] Speaker 00:
Why does the government not agree to accept his guilty plea contingent only on his preserving his constitutional argument?

[00:22:21] Speaker 04:
Your honor, Mr. Ryan never sought a conditional plea until the eve of trial.

[00:22:26] Speaker 04:
So?

[00:22:26] Speaker 04:
The government had, at that point in time, the parties were prepared to proceed.

[00:22:32] Speaker 00:
So, isn't that the rationale that underlies the third point?

[00:22:38] Speaker 00:
That's the one about you have to plead.

[00:22:41] Speaker 00:
If you want the third point, you have to plead guilty in time to save the government from having to prepare for trial and so forth.

[00:22:52] Speaker 00:
It has nothing to do with the other two points.

[00:22:54] Speaker 04:
Yes, Your Honor, but the government never argued nor did Judge Orr ever indicate that the saving of resources was a basis for denying Mr. Ryan acceptance of responsibility here.

[00:23:03] Speaker 04:
The parties were going to proceed to some sort of evidentiary hearing.

[00:23:06] Speaker 04:
regardless of what happened, whether that conditional plea was consented to or not.

[00:23:10] Speaker 04:
And that's exactly what the parties did after the bench trial.

[00:23:13] Speaker 04:
So I don't think there was a question here in anyone's mind of, well, Mr. Ryan didn't save the party's time, and therefore he's not entitled to acceptance of responsibility.

[00:23:22] Speaker 04:
I do want to highlight also in the record, page 51 specifically, because Judge Oreck was not

[00:23:29] Speaker 04:
dealing with this situation on a blank slate.

[00:23:31] Speaker 04:
Mr. Ryan has a lengthy criminal history, including he fell within criminal history category six.

[00:23:38] Speaker 04:
He also had prior convictions that were not even included in his criminal history because they were so dated.

[00:23:44] Speaker 04:
And the court was mindful that Mr. Ryan engaged in a long series of criminal times.

[00:23:49] Speaker 00:
Yeah, well, that goes to the amount of sense.

[00:23:51] Speaker 00:
But in this case,

[00:23:52] Speaker 00:
The sentencing guidelines, the high was I think 80 to 105 or something like that, and he gave him 105.

[00:24:00] Speaker 00:
So his calculation of the guidelines clearly played a role in the judge's determination.

[00:24:07] Speaker 00:
He decided as a bad guy, I'm going to give him the top of the guideline range.

[00:24:12] Speaker 00:
And therefore, if he had the top of the guideline range too high, because he didn't give the two points, it clearly affected his decision.

[00:24:20] Speaker 04:
Your Honor, I think the fact that Mr. Ryan had a previous federal sentencing proceeding where he expressed contrition to the judge who was presiding over that and then proceeded to engage in a long string of criminal conduct

[00:24:33] Speaker 04:
affected Judge Oreck's view as to whether any representation about genuine contrition in this case was actually genuine.

[00:24:40] Speaker 00:
Well, so if he got the guidelines wrong and we send it back and he still feels, oh, this guy is so bad, I'm going to give him an above guideline sentence, he has, of course, the power to do that.

[00:24:51] Speaker 00:
But that's not the issue before us, is it?

[00:24:53] Speaker 04:
Your Honor, I think the record is clear here that it was not related to Mr. Ryan's requiring or

[00:25:01] Speaker 04:
The fact that the parties went to trial.

[00:25:02] Speaker 04:
That was what animated Judge Oreck's decision that there was not genuine contrition here.

[00:25:07] Speaker 04:
It's really the fact that he filed this motion limiting seeking to prevent the jury from seeing evidence that he possessed the gun in question.

[00:25:16] Speaker 04:
And the fact that his prior expressions of contrition were simply, they rang hollow, Your Honor.

[00:25:21] Speaker 04:
And I think that is something Judge Oreck specifically said at sentencing.

[00:25:24] Speaker 04:
That is something that really weighs on me.

[00:25:26] Speaker 04:
He said that in your prior sentencing proceeding before Judge Kronstadt,

[00:25:30] Speaker 04:
when you indicated that you were sorry for your conduct, you either lied or what you said was wholly untrue.

[00:25:35] Speaker 04:
And I think that is something that deeply weighed on Judge Oreck when Mr. Ryan was claiming that simply because he purportedly went to trial to preserve his constitutional claims, he was still entitled to credit for acceptance of responsibility.

[00:25:49] Speaker 04:
The core issue is, did he carry his burden of establishing genuine contrition here?

[00:25:54] Speaker 04:
And the record establishes that he did not, Your Honor.

[00:25:59] Speaker 02:
Could you spend just a minute on this question of whether the Cervantes third prong is something that we should still be applying?

[00:26:08] Speaker 04:
Certainly, Your Honor.

[00:26:10] Speaker 04:
So the government's position is that the Cervantes prong is no longer good law in this circuit.

[00:26:15] Speaker 04:
I think going to judge Da Alba's earlier question, Brigham City did overrule that third prong of Cervantes.

[00:26:20] Speaker 04:
Although it appears that CERT was granted in that decision to resolve a split among the circuits as to whether the second prong

[00:26:28] Speaker 04:
was valid, the court resolved that question, but it also then analyzed how the emergency exception doctrine should be applied.

[00:26:37] Speaker 04:
And what it did was it followed a general reasonableness assessment after it was established that there was an emergency that officers were responding to.

[00:26:47] Speaker 04:
Specifically, it looked to whether there was an object, I'm sorry, on that it considered the reasonableness of the search both as to the manner and the scope of the emergency.

[00:26:55] Speaker 04:
That's from Brigham City,

[00:26:56] Speaker 04:
at 406 to 407, and that's exactly what Snipes' second prong is.

[00:27:02] Speaker 04:
Going to another question, to the extent the court were to find that the Cervantes' third prong is still good law, I think it would be met here, Your Honor, and that's because there was a reasonable basis to associate the emergency with the area to be searched, which was here, the parking lot where the emergency was unfolding.

[00:27:18] Speaker 00:
Now, what's the government's position, assuming we agree with you, that if argument of the third prong still applies,

[00:27:27] Speaker 00:
it's been met.

[00:27:29] Speaker 00:
Do we then, nevertheless, say, well, we want to clarify the law, so we say the third prong is in or out?

[00:27:37] Speaker 00:
Or do we just say, so we don't have to reach the issue here?

[00:27:40] Speaker 04:
I think that could clear up some confusion that apparently is evident based on Mr. Ryan's arguments here.

[00:27:45] Speaker 04:
So if the court would like to clarify that issue for future litigants, I think, you know, it would certainly be well within reason in doing so.

[00:27:54] Speaker 04:
Your honors I see that I'm out of time so unless there any further questions we would request.

[00:27:59] Speaker 01:
Thank you I'd like to start just by addressing that last point on Brigham City so Brigham City has been out since 2006 and the

[00:28:13] Speaker 01:
this issue of the nexus between the place to be searched and the emergency has clearly come up before.

[00:28:21] Speaker 01:
And the fact that no other circuit has said that that's been obviated, I think it's a huge deal.

[00:28:26] Speaker 01:
Again, more than approximately 10 years have passed, and we have cited a circuit, a case from about six months ago that says clearly

[00:28:35] Speaker 01:
This is from Giambro, which we've cited, a first circuit case from January of 2025 this year.

[00:28:40] Speaker 01:
The second requirement of the emergency aid exception is that officers have an objectively reasonable basis to believe that an individual who needs emergency aid is in the place they decide to search.

[00:28:50] Speaker 01:
That was critical to their holding because that was a nexus case about whether or not the person in need of emergency aid was in a trailer.

[00:28:57] Speaker 00:
Do you think the ninth circuit should pay attention to any other circuit?

[00:29:00] Speaker 00:
Is that contrary to our tradition?

[00:29:03] Speaker 01:
Regardless of whether it is contrary tradition or not, I think if this court determines that the third sprung of Cervantes is not good law, it would be at odds with both the first circuits.

[00:29:18] Speaker 02:
Part of the problem is that we already said in snipe that we were establishing a new test in place of Cervantes.

[00:29:28] Speaker 02:
So I don't see how we as a three-judge panel get around

[00:29:33] Speaker 02:
that language.

[00:29:33] Speaker 02:
We said in SNIPE quite clearly that this third prong of Cervantes was superfluous.

[00:29:39] Speaker 02:
We didn't say that there didn't have to be any relationship at all between the place to be searched and the emergency, but we did say that we had a new test.

[00:29:49] Speaker 02:
And as a three-judge panel, I don't see how we then go back and say, well, no, we didn't really mean it in SNIPE.

[00:29:55] Speaker 02:
There is still this three-prong.

[00:29:58] Speaker 01:
But then why did a published opinion in Hopkins say that the third prong was unaffected?

[00:30:04] Speaker 02:
I think that was dicta.

[00:30:05] Speaker 02:
And I haven't been able to identify any other case since Hopkins that's applied a third prong in the way that Hopkins said existed.

[00:30:13] Speaker 02:
I mean, if you have such a case, I'd like to hear it.

[00:30:17] Speaker 02:
But I looked through all of our cases, all of those citing Hopkins.

[00:30:20] Speaker 02:
I didn't see any that tried to resurrect this third prong of Cervantes in the way that Hopkins

[00:30:27] Speaker 02:
maybe attempted to, I think, in DICTA.

[00:30:29] Speaker 01:
Well, I think the lack of cases shows how outside of the heartland of the emergency exception this case is.

[00:30:36] Speaker 01:
And we did point to two cases out of this, not in this circuit.

[00:30:40] Speaker 02:
Well, right, no, I'm asking for cases out of the Ninth Circuit, because whatever, what other circuits do doesn't matter here.

[00:30:48] Speaker 02:
We have a decision in SNIPE.

[00:30:51] Speaker 02:
We're bound to follow that unless

[00:30:55] Speaker 02:
the Supreme Court has overruled us, or we've overruled ourselves on Bonk, that hasn't happened so far, as I can see.

[00:31:01] Speaker 02:
And I, again, can't see any other case from our circuit that's followed Hopkins.

[00:31:06] Speaker 02:
So if you can just focus on that question, can you identify any other case from our circuit that has followed Hopkins in saying that there is still this freestanding third prong of Cervantes that we should apply?

[00:31:19] Speaker 01:
So I don't think I can identify specifically any case in this circuit.

[00:31:23] Speaker 01:
But I will also add that the decision in Snipes says that the reasoning is that this third prong has been rendered superfluous.

[00:31:32] Speaker 01:
In other words, I think they're merging the third prong with the second prong, which is the manner and scope.

[00:31:37] Speaker 01:
Because the manner and scope is also, in many ways, a similar idea or concept to the third prong of Cervantes.

[00:31:45] Speaker 01:
And on that point, I did want to bring up, this is both a manner and scope point,

[00:31:49] Speaker 01:
as well as the Cervantes third point, is that specifically in this case, the officers did knock on the window of the white Lexus.

[00:31:58] Speaker 01:
We saw them in the body on camera, we've raised this repeatedly on appeal, and never has the government answered us, why can't they do that to the Audi?

[00:32:06] Speaker 01:
They said this was quick, but so was the knock on the white Lexus.

[00:32:09] Speaker 01:
So that is a similar Cervantes inquiry, but it's also a manner and scope, which- Council, was the Lexus running?

[00:32:19] Speaker 01:
I don't think the Lexus was running, but that did not stop them from trying to open that door.

[00:32:23] Speaker 01:
We saw clearly in the video, they're trying to open the door, which is exactly what they did.

[00:32:27] Speaker 01:
So the fact that it was running or not clearly had no bearing on whether or not they were going to open a car.

[00:32:32] Speaker 03:
The government... They knocked, correct?

[00:32:34] Speaker 03:
Didn't you just make that point that they knocked on the Lexus, they should have knocked on the Audi.

[00:32:37] Speaker 03:
And I'm telling you, I'm asking you whether the difference could be that the Audi was running.

[00:32:41] Speaker 03:
So perhaps knocking on it might have them take off.

[00:32:45] Speaker 01:
I don't think that's a meaningful difference in this case because we did cite a sixth circuit case called Morgan that sort of explains that there are so many options in an automobile case and that the concerns about alerting people would seem to be alleviated by lesser measures, not increased by them.

[00:33:07] Speaker 01:
So it's not explained why

[00:33:09] Speaker 01:
alerting and knocking on the door of the white Lexus was necessary when it wasn't running.

[00:33:16] Speaker 01:
So why did they engage in this conduct in one case and not the other?

[00:33:20] Speaker 01:
Because they clearly did suspect the white Lexus, so then why did they knock on it?

[00:33:26] Speaker 01:
And so I think the most troubling part of this argument today was that the government got up here and said that their position is that they could have searched all the cars.

[00:33:36] Speaker 01:
That's at least 8 to 12 cars.

[00:33:37] Speaker 01:
I want to emphasize, and we didn't have enough time to get this in our reply brief, the Fourth Circuit opinion in Curry.

[00:33:43] Speaker 01:
In that case, there was a shooting, and there were about five to eight men walking.

[00:33:47] Speaker 02:
Why don't you just give us the citation to that case, because you're well over your time.

[00:33:51] Speaker 01:
Yeah, it's cited in our briefing.

[00:33:52] Speaker 01:
It's 965 F3rd, 313.

[00:33:54] Speaker 01:
That's the 4th Circuit in Curry.

[00:33:55] Speaker 01:
It was an in-bank opinion that carefully analyzes this issue of individualized suspicion.

[00:34:00] Speaker 02:
OK, thank you very much.

[00:34:02] Speaker 02:
We thank both counsel for their very able arguments this morning.

[00:34:05] Speaker 02:
And this case is now submitted.

[00:34:08] Speaker 02:
We stand adjourned for the day.

[00:34:09] Speaker 02:
Thank you.