[00:00:04] Speaker 03: Good morning, Your Honors. [00:00:06] Speaker 03: John Lannyhan on behalf of Mr. Serrano. [00:00:07] Speaker 03: Who's the applaud? [00:00:10] Speaker 03: I only have 10 minutes. [00:00:12] Speaker 03: I look at this as a series of Russian dolls. [00:00:16] Speaker 03: Each doll has a different aspect of a Fourth Amendment violation. [00:00:22] Speaker 03: And Judge Kristen, I know you say get to your get to your strongest arguments, so I will I will bypass the Randolph whether this is Georgia versus Randolph I will okay figured we're not going to waste time on that the issue really comes down to What is the search of the locked tool bench? [00:00:42] Speaker 04: Well, or is it a search or is it plain view so? [00:00:45] Speaker 04: I have a problem with that and I think there's a question. [00:00:48] Speaker 04: So we have case law, it's been cited, that says that a light alone isn't going to transform something into a search that's not a search, right? [00:00:56] Speaker 04: True. [00:00:56] Speaker 04: Okay. [00:00:57] Speaker 04: And so this one seems a little bit different. [00:00:59] Speaker 04: We've all looked at the video and there's an officer peering in through a crack. [00:01:04] Speaker 04: It's not a case where the drawers were open. [00:01:06] Speaker 04: We have other cases where drawers are open a little bit. [00:01:08] Speaker 04: I think it's uncontested these were locked. [00:01:11] Speaker 04: Right. [00:01:13] Speaker 04: He can see it without opening the drawer. [00:01:17] Speaker 03: Well, I hate to go into what is clearly erroneous standard, but as I look at that video, if you look at the two videos, and I think it's specifically in videos 5 and 12, [00:01:31] Speaker 03: Initially, the wife pulls on the drawer, it won't open, and you can see how much it opens. [00:01:38] Speaker 03: And then the police are looking at it. [00:01:40] Speaker 03: He claims it's an inch and a half. [00:01:43] Speaker 03: I don't think it's an inch and a half. [00:01:44] Speaker 04: Well, he says he can see white powder, and he says he can see a scale, I believe. [00:01:49] Speaker 03: Right. [00:01:49] Speaker 04: And he decides, and I think this is what the district court was relying on. [00:01:52] Speaker 04: She says, by the way, there's no seizure there. [00:01:55] Speaker 04: There's no seizure that results from that. [00:01:56] Speaker 04: In fact, they told the family they were going to go home and they couldn't arrest him. [00:01:59] Speaker 03: Correct it wasn't right so the issue with it that doesn't actually lead into and at the time the police said there isn't enough probable cause to arrest him so they had to go further. [00:02:09] Speaker 04: Right so if I decide that judge the district court was correct on the plain view. [00:02:17] Speaker 04: Doctrine as to the way you're calling a search with the peak into the into the locked file cabinet I don't understand your fruits argument as to the second one what I'm thinking of a separate episode. [00:02:28] Speaker 03: Well, I mean, I don't think there was enough probable cause based on that. [00:02:34] Speaker 03: And I'm saying it's a search. [00:02:36] Speaker 03: I mean, there's two parts of the First Amendment. [00:02:38] Speaker 03: There's the unreasonable search, and then there's the unreasonable seizure. [00:02:41] Speaker 04: OK, but they didn't seize anything. [00:02:43] Speaker 04: Correct. [00:02:44] Speaker 04: Right. [00:02:44] Speaker 04: And they said, we don't have enough. [00:02:46] Speaker 04: We're leaving. [00:02:46] Speaker 04: And then when I think of this as episode two, the family says, well, what if we accuse him? [00:02:52] Speaker 04: There's that video. [00:02:54] Speaker 04: I don't know which one it is. [00:02:55] Speaker 04: The officer is saying he's accused of rape. [00:02:57] Speaker 04: They say, what if we accuse him of drug trafficking? [00:02:59] Speaker 04: He's got drugs in there. [00:03:01] Speaker 04: And that starts a whole separate episode where the family winds up unlocking the cabinet. [00:03:05] Speaker 03: Correct. [00:03:06] Speaker 03: Well, I'm not contesting the search that's initially involving the rape. [00:03:12] Speaker 03: That's why they're there, that's a whole separate basis. [00:03:18] Speaker 04: My question is, maybe not asked very clearly, my question is if we, even if we agreed that the peak into the file cabinet was a search that exceeded the scope of the plain error, sorry, plain view doctrine, right, nothing was seized from it and there's this intervening, I think, second episode where the family raises a separate concern and they wind up opening the file cabinet. [00:03:41] Speaker 03: Correct. [00:03:42] Speaker 04: So what is, I don't understand your fruits argument. [00:03:45] Speaker 03: Well, I mean the fruits argument comes in, well the fruits argument is that in opening the drawer, [00:03:52] Speaker 03: That's when they actually have sufficient evidence to then put in the search warrant. [00:03:57] Speaker 03: That's the fruits. [00:03:58] Speaker 03: The fruits is really what happens after the drawer is open. [00:04:01] Speaker 04: I see. [00:04:02] Speaker 04: All right. [00:04:02] Speaker 03: So the issue then comes down to, I mean, I think it's very clear that the intention of Mr. Serrano was that other persons would not have access to that. [00:04:12] Speaker 03: Now I know his wife claims that somehow or other she had looked in, but that was clearly not with his permission. [00:04:19] Speaker 03: That was a locked cabinet. [00:04:20] Speaker 03: It was meant only for him. [00:04:23] Speaker 03: So then the question is, is it ultimately a private search? [00:04:27] Speaker 03: Because it's clear that he doesn't want anybody else looking at it. [00:04:31] Speaker 03: So then as I'm looking at the circumstances, essentially, [00:04:36] Speaker 03: Ms. [00:04:37] Speaker 03: Valenzuela at this point was trying to get additional information to get her husband arrested because they had told her, we don't have enough. [00:04:46] Speaker 04: I think she's pretty clear about that. [00:04:47] Speaker 04: She was concerned about the safety of her family. [00:04:49] Speaker 04: So the district court decides this is a private search. [00:04:52] Speaker 03: Well, I actually I have looked this pretty clear carefully. [00:04:56] Speaker 03: And if you look at the tape, if you look at D12 somewhere around toward the end of it, I think it's they start discussing this around four minutes to six minutes. [00:05:06] Speaker 03: Her concern is not for the safety of her family. [00:05:09] Speaker 03: In fact, she doesn't actually want to leave the house. [00:05:12] Speaker 02: How can you say that? [00:05:14] Speaker 02: Well, it was absolutely clear that she was concerned about the safety of her family. [00:05:20] Speaker 02: And that was a big driver in the whole thing. [00:05:23] Speaker 02: Well, but she doesn't say that. [00:05:25] Speaker 02: And the officers repeatedly said, we can't help you. [00:05:27] Speaker 02: We can't help you. [00:05:28] Speaker 02: We can't help you. [00:05:30] Speaker 02: They were concerned. [00:05:31] Speaker 02: They moved privately. [00:05:33] Speaker 02: And as long as it was done privately, on what basis you complained about the fruits in this case? [00:05:39] Speaker 03: Well, I mean, as I'm looking at the actual discussion, she doesn't want to leave the house. [00:05:48] Speaker 03: She appears to have a certain annoyance that she has to take things out of the house and leave for 48 hours. [00:05:55] Speaker 03: The concern is not that he will come back. [00:05:58] Speaker 03: The concern is he will go to Mexico. [00:06:00] Speaker 02: Well, she was concerned about that, but she was also concerned about her safety and the safety of her daughters. [00:06:06] Speaker 02: They voiced that. [00:06:07] Speaker 03: Well, I mean, obviously, I am looking at it differently because if she's really not concerned about leaving, if she's not concerned about leaving the house and she wants to stay, then, so I don't, I don't think the concern. [00:06:22] Speaker 02: She wanted, she wanted, did she not for him to be arrested so they would not be in danger. [00:06:27] Speaker 03: And she wanted to use. [00:06:28] Speaker 02: The officers repeatedly said, we can't help you, we can't help you, we can't help you. [00:06:32] Speaker 02: And then she took matters into her own hands privately. [00:06:34] Speaker 02: They didn't tell her to do it. [00:06:36] Speaker 02: She did it because she was concerned, right? [00:06:38] Speaker 03: Well, and she wanted to use the police to do that. [00:06:41] Speaker 03: She wanted to make sure they were there. [00:06:43] Speaker 03: She wanted to make sure that the search happened so that they were there so that they would then have him arrested. [00:06:50] Speaker 03: He was outside. [00:06:51] Speaker 03: I mean, he wasn't coming in. [00:06:52] Speaker 03: There was no danger at that point. [00:06:55] Speaker 03: So I think that and actually [00:07:01] Speaker 03: in looking at the way the police were handling her, they knew she was concerned. [00:07:06] Speaker 03: But they were essentially saying, the only way this can happen is if you open it. [00:07:13] Speaker 03: And that, to me, now says the only way this can happen is you're working with us. [00:07:19] Speaker 02: So why do you have to interpret it that way? [00:07:22] Speaker 02: If her motivation was self-preservation, protect her daughter, including one that had been raped, she was concerned. [00:07:30] Speaker 02: Why do you say that that deputizes her? [00:07:32] Speaker 02: It seemed to me the police, in this case, were actually extraordinarily careful to say, to limit what they could do. [00:07:41] Speaker 02: They told them that repeatedly. [00:07:43] Speaker 03: Why would that deputize them? [00:07:45] Speaker 03: But then when she says, well, do you want me to open it? [00:07:47] Speaker 03: And he says, sure. [00:07:48] Speaker 04: I think that's showing that they... He said, do you want to show me? [00:07:53] Speaker 03: OK. [00:07:54] Speaker 04: But he repeatedly said, I can't break it open. [00:07:56] Speaker 04: I can't do this. [00:07:58] Speaker 04: It's locked. [00:07:58] Speaker 04: It's his. [00:08:01] Speaker 03: he's not a prevent her from and i think you seem to be arguing that he he had a duty the opposite i do to prevent her from undertaking a private search is that your position or am i misunderstanding you okay by uh... to me i think the way the way she was being uh... treated by the police and the way that they were trying to use her was to try and say [00:08:22] Speaker 03: I know I can't open it. [00:08:24] Speaker 03: I know I don't have the probable cause. [00:08:27] Speaker 03: But is doing it in such a way that if she agrees to do it, then we get to see it. [00:08:31] Speaker 04: So you think that they were encouraging her impudently? [00:08:34] Speaker 04: Yes. [00:08:34] Speaker 04: All right. [00:08:34] Speaker 04: We haven't given Judge Forrest an opportunity to ask a question. [00:08:37] Speaker 04: Do you have any? [00:08:38] Speaker 03: No. [00:08:38] Speaker 03: OK. [00:08:39] Speaker 04: Do you want to reserve the rest of your time, sir? [00:08:40] Speaker 03: All right. [00:08:40] Speaker 03: Thank you. [00:08:41] Speaker 03: I'll come back for rebuttal. [00:08:42] Speaker 04: Yes. [00:08:43] Speaker 03: All right. [00:08:49] Speaker 00: Good morning, Your Honors. [00:08:50] Speaker 00: May it please the Court, Nicholas Pilchak for the United States. [00:08:53] Speaker 00: This Court should affirm Mr. Serrano's convictions for possession of methamphetamine with intent to distribute and possession of an illegal silencer and an AR-15-style rifle as a five-time felon. [00:09:02] Speaker 00: As a district court found in its carefully reasoned written decision, every step of the warrantless search of Mr. Serrano's and the family's garage and Mr. Serrano's tool bench was supported by a well established exception to the warrant requirement. [00:09:16] Speaker 01: Can I focus you on the thing that we were just talking about with your friend across the aisle in terms of [00:09:23] Speaker 01: The legal standard is that for private action to be attributed to the government, the government either has to be a direct participant in that private action or an indirect encourager, basically. [00:09:35] Speaker 01: But acquiescence all by itself, not enough. [00:09:38] Speaker 01: So I'm curious, if we agree with your view of this case, how do we write the rule so that it stays cabined? [00:09:46] Speaker 01: What meaning do we give to indirect encouragement, right? [00:09:51] Speaker 01: has some similarity to the Reid case, which was the Hotel case. [00:09:56] Speaker 01: And how do we still give effect or meaning to this indirect encourager if we say that that didn't happen in this case? [00:10:05] Speaker 00: So I think there's multiple ways to do that. [00:10:06] Speaker 00: One, I don't think the court needs to write a new rule in this case. [00:10:09] Speaker 00: I think the existing rules answer all the legal questions. [00:10:12] Speaker 00: Counsel, could you move closer to the mic? [00:10:13] Speaker 00: I can't hear you. [00:10:14] Speaker 00: Certainly, I apologize. [00:10:15] Speaker 00: I think the existing rules answer all of the questions in this case. [00:10:19] Speaker 00: As to encouraging and inducing, I think in this case, the factual record is clear that the police didn't do that. [00:10:26] Speaker 00: As Judge Smith's questions alluded to, they were very scrupulous. [00:10:29] Speaker 00: Multiple police officers said, we can't break this open. [00:10:33] Speaker 00: We can't tell you what to do. [00:10:34] Speaker 00: They don't manipulate the tool bench. [00:10:36] Speaker 00: They rely on whatever state it's in after Ms. [00:10:39] Speaker 00: Valenzuela touched it herself. [00:10:40] Speaker 01: I mean, the best facts for the defense here are right. [00:10:43] Speaker 01: Yes, we can't do that. [00:10:46] Speaker 01: But you could. [00:10:47] Speaker 01: And then they kind of hang around. [00:10:49] Speaker 01: It's not like they march out of the garage and move on with their day or go out to where they've got the defendant detained. [00:10:55] Speaker 01: They're kind of there and seeing what she's going to do. [00:10:58] Speaker 01: And of course, they're thinking, I would think, [00:11:02] Speaker 01: Let's see what she does. [00:11:02] Speaker 01: If she does this, maybe we'll all benefit from seeing what's in there, right? [00:11:06] Speaker 01: So why isn't that indirect encouragement? [00:11:08] Speaker 00: I'm sure that occurred to them. [00:11:10] Speaker 00: I will say, I think factually in the videos, at the point at which Miss Valenzuela procures the key and marches into the garage and opens the tool bench, it does appear from the videos that the police were preparing to pack up and leave. [00:11:21] Speaker 00: And so I don't think this is a pantomime where they were trying to nudge and wink her. [00:11:25] Speaker 00: Can you open the tool bench now? [00:11:26] Speaker 04: Which video should we look to to see that the police were getting ready to pack up and leave? [00:11:30] Speaker 04: Is it the one where they're in the, I think it's in a kitchen and they're saying we can't arrest that one? [00:11:34] Speaker 00: Correct, yes. [00:11:34] Speaker 00: And Ms. [00:11:35] Speaker 00: Valenzuela is very emotional. [00:11:36] Speaker 00: She's very distraught when she learns that they're not going to arrest her husband for the rape of her 14-year-old daughter. [00:11:41] Speaker 04: Well, that's the video where she says, he's accused of rape. [00:11:47] Speaker 04: I think this is the same video. [00:11:48] Speaker 00: Yes. [00:11:49] Speaker 04: There's several, but we watched all of them. [00:11:51] Speaker 04: Yes. [00:11:51] Speaker 04: And he's accused of rape, and then she says, what if I accuse him of basically a drug crime? [00:11:56] Speaker 04: He's got drugs in there. [00:11:57] Speaker 00: Correct. [00:11:58] Speaker 00: And they don't say, yes, please open the tool bench. [00:12:01] Speaker 00: They don't say, have you found the key yet? [00:12:03] Speaker 00: She says, what if I accuse him of drug trafficking? [00:12:05] Speaker 00: And I'm paraphrasing. [00:12:07] Speaker 00: Those things that he used to make my daughter like that, where she's clearly talking about drugs, are in that tool bench just watching us all walk around. [00:12:14] Speaker 00: And then she procures the key, which she says her daughter found, I believe, in the bedroom, and opens it. [00:12:20] Speaker 00: And the only real verbal encouragement that she has is Detective Meyer's statement when she says, what if I open it or what if I show you? [00:12:26] Speaker 00: And he said, sure. [00:12:27] Speaker 00: do you want to show me, which I think was encapsulated in your question a moment ago. [00:12:32] Speaker 00: And that statement all by itself is not enough under this court's precedence for encouraging... And that's what Judge Forrest is asking. [00:12:39] Speaker 04: Why not? [00:12:40] Speaker 00: It's not for, so there's I think a couple of reasons. [00:12:43] Speaker 00: I think the clearest and simplest one is you also look to the purpose of the private searcher. [00:12:48] Speaker 00: And in Reed, which I think is Mr. Serrano's best case, the evidence in that case was that the, I think it was a hotel clerk, explicitly said, I had no other purpose. [00:12:57] Speaker 00: I wasn't trying to help the hotel. [00:12:58] Speaker 00: I wasn't trying to do anything. [00:13:00] Speaker 00: I just wanted to help the police. [00:13:02] Speaker 01: But that's a separate element, right? [00:13:03] Speaker 01: I mean, I think we think about this as two things. [00:13:05] Speaker 01: Do we have private conduct? [00:13:06] Speaker 01: And then does the private actor have their own reason for acting? [00:13:10] Speaker 01: And I agree with you that Reid, does the private actor have their own reason, the facts there look pretty different from this case. [00:13:17] Speaker 01: But on the first part about is this encouragement or is this mere acquiescence, I'm looking for sort of what is the material difference between this case and Reid on that element. [00:13:28] Speaker 00: I think the other difference is for mere acquiescence in the conduct to be a show-stopping problem for a private search, I think the private search has to have some element of illegality. [00:13:37] Speaker 00: So that's when it's incumbent on the police not just to stand by or say, OK, well, if you want to open it, go ahead. [00:13:43] Speaker 00: I think that's when it becomes incumbent on the police to say, whoa, hang on. [00:13:46] Speaker 00: I don't think that you should do that. [00:13:48] Speaker 00: And I think in this case, in the district court, Mr. Serrano never made any argument of illegality. [00:13:53] Speaker 00: And in fact, in the district court's careful decision, the district court said, he's not arguing illegality. [00:13:57] Speaker 00: And I've looked, and I can't find anything that makes what Ms. [00:14:00] Speaker 00: Valenzuela did [00:14:01] Speaker 00: illegal and now an appeal in Mr. Serrano's opening brief again he didn't say anything about that it's not until his reply brief that he now raises a new argument where he says well it could be California tortious interference or invasion of privacy or California tortious trespass I don't think either of those fit the facts of the situation as the district court said it's not clear that one spouse can trespass into the property of another spouse in the shared marital home Mr. Serrano has cited no case like that [00:14:28] Speaker 00: And for an invasion of privacy under the California tort laws, it has to be an invasion that's highly offensive to a reasonable person. [00:14:36] Speaker 00: And one spouse going in another spouse's locked box in their shared garage doesn't seem to fit that element. [00:14:42] Speaker 00: So Mr. Serrano can't identify that Ms. [00:14:44] Speaker 00: Valenzuela's conduct was independently illegal. [00:14:46] Speaker 00: And I think a fair question is, what were the police supposed to do at that point in time when she said, I can open the tool bench with the key, [00:14:53] Speaker 00: They weren't required to blind themselves. [00:14:55] Speaker 04: That's clear under Coolidge Even that part's a little squishy because they asked her can you open it and she says well I can open as in I can do it and he's gonna be angry I apologize. [00:15:06] Speaker 04: I don't think they had it. [00:15:07] Speaker 04: I think they it was pretty clear He he kept that area or at least that cabinet locked family had access to the garage I think for other reasons, but [00:15:16] Speaker 04: even that, she does not indicate by my read that he allowed her to go in there, into the cabinet. [00:15:24] Speaker 00: That's fair, Your Honor, and that's why we're not relying on any kind of consent. [00:15:27] Speaker 00: It would be a private search, and that's our legal position for searching the cabinet, is that she did that herself. [00:15:33] Speaker 00: And to the Court's question, I don't recall a moment in the video where they asked her, can you open it? [00:15:39] Speaker 00: I think that edges a little closer to them putting her up to it. [00:15:43] Speaker 00: I think what they did was they very scrupulously said, [00:15:46] Speaker 00: We can't open it. [00:15:47] Speaker 00: It's your property. [00:15:48] Speaker 00: We can't tell you what to do, but we can't open it. [00:15:50] Speaker 00: And if the court wants to go sort of underneath those verbal statements and say, well, we think that they were nudging and winking her, I think that's inconsistent with the district court's factual findings, which are entitled to deference under the clearly erroneous standard. [00:16:04] Speaker 00: So I think the facts as the district court found them are that the police were on site doing a scrupulous job and trying to abide by the rules of the road for this search and that when they were preparing to pack up and leave Miss Valenzuela who had a powerful concern about her family's safety. [00:16:19] Speaker 00: and I think everybody recognizes that, said, what if I search the tool bench, and the closest that they come to encouraging her is saying, sure, do you want to show me, which even by its terms punts the ball back into her court. [00:16:31] Speaker 00: I think that's the best that they could do under those circumstances, and I think that does not frustrate her private search of the tool bench. [00:16:38] Speaker 04: I don't think anybody's asked a question that indicates we want to get to any result. [00:16:41] Speaker 04: We are trying to be very scrupulous about what the record shows. [00:17:00] Speaker 03: I think we understand the issue. [00:17:02] Speaker 03: I do think that essentially, given the circumstances, that this really was encouraging her to do something that they said we couldn't do, but only she could. [00:17:14] Speaker 04: Where do we find that in the record? [00:17:17] Speaker 03: Well, they say we can't open it. [00:17:21] Speaker 03: If we can't open it, then what's left? [00:17:25] Speaker 03: She can. [00:17:26] Speaker 03: And so I think that gap of saying, we can't do it, but you can't. [00:17:33] Speaker 03: I mean, I don't think it's saying, you can. [00:17:35] Speaker 03: But it is clear that they're saying, we can't do it. [00:17:39] Speaker 03: And she's then coming up to say, it essentially produces the key that causes them to do that. [00:17:46] Speaker 03: And I think, again, I'm not trying to make light of the circumstances on why she thought she was in danger, but she was not saying that. [00:17:53] Speaker 03: And in fact, she didn't want to leave the house. [00:17:55] Speaker 03: The house could be secured, and then they could have gotten a warrant. [00:18:00] Speaker 03: That would have meant we weren't even here. [00:18:02] Speaker 03: So thank you. [00:18:03] Speaker 04: Thank you both for your arguments. [00:18:05] Speaker 04: We'll take that case under advisement.