[00:00:00] Speaker 04:
The first case will be Montgomery v. Cruz.

[00:00:03] Speaker 04:
This is 23-1315, and we'll hear from Ms.

[00:00:07] Speaker 04:
Smith.

[00:00:10] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:00:12] Speaker 00:
My name is Madison Smith, and I will be arguing this case on behalf of defendant appellant Armando Cruz.

[00:00:17] Speaker 00:
I would like to reserve two minutes of my time for rebuttal if circumstances permit.

[00:00:23] Speaker 00:
The district court erred here by failing to consider probable cause and only analyzing this case under a Terry Stop standard.

[00:00:30] Speaker 00:
The US Supreme Court has held that a police citizen encounter which exceeds the bounds of Terry Stop may be justified by probable cause or consent.

[00:00:38] Speaker 00:
While this was addressed by the magistrate judge in his recommendation, the district court failed to address probable cause or make any analysis regarding probable cause and rejecting the magistrate judge's order.

[00:00:49] Speaker 00:
In two cases involving almost the same facts alleged here and involving the same plaintiff, this court has found that defendant officers did not lack probable cause to arrest Mr. Montgomery based on the fact that he was seen leaving a store with unbagged items, refused to show a receipt, and the store employees reported to the officers that they believed that he had shoplifted.

[00:01:10] Speaker 04:
Is probable cause to arrest the same as probable cause to search?

[00:01:17] Speaker 00:
Under these circumstances, yes, where we are arguing that it's a search incident to an arrest.

[00:01:21] Speaker 04:
No, I understand that.

[00:01:23] Speaker 04:
But let's say the police have videotape of me shoplifting the 7-Eleven down in the plaza.

[00:01:35] Speaker 04:
And so they have probable cause to arrest me.

[00:01:38] Speaker 04:
Does that mean they have probable cause to search my house or search my pockets?

[00:01:44] Speaker 00:
So probable cause to arrest is based off the officer's reasonable belief that that person has committed a crime.

[00:01:51] Speaker 00:
Probable cause to search would be a reasonable belief that evidence of the crime is the place to be searched.

[00:01:57] Speaker 00:
So I think in circumstances where shoplifting, if it's a search of a person, and they have reasonable belief that you have contraband or evidence of that crime on your person, then yes, that probable cause.

[00:02:10] Speaker 04:
But that's my question.

[00:02:12] Speaker 04:
The videotape is from two weeks earlier, so they know I'm a criminal.

[00:02:16] Speaker 04:
Do they have a fair probability that they're going to find anything in my pockets two weeks later?

[00:02:23] Speaker 00:
Two weeks later, I'm sure it would depend on the circumstances of that reasonable belief.

[00:02:29] Speaker 04:
So there is a difference, isn't there, on the probable cause standard for arrest.

[00:02:33] Speaker 04:
And that's why you're arguing a search incident to an arrest, not

[00:02:38] Speaker 04:
that they have probable cause to think he has stuff in his pockets?

[00:02:42] Speaker 00:
Correct, Your Honor.

[00:02:43] Speaker 00:
And I think in this circumstance, they would have probable cause to think that he had contraband in his pockets, given that he was seen leaving the store from the back of the store without going to the front registers first.

[00:02:56] Speaker 00:
He had noticeable bulges in his pockets, and he refused to show a receipt when asked to buy the store.

[00:03:01] Speaker 04:
I thought it was that he was told by somebody at the store that

[00:03:06] Speaker 04:
that he had a sack, but it wasn't a sack from, I think it was Walmart, wasn't it?

[00:03:13] Speaker 04:
But I didn't know that anybody thought that he stuffed something in his pocket.

[00:03:20] Speaker 00:
No, so Mr. Montgomery was seen leaving the Walmart store without stopping at the front cash registers.

[00:03:27] Speaker 00:
And he had items in his hands and in his pockets, or at least a noticeable bulge in his pockets.

[00:03:33] Speaker 00:
He was first stopped by the Walmart employee, Mr. Germain, who asked to see a receipt.

[00:03:39] Speaker 00:
Mr. Montgomery refused to provide that receipt.

[00:03:42] Speaker 00:
And then that's when Officer Cruz became involved, also asked for a receipt, and then spoke with Mr. Germain while Mr. Montgomery went back into the store, placed his items in bags, and then attempted to leave again.

[00:03:55] Speaker 00:
which is when he was stopped again by Officer Cruz.

[00:03:59] Speaker 00:
And so in the two prior cases, well, in the two specific prior cases that I would like to address involving Mr. Montgomery here, the Tenth Circuit found that there was already a probable cause to arrest him in those circumstances.

[00:04:14] Speaker 00:
And those are Montgomery versus Calvano and Montgomery versus Cohn.

[00:04:19] Speaker 00:
And under almost the exact same circumstances I just mentioned,

[00:04:23] Speaker 00:
They're presented here.

[00:04:26] Speaker 00:
Mr. Montgomery was seen leaving the Walmart with unbacked items.

[00:04:29] Speaker 00:
He refused to show a receipt.

[00:04:31] Speaker 00:
And the Walmart employee, Mr. Germain, reported to Officer Cruz that he thought Mr. Montgomery had shoplifted those items.

[00:04:39] Speaker 00:
These facts, coupled with the precedent in Calvano and Cone, and coupled with Officer Cruz's understanding that this particular Walmart location was one of the top shoplifted areas in the nation,

[00:04:53] Speaker 00:
provided Officer Cruz with at least arguable probable cause to arrest and search plaintiff at the time that he was searched.

[00:05:02] Speaker 00:
In fact, the district court had already determined that Officer Cruz did not lack probable cause to arrest plaintiff.

[00:05:08] Speaker 04:
But on interlocutory review, aren't we obligated to credit the district court's findings unless they're blatantly contradicted by the record?

[00:05:18] Speaker 00:
I think that's correct.

[00:05:19] Speaker 00:
I think it is a de novo review.

[00:05:22] Speaker 00:
Yeah.

[00:05:22] Speaker 04:
But we have to credit what, in other words, what the district court concluded that a reasonable fact finder could find, unless it's blatantly contradicted.

[00:05:33] Speaker 00:
I think that's correct, Your Honor.

[00:05:34] Speaker 04:
And the district court concluded that a reasonable fact finder could conclude that Mr. Montgomery was never arrested, right?

[00:05:42] Speaker 00:
So part of this issue is that the magistrate judge found that he was not arrested at the time of the search.

[00:05:50] Speaker 04:
I'm talking about what the district court concluded.

[00:05:53] Speaker 04:
What the magistrate judge recommends is great, but it really doesn't matter until the district court enters an order.

[00:06:04] Speaker 04:
And so with the district judge ordered

[00:06:08] Speaker 04:
A reasonable fact-finder could conclude that Mr. Montgomery was never arrested.

[00:06:12] Speaker 04:
Is that true?

[00:06:13] Speaker 00:
That's correct, but that was specific to at the time that the search happened.

[00:06:18] Speaker 00:
Neither the magistrate judge nor the district court had determined that an arrest didn't happen later on after he was handcuffed and placed in the back of a police car for 45 minutes.

[00:06:30] Speaker 00:
And we had argued that that was sufficient for

[00:06:33] Speaker 00:
an arrest to have been found to occur.

[00:06:37] Speaker 00:
But for the purposes of this appeal, we, at this time, are not disputing that an arrest occurred.

[00:06:46] Speaker 04:
So our- That an arrest did not occur.

[00:06:48] Speaker 00:
Correct, yes.

[00:06:49] Speaker 04:
And the district court never concluded, even though you argued it, that when he was handcuffed and put in the police car, that that was an arrest.

[00:06:58] Speaker 04:
The district court never said a reasonable fact-finder could conclude

[00:07:03] Speaker 04:
that he was ever arrested.

[00:07:04] Speaker 04:
Is that true?

[00:07:06] Speaker 00:
I believe the district court adopted the magistrate's recommendation that a reasonable person couldn't conclude that he was arrested at the time at the search, not afterwards.

[00:07:17] Speaker 00:
And the magistrate judge, which the district court adopted, cited case law stating that search incident to an arrest cannot precede the arrest if that

[00:07:28] Speaker 00:
Search is what provides the probable cause, the fruits of that search.

[00:07:34] Speaker 00:
But our argument is that if we had probable cause to arrest plaintiff at the time that the search occurred, then that should still be considered a search incident to an arrest, because an arrest would have occurred if not for exculpatory information that was discovered in between the search and the arrest.

[00:07:56] Speaker 00:
So in this particular circumstance,

[00:07:58] Speaker 00:
Officer Cruz had argued probable cause to arrest plaintiff, especially considering the Tenth Circuit's precedent in Calvano and Cone at the time that he was stopped and searched.

[00:08:13] Speaker 00:
And in between that search and what would have been the arrest, Officer Cruz was more thorough than the officers in Calvano and Cone and investigated further looking into the surveillance footage to make sure he had actually shoplifted

[00:08:29] Speaker 00:
And that surveillance footage showed that he did, in fact, purchase the items, but just in the back of the store.

[00:08:34] Speaker 03:
Isn't the whole argument against your position, though, that that has to culminate in an actual arrest?

[00:08:40] Speaker 03:
And if you know everybody's agreeing for purposes of this appeal today that there was no arrest, then isn't that the problem for you?

[00:08:52] Speaker 00:
Yes, the problem is where the precedent currently lies in arrest has to occur for a search incident in arrest.

[00:08:58] Speaker 03:
OK, now let me ask you this.

[00:09:00] Speaker 03:
Is it your position that that is the law, that you cannot have a search incident to arrest without an actual arrest?

[00:09:11] Speaker 00:
Yes, that's what the precedent currently states.

[00:09:13] Speaker 03:
And that it's clear and there's no reasonable argument against it?

[00:09:20] Speaker 00:
Yes, under those circumstances.

[00:09:23] Speaker 00:
But that's the issue that's presented here, is that because the Tenth Circuit has allowed a search incident to an arrest to proceed, the actual arrest, and in some cases it's talked about even an hour the search occurs, and then an hour later the arrest occurs.

[00:09:38] Speaker 00:
That doesn't encompass this particular situation, these particular facts, and there's no clearly established law on these particular facts.

[00:09:46] Speaker 00:
That where an officer conducts what would be a valid search incident to arrest, but in the time between the search incident to an arrest and the actual arrest, exculpatory information is then learned.

[00:09:59] Speaker 00:
And then that officer is stuck in a position where they either have to continue with the arrest in violation of the Fourth Amendment because they no longer have probable cause, or they're stuck where Officer Cruz is here where they let the suspect go.

[00:10:14] Speaker 03:
So your position is this is more like the judge friendly case in that posture and that it just, it hasn't been decided in this court or the Supreme Court in such a way that would put your client on notice that they couldn't search.

[00:10:34] Speaker 00:
Correct.

[00:10:34] Speaker 00:
I think in this circumstance, officer Cruz had arguable probable cause to conduct what would be a valid search incident to an arrest under the precedent.

[00:10:44] Speaker 00:
But it just so happens that in between the search and the arrest, that exculpatory information was found.

[00:10:49] Speaker 00:
And I'm not aware of any case law under these circumstances that would incorporate the situation where what an officer's reasonable belief would be a valid search incident to arrest is no longer valid because they cannot complete the arrest

[00:11:04] Speaker 00:
After exculpatory information is learned, that vitiates probable cause.

[00:11:09] Speaker 04:
Okay.

[00:11:11] Speaker 04:
I want to go back to my hypothetical where I shoplifted at the 7-Eleven.

[00:11:17] Speaker 04:
So the police, let's say they got me on tape.

[00:11:21] Speaker 04:
They have probable cause to arrest me.

[00:11:24] Speaker 04:
And they come up, and then they just start going through.

[00:11:28] Speaker 04:
They open my wallet.

[00:11:29] Speaker 04:
I mean, open my front pocket and pull out my wallet, rifle through it, pull out my pill box out of my pocket.

[00:11:38] Speaker 04:
And I say, whoa, what are you doing that for?

[00:11:43] Speaker 04:
Well, we could arrest you.

[00:11:45] Speaker 04:
I said, are you arresting me?

[00:11:48] Speaker 04:
No, no, we're not going to arrest you.

[00:11:51] Speaker 04:
But we could.

[00:11:52] Speaker 04:
Well, I thought Noel's the whole point of the ability, the right of the law enforcement to search incident to an arrest is because of the danger to the law enforcement when the confrontation has escalated from a consensual encounter or even a Terry stop to an arrest that creates real danger to the police.

[00:12:16] Speaker 04:
So it seems quite

[00:12:17] Speaker 04:
unique to say, well, Officer Cruz doesn't know if he's going to arrest.

[00:12:24] Speaker 04:
He's going to go and look at the videotape.

[00:12:26] Speaker 04:
He's going to go see if there's a receipt.

[00:12:29] Speaker 04:
And he finds out that it was paid for.

[00:12:32] Speaker 04:
And so it had, according to the district court, had never escalated into this dangerous confrontation because Officer Cruz could have arrested but didn't.

[00:12:41] Speaker 04:
And so I don't understand how Knowles or any case law says, well, just because you could do something, if you did do that, that would create a dangerous situation.

[00:12:51] Speaker 04:
You didn't.

[00:12:52] Speaker 04:
But if you had done that, that would have been a dangerous situation.

[00:12:56] Speaker 04:
So we're going to preempt that whole situation and say, well, you can just go ahead and do it anyway, even though

[00:13:02] Speaker 04:
There's no danger because of what the officer decided not to do to make it a risk.

[00:13:07] Speaker 00:
Yes, Your Honor.

[00:13:08] Speaker 00:
Two points on that.

[00:13:11] Speaker 00:
One, Officer Cruz, in his affidavit submitted with her summary judgment, did qualify this search as a search incident to an arrest.

[00:13:19] Speaker 00:
So at least at that time, he considered this to be a search incident to arrest.

[00:13:24] Speaker 00:
Secondly, so you're correct, NOLS provides two historical rationale for a search incident to an arrest.

[00:13:31] Speaker 00:
So it's officer safety and preservation of evidence.

[00:13:36] Speaker 00:
And both of those are actually present here.

[00:13:38] Speaker 00:
This wasn't just like a normal detention on the street.

[00:13:43] Speaker 00:
Mr. Montgomery was handcuffed and placed into the back of the police car.

[00:13:47] Speaker 00:
And the district court found that there was reasonable, articulable suspicion that he was armed and dangerous when justifying the pat-down search.

[00:13:56] Speaker 04:
I think Officer Cruz's declaration says by the time that he dug into his pockets, much less

[00:14:00] Speaker 04:
did anything else, putting him in the police car, that he had already determined in the sworn declaration that he had determined that Montgomery was not armed.

[00:14:09] Speaker 04:
Am I incorrect about that?

[00:14:11] Speaker 00:
At the time that he was placed in the police car, correct, he had been searched before that.

[00:14:15] Speaker 04:
But I think it was reasonable.

[00:14:16] Speaker 04:
And at the time that he even dug into the pocket.

[00:14:19] Speaker 00:
No.

[00:14:20] Speaker 04:
In his declaration, he doesn't say that?

[00:14:23] Speaker 04:
By the time he searched?

[00:14:24] Speaker 00:
I could be wrong.

[00:14:28] Speaker 00:
My understanding is that the pat down and reaching into his pocket was because he believed that he was armed and dangerous.

[00:14:36] Speaker 00:
But he also qualified it as a search and sent to arrest.

[00:14:39] Speaker 00:
And the district court found that he at least had reasonable and articulable suspicion that he was armed and dangerous in justifying the pat down search.

[00:14:46] Speaker 00:
The district court just found that the

[00:14:48] Speaker 00:
the scope of the pat-down search or how it was conducted, that there was a dispute of fact as to whether that was reasonable.

[00:14:54] Speaker 03:
So even if we take your justifications for reaching into his pocket and everything is true, I mean, that doesn't go for his wallet, does it?

[00:15:06] Speaker 03:
You don't need his wallet to find out if he has a weapon or if he has contraband.

[00:15:12] Speaker 00:
So I realize I'm out of time, but I can answer your question.

[00:15:19] Speaker 00:
So that was the second piece of our appeal is the search of this wallet to obtain identification, which we believe is objectively reasonable to obtain a suspect's identification even during a pure Terry stop standard, especially when Mr. Montgomery refused to provide his name

[00:15:42] Speaker 00:
Other circuits, the Seventh Circuit in particular has found that that is an objectively reasonable search.

[00:15:48] Speaker 00:
And there's a lot of, it's an important government interest to identify suspects, especially ones that are exhibiting the concerning behavior that Mr. Montgomery was at the time that they stopped him.

[00:16:03] Speaker 00:
Concerning enough that the Walmart employee had started directing employees to use another exit,

[00:16:10] Speaker 00:
that he believed him to be mentally unstable, all of those things.

[00:16:17] Speaker 00:
And without him providing his name, we think the officers were, it was objectively reasonable to do the limited search of just obtaining his identification.

[00:16:28] Speaker 03:
Would it be your position that if they think someone's, the officers are thinking somebody's acting erratically, leaving a store, potentially shoplifting,

[00:16:39] Speaker 03:
with nothing more, they're entitled to know who they are and look at their wallet?

[00:16:45] Speaker 00:
I think under a Terry Stopp standard, if they had reasonable articulable suspicion that a suspect is, or a crime has been committed, and that that suspect is refusing to provide their identification or their name, that it would be objectively reasonable for the officer to require them to provide an ID.

[00:17:06] Speaker 03:
So this Seventh Circuit case, you think, is your best authority for that?

[00:17:10] Speaker 00:
Yes, Your Honor.

[00:17:12] Speaker 03:
And you recall the name of that?

[00:17:15] Speaker 00:
One moment.

[00:17:20] Speaker 00:
That one's USV Brown.

[00:17:22] Speaker 00:
OK.

[00:17:24] Speaker 04:
Tell me if my memory of this videotape is incorrect, because you've said twice that you refused to give the name.

[00:17:29] Speaker 04:
And I assume you were talking about DeCruz.

[00:17:31] Speaker 04:
We know he refused to give it to Germain.

[00:17:35] Speaker 04:
Private Walmart employee doesn't have to.

[00:17:39] Speaker 04:
I thought at the very start of the videotape, Officer Cruz says, I need your name and information.

[00:17:44] Speaker 04:
And he starts reaching into his pocket to pull out his wallet.

[00:17:48] Speaker 04:
And he says, no, stop right there.

[00:17:51] Speaker 04:
Raise your hands.

[00:17:53] Speaker 04:
He raises his hands.

[00:17:54] Speaker 04:
And then he starts going through his pockets.

[00:17:58] Speaker 04:
Where, either in the district court's findings or in the videotape, have I got to find any suggestion that Montgomery refused to tell Officer Cruz what his name was?

[00:18:10] Speaker 04:
He was trying.

[00:18:12] Speaker 00:
Well, I think in that circumstance that you just described.

[00:18:14] Speaker 04:
Am I wrong about the videotape?

[00:18:16] Speaker 00:
No, no, I think that's correct.

[00:18:19] Speaker 00:
Officer Cruz had asked Mr. Montgomery for his name and information.

[00:18:23] Speaker 00:
Montgomery did not want to provide that verbally and only reached for his pockets.

[00:18:28] Speaker 00:
But I think it was objectively reasonable where Officer Cruz, as the district court found, had reasonable and articulable suspicion that Mr. Montgomery's armed and dangerous, did not want him reaching into his own pockets.

[00:18:39] Speaker 04:
Fair.

[00:18:40] Speaker 04:
OK, but you said twice that you refused to give him his name.

[00:18:46] Speaker 04:
Your basic data on the fact that

[00:18:48] Speaker 04:
that he reached into his pocket to pull out his ID instead of just saying, my name is Montgomery.

[00:18:54] Speaker 00:
Correct.

[00:18:56] Speaker 04:
OK, thank you.

[00:18:58] Speaker 04:
Judge Baldock, do you have questions?

[00:19:03] Speaker 04:
Thank you.

[00:19:08] Speaker 04:
We'll give the appellant one minute.

[00:19:11] Speaker 04:
We kind of cheated you out of your rebuttal.

[00:19:15] Speaker 01:
Sorry, one second.

[00:19:17] Speaker 01:
Lots of things.

[00:19:31] Speaker 02:
Your honors, and may it please the court, my name is Erin Gust, appearing on behalf of William Montgomery.

[00:19:37] Speaker 02:
The outcome in this case is driven by two basic legal principles.

[00:19:43] Speaker 02:
First, for the search of the right front jacket pocket, the search incident to arrest exception requires an arrest.

[00:19:51] Speaker 02:
Second, for the search of the wallet, without the safety justification, consent, or an exception, an officer cannot extend

[00:20:01] Speaker 02:
a search during a tariff stop.

[00:20:04] Speaker 02:
This is well-established law.

[00:20:06] Speaker 05:
Council, let me ask you a question, please.

[00:20:10] Speaker 05:
Yes, Your Honor.

[00:20:13] Speaker 05:
Is your client conceded probable cause in regard, because I find nothing worked.

[00:20:20] Speaker 05:
He didn't respond to a probable cause rate.

[00:20:24] Speaker 05:
Is your client conceded that, and if not, where did he raise it?

[00:20:29] Speaker 02:
Your Honor, whether there's probable cause does not matter for this analysis.

[00:20:36] Speaker 02:
Because the search incident to arrest exception.

[00:20:40] Speaker 05:
No.

[00:20:41] Speaker 05:
No, go ahead, please.

[00:20:42] Speaker 02:
Because the search incident to arrest exception under clear precedent in this circuit requires an arrest.

[00:20:50] Speaker 03:
OK, let's nail this down, though, for Judge Baldwin before we move on.

[00:20:53] Speaker 03:
You're not disputing that there was probable cause to arrest.

[00:20:58] Speaker 02:
No.

[00:20:59] Speaker 03:
For purposes of this appeal, you agree that there was?

[00:21:02] Speaker 02:
Yes.

[00:21:05] Speaker 02:
OK.

[00:21:06] Speaker 02:
This court should not expand the search incident to rest exception, as Officer Cruz argues.

[00:21:13] Speaker 02:
Officer Cruz argues that there are policy concerns not allowing Officer Cruz to conduct the sort of search that occurred here.

[00:21:23] Speaker 02:
But probable cause is the standard.

[00:21:26] Speaker 02:
It's not a catch-all.

[00:21:28] Speaker 02:
An arrest is the exception.

[00:21:30] Speaker 02:
And this makes sense, because an arrest signifies a significant event in the criminal justice process.

[00:21:41] Speaker 02:
The Supreme Court has recognized that in Knowles, the atmosphere of an arrest allows an officer to conduct a more invasive search.

[00:21:52] Speaker 02:
But at that time, there's also rights and procedures that attach to the defendant or the suspect.

[00:21:58] Speaker 02:
right to speedy trial, Miranda, counsel, right to remain silent.

[00:22:04] Speaker 02:
What Officer Cruz is arguing for allows the government to have the benefits of an arrest, but what of these rights that attach for the suspect?

[00:22:14] Speaker 02:
And in addition, what we have right now is a bright-line rule that officers can't apply.

[00:22:20] Speaker 02:
What Officer Cruz is advocating for muddies those waters.

[00:22:25] Speaker 03:
What do you do with Cup?

[00:22:28] Speaker 03:
the Supreme Court's decision in Cupp.

[00:22:31] Speaker 02:
Cupp is harmonious with the case here, because there you had a defendant who appeared to have highly evescent evidence on his fingernails, the dried blood, and there the Supreme Court said that the officer saw him trying to destroy that evidence in front of them.

[00:22:49] Speaker 02:
And so it's that highly evescent evidence component, and it's that second piece of nulls that you see, that preservation for evidence at use at trial.

[00:22:58] Speaker 02:
that makes it harmonious with this case today.

[00:23:02] Speaker 03:
OK.

[00:23:02] Speaker 03:
So as to, do you think that Cupp and the appellant's position would be consistent with respect to the bulge in the pocket and looking at the pocket in case there was contraband?

[00:23:19] Speaker 03:
Because at that time, everybody agrees he's not under arrest and not otherwise subject to search.

[00:23:26] Speaker 03:
If he has contraband and is going to be let go, presumably, we wouldn't want him walking off with the evidence, would we?

[00:23:34] Speaker 02:
Your Honor, there's two answers to this question.

[00:23:37] Speaker 02:
First, there's nothing in the record suggesting that Officer Cruz or anyone else believed that there was evidence on Mr. Montgomery's person.

[00:23:44] Speaker 02:
Yes, there was the bulge, but they didn't know what that was until it was removed from the person.

[00:23:48] Speaker 03:
Well, I mean, they wouldn't know.

[00:23:50] Speaker 03:
It was in his pocket.

[00:23:52] Speaker 02:
But there's nothing in the records stating that they suspected

[00:23:55] Speaker 02:
And if you look at the language in Knowles, the court puts the burden on the government to demonstrate the need to preserve evidence.

[00:24:04] Speaker 02:
And there's nothing in there.

[00:24:05] Speaker 02:
And then second, the illegal search that we're looking at, this one, the right front jacket pocket, occurred before the bulge and the liquid radiant sealant, whatever it was, was pulled out.

[00:24:16] Speaker 02:
So this happened before, so I just make that comment as well.

[00:24:22] Speaker 02:
The Supreme Court has warned that the exceptions to the warrant requirement are carefully drawn.

[00:24:26] Speaker 02:
As I've mentioned, it's well settled in this circuit that the search incident to arrest exception requires an arrest.

[00:24:35] Speaker 02:
And that's dating back to 1982 with Ward.

[00:24:38] Speaker 02:
You see that in Torres Castro, and you see that in Sanchez.

[00:24:41] Speaker 02:
And in fact, Ward handled the policy arguments that Officer Cruz has raised.

[00:24:47] Speaker 02:
It recognized that the officers, the agents there, had probable cause to get a search warrant for the suspect in that case.

[00:24:56] Speaker 02:
They had probable cause that he had committed a federal offense.

[00:25:00] Speaker 02:
And yet, with no warrant and no arrests, the more invasive search beyond Terry that they conducted violated the Fourth Amendment.

[00:25:09] Speaker 02:
The courts already handled the policy concerns that Officer Cruz has raised.

[00:25:14] Speaker 02:
Officer Cruz also suggests in his reply

[00:25:17] Speaker 02:
the exigent circumstances exception might apply.

[00:25:20] Speaker 02:
But that fails for two reasons.

[00:25:23] Speaker 02:
First, it's waived.

[00:25:25] Speaker 02:
In his reply and supportive motion for summary judgment on appellate appendix, page 150, footnote 1, Officer Cruz explicitly stated that he is not arguing the exigent circumstances exception.

[00:25:40] Speaker 02:
Even if this court wanted to consider that exception, it does not apply.

[00:25:43] Speaker 02:
There is no imminent concern of destruction of evidence.

[00:25:48] Speaker 02:
The standard requires more than a mere fear of destruction of evidence.

[00:25:53] Speaker 02:
Here, Mr. Montgomery was in a public place with three officers around him in handcuffs.

[00:26:01] Speaker 02:
This is not the situation like in Kentucky versus King where the officers smelled weed, banged on the door, and testified that they heard sounds like suspects destroying or moving evidence.

[00:26:13] Speaker 02:
That's not this case.

[00:26:15] Speaker 02:
But if this court is interested in expanding the search incident to arrest exception, I would caution it to consider the implications on other exceptions, notably the exigent circumstances exception.

[00:26:28] Speaker 02:
The Supreme Court in Coolidge v. New Hampshire clearly stated that no amount of probable cause can justify a warrantless search absent exigent circumstances.

[00:26:40] Speaker 02:
If probable cause alone here is enough without an arrest,

[00:26:45] Speaker 02:
Does that eat the other exceptions?

[00:26:47] Speaker 02:
Is it enough in other exceptions?

[00:26:50] Speaker 02:
Officer Cruz violated Mr. Montgomery's Fourth Amendment rights.

[00:26:54] Speaker 02:
These Fourth Amendment rights are clearly established.

[00:26:58] Speaker 02:
You see it in Sabron from the Supreme Court, Santillanes from the 10th Circuit, and Brown persuasive authority from the 9th Circuit.

[00:27:07] Speaker 02:
All state that an officer cannot immediately reach into a pocket during an investigatory detention.

[00:27:14] Speaker 02:
And in addition,

[00:27:16] Speaker 02:
Officer Cruz argues that probable cause is the difference here.

[00:27:19] Speaker 02:
But we have Ward.

[00:27:21] Speaker 02:
We have Ward that says, even when you've got probable cause, if you don't arrest or you don't get a warrant, there is not another exception or there's not consent, you can't take that next step and do a more invasive search.

[00:27:33] Speaker 02:
And that's what happened here.

[00:27:35] Speaker 04:
If an officer sees an individual shoplift, stick it in their pocket, walks out of the store,

[00:27:46] Speaker 04:
Are you saying, and so I think you would agree, wouldn't you, that there was at least a fair probability, if you put aside the warrant requirement, a fair probability to believe that evidence of illegal activity is going to be found in the pocket?

[00:28:02] Speaker 00:
Yes.

[00:28:03] Speaker 04:
And so you're saying that there's, put aside search incident to an arrest.

[00:28:09] Speaker 04:
The officer doesn't want to arrest him, he just wants to,

[00:28:13] Speaker 04:
you know, see if there is evidence of contraband, of illegal activity.

[00:28:18] Speaker 04:
Now, what is he supposed to do?

[00:28:21] Speaker 04:
He can't arrest the person.

[00:28:23] Speaker 04:
He doesn't even think that he has probable cause to believe that there's an arrest, or he likes not to make an arrest.

[00:28:31] Speaker 04:
But there is probable cause.

[00:28:33] Speaker 04:
And if that's not exigent circumstances to believe that evidence is going to be destroyed,

[00:28:40] Speaker 04:
If he gets the person to go home, well, who knows where that stolen merchandise is going to be.

[00:28:48] Speaker 04:
Why doesn't the officer have exigent circumstances if it hasn't been waived based on the presence of fair probability to believe the contraband is going to be found in his pocket?

[00:28:59] Speaker 02:
You might have the exigent circumstances there and looking at whether it's imminent.

[00:29:03] Speaker 02:
But what's different here is that Mr. Montgomery is in handcuffs and he's outnumbered three to one.

[00:29:11] Speaker 02:
And so there, it very well may apply, but it does not here.

[00:29:15] Speaker 03:
Moving to my next point.

[00:29:20] Speaker 03:
So before we go on, what are your authorities that you're going to rely on where the holding was such that it clearly established this principle that there has to be an arrest?

[00:29:36] Speaker 02:
Ward, Torres Castro, and Sanchez.

[00:29:45] Speaker 03:
Okay.

[00:29:49] Speaker 02:
Moving to my next point, Officer Cruz's search of the wallet also violated the Fourth Amendment.

[00:29:55] Speaker 02:
Here there are actually two searches.

[00:29:57] Speaker 02:
There's the first one where Officer Cruz removes the wallet and there's the second one when he searches the wallet for the ID.

[00:30:03] Speaker 02:
The district court appears to have adopted that from the report and recommendation that there's a dispute in fact as to whether the search of the pocket containing the wallet was minimally intrusive.

[00:30:15] Speaker 02:
The sole justification for a search during a Terry stop is safety.

[00:30:21] Speaker 02:
Terry, Sebron, and Dickerson are clear that a Terry search should not be used to further an investigation.

[00:30:28] Speaker 02:
There are three circumstances under which an officer can remove an object from a suspect's person during a Terry stop.

[00:30:36] Speaker 02:
First, he identifies weapons.

[00:30:38] Speaker 02:
Second, he identifies what reasonably could be a weapon or used as a weapon.

[00:30:42] Speaker 02:
And third, he readily identifies contraband.

[00:30:46] Speaker 02:
Those three circumstances do not apply here.

[00:30:48] Speaker 02:
Officer Cruz argues that there could be weapons secreted in the wallet.

[00:30:55] Speaker 02:
But as you pointed out, Judge Bacharach, his declaration states that only after

[00:31:02] Speaker 02:
He determined there were no weapons on Mr. Montgomery's person.

[00:31:05] Speaker 02:
Only after that did he search the wallet.

[00:31:09] Speaker 02:
That is not tied to safety.

[00:31:11] Speaker 02:
That's unjustifiable under Terry, and persuasive authority from the Eastern District of New York in Evans v. Solomon found an almost identical case search of a wallet unjustifiable under Terry.

[00:31:27] Speaker 02:
It's true.

[00:31:28] Speaker 02:
then an officer can ask for ID, name, date of birth, that sort of information during a Terry stop.

[00:31:34] Speaker 02:
But what happened here was more invasive.

[00:31:37] Speaker 02:
Think of what someone can learn from the contents of your wallet, whether it's pictures, financial information, health care information.

[00:31:45] Speaker 02:
This is more invasive, and precedent doesn't go as far as Officer Cruz wants it to.

[00:31:50] Speaker 02:
This is clearly established.

[00:31:55] Speaker 02:
An officer cannot conduct a more invasive search without a safety justification, consent, or an exception.

[00:32:03] Speaker 02:
The point of a Terry search cannot be to further an investigation.

[00:32:06] Speaker 02:
You see that in Terry, Sabrone, and Dickerson.

[00:32:09] Speaker 02:
And in fact, Evans, that case I referred to from the Eastern District of New York, relied on one case in its analysis, Terry.

[00:32:17] Speaker 02:
Terry alone is enough to clearly establish this right.

[00:32:22] Speaker 02:
Officer Cruz also argues

[00:32:24] Speaker 02:
that Officer Cruz also argues that Mr. Montgomery consented to the search.

[00:32:32] Speaker 02:
Consent is Officer Cruz's burden to establish consent.

[00:32:36] Speaker 02:
And in fact, it's a heavier burden in light of Fernandez because it followed an illegal search.

[00:32:44] Speaker 02:
An offer to provide an officer with something is different than consenting to search something.

[00:32:50] Speaker 02:
This is a fact-intensive inquiry examining the totality of the circumstances.

[00:32:55] Speaker 02:
You saw the body camera footage.

[00:32:57] Speaker 02:
Mr. Montgomery offered to give his ID.

[00:32:59] Speaker 02:
He complied when told to put his hands up.

[00:33:03] Speaker 02:
He did not refuse to identify himself.

[00:33:05] Speaker 02:
He insisted that they stay out of his pockets.

[00:33:10] Speaker 02:
He did not consent.

[00:33:11] Speaker 02:
Apply Officer Cruz's proposed rule to a car stop example.

[00:33:16] Speaker 02:
For example, I'm driving home after this oral argument and I speed.

[00:33:20] Speaker 02:
And I got pulled over, and the officer comes up to my window, and I roll it down.

[00:33:26] Speaker 02:
I say, officer, I'm so sorry.

[00:33:27] Speaker 02:
I forgot my wallet.

[00:33:29] Speaker 02:
It's in the back of my car.

[00:33:30] Speaker 02:
I'm going to grab my IDs in there, and I'm going to grab it for you.

[00:33:34] Speaker 02:
No reasonable officer would understand my statements to be consent to search my purse.

[00:33:40] Speaker 02:
The same applies here.

[00:33:41] Speaker 02:
Mr. Montgomery did not consent to the search of his wallet.

[00:33:45] Speaker 02:
And even if his statements after the search can be construed as consent,

[00:33:51] Speaker 02:
Consent cannot be retroactively applied.

[00:33:57] Speaker 02:
If the court has no further questions.

[00:34:02] Speaker 05:
Judge Wallach, do you?

[00:34:06] Speaker 05:
No, I do not.

[00:34:08] Speaker 02:
Relying on well-set of law, this court should affirm.

[00:34:11] Speaker 02:
Thank you.

[00:34:20] Speaker 00:
Thank you.

[00:34:21] Speaker 00:
I want to address just a few things that were brought up.

[00:34:25] Speaker 00:
So with respect to the rationale for a search incident to an arrest, Knowles found that the preservation of evidence rationale in that specific circumstance didn't apply.

[00:34:37] Speaker 00:
Because in that case, the officer had already cited him with speeding.

[00:34:41] Speaker 00:
And the search of his vehicle wasn't going to uncover any other evidence of speeding or whatever the traffic stop was.

[00:34:49] Speaker 00:
That's not the case here.

[00:34:50] Speaker 00:
Mr. Montgomery was suspected of shoplifting.

[00:34:52] Speaker 00:
And the search of him would be, there would be a reasonable basis that if he's seen leaving a store with items in his hands and bulges in his pockets, that he has fruits of that suspected crime.

[00:35:05] Speaker 00:
in his pockets.

[00:35:07] Speaker 00:
And placing him in the back of the police car, I believe the officers had a reasonable reason to make sure that he was not bringing any contraband or weapons into the back of the police car to hurt himself or stash away.

[00:35:24] Speaker 00:
The other thing that I would like to bring up is that there is no evidence in the record that the search of Mr. Montgomery's wallet

[00:35:32] Speaker 00:
was a full-blown search of pulling out cards.

[00:35:35] Speaker 00:
I think the evidence has just been that it was opened, his ID was taken out, and his wallet was put in his pocket.

[00:35:41] Speaker 04:
We could see what you're referring to on the video, but how do we write an opinion that you can't rifle through the wallet to get the ID, but if you do it super quick, where you're probably not going to

[00:36:02] Speaker 04:
you know, focus your eyes enough, the seconds, to see what medical information is on their Blue Cross card or something.

[00:36:12] Speaker 04:
How do we write an opinion drawing that line that you can rifle through the wallet if you do it really fast?

[00:36:24] Speaker 04:
If you take your time, that's a search.

[00:36:28] Speaker 00:
I think the hallmark of the Fourth Amendment is reasonableness.

[00:36:32] Speaker 00:
So I think as long as it's as limited of an intrusion as it can be just to obtain the identification, then that's where that sort of balance lies, is the reasonableness of how limited that intrusion is to obtain the identification.

[00:36:50] Speaker 04:
Why not let him look?

[00:36:51] Speaker 04:
I mean, he was trying to pull out, when he asked him for his information,

[00:36:57] Speaker 04:
You know, the officer asked me for my information.

[00:37:00] Speaker 04:
I'm thinking, oh, well, that's my driver's license, you know.

[00:37:02] Speaker 04:
And so he pulls it out.

[00:37:04] Speaker 04:
Oh, I know.

[00:37:06] Speaker 04:
I don't want it now.

[00:37:07] Speaker 04:
You've got to raise your hands, and I'm going to handcuff you.

[00:37:10] Speaker 04:
And so.

[00:37:12] Speaker 04:
Why does he need to rifle through the wallet to get his ID?

[00:37:16] Speaker 04:
Why didn't he just give the wallet to Montgomery and let him pull out his ID, which he was trying to do in the first place when he asked for his information?

[00:37:24] Speaker 00:
I do think it was reasonable, given that Officer Cruz had reasonable articulable suspicion that he was armed and dangerous, to not permit Mr. Montgomery to go into his own pockets.

[00:37:35] Speaker 04:
Even in light of the declaration that says that he had already assured himself

[00:37:40] Speaker 04:
by the time that he opened the wallet, that he was not armed and dangerous?

[00:37:43] Speaker 04:
Or do you disagree with that?

[00:37:47] Speaker 00:
I think by the time we get to the wallet, Mr. Montgomery was already handcuffed.

[00:37:55] Speaker 00:
So I guess in order to have Mr. Montgomery pull out his own wallet and go through, it would have to unhandcuff him and go through this whole, I guess, re-handcuff him later as they conduct this investigation.

[00:38:09] Speaker 00:
And I don't think that that was necessarily required under the circumstances.

[00:38:13] Speaker 00:
I think it was objectively reasonable for them to just do the limited search of the wallet, solely to obtain the identification.

[00:38:20] Speaker 00:
And in USV Van Dam, just to address another quick thing.

[00:38:28] Speaker 04:
Yeah, I caused you to be a little over time, but now we're pretty good.

[00:38:34] Speaker 04:
And I will let you spend about 20 seconds wrapping up.

[00:38:37] Speaker 04:
I just don't want you to start anew.

[00:38:39] Speaker 00:
Yes.

[00:38:39] Speaker 00:
Yes, no, and it's not.

[00:38:41] Speaker 00:
It's in the same argument.

[00:38:43] Speaker 00:
But in USV Van Dam, that court also held that search of a wallet was a valid search under a search incident to an arrest search.

[00:38:54] Speaker 00:
So if the court finds that the search incident to arrest exception applies, the search of a wallet was valid under USV Van Dam.

[00:39:01] Speaker 00:
And based on that, we ask the court to reverse.

[00:39:04] Speaker 04:
Thank you.

[00:39:04] Speaker 04:
It was very well presented by both sides.

[00:39:06] Speaker 04:
We appreciate your excellent advocacy.

[00:39:09] Speaker 04:
The Court does extend its appreciation to Ms.

[00:39:12] Speaker 04:
Gus and Ms.

[00:39:12] Speaker 04:
Benz for undertaking the request under 1915E1 to represent Mr. Montgomery.

[00:39:19] Speaker 04:
We appreciate your service to the Court as we appreciate the Appellant's Council.

[00:39:25] Speaker 04:
This matter will be submitted.