[00:00:00] Speaker 02:
We'll turn to 24-1331, U.S.

[00:00:04] Speaker 02:
versus Becker, Ms.

[00:00:06] Speaker 02:
Torren-Jay.

[00:00:07] Speaker 02:
I hope I got close to that at least.

[00:00:10] Speaker 00:
You may proceed.

[00:00:13] Speaker 00:
Good morning.

[00:00:14] Speaker 00:
I'm Perrin Tarangio on behalf of the appellant, Mackenzie Becker.

[00:00:19] Speaker 00:
This case asks whether the Fourth Amendment permits police to search a home for evidence of a road rage incident simply because they had seen the suspect and his car there.

[00:00:28] Speaker 00:
Three weeks after a road rage incident on I-25, police sought a warrant to search a house on I-Lift Lane thought to be associated with the suspect, Mr. Becker.

[00:00:36] Speaker 00:
The affidavit recounted that Mr. Becker's car was parked at the house two weeks after the incident and that he was seen washing it there roughly one week after that.

[00:00:46] Speaker 00:
But beyond the presence of Mr. Becker and his car at the Isle of Lane house, the affidavit contained no facts suggesting that evidence of the road rage incident ever made it to the house, let alone remain there at the time of the search.

[00:00:58] Speaker 00:
Because the affidavit provided no factual basis for believing that the Isle of Lane house was more likely than the otherwise endless possibilities where the evidence could be stored three weeks after the incident,

[00:01:08] Speaker 00:
As the Affian himself acknowledged, it clearly fell short of establishing the probable cause nexus required by the Fourth Amendment.

[00:01:15] Speaker 00:
We therefore ask this court to reverse.

[00:01:18] Speaker 00:
Turning first to the probable cause question, we argue the affidavit did not supply probable cause because it contains no facts connecting the road rage incident to the Isle of Lane house.

[00:01:30] Speaker 04:
Is there any question about Mr. Becker's relationship to the

[00:01:38] Speaker 04:
I love house.

[00:01:40] Speaker 04:
I mean, are you challenging the fact that he might have lived there, had some interest in that home?

[00:01:48] Speaker 04:
Because they did have some information from the crime database that he had lived there, at least listed that address.

[00:01:55] Speaker 04:
Are you challenging that part of the affidavit?

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

[00:02:00] Speaker 00:
We are challenging the

[00:02:03] Speaker 00:
probable cause to believe that the Isla Flana House was Mr. Becker's residence.

[00:02:07] Speaker 00:
We agree that there was obviously some association because his car had been seen there once and he had been seen there washing his car once.

[00:02:15] Speaker 00:
And there were unidentified police records that said it was a second address attributed to him.

[00:02:20] Speaker 00:
So we can see that he was associated with the property, but there's not enough evidence to say that this was his residence.

[00:02:28] Speaker 00:
Does that matter?

[00:02:31] Speaker 00:
Yes, I think it matters.

[00:02:34] Speaker 00:
It matters and yet it's not the core inquiry.

[00:02:37] Speaker 00:
The core inquiry is whether there's enough connecting the crime to the place to be searched.

[00:02:41] Speaker 00:
But I think residence is relevant.

[00:02:43] Speaker 00:
And so the fact that there isn't an established residence undermines any imprints that the gun would be found at this particular place.

[00:02:50] Speaker 00:
But if the court finds this was Mr. Becker's residence, that doesn't defeat our argument because this court has consistently said that simply a probable cause to arrest a person or

[00:03:01] Speaker 00:
that they've committed a crime does not get you into their house for a search.

[00:03:05] Speaker 00:
So it's relevant, but it's not the core inquiry.

[00:03:08] Speaker 01:
Does it matter that what the item is they're looking for?

[00:03:12] Speaker 01:
I mean, you know, as opposed to say drugs, we're looking for a gun and people, there was evidence that people tend to treat those differently, that they, as a general rule, don't throw them away or flush them down the toilet or consume them.

[00:03:31] Speaker 01:
And they tend to keep them in their homes.

[00:03:36] Speaker 00:
Your honor, just to be clear, the only statement in the affidavit regarding the gun and kind of typical patterns around guns was Detective Sloan's statement that people do not typically dispose guns after a crime.

[00:03:50] Speaker 00:
He didn't say they typically store them in their houses.

[00:03:52] Speaker 00:
And he this is not case specific.

[00:03:54] Speaker 00:
So that's a very generic statement.

[00:03:56] Speaker 00:
And this court said in mora.

[00:03:58] Speaker 00:
that those types of training and experience statements need to be tied to the facts of the case in order to have any weight.

[00:04:04] Speaker 00:
And here we don't have a statement that, oh, people don't tend to dispose of guns even when they're used in public altercations where there's a serious risk of detection.

[00:04:16] Speaker 00:
That would have been a clearer statement, but that's a highly generic statement.

[00:04:20] Speaker 00:
And even crediting it, it says nothing about where that gun is going to be.

[00:04:24] Speaker 00:
And that's the core inquiry.

[00:04:27] Speaker 00:
And this court hasn't relied on such generic statements in establishing probable cause before.

[00:04:33] Speaker 02:
Do you need to show that the gun was going to be at that place?

[00:04:38] Speaker 02:
What if there were several places he frequented?

[00:04:41] Speaker 02:
He stayed at his girlfriend's sometimes, stayed at his home, maybe stayed with his mom.

[00:04:47] Speaker 02:
Say you had identified the three places where

[00:04:51] Speaker 02:
estate.

[00:04:52] Speaker 02:
Wouldn't there be probable cause for each of them?

[00:04:56] Speaker 00:
I think that there could be, Your Honor, yes.

[00:04:58] Speaker 00:
So I think Roland answers this question, is there's no nexus if given the facts in the affidavit, the evidence could be in any number of places, and there's no factual way to limit those places or to suggest that the home is more likely than any of the other places.

[00:05:19] Speaker 00:
Here, that's what we have.

[00:05:20] Speaker 02:
We have no facts that- Wait, wait, wait.

[00:05:23] Speaker 02:
I think you interpreted me to say the opposite of what I meant to say.

[00:05:26] Speaker 02:
You don't have to show that it's more likely than not that the gun is at this one place.

[00:05:34] Speaker 02:
If there are three places where he might keep the gun, you'd have probable cause for all three.

[00:05:40] Speaker 02:
Couldn't you have a probable cause for all three?

[00:05:42] Speaker 02:
If you can't say this is the place he always stays, then there's not a probable cause.

[00:05:50] Speaker 02:
But I don't think that's the test.

[00:05:56] Speaker 00:
agree with you that there can be probable cause for multiple places.

[00:05:59] Speaker 00:
It's, of course, it's a threshold inquiry rather than the police don't have to eliminate every other possible location.

[00:06:08] Speaker 00:
But I think the language in Roland, and I'll pull it up.

[00:06:12] Speaker 01:
Roland is a very different case.

[00:06:14] Speaker 01:
I mean, first of all, we're dealing with child pornography.

[00:06:17] Speaker 01:
And the analysis was that there was an almost unlimited

[00:06:24] Speaker 01:
number of places where that could be right, I mean we don't have a situation here where there's an almost unlimited number of places, do we.

[00:06:37] Speaker 00:
I think we do, Your Honor.

[00:06:38] Speaker 00:
And I think the affiant himself effectively says that when he says that the gun could be found in any location or vehicle that's associated with Mr. Becker, that's a nearly unlimited number of places.

[00:06:51] Speaker 00:
And the affidavit doesn't provide us a factual basis for limiting that unlimited number, which is what is required.

[00:06:57] Speaker 00:
And I think the facts of Roland are relatively

[00:07:02] Speaker 00:
pretty similar, even though, of course, we're dealing with child pornography.

[00:07:06] Speaker 00:
But first, in Roland, the officers knew generally that he had ordered child pornography to be delivered to a post office box and that he typically would take the mail and go back to work.

[00:07:20] Speaker 00:
What the affidavit was missing was that he would whether he would drive directly to work or stop somewhere else.

[00:07:26] Speaker 00:
or that he would typically take his mail there.

[00:07:29] Speaker 00:
And here we have that Mr. Becker has visited a house that he may or may not live at.

[00:07:36] Speaker 00:
But we don't know, just as in Roland, we don't know whether he drove directly from the incident or even in days afterwards to that house.

[00:07:43] Speaker 00:
And so we're missing that same sort of connection between

[00:07:48] Speaker 00:
how the evidence would arrive at the house.

[00:07:50] Speaker 00:
And then we have the additional problem that were three weeks later.

[00:07:53] Speaker 00:
So Roland was all of this happened the day that these, the child pornography videotapes were delivered here were three weeks after the incident.

[00:08:02] Speaker 00:
And we don't even have that inference that, I mean, it's pretty reasonable to think that after someone goes to work, they're going to return home with, and probably that they will bring their mail here.

[00:08:12] Speaker 00:
There's no inference that Mr. Becker went to, um,

[00:08:17] Speaker 00:
to the Iliff Lane house at any point until two weeks later is the first time that police see him there.

[00:08:23] Speaker 00:
So I think this case is actually a lot like Roland.

[00:08:25] Speaker 00:
And just on a kind of gut reaction, it seems that a gun could be in many more places than child pornography videotapes.

[00:08:36] Speaker 00:
Personally, it just seems more likely that someone would bring those home than a gun that's been used in a public altercation.

[00:08:45] Speaker 00:
What about good faith?

[00:08:47] Speaker 00:
I mean, even if.

[00:08:47] Speaker 00:
Yeah, let's talk about good faith.

[00:08:49] Speaker 01:
I think why wouldn't we be able to affirm on under good faith?

[00:08:54] Speaker 00:
I think there are two core reasons.

[00:08:57] Speaker 00:
First,

[00:08:58] Speaker 00:
that there is nothing, no facts connecting the crime to the house.

[00:09:02] Speaker 00:
It's devoid of facts connecting crime to the house.

[00:09:04] Speaker 00:
Unlike court cases like Coto, where this court is upheld on good faith.

[00:09:10] Speaker 00:
Here, we have nothing connecting the crime to the place.

[00:09:13] Speaker 00:
And on the face of the affidavit, the officer acknowledges that they don't have a nexus.

[00:09:19] Speaker 00:
He says, this could be, the gun could be, sorry.

[00:09:22] Speaker 01:
The car, the car matches the description

[00:09:26] Speaker 01:
that the victims gave and it has the license plate on it that matches what the victims said.

[00:09:34] Speaker 01:
It's associated with Mr. Becker and it's parked in front of the house.

[00:09:40] Speaker 01:
He goes in and out of the house repeatedly while he's washing it.

[00:09:43] Speaker 01:
I mean, doesn't that connect the crime to the house?

[00:09:49] Speaker 01:
I don't think so, Your Honor.

[00:09:50] Speaker 01:
I think all it does is connect.

[00:09:51] Speaker 01:
I mean, the crime was, the car was used in the crime.

[00:09:58] Speaker 00:
I see the car, to me, I think the car says nothing more than his being there.

[00:10:04] Speaker 00:
He's using, just as we all drive around in our cars, the car being at the house says little more than he was there two weeks later.

[00:10:12] Speaker 01:
And I think that- What you said is there's no connection between the crime and the house.

[00:10:18] Speaker 01:
If the car was an instrumentality of the crime and it is parked in front of the house,

[00:10:26] Speaker 01:
Isn't that a connection between the crime and the house?

[00:10:30] Speaker 00:
I don't think so, just given the nature.

[00:10:36] Speaker 00:
I think because we all have to drive around in our cars and there's really no.

[00:10:41] Speaker 01:
It says that that would be we don't have to drive around in cars that were used in a violent assault.

[00:10:51] Speaker 01:
I mean, and that's the issue here.

[00:10:53] Speaker 01:
I mean, if there was a bank robbery and it was the getaway car and it was parked in front of the house, do you think there would be probable cause?

[00:11:01] Speaker 00:
I think it would depend on when it was parked outside of the house.

[00:11:04] Speaker 00:
I think that's the core problem here is in Coto, the suspect effectively drove to the house to be searched.

[00:11:11] Speaker 00:
He may have stopped somewhere else, but it appears he drove there and then he was seen returning within hours.

[00:11:16] Speaker 00:
And that temporal connection is what actually connects, makes the car a reasonable basis to think that there's the gun was going to be at that house.

[00:11:25] Speaker 00:
Whereas here, the first time the car is seen at the house is two weeks later.

[00:11:29] Speaker 00:
And so I think that is not a significant

[00:11:31] Speaker 04:
It was seen, though, as quickly, you know, it took time to develop the evidence that would link Mr. Becker to the shooting.

[00:11:40] Speaker 04:
So, I mean, that's kind of as soon as they found the linkage, they staked out the house, right?

[00:11:48] Speaker 00:
I'm not sure that's how the timeline worked.

[00:11:52] Speaker 00:
I don't think they give us the date when they are actually looking up the records.

[00:11:57] Speaker 00:
But I'm pretty sure by the 14th, so the day after the incident, they had figured out that Mr. Becker was the one who was registered to that car.

[00:12:07] Speaker 00:
And they didn't stake the house out until two weeks later, at least according to the affidavit.

[00:12:13] Speaker 00:
So I think police had a couple of options here.

[00:12:15] Speaker 00:
They could have immediately started sticking out the house as they did in Coto.

[00:12:19] Speaker 00:
In Coto, they immediately figured out who was driving the car and they went to the place where the car was registered, that Apodaca house.

[00:12:27] Speaker 00:
They could have done that here within at least a day.

[00:12:30] Speaker 00:
Sure, maybe they couldn't have done it the day of, but at least a day.

[00:12:33] Speaker 00:
Or they could have taken these three weeks and actually developed a connection to the house.

[00:12:38] Speaker 00:
They could have done trash pulls.

[00:12:39] Speaker 00:
They could have interviewed the neighbors and said, have you seen anything weird happening here?

[00:12:42] Speaker 00:
They could have done an overnight surveillance.

[00:12:46] Speaker 00:
There are a number of things that they could have done with those three weeks.

[00:12:49] Speaker 00:
I don't think we're asking for perfection from officers here.

[00:12:52] Speaker 00:
We're asking for moderate efficiency or using the time that they have to develop a nexus.

[00:12:59] Speaker 00:
So, Your Honor, I think that there were plenty of options for them.

[00:13:04] Speaker 00:
I think I'll, unless the court has further questions, I'll reserve the remainder of my time.

[00:13:11] Speaker 02:
Thank you.

[00:13:14] Speaker 02:
Mr. Houlihan?

[00:13:20] Speaker 03:
We're not hearing you, Mr. Lane.

[00:13:24] Speaker 03:
Apologies.

[00:13:26] Speaker 03:
Good morning, Your Honors, and may it please the court.

[00:13:28] Speaker 03:
My name is Michael Houlihan.

[00:13:29] Speaker 03:
I represent the government in this matter.

[00:13:32] Speaker 03:
The question presented by this appeal is simply whether the affidavit supplied the additional evidence needed to connect the road rage shooting under investigation or the evidence of that crime with the location to be searched.

[00:13:44] Speaker 03:
The warrant here clearly did so.

[00:13:45] Speaker 03:
And to illustrate the point, I'd like to start by highlighting the items that were to be seized pursuant to this warrant as they helped to elucidate the larger probable cause narrative.

[00:13:55] Speaker 03:
In the main, the warrant sought to seize three items.

[00:13:59] Speaker 03:
The defendant, the alleged perpetrator of the road rage shooting under investigation, the defendant's vehicle, one of the two primary instrumentalities of that crime, and firearms and associated items, the other primary instrumentality used in that crime.

[00:14:13] Speaker 03:
There is no meaningful dispute that the warrant provides probable cause to believe that the defendant committed the offense under investigation, or that the warrant adequately detailed its basis for believing that both the defendant and the vehicle could be found at the Isliff Lane location.

[00:14:28] Speaker 03:
In other words, the warrant had already supplied a basis to connect not only the defendant, but one of the two major instrumentalities of the crime to the Isliff location.

[00:14:37] Speaker 03:
Those facts, combined with the affiant statement as to where the firearms evidence would likely be found,

[00:14:42] Speaker 03:
and why supplied the additional evidence needed to establish a substantial nexus between the evidence sought and the isle of location.

[00:14:50] Speaker 03:
And some of this court's prior precedents make that point very clear.

[00:14:54] Speaker 03:
Beginning with Ron, this court approved of a warrant to search a residence based on PC that was between 10 and 18 months old, and which did not place the firearm to be seized within the place to be searched.

[00:15:06] Speaker 03:
In doing so, the court expressly acknowledged that there were other places the gun might have been stored,

[00:15:11] Speaker 03:
upheld the magistrate's reasonable inference that the defendant's residence might be one such place.

[00:15:18] Speaker 03:
Now, the defendant has tried to distinguish that case away by saying that it turned on, quote, case-specific facts, unquote, connecting the guns to the residence.

[00:15:27] Speaker 03:
But in truth, those case-specific facts were simply facts about why the defendant had the guns for hunting or for investment,

[00:15:35] Speaker 03:
and natural inferences drawn by the court about where guns possessed for that reason might be stored.

[00:15:40] Speaker 03:
The same is true of the affidavit here.

[00:15:43] Speaker 03:
The affidavit spells out probable cause to believe.

[00:15:46] Speaker 03:
that the defendant possessed the gun and used it in the crime, the road rage shooting at issue, and then makes explicit the inference that guns possessed for criminal purposes would usually be kept with the defendant or in his vehicle.

[00:15:59] Speaker 01:
Let me test that a little bit.

[00:16:02] Speaker 01:
I mean, this is a defendant.

[00:16:03] Speaker 01:
He's got outstanding warrants and has just committed a very public gun crime.

[00:16:10] Speaker 01:
I mean, it seems to me the smart thing would be to toss it out your window on the way home.

[00:16:16] Speaker 03:
And I think you're honored that that would have been another fair statement by the affiant if he said, in my training and experience, people who use guns in crimes often toss them out the window or throw them in the trash.

[00:16:29] Speaker 03:
But the affiant made the statement, a factual statement based on his own training experience, that that's not what happens.

[00:16:35] Speaker 03:
And so gave the court, the reviewing magistrate judge, a basis for concluding that the firearm would still be with the defendant or in the vehicle used in the crime.

[00:16:47] Speaker 03:
And so just drawing closing the loop on how this does compare with the case in run I'd say the case specific facts do exist here.

[00:16:56] Speaker 03:
This is an affidavit saying this gun was used in a crime by this individual, and in this car, and then spelling out the additional evidence that the fine says.

[00:17:07] Speaker 03:
guns that are possessed for use in a criminal purpose are often kept with that defendant or in their vehicle.

[00:17:13] Speaker 04:
Do you think there was probable cause to search the Parker Roadhouse?

[00:17:19] Speaker 03:
Your Honor, that would have been a closer call, I think, based on what the affidavit discloses about the nature of that location, that when the officers arrived there, they found that there was one vehicle.

[00:17:32] Speaker 03:
It didn't appear to be the vehicle that was used in this crime.

[00:17:36] Speaker 03:
It appeared to be

[00:17:37] Speaker 03:
abandoned and then they had traveled to a second location and seen the defendant and the vehicle in a manner that was consistent with residents or at least presence in that second location that I live.

[00:17:51] Speaker 03:
So I think that the affidavit, if it had sought to search the Parker Road location and disclose the same facts, it would have been a much closer call.

[00:18:02] Speaker 03:
But I think the combination of factors that were seen in the islet road location gives a clear basis for thinking that that is a location where the defendant might be found.

[00:18:13] Speaker 03:
On that point, I noted your question about the relationship or whether the relationship between Mr. Becker and the Isle of Location is contested.

[00:18:21] Speaker 03:
I just want to re-highlight some of the data points that do support the relationship between him and the Isle of Location.

[00:18:28] Speaker 03:
First, there is the law enforcement database that associated defendant with the Isle of Location.

[00:18:33] Speaker 03:
I'll come back to that in just a moment.

[00:18:35] Speaker 03:
Second is the presence of the car.

[00:18:37] Speaker 03:
that was used in the crime, and it's depicted in two different photographs on page seven of the warrant, where it is parked very tight to the garage at Isle of Flane.

[00:18:45] Speaker 03:
And third, there was the sighting defendant himself walking in and out of the location, in and out of the car, and later hand washing the car in the driveway.

[00:18:54] Speaker 03:
In addition to the points that are made expressly, the facts that the warrant supplies support the magistrate's reasonable inference that defendant resided at that property.

[00:19:05] Speaker 03:
For instance, the location of the vehicle as depicted in the warrant is telling.

[00:19:09] Speaker 03:
In both of the two pictures on page seven of the warrant, the cars parked immediately up against the garage at the end of what appears to be a medium length driveway set away from the road.

[00:19:19] Speaker 03:
The reviewing magistrate might well have drawn the reasonable inference from that placement, along with other facts in the affidavit, like the defendant walking in and out of the house and washing the car, to conclude that he was at least at the time of the warrant's execution residing within that location.

[00:19:35] Speaker 03:
Regarding the database check, defendant has made much of the point that the database was unidentified.

[00:19:42] Speaker 03:
And I would concede that under Roach, that entry enough would not be alone to support a substantial nexus.

[00:19:48] Speaker 03:
However, in this case, it did not stand alone.

[00:19:51] Speaker 02:
The officer's documents- Sorry, what did you just say?

[00:19:55] Speaker 02:
In this case, the database was not what?

[00:19:58] Speaker 03:
The database did not stand alone.

[00:20:00] Speaker 03:
The facts that are contained in that database are corroborated by officers' direct observations.

[00:20:07] Speaker 03:
And in light of that corroboration, the database entry takes on additional value.

[00:20:11] Speaker 03:
It tends to support the determination in the magistrate's review that the defendant had an established connection with the property prior to the documented observations contained within the face of the warrant.

[00:20:24] Speaker 03:
As an aside, I'm primarily going to be focusing on the probable cause determination here, but I would note that the court in Roach

[00:20:31] Speaker 03:
found that even the unadorned reference to a database checking a warrant was sufficient to overcome the minimal nexus hurdle for good faith.

[00:20:41] Speaker 03:
Finally, I want to address

[00:20:44] Speaker 03:
Judge Timkovich, your follow-up point, whether or not it does matter that whether or not this Isle of Lane location was where Mr. Becker resided or simply where he could be found.

[00:20:54] Speaker 03:
Because it is clear under this court's precedence that whether or not a location is or is not a defendant's residence is neither necessary nor sufficient to establish probable cause to search for firearms.

[00:21:06] Speaker 03:
So while cases like Al-Qahtani and Ron made clear that the defendant's residence was an important factor, it was not the only factor.

[00:21:13] Speaker 03:
What matters is the affidavit establishes the additional evidence linking the crime under investigation or evidence of that crime to the particular location searched.

[00:21:23] Speaker 01:
What about the temporal issue that it's three weeks after anybody seen this gun.

[00:21:31] Speaker 03:
Well there your honor I think that the primary answer on the face of the word is supplied by the finance statement that firearms are not the type of evidence that one is likely to discard and so they would be kept with Mr Becker and.

[00:21:46] Speaker 03:
both because the magistrate judge was entitled to rely on that statement and also draw from their own reasonable inferences about how this firearm had been used, for instance, that Mr. Becker clearly had it on him at the time of the road rage shooting immediately next to him.

[00:22:00] Speaker 03:
I don't think it was unreasonable to say, well, three weeks later, it might be in the same position.

[00:22:05] Speaker 03:
And if we looked at that question only as a matter of good faith, I noted the court's questions about

[00:22:14] Speaker 03:
the time length in Coto, for instance, where it was a matter of hours.

[00:22:19] Speaker 03:
But I would direct the court to the discussion within Coto, distinguishing cases in which no good faith was found, Gonzalez and Dutton.

[00:22:28] Speaker 03:
In distinguishing those two cases, the court took note of only two facts.

[00:22:33] Speaker 03:
One, the presence of the

[00:22:35] Speaker 03:
car that was used to flee from the scene of the road rage shooting in that case, as well as the defendant's physical presence.

[00:22:41] Speaker 03:
On those facts alone, not noting the duration of time or lack thereof, the court found there was sufficient basis on the face of the warrant to clear the minimal nexus hurdle.

[00:22:53] Speaker 03:
But again, looking at cases like Ron, for instance, where there had been a 10 to 18 month gap in any of the probable cause and no showing that Mr. Ron had ever possessed the firearms in the house, the court still found there was a sufficient basis based on the nature of the items possessed, as well as some of the facts around why Mr. Ron possessed those firearms to conclude that there was still probable cause to believe they were in the location to be searched.

[00:23:24] Speaker 03:
I'd also like to briefly discuss the challenge statement and the comparison between the affiant statement in this case that the firearm is not usually disposed of following the commission of a crime and defendants characterization of that statement as conclusory.

[00:23:46] Speaker 03:
Simply put, the government doesn't agree that that is a conclusory statement.

[00:23:49] Speaker 03:
It states its conclusion that the firearm is still likely to be found in any location or vehicle associated with Decker.

[00:23:55] Speaker 03:
but then supplies the basis for the assertion.

[00:23:58] Speaker 03:
The affiant statement drawn on his own training and experience that a firearm is not normally disposed of after the commission of a crime.

[00:24:05] Speaker 03:
I agree that there was a somewhat similar statement within mora that this court disapproved of, but there I think the question was not simply the fact that the affiant statement

[00:24:18] Speaker 03:
stated what would usually happen with evidence, but also posited the existence of evidence which was otherwise not found on the face of the warrant.

[00:24:27] Speaker 03:
The court took issue with the fact that in that case, the fine stated that there would be a cell phone based on the training experience and that it would be found in the house.

[00:24:35] Speaker 03:
And there were no facts to support either of those two points.

[00:24:38] Speaker 03:
The distinction here is that there is probable cause to believe both that there was a firearm and that it had been in Mr. Kota or Mr. Becker's possession prior to the search.

[00:24:51] Speaker 03:
The other case that I wanted to highlight in that regard is this this court's decision in Harris, in which the court approved of an affiance assertion that individuals connected to a violent crime or conspiracy are known to sometimes hide incriminating evidence at a friend's place or keep it at a common clubhouse.

[00:25:09] Speaker 03:
So in that case, there was other evidence that established the nature of the location to be searched and the connection between the driver who was under investigation at that time and this sensible clubhouse.

[00:25:20] Speaker 03:
But it was the affidavit statement of opinion as to where evidence might be found that was the lynchpin of the Nexus in particular.

[00:25:27] Speaker 03:
So stating that otherwise, knowing that there is a clubhouse in which evidence might be stored 18 months after the fact of a crime does not actually establish a nexus between that 18 month old crime and the location to be searched.

[00:25:41] Speaker 03:
It was only the affidavit statement that, bless your honor, it was only the affidavit statement that the

[00:25:50] Speaker 03:
evidence of that 18 month old crime might well be found within this particular clubhouse that established the nexus required to search for that evidence.

[00:25:59] Speaker 03:
So consider the analog of that statement here.

[00:26:02] Speaker 03:
where the affiant provides probable cause to believe location is defendant's residence, where at very least the location where he might be found, and then asserts that firearms are often retained with an individual following their use in crime.

[00:26:14] Speaker 03:
So viewed in that light, the statements accomplish largely the same purpose.

[00:26:18] Speaker 03:
They connect a location characterized by other evidence in the affidavit with the evidence that has been sought by the warrant.

[00:26:25] Speaker 03:
With that, I see I have two minutes left, Your Honor, but I will take any questions the panel has, but otherwise ask that the court affirm the decision below.

[00:26:35] Speaker 02:
Questions?

[00:26:37] Speaker 02:
Thank you.

[00:26:38] Speaker 02:
Ms.

[00:26:38] Speaker 02:
Tourgeau?

[00:26:42] Speaker 00:
Thank you, Your Honor.

[00:26:43] Speaker 00:
Just a few points.

[00:26:45] Speaker 00:
First, it cannot be the case that probable cause to find Mr. Becker or his car at the residence equals probable cause to find evidence at the house.

[00:26:55] Speaker 00:
That would be true.

[00:26:56] Speaker 00:
That would have been true in Roland and in any case where you know that the defendant lives somewhere or he might live somewhere.

[00:27:03] Speaker 00:
So I just want to say that is that cannot be the case.

[00:27:06] Speaker 00:
Second, Ron is

[00:27:08] Speaker 00:
completely different from this case and actually shows what the affidavit is missing here.

[00:27:12] Speaker 00:
In Ron, there were case-specific reasons to think that the gun was going to be at the house and it was going to be kept there over time.

[00:27:20] Speaker 00:
The affiant had, or excuse me, the conspirator had said that he would let the guns, he wanted to let the guns appreciate.

[00:27:25] Speaker 00:
His co-conspirator had pawned the guns, whereas he had not.

[00:27:28] Speaker 00:
They looked at pawn records and he had not.

[00:27:31] Speaker 00:
He had used one of the guns hunting for personal use and the court said okay well if you're using them for hunting and personal use more likely to be at a home and he was an ATF agent so he couldn't be storing them at work and the fact that he was going to let them appreciate made it seem like he was going to give care to their storage.

[00:27:46] Speaker 00:
That's all those are case specific reasons to think that the the gun was still at the house.

[00:27:51] Speaker 00:
Ron is completely different from this case.

[00:27:54] Speaker 00:
Third, the officer's generic statement about guns not typically being disposed of after crime.

[00:28:00] Speaker 00:
It does not support probable cause under Moira.

[00:28:02] Speaker 00:
It is boilerplate.

[00:28:03] Speaker 00:
It's generic.

[00:28:04] Speaker 00:
It is not tied to the case-specific circumstances here.

[00:28:08] Speaker 02:
The court, as Judge Timkovich said in his concurrence in Moira... Why was it more likely that he wouldn't dispose of it here?

[00:28:17] Speaker 00:
Because it was used in a crime that's public, where his license plate number is tied to that car, as the court in Wilson said there.

[00:28:26] Speaker 02:
So you would say the likelihood is very great that he would dispose of the gun right after the incident.

[00:28:35] Speaker 02:
Maybe while he's driving away, toss it to the side of the road.

[00:28:38] Speaker 02:
Because now we're talking about a couple weeks later, and nothing's happened to him.

[00:28:42] Speaker 02:
So if he was going to dispose of it,

[00:28:45] Speaker 02:
for the reason you say he would dispose of it immediately afterwards.

[00:28:50] Speaker 02:
So if they went to his house, wherever that was, the next day or later that day, you wouldn't have probable cause to look for the gun because it'd be so likely he would have disposed of it beforehand.

[00:29:01] Speaker 02:
Is that where your argument takes you?

[00:29:04] Speaker 00:
I think they would need some reason to think that it came back with him.

[00:29:07] Speaker 00:
Any evidence that he was taking things that could hold a gun in and out of the house.

[00:29:11] Speaker 00:
There's nothing like that here.

[00:29:13] Speaker 00:
Or even just if it was right afterwards, OK, maybe there's a good chance.

[00:29:16] Speaker 00:
But I just I think there's nothing here connecting the gun to the house three weeks later.

[00:29:21] Speaker 00:
We'd ask this court to reverse.

[00:29:22] Speaker 00:
Thank you.

[00:29:23] Speaker 02:
Thank you, counsel.

[00:29:24] Speaker 02:
Cases submitted, counsel excused.