[00:00:00] Speaker 02:
and that is United States versus Blasdale.

[00:00:05] Speaker 00:
Good morning and may it please the court.

[00:00:07] Speaker 00:
My name is Rachelle Anderson and I represent the defendant Zachary Blasdale.

[00:00:12] Speaker 00:
We're here this morning because the district court failed to grant Mr. Blasdale's motion to suppress and this court should reverse and remand.

[00:00:23] Speaker 00:
I want to begin by emphasizing this morning that Mr. Blasdale enjoyed the same expectation of privacy in the storage unit that he and his girlfriend were renting as they did their own home.

[00:00:36] Speaker 00:
And that's recognized by precedent in this court under Johnson.

[00:00:40] Speaker 03:
Is that right with the lease agreement such as it was?

[00:00:44] Speaker 00:
I think so it is, Your Honor.

[00:00:45] Speaker 03:
Well, you don't have a lease agreement with your home that says, come on in any time you want and invite the police along.

[00:00:52] Speaker 00:
That's accurate.

[00:00:53] Speaker 00:
You may, though, have one with a rented apartment, a rented office space, and you would still enjoy, specifically with regards to a residence, that same expectation of privacy.

[00:01:02] Speaker 00:
Because in Johnson, I think this Court has been consistent in recognizing that when you have a secured area,

[00:01:08] Speaker 00:
like a home or like a storage unit, that it's reasonable to have a subjective belief that what you do and what you store in that area is going to be private and that that's a societal expectation that if you put something in a home, you put something in a locked storage unit, that you have a reasonable expectation of privacy and it's one that society would recognize.

[00:01:30] Speaker 00:
So I believe we start from that premise with regards to the expectation of privacy that Mr. Blasdale enjoyed.

[00:01:37] Speaker 00:
I want to turn to some facts that are in dispute and what's not a dispute because I think that would be important to guiding this morning's argument.

[00:01:46] Speaker 00:
What's not in dispute is that Officer Doyle and Officer Lemons, who is a canine officer, collectively conducted three warrantless searches of the storage unit.

[00:01:57] Speaker 00:
And that was in violation of Mr. Blasdale's Fourth Amendment protections.

[00:02:00] Speaker 04:
But isn't there evidence that the employee let them in, an employee who had the right to be there?

[00:02:08] Speaker 00:
I think there is information in the record, Your Honor, that the employee saw that the storage unit door was open.

[00:02:14] Speaker 00:
And there was a male employee and a female employee.

[00:02:17] Speaker 00:
Both of those employees entered.

[00:02:19] Speaker 00:
And the door was open.

[00:02:20] Speaker 00:
And both officers testified at the suppression hearing.

[00:02:23] Speaker 00:
And I think the court found that they peeked in.

[00:02:25] Speaker 00:
They put their head across the threshold into that protective space.

[00:02:29] Speaker 04:
Yes, but the original first employee, when the door was ajar under the agreement, had the right to enter.

[00:02:38] Speaker 04:
just make sure it was safe that nobody in there, that kind of stuff.

[00:02:44] Speaker 04:
And so she saw the gun on the desk and stuff that looked like drug paraphernalia.

[00:02:51] Speaker 00:
That is accurate, Your Honor.

[00:02:52] Speaker 00:
That's supported by the record.

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And there's no dispute that both of the employees, by entering the storage facility, there's no Fourth Amendment claim.

[00:02:59] Speaker 00:
They're private citizens.

[00:03:01] Speaker 00:
They could enter.

[00:03:02] Speaker 04:
They had an obligation to enter for safety concerns.

[00:03:06] Speaker 04:
And she called the police because she was concerned about the gun and what looked like drugs.

[00:03:13] Speaker 00:
That is accurate, Judge, yes.

[00:03:15] Speaker 04:
And didn't she tell them what she'd seen?

[00:03:17] Speaker 00:
She did tell them what she saw from the perspective of a civilian employee.

[00:03:23] Speaker 00:
Yes.

[00:03:24] Speaker 00:
I'm sorry, Your Honor.

[00:03:24] Speaker 04:
But with that information, didn't they have the right to search?

[00:03:30] Speaker 00:
No, Your Honor.

[00:03:31] Speaker 04:
Why?

[00:03:31] Speaker 00:
Because Mr. Blasdale still enjoyed an expectation of privacy of the storage unit, and warrantless searches are presumed unreasonable.

[00:03:43] Speaker 03:
This is a curious case and different than any that I remember seeing.

[00:03:48] Speaker 03:
And what if the officers had just come, heard from both of the employees at the storage unit who said, we went inside, we saw firearms, we saw drug paraphernalia, we saw a money calendar, we saw scales or whatever else, baggies.

[00:04:05] Speaker 03:
And the officer had said, well, one thing I'm not going to do is even look in there, but I'm going to rush down with this information, get a search warrant.

[00:04:12] Speaker 03:
That would have been probable cause, wouldn't it?

[00:04:14] Speaker 00:
I don't think so, Your Honor.

[00:04:16] Speaker 03:
Well, arguable probable cause?

[00:04:18] Speaker 00:
I don't think so.

[00:04:19] Speaker 03:
What if I disagreed with you and I said I think that is arguable probable cause?

[00:04:24] Speaker 03:
Where would that leave us?

[00:04:25] Speaker 00:
Well, Your Honor, I think we're tied back to the facts of this specific case and there's evidence that the officer, specifically Officer Lemons, who

[00:04:34] Speaker 00:
took the step after entering a third time, or with the officers entering the storage unit a third time, of finally getting a warrant and finally preparing the affidavit.

[00:04:42] Speaker 00:
But I think there's evidence that he didn't even think that there was probable cause.

[00:04:46] Speaker 00:
And this goes, I think, to Judge.

[00:04:47] Speaker 03:
But we don't care.

[00:04:48] Speaker 03:
We don't care if he thinks that there was probable cause.

[00:04:51] Speaker 03:
What we care about is, was there a probable cause?

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Reasonable objective officer.

[00:04:56] Speaker 03:
And what really I'm uncertain about with this case is that I think,

[00:05:03] Speaker 03:
at least for now, that there was a least arguable probable cause just based on what the employees told the officer.

[00:05:11] Speaker 03:
But then the officer doesn't write the affidavit that way.

[00:05:14] Speaker 03:
If the officer wrote, I talked to employee one and said XYZ, I'm probably good.

[00:05:21] Speaker 03:
But the officer instead doesn't reference them and just says there's methamphetamine in there.

[00:05:28] Speaker 03:
And what do we do with that?

[00:05:31] Speaker 03:
Because I don't blame the magistrate for signing that.

[00:05:34] Speaker 03:
There's methamphetamine in there.

[00:05:36] Speaker 03:
Where do I sign?

[00:05:37] Speaker 03:
But it's not disclosed how the officer knows that.

[00:05:41] Speaker 03:
And what do we do with that?

[00:05:43] Speaker 00:
Judge Phillips, I agree that it's complicated by Officer Lemmon's misrepresentations inside the search warrant affidavit and his failure to be clear on the facts that he discovered.

[00:05:53] Speaker 00:
But I do not think, and when we look at probable cause, we are bound to some extent by the four corners of the affidavit.

[00:06:00] Speaker 00:
But in this case, there was conflicting information between the two civilian witnesses.

[00:06:05] Speaker 00:
The female witness said that when she entered the storage unit she saw a white powdery substance, she saw a gun, she saw a money counter.

[00:06:13] Speaker 00:
And I believe she said that she saw baggies.

[00:06:16] Speaker 00:
The male employee who also entered, he never testified to seeing any drugs.

[00:06:21] Speaker 00:
And that was also information as conflict between what the female employee saw, which is a white powdery substance, and the male employee never testifying and never reporting to the officers on scene that he saw anything.

[00:06:34] Speaker 02:
And so I think that that... The last thing you said, are you talking about Levins or the FDAA?

[00:06:40] Speaker 02:
I'm talking about the father, the male employee.

[00:06:47] Speaker 02:
You and I can look at the same thing, and you notice something, and I might not notice something, but the dad did notice something that the daughter didn't notice, and that was, I think you mentioned the digital money counter, but he also saw the scale.

[00:07:01] Speaker 02:
I think they both saw the scale.

[00:07:02] Speaker 00:
Yes, I did.

[00:07:04] Speaker 00:
I believe that that's correct.

[00:07:06] Speaker 00:
Still, I think it's not illegal to own a scale.

[00:07:08] Speaker 00:
It's not illegal to own a money counter.

[00:07:09] Speaker 00:
It's not illegal to have these baggies.

[00:07:11] Speaker 00:
What was illegal are observed to be illegal in the storage unit that the female employee saw that her father and the male employee didn't.

[00:07:20] Speaker 00:
potentially was the white powdery substance.

[00:07:22] Speaker 00:
But here's where I think that under SIMS, we have to separate, talking about separation this morning, wheat from chaff, you have to separate the observations of these, specifically just one, just a few known for you, white powdery substance.

[00:07:39] Speaker 00:
From the training and reliability that's referenced in the search warrant affidavit, when Officer Lemons reports to the magistrate judge and swears under openness affidavit, I'm a canine drug detection officer, I have years of experience, hundreds of arrests, tons of narcotics investigations,

[00:07:57] Speaker 00:
You could see this from plain view.

[00:07:58] Speaker 00:
And he's making those representations.

[00:08:00] Speaker 00:
And he's saying, specifically with regards to the affidavit, I saw a white crystalline substance and recognized it to be methamphetamine from my experience as a probation officer.

[00:08:10] Speaker 00:
That white powdery substance does not turn into an illegal substance, let alone methamphetamine, until it's observed by an officer with training and experience to make that type of determination.

[00:08:24] Speaker 00:
And that is the issue that's presented

[00:08:27] Speaker 00:
under SIMS, we have to figure out a way to parse that out.

[00:08:31] Speaker 00:
And when you have a female employee who's just reporting, I saw a white powdery substance, that is not sufficient probable cause, even with the collection of other information.

[00:08:41] Speaker 00:
Because Officer Sims testified at the motion to suppress hearing, we get these calls all the time from people in the community, from civilians, without law enforcement training.

[00:08:51] Speaker 00:
And the DA, the district attorney that he reached out to said, go in and confer.

[00:08:56] Speaker 00:
Put your law enforcement training and experience eyeballs on that evidence and then come back and get the warrant.

[00:09:02] Speaker 00:
If it is actually, if you confirm it to be methamphetamine or some illegal substance, then come back and get the warrant.

[00:09:08] Speaker 03:
Can we even get to what the employees said when it's not in the affidavit?

[00:09:13] Speaker 03:
Isn't there a four corners rule or something?

[00:09:16] Speaker 00:
Your honor, I think there is in United States versus Coto.

[00:09:18] Speaker 00:
It says that we are bound to the four corners of the affidavit.

[00:09:21] Speaker 03:
Then why are we talking about the employees?

[00:09:23] Speaker 03:
Why are you talking about them more particularly?

[00:09:25] Speaker 00:
Well, I think specifically, Your Honor, because the district court said that the officers didn't discover anything by their illegal entry and unlawful entry into the storage unit that they didn't already know when they first got on scene and were in the parking lot and talked to the employees.

[00:09:43] Speaker 03:
What do we do?

[00:09:44] Speaker 03:
Oh, wait.

[00:09:45] Speaker ?:
OK.

[00:09:46] Speaker 03:
Looking at the affidavit, affidavit states I could clearly see a white crystalline substance on a desk inside the unit, recognize it to be methamphetamine.

[00:09:55] Speaker 03:
That's the heart and soul of this.

[00:09:57] Speaker 03:
It's really tight, concise.

[00:10:00] Speaker 03:
And yet everyone concedes at this point, I think the government does, that he had to stick his head in to see that and that that constitutes a surge.

[00:10:08] Speaker 03:
And so if you take a pen and cross that out because

[00:10:14] Speaker 03:
it doesn't meet the plain error or the plain view doctrine, then can, here's what I'm unsure of, can the government then pick up other facts at a suppression hearing and say, no harm, no foul, because we could have given a different affidavit that would have said this, that, or the other, or are they just stuck with this?

[00:10:33] Speaker 00:
Your Honor, I think they're stuck with the four corners of the affidavit.

[00:10:36] Speaker 03:
Then why are we talking about the employees?

[00:10:38] Speaker 00:
Well, in the event that the court wants to look beyond that, or to the extent that there's findings that the district court made based on the information that was testified to in the motion to suppress hearing.

[00:10:51] Speaker 02:
Don't we do just that?

[00:10:53] Speaker 02:
Don't we view the evidence of the wife most favorable of the ruling on the denial of a motion to suppress?

[00:10:59] Speaker 00:
That is correct.

[00:11:01] Speaker 00:
But when we're looking at what is in the four corners of the affidavit, you know, I think there is this tension between do you credit the testimony at the motion to suppress hearing or do you look to the four corners of the affidavit.

[00:11:14] Speaker 00:
I think in United States versus COTA it was pretty clear that this court looks to the four corners of the affidavit when trying to identify the existence of probable cause.

[00:11:22] Speaker 00:
And I want to get to the next, I think, important point that there is, and Judge Phillips alluded to this, but I want to be clear, there's no meaningful dispute by the United States or based on the record and the testimony at the motion to suppress if there's any type of a plain view.

[00:11:36] Speaker 00:
And that's misleading for Officer Lemmings to have put in the affidavit.

[00:11:42] Speaker 00:
Turning to the inevitable discovery doctrine.

[00:11:45] Speaker 00:
but for the search was the warrant going to be granted and applied for regardless?

[00:11:53] Speaker 00:
And I think the answer to that question is clearly no based on the information in the record.

[00:11:57] Speaker 00:
And United States versus SUSE has a four factor test and all four of those factors weigh in favor of Mr. Blasdale.

[00:12:05] Speaker 00:
Specifically, when it comes to the extent that the warrant process was completed, we know it wasn't completed when Officer Doyle entered.

[00:12:13] Speaker 00:
We know it wasn't even started when Officer Lemons entered the first of the two times that he entered.

[00:12:19] Speaker 00:
And he reached out to the DA, the district attorney, who told him, go into the storage unit, confirm whether or not this is methamphetamine or some other white powdery substance.

[00:12:30] Speaker 00:
The second factor of SUSE looks at the strength of showing a probable cause at the time of the search.

[00:12:35] Speaker 00:
And we talked about the contradictions between the information that the officers received on scene and the fact that I think there's evidence that Officer Lemons didn't even think there was probable cause until he went in and identified it as a law enforcement officer.

[00:12:50] Speaker 00:
The DA he spoke to didn't think that there was probable cause because he told him, go back in.

[00:12:54] Speaker 03:
What about the firearms when they find out the next day that he's a felon?

[00:12:58] Speaker 03:
That's an instant probable cause, isn't it?

[00:13:00] Speaker 03:
An inevitable discovery?

[00:13:03] Speaker 00:
That is potentially an inevitable discovery, Your Honor.

[00:13:05] Speaker 00:
I think that that was not an argument that the United States had raised specifically in the underlying briefing.

[00:13:12] Speaker 00:
But I do think that that could present another issue if the court decides to go past the four corners of the affidavit.

[00:13:19] Speaker 00:
The third factor under SUSE was a warrant ultimately obtained, and I think the answer to that is clearly yes, but it was tainted by the unlawful entry into the storage unit and the information that officers obtained.

[00:13:33] Speaker 00:
And the fourth, and I think the strongest element here is

[00:13:36] Speaker 00:
Was there evidence that law enforcement agents jumped the gun because they lacked confidence and they're showing a probable cause?

[00:13:43] Speaker 00:
And I think this is the unique case where that evidence is clear, where you have an officer who's entering and later testifies.

[00:13:50] Speaker 00:
He's confirming

[00:13:52] Speaker 00:
you know, what is the substance based on his training and experience.

[00:13:56] Speaker 00:
And so inevitable discovery, and that exception doesn't apply to the facts of this case.

[00:14:01] Speaker 00:
And I think this court has been hesitant to apply it where there's not another type of exception, such as a search incident to arrest or an inventory search.

[00:14:11] Speaker 00:
And this court cannot have confidence the same way that Officer Lemons and the district attorney who told them to enter did not have confidence in the existence of probable cause.

[00:14:21] Speaker 00:
And I see I'm out of time.

[00:14:22] Speaker 00:
I did intend to reserve a small amount of time for rebuttal.

[00:14:26] Speaker 00:
I would request to take that now.

[00:14:28] Speaker 02:
Robert, why don't you stop her clock.

[00:14:31] Speaker 02:
So sit and cutting into your rebuttal.

[00:14:33] Speaker 02:
OK.

[00:14:36] Speaker 00:
Thank you.

[00:14:40] Speaker 02:
We'll hear from the appellate.

[00:14:46] Speaker 01:
May it please the court, Jack Dowdell on behalf of the United States, the district court was correct to deny Mr. Blasdell's motion to suppress in this case because the affidavit for the storage unit search warrant contained only information that was conveyed to police officers from employees at the storage facility.

[00:15:08] Speaker 01:
That information supplied probable cause.

[00:15:10] Speaker 01:
How can you say that?

[00:15:12] Speaker 03:
Most important sentence, affiant states that I could clearly see a white crystalline substance on a desk.

[00:15:18] Speaker 03:
I recognize that as methamphetamine.

[00:15:20] Speaker 03:
That has nothing to do with what the employees do.

[00:15:22] Speaker 01:
Your Honor, you're correct.

[00:15:23] Speaker 01:
And I actually said that sentence in a way that was misleading that I'm glad you pointed out.

[00:15:28] Speaker 01:
The affidavit for the storage unit search warrant contained adequate probable cause based only on information conveyed to police before any Fourth Amendment violation.

[00:15:40] Speaker 01:
So that information consisted of an open storage unit, white powder, which was conveyed to police officers by Calista Daganati, a gun.

[00:15:51] Speaker 03:
Where is that?

[00:15:52] Speaker 01:
I don't see that in the affidavit.

[00:15:57] Speaker 01:
So Calissa Dagna conveyed that she saw white powder.

[00:16:01] Speaker 03:
Are you reading the affidavit or are you telling me the facts of the case?

[00:16:03] Speaker 03:
Because I know she says that, but it's not an affidavit.

[00:16:06] Speaker 03:
And you're talking four corners.

[00:16:08] Speaker 01:
Yes, Your Honor.

[00:16:08] Speaker 01:
The four corners of the affidavit starts with strange behavior on the part of the defendant.

[00:16:13] Speaker 01:
But it also specifically said that the employee believed the item seen in plain view of the open door to be illegal narcotics.

[00:16:22] Speaker 01:
Now, that's a broad term, which if you look at lower

[00:16:27] Speaker 01:
and it would be lower in the affidavit, near the drugs were baggy scales of firearm and a digital currency counter.

[00:16:36] Speaker 01:
Those specific items were conveyed to police by the employees at the storage facility.

[00:16:44] Speaker 03:
Seeing in plain view, it is so vague and ambiguous.

[00:16:48] Speaker 03:
The officer saw?

[00:16:50] Speaker 03:
The employee saw?

[00:16:51] Speaker 03:
Thought the idea was that the two employees went inside the storage unit and saw things.

[00:16:56] Speaker 03:
And the affidavits talking about maybe plain view means after they went in there.

[00:17:00] Speaker 03:
But it doesn't say these employees reported to me that here's what they saw.

[00:17:05] Speaker 03:
Said that, I'm good.

[00:17:07] Speaker 03:
But with what this says, not so good.

[00:17:10] Speaker 01:
Correct, your honor.

[00:17:12] Speaker 01:
And that's why I think it is important to refer to the testimony before the district court to add context to the items that are specified in this search warrant affidavit.

[00:17:26] Speaker 01:
The employee believed that the item seen in plain view of the open door to be illegal of narcotics.

[00:17:30] Speaker 01:
That does clearly attribute that representation to the employee.

[00:17:34] Speaker 01:
I don't read it that way.

[00:17:35] Speaker 03:
Or at least I certainly read it two ways, which is,

[00:17:39] Speaker 03:
The employee believed, so the employees told the officer something, that the items seen in plain view of the open door were illegal narcotics, seen by whom?

[00:17:50] Speaker 03:
And what I take that to mean is the officer's feet stayed outside of the door, but the officer's eyes went inside the door, and he's saying,

[00:18:00] Speaker 03:
Plain view of the open door because my feet are out there and not realizing the distinction that you can't be putting your eyes in there and doing the big lean.

[00:18:10] Speaker 01:
Correct.

[00:18:10] Speaker 01:
And your honor, I don't think by reading the search warrant affidavit that the officer says one way or the other, I stepped in there or I didn't.

[00:18:19] Speaker 01:
And that's why it's important to refer to the transcript of the hearing.

[00:18:24] Speaker 03:
Well, who gets the benefit of that ambiguity?

[00:18:26] Speaker 03:
Do you really get a second chance to come in and fill in gaps?

[00:18:30] Speaker 03:
Here's what we meant and here's what we didn't say in our affidavit that we could have said, Your Honor, so please pretend that the affidavit said all of these other things and clear us.

[00:18:39] Speaker 03:
That's what I'm hearing and if there's law to that effect, please tell me what's the case that says that.

[00:18:45] Speaker 01:
I do not have a case for you, Your Honor, because as far as I know, one does not exist.

[00:18:49] Speaker 01:
And that is not what I wish to suggest here.

[00:18:51] Speaker 01:
But just that if we're looking at the four corners of the affidavit, a magistrate reviewing the information in this could reasonably infer that there's probable cause of a crime, just based on those four corners.

[00:19:03] Speaker 03:
So resolve it in favor of the government.

[00:19:05] Speaker 03:
The magistrate can resolve ambiguities in favor of the government and search for an affidavit and go for it.

[00:19:11] Speaker 01:
I apologize.

[00:19:12] Speaker 01:
I want to make sure I'm understanding your question correctly.

[00:19:14] Speaker 01:
I don't understand the ambiguities you're referring to.

[00:19:19] Speaker 03:
Ambiguities is who saw in plain view and were the eyes inside or outside that open door.

[00:19:25] Speaker 03:
Correct.

[00:19:26] Speaker 03:
And the way I read it is the officer saying I saw because the officer saying I recognize that as methamphetamine.

[00:19:35] Speaker 03:
So it's got to be the officer's eyeballs.

[00:19:38] Speaker 03:
And he's saying an open door.

[00:19:39] Speaker 03:
Well, that's true.

[00:19:41] Speaker 03:
But you can't put your head past the open door, you agree with that?

[00:19:44] Speaker 01:
Correct, absolutely, Your Honor.

[00:19:45] Speaker 01:
So what I would respond to that is that he does clearly say that the employees saw through an open door what they believed to be illegal narcotics.

[00:19:55] Speaker 03:
I don't see where it says that.

[00:19:57] Speaker 03:
Affian states that the employee believed the items seen in plain view of the open door to be illegal narcotics.

[00:20:04] Speaker 03:
Yes, Your Honor.

[00:20:06] Speaker 03:
I'm not sure I'm getting where you're getting.

[00:20:08] Speaker 03:
out of that, but I don't want to chew up all your time on it.

[00:20:10] Speaker 01:
No, no, I appreciate the questioning.

[00:20:13] Speaker 01:
This affidavit could be more clearly written, there's no question.

[00:20:18] Speaker 01:
But when we look at the four corners of it, what we have to do, that sentence is the employees did see what they believed to be illegal narcotics.

[00:20:26] Speaker 01:
That goes towards probable cause.

[00:20:28] Speaker 01:
And then lower in the affidavit, it says near the drugs were Baggy, Scales, Firearm, Digital Currency Counter.

[00:20:34] Speaker 01:
Now that on its face,

[00:20:37] Speaker 01:
Through that sentence, you don't know, did the police officer see it?

[00:20:40] Speaker 01:
Did the employee see it?

[00:20:42] Speaker 01:
But when you consult the transcript, we can see on the record and the district court heard who saw what and who told the police officers what and how that got into the affidavit.

[00:20:52] Speaker 03:
The whole ballgame is who saw it.

[00:20:54] Speaker 03:
And can you, as you say, you don't know any case where you have a poorly written affidavit like this one and the government's allowed to clean up on aisle seven.

[00:21:07] Speaker 03:
at a suppression hearing and fill in gaps.

[00:21:10] Speaker 03:
And if the government can do that, okay, I'm reading that transcript for every line and detail.

[00:21:16] Speaker 03:
But first I need to know the government can do that and help.

[00:21:23] Speaker 01:
What the case law says is that portions of a search warrant affidavit that put forth information that was obtained by police in violation of the Fourth Amendment, that can be excised from the search warrant affidavit.

[00:21:37] Speaker 01:
And if there remains adequate probable cause, then the search warrant stands.

[00:21:42] Speaker 01:
And I'm good with that.

[00:21:43] Speaker 03:
I understand that part of the law.

[00:21:45] Speaker 03:
So I take a big black marker and I cross off the heart of this, which is that the officer

[00:21:53] Speaker 03:
as I read it, peered in through the open doorway and saw narcotics and then find out that wasn't plain view at all and I scratched that off and there's not what's left.

[00:22:07] Speaker 03:
If there were a paragraph that said, here's what the employees told me, I'm good.

[00:22:11] Speaker 01:
But there's not.

[00:22:12] Speaker 01:
And your honor, I don't know the extent to which you and I read it differently.

[00:22:17] Speaker 01:
And I don't want to harp too much on that first sentence that does clearly specify employees told me they saw what they thought were believed to be narcotics.

[00:22:25] Speaker 01:
Now you mentioned the specific mention of methamphetamine.

[00:22:28] Speaker 01:
That you do put a marker through.

[00:22:30] Speaker 01:
The police officers were one.

[00:22:32] Speaker 01:
He heard white powder.

[00:22:33] Speaker 01:
He heard suspected narcotics.

[00:22:35] Speaker 01:
He heard drug paraphernalia.

[00:22:36] Speaker 01:
And he put in here methamphetamine.

[00:22:38] Speaker 01:
You can put a black marker through methamphetamine.

[00:22:41] Speaker 01:
The government's argument is that with the line in this search warrant affidavit, employees told me they saw what they thought to be suspected narcotics.

[00:22:51] Speaker 01:
Then at the bottom, they specify baggy scales, a firearm, and a digital currency counter.

[00:22:58] Speaker 01:
Those items were specifically conveyed to law enforcement before any Fourth Amendment violation.

[00:23:05] Speaker 01:
So to the extent there is a fruit of the poisons tree argument, none of the information gleaned from the Fourth Amendment violation need be in this affidavit.

[00:23:17] Speaker 01:
You'll recall that one of the officers did walk in and open a drawer and take out a gun.

[00:23:21] Speaker 01:
He wisely did not put there was a second gun in the search warrant affidavit.

[00:23:27] Speaker 03:
Why don't you rely on the lease agreement?

[00:23:30] Speaker 03:
I'm sorry, Your Honor?

[00:23:31] Speaker 03:
Why don't you rely on the lease agreement and its language that the police can come in and the police can as well?

[00:23:38] Speaker 01:
The lease agreement did not give the officers the right to walk in under these circumstances.

[00:23:43] Speaker 01:
It was a mistake in reading of it by Officer Lemons.

[00:23:46] Speaker 01:
And we don't rely on it because the lease agreement also did not preclude firearms.

[00:23:51] Speaker 01:
It precluded ammunition, which there was, but that was not readily apparent before the search and seizure.

[00:23:59] Speaker 01:
if in any way I didn't address your question about the lease agreement, please.

[00:24:04] Speaker 01:
No, thank you.

[00:24:04] Speaker 01:
I've talked too much and you need to talk more, sir.

[00:24:07] Speaker 02:
No, I think that really flushed out the argument.

[00:24:10] Speaker 02:
Since he invited you to do that, I'm going to chirp in.

[00:24:13] Speaker 02:
I just want to make sure that I understand your answer to Judge Phillips.

[00:24:20] Speaker 02:
So, hypothetically, if we say that this affidavit

[00:24:27] Speaker 02:
Excising the observations of Officer Doyle and Levins, and we conclude that the remainder does not provide probable cause, but that the evidence that was elicited in the hearing on the motion to suppress does, do we, what do we do then?

[00:24:50] Speaker 02:
Do we, in other words, are we confined to the four corners of the affidavit, or do we consider the combination of the

[00:25:04] Speaker 02:
affidavit with the excision of the unconstitutionally obtained material in combination with the evidence at the hearing on the motion to suppress.

[00:25:15] Speaker 01:
My understanding is that the district court did that.

[00:25:18] Speaker 01:
The district court looked at the four corners of the affidavit after hearing witness testimony.

[00:25:23] Speaker 01:
And if you actually look at the order that was issued,

[00:25:25] Speaker 01:
It acknowledges, Officer Lemons violated the Fourth Amendment when he walked in and opened a drawer and found gun number two.

[00:25:31] Speaker 01:
Officer Lemons didn't put that in the affidavit.

[00:25:34] Speaker 01:
That's good.

[00:25:35] Speaker 01:
But the district court also said, these are the items that the court believes supply probable cause.

[00:25:43] Speaker 01:
And in doing that, the district court said nothing about methamphetamine.

[00:25:47] Speaker 01:
It did mention the white substance.

[00:25:49] Speaker 02:
Mr. Dent, you probably answered my question, but I'm just not sure that I understood it.

[00:25:56] Speaker 02:
So, putting aside what the district court said, assuming we're on de novo review on whether there's probable cause, regardless of what Officer Lemmon said, do we consider the evidence that was elicited at the hearing of the motion to express, in addition to the affidavit with the excision of the unconstitutionally

[00:26:17] Speaker 01:
obtain material.

[00:26:18] Speaker 01:
Your honor, I think you need to hear so that you can say this piece of evidence was supplied by a private citizen working in the facility, as was this piece, as was this piece.

[00:26:28] Speaker 01:
That one wasn't, so we excised that one.

[00:26:31] Speaker 01:
So I do think that the testimony at the suppression hearing should advise your analysis of the four corners of what is put in this affidavit, what's properly kept in it, and what you need to excise and say is there's still probable cause.

[00:26:48] Speaker 01:
And then, Your Honors, I'm happy to move on to the second search warrant affidavit, which I don't know whether it was addressed, and the appellants.

[00:26:58] Speaker 01:
And I know that they have more time, but there was a second search warrant acquired for Mr. Blasdale's home, which was of course based on the evidence recovered during the execution of his first warrant.

[00:27:12] Speaker 01:
Which if you find to stand, supplies heavy probable cause for the home.

[00:27:16] Speaker 01:
But then officers also, they got the address obviously, they learned from employees vehicles that quote frequented that home back and forth.

[00:27:24] Speaker 01:
And the magistrate, based on that and other information in that second search warrant affidavit, reasonably inferred that there might be evidence, contraband or evidence of a crime at the house and found probable cause for that.

[00:27:40] Speaker 01:
And so if you have any questions specifically about the second search warrant, I'm happy to answer them, obviously, my remaining time.

[00:27:47] Speaker 02:
Robert, why don't you stop this club?

[00:27:52] Speaker 00:
Thank you.

[00:27:53] Speaker 00:
And I hope I have an answer for the court that's clear.

[00:27:57] Speaker 00:
When it comes to United States versus Sims, Sims tells us what comes out.

[00:28:01] Speaker 00:
The unconstitutionally obtained information comes out.

[00:28:05] Speaker 00:
At a motion to suppress hearing, you're identifying what information that is.

[00:28:09] Speaker 00:
The government does not have the opportunity at that point in time to supplement the affidavit.

[00:28:15] Speaker 00:
The purpose of the motion to suppress hearing is to establish, was there a violation?

[00:28:20] Speaker 00:
And what if information, if any, was unlawfully obtained and needs to be stricken?

[00:28:25] Speaker 00:
Thank you.

[00:28:26] Speaker 02:
Thank you very much.

[00:28:28] Speaker 02:
This matter will be submitted.

[00:28:30] Speaker 02:
We will complement both attorneys for your excellent briefs and your excellent arguments.