[00:00:00] Speaker 03:
United States versus Guzman, number 242122.

[00:00:08] Speaker 03:
Counsel, you may proceed.

[00:00:10] Speaker 01:
JK Theodosia Johnson on behalf of Mr. Guzman.

[00:00:12] Speaker 01:
I shall endeavor to save two minutes.

[00:00:15] Speaker 01:
Mr. Guzman had the permission of the property owner, Mr. Cannon, to stay on the property in his pop-up camp-up trailer.

[00:00:23] Speaker 01:
That's textbook standing.

[00:00:25] Speaker 01:
The trailer itself was not

[00:00:27] Speaker 01:
rendered substandard.

[00:00:28] Speaker 01:
And the government's argument that merely posting a substandard notice on a building because it controlled over the entire property, including areas that aren't deemed unsafe.

[00:00:40] Speaker 01:
Well, let me ask you about that.

[00:00:45] Speaker 03:
The evidence was that Mr. Guzman had read the notice, correct?

[00:00:50] Speaker 03:
Correct.

[00:00:51] Speaker 03:
And the posted notice said, no person shall reside in this structure.

[00:00:56] Speaker 03:
So far, that seems to refer to the building.

[00:01:00] Speaker 03:
Correct.

[00:01:00] Speaker 03:
But then it said, or on this property.

[00:01:05] Speaker 03:
Now, why doesn't that put him on notice that he's not supposed to reside on this property?

[00:01:14] Speaker 01:
Because the rights of the owner, Mr. Cannon,

[00:01:19] Speaker 01:
Trump that, right?

[00:01:20] Speaker 01:
And he had Mr. Cannon's permission.

[00:01:23] Speaker 03:
And so... All right, so your argument is that the permission trumps the notice.

[00:01:32] Speaker 03:
But would you agree that the notice tells him he's not supposed to live there?

[00:01:37] Speaker 01:
He's not supposed to live there, but he... In the trailer?

[00:01:42] Speaker 01:
No, he's not supposed to live in the buildings.

[00:01:44] Speaker 03:
No, on the property.

[00:01:48] Speaker 03:
And the trailer's on the property.

[00:01:50] Speaker 01:
But the trailer itself is not substandard.

[00:01:52] Speaker 03:
And I think that... Yeah, but the notice doesn't, the notice says, doesn't say reside in this structure or property.

[00:02:04] Speaker 03:
That's what it says in the code, by the way.

[00:02:07] Speaker 03:
But the notice says something a little different.

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It says structure or on this property.

[00:02:16] Speaker 03:
So how does he have a reasonable expectation

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of privacy if he's residing on the property.

[00:02:24] Speaker 01:
Because he's still not a trespasser.

[00:02:26] Speaker 03:
Does he need to be a trespasser to have a reasonable, I mean, if he's not a trespasser does that automatically mean he has a reasonable expectation of privacy?

[00:02:41] Speaker 01:
I think this is going to answer your question.

[00:02:43] Speaker 01:
This is essentially the hypothetical posed in the dissent

[00:02:49] Speaker 01:
Rockman?

[00:02:50] Speaker 01:
Rockman?

[00:02:51] Speaker 01:
Is that the Cave case?

[00:02:53] Speaker 01:
Yes, it's the Cave case, where Judge McKay said, you own your RV, and all of a sudden you overstay your camper permit.

[00:03:03] Speaker 01:
That doesn't do away with your expectation of privacy, because it's still your home.

[00:03:08] Speaker 01:
And that there, the question of trespassing was really of red herring, because it tied it solely to the property right, and not to the expectation of privacy that attaches to your home.

[00:03:20] Speaker 01:
And that's what it is here.

[00:03:22] Speaker 01:
He has an expectation of privacy in his camp trailer home.

[00:03:26] Speaker 01:
And I go back.

[00:03:29] Speaker 01:
I don't think that the ordinances prevent Mr. Cannon from giving permission for people to put things on his property or to access his property.

[00:03:40] Speaker 01:
And yes, there was a finding below that he

[00:03:44] Speaker 01:
wasn't there to fix the property because he was sleeping.

[00:03:47] Speaker 03:
Let me ask you this.

[00:03:49] Speaker 03:
The housing code says in another provision, and these provisions have lots of numbers and letters on them, so I'm not even going to try it, but believe me, it says this.

[00:04:01] Speaker 03:
No person shall be on the property without the written permission of the department.

[00:04:06] Speaker 03:
Does that apply to Mr. Cannon?

[00:04:11] Speaker 01:
So I think it's a bureaucratic requirement that doesn't transform it into trespass.

[00:04:16] Speaker 03:
Well, no, I'm just asking, does Mr. Cannon need to get permission to go on his own property under that provision?

[00:04:23] Speaker 01:
So I think that's a... In other words, does Mr. Cannon live in the trailer?

[00:04:29] Speaker 01:
Mr. Cannon could live in the trailer.

[00:04:31] Speaker 01:
I think that on that point, it's when, under that provision, it's when they haven't taken any

[00:04:38] Speaker 01:
steps to abate the nuisance that they say, then you have to get permission because I think they're trying to assure compliance.

[00:04:45] Speaker 01:
The whole point of declaring a building substandard is to get someone to fix it.

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And if you can't access the property, you can't fix it.

[00:04:52] Speaker 01:
So Mr. Cannon has the ability to tell Mr. Guzman that he can go on the property to fix it.

[00:04:59] Speaker 01:
And he did testify that it was there to fix the plumbing.

[00:05:04] Speaker 00:
You said that there was a finding that because he was sleeping there that he wasn't there with permission to fix the plumbing, but it was in the middle of the day that they came.

[00:05:20] Speaker 00:
Correct.

[00:05:21] Speaker 00:
And the ordinances would give him permission with owner permission to

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beyond the property to fix the plumbing, and they wouldn't have known he was sleeping until they walked in, right?

[00:05:35] Speaker 00:
Correct.

[00:05:36] Speaker 00:
So were you conceding that it didn't matter, that it happened during the day?

[00:05:41] Speaker 01:
No, no, not at all.

[00:05:43] Speaker 01:
I was just acknowledging that the district court made a finding that he was not there to fix the property because he was sleeping, but... Well, are you challenging that finding as clearly erroneous?

[00:06:00] Speaker 01:
Yes.

[00:06:01] Speaker 01:
I don't think that sleeping or taking a nap precludes, I think there's in the ordinances about supplemental things that you do in the course of fixing.

[00:06:13] Speaker 01:
And you can take a break, and he could be resting his eyes and fell asleep during his break.

[00:06:19] Speaker 01:
So I don't think the fact that he was at that one point sleeping precludes the fact that he was there to fix the plumbing or secure the property by his presence.

[00:06:31] Speaker 03:
I meant to ask you this at the beginning, so I'm sorry I'm backing out.

[00:06:35] Speaker 03:
But on the issue of reasonable expectation of privacy, so district court said he didn't have a reasonable expectation of privacy.

[00:06:46] Speaker 03:
What is our standard of review?

[00:06:48] Speaker 03:
Do we review that de novo, or is that reviewed for clear error?

[00:06:53] Speaker 01:
That's reviewed de novo because it's a legal conclusion that he didn't have an expectation of privacy.

[00:06:58] Speaker 03:
Is there a good case on that?

[00:07:01] Speaker 03:
to support what you just said.

[00:07:02] Speaker 01:
I'm sure there is.

[00:07:03] Speaker 01:
I can't think of it off the top of my head, but I'll be happy to supplement that with a 28J.

[00:07:09] Speaker 03:
But on one other thing you said, did the district court actually make a finding that Mr. Cannon gave Mr. Guzman permission to live in the trailer?

[00:07:22] Speaker 01:
It's unclear, right?

[00:07:23] Speaker 01:
Because he says to the extent that there was permission

[00:07:27] Speaker 01:
Cannon didn't have the ability to give the permission, which presumes that there was permission at some point.

[00:07:36] Speaker 01:
Because what he says is that any agreement was wrongful at the inception, so there couldn't be an agreement, which presupposes that there was an agreement, just that it was wrong.

[00:07:47] Speaker 01:
So yes, I guess, is the answer to the question.

[00:07:51] Speaker 05:
I have a follow-up question to Judge Matheson's question about the notice and this code that I hope you all will eventually get revised.

[00:08:06] Speaker 05:
So the notice that is required has the language that Judge Matheson quoted.

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No person shall be on the property without the written permission from the department and or

[00:08:21] Speaker 05:
Or actually, or and.

[00:08:23] Speaker 05:
And then it just goes away.

[00:08:28] Speaker 05:
You would agree that neither Mr. Cannon nor Mr. Guzman had written permission from the department to be on this property.

[00:08:38] Speaker 01:
I don't think that was our burden at that point.

[00:08:43] Speaker 04:
I mean, there's just no question that that's a fact, if I try to put words in your mouth.

[00:08:51] Speaker 05:
It would appear that no one had permission to build that property from the department.

[00:08:57] Speaker 05:
But the DOHIS has completely different language than apparently was mandated by the code.

[00:09:05] Speaker 01:
that you just have the permission of the owner or the department.

[00:09:07] Speaker 05:
No person shall occupy this structure or remain on the property past daylight hours.

[00:09:15] Speaker 05:
Now, these were daylight hours.

[00:09:16] Speaker 05:
Yes.

[00:09:17] Speaker 05:
And remaining on the property, which, so how do we reconcile the fact that there was, if you have any idea how we do this, that the language on the post, on the notice, on these two structures,

[00:09:35] Speaker 05:
was supposed to be exact language that's mandated in the housing code, but it's quite different, not just grammatically, but substantively.

[00:09:45] Speaker 05:
Which do we go by?

[00:09:46] Speaker 05:
Do we go by the code?

[00:09:50] Speaker 01:
So I think what you do is go by the wording of the code, right?

[00:09:57] Speaker 01:
And the definition of substandard building itself says that no person, excuse me, I forgot.

[00:10:05] Speaker 05:
Well, yeah, and while you're doing that, let me just add to the complexity of it.

[00:10:12] Speaker 05:
If we go by the code, I think you're SOL, because the code says no person should be on the property without the written permission from the department.

[00:10:21] Speaker 05:
And it's got that or and language.

[00:10:24] Speaker 05:
And Mr. Guzman certainly does not have written permission from the department to be on that property.

[00:10:32] Speaker 01:
One, I think that's limited to only if they haven't taken any steps to abate it.

[00:10:37] Speaker 01:
But secondly, it's one part of the code, right?

[00:10:39] Speaker 01:
And you look at the code as a whole.

[00:10:41] Speaker 01:
And the definition of substandard building is just to that building itself.

[00:10:45] Speaker 01:
And so you have to look at what the code is designed for.

[00:10:48] Speaker 01:
It's designed to protect the people in the house and not on the property itself.

[00:10:54] Speaker 05:
So if there's one notice on one structure, then that would cover the entire lot?

[00:11:00] Speaker 01:
That's the government permit.

[00:11:02] Speaker 01:
position that is not ours.

[00:11:04] Speaker 01:
Because say you have a lot with a house in a casita, and only the house is posted as substandard.

[00:11:10] Speaker 01:
Under the government's theory, they can just walk into the casita, regardless of that it's occupied, because the first building is substandard.

[00:11:17] Speaker 01:
And also, the code itself says that if the property is uninhabited, they have to make reasonable efforts to find the owner.

[00:11:27] Speaker 01:
And if they can't find the owner, they have to go and get an administrative warrant.

[00:11:31] Speaker 01:
They didn't have an administrative warrant here.

[00:11:33] Speaker 01:
And I had some other point that just escaped me.

[00:11:39] Speaker 03:
I guess I'm not understanding why it's the code that goes to the standing question, at least in terms of reasonable expectation of privacy.

[00:11:50] Speaker 03:
It isn't like Mr. Guzman's reading code.

[00:11:53] Speaker 03:
He's reading the notice.

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And I mean, what if the city had posted a notice on the door

[00:12:02] Speaker 03:
the trailer, and it said, no one should enter or reside in this trailer by order of the city of Albuquerque PS.

[00:12:16] Speaker 03:
You have no reasonable expectation of privacy if you do.

[00:12:20] Speaker 03:
Now, that isn't in the code anywhere.

[00:12:23] Speaker 03:
Correct.

[00:12:24] Speaker 03:
But in terms of assessing whether Guzman, if he's

[00:12:29] Speaker 03:
started living in the trailer has a reasonable expectation of privacy, it seems like he's going to have a tough go at it.

[00:12:37] Speaker 01:
Well, no, because even in an uninhabitable house, you still have an expectation of privacy in it, right?

[00:12:45] Speaker 01:
And so even if the house was uninhabited, he would have an expectation of privacy in it.

[00:12:52] Speaker 01:
The question is whether or not he can be in it.

[00:12:54] Speaker 01:
It doesn't mean that he doesn't have a reasonable expectation of privacy in his little home.

[00:12:58] Speaker 03:
OK.

[00:12:59] Speaker 03:
PPS on the notice.

[00:13:02] Speaker 03:
The police can come in here any time they want and get you out of here.

[00:13:07] Speaker 03:
I mean, at some point, he's got to be put on notice that he shouldn't be in the trailer.

[00:13:13] Speaker 01:
He may be on notice he shouldn't be in the trailer, but it doesn't destroy his expectation of privacy in it.

[00:13:18] Speaker 03:
Well, I wouldn't feel very private under those circumstances with you.

[00:13:22] Speaker 01:
Well, not if the notice was on the trailer, but it's not on the trailer.

[00:13:26] Speaker 03:
And I would still think that I was... It's a hypothetical.

[00:13:28] Speaker 03:
I get it.

[00:13:29] Speaker 01:
But I think that you have permission to store things on your property.

[00:13:32] Speaker 01:
You still have the ability to use your property.

[00:13:35] Speaker 01:
And the police have no right to just come on the property.

[00:13:40] Speaker 01:
I mean, the city official says he has the right to be on the property because he's a city official.

[00:13:44] Speaker 01:
But that's not true.

[00:13:45] Speaker 01:
He has to get consent, or he has to get an administrative warrant.

[00:13:48] Speaker 00:
Even if we were to find that he had

[00:13:52] Speaker 00:
standing for Fourth Amendment purposes and that there was a violation when they just opened the door.

[00:14:00] Speaker 00:
Wouldn't it fall pretty clearly under the good faith exception because Mr. Armeta had given them incorrect information that they relied on?

[00:14:12] Speaker 00:
Isn't that kind of the classic good faith exception case?

[00:14:16] Speaker 01:
It is classic good faith exception, except you still have to be reasonable in the way you did it.

[00:14:20] Speaker 01:
And they didn't knock, and they didn't announce, they just opened a door.

[00:14:23] Speaker 01:
And that's unreasonable.

[00:14:24] Speaker 01:
And that deserves exclusion, because exclusion is designed to punish bad police behavior, which that is.

[00:14:31] Speaker 01:
And I'm going to reserve my 38 seconds.

[00:14:32] Speaker 03:
Thank you.

[00:14:35] Speaker 03:
Thank you.

[00:14:39] Speaker 02:
May it please the court, my name is Paul Mishleviets, and I represent the United States in this matter.

[00:14:45] Speaker 02:
The threshold question.

[00:14:47] Speaker 02:
for this court is whether it will enforce its rules on waiver and the contract terms of the conditional plea that I and Mr. Guzman signed before he filed this appeal.

[00:15:01] Speaker 00:
Well, that just goes to the constitutional challenge, right?

[00:15:07] Speaker 02:
Yes, Your Honor.

[00:15:07] Speaker 02:
The new argument that was not fairly presented to Judge Johnson

[00:15:12] Speaker 02:
is the argument that even if Mr. Guzman were unlawfully on the property, he would still have Fourth Amendment protections, and it would still potentially be a violation for the cop to have opened the door.

[00:15:23] Speaker 02:
That's the new argument.

[00:15:25] Speaker 02:
The preserved argument that we've been fighting on this whole time is the question of whether he was a trespasser, whether he was lawfully present, whether he had Mr. Cannon's permission, whether Mr. Cannon's permission trumps the regulatory scheme the way we just heard,

[00:15:41] Speaker 02:
That's preserved.

[00:15:43] Speaker 02:
That is what we have been fighting about the whole time in front of Judge Johnson on appeal and now to the extent the court wants to hear more about it.

[00:15:53] Speaker 02:
The position of the United States on that is that it cannot be true.

[00:15:59] Speaker 02:
that Mr. Cannon, who I would describe as the purchaser but not the owner, you saw the testimony that he didn't have the deed yet.

[00:16:08] Speaker 02:
Mr. Stockman still had the deed.

[00:16:10] Speaker 02:
And indeed, Mr. Stockman never gave the deed because Mr. Cannon was in default, though Mr. Stockman wasn't repossessing the property at the time of this incident.

[00:16:20] Speaker 02:
So Mr. Cannon was a lawful occupier in general, but for this notice, this yellow notice that says very clearly, no one can be in this building or on the property.

[00:16:31] Speaker 02:
And if you want access during the day to repair it, please call this phone number and get an access letter.

[00:16:37] Speaker 02:
And Mr. Guzman testified he saw that notice, he saw it had something to do with property, but he didn't bother with it.

[00:16:44] Speaker 05:
Let me ask you a question.

[00:16:45] Speaker 05:
So that notice under your interpretation governs the entirety of the lot?

[00:16:51] Speaker 05:
Yes, sir.

[00:16:52] Speaker 05:
All the other buildings on the lot, the lot itself, correct?

[00:16:56] Speaker 02:
Yes, sir.

[00:16:57] Speaker 05:
Then why in the world did you all post the note on two structures on that lot?

[00:17:03] Speaker 05:
So that makes no sense to me.

[00:17:04] Speaker 02:
I don't think the record directly answers that question, but may I nevertheless answer the question?

[00:17:10] Speaker 05:
Sure.

[00:17:10] Speaker 02:
It's my understanding that the city of Albuquerque posted the notices on the structures that were on the property when they put the notices up.

[00:17:19] Speaker 02:
And then later this pop-up trailer was brought onto the property.

[00:17:23] Speaker 02:
And what we witnessed on the body cam video is the next inspection of that property by Chris Armenta, the code enforcement guy.

[00:17:32] Speaker 02:
escorted by two police officers.

[00:17:34] Speaker 02:
So if they had not found anybody in that property.

[00:17:38] Speaker 02:
Later in the visit, would they have put a notice on that trailer?

[00:17:41] Speaker 02:
Maybe.

[00:17:41] Speaker 05:
Do you see how somebody that is occupying a third structure, a trailer, on that property might look at those two posts on two different buildings and think, sort of like I would, perhaps, that, well, that's just for those two buildings, not for the entirety of the lot.

[00:18:05] Speaker 02:
Yes.

[00:18:05] Speaker 02:
And if Mr. Guzman had testified, he saw the notices.

[00:18:10] Speaker 02:
He saw the notices were on those two buildings.

[00:18:13] Speaker 02:
He read the word property the way council reads the word property to mean just a building or just a structure, not the landed estate.

[00:18:21] Speaker 02:
And he thought therefore that his trailer that he was borrowing to have a place to stay was outside the regulatory ambit of those notices.

[00:18:30] Speaker 02:
And on that basis, he stayed there.

[00:18:32] Speaker 02:
And he was very surprised when a cop showed up without knocking.

[00:18:35] Speaker 02:
We'd have a different case.

[00:18:36] Speaker 05:
So is the standard for reasonable expectation of privacy subjective or objective?

[00:18:42] Speaker 02:
Well, it's both.

[00:18:43] Speaker 02:
He has to have a subjective expectation of privacy that society objectively considers reasonable.

[00:18:50] Speaker 05:
Can I ask one more question, and then I'll shut up?

[00:18:53] Speaker 02:
As many as you want, sir.

[00:18:54] Speaker 02:
What's that?

[00:18:56] Speaker 02:
All you have, sir.

[00:18:56] Speaker 02:
I'm ready.

[00:18:57] Speaker 05:
Okay.

[00:18:59] Speaker 02:
Don't say that.

[00:19:00] Speaker 05:
We'll be here for an hour and a half.

[00:19:02] Speaker 05:
So in the housing code, the very first provision after short title and purpose is scope, A, application.

[00:19:11] Speaker 05:
The provisions of this code shall apply to all buildings or portions thereof used, designed, or intended to be used for human habitation.

[00:19:20] Speaker 05:
The word property, unless I'm just blind, does not appear anywhere

[00:19:27] Speaker 05:
in the provision governing the scope of this housing code.

[00:19:34] Speaker 05:
Your argument is involving, as I understand it, there are, as Judge Madsen said, a lot of numbers in here.

[00:19:42] Speaker 05:
1435-3D.

[00:19:53] Speaker 02:
We're looking at D. To be.

[00:19:55] Speaker 05:
To be.

[00:19:56] Speaker 05:
And then there's two sentences.

[00:19:58] Speaker 05:
In the first sentence, no person shall occupy any building.

[00:20:05] Speaker 05:
And then the second sentence is, no person shall be on the property.

[00:20:10] Speaker 05:
And so it's sort of like, what is the antecedent for a pronoun?

[00:20:15] Speaker 05:
So is the property just used as a synonym for the word the building, or does it mean something beyond the building?

[00:20:23] Speaker 05:
the property surrounding the building.

[00:20:27] Speaker 05:
And you're saying implicitly, your whole argument is, no, it means something different.

[00:20:33] Speaker 05:
Then it's not just a pronoun or a reference to the building.

[00:20:36] Speaker 05:
It's the whole lot.

[00:20:38] Speaker 05:
Well, that would be quite odd, because that is beyond the entire scope of the provision according to the scope provision.

[00:20:48] Speaker 02:
As you have noticed, Your Honor, there are several

[00:20:52] Speaker 02:
provisions at play here.

[00:20:53] Speaker 02:
I agree with you about the scope provision.

[00:20:56] Speaker 02:
The scope provision doesn't say structure or property.

[00:21:00] Speaker 02:
It doesn't say building or property the way that the notice does.

[00:21:04] Speaker 02:
I want to draw your attention to section 14-3-5-6, subsection A, subsection 3,

[00:21:14] Speaker 02:
One of the sentences says, no person shall occupy any building which has been posted as specified in this section in a manner contrary to the terms of the notice, period.

[00:21:24] Speaker 02:
Next sentence is, no person shall be on the property without the written permission from the department or and with the permission on them at all times while on the property.

[00:21:37] Speaker 02:
Chris Armenta testified,

[00:21:39] Speaker 02:
that no one shall be on the property means to the building department, to the code enforcement department.

[00:21:44] Speaker 02:
No one can be anywhere on the property.

[00:21:45] Speaker 02:
That includes Mr. Cannon.

[00:21:47] Speaker 02:
That includes Mr. Saugman.

[00:21:48] Speaker 05:
Yeah, to Chris Armenta.

[00:21:48] Speaker 05:
But, you know, this is a legal determination that I'm not sure Mr. Armenta is qualified to adjudicate.

[00:21:55] Speaker 05:
I think, unfortunately, we have to do that.

[00:21:58] Speaker 02:
Yes, sir.

[00:21:59] Speaker 05:
And so in sentence two, when it says no person shall be on the property, it seems to me that there are two

[00:22:06] Speaker 05:
potential interpretations.

[00:22:09] Speaker 05:
One is that, like a protean, is just a reference to the noun, the subject in the preceding sentence, the building.

[00:22:17] Speaker 05:
Or it could be on something beyond that, the surrounding lot.

[00:22:25] Speaker 05:
And so I guess the question that unfortunately we can't ask Mr. Armenta is, well, how does your interpretation, Mr. Armenta, of

[00:22:34] Speaker 05:
the broader definition scope of the word the property, how does that conform to the scope provision that says nothing about the property and only talks about buildings?

[00:22:46] Speaker 02:
I agree with you about the scope provision, Your Honor.

[00:22:49] Speaker 02:
And the position of the United States is that when these code sections and when the notice itself

[00:22:55] Speaker 02:
uses the phrase structure or property, building or property.

[00:22:59] Speaker 02:
That means that the property is not merely a structure, not merely a building, but rather the land of the state.

[00:23:04] Speaker 02:
And furthermore, as to the reasonableness of anyone's hypothetical expectation of privacy in

[00:23:11] Speaker 02:
Let's say that Mr. Guzman, this didn't happen, but let's say Mr. Guzman noticed the scope provision that you have noticed and he testified, hey listen, you know, I'm not a lawyer, but I did a little reading and the scope provision just talks about buildings.

[00:23:27] Speaker 02:
My buddy Ice or Cannon's buddy Ice dragged this trailer onto the backyard of the property.

[00:23:33] Speaker 02:
The trailer doesn't have a notice on it.

[00:23:36] Speaker 02:
And therefore, because of the scope provision, I was entirely surprised when the cops showed up and tried my door handle just like they tried the two nailed shut door handles of the buildings with the notices on them.

[00:23:48] Speaker 02:
We could, and more importantly, Judge Johnson could, and then ultimately you could, make the decision of whether that's a reasonable expectation of privacy or not.

[00:23:57] Speaker 02:
But that's not the case we have here.

[00:23:59] Speaker 02:
We don't have Mr. Guzman saying, I knew about the scope provision,

[00:24:02] Speaker 02:
I had the same eye that Judge Bacharach had, and therefore I felt like my expectation of privacy was quite reasonable.

[00:24:09] Speaker 02:
He said, I saw the signs.

[00:24:10] Speaker 02:
I didn't care.

[00:24:11] Speaker 02:
That didn't have anything to do with me.

[00:24:13] Speaker 02:
I asked my buddy Jeffrey if I could stay on the place, because I needed a place to stay.

[00:24:16] Speaker 02:
I didn't have a home.

[00:24:18] Speaker 02:
The trailer wasn't mine, but Jeff said I could stay there, so I was staying there.

[00:24:22] Speaker 03:
Can I just come back to the notice again?

[00:24:27] Speaker 03:
I guess my question is whether the notice could have sent mixed signals to Mr. Guzman.

[00:24:34] Speaker 03:
Because on the one hand, we have the no person shall reside in this structure or on this property.

[00:24:42] Speaker 03:
We have no person shall occupy this structure or remain on this property past daylight hours.

[00:24:48] Speaker 03:
But then, towards the bottom, it says, it is a misdemeanor to occupy this building or to remove or deface this notice.

[00:25:01] Speaker 03:
Why wouldn't that potentially convey to Mr. Guzman that this really is all about building, and that if he's going to get in trouble, because that's the word misdemeanor is used there, that that's really what it's talking about?

[00:25:15] Speaker 02:
Because he testified he didn't care.

[00:25:18] Speaker 02:
If he testified, I read that notice, and I saw that it was only a misdemeanor to occupy the building, and so I thought maybe they'd be a little mad, but I wouldn't be a trespasser if I was in this trailer that didn't have the notice on it.

[00:25:31] Speaker 02:
Therefore, I felt like I could stay in the trailer, and I was very surprised when the cops tried my door handle, and I was standing there with a gun in my pants.

[00:25:39] Speaker 02:
If he had testified to that, I think we'd have a different case.

[00:25:43] Speaker 03:
You say he testified he didn't care.

[00:25:45] Speaker 02:
Yes, and I can look for it.

[00:25:47] Speaker 02:
We're going to find his testimony in the second volume on the record on appeal.

[00:25:53] Speaker 03:
But he didn't care about what?

[00:25:55] Speaker 02:
About the notice or what it said.

[00:25:57] Speaker 02:
He knew that it mentioned something about a restriction on the property, but he didn't call the number to try to get an access letter.

[00:26:04] Speaker 02:
He didn't ask Jeffrey Cannon about it.

[00:26:06] Speaker 02:
It wasn't his problem.

[00:26:07] Speaker 02:
It wasn't his business.

[00:26:09] Speaker 02:
He just asked his buddy Jeff for a place to stay.

[00:26:11] Speaker 03:
Well, if that's the case, then I would come back

[00:26:14] Speaker 03:
to Ms.

[00:26:15] Speaker 03:
Johnson's argument that, well, if he didn't care about the notice, then why didn't Mr. Cannon's permission control his expectations?

[00:26:27] Speaker 02:
Ms.

[00:26:28] Speaker 02:
Johnson made an argument in the brief.

[00:26:30] Speaker 03:
Well, she made an argument this morning that the permission would trump anything about the notice.

[00:26:36] Speaker 03:
And that sounds a little stronger now if he didn't really care about the notice.

[00:26:41] Speaker 02:
Yes, sir.

[00:26:42] Speaker 02:
And my answer is, if I may.

[00:26:44] Speaker 02:
Please.

[00:26:44] Speaker 02:
She made an argument in the brief that the entire regulatory scheme is invalid.

[00:26:51] Speaker 02:
And she cited a case from Texas where the city of Lubbock was whipsawing a property owner.

[00:26:55] Speaker 02:
They were telling the property owner he had to repair the property but then not allowing him to access the property to repair it.

[00:27:01] Speaker 02:
And he won that case against the city of Lubbock.

[00:27:04] Speaker 02:
And she cited a case, I think it was from California, where a regulation said unions get free access to a property that had no license.

[00:27:12] Speaker 03:
Well, I think I'm driving at something a little different than cases and the code and everything else.

[00:27:19] Speaker 03:
It's just, what was it that Mr. Guzman's, what was in Mr. Guzman's head when he ended up moving in to the trailer?

[00:27:30] Speaker 03:
And we know he looked at the notices,

[00:27:33] Speaker 03:
You have no reason to think he read the code.

[00:27:35] Speaker 03:
So he looked at the notices.

[00:27:37] Speaker 03:
That's what's inside his head.

[00:27:40] Speaker 03:
We've sort of been assuming he had at least a subjective expectation of privacy.

[00:27:44] Speaker 03:
But maybe that's not a good assumption.

[00:27:46] Speaker 03:
I don't know.

[00:27:47] Speaker 03:
But his universe of knowledge is the notices plus whatever Mr. Cannon said he could do.

[00:27:55] Speaker 03:
Isn't that really the core of what we're supposed to be focusing on?

[00:28:02] Speaker 03:
at least on the standing issue.

[00:28:05] Speaker 02:
So I asked him if he ever asked Jeffrey Cannon about these notices.

[00:28:09] Speaker 02:
He said it was Jeffrey Cannon's problem.

[00:28:11] Speaker 02:
It wasn't his problem.

[00:28:12] Speaker 02:
And I think I asked him, if we look at page 47 or 48, I think is where you're going to find this exchange of the second volume.

[00:28:19] Speaker 02:
I recall asking him, so did you ask Mr. Cannon about these notices?

[00:28:23] Speaker 02:
And he said no.

[00:28:25] Speaker 02:
So he actively

[00:28:30] Speaker 02:
I would say was willfully blind to the restrictions that existed.

[00:28:34] Speaker 02:
And I would say Jeffrey Cannon's permission can't trump the regulatory power of the city to exclude people.

[00:28:44] Speaker 02:
Otherwise, the entire substandard property program would be invalid, which is not currently the law.

[00:28:51] Speaker 02:
And as when I- I understand your argument.

[00:28:53] Speaker 03:
Before you sit down, I need to ask you this question.

[00:28:56] Speaker 03:
If Mr. Guzman has standing,

[00:28:59] Speaker 03:
Do any of the exceptions to the warrant requirement justify the officer's entry?

[00:29:06] Speaker 03:
What's your position on this at this point?

[00:29:09] Speaker 03:
Because I'm not seeing much in your brief about that.

[00:29:11] Speaker 02:
We are not defending those on the record that was made below, which is why I wrote in the brief that if the court finds that he has standing on the issues raised below, then we ask for remand.

[00:29:24] Speaker 02:
The new issues that were brought up for the first time on appeal, if they were brought up below, you might have more of a record on which I might be able to defend those exceptions.

[00:29:34] Speaker 02:
But I'm not doing that now.

[00:29:36] Speaker 00:
Can I ask a question?

[00:29:38] Speaker 00:
I have a question about the Albuquerque Uniform Housing Code at 14-3-5-9 that indicates when it's necessary to make an inspection or to enforce any of the provisions of the code, if a building or premises is occupied, you can seek permission to enter.

[00:30:02] Speaker 00:
If permission is denied, you have to get a warrant.

[00:30:06] Speaker 00:
Why isn't that relevant here?

[00:30:08] Speaker 02:
They didn't know it was occupied.

[00:30:10] Speaker 02:
The officer tested the door, and testing the door is what caused the door to open to see Mr. Guzman standing there with the gun in his pants.

[00:30:18] Speaker 02:
I think if they knew someone was on the property, they would have gone about it differently.

[00:30:24] Speaker 00:
And so what about they didn't knock to see if somebody was in there?

[00:30:30] Speaker 02:
I agree they didn't knock around.

[00:30:32] Speaker 00:
And I think... And is that reasonable?

[00:30:37] Speaker 00:
It's a camper trailer, it's not posted with a substandard notice, and they don't know whether it's occupied or not, and they just enter, even though this provision seems to suggest that they're supposed to notify the person, show their identification, and seek permission.

[00:30:59] Speaker 02:
What I would say, Your Honor, is if the officer had knocked

[00:31:02] Speaker 02:
And Mr. Guzman had opened the door himself so the officer could see them with the gun in his pants.

[00:31:08] Speaker 00:
First of all, there's a dispute about whether the officer saw the gun, and on the video, you can't see it.

[00:31:18] Speaker 00:
But we have to assume that Guzman's not an idiot.

[00:31:24] Speaker 00:
If they had knocked, I doubt he would have opened the door holding a gun or with a gun visible on him.

[00:31:31] Speaker 02:
I think that's a reasonable inference, Your Honor.

[00:31:36] Speaker 00:
So if he had opened the door and he said, no, you can't come in, they would have to go get a warrant, right?

[00:31:44] Speaker 02:
If he had opened the door and they had seen him there, he would still be violating the state criminal trespass code, which in subsection C prohibits knowingly entering or remaining upon lands owned, operated, or controlled by the state or any of its political subdivisions

[00:32:01] Speaker 02:
knowing that consent to enter or remain is denied or withdrawn by the custodian thereof, which he knew because he saw the yellow notices and just said he didn't care.

[00:32:10] Speaker 05:
But I thought you had preceded the whole statement with assuming that he has a reasonable expectation of privacy, assuming that he is standing.

[00:32:25] Speaker 02:
If we assumed he had standing, Your Honor, but he had voluntarily opened the door

[00:32:30] Speaker 02:
and the police had seen him there without the police being the one who opened the door.

[00:32:34] Speaker 02:
I would be defending that intrusion.

[00:32:37] Speaker 05:
Yeah, if he opened it.

[00:32:38] Speaker 05:
But you're not even arguing.

[00:32:40] Speaker 02:
Oh, no, he did not.

[00:32:42] Speaker 02:
The officer opened it.

[00:32:42] Speaker 02:
I agree.

[00:32:45] Speaker 05:
Can I ask one question, even though I know I said 15 minutes ago I'd shut up?

[00:32:49] Speaker 05:
Sorry.

[00:32:51] Speaker 05:
I just have a question about what you said to Judge Matheson about

[00:32:56] Speaker 05:
I know you want us to affirm, but if we remand on the Fourth Amendment standing issue, you want to be able to argue in district court these other arguments, substantive arguments.

[00:33:13] Speaker 05:
Is that fair?

[00:33:14] Speaker 05:
Ms.

[00:33:14] Speaker 05:
Johnson has argued that there was a reasonable expectation of privacy, that there was no other

[00:33:24] Speaker 05:
substantive basis for the officer to have found the gun, to open the door, and so everything that follows is fruit of the poisonous tree.

[00:33:34] Speaker 05:
And you could have argued, you know, alternative basis to affirm, but you didn't.

[00:33:44] Speaker 05:
If we say that there's reasonable execution of privacy, why is it fair to the defendant to say, okay, well, we're going to give the government a second shot at the apple?

[00:33:54] Speaker 02:
If you enforce the waivers and the contract terms of the conditional plea agreement, and you find that the defendant has standing only on the issues raised below, by necessarily finding not only was he not a trespasser under the Albuquerque code provisions, but he also wasn't a trespasser under the state law, then I do not ask for a reopening of evidence at the district court.

[00:34:21] Speaker 02:
I totally understand now.

[00:34:22] Speaker 03:
Thank you.

[00:34:24] Speaker 03:
Thank you, counsel.

[00:34:27] Speaker 03:
You let him over quite a bit.

[00:34:29] Speaker 03:
Oh, you still got time.

[00:34:30] Speaker 03:
Why don't you give her another couple minutes?

[00:34:32] Speaker 03:
Let's give a couple more minutes to kind of even things out here.

[00:34:36] Speaker 03:
Okay.

[00:34:39] Speaker 01:
Okay.

[00:34:39] Speaker 01:
First, I want to clarify one thing.

[00:34:40] Speaker 01:
I'm not saying the housing code as it is is wrong.

[00:34:44] Speaker 01:
I admit that they can regulate the safety of the buildings and they can exclude people from living in those buildings.

[00:34:53] Speaker 01:
but they can't exclude everyone from the entire property just by posting a notice.

[00:34:58] Speaker 01:
It doesn't work that way.

[00:34:59] Speaker 01:
You don't get to circumvent the Fourth Amendment by just putting up a notice saying, hey, I can get up on this property any time I want.

[00:35:06] Speaker 01:
Suddenly, I think it's perfectly read.

[00:35:08] Speaker 00:
I'm trying to understand what it is that you're raising on appeal and how it relates to what you raised in the district court.

[00:35:21] Speaker 00:
You are now saying that you think that code is unconstitutional to the extent that it would prevent Mr. Cannon from giving Mr. Guzman permission.

[00:35:34] Speaker 01:
Yes, to that extent.

[00:35:35] Speaker 01:
But I don't think that's what the code actually says.

[00:35:37] Speaker 00:
OK, but you didn't argue that to the district court.

[00:35:41] Speaker 01:
Not in that much detail.

[00:35:43] Speaker 01:
I mean, we said that he could be on the property and that just posting didn't take away his right to give permission.

[00:35:50] Speaker 01:
and so he wasn't a trespasser.

[00:35:52] Speaker 00:
Well, you're limited under the plea agreement to the grounds that you raised in your motion to suppress, right?

[00:36:02] Speaker 01:
I think that while that's the language of the plea agreement, I think that we can fairly attack any ground that the district court used, because otherwise it puts us in a very strange position.

[00:36:14] Speaker 00:
The district court didn't rely on any finding related to whether it was unconstitutional.

[00:36:20] Speaker 00:
to prevent Mr. Cannon from giving Guzman permission, did it?

[00:36:26] Speaker 01:
No.

[00:36:27] Speaker 00:
So this is in a situation where the district court relied on it, and you didn't argue it.

[00:36:35] Speaker 00:
Aren't you precluded now from raising that?

[00:36:39] Speaker 01:
No, because it's a logical extension of the argument.

[00:36:44] Speaker 01:
I come from state practice in New Mexico.

[00:36:46] Speaker 01:
They point out the difference between what you're doing in trial and the amount of time

[00:36:51] Speaker 01:
a public attorney has to sit and think about, like, what does that holding actually mean, or what does that statement actually mean?

[00:36:57] Speaker 01:
And when he says that Mr. Cannon can't give Mr. Guzman consent, he's saying that Mr. Cannon has no rights to exclude, and that would be a taking, and that would be unconstitutional.

[00:37:10] Speaker 01:
So I think it's just an attack on the conclusion that is within the gamut.

[00:37:15] Speaker 00:
Well, in the district court, as I look at your argument, you argued that Mr. Guzman did not violate the code at all when he was on the property.

[00:37:26] Speaker 00:
And now, it seems to me, you're arguing if he did violate the code, the code is unconstitutional because the code could not have prohibited Mr. Cannon, the owner of the property, from giving Mr. Guzman permission.

[00:37:43] Speaker 00:
I don't see that argument in the district court pleadings.

[00:37:46] Speaker 00:
I don't see it in the decision from the district court.

[00:37:50] Speaker 00:
And I think it's precluded by your plea agreement, and even if not by your plea agreement, because it wasn't part of your motion to suppress under the rules.

[00:38:05] Speaker 01:
I understand, but I think it's contingent on what the district court's finding actually ends up meaning legally.

[00:38:13] Speaker 01:
And legally, what it means is that posting that notice takes entire control of the property, and that can't be.

[00:38:21] Speaker 01:
And that was always the argument, was that he couldn't be a trespasser because Mr. Cannon could give permission to be on the property.

[00:38:32] Speaker 01:
But the second thing I want to say is the sign itself says that you could be on the property with permission of the owner or the department.

[00:38:39] Speaker 01:
So I think it was perfectly reasonable for Mr.

[00:38:42] Speaker 01:
It's an owner or department in a small print on the on the sign on the sign or on the sign, okay?

[00:38:53] Speaker 01:
I'm going back to he said that Mr.. Mr.. Roosman ignored the sign, but I think even if you didn't ignore the sign It's reasonable to expect that you're that the owner of the property can give you permission and that the sign itself doesn't contradict that for purposes of repairing

[00:39:09] Speaker 03:
the property, doesn't say for purposes of living in a trailer on the property.

[00:39:14] Speaker 01:
It doesn't, but he could be securing the property by living on it.

[00:39:18] Speaker 01:
And it was during the daylight hours.

[00:39:22] Speaker 01:
So even if he couldn't be there at night, what the cops did by just assuming that he was a trespasser and not conducting any further inquiry was unreasonable.

[00:39:34] Speaker 01:
And I come back to the curtilage is not

[00:39:38] Speaker 01:
included in this substandard building designation.

[00:39:44] Speaker 03:
We understand your argument, appreciate the explanation, and we will consider the case submitted.

[00:39:53] Speaker 03:
Council are excused and thank you.