[00:00:00] Speaker 01: All right, we will continue through. [00:00:01] Speaker 01: We'll call our next case. [00:00:02] Speaker 01: 24-1341, United States versus Jackson. [00:00:09] Speaker 01: All right, looks like we've got our lawyers. [00:00:13] Speaker 01: All right, Ms. [00:00:14] Speaker 00: Carter, you can proceed when you're ready, please. [00:00:16] Speaker 00: Thank you. [00:00:17] Speaker 00: Can just checking you guys can hear me okay? [00:00:20] Speaker 00: We can hear you great. [00:00:21] Speaker 00: Great, thank you. [00:00:23] Speaker 00: Good morning and may it please the court. [00:00:25] Speaker 00: I'm Elena Carter from the Federal Public Defender's Office and I represent Caleb Shawn Jackson. [00:00:31] Speaker 00: The question presented here is whether officers properly executed a search warrant when they stopped and searched Mr. Jackson a mile and a half from the authorized premises. [00:00:40] Speaker 00: The answer to that question is no. [00:00:43] Speaker 00: Attachment A describes a location to be searched. [00:00:47] Speaker 00: that's in the header. [00:00:49] Speaker 00: The first two sentences then describe the subject premises at 614 Rob Road, where it is, what it looks like, [00:00:56] Speaker 00: And the final sentence says, the location consists of the subject residence, surrounding property, and all outbuildings and vehicles located thereon, and to include the person of Caleb Shawn Jackson at the time of search warrant execution. [00:01:11] Speaker 00: It's all describing a location, which includes Mr. Jackson when the warrant is being executed there, not anywhere he happens to be, not anywhere in the district. [00:01:21] Speaker 00: Because Officer Newman clearly exceeded the warrant scope, you should reverse. [00:01:26] Speaker 05: Ms. [00:01:26] Speaker 05: Carter, can I ask maybe a more threshold question, which is I'm trying to understand what it is that officers did in terms of conducting a search of Mr. Jackson, because I don't read your brief to contest that they could make the traffic stop, which is, in effect, a seizure that occurred at that point. [00:01:46] Speaker 05: But you're arguing that they can't search him, though, because he has to be at the Rob Road location. [00:01:53] Speaker 05: But did they search him? [00:01:54] Speaker 05: Because as I see the video, once they stop, they just have a discussion with him, and he essentially just hands over his phone. [00:02:02] Speaker 05: So help me understand what actions they took during that traffic stop that in any way could offend the Fourth Amendment. [00:02:11] Speaker 00: So we are challenging that they couldn't have stopped him at that moment, that that was not authorized to pursue [00:02:20] Speaker 00: the war. [00:02:20] Speaker 00: Sorry, I'm hearing a little bit of echoing on my end. [00:02:26] Speaker 01: Sounds OK. [00:02:26] Speaker 01: You can keep going. [00:02:28] Speaker 00: OK, OK. [00:02:29] Speaker 00: And I think that stop is framed and to quote from the government's [00:02:37] Speaker 00: Answer brief that stop is framed by officer Newman's misleading statements about the scope of the search. [00:02:44] Speaker 00: So, I don't think I guess I'm jumping ahead to inevitable discovery here. [00:02:48] Speaker 00: I don't think he voluntarily would have handed over the phone if officer Newman hadn't misrepresented represented the scope of. [00:02:57] Speaker 00: the search by saying, I believe the very first thing he said was, we have a warrant to search your residence and you and all your electronics and your car. [00:03:05] Speaker 00: But we are challenging that the stop itself was not authorized via that warrant. [00:03:13] Speaker 05: So your argument is, as they observed Mr. Jackson drive past them, that because he's not on the Rob Row premises, that they could not lawfully even stop him at all at that point? [00:03:25] Speaker 00: Correct. [00:03:26] Speaker 05: And did you make that argument in your brief? [00:03:29] Speaker 02: Why couldn't they, I'm sorry, finish your response? [00:03:41] Speaker 00: I don't know that it explicitly came up in the briefing. [00:03:45] Speaker 00: I believe that [00:03:48] Speaker 00: But we have said that the various warrant exceptions that the government has raised are too speculative. [00:03:55] Speaker 00: And I don't think probable cause is the end of the analysis as it relates to inevitable discovery. [00:04:00] Speaker 00: So I guess I'm getting at, well, we're not assuming without conceding that there was probable cause to [00:04:08] Speaker 00: Stop Mr. Jackson that moment that he's driving by. [00:04:11] Speaker 00: I don't think you still get to the phone under those scenarios because of how Officer Newman's statements colored the entire interactions. [00:04:21] Speaker 03: They have probable cause, not pursuant to the power given in the warrant, but pursuant to the information [00:04:34] Speaker 03: that was accepted by the magistrate signing the warrant. [00:04:40] Speaker 03: Didn't they have sufficient cause to stop him? [00:04:43] Speaker 03: Because there was probable cause that he would have committed crime and that he had evidence of the crime on him. [00:04:56] Speaker 00: Sorry, Your Honor. [00:04:59] Speaker 00: So to answer your question, assuming without conceding that there was [00:05:04] Speaker 00: probable cause to stop him at that moment. [00:05:07] Speaker 00: And I don't think there was, but even if there was, the government hasn't raised under inevitable discovery, probable cause plus search incident to arrest. [00:05:16] Speaker 03: And that's for good reason because- Well, they did reference, they did reference as a part of their argument on inevitable discovery. [00:05:27] Speaker 03: A Terry stop, didn't they? [00:05:30] Speaker 00: Yes, but again, you could have reasonable suspicion to pull him over, but it's far too speculative to say he would have consented the search and voluntarily handed his phone over when again, the first thing that Officer Newman said to Mr. Jackson was, we've got a search warrant to search your place today as well as you and your car for all of your electronics. [00:05:49] Speaker 00: So I don't think he would have handed over the phone in that scenario. [00:05:55] Speaker 00: That's far too speculative to get to inevitable- Do we, Anna, when we- [00:05:59] Speaker 01: When we think about inevitable discovery, aren't we very careful to not think about speculative conduct by third parties? [00:06:12] Speaker 01: We're looking at the act of the government, right? [00:06:17] Speaker 00: Yes, you're correct, Your Honor. [00:06:18] Speaker 00: We want to look at what, if the government has met this burden by preponderance, that the evidence in question would have been discovered in the absence of the Fourth Amendment violation. [00:06:30] Speaker 00: And here, if you take away that Fourth Amendment violation, the improper execution, well, if the warrant had been properly executed at Mr. Jackson's residence at that time, he wouldn't have been there. [00:06:43] Speaker 00: And I don't think that the [00:06:45] Speaker 00: automobile exception, the Terry stop for reasons I've just gone into would inevitably get them the phone. [00:06:51] Speaker 00: It's far too speculative to say that the stop would have occurred just as it did with when you have that clear statement by Officer Newman. [00:07:00] Speaker 00: We've got a search warrant to get to search you, your phone, your car. [00:07:05] Speaker 01: Let me redirect you back to the beginning of your argument because we started talking now about exceptions. [00:07:11] Speaker 01: As I understand your principal argument is the warrant is valid but improperly executed, right? [00:07:17] Speaker 01: Correct, yes. [00:07:19] Speaker 01: And the last sentence of attachment A says, and to include the person of Mr. Jackson at the time of the search warrant execution. [00:07:30] Speaker 01: And your position is that we should read that as limited to the premises, right? [00:07:37] Speaker 01: Correct. [00:07:38] Speaker 01: Is there a equally fair reading [00:07:41] Speaker 01: that it is not limited to the premises, rather it is limited to the time that the warrant is being executed? [00:07:51] Speaker 00: No, there's not. [00:07:54] Speaker 00: And I would address, first of all, the government's argument about the placement of two serial commas, one that ends the list, all outbuildings and vehicles, and then one comma and to include the person of [00:08:09] Speaker 00: Caleb Sean Jackson, but the commas merely organize elements within a single definition of location to be searched and argued in. [00:08:17] Speaker 01: I'm struggling a little bit with why we're talking so much about commas, both our position. [00:08:23] Speaker 01: And I'll also ask Mr. Gwell about it, the government's position, because our case law says that we have to look at this in a very practical way, that we're not doing statutory construction on warrant language. [00:08:35] Speaker 01: Right. [00:08:36] Speaker 01: And yes. [00:08:37] Speaker 01: So my question is, leaving aside for a minute sort of a more technical, grammar-focused approach, why isn't it an equally reasonable reading of the warrant that the person of Mr. Jackson is included here at the time of the search warrants execution, that it's not premises driven, it's temporally driven? [00:09:02] Speaker 00: I think that's because the header says description of location to be searched and the three sentences in that paragraph below that description are working together to define the location with increasing specificity and then the final sentence location consists of and to include Mr. Jackson that clearly pulls him into the location and [00:09:25] Speaker 00: to pull him out of location just based on the place of two commas. [00:09:28] Speaker 00: I agree, you don't have to get into the commas. [00:09:30] Speaker 00: I think it's a stretch to say the mere placement of two commas pulls him out of that location when attachment A is wholly aimed at defining what property and people are components of that location. [00:09:40] Speaker 00: So it's a strained and hyper-technical reading to pull him out of that location. [00:09:45] Speaker 01: I guess I want to ask you a question about the role of ambiguity, how we should be thinking about the role of ambiguity in this case. [00:09:54] Speaker 01: If the warrant here is attachment A is susceptible to equally reasonable readings, and we conclude that the practical reading of the scope here could be clear, it's ambiguous, how should we be thinking about that? [00:10:11] Speaker 01: And specifically, does that inform how we should be thinking about the good faith exception? [00:10:19] Speaker 00: The 10th circuit has repeatedly said that good faith doesn't apply to save an improperly executed warrant full stop and I think Leon itself doesn't leave an opening to. [00:10:29] Speaker 00: expand the doctrine such that ambiguity triggers good faith to save improper execution of a valid warrant, because it's very clear in Leon that good faith, of course, assumes proper execution, i.e. [00:10:42] Speaker 00: that's a prerequisite here. [00:10:45] Speaker 00: So I think full stop you the ambiguity if you ultimately [00:10:49] Speaker 00: decide that our reading is correct, that execution here was improper, you don't do that second step of analysis of good faith as a means to save the improperly executed ballot warrant here. [00:11:05] Speaker 00: And I would also point you to the young case, which would be an example of a genuinely ambiguous language as to scope, but where the court nevertheless did not see an opening to expand the doctrine in the way the government is asking you to do and the holding and the court held in that case. [00:11:24] Speaker 00: Yes, it's unpublished, but I do think it's persuasive as a case where there was generally ambiguous language, unlike in our case where we think there was no ambiguity here. [00:11:35] Speaker 00: But Young is persuasive in that the court ultimately said because the validity of the warrant is not challenged, and we've concluded that the warrant did not authorize a search of the defendant's person apart untethered from location, we also conclude good faith did not apply. [00:11:50] Speaker 00: So I think that's a clear statement. [00:11:52] Speaker 00: that the validity of the warrant is challenging the validity of the warrant is one of those prerequisites to applying good faith. [00:11:59] Speaker 00: So I don't think there's an opening here to expand the doctrine in this way. [00:12:03] Speaker 05: But if we find ambiguity in the warrant, do you lose on good faith? [00:12:10] Speaker 00: No, if you find ambiguity in the warrant, but ultimately find that we're right, we don't lose. [00:12:15] Speaker 00: You don't go to that second [00:12:17] Speaker 00: step of analysis, I think regardless of how you decide whether in our favor for the government as to execution, you don't need to go to that second level of analysis here. [00:12:30] Speaker 05: Regarding ambiguity, I mean, the target of this investigation or the purpose is to try to uncover evidence of child pornography offenses. [00:12:40] Speaker 05: And they're looking for electronic devices. [00:12:43] Speaker 05: The only reasons to search his person [00:12:46] Speaker 05: or one is for safety, but also for his cell phone, because evidence of child pornography on his person would almost exclusively be the cell phone. [00:12:56] Speaker 05: So when we think about what the warrant is authorizing in terms of searching his person, why wouldn't a practical reading be, well, you can try to find his phone on his person. [00:13:06] Speaker 05: You have to do it at the time you're doing the search altogether, but it doesn't matter if he's on the Rob Road property or not. [00:13:13] Speaker 00: Well, I think officer Newman's intent or strategic reasons for writing the word one way or another are relevant because I think the plain reading of this warrant is that you can only search him in connection with those those premises and. [00:13:30] Speaker 00: I think the affidavit clarifies our position in that it's very location focused and it only describes Mr. Jackson in connection with executing the actual search warrant. [00:13:43] Speaker 00: It only describes him instrumentally as using his biometrics to [00:13:48] Speaker 00: To open devices that are found at the quote subject premises. [00:13:52] Speaker 00: So I think we look at the four corners of the warrant here and I can't speak to officer Newman's intent or strategy between writing the work one way or the other, but I do think the language is. [00:14:02] Speaker 00: And unambiguous that use can only search Mr Jackson when he's at our end with our. [00:14:09] Speaker 00: in the immediate vicinity of the subject premises. [00:14:12] Speaker 00: And I would like to reserve the final time for a bottle unless there's a question. [00:14:18] Speaker 02: Before you reserve. [00:14:23] Speaker 03: It would be inappropriate for us to look at the government's inevitable discovery argument, realizing the facts are basically undisputed here. [00:14:35] Speaker 03: And look at it and say that [00:14:41] Speaker 03: the war gives them a basis to make a Terry stop, and that they can do the search pursuant to the Terry stop, which is the front. [00:14:56] Speaker 03: And the only problem here is that the government characterized this approach, because their approach was premised on Terry, as inevitable discovery. [00:15:09] Speaker 03: They just put the wrong label on it. [00:15:12] Speaker 03: Is there anything wrong with us pursuing it in that fashion, saying it was a Terry stop, a proper search to that Terry stop? [00:15:24] Speaker 03: And what's the problem? [00:15:28] Speaker 00: I disagree. [00:15:29] Speaker 03: Why couldn't we do that? [00:15:32] Speaker 00: I disagree that the Terry stuff would have inevitably led to getting the phone, first of all, but also I would add that the 10th Circuit has never applied inevitable discovery to save an improperly executed warrant. [00:15:43] Speaker 03: No, you're making my point. [00:15:47] Speaker 03: Are we permitted? [00:15:49] Speaker 03: I'm saying I think the government mislabeled the theory. [00:15:53] Speaker 03: It's not inevitable discovery. [00:15:56] Speaker 03: because there was no Fourth Amendment violation because the stop, I think it looks like it's okay under Terry, so there's no 14th Amendment and there's no inevitable discovery because that requires a 14th Amendment violation to proceed it. [00:16:15] Speaker 03: So why can't we just go on from there and say it was a proper Terry stop and the phone was there and they could search it? [00:16:24] Speaker 03: What's wrong with that? [00:16:25] Speaker 00: Well, I don't think that Terry stop would have inevitably led to getting the phone because that would assume that officer Jackson would, I mean, excuse me, Mr. Jackson would have still handed the phone over to officer Newman. [00:16:39] Speaker 03: Again, we're getting, well, no, it's a Terry stop. [00:16:42] Speaker 03: They have to make sure that he can't get away with anything. [00:16:44] Speaker 03: It can be destroyed and everything. [00:16:46] Speaker 03: And he got this phone. [00:16:47] Speaker 03: You can't just, you know, let him have the phone. [00:16:50] Speaker 03: If you have a proper Terry stop, you have to, [00:16:54] Speaker 03: take the evidence that he has. [00:16:59] Speaker 03: Well, basically what I'm asking is, is there anything unfair with us recharacterizing the argument that the government makes from inevitable discovery to Terry's thought and its natural consequences of a roadside search? [00:17:25] Speaker 03: Is there anything wrong? [00:17:26] Speaker 00: Is it unfair to do that? [00:17:32] Speaker 00: I'm not sure how to answer that, Your Honor, candidly, because that wasn't something that came up in the briefing, so I don't want to... Well, I think that answers it. [00:17:41] Speaker 01: I mean, the government called this an inevitable discovery exception. [00:17:47] Speaker 01: So that's what they're here to argue. [00:17:50] Speaker 03: Well, you would agree that the facts are undisputed, wouldn't you, Ms. [00:17:56] Speaker 03: Carter? [00:17:59] Speaker 00: Yes, I believe it's just legal arguments here. [00:18:01] Speaker 00: The only factual argument that was disputed below was whether the phone was on his person and under his control at that point in time of this stuff. [00:18:10] Speaker 00: But I don't think either side is challenging that on appeal. [00:18:15] Speaker 00: Thank you. [00:18:18] Speaker 01: We'll hear from the government. [00:18:21] Speaker 04: Hey please, the court of Bishop Grewell on behalf of the United States. [00:18:24] Speaker 04: Given the conversation that's occurred so far, I think I'll probably start briefly with what we've called inevitable discovery, and then I'll address Judge Rossman's questions about what to do with the ambiguity here. [00:18:35] Speaker 04: I think there are two different ways that the ambiguity could be approached if this court considers there to be an ambiguity in the warrant. [00:18:42] Speaker 04: As far as the inevitable discovery, I suppose it could have also been [00:18:47] Speaker 04: labeled independent source. [00:18:49] Speaker 04: I don't think there's any speculation required with regard to this. [00:18:53] Speaker 04: The officers could stop him because not only did they have reasonable suspicion, they had probable cause that he had committed a crime and was committing the ongoing crime. [00:19:03] Speaker 04: of possessing illegal child pornography based on everything that's in the affidavit. [00:19:08] Speaker 04: They knew the vehicle he was driving was him and had a personalized plate you can see in the video that was referenced in the affidavit. [00:19:15] Speaker 04: We had all of this stuff in the affidavit about how people who have contraband keep it on their phones and on digital devices that are on their person. [00:19:22] Speaker 04: And so once they could stop him, [00:19:24] Speaker 04: then whether it's a search or not, the automobile exception would have, even if he hadn't handed over the phone. [00:19:31] Speaker 01: The only reason that they could stop him is as they were invalidly executing the warrant, right? [00:19:40] Speaker 04: I don't think that's correct. [00:19:42] Speaker 04: I think they could have stopped him to arrest him. [00:19:43] Speaker 04: They had PC that he was committing an ongoing offense at that point. [00:19:48] Speaker 04: So I think they could have stopped him even without the warrant. [00:19:51] Speaker 04: Based on that information, they had this in the affidavit. [00:19:55] Speaker 04: And then the only thing that... What if the warrant had been invalid? [00:19:59] Speaker 01: Here the warrants valid and the argument is it was improperly executed. [00:20:04] Speaker 01: So does your argument depend on there being a valid warrant? [00:20:07] Speaker 04: Well, if the warrant was invalid because of a lack of probable cause, that could be a problem because we're basing sort of the PC here on the fact the PC for the stop and the PC to search the car based on the stuff that's in the affidavit. [00:20:21] Speaker 04: But I don't think an invalid warrant based on the going outside scope would create a problem with those things because I think they're independent ways. [00:20:27] Speaker 04: Again, we could have stopped him and searched the vehicle and then the officer testified on the stand. [00:20:33] Speaker 04: If this warrant that I had didn't cover the phone, I would have gotten a warrant to search the phone. [00:20:37] Speaker 04: And so I don't think there's any of the speculation required to go to answer that particular exception. [00:20:44] Speaker 03: So really the reliance [00:20:46] Speaker 03: is not on the warrant, but on the basis that the warrant was acquired, i.e. [00:20:53] Speaker 03: the application. [00:20:55] Speaker 03: And the application has sworn testimony that we know what this guy has done, we know how he has done it, and we have him on the roadside, and we have access to the phone, which is [00:21:16] Speaker 03: one of the instruments of the crime that's mentioned in the application. [00:21:21] Speaker 04: Correct. [00:21:22] Speaker 04: Correct. [00:21:23] Speaker 04: And they haven't challenged that. [00:21:24] Speaker 04: And possession of child pornography is an ongoing offense. [00:21:27] Speaker 04: It's a continuing offense. [00:21:28] Speaker 04: So every moment, it's a crime that is ongoing. [00:21:32] Speaker 03: Okay. [00:21:32] Speaker 03: But, okay, here is the problem I'm having with that. [00:21:36] Speaker 03: I think that makes perfect sense. [00:21:39] Speaker 03: But we gots. [00:21:43] Speaker 03: It's asymmetrical the way the approach is because you say it's inevitable discovery. [00:21:50] Speaker 03: And I don't see that because if the Terry stop was appropriate, there was no preceding 14th Amendment violation, which is the standard traditional part of an inevitable discovery theory. [00:22:07] Speaker 03: Isn't that correct? [00:22:09] Speaker 04: Which I, I think these often get sort of mixed up. [00:22:12] Speaker 04: I think that's why it could be an independent source better than inevitable discovery. [00:22:16] Speaker 04: That might be the better label for it. [00:22:18] Speaker 03: Um, because you didn't even say that all you said was inevitable discovery. [00:22:23] Speaker 03: You didn't say independent source. [00:22:25] Speaker 03: You didn't say, forget the warrant. [00:22:30] Speaker 03: We can just stop this guy and take his phone. [00:22:33] Speaker 04: We didn't put that label on it, but we did put all the necessary facts and all the necessary exceptions. [00:22:38] Speaker 04: We said, this is why you could stop him because there's reasonable, well, there's probable cause, which would give you reasonable suspicion. [00:22:44] Speaker 04: We pointed out that you could then search based on the automobile exception. [00:22:48] Speaker 04: We then pointed out that he testified that he would have gotten a warrant. [00:22:51] Speaker 04: So it is correct. [00:22:52] Speaker 04: We didn't put that label on it, but all of the facts underlying that theory are there in the briefing. [00:22:59] Speaker 03: Here is something. [00:23:00] Speaker 03: This is more in line with your inevitable discovery label. [00:23:07] Speaker 03: Eventually, the warrant [00:23:10] Speaker 03: was executed at the site, wasn't it? [00:23:15] Speaker 03: It was. [00:23:17] Speaker 03: Okay. [00:23:17] Speaker 03: And is it in the record what it was that you found at the site as distinguished from what you found on his person when you did the roadside stop? [00:23:31] Speaker 03: Is that clear from the record? [00:23:33] Speaker 04: As I recall, there were not devices that they found at the site. [00:23:37] Speaker 04: It was on his phone that the evidence that, which is why this matters in this case, because that is where the evidence was found through the search of his phone. [00:23:47] Speaker 03: Because if there were other things on the drive, in addition to phone, that would fit inevitable discovery a lot better, wouldn't it? [00:23:56] Speaker 04: It would. [00:23:57] Speaker 04: I think the one inevitable discovery point that's still here, though, is we did need the testimony that, look, once I had that phone, if it was not going to be covered by this particular warrant, I would have went and got another warrant. [00:24:08] Speaker 04: And so that is an inevitable discovery fact. [00:24:11] Speaker 04: We have all these other facts that are leading up to that chain, but that particular thing is something that didn't happen as an independent source. [00:24:20] Speaker 03: But that just sounds just wrong to say that [00:24:25] Speaker 03: I improperly executed a warrant. [00:24:30] Speaker 03: And in improperly executing it, I found this information. [00:24:35] Speaker 03: And so that would have led me to get a second warrant. [00:24:39] Speaker 03: That sounds awful to me. [00:24:42] Speaker 04: I think where the basis is, we have all of this independent source that would have got us there to get this other warrant, which would be illegitimate, and nothing is illegitimate in that chain. [00:24:52] Speaker 04: It makes sense when we're talking about the concerns about deterrence and the exclusionary rule. [00:24:55] Speaker 03: But doesn't the second warrant depend on the propriety of your doing the search and everything at the roadside? [00:25:08] Speaker 04: That is correct. [00:25:11] Speaker 04: Yeah, but again, I don't think it's a PC problem. [00:25:14] Speaker 04: I think it's a scope of that particular warrant problem. [00:25:17] Speaker 04: So I don't think that's, it doesn't create a propriety problem in how the stop occurred or the search that occurred. [00:25:25] Speaker 04: I'd like to, if I may turn to the questions about the ambiguity in the warrant, unless the court asks further questions on ineffable discovery. [00:25:33] Speaker 01: I did have one quick question on inevitable discovery. [00:25:37] Speaker 01: I just want to make sure that I understand exactly what the government argued. [00:25:42] Speaker 01: So your two arguments or your two theories in support of inevitable discovery was one, you stopped him to provide him a copy of the warrant. [00:25:55] Speaker 01: That seems strange. [00:25:58] Speaker 01: Do you stand by that argument? [00:26:01] Speaker 04: Yeah, I'm not pressing that argument. [00:26:05] Speaker 01: OK, you're not pressing that argument. [00:26:07] Speaker 01: Makes sense. [00:26:08] Speaker 01: The second is this Terry idea. [00:26:11] Speaker 01: And I think I want to just make sure I understand what you presented, because I think in your questioning with Judge Murphy, the facts are undisputed. [00:26:21] Speaker 01: The facts are what they are. [00:26:23] Speaker 01: And if we break the causal chain, and this is just an ordinary traffic stop, [00:26:30] Speaker 01: You know, is there a reasonable suspicion for this ordinary traffic stop that that's a different kind of an inquiry? [00:26:36] Speaker 01: You did not make that argument, right? [00:26:38] Speaker 01: Your Terry stop argument, or actually, let me stop talking and have you talk. [00:26:43] Speaker 01: Tell me what the government's argument is under Terry as part of your inevitable discovery theory. [00:26:51] Speaker 04: Yeah, I think our alternative argument and is I think it might be the Monteith case to suit and we cite I can't remember which one is but then basically the fact that there was PC that he is committing an ongoing crime. [00:27:02] Speaker 04: gives you at the very least reasonable suspicion, but you had PC, which is a higher standard, you could arrest him for that, you could stop him for that. [00:27:10] Speaker 04: The fact that he was committing an ongoing crime of possessing child pornography, that's the basis for the stop. [00:27:16] Speaker 04: And then once you've stopped him because you have PC that it's evidence of that crime or contraband is on his device under the automobile exception, you could get that device. [00:27:27] Speaker 01: Okay, thank you. [00:27:30] Speaker 04: I think there are two ways, assuming that the warrant here is ambiguous, I think there are two ways that the court could address this. [00:27:38] Speaker 04: Either, and these are both in some sense based on the footnote 19 language from Leon, where I think it suggests that as long as the officers are searching a place that they, quote, have reason to believe, end quote, is covered by the warrant, [00:27:53] Speaker 04: That's not the sort of thing that we're worried about here. [00:27:56] Speaker 04: So the first way that the court could address that is it could say, if officers are acting with reason to believe that something is within the scope of the warrant, we don't have a scope violation. [00:28:08] Speaker 04: We're not gonna go to good faith. [00:28:09] Speaker 04: We're just gonna say scope violations require officers to be acting unreasonably. [00:28:16] Speaker 04: Sorry, there's an echo. [00:28:19] Speaker 04: Unreasonably important. [00:28:23] Speaker 04: requires the officers to be acting unreasonably. [00:28:26] Speaker 04: And there's simply no scope violation in that situation. [00:28:30] Speaker 01: Hold on a second. [00:28:30] Speaker 01: So in that version of that argument, we would have to agree that the facts here support that this warrant was being executed reasonably when Mr. Jackson was stopped. [00:28:47] Speaker 01: Is that right? [00:28:48] Speaker 04: that the officers had reason to believe that searching him off premises was within the scope of the warrant. [00:28:57] Speaker 04: That's the language from Leonfootnote19, that they had reason to believe. [00:29:00] Speaker 04: The second way that the court could address it is by saying that good faith applies here and that in fact, while there's much dicta in the 10th Circuit, there's no holding that good faith doesn't apply to scope and execution, which I think is what the first circuit says in its Pimentel decision in footnote four. [00:29:19] Speaker 04: It discusses this court's precedence and says that the question of ambiguity regarding scope has not come up in Angelos or those decisions. [00:29:27] Speaker 04: And so the 10th Circuit hasn't actually reached that question. [00:29:31] Speaker 04: And then based off of footnote 19 in Leon, that where officers have reason to believe, which they would in an ambiguity, that this is within the scope of the warrant, good faith would apply. [00:29:43] Speaker 01: Well, let me ask you this. [00:29:44] Speaker 01: I mean, your friend on the other side here says that it's a full stop situation in terms of what our law shows. [00:29:53] Speaker 01: Leon Goodfaith will not save an improperly executed warrant, period. [00:29:58] Speaker 01: You agree that that is a correct, at least descriptively, of the state of our law, right? [00:30:04] Speaker 04: I agree that the court has said things like that, but never held that. [00:30:07] Speaker 04: But there's been no decision where an ambiguity has been in all of those cases, and ambiguity was never an issue. [00:30:13] Speaker 04: So I don't agree. [00:30:15] Speaker 01: So we have held that, but your position is that because those cases were not [00:30:20] Speaker 01: adjudicating the sort of ambiguity argument you're pressing here, that is open in this circuit. [00:30:28] Speaker 04: Is that your position? [00:30:30] Speaker 04: I think for it to be a holding, the issue has to be present in the case, and it has to be something that's required to make the decision. [00:30:36] Speaker 04: And I think that's why the first circuit in its footnote four says this court hasn't decided it. [00:30:42] Speaker 03: Even though you say what we've said, [00:30:47] Speaker 03: that Leon cannot say a faulty execution. [00:30:53] Speaker 03: Even if you say that's dicta, doesn't that concept naturally flow from what Leon is all about? [00:31:03] Speaker 03: And that is that you have a faulty warrant on its face for some reason, but [00:31:15] Speaker 03: in good faith, looking at it, you couldn't really tell that versus some problem when you take this war and you execute it in a proper fashion. [00:31:28] Speaker 03: That seems to me on a completely different track than the whole theory of Leon. [00:31:34] Speaker 04: I don't think it calls for a per se rule. [00:31:36] Speaker 04: I think that makes sense if you have [00:31:38] Speaker 04: an unambiguous warrant that what they did was unambiguously outside the scope, which is the case is this court has decided. [00:31:44] Speaker 04: I think when you have Leon note 19 saying, but if officers are acting based on a reason to believe that something's within the scope of a warrant, when something's ambiguous, I think they have reason to believe that it's within the scope of that warrant. [00:31:57] Speaker 04: And you're not getting to sort of any of the deterrence value that Leon is about. [00:32:03] Speaker 04: You don't have officers who are intentionally trying to play a game here. [00:32:06] Speaker 04: In fact, [00:32:07] Speaker 04: It's quite clear the officers, based on everything that's in the affidavit, could have gotten the clear language. [00:32:15] Speaker 04: There's no concern that somehow the magistrate wouldn't have approved it if they had added on to say, and Caleb Jackson, no matter wherever he may be or whatever time, that that wouldn't have been approved. [00:32:27] Speaker 04: And so I don't think the deterrence concerns that Leon has are there. [00:32:30] Speaker 04: And I think Leon says, again, in footnote 19, it's where officers have reason to believe something's within the scope of the warrant, [00:32:37] Speaker 04: We're not concerned about that. [00:32:39] Speaker 04: It's also, if this court's gonna go the other way, I think it should acknowledge it as certainly creating a circuit split with the First Circuit and Pimentel. [00:32:49] Speaker 04: Pimentel said exactly the opposite. [00:32:52] Speaker 04: The Young case that they cite, it's unpublished. [00:32:55] Speaker 04: And it doesn't, with due respect, doesn't say what it's been presented to say. [00:32:58] Speaker 04: There wasn't an ambiguity in Young. [00:33:01] Speaker 04: Rather in Young, this court said the clear command of the warrant was that they could only search the apartment, not the person. [00:33:07] Speaker 04: So the ambiguity wasn't an issue in Young, even if it had been a published decision. [00:33:11] Speaker 03: Help me in, if you can do it in 10 words or less, I'd appreciate it. [00:33:15] Speaker 03: But you may need more than 10 words. [00:33:18] Speaker 03: What is ambiguous in Attachment A? [00:33:24] Speaker 03: Say that you can include the search of the person [00:33:31] Speaker 03: at the time of the search warrant execution, and that's at the place. [00:33:36] Speaker 03: How is that ambiguous? [00:33:38] Speaker 03: I don't get it. [00:33:40] Speaker 04: I think when you have the language before saying located thereon, that indicates there's a geographic limiter. [00:33:46] Speaker 04: We don't have it at the end. [00:33:48] Speaker 04: Perhaps if the person had been before that, a natural reading might include that, but he's certainly not a subcategory of those things that are listed, the buildings and the like. [00:33:59] Speaker 04: And the timing limitation is simply saying, [00:34:01] Speaker 04: It's not an order of operations. [00:34:03] Speaker 04: It's simply saying this all needs to be part of the same temporal episode. [00:34:07] Speaker 04: So like, you can't wait three days between searching the premises and him, but it's not saying you can only search him if he's on the premises at the time. [00:34:14] Speaker 01: That's where- What is more instructive for a practical reading, which is what our case law demands? [00:34:22] Speaker 01: The sort of, you know, commas and clauses and technical language or literally the heading, description of location to be searched. [00:34:32] Speaker 04: Yeah, so I think location is ambiguous here. [00:34:34] Speaker 04: That's the problem because it doesn't just use a place. [00:34:37] Speaker 04: It has places, things, and people. [00:34:40] Speaker 04: And so it's not using location in the sense of place. [00:34:43] Speaker 04: When you have things and people included, that's why for the things here, the cars and the outbuildings, it needed to say that they are located there on. [00:34:51] Speaker 04: And so I think that's not the pragmatic reading when you have that other context. [00:34:57] Speaker 01: Do you know if [00:34:59] Speaker 01: In Pimentel, do you know if the First Circuit's law, you're suggesting that we would be creating a split here? [00:35:05] Speaker 01: You know, is sort of the first premise in the First Circuit about Leon doesn't apply to [00:35:14] Speaker 01: improper execution, they hold that too, right? [00:35:18] Speaker 01: I mean, there's no circuit split on the black letter descriptive principle, right? [00:35:23] Speaker 04: No, they say that it is not a per se rule, that in fact, good faith can apply to a search warrant that goes outside the scope and execution. [00:35:29] Speaker 04: They say that, I think, quite clearly at several pages, it's pages 90 through 92. [00:35:36] Speaker 04: And there, the going outside the scope execution was actually much more egregious than here, because that one, the warrant said, [00:35:43] Speaker 04: You can search on the second floor of this three-story building because that's where the residence of this guy is Turns out they get there and they realize his residence is on the third floor and they go search the third floor Which is clearly outside the warner that but they decided that was ambiguous enough This is this is far more ambiguous than that language, which was upheld under the good faith doctrine and couldn't help May ask one more question counsel the ambiguity and the warrant language [00:36:10] Speaker 05: I think I hear you saying it's not ambiguous that you can search Mr. Jackson at the same time that you're executing the search at Rob Road. [00:36:20] Speaker 05: But it may be some ambiguity as to whether or not Mr. Jackson has to be on the property itself when you execute that search of him, if I hear him that correctly. [00:36:29] Speaker 05: But if that's true, you didn't execute the warrant or search Mr. Jackson at the time you were at Rob Road because the officers weren't at Rob Road yet. [00:36:38] Speaker 05: And you say in your brief, well, we were already executing the warrant when we stopped him, but what authority do you have for that? [00:36:44] Speaker 04: So it's two things. [00:36:45] Speaker 04: We have the officer's testimony that really this stopping from the site was the beginning of the execution. [00:36:50] Speaker 04: We have the warrant that says the execution included providing a copy of the warrant when they stopped him. [00:36:56] Speaker 04: And the third thing then is, as I was trying to say earlier, [00:36:59] Speaker 04: This isn't an order of operations. [00:37:00] Speaker 04: It doesn't say you have to start searching the outbuildings and the vehicles first. [00:37:03] Speaker 04: He's an independent thing. [00:37:05] Speaker 04: It all just has to be part of this same episode. [00:37:07] Speaker 04: And it clearly was, it wasn't too attenuated. [00:37:09] Speaker 04: They stop him, do that search, and then they immediately go to the property. [00:37:14] Speaker 04: So it's not like they waited three days. [00:37:15] Speaker 04: It was all part of the same episode. [00:37:17] Speaker 04: It basically creates a temporal nexus that was met here. [00:37:20] Speaker 03: Did they take Mr. Jackson with them from the roadside stop to the premises? [00:37:29] Speaker 03: Was he with them? [00:37:30] Speaker 03: He asked to go with them. [00:37:35] Speaker 01: Okay. [00:37:35] Speaker 01: You use the word staging. [00:37:36] Speaker 01: Is that the same thing as executing? [00:37:37] Speaker 04: I think that's a factual question actually here. [00:37:42] Speaker 04: I haven't seen a line, but that was the testimony of the officer that this was [00:37:46] Speaker 04: We have the site in the brief where they were, he said, this is sort of where we're starting the executing is them setting it up. [00:37:53] Speaker 04: And so I think that's arguably a factual finding in the record. [00:37:57] Speaker 01: Thank you, counsel. [00:37:58] Speaker 01: Well, we kept the government an extra four minutes. [00:38:04] Speaker 01: Ms. [00:38:04] Speaker 01: Carter, put some time back on your clock. [00:38:06] Speaker 01: Give you four minutes. [00:38:15] Speaker 00: Thank you. [00:38:15] Speaker 00: I appreciate that, Your Honour. [00:38:17] Speaker 00: There's a number of things I'd like to have a chance to address. [00:38:22] Speaker 00: First of all, with Pimentel, I think it's inapplicable here because in the Tenth Circuit, these types of address errors wouldn't serve to invalidate a warrant. [00:38:31] Speaker 00: And I would point you to Harmon versus Pollock for that proposition that a technically wrong address does not invalidate a warrant if it otherwise describes the premises with sufficient particularity. [00:38:42] Speaker 00: So that's one thing I would note there as to that. [00:38:45] Speaker 00: first circuit case. [00:38:48] Speaker 00: Since the footnote in Leon came up, I'd like to address that for a moment. [00:38:54] Speaker 00: Footnote 19 is simply describing the standard for evaluating whether an execution is proper. [00:39:00] Speaker 00: I don't think it creates an opening to expand the doctrine. [00:39:06] Speaker 00: And I also want to address the government's argument about the temporal work that [00:39:14] Speaker 00: or the temporal restriction here. [00:39:16] Speaker 00: And I would like to point out that their argument as to how to interpret at the time of search warrant execution is completely circular and meaningless. [00:39:28] Speaker 00: Whereas our reading, the meaningful work that phrase is doing is clarifies that Mr. Jackson can only be searched inside the active execution period. [00:39:38] Speaker 00: But their reading at the time of search warrant execution is completely [00:39:42] Speaker 00: elastic in that officers can simply hand someone a copy of the warrant anywhere at any time and claim they're executing it. [00:39:50] Speaker 00: We can search Mr. Jackson because warrant execution has begun. [00:39:53] Speaker 00: Warrant execution begins because we hand him the warrant or handing him the warrant because we're searching him. [00:39:59] Speaker 00: I think that just [00:40:01] Speaker 00: can't be as to another point. [00:40:05] Speaker 05: That's not really what happened here, though, isn't it? [00:40:08] Speaker 05: I mean, they're saying they testified that, you know, the warrant execution begins once we stop him because we can serve the warrant upon him and for other reasons we can stop him. [00:40:17] Speaker 05: But then they immediately go to Rob Road, in which he, I think, drives himself there to join them, right? [00:40:23] Speaker 05: So I heard the government saying, well, there's a temporal proximity to the manner in which it was executed. [00:40:29] Speaker 05: We don't have to sort of think about the hypotheticals as to whether they could have stopped him and then the next day gone back to Rob Road. [00:40:37] Speaker 00: Well, I wouldn't agree that the execution would begin that far out. [00:40:41] Speaker 00: I think even if I think the execution, you still to execute the warrant properly at the designated location. [00:40:49] Speaker 00: And I would also like to in my remaining time address the point about the located their own language and the word already includes site specific limiting language that ties Mr. Jackson to the location. [00:41:03] Speaker 00: So you don't. [00:41:04] Speaker 00: That's clearly the header. [00:41:05] Speaker 00: This location consists of and to include Mr. Jackson, which is clearly additive language. [00:41:10] Speaker 00: So you don't need to repeat located there on next to his name. [00:41:13] Speaker 00: So the absence of that, I think, doesn't go either way. [00:41:16] Speaker 00: And even if you took located there on away from modifying vehicles, I think it's still clear we're talking about vehicles on the property. [00:41:24] Speaker 00: So I do want to address that point. [00:41:28] Speaker 00: And I also finally want to say this isn't [00:41:33] Speaker 00: a matter of a quick fix like in street a case that you all are probably aware of where you could just quickly tweak some of the writing in the warrant because in street we had a warrant that was invalid from its inception but it was essentially signing off though on the same exact search. [00:41:52] Speaker 00: Here it's not much of a quick fix because we're asking for a totally different broader search here that the magistrate would have to consider. [00:42:03] Speaker 00: So with that, I will rest on our briefing and ask you to reverse. [00:42:08] Speaker 00: Thank you. [00:42:10] Speaker 01: Thank you, counsel. [00:42:11] Speaker 01: Thank you both for your great briefs and helpful arguments. [00:42:15] Speaker 01: Case will be submitted.