[00:00:00] Speaker 03:
we will 24-8058, United States versus Schoenberg.

[00:00:24] Speaker 04:
Good morning and may it please the court.

[00:00:26] Speaker 04:
I'm John Rebellious on behalf of Stephen Showbert.

[00:00:30] Speaker 04:
Your Honor, as I do intend to try to reserve rebuttal time this morning, of course, I'll monitor my own time.

[00:00:37] Speaker 04:
When Mr. Showbert was in the emergency room, Sergeant Oberth asked for consent to search his home.

[00:00:43] Speaker 04:
And here is what Oberth conveyed, quote, per your court conditions and per the county attorney, if you'll allow us to go in and get your firearms from your house and keep them as safekeeping at the law enforcement center until your trial is over with, then we can do a medical furlough so that you can get the treatment that you need.

[00:01:04] Speaker 04:
And Deputy McLean testified that my client responded, yes, he needed medical care.

[00:01:10] Speaker 04:
Nothing in the record, Your Honors, contradicts these quotes that I just read that show that Oberth's statements logically entailed that my client's medical care was conditioned on his consent to search.

[00:01:22] Speaker 04:
In fact, Sergeant Oberth himself, when responding to the court's questions about what he said at this time, testified, quote, after I explained to him that we needed to get him his medical treatment and we can't afford to have somebody sit on him the entire time,

[00:01:39] Speaker 04:
He gave consent.

[00:01:41] Speaker 04:
The only real debate here, Your Honors, is not what was said or who was credible, but what Oberth's statements logically implied.

[00:01:49] Speaker 02:
Do you disagree with the district court's assessment then?

[00:01:52] Speaker 02:
Because it said while the testimony was back and forth regarding what exactly was stated to Mr. Shilbert, you're saying it was consistent with what you just said throughout.

[00:02:01] Speaker 04:
Yes, the precise words used may have been unclear, but the logical implications of what he said were clear and certainly consistent throughout all of the testimony.

[00:02:15] Speaker 04:
In fact, I would point the court to page 113 in volume four when the district court is having a back and forth with defense counsel when she's making her closing argument at the hearing.

[00:02:26] Speaker 04:
And here's what the court says.

[00:02:27] Speaker 04:
But the question here isn't necessarily what the order, the furlough order, says, but what the officer told Mr. Schobert.

[00:02:35] Speaker 04:
And as I understood it, he said, so that you can continue to get your medical treatment and whatnot in meeting conditions of bond.

[00:02:43] Speaker 04:
So, Your Honors, the officer's bottom line denials that there was a threat made or that the officer never said, Mr. Schobert, if you don't consent, you won't get your treatment, doesn't resolve the issue.

[00:02:57] Speaker 02:
Well, what if the officers, the deputies, were pure-hearted and it's just clumsy language that they use?

[00:03:04] Speaker 02:
Where would that lead us?

[00:03:05] Speaker 04:
Well, it would still be coercive, Your Honors.

[00:03:08] Speaker 04:
We look at the test from a reasonable person in Mr. Schobert's shoes, and if he's hearing that his treatment is conditioned on consent, that's all that matters.

[00:03:18] Speaker 04:
I'm not standing before this Court telling Your Honors that the law enforcement here had evil intentions or were not trying to do

[00:03:26] Speaker 04:
their work.

[00:03:27] Speaker 04:
However, what was conveyed to my client was unequivocally that, hey, yes, if you want medical treatment, you need this furlough.

[00:03:36] Speaker 04:
And to get that furlough, you need to consent.

[00:03:38] Speaker 03:
That's not the way it was framed.

[00:03:40] Speaker 03:
I mean, the way it was framed was a word salad.

[00:03:43] Speaker 03:
I mean, it's not clear to me at all what one would logically take from that.

[00:03:48] Speaker 03:
And so if you reference logical inference, well, if the district court came to a different logical inference,

[00:03:55] Speaker 03:
and we're under clear error review, where does that leave you?

[00:03:59] Speaker 03:
Because I mean, if there are two permissible views of what the evidence would be, then you lose.

[00:04:05] Speaker 04:
Well, Your Honor, my position is that the district court's conclusion that the sergeant didn't even suggest that treatment was conditioned on consent is unsupported by the record and contradicted by everything that was said regarding that conversation.

[00:04:22] Speaker 04:
Nothing contradicts, again, what the deputy testified about what was said.

[00:04:28] Speaker 03:
I'm not even sure what that means, frankly.

[00:04:31] Speaker 03:
The language that you read to me, it wasn't clear.

[00:04:34] Speaker 03:
I mean, what he did not say is,

[00:04:35] Speaker 03:
I am telling you, Mr. Schover, that your ability to get medical care is conditioned upon you agreeing to a medical furlough.

[00:04:42] Speaker 03:
He didn't say that.

[00:04:43] Speaker 03:
He said a bunch of stuff, which you can discern what that means, and I'm not saying that your interpretation is not reasonable.

[00:04:52] Speaker 03:
All I'm wondering is, is it the only one that you could have the only reasonable interpretation?

[00:04:57] Speaker 03:
And if it's not the only reasonable interpretation, I take it you can see that under clear error review, you lose.

[00:05:03] Speaker 04:
Yes, Your Honor, but it is the only reasonable interpretation because the testimony, again, was consistent about what was said and how it was conveyed.

[00:05:11] Speaker 04:
Now, again, I'm not saying that we have a verbatim transcript of what was said, but every time a witness was asked what was said to Mr. Showberg, every time that the witness testified, it was clear that there was a condition

[00:05:26] Speaker 04:
It was conditioned.

[00:05:28] Speaker 04:
It was, if you want treatment, you need the furlough so that you can get treatment.

[00:05:34] Speaker 04:
That means that there's a condition there.

[00:05:36] Speaker 04:
To get treatment, you need the furlough.

[00:05:38] Speaker 04:
Every time a witness testified, that is what was conveyed to the court.

[00:05:42] Speaker 03:
May I ask, in your brief, there's some attention paid to the question of whether there was a lie to Mr. Schobert about there being a condition of essentially that he agreed to allow the weapons to be removed before a medical furlough would be issued.

[00:06:07] Speaker 03:
Why is that a lie?

[00:06:08] Speaker 03:
In fact, that's what the county attorney told

[00:06:12] Speaker 04:
Well, Your Honor, my position in the briefing is that the evidence does not show that that is actually what happened, that my client's relinquishment really, or excuse me, that that actually triggered relinquishment, or the furlough, excuse me, because the furlough order

[00:06:30] Speaker 04:
doesn't have that condition in it.

[00:06:31] Speaker 04:
The request for the furlough order doesn't have that condition in it.

[00:06:34] Speaker 04:
And the testimony kept coming back to it being a court condition.

[00:06:37] Speaker 04:
Now, having said that, Your Honors, my primary focus, and I think the bigger problem, is this coercive conditional statement that I began with.

[00:06:47] Speaker 04:
Because that alone is dispositive of the issue, and certainly the court wouldn't have to even address the second part if it does agree with me on the first.

[00:06:55] Speaker 02:
Is it legal error or is it clear error that you're arguing?

[00:06:59] Speaker 04:
Well, it falls under clear error in the sense that I'm saying that the testimony contradicts the court's conclusion.

[00:07:06] Speaker 02:
Does it?

[00:07:07] Speaker 02:
The court said that the deputies never expressly said, unless you agree to the medical furlough, then you can't have any treatment.

[00:07:17] Speaker 02:
Or unless you agree to the consenting to search your house, you can't have.

[00:07:21] Speaker 02:
That's what the district court said.

[00:07:23] Speaker 02:
And my question is, was that legal error for the court to say that?

[00:07:28] Speaker 02:
In other words,

[00:07:29] Speaker 02:
to say that you, the defendant, has to understand that that's what's said before it can be coercive.

[00:07:38] Speaker 04:
I guess I'm not following that part of the question, Your Honor.

[00:07:41] Speaker 04:
My understanding of the order wasn't just that the court didn't say, well, here's the court's order in my understanding.

[00:07:49] Speaker 04:
There was no threat and there was no suggestion.

[00:07:53] Speaker 04:
that treatment was conditioned on relinquishment.

[00:07:58] Speaker 04:
I am saying that the court's finding that there was no suggestion is clear error, and contrary to the evidence.

[00:08:06] Speaker 02:
I don't know where you're getting the word suggestion.

[00:08:08] Speaker 02:
What the court says is, first, it was clear that Mr. Shelbert's medical care and treatment was not conditioned upon him allowing officers to retrieve the weapons from his home.

[00:08:19] Speaker 02:
And what I wonder is, if that's a legal error,

[00:08:23] Speaker 02:
for the court to say they have to say these words before it can be coercive.

[00:08:32] Speaker 02:
In other words, I don't know that the court really ever dealt with what you're talking about, which is the way that a reasonable person might understand these words that are said, if then, would be coercive.

[00:08:44] Speaker 02:
Instead, the court says, reading this very technically and word for word,

[00:08:48] Speaker 02:
The deputies never said unless you do this, you can't have medical care.

[00:08:52] Speaker 04:
Well, Your Honor, to the extent that this court reads the transcript as saying that the court never resolved this particular claim, I mean, that would satisfy clear because the court's not addressing

[00:09:03] Speaker 04:
an important fact that goes into the totality of the circumstances test.

[00:09:08] Speaker 04:
I have the citations in the brief where a court does not address a particularly salient factor.

[00:09:14] Speaker 04:
That's clear error.

[00:09:15] Speaker 04:
Now, I certainly read the transcript in a different way where after the court says, well, as a matter of fact,

[00:09:22] Speaker 04:
He was going to get treatment no matter what, and I'm paraphrasing.

[00:09:25] Speaker 04:
Then he says, and he did not even suggest that treatment was conditioned on relinquishment.

[00:09:32] Speaker 04:
And that's really the focus of my argument.

[00:09:35] Speaker 04:
And that's how I read the transcript, Your Honor.

[00:09:37] Speaker 04:
Where are you to get that word suggest?

[00:09:40] Speaker 02:
And if it's going to chew up your time, don't worry about it.

[00:09:42] Speaker 04:
No, it's OK.

[00:09:45] Speaker 04:
So I do cite this in the brief, I believe, Your Honor.

[00:09:53] Speaker 04:
While the testimony was back and forth, and this is on page 138.

[00:09:57] Speaker 04:
There was never any threats or indication that he could not continue to receive treatment or would not continue to receive treatment.

[00:10:07] Speaker 04:
if he did not consent to removing firearms.

[00:10:09] Speaker 04:
So no indications is really the language I'm latching onto, not suggest, but indication.

[00:10:16] Speaker 04:
And so that's what I'm saying is that the court committed clear error in finding that there was no even indication.

[00:10:21] Speaker 04:
That was clearly false and contradicted by all of the testimony elicited at the hearing.

[00:10:26] Speaker 01:
So are you backing away from the idea that the medication and the recent seizure contributed to the involuntariness of his consent?

[00:10:35] Speaker 04:
Well, Your Honor, I'm not pushing that as the basis for my argument, certainly.

[00:10:39] Speaker 04:
It's definitely relevant in the totality of the circumstances under the Harrison factors.

[00:10:44] Speaker 04:
But for our purposes, even if he had been not on any of the lorazepam and completely coherent,

[00:10:51] Speaker 04:
we would still have the same results.

[00:10:53] Speaker 04:
It wouldn't change what was told to him, what was implied, and that he consented based on this.

[00:10:59] Speaker 04:
So it's certainly relevant as a background factor, but I'm not pushing that argument on appeal.

[00:11:03] Speaker 01:
What worries me is it seems like, just listening to your argument, the things you want to talk about all require us to draw inferences in your client's favor and not in favor of the district court.

[00:11:15] Speaker 04:
Well, Your Honor, again, I'm not contesting anything that the court found regarding what was said or who was credible.

[00:11:25] Speaker 04:
I mean, this is just a plain, simple, logical entailment of what is being said and what is clearly conveyed.

[00:11:31] Speaker 04:
In fact, as I said at page 113, the court appears to have the same understanding that I do.

[00:11:36] Speaker 04:
So I'm not saying that we're weighing competing inferences.

[00:11:41] Speaker 04:
This was the only inference any reasonable person would have drawn.

[00:11:44] Speaker 04:
in his situation in the emergency room for all who were there to hear it.

[00:11:49] Speaker 03:
Well, it has to be the only reasonable inference that, well, your inference has to be the only one that anyone could draw in this situation, because the District Court obviously had a different view of the record of those same words.

[00:12:10] Speaker 03:
And let me do a slightly different point.

[00:12:14] Speaker 03:
The word indication, which has been interpreted as suggestion, even if that were true, that there were an indication that there was a relationship between medical treatment and agreement to the furlough, is it clear as a matter of law that such an indication as opposed to an expressed condition would be sufficient to overbear his will?

[00:12:41] Speaker 04:
I believe it would, and I would direct the court again back to Deputy McLean's testimony when she's talking about on page 35 what my client said in response.

[00:12:50] Speaker 04:
And she says, yeah, he needed medical care.

[00:12:52] Speaker 03:
No, no, no.

[00:12:52] Speaker 03:
It's subjective.

[00:12:53] Speaker 03:
Your client's subjective view doesn't matter.

[00:12:56] Speaker 03:
What matters is would it objectively have been sufficient to overbear his will?

[00:13:02] Speaker 03:
And so what you believe doesn't matter either.

[00:13:04] Speaker 03:
What I believe doesn't matter.

[00:13:05] Speaker 03:
What's the law say about whether that kind of taking the phrase suggestion would be sufficient

[00:13:13] Speaker 03:
to overbear a person's will.

[00:13:17] Speaker 04:
Yes, Your Honor, it would.

[00:13:19] Speaker 04:
And I direct the court to the Ferguson case that I cited.

[00:13:22] Speaker 04:
Certainly no one disagrees here that in these circumstances, my client needed medical care for a potentially fatal condition.

[00:13:31] Speaker 04:
Every witness understood that.

[00:13:32] Speaker 04:
So this is potentially life and death for my client.

[00:13:36] Speaker 04:
And telling him or conditioning this, suggesting to him that he needs to consent in order to get that treatment, left him no meaningful choice but to consent.

[00:13:45] Speaker 04:
And that is the essence of coercion, Your Honor.

[00:13:47] Speaker 01:
Why are we supposed to draw that inference when he apparently felt

[00:13:51] Speaker 01:
like he was in good enough shape to go with them to his house?

[00:13:55] Speaker 04:
Well, Your Honor, I don't know that we can get inside his head in that.

[00:13:58] Speaker 04:
He is requesting that.

[00:13:59] Speaker 04:
But to say that he felt he was in good enough shape, I don't know.

[00:14:02] Speaker 04:
It just shows that he was concerned.

[00:14:04] Speaker 04:
That's really the only inference I think we can draw.

[00:14:06] Speaker 04:
And Your Honor, I'd like to reserve the balance.

[00:14:07] Speaker 02:
He didn't ask.

[00:14:08] Speaker 02:
He didn't say, explain this to me more.

[00:14:11] Speaker 02:
If I don't sign, then what?

[00:14:13] Speaker 04:
He didn't ask for explanation because the implication was crystal clear to him.

[00:14:18] Speaker 04:
He did not need further explanation to what he was told, which is that you need to consent to guarantee further medical treatment.

[00:14:25] Speaker 02:
What is your view on the subjective versus objective test here?

[00:14:29] Speaker 02:
What should we be evaluating?

[00:14:31] Speaker 02:
Whether a reasonable person in his condition under the circumstances of this case would have felt the will was being overcome?

[00:14:38] Speaker 02:
That is correct, Your Honor.

[00:14:40] Speaker 03:
Let me ask you, and we'll be a little lenient on time here, let me ask you, the government submitted a supplemental authority as it relates to the Morgan case, I believe, and I don't think there was a response from you on that, so do you believe there's anything left of your argument about 922-0 in light of Morgan?

[00:15:02] Speaker 04:
No, Your Honor, I don't have a basis to distinguish Morgan and I'm just going to maintain my second argument for preservation purposes.

[00:15:09] Speaker 04:
I didn't have any other response.

[00:15:28] Speaker 00:
May it please the court?

[00:15:29] Speaker 00:
My name is Christine Martins and I represent the United States.

[00:15:33] Speaker 00:
So the United States is asking this court to affirm the district court's judgment and find that it did not commit clear error when it determined that Mr. Shobert voluntarily consented to the search of his home, revealing the offending machine gun conversion devices at issue.

[00:15:51] Speaker 00:
When we review this, the court had some questions thinking about our standard of review.

[00:15:56] Speaker 00:
And I think that it's important to note that this is a factual question subject to that clear error review standard we've been talking about.

[00:16:04] Speaker 00:
And what that means here is that if there's any rational basis apparent on the record to support the district court's determination, that this court really must affirm.

[00:16:15] Speaker 00:
And in any instance where there's more than one reasonable interpretation of the facts in the record,

[00:16:20] Speaker 00:
this court needs to defer to the district court's finding of facts.

[00:16:24] Speaker 00:
So here, the district court found overall that the environment wasn't coercive, that nothing about what the officers did was coercive, and that Mr. Shogart's overall medical condition didn't prohibit him from consenting.

[00:16:39] Speaker 00:
So when we start to dig into those facts, I think it's no surprise that I fully disagree with defense counsel about what's reflected in the record.

[00:16:50] Speaker 00:
And there's a couple of things that I think are illustrative of that point.

[00:16:54] Speaker 00:
So defense counsel was talking about the exchange between trial counsel and the court and read this court a small snippet of that exchange, but importantly left off the last sentence.

[00:17:06] Speaker 00:
So the court says, but the question here isn't necessarily what the order says, but what the officer told Mr. Shobert.

[00:17:13] Speaker 00:
And as I understood it, he said, so that you can continue to get your medical treatment and whatnot and meeting conditions of his bond.

[00:17:21] Speaker 00:
He didn't say, or the record doesn't show, that he said, if you want to stay in the hospital, you've got to consent to the search.

[00:17:29] Speaker 00:
So the question that the district court was asking didn't assume that there was this threat.

[00:17:36] Speaker 00:
In fact, the district court imposing the question to defense counsel said that the deputy did not make a threat.

[00:17:44] Speaker 00:
I think that in viewing this record, if you go to volume four for our transcripts, one of the best places to look at the exchange is really on page 66 and 67 of that transcript.

[00:17:58] Speaker 00:
And there, Sergeant Obrith explains that this exchange really happened in two steps.

[00:18:04] Speaker 00:
So after he had talked to the county attorney, and it was the county attorney who said that to do a medical furlough order, Mr. Schobert needs to be in compliance with his bond conditions.

[00:18:14] Speaker 03:
Did you preserve an argument related to that?

[00:18:17] Speaker 03:
Did you make that argument below, that statement about the county attorney setting that condition?

[00:18:23] Speaker 00:
Well, we certainly didn't waive it, Your Honor.

[00:18:25] Speaker 03:
And why not?

[00:18:28] Speaker 03:
I mean, you're stating a conclusion.

[00:18:29] Speaker 03:
Why not?

[00:18:30] Speaker 03:
I mean, if you didn't raise it below, why didn't you waive it?

[00:18:32] Speaker 00:
Well, we talked about the totality of the circumstances below.

[00:18:35] Speaker 00:
So I think it was included in discussing the totality of the circumstances.

[00:18:39] Speaker 03:
Totality of the circumstances that you did not highlight, though, to the district court, right?

[00:18:44] Speaker 00:
Well, our pleading below was rather bare bones.

[00:18:47] Speaker 00:
And then in the argument to the court, there certainly wasn't any waiver or distance from the argument, as the defendant here has suggested in the reply.

[00:18:54] Speaker 03:
I appreciate not the conclusion, but an answer to the question.

[00:18:58] Speaker 03:
Did you raise that particular point below?

[00:19:02] Speaker 00:
I don't think it was necessarily our duty to raise it, so I guess I don't understand.

[00:19:06] Speaker 03:
I'm asking you yes or no.

[00:19:07] Speaker 03:
Did you raise it below?

[00:19:09] Speaker 00:
Yes, it was discussed below with the district court.

[00:19:11] Speaker 03:
Did you explicitly talk about the county attorney in providing that condition to Sergeant Ober below?

[00:19:18] Speaker 00:
Yes.

[00:19:19] Speaker 03:
Okay.

[00:19:19] Speaker 03:
Where did you do that?

[00:19:21] Speaker 00:
That was in the exchange with the district court at the close of the hearing.

[00:19:24] Speaker 00:
So specifically on page 117 of the record, the court asks the trial prosecutor below, as I understand, Sergeant O'Grath had a conversation with the county attorney.

[00:19:35] Speaker 00:
And based on that conversation and the furlough order, he understood they needed to pick up the weapons at the house.

[00:19:41] Speaker 00:
The trial prosecutor answers, I think that testimony is accurate.

[00:19:45] Speaker 00:
So it was certainly discussed below.

[00:19:46] Speaker 00:
It was part of the argument below.

[00:19:48] Speaker 00:
Both deputies testified about it below.

[00:19:50] Speaker 00:
So it's no surprise in the record on appeal here.

[00:19:54] Speaker 00:
And I think it's fair to say that there wasn't detailed discussion about the law enforcement role of the county attorney.

[00:20:03] Speaker 00:
It's very clear in that testimony that the facts were it and it was discussed.

[00:20:09] Speaker 00:
So I don't understand the waiver argument that the defense has made here in terms of just explaining the underlying background with regard to the county attorney's requirement that the weapons be relinquished.

[00:20:23] Speaker 02:
Counsel, let me ask you about this.

[00:20:27] Speaker 02:
The language that has been highlighted, the district court,

[00:20:31] Speaker 02:
There was never any indications that he could not continue to receive or would not continue to receive that treatment if he did not consent to them removing the firearms.

[00:20:41] Speaker 02:
It may be clumsy language, but it is throughout the transcript, something like this, that the deputy speaking, recounting the conversation with the defendant, then we can do a medical furlough so that you can get the treatment that you need.

[00:21:00] Speaker 02:
And there's an if and then elsewhere.

[00:21:02] Speaker 02:
If I'm just someone lying on a hospital bed and I hear these words, why would I not reasonably interpret them to mean you have to agree to this or else we can't give you medical treatment?

[00:21:15] Speaker 02:
Why is that even being discussed unless that's important?

[00:21:18] Speaker 00:
Well, that's where this two-step interaction is really helpful.

[00:21:22] Speaker 00:
As I was talking about, when Sergeant Obrith testifies, he explains to Mr. Schobert that the county attorney said to do this medical furlough order and relieve the sheriff's office of the staffing problem, and his focus is on the staffing problem.

[00:21:38] Speaker 00:
And so he's not talking to Mr. Schobert about his medical treatment when he begins the interaction.

[00:21:45] Speaker 02:
But this is, I understand your argument, I understand what you're saying, but we're talking about somebody on a hospital bed who hears the words that I just read and isn't considering all of this in one big piece or something.

[00:21:59] Speaker 02:
And those words that I just read, aren't those an indication that it was premised, that continued medical treatment was premised on a consent?

[00:22:10] Speaker 02:
Just that much, and then you can branch out from it.

[00:22:14] Speaker 00:
No, Your Honor, I really don't think so.

[00:22:16] Speaker 00:
And I think that the testimony is really best laid out, like I said, at page 66 and 67 of the record, where Sergeant Obereth says he's talking to Shobert about the staffing problem.

[00:22:29] Speaker 00:
And so he's talking about the need to relieve the sheriff's office of its issue.

[00:22:33] Speaker 00:
There's only two deputies working that day, and so a full 50% of the available sheriff's deputies are tied up sitting with Mr. Shobert.

[00:22:41] Speaker 00:
in the emergency room.

[00:22:42] Speaker 00:
So Mr. Showbert, on being told about this problem, says, well, I'd like to go with you to the house.

[00:22:48] Speaker 00:
And that's when medical treatment enters the conversation.

[00:22:51] Speaker 00:
That's when Sergeant Overs says, you need to get your medical care.

[00:22:54] Speaker 02:
You're 32 pages after what I just read.

[00:22:58] Speaker 02:
So I don't want to say that's when it started.

[00:23:02] Speaker 00:
So I think you're talking about Deputy Colleen McLean's testimony where she testifies just in a couple of sentences in a very summary fashion, and then Sergeant Oberth testifies later.

[00:23:13] Speaker 00:
And what's, I think, significant about that is that she's the deputy, McLean is, the deputy who sits with them the whole time.

[00:23:20] Speaker 00:
She's not the deputy who actually has the conversation with Mr. Schobert, Sergeant Oberth is.

[00:23:26] Speaker 00:
So Sergeant Oberth, when he testifies, that's the testimony that gets into this and sort of pulls this apart to talk about that sequence of events.

[00:23:34] Speaker 00:
And what is coming through in Sergeant Oberth's testimony is his concern is about the staffing issue, trying to solve the problem that the sheriff's office has sitting on Mr. Schobert.

[00:23:46] Speaker 00:
And for example, he says,

[00:23:48] Speaker 00:
My conversation with him was strictly focused on the fact that we didn't have the personnel to sit with him in the hospital.

[00:23:54] Speaker 02:
But Consent Search has nothing to do with that.

[00:23:57] Speaker 02:
They could have done the medical furlough and been out patrolling the streets of Orland, Wyoming without having it searched.

[00:24:06] Speaker 02:
And then when the medical furlough was over, he's supposed to report back.

[00:24:09] Speaker 02:
He's going back to jail.

[00:24:11] Speaker 02:
And then we can start talking about bond conditions again.

[00:24:14] Speaker 02:
But throwing the consent into this medical furlough, it just doesn't fit.

[00:24:20] Speaker 02:
It doesn't have anything to do with the need.

[00:24:23] Speaker 02:
The need for the two deputies to be out because they're sure-handed, that has something to do with the medical furlough, but it has nothing to do with the consent to search.

[00:24:34] Speaker 02:
Or do you disagree?

[00:24:36] Speaker 00:
Well, I think it has something to do in the sense that that was the motivation to seek that consent.

[00:24:42] Speaker 00:
The chain of events was they had this staffing problem.

[00:24:45] Speaker 00:
Sergeant Oberth talked to the county attorney about getting a medical furlough order.

[00:24:49] Speaker 00:
The county attorney says, well, to do that, he needs to comply with his bond conditions.

[00:24:53] Speaker 02:
Why?

[00:24:54] Speaker 02:
He's not being put on bond.

[00:24:57] Speaker 00:
That is absolutely true, and I think it's fair to point out that the bond order and the medical furlough order don't expressly incorporate that.

[00:25:04] Speaker 02:
Well, if you're the defendant, wouldn't you be pretty confused by what's obviously confusing me?

[00:25:09] Speaker 00:
I don't think so, Your Honor, because it doesn't really matter that that paperwork's a mismatch at the end of the day.

[00:25:16] Speaker 00:
Mr. Schobert had seen the state court judge that morning, presumably had the bond conditions explained to him, and so he knew when Sergeant Oberth approached him that these were legitimate bond conditions.

[00:25:30] Speaker 00:
They should have been explained by the state court.

[00:25:32] Speaker 00:
And there's nothing nefarious about the county attorney saying, look, if this guy's going to be loose, he's got to comply with his... He's not going to be loose.

[00:25:39] Speaker 02:
He's on medical furlough and then he's got to go straight back to the jail.

[00:25:42] Speaker 00:
well as a matter of fact he is loose because nobody's sitting on him he's no longer in custody and he did abscond afterwards there's no security that goes with custody that's the whole point of the medical furlough order so it's on his promise of good behavior that he will voluntarily surrender himself back to law enforcement once he's discharged from the hospital which he in fact failed to do so he really is loose and there is this public safety concern given that he showed up

[00:26:06] Speaker 00:
heavily intoxicated, armed with a pistol, and got himself into this mess in the first place with that alcohol and guns kind of problem.

[00:26:16] Speaker 00:
So there's a reasonable public safety problem that the county attorney is seeking to solve by asking for consent to search.

[00:26:23] Speaker 01:
So what is the interplay between the bond conditions and the medical furlough?

[00:26:28] Speaker 01:
Because you have a prior bond order by the state court

[00:26:36] Speaker 01:
that says you're not getting out unless you relinquish all your guns.

[00:26:43] Speaker 01:
And then you have medical emergencies in the hospital.

[00:26:47] Speaker 01:
You're going to effectively be letting him out with a medical furlough, but you have in place a bond order saying he can't get out without relinquishing his weapons.

[00:26:59] Speaker 00:
Well, admittedly, the state court paperwork leaves something to be desired.

[00:27:03] Speaker 00:
That's for sure.

[00:27:04] Speaker 00:
But there's no reason to doubt what testimony was available on the record.

[00:27:09] Speaker 00:
It was that sequence of events that we talked about.

[00:27:12] Speaker 00:
And with some background knowledge about how the criminal justice system works, it's unsurprising for the county attorney, the lawyer who would make the motion,

[00:27:19] Speaker 00:
to say, sure, I'll make the motion, sheriff's office, but you've got to do this first.

[00:27:24] Speaker 00:
And all of the reasonable reasons that somebody would make that inference are apparent on the record, all those public safety concerns given Mr. Schovert's behavior.

[00:27:33] Speaker 01:
So what happens to the bond order that is in place when the medical furlough is entered?

[00:27:38] Speaker 01:
Just as a legal matter, what happens to it?

[00:27:40] Speaker 00:
So what he was supposed to do is once he was discharged from the hospital under the medical furlough, he was supposed to go check himself back in with law enforcement.

[00:27:47] Speaker 00:
And at that time, presumably, he should have posted his $1,000 cash bond so that the bond conditions could be enforced and he could be appropriately out on bond.

[00:27:57] Speaker 00:
But as discussed at the hearing below, nobody really cared about that $1,000.

[00:28:03] Speaker 00:
Sergeant Oberth explained that the county attorney's focus was on the weapons.

[00:28:06] Speaker 00:
And again, that makes perfect sense based on the public safety concerns present on the face of the record.

[00:28:12] Speaker 00:
So I think when we think about this test, it's really important to think about it in its totality of the circumstances, right?

[00:28:20] Speaker 00:
So we have a bunch of testimony from these two different deputies and there's no recording.

[00:28:26] Speaker 00:
So there's the gist of the conversation.

[00:28:28] Speaker 00:
And I think that's part of why it's so important that Sergeant Oberth is talking about, look, my conversation was focused on our staffing problem.

[00:28:35] Speaker 00:
So he's not trying to imply that Mr. Schobert's medical treatment is going to be conditioned on this consent.

[00:28:44] Speaker 00:
He's trying to have

[00:28:45] Speaker 00:
a straightforward conversation with Mr. Showbert.

[00:28:49] Speaker 00:
You know, the questioning by defense counsel below is even let in with it.

[00:28:53] Speaker 00:
It looks like you were very transparent with Mr. Showbert about what was going on.

[00:28:56] Speaker 03:
And does it really matter what he thought?

[00:28:59] Speaker 03:
It matters what he said, right?

[00:29:01] Speaker 00:
It does.

[00:29:01] Speaker 00:
It does.

[00:29:02] Speaker 00:
But his thinking about it, since we do not have a recording of the interaction, informs what we think he probably said in the moment, right?

[00:29:11] Speaker 00:
Because we have to draw those reasonable inferences based on what we do have in the record.

[00:29:15] Speaker 00:
when we have both of these sheriff's deputies testifying consistently that they're trying to just make sure that these two needs are met, that the medical care and the medical furlough are taken care of, and they're competing needs, but that doesn't mean that Mr. Showbert necessarily understood based on the totality of the circumstances.

[00:29:33] Speaker 02:
Well, in reality, the medical is going to be taken care of no matter what.

[00:29:38] Speaker 02:
Absolutely.

[00:29:39] Speaker 02:
But there's a suggestion.

[00:29:40] Speaker 02:
I mean, here's page 67, which you referred to, and the deputy.

[00:29:45] Speaker 02:
My response to Mr. Schobert when he made that statement to me was that my only concern was that he get medical treatment that he needs as though we really want you to, we hope you do, but maybe you're not going to get it.

[00:29:58] Speaker 00:
No.

[00:29:59] Speaker 02:
Let's sign here.

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

[00:30:00] Speaker 00:
That's really not a fair reading of the record because there Sergeant O'Grath is explaining that that was his response to Schobert's offer to leave the hospital.

[00:30:10] Speaker 00:
which would have necessarily terminated his medical care at that point.

[00:30:14] Speaker 00:
So he's saying, no, you need to stay put and do what you gotta do.

[00:30:17] Speaker 00:
So we have this staffing problem that we need to solve, right?

[00:30:21] Speaker 00:
So I don't think that it's a fair inference from the record.

[00:30:23] Speaker 00:
And you had talked about that indication, right?

[00:30:27] Speaker 00:
And I think that what the district court is really saying when it's using that word, and may I wrap up my thought here?

[00:30:33] Speaker 00:
When it's using that word, he doesn't think that a reasonable person in Mr. Schobert's position

[00:30:38] Speaker 00:
would have inferred from the deputy's conversation what the defense wants the court to infer.

[00:30:44] Speaker 02:
I see your point on that.

[00:30:45] Speaker 02:
Let me ask you this question, just to finish up mine.

[00:30:48] Speaker 02:
And that is, if the panel disagreed with you and said, and disagreed with the district court, more importantly, that there was no indication that medical care was contingent upon agreeing to consent, would that mean reverse?

[00:31:05] Speaker 00:
I don't think so, Your Honor, because again, it's a totality of the circumstances analysis.

[00:31:09] Speaker 00:
So you have to sort of take the whole soup of everything that happened here and decide that that one fact is absolutely determinative.

[00:31:17] Speaker 00:
And the district court took all of the circumstances

[00:31:20] Speaker 00:
into account when making this ruling.

[00:31:22] Speaker 00:
And I think the fact that there was even back and forth shows that Mr. Schobert didn't feel cowed or overborn when rendering his consent.

[00:31:30] Speaker 03:
And this follows up on the question I asked the defense counsel, if it was in fact an indication or a suggestion

[00:31:36] Speaker 03:
I mean, it becomes in some part a question as a matter of law whether the totality of the circumstances and that suggestion that is being posited would be enough.

[00:31:46] Speaker 03:
What do you think would be the best case as a matter of law that would point in your direction of saying that even if, assuming argue window, that it is a suggestion or an indication, that nevertheless that would not have been sufficient to cowl a reasonable person or believe that reasonable person's will was over-born?

[00:32:04] Speaker 00:
I think really our best case is right back to Shekin law versus Bustamante, because the Supreme Court in that case was looking at whether or not law enforcement would be required, excuse me, the prosecution would be required in every case to prove the actual understanding of the defendants and his legal right to consent.

[00:32:24] Speaker 00:
And I think that's pretty analogous here, that essentially adopting the argument

[00:32:29] Speaker 00:
for Mr. Showbert here would require the prosecution to disprove the idea that he maybe could have been confused.

[00:32:38] Speaker 00:
And the best way to do that is to require the prosecution to warn him about all the legal consequences.

[00:32:42] Speaker 00:
And that's precisely what the court said was not required of the prosecution in Shekinloft.

[00:32:50] Speaker ?:
Thank you.

[00:33:01] Speaker 03:
Did you have some additional time or no?

[00:33:03] Speaker 04:
I have 11 seconds, Your Honor.

[00:33:05] Speaker 04:
Okay.

[00:33:05] Speaker 04:
Make it a minute, please.

[00:33:07] Speaker 04:
Thank you.

[00:33:07] Speaker 04:
I appreciate it.

[00:33:09] Speaker 04:
Your Honors, under the totality of the circumstances, there are no other factors that the district court found that would have neutralized the coercion years.

[00:33:18] Speaker 04:
The district court relied on the cordial conversation, the fact that my client wasn't handcuffed and that there was an open room to find in addition that this wasn't coercive.

[00:33:28] Speaker 04:
However, the fact is that my client was informed by implication.

[00:33:34] Speaker 04:
that he needed the consent to get his absolutely necessary medical treatment and overt threats, explicit statements that that's what's going to happen are not required.

[00:33:44] Speaker 04:
I cited Ferguson.

[00:33:46] Speaker 04:
Harrison is also a case I cited that shows that explicit threats are not necessary to coerce the defendant.

[00:33:54] Speaker 04:
And I see, Your Honor, as I'm out of time, I just respectfully ask that this court reverse.

[00:33:59] Speaker 03:
Thank you, Counsel.

[00:34:00] Speaker 03:
Thank you both for your fine arguments.

[00:34:02] Speaker 03:
The case is submitted.