[00:00:00] Speaker 01:
All right, United States versus Williams, number 237071.

[00:00:07] Speaker 01:
Counsel, you may proceed.

[00:00:10] Speaker 00:
Good morning, Your Honors.

[00:00:10] Speaker 00:
My name is Ben Hilfiger, and I represent the appellant in this case, Mr. Eric Williams.

[00:00:15] Speaker 00:
We respectfully request that the warrantless search in this case, or that the court find that this was a warrantless search and it was unreasonable, primarily due to the officer not having any reason to think that he was in danger.

[00:00:28] Speaker 00:
and that the evidence that they were looking for or searching for was in no way could have been touched or reached by Mr. Williams or the juvenile in this case who was the driver, Alfredo J.W.

[00:00:44] Speaker 01:
So you're making this argument based on Gantt at this point and not on the automobile exception.

[00:00:53] Speaker 01:
Is that correct?

[00:00:55] Speaker 01:
Yes, Your Honor.

[00:00:56] Speaker 01:
And why couldn't you have made that same argument in district court?

[00:01:01] Speaker 00:
Well, thank you for asking that, because I was going to start off with that issue, why I didn't do that.

[00:01:06] Speaker 00:
My reason was when we were going through the testimony and we were cross-examining, or I was cross-examining Trooper Kraft, he made a statement that I did not expect, that I didn't know was the issue here.

[00:01:20] Speaker 00:
And it was that he was, the entire time, nobody was allowed to leave.

[00:01:26] Speaker 00:
And I was taking this as a Terry stop where they could do a simple frisk.

[00:01:33] Speaker 00:
The first 20 minutes of this stop concerned following too closely, just a traffic stop.

[00:01:39] Speaker 00:
And he gave his paperwork back.

[00:01:42] Speaker 00:
They engaged in polite conversation.

[00:01:44] Speaker 00:
And that was with Trooper Craft and JW while Mr. Eric Williams was in the car the entire time.

[00:01:53] Speaker 00:
And it wasn't until

[00:01:55] Speaker 00:
That testimony, when he said no one was allowed to leave, he wasn't allowing anybody to leave.

[00:02:03] Speaker 00:
And I didn't realize that.

[00:02:05] Speaker 00:
But he wasn't under arrest, though.

[00:02:09] Speaker 00:
He was not arrested, was he?

[00:02:11] Speaker 00:
Well, excuse me, according to Trooper Kraft, he was not arrested, and he did say that, that he was not arrested.

[00:02:18] Speaker 02:
You knew that at the beginning, and it was not raised

[00:02:24] Speaker 02:
until on appeal.

[00:02:26] Speaker 02:
So why don't we have a well-seen waiver?

[00:02:30] Speaker 00:
Case finished.

[00:02:31] Speaker 00:
Well, Your Honor, so what happened during that nature during this whole from the hearing to the plea was about a 12-day time period.

[00:02:44] Speaker 00:
And in that time period, we were preparing for trial because that's where we thought we were going to go because there wasn't going to be any kind of plea unless a conditional plea is what

[00:02:53] Speaker 00:
was going to be agreed upon and that wasn't working out.

[00:02:57] Speaker 00:
So I was preparing for something else and that's what we were doing.

[00:03:02] Speaker 00:
Now, as far as his statement of the never being allowed to be detained during that hearing, I know I heard it, but it did not register as, oh, this is a separate issue.

[00:03:16] Speaker 00:
It wasn't until I received the transcript and began preparing for

[00:03:20] Speaker 00:
for this appeal that I realize that upon research that it was said and there is an issue that was brought upon that at this point it was after a sentencing when I came across that.

[00:03:33] Speaker 01:
Well, Counsel, didn't, when you were objecting to the magistrate's recommendations, you made an argument based on Miranda, correct?

[00:03:45] Speaker 00:
I did bring that up.

[00:03:47] Speaker 01:
Well, but for that Miranda argument,

[00:03:50] Speaker 01:
Wasn't that, didn't that have to be based on what Trooper Craft testified to about not being able to leave?

[00:03:58] Speaker 01:
Or otherwise you wouldn't have a Miranda argument.

[00:04:01] Speaker 01:
Right.

[00:04:02] Speaker 01:
He never... Well, but if you can make the Miranda argument based on Trooper Craft's testimony, you should be able to make the Gantt argument.

[00:04:12] Speaker 01:
Exactly.

[00:04:13] Speaker 01:
Because that would mean that they were under arrest.

[00:04:17] Speaker 01:
But you didn't.

[00:04:18] Speaker 01:
And so I'm back to Judge Kelly and why we don't have a waiver here, or failure to show good cause for bringing it up this late, or any of those things.

[00:04:32] Speaker 00:
Sure.

[00:04:32] Speaker 00:
So what I found is that good cause, it takes good cause and prejudice to get past the 12C3 waiver.

[00:04:43] Speaker 00:
Yes, the waiver that we're talking about here

[00:04:46] Speaker 00:
And my argument to the good cause is that I was preparing for trial.

[00:04:53] Speaker 00:
My direction had gone otherwise.

[00:04:56] Speaker 00:
And that objection was filed the day that he pled guilty.

[00:05:03] Speaker 00:
We weren't able to go through an entire transcript from a hearing and prepare for trial and negotiate a plea hearing.

[00:05:15] Speaker 01:
OK.

[00:05:18] Speaker 01:
Even if the Gantt argument were available to you, the government's still relying on the automobile exception to the warrant requirement.

[00:05:31] Speaker 01:
And that seemed to be the subject of the suppression hearing.

[00:05:36] Speaker 01:
But you don't contest that now.

[00:05:39] Speaker 01:
And the government says in its brief

[00:05:44] Speaker 01:
Gantt left the automobile exception to the warrant requirement intact.

[00:05:48] Speaker 01:
Do you disagree with that?

[00:05:50] Speaker 00:
In that the warrant requirement, I believe, was necessary because I believe they were under arrest when that car was searched.

[00:06:04] Speaker 04:
Well, even if they were, the district courts already found there was probable cause for the search.

[00:06:10] Speaker 04:
Probable cause for the... And you don't challenge that.

[00:06:12] Speaker 04:
I'm confused.

[00:06:13] Speaker 00:
So the Gantt case would say that even if there is probable cause for the search, if they were arrested and the officer was not in any, there was no concern for his safety and there was no concern that the defendants or the, the arrestees were, could obtain the evidence, make it run away or drive off with it or destroy it in any way, then the officer would be obligated to get a warrant.

[00:06:45] Speaker 00:
And that's where I believe he failed is that when these two individuals were taken, well, JW was never allowed out of the police car.

[00:06:55] Speaker 00:
Um, but when Eric Williams was brought from the police car, there was, there was a showing of authority from Trooper Craft that he, that he was, had to do what Trooper Craft was having to say.

[00:07:07] Speaker 00:
He did pull him out of the car, frisk him, bring him back to the police car, direct him or the trooper car.

[00:07:13] Speaker 00:
and direct him into the back seat of that vehicle.

[00:07:16] Speaker 00:
He was not allowed to leave.

[00:07:19] Speaker 00:
He wasn't able to leave.

[00:07:20] Speaker 00:
He was in the back of a trooper vehicle.

[00:07:23] Speaker 00:
I think the showing of force, the intrusion into what the original stop was changed that into an arrest.

[00:07:34] Speaker 01:
But you agree that if there wasn't an arrest, Gantt wouldn't even apply, correct?

[00:07:38] Speaker 01:
I'm sorry.

[00:07:39] Speaker 01:
Does Gantt not apply when there's not an arrest?

[00:07:43] Speaker 00:
Correct.

[00:07:43] Speaker 00:
Grant says arrestees.

[00:07:45] Speaker 00:
And so an arrest would need to apply.

[00:07:48] Speaker 00:
Trooper Kraft in this case did state in his testimony that they were not arrested, but he knew from the beginning of the stop when he first approached the car that he was going to search the car.

[00:08:01] Speaker 00:
So he brings JW back in, talks about the conversation while he runs his, gets his papers and his ID and everything checked out.

[00:08:11] Speaker 00:
20 minutes passed and he allows him to go.

[00:08:14] Speaker 00:
Well, I take that back.

[00:08:16] Speaker 00:
It looked like he allowed him to go.

[00:08:18] Speaker 00:
Trooper Kraft did testify that JW was never allowed to go.

[00:08:22] Speaker 00:
And that's when he changes his entire line of questioning to the use of marijuana in the car or that he smelled marijuana.

[00:08:31] Speaker 00:
I think what he had said was he had asked if he was smoking marijuana.

[00:08:35] Speaker 00:
JW said, no.

[00:08:36] Speaker 00:
And Trooper Kraft said, well, because it smells like it.

[00:08:39] Speaker 00:
This conversation merged at about the 20, 21 minute mark from the arrest, the Terry stop, to trafficking, to drug use in the vehicle.

[00:08:55] Speaker 00:
And I think at that point is when the detainment for the traffic stop turned into an arrest.

[00:09:03] Speaker 00:
And I think it goes even further from

[00:09:07] Speaker 00:
When he tells him, stay in here, and then Trooper Kraft tells JW to stay in the vehicle, then he gets out, goes over to Eric Williams, pulls him out of the car, frisks him, and brings him back into the trooper car, sits him in the back seat.

[00:09:21] Speaker 00:
They weren't allowed to leave.

[00:09:23] Speaker 00:
They were essentially in their own cell.

[00:09:27] Speaker 04:
Could I raise another issue?

[00:09:28] Speaker 04:
The government, the appeal waiver issue, the government raises that, and then you didn't respond to the appeal waiver.

[00:09:37] Speaker 04:
You waived the right to appeal everything except the motion to suppress.

[00:09:42] Speaker 04:
The problem is the motion to suppress was not made on this basis.

[00:09:46] Speaker 04:
It was a different motion to suppress.

[00:09:49] Speaker 04:
So why haven't you also, as the government suggests, waived the appeal and then waived it again by not responding to the government's appeal waiver argument?

[00:10:02] Speaker 00:
Your Honor, I felt that the appeal, or I'm sorry, that the suppression

[00:10:07] Speaker 00:
was under one blanket, and we were still arguing the suppression of the same set of facts that had never changed.

[00:10:16] Speaker 04:
But you didn't respond to that, which is also a waiver, you know.

[00:10:19] Speaker 00:
I do.

[00:10:21] Speaker 00:
I understand.

[00:10:22] Speaker 04:
You should respond to that with some authority that would indicate, and I'm not aware of any, that you can raise a new issue, a totally new issue, when you've preserved the right to appeal the denial of a motion to suppress.

[00:10:33] Speaker 00:
Right.

[00:10:34] Speaker 04:
I'm not aware of any authority that would have allowed you to do that.

[00:10:37] Speaker 00:
No, you're correct.

[00:10:39] Speaker 04:
I have not seen the authority that even if the issue changes that the... No, I'm saying I don't know of any authority that would allow you to appeal the denial of a motion to it's suppressed when you're making a different argument.

[00:10:52] Speaker 04:
It's a whole new suppression issue.

[00:10:54] Speaker 00:
The only theory that I can maybe point you to are the cases that talk about good cause for why it didn't happen.

[00:11:06] Speaker 00:
And that is good cause of prejudice.

[00:11:07] Speaker 00:
But that's not on the appeal waiver.

[00:11:09] Speaker 04:
That's on the Torsi three.

[00:11:10] Speaker 04:
So are you agreeing that your appeal is waived?

[00:11:12] Speaker 00:
No.

[00:11:12] Speaker 00:
I'm not agreeing that the appeal is waived because we're still arguing for the same set of facts that haven't changed and that can still be brought upon.

[00:11:20] Speaker 00:
He's not waiving.

[00:11:24] Speaker 00:
his right to, this right to appeal.

[00:11:31] Speaker 00:
I did want to go back briefly on the 12C3, where what I can tell is that it requires good cause of prejudice.

[00:11:42] Speaker 00:
The good cause I was talking about, I mean, I've already talked about that, where we had a short amount of time.

[00:11:49] Speaker 00:
I didn't have transcript to be able to

[00:11:53] Speaker 00:
engage in what was said at that hearing.

[00:11:56] Speaker 00:
And I think that from what I can tell from what the government filed in their briefs, that most of the cases they cited, it didn't appear as if anybody had made an effort for good cause.

[00:12:07] Speaker 00:
Or if they did, it just wasn't allowed.

[00:12:10] Speaker 00:
But it didn't appear to me in a lot of those cases, they made an effort.

[00:12:13] Speaker 00:
And I'd like to acknowledge that I have made an effort for good cause.

[00:12:16] Speaker 00:
Now, when it goes on to prejudice.

[00:12:19] Speaker 01:
Well, let me just ask you.

[00:12:22] Speaker 01:
In addition to showing good cause, now that we're on appeal, do you also have to show plain error in addition to good cause?

[00:12:32] Speaker 00:
Well, my understanding was that the 12C3 waiver, I'm sorry.

[00:12:41] Speaker 01:
Well, let me back up and rephrase.

[00:12:44] Speaker 01:
If you didn't argue Gantt in district court, so the district court didn't have the benefit of considering that argument,

[00:12:51] Speaker 01:
And now you're arguing it here.

[00:12:56] Speaker 01:
Why wouldn't that be a classic forfeiture of the issue in district court such that to avoid waiver now, you have to show plain error?

[00:13:10] Speaker 01:
And have you shown plain error?

[00:13:13] Speaker 00:
Well, what I can reply to that with is that they're asking for good cause why it didn't happen.

[00:13:20] Speaker 01:
Yeah, I understand that.

[00:13:23] Speaker 01:
And I don't think anyone's arguing whether you have to show good cause.

[00:13:26] Speaker 01:
My question is, on top of that, do you have to show plain error?

[00:13:34] Speaker 00:
I don't know the answer to that.

[00:13:37] Speaker 00:
I don't.

[00:13:38] Speaker 00:
I have not researched the plain error on whether or not I would have to show that.

[00:13:43] Speaker 00:
I do have a minute 15 left.

[00:13:45] Speaker 00:
I'd like to reserve that time.

[00:13:46] Speaker 00:
Sure.

[00:13:47] Speaker 00:
Thank you.

[00:13:56] Speaker 01:
So Ms.

[00:13:57] Speaker 01:
Williams, I realize now I said you were excused earlier.

[00:14:01] Speaker 01:
So I apologize for that.

[00:14:02] Speaker 01:
And I just want to thank you for coming back.

[00:14:04] Speaker 03:
Well, I just want you to know, Your Honor, I don't make a habit of disregarding court orders.

[00:14:09] Speaker 03:
But I figured I should probably disregard that.

[00:14:12] Speaker 01:
No, that might be my mistake.

[00:14:14] Speaker 03:
Good morning.

[00:14:15] Speaker 03:
Lisa Williams, representing the United States of America.

[00:14:18] Speaker 03:
May it please the court.

[00:14:23] Speaker 03:
I want to pick up, Judge Matheson, where you left off with the standard of review reviewing the Gantt claim.

[00:14:29] Speaker 03:
The government did argue the generalized motion to suppress standard of review in its brief.

[00:14:35] Speaker 03:
I do think that the court's correct that if you were to reach the substantive issue of the Gantt argument, it would be under plain error because it wasn't argued to the district court and it was forfeited.

[00:14:45] Speaker 03:
Obviously, the government didn't include plain error in its brief.

[00:14:48] Speaker 03:
This court is free to apply the correct standard of review.

[00:14:53] Speaker 03:
But I do think that you're right about that.

[00:14:55] Speaker 03:
However, the government doesn't feel that the court needs to reach the merits of the Gantt argument and, in fact, would suggest to the panel that the strongest way to resolve this issue is by dismissing the appeal because of the appeal waiver contained in the party's plea agreement.

[00:15:14] Speaker 03:
The plea agreement clearly indicates that the defendant reserves the right to appeal.

[00:15:19] Speaker 03:
Defendants motion to suppress.

[00:15:21] Speaker 03:
Defendant motion and suppress are all in capital letters.

[00:15:25] Speaker 03:
It clearly refers to the written motion to suppress that was filed before the district court.

[00:15:29] Speaker 03:
It doesn't contemplate bringing up new issues on appeal.

[00:15:33] Speaker 03:
It's the four corners of that motion.

[00:15:36] Speaker 01:
Does the appeal waiver actually say that?

[00:15:41] Speaker 01:
Yes.

[00:15:41] Speaker 01:
In other words,

[00:15:43] Speaker 03:
It's on page four of the plea agreement.

[00:15:46] Speaker 03:
And it says, the defendant reserves the right to appeal defendant's motion to suppress and reserves the right to appeal from a sentence which exceeds the statutory maximum.

[00:15:57] Speaker 01:
I'm just trying to see if there's a way to interpret that a little more broadly than saying, oh, it has to be precisely what was in the motion.

[00:16:10] Speaker 01:
I mean, there was a motion to suppress.

[00:16:14] Speaker 01:
It seems like, especially when we're talking about a defendant waiving an opportunity to appeal, maybe something a little more specific should have been included than just saying motion to suppress.

[00:16:29] Speaker 01:
I mean, you can interpret it that, well, it's the motion to suppress as presented, or maybe it's just

[00:16:38] Speaker 01:
The defendant is arguing that the evidence should be suppressed for whatever reason.

[00:16:43] Speaker 03:
So because of the capitalization of defendant's motion to suppress and making that into a pronoun, the government would argue that it refers specifically to

[00:16:56] Speaker 03:
the defendants, and there was only one motion to suppress, so we can't be confused about which one.

[00:17:01] Speaker 01:
And I understand, Judge, right?

[00:17:03] Speaker 01:
Is this the capitalization canon of interpretation?

[00:17:06] Speaker 03:
I believe so, Your Honor.

[00:17:08] Speaker 03:
And I understand where the court's coming from, right?

[00:17:11] Speaker 03:
When you're going to enforce an appeal waiver, you want to make all inferences in favor of the defendant, and you've got to be careful about doing that.

[00:17:17] Speaker 03:
So I think that's a fair question to ask.

[00:17:20] Speaker 03:
But if the defendant wanted to reserve all issues related to

[00:17:23] Speaker 03:
the search of the vehicle, that's what should have been written into this bargain for agreement between the defendant and the government.

[00:17:30] Speaker 03:
But that's not what the language of the agreement holds.

[00:17:36] Speaker 02:
Council, can you cite us to any case where appeal or where a waiver of the plea agreement precludes review of an issue that was expressly reserved

[00:17:49] Speaker 02:
Because the argument was beyond the scope of those presented to the district court.

[00:17:56] Speaker 03:
No, I don't think I can.

[00:17:57] Speaker 02:
You're on your own.

[00:17:59] Speaker 03:
OK, thank you.

[00:18:04] Speaker 03:
And what's important is that defendant concedes in the reply brief.

[00:18:08] Speaker 03:
that this issue is outside of his original motion to suppress.

[00:18:12] Speaker 03:
So there's no debate that this was ever argued before the district court.

[00:18:16] Speaker 03:
So the government believes that the cleanest way for the court to resolve it is on dismissing the appeal and enforcing the waiver of appeal in the participatory agreement.

[00:18:25] Speaker 01:
any cleaner than failure to show good cause?

[00:18:28] Speaker 03:
Well, that's a determination.

[00:18:31] Speaker 03:
There's no good cause exception when you're enforcing the plea agreement.

[00:18:34] Speaker 03:
And so that's what I mean by cleaner.

[00:18:36] Speaker 03:
The court will have to reach the issue of whether or not counsel has presented good cause as to why he didn't raise the issue.

[00:18:44] Speaker 03:
I'm a trial attorney, too.

[00:18:47] Speaker 03:
I'm sympathetic to the crunch of time that exists between your suppression issue and preparing for trial.

[00:18:54] Speaker 03:
And there's a lot going on.

[00:18:55] Speaker 03:
And I don't know for sure, but I can almost guarantee that Mr. Williams isn't Mr. Hilfiger's only client.

[00:19:01] Speaker 03:
So it's certainly sympathetic to the time constraints.

[00:19:04] Speaker 03:
But I didn't see a case where time constraint on defense counsel rose to the level that would constitute good cause as to excuse the failure to raise an issue before the district court.

[00:19:18] Speaker 03:
You can ask for a continuance.

[00:19:20] Speaker 03:
You can tell the district court you need more time to fully delve into the issues.

[00:19:25] Speaker 03:
But again, I don't think that the circumstances here rise to the level of good cause.

[00:19:31] Speaker 03:
Then of course, the third way for the court to affirm the district court is to reach the issue on the merits.

[00:19:41] Speaker 03:
Gantt only really comes into play when a defendant is arrested.

[00:19:47] Speaker 03:
Here the district court made a finding of fact that neither JW or the defendant were under arrest at the time of the search.

[00:19:54] Speaker 03:
And that came within the Miranda context, because that was raised before the court that they should have been provided Miranda warnings.

[00:20:00] Speaker 03:
And the district court said, no, they were detained.

[00:20:02] Speaker 03:
They weren't under arrest.

[00:20:04] Speaker 03:
And it wasn't until they were arrested that Miranda had to be given, and then they were provided with Miranda.

[00:20:09] Speaker 03:
So again, this kind of brings us back to the standard of review.

[00:20:14] Speaker 03:
Even under what the government wrote as a standard of review, that's a finding of fact that the defendant hasn't really

[00:20:24] Speaker 03:
been able to show this court should disregard, and it shouldn't, because what would they have been arrested for?

[00:20:31] Speaker 03:
That's the overarching question, right?

[00:20:34] Speaker 03:
There's nothing to arrest them for at the time they searched the vehicle.

[00:20:38] Speaker 03:
They had written the warning for the following two clothes, so they couldn't arrest the driver for that.

[00:20:42] Speaker 03:
And they had seized nothing else.

[00:20:44] Speaker 03:
You can't arrest someone because their car smells like ground marijuana, right?

[00:20:47] Speaker 03:
You actually have to find the marijuana.

[00:20:48] Speaker 03:
So there was not a single offense that they could have been arrested for.

[00:20:52] Speaker 03:
Instead, they were detained.

[00:20:53] Speaker 03:
And because of that, Gantt doesn't apply.

[00:20:56] Speaker 03:
And they were able to search the vehicle pursuant to probable cause of finding that the defense doesn't challenge on appeal.

[00:21:03] Speaker 01:
So under either of those three scenarios, the government... Well, didn't you just state a fourth way that there isn't any challenge to the probable cause determination?

[00:21:14] Speaker 03:
Well, correct.

[00:21:15] Speaker 03:
And that's what was challenged before the district court, that there wasn't sufficient probable cause to search the vehicle which the district court rejected.

[00:21:23] Speaker 03:
But on appeal, the defense is no longer challenging probable cause.

[00:21:28] Speaker 01:
That's why I was asking.

[00:21:29] Speaker 01:
Yes.

[00:21:30] Speaker 03:
And so that's, I guess, a separate fourth ground for the court to decide this case.

[00:21:38] Speaker 03:
If there are no other questions from the panel, the government would rest on the remaining of its briefing.

[00:21:42] Speaker 01:
Thank you, counsel.

[00:21:49] Speaker 00:
Your Honor, as I said, one,

[00:21:51] Speaker 00:
brief rebuttal based on public counsel said there's no reason for an arrest to occur.

[00:21:59] Speaker 00:
There's a US Supreme Court case, I believe it was Florida v. Royer, where a gentleman got off an airplane and due to him looking nervous and having, I think they said dressed too casually, they found reason to detain him and they pulled him out of the main public area of the

[00:22:21] Speaker 00:
airport and took him to a detention area.

[00:22:24] Speaker 00:
And in that detention area, they interrogated him and talked to him and got him to admit, give consent to the briefcase, which ultimately did have drugs inside of it.

[00:22:38] Speaker 00:
But the court did rule that because he was in that detained area and he was not allowed to leave, and a reasonable person would believe they were under arrest, that he was, practically speaking, under arrest in

[00:22:52] Speaker 00:
Reasons for arrest up to that time, I don't believe were there.

[00:22:56] Speaker 00:
This was before they had found the marijuana, because that is what was suppressed.

[00:23:00] Speaker 00:
And same here from what the counsel was saying that there didn't appear to be any reason for arrest.

[00:23:06] Speaker 00:
It was all the other underlying factors of what was going on that made him feel that he was arrested.

[00:23:12] Speaker 00:
Thank you.

[00:23:14] Speaker 01:
Thank you, counsel.

[00:23:17] Speaker 01:
I think we've...

[00:23:20] Speaker 01:
used all our time, and we can take the cases submitted.

[00:23:27] Speaker 01:
Counsel are excused, and this time, Ms.

[00:23:29] Speaker 01:
Williams, you really are excused.

[00:23:30] Speaker 01:
The court will stand in recess.