[00:00:00] Speaker 02:
We'll call United States versus Williams at stock at 24-1510.

[00:00:05] Speaker 02:
Ms.

[00:00:06] Speaker 02:
Johnson, please proceed when you're ready.

[00:00:09] Speaker 03:
Thank you.

[00:00:10] Speaker 03:
May it please the court?

[00:00:11] Speaker 03:
My name is Gail Johnson, and I represent Kylier Williams in this direct appeal from the denial of his motion to suppress.

[00:00:22] Speaker 03:
The question before the court is whether the warrantless search of the vehicle that Mr. Williams was driving

[00:00:28] Speaker 03:
Can be justified as reasonable under the 4th amendment as an allowable protective sweep that was supported by concerns for officer safety.

[00:00:39] Speaker 03:
Now the government bears the burden of showing that this warrantless search was reasonable.

[00:00:44] Speaker 03:
And in order to do that in this case, they need to show.

[00:00:47] Speaker 03:
that the search was supported by two different, by reasonable, articulable suspicion of two different prongs.

[00:00:54] Speaker 03:
First, that the suspects posed an immediate or present danger to officers or others.

[00:00:59] Speaker 03:
And second, that that suspect might gain access to a weapon.

[00:01:03] Speaker 03:
Here, the government doesn't get past the first prong because we have a distinction between the person they think is dangerous and the person that they're supposedly protecting themselves from.

[00:01:17] Speaker 03:
Namely, the government agrees here that Mr. Williams, who was in custody handcuffed in a patrol car more than 25 feet away from the vehicle in question, he wasn't posing a threat to officer safety at the time of the protective sweep.

[00:01:32] Speaker 03:
So the government's theory here, which the district court adopted, is that the danger was posed by Mr. Williams's girlfriend, Ms.

[00:01:39] Speaker 03:
Richardson.

[00:01:42] Speaker 03:
You'll need to unlock your iPhone first.

[00:01:49] Speaker 03:
I apologize your honor, I'm not sure how that came up.

[00:01:53] Speaker 03:
I've turned it off, won't happen again.

[00:01:55] Speaker 03:
The government spends all its time talking about dangerousness with respect to Mr. Williams, but they don't disagree that Mr. Williams didn't pose a danger to the officers at the time of the protective suite.

[00:02:06] Speaker 03:
Now, the notion that simply by dint of the romantic relationship between Mr. Williams and Ms.

[00:02:13] Speaker 03:
Richardson, Ms.

[00:02:14] Speaker 03:
Richardson herself posed an immediate or present danger to the officers,

[00:02:19] Speaker 03:
and might gain access to weapon that theory in our view is based on the exact kind of inchoate suspicions and unparticularized hunches that the Fourth Amendment clearly prohibits.

[00:02:31] Speaker 03:
I know the court has read the briefs, but to really quickly summarize the facts, Ms.

[00:02:35] Speaker 03:
Richardson had no warrants.

[00:02:38] Speaker 03:
She had a valid driver's license.

[00:02:39] Speaker 03:
She owned the car.

[00:02:41] Speaker 03:
There was no indication that she or Mr. Williams, for that matter, had committed any crime that evening.

[00:02:47] Speaker 03:
Again, Mr. Williams was pulled over in a routine traffic stop for failing to signal a left turn.

[00:02:52] Speaker 03:
And Ms.

[00:02:55] Speaker 03:
Richardson, I think this is clear from the videos and the officers' reports, was 100% compliant, cooperative, and polite with the officers.

[00:03:06] Speaker 03:
So I know the government relies somewhat on these common enterprise cases, such as Dennison and perhaps Faker, and I do want to address that briefly.

[00:03:14] Speaker 03:
Those cases involve situations where either one of the individuals in the car was a suspect in a particular crime that had just occurred that evening, or where one of the individuals in the car had made a suspicious furtive gesture, or both of those factors.

[00:03:31] Speaker 03:
Neither of those factors are present here.

[00:03:33] Speaker 03:
The officers observed no furtive gestures from either Mr. Williams or Ms.

[00:03:38] Speaker 03:
Richardson at any time.

[00:03:40] Speaker 03:
And there was no suspicion or report that the officers were following up on or any indication whatsoever that either of them had been involved in a crime that had just occurred.

[00:03:57] Speaker 03:
So I'd ask the court to reverse the judgment of conviction and remand with directions to grant the motion to suppress, but I'd be happy to answer any questions the court may have.

[00:04:09] Speaker 03:
and seeing none, if I may reserve my remaining time for rebuttal.

[00:04:13] Speaker 03:
Thank you.

[00:04:17] Speaker 02:
Mr. Grewell, when you are ready.

[00:04:21] Speaker 01:
May it please the court, Bishop Grewell on behalf of the United States.

[00:04:24] Speaker 01:
In Mr. Williams' response to our 28-J letter about the McGregor decision, he effectively conceded that he himself, that there was reason for the officers to suspect that he himself was armed and dangerous.

[00:04:38] Speaker 01:
The only distinction they raise is basically whether that reasonable suspicion could then be attributed to his girlfriend who would be allowed back in the car.

[00:04:47] Speaker 00:
Under the Denison decision- Just how could that happen?

[00:04:50] Speaker 00:
How could that suspicion about whether

[00:04:52] Speaker 00:
this defendant might have been armed and dangerous if he were in the vehicle, which he wasn't, because he was handcuffed, arrested in the squad car.

[00:05:02] Speaker 00:
How is it that somehow we're gonna just assume that this girlfriend who is courteous, polite, cooperative, does nothing absolutely out of the ordinary, has her registration papers, owns the vehicle, has a valid driver's license, and is ready to drive the car home,

[00:05:23] Speaker 00:
What are we possibly basing an assumption on that there's reasonable suspicion that she is both armed and dangerous at this point?

[00:05:36] Speaker 01:
Because all of those same facts that you raised, Your Honor, were true of Mr. Dennison.

[00:05:40] Speaker 00:
What does that have to do with particularized suspicion about the occupant of the vehicle, which is what is required?

[00:05:48] Speaker 00:
What do we know about this occupant?

[00:05:51] Speaker 00:
which was the girlfriend at this point, to indicate that she was somehow armed and dangerous.

[00:05:59] Speaker 01:
The same thing that we knew about Mr. Denison in that case.

[00:06:02] Speaker 01:
We knew that she had been in this small car in a high crime area late at night.

[00:06:09] Speaker 01:
That is what you had for Mr. Dennison.

[00:06:11] Speaker 01:
He showed his identification.

[00:06:13] Speaker 01:
He owned the car.

[00:06:14] Speaker 00:
We got a lot more for Mr. Dennison.

[00:06:16] Speaker 00:
I mean, there's all kinds of stuff.

[00:06:19] Speaker 00:
He was nervous.

[00:06:20] Speaker 00:
He avoided eye contact.

[00:06:21] Speaker 00:
He listed the Denver Detention Center as his residence.

[00:06:24] Speaker 00:
He admitted he'd been locked up for an organized crime violation.

[00:06:29] Speaker 00:
He admitted he was a member of a gang.

[00:06:31] Speaker 00:
He had a tattoo on his forehead showing he was a member of the gang.

[00:06:34] Speaker 00:
He had two active arrest warrants and he had a history of weapons offenses.

[00:06:38] Speaker 00:
What does that have to do with whether his girlfriend was armed and dangerous?

[00:06:46] Speaker 01:
Sorry, I'm not comparing her to Mr. Williams.

[00:06:49] Speaker 00:
What else do you have?

[00:06:52] Speaker 01:
I'm trying to compare her to Mr. Dennison in the Dennison case, who was just like Ms.

[00:06:57] Speaker 01:
Williams, or Mr. Williams' girlfriend.

[00:07:00] Speaker 02:
It's a completely different situation, really, Dennison, where you have these gentlemen who were parked, where they were parked, and the concerns about that.

[00:07:13] Speaker 02:
And one of them, they're looking to be in concert in criminal activity.

[00:07:20] Speaker 02:
She's a passenger in an automobile.

[00:07:22] Speaker 02:
that gets pulled over for a blinker violation.

[00:07:25] Speaker 02:
If you're saying that Denison controls this case, then I'm not sure I could agree with that.

[00:07:31] Speaker 02:
And I guess I'd ask you this.

[00:07:33] Speaker 02:
Do you think that by, if we were to agree with you in this case, that we would be extending the circumstances in which protective sweeps are allowed in the circuit by a good margin?

[00:07:47] Speaker 01:
No, I think, again, I think this is narrower than Denison.

[00:07:51] Speaker 01:
In Denison, what this court relied on was the fact when you look at the actual analysis where they talk about Ibarra and the rest and they conclude that Mr. Denison that there was reason to do a Michigan V long search on him.

[00:08:02] Speaker 01:
The three things they look at the fact that he was in this small car in this primary.

[00:08:10] Speaker 01:
To the extent there are other facts in there, they didn't rely on those.

[00:08:12] Speaker 01:
But if you want to talk about those facts that suggest perhaps there was other criminal activity going on here, likewise with Ms.

[00:08:18] Speaker 01:
Williams in the car, you have the fact that she is with a person who's an admitted gang member in a gang area where there's rival gangs in high primary that she is likely to... That might indicate she has poor judgment.

[00:08:31] Speaker 00:
but that doesn't indicate that she's a romantic partner.

[00:08:35] Speaker 00:
There's no question.

[00:08:36] Speaker 00:
That's what they see her as.

[00:08:37] Speaker 00:
She's a girlfriend, whatever the terminology you wanna do, but there's no evidence that they were in some kind of joint illegal enterprise.

[00:08:47] Speaker 00:
She had a valid driver's license.

[00:08:49] Speaker 00:
She owned the car.

[00:08:50] Speaker 00:
She produced the registration papers.

[00:08:52] Speaker 00:
She's driving with her boyfriend.

[00:08:56] Speaker 00:
What is the evidence that the two of them were conducting some sort of illegal

[00:09:01] Speaker 00:
enterprise together, because that's what you're talking about with Denison.

[00:09:06] Speaker 01:
There was not evidence in Denison that Mr. Denison had done anything wrong, that he was involved in any criminal activity.

[00:09:13] Speaker 00:
Were they in a romantic partnership in that case?

[00:09:17] Speaker 01:
No, which makes the facts here stronger.

[00:09:19] Speaker 01:
There was more reason for Mr. Williams' girlfriend to get involved than just some other person who happens to be in the car with Mr. Allen.

[00:09:27] Speaker 02:
So are you arguing for a per se rule then that if your boyfriend's in a gang and in a certain part of town and doesn't use his blinker, no matter how compliant you are, no matter how polite you are to the officers, no matter that they have flashlights shining in your car as you go through the glove box and find your registration and they can see every inch of the inside of the car with the flashlight that they can see with the flashlight,

[00:09:55] Speaker 02:
that per se, that's good enough, you're the girlfriend and therefore we're doing a protective suite and we're gonna pat you down with a male officer and then we're gonna stand you behind the car and hand cut you while we go through your car.

[00:10:08] Speaker 02:
That's just the way it is now.

[00:10:10] Speaker 01:
So, so I'm not arguing for per se rule I would actually also some of those facts are not true she was not handcuffed until they found the weapon in the vehicle she was brought to the back of the car but she's not handcuffed at that point.

[00:10:22] Speaker 01:
But what we're arguing for is that the this court should continue to follow the facts of Denison, where again,

[00:10:28] Speaker 01:
All that they had there that the court relied on was small car, late at night, high crime area.

[00:10:36] Speaker 01:
And the fact that Mr. Allen there had these outstanding warrants, like Mr. Williams here, this court concluded that it was fair to conclude

[00:10:44] Speaker 01:
that because of that situation, small car, late at night, high crime area, it was fair to conclude Mr. Dennison being in that vehicle likely knew about Mr. Allen's outstanding warrants, much like it's fair to conclude that, in fact, more fair to conclude that the girlfriend here likely knew about the outstanding warrants and therefore would want to intervene.

[00:11:04] Speaker 00:
What would she want to do?

[00:11:05] Speaker 00:
What is, what

[00:11:06] Speaker 00:
Even if there's some inference that could be made, some reasonable inference that they're somehow in some sort of joint enterprise.

[00:11:17] Speaker 00:
I mean, what's happened here is that he has not used his signal on a left turn.

[00:11:23] Speaker 00:
So what makes us think that even if they're in some kind of joint enterprise, despite the lack of any evidence on her side of that, that she's going to turn around and she's going to take her car

[00:11:36] Speaker 00:
that she has a registration for with her valid driver's license after being very nice to the officers and somehow she's going to access the weapon they believe to be there that probably belongs to him.

[00:11:47] Speaker 00:
And she's going to use that weapon on these officers.

[00:11:52] Speaker 00:
Is that the dangerous aspect of it?

[00:11:54] Speaker 00:
Is that the inference that we're making here?

[00:11:56] Speaker 00:
Why is she dangerous?

[00:11:58] Speaker 01:
The court here below concluded that was a fair conclusion to reach, and it can do so because there's actually more here again than there was with Mr. Dennison.

[00:12:07] Speaker 02:
And Dennison... Pause on that.

[00:12:09] Speaker 02:
Let's just let's get our Dennison's back straight.

[00:12:12] Speaker 02:
Because looking at the opinion here, what happens is the policeman encounters these two men at approximately 3 a.m.

[00:12:23] Speaker 02:
And where are they parked?

[00:12:24] Speaker 02:
They're parked at an Englewood, Colorado apartment complex that has had a high incidence of nighttime car theft.

[00:12:31] Speaker 02:
You're comparing that to being the girlfriend of someone who doesn't use their blinker?

[00:12:36] Speaker 01:
No, I'm comparing that to being in a car with somebody who is in an area.

[00:12:41] Speaker 01:
Mr. Allen, there wasn't even a traffic stop violation there.

[00:12:45] Speaker 01:
I'm comparing it to a person who is in a car with somebody who is a gang member in an area where there are tons of rival gangs, where the officers talked about it being an open air drug market, murders, robberies, and all sorts of those things going on.

[00:12:59] Speaker 02:
So per se rule if you're in that area.

[00:13:03] Speaker 02:
It's a per se rule of protective sweep if you're in that area and your boyfriend's in a gang.

[00:13:09] Speaker 02:
No matter how polite, no matter how compliant.

[00:13:13] Speaker 01:
I think it follows from the backs of Denison, your honor, that yet if it's late at night, you are sharing this car with somebody with somebody in a high crime area has these outstanding.

[00:13:24] Speaker 02:
Don't you see what you see in Denison, the connection there that the cops are concerned that they're going to steal cars because cars have been regularly stolen in that area, which is probably why the policeman's even patrolling there.

[00:13:38] Speaker 02:
And they're at three in the morning in a parked car in that area.

[00:13:43] Speaker 02:
You're likening that to driving through a public thoroughfare?

[00:13:50] Speaker 01:
The reason I'm likening it to it is because again, we're not talking about whether there's PC to search a car here.

[00:13:56] Speaker 01:
We're not concerned for Michigan to be law on purposes about whether a crime is occurring.

[00:14:01] Speaker 01:
We're concerned about whether there's a danger to the officers.

[00:14:04] Speaker 01:
What danger is presented to the officers?

[00:14:07] Speaker 01:
Could they be shot on the way, leaving the stop by somebody who's gonna get back in the car?

[00:14:11] Speaker 02:
And so I don't- So let me just make sure I understand.

[00:14:14] Speaker 02:
What we're supposed to go for is that this woman who's been compliant, who is lawful in all respects with their automobile registration, with everything that's been asked of her has been compliant, who you cannot ask for a more polite person at a stop like this if you look at the video.

[00:14:34] Speaker 02:
And yet her boyfriend is now under arrest.

[00:14:38] Speaker 02:
He has active warrants.

[00:14:40] Speaker 02:
He's in the back of a patrol car.

[00:14:42] Speaker 02:
And despite no firearm being seen with the flashlights, the glove box, obviously there's not one in there because she's rifled through there trying to find a registration with flashlight light shining on it, that she's going to get in her car and she's going to come out firing to save her boyfriend despite there being multiple cops, police officers.

[00:15:04] Speaker 02:
That's what we're supposed to believe.

[00:15:06] Speaker 01:
And Your Honor, with due respect, the facts were the exact same in Denison, but perhaps worse here, Mr. Denison was cooperative throughout the process.

[00:15:17] Speaker 01:
There was no gun that had been seen.

[00:15:19] Speaker 01:
If you read Denison, the court makes a point of there was no reason to suspect Mr. Denison based on anything about his behavior, anything in his background.

[00:15:27] Speaker 01:
He owned the car.

[00:15:29] Speaker 01:
He had an identification.

[00:15:31] Speaker 00:
He was there with the lights off.

[00:15:33] Speaker 00:
in this car at 3 a.m.

[00:15:35] Speaker 00:
with the lights off, with this other driver, when asked why they were there, they said, well, we're here waiting for a tow for this other vehicle, not the one we're in, but this other vehicle that's down the way, the two of them.

[00:15:49] Speaker 00:
I mean, there were suspicious circumstances in a very high crime area where there'd been a lot of stuff going on.

[00:15:57] Speaker 00:
This is not 3 a.m.

[00:15:59] Speaker 00:
This is not two men sitting in a car at 3 a.m.

[00:16:02] Speaker 00:
in a high crime area.

[00:16:03] Speaker 00:
who have a story that doesn't necessarily work.

[00:16:06] Speaker 00:
This is one individual failing to use his blinker and his romantic partner who's in the car being extremely cooperative, not providing any answers or any information that is inconsistent or is suspicious.

[00:16:23] Speaker 00:
And she's ready to drive the car off.

[00:16:25] Speaker 00:
In fact, she's told she can drive the car off by at least one officer.

[00:16:29] Speaker 00:
And then suddenly they decide

[00:16:31] Speaker 00:
They need to do a sweep because she is potentially armed and dangerous.

[00:16:38] Speaker 00:
That's what we have here.

[00:16:39] Speaker 00:
And this is not like Venice.

[00:16:41] Speaker 01:
If I may focus on one, we have a woman who is the intimate partner of a person who is a gang member in rival gang territory where crimes are occurring all the time.

[00:16:53] Speaker 01:
We have a concern about officer safety as opposed to about whether a crime is actually occurring.

[00:16:59] Speaker 01:
Unlike in Denison, we have a defendant who's actually still there.

[00:17:04] Speaker 01:
The court in Denison assumes that Mr. Allen has in fact been taken away.

[00:17:08] Speaker 01:
So there's a greater risk because there are more potential cohorts there.

[00:17:11] Speaker 01:
And the additional thing we have here is there is the possibility.

[00:17:16] Speaker 00:
Can you stop and can you answer the question I asked before?

[00:17:18] Speaker 00:
What is it that she was what made her dangerous?

[00:17:21] Speaker 00:
What was she what was the potential?

[00:17:24] Speaker 00:
What was she going to do?

[00:17:25] Speaker 00:
Pull out a gun and start firing at these officers?

[00:17:27] Speaker 00:
Is that what they thought?

[00:17:28] Speaker 00:
Because she could also have, you know, just even if there was no gun, she could have used her car.

[00:17:34] Speaker 00:
A car can be a dangerous weapon.

[00:17:36] Speaker 00:
Did they suspect that she was going to run over them because they'd arrested her boyfriend while she

[00:17:41] Speaker 00:
sat and observed.

[00:17:43] Speaker 00:
I mean, what was the dangerous part of this?

[00:17:46] Speaker 01:
It's the same thing about Mr. Dennison that he was in a car with somebody who they had reason to suspect he knew had outstanding warrants because it's late at night in a high crime area, small car.

[00:17:58] Speaker 01:
That is completely as cooperative except that here we have a gang member who is in a rival gang area.

[00:18:05] Speaker 01:
Reason to believe because of that he would be armed.

[00:18:08] Speaker 01:
It's her car.

[00:18:09] Speaker 01:
Reason to believe that she would know what is in her car.

[00:18:12] Speaker 02:
Were they concerned enough that they had her get out of the car before?

[00:18:18] Speaker 01:
They did have her and they moved her to the back of the trunk, but they did not handcuff her.

[00:18:22] Speaker 02:
No, no.

[00:18:22] Speaker 02:
I mean during the encounter before they decide they're going to do a protective sweep.

[00:18:28] Speaker 01:
They had her get out of the car when they got, when Mr. Williams got out of the car.

[00:18:31] Speaker 01:
So until they didn't have all the information that they had when they first stopped them, they don't know about his gang history, that he's just been removed, that he's just got out of jail for a violent offense that's involving gang members.

[00:18:42] Speaker 01:
They didn't know all of that.

[00:18:43] Speaker 01:
So they don't pull them out of the car immediately.

[00:18:45] Speaker 01:
But when they pulled him out, then they pull her out.

[00:18:48] Speaker 02:
And when they pulled him out, they've got it in mind.

[00:18:50] Speaker 02:
They're doing the protective suite.

[00:18:54] Speaker 01:
Uh, and by that time, yes, I believe they, yes, that's when they're going to do the protective sweep.

[00:18:58] Speaker 02:
They weren't, they weren't worried enough about her before they decided to do the protective sweep, but then they were worried about her.

[00:19:05] Speaker 01:
They weren't worried about him either, your honor, because they didn't have enough information about him, but they did, they did testify once there was a concern about him and the fact that they were gonna let her back to the car.

[00:19:15] Speaker 02:
Doesn't, doesn't that seem odd that they've got this guy that they pulled over who immediately

[00:19:21] Speaker 02:
They begin to connect as far as gang sort of stuff.

[00:19:26] Speaker 02:
And they're not concerned about him enough to get him out of the car, but they are concerned enough about letting her back into her own car to drive away.

[00:19:37] Speaker 01:
because they didn't have all that information that gives the reasonable suspicion, Your Honor.

[00:19:40] Speaker 01:
I mean, they're pulling her out as soon as they're pulling him out, which is the time that they have the reasonable suspicion that there's danger here.

[00:19:47] Speaker 01:
And a reasonable suspicion is, again, a very low standard.

[00:19:50] Speaker 01:
We're concerned about officer safety.

[00:19:52] Speaker 01:
We're not worried about PC about a crime.

[00:19:54] Speaker 01:
I see I'm out of time.

[00:19:56] Speaker 01:
But if the court has any further questions, happy to answer them.

[00:20:00] Speaker 01:
This should be controlled by Denison and MacGregor.

[00:20:03] Speaker 01:
Thank you.

[00:20:04] Speaker 02:
Thank you.

[00:20:07] Speaker 02:
There is rebuttal time, but stick to rebuttal, please.

[00:20:11] Speaker 03:
Yes, Your Honor, I do not anticipate using 11 minutes of rebuttal.

[00:20:18] Speaker 03:
I just have two very quick rebuttal points to make.

[00:20:20] Speaker 03:
The first being there's no concession in my response to the 28-J letter on McGregor.

[00:20:25] Speaker 03:
I simply focused on the relevant question at hand, which is whether Ms.

[00:20:29] Speaker 03:
Richardson posed a danger.

[00:20:31] Speaker 03:
And second, there's one very important fact in Denison that the government continually overlooks.

[00:20:36] Speaker 03:
And that is that the passenger there had admitted being involved in a domestic incident and the police had a police bulletin about a domestic violence crime that had recently occurred.

[00:20:46] Speaker 03:
And with that, I will conclude my arguments and reiterate, we ask the court to reverse the judgment and remand with directions to grant the motion to suppress.

[00:20:54] Speaker 03:
Thank you.

[00:20:55] Speaker 02:
All right.

[00:20:55] Speaker 02:
Thank you, counsel, for your arguments.

[00:20:57] Speaker 02:
The case is submitted and counsel are excused.