[00:00:00] Speaker 01:
All right, our final case this morning is United States versus Williams, number 255011.

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

[00:00:06] Speaker 01:
Alam, we'll start with you.

[00:00:16] Speaker 04:
Thank you, Your Honors.

[00:00:17] Speaker 04:
Lena Alam for the United States.

[00:00:21] Speaker 04:
In this case, the district court made two fundamental errors that require reversal.

[00:00:28] Speaker 04:
First,

[00:00:28] Speaker 04:
It misapprehended this court's precedent, allowing magistrates to base their determinations of probable cause on reasonable common sense inferences from the evidence contained in a search warrant affidavit.

[00:00:46] Speaker 04:
Second, it misread Gonzales, leading it to ignore critical evidence that supported the minimally sufficient nexus that would have allowed application

[00:00:58] Speaker 04:
of the good faith exception.

[00:01:03] Speaker 04:
I'll address first the failure to allow the magistrate's inferences.

[00:01:11] Speaker 04:
The district court cited Bigelow, but failed to address the four non-exhaustive factors that Bigelow identifies that may be used to assess whether nexus exists in a given case.

[00:01:26] Speaker 03:
First- Before you go into that, I wanna make sure we're talking about what the legal standard is here, right?

[00:01:34] Speaker 03:
We're talking about a substantial nexus.

[00:01:36] Speaker 03:
Is that fair?

[00:01:37] Speaker 03:
That's what Bigelow says.

[00:01:39] Speaker 04:
Well, it depends on which issue we're talking about.

[00:01:43] Speaker 03:
So- We're talking about the first issue.

[00:01:44] Speaker 03:
We're talking about your first argument for reversible air.

[00:01:49] Speaker 03:
Yes.

[00:01:49] Speaker 03:
Not good faith.

[00:01:50] Speaker 04:
Yes, whether there's a substantial basis to find a nexus

[00:01:53] Speaker 04:
or a reasonable probability that connecting the criminal activity with the place to be searched.

[00:02:03] Speaker 04:
Okay.

[00:02:04] Speaker 04:
And so under that first element, Bigelow and Mora and other cases counsel that the magistrate judge should consider the type of crime at issue, the extent, if any, of the suspect's opportunity for concealment,

[00:02:21] Speaker 04:
the nature of the evidence sought and any reasonable inferences as to where a criminal might or would keep the evidence being sought.

[00:02:38] Speaker 04:
So here, the crux of the Magister judge's nexus finding, the connection between Mr. Williams' criminal activity and his home was

[00:02:52] Speaker 04:
his Jeep, which on September 26th, one of the local police officers who had arrested Mr. Williams for obstruction noticed that that Jeep contained an emergency light bar, a CB radio, and a public address system.

[00:03:10] Speaker 04:
Those officers also discovered that the glove compartment of his Jeep contained two FBI badges, fake FBI badges, and handcuffs.

[00:03:23] Speaker 04:
All of these facts were in paragraphs nine and 10 of the search warrant affidavit.

[00:03:27] Speaker 04:
Paragraph 10 also noted that the badges were seized and booked into evidence.

[00:03:35] Speaker 04:
So from those facts, a magistrate could draw a reasonable common sense inference that the emergency light bar, the PA system, the CB radio, and the handcuffs were not seized or booked into evidence.

[00:03:52] Speaker 04:
In fact,

[00:03:53] Speaker 04:
As it happened, when the search was later run, those items remained in the car or in the jeep.

[00:04:02] Speaker 04:
The next critical fact in the affidavit was that when, after the local police arrested him for obstruction, the FBI got involved and began an investigation into 18 USC 912, impersonating a federal officer.

[00:04:18] Speaker 04:
Their interests in the investigation were very different than the local police who charged him with obstruction.

[00:04:24] Speaker 04:
So in doing so, they noted that other items suggesting that Mr. Williams was impersonating a federal officer had been noticed in the car.

[00:04:35] Speaker 04:
And they sought to search his home for those items.

[00:04:39] Speaker 04:
But before they did that, they conducted surveillance.

[00:04:42] Speaker 04:
And in conducting surveillance at that house that the Bixby police report had indicated was his home address, they saw the very same Jeep with the very same license plate

[00:04:53] Speaker 03:
Council, can I just, I have a sort of first principal question.

[00:05:01] Speaker 03:
What is the criminal activity that we're looking to connect to the home?

[00:05:06] Speaker 03:
Is it using what the district court said, which was using the fake badge in the pickup line?

[00:05:14] Speaker 03:
Is that it, or is it something that developed later?

[00:05:17] Speaker 04:
I think you've identified

[00:05:22] Speaker 04:
one of the problems with the district court's analysis, which is that the district court was improperly focused on that one moment on the 26th of September, whereas the investigation, and typically a federal investigation, is broader than that.

[00:05:41] Speaker 04:
Now, the crime that they were investigating Mr. Williams for was impersonation of a federal officer.

[00:05:48] Speaker 04:
And as the district court observed,

[00:05:51] Speaker 04:
occurred certainly on the 26th of September, but the scope of the investigation encompassed more than that, whether Mr. Williams had continued to or had previously impersonated a police officer.

[00:06:06] Speaker 04:
Some of the other items in his car or in his Jeep suggested that he might have engaged in other conduct, impersonating police officer, for instance, traffic stops or anything like that.

[00:06:18] Speaker 04:
So the fact that

[00:06:21] Speaker 04:
he definitely, or engaged in conduct that might have satisfied the statute on the 26th, did not prevent the FBI into investigating his conduct as a whole.

[00:06:34] Speaker 04:
So based on that, the FBI agents, after noticing the same Jeep that had contained those items of evidence on the 26th, parked in front of Mr. Williams' house, up against the garage,

[00:06:50] Speaker 04:
the 1st of October, sought a federal search warrant and were granted a federal search warrant.

[00:06:56] Speaker 04:
But the search warrant was for the house, right?

[00:07:00] Speaker 04:
For the house and any vehicles on the cartilage.

[00:07:04] Speaker 04:
So that would have included the jeep.

[00:07:06] Speaker 03:
So in order to endorse your argument that there was a reasonable inference the magistrate could have made, that the district court erred in rejecting,

[00:07:18] Speaker 03:
there has to be something in the affidavit that would have told the magistrate why the house was likely to have the items that were in the car.

[00:07:26] Speaker 03:
There has to be some factual basis from which that inference could be made.

[00:07:32] Speaker 03:
And I don't see it.

[00:07:35] Speaker 03:
So maybe you can help me see it.

[00:07:36] Speaker 04:
Okay.

[00:07:40] Speaker 04:
I think what Bigelow stands for is that the facts, the inference

[00:07:48] Speaker 04:
that the things might be in the house is an inference the magistrate can draw from the facts that are presented.

[00:07:53] Speaker 04:
The facts here that are presented are that Mr. Williams was confronted for after presenting fake FBI credentials on the 26th, had other items that were related to impersonating an officer in his Jeep.

[00:08:09] Speaker 04:
And later that same Jeep was parked at his house.

[00:08:13] Speaker 04:
a magistrate could make a reasonable common sense inference that a smart person having been arrested after showing a fake FBI badge might have removed other evidence that he was engaging in.

[00:08:27] Speaker 03:
But the officer, he had that in the car when the officers arrested him and they didn't seize it.

[00:08:33] Speaker 03:
And I don't think that you argued concealment to the district court, did you?

[00:08:38] Speaker 04:
We argued that

[00:08:41] Speaker 04:
the magistrate could draw inferences that would have, that directly addressed the items seen in the car, the car parked at the house and the house itself.

[00:08:51] Speaker 04:
The word concealment wasn't said, but certainly the big law factors and the types of inferences that a magistrate may draw were absolutely argued to the district court.

[00:09:00] Speaker 04:
And in fact, the district court specifically rejected that argument saying if the fourth amendment only required a list of items to be seized,

[00:09:09] Speaker 04:
Leaving a judge to fill in the necessary connections or inferences to be drawn from the facts to support the search, the fourth amendment's probable cause requirement would be rendered meaningless.

[00:09:19] Speaker 04:
That's simply inconsistent with Bigelow.

[00:09:22] Speaker 00:
So is it your position that the magistrate judge was supposed to draw the inference that the listed items were of the type that would be found in a house?

[00:09:36] Speaker 04:
not in every case, but in this case, under these circumstances, the magistrate could reasonably have inferred after having been arrested for obstruction after impersonating an FBI agent that a defendant who then had his car at his house might have had the incentive to take other evidence out of that Jeep.

[00:10:01] Speaker 04:
And so the magistrate judge could reasonably have inferred that the items that were seen in his Jeep on the 26th had been moved into his house or were still in his Jeep on the cartilage on October 1st when the FBI agents observed it and when the warrant was obtained.

[00:10:19] Speaker 01:
That was a reasonable inferential change.

[00:10:22] Speaker 01:
Can I just jump in and ask you whether you would agree that in a given case, and maybe it's this case,

[00:10:31] Speaker 01:
that there's a fine line between the magistrate drawing a reasonable inference on the one hand and filling in a gap in the affidavit that the affiant really should have filled in themselves.

[00:10:50] Speaker 01:
Isn't that really the crux of the first issue is determining whether this inference you're talking about truly is a reasonable one

[00:11:01] Speaker 01:
or whether it's really a matter of can the magistrate step in and fix a deficient affidavit?

[00:11:12] Speaker 04:
Really, this is precisely the type of connection that Bigelow speaks of, right?

[00:11:16] Speaker 04:
In order to find nexus between evidence that a defendant may have been involved in criminal activity and the defendant's house, there must be some additional evidence linking the criminal activity and the house.

[00:11:28] Speaker 04:
And Bigelow makes very clear that that additional evidence may form, it may be based on an appliance saying, I think this stuff is here because criminals of this type often store these things in their house.

[00:11:42] Speaker 04:
I don't think that would have been an appropriate statement here because there's no criminal, people who impersonate FBI agents often keep their things in their house.

[00:11:53] Speaker 04:
there was no such statement and that inference might not be a general one.

[00:11:56] Speaker 04:
It's not like a drug crime or a gun crime where agents have enough experience with them to make that inferential statement.

[00:12:03] Speaker 04:
But certainly based on the facts of this case, and that's precisely what Bigelow speaks to, this magistrate could have drawn this inference and Bigelow specifically permits an inference like this one drawn by a magistrate judge

[00:12:20] Speaker 04:
to provide the additional evidence of nexus required for probable cause.

[00:12:25] Speaker 04:
And significantly, the amount of deference due to the magistrate's determination here is something that the district court did not seem to grant.

[00:12:39] Speaker 04:
And part of that is because the district court was improperly focused on whether the government could prove the crime just based

[00:12:48] Speaker 04:
on the initial incident itself, whether they needed to go into the house to get additional inputs.

[00:12:55] Speaker 01:
Could you just clarify one thing?

[00:12:57] Speaker 01:
At one point in your briefing, it says the FBI sought to search the home for evidence like the items the local police had seen but not seized.

[00:13:11] Speaker 01:
So were they looking for items like the ones in the Jeep or were they looking for items that were in the Jeep?

[00:13:20] Speaker 04:
The items listed in attachment B match up largely with the items that were seen in the Jeep, but also other items like that.

[00:13:29] Speaker 04:
And that's why I use the word like in that context.

[00:13:31] Speaker 04:
So other FBI gear, body armor, things like that, but also it specifically lists the handcuffs.

[00:13:38] Speaker 04:
It specifically lists an emergency light bar and police radios.

[00:13:44] Speaker 01:
Okay, thank you for the clarification.

[00:13:49] Speaker 04:
If I may, I'd like to reserve the remainder of my time.

[00:13:54] Speaker 01:
Thank you, counsel.

[00:13:55] Speaker 01:
Ms.

[00:13:56] Speaker 01:
Barton.

[00:13:59] Speaker 02:
May it please the court, Bryn Barton on behalf of Mr. Williams, the appellee.

[00:14:04] Speaker 02:
I'd like to start talking about this issue of waiver.

[00:14:07] Speaker 02:
It briefly came up in your questioning of the government.

[00:14:10] Speaker 02:
The government says that it made the same argument and that it did talk about this potential opportunity for concealment because it talked about the Jeep.

[00:14:19] Speaker 02:
But if you go through both the written response to the motion to suppress and the extensive hearing transcript,

[00:14:27] Speaker 02:
It's not just that the phrase opportunity for concealment did not come up.

[00:14:32] Speaker 02:
It has more to do with the fact that the government was not focused on the Jeep or specifically on the items within the Jeep and its argument before the district court.

[00:14:43] Speaker 02:
If you go through that transcript, it only one time does it address the items within the Jeep outside of the factual basis.

[00:14:52] Speaker 02:
And it says on page 142 of the appendix,

[00:14:56] Speaker 02:
that the items seen in the Jeep at the elementary school, that the light bar and the handcuffs obviously suggest an ongoing crime.

[00:15:03] Speaker 02:
This was part of the government's argument in front of the district court that the reason that we are connecting this crime to this home is the nature of the crime.

[00:15:13] Speaker 00:
Isn't there any reasonable inference that

[00:15:17] Speaker 00:
that these items that were noticed by local law enforcement in Jeep are the types of items that someone who impersonates a federal officer might use?

[00:15:28] Speaker 02:
It does not say that within the affidavit.

[00:15:31] Speaker 00:
I understand that.

[00:15:34] Speaker 00:
I'm asking you if it supports a reasonable inference.

[00:15:38] Speaker 00:
They did lay out the facts.

[00:15:40] Speaker 00:
They did state that those things were in the Jeep and not seized by local law enforcement.

[00:15:47] Speaker 00:
Couldn't the magistrate judge draw a reasonable inference that those were the types of items that someone impersonating an officer might possess?

[00:16:02] Speaker 02:
I think he could make or the district judge could make an inference like that.

[00:16:05] Speaker 02:
The problem here is that's not the only inference that is needed to be made.

[00:16:09] Speaker 02:
And just to make a quick correction, I realized that there's this inference that the items were still in the Jeep when they were seen

[00:16:16] Speaker 02:
or they were still in the Jeep when whoever picked up the Jeep from the tow yard brought it back to this residence.

[00:16:22] Speaker 02:
But the affidavit does not say what happened to any of these other items.

[00:16:26] Speaker 02:
It says that it grabbed and booked the two badges and it mentions the handcuffs in that statement, but it does not talk about any of these other items.

[00:16:34] Speaker 02:
We also know that Mr. Williams was arrested that day.

[00:16:38] Speaker 02:
We don't know when he was released from custody.

[00:16:40] Speaker 02:
We don't know if this vehicle was registered in his name.

[00:16:44] Speaker 02:
We don't know if he picked it up and drove it back to that house.

[00:16:47] Speaker 02:
So even if that's one reasonable inference that the magistrate could make, it's this long string of inferences that is our problem.

[00:16:54] Speaker 02:
Even to get to the point that the inferences, maybe he moved these items that were in the Jeep into his home, we have to come way too far to even get to that inference through all these other inferences.

[00:17:09] Speaker 01:
I'm asking the clarification question again.

[00:17:13] Speaker 01:
There's reference in your briefing to the Jeep being seized on September 26.

[00:17:19] Speaker 01:
Have I got that right?

[00:17:22] Speaker 02:
Yes.

[00:17:23] Speaker 01:
OK.

[00:17:24] Speaker 01:
And there's also reference to an inventory search.

[00:17:28] Speaker 01:
So what happened to the items in the Jeep on September 26?

[00:17:33] Speaker 01:
Were they just left there?

[00:17:36] Speaker 01:
And when the Jeep left,

[00:17:40] Speaker 01:
the authorities, they were still there, do we know that?

[00:17:44] Speaker 01:
What exactly were you trying to say in your brief about that?

[00:17:48] Speaker 02:
What I was trying to say I think is reflected very well in your question.

[00:17:51] Speaker 02:
We don't know what happened to those items.

[00:17:54] Speaker 02:
The affidavit does not say if those items were removed, if they were not removed.

[00:18:00] Speaker 02:
And all we have is this one passing reference where an officer says that he believes that he saw these items.

[00:18:06] Speaker 02:
And then we know there was an inventory search and in that search they grabbed the badges.

[00:18:10] Speaker 02:
But we don't know anything else about what happened to these items following September 26th or even following the tow.

[00:18:19] Speaker 03:
So does that mean in your view that the absence of that makes any inference that they were moved from the Jeep to the house unreasonable?

[00:18:30] Speaker 02:
Yes, I do believe it's so.

[00:18:32] Speaker 02:
And I think that would be unreasonable on its own because the affidavit doesn't say anything about that.

[00:18:39] Speaker 02:
In light of the fact that there are all these other inferences that need to be made, it certainly makes it unreasonable.

[00:18:46] Speaker 03:
Can I ask you a question about how we should be thinking?

[00:18:49] Speaker 03:
About these different, but kind of.

[00:18:52] Speaker 03:
related legal standards here.

[00:18:54] Speaker 03:
For the first issue, the requirement is it's for a substantial nexus.

[00:19:01] Speaker 03:
And for good faith, it's a minimally sufficient nexus.

[00:19:03] Speaker 03:
And I take it from your argument, there's no nexus no matter what you call it.

[00:19:08] Speaker 03:
But could you address how we should be thinking about the minimally sufficient nexus for the good faith?

[00:19:15] Speaker 03:
And what is your best argument for why the good faith exception doesn't apply here?

[00:19:22] Speaker 02:
I think the district court handled this very well in its opinion and order, and that is that, as you stated, there is no nexus.

[00:19:30] Speaker 02:
That is our argument.

[00:19:32] Speaker 02:
But it also is any reasonable officer in this situation who would take this affidavit, would look and read that events happened on September 26th, and then it would have 11 pages about computer crimes, and then it tells you what to seize.

[00:19:46] Speaker 02:
And there are little bits and details that the government is trying to pick and fit in to try to make these inferences work.

[00:19:53] Speaker 02:
But just reading the affidavit, I think in a common sense way, and as you would, it says, this is not supposed to be legal professionals who may understand all of these different factors and things we can consider, but they are supposed to understand reasonably the basics of the law.

[00:20:09] Speaker 02:
And if you're reading this affidavit, I think a reasonable officer would question, why are we searching the home of someone where

[00:20:16] Speaker 02:
He held up a badge one time in front of an elementary school.

[00:20:19] Speaker 02:
And that's why I think good faith doesn't apply.

[00:20:21] Speaker 00:
Well, because the crime wasn't holding up a badge, the crime's impersonating a federal officer.

[00:20:28] Speaker 00:
And so when you're looking for evidence of that crime, it is more than flashing a badge, isn't it?

[00:20:34] Speaker 00:
There can be lots of other indicia that somebody is doing that.

[00:20:39] Speaker 02:
Your Honor, I think in this situation, not necessarily, because just

[00:20:43] Speaker 02:
owning a badge or just owning, let's even get into the light bars, that does not mean that you're impersonating a federal officer.

[00:20:50] Speaker 00:
There has to be some- You wouldn't agree that those items could be evidence of someone, if he said, I wasn't impersonating an officer, and you trot out all of these additional items, that that wouldn't be indicia of him maybe impersonating an officer?

[00:21:07] Speaker 02:
Okay, I understand your question a little better.

[00:21:10] Speaker 02:
I do think it would be reasonable to say that,

[00:21:13] Speaker 02:
However, that still does not get us into his home.

[00:21:17] Speaker 02:
And the government's argument, at least on appeal, comes down to these specific items could have been moved from the car into the home.

[00:21:26] Speaker 02:
But there's this greater scheme of there's no connection in the affidavit that is actually getting us into the home.

[00:21:34] Speaker 02:
And these items were seen in the vehicle.

[00:21:36] Speaker 02:
We don't know what happened to them.

[00:21:38] Speaker 02:
And then the vehicle is seen in the driveway.

[00:21:43] Speaker 02:
but there is no connection to Mr. Williams' home.

[00:21:46] Speaker 00:
What do you think about on the good faith exception, the argument that the government's made that basically tying him and the Jeep to that home was enough, that on your precedent, that there wasn't even that connection?

[00:22:04] Speaker 02:
Because I think the Jeep itself is not

[00:22:09] Speaker 02:
one of these items in impersonation.

[00:22:11] Speaker 02:
It is the items within the Jeep that we are concerned about.

[00:22:14] Speaker 02:
And the government has not, or the affidavit did not connect the items to the home.

[00:22:20] Speaker 02:
And you can make these inferences about it was in the Jeep at that time, but as Judge Russell found in his opinion, based on the affidavit, the inference is that he kept these items in his vehicle, not in his home.

[00:22:32] Speaker 03:
Did the affiant say anything about how in his experience

[00:22:39] Speaker 03:
uh, when you, you know, people who impersonate federal officers, uh, keep this kind of stuff around in, in their homes, I mean, it was in, in their experience.

[00:22:49] Speaker 03:
Is there anything like that, that, that would make that connection based on the affiance experience?

[00:22:55] Speaker 02:
There is nothing like that.

[00:22:56] Speaker 02:
And when he goes through his experience, he doesn't list any particular experience and false personation crimes or false impersonation crimes.

[00:23:04] Speaker 02:
His experience is mostly in

[00:23:06] Speaker 02:
I believe it was drug trafficking, street gang type situations.

[00:23:10] Speaker 02:
And he never connects why his opinion and experience would provide probable cause that there might be items like this in the home.

[00:23:17] Speaker 02:
And he never says that.

[00:23:19] Speaker 03:
If that had been in the affidavit, would it have made a dispositive difference here?

[00:23:25] Speaker 02:
I don't know if it would be dispositive.

[00:23:26] Speaker 02:
I think it would be a very important factor.

[00:23:30] Speaker 02:
I think there would still need to be additional evidence because this is not a crime like drug trafficking.

[00:23:36] Speaker 02:
I think there have been some pretty specific carve outs and this court has called them special class of crimes that kind of inherently, if there's probable cause to believe that this crime has been committed, then there's probable cause to get into the home and believe there's evidence of that crime in the home.

[00:23:52] Speaker 02:
This is not within one of those special classes and the government has presented no case law or argument other than in front of the district court that that is why there is a nexus in this case.

[00:24:05] Speaker 00:
Let me ask you this.

[00:24:06] Speaker 00:
On the exhibit B, the list of things to be seized, there are things like jackets, clothing, belts, firearms.

[00:24:23] Speaker 00:
Would you agree with me that the Magistrate Judge could have drawn an inference that those are the type of things that might be found in someone's home?

[00:24:34] Speaker 02:
No, I don't believe so, because I think this is not the type of crime that gets us to that point.

[00:24:41] Speaker 02:
The fact that he allegedly had these badges and the items in his car does not inherently say that he has these items in his home.

[00:24:51] Speaker 00:
Well, certainly, I mean, we don't know if he has them or not, but those are all probative of this crime if he does have them, don't you think?

[00:25:03] Speaker 00:
If he has police paraphernalia, jackets, shirts, caps, those types of things in his house?

[00:25:13] Speaker 02:
Not necessarily, Your Honor.

[00:25:15] Speaker 02:
I think because this was at least the way it was described in the affidavit and what we have is one instance in which he held up this badge and they saw their items in his car, but the government's pursuit of this, well, what if he's pulling people over?

[00:25:28] Speaker 00:
I think you're missing my question.

[00:25:35] Speaker 00:
I guess what I'm asking is if there were a prosecution for him impersonating an officer by flashing his badge and the government wanted to trot out additional evidence and they said and he had an FBI jacket and an FBI t-shirt and an FBI cap in his house and he had an FBI issue belt and he had

[00:25:56] Speaker 00:
You know, a firearm resembling those that FBI agents carry.

[00:26:01] Speaker 00:
Would those items be probative of the crime that he committed?

[00:26:05] Speaker 02:
I think they could be, but I also think

[00:26:10] Speaker 02:
The fact that there may be items that are probative of that doesn't mean that the government gets to go search his home without.

[00:26:16] Speaker 00:
Not asking you to admit that.

[00:26:18] Speaker 00:
I'm not asking for any ultimate admissions here.

[00:26:21] Speaker 00:
I'm just trying to figure out what inferences might be reasonable.

[00:26:25] Speaker 00:
And so my next question on that front would be, I mean, if we were looking for t-shirts, caps, jackets, belts, guns,

[00:26:33] Speaker 00:
I mean, is it unreasonable for a magistrate judge to infer that those might be the types of items that someone would keep in their house?

[00:26:43] Speaker 00:
Sure.

[00:26:44] Speaker 00:
And if I may, I mean, I'm not saying that she made that or that the magistrate judge made that inference.

[00:26:51] Speaker 00:
I'm just probing it.

[00:26:53] Speaker 02:
And I would like to now connect this to the case Mora, because I think in that case, we had probable cause to believe that there was alien smuggling.

[00:27:04] Speaker 02:
And then they came back to the home and overall that affidavit failed because they did not connect the probable cause for the alien smuggling to the home.

[00:27:12] Speaker 00:
And in fairness though, there was another issue in that case.

[00:27:17] Speaker 00:
And that is that they had without a warrant gone into the home and identified certain things that were included in the affidavit, right?

[00:27:29] Speaker 00:
Like a gun safe.

[00:27:31] Speaker 02:
Yes.

[00:27:31] Speaker 00:
And I believe that case that suggested that they wouldn't have been able to get the affidavit without the information that they obtained during the warrantless search.

[00:27:45] Speaker 02:
If I remember correctly, I believe they did go through that analysis.

[00:27:49] Speaker 02:
But then when they got to the probable cause, they said, even if we pretended like that information wasn't in there and we only looked at

[00:27:56] Speaker 02:
this other information, we still don't find probable cause and we still don't find the good faith exception applies.

[00:28:02] Speaker 02:
And the reason that I brought this case up is because in that case, the court was not concerned with, is it conceivable that evidence of alien smuggling would be in this home?

[00:28:13] Speaker 02:
Is it imaginable that evidence of alien smuggling would be in this home?

[00:28:16] Speaker 02:
The court said the affidavit did not provide sufficient facts and evidence for a magistrate to reach that conclusion.

[00:28:24] Speaker 02:
And I think that's exactly what we have here.

[00:28:26] Speaker 02:
This is not, is it conceivable in any worlds that we can imagine that these items might be in his home?

[00:28:32] Speaker 02:
Does the affidavit that underlines this warrant give us sufficient facts and evidence to do this?

[00:28:38] Speaker 02:
And it doesn't in this case.

[00:28:43] Speaker 02:
I see my time is up.

[00:28:44] Speaker 02:
So unless there are any other questions, I would just ask this court to affirm the district court's ruling.

[00:28:51] Speaker 01:
Thank you, counsel.

[00:28:53] Speaker 01:
I believe we have some rebuttal time.

[00:29:03] Speaker 01:
You're on mute again, I think.

[00:29:06] Speaker 04:
I was waiting for the timer to reset.

[00:29:08] Speaker 01:
Oh, OK.

[00:29:09] Speaker 01:
Sorry.

[00:29:12] Speaker 04:
With my, I think, minute and 23 seconds, I'd like to make three points.

[00:29:16] Speaker 04:
First, there was a basis for the magistrate to infer that those items remained in the Jeep.

[00:29:24] Speaker 04:
That is, that in addition to the

[00:29:27] Speaker 04:
actual text of the affidavit.

[00:29:28] Speaker 04:
The affidavit contained attachment B, specifically listing the items to be searched for, including the items that had been seen in the gene.

[00:29:39] Speaker 04:
So there was a basis for the magistrate to make that inference.

[00:29:42] Speaker 04:
Second, I'd like to talk about the right case to evaluate the good faith exception in this case.

[00:29:50] Speaker 04:
It is not mora, it is cato.

[00:29:54] Speaker 04:
The critical difference between mora and cato

[00:29:56] Speaker 04:
is that in Mora, the vehicle driven by the defendant was found behind a Walmart.

[00:30:01] Speaker 04:
And in Cotto, the defendant's vehicle was found parked in front of the house to be searched.

[00:30:07] Speaker 04:
In Cotto, it wasn't even his house.

[00:30:10] Speaker 04:
It was his brother-in-law's house.

[00:30:11] Speaker 04:
But the fact that the car was found there after he had had opportunity to conceal items, as opposed to Mora, where the police beat the defendant back to his house,

[00:30:22] Speaker 04:
So in Kato as here, there was an opportunity for the defendant to move things from the car parked in front of the house to the house.

[00:30:29] Speaker 04:
And that provided a basis to support the good faith exception in Kato and provides that same basis.

[00:30:36] Speaker 04:
Does it matter that in Kato the affidavit was approved by D.A.?

[00:30:40] Speaker 04:
?

[00:30:41] Speaker 04:
It does not because as explained in my brief, good faith is an objective standard and the approval by the DA was irrelevant to the objective good faith of an officer executing a search.

[00:30:56] Speaker 04:
I'd like to close if I can by noting that Bigelow specifically observes that the strong Fourth Amendment preference for a warrant compels the court to resolve even doubtful or marginal cases

[00:31:10] Speaker 04:
by deferring to the magistrate's determination of probable cause.

[00:31:14] Speaker 04:
Here, the district court failed to do that.

[00:31:16] Speaker 04:
We are here to ask this court to observe that preference and to defer to this magistrate's determination of probable cause.

[00:31:25] Speaker 04:
We would ask that you reverse the district court.

[00:31:27] Speaker 04:
Thank you.

[00:31:28] Speaker 01:
Thank you, counsel.

[00:31:30] Speaker 01:
Further questions?

[00:31:33] Speaker 01:
Hearing none, I think our time has run out.

[00:31:38] Speaker 01:
and we will consider this case submitted.

[00:31:40] Speaker 01:
Counsel are excused and this court will stand in recess.

[00:31:45] Speaker 01:
Thank you.