[00:00:00] Speaker 00:
Case 23-1158, Weber versus Porter.

[00:00:07] Speaker 03:
May it please the court.

[00:00:08] Speaker 03:
My name is Nancy Johnson.

[00:00:09] Speaker 03:
I'm here representing Wayne Weber.

[00:00:13] Speaker 03:
Before I go too much further, I'd like to point out I wear hearing aids.

[00:00:16] Speaker 03:
So if I ask you to repeat something, it's probably because I didn't hear it.

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That being said, this case arises out of a longstanding neighborhood dispute.

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Mr. Weber had numerous complaints to the Golden Police.

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The neighbors across the street did the same.

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At the time of the incident in question, his neighbor across the street, Schuyler Espinosa-Swanson, had pled out in one case of harassment against Mr. Weber.

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and was charged with a second case, menacing against Mr. Weber.

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He had relatives living to either side of him as well.

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At this point, Sergeant Matt Porter decided that Golden Police didn't want to respond to a lot of nit-noi little complaints.

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and decided they were going to act on virtually anything that was brought to their attention.

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Now, Sergeant Porter investigated a complaint by Mr. Reisner and Ms.

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Wilson, who were the sister and brother-in-law of Mr. Espinosa Swanson.

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I'm gonna have problems with these names.

[00:01:54] Speaker 03:
That Mr. Weber had complained to Mr. Pardon me, yes, Mr. Weber had complained to Mr. Reasoner's employer about the big truck with a boom on it that had been parked in front of Mr. Reasoner's house that he had used to work on gutters, et cetera.

[00:02:20] Speaker 03:
Reisner and Wilson complained that they made false complaints, but Mr. Weber had pictures of what had happened.

[00:02:32] Speaker 04:
Rather than letting you keep going through the facts because I think we all are familiar with them and you're going to use all your time, I'm going to focus you.

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The first issue that I see here is whether the warrantless arrest

[00:02:49] Speaker 04:
was unconstitutional.

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So I'm going to ask you to focus on that.

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And we have an assertion of qualified immunity by Sergeant Porter, which means that there are two prongs that you bear the burden on.

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And the second of those prongs is that it's clearly established.

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And where I have trouble with the briefing in this matter, I'll pull it closer.

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Where I have trouble with the briefing in this matter is that you cite Colorado law for second prong of clearly established, but that isn't clearly established.

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The case law is very clear.

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for it to be clearly established there has to be a U.S.

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Supreme Court case or 10th Circuit authority that made it clear to every reasonable officer that this warrantless arrest was a violation of your client's Fourth Amendment rights.

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And I am struggling

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with why you didn't waive any argument or forfeit it, for that matter, because you didn't argue a single 10th Circuit or 10th or Supreme Court case?

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Your Honor, Mr. Weber exercised his Fourth Amendment rights when he went down to McBride Lighting and reported.

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Virginia be black.

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The statements were not threats.

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They were not false.

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They were not unlawful.

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Sergeant Porter decided that these reports violated the harassment statute in Colorado, which is clear and was at the time.

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I'm sorry to interrupt, but would it be your position that

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that this state law that you're talking about helps to define what probable cause would be for an arrest?

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Is that why you cited the Colorado cases?

[00:05:07] Speaker 03:
Yes.

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Mr. Weaver was arrested for retaliation against a witness, which requires that there be a threat or act of harassment

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as defined in 18911, or active harm or injury upon any person or property.

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It's a specific intent crime.

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He had to have intended to do it as a retaliation or retribution against a witness or victim.

[00:05:46] Speaker 00:
Go ahead.

[00:05:47] Speaker 03:
Sorry.

[00:05:49] Speaker 04:
But Mr. Weber indicated two

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Sergeant Porter that he was doing it to, quote, get back at these people.

[00:06:03] Speaker 04:
I mean, that sounds like retaliation.

[00:06:07] Speaker 03:
Yes, it does to a certain extent.

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He also changed his story later.

[00:06:12] Speaker 03:
But the question was, was the person he was reporting on, Mr. Reisner, actually a witness?

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Sergeant Porter decided he was a witness strictly by asking, are you a witness?

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Made no attempt to determine that he was a witness pursuant to 18-8-702 Colorado law, which means there was no attempt to determine whether he had made a declaration or oath, oath reported a crime,

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He knew he had been served with a subpoena, whether he'd been endorsed as a witness.

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It also can be a family member of a witness, can it, under the Colorado witness retaliation statute?

[00:07:02] Speaker 04:
Yes.

[00:07:04] Speaker 03:
Except that the witness that was, there's no other witness involved that he was a family member of.

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It was only later in the reply brief that

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the issue that Skyler Espinosa-Swanson might be a witness as a defendant in a case.

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To be a witness as a defendant, you have to take the stand or be endorsed as a witness.

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That was not the case.

[00:07:40] Speaker 00:
Why couldn't he be a potential witness?

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I mean, the proceeding was still ongoing, right?

[00:07:47] Speaker 03:
No, this would have been in, well, it would have been in the case that played out already or in the case that was ongoing.

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And in the case that was ongoing, why couldn't he be a witness?

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If you were a potential witness were included in this, then you could never report a crime against someone because they are a potential witness and you therefore would be retaliating against a witness.

[00:08:11] Speaker 00:
Well, you don't retaliate, right?

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I mean, you could report a crime.

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You just don't retaliate against the person.

[00:08:17] Speaker 00:
that is the potential defendant in the matter?

[00:08:23] Speaker 03:
The Colorado Supreme Court has read that in People v. Hickman to say that if it were true that defendant were a witness automatically, then any report would be a retaliation against that person.

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a defendant.

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There was an act here.

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There are two at least within the universe of conceivable witnesses.

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There is Mr. Reisner who the report was directed towards.

[00:09:02] Speaker 00:
Now in that particular instance, didn't Mr. Reisner's wife

[00:09:07] Speaker 00:
and someone else give a written statement to the Colorado police about their ongoing controversy with the brother?

[00:09:20] Speaker 03:
No, there was no written statement given to the police.

[00:09:23] Speaker 00:
I think there is a document that appears in 442, the record, it was exhibit F, and it is a document from the two people, let's see here,

[00:09:37] Speaker 00:
It's about a neighbor dispute.

[00:09:41] Speaker 00:
You have Laura Wilson and Amber who filed a document that they indicated that they wanted to talk about what was an ongoing dispute between this Reisner is the, Mr. Reisner is the wife, his wife, their neighbors, right?

[00:10:01] Speaker 00:
And she filed that report.

[00:10:07] Speaker 03:
I don't believe there was a written document, but I cannot state that unequivocally.

[00:10:15] Speaker 03:
I think the issue was, was it under oath?

[00:10:21] Speaker 00:
Well, why would it have to be under oath?

[00:10:22] Speaker 00:
What we're talking about, I mean, does Colorado law require there to be some basis that somebody might be a witness that it be under oath?

[00:10:30] Speaker 00:
Let's go with this assumption and tell me whether the law is to the contrary.

[00:10:34] Speaker 00:
Let's assume that this document was submitted to the police and as a result of this neighborhood dispute, the idea potentially would be that Mr. Reasoner could be a witness to the dispute between Mr. Swanson Espinoza and Mr. Weber.

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Why would that not be something that could be viable under the law?

[00:11:02] Speaker 03:
I will concede that it is possible that he could be a witness to the neighborhood dispute.

[00:11:10] Speaker 03:
However, that was not what, he did not make, as far as I remember, he did not make the declaration under oath.

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He had not been sued for the subpoena.

[00:11:26] Speaker 03:
Sergeant Porter made no attempt to determine whether the

[00:11:30] Speaker 03:
prosecutor or defense was planning to call him as a witness, he just thought he might be.

[00:11:39] Speaker 03:
And the term might is in the police report, that he might be a witness.

[00:11:45] Speaker 00:
Well, it might be in the report.

[00:11:47] Speaker 00:
I mean, is there a requirement under Colorado law that there needs to be a subpoena or a declaration to trigger the notion that you be a witness?

[00:11:58] Speaker 03:
That is one of the possibilities.

[00:12:00] Speaker 00:
Of course it's a possibility, but is it the only way that you can do it?

[00:12:04] Speaker 03:
No.

[00:12:04] Speaker 00:
Okay.

[00:12:05] Speaker 00:
Well, on the notion, let me just be clear on your understanding of Colorado law.

[00:12:11] Speaker 00:
Let's assume we're talking about Swanson Espinoza.

[00:12:14] Speaker 00:
Is there any prohibition under Colorado law to a defendant being a witness for purposes of this retaliation against a witness statute?

[00:12:24] Speaker 03:
There is no prohibition, but there must have some indication that he is indeed a witness.

[00:12:30] Speaker 00:
Okay, well, we've got Mr. Weaver taking an act against Mr. Reisner, who is a friend of Mr. Squanson Espinoza.

[00:12:41] Speaker 00:
And let's assume in this scenario that Squanson Espinoza is the witness.

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So he takes an act of retaliation against a friend of Mr. Squanson Espinoza.

[00:12:52] Speaker 00:
Then when the police come, he says that it's relative to this dispute I was trying to get back at, okay, Swanson Espinoza.

[00:13:02] Speaker 00:
Well, why could he not, in trying to get back at Swanson Espinoza, take an act against Mr. Reisner?

[00:13:12] Speaker 03:
Okay, let me correct one thing.

[00:13:14] Speaker 03:
Yes.

[00:13:14] Speaker 03:
Mr. Reisner was Mr. Swanson Espinoza's brother-in-law.

[00:13:18] Speaker 00:
Okay, even closer connection.

[00:13:21] Speaker 00:
Exactly.

[00:13:22] Speaker 00:
He's his brother-in-law.

[00:13:24] Speaker 03:
It has to be a family member, and he was indeed a family member.

[00:13:28] Speaker 00:
Okay.

[00:13:28] Speaker 03:
He was once in Espinosa.

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However, the retaliation against a witness requires that

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It's a specific intent that it had to be as retaliation or retribution because he was a witness.

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Just wanting to get back at the family is insufficient.

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It has to be specifically because he was a witness.

[00:14:00] Speaker 00:
That's right.

[00:14:00] Speaker 00:
But if what we're talking about and focusing as Judge McHugh was on what the legal standard here is for clearly established law,

[00:14:10] Speaker 00:
We have case law that says essentially that under that second prong, what we're talking about is whether there was arguable probable cause.

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In other words, even if as a matter of law there was not probable cause that the sergeant operated under, he could argue under arguable probable cause.

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So was there a reasonable basis for him to believe that he had probable, for a reasonable officer to believe he had probable cause?

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Was there a basis for a reasonable officer to believe he had probable cause, whether he actually did or not?

[00:14:43] Speaker 00:
So in this situation, if given the fact that he's his brother-in-law and the fact that he's caught up in this mix, I'm talking about Reasoner now, why couldn't it not be the case that there was an arguable probable cause to believe that Weber takes an act towards Reasoner

[00:15:06] Speaker 00:
as a means of retaliation against Swantz and Espinosa?

[00:15:12] Speaker 03:
It requires an act of harassment as defined in 18911.

[00:15:16] Speaker 03:
Can it not be an act of harm?

[00:15:20] Speaker 00:
I mean, your brief spent a lot of time talking about whether something was a threat, but that's not the only way that you've triggered this retaliation statute, right?

[00:15:28] Speaker 03:
Well, Sergeant Porter specifically said it was harassment, not

[00:15:33] Speaker 03:
an act of harm or injury.

[00:15:36] Speaker 00:
Are we bound by what he said?

[00:15:39] Speaker 00:
The point is what a reasonable officer would believe, not what Sergeant Porter believed, right?

[00:15:45] Speaker 03:
I think in this case we are bound by what Sergeant Porter believed.

[00:15:52] Speaker 00:
Is that our law?

[00:15:53] Speaker 00:
Our law is objective.

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It's an objective standard.

[00:15:57] Speaker 00:
It's what a reasonable officer would believe, right?

[00:15:59] Speaker 03:
And a reasonable officer would have trouble deciding that

[00:16:04] Speaker 03:
Mr. Weber committed harassment.

[00:16:07] Speaker 03:
And that is what Sergeant Porter determined had happened.

[00:16:12] Speaker 00:
You're already one and a half minutes over your time.

[00:16:17] Speaker 00:
Counsel.

[00:16:18] Speaker 03:
Thank you.

[00:16:44] Speaker 01:
May it please the court.

[00:16:45] Speaker 01:
Good morning, your honors.

[00:16:46] Speaker 01:
My name is James Kadolf and I represent the defendants in this case, Golden Police Department officers Sergeant Matt Porter and James Barron in addition to the city of Golden.

[00:16:56] Speaker 01:
This court should affirm the district court's grant of summary judgment for two reasons.

[00:17:00] Speaker 01:
First, plaintiff has failed to identify both before the district court and before this court here any clearly established law that would demonstrate that what officers Porter or Barron did was clearly unconstitutional.

[00:17:12] Speaker 01:
Moreover, on our second point, we assert that there's no constitutional violation here, and thus the officers are entitled to qualified immunity, and the district court should be affirmed.

[00:17:20] Speaker 02:
Could I start you off with Officer Barron?

[00:17:24] Speaker 02:
We spent time with the appellant talking about Sergeant Porter.

[00:17:28] Speaker 02:
The district court concluded that this wasn't a general warrant.

[00:17:32] Speaker 02:
It seems awfully broad and unparticularized.

[00:17:35] Speaker 02:
Why should we find that this warrant passes constitutional muster?

[00:17:43] Speaker 01:
Your Honor, two reasons.

[00:17:44] Speaker 01:
Of course, we would assert clearly established laws to that.

[00:17:47] Speaker 01:
But as to the constitutional violation problem that you're talking about here.

[00:17:50] Speaker 02:
Leaving aside the clearly established, I'm asking you about the constitutional violation.

[00:17:55] Speaker 01:
As to the constitutional violation, the warrant does describe, with particularity, the actual cell phone that is to be searched, down to, I believe, the SIM card number that's present on it.

[00:18:06] Speaker 01:
And beyond that, it also references the specific forms of data

[00:18:13] Speaker 01:
and items that could be searched on the phone.

[00:18:20] Speaker 02:
But the warrant says in furtherance of this investigation.

[00:18:23] Speaker 02:
What does that mean?

[00:18:26] Speaker 02:
And that just feels quite broad in the context of this case and reading it together with the affidavit that supports the warrant.

[00:18:35] Speaker 02:
it seems to be referencing just the neighborhood, anything that you can find on the phone that has to do with these ongoing disputes.

[00:18:45] Speaker 01:
Your Honor, I think the furtherance of the investigation is the scope that is limited by the fact that the warrant itself is limited to the one case number that's present.

[00:18:56] Speaker 01:
I believe the case number between the general neighborhood dispute has one number, and then this one is a second number.

[00:19:03] Speaker 01:
And so it would be limited not to the general significant neighborhood dispute, but the facts before the court.

[00:19:11] Speaker 00:
A second number related to what?

[00:19:14] Speaker 01:
In particular, this case, Your Honor.

[00:19:17] Speaker 00:
What is this case?

[00:19:18] Speaker 00:
There is a menacing case.

[00:19:21] Speaker 00:
There is a case in which Swanson Espinoza supposedly

[00:19:26] Speaker 00:
confronts Mr. Weber, which is a sort of witness intimidation.

[00:19:31] Speaker 00:
And supposedly that's really what they wanted.

[00:19:34] Speaker 00:
They wanted some video of Mr. Swanson Espinosa approaching Mr. Weber.

[00:19:40] Speaker 00:
That's a second case, right?

[00:19:43] Speaker 00:
And so what case are we talking about?

[00:19:48] Speaker 01:
Your Honor, my read of the search warrant itself is that it's seeking information related to this

[00:19:55] Speaker 01:
harassment or intimidation of a witness case.

[00:19:59] Speaker 00:
Harassment as in Weber's contact of Mr. Reisner's

[00:20:10] Speaker 01:
Yes, Your Honor, that's my read of it.

[00:20:12] Speaker 00:
Well, a lot of what the affidavit talks about relates to the video that supposedly was taken place by Mr. Weber of Mr. Swanson Espinosa approaching his car, and that was viewed as witness intimidation.

[00:20:32] Speaker 00:
So there are three things going on here.

[00:20:34] Speaker 00:
There is retaliation against a witness, which is Weber against either Swanson Espinosa or Mr. Reisner.

[00:20:42] Speaker 00:
There is the menacing case, and then there's a case involving Mr. Swanson Espinosa approaching the car, right?

[00:20:50] Speaker 01:
Yes, Your Honor.

[00:20:51] Speaker 00:
All right, well, tell us which one are we talking about when they say, in furtherance of the investigation, and which one does that number relate to?

[00:21:00] Speaker 01:
Well, Your Honor, I believe that the number relates to

[00:21:03] Speaker 00:
this specific case.

[00:21:16] Speaker 01:
harassment, intimidation of a witness case against Mr. Weber.

[00:21:20] Speaker 00:
Okay, well then why is it that the affidavit spends all of its time talking about getting film of the contact between Mr. Swanson Espinoza and Mr. Weber where essentially Weber is claiming that he was intimidated by Mr. Swanson Espinoza.

[00:21:42] Speaker 00:
I mean if you look at page

[00:21:44] Speaker 00:
the affidavit, page, let's see, what is it, page 57, I'm sorry, 271 of the record, we're talking about what filming took place involving Mr. Swanson Espinoza approaching the car, right?

[00:22:06] Speaker 00:
Mr. Weaver's cell phone, middle of, I guess, what would be the third paragraph.

[00:22:12] Speaker 00:
Sergeant Porter also sees Mr. Weaver's cell phone, which might contain potential evidence from the intimidation of a witness.

[00:22:19] Speaker 00:
Okay?

[00:22:20] Speaker 00:
And there is discussion about the fact that we're talking about Mr. Swanson Espinosa approaching Mr. Weaver, right?

[00:22:31] Speaker 01:
Yes, Your Honor, that is referenced in the affidavit.

[00:22:34] Speaker 00:
Okay, well that affidavit was in support of the search warrant, right?

[00:22:37] Speaker 01:
It was, Your Honor.

[00:22:38] Speaker 00:
And was it the focus of the search warrant to get the phone?

[00:22:43] Speaker 00:
Yes, Your Honor.

[00:22:44] Speaker 00:
And the purpose of getting the phone was to get the video of the contact between Swanson, Espinoza, and Weber, right?

[00:22:55] Speaker 01:
Your Honor, under the facts you've given me, I think that's correct.

[00:22:58] Speaker 00:
Well, if that's correct, then that doesn't relate to the retaliation against a witness, which is the charge of Weber trying to retaliate against either Swanson Espinoza or Mr. Reasoner.

[00:23:11] Speaker 00:
It's entirely separate matter.

[00:23:17] Speaker 01:
Your Honor, I hadn't seen

[00:23:20] Speaker 01:
the affidavit in support of this first warrant as referring to that.

[00:23:23] Speaker 01:
I'm happy to provide supplemental briefing on that issue.

[00:23:26] Speaker 00:
Well, I don't need supplemental briefing.

[00:23:28] Speaker 00:
What I need to understand from this affidavit is the affidavit talks about, it talks about on page 270, the contact that took place between Swanson Espinoza and Mr. Weber.

[00:23:45] Speaker 00:
And apparently, okay, so it talks about this contact.

[00:23:48] Speaker 00:
This contact was supposedly filmed.

[00:23:50] Speaker 00:
And then on the next page, it says that Sergeant Porter hoped to get potential evidence of the intimidation of a witness.

[00:24:00] Speaker 00:
And now we're not talking about retaliation against the witness.

[00:24:03] Speaker 00:
We're not talking about Weber against Swanson and Espinosa, are we?

[00:24:07] Speaker 00:
We're talking about evidence of Swanson and Espinosa approaching the car, right?

[00:24:15] Speaker 00:
Yes, Your Honor.

[00:24:15] Speaker 00:
Okay, well, as it relates to that,

[00:24:20] Speaker 00:
Number one, that reinforces the notion there are multiple investigations going on here.

[00:24:28] Speaker 00:
And so it's not clear, why do we know that in furtherance of this investigation, you started out telling me it related to this retaliation against a witness, which would have been an entirely separate matter.

[00:24:41] Speaker 00:
It would have been Weaver against one of his neighbors, right?

[00:24:45] Speaker 00:
Which is different than his neighbor approaching the car.

[00:24:49] Speaker 01:
Yes, that's correct.

[00:24:50] Speaker 00:
Okay, well, let's go beyond that.

[00:24:53] Speaker 00:
The affidavit makes a point of talking about how Weber takes a photo from, oh, he tries to take a photo.

[00:25:04] Speaker 00:
We're on page, in the affidavit, page 270.

[00:25:11] Speaker 00:
Third, I think it's the second paragraph down.

[00:25:14] Speaker 00:
He said that he tries to take a photo of Swanson Espinoza approaching the car.

[00:25:20] Speaker 00:
His phone drops, so his wife takes the video.

[00:25:27] Speaker 00:
Based upon that, why do we have probable cause to believe that taking his phone

[00:25:36] Speaker 00:
will give you video of that encounter.

[00:25:39] Speaker 00:
He specifically said, I mean, he specifically said in the App of David that it wasn't his phone that took the video.

[00:25:48] Speaker 00:
So help me with that.

[00:25:49] Speaker 00:
I'm technologically challenged.

[00:25:50] Speaker 00:
There may be some way that this worked out.

[00:25:53] Speaker 00:
There's some talk about an SD card or something like that.

[00:25:56] Speaker 00:
So explain to me, how could it be that when they seize his phone,

[00:26:03] Speaker 00:
that there was probable cause to believe his phone would have video of this encounter when the affidavit specifically says his phone didn't take the video.

[00:26:21] Speaker 01:
Your Honor, looking at that,

[00:26:23] Speaker 01:
I think what you're picking up on is the fact that there's a lot going on in this case.

[00:26:27] Speaker 00:
And there's a lot.

[00:26:27] Speaker 00:
You better believe it.

[00:26:29] Speaker 00:
And when you're going to violate, well, when you're going to infringe on somebody's Fourth Amendment rights, you better have a reason to do it, right?

[00:26:36] Speaker 01:
Yes, Your Honor.

[00:26:36] Speaker 00:
And that means it can't be confusion.

[00:26:38] Speaker 00:
That can't be your operating principle, right?

[00:26:41] Speaker 01:
Yes, Your Honor.

[00:26:42] Speaker 01:
And as an initial matter, I would point out that this issue was not briefed, both before the district court, and it wasn't briefed in the answer brief or in the reply brief.

[00:26:52] Speaker 02:
The scope of the warrant was briefed.

[00:26:57] Speaker 01:
Yes, Your Honor, but this specific allegation about what the affidavit is, and the specific argument made here wasn't necessarily briefed by the parties.

[00:27:10] Speaker 01:
But if I can speak a little bit more about Your Honor's question here, and please stop me if I go off the rails, the warrant

[00:27:19] Speaker 01:
does describe, or the affidavit in support of the search warrant, does describe how the phone would have that information.

[00:27:28] Speaker 01:
And so I don't believe that the SD card issue here, which is not sought to be seized, really comes into account with a probable cause question.

[00:27:38] Speaker 02:
I think that the issue that I have, even spotting you the technology, I think,

[00:27:44] Speaker 02:
understand the chief's question is a very important one, but let's assume that there is support for this phone.

[00:27:51] Speaker 02:
What concerns me is that the affidavit says, any files related to neighborhood disputes and disturbances involving Mr. Weber.

[00:27:59] Speaker 02:
It feels as though the warrant is sought given the

[00:28:05] Speaker 02:
contentious issues in the neighborhood generally and not about the investigation specifically, even though I understand you're trying to tell me that I should be reading investigation together with the case number.

[00:28:16] Speaker 02:
I'm not sure that works if you read the entire warrant and affidavit.

[00:28:21] Speaker 02:
But that's the problem.

[00:28:22] Speaker 02:
It's the very end of that, the same page we were on before, Appellants Appendix Volume 2271.

[00:28:29] Speaker 02:
How should we be thinking about the fact that the request here is for anything about this neighborhood dispute?

[00:28:39] Speaker 01:
Your Honor, I would just militate against that by saying that the search of these items of technology can be

[00:28:49] Speaker 01:
somewhat difficult, and in particular the programs that they're using here.

[00:28:54] Speaker 01:
And so it may be necessary to search elements of the phone that are tied to any neighborhood dispute to try to find evidence related to this neighborhood dispute.

[00:29:05] Speaker 02:
How is that not precisely a phishing expedition, which is unconstitutional, right?

[00:29:12] Speaker 01:
Your Honor, it's not a phishing expedition because it does identify specifically what it's looking for.

[00:29:17] Speaker 00:
It's not this neighborhood dispute.

[00:29:19] Speaker 00:
It's got to be this crime, right?

[00:29:22] Speaker 00:
I mean, we're not, they had an ongoing running dispute for a decade.

[00:29:29] Speaker 00:
So they had to be looking for evidence of a specific crime, right?

[00:29:38] Speaker 01:
Your Honor, it does have to be tied to a specific crime in some way.

[00:29:41] Speaker 01:
The warrant does not have to specifically cite a specific crime within it itself.

[00:29:47] Speaker 01:
I don't believe that's the state of the law.

[00:29:49] Speaker 00:
Is the state of the law, there has to be probable cause, they have to be showing probable cause that there is evidence that there are fruits of or there's evidence of a specific crime, whether they mention the crime

[00:30:04] Speaker 00:
by chapter and verse is not the point.

[00:30:07] Speaker 00:
But I mean, they can't say neighborhood dispute that took place during a month, I know there's a crime in there, so I'm gonna do a search warrant to get to the bottom of it.

[00:30:17] Speaker 00:
They can't do that, right?

[00:30:22] Speaker 01:
Your Honor, as it relates to this case, were there other evidence related to the neighborhood dispute?

[00:30:28] Speaker 00:
What neighborhood dispute are we talking about now?

[00:30:31] Speaker 00:
As I mentioned, there are at least three things floating around in this case.

[00:30:34] Speaker 00:
What neighborhood dispute are you correlating to this warrant?

[00:30:38] Speaker 01:
The harassment and intimidation of a witness case where Mr. Weber would be the defendant.

[00:30:44] Speaker 01:
And then, Your Honors, with candor, the search warrant does have a second case number appended to it as well.

[00:30:52] Speaker 01:
And I believe that would be the other intimidation of a witness case where Mr. Weber was, in fact, the victim.

[00:30:59] Speaker 01:
And so, and I apologize for not bringing that earlier to the court's attention.

[00:31:04] Speaker 00:
But also, okay, which also raises the question of what they're looking for.

[00:31:08] Speaker 00:
And as far as briefing goes, although the argument was not made as extensively perhaps as I'm doing now, on page 23 of appellant's brief, they say there is no statement providing a basis to believe that the SD card was in Weber's cell phone.

[00:31:27] Speaker 00:
And the thing that was seized was Weber's cell phone, right?

[00:31:33] Speaker 01:
That's right, Your Honor.

[00:31:33] Speaker 01:
The issue of the SD card was not, however, briefed before the district court either.

[00:31:39] Speaker 01:
And that element didn't come up before the district court.

[00:31:42] Speaker 02:
Did you argue good faith?

[00:31:44] Speaker 01:
Yes, Your Honor.

[00:31:45] Speaker 01:
We argued arguable probable cause.

[00:31:48] Speaker 00:
That goes to the arrests.

[00:31:49] Speaker 00:
That doesn't go to the search.

[00:31:52] Speaker 01:
Yes, Your Honor.

[00:31:53] Speaker 01:
And we also argued clearly established law related to the search warrant.

[00:32:01] Speaker 00:
Thank you, counsel.

[00:32:04] Speaker 00:
Case is submitted.

[00:32:04] Speaker 00:
Thank you for your arguments.