[00:00:00] Speaker 00: All right. [00:00:02] Speaker 00: Next case up is the United States versus Coronado, Mr. Lee. [00:00:18] Speaker 01: Good morning, Your Honors. [00:00:19] Speaker 01: I'm Josh Lee from the Colorado Federal Public Defender's Office, and I represent Jesus Coronado. [00:00:25] Speaker 01: The question presented in this appeal is whether the police acted within the scope of consent when they climbed onto a roof to retrieve the gun that was subsequently used to prosecute Mr. Coronado. [00:00:38] Speaker 01: The answer is no. [00:00:39] Speaker 01: The lessy ain't. [00:00:42] Speaker 04: Can we put this in context? [00:00:47] Speaker 04: We're here on a clear error review, correct? [00:00:50] Speaker 01: I maintain that it's de novo review. [00:00:52] Speaker 01: However, I think I went under either standard. [00:00:55] Speaker 01: I think it's, I'm sorry, go ahead. [00:00:59] Speaker 04: Well, I'm just curious, I think, to know, hasn't the Supreme Court made it pretty clear that even when there's video that we defer to the district court's factual findings? [00:01:13] Speaker 01: Absolutely. [00:01:14] Speaker 01: And there's no dispute about what any of the facts are. [00:01:17] Speaker 01: So everybody agrees what was said. [00:01:20] Speaker 01: Everybody agrees the tone and how it was said. [00:01:23] Speaker 01: The question is what a reasonable observer would have taken from the exchange. [00:01:29] Speaker 01: And the Supreme Court has made clear that that sort of ultimate question of reasonableness is a question of law review de novo. [00:01:36] Speaker 01: So when the district court found that it was within the scope of consent, that was an error of law. [00:01:43] Speaker 01: And if you commit an error of law on the way to making a clear error type of ruling, it's clearly erroneous. [00:01:51] Speaker 01: Regardless, I think the court should have a definite and firm conviction that the district court made a mistake, and that's so for multiple reasons. [00:02:00] Speaker 01: The lessee only gave the police permission to go in the home [00:02:06] Speaker 01: In other words, to search its interior. [00:02:08] Speaker 01: The police did not have permission to climb onto the roof. [00:02:12] Speaker 01: And in addition to that, [00:02:14] Speaker 01: The lessee only consented to a search for Mr. Coronado, but the police knew that Mr. Coronado wasn't on the roof. [00:02:22] Speaker 01: In fact, by the time the police had climbed onto the roof, they had already found and arrested Mr. Coronado elsewhere. [00:02:30] Speaker 04: So let's start with the fact that... Let me stop you on the second point with regard to permission to search only for Mr. Coronado. [00:02:40] Speaker 04: In the district court, there was now an argument made [00:02:44] Speaker 04: that because they had already arrested Mr. Coronado, whatever piece that was given had dissipated. [00:02:52] Speaker 04: Would you agree that that's an argument made for the first time on appeal? [00:02:56] Speaker 01: No, and I'm glad you brought this up because I don't think it was as clear in my reply brief as it should have been. [00:03:01] Speaker 01: I think that that argument is preserved for appeal for two independent reasons. [00:03:07] Speaker 01: First, Mr. Coronado's objection was sufficient under street. [00:03:12] Speaker 01: So what Mr. Coronado said is this search was outside the scope of consent. [00:03:18] Speaker 01: That put the scope of consent on the table [00:03:21] Speaker 01: And all my appellate arguments are doing is building on that objection and detailing why it was outside the scope of her consent, and that's permitted under street. [00:03:32] Speaker 01: But setting that aside, the argument is also preserved under suite. [00:03:38] Speaker 01: The suite case I've cited, because all I'm doing is challenging the district court's decision on its own terms. [00:03:45] Speaker 01: What the district court said is, [00:03:47] Speaker 01: This was within the scope of Ms. [00:03:50] Speaker 01: Valtierra's consent because the roof was a place where Mr. Coronado might have been hiding. [00:03:57] Speaker 01: It's now fair game for me to say, no, he couldn't have been hiding there. [00:04:02] Speaker 01: He was already arrested. [00:04:04] Speaker 01: And that is the sweet case says an appellant can challenge a ruling [00:04:10] Speaker 01: on a ground addressed by the district court even if he didn't raise it below. [00:04:15] Speaker 01: So the district court having ruled the reason this is within the scope of consent is because he could have been up there. [00:04:21] Speaker 01: I'm now permitted to say he couldn't have been up there based on the district court's own factual findings. [00:04:28] Speaker 01: The district court found as a fact first Mr. Coronado was arrested and then after he's arrested and everybody knows that then they go on the roof. [00:04:39] Speaker 01: I think that is preserved. [00:04:42] Speaker 01: I think I'm glad I had an opportunity to address it here. [00:04:45] Speaker 01: That said, you don't even have to reach that issue because the district court also clearly erred in its belief that Ms. [00:04:57] Speaker 01: Valtierra said anything to manifest consent to a search of anywhere other than the interior of her home. [00:05:04] Speaker 01: So let's remember. [00:05:06] Speaker 01: The standard under Florida versus Jimineau is how would a reasonable observer have understood the exchange between the officers and the consenting person. [00:05:18] Speaker 01: The officers are only talking about being concerned that Mr. Coronado is inside the house. [00:05:25] Speaker 01: They've already looked everywhere around the outside of the house. [00:05:28] Speaker 01: They're like, we think he's inside the house. [00:05:30] Speaker 01: Don't make us send the SWAT team in there. [00:05:33] Speaker 01: She says, all right, all right. [00:05:34] Speaker 01: You have my permission to go in there. [00:05:37] Speaker 01: Under that circumstance, any reasonable observer would say they're talking about the interior of the home. [00:05:43] Speaker 01: No reasonable observer is going to think, if I give Judge Phillips permission to go into my home to look for something, he then gets to climb on top of the roof. [00:05:52] Speaker 00: That's not reasonable. [00:05:54] Speaker 00: But they came back to her and said, there's a firearm on the roof. [00:05:59] Speaker 01: Yes, but she never gave any further consent. [00:06:02] Speaker 01: So what the order is, she says, you have my permission to go in there. [00:06:07] Speaker 01: He's not in there. [00:06:09] Speaker 01: Then they're like, you know, we found a gun, or we see that there's a gun alert. [00:06:15] Speaker 01: She didn't. [00:06:15] Speaker 04: Could they have gone in the basement? [00:06:17] Speaker 01: Could they have gone in a basement? [00:06:19] Speaker 01: That would be a closer case. [00:06:21] Speaker 01: I think that if. [00:06:24] Speaker 01: Oh, yes, I think so. [00:06:26] Speaker 01: So let me make clear. [00:06:29] Speaker 01: If the basement is accessible from the interior of the house, and if the attic is accessible from the interior of the house, I think it's clear. [00:06:39] Speaker 01: Yes, they would have the authority to search that. [00:06:41] Speaker 01: She gave them permission to go in and search. [00:06:45] Speaker 01: Instead of going in and searching, they put a ladder on the exterior of the home and climbed onto the roof. [00:06:52] Speaker 01: I think, you know, [00:06:54] Speaker 01: If they had gone in and searched like they did in Pena, you know, the government cites Pena in support of its case. [00:07:01] Speaker 01: I don't think Pena helps the government at all because in Pena, the defendant says, yes, you can look in the motel room and they went in and they searched. [00:07:12] Speaker 01: That's all they did. [00:07:13] Speaker 01: And similarly, in my case, when she says you can go in, she was giving them permission to go in and search. [00:07:20] Speaker 01: And that's just not what they did. [00:07:22] Speaker 00: What if they had seen someone on the roof? [00:07:25] Speaker 01: If they had seen someone on the roof, they could have secured further consent from Ms. [00:07:33] Speaker 01: Valtierra, or they could have gotten the warrant. [00:07:36] Speaker 01: But the question is not what the police want to do, but what a reasonable person would have understood from the exchange. [00:07:44] Speaker 01: Now, if they had said, if the police had said, look, we see this guy on your roof, and she says, go ahead and search, [00:07:51] Speaker 01: Sure, they can do it. [00:07:53] Speaker 01: In that situation, they've secured consent to go onto the roof. [00:07:56] Speaker 01: So they need to secure consent or get a warrant. [00:08:00] Speaker 01: And when they say, we think he's inside, we think he's inside, and she says, go ahead and go in there, the only consent that they've secured is consent to go into the home. [00:08:12] Speaker 00: And they saw the firearm with the naked eye, right? [00:08:16] Speaker 00: Yes. [00:08:16] Speaker 00: And so presumably other people could see the firearm with their naked eye. [00:08:21] Speaker 01: Not really because they had to climb onto a high wall like a seven foot high wall and then sort of shimmy up a telephone pole and shine a light and then they were barely able to see it. [00:08:36] Speaker 01: So yeah I think that the roof is not really visible from the street. [00:08:42] Speaker 01: I think that doesn't really go to the main issue which is the fact that they just didn't get consent to climb onto the [00:08:51] Speaker 01: So I think the locational scope issue is meritorious. [00:08:57] Speaker 01: The sort of object of the search that he couldn't reasonably have been found on the roof, that's preserved and the government doesn't really even fight on the merits of they can continue to search for him after they've already found him. [00:09:14] Speaker 01: So really all the government has left [00:09:17] Speaker 01: is this argument that Mr. Coronado does not have standing. [00:09:21] Speaker 01: But that's just not something that this court can or should address for the first time on appeal. [00:09:29] Speaker 01: That was something that was raised below. [00:09:32] Speaker 01: The district court deliberately avoided deciding that issue because it was a tough, fact-intensive issue. [00:09:39] Speaker 01: And that's something that the district court needs to address for the first time on remand. [00:09:46] Speaker 04: Let me ask you about Kenya. [00:09:48] Speaker 04: I mean, you've argued that when we're looking at the district court's decision about the scope of permission, that we review it de novo. [00:10:00] Speaker 04: But in Kenya, we held that it was we review for clear error [00:10:08] Speaker 04: the district court's factual finding that the defendant's consent extended to the motel room's bathroom. [00:10:16] Speaker 04: That suggests to me that we are on clear error review regarding the district court's decision about the scope of consent. [00:10:25] Speaker 01: Two responses to that. [00:10:28] Speaker 01: I definitely think we win under any standard of review because it's clearly erroneous to think that allowing me to go in your house gives me permission to climb onto your roof. [00:10:39] Speaker 01: That said, the fact that the overall standard of review is clear error does not preclude the notion that the district court can make a legal mistake in finding a fact. [00:10:51] Speaker 01: So what happened here is [00:10:54] Speaker 01: What a reasonable observer would have taken from the exchange is a legal question. [00:11:01] Speaker 01: And even if the overarching consent issue is a finding of fact, it's de novo whether the judge makes a legal mistake on the course of resolving a factual issue. [00:11:12] Speaker 01: That said, I think that the court doesn't even need to decide that because it's [00:11:19] Speaker 01: clearly mistaken to think permission to go in means permission to climb onto the roof. [00:11:26] Speaker 01: And it's clearly mistaken to think that consent to search for a person continues after the police have already found that person. [00:11:37] Speaker 01: Unless the court has... What makes standing sticky? [00:11:41] Speaker 00: Why is that difficult when we have testimony about not being a social guest and so forth? [00:11:48] Speaker 01: I think that the standing issue is sticky because there are disputes of fact. [00:11:54] Speaker 01: So Mr. Coronado claims that he was an overnight guest. [00:12:00] Speaker 01: And in fact, the police admitted that they had intel that he had been staying at that house. [00:12:06] Speaker 00: Staying or visiting? [00:12:08] Speaker 01: Staying. [00:12:09] Speaker 01: So the officer Munoz, who was the supervising officer, testified, you know, we were buzzing that house because our intel indicates that he was staying there. [00:12:20] Speaker 00: What was the defendant's testimony on that point? [00:12:24] Speaker 01: The defendant did not testify one way or the other on that point. [00:12:28] Speaker 01: The government claims that he did. [00:12:29] Speaker 01: That's wrong. [00:12:31] Speaker 01: What he said is Mr. Coronado's testimony, which the district court found was perjurious, was that when the police arrived that night, I wasn't there. [00:12:41] Speaker 01: I was at someone else's house. [00:12:44] Speaker 01: But what the police said is we've been going by that house because we had until he was staying there. [00:12:50] Speaker 01: Mr. Coronado alleged that I'd been an overnight guest there. [00:12:56] Speaker 01: The government claims otherwise. [00:12:57] Speaker 01: The district court hasn't held a suppression hearing and hasn't resolved this issue, and it needs to do so on remand. [00:13:03] Speaker 01: Thank you. [00:13:28] Speaker 02: May I please the court? [00:13:29] Speaker 02: Council. [00:13:30] Speaker 02: Council. [00:13:32] Speaker 02: Good morning. [00:13:32] Speaker 02: My name is Frederick Mendenhall. [00:13:34] Speaker 02: I represent the United States. [00:13:38] Speaker 02: Now, the first question presented in this case, Your Honors, is whether, well, a woman gave consent for law enforcement officers to search in her home for a wanted man. [00:13:51] Speaker 02: And the first question is whether that consent included permission to search her roof for that man. [00:13:59] Speaker 02: Below, the district court concluded yes, and that conclusion is not clear error, and we are absolutely on clear error standard review here. [00:14:09] Speaker 02: Just to respond to some of the points raised just now, Mr. Coronado represented today that no one disputes the facts, but he is disputing a fact, and that fact is the scope of consent. [00:14:23] Speaker 02: And this court has made absolutely clear that the scope of consent is a factual determination. [00:14:28] Speaker 02: And that's United States versus Peña. [00:14:31] Speaker 02: Judge McHugh has already brought that point up. [00:14:34] Speaker 02: Now today, he also argues, well, there was a legal mistake on the way to that factual determination. [00:14:41] Speaker 02: But he hasn't identified what that legal mistake is. [00:14:43] Speaker 02: I mean, here, the district court did exactly what it was supposed to do, look at the totality of the circumstances and make a factual determination [00:14:52] Speaker 02: whether the search of the roof was within the scope of consent. [00:14:57] Speaker 02: And it absolutely was. [00:14:58] Speaker 04: I think the argument is that the question of whether a reasonable person would understand go in to mean that you could go on the roof is a legal determination as a predicate to the factual determination of the scope. [00:15:18] Speaker 04: I think that's the argument. [00:15:20] Speaker 02: Your honor, and yes, your honor, I hear what the court's saying, but I think he has it absolutely reversed. [00:15:27] Speaker 02: You make the scope of consent factual determination, and then you make a legal call as to whether a reasonable person would understand all of that. [00:15:35] Speaker 02: I think this court's case in the United States v. Peña makes clear that we're here on clear error review. [00:15:42] Speaker 02: But regardless, we would win under de novo review as well. [00:15:49] Speaker 04: Let me ask you this. [00:15:50] Speaker 04: of whether they could search the roof after they already arrested Mr. Coronado is before us properly. [00:16:01] Speaker 04: Don't you lose it? [00:16:03] Speaker 02: Well, it's not before you, Your Honor, but I'll answer your question. [00:16:06] Speaker 04: Well, I'll answer my question first. [00:16:07] Speaker 02: Yes, Your Honor, of course. [00:16:09] Speaker 04: Can you go into somebody's house to search for a human being [00:16:13] Speaker 04: when you got permission to search for that human being, when you've already apprehended the human being, and therefore, no, they're not in the act. [00:16:23] Speaker 02: Your Honor, I would respond, in some cases, yes, you can. [00:16:26] Speaker 02: And I think it would be very factually specific. [00:16:29] Speaker 02: I recognize I didn't brief this. [00:16:32] Speaker 02: But I think there are a couple things that the court. [00:16:35] Speaker 04: Well, you didn't brief it because you hung your whole argument on it's not preserved. [00:16:40] Speaker 04: So if we were to disagree with you and actually [00:16:43] Speaker 04: be persuaded by the arguments that were made this morning about preservation, you haven't made any merits argument to it. [00:16:52] Speaker 04: So we have to rule against you, wouldn't we? [00:16:54] Speaker 02: Yes. [00:16:55] Speaker 02: We didn't waive it. [00:16:56] Speaker 02: I apologize, Your Honor. [00:16:58] Speaker 02: We did not brief it. [00:17:00] Speaker 02: But this Court can affirm on reasons that I have not raised. [00:17:04] Speaker 02: I recognize that I'm raising it here on our argument the first time. [00:17:07] Speaker 02: I know y'all are not really inclined to listen to these arguments raised [00:17:12] Speaker 02: here, but to answer the court's question about whether we would lose on that, I think the answer is in some cases, no. [00:17:22] Speaker 04: What about this case? [00:17:23] Speaker 02: In this case, yes, Your Honor. [00:17:25] Speaker 02: First, the question turns on the objective understanding of the parties, not subjective knowledge of them. [00:17:34] Speaker 02: So if one party learns of the subjective fact that actually this person isn't in the house, I don't think that would necessarily change the scope of consent. [00:17:44] Speaker 04: The second response I have, Your Honor, is that... When a reasonable person understands that I'm giving you permission to search for this person, who I've told you is not in my house, and I'm saying you can go in and assure yourself that I am telling you the truth, he's not in my house, [00:18:03] Speaker 04: You find somewhere else and arrest him. [00:18:07] Speaker 04: You think that you still have permission to go out and search her house? [00:18:09] Speaker 02: I think, Your Honor, there is some give in this Fourth Amendment analysis. [00:18:13] Speaker 02: I think a homeowner would know, OK, I'm giving them consent to search for something. [00:18:18] Speaker 02: As soon as they find it, they may need time to get out of the house. [00:18:22] Speaker 02: They may need to. [00:18:23] Speaker 02: Maybe not everybody knows about it. [00:18:25] Speaker 02: There is sort of a buffer period, I would submit to the court, that a reasonable person would understand. [00:18:30] Speaker 02: And in this case, the gun was seized within 20 minutes. [00:18:33] Speaker 02: And I point the court to the analysis in United States versus Jackson, which is in my brief. [00:18:38] Speaker 02: It's a Fourth Circuit case. [00:18:40] Speaker 02: I didn't cite it for this proposition, but it talks about a law enforcement officer having consent to search a basement for someone. [00:18:47] Speaker 02: In the first pass through, they see something suspicious, but they don't check it out immediately. [00:18:52] Speaker 02: They don't find the person, come back. [00:18:55] Speaker 02: later and look at what they thought was suspicious. [00:18:58] Speaker 02: And the court said that was fine. [00:18:59] Speaker 02: I think that's sort of a similar situation here. [00:19:01] Speaker 02: But I understand I did not raise that, Your Honor. [00:19:04] Speaker 02: You should absolutely find that this issue was raised. [00:19:07] Speaker 04: Well, is it waived? [00:19:08] Speaker 04: I mean, was it preserved? [00:19:09] Speaker 04: It was not preserved. [00:19:12] Speaker 04: I mean, an argument made, first of all, that it goes to the scope of consent so that the issue was raised. [00:19:22] Speaker 04: And this is just a variation on the argument. [00:19:24] Speaker 04: And we have another argument under SWE that because the district court ruled about what a reasonable person would understand and held that you could search the roof that they're able to respond to that with [00:19:44] Speaker 02: It was waived, Your Honor. [00:19:46] Speaker 02: And I want to be clear, there were two sentences in the reply brief below about this issue. [00:19:52] Speaker 02: And it was not this searches outside of the scope of consent. [00:19:55] Speaker 02: That's not what defense said below. [00:19:57] Speaker 02: Defense said, and I'm paraphrasing, the consent was for the House, not for the roof. [00:20:03] Speaker 02: From those two sentences, the district court would have had no idea, no one would have had any idea that they were raising this argument that actually [00:20:12] Speaker 02: It's not scope of consent. [00:20:13] Speaker 02: It's whether consent ended. [00:20:15] Speaker 02: They're completely different concepts, Your Honor. [00:20:19] Speaker 02: One, the way he raises it is a spatial concern. [00:20:22] Speaker 02: It's the house, not the roof, not a temporal argument about, actually, it was over. [00:20:27] Speaker 02: For that reason, this Court should find that it was waived. [00:20:33] Speaker 02: Now, taking the totality of the circumstances of the consent, which this Court looks at in the light most favorable to the United States, [00:20:42] Speaker 02: The context makes it clear that when Ms. [00:20:45] Speaker 02: Voltierra said, law enforcement officers, you can go in the house, she was giving a broader permission to search for a person, wherever that person may be. [00:20:57] Speaker 00: But it was conditioned, or at least it was in mind, the words chemical munitions. [00:21:05] Speaker 00: We're going to have to use chemical munitions and blow your house up or potentially damage property. [00:21:12] Speaker 02: Yes, Your Honor, those are things that the law enforcement officers did say to her. [00:21:18] Speaker 02: But it was all for the purpose of finding a person and taking the context in its totality that they were going to... Taking a step back, I think any reasonable person would understand, I'm giving permission for you to search for this man. [00:21:33] Speaker 02: And if they went inside and the man was there and fled to the roof, the reasonable person wouldn't think, [00:21:40] Speaker 02: My consent ended at the home. [00:21:41] Speaker 02: They can't go on the roof to go after this man. [00:21:43] Speaker 00: But had they spotted him on the roof, they wouldn't have used chemical munitions and damaged her property, right? [00:21:51] Speaker 00: That's a difference. [00:21:52] Speaker 02: I believe that's true, Your Honor. [00:21:53] Speaker 02: I think they probably would not have used munitions if they had spotted him on the roof. [00:21:59] Speaker 02: But I'm not sure about that. [00:22:04] Speaker 02: I think further adding context to this [00:22:07] Speaker 02: is that law enforcement officers did alert Ms. [00:22:10] Speaker 02: Valtierra that there was a gun on the roof. [00:22:14] Speaker 02: And in that moment, 30 seconds or so after they'd gotten consent from her that she volunteered for, volunteered, she didn't object. [00:22:21] Speaker 02: She didn't say, well, you can't go on the roof or you can't get the gun or anything like that. [00:22:25] Speaker 02: In that position, a reasonable person would absolutely think, OK, this gun that's not mine, law enforcement officers have just alerted me to it. [00:22:34] Speaker 02: By not objecting, it's quite reasonable that they go up there and get the gun. [00:22:39] Speaker 00: Why not just ask? [00:22:42] Speaker 02: They certainly could have, Your Honor, but they did not do that here. [00:22:44] Speaker 00: And so who bears the brunt of that? [00:22:47] Speaker 02: I think the question here is whether the district court clearly erred in finding it within the scope of consent. [00:22:57] Speaker 02: I don't think that that fact changes that analysis here, especially in the court's cases here. [00:23:04] Speaker 02: Like, for example, United States v. Peña, the fact that the person did not contemporaneously object to expanding the scope of the search is directly on point here, Your Honor. [00:23:20] Speaker 02: It's not something that the United States bears. [00:23:37] Speaker 02: But not only did it include the bathroom, but the ceilings above the bathroom tile. [00:23:43] Speaker 02: And as the court analyzed in that case, it was about the object of the search. [00:23:47] Speaker 02: Drugs could be hidden in the ceiling. [00:23:49] Speaker 02: A person could be hidden on the roof. [00:23:52] Speaker 02: Now, I recognize that Mr. Coronado raises, well, they cleared the roof, so he wouldn't be there. [00:23:58] Speaker 02: But the key distinction there, Your Honors, is that a person is mobile. [00:24:03] Speaker 02: They can run around. [00:24:04] Speaker 02: Even if they weren't on the roof at one point doesn't mean that they couldn't get into the roof later on. [00:24:09] Speaker 04: Was there a way to access the roof from inside the casita? [00:24:14] Speaker 02: Not from inside the casita, Your Honor. [00:24:16] Speaker 02: He'd have to go outside. [00:24:21] Speaker 02: There was a platform. [00:24:23] Speaker 02: Not a ladder, Your Honor. [00:24:23] Speaker 02: There was a platform on the backside of the house from which somebody could climb to get on the roof. [00:24:29] Speaker 00: Was the firearm visible to just a passerby? [00:24:33] Speaker 02: The firearm would be visible from a neighbor. [00:24:37] Speaker 02: I recognize that the neighbor would have to step up on their property and look around, but it would be visible to a neighbor. [00:24:44] Speaker 00: What does that mean? [00:24:44] Speaker 00: Climb a pole or have good posture? [00:24:48] Speaker 02: Something in between, Your Honor. [00:24:51] Speaker 02: Not a poll. [00:24:52] Speaker 02: I know that one of the law enforcement officers did. [00:24:55] Speaker 02: But if I recall correctly from one of the videos, there's like a platform or a standing from which a neighbor could step up on and look over the fence and could see it from that vantage point. [00:25:06] Speaker 00: But no community caretaker argument. [00:25:09] Speaker 02: No, we didn't raise a community caretaking argument, Your Honor. [00:25:13] Speaker 00: Did the drone spot the firearm? [00:25:15] Speaker 02: Yes, the drone did, but only after a human being spotted it first. [00:25:21] Speaker 00: Is that causal? [00:25:22] Speaker 00: It wouldn't have spotted it except the human being saw it first? [00:25:27] Speaker 02: I'm not sure, Your Honor. [00:25:28] Speaker 02: I mean, the record doesn't reveal that. [00:25:30] Speaker 02: Here, we do have a human being spotting it. [00:25:32] Speaker 02: And later on, they had a drone to confirm that. [00:25:34] Speaker 00: What if the officers had said, oh, we see a firearm. [00:25:37] Speaker 00: We caught the guy. [00:25:39] Speaker 00: We see a firearm up on your roof. [00:25:41] Speaker 00: And she says, well, I had a firearm stolen. [00:25:43] Speaker 00: And of course, they're looking for him for a firearm violation. [00:25:47] Speaker 00: So it's not a big stretch that he might have tossed the firearm on the roof. [00:25:51] Speaker 00: And they said, we want to go up on the roof. [00:25:54] Speaker 00: Is that OK with you? [00:25:55] Speaker 00: And she said no. [00:25:56] Speaker 00: Then what? [00:25:57] Speaker 02: She said no at that point. [00:25:59] Speaker 02: I think we'd have to secure a search warrant. [00:26:07] Speaker 02: Now, if the court. [00:26:09] Speaker 02: finds that the district court did clearly err. [00:26:13] Speaker 02: We did raise some standing arguments, Your Honor. [00:26:16] Speaker 02: And they are, I just want to take one. [00:26:20] Speaker 02: I notice that I'm almost out of time. [00:26:21] Speaker 02: The cleanest legal issue from which the court can determine standing is that [00:26:30] Speaker 02: Even assuming he was a social guest or a house guest or an overnight guest, Mr. Coronado did not have a reasonable expectation of privacy in the roof of Ms. [00:26:40] Speaker 02: Valtierra's home. [00:26:41] Speaker 02: It's a claiming legal issue, Your Honor. [00:26:43] Speaker 02: There are several cases from out of circuit that I cited for the proposition that even house guests don't have a reasonable expectation of privacy in every part of the home. [00:26:53] Speaker 02: That is an issue that this court can affirm on, and the record supports it. [00:26:57] Speaker 02: And I would urge the court to do so if it reaches it. [00:27:02] Speaker 02: Unless the court has any other questions for me, we stand on everything else in our brief, and we ask that the court affirm. [00:27:08] Speaker 00: Seeing no questions, thank you, counsel. [00:27:10] Speaker 00: I do have a question. [00:27:10] Speaker 00: Please. [00:27:12] Speaker 03: So why wasn't the standing issue better developed in the district court? [00:27:19] Speaker 03: At different places in the briefs, it said that the facts were fully developed, but the court declined to hold a hearing. [00:27:26] Speaker 03: I didn't see a request for a hearing on this issue or a motion that [00:27:30] Speaker 03: teed it up for the district judge? [00:27:33] Speaker 02: This is a great question, Your Honor. [00:27:37] Speaker 02: Certainly, defense counsel below was very well aware of the standing issues and the briefing that was presented. [00:27:44] Speaker 02: I would direct the court to volume four on the record of appeal, page 663. [00:27:51] Speaker 02: Defense counsel talks about, I've done some research on the standing issue. [00:27:56] Speaker 02: He's clear that he says, I'm not conceding this. [00:27:59] Speaker 02: but I think I'm going to have problems on standing. [00:28:01] Speaker 02: He says that to the district court judge. [00:28:04] Speaker 02: Later, at a separate hearing, before he files his reply brief, he tells the court, and this is volume four on record of appeal, 14 and 15, pages 14 and 15, he asks the court for a continuance on his reply brief. [00:28:20] Speaker 02: He says that he's talked to some witnesses. [00:28:22] Speaker 02: It's the homeowner and the sister. [00:28:25] Speaker 02: And he says, I have my reply brief written. [00:28:27] Speaker 02: I recognize I'm out of time. [00:28:28] Speaker 02: I have my reply brief written. [00:28:30] Speaker 02: I want to attach an affidavit about what they're going to say, but they need counsel before I do that. [00:28:37] Speaker 02: As soon as they have counsel, I'm going to attach this affidavit and submit it to you, District Judge. [00:28:44] Speaker 02: District Judge says, fine. [00:28:46] Speaker 02: Curiously, six weeks later when he files the reply brief, there's no affidavits filed. [00:28:52] Speaker 02: I think this is a clear signal, Your Honor, [00:28:56] Speaker 02: Defense counsel looked into the standing issue, and he did not think that there were going to be any facts from which he could present to meet his burden. [00:29:03] Speaker 02: Well, Escort has any further questions for me. [00:29:06] Speaker 02: Thank you. [00:29:14] Speaker 00: Mr. Lee, so I'm not burning your time. [00:29:16] Speaker 00: Come on up to the podium. [00:29:17] Speaker 00: But while you're walking, let me ask you to pick up right where counsel left off, which is no reasonable expectation in the roof. [00:29:25] Speaker 01: Yes. [00:29:25] Speaker 01: A couple of things about that. [00:29:27] Speaker 01: First, I think opposing counsel has sort of confused the record here. [00:29:32] Speaker 01: The bottom line is defense counsel claimed Mr. Coronado did have standing. [00:29:37] Speaker 01: He claimed that it was because he was an overnight guest and he requested an evidentiary hearing to prove those allegations. [00:29:44] Speaker 03: Can you tell us where that is in the record? [00:29:46] Speaker 01: Yes, give me one second. [00:29:49] Speaker 01: It is in Mr. Coronado's reply. [00:29:54] Speaker 01: Let's see. [00:29:57] Speaker 01: Okay. [00:29:58] Speaker 01: It is in Mr. Coronado's... Give me one minute. [00:30:12] Speaker 01: Yes, here we go. [00:30:14] Speaker 01: It is... [00:30:15] Speaker 01: Volume 1 of the record, page 220, is the reply in support of the motion to suppress. [00:30:24] Speaker 01: And that's where he says, Mr. Coronado was an overnight guest. [00:30:29] Speaker 01: I request an evidentiary hearing. [00:30:31] Speaker 01: So it was very clear that he was claiming standing for that reason. [00:30:34] Speaker 01: Now, the government says, well, hey. [00:30:37] Speaker 03: Can I just ask you one more question? [00:30:38] Speaker 03: Is that the same motion to suppress, which is requesting the Franks hearing, or is it a different one? [00:30:44] Speaker 01: It's a reply in support of that motion. [00:30:46] Speaker 01: So the reply in support of the motion, there's a general request for an evidentiary hearing. [00:30:52] Speaker 03: But didn't those only go to the sufficiency of the search warrant? [00:30:57] Speaker 03: That whole motion to suppress? [00:30:59] Speaker 01: No. [00:31:00] Speaker 01: So the motion to suppress is about the search warrant, right? [00:31:04] Speaker 01: It says the search warrant's invalid and I have standing. [00:31:07] Speaker 01: So the motion to suppress says both things. [00:31:09] Speaker 01: We have standing search warrants invalid. [00:31:11] Speaker 01: The government comes back and says, forget about the search warrant. [00:31:13] Speaker 01: There's consent. [00:31:15] Speaker 01: The defense comes back and says, no, she didn't consent to this search. [00:31:20] Speaker 01: And I have standing because I was an overnight guest. [00:31:23] Speaker 01: I would like an evidentiary hearing. [00:31:25] Speaker 01: That reply starts at page 220 of volume one of the record. [00:31:30] Speaker 01: Last thing I want to say, if I may, is [00:31:33] Speaker 01: You don't even have to decide reasonable expectation of privacy because going on the roof is a physical intrusion onto the home and an overnight guest has standing to challenge a physical intrusion onto the home. [00:31:47] Speaker 01: That's United States versus Bain from the First Circuit cited in my brief. [00:31:50] Speaker 00: Any cases with the roof? [00:31:54] Speaker 01: No, but in use check, this court said that going onto the roof would be a physical intrusion onto the home. [00:32:01] Speaker 01: So if you put use check together with bang, you get the idea that an overnight guest has standing to challenge a physical intrusion onto the home. [00:32:11] Speaker 00: All right. [00:32:11] Speaker 00: Thank you, counsel, for your arguments. [00:32:13] Speaker 00: The case is submitted. [00:32:14] Speaker 00: Counselor excused.