[00:00:00] Speaker 03:
And we will move on to our next case, United States v. Marshall, number 255155.

[00:00:11] Speaker 03:
Please proceed.

[00:00:12] Speaker 01:
Good morning. May it please the court. Brandon Lauer on behalf of Patrick Marshall, the appellant and defendant in this matter.

[00:00:21] Speaker 01:
The district court erred in denying our motion to suppress the evidence in this matter.

[00:00:28] Speaker 01:
And we ask this court to reverse that and remand it back to the district court.

[00:00:34] Speaker 01:
For on a de novo review, the facts and circumstances taken separately and in their totality cannot support the legal conclusion that Officer Vernon had reasonable and articulable suspicion that Mr. Marshall was presently armed and dangerous.

[00:00:50] Speaker 02:
Well, aren't we on clear error review for the factual findings specifically that you're challenging that underlie the reasonable suspicion determination?

[00:00:59] Speaker 01:
Your Honor, there are two issues that we did argue that were clear error by the district court.

[00:01:07] Speaker 01:
Would you like me to expound on those? Yes, please. So we did argue that the first issue that we believe was clear error was the district court's finding that Officer Vernon had both the training and experience to detect the odor of heroin in the way he described through one's sweat, through one's pores. Whereas the transcript and the testimony is definitively clear, it is quite the opposite.

[00:01:38] Speaker 01:
Officer Vernon only had kind of some experience dealing with folks who have used heroin. They described it as about 10 traffic stops where he had some experience. So the district court describing it as both training and experience, we believe is a clear error lacking any factual support in the record.

[00:01:58] Speaker 01:
The second issue that we believed was a clear error was I apologize, Your Honor. I'm blanking on what the second issue was that we argued was a clear error.

[00:02:27] Speaker 02:
About Ms. Wilson's request to remove Mr. Marshall from the car before conducting the search?

[00:02:34] Speaker 01:
My apologies, Your Honor. Yes. So we had argued that when you look at Officer Vernon's testimony in the transcript, what he had testified to was that her request that Mr. Marshall removed from the car due to his general law enforcement experience that he always pulls people out of the car gave him the belief that she believed that he may have, quote, something on him.

[00:02:58] Speaker 01:
The district court read more into that than Officer Vernon conceded or testified to. Officer Vernon simply said something. The district court said, well, Officer Vernon believed that he must have had a weapon.

[00:03:12] Speaker 02:
Under the circumstances, why would that be an unreasonable or impermissible inference on the record?

[00:03:17] Speaker 01:
Because Officer Vernon did not make that inference. He did not state that he believed he had a weapon based off that. He merely stated that he believed that he may have something.

[00:03:32] Speaker 01:
As for the factors used to make the legal determination that reasonable suspicion occurred, I want to start with odor.

[00:03:42] Speaker 01:
Officer Vernon testified that what he had smelled was a chemically vinegar smell associated with heroin. It's volume three, page nine.

[00:03:51] Speaker 01:
Quote, like their body secretes, changes their pH balance or something. It's volume three, page 17.

[00:03:58] Speaker 01:
In other words, what Officer Vernon described was as if he was smelling a smell like one was sweating it from their pores.

[00:04:08] Speaker 01:
And now taking it face value, what does this show?

[00:04:13] Speaker 01:
It shows that at some point in the past, unknown, Mr. Marshall maybe used opiates.

[00:04:20] Speaker 01:
But what it does not show and what does not support is that he was presently armed and dangerous.

[00:04:26] Speaker 01:
How does one get from past usage of an opiate to being presently armed and dangerous?

[00:04:33] Speaker 01:
And if I may analogize, it is as if a co-worker were to have a dinner heavily seasoned with garlic or perhaps ate quite a number of pickles for dinner, shows up to work the next day, perhaps without brushing their teeth, and you can smell that heavy odor of garlic on their breath or of vinegar from the pickles.

[00:04:56] Speaker 01:
but yet one couldn't make the, one wouldn't accuse their coworker of having a clove of garlic or a pickle hanging around in their suit pocket. And so in the same way, this odor coming from sweat, as reasonable as that may or may not be, considering that Officer Vernon conceded he had no formal experience, regardless the value of this is limited.

[00:05:27] Speaker 02:
The notion that one- Even if we agree with you on that fact, don't we have to assess all of the facts in the totality? Aren't we required to do that under applicable law?

[00:05:40] Speaker 01:
Yes, Your Honor. We do first individually analyze the probative value of each separately and then collectively and in the context of the totality of the circumstances.

[00:05:49] Speaker 02:
So how do you prevail on the totality of the circumstances?

[00:05:55] Speaker 01:
Your Honor, it's our position that each of the factors used, that being the driver's nervousness, the odor, the generalized criminal history, and the generalized gang associations, separately are weak enough that, as in United States v. Wood, in United States v. Wood, the court noted that reliance on the, quote, mantra, of totality of the circumstances cannot quote metamorphose those facts into reasonable and articulable suspicion. And so the facts here, even though there are a number of factors, they are weak individually and they're weak enough individually that even when you look at the totality, you cannot force those, you cannot shove them into the box of totality and find a reasonable suspicion.

[00:06:49] Speaker 01:
Drug use has been recognized by this court at Garcia, 2014 Garcia. Drug use has been viewed as a minor factor in reasonable suspicion analysis, whereas versus there's a much stronger nexus where there's evidence of drug trafficking. But we have no evidence of drug trafficking here. All we have is evidence of some prior drug usage.

[00:07:15] Speaker 01:
Criminal history.

[00:07:17] Speaker 01:
What do we know or what did Officer Vernon know about Mr. Marshall's criminal history?

[00:07:24] Speaker 01:
We don't know. All he testified to was that he had known that he was a felon.

[00:07:32] Speaker 01:
In cases where criminal history has mattered or where it has been important, it is often because that criminal history has involved weapons, it has involved violence, it has involved drug trafficking, So was the criminal history here violent? Did it involve drug trafficking? Did it involve weapons? Well, we don't know.

[00:07:57] Speaker 01:
And general criminal history, even felony history, does not make one a roving target for search and seizure. And so any probative value from Officer Vernon's mere understanding of Mr. Marshall as a felon is attenuated by that lack of detail.

[00:08:16] Speaker 01:
Gang association, similarly to the criminal history, we lack a lot of detail.

[00:08:23] Speaker 01:
And in cases where gang association matters, there's often more.

[00:08:28] Speaker 01:
How is the association determined? Are we talking an active membership? Are we talking family members? Are we talking his best friends? When was this association? For how long? How involved was he?

[00:08:44] Speaker 01:
We don't know. All we know is that Officer Vernon knew he had a, quote, association with the United Aryan Brotherhood.

[00:08:51] Speaker 02:
How should we be thinking about the district court's focus on concerns about officer safety when we're assessing the totality?

[00:09:03] Speaker 01:
Yes, Your Honor. Officer safety can be seen as more of the societal justification for why we permit these warrantless searches on something less than probable cause. It's kind of the why we allow frisks to occur, but it's not the constitutional rule and standard. The standard is still and ultimately will be Terry and Arizona v. Johnson armed and dangerous.

[00:09:31] Speaker 01:
as the court kind of re-clarified in United States v. Fager, reaffirming that cases that get close to officer safety as its own justification, such as McCray and Manjaroz, are not exceptions to the armed and dangerous requirement, but those cases merely were specific facts and functioned as specific applications of how the armed and dangerous requirement played out.

[00:09:59] Speaker 01:
And as they noted in footnote four of Fager, an officer's ability to search a car does not automatically mean he has the authority to frisk the driver, or alternatively, I would argue the passenger. As in the underpinning of a frisk is always and always will be reasonable and articulable suspicion that one is armed and dangerous. The justification for why is the need for officer safety.

[00:10:29] Speaker 03:
So before you move on, then, could you just tell me how you think we should consider the fact that the passenger asked that the defendant be removed? How do we weigh that? What do we do with that?

[00:10:45] Speaker 03:
Are you giving it no weight, I guess is what I'm asking.

[00:10:50] Speaker 01:
Your Honor, so on the body cam, so on the exhibit at the district court level, it starts at roughly about the five-minute, 20-second mark. Officer Vernon asks, hey, can I search your vehicle? And she says, yes, quote, if you'll get him out.

[00:11:09] Speaker 01:
Now, it's hard to really know perhaps what her intent may have been there. A lot of this requires a lot of speculation reading into that request.

[00:11:22] Speaker 01:
But the logical conclusion that or the I guess the legal conclusion that that somehow is sufficient to show that the driver is somehow guilty. I guess hinting that he might have a weapon is pure speculation.

[00:11:38] Speaker 01:
It's hunch.

[00:11:40] Speaker 03:
And I guess I understand that you think that inference is incorrect, but what would you do with it? Nothing.

[00:11:50] Speaker 03:
I mean, would anything that we would draw from that be speculation? I guess to say it differently.

[00:11:58] Speaker 01:
Yes, Your Honor. I would argue that there's really not a whole lot to do with it. But I would argue that it certainly is insufficient, even in the totality of the circumstances, to find that Officer Vernon had a reasonable suspicion that there was a weapon on Mr. Marshall and that he was presently dangerous.

[00:12:20] Speaker 01:
And so I would ask that the court does not read a whole lot into that request.

[00:12:28] Speaker 01:
And so because Officer Vernon did not have a reasonable and articulable suspicion that Mr. Marshall was presently armed and dangerous, the district court erred, and we would ask that the court on its de novo review reverse and remand back to the district court. Thank you. I would ask to reserve the rest of my time unless there's any questions.

[00:12:52] Speaker 03:
You may. Thank you.

[00:12:57] Speaker 00:
May it please the court, Mike Flesher on behalf of the United States.

[00:13:01] Speaker 00:
Your Honor, I want to start by addressing your last point of how Ms. Wilson's comment, I guess, how Officer Vernon interpreted that comment, which it's very clear on the record.

[00:13:15] Speaker 00:
Officer Vernon states that it stood out to him that...

[00:13:21] Speaker 00:
And especially the context of that statement in the record transcript that not only was he talking about officer safety at that point, but he says that because of that statement, it made him believe that she knew he had something on him. Obviously, that the district court interpreted that statement as a weapon.

[00:13:48] Speaker 00:
It also, importantly, connects Ms. Wilson's conduct to Marshall. I know in the defense's reply brief, they bring up the recent United States v. Williams case, which obviously was involving a protective sweep, not a pat frisk, as here.

[00:14:08] Speaker 00:
The court held that, obviously, the relationship in and among itself is not reasonable suspicion.

[00:14:13] Speaker 00:
However...

[00:14:16] Speaker 00:
more so like the driver in Williams, is where we have Mr. Marshall.

[00:14:21] Speaker 00:
He is the passenger in a car. He is stopped at this time. However, he also has extensive criminal history that we know involves things such as domestics, car theft, as well as I believe just general theft.

[00:14:40] Speaker 00:
We have his association with the Universal Aryan Brotherhood, which Officer Vernon testified is involved in narcotics, firearms, and violent crimes.

[00:14:57] Speaker 02:
You agree that Officer Vernon had no training, right, in terms of detecting opiate use?

[00:15:02] Speaker 00:
Yes, Your Honor.

[00:15:03] Speaker 02:
Right. So when the district court said that he did have that training or he made a finding based on that he had that training, that that's clearly erroneous.

[00:15:12] Speaker 00:
Yes, it would be if the district court hadn't corrected itself in its subsequent order. Obviously the district court in its, um, order denying, uh, is reconsideration expressly stated that officer Vernon relied on his experience encountering heroin and opiates.

[00:15:32] Speaker 00:
Um, another point I would like to address though is, um, the totality of the circumstances here, any officer in Officer Vernon's shoes would find that it was reasonable to frisk Mr. Marshall upon him getting out of that car or upon having to get him out of the car before the search.

[00:15:51] Speaker 00:
Everything available to Officer Vernon, including his gang affiliation, knowledge of the criminal history, and his prior personal experience with both Mr. Marshall and Ms. Wilson, Ms. Wilson's request and what officer Vernon described as his abnormal or her abnormal nervousness, um, with opening the door multiple times during the stop, which required him to come, like ask her to come back to the car.

[00:16:22] Speaker 00:
The totality of the circumstances available to officer Vernon, a reasonable offer would have frisked Mr. Marshall upon getting him out of the car, not only under a totality of the circumstances, but especially for officer safety. Notably this traffic stop occurred at midnight, um, There are two suspects in this car. Another officer does later arrive to back Officer Vernon up.

[00:16:44] Speaker 00:
However, given everything available to him, he wasn't going to allow a potentially armed person and dangerous person out of that car behind him where he could be attacked without being seen.

[00:17:01] Speaker 00:
It's just unreasonable to allow that.

[00:17:04] Speaker 00:
any officer to turn their back to a potentially dangerous suspect at any point, especially when they are out and over.

[00:17:16] Speaker 00:
Bless you.

[00:17:26] Speaker 00:
It is also important to note, I know defense counsel brought up the body-worn camera. It's important to note that the frisk had hardly even started before Officer Vernon saw the pistol in Mr. Marshall's back pocket.

[00:17:46] Speaker 00:
Again, it's dark. Officer Vernon had to turn his flashlight on in order to see it.

[00:17:50] Speaker 00:
That obviously takes him into custody.

[00:17:57] Speaker 00:
However, if there are no further questions from the court, the United States would ask this court to affirm the district court's ruling and see the rest of its time.

[00:18:08] Speaker 01:
Thank you.

[00:18:12] Speaker 01:
On that last point made by the government, I can't quite tell if they're trying to argue inevitable discovery or not.

[00:18:19] Speaker 01:
The record has no indication, if I was understanding the government's argument correctly, that The record has no indication, the briefs have no indication that Officer Vernon somehow saw this gun before he started the frisk. Perhaps I misunderstood the argument, but to the degree that that was an argument of inevitable discovery, I think that argument has been waived at this point.

[00:18:44] Speaker 01:
As for the context of Ms. Wilson's statement, that context that he determined was that Mr. Marshall may have had, quote, something.

[00:18:54] Speaker 01:
And as for her nervousness, her nervousness does not appear particularly abnormal or egregious. Sure, she's talkative when you watch her on the body camera. She does have the door open. But for all we know, this could be a couple of nervous drug users airing out the passenger door.

[00:19:18] Speaker 01:
But the probative value in an RAS armed and dangerous scenario for merely being a drug user is limited, such as in the United States v. Wald, where the odor of burnt methamphetamine still did not give reasonable suspicion that Mr. Wald was armed and dangerous.

[00:19:34] Speaker 01:
And so a lot of this boils down to his criminal history and his gang association. And so I will simply end pending any questions on United States v. Hammond that they wrote that our holding today is not to suggest that Mr. Hammond or any other person suspected or convicted of an armed crime in the past.

[00:19:54] Speaker 01:
stress armed, there may be indiscriminately stopped and frisked on the basis of his criminal history and gang affiliations. Here, we don't even have evidence of a history of armed criminal history. We just simply have criminal history. And so that seems to be the bulk of it is his history. And then you've got the drug usage and then a little bit with the nervousness of the driver. And so each of those separately are weak. Together, they're still too weak.

[00:20:25] Speaker 01:
So we would ask for the court to reverse. I see I'm out of time.

[00:20:29] Speaker 03:
Thank you.

[00:20:31] Speaker 03:
All right, I want to thank counsel for their arguments today. They were very helpful. And the case stands submitted and counsel is excused.