[00:00:02] Speaker 03: Case number 13-3061, United States of America versus Ezra Griffith Appellant. [00:00:08] Speaker 03: Mr. Burgess for the appellant, Ms. [00:00:09] Speaker 03: Bates for the appellee. [00:00:15] Speaker 01: Good morning. [00:00:16] Speaker 00: Good morning. [00:00:16] Speaker 00: May it please the court? [00:00:18] Speaker 00: Bill Burgess of Kirkland and Ellis on behalf of Ezra Griffith. [00:00:21] Speaker 00: I'd like to reserve three minutes for rebuttal. [00:00:24] Speaker 00: We've raised three issues. [00:00:25] Speaker 00: I hope to say a couple of words about all three, but I think I'll start with the warrant. [00:00:29] Speaker 00: On its face, the warrant lacks probable cause in at least three respects. [00:00:32] Speaker 00: First, there's no probable cause to believe that Griffith ever owned or possessed any of the items that the warrant [00:00:38] Speaker 00: request permission to seize in search for. [00:00:40] Speaker 00: There's no evidence that any of these items even exist. [00:00:43] Speaker 00: There's nothing about a cell phone. [00:00:45] Speaker 00: There's nothing about newspaper clippings or scrapbooks or any of the papers they want to rifle through in the first nine pages of the warrant. [00:00:50] Speaker 00: There's the first nine pages of the warrant that tell a story about a criminal investigation. [00:00:54] Speaker 00: And then there are these last two paragraphs that are like a detour from the first nine pages and seem to be copied and pasted from the ether. [00:01:01] Speaker 00: Second, there's no probable cause to believe that any of those items were located at the apartment that was searched. [00:01:06] Speaker 00: And third, there's no probable cause to believe that any of those items, even if they existed in 2013, contained evidence of the 2011 shooting that police were talking about investigating. [00:01:15] Speaker 00: Any one of those failures should render the warrant invalid, but all three of them should render the warrant so lacking in addition of probable cause that no police officer could reasonably have acted on the warrant. [00:01:25] Speaker 02: So can I just start off asking you this question, which is in Riley, the Supreme Court accepted the proposition that over 90% of people own a cell phone. [00:01:34] Speaker 02: Yes. [00:01:34] Speaker 02: So what do you do with that fact? [00:01:35] Speaker 02: I mean, I know part of your argument is that we don't, there's [00:01:41] Speaker 02: Nothing referenced in the affidavit that suggests knowledge that he, in fact, had a cell phone. [00:01:46] Speaker 02: But if Riley tells us that 90% of the people do, does that? [00:01:50] Speaker 00: I guess two things about Riley. [00:01:52] Speaker 00: One of the things, Riley does say that about 90% of Americans own a cell phone. [00:01:56] Speaker 00: And I think it's, we cite something in our brief to the effect that some number close to that is empirically true. [00:02:01] Speaker 00: Riley doesn't say that it follows from that that there's probable cause to search phones. [00:02:05] Speaker 00: Riley says that because of the information we keep on people's phones, [00:02:09] Speaker 00: Court scrutiny of these sorts of warrants should be particularly heightened. [00:02:13] Speaker 00: But even if you accept that inference that, you know, of course Mr. Griffith owns a phone, most people own phones, that's one of many inferences they have to pile up to get to probable cause in this case. [00:02:23] Speaker 00: And the first nine pages of the warrant, there's no mention of a phone. [00:02:25] Speaker 00: In fact, one of the people mentioned Carl Oliphant at A34, the appendix, doesn't even own a phone. [00:02:31] Speaker 00: Police, they rely heavily on the fact that he made calls one afternoon on a prison landline. [00:02:36] Speaker 00: It doesn't follow that there's probable cause to go to a residence wherever he may be found and search his phone. [00:02:43] Speaker 00: I guess what I'm trying to say is that there's no, even if you accept that Mr. Griffith owns a phone, they don't have probable cause to suspect that he owns a phone with evidence of criminal activity on it. [00:02:52] Speaker 00: They talk about him talking on a phone on a prison landline, but a phone isn't a permanent voice recorder the way a prison landline is. [00:02:58] Speaker 00: They'd have to be looking for texts or emails or [00:03:01] Speaker 04: Mr Bridges, it seems like the more salient limiting aspect of the three shortfalls that you talked about would be the third one. [00:03:10] Speaker 00: Yes. [00:03:10] Speaker 04: Is there any reason to think that the phone contained evidence and we have cases that say that when people are involved in drug dealing that there's reason to think that the home might contain [00:03:26] Speaker 04: the incidents of that trade. [00:03:28] Speaker 04: Is there any analogous evidence that you think that law enforcement could rely on in a case such as this? [00:03:37] Speaker 00: I don't think there is, I mean, reluctant to set a district court case to a court of appeals, but I think it's directly on point. [00:03:42] Speaker 00: The Garcia case from the Northern District of California, we say it talks about these drug dealer cases and says that these cases are carefully circumscribed to drug dealers. [00:03:50] Speaker 00: If people, if you have evidence that someone is involved in dealing drugs, then it's a reasonable inference that they have drug paraphernalia or evidence of further drug dealing at their home. [00:03:59] Speaker 00: And what Garcia said is we refused, it is, [00:04:02] Speaker 00: beyond even the good faith exception in Leon to extend that line of cases to drug users. [00:04:07] Speaker 00: And if you have evidence that someone is using drugs and no police officer could believe in good faith that's probable cause to search their home, then certainly that can't be extended to a case like this. [00:04:16] Speaker 00: Or because someone is, perhaps you have probable cause to believe that they're involved in criminal activity. [00:04:21] Speaker 00: They talk to people about it one day on a prison landline in two calls to his mother and his grandmother, I might add. [00:04:27] Speaker 04: I mean, I'll ask the government this, but I guess I'm asking a slightly different question, which is if they do want this evidence, what do they need as a predicate for getting it? [00:04:37] Speaker 04: Because it is true as an intuitive matter that [00:04:44] Speaker 04: our electronics, our repositories have a lot of information about our conduct. [00:04:48] Speaker 04: And where you have someone who's suspected of murder, you want law enforcement to have a way to find out information that might lead them to be able to prosecute the person that they have reason to believe was the perpetrator. [00:05:02] Speaker 04: And so what is the constitutional path? [00:05:09] Speaker 00: I'm not sure in this case what would [00:05:12] Speaker 00: What would clear the bar of an argument is that this is false short in several respects. [00:05:16] Speaker 00: But I mean, standard investigative techniques, you can do surveillance. [00:05:19] Speaker 00: You can investigate his associates. [00:05:22] Speaker 00: Any evidence to believe that he actually owns a phone in his texting would at least be a start. [00:05:26] Speaker 00: Perhaps finding phone numbers of associates he might communicate with. [00:05:33] Speaker 00: The word particular is in the Fourth Amendment. [00:05:35] Speaker 00: Any particularized evidence to believe that he's texting with someone or that he owns a particular phone [00:05:40] Speaker 00: Anything further that I mean if if there's nothing in the first person I pages the warrant about him even owning an electronic device or writing anything I mean keep in mind the warrant also. [00:05:51] Speaker 00: a search probable cause to rifle through his papers and search for things like newspaper clippings and writings and that sort of thing. [00:05:57] Speaker 00: But on the issue of the phone, just any particularized evidence at all, otherwise the last two pages of this warrant can be copied and pasted into anything and you have a modern day general warrant where you just add an address. [00:06:06] Speaker 02: Can it be based on the fact that by hypothesis the crime involves gang activity? [00:06:13] Speaker 02: You can imagine an affidavit that says, I'm an expert in dealing with gangs. [00:06:18] Speaker 02: I know how gangs operate. [00:06:20] Speaker 02: This crime bears the earmarks of a gang crime. [00:06:24] Speaker 02: Typically, when a gang member commits a crime, they share information about the crime with their fellow gang members, and typically they do that with cell phones and other electronic devices. [00:06:35] Speaker 00: I'm not aware of any presence of, and there's some intuitive logic to that, but if that's the law, then that would mean that anyone who's in a gang who is suspected of criminal activity is subject to search at any time. [00:06:48] Speaker 02: Gangs or associates. [00:06:50] Speaker 02: If the crime arises out of their gang activity. [00:06:58] Speaker 02: And you may say that, well, that's not, [00:07:01] Speaker 02: I mean, I think your argument is that that's not what the affidavit says in this case. [00:07:05] Speaker 02: And I take that point. [00:07:05] Speaker 02: I'm just in addressing it. [00:07:08] Speaker 00: I think that's part of it. [00:07:08] Speaker 00: I mean, I think the answer just has to be that's closer, but probably still a little bit too general. [00:07:14] Speaker 00: The idea is that all gang members are likely to communicate with each other. [00:07:18] Speaker 00: And gang members talk to each other, we think that we have probable cause to suspect someone of gang-related activity. [00:07:25] Speaker 00: Therefore, anyone in this gang is subject to search wherever they may be found for whatever we might find there. [00:07:30] Speaker 00: And we'll say on the warrant, because it's where we're investigating this gang-related activity, I think that still just has to be too general. [00:07:39] Speaker 00: I mean, the last two paragraphs of this warrant are basically the sorts of conclusory statements that the Supreme Court disapproved in Nathanson. [00:07:45] Speaker 00: And our view is the first nine pages don't support the last two paragraphs. [00:07:50] Speaker 00: And if you read the warrant from start to finish, it's kind of an abrupt detour the warrant takes at the bottom of A35. [00:07:55] Speaker 00: where he talks about this criminal investigation and how they monitor his phone calls, they find the car, they look at surveillance, and then at the very end there's this paragraph, you know, in your Affian's experience, gang members talk to each other and preserve evidence of their crime, and we want to go to this guy's apartment and take whatever we can find. [00:08:12] Speaker 00: There are phones, electronics, including but not limited to this and that, and all these writings, and they want to rifle through his papers too. [00:08:17] Speaker 04: Does it matter if Griffith actually just abandoned the gun independent of [00:08:24] Speaker 04: any search pursuant to a warrant, whether the warrant is painfully invalid or not. [00:08:33] Speaker 00: That is the government's abandonment argument. [00:08:35] Speaker 00: I think we all agree that if there was no constitutional violation or if this was some sort of a spontaneous [00:08:42] Speaker 00: that he did if the police just happened to be on the block that day, then we wouldn't have this argument. [00:08:49] Speaker 00: If someone had just thrown the gun out the window and the police had just found it, that would be abandoned property. [00:08:54] Speaker 00: But I think the district court recognized this at several places in the oral ruling. [00:08:58] Speaker 00: If it's police misconduct that prompted the abandonment, then it's not abandonment. [00:09:03] Speaker 04: Well, that's going to be a pretty [00:09:06] Speaker 04: fine question, whether it is unconstitutional conduct on the part of the police and the government, you know, sites would already be, and you can test that, but where is the line between, I mean, government is allowed, police are allowed to come to people's houses, they're allowed to knock on the door, they're allowed to ask to come in to talk to people, they aren't allowed [00:09:35] Speaker 04: Are they not allowed to approach the door? [00:09:39] Speaker 04: Where would you have us draw the line about when this, in the house search context, as distinct from in the personal stop context that we faced in Hodardee, where is the line? [00:09:55] Speaker 00: So I guess a couple of points about that. [00:09:58] Speaker 00: In this case, first of all, I think the line is when they say police search warrant. [00:10:02] Speaker 00: And it's all over the record that they said police search warrant when they approached and knocked. [00:10:06] Speaker 00: It's at A18 and A19, which is the government's brief in the suppression hearing. [00:10:09] Speaker 00: A84, which is Officer Scharf's testimony at the suppression hearing. [00:10:13] Speaker 00: And the record is clear. [00:10:14] Speaker 00: They said police, police search warrant when they knocked at the door. [00:10:18] Speaker 00: And search warrant is, those are words with legal effect. [00:10:21] Speaker 00: That is what initiates the search in our view. [00:10:24] Speaker 00: And the government argues at page 36 and 37 of their brief and in footnote 21 that there's no search until police officers cross the threshold. [00:10:32] Speaker 00: But nothing they cite actually supports that argument. [00:10:35] Speaker 00: In this case, there's 12 police officers who show up at a residence, bang on the door, announce police search warrant. [00:10:40] Speaker 00: Those words have legal effect, and everyone on the inside understands that no matter what they do, the police are coming through that door. [00:10:46] Speaker 00: Just like the words, you are under arrest, have legal significance, police search warrant initiates a search. [00:10:52] Speaker 00: Now they cite, [00:10:54] Speaker 00: Wilson v. Arkansas and Hudson v. Michigan, I think that might be in the, I don't remember if it's on the page or in footnote 21, but neither of those cases draw that line, and neither of those cases actually talk about where a search begins. [00:11:05] Speaker 00: Wilson holds that the knock-and-announce requirement is a command of the Fourth Amendment, and Hudson v. Michigan says that knock-and-announce violations don't necessarily subject you to the... So if the keywords are police search warrant, then if the police come to the door and say, police, can we talk to you? [00:11:21] Speaker 02: and then the response to that, police, can we talk to you, is somebody inside the house throws a gun out the window and lands in a public area where the police have every entitlement to be because they can go into public areas, then you wouldn't dispute that that's a government. [00:11:37] Speaker 00: I don't think we could. [00:11:38] Speaker 00: I mean, if they were coming to execute a search warrant, I think we might have an argument. [00:11:41] Speaker 00: But if they were just coming to ask questions, just maybe we'd like to talk to them. [00:11:44] Speaker 02: But even if they're coming to execute a search warrant, if they – suppose the police have a policy of preferring consensual searches first before they try to execute the search warrant. [00:11:52] Speaker 02: So they have a – they're armed with a search warrant. [00:11:54] Speaker 02: They could execute a search warrant, but they don't say it. [00:11:56] Speaker 02: What they say is, police, can we talk to you? [00:11:58] Speaker 00: All right, so I guess two points in response. [00:12:00] Speaker 00: I want to be careful, be sure I'm actually addressing this directly. [00:12:03] Speaker 00: In this case, they do say police search warrant. [00:12:05] Speaker 00: We think that, at the very least, is when the search was underway. [00:12:08] Speaker 00: And the only case we found that actually suggests a real line is the Bailey case we say in our reply brief. [00:12:14] Speaker 00: And they talk about searches incident to executing a search warrant. [00:12:18] Speaker 00: And they say that the search warrant was underway when police were walking up the steps with a search warrant to execute it. [00:12:24] Speaker 00: And they encountered the defendant on the front steps. [00:12:26] Speaker 00: They hadn't said search warrant yet. [00:12:27] Speaker 00: They hadn't turned the key in the door or anything like that. [00:12:29] Speaker 00: They encountered him on the steps. [00:12:31] Speaker 00: They detained him and asked his help to get inside the house. [00:12:35] Speaker 00: Bailey isn't directly on point in the sense of this case, but the closest thing to a line actually is the Bailey case. [00:12:42] Speaker 00: And Bailey discusses, I'm sorry, I should correct myself. [00:12:46] Speaker 00: Bailey is discussing the facts of Michigan v. Summers, which is an earlier case. [00:12:49] Speaker 00: And they say, in Michigan v. Summers, the occupants were found on the front steps. [00:12:52] Speaker 00: And this is Bailey describing Michigan, and they say, [00:12:56] Speaker 00: The moment the search began was when they were walking up the front steps to execute the search warrant and they encountered this person on the front steps. [00:13:03] Speaker 00: So if they have a search warrant, they're coming up the steps to execute it. [00:13:08] Speaker 00: I think the search is underway in that point. [00:13:11] Speaker 00: But in this case, at the very least, when they knock and say, police, police search warrant, that's when the search starts in this case. [00:13:19] Speaker 00: seem into my rebuttal and happy to answer other questions the court has. [00:13:26] Speaker 00: I would like to make two quick points about the sentencing. [00:13:28] Speaker 00: Obviously, for our first two issues, we hope the court doesn't actually reach this, but there's one thing I'm going to clear up. [00:13:33] Speaker 00: There's a quote at pages 59 and 60 of the government's [00:13:36] Speaker 00: brief where they talk about, they quote the district court talking about Griffith's criminal history category, and the district court says, as your lawyer said, your prior record really bumps up the guidelines. [00:13:45] Speaker 00: I just want to make clear that that is not the district court talking about this enhancement in this case. [00:13:50] Speaker 00: The whole reason we're up here on Plain Arrow Review is that that wasn't discussed. [00:13:53] Speaker 00: What the district court says that A463 lines 10 to 13 is, as your lawyer said, your prior record really bumps up the guidelines. [00:14:01] Speaker 00: What his lawyer said is that A54 line 9 through A55 line 23. [00:14:06] Speaker 00: And what Mr. Zucker is saying is that although Griffith has a lot of things in his criminal history, just the sheer number of entries bumps him up to criminal history category 5, which is the second worst. [00:14:15] Speaker 00: He's saying none of those things are particularly bad. [00:14:18] Speaker 00: And the district court accepts that point. [00:14:20] Speaker 00: And this is also clear. [00:14:22] Speaker 00: The statement of reasons, which is not in the appendix because it's sealed, it's docked at number 40 at page three. [00:14:27] Speaker 00: The district court uses the words criminal history. [00:14:30] Speaker 00: This is all about criminal history. [00:14:31] Speaker 00: And the 70-month sentence that the district court ultimately gave is dead center of what the advisory range would be if he had criminal history category three instead of five. [00:14:40] Speaker 00: So to the extent the government's brief is read to suggest that the district court actually addressed this enhancement, we think it didn't. [00:14:46] Speaker 00: And the other point I'd want to make is that [00:14:48] Speaker 00: Beckel's can't change anything here because the government has conceded plain error. [00:14:52] Speaker 00: This is just like at six of the Sheffield opinion. [00:14:54] Speaker 00: We're only talking about prejudice because of the government's concession. [00:14:57] Speaker 00: And so this just absolutely has to go back regardless of anything else. [00:15:01] Speaker 04: Mr. Burgess, I know that current counsel wasn't counsel at the time, but I wonder why the case did not get briefed on appeal for three years. [00:15:11] Speaker 04: Do you know, answer that there were something like 15 adjournments? [00:15:19] Speaker 00: No, I'm not sure. [00:15:19] Speaker 00: I think it's personal conflicts on the part of the attorneys. [00:15:22] Speaker 00: I joined the case fairly late on the docket. [00:15:25] Speaker 00: To answer directly, I'm not sure. [00:15:30] Speaker 00: I'm not prepared to answer that. [00:15:31] Speaker 00: I'm sorry. [00:15:32] Speaker 00: If there's nothing further, I'd like to save the time I have left. [00:15:36] Speaker 00: Thank you. [00:15:37] Speaker 04: Thank you. [00:15:44] Speaker 03: May it please the court, Lauren Bates on behalf of the Appellate of the United States. [00:15:47] Speaker 03: With respect to the search warrant, here the warrant affidavit established probable cause for the search that was conducted. [00:15:53] Speaker 03: Even if this court has questions about whether the warrant established probable cause, there is no reason why the good faith exception of Leon would not apply in this case under these circumstances where the officers executed the search warrant that was signed by a superior court judge. [00:16:10] Speaker 03: And the government has also made a third argument that independent of the presence of the search warrant, here, appellant abandoned the gun by throwing it out the window. [00:16:21] Speaker 02: So before we go to abandonment, can we talk about the probable cause slash good faith? [00:16:27] Speaker 02: Yes. [00:16:30] Speaker 02: If, of course, Leon tells us if a Warren affidavit is sorely lacking in an issue of probable cause, then good faith doesn't apply. [00:16:37] Speaker 02: So to some extent, there's a significant overlap between the probable cause question and the good faith question. [00:16:42] Speaker 02: And as to both, there's no indicator that he has a phone. [00:16:49] Speaker 02: As far as I could tell, there's just nothing. [00:16:50] Speaker 02: We have no reason to suppose that he has a cell phone. [00:16:52] Speaker 02: Now, of course, it's true that many, many people do, but there's no indication that he doesn't. [00:16:56] Speaker 02: And as your colleague on the other side pointed out, one of the people that he called from jail didn't even have a phone. [00:17:02] Speaker 02: So at least possibly doesn't have a phone. [00:17:05] Speaker 02: There's also no indication that if he had a phone, it would necessarily be at the residence. [00:17:11] Speaker 02: because most people with their cell phones, I take it, they carry them with them. [00:17:15] Speaker 02: So unless he happens to be home at the time that the search warrant is being executed and nothing in the warrant tells us he needs to be home at that time, there's no reason to even think that the phone that he has would be at the home. [00:17:25] Speaker 02: It's going to be with him wherever he is. [00:17:27] Speaker 02: And I assume that when he was arrested initially for something separate, [00:17:31] Speaker 02: that no phone was recovered on this person at that point, you might tell me otherwise. [00:17:35] Speaker 02: But there's no indication to that effect. [00:17:37] Speaker 02: So those seem to be at least significant questions about the existence of probable cause. [00:17:43] Speaker 02: In a typical case, the phone's going to be found on the person. [00:17:45] Speaker 02: And then there's going to be a question of whether the warrant can authorize the search of the phone that's found on him, which seems different than a circumstance in which you don't know that he has a phone. [00:17:54] Speaker 02: No one's ever seen him with a phone, at least we don't know that anybody has, and you don't know that if he has a phone, it would happen to be at this residence at a time when he might not even be there. [00:18:05] Speaker 03: I think a couple of points in response to Your Honor's question. [00:18:07] Speaker 03: The case law instructs that you view an affidavit and affidavits to be interpreted when making this probable cause inquiry in light of everyday experiences, realities, practical facts and circumstances. [00:18:19] Speaker 03: And here, as Your Honors pointed out and as Appellant has recognized and conceded in his brief, at the time of this search warrant, the vast majority, much more than the fair probability standard, of Americans had cell phones. [00:18:35] Speaker 03: and used electronic devices. [00:18:37] Speaker 03: This warrant was for cell phones and other electronic devices, so it wasn't just premised on the notion that he had to have a cell phone and that that was the way he was communicating with other individuals, although I think that was the most likely scenario. [00:18:52] Speaker 03: Here, the warrant affidavit contained a specific statement from a 22-year veteran on the Metropolitan Police Department who [00:18:59] Speaker 03: stated under oath in the affidavit that in his experience, based on his training and experience in working with other detectives, electronic communication devices, phones, computers using Facebook, Twitter, email, the internet, were a way that closely affiliated gang and crew members communicated. [00:19:16] Speaker 02: So does that mean that anytime there's a gang member that's accused of, that's suspected of being part of a crime, [00:19:23] Speaker 02: Necessarily, you get a warrant to search a residence where the gang member may have been living. [00:19:29] Speaker 02: In this case, it's not even his own residence. [00:19:31] Speaker 02: It's somebody else's residence. [00:19:32] Speaker 02: There's reason to think he's there. [00:19:33] Speaker 02: You get a search warrant to search the residence of a gang member for any electronic device. [00:19:41] Speaker 03: I don't think that this court has to, I think that's a more difficult question than what we have on this record. [00:19:45] Speaker 03: What more do we have here? [00:19:46] Speaker 03: What more we have is that we have that this was a crime that was committed by multiple closely affiliated perpetrators. [00:19:52] Speaker 03: So you had three people, which is what the affidavit establishes. [00:19:56] Speaker 03: who committed this shooting and homicide, one of whom was in a car while two others were on foot, which gives you, again, this inference that there's orchestration, communication. [00:20:07] Speaker 03: You have facts and circumstances that show the close affiliation between the individuals. [00:20:13] Speaker 03: that showed that on the day that the police, on September 7th, take additional investigatory steps in the investigation, speak to appellant's mother about the car, that on that very day you have evidence of communications between appellant and other members, family and other closely affiliated crew members, about the ongoing police investigation. [00:20:36] Speaker 03: So the affidavit establishes that this is more than just [00:20:39] Speaker 03: a crime in the abstract that's committed by someone who's affiliated with a gang or a crew. [00:20:44] Speaker 03: This is a crime committed by multiple people working together who have, in fact, even months after the crime, at the time that the police make advances in their investigation, who have demonstrated their proclivity to talk and communicate about the offense, even when [00:21:01] Speaker 02: It's a proclivity to talk and communicate about the offense because they were talking about the fact of an ongoing investigation. [00:21:07] Speaker 02: That just seems natural whenever there's an investigation going on. [00:21:10] Speaker 02: They'll have conversations about it. [00:21:12] Speaker 03: Well, and so I think that you have this, I mean, whether you say that seems natural, I think that that helps the probable cause analysis here because the affidavit shows that you have these closely affiliated people who are talking about the offense and coupled with both the fact that cell phones and electronic communication devices are [00:21:32] Speaker 03: extremely prevalent at the time that this warrant was issued, and the specific statements... Were they talking about the offense, or were they talking about the investigation? [00:21:39] Speaker 03: I mean, the investigation into the offense, I think that you could... It seems different. [00:21:45] Speaker 02: They seem different to me. [00:21:46] Speaker 02: Does it not seem different to you? [00:21:47] Speaker 02: Because the fact that the investigation is a historical fact that they're discussing because it's going on, they're not talking about actually having committed the offense. [00:21:57] Speaker 03: Well, I think that this is evidence that would be relevant and probative towards establishing that they were the individuals who committed the offense because they are expressing concern. [00:22:09] Speaker 03: What do the police know? [00:22:10] Speaker 03: Did they know that the car was there? [00:22:12] Speaker 03: Did they have photographs of the car at the scene of the shooting? [00:22:16] Speaker 03: These are, whether you say that they are [00:22:19] Speaker 03: you know, actually confessing to the offense, these are communications that would be relevant and highly probative to establishing and proving, you know, one day in a court of law that these individuals are the individuals who committed this offense. [00:22:35] Speaker 03: So I think in that sense, I'm not sure that there's a great difference. [00:22:38] Speaker 02: So the additional facts are multiple individuals involved in an offense, which is to say that there's coordination, and then conversations [00:22:48] Speaker 02: about the investigation into the offense. [00:22:51] Speaker 03: A demonstrated proclivity to have these types of communications, not just in person. [00:22:58] Speaker 03: They were willing to have these communications on a recorded phone, jail phone. [00:23:04] Speaker 03: And at the time, perhaps unable to use a cell phone or have full access to email. [00:23:11] Speaker 03: But then you have a period of time shortly after those communications where appellant is no longer incarcerated, where you have statements from the detective that closely affiliated gang and crew members are known to use cell phones, email, Twitter, or Facebook to communicate about their activities and about crimes that they have committed. [00:23:33] Speaker 03: And it takes some issue with the characterization of this residence not being appellants' residence at the time. [00:23:40] Speaker 03: The affidavit established that... Oh, yeah, no. [00:23:43] Speaker 02: I mean, let's assume it's completely his residence. [00:23:46] Speaker 02: I guess my question is, any time you have an affidavit that says, gang members often communicate with one another through electronic devices, [00:23:53] Speaker 02: And that would give you probable cause to search the residence for electronic devices if you have additional facts that the crime involved some coordination and that there's some indicia that in fact the particular person actually has communications via landline or any other mechanism with other gang members. [00:24:16] Speaker 02: or without, not even other gang members, but with other individuals. [00:24:19] Speaker 03: I think, and the timing with the high prevalence of cell phones and the use of these electronic communication devices that those facts here coupled together. [00:24:29] Speaker 02: What's the last one? [00:24:29] Speaker 02: I didn't quite catch that the time. [00:24:31] Speaker 03: The prevalence, the fact that this was in 2000, you know, 2011 through 2013. [00:24:35] Speaker 02: Yeah, nowadays. [00:24:36] Speaker 02: I'm just saying nowadays. [00:24:37] Speaker 02: It's only going to grow. [00:24:38] Speaker 03: Would give police probable cause [00:24:41] Speaker 03: And we have to distinguish that this wasn't to search the contents of any electronic devices. [00:24:47] Speaker 03: This warrant did not authorize that. [00:24:49] Speaker 02: To search the home for the device. [00:24:50] Speaker 03: For those devices so that then the police could, you know, go back to a judge and provide, you know, an additional showing of probable cause asking and requesting to search those devices. [00:25:02] Speaker 03: And the reason that, I mean, to think of this in the context of the larger police investigation [00:25:06] Speaker 03: Appellant was pointing to certain facts that, you know, had we had it in the warrant, you know, appellant was suggesting that it would have been, would have established probable cause. [00:25:16] Speaker 03: Had you had, you know, a phone number or shown that, you know, he did have a cell phone. [00:25:23] Speaker 03: the steps that the investigation is taking to find out the phone number or find out the phone numbers that are communicating with each other. [00:25:32] Speaker 03: Step one is to get the phone so that you can then send a search warrant to the provider and learn the phone number affiliated with the phone. [00:25:40] Speaker 03: And so to some extent, what the police are doing here is moving in a logical sequence, knowing that here we have individuals who are communicating about matters concerning this offense, [00:25:52] Speaker 03: knowing that this is where Appellant is staying, the most likely place that he would keep his computers or phones that he uses for these communications, and coupled with the specific statement from the detective that cell phones and electronic communication are prevalent and used by gang and crew members, exactly what we have here, the warrant establishes a substantial basis [00:26:17] Speaker 03: to conclude that there's a fair probability that these cell phones will be found here or other electronic devices and would have relevant evidence related to the crime. [00:26:29] Speaker 03: And even if there's a question about whether an additional fact could have been necessary or would have been better to have in this warrant, there is no reason on this record to kind of [00:26:45] Speaker 03: use the very, very narrow exception in Leon and not apply the good faith doctrine here. [00:26:51] Speaker 03: Here you had a detective who went and took, there's no suggestion that there were false statements in this affidavit or material omissions, took the facts, put them on paper, took them to a superior court judge who reviewed everything and who authorized and signed off on this warrant. [00:27:10] Speaker 03: The warrant is not so lacking in kind of probable cause that the officer should have known walking out of the judge's chambers that this warrant would not have authorized the search. [00:27:22] Speaker 04: Do we know and is it appropriate and non prejudicial for us to know whether [00:27:30] Speaker 04: You in fact procured a separate warrant for searching inside any electronics or actually covered any electronics. [00:27:38] Speaker 03: So you do know what was recovered because that's listed on the bottom of the front page of the warrant the return and there were cell phones recovered in the apartment. [00:27:47] Speaker 03: The record as it stands today in this case does not contain. [00:27:50] Speaker 03: I have that information and I'm happy to speak out the record, and that was outside of the record that this court is inclined to know, but that was one of our points as it related most specifically to appellants. [00:28:06] Speaker 03: challenge to the particularity of the warrant raised for the first time on the appeal was that had that argument been raised below, the suggestion that this warrant was overbroad because it authorized the search of the electronics that were recovered, the government would have then, and did not, because it was not raised in the district court, would have then put into the record the information about subsequent search warrants that were obtained. [00:28:27] Speaker 04: And what's the, I know that's not an issue here, but the authority that requires, even when you have them in your possession, that you get a warrant to search inside of them is what? [00:28:38] Speaker 03: So I don't know that there's actually a specific case from this jurisdiction that speaks to the precise issue. [00:28:44] Speaker 03: But this warrant doesn't purport to authorize the search of the contents of any devices. [00:28:50] Speaker 03: It has no language about areas within with the phones, whether it's contacts or text messages or email that would be searched or date frames, which is what you would expect in some of these warrants. [00:29:03] Speaker 03: We know that none of that was introduced in this trial. [00:29:08] Speaker 03: And speaking outside the record, I can speak to other warrants that were obtained. [00:29:14] Speaker 04: So on the abandonment question, [00:29:22] Speaker 04: I thought it was clear as far back as bumper that if officers arrive at the door and say, you know, police open up with a search warrant, that what's done following that is not considered to be voluntary. [00:29:41] Speaker 04: So do you dispute that or? [00:29:44] Speaker 04: I mean, on the abandonment point, I guess I'm having trouble squaring that with the notion. [00:29:47] Speaker 04: If police come to the door and they say they have a warrant, and obviously I'm assuming that the warrant is invalid, and if it isn't, then we're not there. [00:29:56] Speaker 04: But if it were facially invalid and Leon didn't apply, which I understand from your perspective is a lot of ifs, then [00:30:05] Speaker 04: I don't see the case for voluntary abandonment. [00:30:08] Speaker 03: So I think looking to Hodari D., which was decided in 1991, would be the helpful kind of analogy to how to parse this question of voluntariness. [00:30:17] Speaker 03: Yes, if the police say in Hodari D., it's a seizure, you know, [00:30:20] Speaker 03: Police, stop. [00:30:22] Speaker 03: Turn on lights and sirens. [00:30:23] Speaker 03: Draw a weapon. [00:30:25] Speaker 03: Command you to stop. [00:30:26] Speaker 03: And you stop. [00:30:27] Speaker 03: At that point, I think your actions are no longer voluntary. [00:30:30] Speaker 03: You are seized. [00:30:31] Speaker 03: You are under the police authority. [00:30:33] Speaker 03: But if what you do is not comply with the police command or show of authority, so in the search context, that would be police, search warrant. [00:30:42] Speaker 03: What you do is not open the door. [00:30:44] Speaker 03: you know, not stop what you were doing and submit to the show of authority, but instead open the back window and try to discard and hide the evidence from the police who you know, you know, are at the door seeking to enter the apartment. [00:31:01] Speaker 03: The question isn't [00:31:03] Speaker 03: in the government's view, isn't one of voluntariness. [00:31:06] Speaker 03: At that point, there has been no unlawful police activity that coerced the throwing of the gun, because what the police have done is a show of authority, whether or not, just in the seizure context, whether or not they had probable cause or RIS to stop, and here whether or not you question the validity of the search warrant that they are announcing, if the defendant does not [00:31:31] Speaker 03: Submit to that show of authority, but instead abandons makes the decision to abandon property that abandonment is not That would apply after the officers enter the home, too So I think that's where you have to look at the difference between the context of a search and seizure once the so in hood already the answer is that once the [00:31:51] Speaker 03: the suspect submits in a seizure occurs. [00:31:54] Speaker 03: Abandonment that happens after that point, Hodari D. does not say, is separate from and not a fruit of any unlawful seizure. [00:32:03] Speaker 03: And so here, our position is that [00:32:06] Speaker 03: Once the search occurred, once you cross the threshold, enter the apartment, have a battering ram, and begin to make contact and break the property to enter the door, that is a very different question. [00:32:19] Speaker 03: And we're not making that argument here today, that abandonment at that point, running to the bathroom. [00:32:25] Speaker 01: But that still would not be unlawful activity on the part of the police. [00:32:30] Speaker 01: unless the warrant is invalid, I suppose. [00:32:34] Speaker 03: Correct. [00:32:34] Speaker 03: Yes, but here I guess assuming that, solely for purposes of this discussion, assuming that the warrant were invalid, I think that would be a much more difficult question than a circumstance not presented here. [00:32:46] Speaker 02: The differences between police search warrant [00:32:50] Speaker 02: open the door, the police start to go in, somebody inside says, oh my God, throws the stuff out the window. [00:32:55] Speaker 02: At that point, you say that's a fruit of an invalid search. [00:32:58] Speaker 03: That's a question not presented here. [00:33:00] Speaker 03: I guess I haven't fully looked into that. [00:33:03] Speaker 02: You might say that that's not even the fruit of an invalid search. [00:33:05] Speaker 03: I'm not sure that we would. [00:33:06] Speaker 03: I'm not sure that we would. [00:33:08] Speaker 03: But I think that that's a much more difficult question and not an argument that we are advancing in this case. [00:33:13] Speaker 02: As opposed to the door hadn't been opened yet. [00:33:14] Speaker 03: Yes, and so all you have here is the knocking police search warrant, which is analogous in the context of a seizure in Hodari D to the show of authority. [00:33:23] Speaker 02: So can I ask you this? [00:33:24] Speaker 02: If it's an arrest warrant, if somebody shows, if the police execute an arrest warrant and say, I'm placing you under arrest, and then the person, it's out on the street, and the person says, okay, you know, there's no physical seizure yet. [00:33:37] Speaker 02: Says, okay, and he does this thing where he puts his hands up and tries to hide whatever contraband it is and flips it, throws it. [00:33:44] Speaker 02: Would you take the position that that's abandonment, even though he's saying, okay, I'm arrested? [00:33:51] Speaker 03: So I think that that kind of conflates the submission and collapses the time frame of the submission and the act of abandonment, which again would make it a much more difficult question. [00:34:02] Speaker 03: Here we have 30 seconds that pass between the time of the knock. [00:34:06] Speaker 03: and when there's kind of the opening of the door, the beginning of any Fourth Amendment activity, the search occurring. [00:34:13] Speaker 03: And it is simultaneous with the knock, not with the opening of the door, that the gun is thrown out of the apartment window. [00:34:22] Speaker 03: And so I think that here the facts are much clearer that this was not a simultaneous submission. [00:34:27] Speaker 02: I guess I'm just wondering whether there's any, because then in the search context, the person says instead of, OK, I'm under arrest, they say, OK, I'm coming to the door. [00:34:35] Speaker 02: and they throw the thing out the window. [00:34:37] Speaker 02: So there's every indication that they're submitting to the search, just as in there's every indication that they're submitting to the arrest, it's just that as a consequence of the assertion of by hypothesis unlawful police authority to seize either the person or effectively the place to search, they're reacting by getting rid of the evidence. [00:34:52] Speaker 03: I think submitting to the search is a difficult phrase to use here because, again, you have to have either a submission to the show of authority, which is what creates a seizure, [00:35:03] Speaker 03: or a search. [00:35:04] Speaker 03: And there is no kind of analogous line of case law about talking about submission in the search context. [00:35:12] Speaker 03: The search does not occur if the police are still outside of a closed door having [00:35:18] Speaker 03: not reached the door in any way. [00:35:20] Speaker 03: You know, they haven't tried to break down the door. [00:35:23] Speaker 03: They haven't stepped across the threshold. [00:35:25] Speaker 03: The door hasn't even opened for them to be able to, where they're standing, even see into the premises. [00:35:30] Speaker 04: Right. [00:35:30] Speaker 04: Now, I follow your analogy to Hodari. [00:35:33] Speaker 04: I don't think either side has sated it, but I'm just reading Supreme Court's case in Bumper v. North Carolina and just sort of trying to make sense of how this might apply in this case. [00:35:43] Speaker 04: When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. [00:35:53] Speaker 04: The situation is instinct with coercion, albeit colorably lawful coercion. [00:35:58] Speaker 04: When there is coercion, there cannot be consent. [00:36:00] Speaker 04: And that is a case, different from this case, it's a case in which officers come in, I think they actually come into the house and someone says, go ahead, search thinks she has no right to resist. [00:36:16] Speaker 04: But there's some logic to the notion that once you are, and it's not really the search logic, it is the seizure logic where you're told we're here and we have this, [00:36:31] Speaker 04: You know, we have this authority to be everywhere in your place, that you no longer feel that what you do is, you can't just say, no, sorry, go away. [00:36:42] Speaker 03: And I will acknowledge I have not, in preparation for this argument, read the case. [00:36:47] Speaker 03: But a couple of points come to mind, which is that if it is true that the officers were present inside the apartment, that's a very different factual scenario than what we have here. [00:36:56] Speaker 03: And there is, I mean, HODARID stands for the proposition that police on the street, even when they make the show of authority that would be coercive, that would cause someone to feel that they are, you know, [00:37:10] Speaker 03: under, kind of, the police are, you know, licensed sirens chasing their car or on the street, you know, coming to surround them even if they have weapons drawn. [00:37:18] Speaker 03: In that situation, if the individual makes the decision whether or not their consent obtained under those circumstances would have been voluntary, but makes the decision not to submit [00:37:29] Speaker 03: and instead to flee and abandon property. [00:37:34] Speaker 03: I don't think the question is, had they stayed there and the police had asked for consent, would that consent have been voluntary? [00:37:42] Speaker 03: That's a very different [00:37:43] Speaker 03: legal question than what we have here and what Hodari D. speaks to, which is when you have the police who make a show of authority but a search hasn't occurred or a seizure hasn't occurred yet and instead of submitting, instead of opening the door in response to what may be viewed as [00:38:01] Speaker 03: you know, coercive statement, police search warrant were going to come in, which it wasn't as far as they went here. [00:38:06] Speaker 03: But instead of responding to that statement and submitting, if an individual chooses to instead throw, you know, abandoned property, I think Code RID very clearly states that under those circumstances, that property would not be a fruit and suppression would not be the appropriate remedy, even if [00:38:27] Speaker 03: the show of authority was unlawfully related. [00:38:30] Speaker 04: Do we know these kinds of precise facts about this case? [00:38:34] Speaker 04: I think the district judge didn't think that she had to decide that question. [00:38:38] Speaker 04: Do I? [00:38:41] Speaker 04: If what matters was the door open and the foot across the threshold, I don't know if that's what matters, but if that matters, wouldn't we need, and if we're there, these are a lot of ifs, wouldn't we need to remand for fact-finding [00:38:56] Speaker 03: I don't think so in this case. [00:38:57] Speaker 03: First, appellant hasn't challenged the relevant facts at all on appeal as it relates to the timing of the abandonment and the knock-in announce. [00:39:08] Speaker 03: And the record, the evidence both from the suppression hearing and trial, was undisputed on this fact that the testimony was that the knock-in announce occurred. [00:39:18] Speaker 03: The containment officer, Officer Sharp, outside heard the knock-in announce and testified that it was simultaneous with that. [00:39:25] Speaker 03: that the window was opened and the gun was thrown out, coupled with then the facts from trial that talk about the 30 second gap between the time of the not going to announce police search warrant and when the door was first opened, I think that the record that the court has here, even if you [00:39:42] Speaker 03: said that the district court judge didn't make this particular finding explicit in ruling on the motion to suppress because she ultimately ruled that the good faith exception would apply even if there wasn't probable cause. [00:39:55] Speaker 03: There's no need for a remand here because the facts are clear and undisputed. [00:40:02] Speaker 03: Unless there are further questions. [00:40:04] Speaker 03: And on the sentencing point, I will just point this court to the sealed statement of reasons. [00:40:08] Speaker 03: It's the government's position here [00:40:10] Speaker 03: based on the language in that, which is sealed and I won't reference here for that reason, a remand would be unnecessary. [00:40:16] Speaker 03: But even if it is, it would be a limited remand solely for the purpose of re-sentencing. [00:40:24] Speaker 03: Thank you. [00:40:24] Speaker 01: Thank you. [00:40:29] Speaker 01: Mr. Burgess, you may have two minutes of rebuttal time. [00:40:34] Speaker 00: Thank you. [00:40:36] Speaker 00: 3 points, assuming time allows. [00:40:38] Speaker 00: On Hodari D, the government's asking the court to extend the case that is fundamentally not about home searches with a warrant. [00:40:47] Speaker 00: And when you have a search warrant, the apartment, not the person, is a subject to search. [00:40:50] Speaker 00: That's why the government's saying that it's awkward to talk about a person submitting to a search or not. [00:40:56] Speaker 00: And when the police show up at the door with a search warrant and say police search warrant, there's no choice about whether to submit or not. [00:41:00] Speaker 00: The police are coming in. [00:41:01] Speaker 00: That's what police search warrant means. [00:41:03] Speaker 00: Anyone who's ever seen the police shows knows that if you don't answer the door quickly enough for them, the battering ram's coming. [00:41:08] Speaker 00: And to read Hodari D, it's laser focused on two things, the meaning of seizure and the incentives and dynamics involved when police spontaneously encounter someone on the street in order them to stop. [00:41:18] Speaker 00: Hodari D says things like, we have little reason, we suspect that very few of these orders to stop will be unconstitutional. [00:41:24] Speaker 00: We don't want to give people incentives to run from the police. [00:41:28] Speaker 00: You're talking about split-second decisions made by police officers and suspects on the street. [00:41:33] Speaker 00: Fourth Amendment rights are at their height in the home. [00:41:35] Speaker 00: This is a warrant that was sworn out three days before. [00:41:37] Speaker 00: Hodari D. doesn't apply to this case. [00:41:39] Speaker 00: The government also talked about proclivity. [00:41:41] Speaker 00: If you look at pages A32 and A33, this is the warrant. [00:41:44] Speaker 00: The phone calls are not a proclivity to talk at any time throughout his imprisonment with associates. [00:41:49] Speaker 00: These are four calls in one afternoon that Mr. Griffith made to his immediate family. [00:41:55] Speaker 00: There's two calls to his home residence, to his mother, and there's two calls to his grandmother. [00:41:59] Speaker 00: I think two of those calls led to [00:42:01] Speaker 00: Three-way one led a three-way call. [00:42:03] Speaker 00: The second call was to his grandmother's house, led to a three-way call to his mother's work. [00:42:07] Speaker 00: Then there was a call to home, which led to a three-way call to his child's mother and a call to his brother. [00:42:11] Speaker 00: This is the afternoon the police go to his house. [00:42:13] Speaker 00: He talks to his immediate family about the investigation. [00:42:16] Speaker 00: That's not the sort of proclivity the government mentioned. [00:42:18] Speaker 00: The government also mentioned practical realities. [00:42:20] Speaker 00: We're not suggesting that they're one detail short probable cause. [00:42:24] Speaker 00: The court's asking for a line. [00:42:25] Speaker 00: I'm trying to say that if you look at practical realities, police know how to investigate. [00:42:30] Speaker 00: They know how to get probable cause. [00:42:32] Speaker 00: And if you look at the last two paragraphs of this warrant, any police officer should know that nothing in the first nine pages establishes the sort of broad sweeping modern day search warrant that the last two paragraphs embody. [00:42:43] Speaker 00: The court has nothing further. [00:42:47] Speaker 00: Thank you. [00:42:50] Speaker 01: Peace will be submitted.