[00:00:14] Speaker ?:
is one of the most time-honored rights and traditions we have in this country.

[00:00:19] Speaker 04:
And this court should not take lightly an officer's assertion of facts, which turn out to be not only exaggerated, but untrue in some cases, when those misrepresentations and omissions can bring about the government taking their children away.

[00:00:45] Speaker 03:
the misrepresentations about the steak knives.

[00:01:43] Speaker 03:
that was her statement.

[00:01:45] Speaker 04:
Well the fact is she was

[00:01:57] Speaker 04:
Ultimately, that's going to be a jury issue as to the causation issue.

[00:02:03] Speaker 04:
Legally, that of course would not be sufficient to charge her, and I think the jury could rightfully decide that without those steak knives, which are actually butter knives, and by the way, the detective testified that he only saw one instead of seeing them strewn about the house.

[00:02:21] Speaker 04:
A jury could rightfully decide that she wouldn't have actually

[00:02:35] Speaker 01:
filed the charges.

[00:02:37] Speaker 01:
But the fact is that the statement was untrue about the knife.

[00:02:45] Speaker 01:
Isn't that correct?

[00:02:47] Speaker 04:
Yes, the statement was more untrue about the knife.

[00:02:51] Speaker 01:
And the state trial court dismissed the charges.

[00:03:08] Speaker 01:
that there was probable cause

[00:03:29] Speaker 04:
a level of independence from the prosecutor.

[00:03:31] Speaker 04:
There are cases from this court that say when the prosecutor simply relies on the police officer's report and doesn't give their own independent analysis of the situation, that that can break the chain of causation right there.

[00:03:56] Speaker 04:
She happens to say under oath, well, even without any evidence at all, I would still charge her.

[00:04:01] Speaker 04:
But of course, would not be a reasonable position for her to take.

[00:04:41] Speaker 04:
ways you can interpret the term uninhabitable, you know, outside of the legal context.

[00:04:46] Speaker 04:
It has legal meaning, you know, in the case of a charge for child endangerment, but that's not something that a prosecutor should just rely on.

[00:04:57] Speaker 04:
They would have to, you know, her admission that it was uninhabitable.

[00:05:04] Speaker 04:
The prosecutor would have

[00:05:12] Speaker 04:
allegedly that the trial could hurt themselves with.

[00:05:15] Speaker ?:
She found out that those were actually butter knives.

[00:05:17] Speaker 04:
She found out that there's actually not any real rotting food that poses a serious risk of unsanitary conditions, somebody becoming infected with anything.

[00:05:28] Speaker 04:
The prosecutor would have to look

[00:05:43] Speaker 04:
Why is that not dangerous in itself?

[00:05:47] Speaker 04:
A butter knife, there's a California Supreme Court case that says that it's not inherently dangerous.

[00:05:52] Speaker 04:
The detective... It hits with things that look like knives, a butter knife.

[00:05:57] Speaker 04:
I think they could do a lot of damage.

[00:06:00] Speaker 04:
You can do a lot of damage with almost anything, depending on how it's used, but it's not inherently dangerous.

[00:06:14] Speaker 04:
saw one and there's also the fact that there's a dispute about whether they were actually there and that's that's something that i think is is gone overlooked at this point i need to stress that what is the fact i thought the facts were that there was one steak knife on a on the table and then two butter knives in the couch is that that was what was alleged at trial

[00:06:39] Speaker 04:
That was on the counter.

[00:06:40] Speaker 04:
Yes.

[00:06:41] Speaker 04:
And then there's also the fact that Browder alleges that they were not actually there.

[00:06:46] Speaker 04:
And so the allegation here is that they alleged seeing what she was taken away from and where the photographs were taken was somehow tampered with.

[00:06:56] Speaker 04:
And so that's another part of it, is there's a dispute about whether it was actually there.

[00:07:00] Speaker 04:
There's also a legal issue about whether that's even sufficient to constitute probable cause.

[00:07:11] Speaker 04:
the evidence the I think you can infer circumstantially and you are allowed to use circumstantial evidence just by the fact that it was not true or is there anything else well when you characterize a butter knife as a steak knife a steak knife is something that I think

[00:07:35] Speaker 04:
see them in the kitchen they're very sharp they can obviously can be very dangerous a butter knife is not something yes but it's just a simple fact that it was wrong not anything else so you take that mischaracterization right misrepresentation that something that is not a weapon is a weapon and then you take that in conjunction with the fact that he's saying that all this food is around the house when you actually see the pictures in the house doesn't

[00:08:01] Speaker 04:
that it's a little cluttered, a little messy, but it doesn't remotely resemble the sort of, like,

[00:08:45] Speaker 04:
find that sufficient for child endangerment.

[00:08:48] Speaker 04:
You're talking about cockroaches, exposed wires, weapons that have been like handguns and things like that.

[00:08:55] Speaker 04:
You're talking about meth labs.

[00:08:57] Speaker 04:
You're talking about pit bulls that are running out running around without leashes.

[00:09:23] Speaker 03:
determination that that was child endangerment.

[00:09:45] Speaker 04:
endangerment.

[00:09:46] Speaker 04:
Now, you asked about pill bottles.

[00:09:49] Speaker 04:
Pills, of course, depending on what they are, could potentially be dangerous.

[00:09:53] Speaker ?:
Why not cleaning fluid?

[00:09:55] Speaker ?:
Why not any small object?

[00:09:57] Speaker 04:
An infant child ingests a marble or a small object.

[00:10:02] Speaker 04:
That could hurt the child as well.

[00:10:05] Speaker 04:
The fact of the matter is when you're talking about a

[00:10:14] Speaker 04:
So when you're talking, so it's not just a matter of, well, I think their house is dirty.

[00:10:21] Speaker 04:
I wouldn't keep things that way.

[00:10:22] Speaker 04:
Why don't they have their pills locked up somewhere differently?

[00:10:26] Speaker 04:
It has to be something that really poses a danger to the child, like a real danger.

[00:10:30] Speaker 04:
And in fact, the cases talk about actual harm befalling the child.

[00:10:35] Speaker 01:
Okay, just so I'm clear on the record, they went there based on her ex's report.

[00:11:08] Speaker 04:
what his relationship is to her.

[00:11:10] Speaker 04:
Now, I would like to talk on that note about the warrant application, because... Can I ask, before you get there, what was the charges dismissed?

[00:11:19] Speaker 04:
I mean, all that we have is based on the state of the evidence.

[00:11:22] Speaker 04:
Right.

[00:11:23] Speaker 04:
So what did that mean?

[00:11:24] Speaker 04:
That means, so you could not find, based on the evidence, the substantive evidence of the charge, it was insufficient to conclude beyond a reasonable doubt that she was guilty of that.

[00:11:39] Speaker 04:
Right, traction vertical.

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

[00:12:05] Speaker 04:
Mr. Reed didn't lie.

[00:12:06] Speaker 04:
He didn't make one lie.

[00:12:08] Speaker 04:
He didn't make two lies.

[00:12:08] Speaker 04:
He didn't make an innocuous mis-recollection or something like that.

[00:12:14] Speaker 04:
He lied about almost everything.

[00:12:15] Speaker 04:
He said he didn't know her.

[00:12:17] Speaker 04:
He said he never lived there.

[00:12:18] Speaker 04:
He said he had no

[00:12:28] Speaker 04:
this from his warrant application, he knew this.

[00:12:31] Speaker 04:
So we're not talking about in hindsight, well, he discovered later that Mr. Reed was lying about everything.

[00:12:37] Speaker 04:
He knew that he was lying about everything.

[00:12:38] Speaker 04:
He also knew that this is her ex-boyfriend.

[00:12:41] Speaker 04:
Now, the fact that it's her ex-boyfriend changes the nature of things significantly because he knows this.

[00:12:46] Speaker ?:
The officer put that information in the application knowing that it was false?

[00:12:52] Speaker ?:
He did not

[00:13:02] Speaker 04:
when he in fact at that time knew that Reed did live there.

[00:13:05] Speaker 04:
And he knew, he also knew that Reed had lied about these other things.

[00:13:08] Speaker 04:
And of course we have, you know, many cases from this court, from the Supreme Court, that talk about when you're a guy

[00:13:27] Speaker 04:
application.

[00:13:28] Speaker 04:
Right.

[00:13:28] Speaker 04:
That information was not in the office.

[00:13:30] Speaker 04:
The officer knew it at the time.

[00:13:31] Speaker 04:
Yes he did.

[00:13:32] Speaker 04:
And we have cases that say

[00:13:52] Speaker 04:
you know after after it was found out that he actually lived there as well I was I was gonna help her out with her lease but I didn't actually I didn't actually live there and you know and he just keep in mind his original story is I have no idea who this person is he acted like he had no connection at all and of course you know I've said

[00:14:18] Speaker 04:
which is, you know, that he was helping her out, but he didn't actually live there.

[00:14:23] Speaker 04:
Well, it turns out he did live there.

[00:14:25] Speaker 04:
And Detective Cornett had information that he lived there.

[00:14:42] Speaker 03:
misled the court.

[00:14:43] Speaker 04:
Oh, certainly, certainly.

[00:14:45] Speaker 04:
Because without that information, if the magistrate knows that information, he's not going to say that Mr. Reed is credible.

[00:14:52] Speaker 04:
Remember, there's also this claim that she had consent to do it, right, which that is perfectly legal.

[00:14:58] Speaker 04:
She has consent.

[00:14:59] Speaker 04:
That's the only issue right there.

[00:15:01] Speaker 04:
If she had consent, his consent, then there's

[00:15:11] Speaker 04:
material to that determination.

[00:15:14] Speaker 04:
I see I bet I'm out of time.

[00:15:15] Speaker 04:
Thank you, Your Honor.

[00:15:16] Speaker 04:
Thank you, Counsel.

[00:15:20] Speaker 04:
Who's up first?

[00:15:22] Speaker 04:
A more for Appellee.

[00:15:24] Speaker 04:
It's County of San Bernardino and Jeremiah Cornette.

[00:15:28] Speaker 04:
Good morning.

[00:15:31] Speaker 04:
This is a case that was correctly decided by the District Court.

[00:15:36] Speaker 04:
Let's first discuss

[00:15:44] Speaker 03:
specific omissions that were made by the, by Coronet.

[00:15:49] Speaker 03:
And that, that was an intent to essentially not be completely honest with the Court.

[00:16:00] Speaker ?:
Yeah.

[00:16:00] Speaker ?:
First of all, several

[00:16:24] Speaker 04:
That was a complete stranger.

[00:16:29] Speaker ?:
Forge your name.

[00:17:01] Speaker 04:
Cornett did put in his affidavit that Reed had co-signed on the original lease.

[00:17:08] Speaker 04:
So he put in their information, certainly from which the magistrate, the judge, could infer that Reed did in fact know Browder.

[00:17:17] Speaker 04:
But as the district court correctly noted, that doesn't change, that doesn't alter the fact that there was probable cause, because it's not material

[00:17:31] Speaker 04:
any reported false statements, there was still probable cause, because you had Reid saying, I signed the original lease, but not the renewal.

[00:17:44] Speaker 04:
She asked me to, but I refused, and I didn't give her consent to sign my name on the renewal.

[00:17:50] Speaker 04:
And now, I'm the subject of an unlawful detainer judgment.

[00:17:54] Speaker 04:
Those core facts never changed.

[00:17:57] Speaker 04:
In fact, they're uncontroverted.

[00:18:00] Speaker 04:
because the appellant didn't file a responsive separate statement to our statement of undisputed material facts.

[00:18:07] Speaker 04:
And Cornett looked at the two signatures and said that they were different.

[00:18:11] Speaker 04:
That's correct.

[00:18:12] Speaker 04:
You've also got the critical fact that Deputy Cornett, he didn't just rely on Reed's statements to him.

[00:18:21] Speaker 04:
He went and checked out the documents.

[00:18:30] Speaker 04:
documents were submitted by Browder already filled out.

[00:18:35] Speaker 04:
So the inference from that is she did the signing, she did all the filling in of the paperwork in her apartment, and then she brought them to the apartment management.

[00:18:46] Speaker 04:
She also subsequently got evicted, and that's important because it shows that she couldn't afford to live there on her own.

[00:18:54] Speaker 04:
That's why she reaches out to read

[00:18:58] Speaker 04:
to say, hey, can you co-sign on the renewal?

[00:19:01] Speaker 04:
Everything that Deputy Cornett knew that was material jibed with the idea that there had, in fact, been a forgery.

[00:19:12] Speaker 04:
Did you say that the warrant said that he had previously co-signed the, I guess, the 2015 lease?

[00:19:19] Speaker 04:
Yes, my understanding is it states in the affidavit that Browder and Reed signed

[00:19:30] Speaker 03:
for himself or anyone else?

[00:19:33] Speaker 04:
He stated that initially to Los Angeles County Sheriff's deputies before he talked to Deputy Cornette of San Bernardino.

[00:19:44] Speaker 04:
That did not make it into the affidavit?

[00:19:46] Speaker 04:
It did not.

[00:19:48] Speaker 04:
Okay.

[00:19:48] Speaker 04:
It did not.

[00:19:49] Speaker 04:
So what should we infer from that?

[00:19:53] Speaker 04:
Again, that's not material

[00:19:59] Speaker 04:
of the statement or the omission, because it doesn't go to any elements of the offense of forgery.

[00:20:06] Speaker 04:
And I would cite, there's actually cases that say that omissions or misstatements, that could impact the credibility of a complaining witness.

[00:20:20] Speaker 04:
Their material only if they're critical

[00:20:23] Speaker 04:
to the finding of probable cause.

[00:20:25] Speaker 04:
And our argument is that these purported omissions and misrepresentations are not critical to a finding of probable cause.

[00:20:34] Speaker 04:
The other thing you've got to remember is two times Ms.

[00:20:40] Speaker 04:
Broder blew off meetings with Deputy Cornett.

[00:20:43] Speaker 04:
He tried to set up two different meetings with her to get her side of the story, so to speak.

[00:20:52] Speaker 04:
just didn't answer the door.

[00:20:54] Speaker 04:
And then she doesn't show up for the second meeting at the Victorville Sheriff's Office.

[00:20:58] Speaker 01:
She clearly had some problems.

[00:21:01] Speaker 01:
Can I ask you about the child endangerment?

[00:21:08] Speaker 01:
Sure.

[00:21:09] Speaker 01:
If it's a given that the house was a mess, she said that she was moving.

[00:21:25] Speaker 04:
report.

[00:21:28] Speaker ?:
It wasn't just a mess.

[00:21:29] Speaker ?:
It wasn't just cluttered.

[00:21:31] Speaker 04:
You look at the photos and check his report out.

[00:21:35] Speaker 04:
These were appalling conditions, rotting food in the refrigerator and also in a tub in the kitchen.

[00:21:41] Speaker 04:
We have uncontroverted facts

[00:21:56] Speaker 04:
no edible food.

[00:21:58] Speaker 04:
Boxes and bags strewn about the apartment.

[00:22:01] Speaker 04:
And Browder herself stated this is not a habitable situation while the officers were there.

[00:22:10] Speaker 04:
You add all that up.

[00:22:11] Speaker 01:
She said we're not living here anymore.

[00:22:14] Speaker 04:
She said this is not a habitable situation.

[00:22:17] Speaker 04:
She didn't say we're not living here.

[00:22:20] Speaker ?:
No, she did.

[00:22:20] Speaker 04:
She said we're moving.

[00:22:20] Speaker 04:
She didn't say that, but she also said this is not a habitable situation.

[00:22:40] Speaker 04:
that there were multiple utensils.

[00:22:44] Speaker 04:
He made a mistake by referring to steak knives when there was only one that was on the kitchen counter.

[00:22:50] Speaker 04:
There were, in fact, other types of knives on the couch where you could sit on them.

[00:22:56] Speaker 04:
Kid could take it, poke himself or his colleague in the eye, as you correctly pointed out Judge Bumatai, they can be dangerous to kids.

[00:23:06] Speaker 04:
The case that the appellant is citing, the California Supreme

[00:23:23] Speaker 04:
You have to take it in the totality of the circumstances, all of the things that Deputy Cornett saw.

[00:23:33] Speaker 04:
I see him.

[00:23:35] Speaker 04:
Thank you very much.

[00:23:36] Speaker 04:
Thank you, counsel.

[00:23:49] Speaker 02:
Good morning, Your Honor.

[00:23:55] Speaker 02:
for Thomas Boydston, Detective Thomas Boydston.

[00:24:00] Speaker 02:
Thomas Boydston's was not, this case was correctly decided as to Thomas Boydston.

[00:24:15] Speaker 02:
He was not at all involved in the search warrant affidavit.

[00:24:21] Speaker 02:
He was not at all involved in the actual arrest of Ms.

[00:24:27] Speaker 02:
Browder.

[00:24:28] Speaker 02:
He was not at all involved in the prosecution of Ms.

[00:24:34] Speaker 02:
Browder subsequently.

[00:24:37] Speaker 02:
His only involvement occurred because he was at work on the day of the incident, November

[00:25:07] Speaker 02:
that went out to the house.

[00:25:10] Speaker 02:
So, if you look at appellants opening brief, if you look at appellants reply brief, if you look at appellants oral argument here today, it's solely, they solely focus on actions

[00:25:38] Speaker 02:
Well, the appellants have basically waived all arguments against Boyston except for two, which I'll address today, which is their excessive force claim in the protective sweep and the unreasonable search of the apartment.

[00:25:57] Speaker 02:
That's basically the only two claims of all the claims that they have against Boyston.

[00:26:03] Speaker 02:
With regard to the

[00:26:08] Speaker 02:
protective suite yes the often yes the detectives had their guns out uh... as protocol as they always do during the protectors week sweep an apartment where they don't know who's inside who's behind closed doors but the uncontroverted evidence shows

[00:26:36] Speaker 02:
like the robinson case which uh...

[00:26:46] Speaker 02:
case the man had was an ex law enforcement officer I think I think he shot a couple dogs that were killing his chickens so the neighbor called the officers arrived he he walks down his gravel driveway about 135 feet to the officers he's got an unbuttoned shirt they could tell he's completely unarmed and they point a gun directly at a

[00:27:18] Speaker 02:
That case, one, was not a search case in a closed residence where you don't know who's in the house.

[00:27:30] Speaker 02:
It was clear in that case, when he was walking down the driveway, there were no other people around that they had to worry about the officers.

[00:27:38] Speaker 02:
And there's no facts that were presented by appellants regarding pointing a gun at somebody

[00:28:03] Speaker 02:
there's just the court was right the district court was right when they said there's uh... no unreasonable force used in the protective suite uh... and even if they're could possibly be some fourth amendment violation there's no case law in this circuit in the u.s.

[00:28:26] Speaker 02:
supreme court that shows that uh... that was

[00:28:34] Speaker 02:
who is doing a protective sweep and conducting a search warrant of a house that they can't take out their guns.

[00:28:41] Speaker 02:
So I think that closes the door on the claim against Boydston on the protective sweep.

[00:28:48] Speaker 02:
The only other claim against Boydston is the unreasonable search claim.

[00:28:55] Speaker 02:
And there's case law that we've cited in the Supreme Court and from this circuit that a line officer as opposed to

[00:29:14] Speaker 02:
representation that the search warrant was valid.

[00:29:19] Speaker 02:
This is the exact situation here.

[00:29:23] Speaker 02:
Boyston shows up to work that morning, has no knowledge of this case, what's going on.

[00:29:29] Speaker 02:
He's asked what his fellow colleagues say, do you want to help execute a search warrant?

[00:29:33] Speaker 02:
He goes out.

[00:29:36] Speaker 02:
for paperwork regarding the forgery.

[00:29:39] Speaker 02:
He conducts a search.

[00:29:41] Speaker 02:
There is absolutely no evidence produced by appellants that he went outside the scope of the search when he was searching the apartment.

[00:30:12] Speaker 02:
and the unlawful search claim fail as a matter of law based on the uncontroverted evidence.

[00:30:23] Speaker 02:
I have 30 seconds left.

[00:30:24] Speaker 02:
I would take any questions from the panel.

[00:30:27] Speaker 02:
Thank you, Counsel.

[00:30:28] Speaker 02:
Okay.

[00:30:29] Speaker 02:
Thank you, Your Honors.

[00:30:30] Speaker 02:
Counsel, would you like one minute for a rebuttal, or are you?

[00:30:33] Speaker 04:
Sure.

[00:30:33] Speaker 04:
Go ahead.

[00:30:37] Speaker 04:
Your Honor, so just talking briefly about the

[00:30:44] Speaker 04:
The Thompson case, which the council mentioned, this court said that was the outer bounds of qualified immunity.

[00:30:53] Speaker 04:
They granted qualified immunity in that case.

[00:30:55] Speaker 04:
That was a traffic stop, which the Supreme Court has said is inherently dangerous.

[00:31:00] Speaker 04:
But there's no case from this court or from the Supreme Court that says officers, when they're executing a warrant, because they're doing a protective sweep, as a matter of course, are allowed to pull out their guns.

[00:31:16] Speaker 04:
armed.

[00:31:17] Speaker 04:
Now, you can't use the fact that you don't know something in order to justify, use it to pull out your gun.

[00:31:25] Speaker 04:
If that was the case, then you could pull out the gun every single time.

[00:31:28] Speaker 04:
All you just say is, I didn't know.

[00:31:29] Speaker 04:
I had no idea how many people there were.

[00:31:31] Speaker 04:
I didn't know if anybody was armed.

[00:31:32] Speaker 04:
The fact of the matter is he didn't have any facts that would justify it.

[00:31:35] Speaker 04:
And the fact is, we have not just Ms.

[00:31:38] Speaker 04:
Browder, but we have our children there, too, pulling out.

[00:31:41] Speaker 04:
The gun is a matter, of course, not justified under these circumstances.