[00:00:00] Speaker 02:
God save these United States and this horrible court Noon and welcome to the Ninth Circuit.

[00:00:08] Speaker 02:
We have one case for argument today and it's Chong versus the United States.

[00:00:13] Speaker 01:
Mr. Burns whenever you're ready Good afternoon your honors Todd burns on behalf of mr. Chong and mr. Tran

[00:00:21] Speaker 01:
In its order remanding, this court indicated that the key fact to determine, as far as curtilage, was whether it was the distance that Deputy Lee was from the garage threshold when he saw Mr. Tran throw the baggie.

[00:00:37] Speaker 01:
We've had that remand.

[00:00:38] Speaker 01:
It was indicated it was 12 inches, and it seems there's really no gainsaying that that's within the immediate vicinity of the home, not just the immediate vicinity of the home,

[00:00:48] Speaker 01:
of an open garage door, and the garage is considered part of the interior of the home under this court's case, Oaxaca.

[00:00:56] Speaker 01:
And I think it bears recalling that to raise that winning curtilage issue, all defense counsel needed to do in this case in the original district court proceedings was not spot the issue.

[00:01:08] Speaker 01:
They just needed to correct government counsel, and government counsel said that area is not curtilage because it's not open to public view.

[00:01:15] Speaker 01:
There were several cases, of course, Jones, Jardines from the Supreme Court that were out at that point, and this court's opinion, Pereira Ray.

[00:01:22] Speaker 01:
So it was just a matter of correcting a clear misstatement of the law.

[00:01:28] Speaker 01:
If the exclusionary rule had been applied, it would have gutted the government's key trial evidence, and they probably wouldn't even have gone to trial on the case.

[00:01:36] Speaker 04:
Mr. Burns, I'm sorry I'm not there in person, but thank you for appearing again for this argument.

[00:01:44] Speaker 04:
What is the significance of the fact that the driveway is just totally open?

[00:01:48] Speaker 01:
Well, I don't think it has any significance under Jones because Jones says, look, Katz's reasonable expectation of privacy added to did not subtract from the

[00:02:00] Speaker 01:
protections of the Fourth Amendment and as Perea Ray goes on to make clear just because you can see into that space from the street doesn't mean you can go into it without a warrant or legal justification so in this case government makes the argument that you know this is a this is a part of the driveway where a visitor like a guest would

[00:02:18] Speaker 04:
you know, could be positioned as they come to meet someone there.

[00:02:22] Speaker 04:
Does that have any relevance or significance?

[00:02:25] Speaker 01:
Well, it doesn't, because that's really an implied license argument.

[00:02:28] Speaker 01:
And I was ready to address that, because at the last argument, that was something that the court was certainly interested in.

[00:02:34] Speaker 01:
And I think it's answered quite cleanly by the following quote from Jardines, which says, whether the officers had an implied license

[00:02:43] Speaker 01:
depends upon the purpose for which they entered.

[00:02:45] Speaker 01:
Here their behavior objectively reveals a purpose to conduct a search, which was not what anyone would think he had a license to do.

[00:02:53] Speaker 01:
Here the actions of the officers were even more sort of

[00:02:59] Speaker 01:
extreme than in Jardin.

[00:03:01] Speaker 01:
In Jardin, they were walking a dog up near the door.

[00:03:03] Speaker 01:
Here, they were climbing over the fence in raid gear, nine strong, armed, and charging towards the property.

[00:03:09] Speaker 01:
So there's certainly no implied license for that sort of conduct.

[00:03:13] Speaker 04:
What if the officers had just walked up the front of the driveway, like around the car, so that the occupants who were inside the garage could essentially see them coming toward them?

[00:03:23] Speaker 04:
Would that then be different?

[00:03:25] Speaker 01:
well if they had done a standard not can talk which jardine again talks about uh...

[00:03:31] Speaker 01:
you know, kind of what that normally involves.

[00:03:32] Speaker 01:
The implicit license typically permits a visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then, absent invitation to linger longer, leave.

[00:03:42] Speaker 01:
So I don't know that walking up the driveway would have been what normally a visitor would do, especially walking up an open driveway and walking towards and approaching an open driveway.

[00:03:52] Speaker 01:
A stranger, you probably don't expect that in your home.

[00:03:55] Speaker 01:
You expect them to go to the front door.

[00:03:57] Speaker 01:
But nonetheless, of course, that's not what they did here.

[00:03:59] Speaker 01:
And also, by doing what they did here, not only did the unlawfully end of the curtilage, but in the manner that they did, they caused the exigency that then the government relies on.

[00:04:10] Speaker 01:
Lee is clear in his testimony.

[00:04:12] Speaker 01:
They're charging up and yelling at that one foot point from the threshold of the garage, put your hands up, get down, whatever the commands are yelling out, is what caused Tron to throw the baggie.

[00:04:22] Speaker 01:
So under Kentucky versus King and this court's opinion in London, they also can't rely on the exigency because of that.

[00:04:29] Speaker 01:
They've not only entered the curtilage in doing so, they did it in a dramatic way that has caused the exigency that they're relying on.

[00:04:37] Speaker 03:
So what about the difference between Tran and Chong?

[00:04:42] Speaker 03:
You can't look at these two cases as exactly the same from a curtilage search perspective, can you?

[00:04:49] Speaker 01:
Well, I think that the difference is standing, of course.

[00:04:52] Speaker 01:
Tron has to establish his standing.

[00:04:55] Speaker 01:
And it seems to me that the government's made kind of a variety of mixed bag of arguments there, blending and matching things.

[00:05:01] Speaker 01:
But it seems to me their primary argument is for Tron to have standing, he had to be an overnight guest.

[00:05:07] Speaker 01:
and I just don't believe that that is supported by the Supreme Court case law.

[00:05:10] Speaker 01:
If we go back to sort of the foundational, the first Supreme Court standing opinion, 1960, the Jones case, in that case they said that this person, you know, who was raising the Fourth Amendment claim was visiting an apartment, he was given permission to use the apartment, and it said he was maybe

[00:05:27] Speaker 01:
He had maybe spent the night there at one point in time, and they found that he had standing.

[00:05:32] Speaker 01:
And I think if the overnight guest thing were critical, they wouldn't have found standing there.

[00:05:36] Speaker 01:
In that case, Jones has been relied on over and over again.

[00:05:39] Speaker 02:
Getting the deficient performance part of it.

[00:05:42] Speaker 02:
I mean, didn't Tran have every incentive to say that he wasn't at the house?

[00:05:45] Speaker 02:
Or at least the lawyer for Tran had every incentive to say he wasn't at the house, because then, therefore, the parole search doesn't work.

[00:05:53] Speaker 01:
No, because as this court addressed quite clearly in Granbury, the issue as to whether or not the officers had probable cause to conduct the parole search is based on what the officers knew at the time.

[00:06:03] Speaker 01:
The issue of standing.

[00:06:06] Speaker 02:
Yeah, but that's just a question.

[00:06:07] Speaker 02:
I'm questioning whether or not there's a strategic reason for why a trans attorney didn't make that argument that he did have standing, because then it would lead him to then open them up to the parole search.

[00:06:20] Speaker 01:
they're well it it wouldn't affect pro search at all because against i i agree but i'm just saying that they're sort of there could be a strategic reason for it well staking one because again it's it's irrelevant to the parole search probable cause and there are other reasons why that doesn't make sense but let's start with the first one which is what actually happened they submitted a declaration and they said the reason that we didn't submit

[00:06:40] Speaker 01:
this evidence that I've submitted a great deal of evidence going to standing is because we believe that the record was sufficient to establish that Tron was an overnight guest.

[00:06:50] Speaker 01:
That's just a mistake.

[00:06:51] Speaker 01:
They were just wrong about that.

[00:06:52] Speaker 01:
So that's why they did what they did.

[00:06:55] Speaker 01:
Furthermore, the parole search issue itself required standing.

[00:07:04] Speaker 01:
So either issue that you were going to raise, you were going to have to establish standing.

[00:07:07] Speaker 02:
I thought you would need lack of standing for that one.

[00:07:09] Speaker 02:
You don't want dominion over the house, because then the parole search would have been appropriate.

[00:07:16] Speaker 01:
Well, there are two different things.

[00:07:17] Speaker 01:
There's what the officers knew at the time, which is what the probable cause assessment is made on.

[00:07:22] Speaker 01:
And then there's whether or not Tron had standing, which he can supplement the record with a whole bunch of stuff that the officers didn't know at the time.

[00:07:28] Speaker 01:
I mean, Granberry is crystal clear on that, and it's sort of foundational that the probable cause is based on what they knew at the time, not stuff they learned later, not stuff that the defendant submitted in an evidentiary here.

[00:07:39] Speaker 02:
Going back to Chong, can you precisely say where the deficient performance by the attorney was then?

[00:07:45] Speaker 02:
You're saying they should have corrected the statement of law by the government.

[00:07:50] Speaker 02:
When was that statement made?

[00:07:53] Speaker 01:
It was made repeatedly.

[00:07:54] Speaker 01:
I don't have the excerpt of record sites in front of me right now.

[00:07:58] Speaker 01:
I should have.

[00:07:59] Speaker 01:
I apologize for that.

[00:08:01] Speaker 01:
Procedurally, when was it made?

[00:08:02] Speaker 01:
It was made when the motion was first filed.

[00:08:06] Speaker 01:
The motion to suppress was first filed by Tron, and they said, look, as a fallback, if the parole search is bad, as a fallback, we've got this other theory, this fictitious theory of the curtilage that they were going up to the house, they saw the baggie tossed, that caused an edge against circumstance, et cetera, et cetera.

[00:08:26] Speaker 01:
And they put in, I believe that time, they put in a footnote, oh, and that's not curtilage where they went to because it's open to public view.

[00:08:34] Speaker 02:
Okay, so can I ask, does it make a difference that the search happened before Jardines and then this, I forget when this motion was made, but I think it was after Jardines, which is the clearest articulation of it.

[00:08:46] Speaker 02:
I mean, I think it's fair to say that this immediate vicinity line of law has been around for a while, but Jardines is the most clear articulation.

[00:08:55] Speaker 01:
it could it could be can't make a difference for the lawyers because the lawyers have edge jardines are hiding as you know uh... and dot jones and pray array and pray array really states it quite clearly you're conflating being able to see in there with being able to go in there without a warrant uh... so they had all that

[00:09:12] Speaker 01:
Now, if we're instead talking about the good faith exception to the exclusionary rule, well, the state of the law at the time of the search is important, but here that doesn't apply because there was no law that was, there was no binding precedent that these officers relied on to allow them to do the search that was subsequently overruled.

[00:09:32] Speaker 01:
That just didn't happen.

[00:09:33] Speaker 01:
You know, the only thing that happened was Granbury, but Granbury was a straightforward application of the Motley rule that existed from this court's Ambach opinion, like 2006, and Howard,

[00:09:42] Speaker 01:
And really, I mean, the evidence going towards probable cause here was that they'd seen Tron there twice over like a four-month period.

[00:09:50] Speaker 01:
It was woefully deficient under any analysis.

[00:09:53] Speaker 01:
So there was no binding case law that was overruled that the officers relied on.

[00:09:59] Speaker 01:
So it really, that analysis of what the law was at the time of the search for the officers is irrelevant.

[00:10:05] Speaker 02:
But I guess, yeah, what's the relevant time?

[00:10:08] Speaker 02:
Is it the time of the search or the time of the motion

[00:10:11] Speaker 02:
to suppress, because we're talking about, you know, ineffective assistance here.

[00:10:15] Speaker 01:
Well, for the lawyers, it's during the period of time where they're representing the client and the government is making this argument that it's not curtailed because it's open to public view.

[00:10:23] Speaker 01:
And the government made that argument repeatedly.

[00:10:24] Speaker 01:
They made it in two filings.

[00:10:26] Speaker 01:
because remember Tran was in the case first and then they indicted Chong later and Chong then filed the motion to express on the same basis and the government made that argument again in his papers.

[00:10:35] Speaker 01:
The government made it orally at the motion hearing and the government made it at trial when there was testimony from Lee that was indicated, well now he's saying he was entering the garage when he saw it.

[00:10:43] Speaker 01:
The government made the motion again and in all four times the prosecutor said, look it's not curtilage because it was open to public view.

[00:10:50] Speaker 02:
And this was all after Jardines, right?

[00:10:53] Speaker 02:
All these events, okay.

[00:10:53] Speaker 01:
Yeah, well, the first time may not have been, but I think it was.

[00:10:57] Speaker 01:
But certainly.

[00:10:58] Speaker 02:
But then what's the lawyer's obligation to understand a brand new law?

[00:11:03] Speaker 02:
At most, like, Hardinus was a year or so, or months later, or weeks old.

[00:11:09] Speaker 02:
Is the lawyer really required to read every Supreme Court case as they come out and know all the intricacies of those?

[00:11:17] Speaker 01:
Certainly, by the last time the government made the argument, it was two years old.

[00:11:21] Speaker 01:
But this court's standards, Alvarez-Totimes talks about, was there clear precedent supporting the argument?

[00:11:28] Speaker 01:
There are various other cases that use different language, but something in that effect.

[00:11:32] Speaker 01:
And yes, I believe in something as important as this relating to Fourth Amendment search.

[00:11:37] Speaker 01:
I don't know how other lawyers conduct their practice.

[00:11:40] Speaker 01:
I read certainly the Supreme Court opinions that come out that relate to criminal law and the other areas in which I practice, or if they relate to evidence or anything like that.

[00:11:47] Speaker 01:
I also read this court's opinions when they come out, and occasionally I read other circuit court's opinions when they come out.

[00:11:52] Speaker 01:
If, you know, through various publications and continuing legal education, I'm made aware of them.

[00:11:58] Speaker 04:
Well, Mr. Burns, it seems that the government, I think one of its arguments is that

[00:12:02] Speaker 04:
Even if now we've kind of grown more comfortable with the trespass theory and some of its implications, at least at the time, the interaction between that theory and done was less clear.

[00:12:12] Speaker 04:
And so by that, they would argue by that reason, the lawyers weren't deficient.

[00:12:17] Speaker 04:
Maybe they were negligent, but they weren't deficient.

[00:12:19] Speaker 04:
How do you address it?

[00:12:21] Speaker 01:
Certainly to begin with, that was not the lawyer's thinking at all.

[00:12:24] Speaker 01:
They just weren't aware of the relevant case law of Jones, of Pereira or Jardines.

[00:12:29] Speaker 01:
But as far as that goes, it done and Dow Chemical and all sorts of cases make clear that there is a distinction between the area immediately around the house and the open fields.

[00:12:39] Speaker 01:
done says, look, this test is as good as it is for the circumstances.

[00:12:43] Speaker 01:
So if you're dealing with an outbuilding that's 100 yards or 60 yards or whatever it wasn't done away from the house on the other side of a fence, the done factors are useful.

[00:12:53] Speaker 01:
When you're dealing with the foot from the house,

[00:12:56] Speaker 01:
it's it's irrelevant and that's why when it's come up again in jardines when it's come up in collins the government is arguing those cases or you should buy the done factors and they lose and the done factors and in both cases the supreme court did not apply the done factors because when you're talking about close to the house the done factors don't make sense when you're talking about their field where could be at the borderline they may

[00:13:15] Speaker 04:
So if there were no trespass theory, if all we had was the reasonable expectation of privacy, would you say that Chang had a reasonable expectation of privacy in this particular situation?

[00:13:26] Speaker 01:
If that were the law under Magana, this court's 1976 case of Magana, Chong would probably lose.

[00:13:34] Speaker 01:
But Magana is kind of a double-edged sword for them, because Magana also held the driveway was curtilage.

[00:13:40] Speaker 01:
And there's no distinguishing this portion of driveway from what's evident about the driveway in Magana, which is little.

[00:13:45] Speaker 01:
But there's one foot from the garage threshold, and Magana couldn't have been any

[00:13:50] Speaker 01:
The officers couldn't have been any farther out there, so Magana establishes driveway as curtilage, and Jones rips out the expectation of privacy not blocked off portion of Magana.

[00:14:00] Speaker 01:
So, yeah, I think if it weren't for Jones, he would lose under Magana, but obviously Jones is always a pretty big change.

[00:14:09] Speaker 04:
If the case were analyzed just under the reasonable expectation of privacy, was it relevant that I don't think Chong was actually in the garage at the time he was in the house?

[00:14:20] Speaker 04:
Would that matter or would it just matter that it was his house?

[00:14:23] Speaker 01:
I think it's his house.

[00:14:25] Speaker 01:
It's his curtilage.

[00:14:26] Speaker 01:
They're effectively, when they're one foot from the open garage door, it's just like being at the front door when the door opens and staring in.

[00:14:34] Speaker 01:
It's just like being at a bay window and staring in.

[00:14:37] Speaker 01:
It's his home.

[00:14:38] Speaker 01:
They're invading his privacy in his property.

[00:14:43] Speaker 04:
On the parole search, if I may, Judge Bumate, just so we can go.

[00:14:47] Speaker 04:
Yeah, I think we could go along.

[00:14:50] Speaker 04:
I mean, it seems that the stated reason for this was a parole search.

[00:14:54] Speaker 04:
So the things we've been talking about before about exigency are now a kind of new justification that's come in.

[00:15:00] Speaker 04:
But on the parole search, the government makes some arguments about distinctions between California law and federal law.

[00:15:07] Speaker 04:
Do you think there is a distinction when it comes to what quantum of evidence you need to have to conduct a parole search of a house?

[00:15:15] Speaker 01:
Well, it's not clear to me in looking at the case law.

[00:15:18] Speaker 01:
And there is division amongst the California Court's appeals.

[00:15:20] Speaker 01:
And most of them seem to favor the probable cause standard rather than the reasonable belief standard, whatever that is.

[00:15:26] Speaker 01:
But I think there are a number of other answers to that, too, which is there's no indication the officers here relied on California law.

[00:15:33] Speaker 01:
And the officers that were driving the whole search thing were federal HSI agents who called the Los Angeles Sheriff's Department and said, hey, will you do a parole check on these guys?

[00:15:44] Speaker 01:
they would be relying on their federal law training.

[00:15:48] Speaker 01:
Of course, this law trumps to California law.

[00:15:51] Speaker 01:
But if California law did control, it's not apparent to me that there would be a different outcome.

[00:15:55] Speaker 01:
And the government never has even argued that they didn't say, oh, well, some California courts of appeals say reasonable belief.

[00:16:02] Speaker 01:
And applying that case law to this circumstance, there wasn't a reasonable belief.

[00:16:06] Speaker 01:
They just kind of gave up on saying the first part and never doing the analysis for the second part.

[00:16:10] Speaker 04:
Is this another area of the law, not unlike the first is hardiness issue where the law was experiencing some amount of development over the course of the events in question, most notably Granbury?

[00:16:23] Speaker 01:
I don't think so.

[00:16:23] Speaker 01:
I think if you read through Granbury, it's a straightforward application.

[00:16:27] Speaker 01:
They're citing Howard and Motley repeatedly.

[00:16:29] Speaker 01:
And this certainly is not a close call under those cases with how little the officers have observed if you looked at the facts in those cases.

[00:16:39] Speaker 01:
And the one concrete argument that the government makes in that regard is, oh, well, Granbury affected the significance of the defendant

[00:16:47] Speaker 01:
possessing a key because in Granbury one of the facts that the government relied on is this guy seemed to let himself into the house something like six to ten times with the key and the court said still under the totality of the circumstances there's not probable cause but there was no indication that Mr. Tran possessed a key and there was only one time they observed him going into the house where they said he seemed to open the door I couldn't tell if he had a key or not but he seemed to open the door without knocking.

[00:17:15] Speaker 01:
Well that was indicative of course of his

[00:17:17] Speaker 01:
relationship with the residents of the house, but not that he lived there.

[00:17:20] Speaker 02:
What should we do with the district court's finding of good faith now, after the remand?

[00:17:26] Speaker 01:
And to be clear, the district court did not apply the good faith exception to the exclusionary rule, which is what this court indicated it should consider in the remand order.

[00:17:36] Speaker 01:
The district court didn't do that at all.

[00:17:37] Speaker 01:
What the district court did is backtrack to 2014 and basically said this was a valid parole search because the deputies had a good faith

[00:17:47] Speaker 01:
a reason to believe, a good faith reason to believe, I believe were his words, the judge's words, that Tron lived there.

[00:17:56] Speaker 01:
But probable cause as a standard, probable cause was decided in August 2014.

[00:18:00] Speaker 01:
At the time the judge said, I'm not impressed by the surveillance that they did to conclude that Tron lived there.

[00:18:06] Speaker 01:
The government never challenged that.

[00:18:09] Speaker 02:
So what should we do with that?

[00:18:10] Speaker 02:
Should we just say it's waived or what?

[00:18:12] Speaker 02:
What do you want us to do with that?

[00:18:13] Speaker 01:
Well, I think it's error, number one.

[00:18:15] Speaker 01:
flat-out error the government and I think what tells you it's error too is the government has an argued that in their briefs because it's not it's not a grand Barry motley Howard that's the governing test is the probable cause not was there a good faith reason to believe if that becomes the test you've you've done away with the probable cause requirement counsel if you know I I

[00:18:37] Speaker 03:
I'm a trial judge in Washington state.

[00:18:39] Speaker 03:
We don't have this parole grand scheme to do whatever you want to people when they're on parole.

[00:18:48] Speaker 03:
But in California, if Tran is not even living there, but he's using it as his stash house for his drug

[00:18:58] Speaker 03:
distribution business, why wouldn't that allow the authorities to go in and search?

[00:19:06] Speaker 01:
Well, I think that there are a few answers to that.

[00:19:08] Speaker 01:
One, if that's what he was doing, they could show problem causing a warrant to search it.

[00:19:13] Speaker 01:
easy enough.

[00:19:15] Speaker 01:
Two, if they suspected that that was what he's doing, but they didn't have a probable cause to go in there and search it, they could grab him on the way in, they could grab him on the way out.

[00:19:24] Speaker 01:
They could also violate him for going to places he's not supposed to be going without telling his probation officer.

[00:19:30] Speaker 01:
There's all sorts of ways to deal with that.

[00:19:31] Speaker 01:
The government mentions a parade of horribles, but it's not realistic.

[00:19:36] Speaker 01:
And finally, you gotta keep in mind, of course, that this is Chong's

[00:19:39] Speaker 01:
house and he has he's not parole and he has a fourth amendment right there does tran have the same great case that's what i'm trying has to show standing and i guess i would just say that one thing i wanted to point out i'd i noticed in going through my briefs that i think for some key standing sites i miss cited that old excerpt a record from the first time we're here so i want to point out that to we are one eighty three to ninety six is the declarations from the residents and to we are

[00:20:07] Speaker 01:
uh... 128 is the defense counsel saying that the reason that i did not submit evidence on standing was because it took you five minutes over unless there's any other immediate questions maybe we'll give you a minute for rebuttal i'm sorry i didn't know if i'd answer your question is it okay thank you

[00:20:27] Speaker 00:
May it please the court, Roslyn Wang on behalf of the United States.

[00:20:31] Speaker 00:
First of all, Tran doesn't have standing to make a Fourth Amendment challenge under the Jones tracker warrant case.

[00:20:37] Speaker 00:
Jones says, you may not have an expectation of privacy in your car when it's parked on the street, but the police can't come in and put a tracker warrant on it because it's still your car, it's your property.

[00:20:49] Speaker 00:
And that would be trespass.

[00:20:51] Speaker 00:
But here it's not Tran's house.

[00:20:54] Speaker 00:
According to those declarations, Tran didn't have a key.

[00:20:58] Speaker 00:
He wasn't allowed in when the residents weren't there.

[00:21:02] Speaker 00:
He had to wait outside until somebody got home.

[00:21:04] Speaker 00:
So he doesn't have standing under a Jones theory on an ownership basis.

[00:21:10] Speaker 00:
So it would then have to be that cat's expectation of privacy.

[00:21:15] Speaker 02:
Wouldn't you agree that trans lawyer had a strategic reason not to claim homership of the house because of the parole search issue?

[00:21:23] Speaker 00:
Like the district court said, it was a bit of a catch-22 because either they show he's highly attached to the residents and if they do that, then he's in possession of all the drugs and guns like found there.

[00:21:38] Speaker 00:
So there is that problem there.

[00:21:42] Speaker 03:
Ms.

[00:21:42] Speaker 03:
Wang, have you read catch-22?

[00:21:45] Speaker 03:
make my law clerks read it.

[00:21:47] Speaker 03:
They all know the expression, but they haven't read the book.

[00:21:50] Speaker 00:
You should read it.

[00:21:51] Speaker 00:
Am I using it wrong, Your Honor?

[00:21:52] Speaker 03:
No, no.

[00:21:53] Speaker 03:
You used it correctly, but it's a book worth reading.

[00:21:56] Speaker 00:
Thank you, Your Honor.

[00:22:00] Speaker 00:
So it would have to be the expectation of privacy test.

[00:22:04] Speaker 00:
And in order to win that, the defense counsel at the time would have had to argue that a social guest, a frequent visitor to the house, which is at best what Tran was, was enough to establish expectation of privacy.

[00:22:19] Speaker 00:
And Carter, with its multiple concurring opinions, is not a clear winner on that front.

[00:22:27] Speaker 00:
So the test for Strickland is, we look at the reasonableness of the defense counsel's actions at that time.

[00:22:35] Speaker 00:
Olson is clear, and overnight guest has standing, but that was in defendant Tran's situation.

[00:22:41] Speaker 00:
So trial counsel would have had to argue, look, you extrapolate from one of the concurrences, even though those weren't the facts in Carter.

[00:22:49] Speaker 00:
And it's not clear that that would have been a successful argument, especially if you look at Justice Scalia's concurrence in Carter, which says standing for an overnight guess is the absolute limit of what text and tradition permit.

[00:23:04] Speaker 00:
So he's not willing to go beyond that.

[00:23:07] Speaker 02:
What about Chong?

[00:23:08] Speaker 00:
So Chong certainly has standing to argue that there was there was trespass on his driveway.

[00:23:18] Speaker 02:
And so does the government agree that that was that the officer was standing in cartilage?

[00:23:23] Speaker 00:
The government does not agree that.

[00:23:26] Speaker 02:
Oh really?

[00:23:30] Speaker 00:
But again, the government is not conceding that.

[00:23:36] Speaker 00:
But I think procedurally, again, we're looking at an ineffective assistance of counsel claims.

[00:23:41] Speaker 02:
Okay, let's start though.

[00:23:42] Speaker 02:
Let's before you move on.

[00:23:44] Speaker 02:
How is it not curtailed one foot away from the house?

[00:23:47] Speaker 00:
The government's position is that there's still that second part, which is not just it's immediately adjacent to the house, but it also has to be intimately tied to the activities of the house and there is language in in hardiness that supports that hardiness does.

[00:24:05] Speaker 00:
Talk just cite the Oliver language about the sanctity of a home and the fact that the front porch is Intimately, you know linked to the sanctity of the you know, the the interactivities of the home Whereas a driveway is not on a front porch, but isn't there a difference second?

[00:24:23] Speaker 04:
I mean a driveway is something that can be 20 feet long and probably was around here I mean

[00:24:29] Speaker 04:
It's a lot different to see someone at the end of the driveway than somebody standing literally right next to the house, right?

[00:24:37] Speaker 00:
Yes, and it is fact-specific.

[00:24:41] Speaker 00:
It depends on the particular circumstances of that part of the driveway, and that's what the Supreme Court found in Collins.

[00:24:49] Speaker 03:
And doesn't it also depend on how the officer got to that position, walking up the driveway from the street,

[00:24:57] Speaker 03:
is different than hugging the boundary fence and making a sudden emergence one foot away, isn't it?

[00:25:07] Speaker 00:
I mean, the way that they walked up the driveway was from basically the bottom of the driveway up to that point in front of the garage.

[00:25:15] Speaker 00:
So I guess I don't see substantively how that would be different from a neighbor walking from the foot of the driveway up.

[00:25:22] Speaker 04:
I guess I don't follow that.

[00:25:23] Speaker 04:
I mean, it seems quite different, right?

[00:25:25] Speaker 04:
It's one thing if a guest to the house walks up the front door.

[00:25:29] Speaker 04:
It's a totally different thing if a guest kind of surprises you from the side.

[00:25:33] Speaker 04:
That's not what we expect guests to do.

[00:25:35] Speaker 00:
But even a neighbor walking up the driveway could have come from that direction.

[00:25:40] Speaker 00:
There's nothing strange about walking up the driveway.

[00:25:44] Speaker 00:
If a neighbor went to talk, saw Tran in the open garage door and went to talk to him, that's exactly the path the neighbor would take.

[00:25:50] Speaker 04:
But what we have here is it seems that they're coming at the driveway, at the open garage from the side.

[00:25:55] Speaker 04:
That's not

[00:25:56] Speaker 04:
If you want to go visit your neighbor who's working on their car in the garage, you don't just pop out the side.

[00:26:02] Speaker 04:
You come up and introduce yourself and say hello.

[00:26:04] Speaker 04:
This seems kind of a hard argument to accept.

[00:26:09] Speaker 00:
I mean, if you were the neighbor who lives on the left side of that house, that is exactly the path that you would have taken.

[00:26:16] Speaker 00:
You would have gone.

[00:26:17] Speaker 02:
You would have jumped over the fence.

[00:26:19] Speaker 00:
Well, it was a very low retaining wall.

[00:26:21] Speaker 02:
But still, if you would not jump over your retaining wall, you would go to the sidewalk.

[00:26:26] Speaker 00:
But that's not the area that's at issue here.

[00:26:29] Speaker 00:
And the neighbor isn't the one complaining about the police.

[00:26:33] Speaker 00:
It makes it worse that it's the police.

[00:26:35] Speaker 02:
Can I ask then, where in Jardinas are you getting the second step?

[00:26:40] Speaker 02:
I mean, I see it very clear.

[00:26:42] Speaker 02:
We therefore regard the area immediately surrounding and associated with the house

[00:26:47] Speaker 02:
what our case is called curtailage as part of the home itself for Fourth Amendment purposes.

[00:26:52] Speaker 02:
There's no talk about a second step.

[00:26:57] Speaker 00:
I mean, they don't, they don't say exactly that it is a second step, but they always say that there is, uh, they do always cite the Oliver language.

[00:27:07] Speaker 00:
Sure.

[00:27:07] Speaker 02:
And it said later that this area around the home is intimately linked to the home.

[00:27:13] Speaker 02:
That's not saying that's a separate step.

[00:27:14] Speaker 02:
That's saying if it's curtilage, it is intimately linked.

[00:27:17] Speaker 00:
but they're specifically talking about the front porch and there's something substantively different about a front porch where the front porch is intimately tied because you think of like- So why isn't the garage entrance intimately tied?

[00:27:32] Speaker 00:
Because the driveway isn't somewhere where intimate activities of the home might take place.

[00:27:38] Speaker 00:
Like you wouldn't hang out on your front porch and talk to your neighbors, you know, you wouldn't sit and maybe have a conversation.

[00:27:44] Speaker 00:
There's something, I mean, they specifically say that... How are we supposed to make that determination?

[00:27:50] Speaker 02:
Is there like a statistical... What people do you do in their driveways?

[00:27:57] Speaker 02:
I mean, in their garages versus their doorways?

[00:27:59] Speaker 02:
That just seems like a weird argument.

[00:28:01] Speaker 00:
So let me just take the quote from from hardiness, which is the front porch is the classics exemplar of an area adjacent to the home and to which the activity of home life extends.

[00:28:14] Speaker 00:
So there is something intimate about the front porch, I think is the point of hardiness.

[00:28:19] Speaker 04:
I mean, I grant you that there's something more intimate about a porch than an open driveway.

[00:28:26] Speaker 04:
But I think the question still stands that if by your logic, there's just a significant part of the perimeter of the house that's not cartilage and that somebody could enter in however aggressive manner they want to.

[00:28:40] Speaker 04:
And that does seem to go against Tardinas.

[00:28:42] Speaker 00:
And again, I would say that it really doesn't matter how the curtilage issue would be decided now.

[00:28:50] Speaker 00:
During the time that everybody was arguing this case, Pereira Ray was the most recent precedent on the issue.

[00:28:59] Speaker 00:
And this court went through each of the done factors in determining whether or not that particular portion of the carport was considered curtilage or not.

[00:29:10] Speaker 04:
Why didn't Chung just have a reasonable expectation of privacy and not have somebody hop out from the side from his neighbor's house after night and show up right on the open part of the driveway, on the garage door?

[00:29:26] Speaker 00:
I guess it's hard to say that you have an expectation of privacy when the driveway is so open and the public can cross through it and there's no enclosure surrounding it and you don't do anything on that part of the driveway that would be considered an intimate activity in the home.

[00:29:44] Speaker 04:
Part of the awkwardness of this is that this is obviously not a meet and greet.

[00:29:49] Speaker 04:
It was a bust, a parole search.

[00:29:52] Speaker 04:
To talk about it as though somebody were walking up to a house as if any of us would is not really what was going on there.

[00:29:58] Speaker 04:
On the parole search, your friend on the other side has said basically there was just not enough here to even call this good faith.

[00:30:05] Speaker 04:
Can you address that?

[00:30:07] Speaker 00:
Well, for the good faith, I would argue that the officers had good faith to believe that where they were on the driveway was not curtilage, certainly based on Pereira, based on all the other cases that applied the done factors.

[00:30:24] Speaker 00:
And if you look at what Deputy Lee, I guess Sergeant Lee now, said during the remand hearing,

[00:30:32] Speaker 00:
He said that he didn't have any reason to think he was not allowed to be on that particular part of the driveway because it was completely open to the public.

[00:30:41] Speaker 00:
So to go to the good faith argument, I do want to point out that there was a search warrant in this case.

[00:30:50] Speaker 00:
So, you know, it is an established basis.

[00:30:53] Speaker 02:
That was after the fact though.

[00:30:55] Speaker 02:
That was after the initial search, right?

[00:30:57] Speaker 00:
Right, but under artists, even if the officers relied on a warrant that later is determined to have a problem, even if it's based on illegally obtained evidence, good faith can still apply if the misconduct wasn't sufficiently deliberate or sufficiently culpable.

[00:31:16] Speaker 00:
And so here, I mean, looking at the mistake, if there was a mistake, I mean, the mistake that they made would have been being on part of a driveway that was completely open to the public to pass or by and not protected.

[00:31:30] Speaker 00:
So this would fall under that kind of, quote, isolated negligence that- Have you ever applied that good faith standard to mistaking curtilage?

[00:31:39] Speaker 02:
I've only seen that good faith used to warrants as taking to your point.

[00:31:44] Speaker 02:
But I've never seen good faith playing well.

[00:31:47] Speaker 02:
The officer had good faith to believe it was not curtilage.

[00:31:51] Speaker 00:
I have not seen curtilage specifically.

[00:31:54] Speaker 02:
So this would be a big extension of good faith doctrine.

[00:31:57] Speaker 00:
I mean, I don't believe it would be a huge extension because you do have the mistake of fact case where the, you know, under herring where the officers relied on a warrant, you know, they arrested someone and it turned out later that the warrant had been recalled.

[00:32:14] Speaker 02:
Yeah, the warrant, that's very clear.

[00:32:16] Speaker 02:
I've never seen it in this type of situation.

[00:32:20] Speaker 00:
Certainly not exactly the situation before.

[00:32:25] Speaker 00:
But under Herring, it says that evidence should be suppressed only if the officer, you can say that the officer had knowledge that the search was unconstitutional, or be properly charged with knowledge that the search was unconstitutional.

[00:32:38] Speaker 00:
And so I think the court would have to find that the officers should have known, they shouldn't have been on that part of the driveway.

[00:32:46] Speaker 02:
Can I just ask you a question about Don?

[00:32:49] Speaker 02:
So even if, regardless of whether or not the law was shifting in Post-Jones and Jardinez came out pretty recently, even Don itself says the curtilage concept are related at common law to extend to the area immediately surrounding a dwelling house the same protection

[00:33:08] Speaker 02:
Under the law of burglary has afforded the house itself.

[00:33:12] Speaker 02:
So even under done going back when was that like in 1980 1987 it seemed pretty clear the immediate area around the house should be considered curtailage So why why why isn't it not effective not to even make that argument?

[00:33:24] Speaker 00:
Because Perea Rey, the carport in Perea Rey was immediately adjacent to the house.

[00:33:30] Speaker 00:
The carport in Perea Rey actually had a door that went from the carport inside the house.

[00:33:37] Speaker 00:
So it was immediately adjacent to the house.

[00:33:39] Speaker 00:
And even in that case, the Ninth Circuit went through all the factors.

[00:33:43] Speaker 00:
They didn't just say, oh, well, it's immediately adjacent to the house.

[00:33:47] Speaker 00:
Therefore, it's curtilage.

[00:33:49] Speaker 00:
They said, well, look, it's immediately adjacent and it's enclosed.

[00:33:53] Speaker 00:
And they stored stuff in there.

[00:33:56] Speaker 02:
And they made- What's the facts in that case?

[00:33:58] Speaker 02:
That the garage was immediately- I'm sorry, say that again.

[00:34:02] Speaker 02:
The garage was separated in that case, right?

[00:34:04] Speaker 00:
It was a carport that the officers went into.

[00:34:08] Speaker 02:
But it wasn't connected to the house?

[00:34:10] Speaker 00:
Yes, well, so the carport was on the side of the house.

[00:34:16] Speaker 02:
Right, not connected to the house.

[00:34:17] Speaker 00:
And yes, it was attached to the house.

[00:34:19] Speaker 00:
It was.

[00:34:20] Speaker 00:
Because it was enclosed and then there's a door leading from the carport area.

[00:34:26] Speaker 00:
into the House.

[00:34:28] Speaker 00:
So I think anyone, even if the court doesn't agree with that now, at the time, you know, certainly any reasonable counsel would believe that that's the standard for how you determine what curtailage is.

[00:34:51] Speaker 00:
I think unless the court has any more questions, I will submit.

[00:34:57] Speaker 04:
Thank you.

[00:34:58] Speaker 02:
Would you like a minute for rebuttal?

[00:35:00] Speaker 01:
Sure.

[00:35:03] Speaker 01:
I point out regarding the whole strategic choice not to introduce evidence of standing.

[00:35:07] Speaker 01:
On page 58 of the opening brief, there's a site, materials didn't make it into the ER, but an August 19, 2013 hearing in which the district court himself told defense counsel, look, you could submit more evidence on standing.

[00:35:21] Speaker 01:
That does not corrupt your parole search issue, because that's just based on what the officers know at the time.

[00:35:25] Speaker 01:
So it's not only in Granbury.

[00:35:26] Speaker 01:
The district court actually told counsel that a few times during that hearing.

[00:35:31] Speaker 01:
Furthermore,

[00:35:34] Speaker 01:
Tron could not have had more contacts with this house, really, than any social guest anywhere.

[00:35:39] Speaker 01:
I mean, he is practically living there part of the time.

[00:35:42] Speaker 01:
They are close family members.

[00:35:43] Speaker 01:
He has close contacts with the property and with the people who live there.

[00:35:48] Speaker 01:
Under the analysis of Carter, however you slice it or dice it, those sorts of contacts establish standing.

[00:35:54] Speaker 01:
And there was just no reason not to.

[00:35:56] Speaker 04:
Just not enough contacts to establish residence.

[00:36:00] Speaker 01:
that while that's right there was enough contacts to establish probable cause to believe that he lived there and he didn't live there he was just a frequent gas because they were close family members but again what the officers knew at the time is separate from what he submits to establish standing that the one can't face on a good faith point i'm sure judgment they will will let you go over if uh... if we have more questions on the on the good faith point the government was arguing that uh...

[00:36:26] Speaker 04:
It was actually good faith as to the curtilage issue.

[00:36:29] Speaker 04:
Can you address that?

[00:36:30] Speaker 04:
I guess the theory being that the officers believed reasonably that they were not on the curtilage.

[00:36:35] Speaker 01:
Well, to start with, the officers didn't give a moment's thought to curtilage.

[00:36:38] Speaker 01:
They were charging in to do a parole search.

[00:36:40] Speaker 01:
And if you listen to the recording from Sergeant Kim, even up to the point they're searching the house, it's obvious they're still doing a parole search.

[00:36:45] Speaker 01:
Why they stopped at some point and got a warrant, I don't know.

[00:36:48] Speaker 01:
But they certainly weren't reasonably relying on some belief that it was the curtilage.

[00:36:52] Speaker 01:
That's not what they were doing at all.

[00:36:54] Speaker 01:
But furthermore, the good faith exception has been limited to context in which the officers reasonably believe something

[00:37:01] Speaker 01:
that turns out to, well, what you cited in your remand order, the reasonable relied on controlling case law that was later reversed.

[00:37:10] Speaker 01:
That's not like what happened here.

[00:37:11] Speaker 01:
Basically, what the government is seeking to do is supplant probable cause with reasonableness, which would completely undermine

[00:37:19] Speaker 01:
all of the Supreme Court case law with respect to searches.

[00:37:22] Speaker 01:
There would be no longer a requirement for probable cause.

[00:37:25] Speaker 01:
You wouldn't have to get a warrant either.

[00:37:26] Speaker 01:
You just come in and say, well, I was acting reasonably.

[00:37:28] Speaker 01:
And by the way, if you look at the testimony, what these guys had to say at the hearing, it doesn't seem that it was very reasonable.

[00:37:34] Speaker 01:
They knew that there was a different address attached to Mr. Tron.

[00:37:37] Speaker 01:
They never contacted his parole officer.

[00:37:40] Speaker 01:
They said they checked the parole database, which showed that he was on parole.

[00:37:44] Speaker 01:
That would have also shown his correct address, which was not this address in Rowland Heights.

[00:37:48] Speaker 01:
There were so many things that they could have done, should have done, didn't do, and things that they did knew that undermined probable cause.

[00:37:55] Speaker 01:
So to look at what they testified to on her man and say there was good faith, it's just

[00:38:00] Speaker 01:
it doesn't fly.

[00:38:01] Speaker 01:
But what they should have brought is the HSI agents to testify on good faith.

[00:38:05] Speaker 01:
They didn't do that.

[00:38:06] Speaker 01:
I think we can infer something from that.

[00:38:08] Speaker 01:
Thank you very much for the extra time.

[00:38:09] Speaker 01:
Let me ask you before you sit down.

[00:38:11] Speaker 04:
I'm sorry, Judge Bermudez, if I may.

[00:38:13] Speaker 04:
What does the record show about why they sought the warrant later?

[00:38:19] Speaker 01:
Well, the record doesn't show anything about it, but what I've always assumed is they figured out at some point, oh, man, we've screwed up, and we're going to go get a warrant and try to fix this.

[00:38:28] Speaker 01:
But then they relied on the warrant and stuff that they had illegally obtained.

[00:38:32] Speaker 01:
I can't think of any other good explanation.

[00:38:34] Speaker 01:
I could tell you extra record stuff, but I don't want to offend the court's sensibilities on that, so I won't.

[00:38:42] Speaker 01:
But I will say, finally, I am familiar with the Osarian great book.

[00:38:46] Speaker 01:
Thank you for the extra time.

[00:38:48] Speaker 01:
Thank you.

[00:38:49] Speaker 02:
Great, thank you counsel, this case is submitted and we are in recess for today.