[00:00:01] Speaker 04:
Good morning, Your Honor, and counsel for the United States.

[00:00:04] Speaker 04:
I am Cristina D. Eduardo, representing Mr. Alvarez in this matter.

[00:00:08] Speaker 04:
I believe Mr. Pridham, who was formerly with our firm, did the brief.

[00:00:13] Speaker 04:
Your Honors, what this case, as the court's aware from having read, trying to find a way to not quite get as much feedback there, what, as the court's aware,

[00:00:23] Speaker 04:
The position of Mr. Alvarez in this case is that there is a difference between an officer's hunch and probable cause.

[00:00:33] Speaker 04:
In this particular instance, the hunch at the end of the day turns out to be accurate.

[00:00:38] Speaker 04:
There's no dispute that when law enforcement ultimately enter Mr. Alvarez's home, they find contraband.

[00:00:48] Speaker 04:
But that's not, I would suggest to the court, the primary issue before the panel today.

[00:00:54] Speaker 04:
The issue is how we got there.

[00:00:57] Speaker 04:
As the court's aware, this case begins when an SFPD officer is working with a confidential source.

[00:01:05] Speaker 04:
To this day, no one outside of the SFPD knows who this individual is.

[00:01:11] Speaker 04:
Confidential source tells them, hey, I've got this guy.

[00:01:15] Speaker 04:
He says he can sell me heroin and methamphetamine.

[00:01:19] Speaker 04:
The officer directs them to set up a meeting.

[00:01:23] Speaker 04:
Part of those two controlled buys that the CS has is not with Mr. Alvarez or Chewie, the individual that the CS is talking about.

[00:01:34] Speaker 01:
But Council, with respect, if I recall the record correctly,

[00:01:39] Speaker 01:
Officer Torsi did observe a controlled buy with Chewy, which confirmed what the CI had said.

[00:01:50] Speaker 01:
Isn't that correct?

[00:01:50] Speaker 04:
Your Honor, perhaps I misread it, but as I understood it, all of the transactions were between the confidential informant, and since we don't have the individual's name, we'll call him Mr. Runner, since he's considered to be a runner in this situation, and Mr. Runner.

[00:02:08] Speaker 04:
I believe that later, as I recall from the record, that Officer Tersey did take a surveillance photo.

[00:02:21] Speaker 02:
But there's a little bit more here.

[00:02:23] Speaker 02:
OK.

[00:02:24] Speaker 02:
As I read the record, and maybe I read it wrong, it's somewhere right at 4ER, 449 to 450.

[00:02:33] Speaker 02:
After the confidential informant tells the officers whatever he tells them, the officers listen to a phone call between the CI and Alvarez.

[00:02:44] Speaker 02:
And that phone call is about a drug deal.

[00:02:47] Speaker 02:
And then they observe these two sales, not with Alvarez, but with another person, that follow on that phone call.

[00:02:55] Speaker 02:
So it seems to me that there is

[00:02:58] Speaker 02:
reasonable ground to believe at some point that Alvarez is associated with these drug deals, because the police listen to them set these up with Alvarez, and then they watch and listen to the deals going down with somebody purportedly sent on his behest.

[00:03:16] Speaker 02:
So why doesn't that all add up to enough probable cause, together with the CI's statement, which has now sort of been confirmed that this guy is in the drug business, to search his apartment?

[00:03:29] Speaker 04:
I think, Your Honor, because at the first part of it, I would suggest that they don't know who that other person is.

[00:03:36] Speaker 02:
Right, but they're not, at that point, they're not getting a warrant and they're not doing any searches.

[00:03:42] Speaker 02:
Correct.

[00:03:42] Speaker 02:
So by the time they get the warrant, and then they do a ping on, they also do a ping on the apartment building and find out where he lives.

[00:03:50] Speaker 02:
and confirm that he's there.

[00:03:53] Speaker 02:
So at that point, when you put all those facts together, which is really the first time they go to the magistrate to get the warrant to search the apartment, why doesn't that conglomeration of facts set up the problem?

[00:04:06] Speaker 04:
I think what our position is on that is that the initial, because that warrant to search the apartment is several warrants down the road.

[00:04:16] Speaker 02:
I think it's two warrants down the road.

[00:04:19] Speaker 02:
I may be wrong.

[00:04:20] Speaker 02:
I think it's one after the ping and one before the cell warrant.

[00:04:24] Speaker 04:
Right, because I think, as I recall, you're under the last warrant is when, after they search the house, Officer Tersey secures two phones.

[00:04:30] Speaker 02:
The phones, that's the last one.

[00:04:32] Speaker 02:
That's the cell phone warrant.

[00:04:33] Speaker 02:
The first one is the ping, the second one is the house.

[00:04:36] Speaker 04:
Right, and I think the second one, but I believe there's also a second, if memory serves, there's actually a second one looking at cell phone.

[00:04:44] Speaker 00:
There are two cell phone location warrants, but it strikes me that that's

[00:04:49] Speaker 00:
looks a lot like the sort of incremental investigation probable cause around the phone, given the view of the buy and the information about the phone number.

[00:05:01] Speaker 00:
So let's figure out where that phone is.

[00:05:03] Speaker 00:
Another warrant to figure out where the phone is.

[00:05:06] Speaker 00:
And then probable cause to figure out where the house is, that the drugs might be in the house.

[00:05:13] Speaker 00:
So it seems like the investigators

[00:05:16] Speaker 00:
from working pretty incrementally here at each time, where's the gap that you see as your strongest argument?

[00:05:24] Speaker 04:
Where we would see is some of the argument, Your Honor.

[00:05:27] Speaker 04:
I know that the brief does discuss as well that they're actually seeking information that I believe post-AIDS and pre-, there's some mismatch between the information that's sought and the information that the warrant was approved.

[00:05:39] Speaker 01:
But with respect, Council,

[00:05:42] Speaker 01:
I mean, you're a good lawyer, you're trying to defend your client, but this seems like a classic, well-planned, sequential follow-up.

[00:05:53] Speaker 01:
You get the CI's information, CI says, there's a drug deal going down, they're listening on a phone call, and each step they proceeded based on the previous information.

[00:06:04] Speaker 01:
That's the very thing that the Fourth Amendment requires.

[00:06:08] Speaker 01:
I get your point.

[00:06:09] Speaker 01:
You're trying to say it's all based on the CI, but it isn't, is it?

[00:06:13] Speaker 04:
I think it is initially, Your Honor, because they never get, and I think that comes back to what I said at the beginning, which is there's no dispute that the hunch happens to be correct.

[00:06:23] Speaker 04:
There's no dispute that at the end of the day.

[00:06:25] Speaker 02:
But that's true in every Fourth Amendment case.

[00:06:27] Speaker 02:
Exactly.

[00:06:28] Speaker 02:
Otherwise, it's a 1983 case.

[00:06:30] Speaker 02:
If something wasn't seized, you wouldn't be here.

[00:06:32] Speaker 04:
Certainly, Your Honor.

[00:06:33] Speaker 04:
Otherwise, it's a 1983 case.

[00:06:34] Speaker 04:
But I think that what we have is,

[00:06:38] Speaker 04:
The only person that has any interaction with Chewy or if you will Mr. Alvarez is that confidential source.

[00:06:47] Speaker 04:
And that's some of the reason why we had raised the concerns that we did about things about that source that were not

[00:06:55] Speaker 01:
passed on to the man was corroborated and i think we're all saying here if it was just the c i there was never anything else and you have this unknown person that's different right but we've all referred to the fact you had listening on phone calls later on you're listening at the pain you had the calling of the number to it picks it up and uh... hangs up when they hang up i mean it's all corroborated so with respect i don't know how this helps you

[00:07:23] Speaker 04:
I understood, Your Honor.

[00:07:24] Speaker 04:
Again, as with the United States in the panel, I take the facts as I find them.

[00:07:31] Speaker 00:
Ms.

[00:07:31] Speaker 00:
DeAduardo, I wonder if I could focus on maybe the fourth warrant, an issue that troubles me a bit.

[00:07:38] Speaker 00:
The officer swears out in his affidavit.

[00:07:49] Speaker 00:
probable cause to search, not just the communications of the phone, which the officer suggests could be related to a drug trafficking conspiracy, but then media on the phone, photographs on the phone, solely on the basis, at least on my read of it, of probable cause for violent crimes, of which there's no probable cause.

[00:08:14] Speaker 00:
Then there are photographs taken from the phone,

[00:08:17] Speaker 00:
pursuant to that warrant.

[00:08:19] Speaker 00:
I believe some of them were introduced at trial, but in view of all of the other evidence, can you help me with why that, if there were not probable cause with respect to that evidence, the media evidence on the phone, why that wouldn't be subject to either a good faith exception or harmless error?

[00:08:41] Speaker 04:
Certainly, Your Honor, and I'm glad the court brought that up.

[00:08:45] Speaker 04:
I know that the United States addresses that in its brief, that if that language, that they agree that no one's alleging that Mr. Alvarez was involved in any violent crimes, and even Officer Tersey seems to be saying, based on my training and experience, when there are violent crimes happening, this is what would occur.

[00:09:06] Speaker 04:
But I think it strains the point to assume that Officer Tersey, as an experienced law enforcement officer,

[00:09:13] Speaker 04:
would put anything in that warrant application that he didn't think wouldn't help.

[00:09:18] Speaker 04:
He's not going to include surplusage.

[00:09:23] Speaker 00:
Because there are distinct categories.

[00:09:25] Speaker 00:
There are what I'll call the communication content of the phones, texts, voicemails, call logs, which

[00:09:36] Speaker 00:
alleged to be supported by probable cause with respect to drug trafficking because that's how the trafficking happens.

[00:09:41] Speaker 00:
But then there's the media photographs.

[00:09:44] Speaker 00:
What if that's just kind of boilerplate that he forgot?

[00:09:47] Speaker 00:
What if it's maybe not an innocent mistake but negligent, not bad faith?

[00:09:52] Speaker 00:
What do we do with that?

[00:09:53] Speaker 04:
My concern with that is this.

[00:09:55] Speaker 04:
If I'm putting myself in the position of the reviewing magistrate and what if I think

[00:10:01] Speaker 04:
You know, I think this is kind of on the edge here, but I'm reading this about violent crimes.

[00:10:07] Speaker 04:
I'm probably more likely to grant the warrant, because I'm thinking, you know, if it was just drugs, I might say go back and get some more things.

[00:10:15] Speaker 04:
But if there's a possibility that somebody could get hurt, I'm probably going to lean towards issuing the warrant.

[00:10:22] Speaker 00:
Well, we could, I mean, would you agree that aside from the fact, this is a question I'll have from your friend, but aside from the fact that the evidence was introduced at trial, we could

[00:10:31] Speaker 00:
sever that part of the warrant because the violent crimes only supported the pictures on the phone.

[00:10:40] Speaker 04:
That's correct, Your Honor.

[00:10:41] Speaker 04:
Absolutely that is possible, and I believe there's no dispute on that from the United States.

[00:10:45] Speaker 04:
But I would say, though, that what we would contend, as I have stated, is that

[00:10:51] Speaker 04:
The severance doesn't cure the problem, because there's an open question whether that last warrant would have been granted.

[00:10:57] Speaker 00:
Well, yeah.

[00:10:58] Speaker 00:
And I'm not sure the severance is available.

[00:11:00] Speaker 00:
And this is an issue for your friend.

[00:11:02] Speaker 00:
But there were photos from the phone under the probable cause of violent crime introduced at trial, were there not?

[00:11:10] Speaker 04:
My understanding is yes, Your Honor.

[00:11:11] Speaker 04:
I didn't do the trial.

[00:11:12] Speaker 04:
But as the court's aware, Mr. Alvarez, I think, after going through several counsel long before he hired us, ended up doing the trial, per se.

[00:11:20] Speaker 02:
Let me ask you, whatever the problems are with what I would call the cell warrant, because there's a PING warrant.

[00:11:30] Speaker 02:
If the search of the home is constitutional, doesn't that really end the analysis in this case?

[00:11:41] Speaker 02:
It's his place.

[00:11:44] Speaker 02:
He's got a key to the bedroom, so we know it's his place.

[00:11:48] Speaker 02:
And they find large quantities of illegal drugs.

[00:11:52] Speaker 02:
Now, I know you want to get to the search of the key, but just stay with me for a second.

[00:11:57] Speaker 02:
If what was seized in the apartment is not suppressed, does anything else matter?

[00:12:06] Speaker 04:
Assuming that the court would find that the prior warrants that led to the search... Right, that's what I'm saying.

[00:12:16] Speaker 02:
If that search is constitutional, then really whatever deficiencies there are with the cell warrant in this case really don't make a difference.

[00:12:24] Speaker 04:
Well, they make a difference only, Your Honor, in the sense that if the court finds that the cell warrants are supported by probable cause, that's how we get to the search.

[00:12:34] Speaker 02:
No, when I say the cell warrant, I'm meaning the one that Judge Johnstone was just talking about.

[00:12:39] Speaker 04:
My apologies, Your Honor.

[00:12:40] Speaker 04:
Yeah.

[00:12:41] Speaker 04:
And no, and I would concede that, Your Honor.

[00:12:43] Speaker 04:
That's true.

[00:12:43] Speaker 02:
So now I want to go back to the search incident to arrest.

[00:12:48] Speaker 02:
And I'm trying to figure out why that matters either.

[00:12:50] Speaker 02:
They already have a warrant to search the apartment.

[00:12:54] Speaker 02:
and all they really get incident to arrest, other than the phones, which I've now said, you know, you go down the line on that, is a key to the bedroom, which they would have been entitled to enter in any event given the warrant, wouldn't they?

[00:13:08] Speaker 04:
I think would, Your Honor.

[00:13:09] Speaker 04:
But the issue is, and I think the other question is more basic, at that point they don't have an arrest warrant.

[00:13:15] Speaker 04:
And ultimately the officers see him on a public street say,

[00:13:19] Speaker 04:
two or three gentlemen in plain clothes with no, not showing badges, at least not saying that they showed badges in the report saying stop police.

[00:13:30] Speaker 02:
But are you contending they didn't have probable cause to arrest him?

[00:13:34] Speaker 02:
At that point, are you claiming that they shouldn't have arrested him without a warrant?

[00:13:38] Speaker 02:
That's too different.

[00:13:39] Speaker 02:
See, if he was inside the house, I'd understand they shouldn't arrest him without a warrant.

[00:13:42] Speaker 04:
Right, but at this point this what exactly is I mean they were and they believe that record even states would He's not they're not actually looking for him at that point They just see him there and they're trying to detain him.

[00:13:55] Speaker 02:
Well, they know actually at that point They know he's been involved in a phone call that they've listened to with a confidential appointment about selling drugs They know whatever's happened with the sales.

[00:14:06] Speaker 02:
They know that he's inside the apartment Because they've pinged

[00:14:11] Speaker 02:
You know, they've got the peng warrants, so they know he's there, and they know he's leaving.

[00:14:16] Speaker 02:
And so at that point, I think they probably have probable cause to, on the drug charges, and they don't want to go out and get a warrant because he might disappear.

[00:14:28] Speaker 04:
But do we know that?

[00:14:29] Speaker 04:
I mean the fact is the guy doesn't know that he's under surveillance and he's also, they could have gotten an arrest warrant and they didn't.

[00:14:35] Speaker 04:
The other thing briefly, because I know I'm running out of time, is that with regard to the key, all the key is proof of is that he has a key to the apartment.

[00:14:43] Speaker 04:
There's no evidence presented in the record that I saw that he leases the apartment, the utilities are in his name, or anything like that.

[00:14:51] Speaker 04:
Oftentimes people, and there may have been other people who had access to that apartment that are not part here, but

[00:14:59] Speaker 04:
And if he hadn't run, what exactly would they have arrested him for?

[00:15:04] Speaker 04:
And I'm an out zero.

[00:15:05] Speaker 01:
Thank you, Your Honors.

[00:15:06] Speaker 01:
Thank you very much.

[00:15:07] Speaker 01:
Mr. Tartakovsky.

[00:15:14] Speaker 03:
Thank you, Your Honors.

[00:15:14] Speaker 03:
May it please the Court, Joseph Tartakovsky, for the government.

[00:15:18] Speaker 03:
There's this basic factual mistake that underlies the entirety of the argument.

[00:15:25] Speaker 03:
They say it on the first pages of the brief, and it just follows in every argument they make, which is that this was an informant that was, as they say in their brief, unproven.

[00:15:34] Speaker 03:
Or you heard now it was a hunch.

[00:15:36] Speaker 03:
It wasn't a hunch.

[00:15:38] Speaker 03:
What happened here was that Tersey tested the reliability of the informant before any information was brought to a magistrate judge.

[00:15:48] Speaker 03:
He personally tested it.

[00:15:50] Speaker 03:
The way to think about what happened here is that an informant came to Officer Tersey and said, I have information about my supplier.

[00:15:58] Speaker 03:
And what Michael Tersey, in effect, said is, prove it.

[00:16:01] Speaker 03:
You say you can buy drugs from this person, show me.

[00:16:04] Speaker 03:
And what proceeded to happen was to have this informant replicate in controlled buys exactly what the informant said would happen.

[00:16:15] Speaker 03:
Show them every step of Mr. Alvarez's modus operandi.

[00:16:20] Speaker 03:
you call this number, he answers, you ask for the drugs, he tells you to go to a specific corner, the CS goes there, the runner shows up 10 minutes later, you get the drugs, the police hear this, they see this, they test the drugs from start to finish, and they do this twice over multiple weeks, that's how the CS's reliability is

[00:16:40] Speaker 00:
Mr. Tartatovsky, I wonder if you could pick up at the end of the process here on my concerns that I was discussing with your friends about the fourth warrant.

[00:16:51] Speaker 00:
Did Officer Tersey make a mistake in the fourth warrant by supporting the search of the phone media only with nonexistent probable cause of violent crimes?

[00:17:03] Speaker 00:
And if so, what do we do with that?

[00:17:05] Speaker 03:
I wouldn't say it's a mistake.

[00:17:06] Speaker 03:
Judge Johnstone, it's boilerplate and an affidavit.

[00:17:10] Speaker 00:
Well, so where in the affidavit does, or in any of the affidavits, is there any suggestion that this investigation is into violent criminal acts?

[00:17:19] Speaker 03:
There's no specific facts alleged about violent criminal acts.

[00:17:22] Speaker 03:
It's boilerplate, I think, along the lines of when people are involved in drugs, there might also be guns.

[00:17:28] Speaker 03:
But you're right, there's no.

[00:17:29] Speaker 00:
But there's no connection here.

[00:17:30] Speaker 00:
There's drugs.

[00:17:32] Speaker 00:
And that gets us probable cause for the communications on the phone.

[00:17:37] Speaker 00:
But, I mean, is there anything here with respect to the photos that were introduced at trial that is supported by probable cause for drug trafficking as opposed to violent criminal acts?

[00:17:52] Speaker 03:
Yes, and I think you're looking at 4-ER-476.

[00:17:55] Speaker 00:
Help me.

[00:17:55] Speaker 00:
Help me here.

[00:17:56] Speaker 00:
I'm looking exactly there.

[00:17:59] Speaker 03:
I would just point to the second full paragraph, beginning after reviewing the incident report and based on my training experience, he makes the point that people involved in drug trafficking need to use phones.

[00:18:09] Speaker 03:
They need to communicate in all sorts of ways.

[00:18:11] Speaker 03:
Phone calls, but sharing of information.

[00:18:14] Speaker 03:
So he says, for instance, communications between co-conspirators is the most

[00:18:19] Speaker 03:
frequently accomplished by use of telecommunications.

[00:18:22] Speaker 02:
And nobody, I don't think anybody is worried about that.

[00:18:26] Speaker 00:
Those are not things that indicate media, cameras, the things that are discussed three paragraphs below.

[00:18:34] Speaker 03:
So then I go to the next paragraph.

[00:18:35] Speaker 03:
He says, phones are not just phones, they're computers.

[00:18:39] Speaker 03:
And they can have information about phone calls, text messages, multimedia, audio and video messages.

[00:18:45] Speaker 03:
That paragraph that follows on, he's saying phones have a lot of media.

[00:18:49] Speaker 00:
That's true, but it's unconnected to any belief or background he has in drug trafficking.

[00:18:57] Speaker 03:
I would push back on that, Your Honor, for this reason.

[00:18:59] Speaker 03:
When you are involved in drug trafficking, it's very common.

[00:19:03] Speaker 03:
You take pictures all the time.

[00:19:04] Speaker 00:
Sure, and if he said that, then it might be supported by probable cause, but he doesn't.

[00:19:08] Speaker 00:
He says, based on the subsequent paragraph, I know that suspects who commit violent criminal acts

[00:19:14] Speaker 00:
will brag about their actions and take digital photos, video or audio.

[00:19:19] Speaker 00:
The only time that it is connected, as opposed to just a generic statement about everyone knows what phones can do nowadays, is with respect to violent criminal acts.

[00:19:30] Speaker 03:
I think he's saying here that in connection with drug trafficking, multimedia will arise.

[00:19:35] Speaker 03:
He doesn't have any specific facts to allege about

[00:19:38] Speaker 00:
Mr. Alvarez doesn't even say that drug traffickers use it for this.

[00:19:42] Speaker 00:
It's just a fact about the phones that they can do this.

[00:19:47] Speaker 00:
But he doesn't, you know, and the reason this sticks out is because I think as we've suggested,

[00:19:53] Speaker 00:
The investigation has been relatively careful to this point proceeding on those first three affidavits, and it just looks like some boilerplate got stuck.

[00:20:01] Speaker 00:
So assuming that's a concern, what do we do with that?

[00:20:06] Speaker 00:
You suggest good faith.

[00:20:09] Speaker 00:
What do we do with a good faith exception where it's the same officer who, let's say, made this mistake and is the one who also executes the warrant?

[00:20:22] Speaker 03:
I think if you sever the language of violence.

[00:20:25] Speaker 00:
Well, we can't.

[00:20:26] Speaker 00:
But the photos from the phone were introduced at trial.

[00:20:30] Speaker 00:
Can we sever in that instance?

[00:20:32] Speaker 03:
Well, I don't want to push back on your conclusion, because it would be, Tersey would not have been able to say there are pictures on the phone, because he doesn't have Alvarez's phone.

[00:20:46] Speaker 03:
So what you have to say is, I'm a drug investigator.

[00:20:49] Speaker 03:
I know that when you find a drug dealer's phone, you're going to find pictures of drugs, of cash.

[00:20:55] Speaker 02:
So is your argument, sever is sort of a strange word.

[00:21:00] Speaker 02:
What you're really saying is that the warrant, even absent that allegation, there was ample probable cause to issue a warrant to search the phone.

[00:21:11] Speaker 03:
Correct.

[00:21:11] Speaker 03:
Correct.

[00:21:12] Speaker 02:
And that allegation, even if incorrect,

[00:21:18] Speaker 02:
wouldn't have affected the magistrate's decision to issue the warrant.

[00:21:21] Speaker 03:
Correct.

[00:21:22] Speaker 03:
Because at that point you have a man who's been positively linked to this apartment.

[00:21:27] Speaker 03:
You have 65 pounds of meth found in the apartment.

[00:21:30] Speaker 03:
You have $46,000 in cash found in the apartment.

[00:21:34] Speaker 03:
You have the phones found on this guy.

[00:21:36] Speaker 03:
And this is a drug trafficker that the information to date is that he's using his phone to a rage drug deal.

[00:21:42] Speaker 00:
Well, and of course they had all of that available at the time because the phones were with all of that other stuff was part of what was collected.

[00:21:53] Speaker 00:
Can we deal with this on harmless errors to a sponte?

[00:21:57] Speaker 00:
I mean, that argument seems to suggest because none of that was the basis of the

[00:22:03] Speaker 00:
Affidavit that that doesn't appear in the affidavit supporting it Can we find harmless error?

[00:22:11] Speaker 00:
Because all of that other evidence and in addition to other evidence not collected the residents establishes guilt beyond a reasonable doubt

[00:22:19] Speaker 03:
I think you can.

[00:22:21] Speaker 03:
So there's ample probable cause absent that.

[00:22:24] Speaker 03:
I think you can find harm.

[00:22:25] Speaker 02:
The question Judge Johnstone asks is, was that probable cause submitted to the magistrate?

[00:22:31] Speaker 02:
I don't doubt that there was ample probable cause to justify a warrant to search the phones.

[00:22:36] Speaker 02:
Were the facts that support that probable cause submitted to the magistrate before he issued this warrant?

[00:22:46] Speaker 01:
Yes.

[00:22:48] Speaker 01:
So does that mean

[00:22:50] Speaker 01:
I guess we're all struggling with this.

[00:22:51] Speaker 01:
If you have an application for a warrant that clearly as to one part shows probable cause, and you have another part that seems extraneous, not warranted, what happens under that circumstance?

[00:23:06] Speaker 01:
Is it harmless error?

[00:23:08] Speaker 01:
Do we just no harm no foul because there was enough in the application to justify a warrant on other grounds?

[00:23:15] Speaker 01:
How do we deal with that?

[00:23:16] Speaker 03:
I think I think you have just about four four ways to deal with it.

[00:23:20] Speaker 03:
One is to separate say Just just assume it was never put in there what?

[00:23:26] Speaker 00:
I'm just on it.

[00:23:27] Speaker 00:
I'll keep track here.

[00:23:28] Speaker 00:
I'll let you finish but I guess

[00:23:32] Speaker 00:
In my review of our cases on severance, I'm stuck with the fact that severance, in at least the cases we've reviewed and that you've cited, deal with evidence that was not then put before the jury.

[00:23:46] Speaker 00:
I'm worried that that's an obstacle for you there, and these photos were.

[00:23:53] Speaker 03:
Photos were put before the jury, photos that linked Alvarez to the House principally.

[00:23:59] Speaker 00:
From the phone?

[00:24:00] Speaker 00:
From the phone.

[00:24:01] Speaker 00:
OK.

[00:24:01] Speaker 03:
So there was no evidence of violence at trial.

[00:24:03] Speaker 03:
There was no evidence of violence seized.

[00:24:05] Speaker 00:
No, but I think the idea of severance is we can, one of our cases, I think we'd knocked out the entire warrant and we'd said, actually, no, partial severance is the right thing.

[00:24:14] Speaker 00:
And the government won, and we sent it back.

[00:24:16] Speaker 00:
And in some of these cases, we've said, well, the severance is OK.

[00:24:21] Speaker 00:
but only because the evidence didn't come in.

[00:24:25] Speaker 00:
But we'll go back to that.

[00:24:26] Speaker 00:
What's the next?

[00:24:27] Speaker 03:
Well, let me try to frame it this way.

[00:24:28] Speaker 03:
You can see from the investigation, which you are right, was very systematic, very careful.

[00:24:33] Speaker 03:
It was very well done.

[00:24:34] Speaker 03:
But the central exercise was pinning Mr. Alvarez to this house.

[00:24:39] Speaker 03:
That was the task.

[00:24:40] Speaker 03:
Who's the man behind the phone, and where does he live, and let's go to the house.

[00:24:43] Speaker 02:
And maybe we're suffering from a nomenclature problem with severance.

[00:24:49] Speaker 02:
I think the way our cases tend to treat that is we'll allow the evidence in that would have been justified under the real facts, but not the evidence in that wouldn't have been justified under the useful statement here.

[00:25:04] Speaker 02:
So for example, if the warrant said we have ample cause to think that he's a drug dealer,

[00:25:10] Speaker 02:
And we also believe he's a terrorist that is making bombs in his basement, and there's no facts whatsoever to support the second one.

[00:25:18] Speaker 02:
We probably wouldn't let the bombs that was discovered in his basement in

[00:25:23] Speaker 02:
but we would let the evidence about the drug dealing.

[00:25:26] Speaker 02:
And so I think severance in our parlance doesn't talk about severing language out of an affidavit.

[00:25:32] Speaker 02:
It talks about severing the information that was properly obtained versus the information that was improperly obtained.

[00:25:44] Speaker 02:
So now I want to ask, having said that, it seems to me what you were saying to Judge Johnstone is that

[00:25:49] Speaker 02:
They didn't introduce at trial anything that wouldn't have been covered by what we're assuming now are the proper portions of the affidavit.

[00:25:59] Speaker 03:
Yes, yes, fair enough, and Judge Johnson, the photos merely tied him to the house.

[00:26:05] Speaker 03:
That's all the pictures taken from the phone where it would, they're basically selfies of Alvarez in the house.

[00:26:10] Speaker 00:
Right, and those were, the only thing that, the only thing where in the affidavit they seek text and video are in those subsequent paragraphs, maybe we can,

[00:26:28] Speaker 00:
parse which one is tied to which.

[00:26:31] Speaker 00:
But it's after they've talked about drug traffickers use phones to communicate.

[00:26:37] Speaker 00:
Phones also can take photos.

[00:26:40] Speaker 00:
Violent criminals use photos on phones to brag about what they've done.

[00:26:47] Speaker 03:
Correct.

[00:26:47] Speaker 00:
I agree with you.

[00:26:48] Speaker 00:
And you want to attach that middle part to what preceded.

[00:26:52] Speaker 00:
the drug trafficking, and the question is whether it's fair to attach that to what followed.

[00:26:58] Speaker 00:
So if I guess the, I don't know, the first ground is severance, it seems like maybe one of the questions that Judge Hurwitz is suggesting, you might need something else, right?

[00:27:07] Speaker 00:
If severance means we have to take out any evidence that wasn't supported, well, we can't do that after the trial.

[00:27:13] Speaker 00:
So then what are the other three outs for you?

[00:27:15] Speaker 03:
Okay, so inevitable discovery.

[00:27:18] Speaker 03:
They had a warrant,

[00:27:21] Speaker 03:
a search warrant for Mr. Alvarez.

[00:27:22] Speaker 00:
With a cell phone, though, do we want to go there?

[00:27:25] Speaker 00:
In terms of inevitable discovery, the Supreme Court's told us that cell phones have so much on them.

[00:27:32] Speaker 00:
And I suspect that the department here took great care to segregate the areas there.

[00:27:40] Speaker 00:
Once you get into a cell phone, everything's fair game?

[00:27:44] Speaker 00:
Anyway, maybe you'd want to go to your next due, given that.

[00:27:49] Speaker 03:
the the strife argument which is that they had in a the the fact is that they had at that point probable cause to arrest him and they would have seized the phones and

[00:28:07] Speaker 02:
If they had seized them, would they have been entitled to search them without a warrant?

[00:28:12] Speaker 02:
No, you need a warrant.

[00:28:14] Speaker 03:
You need a warrant, right.

[00:28:16] Speaker 02:
It's not that the inevitable discovery here is that they would have discovered the phones, but they still need probable cause to search them.

[00:28:22] Speaker 03:
Yeah, but they would have written perhaps a different warrant.

[00:28:26] Speaker 03:
But I just would submit, Judge Johnstone, I take your point, but it seems to me that the most reasonable understanding of this warrant and what a magistrate would have assumed

[00:28:37] Speaker 03:
was that the probable cause to get into this phone flows from the facts that they just seized 65 pounds of meth, all this cash from this guy's apartment, an apartment that he had just left.

[00:28:48] Speaker 03:
And drug dealers used phones and they had an entitlement to get into the phone to find, yes, text messages or voicemails or pictures.

[00:28:55] Speaker 03:
And the pictures that came in were basically pictures of him in the apartment.

[00:28:58] Speaker 03:
That was his argument trial that you can't prove that I lived here.

[00:29:02] Speaker 03:
So I think that, I don't want to seem like a stretch, I think the natural way to read this is they're saying drug traffickers use phones, you're gonna find a wealth of information on the phone, and then he goes on to the violent piece.

[00:29:16] Speaker 00:
If you take the photos from the phone out, is there more than enough proof at trial beyond a reasonable doubt that could render this harmless?

[00:29:29] Speaker 03:
I think the answer is yes, because you would have, you have the drugs, you have him coming out of the apartment, you have him answering the phone, you have the ping data putting him at the apartment, you have the text messages from the phone where, deal after deal after deal, I have the drugs, yes, you can buy this, met that, dozens of phones, and so the... And you have his keys.

[00:29:48] Speaker 02:
And we have his keys.

[00:29:49] Speaker 02:
The key that fits the bedroom door.

[00:29:50] Speaker 03:
We have pictures of him hanging on the wall in the home.

[00:29:53] Speaker 03:
We have all the drugs on the bed, the cash on the bed.

[00:29:55] Speaker 03:
We have the jail calls where he's saying, well, they caught me with all the stuff on the bed.

[00:29:58] Speaker 03:
I don't really even have an argument.

[00:30:00] Speaker 03:
I can't argue that I didn't know what was in there.

[00:30:02] Speaker 03:
They have all the jail calls.

[00:30:03] Speaker 03:
So the pictures off the phone would be harmless in the sense that they were just a few.

[00:30:09] Speaker 03:
I think it's fair to say it was kind of like an icing on the cake of him just putting him physically in the apartment.

[00:30:14] Speaker 03:
You can see the apartment in the background.

[00:30:16] Speaker 01:
But bottom line, the government's position is, as Chuck Kern used to say, no harm, no foul, right?

[00:30:22] Speaker 01:
Yes.

[00:30:23] Speaker 01:
Okay, other questions?

[00:30:26] Speaker 01:
All right, thanks very much to both of you.

[00:30:28] Speaker 01:
We appreciate your argument.

[00:30:29] Speaker 01:
The case just argued is submitted.