[00:00:03] Speaker 04:
Good morning, everyone.

[00:00:04] Speaker 04:
Once again, I'm delighted to be sitting here in Portland with my amazing colleagues, judges Graber and Song.

[00:00:12] Speaker 04:
The case scheduled for argument at this time is United States versus Colossus.

[00:00:16] Speaker 04:
Council for Appellate, please approach and proceed.

[00:00:26] Speaker 02:
Good morning.

[00:00:27] Speaker 02:
My name is Micah Rayner.

[00:00:28] Speaker 02:
I represent Andrew Kowalchuk, the appellant in this matter.

[00:00:31] Speaker 02:
I'd like to reserve two minutes for rebuttal time, if that's OK with you.

[00:00:34] Speaker 04:
All right, counsel, please be reminded that the time shown is your total time remaining.

[00:00:40] Speaker 02:
Yes, Your Honor, the clerk helpfully explained that.

[00:00:42] Speaker 02:
And I'd like to focus on the search of the luggage and not the search of the storage lockers.

[00:00:48] Speaker 02:
That seems to be the main event here, as it yielded the images ultimately used at trial against Mr. Kowalchuk.

[00:00:54] Speaker 04:
All right.

[00:00:55] Speaker 02:
And I think a good place for this court to start in analyzing the district court's ruling is on the written findings on pages 36 and 37 of the excerpts of record.

[00:01:06] Speaker 02:
There the district court applies non-Gantt case law to the 2007 search and it characterizes its analysis of the search incident to arrest after Mr. Kowalchuk was locked in the back of the

[00:01:21] Speaker 02:
Squadcar is a very close call and it acknowledges this court's language in Maddox that says the spatial and temporal proximity of the detention to the search is not conclusive.

[00:01:38] Speaker 02:
There has to be some other exigency that justifies the delay.

[00:01:42] Speaker 03:
Council, why wouldn't the inevitable discovery doctrine apply here, rendering that argument not this positive?

[00:01:54] Speaker 02:
The inevitable discovery doctrine should not apply because the inventory procedures used by the police in this case did not comply with Washington state law.

[00:02:09] Speaker 02:
And this court has previously said, I hope I'm pronouncing the case right, Cormier or Cormier, that the state law should be

[00:02:18] Speaker 02:
in order for the exclusionary rule to not apply, state law has to be followed.

[00:02:24] Speaker 02:
And here it wasn't.

[00:02:25] Speaker 04:
I thought we said that whatever procedures they have in place have to be followed.

[00:02:31] Speaker 02:
I think if a local police officer's policies do not comply with state law, then the policies of that police department are

[00:02:43] Speaker 04:
itself illegal.

[00:02:44] Speaker 04:
Am I correct in my recollection that there were no written policies in this case?

[00:02:49] Speaker 02:
Correct.

[00:02:49] Speaker 02:
There's no written policies.

[00:02:50] Speaker 02:
There is case law from this court that no written policy is necessary.

[00:02:55] Speaker 02:
However, an unwritten policy still would have to comply with Washington state law.

[00:03:00] Speaker 00:
If I understand you correctly, you're referring to the Washington state law cases about vehicles and how the officers have to make a reasonable effort to

[00:03:10] Speaker 00:
find another way to deal with the vehicle before impounding it, is that correct?

[00:03:18] Speaker 02:
There's the Hauser case, which talks about vehicles.

[00:03:21] Speaker 02:
But the statute supporting the Hauser case doesn't just apply only to vehicles.

[00:03:27] Speaker 02:
And there is also the Dugas case, which existed at the time of the search, which is another State v. Dugas Washington case, which applies that general framework to items that are not a vehicle, but personal items outside of the vehicle context.

[00:03:45] Speaker 03:
What do you make of United States versus Wenless?

[00:03:49] Speaker 03:
I'm not sure if that's the right pronunciation, where we said they followed their local procedures.

[00:03:56] Speaker 02:
Well, I think that can be balanced with this court's opinion.

[00:04:03] Speaker 02:
And again, I hope I'm pronouncing the court's opinions right, Cormier, where we have to follow state law.

[00:04:08] Speaker 02:
If a local police

[00:04:10] Speaker 02:
Think of the policy problems that would create.

[00:04:14] Speaker 02:
If a local police unit had a illegal, unwritten inventory policy that paradoxically only applies to items that are not in a car, where cars have a less expectation of privacy, generally under Fourth Amendment jurisprudence, that would be kind of nonsensical and it would also be contrary to the state law principles that govern inventory searches.

[00:04:39] Speaker 04:
The difficulty is this is not a state case.

[00:04:41] Speaker 04:
It's a federal case, and we're applying the federal constitution.

[00:04:45] Speaker 04:
And the overall concept is reasonableness, whether or not this was reasonable.

[00:04:49] Speaker 04:
So I'm not sure that we have to look at whether there was a compliance with every particular provision of state law in order to determine whether or not it was reasonable for purposes of the exclusionary rule.

[00:05:04] Speaker 02:
I think that there

[00:05:06] Speaker 02:
The Washington distinction between open and closed containers is pretty foundational to Washington law.

[00:05:13] Speaker 02:
And I think the reasonableness of an inventory search is a non-evidentiary purpose.

[00:05:22] Speaker 02:
And we submitted in the Rule 28 J letter to the court its recent Anbach opinion in that Anderson case, where the purpose of

[00:05:33] Speaker 02:
the inventory search is also to create an inventory, not an evidentiary rummaging, where I think the facts of the case at the suppression hearing does seem to indicate it was the police were searching for evidence and not creating an inventory to protect against the false allegations of theft or as part of the police being a bailer to the property or to safeguard the defendant's valuables.

[00:06:01] Speaker 02:
After all, they left

[00:06:02] Speaker 02:
some of the defendant's valuables in the motel room.

[00:06:05] Speaker 00:
Going back, well, I think there's a difference between luggage that's in the middle of the street and luggage that's in a parking lot and luggage in the hotel room.

[00:06:13] Speaker 00:
But I want to go back to a moment to your initial argument about the search incident to arrest.

[00:06:19] Speaker 00:
Even in light of Gantt, why wouldn't the good faith exception apply?

[00:06:24] Speaker 02:
So I concede in the government's briefing that this search is pre-Gantt.

[00:06:32] Speaker 02:
And post-Gantt case law says that its good faith exception applies when police relied on the Gantt exception.

[00:06:42] Speaker 02:
However, non-Gantt case law.

[00:06:47] Speaker 02:
Turner, Hudson, still have this.

[00:06:50] Speaker 02:
And Maddox is post-gant, but it doesn't cite gant at all.

[00:06:54] Speaker 02:
All of those still have an exigency exception.

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And there's critical facts here that distinguish this case from Turner and Hudson.

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One, the defendant was placed in a, was not just placed in another room, but locked in a squad car.

[00:07:13] Speaker 02:
The police did a protective,

[00:07:16] Speaker 02:
search of the hotel room where the defendant was staying.

[00:07:21] Speaker 02:
There was a heavy police presence.

[00:07:23] Speaker 02:
There's no threat to the officers at the time of the search.

[00:07:28] Speaker 02:
was conducted.

[00:07:30] Speaker 02:
I think that the government's briefing does give short shrift to the exigency at the time of the search.

[00:07:37] Speaker 02:
There really wasn't one.

[00:07:38] Speaker 02:
How could the officers, even going back to Chamele, the purpose for the search incident to arrest, exception to the Fourth Amendment,

[00:07:49] Speaker 02:
is the policy is to protect officer safety.

[00:07:54] Speaker 03:
Going back to the inevitable discovery portion of the government's argument, I think that there was evidence that one of the things that is looked for in that context

[00:08:13] Speaker 03:
is weaponry and why wasn't it reasonable to and why wouldn't it have been reasonable to look for firearms in the luggage at that time?

[00:08:28] Speaker 02:
I think the

[00:08:31] Speaker 02:
Facts supporting a firearm being in a particular piece of luggage at that time from an 11-year-old prior incident alleged against the defendant involving a firearm are too attenuated.

[00:08:46] Speaker 02:
We don't have any particular.

[00:08:47] Speaker 03:
So is it your view that if someone has had weapons problems a year ago, there's no ability to determine whether that's happening again?

[00:08:58] Speaker 03:
That seems to be your argument.

[00:09:03] Speaker 02:
Yes.

[00:09:06] Speaker 02:
Let's think of it.

[00:09:07] Speaker 02:
Here's, I think, a good way maybe to help the court think about it.

[00:09:10] Speaker 02:
If there were, if someone came to you, I know it's a different standard.

[00:09:16] Speaker 02:
But if someone came to a federal magistrate judge and said, we're looking for, we want to do a search of a box that belonged to the defendant who previously had a gun 11 months ago.

[00:09:31] Speaker 02:
The magistrate judge had said, you've got to come back with more particularity as to why there would be a gun in the box at that time.

[00:09:40] Speaker 02:
There was testimony at this suppression hearing, or at least evidence submitted, how a gun that's in a box, the exigency is not dangerous if it's just sitting in a property.

[00:09:55] Speaker 04:
We're not talking about exigency.

[00:09:56] Speaker 04:
We're talking about inventory, sir.

[00:09:58] Speaker 02:
Right.

[00:09:59] Speaker 02:
But the point of the Washington law, though, there has to be some danger.

[00:10:05] Speaker 02:
to the police by the closed item.

[00:10:08] Speaker 04:
Let me ask you this.

[00:10:09] Speaker 04:
You relied on Cormier for your argument that the inventory search had to comply with state law.

[00:10:18] Speaker 04:
What language specifically in Cormier are you relying on?

[00:10:24] Speaker 02:
I can't recall the quote right now, Your Honor.

[00:10:26] Speaker 04:
So I'm looking at page 1111 of Cormier, the third paragraph of section B. And it says, there are two exceptions to the general rule that state law violations do not require suppression of evidence in federal court.

[00:10:40] Speaker 04:
The first exception arises when a court is determining the legality of an inventory search.

[00:10:47] Speaker 04:
Because federal law on inventory search by state or local police officer requires they must be conducted in accordance with the official procedures of the relevant state or local police department.

[00:10:59] Speaker 04:
Not state law, but the procedures of the relevant police department.

[00:11:04] Speaker 04:
Does that change your argument about the inventory search?

[00:11:09] Speaker 02:
The state procedures were propounded to a certain point by the Washington State Patrol.

[00:11:16] Speaker 04:
They didn't have any written procedures.

[00:11:21] Speaker 02:
The poly-optal police department?

[00:11:23] Speaker 04:
Are we talking about your name?

[00:11:26] Speaker 02:
Did I?

[00:11:27] Speaker 02:
I'm mispronouncing it because I'm not local.

[00:11:28] Speaker 02:
I'm sorry.

[00:11:31] Speaker 04:
And they testified that they complied with their unwritten procedures.

[00:11:37] Speaker 04:
So how do you get around that?

[00:11:39] Speaker 02:
Well, that would create a paradox where state police could

[00:11:45] Speaker 02:
create policies that were wildly inappropriate to the purpose of an inventory search.

[00:11:53] Speaker 04:
Well, but that's not the case.

[00:11:55] Speaker 04:
You didn't make that argument about these procedures that the police have.

[00:12:00] Speaker 04:
There's been no assertion that they're unconstitutional or violate federal law in any way.

[00:12:07] Speaker 04:
So if their testimony is that they complied with their unwritten

[00:12:15] Speaker 04:
inventory policy, and Cormier says that that's what they have to do.

[00:12:19] Speaker 04:
Why don't you lose on that point?

[00:12:25] Speaker 02:
I mean, state procedures would have to follow state law.

[00:12:29] Speaker 04:
That's not what Cormier says, though.

[00:12:32] Speaker 02:
In compliance with state?

[00:12:35] Speaker 04:
It says in accordance with the official procedures of the relevant state or local police department.

[00:12:43] Speaker 02:
So wouldn't procedure of the relevant state fall under what's permissible under state law?

[00:12:49] Speaker 02:
That would be my position.

[00:12:50] Speaker 02:
That is my position.

[00:12:51] Speaker 04:
I understand your opinion.

[00:12:54] Speaker 02:
I see that I'm down to two minutes and 36 seconds.

[00:12:58] Speaker 02:
I think now would be a good time to stop unless the court has further questions.

[00:13:01] Speaker 04:
Thank you, counsel.

[00:13:01] Speaker 04:
We'll hear from the state.

[00:13:08] Speaker 01:
May it please the court.

[00:13:09] Speaker 04:
From the government, I should say.

[00:13:11] Speaker 01:
Thank you.

[00:13:12] Speaker 01:
May it please the court, Kelly Zussman, appearing on behalf of the United States.

[00:13:16] Speaker 01:
I think if we begin with the principle that the touchstone of the Fourth Amendment is reasonable this.

[00:13:22] Speaker 01:
The district court properly assessed what law enforcement did here as, in fact, reasonable at every step.

[00:13:30] Speaker 01:
Then I want to jump to the inevitable discovery argument, and that's one that is distinct from the inventory search itself.

[00:13:39] Speaker 01:
So the officers in this case unquestionably treated the search of Mr. Kowalczyk's bags as a search incident to arrest.

[00:13:47] Speaker 01:
Our argument about the inventory is that if they hadn't done that, the evidence would have inevitably been discovered once the bags were taken back to the police department and subject to their routine inventory practice.

[00:14:02] Speaker 01:
So when it comes to the reasonableness though of the officers conducting the cursory search of the bags that Judge King described,

[00:14:12] Speaker 01:
He did so for several very legitimate reasons.

[00:14:16] Speaker 01:
And that is that what the officers knew about Mr. Kowalczyk at that point was that he was armed and dangerous.

[00:14:24] Speaker 01:
He was at escape risk.

[00:14:26] Speaker 01:
He was wanted for several unlawful use of a weapon charges.

[00:14:31] Speaker 01:
And this wasn't stale.

[00:14:33] Speaker 01:
The events may have taken place 11 months before.

[00:14:35] Speaker 01:
But remember, Kowalczyk was a fugitive.

[00:14:38] Speaker 01:
He had failed to appear in Washington County on those charges.

[00:14:43] Speaker 01:
And Mr. Kowalczyk testified that he knew he had those charges.

[00:14:48] Speaker 01:
So the officers confronted with that reasonably did a cursory search at the scene.

[00:14:54] Speaker 01:
And regardless of whether or not you apply Gantt or you don't apply Gantt, it was absolutely reasonable 16 and a half years ago when they in fact did this cursory search.

[00:15:06] Speaker 01:
Unless there are any other questions on the search of the bags, I'd like to turn to the search of the storage unit.

[00:15:13] Speaker 01:
Well, opposing counsel didn't address that.

[00:15:15] Speaker 01:
You want to address it anyway?

[00:15:17] Speaker 01:
If there are questions from the panel on the search of the storage unit, if not, I'm happy to rest on the briefs.

[00:15:23] Speaker 01:
I think the court addressed that and explained the reasons for the delay very well.

[00:15:30] Speaker 01:
Are there any questions on the search of the bags at the scene of the arrest?

[00:15:36] Speaker 01:
Here's not.

[00:15:37] Speaker 01:
I want to be respectful of the court's time then, and I'm happy to submit.

[00:15:41] Speaker 04:
Thank you, counsel.

[00:15:42] Speaker 01:
Thank you.

[00:15:54] Speaker 02:
Just a couple of points.

[00:15:57] Speaker 02:
I think the government just referred to the search at the scene as cursory.

[00:16:02] Speaker 02:
I don't know if that's exactly true.

[00:16:04] Speaker 02:
One of the officers searched a camera and found images of child pornography.

[00:16:11] Speaker 02:
I think that's beyond cursory.

[00:16:13] Speaker 04:
Did it really matter whether it was cursory or not?

[00:16:19] Speaker 02:
I suppose not in terms of what it found.

[00:16:21] Speaker 04:
It's justified or it's not justified.

[00:16:23] Speaker 02:
Right.

[00:16:24] Speaker 02:
OK.

[00:16:25] Speaker 02:
Also, but I think the armed and dangerous and the prior felony lack particularity in terms of what the officers could have reasonably been expecting to look for at that time.

[00:16:38] Speaker 02:
And that's the fundamental heart of what separates this case from the Turner-Hudson line of cases.

[00:16:44] Speaker 02:
And unless the court has any other questions, I'm prepared to submit as well.

[00:16:48] Speaker 04:
Thank you, counsel.

[00:16:49] Speaker 04:
Thank you.

[00:16:50] Speaker 04:
Thank you to both counsel for your helpful arguments.

[00:16:52] Speaker 04:
The case just argued is submitted for decision by the court.

[00:16:55] Speaker 04:
We'll be in recess until the clock AM.

[00:16:59] Speaker 04:
Rise.