[00:00:01] Speaker 04:
Good morning, and welcome to the Ninth Circuit Court of Appeals.

[00:00:04] Speaker 04:
My name is Morgan Christen.

[00:00:05] Speaker 04:
I'm one of the judges on the circuit court.

[00:00:07] Speaker 04:
My chambers are in Anchorage, Alaska.

[00:00:10] Speaker 04:
But I'm delighted to be sitting this week in Portland with my colleague from Phoenix, Judge Hurwitz.

[00:00:16] Speaker 04:
And we are both very pleased and grateful to thank Judge Wallach, who's joining us on our calendar this week.

[00:00:23] Speaker 04:
I just have a little bit of housekeeping before we go forward.

[00:00:27] Speaker 04:
We need a record of the cases for which we will not have argument.

[00:00:31] Speaker 04:
The first is Ruiz Sanchez versus Garland, which is 21-1328 and 22-1388.

[00:00:36] Speaker 04:
The second is McDonald versus O'Malley, 23-35295.

[00:00:43] Speaker 04:
And the third is Smith versus Limerick, 23-35476.

[00:00:48] Speaker 04:
The first case on which we'll hear argument is United States of America versus, is it Cameron DC?

[00:00:58] Speaker 04:
Cameron Deese.

[00:01:00] Speaker 04:
My clerk is going to tell me he told me so.

[00:01:02] Speaker 04:
Please come right on up.

[00:01:12] Speaker 04:
If you could give me one minute, counsel, I've got to get my stuff unpacked here.

[00:01:26] Speaker 04:
Okay.

[00:01:26] Speaker 04:
I'm all set when ready when you are.

[00:01:29] Speaker 04:
Thank you, Judge.

[00:01:31] Speaker 00:
Good morning.

[00:01:32] Speaker 00:
May it please the court, Kara Sagi on behalf of the appellant, Jordan Kamradice.

[00:01:37] Speaker 00:
I'd like to reserve five minutes for rebuttal if I could.

[00:01:40] Speaker 00:
Sure.

[00:01:40] Speaker 00:
Just keep your eye on the clock, please.

[00:01:41] Speaker 00:
Sure thing.

[00:01:43] Speaker 00:
This appeal presents four strong claims.

[00:01:46] Speaker 00:
I'm going to start by addressing two of those claims.

[00:01:49] Speaker 01:
Let me ask you a housekeeping question, OK?

[00:01:52] Speaker 01:
On page 23 of your brief, you say,

[00:01:57] Speaker 01:
The court did not read jurors 9th Circuit criminal model jury instruction 3-9 regarding cooperating witnesses.

[00:02:07] Speaker 01:
And I have a little marginal note.

[00:02:10] Speaker 01:
Was it requested?

[00:02:12] Speaker 01:
And when I look in the record, there's a little footnote regarding 3-9, but it's about police officers.

[00:02:18] Speaker 01:
The request wasn't about cooperating witnesses.

[00:02:22] Speaker 01:
Is there anywhere where the request was made regarding cooperating witnesses?

[00:02:27] Speaker 00:
There is not, Your Honor.

[00:02:28] Speaker 00:
Defense counsel did not request a cooperating witness instruction, and for that reason, we understand the court's reviewing for plain error.

[00:02:37] Speaker 00:
Go right ahead.

[00:02:38] Speaker 00:
Thank you, Judge.

[00:02:39] Speaker 00:
Again, I'd like to start by addressing two of the issues, first beginning with the preclusion of certain portions of the body camera footage, then move on to the warrantless tow.

[00:02:51] Speaker 00:
So starting with the body camera footage, Mr. Cameron Deese was denied his right to present a full and complete defense when the district court excluded portions of body camera footage depicting his arrest.

[00:03:04] Speaker 02:
You have those portions.

[00:03:07] Speaker 02:
What did they show?

[00:03:09] Speaker 00:
Your Honor, those portions were relevant to show motive.

[00:03:12] Speaker 02:
No, what did they show?

[00:03:13] Speaker 02:
Don't tell me what their relevance was.

[00:03:15] Speaker 02:
As I understand it, the judge looked at the body camera footage and said the only places in the body camera footage where I can see the coach bag, which was the subject of

[00:03:26] Speaker 02:
of your defense, being in a different place are these two places.

[00:03:33] Speaker 02:
So I will allow those to be introduced.

[00:03:35] Speaker 02:
And so my question is, what did the rest of the body camera footage that was excluded show?

[00:03:42] Speaker 00:
Your Honor, it showed a confrontational exchange between Mr. Cameron Deese and law enforcement.

[00:03:49] Speaker 00:
It showed things like

[00:03:51] Speaker 00:
Tazers being deployed, the dog, police dog being deployed attacking Mr. Cameron East.

[00:03:59] Speaker 00:
There's yelling, there's cussing.

[00:04:01] Speaker 02:
Did it show anything with respect to the coach bed?

[00:04:04] Speaker 00:
It did, Your Honor.

[00:04:06] Speaker 00:
The portions that defense counsel published to the jury, so the video clips and the photos, those are the only areas in the body camera footage where the purse is actually depicted.

[00:04:18] Speaker 02:
Okay.

[00:04:19] Speaker 00:
The other portions of video, however, show where Officer Adelman is at different moments in time where the purse

[00:04:25] Speaker 02:
is at those different moments in time, so although the purse... Well, but they're the two places that the portions of the video which were allowed to be admitted show that the purse was.

[00:04:37] Speaker 00:
I would say there's three, and yes, those were admitted.

[00:04:40] Speaker 02:
So there's no other location shown by the body camera footage?

[00:04:44] Speaker 04:
Not that I'm aware of.

[00:04:45] Speaker 04:
I'm envisioning freeze frames, and I think you're describing the same thing.

[00:04:48] Speaker 04:
There's freeze frames, photos of this coached purse, and we don't know who moved it

[00:04:53] Speaker 04:
around, just that it was moved.

[00:04:55] Speaker 04:
Correct.

[00:04:56] Speaker 02:
Okay.

[00:04:56] Speaker 02:
And the footage doesn't show who moved it?

[00:04:58] Speaker 00:
It does not.

[00:05:00] Speaker 00:
No, but it shows the purse located at different areas at different times.

[00:05:04] Speaker 02:
You were allowed to introduce evidence that the purse was in different areas at different times.

[00:05:10] Speaker 00:
Correct.

[00:05:10] Speaker 00:
So how were you harmed?

[00:05:12] Speaker 00:
How was your client prejudiced?

[00:05:14] Speaker 00:
He was prejudiced, Your Honor, because the portions of the video depicting his arrest were not admitted.

[00:05:20] Speaker 00:
That's one way he was... I understand that, Counsel, but how did that prejudice him?

[00:05:25] Speaker 00:
Your Honor, that was relevant to show motive and bias, and the defense... But the jury heard about that, right?

[00:05:31] Speaker 04:
I'm sorry?

[00:05:31] Speaker 04:
How did the jury not understand your defense?

[00:05:35] Speaker 04:
How were you prevented from really... It seems to me like it's a question of degree, right?

[00:05:40] Speaker 04:
Your honor and you would have liked to have more and this is a 403 balancing isn't it.

[00:05:46] Speaker 00:
It is I would say the district court did not understand the relevance of the arrest at all and in fact he the judge explained that it is wholly irrelevant.

[00:05:56] Speaker 00:
in certain portions of the record.

[00:05:59] Speaker 00:
So while he found it relevant for purposes of depicting the purse, he did not find it relevant as it relates to my client's arrest.

[00:06:07] Speaker 02:
You were not excluded, however, from questioning the officers about the circumstances of the arrest, were you?

[00:06:13] Speaker 00:
Yes.

[00:06:14] Speaker 00:
The defense counsel was.

[00:06:15] Speaker 02:
You're not arguing on appeal that you were somehow prejudiced by that.

[00:06:19] Speaker 02:
Your only argument is about the body camera footage.

[00:06:22] Speaker 00:
That's correct, Judge, but I mean, I think it's a holistic perspective that we have to take.

[00:06:26] Speaker 00:
Defense counsel was not able to publish those portions of video, and he also was not able to discuss it, nor was the government.

[00:06:32] Speaker 02:
Discuss the video.

[00:06:33] Speaker 02:
Was he able to discuss the circumstances of the arrest?

[00:06:36] Speaker 00:
He was not.

[00:06:37] Speaker 02:
He was expressly excluded from doing so?

[00:06:39] Speaker 00:
He was.

[00:06:39] Speaker 00:
Yes, Your Honor.

[00:06:40] Speaker 02:
Could you turn to the search, if you would, unless you have more you want to say about this?

[00:06:45] Speaker 00:
Well, and just to Your Honor's point,

[00:06:50] Speaker 00:
The government's closing argument, I think, highlights just how relevant it was.

[00:06:54] Speaker 00:
During the government's closing, it asked jurors over and over, but why?

[00:07:00] Speaker 00:
Why would officers plant these drugs on Mr. Cameronese?

[00:07:03] Speaker 00:
But why?

[00:07:04] Speaker 00:
Again, repeatedly, but why?

[00:07:05] Speaker 00:
The why?

[00:07:07] Speaker 00:
Well taken.

[00:07:08] Speaker 04:
I understand your argument, but I think you're going to want to, if you could turn to the next issue.

[00:07:11] Speaker 04:
Sure.

[00:07:11] Speaker 04:
Thank you so much.

[00:07:12] Speaker 02:
And let me ask you, let me start you off with a question in this case.

[00:07:17] Speaker 02:
You argue that you recognize that the officers could search the car pursuant to the automobile exception, correct?

[00:07:28] Speaker 02:
You're not challenging the search that revealed the gun.

[00:07:31] Speaker 00:
We are not challenging.

[00:07:32] Speaker 02:
And it seems to me you couldn't, because the automobile exception allowed that search.

[00:07:39] Speaker 02:
Your case seems to hinge to me.

[00:07:42] Speaker 02:
on your contention that once they found the gun, they no longer had the ability to search the car.

[00:07:51] Speaker 02:
Because if they did, they could have completed the search there or completed it at some other place later on down the road.

[00:07:58] Speaker 02:
And I'm having trouble with that premise, so I want you to be able to respond to this.

[00:08:03] Speaker 02:
Sure, they found the gun.

[00:08:06] Speaker 02:
But there may have been ammunition in the car.

[00:08:08] Speaker 02:
There may have been a second weapon in the car.

[00:08:11] Speaker 02:
I'm just not sure why the police were required, once they found the gun under the automobile exception to the warrant provision, to cease all further activity.

[00:08:22] Speaker 02:
So tell me why you think that's the case.

[00:08:25] Speaker 01:
And isn't it reasonable for a police officer in the moment to assume if there is one firearm, there might be another?

[00:08:33] Speaker 01:
Or is something else dangerous?

[00:08:36] Speaker 00:
Your Honor, there's Supreme Court case law that says that just because there's some evidence and some evidence has been found, that's not to say that there's probable cause to believe that more of the... There doesn't have to be probable cause.

[00:08:49] Speaker 02:
We're dealing with the automobile exception.

[00:08:51] Speaker 02:
There's probable cause to know that your client committed a crime.

[00:08:56] Speaker 02:
Pursuant to that, the police may search the automobile because the Supreme Court says, who knows, somebody might drive it away.

[00:09:03] Speaker 02:
They find one weapon.

[00:09:05] Speaker 02:
Your position is, once they find that weapon, the automobile exception no longer allows them to continue a search.

[00:09:12] Speaker 02:
Because if it did, the fact that they moved the car to another place to continue it is irrelevant.

[00:09:18] Speaker 02:
So I'm trying to figure out why you think, under the automobile exception, the ability to search the car disappears when they discover the weapon.

[00:09:29] Speaker 00:
Your Honor, we're of the position that probable cause ceased at the time the objects of the search were found.

[00:09:35] Speaker 00:
It wasn't just the gun.

[00:09:36] Speaker 00:
There's a number of items that were listed in the government's briefing in addition to the gun that the government claims that officers continue to have probable cause to search for.

[00:09:45] Speaker 00:
All of those items were found before the toe.

[00:09:47] Speaker 04:
Wait a minute.

[00:09:48] Speaker 04:
Wait a minute.

[00:09:48] Speaker 04:
What about your client's identification?

[00:09:52] Speaker 04:
He hadn't told them who it was, right?

[00:09:55] Speaker 04:
So they can search, I think you'll agree, for additional evidence of the crime.

[00:09:59] Speaker 04:
They found the gun.

[00:10:00] Speaker 04:
They don't know who he is.

[00:10:02] Speaker 04:
He was ultimately charged with felon in possession, I think.

[00:10:05] Speaker 04:
They didn't know who he was until they got to the police station.

[00:10:08] Speaker 04:
Why wasn't it reasonable for them to suspect, at a minimum, that his identification might be in the car?

[00:10:14] Speaker 00:
Your Honor, your point is well taken.

[00:10:15] Speaker 00:
In my reply brief, however, I cite to the CAD reports, his identity was known before the tow.

[00:10:21] Speaker 00:
Like, a good five, 10 minutes before the tow, they had figured out who he was.

[00:10:25] Speaker 00:
You're correct in that he was

[00:10:27] Speaker 00:
His identity was discovered at the station.

[00:10:29] Speaker 00:
But at that time, the car was still at the scene.

[00:10:32] Speaker 04:
Well, wait a minute.

[00:10:32] Speaker 04:
You just said that they knew who he was before they towed.

[00:10:35] Speaker 04:
And then you said, I'm correct, that the record shows, as I indicated, that they discovered his identification at the station.

[00:10:45] Speaker 00:
That's right.

[00:10:45] Speaker 00:
They had arrested him and taken him to the station before towing the vehicle.

[00:10:49] Speaker 00:
So the vehicle stayed on scene as he was transported to the station.

[00:10:53] Speaker 00:
While at the station, the vehicle's still at the scene, they were able to identify him.

[00:10:58] Speaker 00:
How did they do that?

[00:11:00] Speaker 00:
Your Honor, I'm speculating, but I've watched the body cam.

[00:11:03] Speaker 00:
This isn't necessarily part of the record.

[00:11:06] Speaker 00:
Detective Hubel knew who Mr. Cameron is.

[00:11:10] Speaker 00:
I think he recognized him.

[00:11:11] Speaker 00:
That is correct.

[00:11:11] Speaker 00:
I think he recognized him.

[00:11:12] Speaker 00:
He recognized him.

[00:11:13] Speaker 04:
OK, but he could have been wrong.

[00:11:15] Speaker 04:
They could have had... And your client hadn't told them who he was.

[00:11:18] Speaker 04:
So why wasn't it reasonable for them to search the car, at least for his identification?

[00:11:23] Speaker 00:
I respectfully, Judge, I would disagree.

[00:11:25] Speaker 00:
The CAD report says that he was definitively identified as Jordan Cameron East, whether that meant... Definitively was an officer thinking he recognized him, right?

[00:11:36] Speaker 00:
Again, the record isn't clear.

[00:11:39] Speaker 00:
The CAD report says that he was identified as Jordan Cameron Deese, and that happened a good 10 minutes before the tone.

[00:11:48] Speaker 04:
I think you and I are looking at the same parts of the record, and so I don't want to belabor the point, because I think you've answered my question.

[00:11:54] Speaker 04:
Go back to just the vehicle exception before you get to any kind of community caretaking issue, because that's really where Judge Hurwitz had asked you to focus.

[00:12:02] Speaker 02:
And let me rephrase my inquiry a little bit to focus you on it.

[00:12:07] Speaker 02:
Let's assume the car was never moved to a second place, because I think that's irrelevant for purposes of the automobile exception.

[00:12:15] Speaker 02:
I'm having difficulty, even if you think that all the stuff that they discovered on the scene was relevant, why can't they keep looking in the car to see if there's something else that's relevant?

[00:12:27] Speaker 02:
It's the automobile exception.

[00:12:31] Speaker 02:
The probable cause is established by the probable cause for the arrest, which you don't challenge.

[00:12:36] Speaker 02:
And so it seems to me they are entitled to search the whole car at the scene to look for evidence of the crime.

[00:12:46] Speaker 02:
And they didn't search the bag at the scene, but I think they were entitled to search the bag at the scene.

[00:12:51] Speaker 02:
to look for evidence of the crime.

[00:12:53] Speaker 02:
So I'm having difficulty figuring out why moving it to another place makes a difference.

[00:12:57] Speaker 04:
And I understand, Your Honor, I would... But just to be clear, are we talking about the crime that they know of at the time of arrest?

[00:13:02] Speaker 04:
Which is menacing.

[00:13:03] Speaker 02:
Which is menacing.

[00:13:04] Speaker 02:
The crime for which he was arrested.

[00:13:04] Speaker 04:
Which is menacing, not drugs, right?

[00:13:07] Speaker 04:
So make the object that they're looking for, anything else that could be relevant to that crime, make it ammunition, make it another gun, as Judge Wallach suggested.

[00:13:15] Speaker 04:
Why wouldn't that have been proper?

[00:13:17] Speaker 00:
Well, I'd like to quote Judge Hurwitz, who had said, there may have been other evidence, more evidence.

[00:13:25] Speaker 00:
May have been is not the standard.

[00:13:27] Speaker 02:
Yes, it is.

[00:13:28] Speaker 02:
Under the automobile exception, they are entitled to search the automobile to see if there is evidence of the crime in the automobile.

[00:13:38] Speaker 02:
The probable cause to search the automobile is established by the probable cause for the arrest.

[00:13:46] Speaker 02:
They're entitled to rummage through the whole automobile in any place where there may be evidence of the crime.

[00:13:52] Speaker 02:
Now, whether that would cover the trunk or something is sort of a separate issue.

[00:13:56] Speaker 02:
But that's the way I understand the automobile exception.

[00:14:01] Speaker 02:
They don't have to say, oh, we found the best stuff now.

[00:14:03] Speaker 02:
Let's stop.

[00:14:04] Speaker 02:
They did eventually get a warrant, by the way, but let's put that aside.

[00:14:09] Speaker 02:
So you and I seem to be missing each other on the scope of the automobile exception, which says you may search the automobile for evidence of the crime.

[00:14:19] Speaker 00:
And I understand your Honor's point.

[00:14:21] Speaker 00:
If I could.

[00:14:25] Speaker 00:
If we believe that the automobile exception justified the seizure, then the next argument we make is that it was unlawful because the amount of time between when the vehicle was seized and when the warrant was actually obtained was unreasonable.

[00:14:38] Speaker 00:
That delay was unreasonable.

[00:14:39] Speaker 02:
And that's why I was going to ask you, the case law seems to say that if the exception would have allowed you to search the automobile at the scene at the time, there's no violation if you move it to another place to complete the search.

[00:14:52] Speaker 04:
Or just wait, even if it just takes a while.

[00:14:55] Speaker 04:
Why is that a problem?

[00:14:56] Speaker 04:
It seems to me they have what they needed at step one here, pursuant to the automobile exception, setting aside the community caretaking exception or any other exception.

[00:15:06] Speaker 04:
What are we missing on that point?

[00:15:08] Speaker 00:
Well, respectfully, Judge, I would disagree that it means that they can search it at any point in time after it's seized.

[00:15:15] Speaker 00:
It was four days after it was seized that it was searched, and case law is clear that it still has to be reasonable under the Fourth Amendment.

[00:15:21] Speaker 04:
How does that dissipate the probable cause that existed to arrest him and the scope of the vehicle search?

[00:15:28] Speaker 04:
So assuming there was probable cause, I'm not conceding that point, but assuming... Well, you don't contest there was probable cause to arrest him.

[00:15:34] Speaker 04:
Well, for purposes of this hypothetical, go ahead.

[00:15:36] Speaker 04:
Knock yourself out.

[00:15:37] Speaker 04:
Assume it.

[00:15:37] Speaker 04:
I don't want to try to.

[00:15:38] Speaker 04:
You don't have a lot of time, and I'm not trying to wrap you up on that.

[00:15:40] Speaker 04:
OK.

[00:15:41] Speaker 04:
So he was arrested, and I'm just trying to have clear communication about the scope of that search.

[00:15:46] Speaker 00:
Sure, Judge.

[00:15:47] Speaker 00:
Again, the case law still requires that any delay be reasonable.

[00:15:51] Speaker 00:
Every search and seizure under the Fourth Amendment has to be reasonable.

[00:15:55] Speaker 00:
And the government does not give us any reason why there was that delay in order for us to weigh whether or not it was reasonable or whether or not officers acted prudently.

[00:16:04] Speaker 00:
We have no explanation from the government as to why that four-day delay occurred.

[00:16:08] Speaker 00:
And my client's possessory rights were interfered with.

[00:16:11] Speaker 02:
We know why it occurred.

[00:16:12] Speaker 02:
They conducted a dog sniff one day later, and then they said, gee, before we do anything further, let's...

[00:16:19] Speaker 02:
dot all the i's and cross all the t's, let's go see a judge and get a warrant.

[00:16:24] Speaker 02:
And they didn't search it until they got the warrant.

[00:16:26] Speaker 00:
And you think that took too long?

[00:16:28] Speaker 00:
What Your Honor just expressed is not anything that's in the record.

[00:16:32] Speaker 00:
The government has not asserted that what caused it.

[00:16:34] Speaker 02:
No, no.

[00:16:34] Speaker 02:
But we know from the record what the sequence of events was.

[00:16:38] Speaker 02:
And they didn't search the car until they got the warrant.

[00:16:40] Speaker 02:
So I think it's a quite reasonable reading of this record to say they waited until they got the warrant to search the car.

[00:16:48] Speaker 02:
I mean, they searched it right after they got the warrant, right?

[00:16:53] Speaker 00:
The record is unclear.

[00:16:55] Speaker 00:
The record doesn't even establish when the dog sniff happened.

[00:16:57] Speaker 00:
All we know is that the warrant and the search was executed four days later.

[00:17:00] Speaker 00:
So when the dog sniff happened in relation to... You know when the warrant was executed, don't you?

[00:17:04] Speaker 00:
I'm sorry?

[00:17:05] Speaker 02:
You know when the warrant... You know when it was executed, which is four days later.

[00:17:07] Speaker 02:
Four days after the... You know when the warrant was issued, do you not?

[00:17:10] Speaker 00:
Four days later.

[00:17:11] Speaker 02:
So it was the same day they got the warrant.

[00:17:13] Speaker 00:
that the search was executed.

[00:17:15] Speaker 00:
Yes.

[00:17:15] Speaker 00:
Correct.

[00:17:15] Speaker 02:
OK, that's all.

[00:17:16] Speaker 02:
I'm sorry.

[00:17:17] Speaker 04:
I apologize.

[00:17:18] Speaker 04:
We're over time.

[00:17:18] Speaker 04:
I see that.

[00:17:19] Speaker 04:
And we've taken you over time.

[00:17:20] Speaker 04:
So this was actually very helpful for me.

[00:17:22] Speaker 04:
And I appreciate your responses and your patience with our questions.

[00:17:25] Speaker 04:
I'm going to stop you there.

[00:17:26] Speaker 04:
But when you come back, we'll put two minutes on the clock.

[00:17:29] Speaker 04:
Sure thing.

[00:17:29] Speaker 04:
Thank you.

[00:17:30] Speaker 04:
You bet.

[00:17:30] Speaker 04:
We'll hear from the government, please.

[00:17:46] Speaker 03:
Good morning, Your Honors.

[00:17:47] Speaker 03:
May it please the court.

[00:17:48] Speaker 03:
Sarah Barr appearing on behalf of the United States, and we are asking this court to affirm the district court's rulings.

[00:17:55] Speaker 03:
I'll start with the Fourth Amendment claim, because that appears to be of most interest to the panel.

[00:18:01] Speaker 03:
And I think the panel has an appropriate and correct understanding of the record.

[00:18:05] Speaker 03:
I will clarify briefly the timeline of events, because Your Honor was correct.

[00:18:13] Speaker 03:
At the scene, the arresting officers did not know the defendant's identity.

[00:18:18] Speaker 03:
That identity was not known until about 40 minutes later at the booking.

[00:18:24] Speaker 04:
OK.

[00:18:25] Speaker 04:
So opposing counsel's point is that, or what I suggested in a hypothetical, I think, is that they had what they needed, pursuant to the automobile exception, to search then.

[00:18:34] Speaker 04:
But they didn't.

[00:18:35] Speaker 04:
Her point is they didn't.

[00:18:36] Speaker 04:
And there was a delay that she thinks is unreasonable.

[00:18:40] Speaker 04:
What's your response to that?

[00:18:41] Speaker 03:
Right.

[00:18:42] Speaker 03:
My response to that is that the four-day delay falls well within the heartland of reasonable delay that this court and other circuits have found.

[00:18:50] Speaker 03:
21 days in the Sullivan case, nine days in the Ngonko case, eight days, five days, three days in Noster and Johns and other cases.

[00:19:01] Speaker 03:
The four-day delay is well within what this court has deemed to be reasonable.

[00:19:06] Speaker 03:
And the objective facts in this case

[00:19:11] Speaker 03:
Show the reasonableness of it.

[00:19:13] Speaker 03:
For example, a portion of the delay was over the course of the weekend.

[00:19:17] Speaker 03:
The arrest happened on a Thursday afternoon.

[00:19:20] Speaker 03:
The local officers didn't complete their reports until the next day.

[00:19:23] Speaker 03:
You can see their dates on the reports.

[00:19:26] Speaker 03:
The case transitioned from a local investigation to a task force investigation once he was identified.

[00:19:33] Speaker 03:
So it transitioned to a new group of people.

[00:19:35] Speaker 03:
A new lead agent came on board.

[00:19:37] Speaker 04:
Does that mean from state to federal?

[00:19:39] Speaker 04:
Is that what that means?

[00:19:40] Speaker 04:
I'm sorry?

[00:19:41] Speaker 04:
Does that mean from state to federal?

[00:19:42] Speaker 03:
Correct.

[00:19:43] Speaker 03:
It was a regional, federal, and state task force.

[00:19:46] Speaker 03:
And the lead agent of that task force assigned to this case was from a different police department than the Pendleton Police Department who conducted the arrest.

[00:19:55] Speaker 03:
So those are all circumstances that this court and other courts have looked to to determine the reasonableness of the delay.

[00:20:04] Speaker 02:
And where would I find that in the record?

[00:20:05] Speaker 03:
How many of them are in the record?

[00:20:07] Speaker 03:
Well, they're all in the record because we know that the arrest happened on the 29th.

[00:20:14] Speaker 03:
No, I'm sorry.

[00:20:15] Speaker 03:
You're filling in a lot of blanks, it seems to me, that we don't have.

[00:20:18] Speaker 02:
This information about switching from one department to another.

[00:20:22] Speaker 02:
We can figure out when the weekend is by looking at a calendar.

[00:20:24] Speaker 02:
Sure.

[00:20:25] Speaker 02:
Is the information about switching from one department to the task force in the record?

[00:20:29] Speaker 03:
Absolutely.

[00:20:30] Speaker 03:
Detective Williamson, who was the lead agent who was the affiant on the warrant and who conducted the search, he testified in the case.

[00:20:38] Speaker 03:
So his testimony is in there.

[00:20:39] Speaker 03:
He testified that he took over the case.

[00:20:42] Speaker 03:
He got a warrant.

[00:20:43] Speaker 03:
He executed the search.

[00:20:44] Speaker 03:
He was from the Umatilla Tribes Police Department.

[00:20:47] Speaker 03:
So it's all in the record.

[00:20:51] Speaker 02:
Your argument, I think, is entirely premised.

[00:20:56] Speaker 02:
On the notion that the police officers lawfully remove the car from the scene to someplace else.

[00:21:03] Speaker 04:
Correct.

[00:21:03] Speaker 04:
It is?

[00:21:04] Speaker 04:
You're relying on the community caretaking?

[00:21:06] Speaker 04:
Oh, no.

[00:21:07] Speaker 02:
Lawfully means I meant to include community caretaking.

[00:21:10] Speaker 04:
Would you answer to that question, yes?

[00:21:13] Speaker 04:
I'm sorry.

[00:21:13] Speaker 04:
Let me wait until your honor finishes.

[00:21:15] Speaker 02:
Let me ask the question differently so it's not confusing.

[00:21:17] Speaker 02:
You got my attention.

[00:21:18] Speaker 02:
Let's assume that the seizure of the car, which is to say the officer's taking control of it and moving it to the impound lot, was illegal.

[00:21:30] Speaker 02:
I know you don't assume that.

[00:21:31] Speaker ?:
OK.

[00:21:31] Speaker 02:
Under those circumstances, anything that follows is irrelevant, isn't it?

[00:21:38] Speaker 03:
Correct.

[00:21:39] Speaker 02:
OK.

[00:21:39] Speaker 02:
Sure.

[00:21:39] Speaker 02:
So focus on that for me and tell me why the seizure of the car and its movement to the impound lot was legal.

[00:21:48] Speaker 03:
Right.

[00:21:49] Speaker 03:
I think your honor's hit upon it in the earlier questioning.

[00:21:52] Speaker 03:
At the moment they found that Honda, they had probable cause to search that Honda, including that bag, for evidence of the gun brandishing menacing crime.

[00:22:04] Speaker 03:
And that evidence would include things like ammunition, an ammunition box.

[00:22:09] Speaker 03:
the gun, another gun, a magazine, identity documents, and they didn't know who owned the car.

[00:22:17] Speaker 03:
There was no license plate on the car.

[00:22:19] Speaker 01:
As I recall, the witnesses at the scene said that there were gang markings

[00:22:28] Speaker 01:
I'm sorry, I said that there were?

[00:22:29] Speaker 01:
They saw gang markings when they reported it to the police.

[00:22:33] Speaker 03:
OK.

[00:22:34] Speaker 03:
So that was the reported basis of this confrontation, which the police were trying to figure out.

[00:22:42] Speaker 03:
The reporting was that we don't know this guy.

[00:22:44] Speaker 03:
He accosted us and accused us of gang ties.

[00:22:47] Speaker 03:
And so certainly the officers had a basis to look for some sort of evidence of gang ties or a gang relationship.

[00:22:56] Speaker 03:
So these are all the types of things that would be found in the car and in that purse that authorized them at the moment they found that car to search it.

[00:23:06] Speaker 02:
So to get back to an argument that your friend makes, she says, look, when they seized the car, they really didn't have any intention of community caretaking.

[00:23:17] Speaker 02:
They seized the car in order to search it.

[00:23:20] Speaker 02:
Let's assume that's true for a moment.

[00:23:23] Speaker 02:
Does that make a difference in this case?

[00:23:24] Speaker 03:
It does that.

[00:23:25] Speaker 03:
You can resolve this case on the automobile exception.

[00:23:28] Speaker 03:
The community caretaking is a separate justification.

[00:23:33] Speaker 03:
And I think it's a correct finding by the district court that that also applied.

[00:23:39] Speaker 04:
Why?

[00:23:39] Speaker 03:
Because the policy here

[00:23:43] Speaker 03:
required the officers to tow the vehicle if a vehicle is in jeopardy of theft or vandalism.

[00:23:51] Speaker 04:
They could have.

[00:23:52] Speaker 04:
They could have.

[00:23:53] Speaker 04:
But you've read our opinion, the recent en banc opinion in Anderson.

[00:23:57] Speaker 04:
Yes.

[00:23:59] Speaker 04:
Anderson- What indication is there in this record contemporaneously that they had in mind a community caretaking motive as opposed to

[00:24:07] Speaker 04:
a continuation of their investigation.

[00:24:09] Speaker 03:
So there is no evidence in the record that they subjectively had an interest in community caretaking.

[00:24:15] Speaker 03:
But what this court found in Johnson, where it held that the tow was appropriate under the community caretaking provision, but that the subsequent inventory search was an unlawful pretext.

[00:24:26] Speaker 02:
One of my difficulties with going down this road

[00:24:30] Speaker 02:
is that there wasn't an inventory search in this case.

[00:24:33] Speaker 02:
Correct.

[00:24:33] Speaker 02:
And so normally we use the community caretaking exception to justify an inventory search.

[00:24:39] Speaker 02:
Correct.

[00:24:39] Speaker 02:
There was a warranted search.

[00:24:41] Speaker 02:
Correct.

[00:24:43] Speaker 02:
And so if the car was not, let's assume you didn't have the auto bail exception and the car wasn't properly moved under the community caretaking exception,

[00:24:53] Speaker 02:
Then it seems to me all the stuff that follows after that might well be subject to question.

[00:24:59] Speaker 02:
We illegally moved the car.

[00:25:00] Speaker 02:
Then we did a dog sniff.

[00:25:02] Speaker 02:
Then we got a warrant.

[00:25:03] Speaker 02:
And the answer is, well, maybe all that's tainted by your illegal movement of the car.

[00:25:08] Speaker 02:
So I'm having trouble finding the community caretaking exception as a separate justification for this.

[00:25:13] Speaker 03:
Sure.

[00:25:14] Speaker 03:
And that's fine, because it's not required to resolve this case.

[00:25:16] Speaker 04:
Well, when you say that's fine, counsel, we take it very seriously.

[00:25:19] Speaker 04:
Of course.

[00:25:20] Speaker 04:
So can you back up and tell me why we shouldn't be

[00:25:23] Speaker 04:
drafting an opinion to remind the government about the

[00:25:26] Speaker 04:
appropriate boundaries of the community care taking exception?

[00:25:29] Speaker 03:
Sure.

[00:25:29] Speaker 03:
Well, I think Garay is an apt case to look at here.

[00:25:34] Speaker 03:
That was a case, as the court is, I'm certain, aware.

[00:25:38] Speaker 03:
The defendant had a high-speed car chase, crashed it into a ditch, ran off, was captured with money and four types of drugs.

[00:25:48] Speaker 03:
And this court said, of course the police believed that there was going to be evidence of a crime in that car.

[00:25:56] Speaker 03:
But their belief that there was going to be evidence of crime in that car, the car being a crime scene, as it was here,

[00:26:05] Speaker 03:
doesn't negate their authority to remove that car under a caretaking purpose.

[00:26:11] Speaker 03:
It was in a ditch.

[00:26:12] Speaker 03:
It had to be towed.

[00:26:13] Speaker 04:
Well, at the time the district court ruled here, had we issued Anderson?

[00:26:18] Speaker 04:
Did he have the benefit of the Anderson opinion?

[00:26:20] Speaker 04:
He did not, no.

[00:26:21] Speaker 04:
I think not.

[00:26:21] Speaker 04:
So the answer to your question might be that we've already reminded the government of the appropriate boundaries of the community caretaking exception, so we don't need to reiterate it again.

[00:26:29] Speaker 04:
Thank you, Your Honor.

[00:26:32] Speaker 04:
No, that was really a question.

[00:26:34] Speaker 04:
I hadn't gone back to look at the dates.

[00:26:35] Speaker 04:
But it dawns on me that might be the disconnect here.

[00:26:38] Speaker 03:
I think that's right.

[00:26:39] Speaker 03:
And I think, ultimately, just the last two points I'd like to briefly make on this issue, as the court pointed out, as Your Honors pointed out,

[00:26:49] Speaker 03:
The officers here did wait to get a warrant before they searched the car.

[00:26:53] Speaker 03:
And that's ultimately what we want officers to do here.

[00:26:56] Speaker 03:
So the exclusionary rule just doesn't really serve the deterrent purpose that it's meant to serve in this case.

[00:27:04] Speaker 03:
They would have inevitably found the drugs had they found them on site, having searched it on the same PC basis that supported the tow.

[00:27:17] Speaker 03:
The application of the exclusionary rule in this case is just not appropriate.

[00:27:21] Speaker 04:
We have to go beyond the vehicle exception in this case to affirm?

[00:27:26] Speaker 03:
No.

[00:27:26] Speaker 03:
Okay.

[00:27:27] Speaker 04:
Is there anything further?

[00:27:28] Speaker 04:
Judge Wallach?

[00:27:28] Speaker 03:
Judge Hurwitz?

[00:27:29] Speaker 02:
No, unless you want to address the evidentiary issue.

[00:27:33] Speaker 03:
Unless the court has any specific questions regarding the evidentiary?

[00:27:37] Speaker 03:
It doesn't look like we do.

[00:27:38] Speaker 03:
Okay.

[00:27:39] Speaker 03:
Thank you, Your Honor.

[00:27:39] Speaker 03:
Thank you for your patience with our questions.

[00:27:42] Speaker 04:
Thank you.

[00:27:42] Speaker 04:
We'll hear from opposing counsel.

[00:27:50] Speaker 00:
Thank you for the extra time.

[00:27:52] Speaker 00:
Sure.

[00:27:55] Speaker 00:
I would like to address a couple points on rebuttal.

[00:27:59] Speaker 00:
Your Honor had indicated that the government was filling in a lot of gaps, and I would agree, Judge, those reasons for the delay that the government just provided, that is not in any briefing that was not argued below.

[00:28:11] Speaker 00:
As far as I can tell, the argument has always been a conclusory argument that that four-day delay is reasonable just because, because this district, other courts have ruled that longer delays have been reasonable.

[00:28:24] Speaker 00:
The difference between this case and those other cases is that those other cases, the government provided a reason.

[00:28:30] Speaker 00:
The court was able to weigh the government's interest in keeping the property with the individual's possessory interest.

[00:28:38] Speaker 01:
The other distinction... Aren't the facts a reason?

[00:28:42] Speaker 01:
The facts are in the record.

[00:28:49] Speaker 00:
I would dispute that as well.

[00:28:52] Speaker 02:
The chronology is certainly in the record.

[00:28:57] Speaker 00:
The chronology is in the record.

[00:28:58] Speaker 02:
You yourself told us that they got a warrant on the fourth day and immediately searched it.

[00:29:05] Speaker ?:
Absolutely.

[00:29:05] Speaker 01:
You had the detective's testimony in the record and so on.

[00:29:08] Speaker 00:
The detective's testimony from trial, but there's been no testimony at the suppression hearing.

[00:29:13] Speaker 00:
They were proffering arguments at the suppression hearing.

[00:29:16] Speaker 01:
He says he took over the case and so on.

[00:29:19] Speaker 00:
I would agree.

[00:29:20] Speaker 00:
I would agree.

[00:29:20] Speaker 00:
And then the other distinction is those other cases often, more often than not, no possessory interest is interfered with.

[00:29:28] Speaker 00:
In this case, Mr. Cameron Deese's possessory interest in that vehicle was interfered with.

[00:29:32] Speaker 00:
His wife attempted to retrieve that vehicle two days before the warrant was executed.

[00:29:37] Speaker 00:
So we have a possessory interest that's affected.

[00:29:39] Speaker 00:
We don't have any reason until today for the delay.

[00:29:43] Speaker 00:
And that goes both to community caretaking and the automobile exception.

[00:29:47] Speaker 00:
And I see that I'm running out of time if your honors have any other questions.

[00:29:51] Speaker 04:
Any more questions?

[00:29:52] Speaker 04:
Council, I want to thank you for your excellent briefing and advocacy, both of you.

[00:29:56] Speaker 04:
It's been very helpful.

[00:29:57] Speaker 00:
Thank you so much.

[00:29:58] Speaker 04:
Thank you.

[00:29:58] Speaker 04:
We'll take this case under advisement and go on to the next case.