[00:00:20] Speaker 03:
Good morning, Your Honors.

[00:00:21] Speaker 03:
Amanda Mundell on behalf of the United States.

[00:00:23] Speaker 03:
Just before I begin, I'd like to reserve three minutes for a bottle.

[00:00:26] Speaker 03:
I'll try to keep an eye on my time.

[00:00:29] Speaker 03:
Your Honors, Defendant Melina Green tried to board a flight with a kilogram of fentanyl and two kilograms of heroin that had been wrapped in layers of dryer sheets and plastic.

[00:00:39] Speaker 03:
The district court's order suppressing these drugs should be reversed for either of two reasons.

[00:00:44] Speaker 03:
First, because the administrative search doctrine permitted a warrantless search

[00:00:52] Speaker 03:
personnel and travelers.

[00:00:54] Speaker 03:
And second, because the single-purpose container exception to the warrant requirement applies.

[00:00:58] Speaker 03:
Can I stop you there?

[00:00:59] Speaker 04:
Just because you're hitting right on my first question.

[00:01:01] Speaker 04:
In the district court, you had five arguments, so the district court received you to have five.

[00:01:05] Speaker 04:
That's right.

[00:01:05] Speaker 04:
So you've expressly waived in a footnote that the true NARC was not a search, right?

[00:01:10] Speaker 04:
And you've expressly waived that exigent circumstances exception.

[00:01:13] Speaker 04:
That's right.

[00:01:14] Speaker 03:
We're not pursuing either of those on appeal, Your Honor.

[00:01:16] Speaker 04:
My question is, you just identified two.

[00:01:18] Speaker 04:
OK.

[00:01:33] Speaker 03:
Exactly right.

[00:01:34] Speaker 03:
So turning to that issue, I want to be clear because there's maybe been some confusion in the briefing, so I want to make sure we're clear on what the government's position is and is not.

[00:01:41] Speaker 03:
It is not the government's position that any time there's any suspicion of any kind of narcotic, the government can go ahead and do.

[00:01:51] Speaker 03:
Given what we know about LAX and the rise in fentanyl trafficking, government's position here is where there's a reason to suspect that these packages pose a safety threat, because there's a reason to believe they might contain fentanyl.

[00:02:02] Speaker 03:
Officers can search those packages until that threat abates.

[00:02:06] Speaker 04:
I don't mean to interrupt you, but I get it.

[00:02:08] Speaker 04:
Right, so here's the question.

[00:02:10] Speaker 04:
That's what your briefing says.

[00:02:11] Speaker 04:
Your briefing says the safety – first of all, you're assuming that we've gone that far, that a safety threat for the airport administrative search may include

[00:02:29] Speaker 04:
So that's the first problem I've got with your argument.

[00:02:31] Speaker 04:
I'm not sure it's a problem.

[00:02:32] Speaker 04:
We do have language in our McCarty case that talks about there's sort of that clause at the end, right, and other dangers, other safety hazards.

[00:02:43] Speaker 04:
So let's, for a minute, let's say we extend that today to fentanyl.

[00:02:47] Speaker 04:
We haven't done that.

[00:02:48] Speaker 04:
I'll just tell you, in my view, is we haven't.

[00:02:50] Speaker 04:
But what we could, and fentanyl certainly, we take it very seriously.

[00:02:59] Speaker 04:
But then it seems like you run right in to the findings of fact that the district court made, which is that, first of all, he thought that this argument that a tiny bit of incidental exposure has been very thoroughly discredited.

[00:03:12] Speaker 04:
And he said that in his order.

[00:03:15] Speaker 04:
But he also, I'm more concerned about his finding a fact that this fentanyl, which is very

[00:03:30] Speaker 04:
as he can.

[00:03:31] Speaker 03:
That's right your honor and I guess I would point this court to this court's decision in Miller which is a perfect example of a circumstance where a suitcase is on a conveyor belt going through security gets caught or in the attempt to dislodge it spontaneously bursts open and out pops a bag of white powder.

[00:03:47] Speaker 03:
It's not what happened here your honor because TSA agents were able to secure that suitcase in a secure location.

[00:04:11] Speaker 04:
want it to go and even if we accept it, the first I think is three even ifs.

[00:04:19] Speaker 03:
Well, so let me take this, right Your Honor, so if I could take those even ifs maybe one at a time, let's start with the suitcase sitting inert in TSA custody.

[00:04:27] Speaker 03:
We agree, you know, at that point, the powder is in a safe place.

[00:04:31] Speaker 03:
It's not just going to spontaneously combust, but that's not really the question under the administrative search doctrine because at this point, agents have to decide whether to put that suitcase on a plane.

[00:04:40] Speaker 03:
make that determination they have to decide they certainly could decide that your honor but the administrative search doctrine doesn't require that the whole point is that agents are making requires at least a safety hazard that's right your honor and I think the officers on the ground here had a reasonable basis for making that determination and with respect to the district court I think the district court gets the question wrong it's not a question about whether fentanyl objectively poses the sort of safety hazard

[00:05:13] Speaker 04:
That's why I expected what you were going to – I agree, and that's why I expected you were going to argue the good faith exception, that they were complying with this manual, the DEA directive, which I think has been pretty thoroughly discredited.

[00:05:24] Speaker 04:
But the guys on this ground level don't necessarily know that, and I have no reason to suspect any bad faith here.

[00:05:30] Speaker 04:
So it seemed to me when I was reading the briefs and understanding the way this played out, they were following direction.

[00:05:36] Speaker 04:
But that's not the argument the government is making.

[00:05:39] Speaker 03:
And we're not pursuing a sort of Leon Good Faith exception here, although, of course, there is that language in Okai that talks about good faith when it comes time to apply to administrative search.

[00:05:49] Speaker 03:
And that's the kind of good faith that we're really talking about here.

[00:05:51] Speaker 03:
And if I could just take...

[00:06:20] Speaker 00:
consistent with the regular protocols?

[00:06:26] Speaker 00:
That's effectively what you're saying.

[00:06:28] Speaker 03:
Well that's true, and actually no one contested that below.

[00:06:30] Speaker 03:
Ms.

[00:06:31] Speaker 03:
Green, for example, did not suggest that the officers were off hunting for narcotics in bad faith.

[00:06:36] Speaker 03:
And so the parties agreed that an evidentiary hearing just wasn't necessary on this record.

[00:06:40] Speaker 03:
And if I could direct the court's attention to the Hyen case by the Supreme Court, I think that helps answer some of these questions about whether the officers were really making a reasonable or an unreasonable mistake when it

[00:06:54] Speaker 03:
the question that we have to grapple with for this part of the Administrative Session.

[00:06:57] Speaker 04:
It's a conscious argument that they reasonably thought these packages posed a risk.

[00:07:02] Speaker 03:
Well, Your Honor, that reasonable belief was informed by a number of things, DEA policy at the time in 2020.

[00:07:07] Speaker 03:
It's really been discredited.

[00:07:09] Speaker 03:
Respectfully, Your Honor, I don't know that that's true.

[00:07:11] Speaker 04:
I'm surprised to see you citing the 2016 press release has been taken down from the website.

[00:07:18] Speaker 04:
It's been – these aren't – this is – these are the District Court's observations.

[00:07:23] Speaker 03:
So Your Honor, we cite that, of course, because that's in the record, and so that's what the district court had in front of it.

[00:07:29] Speaker 03:
But there are other things in the record that post-date that, that also talk about.

[00:08:06] Speaker 01:
at all the knowledge and the experience of law enforcement.

[00:08:11] Speaker 03:
You know, Your Honor, I read this court's case law as not using that as a factor.

[00:08:16] Speaker 03:
So the approach to the single-purpose container exception focuses on what a layperson would think applying societal norms.

[00:08:32] Speaker 03:
something contains contraband or not.

[00:08:34] Speaker 03:
But if I don't read this court's cases to really

[00:09:25] Speaker 01:
the middle.

[00:09:26] Speaker 01:
What's the government's view of that?

[00:09:27] Speaker 03:
Not clear error, Your Honor, because we're in the same position essentially as the district court.

[00:09:31] Speaker 03:
So we would say they know our review.

[00:09:33] Speaker 03:
You can look at the photos and make a determination there.

[00:09:36] Speaker 03:
And I think there's something very significant about what those photos show.

[00:09:39] Speaker 03:
That's the use of the dryer sheets to encase these substances within these packages.

[00:10:23] Speaker 01:
I believe so, Your Honor.

[00:10:24] Speaker 04:
Well, that's a compound question.

[00:10:25] Speaker 04:
Well, they can seize it.

[00:10:27] Speaker 01:
Yes.

[00:10:28] Speaker 01:
Right.

[00:10:28] Speaker 01:
Right.

[00:10:29] Speaker 04:
Are you answering that they could also test it, search it?

[00:10:33] Speaker 04:
Well, it's in plain view at that point.

[00:10:35] Speaker 04:
So the district court thought otherwise.

[00:10:37] Speaker 04:
I think this may be a, this is an important thing to hone in on.

[00:10:41] Speaker 04:
The district court cited in his footnote 11.

[00:10:45] Speaker 04:
So what I'm going to do is, here, let's do this hypothetical.

[00:10:48] Speaker 04:
I think this is an airport.

[00:11:00] Speaker 04:
and take out the clothing and take out the blunts, right?

[00:11:03] Speaker 04:
And then at 5.15 in the morning, we decided it's not explosive.

[00:11:31] Speaker 04:
slicing them up.

[00:11:33] Speaker 04:
So we look at, as Judge Bennett asked you to do, we look at these photos and we're in just as good a position as the trial court because there's no evidentiary hearing.

[00:11:40] Speaker 04:
And you ask us to use de novo review, and let's say we look at these and we say, what do you want us to say?

[00:11:47] Speaker 04:
That they recognize that it's single purpose and they have to announce their content.

[00:11:50] Speaker 04:
Exactly.

[00:12:05] Speaker 04:
Right.

[00:12:06] Speaker 03:
I mean, the drugs are there.

[00:12:08] Speaker 04:
Well, they didn't.

[00:12:11] Speaker 04:
They actually, when you say the drugs are there, if they'd truly been implained

[00:12:58] Speaker 04:
was a search.

[00:12:59] Speaker 04:
So that's my first problem.

[00:13:00] Speaker 03:
Well, so your honor, again, under the single container, single purpose container exception, if we accept that those packages proclaim their contents, we're already accepting that those packages convey to anyone looking at it that they contain drugs.

[00:13:13] Speaker 04:
I'm going to give you that, right?

[00:13:15] Speaker 04:
And then then the true neck just becomes irrelevant.

[00:13:18] Speaker 04:
You're right.

[00:13:18] Speaker 04:
Exactly.

[00:13:19] Speaker 04:
So let's think now

[00:13:31] Speaker 04:
and seize and search but the district court at footnote 11 cites authorities for why he thought those are two different things seizing and searching what about those authorities

[00:13:56] Speaker 03:
you know, needed to wait into any of that because if we accept that the officers can keep that package, you know, they know it's drugs, just looking at it and retain it.

[00:14:06] Speaker 03:
That was enough to get the arrest warrant here.

[00:14:08] Speaker 01:
And they, you know, went ahead and just scanned it to confirm.

[00:14:31] Speaker 01:
sent it to the DEA lab because obviously when you go to trial you need a lab examination or you're in somebody's house where you have the right to be and you see a package that's labeled cocaine on the table you get to take it and then take it and then do whatever you want with it and the government's position is it's exactly the same as any other variant of plain view.

[00:14:53] Speaker 03:
That's right so that's why we don't have to worry about the use of the True Narc Scan at that point.

[00:14:57] Speaker 04:
You do have to worry about

[00:15:16] Speaker 00:
cases, or what's your home run case, suggesting that a container wrapped in dryer sheets has signaled a singular purpose of narcotics?

[00:15:31] Speaker 03:
Oh, Your Honor, we cite the Eighth Circuit that has recognized the widespread use of dryer sheets to conceal the smell of

[00:15:46] Speaker 03:
I'm not aware of any decision from the Ninth Circuit on dryer sheets.

[00:15:50] Speaker 03:
But of course, I think it's significant here.

[00:15:52] Speaker 03:
Ms.

[00:15:52] Speaker 03:
Green doesn't grapple with dryer sheets at all.

[00:15:54] Speaker 03:
The district court didn't grapple with dryer sheets at all.

[00:15:56] Speaker 03:
And I think if we just take a step back and ask ourselves, you know, what would the layperson

[00:16:23] Speaker 04:
One of them is a case that you've read and you cited here with sort of a baggie with white substance and then it's ripped and there's white powder coming out of it and they test it and that's negative, as you know.

[00:16:39] Speaker 04:
And then the officer pokes his finger in there and finds a little container, another little glass container, and that did have cocaine in it.

[00:16:48] Speaker 04:
That's right.

[00:16:49] Speaker 04:
So people do all kinds of things to hide

[00:17:04] Speaker 04:
I'm trying to set aside that they didn't have a big clinic still held out.

[00:17:11] Speaker 04:
That's why they did the TrueDark.

[00:17:12] Speaker 04:
So I'm trying to set that aside.

[00:17:14] Speaker 04:
You want me to decide that?

[00:17:15] Speaker 04:
You want us to decide that these contents right here that we're looking at proclaimed that it was narcotics.

[00:17:25] Speaker 04:
That's right.

[00:17:26] Speaker 04:
Underneath those dryer sheets.

[00:17:28] Speaker 04:
They certainly had ample probable cause to, right?

[00:17:45] Speaker 03:
It doesn't have to just only be fentanyl.

[00:17:48] Speaker 03:
It has to reclaim its contents to be contraband.

[00:17:50] Speaker 03:
It doesn't have to be that only fentanyl could have fit into these packages.

[00:17:54] Speaker 03:
But that is just clear from societal norms.

[00:17:57] Speaker 03:
Of course, there's no case that's exactly on point here.

[00:17:59] Speaker 03:
It's sort of an unusual circumstance.

[00:18:01] Speaker 03:
Could be fentanyl, could be heroin, could be cocaine.

[00:18:03] Speaker 03:
Exactly right.

[00:18:04] Speaker 03:
But nobody, if we just run through the list of even examples that Ms.

[00:18:07] Speaker 03:
Green has offered, cricket powder, flour, baking soda, even personal makeup powder, anything like that, no one puts that in plastic

[00:18:26] Speaker 04:
The government didn't convince the district court.

[00:18:29] Speaker 04:
He's got these authorities – law enforcement's authority to seize a suspect's effects is distinct from the authority to search those effects.

[00:18:36] Speaker 04:
That's Walter.

[00:18:37] Speaker 04:
We most recently said this in United States v. Young in 2009.

[00:18:40] Speaker 04:
Even when the government agents may lawfully seize a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.

[00:18:53] Speaker 04:
Have we more recently said something different

[00:18:56] Speaker 03:
You know, your honor, I'm not aware.

[00:18:57] Speaker 03:
I have to check.

[00:18:58] Speaker 03:
I don't think so.

[00:18:59] Speaker 03:
But I think this doesn't have to come into play because of the single purpose container exception.

[00:19:04] Speaker 03:
So all of those, you know, the need to obtain a warrant before examining the contents only matter.

[00:19:26] Speaker 04:
get to Plainview, we have to decide the true NARC.

[00:20:08] Speaker 03:
which we know tested innocuously.

[00:20:10] Speaker 03:
It's not clear that a white powder that encases another container automatically proclaims that whatever is in that inner chamber must be drugs.

[00:20:20] Speaker 03:
That's just not clear to a lay person.

[00:20:21] Speaker 03:
It's not clear under societal norms.

[00:20:24] Speaker 03:
But here we have something quite different.

[00:20:25] Speaker 04:
Isn't that even more suspicious?

[00:20:26] Speaker 04:
I mean, Miller is one of the cases cited in this footnote.

[00:20:29] Speaker 04:
Isn't that even more suspicious?

[00:20:30] Speaker 04:
There's a baggie with white powder spilling out of it.

[00:20:33] Speaker 04:
They test that.

[00:20:34] Speaker 04:
That's suspicious enough that they test that.

[00:20:42] Speaker 04:
I'm just trying to get to consistency here.

[00:20:45] Speaker 04:
Miller says they needed a warrant, doesn't it?

[00:20:47] Speaker 03:
That's right.

[00:20:47] Speaker 03:
Miller says that the test of that inner chamber, I think it was a fiberglass container, you had to get a warrant to test that.

[00:20:53] Speaker 03:
Because that didn't proclaim its contents.

[00:20:55] Speaker 03:
Exactly.

[00:20:56] Speaker 03:
And I think that's a different circumstance than what we have here, where, you know, in Miller you already have one test that confirms that at least part of that package is

[00:21:10] Speaker 03:
No one packages anything innocent in layers of dryer sheets and plastic wrap.

[00:21:14] Speaker 03:
They just don't.

[00:21:15] Speaker 03:
And so what the officers can see on the ground in front of them seems to proclaim his contents quite clearly.

[00:21:20] Speaker 03:
Those are drugs.

[00:21:22] Speaker 03:
And I don't know if that answered your question, Your Honor.

[00:21:25] Speaker 03:
More questions?

[00:21:26] Speaker 03:
No.

[00:21:26] Speaker 03:
I think it's very helpful.

[00:21:26] Speaker 04:
Thank you.

[00:21:27] Speaker 03:
Thank you.

[00:21:30] Speaker 04:
You actually saved the amount of time you thought we were going to save.

[00:21:33] Speaker 04:
It almost never happens.

[00:21:33] Speaker 04:
Congratulations.

[00:22:06] Speaker 02:
Yeah, it's checked.

[00:22:42] Speaker 02:
of explosive masses inside.

[00:23:12] Speaker 02:
In terms of an illegal programmatic purpose, we have well-moved

[00:24:32] Speaker 04:
ask a clarifying question of my colleague.

[00:24:34] Speaker 04:
If we're positing.

[00:25:15] Speaker 02:
that's the kind of thing they're sobbing for.

[00:26:00] Speaker 01:
It doesn't count under admission.

[00:26:36] Speaker 04:
And it has holes in the back.

[00:26:39] Speaker 02:
Sure.

[00:26:39] Speaker 02:
I think at that point they can take whatever safety measures they want to protect both themselves and anyone in the vicinity.

[00:26:47] Speaker 02:
I think they've already been doing an administrative search.

[00:26:49] Speaker 02:
I think the safety measures at that point are part of standard public building safety measures in any public building.

[00:26:55] Speaker 02:
That would be uncontested as well.

[00:26:57] Speaker 02:
What's the exception there that gets you around the Fourth Amendment?

[00:27:01] Speaker 02:
Well, they're already doing an administrative search.

[00:27:08] Speaker 02:
That's not a Fourth Amendment issue, Your Honor.

[00:28:14] Speaker 02:
and I have some answers to the questions you all were asking my friend.

[00:28:18] Speaker 02:
I do.

[00:28:18] Speaker 02:
I think that the government has has erred with regard to the standard of review of the district court's finding as to the single-purpose container aspect of the Plainview Doctrine and I think that's critically important.

[00:29:13] Speaker 02:
and also United States versus Miller.

[00:29:16] Speaker 02:
This court reviews findings of fact under the single purpose container exception for clear error.

[00:29:22] Speaker 04:
Right, but both those cases predate this other more recent innovation where we have video footage we can see.

[00:29:29] Speaker 02:
Well, there's no video footage in this case, Your Honor.

[00:29:31] Speaker 04:
I know.

[00:29:31] Speaker 02:
So that's why I don't think that the de novo thing of- I'm trying to find a principled distinction.

[00:29:35] Speaker 02:
I think it's a video versus photos.

[00:29:37] Speaker 04:
Well, but I go back to Judge, was it Judge Bennett who first raised this?

[00:29:56] Speaker 02:
The drier sheets, in this case, are not visible.

[00:29:59] Speaker 02:
There is opaque plastic, and on page ER21 of the district... They're not identifiable as drier sheets.

[00:30:05] Speaker 04:
I can see them.

[00:30:05] Speaker 04:
What do you mean, they're not visible?

[00:30:07] Speaker 02:
I don't think they're identifiable as drier sheets.

[00:30:08] Speaker 02:
I think there's just opaque plastic.

[00:30:10] Speaker 02:
ER21, the packages did not reveal their contents.

[00:30:13] Speaker 02:
The district, the government...

[00:31:08] Speaker 02:
And it has only been applied to videos, Your Honor.

[00:31:10] Speaker 02:
And again, the origin of that is Scott v. Harrison is specific to videos.

[00:31:13] Speaker 02:
Are you aware of any case that doesn't apply it to photos?

[00:31:16] Speaker 02:
I am not, Your Honor.

[00:31:17] Speaker 02:
But again, there's multiple cases applying it, applying the clear error standard of review to factual findings to this exception.

[00:31:25] Speaker 02:
There's not one that we can find thus far that puts these different principles in place.

[00:31:49] Speaker 02:
If you look at the actual police reports of all the various agencies in this case, the dryer sheets are never mentioned at the time of the investigation.

[00:31:59] Speaker 02:
So as I said, there's a narcotics investigation, a drug investigation by both the LAXPB and the DEA, which is of course the Drug Enforcement Administration.

[00:32:07] Speaker 02:
They were doing a narcotics investigation into an unknown drug.

[00:32:10] Speaker 02:
The dryer sheets were never mentioned until the affidavit submitted with the opposite

[00:32:30] Speaker 04:
in order of chronology, which the documents

[00:33:01] Speaker 04:
I'm aware of that, but I know we're slicing this very fine, but sometimes these cases come down to really small questions.

[00:33:11] Speaker 04:
So I can see

[00:33:29] Speaker 04:
I'm understanding from the record that they were inside that clothing bag, part of which has a blue label that's not Caesar.

[00:34:05] Speaker 04:
the sealed clothing bags because the three white bags were inside it.

[00:34:51] Speaker 04:
and see the white bags in there.

[00:34:54] Speaker 02:
Which the – yes, which the district court found the little ones were not transparent.

[00:34:59] Speaker 04:
Right.

[00:34:59] Speaker 04:
So the – okay, so now we've got the – but it seems to me all of that's going to be uncontested under the airport administrative exception.

[00:35:05] Speaker 04:
All of those searches to the point – hold on.

[00:35:08] Speaker 04:
You're saying no, but you haven't heard my question.

[00:35:21] Speaker 02:
I do not contest that the TSA could do all of that before 5 15 a.m.

[00:35:31] Speaker 02:
I contest that the DEA could do anything

[00:35:52] Speaker 02:
everything was closed.

[00:35:54] Speaker 04:
Do you have a record site for that?

[00:35:56] Speaker 02:
ER5.

[00:35:56] Speaker 04:
Okay, so you think the DEA couldn't do anything at that point?

[00:36:00] Speaker 04:
I think they could get a warrant.

[00:36:04] Speaker 04:
Okay, go back to, let's assume that there's another place on the record that suggests that this, because I've asked my law clerk about this a couple of times, that this is ambiguous about whether the DEA folks had to reopen that suitcase or whether they found it looking like it looks in this photo

[00:36:27] Speaker 04:
looking at that, the district court thought that a layperson wouldn't recognize that as something that had immediately announced its content.

[00:36:37] Speaker 04:
Yes.

[00:36:38] Speaker 04:
And your best answer is you think that the white sheets, you said that, I can, everybody can see the white sheets, you think they're not identifiable as

[00:36:54] Speaker 02:
was a factual finding by the district court that those bags were

[00:37:28] Speaker 02:
There was nothing more inherently suspicious to a lay person as opposed to a DEA agent that proclaimed that these little packages necessarily were narcotics as opposed to any other kind of powder in the world.

[00:37:57] Speaker 02:
That's why I think it's important to look at the law.

[00:37:59] Speaker 02:
Under GUST at page 801, a container must so clearly announce its contents, whether by distinctive configuration, transparency, or otherwise, that its contents are obvious.

[00:38:10] Speaker 02:
So the standard is obvious to an observer.

[00:38:12] Speaker 04:
I suppose the Council has argued, nobody does this.

[00:38:14] Speaker 04:
Nobody wraps anything other than drugs in dryer sheets and hangouts.

[00:38:40] Speaker 02:
only buy in Venice Beach.

[00:38:41] Speaker 02:
I mean, there are other powders you might want to travel with.

[00:38:45] Speaker 02:
It's obvious to a lay person, is the standard from Gust.

[00:38:48] Speaker 02:
All right.

[00:38:49] Speaker 02:
So let's put it back.

[00:38:51] Speaker 02:
With all due respect to vegan keto powder eaters.

[00:38:55] Speaker 04:
Having been raised on a cattle ranch, I'm just going with you on that.

[00:39:00] Speaker 04:
So let's go back to these.

[00:39:03] Speaker 04:
And just for the sake of a hypothetical, let's decide whether we think that we can borrow on this video

[00:39:13] Speaker 04:
would know that that's got narcotic substance in it.

[00:39:16] Speaker 04:
Maybe not what kind of narcotic substance.

[00:39:20] Speaker 04:
Is your next answer footnote 11?

[00:39:23] Speaker 02:
Yeah, I think my next answer would be footnote 11.

[00:39:25] Speaker 02:
And the other thing- You can seize it but not search it.

[00:39:28] Speaker 02:
Sure.

[00:39:28] Speaker 02:
Again, Your Honor, as referenced earlier, there was- this bag was checked.

[00:39:32] Speaker 02:
Ms.

[00:39:32] Speaker 02:
Green was halfway across the country already on her flight.

[00:39:36] Speaker 02:
There was no case suggesting they had to give this

[00:39:54] Speaker 02:
versus not cocaine.

[00:39:55] Speaker 02:
This I think goes into the wave issue.

[00:39:57] Speaker 02:
Trenarch is a search because it gives you not just drug versus not drug.

[00:40:02] Speaker 02:
They have and I'd also like to note they conceded the good faith doctrine, so whether Herring or Hine or all of those cases.

[00:40:08] Speaker 04:
So Miller is the case with the powder, within the powder, right?

[00:40:13] Speaker 04:
And then I think we said this more recently in the United States,

[00:41:12] Speaker 01:
Doesn't that suggest that when he got there the suitcase was open?

[00:41:20] Speaker 02:
I think that's ambiguous, Ron.

[00:41:21] Speaker 02:
I mean, that he observed it doesn't mean that he didn't open the suitcase before he observed it.

[00:41:45] Speaker 02:
and we did raise it in our red brief.

[00:41:48] Speaker 02:
We noted in our red brief that on page ER-5, the district court's opinion, it says,

[00:42:41] Speaker 02:
letter if you'd like me to.

[00:42:43] Speaker 04:
Thank you so much for your patience with our extra questions.

[00:42:59] Speaker 04:
I think she saved about five minutes actually.

[00:43:02] Speaker 03:
I did request three just to be totally candid.

[00:43:06] Speaker 04:
I think you had three on the clock.

[00:43:09] Speaker 03:
I think I was over your honor.

[00:43:14] Speaker 03:
extra time there are a few things that I'd like to respond to and you know I'd like to start with the single-purpose container exception although I do want to recognize you know there are some tricky issues on the administrative search issue and we would push back on some of

[00:43:44] Speaker 03:
on the single purpose container exception because that is our strongest argument and I think that's correct for a number of reasons as we've been discussing the use of these dryer sheets is significant here and this you know Venice Beach keto diet theory just respectfully doesn't hold water because no one puts

[00:44:19] Speaker 04:
So it is not clear from the record that the officers, who I think everybody assumes were acting in good faith, that they could actually see and identify these white things as dryer sheets before the packages were opened.

[00:44:30] Speaker 04:
What's your best response to that?

[00:44:32] Speaker 03:
Well, Your Honor, it's true that there's no contemporaneous report from the TSA noting that these packages contain dryer sheets.

[00:44:39] Speaker 03:
What we have is the Tobias Declaration, and that declaration recounts what

[00:44:50] Speaker 03:
dryer sheets and that's before they sent the packages off to the lab so yes I do believe that he says it's visible including quote visible dryer sheets line 17 and 18 so I think that

[00:45:17] Speaker 04:
Can you identify that wide limit section?

[00:45:19] Speaker 04:
So if you can, I don't want to be late with this one.

[00:45:53] Speaker 03:
And from my perspective, they seemed clear.

[00:45:57] Speaker 03:
The district court didn't really grapple with whether they were or were not dryer sheets.

[00:46:01] Speaker 03:
The court just didn't really address that factual issue at all.

[00:46:04] Speaker 03:
With respect to the other citations that opposing counsel has noted, the cases like Gust and Miller

[00:46:22] Speaker 03:
or the other packaging in Miller.

[00:46:25] Speaker 03:
We have very specific use, like I said, at the dryer sheets, and that should be given significant weight here.

[00:46:30] Speaker 04:
So in Miller, it sounds like you're arguing that Miller cut in your favor because the outer substance was tested negative.

[00:46:38] Speaker 04:
So that seems to indicate that there would be a lessening of the suspicion about what was in the little plastic thing inside.

[00:46:46] Speaker 03:
It certainly didn't add to any suspicion.

[00:46:48] Speaker 03:
That's right.

[00:46:49] Speaker 03:
there's nothing obviously incriminating about that file relative to the obvious incriminating need.

[00:47:19] Speaker 00:
it's.

[00:47:45] Speaker 03:
Your Honor, it may well be that that is coming or currently brewing.

[00:47:48] Speaker 03:
I am not aware of any case, but of course, that might be possible.

[00:47:52] Speaker 03:
And I think in a given case, that may be appropriate.

[00:47:55] Speaker 03:
We may be headed in that direction.

[00:47:57] Speaker 03:
I would just note for the court that really the question here that this report should have grappled with is whether the officers were making an unreasonable mistake with respect to that fact, whether fentanyl is dangerous and whether these packages pose a safety threat.

[00:48:09] Speaker 03:
And in light of the number of judges who have recognized the dangers of airborne fentanyl,

[00:48:13] Speaker 03:
We cite two of those cases in our reply brief at pages 10 to 11.

[00:48:17] Speaker 03:
There's a third case out of the 11th Circuit that we cite that talks about fentanyl posing a danger if people come upon it in the public just sitting there.

[00:48:39] Speaker 04:
But in a bag that was leaking.

[00:48:41] Speaker 04:
Right.

[00:48:41] Speaker 04:
Different story.

[00:48:42] Speaker 03:
That is different.

[00:48:43] Speaker 03:
There's no indication that these were leaking.

[00:48:45] Speaker 03:
Not yet, Your Honor.

[00:48:46] Speaker 03:
And so I would point the court back to Miller.

[00:48:48] Speaker 03:
You know, just because a package is safe and sealed at the time that it goes through the conveyor belt doesn't mean it's safe, safe and sealed when it comes off the other side.

[00:48:56] Speaker 03:
And stuff can happen on planes.

[00:48:57] Speaker 03:
Stuff can happen.

[00:48:58] Speaker 04:
And you know, I know... But the hypothetical was they can seize it.

[00:49:02] Speaker 04:
The question is whether they have to go get a search warrant for it.

[00:49:05] Speaker 04:
I wasn't suggesting they put it back on

[00:49:08] Speaker 03:
The alternative, of course, to not getting a search warrant at all is the question they have to ask themselves is, is this safe?

[00:49:14] Speaker 03:
If we put this back on an airplane, is that going to be safe?

[00:49:17] Speaker 03:
That's not my hypothetical.

[00:49:18] Speaker 04:
My understanding is that once they were looking at these really clearly suspected narcotics, memorialized as much, not that they would put it back on the conveyor belt, but that they would go get a warrant.

[00:49:37] Speaker 03:
and through LAX Airport, both are identified, but also to make sure that they're not unsafe, that they don't pose a hazard to people and the traveling public.

[00:49:46] Speaker 03:
That's why there are all these protocols about handling these narcotics very carefully.

[00:49:50] Speaker 04:
How were these three bags going to pose a safety hazard if they remained in the safe where they were?

[00:49:58] Speaker 03:
Certainly, if they remained there for all time, then it's quite unlikely.

[00:50:02] Speaker 04:
All time, I was just suggesting long enough to get a warrant.

[00:50:06] Speaker 04:
a 24-7 magistrate judge waiting to give it to them got it easily.

[00:50:10] Speaker 03:
That's right, Your Honor, but that doesn't actually address whether, respectfully, whether in that moment the agents are still permitted under the administrative search doctrine to make sure that those packages are safe or unsafe.

[00:50:23] Speaker 03:
And it's true that they can hold that and get a warrant, but they don't have to under the administrative search doctrine if there's a concern that they may pose a threat.

[00:50:37] Speaker 01:
What is a true NARC?

[00:50:38] Speaker 01:
True NARC device.

[00:50:39] Speaker 03:
And that is really the safest way to test it personally.

[00:50:41] Speaker 03:
I wonder what your view of the law would end.

[00:50:44] Speaker 03:
I don't think that... Where does it end?

[00:50:46] Speaker 03:
Where does it end?

[00:50:46] Speaker 03:
You know, Your Honor, I don't think that's right.

[00:50:47] Speaker 03:
I think, you know, here we have a very... We have two specific circumstances.

[00:50:50] Speaker 03:
We have the fact that there's a rise in fentanyl trafficking through LAX Airport, which may not be the case around the country.

[00:50:56] Speaker 03:
That gives the officers reason to believe that these packages may contain fentanyl.

[00:51:01] Speaker 04:
We also have... The question is, I've given you the...

[00:51:20] Speaker 04:
that's the part where I'm saying, wow, where does that end?

[00:51:23] Speaker 03:
Well, Your Honor, that only ends, you know, that's assuming that the backs are going to go back into the airport and back onto the plane.

[00:51:31] Speaker 03:
And I understand the court's point.

[00:51:32] Speaker 03:
The court's point is we've eliminated the threat of explosives or weapons.

[00:51:35] Speaker 03:
It doesn't look like it's going to spontaneously burst open, so just go ahead and get a warrant.

[00:51:39] Speaker 03:
I don't think the administrative search doctrine requires that.

[00:51:43] Speaker 04:
We've taken you well over your time.

[00:51:45] Speaker 04:
I appreciate it, Your Honor.