[00:00:02] Speaker 03:
Good morning.

[00:00:03] Speaker 03:
Good morning, Your Honor.

[00:00:04] Speaker 03:
My name is Cynthia Kagiwada, and I'm representing defendant appellant William Notis.

[00:00:09] Speaker 03:
I'd like to reserve two minutes for rebuttal, if I could.

[00:00:16] Speaker 03:
Your Honors, we are here today to decide one matter, whether or not there was probable cause to arrest Mr. Notis when officers Korean Etchi Berry first saw him in the parking garage of the Kapiolani Manor on August 5th.

[00:00:32] Speaker 03:
It's a totality of the circumstances test, and because this was a warrantless arrest, the government has a burden of proof of meeting that exception.

[00:00:43] Speaker 03:
In this particular case, timing is everything.

[00:00:47] Speaker 03:
And what I mean by that is there were several things that the various law enforcement officers learned after Mr. Notiz's arrest, but what they knew up until the time they saw him in the parking garage, that's what's key to this case.

[00:01:03] Speaker 05:
So unfortunately for your client, he wasn't unfamiliar to the law enforcement, correct?

[00:01:10] Speaker 05:
He had been identified for, they did have some knowledge about a prior drug situation involved with him, is that correct?

[00:01:19] Speaker 03:
Your Honor, I'm not exactly sure which situation you're referring to.

[00:01:22] Speaker 03:
There was a situation where after Mr. Notiz's arrest, one of the law enforcement officers discovered

[00:01:32] Speaker 03:
that he had been involved supposedly in drug trafficking back in 2011.

[00:01:39] Speaker 05:
My understanding is just two months before the incident here, law enforcement attempted a controlled delivery of methamphetamine to Notiz because they suspected a parcel with a methamphetamine was addressed to a PO box associated with him.

[00:01:53] Speaker 05:
And during that investigation, they confirmed that Notiz had received packages addressed to the names of others than his own.

[00:02:02] Speaker 03:
so I'm not exactly sure are you referring to what was written in mr. officer Korea's report because when they stopped him they they stopped him guns blazing correct correct but if

[00:02:20] Speaker 05:
In the district court, I believe said they didn't have probable cause to arrest but went beyond the Terry search and then, but said there was inevitable discovery about the keys and other things.

[00:02:31] Speaker 05:
But if we found that based on all the information they had at that time, there was probable cause to arrest, do you lose?

[00:02:44] Speaker 05:
Yes.

[00:02:45] Speaker 05:
OK.

[00:02:45] Speaker 05:
And so the totality is in circumstances what the officers knew at the time they pulled him over and pulled him out with guns, right?

[00:02:55] Speaker 03:
Correct.

[00:02:57] Speaker 03:
And they did not know about any of his, any other previous activities?

[00:03:02] Speaker 04:
Well, but didn't they know at the time that he had been at the post office, that he was associated with the PO Box?

[00:03:11] Speaker 04:
He was present at the location where officers knew that this parcel that had been, I guess, misaddressed or addressed to somebody else had been taken.

[00:03:24] Speaker 05:
I mean, why isn't that, why isn't that enough?

[00:03:27] Speaker 05:
Well, they knew it had been opened, too, by there was something that notified them it had been opened, too, right?

[00:03:33] Speaker 03:
Correct.

[00:03:33] Speaker 03:
There was a beeper warrant installed in the package, and that beeper warrant went off.

[00:03:37] Speaker 01:
So why doesn't that all lead up to probable cause?

[00:03:40] Speaker 03:
If I could just backtrack a minute, they only were able to confirm later that it was Mr. Notis who went to the post office the day before.

[00:03:50] Speaker 04:
Well, but I thought that they had observed a car known to be his car driving by the post office at the time that the post office box was opened.

[00:04:03] Speaker 04:
Was that something they only learned later, or was that not?

[00:04:06] Speaker 03:
Well, that's a little bit in dispute.

[00:04:09] Speaker 01:
Well, but we have to take the facts in the light most favorable to the government, yes?

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

[00:04:14] Speaker 01:
So they knew that a car had come to the post office after they had put the slip in the post office box.

[00:04:25] Speaker 01:
They knew the person who left that car was the only person in the post office at the time.

[00:04:32] Speaker 01:
They knew that person had gone to the box, looked at the note, put the note back in, and then they knew a day later somebody else came, somebody came to pick up the package.

[00:04:43] Speaker 01:
They saw the same car as they were tracking the package to the, to its location where it was opened.

[00:04:51] Speaker 01:
They observed the same car entering the parking garage that they had seen at the post office, didn't they?

[00:04:58] Speaker 03:
No, that's not correct, Your Honor.

[00:05:01] Speaker 03:
So the car that went into Kapiolani Manor was a purple Scion.

[00:05:06] Speaker 03:
Mr. Notis was associated with a BMW.

[00:05:09] Speaker 01:
The car that was driven to the post office on the day that the person opened the box and took out the slip of paper was what kind of car?

[00:05:19] Speaker 03:
It was a little confusing.

[00:05:21] Speaker 05:
So on the day that the package was picked up... I feel like we're dealing with an alternate world of facts here.

[00:05:25] Speaker 05:
I feel like I have some idea of the facts and you're saying those aren't the facts.

[00:05:30] Speaker 03:
Mr. Notiz's car was not the car that picked up the package on August 5th.

[00:05:34] Speaker 01:
Not the one that picked up the package.

[00:05:36] Speaker 01:
What car was seen coming to the post office on the day that somebody put their hand in the post office box, looked at the note about where the package was and then left.

[00:05:47] Speaker 03:
There was a BMW coming on August 4th, which was the date before.

[00:05:51] Speaker 03:
However, in his affidavit, Officer F. Chiberri, who was the person who said he observed the BMW,

[00:06:01] Speaker 03:
In his affidavit on August 5th, he said that they only later learned that it was William Notis.

[00:06:08] Speaker 03:
He said that UNIT saw the BMW, but they only later learned that it was Mr. Notis.

[00:06:16] Speaker 01:
Later before the stop or later after that day?

[00:06:21] Speaker 03:
It was a little unclear.

[00:06:22] Speaker 01:
Yeah.

[00:06:22] Speaker 01:
See, I thought that they had learned before the stop in the parking garage that this was Mr. Notiz's car.

[00:06:29] Speaker 01:
There's some evidence in the record of that, is there not?

[00:06:32] Speaker 03:
There is some record where, again, they said.

[00:06:34] Speaker 01:
So we have to take that record into light and it was favorable to the government.

[00:06:38] Speaker 01:
So at the time they stopped him,

[00:06:41] Speaker 01:
they know he's, they have good reason to think he's the person who went to the post office that day and looked in the box to find that there was a note that said the package was at the counter.

[00:06:54] Speaker 01:
We know that package is retrieved the next day and taken to this apartment and opened, and we know that the person that they

[00:07:03] Speaker 01:
reasonably believed was at the post office on the day that the note was placed in the box and reviewed it, is now in the garage at that place.

[00:07:13] Speaker 01:
Is that enough for reasonable suspicion?

[00:07:16] Speaker 03:
It may be enough for reasonable suspicion, but reasonable suspicion is not probable.

[00:07:20] Speaker 01:
Okay, so why isn't it enough for probable cause?

[00:07:24] Speaker 03:
Well, first of all, going back to the day before,

[00:07:27] Speaker 03:
The record shows that they only were able to confirm that was Mr. Notis, and he was the only person in the lobby after Mr. Notis was arrested.

[00:07:37] Speaker 03:
U.S.

[00:07:38] Speaker 03:
Postal Inspector Rodriguez went back to the post office.

[00:07:41] Speaker 03:
office after Mr. Notiz's arrest, and only then did he view the video and see it was Mr. Notiz and see that there was nobody else in the lobby.

[00:07:50] Speaker 04:
I think the import of our questions has been that they didn't need the video because they already knew that the BMW that they saw on the day that somebody opened the PO box and looked at the slip was identified with Mr. Notiz.

[00:08:05] Speaker 04:
So that, I mean, why is the video even necessary here?

[00:08:08] Speaker 04:
I don't think it was.

[00:08:11] Speaker 03:
Well, number one, on the day that the parcel was picked up, it's unclear that they saw Mr. Notiz's BMW intel after he was arrested, when they first stopped him in the parking garage.

[00:08:24] Speaker 03:
The car that picked up the parcel was driven by Mr. Matsuda.

[00:08:29] Speaker 04:
I'm talking about the car that was at the post office before the PO box was opened and Rodriguez observed someone's hand reaching into it, not the parcel pickup.

[00:08:39] Speaker 03:
Well, even if it was Mr. Notiz's car, there was nothing to connect him with the package or that he had knowledge of what was in the package.

[00:08:50] Speaker 01:
Can I ask you about inevitable discovery?

[00:08:55] Speaker 01:
You concede they had reasonable suspicion to stop him?

[00:09:00] Speaker 01:
I would concede that they could ask me questions.

[00:09:02] Speaker 01:
I think you have to.

[00:09:02] Speaker 01:
Yes.

[00:09:04] Speaker 01:
He's got on his hands

[00:09:07] Speaker 01:
the powder that shows that he's opened the package.

[00:09:12] Speaker 01:
Are they entitled to look at his hands with the ultraviolet light after they've stopped him for reasonable suspicion?

[00:09:21] Speaker 03:
That is an open question.

[00:09:23] Speaker 03:
However, I think the problem is... Close it for me.

[00:09:26] Speaker 03:
Okay.

[00:09:26] Speaker 01:
If they are... I would say no.

[00:09:28] Speaker 01:
If they are... I would say no.

[00:09:30] Speaker 01:
If they are, they surely have probable cause at that point because they know he's opened the package with the drugs in it.

[00:09:36] Speaker 01:
So tell me why they're not, in your view, why they're not entitled to look at his case.

[00:09:40] Speaker 03:
I would agree that they have probable cause at that point.

[00:09:43] Speaker 03:
The problem is they did not have probable cause when they first stopped him.

[00:09:47] Speaker 01:
Well, but you don't have... See,

[00:09:48] Speaker 01:
They stopped him on reasonable suspicion.

[00:09:51] Speaker 01:
They could have developed probable cause as part of a Terry stop.

[00:09:56] Speaker 01:
And so my question is, why didn't they develop probable cause when they shone a light on his hands and saw that the powder was on?

[00:10:04] Speaker 03:
They could, but that's not what they did.

[00:10:06] Speaker 03:
They arrested him.

[00:10:07] Speaker 03:
They came at him with guns drawn.

[00:10:08] Speaker 03:
They took him down.

[00:10:10] Speaker 03:
They handcuffed him.

[00:10:11] Speaker 03:
He couldn't move.

[00:10:12] Speaker 03:
That's an illegal arrest.

[00:10:14] Speaker 05:
And so everything that followed that— If you make a high-risk stop, at some point it would become an arrest.

[00:10:21] Speaker 05:
But if every time the officers pull people over,

[00:10:25] Speaker 05:
at gunpoint based on if they were in fear of their safety or felt it was a high-risk stop, that doesn't automatically become an arrest.

[00:10:35] Speaker 05:
They can make a high-risk stop.

[00:10:38] Speaker 05:
That's correct, Your Honor, but in this case there was no high risk.

[00:10:42] Speaker 05:
You're already in overtime.

[00:10:43] Speaker 05:
Why don't we wait?

[00:10:45] Speaker 05:
I'll still give you two minutes for rebuttal, okay?

[00:10:48] Speaker 05:
Thank you.

[00:11:00] Speaker 02:
Good morning.

[00:11:01] Speaker 02:
Good morning.

[00:11:01] Speaker 02:
May it please the court?

[00:11:02] Speaker 02:
My name is Michael Albanese.

[00:11:03] Speaker 02:
I represent the United States.

[00:11:05] Speaker 05:
Mr. Albanese, you can sort of jump right in because we seem to be having

[00:11:11] Speaker 05:
different there seems to be difference in what the facts were why don't you give us the governance government's perspective of what the officers knew when they made when they pulled them over when they made a high-risk stop and what information did they have absolutely your honor so what we know is that when the parcel was seized initially and in the application process for this the initial search warrant

[00:11:38] Speaker 02:
Postal Inspector Rodriguez did some database searching and came up with the name of William Notis as associated with an earlier parcel that had been seized and found to contain methamphetamine.

[00:11:52] Speaker 02:
And that's contained in the report of Officer Correa, which is admitted in the record and is something that the court did have access to and could rely on.

[00:12:01] Speaker 02:
So we know that.

[00:12:03] Speaker 02:
We also know from that report that there was a preoperational briefing prior to the controlled delivery on August 4th, at which the person of William Notiz and the car were discussed.

[00:12:15] Speaker 02:
And we know that from the direct testimony of Officer Kyle Echibarri.

[00:12:19] Speaker 01:
Back up for me for a second, because I'm still trying to get the facts about what they knew straight in my mind.

[00:12:29] Speaker 01:
They knew when they obtained the warrant that notice had come to their attention before.

[00:12:35] Speaker 01:
On the day that somebody came to the post office and looked in the box, I'm trying to figure out what they knew that day.

[00:12:43] Speaker 01:
They knew a car had driven up.

[00:12:47] Speaker 01:
They knew, they may not have viewed the tape, but they knew from post office people that nobody else was there.

[00:12:54] Speaker 01:
What did they know about who was driving that car and when did they learn that?

[00:12:59] Speaker 02:
So not only that a black BMW was driven up, but that was a black BMW that they were clued in on based on a prior pre-operational meeting.

[00:13:09] Speaker 01:
When you say they were clued in on, that's nice, but tell me what they knew about it.

[00:13:13] Speaker 02:
They knew that, essentially, that one of the, you know, universe of target suspects was William Notis, and he was associated with a black BMW, this particular black BMW.

[00:13:23] Speaker 01:
Okay, so they knew before that black BMW arrived that he was associated with the BMW?

[00:13:28] Speaker 01:
Was it registered to him?

[00:13:30] Speaker 01:
I don't know how one associates with a car.

[00:13:32] Speaker 02:
Right, the direct testimony of Kyle Echeberria, Officer Echeberria on that point, is not crystal clear.

[00:13:38] Speaker 02:
The reality is it was a registered car to him.

[00:13:41] Speaker 02:
But that the record is is not as clear, but at least they thought he was associated It turns out he was registered to him right and then that car arrives that car that person comes and leaves we know about that and and the timing is and Kyle Officer Etcheverry testifies that the timing is is one two three the black BMW arrives They can't see the driver at that moment somebody walks in

[00:14:05] Speaker 02:
Inspector Rodriguez radios that a person checked the box, person walks out, and then as the black BMW was leaving, Officer Echibarri testified that at that point, he was able to make an identification of Officer Notiz.

[00:14:20] Speaker 02:
Mr. Notiz.

[00:14:22] Speaker 02:
Excuse me, Mr. Notiz.

[00:14:24] Speaker 05:
We're just having all sorts of trouble.

[00:14:25] Speaker 05:
I believe I am, yeah.

[00:14:29] Speaker 01:
And so at that... So on that day, they have

[00:14:34] Speaker 01:
you can add up all these facts if you want.

[00:14:36] Speaker 01:
They believe Mr. Notis is the person who has accessed the post office box.

[00:14:42] Speaker 01:
Both because it's the car and because an officer identifies him as he's leaving.

[00:14:49] Speaker 02:
That's correct.

[00:14:52] Speaker 01:
The day the package is picked up, we just don't know who picked it up, correct?

[00:14:55] Speaker 02:
So we know, well, another individual who was a co-defendant named Keith Matsuda picked up the parcel, immediately handed off to a unidentified individual, who then immediately handed off to the other co-defendant, Mr. Yanagihara.

[00:15:09] Speaker 01:
Do the officers have any advance information that any of the people in this chain of handing off are associated with Mr. Notis?

[00:15:18] Speaker 02:
No, they didn't know that.

[00:15:19] Speaker 01:
But they are obviously- So they have no more information about Mr. Notis?

[00:15:22] Speaker 01:
that day than they did the day before.

[00:15:24] Speaker 02:
That's correct, until they saw him at the address that that parcel eventually went to when they saw him later, moments after the parcel had been opened.

[00:15:36] Speaker 02:
That sort of confirmed.

[00:15:37] Speaker 01:
That's what they knew at the time.

[00:15:39] Speaker 01:
Correct.

[00:15:40] Speaker 01:
So tell me why that adds up to probable cause.

[00:15:43] Speaker 02:
Well, simply put, there's no innocent explanation for the behavior on the previous day of going to a post office, checking to see that the slip is there, and placing it back without retrieving the parcel.

[00:15:55] Speaker 02:
The only logical explanation, which is the one that the district court came to, was that one does that to distance themselves from the contents of the parcel.

[00:16:03] Speaker 02:
And because we know that, in this case, the contents were two kilograms of methamphetamine,

[00:16:09] Speaker 02:
It then makes sense.

[00:16:10] Speaker 05:
But don't we, okay, but they also know that they had already taken the methamphetamine out, put fake stuff, and they had a beeper in there, and they put, and they had searchy in there, right?

[00:16:22] Speaker 05:
That's correct.

[00:16:23] Speaker 05:
So that's what you all do on these situations.

[00:16:26] Speaker 05:
That's correct.

[00:16:27] Speaker 05:
You don't let them keep the methamphetamine.

[00:16:29] Speaker 05:
And so the officers know that.

[00:16:33] Speaker 05:
That's correct.

[00:16:34] Speaker 05:
That's part of standard procedure.

[00:16:36] Speaker 02:
That's right.

[00:16:37] Speaker 02:
But the fact that obviously Mr. Notiz didn't know that, and so he checks the box without picking up the parcel, which is suspicious in its own right.

[00:16:46] Speaker 02:
Then the fact that he is exiting Kapi'olani Manor six or seven minutes after the officers had been alerted that the box had been open, and has stipulated the parties.

[00:16:57] Speaker 05:
I guess it's still confusing to me from your friend on the other side.

[00:17:04] Speaker 05:
I thought that the officers that are watching this post office box, when they associate the car with Mr. Notiz, I thought they knew of this prior incident where he was, that he wasn't a person, that he was a person that was known in the drug trafficking business.

[00:17:23] Speaker 02:
Yes, so there are actually two prior incidents.

[00:17:28] Speaker 05:
When do they know them?

[00:17:29] Speaker 05:
Do they know them before they stop them at gunpoint?

[00:17:32] Speaker 02:
So I believe the Officer Correa's report makes clear that they were aware of the more recent previous parcel that was addressed to somebody named Pedro Ruddy that contained methamphetamine and the P.O.

[00:17:45] Speaker 02:
box in that case

[00:17:46] Speaker 02:
Associated through postal database checks and that's unfortunately all we know about what that means to William notice putting him on the radar for this box.

[00:17:56] Speaker 04:
There was also in that same box that same PO box that was it was a so

[00:18:02] Speaker 02:
there was an earlier investigation to a different PO box registered to a different person but through postal database checks right so that was what that's what they we know that they knew that at the time of the stop there was a 2011

[00:18:21] Speaker 02:
The record is unclear whether they knew that before the stop or whether they came to that information earlier.

[00:18:32] Speaker 02:
I think, you know, the affidavit of Officer Canio is a little bit unclear on that point.

[00:18:39] Speaker 02:
I would submit it's logical that the inspector would be doing a search of all of the, you know, prior times that this person's name came up, but the, again, the record.

[00:18:48] Speaker 01:
You don't know, right?

[00:18:49] Speaker 01:
Can you focus for me on the day of the stop?

[00:18:53] Speaker 01:
They know the package has come to this location because it has a beeper in it.

[00:18:58] Speaker 01:
Yes.

[00:18:59] Speaker 01:
And they confront Mr. Notis in the garage.

[00:19:03] Speaker 01:
Do they know whether he's coming or going?

[00:19:06] Speaker 02:
I believe the stipulation of the parties at the time of the suppression warrant was that he was walking towards his black BMW.

[00:19:16] Speaker 01:
And am I right that they had seen the black BMW enter the garage there, or am I mistaken about that?

[00:19:23] Speaker 02:
That I believe you're mistaken.

[00:19:24] Speaker 01:
It was there.

[00:19:26] Speaker 01:
The black BMW was there, but we don't know how he arrived, or do we?

[00:19:30] Speaker 02:
We do not, Your Honor.

[00:19:31] Speaker 02:
The car that brought the package from the Manoa Post Office to the... That was the car identified by your friend?

[00:19:38] Speaker 02:
Absolutely.

[00:19:39] Speaker 01:
That's right, but we don't know how Mr.

[00:19:40] Speaker 01:
For all we know, he may not have arrived during that time period.

[00:19:45] Speaker 01:
He may have already been there, is all we can tell from the record.

[00:19:48] Speaker 01:
That's correct.

[00:19:49] Speaker 01:
But his black BMW was in the garage and he was walking towards it when being apprehended.

[00:19:55] Speaker 02:
That's correct.

[00:19:55] Speaker 01:
Thank you.

[00:19:56] Speaker 02:
So that fact, again, coupled with the timing that it's minutes after the box had been opened, I think the officers drew a logical inference, and so did the district court, that he's walking away from... And the parcel had been opened.

[00:20:10] Speaker 05:
The parcel had been opened.

[00:20:13] Speaker 05:
Right, the parcel had been opened.

[00:20:14] Speaker 02:
Right.

[00:20:15] Speaker 05:
And... They don't know about the searchy till he's out of the vehicle.

[00:20:18] Speaker 01:
That's correct, Your Honor, until they... So is looking for searchy a search?

[00:20:23] Speaker 02:
No, Your Honor, and that's what we argued to the district court in the... In other words, if you were, if you had stopped somebody on reasonable suspicion on the street, could you put the ultraviolet on his hands and see... Yes, Your Honor, as long as it, as long as you don't exceed what, you know, what you'd normally be able to do based on just reasonable suspicion.

[00:20:44] Speaker 01:
Well, that's why I'm asking you, did you have a case that supports that proposition?

[00:20:48] Speaker 02:
I do not have the tips of my fingers.

[00:20:50] Speaker 02:
In this case, because of what the officers did, although there are cases which say that gunpoint isn't dispositive, ordering someone to the ground isn't dispositive.

[00:21:00] Speaker 01:
Well, it doesn't matter if there was probable cause, because then they could have arrested him in any event.

[00:21:05] Speaker 01:
I'm asking a different question, which is if there was only reasonable suspicion, and they took a few minutes later and put the ultraviolet on his hands, would that have been an illegal search?

[00:21:16] Speaker 02:
And because the district court did evaluate whether or not that the searchy powder itself was a search and concluded no, I would agree with that.

[00:21:24] Speaker 01:
Because at that point, they would have had probable cause.

[00:21:26] Speaker 02:
That's right.

[00:21:28] Speaker 05:
So they don't have a warrant at this point, right?

[00:21:31] Speaker 05:
The warrant that they get is later for the residents, correct?

[00:21:35] Speaker 02:
For the apartment that turned out to be the drug stash house.

[00:21:38] Speaker 05:
Right.

[00:21:38] Speaker 05:
But so the warrant that we're talking about, so when they notice at the time he

[00:21:46] Speaker 05:
He's going towards the vehicle.

[00:21:48] Speaker 05:
Does he actually get in the vehicle?

[00:21:50] Speaker 05:
No, I don't believe that that's how they just take him down.

[00:21:52] Speaker 05:
That's correct He eats the cement gets the gets Cuffed is he they pretty much they don't fool around he's cut.

[00:22:02] Speaker 02:
He's ordered to the ground He complies and then once on the ground he's cuffed and then they immediately Go into his pockets.

[00:22:11] Speaker 02:
So that's that's what's in the record here.

[00:22:13] Speaker ?:
Oh

[00:22:13] Speaker 01:
The key that they find is not associated with the, is it associated with the apartment that has the drugs, or is it associated with the other apartment?

[00:22:21] Speaker 02:
So the keys, they find a, what they call a fob that opens the garage to that apartment, to Capilani Manor.

[00:22:31] Speaker 02:
They find the keys that open the door to the drug stash house.

[00:22:35] Speaker 02:
And those were critical pieces of evidence that, you know, were presented by the United States in trial in this case.

[00:22:42] Speaker 05:
The district court found that they exceeded the Terry stop, but if, I'm just wondering if, I mean if you want to make sure someone isn't, doesn't have any weapons after you've taken them down, the keys are hard, right?

[00:23:03] Speaker 02:
And to be clear, the district court did not explicitly say that they exceeded the Terry stop, except for searching... I see what you're saying.

[00:23:11] Speaker 02:
I apologize.

[00:23:11] Speaker 02:
Let me back up.

[00:23:12] Speaker 02:
The district court...

[00:23:14] Speaker 02:
found that they had probable cause to make the stop but then still evaluating it under the Terry Stop analysis found that because the the keys themselves were not obviously criminal or evidentiary in nature that that portion exceeded seizure of the keys and the fob exceeded Terry Stop but was later found to be would have been

[00:23:37] Speaker 02:
inevitably discovered.

[00:23:39] Speaker 02:
The money was appropriately seized as evidence during the search of the Terry stop.

[00:23:44] Speaker 02:
What I'm arguing is that what the court didn't consider is that this is essentially it's a search incident to lawful arrest because they had PC and a search incident to lawful arrest can precede, as long as it's very close, the actual moment that the officers

[00:24:02] Speaker 02:
you know, would say, I'm executing the arrest at this point, because they had probable cause prior to doing anything with Mr. Notiz at the time he was encountered.

[00:24:13] Speaker 05:
Well, so at what point do you say he was under arrest?

[00:24:18] Speaker 02:
I would say that the, what we have not argued in our brief is that, or withdrawn,

[00:24:25] Speaker 02:
I would say that the level of force that they used under these circumstances was as close to, if not, the level that would be consistent with an arrest.

[00:24:34] Speaker 02:
And so, for purposes of this argument, he was arrested at the moment they encountered him.

[00:24:40] Speaker 05:
You kind of don't feel like you can go anywhere much when you're on the ground, handcuffed at gunpoint, right?

[00:24:47] Speaker 02:
Yes, exactly.

[00:24:48] Speaker 02:
Immediately cuffed, ordered to the ground at gunpoint, and then searched again immediately.

[00:24:55] Speaker 02:
It's close enough to arrest.

[00:24:57] Speaker 02:
And because there's ample evidence of probable cause prior to that point, that's the position of the United States in this case.

[00:25:04] Speaker 05:
So we've gone over.

[00:25:05] Speaker 05:
I have a question.

[00:25:06] Speaker 05:
Do either of my colleagues have digital questions?

[00:25:08] Speaker 05:
So that'll conclude your time.

[00:25:10] Speaker 05:
Thank you.

[00:25:18] Speaker 03:
I wonder if I could answer your last question first.

[00:25:21] Speaker 03:
This was not a high-risk stop.

[00:25:24] Speaker 03:
Mr. Notiz had no prior history of weapons.

[00:25:29] Speaker 03:
They had no evidence that he was armed.

[00:25:31] Speaker 03:
They had nothing to show that this was high risk.

[00:25:33] Speaker 03:
So this distinguished this case from some of the other cases where they... I think police officers sometimes think that drug dealers have guns.

[00:25:42] Speaker 03:
But they had no knowledge.

[00:25:44] Speaker 03:
So I think this distinguishes it from these cases where there's known violence about the defendant or they knew in advance that the defendant possessed a weapon.

[00:25:54] Speaker 05:
Well, but I think what we're here for here is if taking him down, and I think your friend on the other side just basically conceded said,

[00:26:02] Speaker 05:
You know, all of those, they took him at gunpoint, they cuffed him immediately, they searched him to make sure there weren't weapons or whatever.

[00:26:11] Speaker 05:
He's under arrest.

[00:26:13] Speaker 05:
So they're saying he's under arrest at that point.

[00:26:15] Speaker 05:
So our decision then, was there probable cause to arrest him at that point?

[00:26:21] Speaker 05:
If there wasn't, then your case becomes better.

[00:26:24] Speaker 05:
If there was, I think your case becomes worse.

[00:26:28] Speaker 03:
I would agree with that, Your Honor.

[00:26:30] Speaker 03:
But I would say that there was not probable cause, and I wanted to come back to what was actually presented at the suppression hearing.

[00:26:36] Speaker 03:
to summarize kind of what the government presented as what everybody knew.

[00:26:41] Speaker 05:
And the best— I guess I'm just going to have to tell you, I read the record the way that they did.

[00:26:47] Speaker 05:
So I was totally confused when you started saying they didn't know any of those things.

[00:26:52] Speaker 03:
Well, first of all, the one incident that Mr. Albanese referred to was first written about in Officer Kaniho's

[00:27:01] Speaker 03:
search warrant affidavit for the residents, and she said further checks revealed this earlier case from 2011.

[00:27:11] Speaker 03:
So they didn't look for that until after Mr. Notiz was arrested.

[00:27:14] Speaker 03:
This was five days later.

[00:27:16] Speaker 03:
So that's that one.

[00:27:18] Speaker 03:
The second one, this kind of cagey thing about somebody else having a post office box that was maybe associated with Mr. Notiz, that was never mentioned at the suppression hearing.

[00:27:27] Speaker 03:
That was not a basis for their argument.

[00:27:30] Speaker 03:
And that was first mentioned in Officer Korea's summary report, which was written on September 8th, 2016.

[00:27:38] Speaker 00:
So it's— What was the report in evidence at the hearing?

[00:27:43] Speaker 00:
I'm sorry?

[00:27:43] Speaker 00:
Was the report in evidence at the Supreme Court?

[00:27:45] Speaker 00:
It was, Your Honor.

[00:27:47] Speaker 00:
It was mentioned?

[00:27:48] Speaker 03:
It was not mentioned.

[00:27:50] Speaker 01:
They put on a witness to talk about it, but they put on evidence about it.

[00:27:53] Speaker 03:
Well, and it was actually a defense exhibit.

[00:27:57] Speaker 03:
But yeah, it was submitted.

[00:27:59] Speaker 03:
But the government never asked any questions about that.

[00:28:02] Speaker 03:
That was never a basis in their affidavit for the search warrant of the apartment.

[00:28:08] Speaker 05:
But this is all de novo for us.

[00:28:10] Speaker 05:
So we look at what was in the record.

[00:28:12] Speaker 05:
We make the legal determinations de novo.

[00:28:15] Speaker 05:
So we're just trying to get our arms around what was in the record.

[00:28:21] Speaker 05:
We're going into overtime again, so unless my colleagues have any questions, sum it up in 30 seconds.

[00:28:28] Speaker 03:
Your Honor, I would argue that there was no probable cause to arrest Mr. Notis when they first saw him in the parking garage of Kapiolani Manor, and everything after that should be suppressed as fruits of the illegal arrest.

[00:28:44] Speaker 03:
Thank you.

[00:28:45] Speaker 05:
Thank you both for your argument.

[00:28:46] Speaker 05:
This matter will stand submitted.