[00:00:05] Speaker 03:
And you know, may I please request two minutes for rebuttal?

[00:00:08] Speaker 02:
Yes, and please watch your clock.

[00:00:10] Speaker 03:
Thank you.

[00:00:15] Speaker 03:
The overarching issue in this case is whether the interwarns period of 12 months unreasonably infringed in Mr. Barnes' possessory interest over the cell phone that was retained by the agents.

[00:00:32] Speaker 03:
This is a unique case because we have an initial warrant that was obtained the day after his arrest at the Senate seat report of entry That warrant provided for the cell phone for the cell phone extraction to take place within 90 days the 90 days elapsed and it was on or about January the 1st of 2021 and it wasn't until January of 2022 and

[00:01:02] Speaker 04:
Did Mr. Barnes ask for his cell phone back during that period of time that he was released on bail and the phone was still in the custody of the government?

[00:01:14] Speaker 03:
No, he did not make a specific request for the cell phone.

[00:01:18] Speaker 03:
And that is one of the factors that the courts in analyzing in weighing the governmental interest in keeping a property vis-a-vis the possessory interest over the property

[00:01:31] Speaker 03:
by the individual, that's one of the factors that they consider.

[00:01:35] Speaker 03:
But it is not a determinative factor at all.

[00:01:41] Speaker 03:
And that's why in my opening brief, I spent a substantial amount of time on the cases that deal with

[00:01:50] Speaker 03:
pre-warned seizures followed by a delay and then the obtaining of a warrant.

[00:01:55] Speaker 03:
One of the factors that the courts look at is whether the defendant was out on bail, which would have increased his possessory interest over the item,

[00:02:05] Speaker 03:
whether the defendant had consented to a search of the item, which in this case Mr. Barnes had effectively said that he would not give consent to the search of the cell phone.

[00:02:17] Speaker 03:
Another factor is the nature of the item itself.

[00:02:21] Speaker 03:
In many of those cases that I cited there, note that a cell phone in particular, like a laptop,

[00:02:27] Speaker 03:
on the Riley, they do contain a lot of material that's intimate to a person, which a person has a strong possessor interest.

[00:02:36] Speaker 03:
And lastly then, the court has to consider the justification given by the government.

[00:02:43] Speaker 03:
And this is where the government in this case, at the district court level, proffer to the court that because COVID was going on, there was essentially no work done.

[00:02:56] Speaker 03:
But there were no particular or specific facts produced to the court as to how COVID at that time on October of 2020 and forward impeded the ability of the agent to conduct that cell phone extraction.

[00:03:14] Speaker 03:
And it is particularly telling that at that time, the Southern District of California was conducting trials.

[00:03:20] Speaker 03:
I mean, this is several months after the onset of COVID.

[00:03:24] Speaker 03:
And what really speaks volumes about the case, about this particular explanation, is that during trial, the trial counsel asked the agent if there was something about COVID that prevented him from searching the phone, and his answer was no.

[00:03:44] Speaker 03:
And that is, I made reference to that in the opening brief, which is, and actually his specific question was, COVID didn't prevent you from searching the phone on October of 2020, and his answer was correct.

[00:04:00] Speaker 03:
That's 3ER at 322.

[00:04:03] Speaker 04:
So it's- I think you walked through the factors that we should consider in this totality of circumstances analysis.

[00:04:11] Speaker 04:
Can you speak to the,

[00:04:13] Speaker 04:
issue of probable cause, because even if we were to agree with you that the Fourth Amendment is implicated by the government's continued seizure of the phone after the first warrant expired, isn't the continued existence of probable cause a critical fact that we need to consider?

[00:04:32] Speaker 03:
That is a factor.

[00:04:34] Speaker 04:
That is a factor.

[00:04:35] Speaker 04:
I don't read your argument to be that somehow that probable cause went away or no longer existed.

[00:04:41] Speaker 04:
No.

[00:04:42] Speaker 04:
Okay.

[00:04:42] Speaker 03:
No.

[00:04:43] Speaker 03:
The Fourth Amendment focuses on probable cause and also on the infringement on the possessor interest.

[00:04:50] Speaker 03:
Probable cause existed.

[00:04:52] Speaker 03:
Probable cause did not dissipate.

[00:04:57] Speaker 03:
probable cause doesn't, it's not something that immunizes the prolonged detention of the item.

[00:05:06] Speaker 03:
And that's one of the things that this court said in the Brewster case, which is the case involving the impounding of vehicles by Los Angeles, where this court said that the fact that there was probable cause

[00:05:24] Speaker 03:
does not take United States versus place out of the equation.

[00:05:29] Speaker 03:
So it is a factor in terms of the governmental interest on the item, but is a factor to be considered.

[00:05:40] Speaker 03:
I also, in response to one of your earlier questions about whether or not Mr. Barnes had requested the item, I cited a case from this district court case from the Southern District of Iowa where the court in that matter said, well, true granted, the defendant did not ask for the

[00:05:58] Speaker 03:
return of the item, but many people at that stage are not aware that they have a right to request the item back.

[00:06:05] Speaker 03:
So it is do some weight, but it's not the heaviest factor.

[00:06:10] Speaker 03:
I think the heaviest, one of the heaviest factors is whether or not he would have been able to exercise that possessory right over this.

[00:06:19] Speaker 04:
Are you talking about the Pratt case?

[00:06:21] Speaker 03:
I'm sorry, the, yes.

[00:06:23] Speaker 03:
It's the Southern District of Iowa case.

[00:06:25] Speaker 04:
So, you know, in reading

[00:06:27] Speaker 04:
those cases and others that you cited, I think one distinguishing fact in many of these cases is that there was warrantless seizures.

[00:06:37] Speaker 04:
So in that case, there was a delay in obtaining the warrant in the first instance at all.

[00:06:42] Speaker 04:
They didn't have it.

[00:06:43] Speaker 04:
That's not really the facts of this case where there was a warrant obtained immediately.

[00:06:48] Speaker 04:
It just then expired over a period of time.

[00:06:52] Speaker 04:
And during that period of time, I think you've

[00:06:55] Speaker 04:
agreed that probable cause continued to exist.

[00:06:57] Speaker 04:
There was no request for the phone.

[00:07:00] Speaker 04:
I really haven't heard from you sort of what the best arguments are for the factors that weigh in your favor for why that seizure is unlawful given that there was a warrant obtained.

[00:07:13] Speaker 03:
Well, in those cases, and those cases carry on to this case in particular because though the initial taken was without a warrant,

[00:07:24] Speaker 03:
And these were mostly cell phones, laptops, et cetera, for which there was probable cause.

[00:07:28] Speaker 03:
A magistrate judge found probable cause.

[00:07:31] Speaker 03:
So at that point, some point after the initial warrantless seizure.

[00:07:37] Speaker 03:
And it's not that probable cause existed as of that point when the warrant was sought.

[00:07:43] Speaker 03:
Probable cause was existing.

[00:07:45] Speaker 03:
from the point when the items were seized.

[00:07:50] Speaker 03:
So the existence of probable cause is something that carries on from those cases to our case, in that the court has to engage in that balancing, or the district court has to engage in that balancing exercise, which should not take place in this case.

[00:08:06] Speaker 03:
And this was, as I said, no specific findings.

[00:08:15] Speaker 03:
This is something that was harmless.

[00:08:16] Speaker 03:
I'm sorry, it was not harmless because the bulk of the case, the government's case, relied on those text messages.

[00:08:28] Speaker 03:
Emphasize that at the opening statement referring to the text messages as a quote-unquote treasure trove and Then at the end her closing remarks again use that same term treasure trove there was a co-defendant that Testified in the case, but the co-defendant did not impute was not able to testify about Imputing specific knowledge about the drugs to mr.. Barnes because in that I apologize for interrupting but you're talking about harmless error.

[00:08:55] Speaker 01:
I do want you to

[00:08:57] Speaker 01:
Talk to me about the other evidence.

[00:08:58] Speaker 01:
I mean there was 115 pounds of meth in the car.

[00:09:01] Speaker 01:
Mr. Maddox also testified.

[00:09:03] Speaker 01:
Mr. Barnes admitted that he rented the van.

[00:09:06] Speaker 01:
There was a deliberate ignorance instruction given and the jury only deliberated for 40 minutes.

[00:09:12] Speaker 01:
So I don't know that I agree with you that the cell phone information, you know, wasn't harmless given everything else that was available to the jury to make their decision.

[00:09:23] Speaker 03:
Well, let me just address a couple things that the prosecutor said at closing, and the text messages talked about windows today, toys tomorrow.

[00:09:37] Speaker 03:
They brought in an expert witness to identify that windows means methamphetamine.

[00:09:43] Speaker 03:
His cut was going to be $3,000, and that get the product out of the car.

[00:09:48] Speaker 03:
And those text messages, which the prosecutor even said, you don't even have to consider

[00:09:52] Speaker 03:
the co-defendants or the other witnesses testimony, the text messages themselves give them away.

[00:10:00] Speaker 03:
And that's why this was not harmless error.

[00:10:05] Speaker 03:
And I see that my time just expired.

[00:10:27] Speaker 00:
Good morning, Your Honors, and may it please the Court, Andrew Chang for the United States.

[00:10:31] Speaker 00:
We did not search the phone in the time that was allowed by the search warrant.

[00:10:35] Speaker 00:
It fell through the cracks for a period of one year during some unusual circumstances.

[00:10:40] Speaker 00:
That was a mistake, and it should not have happened.

[00:10:42] Speaker 00:
But the argument that's being made here, that a delay in searching a phone, despite the presence of a lawfully valid executed search warrant, somehow arises to a illegal seizure under the Fourth Amendment,

[00:10:55] Speaker 00:
We believe that just reaches too far.

[00:10:57] Speaker 00:
The Supreme Court has never held that to be the case, nor has a single circuit court of appeals, and this court should not be the first court to do so.

[00:11:06] Speaker 00:
The core interest that is in the seizure clause of the Fourth Amendment is to protect individuals against warrantless, unreasonable seizures.

[00:11:15] Speaker 00:
Every doctrinal Supreme Court case on this topic has involved a warrantless seizure.

[00:11:20] Speaker 00:
That's Place, Jacobson, Illinois v. MacArthur, Segura,

[00:11:25] Speaker 00:
all warrantless seizure cases.

[00:11:27] Speaker 00:
All the cases cited in my friend's opening brief have involved warrantless seizures.

[00:11:32] Speaker 00:
And there's very good reason for that.

[00:11:35] Speaker 00:
Government seizure of private property without judicial authorization really is the peak concern that is at issue here in the Fourth Amendment.

[00:11:48] Speaker 00:
However, when the government has a warrant

[00:11:51] Speaker 00:
It uses that warrant to seize property under the authority of that warrant.

[00:11:56] Speaker 00:
That interest is vindicated because at that point the seizure is complete.

[00:12:02] Speaker 00:
Now the time the government holds on to the property under that warrant, that is no longer a seizure in the ordinary sense and it's no longer a seizure in the constitutional sense.

[00:12:14] Speaker 00:
So when a search deadline lapses in a search warrant,

[00:12:18] Speaker 00:
I, you know, that's not, that may be some violation, but it's not a violation under the Fourth Amendment.

[00:12:26] Speaker 00:
Every circuit to have considered this issue, and we've cited them to the court, the 11th Circuit in Nichols, the 1st Circuit in Cyphers, the 8th Circuit in Brewer, the 10th Circuit in Burgess, all of those cases involved an expiration of an internal deadline within a search warrant.

[00:12:43] Speaker 00:
And all of those cases coalesced around the same holding, which is that unless probable cause becomes stale, the Fourth Amendment is not violated, nor does it render the search warrant invalid.

[00:12:55] Speaker 01:
And Council, why didn't probable cause become stale in this case after the 90-day initial warrants duration period?

[00:13:03] Speaker 00:
Probable cause did not become stale because the fact that Mr. Barnes was found with 115 pounds of methamphetamine worth half a million dollars in a van that he rented, that remained true within the 90 days.

[00:13:20] Speaker 00:
And it remained true that he had a cell phone on his person and that that cell phone would have likely had evidence about his drug trafficking.

[00:13:29] Speaker 00:
All of that remained true.

[00:13:31] Speaker 00:
So that's why probable cause did not become stale.

[00:13:34] Speaker 00:
And the reason that the probable cause requirement is important is because that is an explicit requirement within the Fourth Amendment.

[00:13:43] Speaker 00:
If the defendant is trying to say that, as I understand him to say, that if the government allows a search deadline to lapse and that then becomes a constitutional infringement, that is atextual.

[00:14:01] Speaker 00:
It is inconsistent with the requirements that are in the Fourth Amendment itself.

[00:14:04] Speaker 00:
Because the Fourth Amendment only requires three things for search warrants.

[00:14:09] Speaker 00:
That it be supported by a probable cause, that it be supported by an oath or affirmation,

[00:14:13] Speaker 00:
and that it described with particularity the place to be searched and the thing to be seized.

[00:14:19] Speaker 00:
And all of that was met in this case.

[00:14:21] Speaker 00:
So there is no mention of when the search needs to occur or that a warrant needs to contain a search deadline.

[00:14:29] Speaker 00:
So the defendant's argument is inconsistent with the text of the Constitution.

[00:14:36] Speaker 00:
It's inconsistent with every circuit to have decided this issue.

[00:14:39] Speaker 04:
And yet the government went and sought a second search warrant, correct?

[00:14:43] Speaker 04:
Okay, so I'm really struggling with this argument because I think based on what you're saying, there's no implication of the Fourth Amendment which I'm really struggling to wrap my head around because once the search warrant expires, the argument that Mr. Barnes no longer has a possessory interest in his property, you know, I think it's clear that he does and I think the government obviously understood that it needed to get another search warrant before searching the phone.

[00:15:13] Speaker 04:
I'm not sure why we wouldn't just move to sort of the reasonableness of the delay versus finding that there's no Fourth Amendment right that's been implicated in the first instance.

[00:15:24] Speaker 00:
Well, it's true.

[00:15:25] Speaker 00:
The government did go ahead and get a second search warrant, but I think it did that out of an abundance of caution.

[00:15:31] Speaker 00:
I think it was the right thing to do.

[00:15:33] Speaker 04:
It was the right thing to... But your argument is that it didn't need to do that because there need not be a specific deadline, and the original search warrant probable cause didn't dissipate.

[00:15:44] Speaker 04:
There are all these other factors that allow the government, because it properly sought

[00:15:52] Speaker 04:
a search warrant in the first place, that that would have been permissible to search the phone after the lapse in time?

[00:16:00] Speaker 00:
I don't think legally the government needed to do it.

[00:16:03] Speaker 00:
I think it did it out of prudence.

[00:16:05] Speaker 00:
I think it was best practices.

[00:16:08] Speaker 00:
I think if the government had not gotten that second search warrant, it would have been a more difficult question under Rule 41 about whether or not the evidence should have been suppressed.

[00:16:20] Speaker 00:
But I think

[00:16:22] Speaker 00:
our position is that because the Fourth Amendment is not actually implicated and that... You don't need to win on that argument to win this case.

[00:16:33] Speaker 04:
You agree, right?

[00:16:35] Speaker 00:
Well, we think that that is the proper way for the court to decide, but if the court is leaning in a different direction, I'll pivot to that direction and say that... Yeah, maybe you should talk about the reasonableness issue, which is the thing I was asking your friend on the other side and that I think

[00:16:50] Speaker 04:
based on the totality of circumstances and the fact that the government did go get a second warrant before searching the phone, maybe you can tell me what your arguments are with respect to the reasonableness.

[00:17:07] Speaker 00:
I'm happy to pivot to that, Your Honor.

[00:17:09] Speaker 00:
So if the court were to apply a totality of the circumstances, reasonable test, it would come out in favor of the government.

[00:17:17] Speaker 00:
The government had a very high interest in searching that phone and in holding onto that phone.

[00:17:23] Speaker 00:
The probable cause was extremely high.

[00:17:25] Speaker 00:
As I mentioned to Judge de Alba, the defendant was found with 115 pounds of methamphetamine that was barely concealed in a van that was rented under his name.

[00:17:38] Speaker 00:
That cell phone was on his person.

[00:17:41] Speaker 00:
His co-defendant,

[00:17:44] Speaker 00:
had implicated him in the post-arrest interview and also later at trial, the co-defendant had testified against him.

[00:17:51] Speaker 00:
So the government's interest in searching that phone under a second warrant was very high.

[00:17:58] Speaker 00:
The lapse of time was accidental.

[00:18:00] Speaker 00:
The government disclosed its error as soon as it found it to the district court and obtained a second warrant and timely executed that second warrant.

[00:18:09] Speaker 00:
Now, if you were to balance that against the defendant's interest, possessory interest in this case,

[00:18:14] Speaker 00:
There's no dispute that the defendant never asked for his phone back.

[00:18:17] Speaker 00:
He never did.

[00:18:18] Speaker 00:
Even though he was on bond, he was not in custody, he never asked for his phone back.

[00:18:23] Speaker 00:
As we mentioned in our brief, there was a lengthy period of time where the defendant was actually appearing on court pro se.

[00:18:31] Speaker 00:
And he was appearing on court without a lawyer.

[00:18:34] Speaker 00:
And he had some sovereign citizen beliefs.

[00:18:36] Speaker 00:
And he was challenging both the legitimacy of the court and the legitimacy of the government.

[00:18:42] Speaker 00:
But in all his arguments and grievances that he laid out before the court, he never asked for his phone back.

[00:18:49] Speaker 00:
And he never complained about the loss of his phone.

[00:18:53] Speaker 00:
explained how the loss of that particular phone prejudiced him in any way.

[00:18:58] Speaker 00:
He never told the court, hey, I don't have any other phones that I can use, or all of my precious memories are stored in that phone.

[00:19:06] Speaker 00:
He never made that showing to the court.

[00:19:08] Speaker 00:
And in the time I have left, if the court doesn't want to wade into the constitutional issue, there are numerous additional off-ramps that the court can use to affirm.

[00:19:20] Speaker 00:
This was a case that

[00:19:21] Speaker 00:
was at most negligence.

[00:19:23] Speaker 00:
It was not deliberate conduct.

[00:19:25] Speaker 00:
It was not recklessness.

[00:19:26] Speaker 00:
It was not gross or systemic negligence.

[00:19:28] Speaker 00:
So under the Supreme Court's case law in the United States versus Herring, this is not a case where the exclusionary rule should apply.

[00:19:36] Speaker 00:
The conduct here was not culpable enough under the Supreme Court's judgment that is worth the cost of exclusion.

[00:19:44] Speaker 00:
And it's not really conduct that is susceptible to deterrence because it was accidental and it happened during a very unusual time in our history where, you know, I think we all have been through COVID.

[00:19:58] Speaker 00:
The court can also affirm because the government's conduct here was in good faith.

[00:20:02] Speaker 00:
There was nothing that would lead the government to believe that it could not engage in that second search.

[00:20:08] Speaker 00:
All the cases that have addressed the, the surrogates that have addressed the issue,

[00:20:11] Speaker 00:
have said that this is not a Fourth Amendment violation unless probable cause becomes stale.

[00:20:17] Speaker 00:
The government got that second warrant.

[00:20:19] Speaker 00:
It disclosed its error.

[00:20:21] Speaker 00:
This is not the type of good faith conduct that the exclusionary rule was meant to deter.

[00:20:26] Speaker 00:
And I see I'm out of time, but we also had a very strong harmless error argument as well, and we'll submit on the briefs on that.

[00:20:33] Speaker 02:
All right.

[00:20:33] Speaker 02:
Thank you, counsel.

[00:20:34] Speaker 02:
Thank you, your honor.

[00:20:37] Speaker 02:
Mr. Molina, I'll give you a minute, even though you ran out of time.

[00:20:41] Speaker 03:
Thank you, Your Honor.

[00:20:45] Speaker 03:
Just a couple things that I'd like to mention.

[00:20:47] Speaker 03:
In terms of the government representing that they had disclosed its error in the second warrant application, what the second warrant application said as to the error was,

[00:20:58] Speaker 03:
that a previous warrant was issued given 90 days on October of 2020, that warrant was not executed.

[00:21:05] Speaker 03:
There were no further explanations, no further information only that that warrant was not executed.

[00:21:12] Speaker 03:
And in terms of the factual, the balancing test,

[00:21:18] Speaker 03:
I think that with the assertions made by the government, this calls for a factual inquiry that should be made by the district court.

[00:21:27] Speaker 03:
So if this court feels strongly about it, then I invite the court to remand the case for factual findings at the district court level so that the court can make an assessment with the actual facts of what happened.

[00:21:41] Speaker 03:
Because at the district court level, they explain it was COVID, and then at the appellate

[00:21:47] Speaker 03:
level is that they simply forgot about the cell phone.

[00:21:50] Speaker 03:
So at this junction, I don't think that the government knows what happened with the cell phone.

[00:21:58] Speaker 02:
All right.

[00:21:59] Speaker 02:
Thank you, counsel.

[00:22:00] Speaker 03:
Thank you for your time.

[00:22:01] Speaker 02:
US versus Barnes is submitted, and we will take up US versus Tovar Duran.