[00:00:00] Speaker 04:
arguments in this case.

[00:00:24] Speaker 04:
And we'll proceed to hear argument in the last case on calendar for argument today, which is 25-300 United States versus James Vernon Day.

[00:00:38] Speaker 04:
And we will hear first from Mr. Lacny.

[00:00:43] Speaker 01:
You may proceed.

[00:00:43] Speaker 01:
Good morning, Your Honors.

[00:00:44] Speaker 01:
May it please the Court, Peter Losney appearing for James Vernon Day Jr.

[00:00:49] Speaker 01:
If I may reserve three minutes for rebuttal.

[00:00:53] Speaker 01:
The Fourth Amendment requires both

[00:00:55] Speaker 01:
probable cause, and particularity.

[00:00:58] Speaker 01:
We talk about probable cause almost daily in criminal courts, and particularity less so, but it's just as important.

[00:01:04] Speaker 01:
As the Supreme Court reminded us in Gro, a warrant that's not particular is really no warrant at all.

[00:01:10] Speaker 01:
That's for that reason the district court erred in upholding the search in this case.

[00:01:17] Speaker 01:
When we talk about the warrants in this case, when you look at them, they are particular only on

[00:01:23] Speaker 01:
the largest macro level.

[00:01:26] Speaker 01:
They don't talk about the fact there's two residents at the property.

[00:01:29] Speaker 04:
But it makes clear that they are referencing the entirety of the property, which, you know, at least in some official sources had one number, and they said the main residents and the outbuildings, and in particular

[00:01:47] Speaker 04:
Now, it turned out his residence is not the main building.

[00:01:50] Speaker 04:
It's one of the outbuildings.

[00:01:52] Speaker 04:
But everything is covered.

[00:01:54] Speaker 04:
It's all there.

[00:01:55] Speaker 04:
So, you know, over-breath doesn't mean it's not particular.

[00:02:01] Speaker 04:
I mean, it's broad, but they had probable cause because of the nature of what they're looking for, a car which has potentially been disassembled and the pieces are scattered around.

[00:02:12] Speaker 04:
in this very large property where there were cars kind of all over the place, just why isn't that sufficiently particular?

[00:02:20] Speaker 04:
It's a lot of things.

[00:02:22] Speaker 04:
It's particularly specifying many things, but why isn't that sufficiently particular?

[00:02:27] Speaker 01:
Yes, Your Honor.

[00:02:27] Speaker 01:
It's not sufficient because of the officer's knowledge.

[00:02:30] Speaker 01:
That's where I think we need to start here.

[00:02:31] Speaker 01:
The district court went to Alexander right away in looking and holding as the court's indicating.

[00:02:38] Speaker 01:
And Alexander looks back to this case Whitney.

[00:02:40] Speaker 01:
And that's where this issue of knowledge

[00:02:42] Speaker 01:
I'm sorry, this knowledge of probable cause collapsing the particularity argument starts.

[00:02:49] Speaker 01:
And I think it starts in Whitney because their officers come up to one building and they don't know at the time of the search that the thing had been turned into two buildings.

[00:02:58] Speaker 01:
I'm sorry, two separate apartments.

[00:03:00] Speaker 01:
Whitney was a case where there was one building.

[00:03:02] Speaker 01:
You kind of enter, there's a split level.

[00:03:04] Speaker 01:
You could go high or low.

[00:03:05] Speaker 01:
And the defendant there said, well, well, well, you can't come in to the basement.

[00:03:09] Speaker 01:
That's not particular enough.

[00:03:11] Speaker 01:
And the Ninth Circuit looked at that and said that, well, you know, there's no knowledge at the time of issuance.

[00:03:16] Speaker 01:
And I think they're picking up on this idea from Garrison.

[00:03:18] Speaker 01:
At the time of issuance, they didn't know.

[00:03:19] Speaker 01:
That's different than here.

[00:03:22] Speaker 01:
I believe the record supports the idea McCarthy knows there's two homes on that residence the day before.

[00:03:28] Speaker 01:
He's told that by Mr. Day.

[00:03:30] Speaker 01:
There are two mailboxes at the end of the driveway.

[00:03:33] Speaker 01:
I know he says he didn't see them, but they're right there, just like how he could look

[00:03:38] Speaker 01:
into that property and apparently see these car parts, the mailboxes are there.

[00:03:43] Speaker 01:
So there's notice absolutely at issuance the day before.

[00:03:46] Speaker 04:
But if the goal is to look for these parts and you explain to the issuing magistrate the probable cause as to why I believe the parts are there and why I think they could be in these various buildings and I want to go into the

[00:04:09] Speaker 04:
you know, the outbuildings, which was very clearly requested and put into the warrant.

[00:04:15] Speaker 04:
Why does it matter whether the outbuilding is being used as another residence or a storage shed?

[00:04:21] Speaker 04:
Why does that ultimately matter to particularity?

[00:04:25] Speaker 04:
The magistrate judge knew that the judge was being asked to authorize a search of the outbuildings and decided to do so.

[00:04:35] Speaker 01:
It matters for two reasons, Your Honor.

[00:04:36] Speaker 01:
The first part is,

[00:04:38] Speaker 01:
To call this an outbuilding, and I know that's what the government, that's the position they take at the district court.

[00:04:44] Speaker 01:
It's not an outbuilding.

[00:04:44] Speaker 01:
It's my client's house.

[00:04:45] Speaker 01:
It was separately addressed by the time.

[00:04:48] Speaker 01:
The Fourth Amendment gives the highest protection to homes.

[00:04:50] Speaker 01:
That's from Jardin.

[00:04:51] Speaker 04:
But it also did say they wanted to search his residence specifically.

[00:04:56] Speaker 01:
It said it wanted to search 1550, which was the home of his mother, Your Honor.

[00:04:59] Speaker 01:
1552 is the home that the government's calling an outbuilding.

[00:05:03] Speaker 04:
But at the district court, McCarthy... But legally, this was one lot.

[00:05:06] Speaker 04:
I mean, it's registered, you know, for tax purposes, and if you were to sell it, it's one lot.

[00:05:13] Speaker 01:
I agree with that.

[00:05:14] Speaker 01:
The problem, though, Your Honor, with looking at probable cause for the whole lot and allowing it to somehow eviscerate particularity as to each residence, you know, that would make the particularity requirement of the Fourth Amendment a paper tiger.

[00:05:27] Speaker 01:
If essentially that argument, Your Honor, that the government made, that the district court adopted, is that if an individual, if there's probable cause to search his property, that person has common control of the whole property, the warrant doesn't have to be specific at all.

[00:05:42] Speaker 01:
You can leave that section blank.

[00:05:44] Speaker 01:
That's essentially happened.

[00:05:46] Speaker 01:
That is what happened.

[00:05:46] Speaker 01:
It grew.

[00:05:47] Speaker 01:
And now, granted, it was about things to be seized.

[00:05:49] Speaker 01:
But the court said that's facially invalid.

[00:05:51] Speaker 01:
If you don't put in there what you're looking for, then the warrant's no good.

[00:05:56] Speaker 01:
So taken to its logical extreme, that's what happens if we rely on probable cause and say particularity doesn't matter at all.

[00:06:03] Speaker 02:
Didn't the district court credit officer McCarthy's statement that he checked the 1550 address, that he looked at the database, he looked at Mr. Day's driver's license, vehicle registration, etc.

[00:06:15] Speaker 02:
So why isn't that enough?

[00:06:18] Speaker 02:
You know, the officer said he checked these different various governmental sources, it said that he lived in 1550 and the warrant describes everything in 1550, all the property in 1550.

[00:06:30] Speaker 01:
Yes, Your Honor.

[00:06:30] Speaker 01:
So I think I would look to Garrison, or I'd point the court to Garrison then.

[00:06:35] Speaker 01:
Let's say I concede it, I'm not.

[00:06:37] Speaker 01:
But let's give it to the government that, right, at issuance, McCarthy knows or thinks there's just one residence there.

[00:06:42] Speaker 01:
Once we get to execution, totally different ballgame.

[00:06:46] Speaker 01:
And Garrison says that.

[00:06:47] Speaker 01:
If officers learn during execution of a warrant that it's overbroad and not particular, they have to stop.

[00:06:52] Speaker 01:
And if they don't, a further search violates the Fourth Amendment.

[00:06:56] Speaker 01:
Setting aside what I believe or what I think the record shows about what McCarthy knew when he got the warrant, there's no question during execution he knows there's two homes there.

[00:07:04] Speaker 01:
How do we know that?

[00:07:06] Speaker 01:
He gets to the residence, shows the warrant, and Mr. Day says to him, that's not good enough.

[00:07:11] Speaker 01:
I'm in 1552.

[00:07:12] Speaker 01:
And even in McCarthy's own words,

[00:07:14] Speaker 01:
Day retreats towards his residence, his home.

[00:07:18] Speaker 01:
They talk to Miss Day, and Miss Day looks at the warrant, tells them, sorry, Jim's house across the way is 1552, this is 1550.

[00:07:25] Speaker 01:
So following the Supreme Court's lead there, Your Honor, that's the difference.

[00:07:30] Speaker 01:
Even if it issuance, he looked at the driver's license, he looked at administrative records, not determinative once he is on the scene, once he learns that the homes are different and that there's different privacy interests there.

[00:07:43] Speaker 02:
Does he have to credit Mr. Day's statement that he lives in 1552 and the officer's belief based on governmental records that everything's 1550, everything in that property is 1550?

[00:07:57] Speaker 01:
That's a fair question, Your Honor.

[00:07:58] Speaker 01:
My view is yes, that at least he's hearing this now from two people, whether he knew what issuance, I know we're setting that aside, but he hears this over and over.

[00:08:07] Speaker 01:
The officers themselves are showing reluctance to go into 1552.

[00:08:11] Speaker 01:
An excerpt to record 28, we know he wants in.

[00:08:13] Speaker 01:
An excerpt to record, McCarthy says, I want in that effing house.

[00:08:16] Speaker 01:
And he has the warrant for 1550.

[00:08:19] Speaker 01:
So there's some hesitation there to go into the home.

[00:08:21] Speaker 01:
So what he should have done, Your Honor, is simple.

[00:08:24] Speaker 01:
He could have kept the other agents that were there on scene.

[00:08:27] Speaker 01:
He could have went back to Magistrate Owen and shared with her, like the Constitution requires, that, Your Honor, there are actually two homes at this address, each with their own

[00:08:38] Speaker 01:
the address, each with their own resident and Fourth Amendment protection.

[00:08:42] Speaker 04:
So who created the separate address and for what purpose?

[00:08:46] Speaker 04:
Because there's still one legal lot.

[00:08:48] Speaker 04:
So who created it and for what purposes?

[00:08:53] Speaker 01:
I don't have the answer for your honor on that right now.

[00:08:56] Speaker 01:
I believe my client did, your honor.

[00:08:58] Speaker 04:
But some agency had to have changed it and then for what purpose?

[00:09:04] Speaker 04:
Because he still had 1550 on his driver's license, didn't he?

[00:09:07] Speaker 01:
Correct.

[00:09:07] Speaker 01:
The driver's license was obtained years prior to, well before the, I'll use the term subdivision of the lot to both 1550.

[00:09:15] Speaker 04:
But it's not a subdivision.

[00:09:17] Speaker 04:
I mean, this was, you can split a lot and then create two lots with seven.

[00:09:21] Speaker 04:
And if that were true, it would be a really different case.

[00:09:24] Speaker 04:
But it's not two lots.

[00:09:25] Speaker 04:
It's one lot.

[00:09:26] Speaker 04:
And it was presented to the magistrate as one lot with a lot of different buildings on it.

[00:09:31] Speaker 01:
Yeah, Your Honor.

[00:09:32] Speaker 01:
And I respectfully disagree that these property rights

[00:09:36] Speaker 01:
Ideas are what determine fourth amendment protection if you think of a scenario that would be pretty common in Montana or any rural area Where we have a ranch house, and there's also a hired person that helps at the ranch and the cops And it's all in one parcel.

[00:09:50] Speaker 01:
We'll go with your hypothetical.

[00:09:51] Speaker 01:
There's no subdivision one parcel two residences if law enforcement develops probable cause the ranch hand has committed a crime and They write a general warrant like they did in this case just describing the lot without a particularity

[00:10:06] Speaker 01:
direction to the officer, the ranch owner's home is subject to search just as the ranch hands.

[00:10:13] Speaker 01:
So probable cause and particularity, again, two different things, and that's why particularity exists.

[00:10:19] Speaker 01:
Otherwise, it motivates and incentivize law enforcement to write these warrants as general as possible so that if we're in a situation like this, they can say, well, we generally identified the lot, that's enough.

[00:10:30] Speaker 01:
It's not undergrowth.

[00:10:32] Speaker 03:
Does it matter that the officers saw firearms in plain view once they reached the son's house?

[00:10:41] Speaker 01:
No, your honor, because at that point they entered the son's house, which is address is 1552.

[00:10:47] Speaker 01:
They entered that before they got the subsequent warrant.

[00:10:50] Speaker 01:
They entered in the first warrant for 1550.

[00:10:54] Speaker 01:
So they go into the home, see the warrants there, and then use that observation to get the subsequent

[00:11:00] Speaker 01:
So if the first warrant's invalid as to particularity, then there's no legal entry into Sun's home.

[00:11:15] Speaker 01:
In terms of cases that are on point, I put it out in my brief.

[00:11:19] Speaker 01:
It's unpublished, but Alcazar is a case that the closest on point in the Ninth Circuit.

[00:11:24] Speaker 01:
And this is a case where agents report to the property.

[00:11:27] Speaker 01:
They find two mobile homes on it.

[00:11:30] Speaker 01:
And importantly, the officers in that case knew there were two homes on this property before they wrote a warrant, only particularly the describing one.

[00:11:38] Speaker 01:
On appeal, Alcazar says the warrant is not particular enough.

[00:11:42] Speaker 01:
And in rejecting that, or in accepting that, the Ninth Circuit pointed out specifically what officers knew at the time of execution and what they learned, or what they knew at issuance and what they learned at the time of execution also.

[00:11:57] Speaker 01:
I have a second issue I wanted to raise and talk briefly about as well, Your Honors.

[00:12:03] Speaker 01:
The district court, when I was cross-examining Deputy McCarthy in this case, the district court precluded cross-examination into some areas that were highly relevant to Deputy McCarthy's credibility.

[00:12:16] Speaker 01:
Due process, as well as the Sixth Amendment, gives a defendant the right to confront witnesses at any stage of the criminal proceedings.

[00:12:27] Speaker 01:
There's no question a suppression hearing is one of those.

[00:12:29] Speaker 01:
The government had disclosed to me Brady information early on that I began cross-examining the officer on and was precluded from exploring in depth.

[00:12:39] Speaker 01:
And as laid out in my subsequent motion to supplement the record, my efforts there were not a phishing expedition by any means.

[00:12:46] Speaker 04:
I was asking questions that would have went directly to the affidavit's credibility and questions that I believe would have the district court explicitly tell you to stop or just say kind of wrap this up move on because you actually then after the discourse where you asked another question relative to this line of questioning and then yourself stopped in my do I have that correct you're correct your honor it sounded like he was like

[00:13:12] Speaker 04:
You're getting far afield.

[00:13:15] Speaker 04:
Wrap it up.

[00:13:16] Speaker 04:
I'll give you some leeway, but not much more.

[00:13:18] Speaker 04:
I mean, you could read it that way, and it doesn't look like an order not to do it.

[00:13:23] Speaker 04:
It looks like I'm trying to balance it, and then you wrapped it up.

[00:13:27] Speaker 01:
You could read it that way, and I'll leave you with issue on it.

[00:13:30] Speaker 01:
I'm sure my friend will agree.

[00:13:32] Speaker 01:
When this district court, as much as raises an eyebrow or tells you to move on, you do it.

[00:13:40] Speaker 01:
No questions asked.

[00:13:41] Speaker 01:
That's how I took the directive and I moved on.

[00:13:45] Speaker 04:
You want to save your time for rebuttal?

[00:13:47] Speaker 01:
Yes, thank you, Your Honor.

[00:13:48] Speaker 04:
Thank you, Council.

[00:13:49] Speaker 04:
We'll hear now from Ms.

[00:13:52] Speaker 04:
Sable.

[00:13:53] Speaker 04:
Did I pronounce that correctly?

[00:13:55] Speaker 00:
Correct, Your Honor.

[00:13:55] Speaker 00:
Thank you very much.

[00:14:08] Speaker 00:
Good morning, Your Honors.

[00:14:09] Speaker 00:
May it please the court, Kelsey Sable from the District of Montana on behalf of the United States.

[00:14:14] Speaker 00:
Your Honors, the case law is clear that we view search warrants in a common sense, realistic way, looking for practical accuracy and not hyper-technical precision.

[00:14:26] Speaker 00:
Under that standard, it is clear that both the first warrant, the stolen truck warrant, and the second warrant, the firearms warrant, were sufficiently particular to describe the places to be searched.

[00:14:36] Speaker 00:
The first warrant, the stolen truck warrant, sought search of the entire property, the entire 18 acres at this address, because the entire thing was suspect for stolen vehicle parts.

[00:14:47] Speaker 00:
And it's clear that there is simply no other property that officers could have gone to under this warrant.

[00:14:53] Speaker 04:
They knew it was... Why not tell the magistrate that there's actually two separate

[00:14:58] Speaker 04:
residence here.

[00:14:59] Speaker 04:
It seems kind of like pertinent information to how widely you can search the entirety of the lot.

[00:15:07] Speaker 04:
And am I wrong in recollecting that the warrant application only mentioned one residence and didn't refer to any others?

[00:15:18] Speaker 04:
You are correct, Your Honor, that the warrant application... One thing is that it references a main residence and then it says that he lived there with his wife, the first warrant,

[00:15:28] Speaker 04:
But it doesn't say that he doesn't live in the main residence.

[00:15:32] Speaker 00:
It does not identify another residence.

[00:15:33] Speaker 04:
Your registry judge reading that would think that he and his wife live in the main residence.

[00:15:39] Speaker 00:
I think that's false.

[00:15:41] Speaker 00:
That turned out to be false, your honor, but I don't think the officers knew that.

[00:15:45] Speaker 04:
They knew that by the time of the second one.

[00:15:47] Speaker 04:
Correct.

[00:15:48] Speaker 04:
They knew that by the time and put anything in about.

[00:15:50] Speaker 00:
That's correct, Your Honor.

[00:15:52] Speaker 00:
But, you know, I think with respect to the second warrant... This isn't how it should be done.

[00:15:57] Speaker 04:
I mean, this could be done a lot more cleanly.

[00:16:00] Speaker 04:
And just give the magistrate judge the information to make the judgment.

[00:16:05] Speaker 04:
I mean, if you were writing... This came from the state system.

[00:16:10] Speaker 04:
If you were writing this, you wouldn't write it this way, I would hope.

[00:16:15] Speaker 00:
Your honor I think anyone from our office probably would include both addresses in the second warrant 1550 and 1552 and perhaps include a little additional detail I'm describing the layout of the property, but you know that's not Constitutionally required you know again.

[00:16:33] Speaker 00:
We look for practical accuracy and under the second warrant It was very clear when we view the warrant we read it as a whole That they were looking to search

[00:16:43] Speaker 04:
inside the residence of James Day.

[00:17:00] Speaker 04:
children and you know then you'd claim the magistrate judge authorized the search of that as well because it's one of the outbuildings so it's visually particular is that would that be right is that problematic well so I think two points on that your honor I think that sort of depends on on the circumstances of

[00:17:19] Speaker 00:
You know what what they're seeking to search and why you know so in this case I the The warrant and I think this is important.

[00:17:27] Speaker 00:
You know the warrant identified probable cause with respect to Mr.. Day and when they arrived on the property that day they learned that there was you know a separate residence for Mr.. Day and Mrs.. Day and you know this court's case law you know in in Whitney and the court references in Johnson which I think does stem from garrison that I

[00:17:46] Speaker 00:
When officers arrive on scene and realize that there are two separate dwelling units, they must confine their search to the residence of the suspect.

[00:17:54] Speaker 00:
And that's what officers did here.

[00:17:56] Speaker 00:
So to your hypothetical, if they were seeking to search the residence of the ranch hand and they realized that there was a residence belonging to somebody not the ranch hand, I think probably, I mean, unless the entire premises were suspect or were under common control, as this court discussed in Alexander, the appropriate course in that situation

[00:18:16] Speaker 00:
would be to confine the search to the house of the ranch hand.

[00:18:20] Speaker 00:
And I think if the contrary were true,

[00:18:22] Speaker 00:
that they were seeking to search the residence of the owner of the property and then they come, you know, on scene and realize that there's a separate dwelling unit for the ranch hand, they can find their search to the residence of the suspect, the ranch owner.

[00:18:36] Speaker 00:
You know, and I think that's more, I did want to address the Alcazar Barajas case because, you know, I think that distinction is relevant in that case as well, you know, which Mr. Day relies on.

[00:18:47] Speaker 00:
And I think that's, it's not,

[00:18:50] Speaker 00:
It's not clear necessarily from the face of the opinion, but it is clear from the briefing that was filed in that case.

[00:18:58] Speaker 00:
The opinion does reference in footnote to a fugitive, and the briefing makes clear that the fugitive they were looking for was not Mr. Alcazar Barajas.

[00:19:06] Speaker 00:
And so they go to this large rural property to search for the fugitive, and they encounter

[00:19:13] Speaker 00:
Mr.. Barajas in one of these mobile homes, and they go forward and search you know his mobile home as opposed You know when he when they know he is not the fugitive that they're looking for and I think another another fact in that case that that is incredibly important and that makes it distinguishable from this circumstance is

[00:19:33] Speaker 00:
that officers knew at the time that they sought the warrant that there were two mobile homes on the property and they only identified one of the mobile homes in in the warrant application and so there was no way for them to know which mobile home when they got there that day was the one that they were seeking to search under the warrant and so that's... At the time of the second warrant they know that what they're really interested in is one of the outbuildings and not the main

[00:20:02] Speaker 04:
the so-called main residence, yet they didn't change the formulation of the description of the property.

[00:20:11] Speaker 00:
Well, I think there's two reasons for that and for why that's not problematic, Your Honor.

[00:20:15] Speaker 00:
You know, the first is they were of the understanding, and it's supported by all of the records, the cadastral records, the driver's license, the motor vehicle registration, that the correct legal address for this property was 1550.

[00:20:28] Speaker 00:
And using that address on the warrant was an attempt to reflect the accurate legal address that they were searching.

[00:20:36] Speaker 00:
can't and shouldn't just take Mr. Day's word for it, that his house is 1552, when they did all this research beforehand to determine that the address was 1551.

[00:20:47] Speaker 00:
And I think another point, Your Honor, is that they were, you know, as Deputy McCarthy testified, they were trying to include not just inside Mr. Day's residence, but also the shop that they had already searched under the first warrant and where they had found the rifle.

[00:21:02] Speaker 00:
And that, you know, the validity of that seizure is not and has never been disputed with respect to that firearm.

[00:21:08] Speaker 00:
But they were trying to include that shop, which was located on the broader acreage that's been referred to as 1552.

[00:21:18] Speaker 00:
And another point I'd like to be sure to make with respect to the firearms warrant is that the officers, in our view, didn't even need to go back to the magistrate and obtain this second warrant.

[00:21:30] Speaker 00:
They were trying to

[00:21:32] Speaker 00:
Do everything right and be extra cautious, but they once they entered mr. Day's residence under the first warrant the stolen truck warrant and observed these firearms in plain view You know they were aware of mr. Day's felony status and so this court's case law is very clear That those firearms were immediately incriminating and they could have seized them you know but they didn't they went back to the magistrate and they explained that

[00:21:55] Speaker 00:
We searched this residence under this first warrant.

[00:21:59] Speaker 00:
We observed these firearms.

[00:22:00] Speaker 00:
Mr. Day is a felon.

[00:22:01] Speaker 00:
We want to go back in and search inside Mr. Day's residence, this place where we just viewed the firearms, to seize them.

[00:22:08] Speaker 00:
They didn't need to do that, but I think that that explanation makes really clear that when you read that second warrant as a whole,

[00:22:15] Speaker 00:
They know exactly what they're going to search under this warrant.

[00:22:19] Speaker 00:
There is no practical possibility that they're going to now go search inside the main house or search somewhere else.

[00:22:25] Speaker 00:
They're saying, we just saw firearms.

[00:22:27] Speaker 00:
We want to go back inside this residence and get those firearms.

[00:22:31] Speaker 00:
And again, Deputy McCarthy was the one who applied for and executed this warrant.

[00:22:37] Speaker 00:
So he knows exactly where he's going with respect to this warrant.

[00:22:42] Speaker 04:
I mean, but that's what's so strange in the second warrant because they're asking for permission to search any room, storage areas, cabinets, et cetera, to include outbuildings and the main residents, garages, shops, et cetera.

[00:22:59] Speaker 04:
And then, you know, they go through and say on December 19th, 2023, while serving a separate search warrant at this address,

[00:23:09] Speaker 04:
We located blah, blah, blah in the residence.

[00:23:12] Speaker 04:
The firearms were seen directly.

[00:23:14] Speaker 04:
The magistrate reading this is clearly going to think that that means the main residence and not one of the outbuildings.

[00:23:21] Speaker 04:
So I just, why was it done wrong like this?

[00:23:24] Speaker 00:
Well, so I think, Your Honor, I don't think it is wrong, but I think, you know, with the officers at the time... It is wrong.

[00:23:29] Speaker 04:
They referred to a residence.

[00:23:31] Speaker 04:
in the next paragraph and the paragraph before only refers to a main residence and they're not talking about the same building.

[00:23:38] Speaker 04:
The magistrate doesn't know that.

[00:23:41] Speaker 00:
Well, I think the officers use main residence to refer to Mr. Day's residence, because that's the residence they were always seeking to search under both of the warrants, and then that's the residence that they searched.

[00:23:53] Speaker 00:
And again, you know, they at no time searched Mrs. Day's residence.

[00:23:58] Speaker 04:
Do you actually think that main residence in there refers to the 1552 outbuilding?

[00:24:04] Speaker 00:
Well, so I think in the first warrant your honor that the main residence refers to what we later learned was Mrs. days residence and that's based on the property records because that was identified as the main residence and then the out buildings were also listed on those records and then Mr. days it turned out that one of those out buildings was converted into.

[00:24:22] Speaker 00:
Mr.. Day's residence and so we've we refer to you know the main resident in the district court sort of touched on this in its order that we've been calling you know the the Main residence we've been using that term to refer to mrs. Day's residence And because that's what was reflected in the property records you know but I think the Warren is clear that officers were trying to search day's residence and they could have they absolutely could have described it more in more detail as

[00:24:50] Speaker 00:
an outbuilding that has been turned into a separate residence.

[00:24:56] Speaker 00:
They absolutely could have said an outbuilding that's been turned into a residence that Mr. Day calls 1552 on the larger parcel of 1550.

[00:25:06] Speaker 00:
But what's clear from all of these records is that this property is one single address, whether it's 1550, 1552, or something else.

[00:25:15] Speaker 00:
This whole entire property is one plot of land.

[00:25:18] Speaker 00:
And they're trying to get onto this land to search inside Mr. Day's residence.

[00:25:23] Speaker 00:
And that's the area that they searched.

[00:25:25] Speaker 00:
There's just no possible way that these officers would go to any other property or would go to any other piece of land.

[00:25:33] Speaker 00:
under this warrant, and there's no reasonable likelihood that they would have gone in under the second warrant and searched mom's house, just because the warrant refers to the main residence, because they were very clear in the affidavit that they're looking to search inside of James Day's house, the structure where they observed these firearms.

[00:25:53] Speaker 04:
From a particularity point of view, there's no question that the second warrant does authorize searching the mom's house.

[00:26:01] Speaker 04:
Unambiguously, it does, doesn't it?

[00:26:03] Speaker 04:
I think it does, and I do think... They chose to forbear doing that, but it clearly does authorize it, doesn't it?

[00:26:11] Speaker 04:
I think it argues... You had access to that residence or no?

[00:26:14] Speaker 00:
I think he did, and I think this goes to the sort of, to the common control piece of this.

[00:26:21] Speaker 00:
I mean, you know, the officers chose not to search mom's residence, but that absolutely does not mean that they could not have searched mom's residence or did not have

[00:26:31] Speaker 00:
have probable cause to search mom's residence and the district court you know found in its order that they absolutely could have searched mom's residence because the entire premises were suspect for stolen vehicle parts and because Mr. Day was in common control of this entire residence with his or this entire property with with his mother which was supported by you know their observations of her health and physical condition by the fact that he ran the

[00:26:56] Speaker 03:
Council what would have happened if say the property record showed one address for 18 acres?

[00:27:02] Speaker 03:
But Mr.. Day had gone around and hung signs up four different signs at various parts that subdivided the number And it's not in any official record anyway.

[00:27:11] Speaker 03:
It's just something he did What impact would that have on on what could be searched?

[00:27:17] Speaker 00:
I don't think that would have an impact, Your Honor, because as the stolen truck warrant establishes, you know, this is one whole property and all of that property is suspect for stolen vehicle parts.

[00:27:30] Speaker 00:
And the officers knew that at the time they searched the warrant because they observed

[00:27:35] Speaker 00:
you know, disassembled vehicles all over this property.

[00:27:38] Speaker 00:
So if part of the property was 1550, part of it was 1552, part of it was 1554, according to Mr. Day, I mean, they sought and obtained authorization to search every piece of it.

[00:27:50] Speaker 00:
And every piece of it, you know, there was probable cause for stolen vehicles.

[00:27:54] Speaker 00:
So I don't think that changes the analysis, Your Honor.

[00:27:57] Speaker 00:
And I did just want to address briefly the issue with respect to

[00:28:02] Speaker 00:
Cross examination of Deputy McCarthy, you know, we think it's clear from the record that the district court did not restrict.

[00:28:08] Speaker 00:
Mr. Days cross examination.

[00:28:10] Speaker 00:
He might have expressed some hesitation or skepticism about the relevance of this nature of this line of questioning, but he did not tell him he could not cross Deputy McCarthy.

[00:28:21] Speaker 00:
And we know that because he asked an additional follow-up question during his cross after the district court interjected You know I think it's also not entirely clear What of you know the issues raised in the motion to supplement the record would have come out on cross examination?

[00:28:36] Speaker 00:
But even assuming all of them did It doesn't really change the analysis in this case and on these facts because everything deputy McCarthy did and said and testified to is supported by a

[00:28:50] Speaker 00:
Independent records the property records the drivers license records the body cam records.

[00:28:55] Speaker 00:
I mean there's there's just There's nothing that would have come out from any cross examination that would have changed the facts or the court's analysis in this case So we respectfully request that this court affirm all right.

[00:29:06] Speaker 00:
Thank you.

[00:29:07] Speaker 04:
Thank you counsel.

[00:29:07] Speaker 01:
We'll hear rebuttal now Your honors a lot of what the government said in response was this I

[00:29:17] Speaker 01:
McCarthy knew what he wanted to search, no harm, no foul.

[00:29:22] Speaker 01:
That completely inverts the Fourth Amendment requirement that a magistrate approve, not just probable cause, but particularity.

[00:29:29] Speaker 01:
The magistrate has to know.

[00:29:30] Speaker 01:
The magistrate has to give the authority to do that.

[00:29:34] Speaker 01:
And saying that McCarthy knew the place he wanted to go, I fundamentally disagree with that, somehow resolves the case.

[00:29:41] Speaker 04:
Do you dispute that Day had

[00:29:45] Speaker 04:
common control over the entirety of the property.

[00:29:49] Speaker 04:
Was there any portion of the property that he did not have control or access to?

[00:29:54] Speaker 01:
That's a fair reading of the record.

[00:29:55] Speaker 01:
I'm not conceding that, Your Honor, but it's a fair reading.

[00:29:58] Speaker 01:
I could see how the district court came to that.

[00:30:00] Speaker 01:
It wasn't really litigated at the district court level.

[00:30:02] Speaker 01:
There was not a lot of discussion.

[00:30:05] Speaker 01:
You know, one thing I'd point to the court is the government, like I said, if you take that common control, which to me is a probable cause issue, not a particularity one, and that's where

[00:30:15] Speaker 01:
If we keep these ideas separate, which they are, they serve different purposes.

[00:30:19] Speaker 01:
Probable cause is, is there going to be evidence of crime?

[00:30:22] Speaker 01:
Particularity is, where is it?

[00:30:24] Speaker 01:
If you take common control, like I said in the ranch hand example that the court brought up, it swallows the ranch owner's Fourth Amendment right to be free of unreasonable search and seizure if some type of common access to the property is determinative.

[00:30:38] Speaker 01:
And I'll leave the court with this, too.

[00:30:39] Speaker 01:
It's a quote from Marilyn v. Garrison, and this is key to the question of notice.

[00:30:43] Speaker 01:
There's this idea that, you know, he looked at all the property records and looked at the driver's license.

[00:30:48] Speaker 01:
There's no dispute.

[00:30:49] Speaker 01:
When he gets on that property, he knows there's two homes.

[00:30:52] Speaker 01:
He sees them.

[00:30:53] Speaker 01:
He doesn't have to take day's word for it.

[00:30:55] Speaker 01:
He sees there's two homes.

[00:30:56] Speaker 01:
There's some trepidation into going home, too.

[00:30:59] Speaker 01:
And the Supreme Court wrote about the cops in Garrison, as the officers recognized,

[00:31:03] Speaker 01:
They were required to discontinue the search of respondents' apartment as soon as they discovered there were two separate units on the third floor and therefore were put on notice of the risk they might be in a unit erroneously included within the warrant terms.

[00:31:17] Speaker 01:
That carries the case, Your Honors.

[00:31:19] Speaker 01:
If nothing further, I'd submit.

[00:31:22] Speaker 04:
All right.

[00:31:22] Speaker 04:
Thank you, counsel.

[00:31:23] Speaker 04:
The case just argued will be submitted.

[00:31:26] Speaker 04:
And the court for this day will stand in recess.

[00:31:33] Speaker 03:
I'll rise.