[00:00:00] Speaker 04:
Please be seated.

[00:00:07] Speaker 01:
Good morning everyone.

[00:00:08] Speaker 01:
Once again, we're delighted to be sitting here in Pasadena and we are grateful to have with us our colleague from the Seventh Circuit, Judge Hamilton.

[00:00:19] Speaker 01:
Welcome and thank you, Judge Hamilton.

[00:00:21] Speaker 01:
Thank you very much.

[00:00:22] Speaker 01:
The cases will be called in the order listed on the docket.

[00:00:25] Speaker 01:
The first case on calendar is United States versus Reiner.

[00:00:28] Speaker 01:
Counsel for appellant, please approach and proceed.

[00:00:31] Speaker 04:
Good morning, Your Honors.

[00:00:37] Speaker 04:
Good morning.

[00:00:39] Speaker 04:
Robert Schwartz and Courtney Cefale for the appellant, Christian Michael Reiner.

[00:00:43] Speaker 04:
I'm reserving two minutes for rebuttal.

[00:00:45] Speaker 01:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:50] Speaker 04:
Yes, Your Honor.

[00:00:50] Speaker 04:
All right.

[00:00:51] Speaker 01:
Thank you.

[00:00:52] Speaker 04:
This case is controlled by United States versus Anderson.

[00:00:56] Speaker 04:
The question is whether the officers created an administrative record sufficient to serve the purposes of the inventory search exception.

[00:01:05] Speaker 04:
They did not.

[00:01:06] Speaker 04:
They knew the vehicle contained numerous personal items, including firearms, ammunition, tools, and valuable property, yet they documented none of it.

[00:01:18] Speaker 04:
They wrote on the CHP 180 form, the inventory form, valuables within but identified nothing.

[00:01:26] Speaker 03:
So does this case turn on a clerical issue becoming a Fourth Amendment violation?

[00:01:32] Speaker 03:
I'm having a hard time following the logical conclusion to your argument.

[00:01:38] Speaker 03:
I mean, they did fill out the form but your argument is they didn't fill it out completely enough.

[00:01:43] Speaker 03:
Is that it?

[00:01:44] Speaker 04:
No, no, your honor.

[00:01:46] Speaker 04:
In the United States, I think we all can agree that Anderson is the controlling precedent, your honor.

[00:01:53] Speaker 03:
Well, the question is whether or not the community caretaking doctrine applied to seize the vehicle and tow it.

[00:02:02] Speaker 03:
And then the question is, I guess you're challenging the motivation of the officers as actually being more of a criminal investigative

[00:02:10] Speaker 03:
Motive than a community caretaking one is that a fair characterization of your argument.

[00:02:16] Speaker 04:
I agree with that your honor However, I would do it and I think that the I would do it in reverse that their personal motivations your honor informs whether or not that they were actually

[00:02:31] Speaker 03:
Taking care of the community but but what do we do with the district court's factual finding that the officers did not?

[00:02:37] Speaker 03:
Subjectively do so for purposes of furthering a criminal investigation Your honor the the I understand the standard of the you know standard of review is is that That you would you're not arguing that that factual finding is clearly erroneous and

[00:02:55] Speaker 04:
I think that it is clearly erroneous, Your Honor, and also Judge Carney, who I love, he did not have the benefit of Anderson at that time, Your Honor.

[00:03:07] Speaker 03:
We're talking about a factual finding here, which has always been governed by the clear error standard.

[00:03:12] Speaker 04:
That's true.

[00:03:13] Speaker 04:
Again, I think that with regard to not having the benefit of understanding how the inventory exception and understanding the

[00:03:26] Speaker 04:
just sort of the parameters of it, I think that it also can color, if you will, your view of how you view the facts.

[00:03:40] Speaker 03:
Is that your strongest piece of impeaching evidence, the incomplete CHP form 180 that must vitiate the district court's factual finding after listening to the officer testify that he was credible?

[00:03:55] Speaker 03:
and that he did not have the subjective intent to seize the car so he could search it.

[00:04:00] Speaker 04:
Your honor, I respectfully, no, that is not our strongest argument that it was the form, your honor.

[00:04:06] Speaker 04:
I think that you can look at the sequence of events.

[00:04:09] Speaker 04:
If you look at it, if you take a step back from,

[00:04:15] Speaker 04:
And just look at what occurred.

[00:04:19] Speaker 04:
Mr. Reiner was asleep in a vehicle.

[00:04:22] Speaker 04:
They come in, they knock on it.

[00:04:24] Speaker 04:
The court has the benefit of the, we submitted the actual audio.

[00:04:28] Speaker 04:
You can hear how aggressive it was.

[00:04:29] Speaker 04:
They pull him out.

[00:04:31] Speaker 04:
They search him, they find nothing.

[00:04:32] Speaker 04:
And then he volunteers, you can't search my car.

[00:04:35] Speaker 04:
Much like in Anderson, by the way, I would point out.

[00:04:38] Speaker 04:
And whether or not that this annoyed the officer, can't say.

[00:04:42] Speaker 04:
That's not on the record.

[00:04:43] Speaker 04:
But shortly he asked why.

[00:04:45] Speaker 03:
The officer testified that once he knew that there was an outstanding arrest warrant for possession of controlled substances, that it kind of raised a thought in his mind, well, why does he not want me to look in the car?

[00:04:56] Speaker 03:
But that was evidence that was brought out at the evidentiary hearing and the district court heard that.

[00:05:02] Speaker 04:
But what he testified was that he was curious about what was in the car and that he believed that there was a pipe or something.

[00:05:10] Speaker 04:
And that's why you have to hear it in context, right?

[00:05:14] Speaker 04:
It says in the sequence of events.

[00:05:17] Speaker 04:
So Mr. Reiner says you can't search my car.

[00:05:20] Speaker 04:
Things happen that's around two minutes and change around five minutes and change he says is there anything in the car I need a we worried about when he testified was for officer safety is there a gun in there but at this point he was detained and While they checked to see to verify the warrant right while while he was why would they verify the warrant he asked a second time is there anything in the in the car that I should be worried about this point

[00:05:46] Speaker 04:
He there is no evidence that he was in arms reach and this is not one of it This is not a search into incident to arrest case and then well at that point so hadn't hadn't the warrant been verified and the sergeant directed him to Take him into custody because it was a mandatory arrest.

[00:06:05] Speaker 04:
I think that's at 11 a minute 11 your honor I think we're still in five okay, and then but the court you know knows a record of

[00:06:14] Speaker 04:
Probably better than I do so why read it and then so the And then at the end your honor He then says can I search the car like he's already he's been already told three times and then can I search the car?

[00:06:29] Speaker 04:
No, you can't search the car and And here we are right the council there's nothing wrong with the repeated requests to search the car is there there is nothing wrong with the

[00:06:40] Speaker 04:
There's nothing wrong for, you know, whether or not you can ask for the weather, you can do whatever.

[00:06:44] Speaker 04:
There's nothing wrong with it, but it certainly informs, going to Judge Tallman's question, is when you look at the totality of the circumstances, it becomes clear that the towing and the

[00:07:02] Speaker 04:
inventory search is investigatory, not serving the administrative purpose, like he wants to get in the car.

[00:07:08] Speaker 02:
Sorry.

[00:07:09] Speaker 02:
That's not what the district court found.

[00:07:12] Speaker 02:
Could I ask you a quick question about the defendant's late report of having made this offer to have his wife come pick up the car?

[00:07:21] Speaker 02:
You can ask him.

[00:07:22] Speaker 02:
As I understand it, that was not sworn.

[00:07:25] Speaker 02:
It came in what amounted to a motion to reconsider before the second district judge to handle the case, right?

[00:07:32] Speaker 02:
It's something he said orally in court.

[00:07:34] Speaker 04:
Right.

[00:07:35] Speaker 04:
He made an oral statement.

[00:07:36] Speaker 04:
And actually, Your Honor, that was in front of the first district judge at a status conference.

[00:07:39] Speaker 04:
We were going to trial at that time, or he was going to trial and I was advisory counsel, and he made a statement.

[00:07:46] Speaker 04:
And again, Your Honor, you may, because this is your question, you probably know it better than I do, but that was my recollection of the hearing was he was making that statement at that time.

[00:07:56] Speaker 02:
It was not included in the original affidavit submitted in support of the motion to suppress, correct?

[00:08:02] Speaker 02:
It was not.

[00:08:03] Speaker 02:
And as I understand it, the central district has a rule on motions to suppress that says you need a declaration that states all facts then known by the defendant that support the motion, right?

[00:08:18] Speaker 04:
You do.

[00:08:19] Speaker 04:
That is a rule.

[00:08:21] Speaker 02:
Let me ask a couple of questions about this.

[00:08:26] Speaker 02:
As I understand it, you've been arguing that if that offer was made and if Officer Huang declined the offer, that would have been additional evidence of pretext, right?

[00:08:42] Speaker 02:
It would have been additional.

[00:08:43] Speaker 02:
You're not arguing that police are constitutionally required to accept such offers.

[00:08:50] Speaker 04:
I am not arguing that.

[00:08:53] Speaker 02:
My time is up.

[00:08:54] Speaker 02:
I understand, but with the judge's indulgence, I'd like to also raise a couple of questions about the Second Amendment issues in the case.

[00:09:03] Speaker 02:
I guess I'm unclear from the record we have, I'd be interested in the government's point of view about this, about the evidentiary status of that late disclosed offer.

[00:09:17] Speaker 02:
Is it in front of us?

[00:09:19] Speaker 04:
uh... your honor it's in the record uh... it will record is an unsworn assertion it's an unsworn assertion and it was uncontested by the government it was uncontested by the government at the status hearing it was an uncontested in

[00:09:34] Speaker 04:
Again, if my memory serves, it was not noted or contested by the government in their answering brief.

[00:09:42] Speaker 03:
But doesn't the, I thought that the local rule prohibited the introduction of additional evidence under the guise of a post-hearing motion to reopen or to reconsider.

[00:09:54] Speaker 04:
At that point, Your Honor, it's not a post, I mean, can I clarify?

[00:10:01] Speaker 04:
Sure.

[00:10:02] Speaker 04:
Is the court asking

[00:10:04] Speaker 04:
Since he makes this statement and it's not during the motion to suppress itself, you're saying that the court, that this court can't somehow consider this.

[00:10:11] Speaker 01:
We're not talking about this court, we're talking about the rules that were.

[00:10:14] Speaker 01:
applicable in the district court.

[00:10:16] Speaker 03:
The rule basically is designed to focus the court's attention and the party's on the issues that need to be resolved in an evidentiary hearing.

[00:10:24] Speaker 03:
That's why you have to include him in sworn declarations in support of your motion for the hearing.

[00:10:29] Speaker 03:
He didn't do that.

[00:10:31] Speaker 00:
No.

[00:10:32] Speaker 03:
And so the question is whether or not we can consider as part of that evidentiary record

[00:10:37] Speaker 03:
when it was never presented properly to the district court to be factored into its credibility analysis.

[00:10:46] Speaker 03:
I understand.

[00:10:47] Speaker 03:
Is that a fair question?

[00:10:48] Speaker 04:
It's a very, very fair question.

[00:10:49] Speaker 04:
But I would also remind, respectfully, the court that at this point in time, he had been pro se.

[00:10:57] Speaker 03:
And you were standby counsel.

[00:10:58] Speaker 04:
And I was standby counsel, but standby is tough.

[00:11:03] Speaker 03:
You were standing by, but he wasn't taking advantage of your presence.

[00:11:07] Speaker 04:
I get it.

[00:11:08] Speaker 04:
The courts read the record, and it was a difficult

[00:11:13] Speaker 04:
line to walk, and I will.

[00:11:16] Speaker 04:
So at this point, yes, but I would ask that the court not elevate, just like the government did in their answering brief, a form over substance.

[00:11:24] Speaker 04:
Yes, there are rules.

[00:11:26] Speaker 04:
The local rules say that, but the guy was pro se.

[00:11:30] Speaker 04:
If I would have done that, then I would expect you guys, I mean, your honors, to be.

[00:11:37] Speaker 04:
You saw it coming.

[00:11:39] Speaker 04:
Right.

[00:11:40] Speaker 04:
I could see how that would be.

[00:11:42] Speaker 04:
It's an important fact for you, but that's not what we have here.

[00:11:46] Speaker 04:
We have a pro se litigant doing his best and in my humble opinion, he did a pretty good job.

[00:11:53] Speaker 02:
Pretty good job.

[00:11:54] Speaker 02:
Thank you.

[00:11:54] Speaker 02:
I'm sorry.

[00:11:55] Speaker 02:
We also have these Second Amendment issues in front of us.

[00:11:58] Speaker 02:
So I understand that Duarte resolves the 922G1 issue for now, right?

[00:12:05] Speaker 02:
Yes, Your Honor.

[00:12:06] Speaker 02:
You've preserved it if things change.

[00:12:07] Speaker 02:
I preserved it.

[00:12:08] Speaker 02:
On the G9,

[00:12:12] Speaker 02:
What's your thought about how likely the Martinez panel is to resolve the issue that's in front of us?

[00:12:19] Speaker 04:
I can't remember who the panel is, otherwise I'd tell you what I thought my chances are.

[00:12:26] Speaker 02:
We want this to be a conversation.

[00:12:28] Speaker 02:
All right.

[00:12:28] Speaker 04:
But I will let the court know that I would find it very hard for either this panel or that panel to find that 922G9 is not unconstitutional, just facially unconstitutional, and definitely as applied.

[00:12:49] Speaker 04:
And the reason why, for all the reasons I stated before and Martinez,

[00:12:53] Speaker 04:
I don't think that you lose your Second Amendment rights forever on a misdemeanor.

[00:12:59] Speaker 04:
I just, I don't.

[00:13:01] Speaker 02:
But the way this charge was set up, as I understand it, he pled to the factual basis for both G1 and G9, correct?

[00:13:09] Speaker 02:
He did, Your Honor.

[00:13:09] Speaker 02:
And so if either stands, then the conviction stands, correct?

[00:13:14] Speaker 02:
Yes, Your Honor.

[00:13:15] Speaker 02:
Okay, thank you.

[00:13:15] Speaker 01:
Thank you, Counsel.

[00:13:16] Speaker 01:
We'll give you a minute for rebuttal.

[00:13:17] Speaker 02:
Thank you.

[00:13:19] Speaker 01:
All right, we'll hear from the government.

[00:13:28] Speaker 00:
Good morning.

[00:13:28] Speaker 00:
May it please the court, Hava Morel, on behalf of the United States.

[00:13:33] Speaker 00:
I want to begin with Anderson here.

[00:13:35] Speaker 00:
And it seems like the court has picked up on the obvious procedural distinction here between our case and Anderson, which is that our district court made factual findings about the officer's motives, whereas in Anderson, Judge Klausner made no findings about the officer's motives.

[00:13:52] Speaker 00:
And here, Judge Carney's findings were not clearly erroneous.

[00:13:56] Speaker 00:
It seems that defense counsel has backed away a bit from the clerical error in the CHP 180, so I'm not going to focus too much on that.

[00:14:04] Speaker 00:
Instead, defense counsel talked a lot about the sequence of events, and the government agrees that the sequence of events in this case is significant.

[00:14:13] Speaker 00:
Because if the court listens to audio exhibit A, from the outset, Officer Hwang denies any interest in searching the defendant's car.

[00:14:24] Speaker 00:
Indeed, at 2.15 of the audio exhibit, he says, I don't really care what's in the car.

[00:14:30] Speaker 00:
I just want to verify this warrant.

[00:14:33] Speaker 00:
His sole interest in his interactions with the defendant, or his principal interest, I should say, is determining whether arrest was mandatory under this warrant.

[00:14:44] Speaker 01:
Counsel, you don't deny at some point he started to ask for permission to search the car.

[00:14:50] Speaker 00:
He did ask, first he said,

[00:14:54] Speaker 00:
Is there something I should know about the car?

[00:14:56] Speaker 00:
And that was an officer safety question.

[00:14:58] Speaker 00:
And the second time, he did ask for permission to search the car.

[00:15:01] Speaker 00:
But as Magdarilla clearly states, I mean, you can have a dual motive.

[00:15:05] Speaker 00:
This officer can't... Correct, but you were saying that... Yes.

[00:15:08] Speaker 00:
We're not denying that he did ask to search the car and that he was denied permission.

[00:15:12] Speaker 00:
And that happened at, you know, 529.

[00:15:15] Speaker 00:
But even after he's denied permission to search the car, what does he do?

[00:15:19] Speaker 00:
He doesn't say, well, I'm going to try to find a way to get into it.

[00:15:21] Speaker 00:
He doesn't start searching the car right then and there.

[00:15:24] Speaker 00:
He still says to the defendant, my plan was just to cite you out, but I have to wait to hear from my sergeant whether this arrest is mandatory.

[00:15:33] Speaker 00:
So even after he's denied permission, he's telling the defendant, my plan is to just let you go.

[00:15:39] Speaker 00:
My plan is not to search this car at all, which is really the best evidence here that this officer wasn't principally or purely motivated by a criminal investigative purpose.

[00:15:54] Speaker 00:
I also want to talk about the other lack of indicia of pretext here compared especially to Anderson.

[00:16:00] Speaker 00:
In Anderson, the officers had listed only evidence, the firearms located in the car.

[00:16:06] Speaker 00:
And by contrast here, the officers listed multiple items of non-evidentiary value in the CHP 180 form, including the miscellaneous clothing, the laptop, the beady gun.

[00:16:16] Speaker 01:
But opposing counsel makes the point that there were a number of items that were not listed.

[00:16:22] Speaker 00:
Correct, but Gray and Magdarilla are still good law after Anderson.

[00:16:25] Speaker 00:
And this case is somewhere in the sweet spot between those two cases, because in Gray, for example,

[00:16:33] Speaker 00:
The officers listed only the firearms in the remarks section of the inventory form and they completely omitted the other items but just booked them as evidence.

[00:16:42] Speaker 00:
And this court said failure to complete an inventory list is not on its own a material deviation from policy and it even found that in those circumstances the officers had substantially complied with the policy and they looked

[00:16:55] Speaker 00:
They said they had complied in material respects, and they looked at other factors, including the officers obtaining a tow truck driver's signature, noting the date and time of the tow truck driver's arrival.

[00:17:07] Speaker 00:
Those in Disha are also present in this case, but we also have the officer's statements disclaiming any purely investigative motive in this case.

[00:17:17] Speaker 03:
So your argument is that a clerical error is not a constitutional violation?

[00:17:21] Speaker 00:
Correct.

[00:17:22] Speaker 00:
And I think even Anderson says as much.

[00:17:24] Speaker 00:
Anderson stands for the proposition that a clerical error can be considered in the totality of circumstances in assessing an officer's motive.

[00:17:33] Speaker 00:
But it is not purely determinative.

[00:17:35] Speaker 00:
And it wasn't determinative in Anderson either, because in Anderson, you had the proximity between the detention and the commencement of the inventory search.

[00:17:45] Speaker 00:
You had the officer's statements at the outset expressing an investigative motive where they're talking about the money in the defendant's wallet and they're talking about why the defendant has gloves, why his truck is wet.

[00:17:56] Speaker 00:
All of those facts are missing from this case, which is why this case is easily distinguished from Anderson.

[00:18:03] Speaker 00:
Could you address this offer and that to to have his wife pick up the car Yes, your honor and so as your honor correctly noted that statement was made at the July 16th 2024 status conference before Judge Anderson And it was really a hearing on the reconsideration motion There is no evidence in the record

[00:18:26] Speaker 00:
either in the sworn declaration from the defendant or from the suppression hearing that the defendant requested that his wife pick up the car.

[00:18:33] Speaker 00:
Did the government object to that statement at all or respond to it at all?

[00:18:39] Speaker 00:
I don't believe the government responded to it all because it was not made during an evidentiary hearing.

[00:18:44] Speaker 00:
and didn't have any evidentiary significance at the time.

[00:18:47] Speaker 00:
It was just a statement from a pro se counsel during the hearing.

[00:18:51] Speaker 00:
From counsel?

[00:18:52] Speaker 00:
I'm sorry, pro se defendant.

[00:18:54] Speaker 03:
Thank you, Your Honor.

[00:18:55] Speaker 03:
I assume the court was conducting the status conference to determine whether or not there was going to have to be a trial here in light of the prior ruling denying the motion to suppress.

[00:19:03] Speaker 00:
Yes, I think the status conference was intended to, because the case had been transferred from Judge Carney, it was to reassess Judge Carney's motion and eliminate rulings and also determine to assess the reconsideration motion under Anderson.

[00:19:20] Speaker 00:
But I also think that if the court looks to, if you want to probe into the veracity of the defendant's statement, the court can look to audio exhibit A at 954

[00:19:32] Speaker 00:
And there, the defendant is being asked for an emergency contact.

[00:19:36] Speaker 00:
And he denies having any information about an emergency contact.

[00:19:40] Speaker 00:
He doesn't have a number.

[00:19:41] Speaker 00:
He doesn't have a name.

[00:19:42] Speaker 00:
And so it makes it highly implausible that he's going to be asking for his wife to come pick it up when he's not even volunteering her as his emergency contact.

[00:19:50] Speaker 00:
But the court doesn't really need to even reach the wife issue, because under Torres in footnote two here, this court has said that the Fourth Amendment does not compel officers to exhaust alternatives.

[00:20:01] Speaker 02:
No, that's why I was asking earlier.

[00:20:04] Speaker 02:
I understand counsel on the other side to be arguing not that they were constitutionally required to accept such an offer, but rather that the police response to such an offer may be relevant in evaluating purpose and credibility.

[00:20:19] Speaker 02:
So I think it's still relevant if it's properly in front of us.

[00:20:26] Speaker 02:
Can I ask you about the so-called high crime area?

[00:20:31] Speaker 02:
dimension of this community caretaking function.

[00:20:36] Speaker 02:
Who's supposed to defer to whom on that determination?

[00:20:40] Speaker 02:
Police, district judge, court of appeals?

[00:20:45] Speaker 00:
Well, I think the district court made factual findings about this being a high crime area.

[00:20:50] Speaker 00:
And those factual findings are reviewed for clear error.

[00:20:54] Speaker 00:
And part of those, the basis of that factual finding was the testimony of Officer Hwang, including his affidavit.

[00:21:01] Speaker 00:
And so special deference is owed to that factual finding.

[00:21:06] Speaker 03:
Thank you.

[00:21:06] Speaker 03:
I assume the officer was testifying to what crime analysis reports for that part of the city, plus he was the beat officer for that area, so he knew the area pretty well.

[00:21:16] Speaker 00:
Yeah, he knew the area.

[00:21:18] Speaker 00:
He had also appended crime statistics as exhibits to his affidavit in the opposition to the motion to suppress.

[00:21:25] Speaker 00:
And so he had testified as to that, and the court credited that.

[00:21:30] Speaker 00:
But I understood defense counsel's argument to say, well, it's not clear.

[00:21:35] Speaker 00:
that the officer was aware of those statistics at the time that he actually decided to impound the vehicle.

[00:21:41] Speaker 00:
But there are other indicia from the time of the impoundment that does show that the officer was aware that this was a high crime area.

[00:21:49] Speaker 00:
And I can provide those to the court.

[00:21:51] Speaker 01:
Counsel, could you address the Second Amendment issue before your time expires?

[00:21:56] Speaker 00:
I think Judge Hamilton asked how likely the Martinez panel is to decide this issue.

[00:22:02] Speaker 00:
And I checked the docket last night

[00:22:05] Speaker 00:
And there was an order filed under seal yesterday, so I'm not privy to what that contained.

[00:22:11] Speaker 00:
But the most recent public pronouncement from the court was in October of 2025, where they denied the appellant's joint motion to stay the appeals pending the Supreme Court's decision in Himani, which was argued in the beginning of March.

[00:22:25] Speaker 00:
So it seems like they are poised to take this case.

[00:22:28] Speaker 02:
Do you agree that if either G1 or G9 is constitutional, this conviction stands?

[00:22:34] Speaker 00:
Yes.

[00:22:35] Speaker 02:
OK.

[00:22:36] Speaker 02:
I was a little surprised to see your waiver argument in your brief.

[00:22:42] Speaker 02:
As I understand it, the plea agreement expressly preserved the defendant's ability to challenge the constitutionality.

[00:22:49] Speaker 00:
So I want to back up and say, at this point, I think this argument is, first of all, I don't think it was a waiver argument.

[00:22:56] Speaker 00:
I think it's a plain error argument.

[00:22:58] Speaker 00:
I think under Rule 12C3,

[00:23:02] Speaker 00:
The failure to bring a Rule 12b3 motion is waiver absent good cause.

[00:23:08] Speaker 00:
And what the government did here is they said, okay, well, we're not going to argue waiver because it's in your plea agreement.

[00:23:15] Speaker 00:
We gave you a conditional plea agreement that specifically asked you or allowed you to challenge the 922G's generally.

[00:23:24] Speaker 00:
We're not going to argue waiver under Rule 1253, but we're not going to agree that you get de novo review here, rather you get plain error.

[00:23:32] Speaker 00:
And I think regardless of that dispute, it's largely academic because by the time this panel reaches or has to decide the 922G issue, it will or will not be plain error because Martinez will have preceded this case.

[00:23:48] Speaker 03:
I have to say I had the same reaction that Judge Hamilton did.

[00:23:52] Speaker 03:
Wait a second, this is a conditional plea.

[00:23:54] Speaker 03:
Of course he can challenge the results of the evidentiary.

[00:24:00] Speaker 00:
Well, I think that it is a hyper-technical argument, and I understand the optics here.

[00:24:06] Speaker 03:
It's just an odd argument to hear in a conditional plea case from the government.

[00:24:11] Speaker 00:
Right, but if you look closely at the conditional plea language, Your Honor,

[00:24:15] Speaker 00:
We don't, unlike with the suppression motion where we say there was a ruling in the suppression motion, we actually don't say that there was a ruling on the 922G issue.

[00:24:23] Speaker 00:
Right.

[00:24:23] Speaker 00:
All right.

[00:24:24] Speaker 00:
So.

[00:24:24] Speaker 00:
Thank you, Carol.

[00:24:26] Speaker 00:
Thank you, Your Honors.

[00:24:28] Speaker 01:
Let's have one minute for rebuttal.

[00:24:33] Speaker 04:
First, I want to apologize.

[00:24:35] Speaker 04:
It was at the other status hearing.

[00:24:37] Speaker 04:
I misremembered it.

[00:24:39] Speaker 04:
So start with that.

[00:24:41] Speaker 04:
Second, the court makes a comment about high crime area and what this cop, this police officer knew.

[00:24:45] Speaker 04:
I would ask the court to take a look at 2ER 279 and just the language of it.

[00:24:51] Speaker 04:
First, in paragraph 2 and 278,

[00:24:53] Speaker 04:
He'd been on the job at the time he signed the declaration for a year and a half.

[00:24:57] Speaker 04:
At the time that he actually had done this, you know, this incident occurred was one year, give or take.

[00:25:03] Speaker 03:
Also... Yeah, but I mean, he testified to events that were occurring literally the day before.

[00:25:09] Speaker 03:
I mean, okay, so he's a rookie, but he could still be aware of the fact that it's a high crime area because he works that area.

[00:25:16] Speaker 04:
Well, I would ask the court to to carefully read his declaration at 279 because in paragraphs five and six he uses the past tense when describing the the events he says I asked the defendant I had the police dispatchers conduct a record check and so forth they're all in past tense when he gets to the what the

[00:25:38] Speaker 04:
you know, what the high crime area is, he starts using the present tense.

[00:25:42] Speaker 04:
I know between September 2020 and January 2021, the months immediately preceding, this was written by, let's be real about it, this was written by the prosecutor, and he's saying, now I know, right?

[00:25:56] Speaker 03:
So I mean- Council, we're back to the same problem of the district court specifically relied on that evidence, found the officer credible,

[00:26:03] Speaker 03:
And now you're arguing, you're asking us to rewind the credibility.

[00:26:08] Speaker 04:
Well, I mean, I'm just responding to the argument about high crime.

[00:26:11] Speaker 03:
And it just isn't, I know I'm- So are you arguing that there was no, this was not a high crime area in the face of that evidence?

[00:26:18] Speaker 04:
Well, I know this is late to the game, but if the court's asking me, they used a one-mile radius as a, for this target, Your Honor, I honestly think they have forgotten

[00:26:28] Speaker 04:
8th grade math, like pi r squared, because one mile radius is 3.14 square miles.

[00:26:36] Speaker 04:
That's about a, what they use.

[00:26:38] Speaker 03:
You don't think criminals can walk more than a mile?

[00:26:40] Speaker 04:
Oh, I, so your honor, but you're here in Pasadena, your honor, if you go, if you go a mile, well, in LA I could say, you go to a mile in every direction, you go to like ultra rich,

[00:26:52] Speaker 04:
to ultra-poor or whatever the case may be.

[00:26:55] Speaker 04:
So this is not indicative.

[00:26:56] Speaker 03:
I mean, these statistics... But there was specific testimony about a car clout that had occurred right outside the parking garage the day before.

[00:27:05] Speaker 04:
But that's a catalytic converter and that's not in the parking garage.

[00:27:08] Speaker 04:
And the other one was... Your Honor, I know... We have a finding, Counselor.

[00:27:12] Speaker 01:
This is an uphill battle for you.

[00:27:14] Speaker 04:
It is an uphill battle, but the court asked.

[00:27:16] Speaker 04:
And so that's what I'm saying.

[00:27:18] Speaker 01:
All right.

[00:27:18] Speaker 01:
And we heard your response.

[00:27:21] Speaker 04:
Thank you, Your Honor.

[00:27:22] Speaker 01:
Thank you, counsel.

[00:27:22] Speaker 01:
Thank you very much.

[00:27:23] Speaker 01:
Thank you to both counsel for your helpful arguments.

[00:27:26] Speaker 01:
The case is argued and submitted for a decision by the court.