[00:00:00] Speaker 00:
The last case today is U.S.

[00:00:01] Speaker 00:
versus Elmore.

[00:00:04] Speaker 00:
This is 22-1432.

[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 01:
May it please the Court?

[00:00:14] Speaker 01:
Amy Senna on behalf of the appellant, Mr. Corbin Elmore.

[00:00:17] Speaker 01:
After finding his minor son suffering from a drug overdose, Mr. Elmore did everything he could to save his child's life.

[00:00:25] Speaker 01:
He summoned help from a neighbor.

[00:00:27] Speaker 01:
He asked him to call 911.

[00:00:29] Speaker 01:
He brought his son outside as close as possible to where emergency services would soon be arriving.

[00:00:35] Speaker 01:
And when emergency help did arrive, and in response to a question about what drugs his son had taken, Mr. Elmore invited emergency personnel right back into his home, into his son's room, and pointed to the source of the overdose.

[00:00:50] Speaker 01:
An open box lying on his son's bed, which was full of different vials of drugs, syringes, and other paraphernalia.

[00:00:59] Speaker 01:
The EMT then removed that box from the home.

[00:01:03] Speaker 01:
In the moment that he did, the police had no probable cause to believe that evidence of a crime would be found within the home.

[00:01:11] Speaker 01:
So the subsequent seizure of the home by police at 1130 in the morning was therefore unlawful.

[00:01:19] Speaker 01:
It's undisputed here that all of the overdose related drugs and paraphernalia were removed from the home.

[00:01:27] Speaker 01:
So the only question for this court for the probable cause analysis.

[00:01:32] Speaker 01:
You say it's undisputed that all drugs were removed from the home?

[00:01:35] Speaker 01:
All of the overdose-related drugs, Your Honor.

[00:01:37] Speaker 01:
The drugs that were used.

[00:01:39] Speaker 01:
How do we know that?

[00:01:40] Speaker 01:
The government has never argued otherwise.

[00:01:43] Speaker 01:
And the district court's probable cause determination was based on the idea that there might be other additional drugs still in the house unrelated to the overdose.

[00:01:55] Speaker 04:
I thought you were saying no drugs at all, but I get you.

[00:01:58] Speaker 01:
I apologize, Your Honor, just the overdose, the overdose related drugs.

[00:02:02] Speaker 01:
Yeah.

[00:02:04] Speaker 01:
So that's the only question for this court.

[00:02:07] Speaker 01:
And the district court's conclusion on that point is based on no facts, just generalized assumptions and speculation.

[00:02:16] Speaker 01:
And a lack of probable cause here is dispositive of this appeal.

[00:02:21] Speaker 01:
The government's only other argument regarding no suppression assumes that there's probable cause.

[00:02:27] Speaker 01:
So the parties also appear to agree that if this court concludes there was no probable cause at the outset of the seizure, then the district court erred and should be reversed.

[00:02:38] Speaker 00:
If we find that there is probable cause, but the scope of the probable cause

[00:02:46] Speaker 00:
it may be different.

[00:02:47] Speaker 00:
In other words, if we conclude that there was probable cause to search the bedroom because of the possibility that the son may have had other drugs in the bedroom, but not elsewhere in the house, does that matter?

[00:03:03] Speaker 01:
I think it does matter, Your Honor, because the challenged evidence is in the parent's bedroom on a different floor.

[00:03:12] Speaker 01:
And so there would be still...

[00:03:16] Speaker 00:
on the first floor.

[00:03:18] Speaker 01:
That's true, Your Honor.

[00:03:19] Speaker 01:
But we would just have to, in order to invoke the suppression remedy, we would just have to show that there's a causal connection between what the police did unlawfully and the challenged evidence.

[00:03:31] Speaker 01:
And we've shown that here based on the unlawful seizure.

[00:03:36] Speaker 01:
So if the court finds that anything about the seizure is unlawful, we've met that burden.

[00:03:41] Speaker 01:
And then asking what would have happened in this alternate universe

[00:03:45] Speaker 01:
was the government's burden to prove.

[00:03:47] Speaker 01:
They haven't invoked that here.

[00:03:49] Speaker 01:
So that wouldn't be part of the court's analysis.

[00:03:54] Speaker 01:
So the police here seized Mr. Elmore's home as a purported crime scene.

[00:03:58] Speaker 01:
But as this court and the Supreme Court have repeatedly said, there's no crime scene exception to the Fourth Amendment.

[00:04:04] Speaker 01:
So as we've been discussing, the police need both probable cause

[00:04:08] Speaker 01:
and an exigency at the outset.

[00:04:11] Speaker 01:
Otherwise, the seizure is unreasonable.

[00:04:13] Speaker 01:
And here, the police had neither.

[00:04:15] Speaker 01:
As we discussed, there was no probable cause because the overdose-related drugs were taken from the home.

[00:04:22] Speaker 01:
And the conclusion that there could be additional drugs in the home is just based on pure speculation that a drug user might always have more drugs in their home.

[00:04:33] Speaker 04:
But if we look to this- But we see that in all kinds of cases where that assumption is made.

[00:04:39] Speaker 01:
That's true, Your Honor, but if you look to this court's opinion in mora, the court is very clear that that's not the only assumption that's made.

[00:04:48] Speaker 01:
So to find a probable cause nexus to search a home, we can rely on an officer's training and testimony that this is an assumption based on what happens in these types of cases, but we need something more.

[00:05:02] Speaker 01:
We need additional corroborating evidence

[00:05:05] Speaker 01:
that's linked to the specific facts of this case.

[00:05:08] Speaker 04:
And that's what's missing here.

[00:05:09] Speaker 04:
Do we do anything, did the district court do anything with the fact that the defendant either drug carried, helped his son out of the house and out into the, I guess it was a driveway?

[00:05:24] Speaker 04:
Is that something the law enforcement could look at and say, what's this about?

[00:05:29] Speaker 04:
Why would you move this young man who was unconscious?

[00:05:34] Speaker 01:
We can't take that into consideration here for two reasons.

[00:05:38] Speaker 01:
The first is mora.

[00:05:39] Speaker 01:
That alone still would not be enough unless it was linked to the facts of this case.

[00:05:43] Speaker 01:
But it's even stronger here because of the facts that actually happened here.

[00:05:48] Speaker 01:
That training and experience relies on the assumption that you move someone from inside the house to outside of the house to conceal evidence from emergency personnel that might be coming to help.

[00:06:00] Speaker 01:
We know that that can't be what happened here, because immediately after EMS arrived, Mr. Elmore escorted personnel right back into the house, into the room where the overdose happened.

[00:06:14] Speaker 01:
And so he's in the exact same position, whether he moves his son or not.

[00:06:18] Speaker 01:
The only difference is that he has put his son in a position to save his life.

[00:06:23] Speaker 01:
And that's exactly what happened.

[00:06:24] Speaker 01:
He was able to get life saving treatment immediately because they didn't have to navigate a stretcher inside the house.

[00:06:31] Speaker 01:
They didn't have to get down to the basement.

[00:06:33] Speaker 01:
They were right there where he could get help.

[00:06:36] Speaker 01:
So that also adds nothing to the probable cause analysis.

[00:06:41] Speaker 01:
And we're not left with anything else.

[00:06:44] Speaker 01:
There's just speculation and unsupported officer training

[00:06:48] Speaker 01:
an experience, and that's not enough according to this court's decision in mora.

[00:06:55] Speaker 01:
Even if this court were to find otherwise that there was probable cause at the outset, we still would have to have an exigency here.

[00:07:05] Speaker 01:
And there's also no evidence that there's any sort of exigency.

[00:07:10] Speaker 01:
In MacArthur, the case that all of these rules come from,

[00:07:15] Speaker 01:
The exigency existed because the suspect would have been left alone with the contraband while officers got a warrant.

[00:07:26] Speaker 01:
And that's not what we have here.

[00:07:29] Speaker 01:
And in fact, in every case cited by the government, it was either the suspect that would have been left inside with

[00:07:35] Speaker 01:
the evidence, people that were involved in the criminal enterprise.

[00:07:39] Speaker 04:
It wouldn't be fair here for the law enforcement to think, well, perhaps the parents would try to move or conceal drugs or other illegal items if they had access to the home.

[00:07:54] Speaker 01:
Two things on that, Your Honor.

[00:07:55] Speaker 01:
The police need particularized knowledge of the evidence that they want to preserve.

[00:08:02] Speaker 01:
So just a general worry about some kind of evidence being destroyed isn't enough.

[00:08:07] Speaker 04:
If there's some drugs, there could be other drugs.

[00:08:10] Speaker 04:
There could be more drugs.

[00:08:12] Speaker 01:
Sure.

[00:08:12] Speaker 04:
If Your Honor thinks that that's what they're going with.

[00:08:15] Speaker 01:
Sure.

[00:08:15] Speaker 01:
So if that's the particularized knowledge of the evidence that they're trying to preserve, then they still need a reason to believe that the parents would act that way.

[00:08:25] Speaker 01:
Notably, the government has cited not a single case where that was the situation.

[00:08:31] Speaker 01:
And the Supreme Court has weighed in on this and said that there's no exigency when the only people that are home are unrelated to the criminal enterprise and have done nothing wrong.

[00:08:43] Speaker 01:
That doesn't provide us with a destruction of evidence exigency.

[00:08:47] Speaker 01:
And then again, here we have more.

[00:08:48] Speaker 01:
We know that Mr. Elmore was not trying to conceal evidence because he chose to escort the emergency personnel right back into his house.

[00:08:59] Speaker 04:
where the evidence was.

[00:09:08] Speaker 04:
Not exactly, Your Honor.

[00:09:14] Speaker 01:
The record shows that what happened was the EMT asked

[00:09:17] Speaker 01:
do you know what your son took?

[00:09:19] Speaker 01:
Mr. Elmore said, no, but I think there's something you should see.

[00:09:22] Speaker 01:
They go into the house and then Mr. Elmore asks an open-ended question, is this what you were looking for?

[00:09:28] Speaker 01:
He doesn't say, don't look anywhere else, only take this.

[00:09:30] Speaker 04:
Right, but the point is he focuses

[00:09:33] Speaker 04:
EMT on that box.

[00:09:36] Speaker 01:
That's true, Your Honor, because it was found on the son's bed where the son was found by Mr. Elmore.

[00:09:43] Speaker 01:
So it's not as if there's any other facts or evidence in this case for us to believe that he would have destroyed evidence on his son's behalf.

[00:09:54] Speaker 01:
And we can't just speculate.

[00:09:57] Speaker 01:
We need evidence for there to be an exigency.

[00:10:02] Speaker 01:
You know, it's not as if Mr. Wilson, the person who came into the room to help with CPR and call 911 had seen the father sliding drugs under the bed or something.

[00:10:14] Speaker 01:
Certainly that would provide an exigency, but there's nothing remotely like that here.

[00:10:20] Speaker 01:
So really the government is asking for a rule that there's an exigency anytime there's anyone left

[00:10:26] Speaker 01:
alone in a house that has evidence, and that's unsupported by Supreme Court case law and case law of this circuit.

[00:10:36] Speaker 01:
But even if the court finds that the seizure was reasonable at the outset because there was probable cause and exigency, the seizure was still unreasonable because of scope and duration.

[00:10:48] Speaker 01:
This was an extraordinary deprivation, excluding Mr. Elmore and his family from their home after their son just died,

[00:10:55] Speaker 01:
And after his wife herself was suffering from a painful medical condition and had just been released from the hospital.

[00:11:02] Speaker 00:
Do we consider the wife's deprivation and the child's deprivation or just Mr. Elmore?

[00:11:11] Speaker 00:
Both, Your Honor.

[00:11:12] Speaker 00:
How can we consider the wife or the child's, since you generally can't assert the Fourth Amendment interest of a third party?

[00:11:23] Speaker 01:
That's because the interest here is a possessory interest in the house.

[00:11:28] Speaker 01:
And so possession, of course, is exercising dominion and control over something.

[00:11:33] Speaker 01:
And so even if Mr. Elmore was not physically home, he certainly has an interest in exercising control over his home such that his wife and his child can go inside of it.

[00:11:44] Speaker 01:
So the scope was unreasonable because it was so extraordinary.

[00:11:50] Speaker 01:
And then also the duration.

[00:11:52] Speaker 01:
By the officer's own testimony, he didn't even definitively decide to get a warrant until roughly 2 p.m.

[00:11:59] Speaker 01:
And then even after that, he drove back to his office and then conducted several additional interviews.

[00:12:06] Speaker 01:
So by the time he begins working on the warrant,

[00:12:10] Speaker 01:
several hours have passed, that can't be diligence under this court's case law and under MacArthur.

[00:12:18] Speaker 01:
And if there are no questions on that point, I'd like to save the remainder of my time.

[00:12:25] Speaker 04:
I have a lot of questions, but go ahead.

[00:12:28] Speaker 04:
Oh, sure.

[00:12:28] Speaker 04:
Go ahead.

[00:12:29] Speaker 01:
No, go ahead, Your Honor.

[00:12:30] Speaker 04:
Well, I am more curious maybe than all of this, because it's so well covered in the briefs.

[00:12:36] Speaker 04:
Is there a problem here that the district court did not

[00:12:39] Speaker 04:
respond to two of the issues that I thought you had initially raised in your motion to suppress the curtailage issue and the francs issue.

[00:12:47] Speaker 01:
Those issues only come up.

[00:12:50] Speaker 01:
Your Honor, for this court, if the court determines that there's no probable cause, but for some reason decides not to suppress, and only in that situation.

[00:13:00] Speaker 04:
I wanted to hear you say that, because that's what you say in your reply brief, and I was a little surprised to see it.

[00:13:05] Speaker 04:
But thank you.

[00:13:06] Speaker 01:
The court would have to technically excise the warrant based on all the franks, assuming that they are violations, and then determine what's left if that meets probable cause.

[00:13:16] Speaker 01:
So it would depend precisely on what the court

[00:13:18] Speaker 01:
probable cause of determination is about.

[00:13:21] Speaker 01:
But if the excise warrant provides it, then yes, then the court doesn't need to reach it in that case.

[00:13:26] Speaker 01:
Thank you.

[00:13:27] Speaker 01:
Thank you.

[00:13:28] Speaker 00:
Thank you.

[00:13:29] Speaker 00:
And we'll hear from Ms.

[00:13:30] Speaker 00:
Miller.

[00:13:33] Speaker 02:
Good morning, and may it please the court, Marissa Miller for the United States.

[00:13:38] Speaker 02:
This court should affirm the order below for two independent reasons.

[00:13:41] Speaker 02:
First, the temporary seizure in this case was lawful under the Supreme Court's decisions in Segura and MacArthur.

[00:13:48] Speaker 02:
And second, even if it was not, the causal connection between the alleged Fourth Amendment violation and the evidence at issue is too weak to justify the application of the exclusionary rule.

[00:14:01] Speaker 02:
I'd like to start by making some points on the probable cause issue.

[00:14:07] Speaker 02:
I think the law is fairly well settled, and we cite the Lefebvre treatise on this, that when there's probable cause to search someone's home for evidence, the fact that they might have a specific bedroom doesn't limit the search to that room.

[00:14:20] Speaker 00:
Was there probable cause to search for firearms?

[00:14:25] Speaker 02:
I think that we frequently worry about firearms in drug cases here, I think because they suspected... So if you had come to a magistrate judge and said, we want a warrant,

[00:14:37] Speaker 00:
to search the whole house, including the upstairs bedroom for the guy who turned the sun in and showed the EMT officers the little drug stash.

[00:14:51] Speaker 00:
We wanted an affidavit to search for firearms.

[00:14:59] Speaker 00:
And the judge says, well, what makes you think that there are firearms?

[00:15:05] Speaker 00:
People that handle drugs, like this youngster that is consuming drugs, guys like that have firearms a lot of times.

[00:15:16] Speaker 00:
And so I can see some sort of very lenient magistrate judge saying, OK, well, you can search the kids' bedroom for firearms, but how in the world can you convince any magistrate judge in the United States

[00:15:31] Speaker 00:
look at the dad's bedroom for firearms.

[00:15:34] Speaker 02:
I take your point, Your Honor.

[00:15:36] Speaker 02:
But I think even if you and I disagree on whether or not there was probable cause to search for firearms, the results of this case doesn't depend on that.

[00:15:43] Speaker 00:
Well, OK, so if there's a probable cause and you go to the magistrate judge to get a warrant to search for drugs.

[00:15:51] Speaker 02:
Yes.

[00:15:53] Speaker 00:
So number one, how are you going to get an affidavit to search the upstairs bedroom, Mr. Elmore's?

[00:16:01] Speaker 00:
a room for drugs.

[00:16:02] Speaker 00:
Because Logan has access to everywhere in the house and it's... So there's a fair probability and probable cause that the youngster who's trying to hide drugs is going to hide them in his daddy's bedroom.

[00:16:15] Speaker 02:
You know, it's certainly a counterintuitive choice, but we have testimony from the detective in this case who says that when we do these drug cases,

[00:16:23] Speaker 02:
Where do we expect to find drugs?

[00:16:25] Speaker 02:
Pretty much anywhere you can hide them, right?

[00:16:27] Speaker 02:
And that's the whole point of hiding is that you don't always put them in the places people expect.

[00:16:34] Speaker 02:
The other point I guess I would make with respect to probable cause is that I don't think the Mora case helps Mr. Elmore very much.

[00:16:42] Speaker 02:
That was kind of a unique case where we're talking about human trafficking, right?

[00:16:47] Speaker 02:
The only evidence one could really think of to see in a defendant's home for human trafficking would be documents or maybe something like that.

[00:16:56] Speaker 02:
And the only justification offered by the police officers was a cell phone.

[00:17:01] Speaker 02:
Here, we're talking about drugs.

[00:17:02] Speaker 02:
We're talking about drugs anywhere you can hide them.

[00:17:05] Speaker 02:
I think that Nexus requirement is satisfied.

[00:17:09] Speaker 02:
Mr. Elmore makes a fair bit about the fact that he

[00:17:14] Speaker 02:
gave the EMTs the box of drugs that certainly can be interpreted in more than one way.

[00:17:21] Speaker 02:
But ultimately, I'm not sure it fairly factors into the probable cause analysis here because in this context, we analyzed probable cause at the outset of the seizure and the detective did not learn that Mr. Elmore gave the box of drugs to the EMT until he got to the hospital, which was after he had decided to seize this property.

[00:17:40] Speaker 00:
So if we look at the probable cause at the moment that they decide to seize the house, well, what about the stuff that's later found, you know, the colloquy about the car and the gun safe?

[00:17:55] Speaker 00:
None of that is known to the officers at that time.

[00:17:57] Speaker 00:
None of that.

[00:17:58] Speaker 00:
It's only after the detective goes, makes this long drive back to his office and they start investigating so that they acquire that additional information.

[00:18:07] Speaker 00:
So what under MacArthur allows an officer

[00:18:10] Speaker 00:
to expand the scope of probable cause, to expand the factual material in the affidavit based on investigation that's learned after the decision who initially sees the property?

[00:18:24] Speaker 02:
Certainly nothing in MacArthur allows that.

[00:18:26] Speaker 02:
The reason that that's entirely irrelevant is because of the causation analysis that we have to perform in the exclusionary rule context.

[00:18:34] Speaker 02:
So the way that we deal with that essentially is through the poisonous tree.

[00:18:38] Speaker 02:
This court has been very clear that it is the defendant's burden to establish fruit of the poisonous tree.

[00:18:45] Speaker 02:
What that means is really was the evidence at issue the product of the Fourth Amendment violation.

[00:18:50] Speaker 02:
The word the Supreme Court uses is exploitation.

[00:18:52] Speaker 02:
Did police exploit that violation to get there?

[00:18:58] Speaker 02:
Really what the defendant has to show is that in this parallel universe where the Fourth Amendment violation doesn't happen, the police never find that evidence.

[00:19:06] Speaker 02:
So assuming, and I recognize this may be a large assumption, but assuming that the court agrees with the government that there was probable cause to search this home without the additional evidence found during the seizure, then the search warrant itself.

[00:19:21] Speaker 00:
Okay.

[00:19:21] Speaker 00:
There's two things.

[00:19:22] Speaker 00:
The truck.

[00:19:23] Speaker 00:
And the gun safe, right?

[00:19:26] Speaker 00:
So how would they, so you're arguing inevitable discovery?

[00:19:29] Speaker 02:
No, we are not.

[00:19:31] Speaker 02:
We are arguing that they have not satisfied the but for requirement that this court laid out in Schramm, Suggs, and most importantly, United States versus De Luca, which is- Well, their argument is rather straightforward on the fruit of the poisonous tree.

[00:19:43] Speaker 02:
No, Your Honor, it's not.

[00:19:44] Speaker 02:
And let me explain why.

[00:19:46] Speaker 02:
So their argument is essentially that there's a causal connection here because if the police officers don't seize the home, we don't know if they would have gotten a warrant.

[00:19:56] Speaker 00:
Well, I'm not trying to quarrel with you, but I thought their argument was a little bit more nuanced than that, that they seize the house and then they investigate.

[00:20:05] Speaker 00:
Yes.

[00:20:06] Speaker 00:
That is itself an expansion of McCarthy.

[00:20:08] Speaker 02:
I know, Your Honor.

[00:20:10] Speaker 02:
Okay.

[00:20:11] Speaker 02:
So, I think, again, let me clarify.

[00:20:17] Speaker 02:
If you think we don't have enough for probable cause at the outside of the seizure without anything that happened during the seizure, then we lose.

[00:20:25] Speaker 00:
I'm not asking that.

[00:20:26] Speaker 00:
I'm asking about three and four.

[00:20:28] Speaker 02:
You're asking about three and four?

[00:20:30] Speaker 00:
And the fruit of the poisonous tree on factors three and four.

[00:20:34] Speaker 02:
Sure.

[00:20:34] Speaker 02:
I'm not sure those doctrines intersect.

[00:20:37] Speaker 00:
Well, what I guess what I'm trying to ask you is about the fruit of the poisonous tree, if it hadn't been for expanding the duration and scope of the seizure, they wouldn't have seen the gun safe and they wouldn't have had any additional information that allegedly is acquired from Elmore about

[00:20:57] Speaker 00:
the truck.

[00:20:57] Speaker 02:
Sure.

[00:20:58] Speaker 02:
Your honor, let me explain how the fruit of the poisonous tree analysis works.

[00:21:01] Speaker 02:
Not that obviously you don't understand it, but here's how I imagine it works, right?

[00:21:04] Speaker 02:
As this court said in DeLuca, the defendant has the burden of establishing that causal connection, right?

[00:21:11] Speaker 02:
So let's imagine the parallel universe where the seizure and only the seizure does not happen.

[00:21:16] Speaker 02:
Okay.

[00:21:17] Speaker 02:
So Detective Smith shows up and he's like, wow, this is really bad, but I'm not going to secure the property.

[00:21:22] Speaker 02:
And then he drives to the hospital and he tries to speak to Logan and then he

[00:21:26] Speaker 02:
tries to speak to Mr. Elmore and he can't, and he's already spoken to Mr. Wilson, so he goes back to his office and he writes up the search warrant, but because we don't have any of that other stuff about the truck or the vials, the search warrant just contains everything he knew at the beginning, which in our view is sufficient for probable cause.

[00:21:43] Speaker 02:
He submits that and the magistrate judge grants it.

[00:21:46] Speaker 02:
Now, I know that the defendant believes that that is an inevitable discovery argument, and I would like to explain, if I may, why it is not.

[00:21:53] Speaker 02:
Fruit of the poisonous tree is a threshold question on which the defendant bears the burden of proof.

[00:21:59] Speaker 02:
If and only if the defendant has satisfied that burden of proof, the burden shifts to the government to show this alternative set of facts, right?

[00:22:07] Speaker 02:
So our paradigmatic, inevitable discovery case is police illegally search a car and then we argue, well, even if we hadn't done that, you know, we would have impounded this and there would have been an inventory search.

[00:22:17] Speaker 02:
And that's not what's happening here.

[00:22:20] Speaker 02:
The defendant still hasn't established that causal connection because all Mr. Elmore has said is, well, we don't know if the detective would have gotten a search warrant, and we don't know if the magistrate judge would have granted it.

[00:22:30] Speaker 02:
And while I have responses to those arguments, the problem is that the burden is on the defendant at this stage, right?

[00:22:36] Speaker 02:
So if it's the defendant's responsibility, it's you guys, then in this alternate universe where the seizure never happens, the police don't find this evidence.

[00:22:46] Speaker 02:
The only way this happens is either there wasn't probable cause for the warrant or the detective decides not to get a warrant or the magistrate judge doesn't grant it.

[00:22:55] Speaker 04:
Give us your probable cause to secure the house.

[00:23:00] Speaker 04:
Start at the beginning.

[00:23:02] Speaker 02:
Okay, certainly.

[00:23:02] Speaker 02:
Probable cause to search the house as both the magistrate judge and the district court found arises simply... To secure the house.

[00:23:10] Speaker 02:
To secure the house.

[00:23:11] Speaker 02:
So probable cause as in like the good reason to fear

[00:23:14] Speaker 02:
Secure.

[00:23:15] Speaker 02:
Okay.

[00:23:15] Speaker 02:
Yeah.

[00:23:15] Speaker 02:
So one clue.

[00:23:16] Speaker 02:
So that comes from the fact that Mr. Elmore moved Logan outside of the home.

[00:23:21] Speaker 02:
And as the detective swore in his affidavit, in his experience, that is something people will do when there is evidence.

[00:23:30] Speaker 04:
You've got a drug overdose and you've got the movement of the young man.

[00:23:34] Speaker 02:
Well, we've got Mr. Wilson also saying the young man has a drug problem.

[00:23:37] Speaker 02:
We have the successful Narcan.

[00:23:40] Speaker 02:
Um, and then we have Mr. Logan removing, uh, sorry, Mr. Elmore removing his son.

[00:23:46] Speaker 02:
And then I would also say that the, first of all, I think the good reason to fear standard is not a very high one.

[00:23:51] Speaker 02:
As we see, if we look at the MacArthur case, um, it's a basically pure speculation.

[00:23:55] Speaker 02:
Um, and it also allows us to draw on things like life experience and common sense.

[00:24:01] Speaker 04:
And so this is, I think the reason to fear the rest of that thought is good reason to fear that there will be evidence destroyed or removed.

[00:24:09] Speaker 04:
Yes.

[00:24:10] Speaker 03:
Well, back up to step one.

[00:24:15] Speaker 03:
And what you're not adding in there is the circumstances of this particular situation where we had the father who is trying to resuscitate his son.

[00:24:27] Speaker 03:
And yes, he pulls him outside.

[00:24:29] Speaker 03:
But he also leads the EMT at the EMT's request for what drugs did he take.

[00:24:38] Speaker 03:
He says, I think I have something you might need.

[00:24:40] Speaker 03:
He brings him inside.

[00:24:42] Speaker 03:
He leads him to the son's bedroom.

[00:24:43] Speaker 03:
He leads where he found his son on the bed, where these drugs are, and where the paraphernalia is.

[00:24:50] Speaker 03:
That would seem to discount any idea that there's probably a cause to believe this father was hiding anything.

[00:25:00] Speaker 02:
Certainly, Your Honor.

[00:25:02] Speaker 02:
So to respond to that, again, because the detective doesn't know that that's something Mr. Elmore did, it doesn't

[00:25:08] Speaker 02:
It can't vitiate probable cause because the objectively reasonable officer didn't have that information.

[00:25:14] Speaker 02:
But regardless, I think what we're disputing is these two facts, right?

[00:25:18] Speaker 03:
Is that either Mr. Elmore was... He had the information.

[00:25:22] Speaker 03:
They knew what drugs... They had the box.

[00:25:25] Speaker 02:
The EMT gets the box, but the detective shows up.

[00:25:27] Speaker 02:
Nobody tells him that Mr. Elmore gave the box to the EMTs.

[00:25:31] Speaker 02:
He doesn't find out about the box until he gets... How else would they have gotten it?

[00:25:34] Speaker 03:
if they didn't go inside.

[00:25:35] Speaker 02:
But I'm not aware of anything in the record that says... Just the EMT went inside, right?

[00:25:41] Speaker 02:
Not law enforcement?

[00:25:42] Speaker 02:
Yes, the EMTs were the only ones who arrived.

[00:25:44] Speaker 02:
They arrived first.

[00:25:46] Speaker 02:
Mr. Elmore gives the box to the EMT, the EMT goes to the hospital.

[00:25:49] Speaker 02:
It's only when the detective later goes to the hospital that one of the nurses says, hey, the EMTs brought this metal box with them that the dad gave him.

[00:25:58] Speaker 02:
But I do think ultimately what this boils down to is these two facts that are susceptible to these two different interpretations, right?

[00:26:04] Speaker 02:
One of them is Mr. Elmore is trying to get the best help for his son.

[00:26:07] Speaker 02:
But one of them is as the government has argued that Mr. Elmore is essentially trying to

[00:26:12] Speaker 02:
control and limit the access of these emergency personnel into the home.

[00:26:16] Speaker 03:
That's a possibility.

[00:26:18] Speaker 03:
Your brief is full of possibilities and speculation about what could have been happening here, what the parents' motives might have been, but you've got to show a probability, and I just don't see that here.

[00:26:29] Speaker 02:
Your Honor, I think the second problem of MacArthur only requires reasonable suspicion.

[00:26:32] Speaker 03:
I'm back to the first one.

[00:26:34] Speaker 03:
I'm back to probability.

[00:26:36] Speaker ?:
Okay.

[00:26:36] Speaker 02:
I think this court will be breaking new ground if it held that, you know, on drug possession, probable cause is only limited to the room in which that individual sleeps, or it's not limited to their parents' bedroom.

[00:26:54] Speaker 02:
But, you know, we, obviously our case does very much depend on probable cause.

[00:27:01] Speaker 02:
I do think there is a causation problem here.

[00:27:04] Speaker 02:
Um, but, uh, um, I, I think that we have to, we have to prove probable cause.

[00:27:14] Speaker 02:
And so I'd love to answer any more questions about that.

[00:27:17] Speaker 02:
Um, what specifically is the causation problem?

[00:27:21] Speaker 02:
There's no, this is not the evidence that was discovered is not the, the fourth amendment violation is not the but for cause of the discovery of this evidence in the, in the situation where the fourth amendment violation doesn't happen.

[00:27:34] Speaker 02:
or there's no seizure, we still get the warrant, they still search the home, and they still find the guns.

[00:27:41] Speaker 00:
And that's predicated on the assumption that the affidavit to search the home, particularly the second floor bedroom for Elmore, would have issued in the absence of the officer observing the gun safe on the first floor and the colloquy about whatever Elmore said or didn't say about the truck.

[00:28:03] Speaker 02:
Yes, Your Honor.

[00:28:04] Speaker 00:
Got it.

[00:28:05] Speaker 02:
I see that my time has expired.

[00:28:06] Speaker 02:
We respectfully ask you to affirm.

[00:28:15] Speaker 01:
OK, thank you.

[00:28:16] Speaker 01:
So the government claims for the first time ever that Detective Smith didn't learn until after the seizure.

[00:28:25] Speaker 01:
Everybody in the district court believes that the opposite is true.

[00:28:30] Speaker 01:
It is in the district court's decision or his ruling

[00:28:34] Speaker 01:
that we need to consider what we do with the fact that the EMT had this box and brought it out of the house.

[00:28:41] Speaker 01:
I think that's enough.

[00:28:42] Speaker 03:
That's what I thought was in the district court term.

[00:28:44] Speaker 01:
Right.

[00:28:45] Speaker 01:
So I think we have to assume that Smith did have the knowledge at the time.

[00:28:50] Speaker 01:
At the time?

[00:28:50] Speaker 04:
At the time?

[00:28:51] Speaker 04:
When at the time?

[00:28:53] Speaker 04:
When he said secure the house?

[00:28:56] Speaker 04:
That's the key of time, isn't it?

[00:28:59] Speaker 01:
Exactly, Your Honor.

[00:29:00] Speaker 01:
At that time, we have to assume, based on the district court's ruling, that he was aware that the box of drugs was taken out of the house by the EMT.

[00:29:12] Speaker 01:
And importantly, there were police that were on the scene when the EMT did that.

[00:29:17] Speaker 04:
But did this detective know that?

[00:29:20] Speaker 04:
Do we have to tie it directly to him?

[00:29:22] Speaker 04:
Because he's the one that said, you know, seal the house, basically.

[00:29:27] Speaker 01:
Secure the house.

[00:29:28] Speaker 01:
I don't know that we have to tie it directly to him.

[00:29:31] Speaker 01:
There's never been an argument made about that.

[00:29:34] Speaker 00:
And then on causation, I see that I am... You can spend a few seconds to wrap up.

[00:29:41] Speaker 01:
Okay, just to wrap it up on causation, the government's entire argument hinges on an alternate universe.

[00:29:47] Speaker 01:
For causation, we're just looking at causation in this universe.

[00:29:51] Speaker 01:
Was there a connection between the illegality, the seizure, and the finding of the firearms?

[00:29:57] Speaker 01:
And we know that there was because they were able to secure a search warrant to look for and seize firearms based on what happened during the seizure.

[00:30:06] Speaker 01:
Thank you, Your Honors.

[00:30:07] Speaker 00:
All right, thank you.

[00:30:08] Speaker 00:
This matter will be submitted.