[00:00:02] Speaker 01:
Our next case is 23-12-40, United States versus Gay.

[00:00:12] Speaker 02:
May it please the court, Jessica Stengel appearing on behalf of Mr. Joseph Gay.

[00:00:17] Speaker 02:
But for a few very carefully drawn exceptions, the Fourth Amendment strictly prohibits warrantless, suspicionless, and nonconsensual searches and seizures.

[00:00:36] Speaker 02:
Yet, all of the evidence used in this case was obtained in contravention of the Fourth Amendment.

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There were two distinct Fourth Amendment violations.

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First, we have the overbroad warrant.

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And second, there was the warrantless, suspicionless, and nonconsensual search and seizure that happened at Denver Health.

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And unless the court has a preference in the order in which I address them, I'll begin with the warrantless search and seizure that happened at Denver Health.

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This can only be described as furthering the state's general interest in law enforcement.

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So the Supreme Court has made clear that while in special needs cases, state actors may not need a warrant or suspicion in order to conduct a certain seizure.

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However, in those limited instances, they have been entirely divorced from the state's general interest in crime control or law enforcement.

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And that cannot be said here.

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Denver Health.

[00:01:41] Speaker 01:
Why did Mr. Gaye have

[00:01:44] Speaker 01:
a property or a privacy interest in an instrument of a crime that was inflicted on him.

[00:01:53] Speaker 01:
I mean, he claimed that he'd been shot by an intruder.

[00:01:56] Speaker 01:
It wasn't the bullets in him, but it's evidence of a criminal conduct that the police are going to use to investigate the crime.

[00:02:12] Speaker 01:
I just think it's kind of an unusual argument that because I've been shot and the bullet's still in my body that it's mine and I have a privacy interest in it.

[00:02:23] Speaker 01:
I mean, what if he'd been stabbed and the knife was sticking out of his shoulder and the surgeons removed the knife at the hospital?

[00:02:32] Speaker 01:
Is that problematic under the Fourth Amendment, if the police take it as evidence of a crime?

[00:02:41] Speaker 02:
Your Honor, I would say that it is.

[00:02:43] Speaker 02:
I would say when you submit to any type of medical treatment, there is a reasonable expectation of privacy that the result of that treatment will not be disseminated to minimally non-medical personnel, but it certainly will not be shared with law enforcement for the sole purpose of furthering the state's general interest in criminal control.

[00:03:04] Speaker 01:
Well, I agree at a general level, but here we're talking about evidence of a crime, physical evidence of a crime that's not the victims.

[00:03:13] Speaker 01:
I mean, why would he have any interest in it under the Constitution?

[00:03:17] Speaker 02:
I think why is sort of a fun question, but not really germane to the Fourth Amendment.

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I think the notion more is that it will contain evidence that says something about him.

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And again, it is no different than the officer being in the operating room without a warrant.

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without consent and without reasonable suspicion saying, and the officer is the one actually taking the bullet out, logging the chain of custody, putting it into the evidence bag, saying that it might be related to some crime.

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And under that guise, Your Honor, I would say this is no different than what happened in the city of Minneapolis versus Edmonds, where clearly there was a general interest in getting drugs off the street.

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And so they were doing these spot checks, random roadblocks,

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And the Supreme Court said very clearly, you bet.

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That's a great idea, Indianapolis.

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You need to get drugs off the street.

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However, you have nothing more than this generalized interest in law enforcement.

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And that doesn't suffice when you're talking about someone's Fourth Amendment rights.

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And there is nothing different in this case.

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I would submit to the court.

[00:04:27] Speaker 01:
Mr. Gay had called 911 and said an intruder forced me to swallow poison and you know, I think I'm dying.

[00:04:39] Speaker 01:
They come, he's taken to the hospital, the hospital pumps his stomach and then they test the fluid to see

[00:04:52] Speaker 01:
to make sure it was poison and that he was not threatened.

[00:04:57] Speaker 01:
Would that be an illegal search?

[00:04:59] Speaker 02:
Absolutely, Your Honor.

[00:05:00] Speaker 02:
Under that guise, I would submit to the court that you're saying calling 911 obviates the Fourth Amendment.

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And I don't think that we are ready to create such a limitless world, because essentially that would invite the intrusion of law enforcement into daily American life.

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And we also don't want to deter people from calling 911 on the off chance that something that will be found during the 911 call can then subsequently be used in a criminal prosecution.

[00:05:29] Speaker 02:
The Fourth Amendment does have limits, and I think we have given that Denver Health is a state actor.

[00:05:34] Speaker 02:
There was no warrant.

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There was no consent.

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The extensive involvement in law enforcement in the collection of evidence and the preservation of evidence solely for the purpose of future prosecution cannot be sanctioned.

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So that would eliminate the bullet that they took out of Mr. Gay.

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And that was absolutely used in obtaining his conviction.

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Then we have everything that was seized pursuant to what can only be described as an overbroad or an otherwise general warrant.

[00:06:01] Speaker 03:
Well, counsel, can I stop you before you move on?

[00:06:03] Speaker 03:
Could you address the implied consent argument that this was a medical emergency, the impliedly consented to being treated?

[00:06:14] Speaker 02:
Absolutely, Your Honor.

[00:06:16] Speaker 02:
Implied consent, quite in my very non-esteemed opinion,

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doesn't play a role in the Fourth Amendment argument.

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He's not consenting to law enforcement involvement.

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He is consenting to medical treatment.

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And again, it comes back to what the court noted in Ferguson, is that we have a reasonable expectation of privacy

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when we seek medical treatment, that the results of that treatment will not be disseminated to non-medical personnel.

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And I would say more broadly, it will not be disseminated, or more specifically, excuse me, it will not be shared with law enforcement for the explicit purpose of future prosecution.

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So in other words, if you consent to medical treatment, anything that is produced in that medical treatment can never be given to the place.

[00:07:05] Speaker 02:
Never is a strong word your honor.

[00:07:07] Speaker 03:
I would say that absent a warrant or absent consent it could not be shared with law enforcement So after they took the bullet out they should have asked him can it can we give this to?

[00:07:19] Speaker 02:
Law enforcement absolutely or law enforcement could have done their job and secured a warrant Either way yes, okay.

[00:07:28] Speaker 01:
Thank you does it matter that Mr.. Gay lied about the

[00:07:33] Speaker 01:
No, not at all.

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The reasonable expectation of privacy that we enjoy when we seek medical treatment is not dependent on us lying to the police or not.

[00:07:45] Speaker 01:
Well, I just think about a case we had a couple of terms ago.

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There was a backpack nearby.

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The defendant denied that it was his property.

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The court had to consider whether that was abandoned property.

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That's one of the arguments here.

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But Mr. Gay denied ownership of the bullet.

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The fact that it was in his body doesn't make it any... It's not his property.

[00:08:21] Speaker 01:
He's denied that he shot himself.

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What's the difference?

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The difference is you are taking something out of a person...

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person's body strictly to create evidence for future prosecution.

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And abandonment is a very specific doctrine under the law, and it requires knowing disavowal or knowing separation of a person from that thing.

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And so abandoning the backpack is fundamentally different than saying somebody shot me.

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And if the bullet had gone through his body and was on the floor, no problem.

[00:08:55] Speaker 02:
We'd be in a very different situation, Your Honor.

[00:08:58] Speaker 02:
So with a little bit of time remaining, with the court's permission, I would like to address the overbroad warrant.

[00:09:04] Speaker 02:
This is a case where the warrant itself lacked any discernible limits.

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There was no crime identified.

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There are no limits as to what can be searched and seized.

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And quite frankly, all of the evidence seized reflects the limitless nature of this particularly overbroad warrant.

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The four corners of the warrant make clear that it's uncertain as to what

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Police are investigating, and then the Fourth Amendment lets us know that the particularity requirement has multiple pieces.

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It requires both a showing of probable cause and for the warrant to particularly describe the place to be searched and the persons or items to be seized.

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Admittedly, this warrant particularly described the place to be searched, but nothing else was there.

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And good faith cannot save this overbroad warrant.

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It is evident from the face of the warrant that law enforcement had no guiding principles in terms of what to search or seize.

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And the purpose of the exclusionary rule is to prevent law enforcement from knowingly violating the Constitution.

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And under the government's interpretation of this case, the consequences of allowing the evidence from seize as a result of this overbroad warrant

[00:10:21] Speaker 02:
are many.

[00:10:22] Speaker 02:
First of all, allowing the evidence to remain intact would basically rewrite the Fourth Amendment so that the particularity requirement is no longer in stead.

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Second, it would turn the reviewing judicial officer into a meaningless rubber stamp.

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And third, it would effectively eliminate any good faith analysis, because with an overbroad warrant, all that would be required to save it is a creative prosecutor after the fact to come in, map on one to seven potential crimes,

[00:10:55] Speaker 01:
If we incorporate the affidavit, doesn't that, and I know you disagree about that point, and I assume that we can incorporate it, doesn't it fairly describe the distinct crime of aggravated robbery?

[00:11:13] Speaker 01:
And I think you might construe it as describing the distinct crime of false reporting.

[00:11:21] Speaker 01:
And why isn't that enough to narrow

[00:11:25] Speaker 01:
brought of the warrant.

[00:11:28] Speaker 02:
I would say it does not distinctly describe the crime of aggravated robbery.

[00:11:32] Speaker 02:
And clearly, using the language from the affidavit where the officer in his concluding statement says that he believes Gaye may have shot himself, may is simply indicative of a possibility.

[00:11:44] Speaker 02:
It is not the probable cause that would warrant a man of reasonable caution to believe that a crime has been or is being committed.

[00:11:55] Speaker 02:
Further evidence of the lack of particularity in the affidavit comes on page 69 in volume one of the Record on Appeal, where the United States, in arguing that the warrant was not overbroad, says, well, he's either describing false statement or possibly an attempt to influence a public servant.

[00:12:14] Speaker 02:
Again, it's simply a matter of, can a prosecutor come up with some potential crimes that could maybe be mapped on to the factual situation?

[00:12:20] Speaker 02:
And that's not what the Fourth Amendment requires.

[00:12:23] Speaker 02:
That's too late and after the fact.

[00:12:26] Speaker 02:
And unless the court has further questions, I would like to reserve my time for rebuttal.

[00:12:30] Speaker 01:
May, thank you.

[00:12:46] Speaker 00:
May it please the court, good morning.

[00:12:47] Speaker 00:
Alexander Duncan on behalf of the United States.

[00:12:50] Speaker 00:
I'd like to first talk about how the warrant in this case was sufficiently particularized.

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Here we have a warrant that gives a description of suspected criminal activity, and that is specific enough to give those executing officers guidance to distinguish between items that may or may not be seized.

[00:13:10] Speaker 00:
Here, as the court is aware, Mr. Gay called 911.

[00:13:14] Speaker 00:
He reports that he's been shot, but he doesn't say he did it himself.

[00:13:18] Speaker 00:
He says that someone else shot him.

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During the course of the 911 call, officers respond, and they see some bad shape.

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He's on the ground.

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He's bleeding.

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They apply a tourniquet.

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And when paramedics come, they then get him to the hospital.

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Those responding officers then start to think, this might not add up.

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Based on the fact that no one else is in the building, there's no signs of forced entry, shell casings on his desk near where he was down on the ground, they start thinking that maybe he shot himself.

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So they secure his office.

[00:13:57] Speaker 00:
They call Detective Long, and Detective Long then gets a search warrant.

[00:14:01] Speaker 00:
He includes many of the facts that have just listed to the court here.

[00:14:04] Speaker 00:
He includes the facts that he knew at the time.

[00:14:07] Speaker 00:
And at the end, he says, based on his experience, he thinks that Mr. Gaye may have shot himself.

[00:14:13] Speaker 00:
So all of those facts that are on the face of the affidavit show that the officers are investigating, as Judge Timkovich, you alluded to, a crime of false reporting.

[00:14:24] Speaker 00:
Because it's a crime to call 911 and say that you're reporting a crime that didn't actually happen here.

[00:14:31] Speaker 01:
Why aren't you also arguing that there's a plausible report of aggravated robbery?

[00:14:37] Speaker 00:
Your Honor, not aggravated robbery here.

[00:14:39] Speaker 00:
That comes more for when we're at the hospital, what the hospital could have thought when they see the bullet in plain view, that that's going to be evidence of some crime.

[00:14:50] Speaker 00:
Here, based on the affidavit, it seems that it's false reporting and that the underlying crime for that, to see whether or not he has falsely reported a crime, relates to a shooting.

[00:15:01] Speaker 00:
And so that could relate to the reckless discharge of a weapon as well.

[00:15:08] Speaker 00:
But essentially, there's a small little constellation of criminal conduct here that the officers are investigating.

[00:15:14] Speaker 00:
They're investigating essentially whether he shot himself, because if he did shoot himself, that would mean that he has committed the crime of false reporting.

[00:15:21] Speaker 00:
So to get to the affidavit, the court has to ensure that it was attached and incorporated here.

[00:15:28] Speaker 00:
Mr. Gaye makes arguments about attachment in this case.

[00:15:33] Speaker 00:
There's no question that the affidavit was incorporated here.

[00:15:36] Speaker 00:
The government believes that those arguments are both waived via invited air or because he intentionally relinquished those arguments.

[00:15:46] Speaker 00:
If those are merely forfeit, then they go through the plain air standard and he can't meet the plain air standard here.

[00:15:52] Speaker 00:
He can't meet it because we don't see an error here below the government in response to Mr. Gay's brief at the district court.

[00:16:04] Speaker 00:
Mr. Gay at the district court says, Judge, please consider this incorporated affidavit.

[00:16:08] Speaker 00:
Look how broad it makes this warrant.

[00:16:12] Speaker 00:
The government said, we understand he's not talking about attachment here.

[00:16:16] Speaker 00:
He's not challenging that.

[00:16:18] Speaker 00:
And then in its reply brief, Mr. Gay again says, he doesn't mention attachment.

[00:16:24] Speaker 00:
He once again mentions the affidavit, how incorporated it is, and because of the affidavit that now we have a general warrant.

[00:16:32] Speaker 00:
So for those reasons, we believe that waiver of forfeiture applies here.

[00:16:35] Speaker 00:
But substantively here, the court had a record on which it could find that the warrant was attached.

[00:16:40] Speaker 00:
the government provided the warrant and the affidavit to the court.

[00:16:44] Speaker 00:
And that warrant and affidavit, they're signed by the same county court judge, the Denver County court judge, at the same time.

[00:16:51] Speaker 00:
So that is evidence of attachment here.

[00:16:54] Speaker 00:
Next, if the court disagreed, obviously, the next step is severance.

[00:16:59] Speaker 00:
The district court didn't do that in this case.

[00:17:01] Speaker 00:
The government didn't request severance, and instead it went to good faith.

[00:17:06] Speaker 00:
However, under severability analysis, at worst, this would be an overly broad warrant, not a general warrant under CODO.

[00:17:14] Speaker 00:
which Your Honor wrote, this court could perform a severability analysis if it wanted to and merely sever an overbroad portion.

[00:17:23] Speaker 00:
The guns, the ammo portion, the clothing portions, those are admissible here.

[00:17:28] Speaker 00:
And the court could affirm on those grounds.

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Finally, the court could also take a look at good faith.

[00:17:34] Speaker 00:
The district court did that here, and I think that we have all the hallmarks of good faith.

[00:17:39] Speaker 00:
In this case, we have a detective who writes an affidavit, and he includes all the facts that he knows at the time.

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It's not one of these cases where he's omitting facts.

[00:17:49] Speaker 00:
He says plainly in there, we think Mr. Gay may have shot himself.

[00:17:53] Speaker 00:
If he didn't say that, we may be here under a different standard, a Frank standard, omitting material facts, but he tells

[00:17:58] Speaker 00:
the county court judge everything.

[00:18:01] Speaker 00:
But before he tells the county court judge everything in the affidavit, he goes to a prosecutor who reviews the warrant.

[00:18:06] Speaker 00:
The judge then signs the warrant.

[00:18:08] Speaker 00:
The judge signs the affidavit.

[00:18:10] Speaker 00:
Detective Long is the detective who then executes the search, and he only then collects evidence of items that is directly related to that search.

[00:18:21] Speaker 00:
So here this is the case, the normal case where officers are acting in good faith and there's really nothing to deter here.

[00:18:30] Speaker 01:
Is it problematic that he doesn't say in the affidavit that he suspects the crime of false reporting?

[00:18:36] Speaker 00:
Your Honor, under Lee, I think the facts on the face of the affidavit do give rise to specific criminal conduct here, which give the executing officers guidance about what they can and can't serve.

[00:18:50] Speaker 00:
Would it be better if you put in a statutory site?

[00:18:53] Speaker 00:
Yes.

[00:18:53] Speaker 00:
Is it fatal to the particularity analysis?

[00:18:55] Speaker 00:
No.

[00:18:57] Speaker 00:
Lee was a little more specific than we have here.

[00:19:01] Speaker 00:
Lee, here we do have.

[00:19:05] Speaker 00:
Lee is somewhat distinguishable, I think, Your Honor, but I think also a statutory site won't necessarily only save the warrant here, too.

[00:19:13] Speaker 00:
For instance, as this Court has held, a statutory site to the general federal conspiracy law, that won't save, that won't particularize a warrant, nor will a general site to the import-export laws.

[00:19:25] Speaker 00:
when you know more facts.

[00:19:27] Speaker 00:
So here, this wasn't a warrant to search for any time that Mr. Gay had talked to law enforcement.

[00:19:36] Speaker 00:
Did he lie in any of those other occasions?

[00:19:38] Speaker 00:
It was a specific occasion.

[00:19:39] Speaker 00:
The warrant also didn't allow them to seize any items related to, say, tax fraud, anything else that could have been in his office that could have been criminal activity.

[00:19:49] Speaker 00:
We don't have anything that relates to that.

[00:19:51] Speaker 00:
So, Your Honor, no, I would say

[00:19:54] Speaker 00:
It's not fatal to the Warren under particularity or under the good faith analysis.

[00:20:00] Speaker 00:
If the court doesn't have any more questions there, I'll turn to the bullet in this case.

[00:20:05] Speaker 00:
And here, in this case, it's undisputed that no one ever got a warrant for that bullet.

[00:20:13] Speaker 00:
But here, no warrant was ever necessary.

[00:20:16] Speaker 00:
And we have a few exceptions to the Fourth Amendment that the government is relying on here.

[00:20:22] Speaker 00:
The first one is consent.

[00:20:24] Speaker 00:
Mr. Gaye called.

[00:20:25] Speaker 00:
911, and he said, I've been shot by a masked man.

[00:20:31] Speaker 00:
And he clearly is not doing well.

[00:20:34] Speaker 00:
At one point, the 911 operator says, they were having some trouble finding exactly where you are, because he's giving them different addresses.

[00:20:41] Speaker 00:
Can you stand up and let us know if there's any cross streets?

[00:20:43] Speaker 00:
And he says, no, I can't stand.

[00:20:46] Speaker 00:
So when the officers get there, he's on the ground.

[00:20:49] Speaker 00:
He reports to the 911 operator that he's bleeding heavily.

[00:20:52] Speaker 00:
That's true.

[00:20:56] Speaker 00:
arrived, they see that he isn't doing well, like I said.

[00:21:00] Speaker 00:
Paramedics arrive, and then the paramedics tell him, hey, we're going to get you to the hospital.

[00:21:04] Speaker 00:
And he says, OK.

[00:21:06] Speaker 00:
So here he's consenting to the medical treatment at issue.

[00:21:11] Speaker 00:
I don't think there's really a debate about consent in this case here.

[00:21:17] Speaker 00:
And he never revokes or limits that consent, which is also an important factor in this case because he did report a crime.

[00:21:26] Speaker 00:
He reported that someone else shot him, and there is a governmental interest in ensuring that the government investigates and catches and ultimately holds responsible people who shoot others.

[00:21:35] Speaker 00:
Now, that ended up not being true.

[00:21:39] Speaker 00:
But he did report a crime.

[00:21:41] Speaker 00:
He consented.

[00:21:42] Speaker 00:
And that consent, he never limited that consent in any way.

[00:21:46] Speaker 00:
And that consent was ongoing.

[00:21:48] Speaker 03:
Well, counsel, can I just stop you there?

[00:21:50] Speaker 03:
So your opponent suggests maybe he consented to getting the bullet out and saving his life, but he didn't consent to giving the bullet to the law enforcement authorities.

[00:22:02] Speaker 03:
Yes, Your Honor.

[00:22:03] Speaker 03:
Tell me how the consent would cover giving the bullet over to authorities.

[00:22:08] Speaker 00:
Absolutely.

[00:22:09] Speaker 00:
So here he's reporting a crime, and that's important because that consent would then relate to the bullet, which is evidence of that crime as well.

[00:22:19] Speaker 00:
So there's, I think, implicit consent that there is going to be law enforcement engagement here.

[00:22:27] Speaker 00:
Your Honor, I'd also like to discuss exigency and the Plainview Doctrine as well, because I think those come into play as well.

[00:22:36] Speaker 00:
Here there's an exigent circumstance to save his life.

[00:22:41] Speaker 03:
How does that get you to turning the bullet over to authorities?

[00:22:46] Speaker 00:
Under plain view, Your Honor.

[00:22:48] Speaker 00:
Because once someone sees the bullet in his body, that's plain view that it's evidence of a crime.

[00:22:55] Speaker 00:
There's probable cause that either he recklessly shot himself or as Judge Timkovich mentioned earlier, that it could be an assault of him.

[00:23:02] Speaker 00:
And especially where the bullet is in his body here.

[00:23:05] Speaker 00:
We have a bullet that's through his leg, his upper leg, through his scrotum and his leg.

[00:23:10] Speaker 00:
This is not the sort of place that a bullet would normally be absent any sort of criminal activity of some sort.

[00:23:20] Speaker 00:
So under a plain view analysis here as well.

[00:23:24] Speaker 03:
Well, when are you saying the view was plain?

[00:23:27] Speaker 03:
When the surgeons opened up the leg and saw it?

[00:23:33] Speaker 03:
Wouldn't you judge plain view?

[00:23:35] Speaker 00:
Yes, Your Honor.

[00:23:36] Speaker 00:
Here we're saying that if they're all government actors, that is when the government saw that the bullet was in plain view.

[00:23:45] Speaker 00:
So it's entitled to seize that bullet at that point.

[00:23:48] Speaker 00:
And then there's nothing improper about then transferring it over to the police department so they can continue their investigation into where that bullet came and how it got there.

[00:24:01] Speaker 03:
Well, are you arguing then that I guess he consented to having the bullet given to law enforcement because he called 911?

[00:24:13] Speaker 03:
Is that what it comes down to?

[00:24:15] Speaker 00:
Here, not just that he called 911, it's also what he said on the 911 call.

[00:24:22] Speaker 00:
That it's not anytime someone calls 911 or goes to the hospital, say someone said, I was getting engaged, they put the engagement ring in my drink, I drank that, I've got a ring in my body, I need some help.

[00:24:39] Speaker 00:
That's not consenting to law enforcement activity there in that same way.

[00:24:42] Speaker 00:
So it's limited by what he told the government when he reported the crime here as well.

[00:24:50] Speaker 03:
So when you report a crime that there was an assailant, you consent to having any evidence on your person turned over for investigative purposes?

[00:25:03] Speaker 00:
I think that's what's implied by what he told them on the specific facts of this case here.

[00:25:10] Speaker 00:
In order to investigate whether or not someone actually shot him, they have to investigate where that bullet came from.

[00:25:18] Speaker 00:
And that bullet is evidence of a crime here.

[00:25:22] Speaker 03:
Yeah, the only problem, I guess, that I'm trying to get over is your argument with the warrant suggests he may have shot himself.

[00:25:30] Speaker 03:
So you're investigating whether he shot himself.

[00:25:34] Speaker 03:
So that's a little different, isn't it, than investigating an assailant?

[00:25:39] Speaker 00:
Yes, Your Honor.

[00:25:40] Speaker 00:
I think also the timeline is

[00:25:44] Speaker 00:
He's at the hospital while the police are conducting their investigation as well.

[00:25:49] Speaker 00:
It's not clear from the record when exactly they've determined.

[00:25:54] Speaker 00:
Certainly the warrant happens at 940.

[00:25:57] Speaker 00:
Mr. Gay is in the hospital earlier than that as well.

[00:26:01] Speaker 00:
So it is the argument here that his consent was ongoing here.

[00:26:06] Speaker 01:
Even if it's evidence of either false reporting or an aggravated

[00:26:14] Speaker 01:
assault, and you'd have probable cause to seize it at some point.

[00:26:19] Speaker 01:
But doesn't the police still need to get a search warrant to seize that evidence?

[00:26:26] Speaker 00:
No, Your Honor.

[00:26:27] Speaker 00:
They don't need to, especially when the government actors here are at the hospital.

[00:26:32] Speaker 00:
Because when they see it in plain view here, that's plainly evidence of crime.

[00:26:37] Speaker 01:
What's your lead argument on the bullet?

[00:26:40] Speaker 01:
What's the argument that you think is your strongest?

[00:26:44] Speaker 01:
Implied consent or plain view?

[00:26:46] Speaker 01:
I know you have three or four theories.

[00:26:48] Speaker 00:
Consent, Your Honor.

[00:26:50] Speaker 00:
Consent is here what the government is relying on.

[00:26:55] Speaker 00:
And then it would be exigency, plain view, and then abandonment, as the court alluded to as well.

[00:27:02] Speaker 00:
Because with the abandonment argument here, we have

[00:27:06] Speaker 00:
someone who said, someone else shot me.

[00:27:08] Speaker 00:
And he never tells anyone else that it is his.

[00:27:14] Speaker 00:
In fact, his entire defensive trial is that someone else shot me.

[00:27:17] Speaker 00:
He never really convinces an expectation of privacy in that bullet.

[00:27:25] Speaker 00:
And so those statements would, in the eyes of a reasonable officer, show that the defendant manifested an intent to disavow ownership of that property.

[00:27:36] Speaker 00:
So I see my time's running out.

[00:27:37] Speaker 00:
If the court has no other questions, I'd ask the court to affirm.

[00:27:40] Speaker 01:
Thank you, counsel.

[00:27:52] Speaker 02:
Just to respond to a few things that my learned friend here said, first of all, guidance.

[00:27:57] Speaker 02:
There's nothing

[00:27:58] Speaker 02:
that suggests guidance and I think proof of that beyond the fact that the government's briefing below couldn't even decide on which crime was allegedly committed is the return on the affidavit.

[00:28:09] Speaker 02:
They didn't seize a laptop.

[00:28:10] Speaker 02:
Instead, they seized knee pads.

[00:28:13] Speaker 02:
They seized a ball cap.

[00:28:15] Speaker 02:
So that clearly doesn't go to the crime of false reporting.

[00:28:17] Speaker 02:
It doesn't go to the crime of attempt to influence a public servant.

[00:28:21] Speaker 02:
And it certainly doesn't go to a crime of an aggravated burglary.

[00:28:24] Speaker 02:
The court mentioned Lee.

[00:28:26] Speaker 02:
And I think this is fundamentally distinguishable from Lee in that, yes, Lee had some issues.

[00:28:32] Speaker 02:
The key thing in Lee, though, was that in the affidavit and in the warrant, they specifically mentioned that they were concerned that Mr. Lee was deliberately doing things to hide the identity of the people who were buying the firearms and doing those things also to evade taxes.

[00:28:52] Speaker 02:
Those are very specific crimes and categories of crimes.

[00:28:55] Speaker 02:
We have nothing to that level of specificity here.

[00:28:58] Speaker 02:
Also related to

[00:29:00] Speaker 02:
the notion that this is an overbroad warrant, I think we can take a lot of guidance from Sugs.

[00:29:05] Speaker 02:
Sugs at least had identified that the person who they were investigating was a felon, which saved the provision about any and all firearms and any and all ammunition.

[00:29:16] Speaker 02:
We do not have that in this case.

[00:29:18] Speaker 02:
The reason Sugs was remanded back for a good faith determination after finding that the warrant itself was overbroad

[00:29:25] Speaker 02:
was the catch-all phrase, which the one court was very clear in saying, look, sure, there are some legitimate pieces to this warrant, but this catch-all phrase is bigger than those pieces and consumes them all.

[00:29:36] Speaker 02:
And we have that same catch-all phrase in this case.

[00:29:39] Speaker 02:
And it's evident on its face in page 45 of volume 1 in the record on appeal.

[00:29:46] Speaker 02:
And then, as far as it goes, what happened at the hospital.

[00:29:54] Speaker 02:
The government seems to be conflating the idea of the collective knowledge doctrine to apply to any and all state actors, and there is no case law on point that does so much much.

[00:30:02] Speaker 02:
That eliminates its plain view argument.

[00:30:07] Speaker 02:
And ultimately, I will leave the court with this.

[00:30:09] Speaker 02:
A benign motive, the ultimately admirable goal of saving someone's life, of providing medical treatment cannot justify a departure from Fourth Amendment protections given the pervasive involvement in law enforcement in furthering the state's general interest in criminal control.

[00:30:27] Speaker 02:
And with that, I submit the case for decision.

[00:30:29] Speaker 02:
Thank you.

[00:30:30] Speaker 01:
Thank you, counsel.

[00:30:30] Speaker 01:
That was very helpful, your excuse, and the case is submitted.