[00:00:00] Speaker 02: The next case we'll hear is United States versus Jackson, 23-3011 case. [00:00:07] Speaker 00: Good morning. [00:00:09] Speaker 00: May it please the court, Kayla Gaspin for the appellant Darren Jackson. [00:00:14] Speaker 00: The district court aired in this case when it found that officers had probable cause to arrest Mr. Jackson without a warrant for a robbery that occurred six weeks prior. [00:00:24] Speaker 00: The court aired by treating informant Kinsley Matthews [00:00:28] Speaker 00: as an ordinary citizen witness whose reliability could be presumed or who should be believed because the officers subjectively believed her rather than treating her as a suspect or informant and assessing her veracity and the trustworthiness of her information for itself. [00:00:44] Speaker 02: Do we conduct a novel review? [00:00:47] Speaker 02: Yes. [00:00:47] Speaker 02: Then why does it matter whether or not the district court defer to the police officer's credibility [00:00:53] Speaker 02: in applying de novo review, do we not view the evidence in the light most favorable of the ruling? [00:01:02] Speaker 02: I mean, I know your office's contestants are precedent. [00:01:08] Speaker 00: Correct. [00:01:08] Speaker 00: Yeah, I'm just trying to unpack that a little bit. [00:01:11] Speaker 00: I think that this court conducts de novo review of the ultimate probable cause determination, but it reviews factual findings [00:01:19] Speaker 00: for clear error. [00:01:20] Speaker 00: And our position here is that the district court and in reviewing the factual findings I think is where this court has said that it defers or it views the facts in the light most favorable to the ruling. [00:01:31] Speaker 00: But I don't think that that can substitute [00:01:34] Speaker 00: for requiring the district court to fulfill its own obligation to do an independent assessment of witness ferocity and credibility? [00:01:41] Speaker 03: Well, if we have undisputed facts, however you want to describe them, can we look at those facts and make our determination? [00:01:51] Speaker 03: I mean, does this, I'm basically asking the same question that Judge Baccarat's asked. [00:01:56] Speaker 00: I think the problem, and this is the reason why we suggest a remand might be the appropriate remedy in our brief, is because the problem with what the district court did is that the district court essentially skipped over [00:02:08] Speaker 00: a key part of its own obligation to do an assessment of Matthew's veracity and reliability. [00:02:16] Speaker 03: But we can walk through things like, was this conversation with the law enforcement face to face? [00:02:23] Speaker 03: Were there other things that corroborated this witness's statements? [00:02:27] Speaker 03: We can go through the long list of other things that are really objective facts and say, well, close enough. [00:02:35] Speaker 00: Well, this court has said multiple times that it does not assess credibility in the first instance. [00:02:41] Speaker 00: And what our argument is is that the problem with the district court. [00:02:44] Speaker 03: Well, is this credibility or probable cause? [00:02:47] Speaker 03: We're looking at whether or not there's probable cause. [00:02:50] Speaker 00: You're looking at probable cause, and that's reviewed de novo. [00:02:53] Speaker 00: But the only witness who tied Mr. Jackson to the robbery was Kinsley Matthews. [00:02:58] Speaker 00: And so her reliability is really key to the probable cause determination. [00:03:03] Speaker 00: And the district court never independently assessed [00:03:05] Speaker 00: her reliability or the trustworthiness of her information. [00:03:09] Speaker 00: So first, because the court treated her as an ordinary citizen eyewitness who's presumed to be reliable, that someone who witnesses something and voluntarily reports it to the police, that type of witness is presumed to be reliable because there's no obvious ulterior motive to say something other than the truth. [00:03:26] Speaker 00: By contrast, an informant or a suspect or somebody involved in criminal activity themselves is not presumed to be reliable. [00:03:32] Speaker 00: There's a whole line of Supreme Court cases. [00:03:35] Speaker 03: So what do we do? [00:03:36] Speaker 03: What do you want here? [00:03:37] Speaker 03: Do you want reverse? [00:03:38] Speaker 03: Or you want remand? [00:03:40] Speaker 03: I think you could do either. [00:03:41] Speaker 00: I mean, we think that there was insufficient. [00:03:42] Speaker 00: Well, you should pick one. [00:03:43] Speaker 00: Help us. [00:03:44] Speaker 00: You know, honestly, I think a remand could be the more appropriate remedy, because our argument really is that the district court did not apply the current standard. [00:03:54] Speaker 03: So you'd give the district court a second chance on this? [00:03:56] Speaker 00: Well, I think it's hard to argue that the district court couldn't get a second chance on this. [00:04:00] Speaker 00: At least, I don't know that the district court can reopen the hearing, but at least that the district court could get a chance on remand to apply the correct standard, because our argument really is that the district court never fulfill its obligation to do an independent assessment of veracity and reliability. [00:04:16] Speaker 02: You know, the interesting part about this issue is the probable cause is a legal issue, right? [00:04:22] Speaker 02: And so the district court is making this legal adjudication on whether or not there is probable cause. [00:04:28] Speaker 02: Now, part of the evidence that the judge is looking at is Banthieu's credibility. [00:04:33] Speaker 02: And so if we, on de novo review, say district judge, you blew it, you got it wrong, then we adjudicate de novo this ultimate question of probable cause. [00:04:47] Speaker 02: The piece of evidence that we look at is Matthew's credibility. [00:04:52] Speaker 02: Withstanding your office's disagreement with our precedent, we have to view all of the evidence, including a witness's credibility, in the light most favorable to the ruling. [00:05:03] Speaker 02: And so we, under our precedent, would have to credit Matthew's credibility. [00:05:09] Speaker 00: So putting aside how I think that illustrates the problem in the light most favorable standard, setting that aside, I actually don't think that that is dispositive here. [00:05:21] Speaker 00: Because if you defer to the district court and the district court deferred to the law enforcement officers or didn't apply the correct standard of what type of witness this was, there has never been any judicial review of the right of reliability of Matthews. [00:05:35] Speaker 00: who was the, you know, she was not just part of the probable cause analysis. [00:05:39] Speaker 00: She was the only person who tied Mr. Jackson to the robbery at all. [00:05:42] Speaker 00: So probable cause is extremely dependent on her reliability and the trustworthiness of her information. [00:05:48] Speaker 03: But can't we look at things like the face-to-face delivery of the information, her basically self-inculpatory statements, right? [00:06:00] Speaker 03: She's observed these events firsthand. [00:06:05] Speaker 03: That's corroborated that she was there. [00:06:07] Speaker 03: There's identification of other people who were there by other witnesses. [00:06:12] Speaker 03: The whole scenario of what happened where to whom is corroborated. [00:06:18] Speaker 03: So the first problem... Can't we get there just by looking at objective facts? [00:06:24] Speaker 00: Those are things the district court should have considered. [00:06:27] Speaker 00: And I think the district court should also have considered the circumstances of her statement because Mr. Jackson's involvement is not corroborated by anyone else. [00:06:37] Speaker 00: The victims of the robbery were never asked to identify him. [00:06:40] Speaker 03: And so that that he was there Matthews is the only person I thought one of the victims one of the travelers as they've been lovingly referred to Mr. Fernandez, I thought he described [00:06:53] Speaker 00: So he gave a description of someone else in the car, but there's no testimony about whether that description matched Mr. Jackson. [00:07:00] Speaker 00: I don't believe. [00:07:01] Speaker 04: I thought there was a description of him being a male with dark hair and a goatee. [00:07:08] Speaker 00: So I believe that's the description that Fernandez gives of the other person in the car. [00:07:12] Speaker 00: I don't believe that there's testimony at that time. [00:07:16] Speaker 00: And remember, this hearing is [00:07:17] Speaker 00: is a long time after the robbery. [00:07:20] Speaker 00: I don't think there was testimony that Mr. Jackson like had a goatee at the time of the robbery. [00:07:26] Speaker 00: So I think that's the piece that's missing. [00:07:28] Speaker 03: Okay, he's described an individual and that individual looks [00:07:34] Speaker 03: as he has described him today. [00:07:36] Speaker 03: Does that get you anywhere? [00:07:38] Speaker 00: It does, doesn't it? [00:07:39] Speaker 00: Well, the problem again is that I think that these are all questions that the district court should have weighed in assessing the reliability and the trustworthiness of her information while also considering things that undermine it, like the fact that Matthews herself was a suspect, that the law enforcement officer who interviewed her treated her as a suspect, [00:07:54] Speaker 00: and that Ms. [00:07:56] Speaker 00: Matthews identified Mr. Jackson only after the law enforcement officer told her that she would be charged with the robbery if she didn't identify someone else. [00:08:04] Speaker 00: The fact that the travelers were not asked to identify Mr. Jackson, they were not shown photos or asked to identify him, that Matthews is the person who faces him there. [00:08:12] Speaker 03: Well, it wasn't a photo lineup or anything like that, but again, Fernandez described him. [00:08:17] Speaker 00: Again, I think that there was a description. [00:08:20] Speaker 00: There was not testimony. [00:08:22] Speaker 00: That fits the defendant's description. [00:08:24] Speaker 00: I mean, it fits his description today, but things like facial hair are very changeable. [00:08:28] Speaker 00: So whether he had a goatee at the time of the robbery, I don't know because it's not in the record. [00:08:33] Speaker 00: There was not testimony about that. [00:08:35] Speaker 00: And again, the problem with the deference and the presuming that Matthews is reliable is because [00:08:43] Speaker 00: Because officers originally did not seek an arrest warrant, so there was no judicial determination at that point of their probable cause, then the judicial court deferred to the officers' view that they believed Matthews. [00:08:56] Speaker 00: and assumed that she could be reliable because court treated her as the sort of citizen eyewitness instead of an informant. [00:09:02] Speaker 00: And now the government is asking this court to defer to the judicial court. [00:09:04] Speaker 00: So there's never been judicial review of Matthew's reliability and the trustworthiness of her information. [00:09:11] Speaker 03: And these things... What do we do with the surveillance information of the defendant that he's associating with Mr. Rick? [00:09:18] Speaker 00: I mean, I think that that is true so far as it goes. [00:09:22] Speaker 00: I don't know how far it gets anyone other than showing that [00:09:25] Speaker 00: Jackson and Rick know each other. [00:09:27] Speaker 00: There's no observation of Mr. Jackson near a blue car, which is the car that Matthew said Jackson was in at the time of the robbery. [00:09:38] Speaker 00: He's never seen with the car. [00:09:39] Speaker 04: She said it was blue, but somebody described it as light gray. [00:09:43] Speaker 04: There's not that much of a difference. [00:09:45] Speaker 04: He was seen in a light gray Mazda sedan in the days. [00:09:49] Speaker 00: I believe Mr. Rick was seen in a light gray Mazda. [00:09:54] Speaker 00: Um, I don't believe Mr. Jackson. [00:09:56] Speaker 00: Mr. Jackson's car is white. [00:09:57] Speaker 00: I don't think that's disputed and no one ever sees him. [00:10:00] Speaker 04: There were three cars I thought that he was observed driving, but maybe, or two cars he was driving and then he also had this white car. [00:10:06] Speaker 00: I mean, I think at most that, you know, it's some corroboration that Mr. Jackson knew, um, Rick, but it's a fairly small town. [00:10:16] Speaker 00: You know, I don't know that that gets, is so much cooperation of the, um, of Matthew's information that Jackson was at the robbery. [00:10:23] Speaker 03: Well, it helps you a little bit, doesn't it? [00:10:27] Speaker 03: I mean, she says that both the defendant and Rick were there, and then later, law enforcement, under surveillance, sees the defendant with Mr. Rick. [00:10:37] Speaker 00: Right. [00:10:38] Speaker 03: That's cooperation in the royal sense, is it not? [00:10:40] Speaker 00: I mean, it's cooperation in the fact that they know each other. [00:10:43] Speaker 00: I don't know that it's cooperation of the fact that Mr. Jackson was at the robbery. [00:10:49] Speaker 00: I think these are facts that the district court could have appropriately considered in assessing her reliability and the trustworthiness of her information, but the court didn't. [00:10:59] Speaker 00: The court skipped those things. [00:11:01] Speaker 00: The court also skipped the things undermining her reliability, like the discrepancies of who was driving, what color the car was, how many people were there, the fact that the travelers didn't identify Mr. Jackson, were asked to identify Mr. Jackson. [00:11:14] Speaker 00: The fact that Matthews only identified Mr. Jackson as being involved after being told that she would be charged if she didn't identify others. [00:11:22] Speaker 00: The fact that she was an informant at the same time, had pending drug charges, which is not disputed, had an interview the same day about her pending drug charges where she provided information to the police. [00:11:32] Speaker 00: So she had multiple incentives to provide potentially false information, either deflecting blame from herself [00:11:38] Speaker 00: or her confederates, or gaining an advantage with respect to her own dealings with the police. [00:11:43] Speaker 00: So these are all things that the District Court should have correctly considered in assessing her reliability and the trustworthiness of her information. [00:11:52] Speaker 00: But because the court made errors treating her as someone whose reliability could be presumed or deferring to the law enforcement's view, the District Court never made that assessment. [00:12:01] Speaker 00: And so that's why I think a remand would be the appropriate remedy. [00:12:05] Speaker 00: And I would like to reserve the remainder of my time for rebuttal. [00:12:08] Speaker 01: Certainly. [00:12:14] Speaker 01: Thanks. [00:12:14] Speaker 01: Good morning. [00:12:15] Speaker 01: James Brown for the United States. [00:12:17] Speaker 01: Your Honor, today we're asking this court to affirm because the district court did not legally air in finding that the officer sent probable cause to arrest the defendant when they arrested him without a warrant. [00:12:27] Speaker 01: Just seven hours before the officers arrested him, a state court judge had signed off on a search warrant for the defendant's residence based upon the same information that the officers relied upon to arrest the defendant. [00:12:39] Speaker 01: Why is that legally significant? [00:12:41] Speaker 01: It's legally significant because it shows that, well, my colleague just said there was no judicial determination of probable cause. [00:12:50] Speaker 01: Well, there was. [00:12:53] Speaker 01: Deputy Trower submitted an affidavit that he relied on to arrest the defendant. [00:12:58] Speaker 01: That affidavit also was submitted to a state court judge for probable cause to search the defendant's residence for evidence of this crime. [00:13:06] Speaker 02: To believe that there's an instrumentality or evidence of a crime as opposed to the commission of the crime. [00:13:12] Speaker 02: There's two probable causes used in both instances, but they mean completely different things. [00:13:17] Speaker 02: I don't want to take a lot of time. [00:13:20] Speaker 01: Well, it shows that at least the state court judge was convinced that the defendant was involved in this aggravated robbery and that the robbery occurred. [00:13:29] Speaker 01: Without making those predicate findings, the court couldn't have found any basis to conclude that the evidence or instrumentalities of that crime that he was involved in would be at his residence. [00:13:38] Speaker 01: So there was judicial review of the exact information that the officers relied upon to search the defendant's residence. [00:13:44] Speaker 01: And that's in the affidavit. [00:13:49] Speaker 04: Ultimately, the state charges that were dismissed were like a probable cause? [00:13:54] Speaker 01: Correct, Your Honor. [00:13:56] Speaker 01: That information is in the affidavit record, volume 4, starting at page 3, I think going on to page 15. [00:14:01] Speaker 03: Do you agree that the district court here applied the wrong scope of review, or not scope of review, the wrong analysis? [00:14:08] Speaker 01: No. [00:14:09] Speaker 01: We do not. [00:14:10] Speaker 03: Well, Matthews, you think, is just an ordinary citizen giving witness information? [00:14:20] Speaker 01: You know, that's sort of an interesting question. [00:14:23] Speaker 01: You can go several ways with that. [00:14:25] Speaker 01: We agree she had a checkered pass. [00:14:27] Speaker 01: She had pending drug charges. [00:14:28] Speaker 03: She was right in the middle of this crime. [00:14:31] Speaker 03: She's hardly the person on the street who walks up and says to the police officer, hey, there's a guy over there trying to steal a car. [00:14:39] Speaker 01: No, but we're not sure that that is required for somebody to be treated as a victim or a witness of a crime whose reliability is presumed. [00:14:46] Speaker 01: We're not sure that somebody has to be completely clean and uncheckered. [00:14:50] Speaker 03: How do we get to the presumption of her credibility? [00:14:53] Speaker 01: Well, Your Honor, that's where I'd like to circle back to, if I can. [00:14:58] Speaker 01: This is why the district court did not err. [00:14:59] Speaker 01: The district court never applied a presumption of reliability to her testimony or to her account. [00:15:04] Speaker 01: The district court never applied that presumption. [00:15:07] Speaker 01: If you look in the order that the district court did, I just looked at it over there. [00:15:11] Speaker 01: I didn't see anything about, I presume, her reliability. [00:15:14] Speaker 02: But didn't the judge say that the police officer had reasonably viewed her as credible? [00:15:21] Speaker 01: Yes. [00:15:21] Speaker 01: And that's based upon the fact of several bullet points, which we put on page 17 of our brief. [00:15:27] Speaker 01: The district court looked at all the evidence that was presented at the hearing. [00:15:31] Speaker 01: The district court, if you look at our brief, page 17, the bullet points, the district court looked at the evidence. [00:15:36] Speaker 01: looked at what was consistent, what was not, looked at very independent things, but never applied a presumption. [00:15:41] Speaker 01: The presumption was never applied. [00:15:44] Speaker 01: Really, there's no factual basis for that. [00:15:48] Speaker 02: the law enforcement officer to assess credibility? [00:15:52] Speaker 02: I thought that was the function of the magistrate judge who is adjudicating probable cause. [00:16:00] Speaker 01: An officer who arrests somebody based on probable cause has to assess credibility because he has to come to conclusion whether there's reasonably trustworthy information to support the arrest. [00:16:10] Speaker 02: I don't mean to get into the debate with you, Mr. Brown, [00:16:14] Speaker 02: Isn't that the whole point of all of the cases saying that the magistrate judge has to be a neutral arbiter? [00:16:21] Speaker 02: that you can't rubber stamp an officer's assessment of credibility. [00:16:27] Speaker 02: It's up to the neutral magistrate to assess all of that evidence and see whether or not it rises to the level of probable cause. [00:16:36] Speaker 01: Okay, two points. [00:16:37] Speaker 01: Number one, the judge here did not rubber stamp the officer's assessment of credibility. [00:16:43] Speaker 01: The district court made its own assessment. [00:16:45] Speaker 01: of the totality of the circumstances and found that based on the totality of those circumstances, the officers reasonably relied on the information that was available to them. [00:16:53] Speaker 01: That's the probable cause standard. [00:16:55] Speaker 01: The probable cause standard, and this goes to her claim of error, does not require that an officer or that a judge independently assess the credibility of somebody who provides information about a crime. [00:17:07] Speaker 01: That's not in the probable cause standard. [00:17:10] Speaker 01: And an example of this is the Easton case that I cited in my brief. [00:17:14] Speaker 01: We have two children in that case who said that someone sexually abused them. [00:17:20] Speaker 01: The children gave inconsistent accounts. [00:17:22] Speaker 01: They misidentified the color of the house, where the house was. [00:17:25] Speaker 01: One account was internally inconsistent, and the court still said, well, there's probable cause. [00:17:30] Speaker 01: We don't need to have complete consistency or even a credibility finding for there to be probable cause. [00:17:36] Speaker 01: There just has to be reasonable grounds. [00:17:39] Speaker 01: based on the totality of the circumstances. [00:17:40] Speaker 01: So her claim of error, really, there's just no legal support for the idea that a district court has to make a credibility finding or a finding about reliability and veracity. [00:17:50] Speaker 01: There's no support for that. [00:17:52] Speaker 01: And second, and that goes to the second point, the district court did not presume her reliable. [00:17:56] Speaker 01: Number three, the district court did actually weigh all of the evidence and found that the officers reasonably relied on the information that they had. [00:18:05] Speaker 03: Well, the district court said she was an eyewitness, right? [00:18:09] Speaker 03: Correct. [00:18:10] Speaker 03: And the district court talked about presumption, right? [00:18:14] Speaker 03: So how do we disconnect this? [00:18:16] Speaker 01: I don't see where the district court talked about presumption. [00:18:22] Speaker 01: I don't see where the district court talked about the district court did not presume her reliable. [00:18:25] Speaker 01: The district court independently evaluated all the evidence. [00:18:29] Speaker 01: See the bullet points on page 17 and 18 of my brief. [00:18:31] Speaker 01: It recounted the evidence. [00:18:34] Speaker 01: It harmonized that evidence and said, hey, based upon the totality of the circumstances, the officers reasonably relied upon all the information. [00:18:40] Speaker 01: Because the witnesses, as Your Honor pointed out during the colloquy with my colleague, the officers did an eyewitness interview with the defendant. [00:18:49] Speaker 01: They had an opportunity to assess her credibility. [00:18:51] Speaker 01: They knew she had a checkered past. [00:18:53] Speaker 01: So that's what the district court did. [00:18:56] Speaker 04: The district court did not even have to make a credibility finding. [00:19:09] Speaker 04: 2017 case, and he said that that case cited from three other circuits that support the proposition that a single eyewitness is sufficient for probable cause, absent an apparent grudge against the accused. [00:19:24] Speaker 04: And then it goes on a little bit more about that. [00:19:28] Speaker 04: It doesn't really say one thing or the other, but certainly suggests that the presumption of credibility for a known eyewitness might be applying. [00:19:40] Speaker 03: The last line of that footnote talks about presumption of eyewitnesses. [00:19:44] Speaker 01: Right, presumption of credibility for an eyewitness versus an anonymous person. [00:19:49] Speaker 01: The court doesn't say it applied a presumption. [00:19:51] Speaker 01: They just, the court just pointed out that's just sort of law that bears on its information. [00:19:55] Speaker 03: The court did call Matthews an eyewitness. [00:19:58] Speaker 01: Yes. [00:19:59] Speaker 01: Yes. [00:19:59] Speaker 01: That she was an eyewitness. [00:20:01] Speaker 01: And, and, but the court did not, if you look at the, at the, at the ruling, at the, at the writing, the court did not apply it, say, I presume her reliable. [00:20:09] Speaker 01: The court just said she's an eyewitness. [00:20:11] Speaker 01: She saw things and she has more credibility than somebody who's an anonymous tipster. [00:20:15] Speaker 01: That's, that's the whole point there. [00:20:18] Speaker 01: So that being said, just to review, because we've gotten a little bit muddled. [00:20:25] Speaker 01: Number one, the district court did not. [00:20:26] Speaker 03: I'll agree with you on the muddled part. [00:20:29] Speaker 01: OK. [00:20:31] Speaker 01: So I'd like to clear that up. [00:20:32] Speaker 01: That was very predictable. [00:20:34] Speaker 01: I'd like to clear that up. [00:20:35] Speaker 01: Thank you. [00:20:36] Speaker 01: Number one, the district court was not required to make credibility findings. [00:20:40] Speaker 01: Not required. [00:20:41] Speaker 01: So there's no error. [00:20:42] Speaker 01: That's what the Easton case stands for. [00:20:43] Speaker 01: You can have probable cause without a credibility finding, even if there's problems with the credibility. [00:20:48] Speaker 01: Number two, the district court did not presume Matthew's reliable. [00:20:53] Speaker 01: If you look at what the district court did, which we summarize on page 17 of our brief and bullet points, the district court did not presume her reliable. [00:21:00] Speaker 01: The district court looked at the evidence. [00:21:02] Speaker 01: The district court noted that an eyewitness gets more credit for reliability than an anonymous person. [00:21:08] Speaker 01: That's not controversial. [00:21:10] Speaker 01: That's not the same as saying they presumed her reliable, because we think the court's findings show district court did not presume her reliable. [00:21:16] Speaker 01: Number three. [00:21:20] Speaker 01: There was judicial review of what the officers thought about the probable cause. [00:21:25] Speaker 01: And that's because seven hours before the officers arrested the defendant, a state court judge signed off on a warrant to search defendant's residence for which the state court judge had to find probable cause if the defendant was involved with this crime committed and the defendant committed it in order to search his house for instrumentality of that crime. [00:21:46] Speaker 01: And that's the exact information that the officers relied on here [00:21:49] Speaker 01: to arrest the defendant without a warrant. [00:21:52] Speaker 01: So there was some judicial review of the grounds relied upon by the officers in arresting the defendant. [00:22:01] Speaker 03: Does the district court have any responsibility to look at the credibility of Ms. [00:22:05] Speaker 03: Matthews in this case? [00:22:07] Speaker 01: The district court has [00:22:10] Speaker 01: The district court does not have to make a credibility finding, just like this court did in the Easton case. [00:22:15] Speaker 01: The court looked at all the information that there was. [00:22:19] Speaker 01: The information in the Easton case was conflicting. [00:22:21] Speaker 01: It was conflicting with two people saying different things. [00:22:24] Speaker 01: It was internally inconsistent with one person saying different things. [00:22:27] Speaker 01: And the court said, OK. [00:22:29] Speaker 01: You know, it's conflicting, but there's still probable cause, because probable cause looks at the totality of the circumstances, not who's reliable and who's not. [00:22:38] Speaker 01: So credibility is a consideration, yes, Judge Briscoe. [00:22:41] Speaker 01: But does the district court have to make a finding regarding credibility? [00:22:45] Speaker 01: No. [00:22:46] Speaker 01: And the fact that the district court did not does not defeat probable cause here. [00:22:49] Speaker 03: Can the district court rely on the credibility finding of the officers? [00:22:55] Speaker 01: The district court can review that finding, yes. [00:22:59] Speaker 01: can the court rely on it? [00:23:00] Speaker 01: I suppose the court can, after making its own assessment and evaluating the basis... Because it looks like that's what the district court did here. [00:23:07] Speaker 01: Well, we would gently disagree with your honor on that point. [00:23:12] Speaker 01: If we look at the bullet points on page 17, the district court made its own [00:23:15] Speaker 01: reliability assessment, its own evaluation, and based on that evaluation, found that the officers reasonably looked alike. [00:23:22] Speaker 03: Well, right out of the order, it says. [00:23:24] Speaker 03: But absent something more, this simply amounts to credibility weighing which the officers may do with the information available to them. [00:23:33] Speaker 01: Right. [00:23:34] Speaker 01: And we think that's a non-controversial statement. [00:23:35] Speaker 01: The officers have to be able to make credit. [00:23:37] Speaker 01: Otherwise, they can't arrest anybody without a warrant, which happens every day in this country. [00:23:41] Speaker 01: How can, how can they, how can they, they have to be able to make credibility findings. [00:23:45] Speaker 03: Well, if we go down this road, aren't all arrests, in essence, bulletproof? [00:23:52] Speaker 03: Because, hey, the officer's there, the officers know what they know. [00:23:56] Speaker 03: They have these credibility abilities and they made these findings. [00:24:00] Speaker 03: So it's a good arrest. [00:24:03] Speaker 01: Well, no, because this court gets to review whether or not the officers had reasonable grounds to arrest. [00:24:08] Speaker 03: So we can just put aside and should put aside the district court's analysis here and just start over and say, OK, we can look at other things to determine that there's probable cause here? [00:24:25] Speaker 01: Generally, yes. [00:24:29] Speaker 01: In this case? [00:24:31] Speaker 01: We think that's fair. [00:24:32] Speaker 01: I mean, as Judge Vackerack pointed out, it's Genova Review. [00:24:34] Speaker 01: This court can look at everything and start over if it wants to. [00:24:37] Speaker 01: And Your Honor has pointed out several things the court can look at. [00:24:40] Speaker 01: So I see I have two minutes left. [00:24:42] Speaker 01: If the court doesn't have any more questions about that issue, I'd like to talk about good faith for just a minute. [00:24:47] Speaker 01: OK. [00:24:48] Speaker 01: If this court finds that there was no probable cause for the arrest, we think that this court should apply the good faith exception. [00:24:54] Speaker 01: We think it is a given that the officers acted with objectively reasonable [00:25:00] Speaker 01: object in an objectively reasonable manner in this case. [00:25:02] Speaker 03: Does good faith even apply here? [00:25:04] Speaker 03: Don't you have to have a warrant or something that they're relying on? [00:25:07] Speaker 03: How do we get to Leon? [00:25:10] Speaker 01: Your Honor, we've briefed that in our brief. [00:25:14] Speaker 03: I read that and I don't follow it quite frankly. [00:25:17] Speaker 01: So the Supreme Court has said that real deterrent value is a necessary condition for exclusion of the evidence. [00:25:22] Speaker 01: If the officers act in an objectively reasonable manner and do not commit any misconduct, there's no real deterrent value to be gained by applying an exclusionary rule. [00:25:32] Speaker 01: That's what it comes down to. [00:25:33] Speaker 01: The Supreme Court says that the harsh sanction of exclusion cannot be applied to objectively reasonable law enforcement conduct, because in that case, there would be no deterrent value to applying the exclusionary rule. [00:25:46] Speaker 01: application of the exclusionary rule is the last resort, not the first resort. [00:25:50] Speaker 01: That's what the Supreme Court has said. [00:25:52] Speaker 01: This court has the third party rule that Your Honor has talked about. [00:25:56] Speaker 01: Our position is that this third party rule has been superseded and invalidated by Herring and Davis, which established a new culpability framework for analyzing whether or not the exclusionary rule should be applied. [00:26:09] Speaker 02: Do we have to conclude then that Herring and Davis have indiscriminately and [00:26:15] Speaker 02: overruled or abrogated our precedents? [00:26:20] Speaker 01: We think that the court has to conclude that they've invalidated it. [00:26:25] Speaker 01: And or the court can also, yes, yes, the court has to conclude that. [00:26:29] Speaker 01: And we'd ask the court to look at Justice Gorsuch's discussion of the new culpability framework that Davis and Herring set forth in the Nicholson case, which we cited in our 28-J letter. [00:26:39] Speaker 01: And that new culpability framework basically says that an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus of applying the exclusionary rule. [00:26:49] Speaker 01: This court's third party rule ignores the new culpability framework. [00:26:53] Speaker 01: That's our main point. [00:26:54] Speaker 01: We're just asking the court to apply the new culpability framework whether or not the officer relies on the mistake of a third party, because the exclusionary rule cannot apply to objectively reasonable law enforcement conduct. [00:27:07] Speaker 01: That's what the Supreme Court says. [00:27:11] Speaker 01: Unless there are any questions, I'd retire and ask for affirmance. [00:27:14] Speaker 01: Thank you. [00:27:18] Speaker 00: want to try to make several points. [00:27:20] Speaker 00: First, on the question of, did the district court apply a presumption of reliability? [00:27:24] Speaker 00: Clearly, the court did. [00:27:25] Speaker 00: In pages six and seven of the order, the district court cites case law talking about a single eyewitness. [00:27:29] Speaker 00: All of the cases, which we explained in the briefs that the courts were relying on, contain this assumption that an ordinary citizen witness is presumed to be reliable and distinguishes that from an informant. [00:27:41] Speaker 00: The government talked repeatedly about the Easton case. [00:27:44] Speaker 00: The Easton case from this court is one that [00:27:47] Speaker 00: explains exactly why an ordinary citizen eyewitness is treated differently from an informant. [00:27:52] Speaker 00: Just a brief quote from East End. [00:27:54] Speaker 00: We begin by noting that when examining informant evidence used to support or claim a probable cause for a warrant or warrantless arrest, the skepticism and careful scrutiny usually found in cases involving informants, sometimes anonymous from the criminal milieu, can't say that word, is appropriately relaxed if the informant is an identified victim or ordinary citizen eyewitness. [00:28:13] Speaker 00: So that's the standard. [00:28:14] Speaker 00: The court treated Matthews as an ordinary citizen when she is, in fact, suspect informant, certainly someone involved in the criminal world. [00:28:22] Speaker 00: And then the source warrant, the source warrant, we could just... [00:28:26] Speaker 00: Irrelevant, there was nothing found as a result of the search warrant. [00:28:30] Speaker 00: When the search warrant was executed prior to the arrest, nothing was found. [00:28:32] Speaker 00: So there was no basis for us to challenge the search warrant. [00:28:35] Speaker 00: The search warrant had several problems, but that wasn't litigated because we had no way to litigate that because there were no fruits from it. [00:28:42] Speaker 00: It had probable cause problems as well. [00:28:44] Speaker 00: It potentially had a [00:28:45] Speaker 00: a nexus problem. [00:28:47] Speaker 00: It never really explains why they can search the house and what they expect to find in the house. [00:28:51] Speaker 00: But again, we can't just assume the warrant is valid. [00:28:54] Speaker 00: There was no reason to litigate it. [00:28:57] Speaker 00: I'll address Good Faith just briefly. [00:28:59] Speaker 00: I think Judge Briscoe is entirely correct. [00:29:00] Speaker 00: They don't see how that can possibly apply here. [00:29:02] Speaker 00: The court finds that there is no probable cause. [00:29:04] Speaker 00: This court has said repeatedly in controlling case law that Good Faith requires the officers to be relying on a mistake by a third party, like a judge, [00:29:14] Speaker 00: you know, someone not involved in the conduct that violated the Fourth Amendment. [00:29:19] Speaker 00: We don't have that here. [00:29:21] Speaker 00: Even Herring and Davis, the cases that the government is relying on to say that those overruled 10th Circuit precedent, those cases still involve mistakes by third parties. [00:29:31] Speaker 00: So that cannot possibly clearly overrule this court's precedent. [00:29:34] Speaker 00: Even if we were under some more amorphous standard of deterability, which is the standard that Herring talks about, can the officer's conduct be deterred? [00:29:43] Speaker 00: I think this is conduct that can quintessentially be deterred by exclusion, by jumping to an arrest with insufficiently reliable information. [00:29:52] Speaker 00: Having chosen to forego getting an arrest warrant is exactly the type of conduct that exclusion is meant to deter. [00:30:00] Speaker 00: There are no questions. [00:30:02] Speaker 00: We ask this court to remand or reverse. [00:30:05] Speaker 02: Thank you. [00:30:05] Speaker 02: This matter is submitted.