[00:00:01] Speaker 03: 23-5077, United States versus Little. [00:00:04] Speaker 03: Thayer? [00:00:13] Speaker 00: Good morning. [00:00:13] Speaker 00: May it please the court? [00:00:14] Speaker 00: Kristen Thayer for Appellant Justin Little. [00:00:17] Speaker 00: I'd like to reserve five minutes for rebuttal, but I'll watch my clock. [00:00:22] Speaker 00: There are many reasons that the court should remand for a new trial in this case. [00:00:26] Speaker 00: But unless, of course, the court has questions on any other issues, I'd like to focus in on three in particular today. [00:00:33] Speaker 00: First, that the government did not meet its burden to prove the good faith reliance exception to the exclusionary rule was met in this record. [00:00:46] Speaker 00: Second, the government did not establish that probable cause existed to arrest Mr. Little eight hours after the murder without a warrant. [00:00:57] Speaker 00: And finally, briefly, if time permits, I'd like to address the erroneous admission of the remote and dissimilar prior act evidence under Rule 404B. [00:01:09] Speaker 00: Turning first to the good faith reliance issue. [00:01:15] Speaker 00: This court should just apply the rules set forth in Pemberton, the most recent published decision on the matter. [00:01:22] Speaker 00: And the timeline is crucial to distinguish why the outcome at Pemberton is the way it went and why the government under Pemberton did not whisper in this particular case. [00:01:34] Speaker 00: Pemberton held that the warrantless actions by the state officers in that case were [00:01:42] Speaker 00: meant that the government had proven that the good faith reliance exception could apply to the warrantless conduct there because there was, quote, no clear precedent, quote, expressly contradicting the longstanding practice of Oklahoma state courts to assert jurisdiction over the land at issue. [00:02:04] Speaker 00: And that made sense because that was in 2004 when the state conduct occurred. [00:02:09] Speaker 00: But here, [00:02:12] Speaker 00: This court had issued Murphy by November of 2017. [00:02:15] Speaker 03: I do agree that Pemberton is distinguishable. [00:02:20] Speaker 03: But what about our more recent Bailey case that had a different fact pattern than Pemberton and is more contemporaneous than that case was? [00:02:30] Speaker 00: Yes. [00:02:31] Speaker 00: Bailey, the unpublished most recent decision from this court on touching on these topics, is also materially distinguishable. [00:02:40] Speaker 00: for a different reason, that at issue there was a single warrant to seize and search a phone. [00:02:47] Speaker 00: There was no warrantless conduct in Bailey. [00:02:50] Speaker 00: And so this court sort of applied the traditional Leon exception to that if officers are relying, it can be objectively reasonable for officers to rely on a search warrant issued by a magistrate. [00:03:05] Speaker 00: And so this court affirmed [00:03:07] Speaker 00: the denial of suppression in that context. [00:03:09] Speaker 01: Bailey, I mean, I was struck by how often Bailey referenced the requirement, not requirement, but the fact, at least, of relying on a magistrate's decision. [00:03:23] Speaker 00: Yes. [00:03:24] Speaker 01: You're right. [00:03:25] Speaker 01: We don't have that. [00:03:26] Speaker 00: Yes, Your Honor. [00:03:27] Speaker 00: We have sort of the exact opposite scenario. [00:03:29] Speaker 00: We have a warrantless arrest of Mr. Little eight hours after the murder on April 22, 2018. [00:03:36] Speaker 00: Then we have interrogations occurring that night. [00:03:39] Speaker 00: Then they go to his house and search it without a warrant while at the same time executing warrants to seize and search his truck that they had obtained based on a lot of information from the interrogation. [00:03:51] Speaker 00: So that warrantless arrest really taints everything that officers learned in this matter and was in fact the main thrust for why they established probable cause in front of the magistrate to get the truck warrant. [00:04:06] Speaker 00: So Bailey is not on point, but it does show sort of how the nuances and the very specific timing and whether there was a warrant or not, you know, really dictates the outcome in these cases. [00:04:21] Speaker 03: Hadn't there been some Oklahoma State Court decisions that were contrary to the 10th Circuit's Murphy case, in other words, disagreeing with the disestablishment of the Creek Nation? [00:04:38] Speaker 03: And we're here looking at trying to evaluate good faith practices by law enforcement. [00:04:45] Speaker 03: And what do you do in a circumstance where there may be some dispute between the federal courts and the state court on a key critical fact here about where the boundaries of the nation was? [00:05:01] Speaker 03: And certainly, Murphy. [00:05:05] Speaker 03: I followed that pretty closely. [00:05:06] Speaker 03: The mandate was stayed, and it went up to the Supreme Court, and they tied, and then McGirt came along the following year. [00:05:13] Speaker 03: So it had a very convoluted procedural history. [00:05:17] Speaker 03: Should every reasonable law enforcement officer in Oklahoma had believed that they lacked jurisdiction to conduct this investigation and interrogation? [00:05:34] Speaker 00: Yes, at the time of the conduct here in April of 2018, Your Honor raises another- Because it was after Murphy, and that's dispositive for your position. [00:05:43] Speaker 00: Yes, it was after Murphy, but it was well before the state McGirt decision that eventually the Supreme Court granted cert on. [00:05:51] Speaker 00: That decision was February 2019, was the state Oklahoma Criminal Court of Appeals decision. [00:05:58] Speaker 00: And then the Supreme Court grants cert in December 2018 on that McGirt decision. [00:06:02] Speaker 00: And for what it's worth, Supreme Court grants cert in Murphy in May of 2018. [00:06:09] Speaker 00: So again, still after this April 2018 conduct. [00:06:14] Speaker 00: So I do understand there are scenarios where there can be [00:06:16] Speaker 00: sort of nuanced factual differences that allow the government to invoke and prove good faith reliance and not. [00:06:24] Speaker 01: But here, because the- So when we talk about reliance, don't we have a problem with the nature of pouring a vacuum to though? [00:06:31] Speaker 01: You're kind of arguing that it was wrong to infer that this did, it was wrong to assume that it did vacate the state. [00:06:46] Speaker 01: But by the same token, the other side probably would have been equally wrong to infer that it didn't. [00:06:54] Speaker 01: We just didn't know. [00:06:55] Speaker 01: I mean, so there was a true vacuum. [00:06:58] Speaker 01: I mean, neither side really had a strong case for inferring that their position was going to be right. [00:07:04] Speaker 01: Did we have a time then when the state simply nobody had jurisdiction? [00:07:08] Speaker 01: Because if the state had jurisdiction, the feds wouldn't. [00:07:11] Speaker 01: And so are you suggesting that we should have had this [00:07:16] Speaker 01: time when simply it was lawlessness out there, which I guess is not an uncommon situation there. [00:07:24] Speaker 01: But in Oklahoma, at least, it's early history. [00:07:26] Speaker 01: But no man's land. [00:07:28] Speaker 00: No, Your Honor. [00:07:29] Speaker 00: I think that actually the situation Your Honor has identified was present in 2004 and before Murphy, where maybe it was a complicated decision. [00:07:39] Speaker 00: There was nothing from the state courts or this court or the Supreme Court [00:07:43] Speaker 00: deciding this disestablishment issue. [00:07:46] Speaker 00: But once Murphy hits and then the state conduct occurred, yes, this court's case law is clear that law enforcement is presumed to have a reasonable understanding of the law. [00:07:57] Speaker 03: Well, the district court said until the mandate was issued, there was enough ambiguity where law enforcement could not infer that Murphy was definitive. [00:08:09] Speaker 03: What's wrong with the reasoning of the district court? [00:08:12] Speaker 00: Two things, Your Honor. [00:08:13] Speaker 00: First, that there's no legal precedent. [00:08:17] Speaker 00: I traced back all the cases that have come out of Oklahoma Federal District Court that say that. [00:08:23] Speaker 00: No one's citing to any legal rules that would have this unique interpretation of the mandate, of its effect on binding law as opposed to just a jurisdictional matter in that case. [00:08:37] Speaker 00: So that rule doesn't exist, and I guess that leads to my second point, which is that [00:08:43] Speaker 00: The good faith reliance exception requires law enforcement to rely on something in good faith, even if later it turns out, oh, we were wrong. [00:08:52] Speaker 00: And we just have the opposite here. [00:08:53] Speaker 00: There's no state court decision that existed in April 2018 that the government's identified or that I've been able to find or that's been cited in the numerous cases before this court. [00:09:03] Speaker 03: Is there an authority that goes the other way on the mandate rule issue that says law enforcement's required to [00:09:11] Speaker 03: endorse a case before the mandate comes out? [00:09:16] Speaker 00: No, this court has never recognized that the mandate has any effect on legal precedent. [00:09:25] Speaker 00: you know, correctly identified as a jurisdictional vehicle, essentially, marking the end of jurisdiction of this court to then spread the mandate. [00:09:32] Speaker 01: You know, it seems to me that we got a little bit sidetracked on that. [00:09:36] Speaker 01: The briefs did sidetrack us. [00:09:38] Speaker 01: I didn't think the key was so much the mandate hadn't issued yet, because that seems quite administrative. [00:09:45] Speaker 01: But to me, the key is that the Supreme Court [00:09:53] Speaker 01: had held this case while it was deciding McGirt. [00:09:59] Speaker 01: And yes, the mandate was restrained because of that. [00:10:02] Speaker 01: But that did inject uncertainty. [00:10:06] Speaker 01: When the Supreme Court takes one of your cases and takes cases from all over the nation and puts them on hold, [00:10:13] Speaker 01: They are just telling screening to the world, we may reverse all of you guys. [00:10:19] Speaker 01: And that's why we're holding it. [00:10:21] Speaker 01: So yes, the way we responded to the Supreme Court holding it was to defer the mandate. [00:10:27] Speaker 01: Why? [00:10:28] Speaker 01: Because the message was clear when the Supreme Court holds the case for some other case that they're considering. [00:10:35] Speaker 01: Most lawyers I know would say, oh, those cases aren't long for this world. [00:10:40] Speaker 00: That might be true. [00:10:42] Speaker 00: Supreme Court did not accept cert in Murphy until after the conduct. [00:10:46] Speaker 01: Oh, I'm sorry. [00:10:48] Speaker 01: I apologize. [00:10:49] Speaker 01: I jumped in too quickly. [00:10:50] Speaker 01: Say it again, because I may be mistaken. [00:10:52] Speaker 00: Sorry, Your Honor. [00:10:54] Speaker 00: The Supreme Court did not accept cert in Murphy itself until May of 2018, and the conduct here occurred in April of 2018. [00:11:05] Speaker 00: So we are talking about a short period of time where Murphy was the binding law, no doubt. [00:11:11] Speaker 00: And then if the cert grant is significant to this analysis, that didn't occur until after the conduct here. [00:11:18] Speaker 00: So again, if we're looking for something and the government has to identify something that law enforcement actually relied on here to excuse this violation of Mr. Little's Fourth Amendment rights, we still just, we don't have anything to point to in that brief time period. [00:11:36] Speaker 00: between November 2017 and May of 2018 when CERT was granted in Murphy itself. [00:11:44] Speaker 03: We've monopolized your time a little bit, but I would like to hear about your probable cause and prior acts argument also. [00:11:50] Speaker 00: Absolutely, Your Honor. [00:11:52] Speaker 00: So just quickly, because I think it's briefed in detail, and it is obviously totality analysis on the probable cause that I could spend hours on. [00:12:03] Speaker 00: There's two crucial problems here. [00:12:05] Speaker 00: And the first is that the trial testimony from the late detective contradicted the pretrial testimony about what actual surveillance evidence they had and whether it showed a truck resembling Little's with this identifying sticker or not. [00:12:21] Speaker 00: And the trial testimony says they only had the still photo from that aquatic center parking lot. [00:12:26] Speaker 00: It's extremely grainy. [00:12:28] Speaker 00: It's in the record. [00:12:28] Speaker 00: We submitted it to the court. [00:12:30] Speaker 00: That testimony is the volume one at 636. [00:12:33] Speaker 00: And the reason why I flagged that and we spent time on that is that the surveillance, that there was surveillance that purportedly tracked his truck around the area and sort of showed, mapped out that he could have been the one driving to where the railroad tracks were and then back. [00:12:53] Speaker 00: That was really crucial to the district court's probable cause finding pre-trial. [00:12:57] Speaker 00: And then these conflicting facts were just not addressed when the issue was renewed at trial. [00:13:03] Speaker 00: And so on this record, there is not a set of findings or uncontradictory facts that established probable cause on that crucial matter. [00:13:13] Speaker 01: Do we have to disregard the finding about the rifle and ammunition and so forth because all of that was predicated on the initial warrant, which was predicated on this, the determination about the grainy photograph. [00:13:32] Speaker 00: So the fruits, yes, the fruits of the arrest, whether it was without jurisdiction or without probable cause, whichever analysis, the fruits are the same. [00:13:42] Speaker 01: If you win on probable cause, we can't rely on all the weapons and so forth that was later discovered. [00:13:48] Speaker 00: Yes, they're all fruits. [00:13:49] Speaker 00: There's never been a dispute of fruits, but it's interrogation. [00:13:51] Speaker 01: So there was nothing except the identification of the truck in the green. [00:13:57] Speaker 01: That was the only basis for the further government actions. [00:14:01] Speaker 01: Is that what you're saying? [00:14:03] Speaker 00: I'm saying that at the time they arrested him, which was eight hours after the shooting, they did not actually have all of this surveillance evidence that they presented. [00:14:13] Speaker 01: What else did they have other than the truck? [00:14:15] Speaker 00: Other than that, they had just a grainy surveillance video that showed a white truck in Oklahoma near this parking lot near the area. [00:14:23] Speaker 00: And then they had conflicting and vague statements from people who came to the station and that they had phone interviews with about maybe there were threats between the two. [00:14:32] Speaker 00: But our friend, his name is Landon in the record, he has screenshots of it. [00:14:39] Speaker 00: But then when they spoke to that man, he said there was a, quote, conflict between the two. [00:14:43] Speaker 00: There was never dates, details, specifics to show that this was the nature of this conflict if there was one. [00:14:51] Speaker 01: But they had several people that had said there were conflicts between the two. [00:14:54] Speaker 01: I mean, didn't they have two or three people that say, look at him? [00:14:57] Speaker 01: If you're worried about who shot, there's the guy to talk to. [00:15:02] Speaker 00: So there were two people, and the record only shows that they were speculated, oh, maybe it was Mr. Little, just as Ms. [00:15:10] Speaker 00: Watkins said. [00:15:12] Speaker 00: But Ms. [00:15:12] Speaker 00: Watkins also, because this is a totality and we have to consider what establishes probable cause or might mitigate it, Ms. [00:15:19] Speaker 00: Watkins also said, I never heard of any conflicts between the two, and she's obviously the most connected to both. [00:15:27] Speaker 00: Maybe some indication that needs further investigation of maybe a dispute between the two, but we are not at the level of probable cause to arrest someone eight hours after this murder when the government hasn't done its due diligence and that the state officers didn't do their due diligence and actually follow up on these leads to see what had been said and when to see if that established that he was guilty of this murder. [00:15:51] Speaker 03: And I see it. [00:15:52] Speaker 03: I know your time's up, but I do want you to comment on the prior acts. [00:15:55] Speaker 03: Yes, absolutely. [00:15:57] Speaker 00: The reason this case is unique from most of the cases where this court affirms, I do understand it's a discretionary standard, but the reason this case is different is because the conduct here is both dissimilar and remote. [00:16:14] Speaker 00: And as I reread all the cases cited by the government and by us, one of those things isn't true, either it's, you know, [00:16:25] Speaker 00: a situation where there was a meth buy a year before or trying to buy meth in a kilo of meth a year before and then being found a year later with a kilo of meth with some distribution evidence. [00:16:38] Speaker 00: So that prior contact could come in. [00:16:40] Speaker 00: So maybe there's a long gap, but it's just completely on point situation. [00:16:47] Speaker 00: Or if there's different players like in, I'm sorry, [00:16:56] Speaker 03: But it goes to, they're introducing a pattern of jealousy and arguably violent statements and those sorts of things. [00:17:07] Speaker 03: Why wouldn't that be within the trial court's discretion to admit that for that limited purpose? [00:17:15] Speaker 00: Because that's just the purpose they identified and there still is the requirements of some similarity. [00:17:22] Speaker 00: That's the linchpin of the analysis. [00:17:24] Speaker 00: And again, it does not have to be identical, but especially when we're getting to years before this is allegedly happening, this is completely different conduct with three different men. [00:17:33] Speaker 00: And the government, you know, the facts that came out at trial, just nothing was similar to the actions here. [00:17:43] Speaker 00: And because there was [00:17:44] Speaker 00: different people involved. [00:17:46] Speaker 00: There's not one case cited in the briefing where it's similar for heartbeat information that came in. [00:17:53] Speaker 00: This one went a far field and it just wasn't similar enough. [00:17:56] Speaker 01: Why isn't the key issue similar? [00:17:58] Speaker 01: Key issue is somebody beats his old girlfriend and he is violent about it. [00:18:05] Speaker 01: That was common among all of them. [00:18:09] Speaker 01: At least he was making threats or was suspiciously acting. [00:18:13] Speaker 00: You don't need anything more common than that, do you? [00:18:22] Speaker 00: Just because it was helpful for the government to establish motive and gave a good theory doesn't mean that it still meets the similarity in the actual conduct that's alleged. [00:18:33] Speaker 00: And the conduct here was very different, and it was going to someone's house and saying, I tracked your phone. [00:18:39] Speaker 00: It was allegedly cutting break wires when Miss Watkins would have been in the car, which doesn't really make a lot of sense. [00:18:45] Speaker 00: you know, he wants to be with her. [00:18:47] Speaker 00: And then the third incident of sending new photographs to her current boyfriend at the time that she was also with Weatherford. [00:18:58] Speaker 00: So just none of those things are similar enough. [00:19:00] Speaker 00: They really do cross the line into just pure propensity that yes, he acted jealous and had a motive maybe based on these facts, but it shouldn't have ever come in because it's not similar enough. [00:19:13] Speaker 00: It doesn't meet the threshold standards. [00:19:15] Speaker 00: of some sort of similar conduct threat between. [00:19:17] Speaker 00: I see I'm well over. [00:19:19] Speaker 00: Thank you. [00:19:19] Speaker 03: Thank you. [00:19:20] Speaker 03: I appreciate it. [00:19:20] Speaker 03: I'll give you a few minutes for bottle also. [00:19:45] Speaker 02: Good morning. [00:19:45] Speaker 02: May it please the court. [00:19:47] Speaker 02: My name is Stephen Bryden. [00:19:48] Speaker 02: I'm here on behalf of the United States. [00:19:50] Speaker 02: I'd like to start with some of the issues that the court just discussed with my colleague. [00:19:55] Speaker 02: First, I had one point about the jurisdiction that I think didn't come up in the conversation that I wanted to make sure that I highlighted. [00:20:03] Speaker 02: When the government is [00:20:06] Speaker 02: referencing Bailey in the 28-J letter. [00:20:08] Speaker 02: What we're really talking about is in Pemberton, the court's looking at all of the historical circumstances, the legal landscapes, and the prevailing practices in 2004. [00:20:20] Speaker 02: And then the question that is posed by Bailey is, did Murphy change the analysis of those three things in the state of Oklahoma prior to issuing an immigrant decision? [00:20:32] Speaker 02: And what the court is going through in that analysis, while for sure they are relying on the fact that the magistrate agreed, they are still discussing that those same historical conditions, that same legal landscape, that area of confusion is still present. [00:20:47] Speaker 02: And so thus, you know, it is not inappropriate for, in that case, the magistrate, or the officers to rely on the magistrate's determination that it was appropriate. [00:20:57] Speaker 02: But again, that would extend with the exact same force to a law enforcement officer who, you know, [00:21:03] Speaker 02: This, what happened with Murphy and ultimately McGirt is a sea change in prosecution that is something that's not really precedented by anything else obvious in American history and required an entire retooling of how the criminal justice system worked. [00:21:20] Speaker 02: And I think this court recognized that in staying Murphy. [00:21:24] Speaker 02: And then the Supreme Court took multiple opportunities before it was even able to actually come to [00:21:30] Speaker 02: a final decision about what that did to the effect of jurisdiction in the state of Oklahoma. [00:21:35] Speaker 01: You know, I was a little, I expect I missed something, which is why I'm asking you to tell me what it is, but it seems that this prevailing opinion [00:21:46] Speaker 01: kind of evolved just from the tradition of everybody and their assumptions. [00:21:53] Speaker 01: Often when you talk about a prevailing law, there is a keystone case, a major controlling case that everybody relies on. [00:22:01] Speaker 01: Apparently we don't have that here. [00:22:03] Speaker 01: It's just the way people believed. [00:22:05] Speaker 01: Is that right? [00:22:07] Speaker 01: I think that's fair, Your Honor, to some extent. [00:22:10] Speaker 01: Isn't that a bit unusual? [00:22:12] Speaker 01: Usually, prevailing law, you trace it back to some defining case, and I didn't see that here. [00:22:21] Speaker 02: I'm not aware. [00:22:22] Speaker 02: At some point, reading through the history of McGirt, as they lay out, the state of Oklahoma took over prosecution of these offenses in Indian country. [00:22:31] Speaker 02: They just did it. [00:22:31] Speaker 02: They just did it. [00:22:33] Speaker 02: ninety years or a hundred years it really wasn't called into question uh... with with any frequency and it wasn't until you know it and there are a lot of very intelligent defense lawyers prosecutors and judges uh... who sat on the tenth circuit in the state of oklahoma at the time it just was not something that [00:22:51] Speaker 02: You know people argued but ultimately when this court you know came to the correct decision in Murphy and when the Supreme Court recognized that in McGirt that obviously was a significant change but expecting line police officers from the Janks Police Department in the you know two or three months after [00:23:10] Speaker 02: Murphy is issued with a hold of its mandate to recognize that it's a sea change to how everything needs to be handled in the state of Oklahoma is something that both you can see as a through line through Pemberton, through Patterson, and through Bailey. [00:23:24] Speaker 03: Why shouldn't police, you know, Murphy came out, [00:23:27] Speaker 03: Their lawyers can read it. [00:23:29] Speaker 03: It said no jurisdiction. [00:23:30] Speaker 03: I mean, yeah, it's a sea change, but why shouldn't we expect local law enforcement to acknowledge the force of our decisions and, you know, follow the reasoning of that and to disregard it would question their good faith. [00:23:45] Speaker 03: I mean, it's kind of a bright line, but it's a pretty good bright line. [00:23:49] Speaker 02: I agree, Your Honor, that police officers are expected to recognize the decision of the court and apply them as they can. [00:23:57] Speaker 02: But I think even in conversations where this would come up in another circumstance, it's not necessarily assumed that on the moment of they're going to get everything correctly. [00:24:06] Speaker 02: And especially when something is so significant as this, and the state of Oklahoma has had this authority for a long time, and this court by staying the mandate, [00:24:17] Speaker 02: you know, at least would appear to individuals in the state of Oklahoma and they acted on that appearance both in the court system and in the law enforcement system. [00:24:24] Speaker 03: They were just hoping it was wrong. [00:24:26] Speaker 02: Yeah, I can't speak to what they thought or what they hoped, but that is how everybody acted. [00:24:31] Speaker 03: Do you think the, so it's legally significant that the mandate had not issued in your view? [00:24:37] Speaker 02: I don't think it's dispositive either way, your honor. [00:24:40] Speaker 02: As counsel noted, and I think this court noted, I'm not sure that there's case law. [00:24:44] Speaker 02: Either way, certainly nothing that I found. [00:24:47] Speaker 02: But when you're talking about, again, you're putting yourself in the, or you're talking about the reasonable officer, whether the reasonable officer is going to understand that he immediately needs to do something that is contrary to this training and understanding. [00:24:59] Speaker 02: when that decision is stayed, that's a piece of information that weighs in favor of the officer's good faith and not something that would weigh in favor of him having to make it. [00:25:07] Speaker 01: So who, I mean, it seems to me the most realistic assumption would be that at the time of this event, a reasonable officer knowing that Murphy, Sir Ciari was up there, that the stay occurred, I mean that the man had been issued, [00:25:22] Speaker 01: I don't know that a lawyer would be able to say reasonably that the law is going to change or it's not going to change. [00:25:30] Speaker 01: All they can say is it's being re-examined. [00:25:35] Speaker 01: Who wins or loses if that is the only extent of what is reasonable? [00:25:40] Speaker 01: The officer says, I can't know that my conduct here is going to be wrong. [00:25:47] Speaker 01: I just know that it's going to be re-examined. [00:25:51] Speaker 01: At that point, doesn't the officers win that I'm not acting contrary to clearly established law? [00:25:58] Speaker 01: Ambiguity, the officer wins in an ambiguity case, doesn't he? [00:26:03] Speaker 02: Yes, your honor, and that's what the court pointed out in Pemberton when it was going through the analysis is that one of those big factors is, is there a clear statement of law from the 10th Circuit or the Supreme Court and the kind of [00:26:16] Speaker 02: morass of circumstances around this issue made it so that it was not a clear statement of the law. [00:26:21] Speaker 02: That's the only reason that Bailey can come out the way it does as well. [00:26:26] Speaker 02: If it was a clear statement of the law, then the magistrate in Murphy also shouldn't have got it wrong. [00:26:31] Speaker 02: The magistrate in Bailey. [00:26:32] Speaker 02: Oh, I'm sorry, Your Honor. [00:26:33] Speaker 02: You're correct. [00:26:33] Speaker 02: The magistrate in Bailey. [00:26:34] Speaker 02: I apologize for that. [00:26:35] Speaker 02: And so ultimately, considering that legal landscape, we believe that the good faith was appropriate. [00:26:42] Speaker 02: Moving on to probable cause, I think something that is important to note is that probable cause do not have to excuse all other possibilities or probabilities when you're looking at an officer's determination of probable cause. [00:26:57] Speaker 02: Number one, to address the inconsistent or allegedly inconsistent testimony, we've put out in our brief with specific citations of testimony [00:27:07] Speaker 02: In the suppression hearing, the officer testified that the police officers as a group had been canvassing, they had been looking at surveillance video, and that they had been speaking to witnesses. [00:27:19] Speaker 02: And this is all prior to arresting Mr. Little. [00:27:24] Speaker 02: And then there are specific questions because it was what was at issue in the suppression hearing about exactly what they had seen and what they had before they went forward with the arrest. [00:27:36] Speaker 02: And what they testified, what the officer Brown, now Chief Brown testified to, was that officers had seen the surveillance video. [00:27:43] Speaker 02: The only things that she had were the two still photographs from the surveillance video. [00:27:48] Speaker 02: In trial, there was no need to go through that testimony with that level of granular nature about exactly what you had when or where. [00:27:56] Speaker 02: It wasn't a suppression issue anymore. [00:27:58] Speaker 02: She reiterated her testimony that what she had at the point that they brought him into custody was the still grainy photographs, but she also makes statements that [00:28:08] Speaker 02: officers had been looking for a specific vehicle that stood out when they were looking at the surveillance video. [00:28:14] Speaker 02: That's her testimony. [00:28:15] Speaker 02: It's on 633, 634, and 636. [00:28:18] Speaker 02: She also talks about, again, having that conversation about the canvassing when they were looking at the videos. [00:28:25] Speaker 02: They're looking and talking to the officers. [00:28:27] Speaker 03: Is that grainy photo enough to link it to Little? [00:28:31] Speaker 03: I mean, you have a photo, and then [00:28:36] Speaker 03: The statements from the various witnesses, people that knew the background, there really wasn't anything specific other than a suspicion that he was the guy because he was a jealous type. [00:28:50] Speaker 03: But I don't think any of the witnesses had any direct evidence, did they? [00:28:58] Speaker 03: speculation, conjecture, at that point, I mean, maybe later there was more, but it seemed at the time of the arrest, there really wasn't a whole lot, was there? [00:29:07] Speaker 02: Well, there's a lot more than that and what counsel talked about as well. [00:29:12] Speaker 02: So just on the grainy photographs, again, there's also a witness statement where they identify the white truck with the sticker, and they talk to Ms. [00:29:19] Speaker 02: Watkins before they make the arrest, and Ms. [00:29:22] Speaker 02: Watkins identifies. [00:29:24] Speaker 02: Mr. Little's truck. [00:29:25] Speaker 02: And so, you know, while you can't necessarily say for certain from the grainy photograph that that's Justin Little's truck, if you have a guy on scene who says I see a white truck matching that description with a sticker, you see in the photographs the white truck, and then you have Ms. [00:29:39] Speaker 02: Watkins saying he's got a white truck with a sticker, that's actually pretty compelling evidence of probable cause that he's present. [00:29:46] Speaker 02: then what Ms. [00:29:47] Speaker 02: Watkins, the discussion just now was that Ms. [00:29:50] Speaker 02: Watkins said, well, I don't know why you would do it. [00:29:54] Speaker 02: If you look at what we cite in our brief, her testimony is a lot more direct than that. [00:29:58] Speaker 02: Her testimony is that she doesn't know anybody else who would have a motive to kill Mr. Weatherford other than Mr. Little and that essentially he's capable of doing it and that he's always armed, that he always has a firearm with him. [00:30:15] Speaker 02: In addition, you have the statements that you were just discussing from other people who had specific knowledge, whether they did not convey the specifics of it to the police at that time. [00:30:24] Speaker 02: They came and said, look, you need to look at Mr. Little. [00:30:28] Speaker 02: He has a history of threatening stuff directly to Mr. Weatherford. [00:30:34] Speaker 03: And so when you're looking at that probable cause termination... But they arrested him before they had the rifle, right? [00:30:40] Speaker 03: They did arrest him before they had the rifle. [00:30:42] Speaker 03: That's correct. [00:30:45] Speaker 03: Okay, so he's in the vicinity. [00:30:46] Speaker 03: He's arrested for first degree murder, right? [00:30:49] Speaker 03: He is. [00:30:50] Speaker 03: Well, he's arrested for Oklahoma State first degree murder. [00:30:52] Speaker 03: Okay, well, but really all they have is that he's in the vicinity of the shooting and a potential motive. [00:31:00] Speaker 02: Well, it's a little bit more specific than just in the vicinity of the shooting too. [00:31:04] Speaker 02: It is that they have him in the vicinity of the shooting. [00:31:08] Speaker 02: at the exact same time as the shooting. [00:31:10] Speaker 02: They have the call from Ms. [00:31:11] Speaker 02: Watkins ahead of time where he says, hey, I'm 10 or 15 minutes out. [00:31:16] Speaker 02: It later turned out he was in the parking lot when he made that call. [00:31:18] Speaker 02: But he makes that call saying, I'm 10 or 15 minutes out. [00:31:22] Speaker 02: And then we have him on the trail being in the location at the time. [00:31:26] Speaker 02: Because we have from those initial witness statements prior to the arrest, we know exactly what time the shooting was. [00:31:32] Speaker 02: And so it's not just that he's there about when it happens. [00:31:35] Speaker 02: He's there exactly when it happens. [00:31:37] Speaker 03: And what's the timeline of the interrogation? [00:31:40] Speaker 03: Was he arrested before and then Mirandized and then interrogated? [00:31:45] Speaker 02: Yes. [00:31:45] Speaker 02: As soon as they take him into custody at Ms. [00:31:47] Speaker 02: Watkins' house, Your Honor, he's taken into custody by multiple officers. [00:31:50] Speaker 02: He's put in custody. [00:31:51] Speaker 02: He's brought to the police department. [00:31:52] Speaker 02: So we don't argue that he wasn't in custody. [00:31:56] Speaker 02: He was read, as Miranda writes, prior to beginning that interview. [00:32:00] Speaker 02: He gets arrested, I believe, about 8 o'clock at night. [00:32:03] Speaker 02: And so they have already had their meetings with all the officers who are canvassing, looking at video on scene, talking to each other. [00:32:09] Speaker 02: They've already talked to Ms. [00:32:10] Speaker 02: Watkins. [00:32:11] Speaker 02: They've already talked to those other witnesses who are coming in with specific information about the history between them, even if it's not specific information about the incidents themselves. [00:32:20] Speaker 01: Did the video show other vehicular traffic in that area at the time, or did it just show the one greeny truck? [00:32:29] Speaker 01: At the time, I'm sorry, all the surveillance video entirely or that time? [00:32:33] Speaker 01: Well, no, at that time or within a few minutes around that time. [00:32:39] Speaker 02: So ultimately when they looked at all the surveillance video, that truck is the through line that they see. [00:32:43] Speaker 02: There are other vehicles on the road, but that truck is [00:32:49] Speaker 02: you know, the through line between all of those different videos. [00:32:52] Speaker 02: It's actually traveling on the route from Ms. [00:32:56] Speaker 02: Watkins' apartment complex following Mr. Weatherford as he's walking down ultimately to the train tracks. [00:33:03] Speaker 02: It stops at the Aquatic Center [00:33:05] Speaker 02: parks a place where it can't be seen behind a garbage container and then backs out again and then drives closer to the location where then you see the surveillance video where there is Mr. Weatherford and then being followed by the man in black or dark clothing. [00:33:23] Speaker 02: And then you see, again, that person running from that. [00:33:26] Speaker 02: And then you see in other surveillance video in the area, the truck leaving. [00:33:30] Speaker 02: We know it went up through the toll booth, which would have been on the way from where he was staying to Ms. [00:33:37] Speaker 02: Watkins' house had he actually been traveling the route he claimed he was. [00:33:41] Speaker 02: And then he ends up back at Ms. [00:33:42] Speaker 02: Watkins with his son. [00:33:44] Speaker 02: So the surveillance video ultimately is very compelling evidence that he was everywhere, he was alleged to be. [00:33:52] Speaker 02: And ultimately he himself in the interrogation, I know in the cumulative error argument, Appellant makes the argument that [00:34:00] Speaker 02: It's not even conclusive evidence that he was on scene from the surveillance video. [00:34:04] Speaker 02: He admits that he was there. [00:34:05] Speaker 02: He admits ultimately that he had followed him from the apartment complex. [00:34:10] Speaker 02: He claimed initially he was going to give him a letter because he was going off to be deployed in case something happened to him to tell him that he asked him to be a good stepparent or whatever to his son. [00:34:21] Speaker 02: But then when pressed by the police, no such letter actually existed. [00:34:25] Speaker 02: And so there was, he puts himself at the scene very, very clearly himself. [00:34:29] Speaker 03: Could you comment briefly on the prosecutorial misconduct issue that was raised by Mr. Little? [00:34:35] Speaker 02: So there are a couple different issues, or a couple different things they point to in the closing. [00:34:41] Speaker 02: First, the issue of whether or not saying somebody doesn't have, I see them out of time, but if I can answer briefly. [00:34:48] Speaker 02: No, go ahead. [00:34:49] Speaker 02: When he's talking about Mr. Lackey not having a dog in the fight, he's not making an express statement about credibility or not credibility. [00:34:57] Speaker 02: The jury's given instructions that says you have to look at biases. [00:35:00] Speaker 02: You have to look at reasons why people may tell the truth and may not tell the truth. [00:35:04] Speaker 02: At that point, the prosecutor is giving them his best estimation. [00:35:08] Speaker 02: And they ultimately have an instruction that tell them they need to rely on their own findings in making that decision. [00:35:15] Speaker 02: We agree, and we stated so in our brief, that the prosecutor did go slightly beyond the record in describing the statements that had come from the other individuals. [00:35:28] Speaker 02: While in previous hearings, we had discussed the content of those, they had not come out in the trial. [00:35:33] Speaker 02: And so it was not inappropriate for the prosecutor to say multiple people had come to the police department after the shooting. [00:35:40] Speaker 02: However, it was a step beyond the evidence to say, and that they all pointed towards Mr. Little. [00:35:45] Speaker 02: Although Ms. [00:35:46] Speaker 02: Watkins and one of the other individuals named did actually point to Mr. Little. [00:35:52] Speaker 02: And ultimately, we've cited some case law in our brief that says a straight comment like that is not something that should cause a case to be overturned absent of a showing of significant prejudice from that statement alone and considering the weight of the evidence on the other side that's not present here. [00:36:09] Speaker 02: Unless there are any specific questions, I would ask to uphold the decision. [00:36:14] Speaker 03: Thank you, Council. [00:36:16] Speaker 03: Could you give two minutes for rebuttal if you care for it? [00:36:23] Speaker 00: Thank you, Your Honors. [00:36:25] Speaker 00: Two quick points on rebuttal, the first to the good faith reliance issue. [00:36:30] Speaker 00: This court's cases, Gonzalez and Herrera read together, do create a bright line rule that when officers are acting without a warrant, they are presumed to have a reasonable knowledge of the law. [00:36:45] Speaker 00: And that if there is a 10th Circuit decision on point that says what they're going to do is illegal, [00:36:53] Speaker 00: then good faith reliance does not apply. [00:36:56] Speaker 00: And Herrera is particularly instructive because it was a decision where this court had already determined that random stopping for administrative searches under state law was not constitutional, that there was a different mechanism that they'd have to employ before just doing random seizures. [00:37:15] Speaker 00: And so the officer who then did that under that sort of complicated administrative law couldn't [00:37:22] Speaker 00: meet the good faith reliance exception. [00:37:26] Speaker 00: Because again, what's missing is the reliance on what because the case law said you had to do otherwise. [00:37:31] Speaker 00: So for this very narrow period between November 2017 and May 28, officers were bound to apply Murphy and respect this court's decision about jurisdiction. [00:37:43] Speaker 00: And because they did not do here, that exception has not been met on this record. [00:37:48] Speaker 00: And quickly as to PC to arrest him, the white truck with the sticker is not identifiable from that grainy surveillance still that was shown to Ms. [00:37:57] Speaker 00: Watkins. [00:37:59] Speaker 00: So that is not a fact that they had before the arrest. [00:38:02] Speaker 00: And Watkins also told Brown, the lead detective, that there was nothing out of the ordinary when she spoke to Mr. Little shortly after this. [00:38:11] Speaker 00: So again, neither side can cherry pick which facts this court considers, but under the totality, [00:38:18] Speaker 00: It just doesn't add up to probable cause to arrest, just a mere eight hours without more investigation. [00:38:24] Speaker 00: So thank you. [00:38:25] Speaker 03: Great. [00:38:25] Speaker 03: Thank you, counsel. [00:38:26] Speaker 03: We appreciate the fine argument. [00:38:27] Speaker 03: You're excused and case is submitted.