[00:00:00] Speaker 04: And our first case is 23-1156, United States versus Low, Mr. Wasowski. [00:00:27] Speaker 02: Good morning, Your Honors. [00:00:28] Speaker 02: May it please the court, Jason Wassocki. [00:00:31] Speaker 02: My membership through the court's CJA panel brings me here this morning. [00:00:36] Speaker 02: And I represent Mr. Lowe in this appeal. [00:00:39] Speaker 02: Three issues demand reversal of Mr. Lowe's conviction or his sentence. [00:00:45] Speaker 02: First, the search and seizure of a zip suitcase in a locked storage locker in a private apartment building violated the Fourth Amendment. [00:00:52] Speaker 02: Second, the gun found in that zip suitcase was not being used in furtherance of drug trafficking. [00:00:58] Speaker 02: Third, the base offense level must be 18, not 20, because this was a crime involving MDMA, not meth. [00:01:06] Speaker 00: Council, how did you preserve or where did you preserve your infervenance of argument? [00:01:11] Speaker 02: Yes, Your Honor. [00:01:13] Speaker 02: I appreciate the question. [00:01:14] Speaker 02: In our brief, I believe on page 11, we preserved that below both in the Rule 29 motion as well as in the motion to dismiss the indictment. [00:01:25] Speaker 02: The Rule 29 motion during trial specifically requested dismissal of [00:01:31] Speaker 02: the account for infurtherance of possession. [00:01:33] Speaker 02: It did not request dismissal of the account for mere possession. [00:01:38] Speaker 02: Council below argued that the infurtherance of possession had not been proved because the gun had not been tied to Mr. Lowe, and specifically at volume two of the transcript, pages 435 to 437, that's discussed. [00:01:58] Speaker 04: How do you reconcile this claim to an expectation of privacy in the suitcase with the denial that the loaded gun was not associated with his drug trafficking conviction? [00:02:12] Speaker 02: Well, yeah, I think the question that this court should ask itself is how can there be no basis to suppress because there isn't possession of the suitcase, and at the same time, he is in possession of a gun in the suitcase. [00:02:27] Speaker 02: And what's critical here in the possession, in furtherance of, is his access to this gun, which is non-existent. [00:02:37] Speaker 02: Mr. Lowe is in jail at the time this illegal search occurs. [00:02:41] Speaker 02: And his expectation of privacy is laid out by the government in its argument, in its witness testimony, when Officer Butchler, if I'm pronouncing that correctly, says that the informant told the officer, the probation officer, who's not there during the search, he's on vacation, [00:03:01] Speaker 02: which is another reason why this search violates the Fourth Amendment, which I can get to in a moment. [00:03:07] Speaker 02: But Officer Buchler says, this CI is reliable. [00:03:12] Speaker 02: This CI told me this was Mr. Lowe's stuff in the storage locker. [00:03:17] Speaker 02: So right there, we know that the possessions, the items in the storage locker are Mr. Lowe's, and that's a reasonable expectation of privacy that is both subjective and one recognized by society at large. [00:03:30] Speaker 01: You don't think that you need the defendant to affirm that, that it's enough just to show that a confidential informant said that. [00:03:38] Speaker 02: Yes, and I think what we need to do is look at what this search, the parameters of the search and the perspective of the officers, the Denver police officers who are doing this search, and Officer Buchler. [00:03:50] Speaker 02: They believe, or at least Officer Buchler does, that this is Mr. Lowe's possessions. [00:03:56] Speaker 02: The only reason they are there is because it is allegedly Mr. Lowe's possessions. [00:04:02] Speaker 01: So I'm intrigued. [00:04:03] Speaker 01: What is your best case where [00:04:06] Speaker 01: the defendant could preserve or at least establish a right or an interest in the property when he or she has not admitted an interest in that property but a confidential informant not identified precisely said that that was the case. [00:04:24] Speaker 02: Yes, so I think Rogers is a case in which just completely different from ours, which demonstrates why this case demands reversal. [00:04:36] Speaker 02: So in Rogers, you have a hotel room where the officers walk in. [00:04:42] Speaker 02: They see crack. [00:04:43] Speaker 02: They see a razor blade covered in cocaine. [00:04:46] Speaker 02: They have seen deals in manufacturing go down in that room. [00:04:52] Speaker 02: None of that exists here. [00:04:54] Speaker 02: There is no evidence whatsoever that there is any manufacturing, any distribution, any sales. [00:05:00] Speaker 01: Is that responsive to my question? [00:05:01] Speaker 01: My question was a case specifically where possession was established in the court's mind [00:05:10] Speaker 01: when the defendant never admitted to possession, but a confidential informant said the defendant had that possession. [00:05:19] Speaker 02: Yes, I believe that is the Freeman case, Your Honor. [00:05:25] Speaker 02: Where the cops searched, the defendants did not say that it was his stuff. [00:05:33] Speaker 02: And then, I apologize, Your Honor, it's not Freeman. [00:05:38] Speaker 02: I will tell you exactly which case it is. [00:05:41] Speaker 02: It's the one out of Kansas City where the Kansas City cops come in. [00:05:47] Speaker 02: And the court said, yes, Ruckman, excuse me. [00:05:51] Speaker 02: Ruckman says it's the Cave case. [00:05:53] Speaker 02: I apologize, Ruckman. [00:05:55] Speaker 02: Ruckman is 806 F-3 1471 in which this case said that the record contains no statement by Ruckman that he had any subjective expectation of privacy. [00:06:07] Speaker 02: Perhaps the filing of the motion to suppress presupposes such [00:06:10] Speaker 02: subjective expectation. [00:06:12] Speaker 02: No doubt, Ruckman would so testify. [00:06:15] Speaker 01: But that's not responsive to my question. [00:06:18] Speaker 01: My question wasn't whether you could make an inference from a filing of a motion to suppress or not, but you were asserting that because the confidential informant said this was his stuff, the suitcase and the stuff in it, and that that's enough to establish a possessory interest, even though the defendant never acknowledged it. [00:06:36] Speaker 01: And I'm asking, do you have any other case where [00:06:40] Speaker 01: without the defendant acknowledging or claiming that it was his stuff, that the informant was enough to establish his possessory interest. [00:06:50] Speaker 02: So there's no case with exactly the same facts with a confidential informant. [00:06:53] Speaker 01: Well, it's not even an exact, this isn't a nuanced issue. [00:06:56] Speaker 01: This is a core issue. [00:06:58] Speaker 02: But Ruckman says, this court said in Ruckman, we don't need to have somebody affirmatively testify or provide an affidavit that these are their possessions. [00:07:08] Speaker 02: We can, this court can, assume that these are his possessions from other evidence. [00:07:13] Speaker 02: And the other evidence here is very, very clear. [00:07:15] Speaker 02: Number one, the parole officer, probation officer, says this is his stuff. [00:07:21] Speaker 02: Cops, please go to this apartment. [00:07:23] Speaker 02: Look in this eighth floor storage unit area for stuff that I've been told is Mr. Lowe's. [00:07:30] Speaker 02: And that is enough to establish that this is Mr. Lowe's possessions for purposes of a suppression motion. [00:07:38] Speaker 00: But don't you have a problem even if you can satisfy the first part of the test and show a subjective expectation on the next part? [00:07:46] Speaker 00: How is it reasonable here? [00:07:48] Speaker 00: And particularly what I'm concerned about is that your client was not lawfully possessing the unit. [00:07:54] Speaker 02: Sure. [00:07:54] Speaker 02: Well, I think I would draw an analogy to something that maybe everybody in this room has had experience with. [00:08:00] Speaker 02: You're moving apartments from one apartment to another, and you have to store stuff maybe in an empty storage locker in the garage of the apartment you're moving into while you move back and forth. [00:08:12] Speaker 02: Does that, the fact that you don't rent that storage locker, it's not yours but you put a lock on it because you don't want somebody coming in the garage back and forth while your moving truck is getting filled or pickup trucks are getting filled and refilled, you have no subjective expectation of privacy. [00:08:27] Speaker 02: You know that society doesn't recognize an expectation of privacy there? [00:08:31] Speaker 02: Of course it does. [00:08:32] Speaker 02: This is a zip suitcase. [00:08:34] Speaker 02: There's nothing about the suitcase itself that is inherently suspicious. [00:08:37] Speaker 00: I appreciate your argument as a practical matter, but the Supreme Court tells us in Byrd that the central inquiry at this point turns on the concept of lawful possession. [00:08:45] Speaker 00: And so in your hypo, I don't see how that is satisfied. [00:08:49] Speaker 00: Maybe I'm missing something. [00:08:51] Speaker 02: Sure. [00:08:51] Speaker 02: Well, I think what's important for the court to understand is that the place is less important than the privacy expectation. [00:09:02] Speaker 02: I mean, the Fourth Amendment protects privacy, not property. [00:09:07] Speaker 02: It protects people, not places. [00:09:09] Speaker 02: And so when somebody has a zip suitcase behind a locked cage, [00:09:16] Speaker 02: with nothing about it that demonstrates the suitcase itself is suspicious for any reason whatsoever. [00:09:22] Speaker 02: There's some cardboard boxes and maybe some clothes in there as well, and I think a printer. [00:09:27] Speaker 02: There is absolutely an expectation of privacy that society is ready to recognize. [00:09:33] Speaker 04: Isn't it like I put my stuff in a neighbor's garage without his consent, and then I deny that it's my stuff, and then I trundle along later and say, oh, you know, [00:09:46] Speaker 04: I have an expectation of privacy in my stuff that was stored basically as a squatter without anybody's consent or knowledge. [00:09:55] Speaker 04: That just seems odd to me. [00:09:57] Speaker 04: you know, grant Fourth Amendment privacy protections in that circumstance. [00:10:01] Speaker 02: Well, I think what an interesting question to pose then would be, what if this wasn't, what if the same stuff was found in this suitcase, right? [00:10:10] Speaker 02: Drugs, a gun, a mask, etc. [00:10:13] Speaker 02: But it wasn't Mr. Lowe's, it was another tenant's. [00:10:16] Speaker 02: Does that change the outcome of this case? [00:10:19] Speaker 02: I think the fact that the district court was focused on Mr. Lowe having been on probation and the reduced standard of privacy that somebody on probation is subject to is what brought this case into a situation where suppression was denied. [00:10:38] Speaker 02: And the reality is that if this isn't Mr. Lowe's stuff, but it's somebody else's illegal contraband, I think this [00:10:45] Speaker 02: the district court have suppressed this stuff immediately. [00:10:48] Speaker 02: And the fact that it's the cops from the Denver Police Department and not Officer Beechler that do this search should not be lost on this court. [00:10:56] Speaker 01: Well, but they were in communication with the probation officer on that, and so isn't there some kind of, I mean, there's a doctrine that if a group works together in coordination, each, the information and authority of one can be attributed to the others as well. [00:11:12] Speaker 02: Well, I don't think this is a situation where agency law would really apply. [00:11:16] Speaker 02: I mean, Mr. Lowe's supervised release is very specific. [00:11:21] Speaker 02: The text is plain and unambiguous. [00:11:24] Speaker 02: He is subject to searches by a United States SEO officer, not any officer of the law, unlike the Knight's case, which arose out of California, which was a Supreme Court decision, where that defendant's [00:11:39] Speaker 02: Supervised release terms specifically allowed other officers to search. [00:11:45] Speaker 02: So there is no evidence that Officer Buescher was actually directing what was happening. [00:11:51] Speaker 02: There's some ambiguous testimony about him [00:11:55] Speaker 02: text messaging while he's on vacation. [00:11:57] Speaker 02: And the fact that this is not an urgent matter. [00:12:00] Speaker 02: I mean, Officer Buchler gets this tip at midnight. [00:12:03] Speaker 02: If he thinks this is all going to disappear in a moment, when does crime happen? [00:12:07] Speaker 02: It happens in the middle of the night. [00:12:09] Speaker 02: He waits eight hours. [00:12:10] Speaker 02: The officers get there at eight, eight, eight thirty in the morning. [00:12:14] Speaker 02: and take their time to eventually search. [00:12:16] Speaker 02: And so the search itself is illegal under the Fourth Amendment. [00:12:21] Speaker 02: I would like to turn to the base offense level in the MDMA, because this is something that the court should have little problem with. [00:12:32] Speaker 02: This case was about MDMA, not meth. [00:12:35] Speaker 00: What is our standard of review? [00:12:37] Speaker 02: Your standard of review, I believe, is abuse of discretion. [00:12:41] Speaker 02: And there is zero evidence that there is methamphetamine. [00:12:44] Speaker 00: I want to follow up on that. [00:12:47] Speaker 00: What exactly is your argument on the error? [00:12:50] Speaker 00: What is the error here? [00:12:52] Speaker 00: Is it that there was insufficient evidence to support the court's choice of base offense level? [00:13:00] Speaker 00: Is it a clear error argument? [00:13:01] Speaker 00: Are you challenging factual findings? [00:13:03] Speaker 02: I think it's both, Your Honor, because what is clear here is that there is no evidence of methamphetamine. [00:13:11] Speaker 02: The only evidence of methamphetamine is that the word methamphetamine is in the word for MDMA, methylene dioxide methamphetamine. [00:13:20] Speaker 02: That's it. [00:13:21] Speaker 00: Just to make sure I understand your argument. [00:13:23] Speaker 00: If you're arguing clear error, if you're saying that this court made any factual finding, what I was confused about with your brief is that you're suggesting that the lab report is ambiguous. [00:13:34] Speaker 00: Is it your position that the lab report is ambiguous? [00:13:37] Speaker 02: No, I think the lab report itself is clear there is no methamphetamine. [00:13:42] Speaker 02: What was argued below is that the lab report is somewhat ambiguous, but when you actually look at it, [00:13:48] Speaker 02: It finds 24.7 grams of MDMA. [00:13:52] Speaker 02: And there are zero grams, not even a trace, not a hint, not a dust speck of methamphetamine. [00:13:58] Speaker 00: Is identified not the same as trace? [00:14:02] Speaker 02: I think there has to be something there. [00:14:05] Speaker 02: You can't say, I mean, what? [00:14:07] Speaker 00: So trace is different than identified amount? [00:14:09] Speaker 02: Yes, trace, there is an amount. [00:14:11] Speaker 02: There is no amount when there is zero. [00:14:14] Speaker 00: But we haven't required quantification, have we? [00:14:15] Speaker 00: We haven't said you have to quantify the amount to satisfy the guideline. [00:14:18] Speaker 02: No, but you do have to have some. [00:14:20] Speaker 02: And all we have here is a very clear lab report that identifies 0.00 grams of methamphetamine. [00:14:28] Speaker 02: And if it pleases the court, I would like to reserve some time. [00:14:31] Speaker 04: You may. [00:14:31] Speaker 04: Thank you, Counsel. [00:14:37] Speaker 04: Let's hear from the government, Mr. McHill, when you're ready. [00:14:43] Speaker 03: Good morning, Your Honors. [00:14:44] Speaker 03: May it please the court, Jesse McHill from the United States. [00:14:48] Speaker 03: I'd like to take the issues sort of in reverse order and pick up where we just left off on the question of sentencing. [00:14:56] Speaker 03: Judge Rosman, you pointed out about the clear error standard. [00:15:00] Speaker 03: In the brief, it does refer to the report as being ambiguous at best. [00:15:04] Speaker 03: I frankly don't even believe that it's ambiguous. [00:15:07] Speaker 03: Half the report was cut off in the opening brief, the bottom half [00:15:14] Speaker 03: very clearly shows that there is a net in this substance. [00:15:19] Speaker 03: Now at the top of the report, which is in the brief, it says substances identified. [00:15:24] Speaker 03: Now it does not say 010 as a net weight. [00:15:29] Speaker 03: It just doesn't say anything there. [00:15:31] Speaker 03: This is a mixture that had multiple substances. [00:15:34] Speaker 03: It had MDMA. [00:15:35] Speaker 03: It had meth. [00:15:37] Speaker 03: A net weight is assigned to the MDMA. [00:15:39] Speaker 03: No weight is assigned to the meth, but that doesn't mean it's zero. [00:15:43] Speaker 03: You look further down this report, under exhibit analysis, MDMA and methamphetamine confirmed in the composite. [00:15:52] Speaker 00: So why does that satisfy the detectable amount requirement in the guideline, that it was confirmed? [00:15:59] Speaker 03: I think if you're [00:16:02] Speaker 03: to detect something, it has to be detectable. [00:16:05] Speaker 00: Well, that makes sense. [00:16:09] Speaker 00: Why isn't this case different, though, because of the substances involved and one is derived from the other? [00:16:14] Speaker 03: Well, I think what we've got are delineation of two different substances at the very top. [00:16:19] Speaker 03: It doesn't all roll it into MDMA as though meth is part of [00:16:23] Speaker 03: of MDMA. [00:16:24] Speaker 03: They are different substances. [00:16:25] Speaker 03: They are treated differently. [00:16:26] Speaker 03: They were analyzed differently. [00:16:28] Speaker 03: And it specifically says that they're both confirmed in the composite. [00:16:32] Speaker 03: I think that alone shows that it's detectable because it was detected. [00:16:36] Speaker 03: It's greater than zero. [00:16:38] Speaker 03: We don't know how much. [00:16:39] Speaker 03: VALVEZ does not require measurable quantifiable amounts. [00:16:43] Speaker 00: So that's where I was hoping you would go is to Valdez. [00:16:46] Speaker 00: Valdez requires a trace amount. [00:16:48] Speaker 00: A trace amount is a detectable amount. [00:16:50] Speaker 00: And so this would have us say that just identifying it in the composite satisfies. [00:16:56] Speaker 03: Well, I would say we have both identified and confirmed. [00:16:59] Speaker 03: So we know it's there. [00:17:00] Speaker 03: Now, if it's there, it's got to be. [00:17:03] Speaker 00: So is this just like Valdez, or is it different from Valdez? [00:17:05] Speaker 03: I think Valdez progresses. [00:17:07] Speaker 03: I really did whether we're using the term trace or not. [00:17:09] Speaker 03: Valdez says it doesn't have to be quantifiable or measurable. [00:17:13] Speaker 03: It just has to be there. [00:17:15] Speaker 03: And it is there. [00:17:18] Speaker 03: Going to the inferred elements for 924C. [00:17:24] Speaker 03: Again, Judge Rosman, you pointed out the preservation issue. [00:17:27] Speaker 03: I don't believe that this was preserved. [00:17:30] Speaker 03: I really do believe that this was forfeited to love because two very different elements are at stake here. [00:17:35] Speaker 03: One is possession. [00:17:36] Speaker 03: One is possession and the furtherance of a drug trafficking activity. [00:17:44] Speaker 03: The first time after the governance evidence, he renewed his rule 29. [00:17:49] Speaker 03: He didn't add any additional substantive comments. [00:17:51] Speaker 03: So what we've got is just the one argument on rule 29. [00:17:54] Speaker 03: He says, there's nothing tying me to the gun. [00:17:57] Speaker 03: There's nothing tying me to the drugs. [00:18:00] Speaker 03: That's the possession on it. [00:18:01] Speaker 03: The question is, is there anything tying the gun to the drugs? [00:18:05] Speaker 03: That's the furtherance element. [00:18:07] Speaker 03: There's no argument about that. [00:18:09] Speaker 03: So in this case, what we've got is a very specific argument in a Rule 29 motion as to one element, no reference made to the other elements. [00:18:18] Speaker 03: Now we get it on appeal, and we're raising a different element. [00:18:23] Speaker 03: That is the classic forfeiture. [00:18:24] Speaker 03: That is refined, that is left learned. [00:18:27] Speaker 00: But didn't the district court pass on all the elements? [00:18:29] Speaker 03: The district court did, but there's still an obligation on the part of the litigant to properly present the issue. [00:18:36] Speaker 03: I mean, that's why we have forfeitures is so that the district court has an opportunity to flush these issues out, to present with the argument. [00:18:44] Speaker 03: I mean, it would be nice if the district court had these same arguments made to it. [00:18:49] Speaker 03: But it didn't. [00:18:51] Speaker 03: The inference element is a very specific [00:18:54] Speaker 03: tethering of the gun and the drugs. [00:18:56] Speaker 03: And we've got eight different factors that this court has looked at in the King cases, Rogers. [00:19:05] Speaker 03: There was no chance to ever flesh that out. [00:19:06] Speaker 03: The court just kind of did a quick run through of all the different elements. [00:19:10] Speaker 03: And it says, yeah, this is inferred. [00:19:12] Speaker 03: And it didn't speak much more to it because it wasn't presented. [00:19:16] Speaker 03: And by no argument on plain error, on appeal, now it's waiting. [00:19:21] Speaker 03: There wasn't even an argument in the reply brief that, hey, plain error should apply. [00:19:26] Speaker 03: Or even, I've disagreed with your preservation, but alternatively, plain error should apply. [00:19:31] Speaker 03: I mean, Loeffler actually involved a plain error being raised for the first time in a reply brief. [00:19:37] Speaker 03: And the court still said, [00:19:38] Speaker 03: We're not going to reach it. [00:19:39] Speaker 03: We're not going to reach this issue. [00:19:41] Speaker 00: Zander says it's OK, though. [00:19:42] Speaker 00: Pardon? [00:19:43] Speaker 00: Zander says it's OK, though, to raise it in a reply brief. [00:19:45] Speaker 00: But here, that's not the case. [00:19:47] Speaker 00: Correct. [00:19:47] Speaker 03: Yes, Your Honor. [00:19:48] Speaker 03: There are times when, if it's raised in a reply brief because forfeiture waiver is raised by the government, there has to be an opportunity to challenge that. [00:19:57] Speaker 03: So I mean, I could go on about the merits. [00:20:01] Speaker 03: I do think there needs to be a nexus between the gun and drugs. [00:20:04] Speaker 03: I think there's a very clear nexus here. [00:20:07] Speaker 03: The gun and the drugs, it's not just about proximity. [00:20:11] Speaker 03: They were in the same compartment, the same suitcase, with drug paraphernalia, ledgers describing purchases of zip molly. [00:20:21] Speaker 03: I mean, yeah, there may not have been a meth lab, I think, as counsel would describe. [00:20:26] Speaker 03: But this is a drug trafficking operation. [00:20:29] Speaker 03: It's all present right there. [00:20:31] Speaker 03: All the factors that King talked about, type of drug activity, this is possession with intent distributed. [00:20:38] Speaker 03: This is not simple possession. [00:20:40] Speaker 03: It's extensive evidence of narcotics trafficking. [00:20:43] Speaker 03: He's even got his own brand, a little devil smiley face on the baggies. [00:20:49] Speaker 03: Accessibility of the gun. [00:20:59] Speaker 03: me to expression, and I think there's essentially four different issues. [00:21:05] Speaker 03: Subjective expectation of privacy, I don't believe it's been that objective, legitimate expectation of privacy. [00:21:12] Speaker 03: Alternatively, there's two different probationary exceptions, assuming that they are separate exceptions, special needs, totality of the circumstances. [00:21:21] Speaker 03: I want to start with [00:21:22] Speaker 03: the subject of the expectation of privacy. [00:21:25] Speaker 03: And I also want to be very clear that what we're looking at, it's just the storage unit and the luggage. [00:21:32] Speaker 03: The cell phone was raised in the opening brief, wasn't discussed in the reply brief, wasn't part of the motion to suppress. [00:21:40] Speaker 04: Do we have to treat the suitcase in the storage unit the same as the storage unit or does that require a different level of [00:21:48] Speaker 03: analysis private privacy expectation but i think kind of the first question is that this the process the storage unit itself and that's why what i thought about it the croft case sorority center once there's if there's no expectation process there's also no expectation privacy a closed container suitcase whatever that's left there if you can [00:22:11] Speaker 03: just sort of dump your stuff in a place that you have no right to be and then say, well, I've got a right and expectation of privacy as long as that suitcase is zipped. [00:22:19] Speaker 03: The question is the place where the stuff is. [00:22:22] Speaker 03: And here, there's no subjective expectation of privacy in the storage unit. [00:22:28] Speaker 03: And the district court found that. [00:22:31] Speaker 03: The burden, frankly, is on the defendant to show by a preponderance that he has a subjective expectation. [00:22:37] Speaker 00: How does the defendant satisfy that burden in the government's view? [00:22:40] Speaker 00: Do you need an affidavit? [00:22:41] Speaker 03: I think there are multiple ways that this could be satisfied. [00:22:46] Speaker 03: for the students behind, for the longest time, defendants were presented with a Hobson's Choice. [00:22:52] Speaker 03: They wanted to establish standing for purposes of suppression. [00:22:56] Speaker 03: But whoever wants to say, yeah, those are my drugs. [00:22:59] Speaker 03: That's my gun. [00:23:00] Speaker 03: Nobody ever wants to say that. [00:23:01] Speaker 03: The Jones case used the quote about, men may win set at claiming ownership of contraband. [00:23:07] Speaker 03: Of course, which is why we have Simmons. [00:23:10] Speaker 03: Simmons v. United States cleared that up, eliminated the Hobson's Choice, and said, [00:23:15] Speaker 03: You can present evidence, you can testify at a suppression hearing to establish standard and then not have that used against you at trial. [00:23:24] Speaker 03: But the defendant in this case did not take advantage of Simmons. [00:23:27] Speaker 03: That was a strategic choice, a conscious choice. [00:23:31] Speaker 03: Whether it was good or bad, it's not for me to say. [00:23:33] Speaker 03: But the fact is that there's no testimony. [00:23:36] Speaker 03: There's no affidavit. [00:23:38] Speaker 03: There's not even a stipulation. [00:23:39] Speaker 03: There's nothing that says, that was my storage unit. [00:23:42] Speaker 03: I expected privacy in it. [00:23:44] Speaker 03: Or even something simpler, something going to the specific facts. [00:23:47] Speaker 03: I was the one that put that lock on. [00:23:50] Speaker 03: I'm the only one that has a key. [00:23:52] Speaker 01: And additionally, the fact is that there was a lock, and apparently he had access to the lock. [00:23:58] Speaker 01: I'm not so troubled about, [00:24:00] Speaker 01: the subjective evidence when you have it in a cage with a lock that you have the access to. [00:24:08] Speaker 01: I'm really eager for you to get to the second prong, which you said you would, which is the objective. [00:24:14] Speaker 01: And I'm particularly curious about and a potential analogy to people that put up tents on public property to sleep, homeless people that have tents and they've just put them up on the public ground that they have no right to be on. [00:24:30] Speaker 01: Could somebody, is that analogous? [00:24:34] Speaker 01: Do they have a right of privacy in the stuff inside their tents? [00:24:39] Speaker 01: And could somebody just come and just take anything they want from that tent, or a police officer could just bust into a tent without any repercussions, even though somebody was living there? [00:24:52] Speaker 01: What law about that do you have? [00:24:56] Speaker 01: Well, fortunately, this case does not require me to go down that route, but I think... Well, it seems to me it's analogous in that you got a tent, you've zipped it, you probably put a little padlock on the zip, but you're not in a place you have a right to be on. [00:25:10] Speaker 01: This guy, same way, he's in a place he didn't have a right to be, but he had a lock on the door [00:25:16] Speaker 01: So I think there is an analogy, but whether it is not perfect, but my question still stands. [00:25:23] Speaker 01: What law is there about the right of privacy in tents on public land? [00:25:29] Speaker 03: So I do not have any specific case, but I would talk about, again, where is the tent? [00:25:34] Speaker 03: Is it on public property? [00:25:36] Speaker 03: Is it on a sidewalk? [00:25:37] Speaker 03: Is it on somebody's private property? [00:25:39] Speaker 03: I think that's going to be one key distinction as to whether this person is essentially trespassing [00:25:45] Speaker 03: I'm not sure. [00:25:47] Speaker 01: What line do you have about that? [00:25:48] Speaker 01: I mean, whether it's on public property, public or private property, it's not on his property. [00:25:53] Speaker 01: That's the important thing. [00:25:55] Speaker 01: I don't see that other distinction as much to the analysis. [00:25:59] Speaker 03: But go ahead. [00:26:00] Speaker 03: Well, property concepts are just instructive. [00:26:02] Speaker 03: They are not dispositive. [00:26:03] Speaker 03: That's the first starting point. [00:26:05] Speaker 03: I think Rokas and Bird talk about we're not going to say that somebody has to have a property interest. [00:26:11] Speaker 03: But I do think if somebody is setting up a tent [00:26:15] Speaker 03: My front lawn necessarily, that is my private property. [00:26:19] Speaker 03: Now that's becoming a trespass. [00:26:21] Speaker 03: That's a different scenario than just being on the sidewalk. [00:26:24] Speaker 03: I understand your Honor's point. [00:26:26] Speaker 01: I think that we're somebody- Bottom line is you don't have any cases that, in the context of people living, [00:26:36] Speaker 01: through tents or sleeping bags or someplace on property they don't own, as to whether there's interest in privacy for those people or not. [00:26:44] Speaker 03: I do not. [00:26:44] Speaker 03: That was a research trail. [00:26:46] Speaker 03: This case may not take me down. [00:26:47] Speaker 03: But I do think that a key point for the objective problem is, is society prepared to recognize something as legitimate? [00:26:57] Speaker 03: And I think that, you know, would your honor's hypothetical, you know, would society be prepared to recognize this legitimate? [00:27:05] Speaker 03: If somebody has a tent on the sidewalk, do they have an expectation of privacy? [00:27:10] Speaker 03: I think it's a troubling issue. [00:27:12] Speaker 03: It's one that is facing political leaders and people at a far higher pay grade than they may. [00:27:16] Speaker 00: So what's your best case for this point? [00:27:18] Speaker 00: Is it Croft? [00:27:20] Speaker 03: for the object of expectation. [00:27:22] Speaker 00: Yes. [00:27:22] Speaker 03: I would say that there's two key cases. [00:27:24] Speaker 03: I would say Ruckman and Judge Ebell, your decision in Johnson as well. [00:27:29] Speaker 03: Ruckman being a squatter case. [00:27:32] Speaker 03: And again, in that case, it was a squatter living in a federal cave. [00:27:37] Speaker 03: What the court said is this person could [00:27:40] Speaker 03: And that person did actually manifest a subject of expectation privacy. [00:27:45] Speaker 03: There actually was evidence that he put up a, I believe it was a wood plywood to block the door. [00:27:53] Speaker 03: This was his home. [00:27:54] Speaker 03: The dissent really delves into that this was this person's home. [00:27:58] Speaker 03: And maybe Rockman is actually somewhat instructive as to the tent issue. [00:28:05] Speaker 03: The key there was he was squatting. [00:28:08] Speaker 03: He did not have a lawful right and thus could be ousted by the rightful owner at any time, which is exactly what happened. [00:28:13] Speaker 03: Eventually the federal government said, you've got to go, and in the process did fine drugs. [00:28:18] Speaker 03: The second key case is Johnson. [00:28:20] Speaker 03: Johnson, I think, is particularly on point because it deals with storage units. [00:28:24] Speaker 03: Now in that case, the defendant obtained the storage unit through fraudulent identity. [00:28:32] Speaker 03: He used somebody else's ID to then rent the unit. [00:28:37] Speaker 03: What I think is interesting is that Johnson cites to a nicer case called Cayman. [00:28:42] Speaker 03: And Cayman specifically, and relies extensively, actually, throughout the decision of Cayman, Cayman said there's no difference between fraud, trespass, theft. [00:28:51] Speaker 03: The key is it all boils down to was it wrongful. [00:28:54] Speaker 03: And we get that terminology out of the Raqqa's case recently used again in Byrd. [00:29:00] Speaker 03: What this really boils down to is someone does not have a legitimate expectation of privacy in not being caught. [00:29:08] Speaker 03: That is, again, from Bird. [00:29:10] Speaker 03: The car thief does not have a legitimate expectation of privacy driving around in a stolen car. [00:29:16] Speaker 03: The burglar plotting his trade at the summer cabin during the off season does not have a reasonable expectation of privacy. [00:29:24] Speaker 03: Somebody coming in using a storage unit they have no right to, [00:29:29] Speaker 03: And someone, again, we don't know is the defendant, slapping a lock on it, tossing his stuff in, and then hoping not to get caught. [00:29:35] Speaker 01: Well, we're pretty sure it was the defendant because he could open the lock. [00:29:38] Speaker 01: He could get into it. [00:29:39] Speaker 01: So either he put it on or somebody put it on and gave him access rights to it. [00:29:45] Speaker 03: Well, in this case, I have a point to the opening brief of 49 says there's no evidence that he had a key. [00:29:51] Speaker 01: So we don't know. [00:29:52] Speaker 01: Well, and the phone calls, he was asking his wife to go in there and check things. [00:29:59] Speaker 01: I mean, he obviously assumed there is evidence that he had access to it, I think. [00:30:04] Speaker 03: No, I think the phone calls are particularly damaging evidence at trial. [00:30:08] Speaker 03: But they were not evidence. [00:30:10] Speaker 01: They're not an unmixed piece of evidence for him by no means. [00:30:16] Speaker 01: But still, I think, at least on that narrow issue, [00:30:19] Speaker 01: It does suggest that he had access to it. [00:30:23] Speaker 03: And I would agree with you, Your Honor, if they were introduced at the suppression hearing. [00:30:27] Speaker 03: The calls did not come in at the suppression hearing. [00:30:29] Speaker 03: They did not come in and took trial. [00:30:31] Speaker 03: And so what we don't have evidence at the suppression hearing, which is when he has the burden of showing standing, he has the burden of showing that it's his locker, that it's his stuff. [00:30:42] Speaker 03: He didn't [00:30:43] Speaker 03: That's why we have Simmons, so that he could have offered some evidence. [00:30:47] Speaker 03: It wasn't the government's job to say, and I'm not even sure when they actually obtained those calls. [00:30:52] Speaker 03: That may have come after this question here. [00:30:54] Speaker 03: I don't know that for a fact. [00:30:55] Speaker 03: The point is it wasn't introduced. [00:30:58] Speaker 04: I think your time's expired. [00:31:00] Speaker 04: We appreciate your evidence. [00:31:01] Speaker 03: Thank you very much. [00:31:02] Speaker 04: Mr. Wassocki, you have a few seconds of rebuttal. [00:31:13] Speaker 02: First, on the preservation, I would draw the court's attention to page 437 of the October 13th transcript in which counsel for Mr. Lowe specifically talks about the close proximity of the firearm, which is one of the factors that a court would consider to determine whether a gun was possessed in furtherance of a drug trafficking crime. [00:31:37] Speaker 02: I think this issue was raised below. [00:31:41] Speaker 02: In the motion, it was then reiterated in the Rule 29 motion during the trial, and it is thus preserved. [00:31:48] Speaker 02: As far as the question about Croft, Judge Rossman, I think Croft is interesting here because Croft, there is a warrantless search of the hotel room. [00:32:03] Speaker 02: The cops do not seize anything. [00:32:06] Speaker 02: Instead, what happens is the hotel manager takes possession of the items, and then, I believe it's three weeks later, then the FBI comes and takes the items. [00:32:16] Speaker 02: If I may finish. [00:32:17] Speaker 02: Go ahead. [00:32:17] Speaker 02: Finish your thought. [00:32:19] Speaker 02: So what happens here is the cops come to the storage locker, contrary to Croft, and they take everything. [00:32:27] Speaker 02: They rummage through the zip suitcase. [00:32:30] Speaker 02: They take what they want. [00:32:31] Speaker 02: They leave a bunch of stuff there. [00:32:34] Speaker 02: And they only take some of the items. [00:32:37] Speaker 02: The property manager, the property management company never possesses this stuff, and the cops never come subsequently to get it. [00:32:45] Speaker 02: And that's an important distinction here, because what we have is a search and seizure by the police. [00:32:52] Speaker 02: In Croft, what you have is a warrantless search, but no seizure. [00:32:56] Speaker 02: We would ask that the court reverse and remand either for re-sentencing on the MDA issue or reverse and remand for an instruction request. [00:33:08] Speaker 04: Thank you. [00:33:08] Speaker 04: Thank you, counsel. [00:33:10] Speaker 04: Very much appreciate the fine arguments this morning. [00:33:13] Speaker 04: Counsel are excused and the case will be submitted.