[00:00:00] Speaker 02:
Case 4154, United States versus Pinder.

[00:00:04] Speaker 02:
Judge Rossman, it's your turn.

[00:00:06] Speaker 04:
It's my turn?

[00:00:07] Speaker 02:
Yeah, it's your turn.

[00:00:09] Speaker 04:
So our next case is United States versus Pinder.

[00:00:11] Speaker 04:
And it comes to us out of the United States District Court for the District of Utah, which is one of the states in the 10th Circuit from which we hear appeals.

[00:00:22] Speaker 04:
Mr. Pinder filed a motion to suppress evidence that was found during a warrantless search of car he was driving, arguing a violation of the Fourth Amendment, the United States Constitution.

[00:00:34] Speaker 04:
The court denied Mr. Pinder's motion, and he has filed this appeal.

[00:00:39] Speaker 04:
And he now asks this court to reverse the district court's order denying his motion to suppress the evidence and to remand this case back to the trial court for further proceedings.

[00:00:53] Speaker 02:
Ms.

[00:00:56] Speaker 02:
Glenn.

[00:01:00] Speaker 03:
May it please the Court, Patricia Gary Glenn on behalf of Taylor Nelson Pinder.

[00:01:07] Speaker 03:
This case asks this Court to weigh in on the second prong of Gantt, the seminal case that brought a shift or a sea change, depending on how you look at it, to the Fourth Amendment jurisprudence regarding any time you have a

[00:01:23] Speaker 03:
vehicle stop, a vehicle, arrest of an occupant in a vehicle and search incident to that arrest.

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And for 38 years prior to that jurisprudence had evolved such that officers under Chameleau v. California and Belton v. New York, officers had automatically searched

[00:01:49] Speaker 03:
the car whenever they had arrested one of its occupants.

[00:01:53] Speaker 03:
And it became, I think we have Justice Scalia and Justice O'Connor both were lamenting the fact that it had become an entitlement or a right as opposed to an exception to a rule requiring a warrant.

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So it's pretty automatic and police practice for many, many years.

[00:02:13] Speaker 03:
And so then it became, it derived from the two rationales, what they call the chimmel rationales, which are the officer safety and destructibility of evidence in the car.

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And that largely was due to

[00:02:33] Speaker 03:
whether the person once arrested was in reaching distance of the passenger compartment.

[00:02:39] Speaker 02:
But if the officers have probable cause to believe there's evidence of the crime in the car, they could search without a warrant.

[00:02:50] Speaker 03:
That's... That's a different exception.

[00:02:53] Speaker 02:
That's the auto... Yes, right.

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But if the officers here had probable cause, there's no problem.

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Is that right?

[00:03:01] Speaker 02:
with the search?

[00:03:02] Speaker 03:
Well, this case was not decided upon the automobile exception, and that's because they had probable cause to arrest him for... That was not argued below at all, the automobile exception?

[00:03:15] Speaker 03:
Initially, the government kind of threw it out there, but it didn't ever have any legs, and the district court certainly did not.

[00:03:24] Speaker 03:
Didn't have legs?

[00:03:26] Speaker 02:
It didn't have legs.

[00:03:26] Speaker 02:
Well, because... Or the district court just didn't rely on that?

[00:03:30] Speaker 03:
The district court

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I wouldn't go so far to say that the district court summarily rejected it, but it wasn't an issue that was thoroughly briefed.

[00:03:42] Speaker 03:
And that is because you would have, I mean there's, that is because there's a big, I'm trying to explain that in a short way.

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That is because there was probable cause to arrest him

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for giving someone else's ID to the officer, but that doesn't mean there would be probable cause to search the vehicle.

[00:04:09] Speaker 03:
I mean, you wouldn't have, it would render the second prong against the perfil as if it was the same as the automobile exception.

[00:04:18] Speaker 04:
So the question before us, whether the offense of arrest supplied a basis to search the vehicle, right?

[00:04:24] Speaker 04:
Excuse me, say that again.

[00:04:26] Speaker 04:
Is the question before us, whether the offense of arrest supplied a basis for searching the vehicle for additional evidence relevant to the offense?

[00:04:35] Speaker 03:
Well, Your Honor, actually it's much more complicated than that.

[00:04:39] Speaker 03:
That's actually what the court needs to decide.

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And the reason it's such an important case is because

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You had, for the longest time you had, anytime you put some, you, let's start over with that.

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The reason it's so important is because Gantt did away with, I mean, didn't overrule Belden, but it basically changed the search incident to arrest so that you had two things.

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One was the person within,

[00:05:14] Speaker 03:
reaching distance of the passenger compartment and to whether it was reasonable to believe that evidence of the crime of arrest would be contained in the car.

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And so this concerns the second prong.

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And the offense of arrest is false identification to a police officer.

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And if it were so easy that you could just

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decide, and that's the difference between the categorical approach and the reasonable suspicion approach.

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Basically, that's what we've hit on.

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And what happened in Belton, I mean in Gantt, was they took the concurrence from Justice Scalia and Thornton that, I mean, Justice Scalia believed that we should just abandon the charade of officer safety.

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and abandon that entirely.

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Instead, what we've kind of done now is we've replaced it with another charade on the second prong.

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The second prong of Gantt comes from Justice Scalia's dissent, I mean, sorry, concurrence in Thornton.

[00:06:25] Speaker 04:
Are you arguing that a real driver's license is irrelevant to the crime of arrest here?

[00:06:38] Speaker 03:
No, it's not irrelevant at all.

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In fact, that's what the problem is with district court decisions.

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Basically, to uphold the district court decision, you would have to eliminate the reasonable to believe standard out of the reasonable to believe second prong of Gantt.

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You have to have a reason.

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In other words, you don't get to where it's relevant if found.

[00:07:05] Speaker 03:
Gantt requires you to have

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a reason to believe it's going to be found in the car.

[00:07:14] Speaker 03:
So is your... Oh, sorry.

[00:07:15] Speaker 02:
Well, I think you're going to answer the same question.

[00:07:17] Speaker 02:
No, you go ahead.

[00:07:20] Speaker 02:
Don't you think it's reasonable to think that the driver of a vehicle who doesn't have his license on this person

[00:07:28] Speaker 02:
would have it in the car?

[00:07:30] Speaker 03:
Well, that's the problem with the district court decision.

[00:07:34] Speaker 03:
So let's back up.

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I mean, we don't have a short amount of time.

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And actually, we're asking the court to do more than weigh in.

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Some people have already put the 10th Circuit in the camp of the reasonable suspicion standard as opposed to the categorical approach.

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A categorical approach to this does exactly what Judge Hart's just asked.

[00:08:03] Speaker 02:
Doesn't that also satisfy reasonable suspicion?

[00:08:06] Speaker 02:
No.

[00:08:07] Speaker 02:
It's a reasonable suspicion to believe that someone would keep the license, the driver's license in the car if it's not on the person's person.

[00:08:17] Speaker 03:
Well, and that's what the district court found was, well, people commonly keep licenses in their car.

[00:08:22] Speaker 02:
Do you disagree with that reasoning by the court?

[00:08:26] Speaker 03:
That would be what is considered a categorical approach that divides the offenses and looks at whether the offense in and of itself is one that would yield physical evidence or would not.

[00:08:43] Speaker 03:
And I think one of the things to look at in deciding that would be to look at Justice Alito's dissent in a couple of petitions of cert that have come up, one of his major.

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What he says is that the reason for his dissenting is that he wants this to be addressed because there's never been any independent explanation or there's never been any meat on the bones of that standard.

[00:09:13] Speaker 03:
No, it's not.

[00:09:14] Speaker 03:
You don't have a reasonable suspicion based on the fact that this offense is going to people keep drivers licenses in the car.

[00:09:25] Speaker 03:
You're going to have, I mean, you have to back up to the evolution of it also.

[00:09:30] Speaker 03:
You have to go through, I mean, how this first happened was Gantt went up, I mean, cases after Gantt, the United States Supreme Court in Davis v. United States, you know, at that point we're deciding whether to apply the exclusionary rule to cases after Gantt because the search was unconstitutional.

[00:09:52] Speaker 03:
And so in that case,

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They kind of said, well, you know, suspended license wouldn't be an offense where you would be likely to find evidence in the car.

[00:10:06] Speaker 03:
But actually, in Gantt, the Attorney General argued that in Arizona, you would expect to find evidence of suspended license in the car.

[00:10:15] Speaker 03:
You would have to because they have to

[00:10:17] Speaker 03:
and they could have sent a notice, they could have sent all kinds.

[00:10:19] Speaker 04:
I thought your argument was that once the officers determined his identity, the real identification was no longer relevant and the arrest defense didn't supply a basis for searching the vehicle.

[00:10:34] Speaker 04:
Wasn't that your argument?

[00:10:35] Speaker 03:
No.

[00:10:36] Speaker 04:
That's not your argument?

[00:10:36] Speaker 03:
No, it's always would be relevant if found.

[00:10:40] Speaker 03:
What happened is that in Davis v. United States v. Davis, the underlying case

[00:10:47] Speaker 03:
They argued that it was very inartfully drawn and it said, this is not a crime, the false identification wouldn't be an offense, which evidence would be found in the car.

[00:10:58] Speaker 03:
And then they put because, because they'd already verified his identification.

[00:11:03] Speaker 03:
And so that kind of led to a rule going in.

[00:11:06] Speaker 03:
So initially that is true because the United States Supreme Court case of Davis v. United States found that

[00:11:16] Speaker 03:
basically said the search was unconstitutional.

[00:11:20] Speaker 03:
So that kind of developed along this false identification then is an offense for which it would not be an offense for which you could expect to find evidence in the car.

[00:11:31] Speaker 03:
As a practical matter, there's no way you can easily define offenses of arrest into categories that aren't going to have to have some sort of fact from the officer

[00:11:46] Speaker 03:
providing a reason why they think it's in the car.

[00:11:49] Speaker 03:
For example, there's a Gomez case in Utah where the guy said, my license is in the car somewhere.

[00:11:57] Speaker 03:
Well, there's a reason.

[00:11:59] Speaker 03:
That was one reason.

[00:12:01] Speaker 03:
But by and large, I mean, one of the things just Alito says, and Megan Gervais can say that, is that that's a case where they arrested a guy for threatening to kill his wife.

[00:12:14] Speaker 03:
Well, he didn't say how he was going to kill her, so how do we know whether that's going to provide a reasonable suspicion?

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And so Justice Alito has basically said, interpreted the second prong of Gantt as a reasonable suspicion standard that derives from something other than just the category

[00:12:35] Speaker 03:
of offense.

[00:12:36] Speaker 04:
So is your position in reading sort of the Supreme Court's tea leaves, so to speak, that there's momentum for Chamberlain, a Chamberlain standard?

[00:12:46] Speaker 04:
Is that what you're arguing?

[00:12:47] Speaker 03:
Well, I think the momentum is here with the Tenth Circuit, that right now what you have is you really don't have, you have the Eighth Circuit, which is what the district court below relied upon, and it basically disagreed with the

[00:13:04] Speaker 03:
the idea that because he'd already given verification, that means you couldn't find evidence in the car.

[00:13:11] Speaker 03:
And that's not a bad thing to say.

[00:13:14] Speaker 03:
I mean, I have to kind of agree with that, the way that that was worded.

[00:13:18] Speaker 03:
So far, all you have is the eighth circuit having any decision at all on the second prong.

[00:13:26] Speaker 03:
Lots of cases, but Chamberlain, yes, I mean, that's what we're asking the tenth circuit

[00:13:32] Speaker 03:
to craft a meaningful second prong of Gantt that would rely upon the factors in Chamberlain where... Did you argue that Chamberlain is the standard before the District Court?

[00:13:48] Speaker 03:
Yes.

[00:13:50] Speaker 03:
Yes.

[00:13:50] Speaker 03:
Well, we argued Chamberlain, we also argued... Well, the other thing is, and because the District Court relied so heavily on Campbell Martin, which is the A circuit,

[00:14:02] Speaker 03:
I was going to reserve two minutes for the federal search clause, but I think I'll just continue with this quickly.

[00:14:10] Speaker 03:
But yes, we did argue, we also argued many in the Eighth Circuit Petition, they believe the tenths, there's a split in the circuits in the tenths circuit because of this decision in McCain and because of Chamberlain that

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it would not go with a categorical approach.

[00:14:31] Speaker 03:
It's already put the 10th Circuit in that camp.

[00:14:33] Speaker 02:
Let me stop you there, because you indicate you have another argument to make.

[00:14:38] Speaker 02:
And you can't hold that to rebuttal, because then the government doesn't have a chance to respond.

[00:14:43] Speaker 02:
So make quickly the other argument.

[00:14:47] Speaker 03:
Well, the only other argument is that if this court were to find that it was valid under, that the search was valid under Gantt,

[00:14:57] Speaker 03:
then the district court put in a footnote that it also could likely be upheld under the federal supervision search clause and that's a whole other argument that I'll have 47 seconds to respond to.

[00:15:17] Speaker 02:
You're the appellate.

[00:15:18] Speaker 02:
You have to make your arguments.

[00:15:20] Speaker 02:
You can't put it off on an argument and say, I'm going to wait until they can't respond and make my argument.

[00:15:25] Speaker 03:
Well, you can tell I haven't been here.

[00:15:27] Speaker 03:
Is it your honor, respectfully?

[00:15:31] Speaker 03:
So that's a very long argument.

[00:15:33] Speaker 02:
That's a very long argument.

[00:15:35] Speaker 03:
I would say for this court to rely on the United States to be warned for that, because it would be instructive.

[00:15:41] Speaker 02:
OK.

[00:15:48] Speaker 00:
May it please the court, Nathan Jack of the United States.

[00:15:58] Speaker 00:
This was a valid search incident to arrest under Gantt.

[00:16:02] Speaker 00:
The officers here had reasonable belief to find Mr. Pinder's real driver's license or other identifying documents in the car and all recognize that that would be relevant to the crime of arrest.

[00:16:16] Speaker 00:
Mr. Pinder presented the officers with a driver's license belonging to someone else.

[00:16:22] Speaker 00:
The officer immediately recognized that it wasn't Mr. Pinder and immediately suspected that the license was stolen.

[00:16:29] Speaker 00:
Mr. Pinder continued to conceal his identity.

[00:16:32] Speaker 00:
The officer asked, is that really you?

[00:16:34] Speaker 00:
To which Mr. Pinder said yes.

[00:16:38] Speaker 00:
And he failed the Social Security number test.

[00:16:41] Speaker 00:
And it was only once he was detained

[00:16:43] Speaker 00:
and the gig was up that he actually came forth with his true identity.

[00:16:47] Speaker 04:
Well, once they verified, the law enforcement verified his identity, why is there still a reasonable belief that the car is going to contain more evidence of this particular crime?

[00:17:00] Speaker 00:
Because the driver's license still would be evidence.

[00:17:02] Speaker 00:
Again, my friend acknowledged that below and again today that the driver's license would still be relevant evidence for that.

[00:17:09] Speaker 00:
And in all the cases we cite, it doesn't matter whether Mr. Pinder actually tells his identity, the operatives still have the ability to search for evidence of the crime.

[00:17:18] Speaker 04:
It's not that he told the identity, they verified the identity.

[00:17:21] Speaker 04:
So what was the, in what way was the license even relevant at that point?

[00:17:27] Speaker 00:
Because it is still evidence of the crime of arrest.

[00:17:29] Speaker 00:
Mr. Pinder's actual driver's license is evidence of presenting a false ID to a law enforcement officer, whether that was already verified or not.

[00:17:38] Speaker 00:
I would turn this court to the Edwards case from the Seventh Circuit, for example, where the driver conceded that the car was not his, but the Seventh Circuit still found that, yes, the officers still get to search for evidence of car ownership.

[00:17:53] Speaker 00:
That's always going to be relevant.

[00:17:55] Speaker 00:
Or the Mensa case in which the officers knew that he had a second license.

[00:18:01] Speaker 02:
I'm confused about something.

[00:18:05] Speaker 02:
How did the officers verify that the second name he gave was the correct name?

[00:18:10] Speaker 00:
And that's a good question.

[00:18:11] Speaker 00:
There's real no verification, 100% certainty.

[00:18:15] Speaker 02:
Well, was there anything?

[00:18:17] Speaker 02:
Did they have anything besides his word that this is my real identity?

[00:18:21] Speaker 00:
Correct.

[00:18:22] Speaker 00:
So he gave him his... Did they?

[00:18:24] Speaker 02:
And then they looked at him and... Did they have anything besides his verbal statement that his real name was Pinder?

[00:18:34] Speaker 00:
Yes, so once they gave him his name, they looked him up in the database.

[00:18:38] Speaker 00:
But again, that's not... What database?

[00:18:41] Speaker 00:
The NCIC, just the police database.

[00:18:45] Speaker 02:
How can that show that this is the person that

[00:18:48] Speaker 02:
this is who he is.

[00:18:50] Speaker 02:
What was in NCIC?

[00:18:53] Speaker 02:
Was there a photograph of him in NCIC?

[00:18:55] Speaker 00:
I believe so.

[00:18:57] Speaker 00:
But again, still, there's not 100% verification.

[00:19:01] Speaker 02:
But even if there were... Does the record indicate that there was a... I was rather confused about this because there was talk about verification and I didn't see anything that showed how it was verified.

[00:19:16] Speaker 02:
He said, I'm Mr. Pinder.

[00:19:20] Speaker 02:
Do you think that they looked it up on NCIC and found a photograph of him?

[00:19:26] Speaker 00:
Yes.

[00:19:26] Speaker 02:
And NCIC has photographs?

[00:19:29] Speaker 00:
I'm not exactly sure.

[00:19:30] Speaker 00:
I know the deputy testified that he went and was able to look up his information and, for example, was able to find the probation officer's name through the database.

[00:19:42] Speaker 04:
So the law enforcement had verified his true identity before searching the car.

[00:19:48] Speaker 04:
Is that correct?

[00:19:50] Speaker 00:
To an extent, yes.

[00:19:52] Speaker 04:
What is the qualification?

[00:19:53] Speaker 04:
What do you mean to an extent?

[00:19:55] Speaker 00:
Sure.

[00:19:57] Speaker 00:
You can verify an identification, but that doesn't mean there's still not going to be evidence of the crime of arrest, specifically a false Mr. Pinder's actual driver's license in the car.

[00:20:08] Speaker 00:
that is still going to be evidence of the crime of arrest, and that does not mitigate or diminish the reasonable belief that driver's license could be in the car.

[00:20:18] Speaker 01:
And so... I can see.

[00:20:20] Speaker 01:
If there was a trial on this issue, I would expect... I mean, there was a trial, but I'd be shocked if I were the presiding judge that they didn't try to introduce the real driver's license.

[00:20:34] Speaker 01:
But technically,

[00:20:36] Speaker 01:
agree with my colleagues in that the case wouldn't fall apart if they didn't.

[00:20:42] Speaker 01:
I don't see that it's necessary.

[00:20:44] Speaker 01:
I mean, it kind of is background information and stuff like that.

[00:20:47] Speaker 01:
But it's not really essential once you've gotten his admission that what he had was false.

[00:20:54] Speaker 01:
And he made it false because he wanted to avoid certain questioning.

[00:20:58] Speaker 01:
And you don't really need anything more.

[00:21:01] Speaker 01:
But that's not to say it wouldn't be background evidence or something like that.

[00:21:05] Speaker 00:
Yeah, and unfortunately we don't require law enforcement to make that kind of judgment at the scene that maybe we have enough evidence at this point that we no longer need to search.

[00:21:15] Speaker 00:
Courts do not require that type of judgment from law enforcement.

[00:21:18] Speaker 00:
In case after case that we cite in our brief,

[00:21:21] Speaker 00:
It doesn't matter what knowledge the law officers have.

[00:21:23] Speaker 00:
They could know that the defendant committed the crime already, as the Third Circuit, for example, said in Donahue.

[00:21:29] Speaker 00:
The officers still have the ability to search the car to find evidence of the crime.

[00:21:34] Speaker 02:
The United States has... Say they had found his passport on him.

[00:21:39] Speaker 02:
The passport of Mr. Pinder and had his picture on it.

[00:21:43] Speaker 02:
I don't see any need to search...

[00:21:45] Speaker 02:
I think there's still plenty of reasons to search the car, but you're relying on this one.

[00:21:50] Speaker 02:
And I don't see why they need to search the car to find another photo ID.

[00:21:59] Speaker 00:
You know, that would be a really interesting case when it comes to this court, but it's not before this court.

[00:22:03] Speaker 02:
pretty close.

[00:22:04] Speaker 00:
It isn't though because there was no, as Judge DeBell said, you would expect the driver's license to be presented in a trial about presenting a false ID to a law enforcement officer.

[00:22:15] Speaker 05:
Why?

[00:22:16] Speaker 05:
You have NCIC.

[00:22:17] Speaker 05:
You have your database.

[00:22:18] Speaker 05:
You have his passport.

[00:22:19] Speaker 00:
Because again, the threshold isn't, is there

[00:22:24] Speaker 00:
is the evidence that they are going to find necessary to it.

[00:22:28] Speaker 00:
The test is, is there a reasonable belief that they will find evidence of the crime of offense at the scene?

[00:22:34] Speaker 00:
The United States has the burden of proving their case beyond a reasonable doubt.

[00:22:40] Speaker 00:
And we do not demand of law enforcement officers to make a decision of whether they have already gotten enough evidence to prove that standard.

[00:22:49] Speaker 00:
And so the Fourth Amendment permits them to search

[00:22:53] Speaker 00:
So long as they have a reasonable belief that evidence of the crime of arrest can be found to see.

[00:22:58] Speaker 01:
So I guess what you're saying is that the officer can't be expected to be the equivalent of the prosecuting lawyer.

[00:23:05] Speaker 01:
And the officer, you say to the officer, well, do you really need that evidence?

[00:23:09] Speaker 01:
When you put it on the trial, wouldn't you have enough else?

[00:23:12] Speaker 01:
The officer would say, well, that's for the prosecutor to decide.

[00:23:14] Speaker 01:
I can't micromanage those things, but it's certainly

[00:23:20] Speaker 01:
could be relevant.

[00:23:21] Speaker 01:
I bet if it was introduced, the court wouldn't strike it or prevent it from being introduced.

[00:23:25] Speaker 01:
It certainly would be accepted as relevant.

[00:23:28] Speaker 00:
Precisely.

[00:23:28] Speaker 00:
That's the test, is whether it is relevant.

[00:23:31] Speaker 02:
Do you have any cases in your favor?

[00:23:32] Speaker 02:
I've been there.

[00:23:34] Speaker 02:
A circuit case that goes the other way.

[00:23:35] Speaker 02:
It says you can't search for the driver's license when you've

[00:23:40] Speaker 02:
verified identity before.

[00:23:42] Speaker 00:
Sorry, that goes the other way to say that you can't search?

[00:23:46] Speaker 00:
Yes.

[00:23:46] Speaker 00:
So the one cited is United States v. Davis.

[00:23:50] Speaker 00:
And courts, you know, you can look at the Campbell Martin case we sat in our brief where courts recognized they offered no analysis on that problem.

[00:23:58] Speaker 00:
They simply said this was, you know, immediately after Gantt.

[00:24:01] Speaker 02:
And the case is to the contrary under those facts?

[00:24:04] Speaker 00:
So yes, the case that we cited in our brief, Campbell Martin, Donahue, Edwards,

[00:24:09] Speaker 02:
Is this where the person's identity was verified before they searched the car?

[00:24:15] Speaker 00:
Yes.

[00:24:17] Speaker 00:
In Campbell Martin, for example, the officers verified the person's identity and then still searched the car.

[00:24:28] Speaker 02:
How was it verified in that case?

[00:24:31] Speaker 00:
So in that case, it was the driver gave a false name.

[00:24:36] Speaker 00:
The officer asked the bystanders what the name was and got his name that way.

[00:24:43] Speaker 02:
Well, I can certainly see the need for a driver's license in that circumstance.

[00:24:47] Speaker 00:
Sure.

[00:24:47] Speaker 00:
But again, the test is not whether there is a need for the evidence.

[00:24:53] Speaker 00:
It's whether there is relevant evidence.

[00:24:58] Speaker 00:
If there are no other questions about search incident to arrest, we do have two other independent grounds for affirmance here.

[00:25:06] Speaker 00:
The first being the totality of the circumstances.

[00:25:08] Speaker 04:
Actually, I do have a question.

[00:25:09] Speaker 00:
Yes.

[00:25:11] Speaker 04:
When the Supreme Court's Davis decision said although the search turned out to be unconstitutional under Bant, what does that mean for our understanding of the law?

[00:25:24] Speaker 04:
Is that just a description procedurally or does that have more

[00:25:28] Speaker 04:
substantive significance.

[00:25:29] Speaker 00:
It has no substantive significance as courts, for example, the Eighth Circuit in Campbell Martin recognized.

[00:25:35] Speaker 00:
The Supreme Court did not grant cert on the question of the underlying search, but just presumed the unconstitutionality of it to reach the good faith question.

[00:25:46] Speaker 00:
As this court and all the courts recognize, it can do without first deciding the underlying constitutional issue.

[00:25:52] Speaker 04:
So it's more descriptive?

[00:25:53] Speaker 00:
It's just purely procedural description, correct.

[00:25:58] Speaker 00:
So on the totality of the circumstances under the Knights framework here, the search was reasonable.

[00:26:05] Speaker 00:
We have someone under on supervised release, which is, as this court is aware, the most prescribed expectation of privacy.

[00:26:15] Speaker 00:
We have someone who has a search condition for their supervised release.

[00:26:22] Speaker 00:
We have someone who is presenting a stolen license to police officers.

[00:26:28] Speaker 00:
who is attempting to conceal information, who is committing a crime.

[00:26:37] Speaker 00:
In these circumstances, Mr. Pinder could only expect to be searched.

[00:26:42] Speaker 00:
And on the flip side, the government has a strong interest in searching someone on supervised release committing a crime attempting to conceal information.

[00:26:51] Speaker 00:
So under the Knight's framework, the search here was reasonable.

[00:26:57] Speaker 00:
the balance of interest weighs heavily in favor on the side of the government.

[00:27:03] Speaker 04:
Could the probation officer have validly granted permission without going through the various procedures?

[00:27:11] Speaker 04:
I mean, was the permission validly granted here?

[00:27:13] Speaker 00:
It was.

[00:27:14] Speaker 00:
It was a request for an assist on the federal probation search.

[00:27:20] Speaker 00:
And that's permissible as this court recognized local law enforcement

[00:27:25] Speaker 00:
are able to help out with probation searches.

[00:27:30] Speaker 01:
Well, here the probation officer authorized the search.

[00:27:35] Speaker 01:
But verbally, there's apparently a lot of dancing around about whether that authorization had legal effect or not.

[00:27:42] Speaker 00:
What's your position on that?

[00:27:46] Speaker 00:
What do you mean by legal effect?

[00:27:48] Speaker 01:
Well, could a probation officer by a phone call to the arresting officer say,

[00:27:52] Speaker 01:
I think that the case law is clear that

[00:28:11] Speaker 00:
federal probation officers can have local law enforcement assist on probation searches.

[00:28:18] Speaker 00:
This court, for example, in McCarthy recognized, and that wasn't a federal state issue, but other circuits recognized that that is proper by law.

[00:28:27] Speaker 00:
But even if it weren't, we have the fallback position and our third reason of good faith.

[00:28:32] Speaker 01:
the good faith exception.

[00:28:56] Speaker 00:
when you have someone that's pulled over on the side of the road.

[00:28:58] Speaker 00:
And the search clause doesn't require notice.

[00:29:01] Speaker 00:
It just says reasonable time, reasonable place.

[00:29:05] Speaker 01:
Remind me again of when this search occurred.

[00:29:07] Speaker 01:
Was it daylight, nighttime?

[00:29:08] Speaker 00:
It was 1 o'clock in the morning.

[00:29:10] Speaker 01:
So that might be a defect because usually the supervising officer in probation has the right to search, but it's always usually cabined by during 8 to 5 with notice and so forth.

[00:29:25] Speaker 01:
Correct.

[00:29:25] Speaker 01:
So arguably, you couldn't have invoked that power to search it in the early morning hours at night?

[00:29:33] Speaker 00:
No, because I think the search clause still permits it.

[00:29:36] Speaker 00:
When you have a person on supervised release pulled over who is violating their conditions of supervised release, they contact the probation officer who says, he's had these other technical violations.

[00:29:49] Speaker 00:
I would like him to be searched.

[00:29:51] Speaker 00:
I'm requesting you to search.

[00:29:53] Speaker 00:
Agent Sinner testified that he understood that he was requesting them to search.

[00:29:58] Speaker 00:
The officers testified that they understood that the probation officer was authorizing them to search.

[00:30:04] Speaker 01:
Well, you're authorizing it under a power of the probation officer to search for a suspected crime.

[00:30:10] Speaker 01:
but not just the routine power of a probation officer to search, just kind of to keep it going on us, giving periodic searches whether you know anything or not.

[00:30:20] Speaker 01:
You're not relying on that power.

[00:30:22] Speaker 00:
Correct, but under NYTES, it doesn't have to be a probation purpose search.

[00:30:26] Speaker 00:
NYTES permits investigatory searches because again, the totality of the circumstances means that the search is reasonable.

[00:30:35] Speaker 00:
And again, I just reiterate that

[00:30:37] Speaker 00:
that it was proper under the totality of the circumstances, but the officers acted in good faith.

[00:30:43] Speaker 04:
They could objectively... You never raise good faith in the district court.

[00:30:45] Speaker 00:
We don't, but it is a purely legal question at this point.

[00:30:48] Speaker 04:
Mr. Pinnock doesn't identify... There's no generic good faith exception, so you'd have to make an argument that's specific to the context of this case, in order to have us even reach it here.

[00:30:58] Speaker 00:
We do, and I see my time's set up if I could just briefly address that.

[00:31:01] Speaker 00:
We do, but it is a purely legal question.

[00:31:04] Speaker 00:
The factual record was fully developed in the district court's order outlining the request that Agent Sinner made.

[00:31:12] Speaker 00:
And from that it's just a purely legal question of whether officers could objectively reasonable rely on that assurance.

[00:31:20] Speaker 00:
I ask this court to affirm.

[00:31:26] Speaker 03:
I only had 48 seconds.

[00:31:29] Speaker 03:
I guess I don't.

[00:31:29] Speaker 03:
Only 15 seconds.

[00:31:30] Speaker 03:
Okay.

[00:31:31] Speaker 03:
So Exhibit 2, 2040.

[00:31:35] Speaker 03:
That's where the photo of Mr. Pinder is sitting throughout the whole entire discussion in addition to the NCIC.

[00:31:41] Speaker 03:
And you also have on the probation search is mere implementative decisions that are already made.

[00:31:46] Speaker 03:
And the officers had testified at Appendix 1 at 226.

[00:31:50] Speaker 02:
I'm sorry, I'm not following you.

[00:31:52] Speaker 02:
I'm trying to do that.

[00:31:53] Speaker 02:
Did you give an exhibit number of the NCIC picture?

[00:31:57] Speaker 03:
Yes.

[00:31:57] Speaker 02:
Just now?

[00:31:58] Speaker 03:
No, it's on the body cam.

[00:32:01] Speaker 03:
Exhibit 2 at 2040 is, you can see the photo displayed.

[00:32:07] Speaker 02:
Tube 040?

[00:32:08] Speaker 02:
Yes.

[00:32:09] Speaker 03:
That's a high number.

[00:32:11] Speaker 03:
Just 20 minutes and 40 on the body cam is what I meant by that.

[00:32:16] Speaker 03:
And that's where you can see that.

[00:32:21] Speaker 03:
If I could finish the sentence on the probation clause, just that

[00:32:25] Speaker 03:
The standard is that the ordinary officers can act as mere implementers of decisions already made by the parole officer.

[00:32:35] Speaker 03:
And the appendix one at page 226, the officer, the federal agent testified that the decision that had, the whole time he was on the phone, no decision had been made.

[00:32:49] Speaker 03:
They left it undecided.

[00:32:51] Speaker 03:
So it was still undecided.

[00:32:52] Speaker 03:
So you can't uphold a parole search by ordinary officers based on a decision that hasn't been made under the standard.

[00:32:59] Speaker 03:
And that's a standard from the United States v. Warren case as well, which is an in-depth analysis.

[00:33:06] Speaker 02:
Thank you, counsel.

[00:33:07] Speaker 02:
Case is submitted.

[00:33:09] Speaker 02:
Counselor excused.