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Case number 23-3226, United States of America versus Anthony Glover, appellant.

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Ms.

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Fowl for the appellant, Mr. Cahill for the appellee.

[00:00:10] Speaker 04:
Good morning Ms.

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Bhatti, you may proceed when ready.

[00:00:16] Speaker 03:
May it please the court, Ms.

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Rabati on behalf of Anthony Glover, I'd like to reserve two minutes for rebuttal.

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Mr. Glover asked this court to reverse the district court's denial of his motion to suppress because Ms.

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Brewer never provided unequivocal specific and voluntary consent to allow law enforcement to enter and search her home and the district court misapplied existing law in concluding otherwise.

[00:00:39] Speaker 05:
Specifically consent that you're discussing to be separated out by consent to enter and then consent to search.

[00:00:49] Speaker 03:
Your honor, there was a decision made by, yes, there were two points at which the government alleges that there was consent or that we also contend that there was purported consent.

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That was at entry and that was also later to search the home.

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But you're alleging a violation as to both.

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As to both, correct.

[00:01:13] Speaker 03:
Yes, and specifically the district court misconstrued in terms of the legal errors in this case.

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Foremost among them, the district court misconstrued the consent standard articulated in bumper and reiterated in Schneckloth that when a law enforcement officer announces that he has a warrant to search in occupants home, the occupant has in effect no right to resist the search.

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That's a direct quote from the case and quote.

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There cannot be consent and that is exactly what happened here.

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But does it cut against your argument if we read the district judge to have found that he did not assert that he had a warrant to search the home, but that he had arrest warrants?

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No.

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First of all, the district court made two errors there.

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One is that the district court did not properly read bumper when it said that there was a critical fact there that distinguished that case

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Um, and specifically that police sought consent in bumper by alluding to a warrant that did not exist.

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And that is simply not true.

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Um, the court in bumper articulated very, very specifically in footnote, I believe 15, um, that there was in fact a warrant.

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And so that's, isn't the point, not whether there was a warrant or not, but

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But that there was a claim of lawful authority in both cases.

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Exactly.

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But I'm just clarifying that because the district court used that quote critical fact to bring this case outside of the purview of bumper.

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But secondly, as Your Honor mentioned, it thought that the fact that Officer Creamer was discussing arrest warrants somehow also distinguished

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this case from bumper.

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And that is also not true.

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Um, the reason I'm sorry, there wasn't a specific naming distinction, arrest versus search warrant.

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No, I mean, officer creamer said I got warrants.

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That's all he said.

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But the district court said that somehow because

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Ms.

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Brewer stated, my brothers are not here.

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She understood Officer Creamer's statement as meaning arrest warrants, and somehow that was different.

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But that does not matter.

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Even assuming that somehow she did understand the warrants to mean an arrest warrant, which is what

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The district court said that it wouldn't have mattered.

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Bumper is about an assertion of lawful authority and what Officer Creamer did by saying I got warrants and PG County has has your brothers as living here is he asserted that he had the lawful right to enter her home regardless of whether or not she had consent.

[00:04:05] Speaker 05:
And that is why I would like to think about is this whole notion of consent.

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First, I want to back you up into.

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You said you're challenging consent to enter, and you're also challenging consent to essentially search, which is going down the hallway into the apartment.

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There seems to be a distinction in case law about consent to enter versus search.

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You didn't challenge consent to enter specifically.

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We did challenge both.

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We challenged both consent to enter as well as consent to search.

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But did you do it in a generic way?

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of consent versus distinguishing those two actions?

[00:04:46] Speaker 03:
I think, Your Honor, we did distinguish those two actions.

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I mean, on Joint Appendix 117 to 118, defense counsel noted that Creamer needed her to allow him into the apartment.

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And also on Joint Appendix 139, she articulated that there are two points.

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It's the entrance and it's also the search.

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for the individual and later the district court agreed that there were quote two things being being where do you think the record reflects what she's consenting to because that's where I want to spend a little time with you because to me consent would then then be thinking about a meeting of the minds like do I just open up and say come on in and then you're in do whatever you want

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Right.

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Or is there a consent to something?

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Because he says, number one, may I come in, but then it's followed by we or they.

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May I go down the hall, but then it's followed by we or they.

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Well, Your Honor, we contend that there was no consent at any point.

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OK.

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And Your Honor is absolutely correct.

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But she does say come in.

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So I just want to know, where would you say if at all she's allowing them to do anything?

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What is she agreeing to?

[00:06:00] Speaker 03:
Your Honor, she never says come in.

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And that's a key point.

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She never says come in.

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She doesn't even wave them down.

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Yeah.

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Let me go through.

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Yes.

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And your honor is kind of hitting the nail on the head.

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There's a number of factors here and they all point in one direction.

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Now, even if we, I just want to just make sure that I hit that bumper point before moving off of it.

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I think Bumper settles this case.

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Once Officer Creamer said that PG County had the brothers living there, he asserted that he had the lawful authority to be there.

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And that is this case.

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So we can end with Bumper.

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But if we're putting aside Bumper for a second and we're looking at her actions in the totality of the circumstances,

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We start, as the district court did not do, with the moment those officers arrived and started knocking at our door.

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The district court made no findings whatsoever before the officer creamers ask and Ms.

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Brewer's slight opening of the door, that quiet looking down and opening of the door.

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The district court did not even talk about the time of day, the number of officers, the length of time that they were knocking, touched on none of that.

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But if we look at that,

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At 6.30 in the morning, we have seven armed officers that start wrapping at the door for two minutes, right?

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And then Ms.

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Brewer opens the door immediately.

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We have open eyes.

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You saw it on the body worn camera footage.

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There's no dispute about this.

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There's her aroused from sleep.

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They're all armed.

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Some of them have gas masks on.

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And she looks quite surprised.

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And then she starts saying,

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One word response is like, mm-hmm, mm-hmm, and things like that.

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And then we have, of course, the pleasantry.

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Good morning, Miss Brewer, which obviously the district court focused on.

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And then we have the badgering.

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And the badgering is particularly key.

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We have Officer Creamer stating, I need to search.

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I'm sorry, I need to talk to you.

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It's important.

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And he states that,

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Um, three times and she states, he states, I need to talk to you.

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Um, it's about your brothers.

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Um, it's important.

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And she states why he says it's about Dawn.

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She states what and Deandre, she states why he says, I need to talk to you about them.

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She she says something unclear and he again says it's important.

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I need to talk to you.

[00:08:49] Speaker 02:
He refuses the standard of review on the reviewing the totality of the circumstances is is clear error.

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So maybe what are the what are the main points where you would say there was a

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clear error, I would say because there's, you know, you're, I understand you're making arguments that there were legal errors, maybe under bumper, but, but if we, if we don't find that there's a legal error, how do you overcome the clear error standard?

[00:09:13] Speaker 03:
Yes.

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And that, uh, and just, just to kind of answer both of the questions, uh, that that, um, judge child also asked this, this passage right here where he is refusing

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to answer her repeated requests for more information and hiding his purpose and not revealing that why they're actually there when she's asking him three times.

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That badgering is something that district court did not look to.

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It's unreasonable and clear error for the district court to not consider that badgering.

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That's one of those.

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You're separating out the entry into the apartment.

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All this evidence and discussion you're talking about is about the entry into the apartment?

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It's about the entry, but it's also about, again, the entire consent question is a totality of the circumstances question.

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So even if we're looking just at did she consent within the apartment, those preceding interactions that happened at the door are part of the totality of the circumstances.

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That's what Schneckloth said.

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And that's what a number of courts have held.

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Griffin is a great example, for example, that you have to look at all of the circumstances from the get-go that create an atmosphere of coercion, that back her, in this case, that literally and figuratively and physically backed her into and against a wall and for essentially

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intimidated her into acquiescence.

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What she did was acquiescence.

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It was not consent.

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And I just want to get back to that badgering.

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Griffin, which is a case that we cite in our brief, cited Johnson, which is a Supreme Court case just prior to Bumper.

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And it said that when the deception and trickery on the part of officers

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who do not disclose the information that they have and wait until they enter the apartment to reveal their true purpose is what Johnson dealt with.

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And that right there is trickery and part of that whole totality of the circumstances.

[00:11:35] Speaker 02:
I watched the body cam orange footage.

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And I think to describe what Officer Creamer did is trickery or badgering is, I think that's

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Pretty tough thing to say, having watched the video.

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I'm not sure about where the badgering was.

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I mean, there was a lot of, there was polite interchange.

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I mean, I understand you have a question about consent, but to describe what the officer did here as badgering seems like quite an overstatement.

[00:12:01] Speaker 03:
Well, Your Honor, he stated, I need to talk to you.

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It's important.

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And she stated why.

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And he refused to answer her question.

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He again said, I need to talk to you.

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It's important.

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And she stated, why?

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Or what?

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He again said, I need to talk to you.

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That repeated refusal to answer her question, if we don't call it badgering, we could call it insistence or persistence.

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But the courts have called it badgering.

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The courts have called it coercion.

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The courts have called it persistence.

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And again, I'm just going to point to Griffin where

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the court specifically looked at that fact and said that the officers in Griffin disclosed all of the information at the door.

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They said, we want to talk to you because of this.

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We want to talk to you

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because we need to come into your house and look for X, Y, and Z. That did not happen here.

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They simply flashed, essentially flashed a badge.

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That's what happened in Johnson.

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And Johnson, that Supreme Court case, said, entering into the defendant's living quarters, which was the beginning of a search, was demanded under color of authority.

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It was granted in submission rather than any understanding of the waiver of the intentional

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waiver of a constitutional right.

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It was simply granted because the officer said we are police officers and we need to come in and talk to you.

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So that was exactly Johnson.

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Is that your answer to my question with respect to how do they get in?

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Yes.

[00:13:42] Speaker 03:
Yes.

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Because

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They're flashing alleged warrants that she never sees, right?

[00:13:50] Speaker 03:
Well, how they got in was they said, we're police officers.

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There's seven of us.

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We're blocking your door.

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We need to talk to you.

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It's about your brothers.

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We're refusing to answer any of your questions.

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You need to let us in.

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It's important.

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And they say they have warrants.

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And then they say, can we come in?

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She opens the door slightly.

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And that's what brings this case into parallel with

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You know, Lindsay, for example, where you have that silent opening of the door in acquiescence.

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And again, Johnson says exact same thing.

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Exact same thing in Johnson.

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The law enforcement officers testified, I want to talk to you a little bit.

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and said she stepped back acquiescently and admitted us exactly what happened here.

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She stepped back acquiescently after they said, I want to talk to you and admitted us.

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And that is not consent.

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That is acquiescence to a show of lawful authority based on the totality of the circumstances at entry.

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Then after that, so we can test that that is not, we say that that's acquiescence.

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That's not consent at entry.

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for all of the reasons that I just stated.

[00:15:02] Speaker 05:
Then, once they've entered... And your point under acquiescence would be, who wouldn't allow the officers to come forward if you've got warrant, you've got seven of them there around you.

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apps.

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I mean, yes, and it's a subjective standard and she looking at her demeanor.

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I mean, we have the body cam footage as the district court said.

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We don't have to even look at the words of the officers.

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We have the video in front of us.

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Her face drops when he says when the officer says it's about your brothers.

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I mean, she probably thinks they're dead.

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He says it's important.

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I need to talk to you.

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Why?

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It's important.

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I need to talk to you.

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Why?

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It's important.

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I need to talk to you.

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Why?

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He refuses to answer her.

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At that point, it's either close the door, don't hear what happens to your brothers that seven officers woke you up to talk about, or let them in.

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And she quietly, without any facial expression, mute, looking at the floor, opens the door.

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It's absolutely clear error to think that that is

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is consent, is voluntary and unequivocal, and let me just make that point too, unequivocal and specific consent.

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Is that voluntary and unequivocal, which the district court also did not make a finding.

[00:16:23] Speaker 04:
But it also wasn't preserved.

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There's a real question about the objection on entry as opposed to your objection on Mr. Glover's behalf to the walking through the.

[00:16:38] Speaker 04:
I mean, as I read the supplemental briefing, it focuses specifically on, in the district court, it focuses specifically on the walking through the apartment, not on the entry.

[00:16:51] Speaker 03:
Well, Judge, I would disagree with that.

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The two point, the two passages that we pointed out were just two examples.

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When she said the defense counsel on again, JA 117,

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J 139 specifically says two points.

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There are two points.

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It's the entrance and it's also the search.

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And then the district court also talked about two things.

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I mean, obviously the district court was focused on the warrants and from the get-go, but the fact that the district court, you know, guided the questioning to a certain point and wanted to focus on the whales and the outstanding warrants does not mean that we waived

[00:17:33] Speaker 03:
we intentionally waived the argument as to entry.

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I mean, it's clearly something we raised from the get-go.

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And then we cited cases in our supplemental briefing that talk about entry specifically.

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And we talk about that in our brief.

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So to think that we intentionally waived it is just not reflected in the record.

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And then furthermore, the district court, obviously, I think what happened

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in that hearing is that the district court was very much concerned with the question of, you know, if she opened the door, does that mean she also consented later to?

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the search through the home.

[00:18:14] Speaker 03:
And she kept going back to that question because she was very much just trying to figure out, well, if he said, if you let him in, does that mean they get to search?

[00:18:23] Speaker 05:
Another thing is I want to focus on your last word, search, because I want to know how we're defining search.

[00:18:29] Speaker 05:
It appears that in the order, I believe, J175, that he was explicit, that he just wanted to check each room to ensure that the wanted individuals were not present.

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and that he had no intention of going through drawers or opening containers.

[00:18:46] Speaker 05:
So what are you thinking about as search?

[00:18:48] Speaker 05:
Because apparently he says, I just want to look for them to see if they're not here.

[00:18:52] Speaker 05:
And when you go down in an apartment, I mean, it's very clear the rooms, you look, they're not there.

[00:18:58] Speaker 05:
But then, of course, in plain view, they find the gun.

[00:19:01] Speaker 05:
So I'm trying to focus on what are we meaning by search anyway?

[00:19:05] Speaker 03:
Well, what he says is he wants- Was it a search or was it a I want to look?

[00:19:10] Speaker 03:
Well, what he says is, what I need to do is I need to visually see that they're not here, check them off, I'm gone.

[00:19:19] Speaker 03:
So he's saying, I need to look, you know, and to me, when he says that, he says, I'm not leaving until you let me look and make sure that your brothers are not here, even though you've told me.

[00:19:31] Speaker 05:
But I'm trying to gather word, look, what does that mean?

[00:19:35] Speaker 05:
To search.

[00:19:36] Speaker 03:
Yeah, I mean to search.

[00:19:38] Speaker 05:
Does that mean just look?

[00:19:39] Speaker 05:
And if they're there or not, then I'm out of here?

[00:19:41] Speaker 05:
Or does that mean look into the contents and everything?

[00:19:46] Speaker 03:
Well, he says, you know, and we don't.

[00:19:49] Speaker 03:
He says, without touching any of your stuff, without disrupting your house.

[00:19:53] Speaker 03:
He's saying, I want to look at your brothers.

[00:19:56] Speaker 03:
So it's a visual.

[00:19:57] Speaker 05:
It's just a visual look.

[00:19:58] Speaker 05:
It's a visual look for the brothers, for those brothers.

[00:20:03] Speaker 05:
Specifically just that.

[00:20:05] Speaker 05:
Specifically just that.

[00:20:06] Speaker 05:
Yeah, that's what we do.

[00:20:08] Speaker 04:
Just to kind of clarify on this exchange, if the person doesn't live in the house, then an arrest warrant

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doesn't authorize police, even if they have reasonable suspicion that the person named in the warrant might be there, that an arrest warrant doesn't authorize the kind of entry that occurred in this case.

[00:20:35] Speaker 03:
I mean, that's correct, unless there's a reason to believe that those individuals are in that apartment, right?

[00:20:41] Speaker 03:
If, like, we're at a third party's, we're at Ms.

[00:20:44] Speaker 03:
Brewer's apartment, an arrest warrant wouldn't give him, I mean, that's why the government's relying on consent here.

[00:20:50] Speaker 03:
I mean, if they had a valid arrest warrant for this property, they wouldn't need consent in the first place.

[00:20:56] Speaker 03:
But he needs consent.

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And he testified to that.

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Everyone agrees he needs consent.

[00:21:02] Speaker 03:
That's why he's trying to get consent out of Ms.

[00:21:05] Speaker 03:
Brewer.

[00:21:06] Speaker 03:
But the way that he describes, the way that he states, PG County has your brothers as living here,

[00:21:18] Speaker 03:
That is key.

[00:21:19] Speaker 03:
And I've got warrants.

[00:21:21] Speaker 03:
I need to look.

[00:21:22] Speaker 03:
Once PG County has your brothers as living here, that's a valid arrest warrant.

[00:21:27] Speaker 03:
I mean, that clearly conveys that I have the lawful authority to be here and look for your brothers.

[00:21:34] Speaker 03:
PG County has your brothers as living here.

[00:21:37] Speaker 03:
I got warrants, shuffling papers.

[00:21:42] Speaker 03:
That's an arrest warrant to say, I have authority.

[00:21:46] Speaker 03:
That is lawful authority to be there.

[00:21:50] Speaker 05:
So what's your request?

[00:21:51] Speaker 05:
Because you're arguing no voluntary consent to enter, which we'll discuss whether or not that was preserved.

[00:22:02] Speaker 05:
no voluntary consent to go down the hall and search.

[00:22:07] Speaker 03:
Yes.

[00:22:07] Speaker 05:
And then also this distinction between voluntariness of consent versus mere acquiescence, which that category seems more like a legal error that if you're going that route that the district court did not make those distinctions.

[00:22:24] Speaker 03:
Yes, I mean, we're contesting the consent at both places, as you know.

[00:22:30] Speaker 03:
We're contesting the legal conclusions that the specific actions of Officer Creamer and Ms.

[00:22:36] Speaker 03:
Brewer were sufficient to constitute

[00:22:38] Speaker 03:
unequivocal, specific, and voluntary consent under Lindsay.

[00:22:43] Speaker 03:
And that conclusion was not something that the district court made.

[00:22:48] Speaker 03:
She never said this is unequivocal and specific.

[00:22:51] Speaker 03:
So that, again, legal error number three right there.

[00:22:57] Speaker 03:
The district court did not properly apply bumper.

[00:23:01] Speaker 03:
We talked about that critical fact piece of it.

[00:23:05] Speaker 03:
and how the how the district court somehow thought you know there's no valid warrant in bumper so you know which is wrong which is just flat wrong it's it's that's not the case in bumper and then it also thought that the understanding of arrest warrants somehow distinguished you know this case which is again wrong because because the way that officer quemer stated pg county has your brother has your brother's living here and i got warrants

[00:23:31] Speaker 03:
You know he he absolutely conveyed that I have the lawful authority to be here and miss Brewer.

[00:23:38] Speaker 03:
Now that does I mean that means that I have the lawful authority to be here and and actually I want to I want to just highlight because I think it's it's a it's a useful.

[00:23:51] Speaker 03:
It's a useful just something to point out is Justice Harlan's concurrence on page 552 of a bumper.

[00:23:59] Speaker 03:
He states that with respect to Miss Leath and Miss in bumper, nothing Miss Leath said in response to the announcement of the warrant can be taken to mean that she considered the officers welcome in her home.

[00:24:10] Speaker 03:
with or without a warrant.

[00:24:12] Speaker 03:
What she would have done had the sheriff's not said he had a warrant is on this record, the hypothetical question about an imaginary situation that Miss Leath never faced.

[00:24:23] Speaker 03:
Same thing here.

[00:24:24] Speaker 03:
It's pointless to think about, well, what if the warrant statement didn't exist?

[00:24:28] Speaker 03:
Or what if this wasn't an arrest warrant?

[00:24:31] Speaker 03:
Or what if the arrest warrant wasn't actually valid?

[00:24:36] Speaker 03:
Or we thought that it didn't mean it was.

[00:24:40] Speaker 03:
It doesn't matter.

[00:24:40] Speaker 03:
She heard the word, warrants.

[00:24:42] Speaker 03:
He said, I got warrants.

[00:24:44] Speaker 03:
We don't need to go meandering into an imaginary situation.

[00:24:48] Speaker 03:
Once he said that, then that's it.

[00:24:53] Speaker 03:
Okay, I'll reserve my time for rebuttal.

[00:24:58] Speaker 03:
Thank you.

[00:25:12] Speaker 04:
Morning, Mr. Cahill.

[00:25:13] Speaker 01:
Morning, Your Honor.

[00:25:14] Speaker 01:
May it please the court, Timothy Cahill for the United States.

[00:25:17] Speaker 01:
district court in this case carefully reviewed and considered the evidence made the permissible finding that Ms Brewer understood officer creamers words to her to be a request to look through her apartment and that she voluntarily consented to that request look through her apartment or look for somebody looks look through her apartment to look for her brothers it's to be more specific you're on you say through

[00:25:40] Speaker 05:
It still seems that you're focusing on finding people, not a true search going in drawers or under the bed or doing anything.

[00:25:51] Speaker 01:
I think that's exactly right, Your Honor, with respect to the scope of what the officers were asking to do.

[00:25:56] Speaker 01:
But critically, is that the trial court, having examined and reviewed all of this evidence, made as a factual finding that Ms.

[00:26:04] Speaker 01:
Brewer's understanding is that that was a request.

[00:26:06] Speaker 01:
It was a request for consent.

[00:26:08] Speaker 01:
And that wasn't a clearly erroneous finding.

[00:26:10] Speaker 01:
And therefore, it should be.

[00:26:11] Speaker 05:
OK.

[00:26:12] Speaker 05:
And then I want to go back to what is she consenting to?

[00:26:14] Speaker 05:
Because the creamer says, may I come in?

[00:26:18] Speaker 05:
But then he's followed in by the officers.

[00:26:20] Speaker 05:
So may I go down the hall?

[00:26:23] Speaker 05:
But then he's followed by the officers.

[00:26:24] Speaker 05:
I'm just trying to think about when we have these cases, we're giving guidance to lay persons about what's respectable, what's allowed, what the police can and cannot do.

[00:26:35] Speaker 05:
And so I want to know what you perceive her to be consenting to.

[00:26:40] Speaker 01:
So I'll focus first, Your Honor, on what happens inside the apartment.

[00:26:44] Speaker 01:
Our position that I'm happy to address if the court has questions about it is that anything at the entry was not properly preserved.

[00:26:50] Speaker 01:
But certainly the issues inside the apartment we believe were preserved.

[00:26:54] Speaker 01:
And that's what we believe the court should be addressing here.

[00:26:56] Speaker 01:
Inside the apartment, at the time that he's asking, you're correct, Your Honor.

[00:27:00] Speaker 01:
He says the word I.

[00:27:01] Speaker 01:
At that point, however, there are all the other officers standing there in his presence.

[00:27:07] Speaker 01:
There's no argument made to the district court that she understood that she would have understood the scope of the consent only to apply to the officer asking the questions, not the other officers there.

[00:27:16] Speaker 01:
So I think that readily explains why the district court didn't make an express finding on it.

[00:27:21] Speaker 01:
But so here on review, the question is whether

[00:27:23] Speaker 01:
any reasonable view of the record would support the district court's denial of the claim and certainly it would not have been clear error for the district court to have found implicitly that the request applied to all of the officers or at least more than one of the officers who had already entered the apartment otherwise why would she have thought they were there well we understand why they were there because they're flashing arrest warrants that she never sees right

[00:27:46] Speaker 01:
Well, so the arrest warrants aren't presented to her.

[00:27:50] Speaker 01:
And I do want to actually clarify, as a matter of sequence, that there's no reference to a warrants until they're inside the apartment, just as a factual matter.

[00:27:57] Speaker 05:
I think there was some confusion about that.

[00:27:58] Speaker 05:
We've drawn a line of demarcation on consent to entry and consent to go down the hall.

[00:28:02] Speaker 01:
And so focusing on what happens, again, inside the apartment and the reference to arrest warrants, I do want to expressly address that point because I think it's important to say that we don't believe that this bumper resolves this case.

[00:28:15] Speaker 01:
Schneckloth makes clear that the issue of voluntary consent is a totality of the circumstances

[00:28:21] Speaker 01:
And there's nothing in Bumper that's to the contrary there.

[00:28:23] Speaker 01:
Bumper doesn't say that once the word warrant is spoken in any way, shape, or form that the case is just over.

[00:28:29] Speaker 01:
In fact, Bumper goes through all of the other reasons why that scenario was what it calls instinct with coercion, given that the individual was alone.

[00:28:37] Speaker 01:
It was an elderly woman.

[00:28:38] Speaker 01:
She was at the end of a mile long road.

[00:28:40] Speaker 01:
It was a black woman being confronted by four white police officers in the 1960s.

[00:28:45] Speaker 01:
All of those factors would not have been important to the court's decision if the word warrant alone resolved

[00:28:50] Speaker 05:
But when you refer to the 1960s, I'm not seeing what's going on around the world so different.

[00:28:56] Speaker 01:
I understand your honor's point that those issues haven't gone away.

[00:29:01] Speaker 01:
But I think my larger point is that the court was looking at a totality of the circumstances.

[00:29:07] Speaker 04:
Mr. Cahill, you said that the district court found that Ms.

[00:29:12] Speaker 04:
Brewer's understanding was that Officer Kramer was making a quest for consent.

[00:29:20] Speaker 04:
what would you point to as the strongest such finding, where she made that finding?

[00:29:26] Speaker 04:
That he was not asking, you know, can I go down the hall and look for them as I've said, I need to, but that you characterize it, that she understood that he was asking for her.

[00:29:38] Speaker 01:
So I would point specifically on JA 173 and JA 174.

[00:29:42] Speaker 01:
On JA 173, in the context of discussing the,

[00:29:48] Speaker 01:
interactions inside the apartment.

[00:29:50] Speaker 01:
I'm looking at lines starting on line 17 that the trial court said it is abundantly clear from the conversation on the video that he was asking and not directing or ordering her.

[00:29:58] Speaker 01:
I think that's about as clear of factual findings we can get.

[00:30:02] Speaker 01:
And then on JA 174, the court follows up again and says that tellingly, Ms.

[00:30:07] Speaker 01:
Brewer appeared to understand it as a question and then goes through the reasons why and actually follows up on JA 175.

[00:30:16] Speaker 04:
What about that is not equally consistent with acquiescence to a claim of authority?

[00:30:25] Speaker 01:
Well, so I'm happy to answer that, Your Honor.

[00:30:28] Speaker 01:
But as a premise, I want to emphasize that the question here isn't whether it's equally consistent.

[00:30:31] Speaker 01:
If there's two permissible views of the evidence here, the trial court's factual finding by definition would not be clear error.

[00:30:37] Speaker 01:
The question is whether the findings of voluntariness was clear error.

[00:30:40] Speaker 04:
But this relates to whether

[00:30:42] Speaker 04:
the district court made a legal error with respect to Brewer.

[00:30:45] Speaker 04:
So I'm getting there.

[00:30:46] Speaker 04:
But all of that could be acquiescence to a friend of authority.

[00:30:53] Speaker 04:
Now, the district judge set aside Brewer.

[00:30:58] Speaker 04:
And the question is, did she, I mean, I'm sorry, bumper, did she correctly do so?

[00:31:04] Speaker 04:
She distinguished bumper as a case in which, quote, the police sought consent by alluding to a warrant that did not exist.

[00:31:13] Speaker 04:
And she says, that's not this case.

[00:31:19] Speaker 04:
And she says the critical fact in Bumper was that the police were alluding to a warrant that did not exist.

[00:31:25] Speaker 04:
And that fact is not present here.

[00:31:30] Speaker 04:
And then she emphasizes a couple of times that he's candidly describing the warrant and what he's saying.

[00:31:36] Speaker 04:
She says is that,

[00:31:38] Speaker 04:
have search warrants.

[00:31:41] Speaker 04:
But that's wrong, right?

[00:31:42] Speaker 04:
In bumper, the existence or not of a warrant was not critical at all.

[00:31:46] Speaker 04:
The holding turned on the fact that there was a claim of lawful authority, right?

[00:31:52] Speaker 04:
And then talks about the effect that such a claim, putting aside whether it's a warrant or not,

[00:31:57] Speaker 04:
which might be a separate malfeasance on the officer's part.

[00:32:01] Speaker 04:
But just in terms of the subjective understanding of the person whose home it is, bumpers holding doesn't depend on the actual status, but the district judge seemed to think that it did.

[00:32:14] Speaker 04:
And so she set bumper aside once she'd thought that.

[00:32:17] Speaker 04:
And she's no longer looking at the question of acquiescence to a claim of authority.

[00:32:21] Speaker 04:
She's only looking at overcoming someone's will.

[00:32:25] Speaker 01:
So your honor, I disagree with that characterization of what the district court does in this respect.

[00:32:30] Speaker 01:
So first of all, I would say with respect to Bumper, I don't think the district court was wrong to point out that distinction.

[00:32:36] Speaker 01:
There are cases that look to whether or not there was some level of deceit involved.

[00:32:40] Speaker 01:
I do agree with your honor that that was not the be all end all of Bumper.

[00:32:44] Speaker 01:
But the district, where I disagree with Your Honor's characterization of what the district court judge did is that the district court did not then drop the question of acquiescence versus consent.

[00:32:53] Speaker 01:
What it was pointed to on JA 175 again, the district court actually frames its finding in those terms.

[00:32:58] Speaker 01:
It says that based on how Ms.

[00:33:02] Speaker 01:
Brewer reacted to what Officer Creamer said, it did not appear in context to be an assertion of authority that he lacked, but rather a plea.

[00:33:09] Speaker 01:
Could I just look?

[00:33:11] Speaker 01:
The district court is making a factual finding there that she did not interpret this as an assertion of authority that I can look regardless of whether you agree.

[00:33:18] Speaker 01:
But it's a factual matter that she understood it as a question.

[00:33:20] Speaker 04:
Well, but that exactly actually cuts the other way, no?

[00:33:23] Speaker 04:
Or arguably it does, and I'd be interested in your response.

[00:33:26] Speaker 04:
It did not appear in context to be an assertion of authority he lacked.

[00:33:31] Speaker 04:
But it actually is an assertion of authority that he lacked.

[00:33:34] Speaker 04:
That's why, as Ms.

[00:33:36] Speaker 04:
Bhatti said, that's why we're here on consent, not on the execution of a search warrant.

[00:33:41] Speaker 04:
He didn't have authority to go walk through and look for the people named in the warrants.

[00:33:47] Speaker 04:
The warrant didn't give him that.

[00:33:49] Speaker 04:
You acknowledge that, right?

[00:33:50] Speaker 01:
We're certainly not relying on the warrant for justification to look through the apartment.

[00:33:54] Speaker 01:
Exactly, because you can't, right?

[00:33:55] Speaker 01:
The record would not support that, Your Honor.

[00:33:57] Speaker 04:
Right.

[00:33:57] Speaker 04:
And so when the district judge says it did not appear in context to be an assertion of authority that he lacked, she's acknowledging that someone in Ms.

[00:34:07] Speaker 04:
Brewer's position would think he's made a claim of lawful authority.

[00:34:11] Speaker 04:
And then she's like, she's not being confrontational, she's not being

[00:34:14] Speaker 04:
you know, struggling against the authority that that she thinks he's asserted.

[00:34:20] Speaker 04:
But, you know, she clearly thinks that he's asserted the authority to walk through.

[00:34:26] Speaker 04:
I can't go back to P.G.

[00:34:27] Speaker 04:
County unless you let me do this.

[00:34:30] Speaker 01:
And so here's where I would push back, Your Honor, is that the district court repeatedly on both on J 173 and 174

[00:34:36] Speaker 01:
says that based on the district court's factual findings in the entirety of the circumstances, the entirety of the encounter to that point, and specifically also looking at the nature of Ms.

[00:34:45] Speaker 01:
Brewer's reactions, that the district court made a factual finding that she was understanding that to be a question.

[00:34:51] Speaker 01:
That's inconsistent with her understanding it to be an assertion of authority that she had to obey.

[00:34:56] Speaker 01:
And the district court said she understood it as a question.

[00:34:58] Speaker 01:
And for voluntariness, that's the critical question.

[00:35:00] Speaker 04:
I mean, if somebody's asserted lawful authority, and then they say, so can I perform on that authority?

[00:35:10] Speaker 04:
The fact that someone is going to say yes, rather than I'm going to call my friend with a gun to come and chase you out of here.

[00:35:20] Speaker 04:
The fact that there is sort of acquiescence to lawful authority doesn't mean that this isn't a bumper case.

[00:35:27] Speaker 01:
He's polite.

[00:35:28] Speaker 04:
He's polite.

[00:35:29] Speaker 04:
You know, commendably so.

[00:35:31] Speaker 01:
If the district court had found, Your Honor, that Ms.

[00:35:35] Speaker 01:
Brewer's reaction was in acquiescence, then this would be a bumper case.

[00:35:39] Speaker 01:
But the district court didn't find that.

[00:35:40] Speaker 01:
It found the opposite.

[00:35:40] Speaker 01:
It found that she understood it as a question that was voluntary, that her will was not overborn.

[00:35:46] Speaker 01:
The district court.

[00:35:47] Speaker 05:
But then when you say the district court did not find this as a case of acquiescence, I think that's some of our point.

[00:35:53] Speaker 05:
There is a distinction between the voluntary consent and acquiescence, and you need to find

[00:35:58] Speaker 05:
if there was legal error as to her not having a consideration that it's one or the other.

[00:36:02] Speaker 01:
Well, respectfully, Your Honor, I would say that the fact that the district court found it to be a scenario in which Ms.

[00:36:09] Speaker 01:
Brewer understood this to be a question that she was not being ordered to obey, and as a matter of her own volition, agreed to accommodate that request.

[00:36:22] Speaker 01:
That takes this out of bumper.

[00:36:24] Speaker 04:
Does it?

[00:36:25] Speaker 04:
I mean, I know that under Schneckloff there doesn't have to be, the officers don't have to inform the homeowner that she has a right to exclude them, right?

[00:36:36] Speaker 04:
But if the homeowner believes that the officer is making a claim of lawful authority,

[00:36:43] Speaker 04:
then you don't need any overbearing.

[00:36:45] Speaker 04:
You don't need any sort of force or threats or diminished education on the part of the homeowner.

[00:36:53] Speaker 04:
Somebody makes a claim of lawful authority, then it seems to me that as a factual matter, there's a different set of findings that one would make to say, nonetheless, the homeowner

[00:37:06] Speaker 04:
There's an Eighth Circuit case where it's like, you don't need no warrant.

[00:37:10] Speaker 04:
You come on in.

[00:37:10] Speaker 04:
I got nothing to hide.

[00:37:12] Speaker 04:
In that kind of situation, the notion of acquiescence is to the side.

[00:37:18] Speaker 04:
I don't see findings here, though, where Ms.

[00:37:22] Speaker 04:
Brewer is making any kind of sort of supervening consent.

[00:37:28] Speaker 04:
You may have authority.

[00:37:29] Speaker 04:
You don't need authority with me.

[00:37:31] Speaker 04:
Nothing like that.

[00:37:33] Speaker 01:
So again, Your Honor, I think

[00:37:35] Speaker 01:
The key is that the finding was that she viewed it as something that she had the option to either agree to.

[00:37:42] Speaker 05:
The judge, I think the word the judge used is that she- Where do you find this option that she viewed it as an option?

[00:37:49] Speaker 01:
So I would say that on JA 175, the judge said that the judge made a finding that she viewed it as a plea.

[00:37:54] Speaker 01:
I mean, a plea is something I feel like by definition that someone can either accept or decline.

[00:37:59] Speaker 01:
If someone's asserting their authority, I don't think that could properly be described as a plea.

[00:38:03] Speaker 04:
Well, if you say, come on, let's not make this difficult.

[00:38:06] Speaker 04:
I have an arrest warrant.

[00:38:07] Speaker 04:
The arrestee is standing in front of me.

[00:38:08] Speaker 04:
I'm saying, can we make this easy for both of us?

[00:38:12] Speaker 04:
I have a job to do.

[00:38:14] Speaker 04:
I appreciate.

[00:38:16] Speaker 05:
And I think the key here is making consideration, just to piggyback off that, that it always has to be your will is overborn or there's a strong urging or coercion or something

[00:38:31] Speaker 05:
bad, you know, beating you over the head with it as opposed to befriending you and using your niceties to get to what you really want to.

[00:38:40] Speaker 01:
And so I think the will being overborn is a term of art, Your Honor, would apply to both scenarios.

[00:38:44] Speaker 01:
The question is whether the person viewed it as a volitionary and voluntary consent.

[00:38:48] Speaker 01:
But I also want to emphasize, Your Honor, we're not arguing that in, I mean, certainly Bumper would preclude us from arguing that in any case where someone referenced a warrant, that there could not be a finding that that led to in acquiescence.

[00:38:59] Speaker 01:
But that isn't what the court found here.

[00:39:01] Speaker 01:
The court made factual findings that were not clearly erroneous.

[00:39:04] Speaker 01:
As long as it was a permissible view of the evidence based on what Ms.

[00:39:06] Speaker 01:
Brewer did,

[00:39:07] Speaker 04:
Absolutely, I appreciate that correct statement of the legal standard.

[00:39:12] Speaker 04:
But there's no finding.

[00:39:13] Speaker 04:
The district court is careful to point out that in the court's view, that Ms.

[00:39:21] Speaker 04:
Brewer appreciated the distinction between a search warrant and arrest warrant, and that Officer Cramer made clear to her that these were arrest warrants.

[00:39:34] Speaker 04:
And so I think the district court thought that was important because she thinks there's no false, she thinks it's important to distinguish bumper that here there's no false claim of authority.

[00:39:44] Speaker 04:
But the district court, as far as I can tell, did not make any finding that Ms.

[00:39:50] Speaker 04:
Brewer knew or thought or understood that an arrest warrant does not empower police to search inside a third person's home for the arrestee.

[00:40:04] Speaker 04:
If she doesn't know that, then even accurate reference to a search warrant could easily have been understood.

[00:40:13] Speaker 04:
by Ms.

[00:40:14] Speaker 04:
Brewer as a claim of lawful authority.

[00:40:16] Speaker 04:
It seems like that's the strongest, most obvious understanding of his proffering and restaurant saying, just let me look around.

[00:40:24] Speaker 04:
I have to go back to PG County.

[00:40:26] Speaker 04:
And unless she understands that she has any choice in the matter, this woman standing there in her nightgown at 6-something AM with seven armed officers around her

[00:40:40] Speaker 04:
Not and not not to go around in circles and I want to get to the substance of what your honor asked, but yes, you don't see a finding by the district court that Ms Brewer understood that the warrant that officer Kramer had the warrants that he had did not authorize him to cruise through just to look and see if the if the named

[00:41:03] Speaker 04:
Suspects are there.

[00:41:04] Speaker 01:
I agree the district court didn't make a finding in those terms, your honor.

[00:41:08] Speaker 01:
But if I could finish.

[00:41:09] Speaker 01:
Well, I believe that that's implicit in the district court's finding that she viewed it as a plea.

[00:41:14] Speaker 01:
If she had not viewed it as if she had viewed it as if she had understood him to be asserting that he had authority to do it, whether she gave her permission or not, that would be inconsistent with the district court's finding that it was a request and a plea.

[00:41:25] Speaker 01:
And so certainly the fact that the district court made those findings, I think implicitly would have rejected that interpretation.

[00:41:31] Speaker 01:
And again, the question here isn't whether anyone could have interpreted it the way your honor presupposes.

[00:41:37] Speaker 01:
It's whether the district court clearly erred by finding that in this case, under these circumstances, Ms.

[00:41:41] Speaker 01:
Brewer interpreted it that way.

[00:41:43] Speaker 01:
And our position is that the court didn't clearly err by making that finding.

[00:41:46] Speaker 01:
And we think that's supported by all of the factors that we outlined in our briefing and have outlined here.

[00:41:53] Speaker 02:
Yes.

[00:41:55] Speaker 02:
Is there anything in the record that indicates why Ms.

[00:41:59] Speaker 02:
Brewer didn't testify here?

[00:42:01] Speaker 02:
Is there anything about this?

[00:42:03] Speaker 01:
I am not aware of that, Your Honor.

[00:42:04] Speaker 01:
I do see I am over time.

[00:42:09] Speaker 01:
If there are no further questions, we would otherwise rely on our brief in particular with respect to the fact that we strongly believe that any claims involving the entryway were waived and the other issues that have previously been addressed.

[00:42:19] Speaker 01:
And we'd ask this court to affirm the district court's judgment.

[00:42:23] Speaker 01:
Thank you, Your Honor.

[00:42:25] Speaker 04:
Is there any reserve time?

[00:42:30] Speaker 04:
We used up all your time on direct questioning, but you may use your two minutes for a bottle if you'd like.

[00:42:41] Speaker 03:
Just very quickly, I want to clarify.

[00:42:44] Speaker 03:
We're talking about, I think there was a

[00:42:47] Speaker 03:
attempt to distinguish between entry and search.

[00:42:50] Speaker 03:
But I wanna just make clear that those factors at entry, all of those factors are still relevant for determining the totality of the circumstances for purposes of the search.

[00:43:02] Speaker 03:
The time of day, the number of officers, the manner in which they entered, the manner in which they refused to answer her questions, the insistence, all of that is relevant to create that atmosphere

[00:43:13] Speaker 03:
that essentially, you know, those stealthy encroachments as Sneklov put it, backed her into a wall, you know, and then when you had the seven officers, you know, flanking her and impeding her movement, that's all relevant for purposes of determining whether or not she gave unequivocal

[00:43:35] Speaker 03:
and specific consent.

[00:43:37] Speaker 03:
And that is the standard.

[00:43:38] Speaker 03:
And here we are, you know, trying to figure out what's in her head and how she took the word need or warrants.

[00:43:45] Speaker 03:
And there's a simple way to fix this.

[00:43:48] Speaker 03:
And it's the government asking her, any one of those seven law enforcement officers simply asking her, do I have your consent to search your apartment?

[00:43:58] Speaker 03:
And that would have solved this.

[00:44:00] Speaker 03:
And instead they didn't.

[00:44:02] Speaker 04:
What's the relief?

[00:44:04] Speaker 03:
The relief is, we're asking the court to vacate Mr. Glover's conviction and reverse the denial of his motion to suppress.

[00:44:14] Speaker 04:
And then I thought you said, and send it back to the district court for further proceedings, which would refer to what?

[00:44:24] Speaker 03:
Well, we're asking for the court to vacate his conviction.

[00:44:27] Speaker 03:
Obviously without a gun, we have no conviction here.

[00:44:31] Speaker 04:
There's no retrial or anything?

[00:44:33] Speaker 04:
No retrial.

[00:44:33] Speaker 04:
I was just wondering what the further procedure is about.

[00:44:36] Speaker 03:
No retrial.

[00:44:37] Speaker 03:
Yes.

[00:44:38] Speaker 03:
Okay.

[00:44:41] Speaker 03:
And then just one other thing.

[00:44:43] Speaker 03:
Again, the three gestures that the government refers to and the district court refers to, none of those rise to the level

[00:44:53] Speaker 03:
of unequivocal specific consent.

[00:44:55] Speaker 03:
I mean, it's a little bit ridiculous to think that waving your hand or flicking on a light could even rise to that level after the, after the law enforcement officer, after officer Cramer has stated, I've got warrants.

[00:45:09] Speaker 03:
I need to search your home.

[00:45:10] Speaker 03:
And we cite, we cite a,

[00:45:13] Speaker 03:
A treat is a quote on page 29 of our reply that is that is very applicable here because of the officers claim of authority to search miss Brewers conduct and opening the premises with no more indicative of voluntary consent and acquiescence to the police claim of authority accompanied by an offer to minimize the damage to the to the premises and degree of privacy intrusion.

[00:45:35] Speaker 03:
That's exactly

[00:45:36] Speaker 03:
that exactly applicable here.

[00:45:38] Speaker 03:
There's nothing in the record, there's no finding, and it's unreasonable and clear error to think that this would rise, that Ms.

[00:45:48] Speaker 03:
Brewer's reaction, those three gestures, would rise to unequivocal and specific consent.

[00:45:53] Speaker 05:
Is there something short of vacating?

[00:45:55] Speaker 05:
In other words, there's been a lot of talk about the voluntary consent versus merequiescence.

[00:46:00] Speaker 05:
That would seem to be a legal error.

[00:46:02] Speaker 05:
So is there something?

[00:46:03] Speaker 05:
Sorry, could you repeat that?

[00:46:04] Speaker 05:
Is there something short of vacating the conviction?

[00:46:07] Speaker 05:
Because there was a lot of discussion about mere acquiescence versus voluntary consent and further findings by the district court.

[00:46:16] Speaker 05:
Yeah, I mean, Your Honor, something short.

[00:46:19] Speaker 05:
I'm not asking you to argue against yourself.

[00:46:20] Speaker 05:
Yeah.

[00:46:20] Speaker 05:
Because you want a full conviction vacated.

[00:46:23] Speaker 05:
But I'm asking, we've spent a lot of time about whether the factual findings were sufficient.

[00:46:28] Speaker 05:
to make that distinction.

[00:46:30] Speaker 05:
And so do you see a potential remand if it's short of vacating the conviction?

[00:46:36] Speaker 03:
Well, we're asking for a vacation.

[00:46:37] Speaker 05:
I mean, I know what you're asking for, but I'm just saying, is there something short of that as an option?

[00:46:42] Speaker 03:
I don't think so.

[00:46:44] Speaker 03:
Given the legal errors that we are arguing, we're asking for vacator.

[00:46:53] Speaker 05:
Because you think that if we find that there is a legal error that still leads to vacating,

[00:46:58] Speaker 03:
Yes, Your Honor.

[00:46:59] Speaker 03:
Absolutely.

[00:47:01] Speaker 03:
We're asking this court to vacate because there's no basis for this conviction.

[00:47:10] Speaker 03:
And so the district court committed these legal errors.

[00:47:16] Speaker 03:
And as a result, the fruits of the search, the search was unlawful.

[00:47:21] Speaker 03:
The fruits need to be suppressed.

[00:47:22] Speaker 03:
And there's just simply no basis for this conviction.

[00:47:25] Speaker 03:
So we're asking for a vacation.

[00:47:27] Speaker 03:
OK.

[00:47:29] Speaker 04:
Thank you.

[00:47:30] Speaker 04:
The case is submitted.