please number seven hundred fifty nine eight united states of america versus william perkins oral argument not to exceed fifteen minutes per side mr roach for the good morning may it please the court bill roache for the united states i'd like to reserve three minutes for a bottle the district court wrongly suppressed evidence because it read the intice between warrant in a hyper technical way as opposed to at every condition in the warrant as if it were required to happen before the agents could execute the warrant there was only one condition that i saw in the ward that was it said in paragraph twenty one or could that control delivery of approximately four ounces of math to perkins right and that the t f brewer will knock on the residence door and hand deliver the above mentioned package to all caps that is true your honor that that specific condition to handle every two perkins was a condition was only one meaning it was one of a couple different conditions it was the conditions comprised together that make up the triggering of it so the most important condition looking to this court's precedent in the united states versus millions in united states versus penny is the delivery to the residence where you could have put delivery to the does list the defendants address fifty eight thirty one row gap road but you said handle every two perkins it doesn't handle every two purpose but discord in reading the warrant in a common sense fashion as this court did in both megan's and penn in s to look to the four corners of the affidavit in the warrant and see what is what does the warrant require here in a comment since fashion and that interpretation has to look to for them in the principles and so it justice the warrant if the if the f if the warrant said hey we're going to go up to this house and as soon as we drop it on the porch we get to search the house i think the magistrate might have had a different view of whether to issue  did like that absolutely your honor elton's as if that's your reading of it makes it sound like that because of if perkins doesn't mean perkins if perkins means the lady or a ten year old or a guy who happened to wonder by to watch television then it would be just as good as what i said right i mean you're saying that it's really got nothing to do with perkins it's got we're going to deliver a package to the house and then we get searched that's correct your honor but there has to be a nexus between the delivery and the rest so the agents could not just put the dress to the residence you take it there people bring fedex packages to my house all the time and they leave them on the staff that right that's a common mode of delivery that's right your honor but if we look at the warrant in a commonsense fashion well what if it's a delivery to five eight to one and that's it and you dropped it on the porch and then said ok we've delivered it just like a fed ex person would we can go in and search that wouldn't be enough your honor i think a fair reading of this court's precedent requires the what if what if it said delivery to a man at that house and you delivered it to a woman that would be fine as long as the woman had access to the residence so that and that's where the nexus requirement comes in so as long as the magistrate is assured that the package once it reached the reson why i say delivered to perkins why not they deliver to a person it was an oversight they should have said delivery to a person it would but why should you bear the brunt of the oversight the government who we can then hold accountable and the government can be more precise in their drafting well because under the law this court looks and as does the magistrate judge to a common sense reading of the warning and there's no reason here to to to take the drastic measure of suppressing evidence when the oversight doesn't affect the probable cause that contraband would be found in the residen and the point that delivery would be made to have to defend it was an unnecessary detail in the warrant and in the first circuits opinion in the united states as that's the case why do you abandon your good faith argument well because we think that the law is strong enough on the common sense approach that depression is such a drastic remedy why not you always i've always seen the government all argue the alternative why not argue the alternative generally we do your honor the case law  context is not as concrete as it is in other contexts we feel that the the law all of the black letter law out of this court on the intice retore worn issue is strong enough that this court should reverse the district court's order suppressing cohesively together in this court has held that in both in both millions and pinney back to the issue of the out i'd like to try to explain why delivery to an individual was an unnecessary detail in this war and i think the first circuits opinion in the united states first were you just said pan delivery to an individual is unnecessary doesn't that mean you've just sort of conceded back to the hypothetical where you dropped it on the porch i'm sorry   the only and correct me if i'm wrong is there's just a statement in here that perkins resides at this location that's really not developed much does that make any difference that is to say if you didn't have that and it it would still be ok to go up to this house that has happens to have the same address as the package and search it well as long as that is long as delivery is accepted by someone in the residence who has access to the residence and there's going to be probable cause to believe that contraband is in the residence now this affidavit also states the defendant is a known dealer of methamphetamine that he last evidence you had was six months old right that's correct your honor he was also to the warrant mentions that he was on parole at the time and that the officers knew that he had been a dealer of methamphetamine but did the delivery to perkins is not important because warrants are for places not people now the first circuit in the ricky deli case reversed the district court's ruling there because the affidavit required delivery to an individual you coulda made the warrant to a place that's the problem the magistrate judge makes a determination based on your representations and what you want to do is then say well common sense allows our officers to change the interpretation in the field and so and it's a slippery slope in penny the person perkins the perkins of penny was involved i guess it was penny but was involved in the transaction he just didn't take the actual hand a livery but he was the middleman and it was cleared officers and so what we said is it's a hyper technicality to require it to be handed to him when he's involved in the transaction here perkins is nowhere to be found that's true your honor but but this court looked to whether all of the operative transactions happened in penny and they held that just because it required a need to attend to purchase drugs and to examine the drugs that didn't happen but the main point of that warrant was that pinney was a middleman he was going to facilitate a drug transaction with  in that case but here perkins is the main point of this warrant if you look at it is about perkins that's it i disagree respectfully or i would push back on that point and say that the main point here is delivery to perkins residence if you look affidavit on page seventy nine hundred eighty of the record all three of those paragraphs they mention perkins but they also mention the address where delivery will be made and that's important because that's where the search is going to take place that you say he resides there we do say he under this court's precedent we say did the operative transactions happen and let me define the operative transactions being what is the trigger area triggering event the triggering event here is the fact that a package of methamphetamine will be delivered to fifty eight thirty one one stat deliveries except problem is that that doesn't that isn't what it said in penny and i had the good or misfortune true to write penny the reason we said it would be hyper technical to knock that out is that it talks about a whole transaction using in effect some ambiguous verbs he's going to meet with somebody which he sort of did to examine and attempt to purchase  by promising to attain funds in order to complete the transaction and we said what happened was close enough to that this says delivered a perkins and not perkins is not hyper technical different from perkins i have to respectfully disagree that it does say delivery to be perfect but it also mentions the addressable it also mentions it but i think under a common sense re doesn't say perkins or anybody else who's there which would be you know  i think if you just said to the residents if i were a magistrate i might blink a little bit but if you say to perkins or anyone else who seems to be there to take delivery well any that would be more reasonable but that's not what you do it would be your honor but discord in megan's triggering event did not require specific delivery to an actual to a specific person it required delivery to the residence i ask you just as an original matter at the the language of the fourth amendment says no warrant shall issue but upon probable cause that the specific language justice scalia grubb says look it we can have insisted tory warrants because as long as the condition comes to pass in the warrant here the magistrate judge made a determination the condition was delivery to perkins that was his determination that that's when probable cause existed if that condition never came to pass that condition never happened your honor but the reviewing court has to look at the warrant in a commonsense fashion the dish or court erred when it is a say that in no warrants shall issue but upon probable cause set the case law side for a second i just want to talk about the fourth amendment you're actually that amount of response it's up to to go ahead so yes the fourth amendment does say that but courts have courts have interpreted the fourth amendment to allow and long as long as the search is not unreasonable the anticipated you didn't argue reasonableness right that's a different issue well what i'm talking about there is the warrant clause and there's the reasonableness clause and you did in arguing your brief that irrespective of the warrant the search was reasonable you didn't make the appeal  this is reasonable so we went argue that's correct your honor we argued that the war itself is reasonable read in a commonsense fashion and that the triggering event did occur  good morning i'm jennifer kaufman and i'm here today on behalf of william perkins at the outset i'd just like to say that mr perkins is not asking this court and precedent undermine president or create a new rule of law he's just asking this court to do with the district court did which is apply the law to give effect to the judicial control that is necessary to the constitutionality of an anticipatory warrant and to correctly apply that precedent as your honour's have noticed four times in the affidavit in four different paragraph four separate paragraphs officer warned assured the magistrate judge that the way that this control delivery would play out would be that officer brewer would handle lever the package to william perkins had had they come to the door to gather his fiance and him right it was his fiance that took the package correct had they come to the door together but she took the package would that be enough well obviously that's a slightly different case i understand but would that be enough i would say that that would probably be enough so had he been in the room watching the football game and said hey can you go get the door well let me say something about this one from before i answer that question because i want to highlight the difference between this warrant and the warrant in megan's that my friend on in the government is saying is so completely the same as here  in fact in megan's the thing that happened there was the warrant said taken by someone inside the house it wasn't just delivery to a person at the house it was taken by someone inside the house what we know for sure from michigan is that had the fed ex delivery person or the whoever it was deliver the package to megan's and he had never been inside the house we have a completely different outcome the condition would not have been met so when you're talking about a different scenario here where there was someone where you could see mr perkins possibly allowing this other person to accept the package on his behalf then it does come a lot closer to handle every to mr perkins i still think we would have to have the same conversation about whether that's a hypertechnical reading but that's a completely different scenario from when mr perkins was not even at the house at all and i'd like to say that this particular affidavit did not say by the way just said handle every two william it didn't say and william perkins is inside the house or had ever been inside the house or takes the package inside the house by specifying handle it does say that he resides at the house it does say that but that but that doesn't in fact actually that space they could have delivered to him at a wal mart parking lot of play happened to notice him well actually i would say that a common sense reading of the affidavit as a whole would require delivery to him at his house and then we would flip sides there  not i would probably be good enough and if you sit in at the t v set maybe your good agent would have said i'm sorry this package is for mr perkins will he take it yes and then if he says i'm sorry i'm busy give it to jennifer you probably lose probably i would ok but this isn't you know this is different we're not we're dealing with a situation where for whatever reason in the affidavit in the in the four paragraphs of the affidavit the combination of the fact that this was mr perkins residence plus handily route to mr perkins is what convinced the magistrate judge to sign off on this warrant it didn't go on to say and then if it just said hand the liberty to a person at five eight to one they could have searched it right if it had said hand a livery to a person of five eight to one i am not i would not be willing to say that that would have met the condition and that is because that that would if that were true then hand a livery to michigan's who had never been inside the house would have been sufficient so as they got it there that may be a failure of the magistrate but if the if the warren it sent itself said handle live or you may argue that it's probable cause to search but you're conceding that would have been enough for the officers probable cause actually right off because the officers didn't fulfill the war you're right about ok so that would be a completely different different condition and that condition would have been met yes ok so i see what you're saying but what but that's an interesting point as well because government is not saying that would have been that had ok had this particular warrant said hand delivered to someone period right that would be that's pretty much what they're saying hand every to someone period was sufficient and then that's not the case that had to be someone with as the government says access to the house they say to keep saying the nexus to the house you're it's not a condition of this particular weren't right your real point is what the point that i think justice scalia made in grubb's which is if we say hand deliver it to a person at a residence the officers can deliver a package to any residence in america and then search because of the if they know it has drugs they can deliver to any residence but that is an attack it seems to me not on the anticipatory nature but on the probable cause so the warrant never should have issued exactly so when we're in this situation then what we're talking about is really vindicating the process that is required to make an anticipatory warrant conscious and pretty clear here that the what was happening was that the officers were saying to the magistrate this guy perkins is expecting this package so we're going to deliver to the residence to perkins so when the fiance comes to the door and they say are you expecting a package and she says yes they figure ok fine they're expecting this package and turn it over to her well the problem with that is is that they didn't know that there was someone else can answer the door that was not part of the scenario that they had played out in their scenario the the the nexus to the house all of the things that are necessary to make it about the place were sort of subsumed into the fact that the delivery was going to be the person who lived there and the person they knew who lived there  so the moment when someone else answers the door and it's not william perkins they don't know if he's there or not and they go ahead and give it to her the moment that they could have gone back to the truck called the matched and said look this didn't play out the way that we thought it would to me this is a separate failure but the brewer the guy actually doing the livery didn't know about that condition actually and that leads at that that's another problem here is that if we allow the officers to make really in effect is a sort of fact that she says are you accepting are you expecting a package yes we are that certainly sounds suspicious but we don't know that i mean that didn't necessarily be the officers wouldn't have known that that had happened he says are you expected to back not build the said come on and watch you and that's exactly right and you know as i was preparing for argument today it occurred to me that was thinking a little bit about the fact that officer brewer for whatever reason  did not read the warrant and the officer warren who was the person who briefed him on the warrant didn't tell him what the actual condition was and if we don't like the idea of it being willful blindness because that in court you know  invokes an area of law that isn't quite appropriate and i would suggest that we think about it in terms of flagrant disregard which is a term that is used in the context of whether officers exceed the scope of a warrant by going in and searching an area that they were authorized to search or by seizing items they were see and in those in those cases and i have one i can cite if you like but i think there are plenty of them and easy to know that this is true the courts say that it's not object to be reasonable when officers just ignore the warrants clear authorization to search say apartment two and when they get there they realize that what they really meant to search was apartment one so they go ahead and search apartment one and they can't make these decisions out in the field that is the that what that does is it circuit twenty fifteen seven eighty eight of second platoon i think it's analogous to what happened here where the officers you could say flagrantly disregarded the fact that they were executing an anticipatory warrant these were experienced officers to the house which leads me back to megan's again in megan's in fact it was i would say much more close to a strict compliance than the government would allow in that case what was the the key word was inside the house inside was required by the terms of the warrant and inside happened here mr perkins was required by the terms of the warrant and mr perkins didn't happen so it's very important it's literally impossible to say that the terms of the warrant were met in commonsense reading or not hypertechnical to suggest that when i warrant it says mr perkins is satisfied by a person who the officers actually did not know was his fiance she could have been someone to just passing through they didn't know they didn't even know where mr perkins was and these are although she did acknowledge she said yeah we are expecting a package right he said are you except x expecting a package she could have been talking to her personally and she said yes we are and she said we she said yes we are she did say according to the officer yes we are and that's undisputed at this point you haven't put any evidence to the contrary so  he might just not have been able to come to the door at the moment perhaps but what's happening here is we're unpacking the can deliver to mr perkins and to and to additional facts so the the offices are being able to make a decision in the field about whether these different facts based on what she said then satisfy a condition and so they are making decisions about whether these facts will scenario satisfy probable cause rather than the magistrate when they said this is how it was go the officers were in control of this and this delivery in the sense that they could have surveyed and waited for him to come home had they surveyed and waited i didn't know until they went to the door me go to the door you knock i mean that happens all the time in america right a spouse comes and i'm going to talk about it for just a minute if i may because of the suggestion here that warrant doesn't have to specify the individual to be to be a valid warrant and all it has to be is you know connected to the place  in that particular case the warrant said and this is just sort of evidence that this does happen it says after delivery that the condition was after delivery by mail to and receipt by a named individual daniel and and in that case the officers said and when the court was sort of noting whether the warrant was sufficient the court went in and said well look what the officer said the officer testified that i had not been home if he'd been in florida at the time of the delivery the officers believe that they could not have conducted the search and this was cited with approval by the first circuit in other words the fact that this additional fact that it had to be delivered to a person was in the warrant meant that the officers could not execute the search until that condition was met even if we could sit here and say that there would have been probable cause without it mr perkins doesn't concede that there was but there would have been probable cause had the war in this case just said and delivery to someone period there would have been more right and so but in this case it not only said mail to see by and also said and taken into the house but the officers in that case did not of or of the view and the first circuit seemed to approve this that that warrant could not have been executed unless and until mr gurnon was actually drawn was actually in the house and i think i'm running out of time and so what i'd like well thank you i'd like to point the court specifically to page three ninety five of the make its case megan's would when talking about the common sense interpretation of the warrants approves what it calls a quote sufficient delivery so that's in the that's in the controlled delivery context as this case now i'd like this court to look at paragraph twenty one of the affidavit on page seventy nine of the record it sta deliver her deliver the above mentioned package to someone that is what we're saying a common sense interpretation of the word requires because of the fourth amendment principle that searches are of places not people so as as the package finds its way to fifty eight thirty one row gap road once that package is taken inside that is the point when probable cause attaches wouldn't that i mean this was wouldn't that allow law on horsemen to deliver it to any residents they chose and then search that residence no your honor because dish worked specifically mentions the address of the place to be searched and so there i understand  that they could put my address down or your address down take the package deliver they tied the whole problem causes tied to perkins being a drug dealer and so they could say perkins is a drug dealer now deliver it to judge the  residence we think he resides as dr bob pointed out with no other evidence and deliver it there and you can search well that's why the additional evidence in this affidavit that the officers knew that perkins had been convicted before they knew that he had dealt methamphetamine before they knew his record that's what protects against justice scalia's scenario of my point is they could have every paragraph in this instead they could substitute my address her where perkins lives because they have no other evidence of that they're just any resides there they don't provide like his driver's license like they often do here is how we know he resides there we've observed him three times there at this and that the other one they can go to any residence in america whatever they've listed the liver search because the of events come to but matt i see i see the concern here and i understand i mean officers if they make mistakes and deliver a package to the wrong address and and it's accepted by someone there by mistake we would certainly hope that the justice system would work that out and  the people would be forgiven for taking the package there would be no issue it least in terms of the merits and here the issue really is it's a marriage issue i mean perkins is free to argue that the meth inventor mean is not his but the important part is once the delivery was made to the residence the triggering event occurred in the agents had probable cause to search the house the district court erred on that point if we were to say that common sense doesn't come down on your side of this would that be a whole lot more common sense in the way the warrants are sought i'm not sure your honor perhaps that perhaps the officers would they would they would be less specific in that case i mean we certainly want officers to be specific but but not to the point of of over and i mean by that is if your point to me at least seems to be we were just being overly cautious here in the way we put together this affidavit so we specified perkins but we don't really need to do that and we didn't really mean that because we really just want to search the place and if that's really what you're after then if if we were to rule to affirm what the district court did here wouldn't that sort of send a message that you better say what you really do mean in these affidavits well i certainly i think that op that agent should always say what they mean in affidavits but i also think that reviewing courts should read the minutes in a commonsense fashion and understand that these are agents that are drafting the warrant says the supreme court recognized in the united states versus these aren't trained attorneys that are drafting the warrants these are agents in the field are but a judge is reviewing them secure point that agents may be less specific but then the judge will make a determination whether more specificity is needed so rather than an agent in the field making a probable cause determination it's a judge in chambers which is what the fourth amendment's warrants clause is supposed to do that's exactly right your honor and that's exactly what happened here and again paragraph twenty one in combination with megan's requiring a sufficient delivery under a commonsense reading the triggering event occurred the district court err not point i would ask this court to reverse thank you counsel the case of this that other than there being nothing further to be argued this morning major the court