yes sir i please the court michael herman for mr mann is your honor this case is about the custodial state and whether the district court here in refusing to suppress that statement is the fruit of an unconstitutional stop search and seizure the statement at issue is the result of two converging sets of events one was a traffic stop the police stop mr mendez as he drove away from his residence they searched his car they found incriminating evidence a gun and synthetic marijuana they seized him and they transported him back to his house where they then carried out the second set of events which was the implementation of a previously authorized search warrant to search his home and there they found later after mr mendez had already been stopped and detained at the first traffic stop later they found bullets in the home and then the two sets of events converged when d p s officers took him back to the d p s headquarters and interrogated him about both sets of events the district court here in this case was in premising its decision on one sole factor and that factor was the advent of intervening probable cause arising from the discovery of the bullets after the constitutional stop search and seizure had already occurred we know that reliance on one sole factor is error from the supreme court precedent and from this court's precedent in the brown brown versus illinois the supreme court rejected reliance on the sole factor there it would have been voluntariness is established through miranda and instead in brown the supreme court adopted the multi factor test that we now have looking at temporal proximity flagrant c of the unconstitutional conduct and intervening circumstances the f m think they find the bullets not the rest of the stuff and ever even happened they're going to get into the house and find the bullets and that's that yes and that's why we didn't challenge the books in the district court that was part of the evidence that was going to come in the issue that was at the custodial statement because that was the result not just of those bullets but it was the unconstitutional seizure that it first occurred the discovery of this other incriminating evidence that it first occurred and then the district court found that that first unconstitutional was in violation of the constitution under bailey and suppressed all the evidence and it was both sets of events together that came into the in the constructor study all statement was the subject of what was discussed at the custodial statement and as we pointed out in the opening brief the government didn't use the custodial statement to prove that knowledge not just of the gun found in the house but knowledge of the bullets as well they had to have something to show that the bedroom in which it was found was his this was a location with multiple people living in it and so the statement was key to prove up the knowledge of guilt both for the bullets and for the firearm itself when they obtained this confession i think i need to listen i don't there's an audio recording i think that was introduced at trial that i probably need to get and listen to but because based on the testimony there's not a lot of testimony about everything that happened in that conversation with your client and law enforcement but as best when your review of the record did they use the fact that this gun was found in his common law wife's purse to help get the confession because the case law talks in this situation a lot about did the opposite is exploit the unlawful seizure which was the car stop in getting this other evidence for which there was also intervening cause so where in the sequence of this because what i've seen in the confessions they sort of say when we searched your house tell us what tell us and tell us what we found and he says well you found em and you found a gun in this box that they didn't go back and find so so where where did they use the part about potentially pinning this on his wife what we have in the record is the interview that was introduced as evidence at trial and that was four minutes out of what the agent testified at trial was an hour and a half long interview so it was redacted down substantially to just four minutes i believe that i have supplement in the record with a transcript of that interview so the court can look at it and in the briefs i set out the timeline that you're correct your honor that that four minutes that we have shows a discussion first about what was in the house and and some admissions to other things but at the end of that statement in the format however it was redacted what we have is the officers asking mendez to claim responsibility for that gun so that it would not be blamed on his girlfriend so they used the gun that was found in the car the revolver that the district and that statements took forty tells them  you've found ammo and a gun in my house or i think it's very unclear we in the actual times knew why i'm asking i think that i do you know but in the timing of what was actually played in the district court it comes it minute for that we have four minutes out of what the  the agent testified was a ninety plus minute statement and so that really is the key area that we have focused on in this case the district court's error was looking just to one factor we're not arguing that this court should find that the statement should be suppressed we're not arguing that the record is developed enough to make that merits determination on the contrary what we're arguing is that the record itself wasn't developed enough and that the district court's error was looking only to that issue of intervening probable cause that's clear from what the district court actually ordered you to the record isn't developed enough i know you're saying the judge didn't consider all three factors are you saying there needs to be more testimony it does and part of you want a full suppression hearing  n why do you get a chance at a nuclear it's not actually our chance your honor because both brown and then this court's decision in cherry on which we rely for the the proposition that the district court's reliance on the sole factor of intervening probable cause an government did not do it and in cherry and then in the subsequent case from twenty fourteen of koosman where you had a similar motion to suppress where the district court made an error in looking to one sole factor without the full development of the other factors it was supposed to rely on this court in both of those cases separated by thirty years said the government bore the burden and it remained to the district court for further determination of the record because the record was insufficient that this court refused to take this month to look for  reasonable views of the evidence because the court found there simply wasn't evidence in the record to make that determination and that's what we have here a thaler in the district court of the district court to look at all of the brown factors and a failure of the government to meet it so tell me why you think the flagrante faber's you've been in the supreme court in the utah case says just the fact that it was unconstitutional stop that doesn't get you flagrantly because you're not going to be in this world if there wasn't something unconstitutional so what about this beyond just that they violated the law in stopping and what makes it flagrant if i may before into that i just want to make sure that i'm clear that i'm not just accepting a burden that's not the defendants to to go forward with the government had the burden in the district court and the government didn't need it and so what what i'm going to have heard in the show it's not flagrant right to show that the teams been attenuated well know their arguments the purpose was just for safety they could have they could have stopped him at the driveway or up at the house actually and talked to them so it's not a case where they had no basis to talk to the only reason they waited until he drove off for a few minutes was the safety reasons they had because of the warrant the right to talk to him at the house so how do you respond to that and what factors can you show that would make it seem more flagrant than the napper trial that their brief offers for the flagrante first of all and these are things that we pieced together from what the agent said because the government never directly introduced evidence on these factors the government never directly argued these factors in the district court didn't didn't address them so i'm drawing from what our piece is that the agents have said not in response to questions to get to these factors but just what we can glean from the incomplete records there so  agent testified at the suppression hearing that he and the other agents purposefully planned how to execute this warrant why do i say that they the agent testified that they met the evening before the execution of the warrant with all the officers who were going to be involved that they talked about making sure that mendez was away from the house before they stopped him and then before they started carrying out the search warrant he talked to the agent testified that he consulted with his superiors before implementing this plan so this was a planned and purposeful in that sense action i'm not claiming that it was deliberate in the sense of the officer deliberately violated daily that's not what i'm claiming but in hearing the supreme court set the board far less for application of the exclusionary rule hearing involved than officers mistake and not just the officers mistake but lease departments mistake about whether a warrant was actually authorized or not in the supreme court there said mere negligence is not sufficient but the supreme court did say that in order to merit the exclusionary rule and to have conduct that should be deterred and that is culpable you need at least grossly negligent or reckless actions and that's what the testimony of the agent shows here this giant testified that he is in charge of investigating gangs and drugs in the corpus christi area he testified that he had experience with if you execution of search warrants he was the leader of the execution of the search warrant and he brought in a swat team first he wanted to bring in d p s the swat team that he brought in corpus christi so he brought in that unit specialized in the execution of warrants so the level of experience in the positions of these officers show that they should have been aware of bail because it was their business it's their specialization and bailey had been the law already for two years bailey had been the law telling these officers not to do exactly what they planned to do so it's flagrant in the sense that rises to the level of herring culpability and it's flagrant in the sense that it was purposeful in its actions that is combined then with what we can also glean from the record about him about temporal proximity we know from what the officer said that they started at about eight thirty in the morning that they had mr mendez detained within a minute of that initiation and then it around two or three hours later they finished with the search and we're getting his his statement so we have a period of six hours or less which is less than what the supreme court in taylor versus alabama found to be sufficient to be a significant attenuation in terms of the time period so we have issues related to flagrant see into pro proximity both that i'm just drawing from the hints that are available in the record that nobody actually addressed in the district court when the government had the burden to do so and then finally we've discussed actual exploitation already that's from the four minute we have from that hour and a half statement and so if even in the four minutes chosen to play a trial we have an indication that the officers are asking this defendant to accept responsibility for the gun in the car and of course they would because they didn't know at the time they were asking these questions that they were going to have that stop suppressed so of course they asked about it and utilized it so what else is there in the record and that really is the key point it was the failure of the district court to engage in the full analysis of deep brown versus illinois factors the key case to i think to sort of structure this is united states versus martinez which we addressed in our reply brief in response to the government's argument that this should be on plane air in martina's that this court was faced with a very similar circumstance in that in the district court the defendant argue that the stuff was illegal because the officers didn't have reasonable suspicion that was it full stop just argument and on appeal the defendant argued that there wasn't reasonable suspicion because the confidential informants tip wasn't reliable the government argued pla error and the court said no and the court actually used the phrase the crucial fact the crucial fact in that case was that it was the government's burden to prove a reasonable suspicion and so all the court although the court was very critical of the performance in the of the attorney in the district court and that attorney was me other the court was very critical of that performance the court still said the attorney presented the argument it laid out what the complaint was the government couldn't complain that it didn't know what the complaint was about and then the government did what it should have done in terms of trying to address it but it's tailed and that's what we have here in this case mr mendez his attorney laid out twice in writing pre the motions hearing and post the motions hearing referring to brown as the appropriate framework referring to all of the factors in brown and in the post motion briefing stating that the government had failed to meet its burden so the defendant put everyone on notice about what should be determined and al defense counsel could be faulted for not having made these arguments completely at this stage it was the government's burden to carry forward and the district court was aware of what it had to determine and the district court simply made an error that error was a clear error of  under this court's one nine hundred eighty five decision and cherry it was a clear air of law under taylor versus alabama where the supreme court rejected reliance on intervening probable cause when the other factors weighed heavily against finding that intervening probable cause is sufficient and even in utah versus treif where the existence of a preexisting arrest warrant was the critical or key factor in the court's decision the justices there still looked to temporal proximity and as you pointed out your honor the flagrante of the action finding that people at the house conducting what might look like drug transactions so the government argued was reasonable suspicion judge rainey said well but you didn't tell that to the officer you radioed ahead to i mean i think there's a collective knowledge doctor of the government not appealing that but but in looking at the flagrant see in these things can we consider the fact that that officer had reason to believe that he'd just been dealing drugs outside his house that very morning he could very well have reason to believe as he said that he had been dealing in something one of the key problems in this case is we don't really know what he was dealing throughout it's referred to as synthetic marijuana there was never any evidence presented that there had been any testing done of this synthetic substance we don't know if this was a substance that was illegal and in that four minutes that the government played at trial one of the words that mendez uses is legal and what he was referring to was the substance that he was found found with indicating that this is like one of those substances that the government hasn't yet scheduled it's one of those synthetic substances that's still technically legal although it's a substance that invades the impact of the law so we don't really know because there was never any proof that they actually had reasonable suspicion of anything and they had been doing this investigation for a while but yet we have no evidence that there was any actual testing done or anything to support such a reasonable suspicion that even if there were reasonable suspicion for  that that alone would not have given them the authority then to just merely stop him and do what they had done in violation of of bailey itself particularly because all he saw was what he thought were those types of transactions it wasn't the undercover transaction where they had sent someone and if i remember the record correctly thank you  decision that there had been sufficient attenuation and in doing so the court's order cites both brown and the relevant three factors under existing law the court wasn't required to parse out each factor and that's particularly true here where you have an extremely conscientious district court judge who was knowledgeable about both the facts and the law judge training had the benefit of three and live witnesses testimonies and i believe that there were four different pleadings filed after the suppression hearing there was also a lengthy discussion in which judge reigning hypothesized various an aria was and how what you know what would be the legalities of it all he considered it somewhat of a hybrid situation but he didn't want to rule from the bench instead he wanted just think about the issues even further and he did that in approximately a month later we have the seven page order in which he discusses that it was the stop incident to the search warrant but it was an reasonable excuse me and that decision largely was made on bailey and what we know from bailey is that you have to have the proximity requirement in the immediate vicinity and judge rainey recognized that there was an officer officer safety issue involved and there's no dispute about that that the officers were acting reasonably in the sense that they had done some type of safety made safety matrix in which they determined that this sonority or this situation was so unsafe that they had consulted a swat team out of austin to help them for whatever reason the austin team was not able to help them so they enlisted the help of the corpus christi d p s swat team and they were lined up to do the execution of the search warrant but the day before it happened and three of those officers were sho so these officers were left on their own they were nervous about the situation and that's that's the stage for heart how all of this occurred what they did the record is clear that they were pretty much afraid of this gentleman has his h ome was shot up with bullet holes already he was a suspect in the drive by shooting so that it want to go in there surveilled the premises in which they saw during this the same day i believe it's february twentieth some hand to hand transactions which they believe to be were drugs and they waited for him to actually leave the premises at some point mendez does come out with his girlfriend and the d p s agent russell immediately radios to his supervisor who in turn alerts corpus christi and that's judge a judge excuse me that's officer thurman who ultimately pulls him over and obviously judge but i keep hearing that i'm so sorry officer thurman is not acting in bad faith or flagrantly or anything like that he honestly testifies i pulled him over because i was told to do that he doesn't make up the reason nobody had conveyed to him about the hand to hand combat that's all we know is that he was doing his job his superior had told him to pull mendez over and that's what he did the record is undisputed that the conduct from there forward regardless of whether the stop was bad but that's officer thurmond acted lawfully he segregated mendez and his girlfriend he frisked them for safety put him in a vehicle and then did a sweep of the sedan or car whatever it was sees a gun wrapped in a bandana of course but it feels like a gun all of that is above board he ultimately he calls he takes them back to to the search with the houses being searched after the premises are secure now that's the part the judge rainey finds is the bad stop leading up to all of that because of the bailey issue the proximity issue that he was a half a mile away and i i it was i believe it was less than a minute he testified too but but bailey is very clear if you're not limited immediate vicinity that's not enough cases of the held two or three blocks on even to the immediate vicinity so at this point they're at they've executed the search warrant and they find ammunition there's no dispute in fact there was a stipulation a trial that mr medvedev as is a convicted felon so when they find the ammunition no dispute they were probable cause to arrest him there's the judge ra order says that they arrest him when he's taken to the d p s station however there is testimony that he was arrested actually you know on the premises where the houses but b that is that man he's transported down to the d p s station and there is a now there is a ninety nine page transcription of that interview however that of course wasn't the case during the suppression hearing and but he's a convicted felon with a pretty long history so he's very familiar with the system for the judicial system while i was sitting there i was trying to look up your your question judge king and judge cost stuff and i think around page nine is where some of that starts and what what officer her agent hernandez is saying is so tell me where where did we find this to we find that do we find where do we find the firearms and he says plural and does says something about how he had bought it two for two bills all for the street because he was convicted felons but then hernandez talks about the block of a glock is what they knew about previous search warrant and that's they were looking for but they did not find it during the execution of the search warrant going back to the question i asked the other side do you know where in the course of that interview they they brought up the fact if you don't want your wife had this gun in the purse to be responsible so you better own up to all this because that seems to me to be the potential use of the illegal stop me because if it as you say they had they had a right to arrest him based on the ammo found in this during the search warrant so if that was just what directly led to the confession it's not as problematic as if they used this guilt trip about the potential exposure to get the confession i will defer to you on the transcript as i said i was looking at it i don't see that in the very few beginning pages it's what you know where what about the firearms what about the clock because they couldn't find the lock they found an empty box that they wanted had they had the gun  and so he fesses up about where the clock is after a little bit of exchange now one thing that's not in dispute is that subsequently excuse me the officer returned to the house after they secure the information of where the flock can be found and mendoza's father gives consent to search the premises and they now know exactly where it is and they go in they get the flock out of the box but the other side is not contesting  either instead of what i understand this case to be is very narrow and that is their on dissatisfied if you will with judge arraigning supporter as i said in the beginning of my brief clearly were under overview clearly were under clear air and all of the differential stat you know the differential and often favorable standards that were under but what we have here is judge training set forth all the facts that occurred  specifically cite brown he specifically cites the three factors what he doesn't do his it doesn't say factor one temporal proximity x factor to walk is filled with you know with these multi part test and you don't always have to go through every one i mean to do so and i'm sure one is the foreigners enough to carry the day but i guess what troubles me is the third factor on flagrant see is because the supreme court just last year called it particularly significant correct you know if you just found two of them favor the government i'm not going to get into the temporal proximity probably not an issue but he doesn't get into what the court said is usually the most important factor i have either said it was flagrant or not i don't necessarily agree with that with all due respect but first that's what i want to do get out that's why i said the plane air i realize that it's our burden no question about that my point simply was if you want these extraordinarily believe that the record is did say there's these three brown fact exactly we believe that the order is sufficient and also that the evidence is sufficient there's no there is that the evidence is disputed that officer case whatever we want to call it the the court was very clear the doubt is the most important thing but what the court also talked about there and we don't have this here again there's no evidence of any kind of recurrent conduct on the part of these officers it was a straight up investigation at most just like the you talk a we have an isolated instance of maybe negligence i'm not certain what but it would be a big as we have an officer who in good faith testified i did what i was told and as you pointed out judge cost and there is a collective knowledge issue here but that was never developed below so of course i can't do that either but the exclusionary rule is aimed at deterring police conduct and here we do not have some type of flagrant conduct where they interviewed him or they tried to interview mr mendez when he was stopped all of the record is undisputed that all he was asked was identifying information there was no information asked about the gun or the meth or excuse me not math but the synthetic marijuana found in the car or any of that it was just identifying information so i believe it was just  stopping the car was a problem with now but a bad stop doesn't equate to doesn't equate flagrant conduct i mean the supreme court has said as much we have to look at more and so agent russell and hernandez have both testified that there was no type of poor vision and that the post conduct excuse me the post op conduct was lawful he wasn't he wasn't questioned mendus was not questioned at all until they got the d p s station in which he ultimately or quickly rather waived his miranda rights and they asked him essentially you know you waiving him they go through the various steps and he says yes and then they ask him again are you sure something to that effect are you sure you understand so there's nothing out of that scene of the stop or at the premises in which they're trying to exploit what ultimately is found to be a stock and in that sense it is a lot like the supreme court you talk case because we don't have officer thurman the purpose christie stop sir trying to extrapolate any type of information or anything like that if there are such that he meant his and his girlfriend are segregated they're put in separate cars they did the security sweep all of that is above board but as i said judge  ultimately concludes because of bailey not because of the officer's conduct or anything like that but because of bailey that they were not in the immediate vicinity and therefore it was a bad stop and judge raining goes on he mentions twice i believe in the order or something about miranda something about maybe waiving but he also specifically signs without a whole lot of detail admittedly but he finds that his statements post  miranda come into evidence so we have a situation where the record is very well developed and could they testified of more possibly i don't know but i don't think that they need to and what we had at trial  i've read the trial transcript as i'm sure you know mr harmon has two and they did use that knowledge component but this court also is in a position where it can look at that whole trial transcript as well in order to make this decision that which is the same crime is all the other stuff he he'd be convicted of it but you needed the can is it that you needed the confession where he says yes those are my bullet because he might have said well wind up in the same place anyway you have the ammunition you have a convicted felon and the defense counsel starts to answer and judge raimi interrupt some to say i think he cuts off too but i think it's along the line that he he was  his judgment as a boy or that he's looking out for his client or something like that in the conversation with dogs but i mean that that confession was important for the government because it defeated any argument that the bullets were put there by someone else with the certainty but i'm  but we all know that many cases are proven simply on the circumstantial evidence it's in your drawer it's in your house those are tough cases this made it a slam dunk case i'm not really sure why it went to trial again but versus stipulate a bench trial and if there's suppression issue they want to preserve but but this took it from a those are arguable cases when it's just this is found in my car seat or in in my desk drawer those arguable cases this confession turned it into a slam dunk they're found in his room he said they were is end of story hybrid situation as judge rainey called it right from the get go and i think the fact that he is so conscientious and soaped hognose on a law is exhibited and the fact that he granted part of the motion and deny part of the other part of the most  clearly he thought very carefully about this he evaluated the witnesses credibility and all of those things it wasn't as the end he didn't issue it alternatively either it was you have a bad stop that this was enough and he finds that the discovery of the ammunition in the house because there's ammunition discovered in the car and then there's ammunition discovered during the second house i mean it's his major the second search but but the ammunition discovered pursuant to the search warrant that that provided grounds to arrest mr meadows which which is what happened and that's he was transported downtown and had not to you know repeat myself but essentially that's where he waived honor this case isn't just about dissatisfaction with the order and it's not asking the court to go through some sort of meaningless per se recitation of all the different factors and nor are we attacking judge raney as a conscientious judge what this is about is a failure to analyze and to take evidence on all the factors that the reports required to take it was the government's burden to do that the government has never pointed out anywhere in the record where the government actually said to judge rainey here's our evidence on temporal proximity here's our evidence on flagrante the government filed nothing in the district court to address those issues and so judge rainey fall of the government into that error could the defendant have pointed that out afterwards after the memorandum order came out yes the defendant could have but the federal rules don't require the taking of exception to an order once it's been issued and the defendant put the government to its burden a burden at which it failed and judge rain simply look to what the government put on but that was insufficient and so the issue here is a failure of the record and this is very similar to mine in that case similarly the court looked at a factor there that the court just got wrong it was a had to do with trickery and getting the consent and getting a statement through trickery but the court said we're only going this court said we're only going to apply the all reasonable view of the evidence rule and look at all the record and start to go fish and extract everything from it when the district court has one asked all the right legal questions and to actually weighed the evidence to answer those questions and yes judge reigning mention the brown factors here but there's nowhere in the record where judge or any actually did would guzman requires he didn't actually weigh the evidence on temporal proximity enclave and see on actual exploitation actual exploitation moving on to another point isn't something that's actually required brown set out the factors to get to a  that's more of a psychological pressure this court recognized that similar type of psychological pressure in the case we cite hernandez because that it's important to remember that case had two different groups of people the one defendant hernandez where the court found that her statement was definitely the result of the government's action but then a group of of witnesses and the court there recognized that once those witnesses knew that incorporating evidence had been found that there in this initiative or motive not to give a statement had been compromised by their illegal detention and the illegal search that had occurred so it's not just the actual exploitation in the sense of asking the person and because of what i found you need to tell me this it's the psychological pressure that's recognize that's why brown versus illinois taylor versus alabama dunaway they all involved illegal seizures of the defendant not necessarily searches or confrontation with the results of that searches and in terms of fla the court seems to be not the court i'm sorry the government seems to be revisiting a lot of what the district court determined in terms of the violation of bailey and seems to be sort of the justifying that whole issue but the district court made a determination and the government did not appeal that determination but i bring it up here because what i've argued is that the purposefulness came in the violation of bailey i'm not arguing that the government somehow overbore his will through torture or some other extraordinary act but the the violation of bailey is itself important that was something that the supreme court had already said two years before that was where the court laid down some clear utah case the supreme court's at forty years before that to stop someone on the street terry stop you need reasonable suspicion that's an even more fundamental thing that every cop knows and that was violated but the violation of the clear law is the supreme court says isn't enough or flagrantly there needs to be more tell me tell me if you would you talk differently but  what the government with the court said there was that negligence and that was what the issue was there near negligence in terms of the in terms of the officers view of what the facts were that justified the belief reasonable suspicion but here this is more of a prophylactic rule from bailey the court just said you don't stop the person as they've left the search premises when they're already away from the premises unless you have a reason to know that they're coming back which they didn't have and so these agents planned in advance to violate the structures of bailey so that in itself purposeful action taken by people who should know better which goes be on your negligence because these are the law enforcement officers charged with exactly that set of duties and finally the importance here is to remand this case back to the district court that's what this court did in cherry that's what this court did in close mine where the district courts committed the same type of error a failure to consider all of the factors and that's important here because of what we talked about but also the government made reference to a ninety nine page transcript of that ultimate custodial statement that's not in the record the district court never determined what was in that custodial statement i offered in what into the record before this court the four minute segment that the government actually played at trial because the government actually played it and so in other words it was in the record it just wasn't transcribed properly that's in the record now but nobody's ever looked carefully at that ninety nine page transcript and that's part of the evidence that the district court under chariot under guzman needs to go back through and we might very while well wind up like this court decided in cherry in one thousand nine hundred six which is that after remained the district court found that the taint was attenuated in this court subsequently agreed we might very well be in that position but the point now is that this court can't make that determination on the record that's before thank you  and this panel