judge the judge indicated was this was the first or second open plea that he had dealt with in approximately twenty years so in terms of open pleas it seems to be a more what term you use the open open plea there was no plea agreement in pleas in that circumstance certainly the court has indicated its preference is to have something in writing it just is going to be more helpful to specify for open please then there's the precedent both within this court's jurisprudence as well as outside as long as it is quite clear from the record from the transcript then  it's also in this court's decision in bundy and that talks about how a transcript is sort of like written like a written well your honor i agree it's preferable i'm not sure that the government's case however was silent and they don't indicate that they were either right well record i respectfully disagree with that you gov after the judge made quite clear that my client mr fitzgerald was going to be allowed to appeal on the one issue of the suppression within the same page and this is in supplemental  extract thirty two on the same page after there was clarification by the trial attorney for mr fitzgerald the ask about well how is this going to affect twenty to fifty five and then there's a comment by mr marsh saying yes this will not affect twenty to fifty five so within thirty to sixty seconds at most on the same age in this case under this court's going to this transcript in this and i don't want to repeat you know as i said certainly best practice is in writing and this court should specify even on an open plea please put something in writing to specify if you had it in writing you wouldn't or would you say that there has to be affirmative consent in open court as well well in most cases that is is accurate again it's that there was no written plea agreement so it was became more of these are open please no written agreement right  most of the but the most of these conditional plea agreements are they it is their written agreement yes your honor it's part of a ten page written agreement to add and it would perhaps specify it as part of that that there conditional please as my own most of them do come out in written a green well there would normally here mr fitzgerald said to the charges he agreed to it there was sentence saying but there was no ten or written agreement or do you have to have that in open court or is that enough that both parties of executed the written agreement your honor two things one is it would be rather moot if it wasn't in the written plea agreement that's why this case where the judge indicated that here page thirty five i don't we have two problems here not just one on the first problem is the one judge tracks very down about is that there's no written agreement and he's reading right from the rule there about it being right in writing and then the second point is there's no affirmative consent in open court so you know now president seems to as i think was noted by the parties potentially an open question on this court of which circuit to file which is either the fifth circuit or the eleventh however i pointed out both those circuits as well as this court's decision  case out of the seven circuit and that in that circumstance every case today is recorded and you potentially could get a transcript from every case so they describe that in nassau that was when the case when this rule promulgated now necessary to go that far certainly it's preferred when it's a unusual circumstance once or twice a decade for this particular judge to have an open plea that this that they also have something else  writing but i don't think this court has to reverse precedent i mean there's no precedent on the second issue your honor but if you look at the one page where the judge made extremely clear to my client and in again i want to stress under all the cases my client could not either a get a conditional plea or he did not knowingly plead guilty if he could not about it conditional place so at the worse that would be  a case decision where out of maryland and the trial judge did not have a full frank's hearing if you look at that cases decision it's unclear to the extent to  which there was it was dicta or when it was full precedent but the facts of this case seem to follow tate's quite close and that's because in this court in the facts mor overwise valid was your honor the judge did not describe this as merely negligent quote this was very sloppy at the very least it's extraordinarily sloppy police work and to answer your question directly your honor record somewhat unclear to whether or not this was a full frank's hearing the appellant described it in appellant's brief as a hybrid the government however on their brief page twelve said that there was no full isn't on extract page ninety two he goes and says that he's basing his affidavit on a review of documents and other evidence personal knowledge and review of documents and other evidence so when he affidavit he had to respectfully have known that his previous report for five days earlier said it was on the curtilage he could of quite easily respectfully not have gone in misled the judge the judge police being honest with the judges you can't just go and respectfully say way later this looks this was wrong maybe in retrospect or i don't remember but what he said in the incident report was crist will clear respectfully it was on the curtilage therefore it was not constitutional the trash bill and therefore he could not and should not have misled misrepresented to the judge who issued the search warrant thank you  procedure which says that the district court judgment has to be rendered on separate from the opinion and you know we were getting these appeals where  i expect a rap on the knuckles for this case in fact i came down here expecting a rappel knuckles in this case and i think we deserve one we did make a mistake but the reason i would ask the court not to overturn the entire guilty plea as he did in bundy and which i think it was required to do in bunty is because it would have an affirmative impact on the rights of mr fitzgerald and would actually result not simply in returning the case for an a correction of the errors i think probably happens in the real fifty eight cases over an actual vacates or of a judgement which down here an advocate for a conditional plea being vindicated by silence and that's actually not the government's theory here we believe and i believe and i think i could speak from my office that we did affirmatively consent to the terms of this conditional plea the bottom of the page all right do you believe the defendant has been properly advised mr marsh my colleague then approach to discuss another matter with the court about this issue of the root of the written versus non written cletus position that goes on for a couple of pages and then district court returns to the government and says anything else which i understood and i've sat through many rule leavens as anything else on this ruhleben colloquy and mr marsh my colleagues position for the government was to state no you that the word the conditional plea was memorialized on the record which it should have been we should have had a written conditional plea agreement that would have been out of i mean judge try to read to you from the rule why was this not a little bit of speculation on my part but my sense is what happened here is that there was discussion between the parties about mr fitzgerald wanting to come in and do an open plea that is a plea without a plea agreement happens once in a while the district of maryland not they're not common they happen periodically and then at some point oh by the way he wants to reserve his right to take the plea on the motion to suppress which was a dispositive issue so we're thinking ok that satisfies bondy got to decisions being made at different times to agreements and we make the mistake of not have a if you have a written plea agreement executed by both parties is that sufficient to satisfy the affirmative was cleanly done here there wasn't a written agreement and there wasn't really an affirmative unequivocal affirmative consent in open court so  precedents and so if we say in the face of these deficiency it's all ok and we'll just overlook it and call it harmless and everything you know is at a certain point folks you're getting a little bit casual down there and you know that's we shouldn't over do that because then it becomes over technical and we get a lot of dr oz question remains and the banks so there's a danger of overdoing it but there's a there's also a danger of under doing it and saying well no you know no problem would just look the other way and this strikes me is the kind of thing when  we presented to the district court to memorialize him at the same time and i have to say under a brodsky and bundy if the court does not believe there was an affirmative government consent i think the court should send it back because i believe the courts refer to the government consent as a unknowing it evolves or a lawyer i'm always reluctant to talk about the outer limits of any rule or your honor but in this instance i think i probably opt to have the plea vacated we go back to the drawing board and do the police and hopefully we'll go through again i think that would be unfortunate but i'd be frankly i think we'd be postponing another problem if we don't resolve it one way or the other i think it could be resolved today by addressing the issue on the merits but reluctantly i'd have to say i think the police would have to go back and  again i would argue that functionally it's the same thing that a rule lemonades it's a harmless error kind of situation but in fairness the term conditional plea does not mean it but i will say the judge russell did advise the defense that he would reserve the right to appeal the motion to suppress and i believe the defendant was told i could be wrong about this but i believe he was also told i'm not sure if he was told that that would allow him to come back but i would have to say that would be applied your honor because it page thirty five  remind the judge i think functionally it's the same thing i would like to address one or one of the other issue which i think is important the judge wilkinson brought up and that is the issue of what does the court have to do for the parties to learn their lesson and i've read bundy and i ready bronstein i remember thinking  myself the court's going to ask me that question cause how many times are they going to tolerate the same air i can represent this to them as a result of this case in my experience here i directed an e mail to the members of the section i supervise reminding them eleven demonstrated the government's assent to the plea and i do think that at the end of the day that the court has to for the court to find that this was a conditional plea i have to think that the court would have to agree with me that we assented to the plea under the terms of the level of the court disagrees with that and it probably should be a rematch frankly i would expect in a situation like that to be held to the statements i made during rule the rule of if i stand up and tell a court your colloquy is perfect after the court has just told the defendant he has a right to appeal i can't imagine a situation which i would later stand up for this court and say oh but he did have a conditional play because i think it's my responsibility but might not matter whether or not you stand up and agree with this question  and what they did that is correct your honor but i would i would hope that the court would if i'm being unscrupulous and i'm going to guess representations that i've made in a rule and my representation spirit no not at all but it's a hypothetical go don't go there because you know i understand some you know we're all human and sometimes little mistakes in the category of an honest i don't take it personally on it but the government's assent is a relevant question here because the issue is did we consent and so whether the government agreed is relevant as part of that analysis i think we did in the rule leavening i think we said this is ok this is perfect and it was a conditional plea and the other requirements imperfectly are satisfied on the soffits admittedly we could have done a better job we should have done a better job but our errors then notable and we deserve a rap on the knuckles were any objection whatsoever to the rule of a person i think of the government affirmatively says no that's perfect it's hard for me magic how we have a weight i could be wrong your honor but in this instance that part of my reading i guess is also through the prism of the fact that not only do we have a record that says that but at the same time i know that that was our intention and admittedly our intention doesn't scream for the record because your honor can't read the minds of the prosecutor at the time of the eleven but in a situation w hear anything but suffice it to say your honor i guess i do believe that the functional equivalent of frank's hearing was met here whether we call the franks hearing a hybrid hearing or a evidentiary hearing to determine whether frank's hearing ought to be made bottom line is judge russell credit testimony of two baltimore police officers that these trash bags came off of a and accessible of a major vehicle about two police officers your honor and the defendant's witness so police officers seized harass a police officer who was with  explained the conditions that must be expressly described in writing or at least so clearly shown on the record that there is no doubt that a conditional plea was agreed to that's quoting fundies so that's this court's precedents  your honor again there was unusual circumstances that there was no written plea and i think that played some role but i understand this court wants to go and set some role for future purposes whether or not that requires a remain and obviously  client made it quite clear and the judge made it quite clear that he anticipated being able to appeal on this do you think we can have the authority to remand us for a determination as well of everybody agrees at this  well they kading the entire blue eyes under this court's precedent and bundy i think respectfully it could not have been voluntary if the you know what if it was what if the germination is i just certainly if i could sure this court that there would be something in writing it this court did do that but i don't under bounty bundy it's that one where there was other issues where it wasn't as do not sure i would want to give the prosecutor not that issue if anything again there's it was quite obvious from the record that the government speaking within a minute of the judge making you because i think there's a lot of similarities on the merits and respectfully there are three types of people who understand quite clearly what curtilage means they may not if you walk on main street they may understand it has something to do with a house