good morning your honour's peter swarth on behalf of a pal and alfonso v again and if i may at the outset reserve three minutes of my time for vote for possible rebuttal pal in this case is seeking reversal of his conviction which he entered on his own plea after the denial of his a motion to suppress and were seeking the court's reversal of that that decision to deny his motion to suppress in that motion suppress the court correctly first excluding evidence of an illegal entry without o any illegal warrantless entry into mr v against home during which they made certain observations which were then included in the warrant but then it was after that that the court found that the remaining circumstances the remaining totality of the circumstances was sufficient and we obviously  strongly object the court's ruling that there was sufficient p c was based on three three items number one observations of a misguided egos at a truck farm where she allegedly picked up items that may or may not have contained narcotics observations the next day at the anaheim residence of misguided goes when there was apparently some interaction and meeting with my client mr b again who drove his car he struck into ms guy goes garage where the previous night the truck which was police have been investigating i think it was mr castro for over a year correct and they had surveillance cameras set up around the truckee are they had wire taps on members of the castro organization and they had seeds large amounts of drugs money and weapons all correct correct ok yes our look at all these facts together why isn't that enough to establish the police's belief that the truck yard was being used for trafficking and to connect mr of yanking to the tools that were picked up from their well i believe that the police can know what they what they believe they know about the truck yard but there was no connection to mr v again to the truck yard there was no there's the observations of mr given again all of the time on our he's sign off on the warrants so much detail here mister you know wrapped up in this how does he connect mr v again to what he thinks he knows about anaheim well other than other than drugs and when she parked her truck in there all they have is your client backing his truck in there and then i guess they can't really see what's going on that's where you argued they didn't have probable cause to believe that whatever contraband miss guy hugo said brought the night before was then transferred into your client's truck agreed ok great so and if that is further supported by the absolute absence of any observation of my client in possession of everything anything not only there in anaheim  officer say that they observed anything in the bed of the truck and no they do not that they may know that there was air support that he was followed all the way from anaheim to pummel ontario they never mention observing anything in the truck and they do very clearly observe he's empty handed when you know he's the truck he's not i mean i don't know what quantities we're talking about here but i assume he's not going to be having bales of you know drugs while they a i believe that the allegation is that he was carrying davy was there getting large amounts yet that to put in the truck not to carry around in a yes but it wasn't in the trunk ok that's so how does it get into i don't that's why i'm saying that's to me that's your case right there if you know about what happened at the trucker because you're going to i don't hear it but but let me ask you this i tried to find the return on the search warrant to see what was found in the truck was there anything found enough in a so there won't be so we know there was nothing in the bed of the truck there was nothing in the bed of the truck ok and so the assertion by the officer that he believed there was something in the house is based on nothing well i'm sorry if i guess one more question just on the statements that your client makes when he's intercepted ok i know the district court i think ended up saying i'm not even to try to figure out whether i can rely on those i guess i look at our case law and it seems like we could and if we do it seems to me that that might be enough to tip the balance here's he even if the statements were taken in violation miranda they can still be used to support probable cause in a search warrant affidavit that's not my understanding what do you have that says to the kind of you know i didn't have that case in the frontal lobe this morning but certainly i have if i can while working on the miranda issue if i can move beyond that and particularly what i think is the real problem with that statement is it's hopelessly vague and undefined the war an application officer mangere notes that my client put his head down and said you know i have still find stuff but then he goes on to say he wouldn't elaborate further what that means is officer mangere and said what do you mean because he didn't know what it means it didn't have any meaning so then to ascribe some meaning to it later well the insects though that elicited that you know the statement from the officer that elicited that statement from your client is i mean you have to admit you were interested in i can't member the exact words but you know this isn't our conics investigation basically you know we think we've got the goods on you your client says well how much to my looking at and then stuff and you're in a find a lot of stuff and i think actually they say we're we're in the process of getting a search warrant for your apartment and your truck and he says you're going to find a lot of stuff in there what is stuff well in the context of we've got the goods on you for narcotics trafficking but that's not what they said were did they said we're doing a narcotics investigation we're doing or not and we're well enough we have enough what they tell him is we have enough in our view at least to get a search warrant both for your apartment and your truck now that obviously in context it seems to me they're talking about we are looking for drugs and your client says yet you're going to find a lot of stuff in my apartment if i if i may be a little bit important i don't mean to be but i was thinking about just this argument driving down the road the other day and the analogy that came to mind is i had a bad shoulder my doctor sent me to a surgeon to see what was wrong the surgeon came back to go oh you need surgery this officer heard a statement he's in the course of an of a new investigation so he cvs and hears what he sees and expects to see and hear and i don't think that it's fair to put that in the context of what the officer had in mind because his subjective judgment isn't really relevant about what he observed and i don't see where there's you can say objectively stuff means anything other than it may indicate some guilty conscience but it doesn't tell us it doesn't tell us anything more doesn't it doesn't even say it's contraband narcotics it could be stolen material it could be you're going to find a place as though just overflowing you know you're what we don't have as we don't have tone of voice right time so we don't know in my client say sarcastically well you're going to find a ton of stuff or did he say guiltily we're going to find a ton of stuff through and i think that to impute a particular reading of of the emotion in the statement wouldn't be wouldn't be correct i think worse we're left with the words and the words are insufficient on their own let's talk about the very last statement he gave the post arrest you're aware he was not arrested until ten months yet so if and when after the searches yes it seems like a pretty lengthy amount of time in light of the fact there not to appear to be any intervening circumstances in the record so i'm just trying to figure out why couldn't law enforcement use just that statement that he gave at the very end will be i think that there was an independent and unrelated because it because it is initiated and generated by  the admonition we've already got you can help yourself here you're already in trouble because of what we found last year so there is nothing intervening to break to break the chain of what i think is the improper conduct there is nothing that allows my client to feel you know where and separate we're in a separate proceeding here thank you you don't have any time but ok i appreciate it thank you i'll need about a minute carla there was an exchange that occurred i think if we go to pages eighteen and nineteen of the record specifically well starting at the bottom of page seventeen going up to the top of page eighteen where the officer at least investigator specifically invokes his past training experience regarding what they are what he has done with major narcotics associate investigations and he says this may be an awful owed this may be a load and what they see is this guy a ghost or someone else drive the same camper that they saw from the truck yard the day before drive out that morning see the defendant parked his truck in there and leave it there for forty five minutes and it's there for forty five minutes now he can't forget everything that has been seen the day prior and so all of  i mean i guess i just want to make sure i'm on the same page with you i'm assuming that they had probably cause the believe that ms guy goes brought drugs in in whatever form in the back of her car truck rather and parked there the night before presumably really interesting because every inference or most of the impresses it has been there was this truck yard that was being used for drug trafficking i mean there doesn't seem to be any direct statements supporting that other than these conclusions we've been investigating the castro people and now we're somehow this truck yard has come to our attention they don't really state how or why ok but then they say the details about somebody transporting tools understand that could be a code word in light of their extensive vesta geisha wilson that's what they mean ok all of it is that these three are tracking these tools that have gone you know to the truck yard that were picked up by i think miss guy egos and there's a couple other people involved correct that's correct all right and then she drives in a black hamper or some camper  individual back to her some house presumably her house i don't know and then presumably these tools are still in there i mean that's their inference is that they're trying to have people draw from that from that statement are you trying to say something different no your honor ok ok then the follow me if you would just for a second so they go to the house there at the house and they say good night everybody says good night ok including the investigators which i find a little stunning there's an an hour gap in surveillance we don't know what activity occurred from eleven pm to seven thirty am and what could have happened to the tools that i think we were people are led to believe were in that truck based on the castro investigation organization there's an he parked his car it's open ok the garage is open they can't close the garage door ok he hasn't opened that truck and then he drives out of his truck correct yes all right no one sees anything put into the truck presumably the amount of drugs that people are talking about are large amounts of drugs that are of the tools that were supposedly transported ok he leaves he's being surveyed with the helicopter and then he stopped we don't know anything about mr green we don't know anything about his attachment we don't know if he's a good post family friend of miss guy he goes completely non related you know there's some i guess some suspicion just by association that's being portrayed out in the in the affidavit but what what can you link to mr guy a gross and  is the opportunity to do it that connects him to this drug organization other than his mere presence of it his mere presence your honor when the investigators actually contact him back in ontario and they start as it was mentioned earlier when they start asking him questions still then all of that so that's your focus then is when they contact him and stop him on the street why did they stop him on the street because the investigator believed based on his training and experience that what had seen back in anaheim what did he see he saw well as was stated earlier he saw a truck mr d and the defender struck back into a garage where his team had seen the day prior what had thought a truck driven by a different defendant back into it after it left a truck yard and then the surveillance stopped that's correct and you don't think that that's significant your honor i do  clearly it's an issue it is significant but again we are it would be one thing if this were a patrolmen right out of the cademy who were just driving along and they said go watch this place and look for anybody who backs their trucks into this garage and let us know that's not this is a detective the affiant with twenty five years of investigative experience investigating major narcotics organizations where he has seen these types at least as he's recounting it in his affidavit he has seen these types of organizations and how they move product of a keep the supply chain going that is informing what he's seeing on the ground despite the fact that no one saw anything transfer into the truck it's an open that truck no one sees anything on his person and no one sees anything in the truck and he recounts that's right and he recounts there earlier in the affidavit re says the where the garage was it's a separate a garage from the apartment it's difficult to maintain visual contact with but this is what we saw and based on the wiretap evidence that we had they prior and everything that we see on the sixteenth and the seventeenth of october this is my belief as to what has happened based on my track maybe you can address the statement you were going to do that your honor it in terms of the statements when they contact him on the street it wasn't as if it least my characterization would be different because and i believe in the reply brief the defense or the defendant argued that the first time we talked about the incriminating nature of the statements was in our answer in brief that's incorrect we addressed it in the district court in our opposition to the motion to suppress but what i would say is when he's asked we're doing a major narcotics investigation here and it would be in your interest to cooperate his countenance changed he drops his head as it's listed in the affidavit he drops his head and the first thing he says is what kind of time of my  at not you guys got the wrong guy i have no idea what you're talking about it's a declaration against penal interest what kind of time like looking at the following questions or specifically we're going to search your house we're going to sit or we're going to get warrants for your house we're going to get w for your truck you're going to find a lot of stuff in there and i think as was mentioned earlier the entire context of that connects him to the yard and to the ontario house and he said you think you know i'm going to assume that there was a thank you ron and you know if i may get right to that question that i deferred no we also as we cited patterson which cites favorably massachusetts versus white which says that such a statement in violation miranda cannot be used for patterson most definitely says it can be you but it's relying on nast uses for its white saying it can't be i think we've got a case that you're i guess i was thinking you're going to say that no patterson is now inconsistent with later authority from our circuit or from have it as deeply as i should at this moment and i apologize to the court and to my client for that matter what i wanted to take my last minute for if i is the one thing that hasn't been addressed is the absolute lack of any nexus between mr via gains residents and whatever it is they think they observe the op of the officers think they observed or concluded occurred in i don't i don't think that's a persuasive argument let's if we if they had spotted packages in the back of the truck consistent with in the past transactions that observed drugs and so the there was probably cause i believe that in fact whatever product it was had brought back had been offloaded into your client's truck and they followed him back to the house i think it's that's a fair inference to say that he's involved in drug trafficking and that we're likely to find incriminating evidence of some sort yes but they didn't that's that's my point they didn't see him carrying anything so what is the nexus to his home you know i wrote it has nothing to do with the nexus to the home it has to do with the nexus between what guy goes brought and your clients truck and i agree that's the thinnest part for the government there's no question if i may i have just if i have just another minute while i don't have anything more does is there any further question now thank you thank you