storage facility in arizona was not voluntary and to the facts of this case falls squarely within the court's recent decision in united states versus scott so let's talk about  say here's what we know that he found it was in jail at the time consent was given he was trying to get out of jail it was at a detention hearing in the district court in the district of massachusetts fact you know of you but here's what the record really shows your honor and what the record really shows is that the defendant is the only solution that it knew would satisfy the court and the government but on this record we don't know whether that's true or not because we don't know what would have happened had he not had his lawyer not proposed to give the information isn't that the status of the  all right well don't worry about th the government starts the ball rolling they're the ones that have the ability to ask for the chance when they asked for it their request for detention was based primarily on the fact that this storage locker in arizona existe counsel for the defendant knew he had to address that so he took steps to address that short of the final proposed solution which was surrender to the government if we look like a reasonable conclusion is that he assumed they wouldn't break open the boxes but they did well don't you think that's a reasonable conclusion i think that i think maybe that's getting ahead of head of ourselves but what i want to make clear for the record is that defense counsel only proposes after proposing a series of other less intrusive means for example there it is very clear that he asked for the judge to impose very strict terms and conditions that the of hellen not possess or be near firearms thinking well that's also a problem he can't be near firearms therefore he can't be near the firearms in arizona then he proposed a very strict condition that the defendant of palettes cannot leave the commonwealth of massachusetts for a while that problem because the guns we're talking about are in arizona and you can't go there problem solved and finally he proposed an order that the appellant should have nothing to do with and will not go near any gun related paraphernalia or the cache of weapons in arizona so what we see here that was not put on the table in the scott decision but it's an important one here because the defendant was faced with a hobson's choice of either giving this up to the government or staying in jail where do we know that from this record we don't  in this record your ex should the district court of the district court well the district court found that consent was voluntary based on the fact that counsel proposed this and the defen situation because the defendants going to basically concede to anything in order to be able to sleep in his own bed that night nothing there's record shows that there's that he was confined he talks about his mother being and he nearly begged the court to have a detention hearing that very day because the defendant needed to be out and and raise the issues with his mother in the very in the very first proceeding now problem here and it's a problem that the scott case raised and that is that a defendant police cannot conduct a search of a pretrial release see based on something less than probable cause absence special needs that extend beyond the normal need for law enforcement so this adds an extra problem to the search and i think the government would have this court find that scott was somehow limited to these blanket waivers drug testing requirements or blanket search waivers but there's nothing in scott's that that touches on that that limits the holding of scott what we're talking about is the unconstitutional conditions doctor and what happened here is that regardless of who brought it up there is no dispute that the court conditioned release upon consent to search which is therefore an unconstitutional condition of release that can only survive scrutiny if there was probable cause random drug search why don't you impose this this condition and two in order to get clients released and then when that turns out to to to to to yield when that search you know i'm not sure that the lawyer at the time contemplated that but this is a different lawyer and this is a different she's a came up i don't believe that the lawyer in massachusetts ever was foresaw what would fit what would result as a result of wasn't first served it was that you know or try to quote as closely as i can that basically the government just hold these items until the conclusion of the case and so these parties did not contemplate the extent of the search and the multiple layers of search that would occur i'm so when we talk about voluntariness of consent you know we have to look at the what the what the state of the mind of the parties are and what they could have envisioned happening here but going back to the prob no probable cause and the government claims there probable cause but i'm still not clear to this day what the government is saying there was probable cause of what exact crime they were referring to officer at the time of the search now there is nothing remotely resembling probable cause that the defendant was engaged in any criminal activity in arizona there was no evidence that the defendant ever committed any violent crime involving weapons that much was conceded by the government at the detention hearing the magistrate simply showed that the defendants three only admitted to relinquishing this collection  sometime in the past that's not evidence of a crime with anything that's evidence of the defendant's willingness to comply with the laws by certainly not voluntary in the case and later on after the after the senate was released i believe the government drafted a stipulation wherein the defendant signed it gave consent to search t they were living together in massachusetts correct  no what i was saying there is no probable cause to believe that he was committing a crime any evidence supporting probable cause that the fan and possessed those weapons or had to maintain or control over the storage facility was found as a result of the search that's how the government ended up the case for possession and bringing the charges in arizona there's certainly no other special needs that would justify that search the government knows first of all the mother gave consent she was not charged the mother's consent is not an issue in this case the defendant focuses on the fact that at the time that he offered up the weapons he was in custody but we have to look at all the other safeguards that were in place at the time that that this issue arose he'd been indicted he'd been arrested pursuant to a warrant he'd received miranda warnings three times he was represented by counsel and he was in the middle of the detention hearing  defendant offered up this condition that the defendant poses the facts the defendant's view is that the court and the government demanded that the guns be turned over to the government there was there was no demand the magistrate judge expressed a concern all right we've got a defendant we're looking at his history we know you know he as a past conviction for involving silencers these fees it charged with possessing a machine gun he's a felon and now that he possibility has access to fifty guns in arizona his mother his supposedly his mother is the one that has control these weapons but he lives with his mother his mother is in her seventy's she's elderly so who really controls these weapons and magistrate judge says i have a concern with the def axis and then it's the defense counsel who then proffers to the court will turn the government guns over to the government and if the question is what went on between the defense counsel and the defendant and i would posit to the court your and that basically defendant lied to his counsel and didn't fully disclose what had happened because i think if the defense could defendant had said well i'll tell you what happened after you had a machine gun i boxed up one hundred  guns thirty thousand rounds of ammunition eighty pieces of explosive materials is the claim throwers i put them all in a truck and i shipped them to arizona and i lock them and i was the one that hired or fifty guns in a storage locker that the mother was holding for the son and that that was a concern so it was a reasonable condition to say we need to limit access to defend its access to these guns the government has a duty i mean you go to a facility and there's two huge shipping crates the crates are approximately the size of this table and the podium here we've got two crates that size in the big say what are they taking in their possession what are they going to do with it there what type of hazard do we have here and i think it's clearly reasonable for the government in this particular in this particular case in light of what they found they had inventory what they were taking in their possession and one of the first things they had to do as soon as they found the explosives  off now we've got to get the bomb thing in here we've got to deal with that there were a lot of issues that were generated in light of the defendant's nondisclosure of what what was really going on here quick would you address the probable cause to probable cause y did that while he's a felon he's also buying machine gun parts when they show up to sixteen li nervous when he abandons the machine gun in the machine gun kit and what's one of the first questions yes and my going to jail the agents are standing outside of his house as it used to and they've got a machine gun in their hands and they ask and we just step inside you know since i mean he they literally he the defendant literally hands them a machine gun on the front porch of their house and find all kinds of gun parts and bullet parts including including fifty caliber projectiles so now we have this defendant who once he's convicted he continues to possess guns he's acquiring a new gun and he's got all these parts and there hey i've got my mom's got fifty guns for me in arizona so that's where they were but there was no independent evidence came out he had a probation officer originally when he was convicted he divest of himself of all of his guns and then after he was off supervised release all the guns came home so you shouldn't have guns you have what does he do he continues to  arrested and then this came out at trial what happened was is when the search was conducted at his house and all these the stocks in the scopes and the bullets were found the agents were curious where where's all the other stuff and when he the defendant after  weapons they asked him where is it nice like well not he wouldn't tell them he just said it was in the phoenix area so that's that's basically what the government knew and there wasn't any search that the search doesn't even start until after we have the core proceedings where the defendant through counsel confirms where the guns are i think the other the other issue that the government would like to address is the issue of inevitable discovery in the in the scope of the consent clearly the original consent was for the for the weapons to be merely stored until the end of the case in massachusetts but when we look at the situation here it's reasonable to assume that the government would have to secure these items would have to inspect them would have to document and to be able to justify in order to show well this is what we took into evidence or this is what we took into our position on day one so and day twenty or one hundred or a thousand they would be able to say these are the same items and i think it would be consent is voluntary and the government had lawful access to the weapons and therefore it would be inevitable that once they looked at the weapons there would be further investigation on behalf of the government the government stated that because she was never charged her consent is not an issue in the case but i think that bears mentioning that her consent is very much an issue in the case we didn't really go into th pleadings because the government didn't raise it but the bottom line is that consent was ordered by the judge there's nothing on the record that miriam rooth stiegel had any anything to do with the decision to consent to the search this was nothing that she proposed to the at the hearing it was something the judge ordered her to do and he did so presumably on the record that the guns didn't have anything to do with mr siegel they were in her possession and so i looked very briefly to see if there were cases that involved  involuntary consent from a third party and over just signed a consent form didn't she she signed a consent form correct but that was only after the judge ordered her to give consent and it was citizens every day when when the government exceeds this nope of their authority and they don't know that they don't have the ability to say no when a judge says do something you do it especially what we look at is this record and what do we see when we look at the circumstances show that it was the only idea that the defendant knew was going to satisfy the government and the court with due respect to the government i think it's a disingenuous argument to say that they could have proposed some other alternative like putting these weapons in the hands of somebody else besides the mother and the government the court would have said yeah that sounds like a fine idea now it's exe and i mean this analogy in my brief it's the same as when a court asks a defendant to surrender their passport they're doing that to guarantee under no circumstances will that person flee the country they don't say give your passport to a trusted family member or put it in a safe deposit box they say you give it to the court that's the only way to guarantee and i think reasona reasonable minds know where the government was going with their requests for detention and where the judge was going when he refused all other options proposed by defense counsel back to the consent issue the judge ordered mother to consent and i looked at some cases and there is a defense third parties cannot be coerced to consent even if they're not a party even if they're not charged or before the court the government also talks about the standing issue and it's interesting because it really wasn't raised in the government's pleadings aside from short footnote on that and i suspect the reason why is because the government's whole criminal case in the district of arizona is based upon standing the government wants to have its cake and eat it too by saying well these aren't the defendants guns so he doesn't have standing well if that's the case then why was he charged with possession of the weapons in arizona now even if we assume that my client's version of events were true and that he had completely just possessed himself of the collection which of course the jury didn't agree with but even if we assume that the defendant still had standing because i thought i submit a defendant can