good morning honors in may please the court on my name is daniel hill and i represent by special appointment mr cooper in this matter just for the purposes of oral argument mr cooper wrote his own briefs right and if i may reserve about five minutes on rebuttal i watch own time there's a couple of issues that need to be addressed i think would benefit being addressed before the court first whether nevada robbery qualifies as a violent felony under the a c c a that's kind of a big one and then the second one is the peyton violation and whether that confession resultant should have been admitted at trial so we'll start with the a c c this court instructed the parties to be prepared to discuss at length which the circuit delivered a couple of days ago and what impact if any it has between the guidelines which was what the adding decision address to the crime of violence under the guidelines the force clause there in the force clause in the c c a are identical instructed that nevada robbery is not a crime of violence under the force clause i think that narrows our exploration of the issue down to simply is nevada state robbery a categorical match under the you numerated clause now the ac ca's enumerated clause is much more limited than the guidelines clause because robbery is not one of the numerator defenses that leaves us with extortion so what is the narrow issue before the court after addling is this the guidelines has a two thousand and sixteen amendment that specifically lays out what extortion is the ac ca does not so we're dealing with the common law or generic extortion which this court set forth in besser a lopez cited in the briefs as follows obtaining something of value from another with his consent induced by the wrongful use of force fear or threats the guideline versions specify that it had to be against a person does not so where does that leave us idling also gave us a little guidance on how the analysis should go adding tells us to consider whether the least of the acts criminalized in the nevada robbery statute is a categorical match  it encompasses a wider swath of conduct than the generic or common law extortion specifically as follows the nevada robbery statute proscribes using the force or fear to obtain or to retain property and you know simple statutory construction says those mean different things because this to the authors of the statute but the both in there so it's to obtain or retain possession of property  specifies that the degree of force is immaterial and then finally has this curious language at the end that says although the taking was fully completed without the knowledge of the person from whom taken such knowledge is present prevented by use of force or fear so what does that mean under the statute obtain so let's boil it down this way what is the least of the acts criminalized by the nevada robbery statute retaining property by instilling the fear of injury to property without the knowledge of the person that the property is retained that's the least of the acts criminalize under the nevada robbery statute  lopez further advises from there we can look at one of two ways of that statute a is there a realistic probability that the state would apply the statute to conduct broader than the categorical correlative or that the text expressly includes includes broader range of conduct so i cooked up a scenario the last of the court to indulge me and imagine a boyfriend in a bar or a girlfriend break up their living together girlfriend leaves the house ok she comes back a few days later and she demands her stuff boyfriend throws it kind of out into the driveway but not all of it she gathers it up looks at it looks like all of it puts her in her car and he pulls out a kni boyfriend says if you don't get out of here i'm going to slash your tires she takes off a couple of days later she's calmed down she realized she didn't get all of her stuff back she left because of a threat to her property under the nevada statute that's robbery he retained property that he did not obtain or take by force but he retained it by threatening the property of another and she didn't know that some of it wasn't just presented it's within the expressed language of the statute retain property without the knowledge of the person you cannot big store it someone of a property without them knowing that they it says right in the common law source and with the person's consent now this court has certainly indicated that without an willful under robbery and without consent are not contrary to one another however you can't do it with your consent and not know that you've turned over the property so on the one hand we're talking about retaining property instead of what the common law extortion says which is up taining and then we're talking about without someone's knowledge which is going get back to besser lopez which dealt with the california robbery statute let's just take a quick look at it the taking of personal property just taking in the possession of another from his person or a media presence and against as well accomplished by means of force or fear now that this court determined was a categorical match with common law stuart well it's so much more narrow than the nevada statute it's not talking about keeping it's just taking and it's has no issue of whether or not the person knows that the property was taken the nevada statute goes well beyond that california robbery statute to include keeping not just taking and also doing it in such a way that the person doesn't even know that the property was capped so long as that knowledge is a result of force or fear i don't know if the court has some defendant appealed the conviction and then the legislature amend it keeping property that the person doesn't even know they've been divested of so long as that knowledge was a result of force or fear that that lack of knowledge so long as the fact that they don't know that something was taken i think a more relatable example would be somebody gets forced into a closet by force and then all their stuff gets extort someone a property that they're not aware they've turned over it says with their consent i mean you just you can't extort that real quick to the extent that the court is concerned with the fact that edwin did not address th deadly weapon enhancement my day job is as a trial lawyer in the rough and tumble nevada state courts i assure your honour's everything in the nevada state court is a deadly weapon and i'm not speaking out of school rodriguez v state nevada supreme court zero seven pacific third says virtually any object can constitute a deadly weapon state versus kibbie glover k i p p why it's the most recent buzz in the county courthouse there they charged up a can of pumpkin mix as a deadly weapon so under the one ninety three one sixty five the state statute it's not a separate offense it's a deadly weapon and handsome it's a sentence enhancer it doesn't change our categorical approach to its match  c it was big so i wanted to hit that first now no one in here disagrees that there was a pain violation so we're just going to the government's position is kind of no harm no foul there was no will search that occurred before the warrant was obtained and there's there's a mix amongst the cases nora there was arrested in the home or forced out at gunpoint and then there was a pat down and then there was a confession with the stuff that was found in the path that was shuttler there was a guy who confessed in his yard wow there was a warrantless search going on in the house but then there's harris which the government really relies on here is harrison crawford why because they were arrested in the home which is a pain violation but the confession was that would happen here here's the here's where here's where the court here's where here's where we  determine if we can have a bright line rule frankly he was arrested his back yard he was pulled through the house then he was put not in a station and born f b i office like harrison crawford he was put in a patrol car outside the house within view of the house was there a warrantless search as a technical matter what happened is although the premises were frozen and the evidence shows that the gun was in plain sight in the bedroom c s a analysts are actually going into the house in plain view of mr cooper the c s analysts are going into the house with the alleged domestic violence victim in this case they're walking in then after they walked into the house where this gun was in plain sight the detective comes and gets in the patrol car in full view of the house says gets a confession out of about oh i touched the gun and etc so is it harris and crawford no he was he was outside of the house so is it harrison crawford no because he's not from a remote location so this is where we we was they were told by the domestic violence victim that there was a gun yet no one disputes that the result in felony arrest which was three hours later when he was passed out in his backyard that was a illegal arrest was of it was a  his confession there after came ok not on his courage but right over the sidewalk into a patrol car he's looking at the house and this is this is where this court has asked the question before  don't see what do you suppose they are you know they drove down the street no longer look at that house i thought that the original call to the police they did that there was a gun in the house so they would have asked them about a gun was not i'm sorry or mr so here's what it comes down to and this court has asked this question before was silence perceived to be few tile by the defendant the defendant is not privy to what was on the nine one one call what he was privy to was he's arrested in his home and pulled outside he watches crime scene analysts go into the house and then he's asked about a gun was his silence perceived to be futile at that point when he then gives a confession saying i touched they got he the differen screen him being there and down the street as he watched officers go into his house where he knew the gun was in plain sight he didn't know what was in the nine one one call what information does cooper have while they are they going to my house and then they come out and now they're asking me that the what could be the government comes and says there wasn't a search but they went into the house the rule would be would silence be perceived to be futile because although you're not on your property you're in plain view of the house and you're watching police go into your hand into your house so is it close enough to the property such that it's you you're still constructively home and i'll add one little tidbit when the detective got the confession from mr cooper on his tape recorder he said i'm at such and such an address that's where he said the location of the confession was even the detect address and then he saw the house so the rule would be probably is the house in view and does the defendant see individual you know obviously we're used to dealing with with fit with discreet boundaries and you're now suggesting that we adopt a very amorphous standard of psychological boundary there's no worry about the physical boundaries but when is he psychologically bound to the house and i guess you're suggesting that is while he's within view of it and then maybe it's while these three blocks away but can see cops running towards the house um there's a lot of a lot of potential for m once we kind of rigs and go past the boundaries and start looking at the virtual boundaries so i would so the purpose behind pate was protect the sanctity of the home i would say running toward the house probably wouldn't pass muster watching the detectives go in your front door i mean imagine the mischief on the other side if the court went the other way cops illegally arrest someone in violation of payton pull them across the property line walk into their house over not doing a search we're taking pictures of the victim and now they can come out and question this defendant or but but we pulled them over the property line and we didn't search well does that comport with peyton's protection of the home when the guy's standing there outside the house yeah in fact this is the search of that house instead of questioning somebody outside well under harris which was an extension of payton there was no search it was arrest in the house and then there was a confession the confession at the police station was allowed in the confession that they got at the house was suppressed but there was no attendant search a confession that is attenuated or closely related to an illegal arrest inside of a house those confessions get suppressed and it's a matter of are we comfortable with allowing officers to cross a bright line rule of well here's where the county said the property line and put you here and now we can fuss around with your personal property and any confession you give us can't possibly be related to our arrest of you in your home and walking in awe of your house because we pulled you over the county property line now i understand the bright line rule was search if they're searching on the curb i'll side the curtilage trash cans  cetera there's a there's a bright line rule there because it's where the property is but if the guy who's whose interests are at stake the sanctity of the home under pain is watching the the nuns search entry of officers into the house where there's a gun in plain sight and then they come out and they start asking about a about a gun to work so you have pieces that say that the saying the of the house depends upon being observed by the owner i do not your honor other than the fact that nora for example was outside of the house ok but he was still on the curtilage so i guess the if the court was or were inclined to draw a bright line rule that would just have to be are you on the property line or not even if you're still within the construct a very the house and even the detective who was it was the was the officers car on his property at the time it was not around who was not in the driveway it was on the street  good morning please the court elizabeth white for the united states i'll take the issues in the same order starting with the about a robbery robbery with use of a deadly weapon is what that was and first of all i commend my opponent here for coming up with these wonderful arguments here at oral argument for the very first time about the the second and third sentences of the one nine hundred eighty three version of nevada robbery none of these were briefed and as the court you know as you probably know mr cooper was quite adamant about doing this brief himself and and he had the meeting with commissioner shop out of commission or so recommended against because he said there are some real issues here that need briefing and he filed objections saying no no i can do this myself i comply with all the rules so this court reversed the commissioner and let him do his own brief and then after you size briefings allowed the federal defender's office in arizona to actually brief the robberies robbery question and made the arguments and i had an opportunity to file a responsive brief to those arguments these arguments that are being made today are entirely different from anything that i had an opportunity to respond to so i just want that to be clear but in fact in response first of all to your comfort to your question about about how addling applies to this case you know my response is that it really doesn't the decision a was specifically about the fact that the panel interpreted the two thousand and sixteen amendment to the guidelines that changed the definition of extortion to exclude extortionate threats to property so what used to be generic robbery the guidelines guidelines extortion used to be generic extortion and now it is not generic extortion but the a c c extortion is still is still generic extortion and so the question when you're looking at nevada robbery with use of a deadly weapon is in terms of whether it's a violent felony under the a c c a the first question which we think about in terms of whether it's categorical whether it's a categorical match but that question is really is it over broad right i mean is there a way that you can violate this statute that does not fall within the definition of violent felony and so what this court and this is in their guidelines context before the two thousand and sixteen amendments looking at nevada robbery and the guidelines said well it doesn't qualify as generic robbery because it applies to threats to property but if it's threats to property that's extortion so there's no way that you can violate his robbery statute without either committing generic extortion or generic robbery that's what her c c a doesn't have generic robbery it does have generic extortion right and so what we're left with is basically the same question we had in dixon with the california robbery statute right there's two difference in this here we're talking about robbery with the use of a deadly weapon and we're talking about nevada robbery is there a way to violate the statute nevada robbery with the use of a deadly weapon that does not either qualify as generic extortion or have as an element the use threatened use or attempted use of physical force against the person of another right and if there's no way that you can violate that statute without doing one of those two things then it qualifies and and in this case it does i mean the to be convicted of robbery with use of a deadly weapon the instrumentality must be used in conscious further and of the criminal jact of it has to be intentional use of the gently weapon now i don't at all of i also don't know these cases that he's citing to the court today i don't recall getting in the twenty j letters but but to the extent that there was a can of pumpkin mix that was used my guess is the person had there it was he was speaking with or yes well and if there was a you know you get you get your if you get your head bashed in with a can of pumpkin meg's you know that can be used that nevada defines deadly weapon as and the item that is as when used as intended would cause deadly force which is like a gun or a knife or anything which given the way it is used could cause deadly force or deadly injury or force and so so yes there is a lot of items that we wouldn't think of as inherently dudly weapons but those wouldn't be deadly weapons unless the way they are being used is in such a way that could cause substantial bodily harm or death so under nevada law with robbery with a deadly weapon the use of the deadly weapon has to be proven beyond a reasonable doubt to the jury so it is an element of the offense the use has to be intentional and and the use of the deadly weapon in the commission of the crime necessarily demonstrates that force is either attempted or threatened through the use of the deadly weapon that is what this court has said in and analyzing and number of various state statutes that involve use of a deadly weapon this court says you know once you once you put a deadly weapon into the mix you're changing things right i mean even you know what the court said in the commercial cruise is assault with a deadly weapon under nevada statute is necessarily entails threaten to use force against the person even though assault you know could be violated with any offensive touching once you are using a deadly weapon in conscious further ends of that crime you know now you are at least threatening force and that is the same and that is the same here with this robbery well the district court the district court held that this was not a violent felony and would you explain to me why the district held the district well the just your court was primarily really was focusing on that it can be committed by threats of violence against property and and then but then she didn't you know i thought she also said that it was an extortion yes and then but then she said that that it couldn't be that if it's if it's against consent whereas robbery requires taking someone's property without their consent but this court in besar a lopez i mean this really is besser lopez explained that those two things are not inconsistent because  because the with consent element of generic extortion is not inconsistent with the against of the will aliment of in that case california robbery but it's the same because both crimes equally require that the defendant's threat induce the victim to give up his property something which he would not otherwise have done so so this court investor lopez and then actually just reiterated that in charges quite a vis two thousand and seventeen be with the person's consent but in fact in both of those cases it's this court explaining why they don't really have to be it's tantamount to get out yes and that's and that is what this court has said and that's and that's really what what the district court kind of hung her h on and and it is just you know it is just contrary to to this court's law now now i will say that in dickson which was yet another of my cases this court found that the california robbery statute did not qualify as a violent felony under the a c c a and then there are two different differences there one that was an armed robbery this is robbery with the intentional use of a deadly weapon in furtherance of the offense and second of all it does come down to you know when you're when you're trying to interpret the state statutes you have to look at state decision the law and dixon and the panel interpreted a they found a california supreme court decision which they interpreted as suggesting that you could commit a robbery through the accidental use of force on the one hand first of all there's no i'm not aware of any such  nevada case that would hold that with respect to nevada robbery but but in any event the nevada robbery with the use of a deadly weapon requires the intentional use and deadly weapon and in conscious further and so of the crime so i think that result that  this is this is also i did cite some other cases it does seem that most of the circuits agree once you're talking about a deadly weapon and then as i as i pointed out in the brief this is obviously defendant has a weapon while he commits the crime even if it's something in his back pocket that the victim never sees and never has anything to do with the massachusetts armed robbery statute allows for that the florida does in those cases the fact that somebody had a weapon if it didn't play any role if the victim wasn't aware of it you just don't have that same concern about in nevada that that actually does not qualify the weapon has to be used and then just one point with the there is also there are two battery with use of a deadly weapon and the third one was the roman sorry robbery with use of a deadly weapon the third violent felony wasn't about a battery with substantial bodily harm the court didn't address that one because  because once she decided that robberies didn't count she didn't need to but i would just say i cited a number of cases and i actually think that that the lawrence decision which which i cite in the government's brief is really the most  point although that case was about assault resulting in substantial bodily harm if you look at the analysis that this court did they looked at three different versions of assault and the one that they were really focusing on was was the one that was  sentially battery so i think that that really goes together payton the issue what the supreme court said in harris is that the rule in peyton was designed to protect the physical integrity of the house right i mean that the the harm in the allowing officers to go into your house to arrest you for a routine arrest where they have probable cause they absolutely have probable cause to arrest but to let them go into your house to do that that that intrudes on the physical integrity of your home and so as a result if they do that without an arrest warrant anything they see there anything you say there you know that is excluded because that because i mean that is the exclusionary rule bars the use of anything that came out  the house that's that's it no actually no and i think that that nora is really the is really the best example of this because a norah they surrounded the house with both horns and guns and said come out right now so he came out and you know when what the court said was well when you're ordered out and with guns and bullhorns you don't have time to compose yourself or maybe check your pockets and leave stuff you know right so that so he comes out and they find i think they found bullets in his in his pocket and then once they found the bullets then he confessed and he's outside the house i don't even i don't know if he was on the cartilage or not but i don't read i don't think it would have mattered whether he was on the cartilage or not because the question was the the search the discovery of the bullets as part of the search was because of the intrusion into the house and you know they said it was a sort of a virtual intrusion into the physical into the house when they ordered him out at gunpoint so even though that happened outside the house it was an unlawful search and the confession that he made was it was a fruit of that i'm i'm  you let me ask you how you would articulate the test when when interrogation is out of the house when do you think the nexus is close enough that we have harrison when he is did this i would say i would use the exact language that the court used in harris which is that what has to be excluded is anything incriminating that the police gathered as a result of the fact that they arrested the defendant in his home rather than somewhere else so you know because because in nor they were deemed to have sort of virtually arrested in his home and they and they searched his pockets and the pockets had bullets because when you're in your house you can have bullets in your pocket right and so because of that if they had arrested him on the street you know maybe he would have thought a little bit better maybe he would have left the bullets on the dining room table right so it was because it was because they intruded into the physical integrity of his home so you would see that with that test if instead of then doing the subsequent interrogation in his yard or in the police station i mean in the car your test would say that i could exclude evidence all the way down to the police station when they find the and he says gee i never would have come out to the police station in my bathrobe and sure there were drugs in the pocket of my bathrobe you would say that harris would exclude that even if it wasn't discovered till they were done at the precincts i think that's i think that's the analysis because it's about is it's about did they did the police obtain information by virtue of the fact that they chose to arrest him in his home rather than arrest him somewhere else  he'll raise you would say if he's if he is now out of the house being interrogated and he's just nervous and anxious because they see police coming in and out of the house that doesn't mean yes no it wouldn't because and i'll tell you i'll tell you exactly why i don't think that because say first of all there was a lot of there was a lot of litigation about whether there was anything wrong with the c s i folks going in with the victim they were they went inside to take pictures of her injuries because it was four o'clock in the morning there was no light outside but so there was nothing wrong with to the extent that there were some people that went in before the search warrant was obtained and then he made these statements before the search warrant was obtained but were guard less of that i would say here's an example if somebody is police have probable cause to arrest someone and so they wait outside his house for him to come home and as he's walking down the street they arrest him and they put him in a patrol car right across the street from a house and they're you know they've got some reason that they're that the roommates letting them into the house to check on the dogs or take pictures of the injuries or whatever and he's making these statements whatever he says because he's nervous that he sees police officers going in and out of his house has nothing to do with where they arrested him right i mean the fact that they arrested him in his backyard as opposed to walking down the street has nothing to do with the i mean the him being held in a patrol car across the street while he's being questioned while they're doing their investigation has nothing to do with the peyton violation i mean it has nothing to do with the fact that they arrested him at his home rather than someplace else and that's what the supreme court said in harris that the question is was information obtained because the arrest took place in the home as opposed to somewhere else and if they had arrested him outside the home and done the exact same thing they wouldn't have gotten anything now if if when they went into the backyard to arrest him the shotgun was you know on the other side you know in the kitchen leaning up against the refrigerator and they could see it i mean if it was if the gun was in plain view and they saw that when they were in the backyard which they weren't supposed to be because they didn't have an arrest warrant then the gun would have to be suppressed and that that plane view you know view is when you are somewhere where you are entitled to be and if you go into the backyard without an arrest warrant to arrest somebody whatever you see there whatever he says there you know that's excluded because you weren't supposed to be there and that's i think that at least that's how you harmonize peyton and you know i think the and the other thing i mean if you if you want any supplemental briefing on these new armed robbery arguments i'd be happy to hypothetical of there of a way that it could conceivably be violated that that wouldn't qualify but but but the categorical approach is not an invitation to imagination i think that's what the supreme court said you have to be able to point either to your own your your case or your own case and in some sense find a case where it was where the crime was actually committed in a in a non  i have heard time your honour's your honor i apologize to the court for running roughshod over mr cooper's brief there's a real you know the government has always been good to me or at least this government representative this represent of the government  reason i first of all in all fairness the amakosa brief talks about the breath of the robbery statute so from the thirty thousand foot view but as a result the reason i really delved into that statute is because on remain and for re sentencing reverses the district court he's looking at mr cooper's going to two hundred twenty five percent increase in his sentence to really serious issue so you don't have to indulge in my vivid imagination you just have to put the nevada robbery statute next to the common law extortion i mean james joyce could have written that nevada robbery statute it's got so many means of criminal liability that it most assuredly put one side one statute next to the other most assuredly  robbery statute is more broad in terms of the peyton issue the one thing i want to seize on that the government said is whatever he says there should be thrown out and i just would caution the court where i'm concerned about drawing rule where the decision the court appreciates the arguments presented by this case and that concludes the court's calendar for today the court stands