people call me tommy and i'm here today representing all four good men was not present he is in custody as a result of this case morning morning you know last week the court ordered us to come here today prepared to discuss united states versus draper and i'll begin there and i'll begin by emphasizing as we did in our brief that our position is that the case that is directly on point the case that is so factually similar and and and provides the applicable law in this around for fifty years and the panel that dealt with on the word didn't feel draper interfered with their ruling and i submit it's because really when you're looking at draper and underwood you're talking about really apples and oranges and the main reason for that is as you really at the heart of it it's not really about reliability as was dripper and the hip you know the tip and all but underwood you don't have a lot of time so you probably i'm just going to point out some things that seem to so the affidavit and contain it had no facts indicating the crates contained drugs that the defendant had drugs at his home or that he was otherwise involved in drug trafficking the affidavit also created confusion about the source of certain beliefs and conclusions lacked relevant information about the effect of finance training experience or relied on information from a previously executed federal search warrant that was never attached to the state warrant so the and those admissions omissions lead the court to conclude that the affidavit failed to provide a sufficient basis for probable cause so you know and i don't see that this affidavit has the same flaws when it's based on events that occurred the same day that the warrant application was submitted and executed not on events that occurred months before surveillance operations in san diego and then honolulu provide a reason to believe that pres had just written had received narcotics for  known drug courier and carried those drugs to his apartment and so i mean there's a lot of there's a lot there are differences says not they're not exactly the same are the same in the sense that what i would submit underwood at the heart of it stands for is that you cannot rely on his remarks as a basis for probable cause and in underwood what underwood court talked about is how in the affidavit the individual underwood was referred to as a drug courier and there wasn't any underlying facts provided through the map to the judge in that case as to why this assertion that he was a drug courier was true and that those underlying facts you couldn't take this fact that he was a drug courier as true and you couldn't therefore assume or make these other inferences about the crates and other things just like englishman englishman you have a on a flight carrying drugs that's what goes into the affidavit to the magistrate here there's nothing in the affidavit to mastery here that says where that information came from why it's true is it based off an anonymous tip is it based off  knowledge from the agency in san diego there is nothing that says where that information comes from it's a it's a conclusory assertion that this person is a known drug courier this is if you're your position counsel that anonymous tip should be given more weight than assertions from one force mobsters or tips from law enforcement officer anonymous tip should be not given more weight but if you the point is in this case there was nothing that gave the be this person who we suspect is drug courier he's going to be wearing this or looking you know all the details if an anonymous tip had done that and they were able to verify what they did why wouldn't we be able to get that i mean it seems that we would be able to give that some consideration the problem i'm having here a little bit now just trying to reconcile our lot too is that you know these  you know tips from law enforcement are to be given no wait and the equivalent from an anonymous tip gives look at the totality of the circumstances ing you know can give it some consideration and i think this support of a search warrant and must the underlying facts so that that usually judge and this is the important part can draw his or her own reasonable conclusions as to the existence of probable cause in other words it's not when you're dealing with a law enforcement officer putting an affidavit this person the known drug courier therefore we should search your house the master judge is deferring to the officers applying that at that time by the time they apply for the warrant  they've seen it they have this picture of who this is they spot that person they put the person under surveillance they observe a transaction were and empty backpack then seems to be full then they go up to a room they knock on the room and marijuana smells coming out of it right and they say and then finally this other guy also after he doesn't come out right away but then they say is anyone in there is anyone in there and it comes out and they don't go in and search and they get a warrant at that point all of all first of all they didn't observe a transaction somebody went up to a room didn't know what happened in the room and he came out and he said his backpack fuller than it did when he went in that wasn't there was no transaction observed secondly all of that there's that observation though if it full when it came out well if all right if it's a known drug carrier and then they come here that you can you can argue it whatever way you want to argue it but there's the observation there that it's fuller but you can't and then you've got the knock on the door you've got the marijuana coming out and you've got calls for the you know if anyone else back there's anyone else back there and then there is if i can first of all all of those observations are tainted by this from clues or the assertion that the person was a known drug courier if you take that out of the mix all those observations are very innocent hoops to people who are friends going to a room they leave another guy who speak doesn't speak english very well tells an officer that nobody else was in their underwood dispels the notion that personal marijuana use is any basis to get a search warrant for cocaine and an ice i mean that you take out that ball that includes reassertion this person is a known drug carrier therefore because his backpack is full well he must be drugs and that's what under which says you cannot make those assertions without giving the magistrate judge the facts as to why that person is a known drug courier and without doubt is just an individual on the street who is carrying full backpack but anyway as to the good faith exception exception under what again is directly on point as indicated it rendered official belief in its existence entirely unreasonable in other words what it what it says is when you have a bare bones affidavit when you use conclusory remarks and you don't provide underlying facts it is never reasonable for anyone to rely on  from there and so that's the key and i you know in the last few seconds i have here is i ask the court to consider getting away from this reliability issue and focusing instead on what underwood focuses on on the fact that a magistrate judge has to be able to searches house that the magistrate judge has to be able to see what are the facts that support that because that's the point it's not the officer that's making the call about probable cause in the search warrant situation it's the magistrate judge and if the officer doesn't give him those facts they really were warning honors for any robber to represent the united states in this case first of all judge curran was the magistrate judge that made the initial decision on the probable cause and he had a substantial basis for making his probable cause determination that be located in the particular place it was going to be searched now judge gilmore and the suppression hearing stated immediately that she found that underwear was distinguishable from his suitcase in her words  the excerpts of record one fourteen and about ten places the judge panels already noted that there's a number of distinctions in underwood but the important part is that we are not accorded the supreme court and even the underlying facts now if if that had been part of the chain in the middle of my paid different but it's not all dependent upon the determination the reliance on the known drug courier well if you're asking if the entire affidavit is depend seemingly innocent activity becoming suspicious in the light of an initial tip and the i me also say that the the holding in underwood does not establish the courts cannot rely upon conclusions what it says is that courts cannot rely upon soley conclusions really it's it's a misnomer in page one thousand eight hundred one and underwood this is the one conclusory and unsupported allegations and stake in a stake or affidavit some of which you know here we're copied from the federal it seems like the conclusory statements can't support probable cause but you are if you look at what underwood was but can and let me ask you happy to look at that but it uses agree or disagree that that statement that says the drug courier is coming from san diego is a conclusory statement first of all your honor the entire phrase is that the individual was under investigation which is a fact he was under investigation which was communicated  it was it was the information was that he was travelling to a why the about just known drug carrier own drug courier is a fact that the agents in california knew and conveyed to the agents here is that a conclus conclusion that was made and underwood the first conclusion was that there was these boxes that were being transferred and that there were something inside the box that presumably based on an investigation well actually making it one step further not they didn't just say he's under investigation they said he's actually moving boxes that have contained drugs and so you think the words under investigation is the main distinguishing factor heir the main distinguishing fact you are but certainly one of them and i think is the courts have allowed so any time they say under investigation they can make a conclusory statement and if it would just negate underwood again i don't believe underwo holds that you can't rely on the conclusions underwood says that you can't rely solely on conclusions and her first or savant these again i asked the court to consider what survived these hold it's not even a warrant case and you know furthermore the supreme court has repeatedly suggested that we prefer agents and officers seek search warrants and in this matter the agents in this case did exactly what they should have done and they went out and they actually obtained a search warrant when they were stand in the door of was whatever and and here is it supported where's the evidence of support here again we believe that the statement that he's  fact and that the judge could then take information inferences from the conduct that the officer verified it's not and different than the anonymous so that's your response under investigation provides the support because otherwise i mean i'm just drawing on underwood which guides us i think here some based on the facts i think in order to hold what the opponent wants you to hold and say that this is what underwood stands for you have to disregard almost the gate you have to disregard draper you have to disregard all the cases that say that you can rely upon anonymous tips and other information just like us that appellant i understand what you're saying but underwood's our president is paragraph on page one thousand and eighty one says the affidavit most recite underlying facts and the judge can draw only reasonable inferences in fact that would be we know he's a drug courier because and then fell on the rest of the s let's go arrest him right now but that's not what happened in this case and so it's the one fact and even if this court finds that underwood purports the rule that the appellant's trying to say that you can't rely on any conclusions and in  the circumstances we believe that you know that the supreme court has said we don't apply hypertechnical it now so i guess you got any conclusion it's this that's the conclusion on this particular surrounding this particular phrase of known drug use or don't drug care courier it's not any conclusion and i know you're saying that you know it also says it shouldn't be you know solely based on that but you know i'm just trying to figure out if you take out that reference if you know drug courier is it your position that there is sufficient probable cause yes we believe there still would be well i would like to ask the court also consider the line of cases that judge gilmore relied upon and that was the trescott which said you can rely on hearsay of officers and similar investigation and the state case which is five sixty fourth or sixty five that second thirteenth in which is the ninth circuit question is on this if you take out the tip you take out the drug courier tip what else do you have once they lie and that would be suspicious enough to rise the level of probable cause  well the conduct that they individual i mean the fact that he's under investigation if you don't if you say he's not on i'm saying you take out i think you i think you would concede maybe i'm wrong and that's why am i asking that if you just take out the entire is would there be enough this year because i see my time is up but i answer your question sure yes you are and the reason would be because just like anonymous tip it allows the officers to then go and verify the information that was given to them so it's the exact circumstances really of draper although the agents went one step beyond and went and got the warrant instead of acting upon their own determination of probable cause which the supreme court wants our officers to do i think maybe too since co counsel address still be on issue i assume mean what how would you address that to the extent that this court believes that any conclusions need to be thrown out the officers were acting on the warrant and it was not bare bones there were facts of what they saw at the airport actually what they saw at the hotel facts if you look at the affidavit in paragraph fourteen through seventeen which appear in the research record at one o seven through w wait list the fact that the person arrives at thirteen twenty which is one twenty roger at the airport travels to the airport and the whole interaction at the hotel happens in a role too short for time because the that would be the implications if we were to say that that you can't rely on another officer calling and saying that there's a known drug carrier how would that influence agencies calling head saying hey you know we've got this guy under investigation you know he's coming and such and such a time we have severe severe implications john i mean the agencies have to rely upon each other to do cross state much or they could just and why they thought he was a known truck to courier i mean they had the information they just didn't put it into the warrant i mean this was an ongoing reza just a geisha as you say right so based on their investigation it's just a matter of putting it down it could be a matter of putting it in it could be a matter of there being reasons why he would want to put all the information out about an ongoing investigation and affidavit it ends up in the hands of  stands for is this process this is his premise that it's not that we just rely on what a pip or what another officer thinks that the whole purpose of the search warrant requirement of the fourth amendment is to take it out of the hands of the officer on the scene trying to ferre out crime and put it in the hands of an independent magistrate judge who can objectively look at the information and make that call and that's all that under which stands for all the cases you talked about preexisting underwood underwood is totally consistent with all of that under what is a search warrant case where the affidavit you cannot just give bare bones conclusions or you know unsupported conclusions that this person is a known drug courier let's assume for the sake of argument that we take out the words  i replaced the term known drug courier which traveller and if you want to put even traveler under investigation and what you have is a traveler under investigation gets to honolulu airport he takes his bag goes in checks into a hotel room somebody you know is comes down to the lobby he meets them in the lobby he's the guy he meets his bag is empty they go out apparently on the they go up to the room nobody sees what happens in the room about an hour or more later they go i comes down and his bag now looks like it's full and then he leaves and goes to a house so it's absolutely not enough and then you have them knocking on the door and there smell the smell of personal marijuana use underwood completely i mean completely deals with that completely says the marijuana use is not a basis personal marijuana use is not a basis to get a search warrant to go search a house for cocaine and ice or methamphetamine then you have the person there  who english is a second language and the officer asking him is anybody else in the room in your house and he according to the officer said says no maybe he understood it maybe he didn't if you understood it maybe he's just trying to not have his friends have to interact with officers it could be a thousand reasons why he said all of that without this conclusion remark that this person was a known drug courier makes all of those things not rise to the level probable cause to get a search warrant to search his house for ice and cocaine it just  underwood can't co exist with draper it does underwood was issued after draper had been around for fifty years it's apples and oranges it's completes a complete situation and we appreciate the court's time and questions thank you thank you both for your arguments this morning the very helpful to court and the cases heard we submitted for decision