been cited circuits across the country there it's important to look at the basic principles because we are not going to find a case where the f b i talked to some sovereignty activists who had created their own badge and held themselves forward as the law enforcement wing of a polynesian kingdom of a two way and subsequently four hours after talking to this f b i agent judith pan opened performed a warrantless search on a common carrier crate which obviously is of great concern to everybody in terms of setting a precedent in this state council or do you have any that's exactly the question judge what asked tommy a talkie and the two thousand fifteen year and clearly i do not what i have is a series of cases the talk about the importance of warnings given to people once the state or federal official knows that there's going to be investigations or contact that is improper and in this case we not only have all in this instance once that happened they did tell when he when he said should we follow him or something like that later on he said absolutely not so when they cut specific they just tell them not to join first of all that came after after the had two individuals who represented themselves to be law enforcement officers they called themselves federal marshals hawaii federal marshals they had a badge they had i d s they asked to collaborate with with the f b i when they when they call the f b i four hours later and it's not a coincidence this happened the same day that they met with the f b i when they called the f b i four hours later they sent an e mail that said let me know as soon as possible on what we can do in collaboration with you the f b i agent testified that what that individual made was that they were working together with the f b i now the s never mind coming to see what you want to say i didn't mean to interrupt your train that i think there's a problem with hearing that i'm sorry and saying i think maybe you didn't hear judge presides trying to interject a question that's all it says that the holder of the badge is a federal marshal you sit you tell them two things you say i'm not collaborating with you because you have no law enforcement authority but you also say that it is a felony to impersonate a federal officer it's also a state felony to impersonate ok some of those are counsel the badge dismissing federal marshal also said on it of the polynesian kingdom of opportunity i'm not sure how you pronounce it but it's said that on the batch in the picture you introduced your predecessor introduced into evidence occur you have four separate officers in this case who said they thought these were real federal officers two of those officers single most important document this case is due to pants report was written twelve days after this search occurred and it specifically has the language that you requests photos of the marijuana and the shipment documents he communicates with the law enforcement he does not tell the individuals that they should not have conducted it want to search and they should not do it in the future by the way that's also true the h p d officers that came to the scene no one in their record before this court either state or federal ever told these two individuals before afterwards not to use a badge which for two of them but what about the question of the timing i had thought before you started are you in that this case turned into a question of whether or not the either chang will probably what's going to happen on appeal in this case well in this case we're claiming that the lower court's finding that judge chang i'm sorry that apollo chiang did it was told during the initial call that there was marijuana was clearly erroneous and the best evidence of that is due to pants report that report was twelve days later ok but council officer chang  sergeant chang specifically testified that in his first call with the marshal he was told that they had found marijuana and george watson who had the ability to serve the credibility of all witnesses several times that he credited what sergeant chang said on this point and he specifically did not credit or believe the testimony of the marshal so why would one judge watson have the ability to observe the credibility of all of the witnesses why would he have the right to say i believe one but not the other does the only thing i'd observe is that he did not in that discussion cite jute appearance report  pants report comma told him that he had just cut open the package at three forty five which according to the phone records was an hour after he first spoke with chang there that what that report was prepared there was absolutely no reason for common allied to panic when he told him he had just opened that and it is is flatly inconsistent with chain claims cheney never prepared a report which is a violation of police procedures he told the prosecutor before the first hearing that he had had contacts with comma before the w search and and that was not disclosed to the defense that's the reason there was a second hearing there was little or no justification for finding the chain somehow is told as saying i opened it and i opened it three forty five at the very top of the jury pair of port of says at three forty five i was called by this individual now that reported two things not only showed unequivocally that this was opened at three forty five and therefore chief chang is lying it also confirmed that judo pants set up an arrangement four hours earlier working with these law enforcement people and two people that showed up at the didn't open the boxes cur yes that's correct the judge didn't believe him and the first order that's correct i agree this is the evidence isn't perfect in this case but i think that  pent report is and the judith pair report is prepared by an f b i guy and it's a very clear straight for report and there's no reason why comma what allied to him calling him from the scene trying to get law enforcement officers to come over there there's just no reason why he would and there was all kinds of reason for chang to lie because he essentially asked two people who he thought were u s marshals to conduct a warrantless search before he came to this site i think i want to focus as much as i can on that ten minute interview the fact that it's ten minutes does not take away from the fact of what he was told what he acknowledged he was told and what is covered very clearly in the in the report that he filed there's nothing in that report that him chang told me to open the crate or anything like that kind of course not and we knowledge that from the first day i'm not saying that's not a good question because that really be the nexus in most cases that would be that that would be the important question to ask if this was a freight clerk or if this was an airline employee but this is a different situation if you show up in front of the f b i and show them a badge that says federal marshal and tell them that you are the law enforcement wing ok the first hearing itself presented a very thorough argument why there was an affirmative duty to discourage these officers these off these officers showed up and said here's what we do collaborate with you and show us any evidence what the f b i said was here's my card call me if there is any evidence and panic knowledge that when he got an e mail from these federal marshals at the scene it's attached to his report and i should look at it it's an e mail from chama and it says again let me know a s a p and what we can do in collaboration with you the judge judge watson found in the first hearing that the government agents to direct the private search in fact said it was clear that they didn't yes say that again the first hearing george watson found based on the evidence presented in the first hearing which as you say involved the f b i that it was clear that the government agents did not direct the search or and we never contested that i have slightly green the way i look at this if the judge determination in the first hearing is that it's a matter of law reviewable de novo there's no dispute about what occurred in front of judah penn both sides testify the same if you look at the judge's please the court good morning time you look for the united states the united states position on this and welcome judgment excuse me the united states position is this that the lower court the district court it started on the island of quietly that's but that's all and that's what i've been told by people that have more information i've not studied it it is one of again my understanding other sovereignty groups in surrounded by the perimeter fence with that's where they've been since they moved from the federal building on the fourth or fifth and when i'm building spree about five years ago well they they are out there and they have a quite a large facility  k so we have two people from an organization quite probably the f b i agents or where he was he knew nothing of this he knew nothing of had agent pent testified that he was not aware of this group but being an agent a professional law enforcement officer went outside met with them outside the security area talked with him over ten minutes told them the sakho was not available to meet with them he was pent was the duty officer that took complaints and telephone calls in and in addition to his normal investigative duties that day he was polite he didn't engage them the people were going to use this badge to go out and do law enforcement operations had any interest in doing drug interdiction or searches or arrest people and when he did learn of that after the warrant is judge birds on board you know he's  optimiser don't don't detain them and wait for the law enforcement to come and then he contacted the haida special agent tracy dockery the f b i at the high intensity drug trafficking area in downtown honolulu to get a mark  to come out there was no encourage women from agent pen for them to do anything there was no inkling that they were going to do anything he didn't have the slightest knowledge that these people were going to go out and flash badges or arrest people as far as he knew he was being polite to people that said they had a status they were interested in their status within their their sovereignty group this is the stronger argument to me is that chang involvement in the inferences that flow somehow i don't know how these two officers somehow got involved with christensen that there's a series of phone calls with the local police that's the part that i think is a stronger argument actually  let me try to see if i can answer the court's questions or what our position is because ition is in the information we've always had the position is that chang apollo sergeant apologizing of the crime reduction unit when he first got the call from the h federal marshal who needed assistance because they had a crate or pallets of marijuana and no one was helping them no one was returning their calls and from that polishing reached he was coming into work later that day hadn't started work he reached out for his after he found he did ask the question how did you contact me or how did you get my my cell phone number and he reached out for his people because jang was in charge of the crew unit he was a sergeant and he reached out for officer charles resent days i think there was a jared fernandez he reached out for he talked to his major major psycho to see if the people could come if he could do this if you have permission to do this because you have come to work it and it would course involve over time because they have come into work and do this sort of thing he then he reached out for additional information from people another was an officer i used to see if he would work and then he reached out for people that he knew in our contacts and vice officers to get information on how to handle this power or crate or large amount of marijuana and based upon that the court found below that he was credible the court of course it seemed mr comm testified twice and found his testimony to be inconsistent with his own declaration of september seventh of that year it was inconsistent with his prior testimony at the first hearing it was he hadn't he had bad recollection he had no independent recollection he that he had to testify almost being led on the witness stand by using his declaration he couldn't recall the sequence of the calls he could he couldn't recall the agencies he had talked to when he first talked about his first calls before calling honor he did not have a report he explained why didn't have a report he explained that he didn't take the case he was assisting another agency who did take the case the e a a and took the marijuana se drugs and did write the report and he explained that that even the h p v regulations the way he read them did not require to write a report that it was not a crime scene that he was doing it merely in a system other  afterwards the this the united states handled the issues that were raised by the defense and they were raised piecemeal we responded to those issues and we believe they were raised piecemeal explaining who he called and who those people were and then he testified as to why he called them if it wasn't trying somebody trying to hide the ball we were responding to the issues that were raised piecemeal by the defense as the defendant's attorneys sometimes disagreeing with each other at one point being actually critical of an attorney earlier no matter the phone that had made attorneys in this matter starting out from the federal public defender driver of the truck the express movers truck the first story given by mr comma samson comma the marshal was that he had gotten a call he was with life is precious i think comma sampson comma testified to they went to him and at that point there was a suspicious crate and that's when the judge found that mr camas testimony but he didn't see who opened the crate he didn't superior marshals yes because troxel kohala by was the head marshal for awhile who and samson comma was the assistant to the head marshal for a while hope and clint christiansen you quickly judge bennett on your question of did he did you pat direct the individuals to conduct this investigation or search warrant it's the quote from yes and by the way you could also add because he had been rewarded i agree but when you consider whether or not there's a requirement to discourage which is also language  we started with well there well there is distinguishable my knowledge that but it also says that even where the da had no prior knowledge of a particular search and didn't directly encourage it if the package was opened with a mental state of helping the government it could still be suppressed and here's what judge watson ruled twice comma opened that package to help the f b i that was imposed the first order and the second party opening the package has to do so in order to help law enforcement what's the first problem and the other one is that this idea that the government has to have some connections yes either awkward yes or direct those two things alternatively that's what much relish says most recently yes and aqua yes is what we're focusing on this well it's what george watson focused on and i don't you that it's a question of law as to whether given the circumstances that occurred with judge perry i'm sorry would you depend whether or not that there and and i am not sure why that's relevant but he you haven't said that at all today engine looking at the letter it doesn't seem to be such a finding i agree sitting there aware that i had i but there was no known by then that there was already marijuana in the packet and therefore it must have been opened prior to his arrival that's what the judge found now we take the position that if that is clearly  it's the whole first argument of course let's see i show this at page thirty two a volume three of the eggs are absent records and what it says is common to do not merely suspected that the crate contain marijuana by the time he arrived at could be a golf course the only way he could have known that is if the crate had been opened by that time what that claims which wipes out all of our suppression arguments because obviously the only person who could have opened it if it wasn't if it was open before coming calaway right is christiansen christianson didn't talk to pant christianson didn't call chang there's no kinetic there's no argument for suppression once so ever if this finding is correct and this finding is clearly erroneous and we've taken the position that either if you find this finding is correct there is no appeal if you find this finding is clearly erroneous which clearly is then you've got to reverse because the judge relied on clearly erroneous finding now it's inconsistent with pants report no one testified to this at the hearing and the words he does this by sort of mosis there's absolutely no evidence that it was open before if you look at the path report and also appends testimony it absolutely says that com explained that they received a tip from the driver of the express motors truck who  after receiving the tip clint comma and his partner met the driver at royal canadian to further investigate the driver opened the truck and allowed com access comment then cut open one of the boxes that's what pants report sadness that's contrary to what this judge has found here and as i pointed out a little couple of pages later in my brief the factual basis for the plea presented by the state was flatly inconsistent with this when he argued it is factual basis when we tendered a plea is that after a comma arrived the packet in the crate was opened this judge made it clearly erroneous finding and and i confronted him with it at the bail hearing and i said this is a big part of the reason we're appealing and and his comment was even if that's wrong i there's still no  it can or that the chain phone calls meant nothing then that's true it doesn't matter when it was open because you're you're taking the position that the government's arguing that there was you know no obligation for the any of these people to tell these people not to operate with false badges and fake i d s like i said what's doing them bot but if if if you start with that finding then it doesn't make any difference and we don't know