good morning ladies and gentlemen before we begin i would like to note the presence on the bench and welcome to the bench of the clerk of the honorable william bertelsmann u s district judge for the eastern district of kentucky we appreciate your coming over to help with keep current with our dockets like to advise appellants if you have reserved any time for rebuttal or wish to reserve any time for rebuttal i'd appreciate your letting me know at the beginning of your arguments in the c may call the first case good morning i'd like to reserve five minutes for a bottle you may may please the court my name is stephanie king r and i am here on behalf of appellant leon benford mr bin for it is serving a fifteen year prison sentence it is undisputed that the incriminating statements he made to the police this is correct we do have one argument on recent scene the government has agreed that one of mr been for three prior convictions cannot be used to enhance a sentence we also believe that his second conviction a convention conviction for second degree burglary was improperly assessed it was our position that because we can raise this argument on plane air review since it is based on the u s supreme court's decision and johnson this court can simply rule and dispose of this challenge now and the name of judicial efficiency but the government agrees that if it is remained it the district court will be able to take our argument into consideration in that if those sentences are eliminated that would substantially reduce the guideline sentence under which mr benford mr been for his punishment would be assessed in addition to re senate scene we also believe that mr bin furred sentences his convictions need to be vacated and there should be a new trial because of two constitutional errors either one of these errors must result in the vacating of his sentence the first one is that his his incriminating statements were admissible because he was detained and arrested and violation of the fourth amendment which tainted all of the incriminating statements he made after that detention and our second argument is that the admission of his incriminating statements violated the fifth amendment because his miranda warnings were not properly given or followed up on the fourth amendment weirds this court to reaffirm the rule that was established by the supreme court and moran and michigan v summers that a search warrant authorizes officers to detain occupants of the premises to protect the integrity of the search and the officer safety and a manner that is less intrusive than a custodial interrogation or rest now in summers the us supreme court established a narrow exception to the warrant requirements it stated that when police are performing a search for contraband under a warrant they can detain occupants in the name of three law enforcement interests to prevent flight to minimize the risk of harm to officers and to facilitate the orderly completion of t search and its opinion the supreme court made it clear that this did not authorize police officers to conduct a custodial interrogation or to perform an actual arrest missing mueller no mueller v e no your honor is a case in which the supreme court stated that when the occupants of a residence have been properly detained and they're being held and a relatively limited manner of question the us properly detained when he was initially stopped he was properly detained when the police arrived in the residence they detained mr binford and a manner that is comparable to the way that the occupants were detained and mueller he was handcuffed he was insured to no longer pose a safety threat the point is once they're there executing the search not only can they do that for the reasons that you set forth but you are also says that they can talk to him they just can't talk to him for in a way that would prolong the search and that didn't happen here when you were noted that the questioning did not prolong the search but what it said about the fourth amendment restriction is it said mere questioning is not an independent fourth amendment  difference between you're claiming here that it is here not the questioning alone we are saying that the question was part of the additional intrusion but what happened here is rather than questioning benford where he was where he was simply hority that makes it clear that these additional intrusions confinement separating a person from the residence around him mirandizing him informing him he is the subject of an investigation all of which are distinct from what happened to  custodial interrogation as are all the things we tell the police they're supposed to do not when all they are tell them they're supposed to give miranda they're supposed to tell them that they want to talk to them they're supposed to tell them why they want to talk when the when the police have the authority to be conducting a custodial interrogation we do demand all of those protections exist but here what the government is essentially asking is for there to be an exception to an arrest warrants that whenever the police arrive or the search warrants where the magistrate has clearly said you have probable cause to search and we have delineated what it is you can search for certainly the police couldn't just walk into the home and search for anything they wanted here the government would ask you to say as long as we are in the apartment and we're conducting a search then we can go ahead and perform a custodial interrogation and what's the matter with that as long as your memory and a warning to the grandmother because curing a fifth amendment violation as the court told us and done thank you performing a limited detention when a search warrant is being performed doesn't cause us constitutional concern because that is inherently a limited intrusion if there's a limited detention that's ok what's the matter with talking to the guy in the meantime as long as you'd be amazed miranda rights that would be very different the just merely talking to him if there were no additional restrictions being put on him if he was simply being detained for the three legitimate purposes identified and summers we do not have an objection to that and in this case i mean do you object to his being handcuffed given the search it was ok we do not object to the handcuffing it is this shift it is know it's too claustrophobic in here or anything of that sort is no indication that he asked to put his pants on he had a sheet i mean granted those events occurred but you know do you have a principle that says you know before you can talk to him you've got to give him his pants and you've got to have a room bigger than ten by ten well there is no bright light next day so so then we're just looking about the sort of things we normally look at in a miranda situation was his we're overboard was a voluntary not something special because it's a search you know under the miranda issue is an independent issue from the fourth amendment issues are all fifth amendment questions you're still saying we're still stuck on the fourth amendment but i don't understand where the fourth amendment violation occurs here you say that they can be in the apartment they you say that they can detain him you say they can handcuff him and you say they can they can talk to him as long as they mirand only thing seems to be left is they talk to him in a bathroom instead of in the liver and i'm trying to figure out who cares that that is a violation that for example the ninth circuit found and again which he nap in there in that case the police held him i'm asking you specifically what about what happened here specifically violates the fourth amendment not the fifth amendment the increased form of the detention what does that mean increased form does that mean the handcuffs the location the length because they all seem to be ok it is totality but a large part of it is the location that that action of moving mr binford from a relatively open area where he could see his family and moving him and isolating him into a confined space those are classically the things that are looked at to determine whether someone is being detained or whether they've been with that and almost rather one of these cases that we see they separate the people in the place they're going to search and they take them to a more quiet area where they can tie and in those as well that's wrong in most cases well no in those cases they make it clear that by doing that the police were required to do miranda except because there was a custodial interrogation now those cases don't always address the fourth amendment issue because they can resolve it based on more humanity mammas the bathroom yes the confinement and the interrogation is already confined and he was detained so do you have any authority that says where they conduct this this interrogation implicates the fourth amendment united states v fountain from this circuit certainly acknowledge that interrogating somebody in an open living room required you know a different level of of suspicion and for them it justification then moving them to a separate floor of the house and interrogating the suspect and a bedroom the isolation of was viewed to be a different type of intrusion on fourth amendment rights i don't remember found it say there was a violation because they took them to a better know fountain determine that because of the search had actually at the point that they brought him to the bedroom the search had uncovered evidence of a crime and there had been some confessions in an open environment that probable cause existed in probable cause from the search itself was sufficient to authorize this interrogation probable cause kind of like having to hand interns actions in a lawn chair under the carport in the in the parking lot but it is that even that probable cause if that probable cause was sufficient then we are opening up the door for police to make their own determination as to whether and arrest and a home is justified and in situations like this where they are performing a search warrant in the wee hours of the morning based on a contraband search warrant which they told us they usually do early in the morning they will never have to seek an arrest warrant and independent verification from the ma that my time is over and you have your time for i please the court patricia gatekeeper the united states it is the government's position that officers never have to seek an arrest warrant in these circumstances the search warrant gave the officers authority to detain the occupants because it was a search warrant for guns as well as drugs they were allowed to detain the occupants in handcuffs and as you said judge mckeague they were allowed to separate the occupants many cases have said that well it can't be true they never have to have a war we were already talked about mueller says that they can question as long as the questioning doesn't prolong the search oh of course i'm sorry i  overstate it as long as the questioning doesn't exceed the length of the search and there's no question here that the search only took less than an hour the very the estimates vary a little bit and both the defendant and the officer agreed that the questioning to fifteen to twenty minutes so there's no question on the record that the questioning the duration of the questioning was considerably less than the duration of the search both were quite s and maybe i didn't understand your first statement when you got up i heard you say that police never need an arrest warrant in this type of situation even assuming it's within a short time does that mean that if the officers believe there is probable cause that he committed a crime the hand to him transaction that they saw the fact that they got a search warrant does means that they don't have to get an arrest warrant to arrest him in the home regardless of what happens that's what i thought i heard you say i think that's true but what i meant to say was they don't need an arrest warrant to question west  going because i i took your original statement to say you know we've got a search warrant we can arrest you without an arrest warrant that's it they don't need it they don't need an arrest warrant to question the occupants of the home all right that's different there are a lot really the the search warrant itself allows them to question of course they gave miranda warnings the occupants can refuse to answer their questions there was no question of that here i think what we were concerned with is you seem to be saying that they could arrest him regardless of whether they had probable cause to arrest him no of course and of course are you conceding this is a had greta remained for everything we agreed that rita remained because of the inclusion of the one burglary charge that's correct now the pellant wants us to rule on a second burglary charge and frankly i'm not sure that i that i understand that it doesn't is there some reason why we either should or shouldn't take that up at this stage  johnson applies to the career offender guideline and do they all what would be necessary to decide the question the impound presents and do they also want to stew decide that second degree burglary in ohio can't come under the other portions of a crime of violence that shute yes and your position is leave that to the district court in the first instance or what's your position that's our position that that the case must be remanded for resentencing we agree it should be a complete reasons and he's not an armed group criminal and it should be left open for the district court to decide whether he is a career offender residual clause could this second degree burglary count under one of the other portions for example generic burglary yes although i have to be candid record i don't think it comes under generic burglary but i'm trying to figure out why we will why you don't want us to take that up ms cagney or it says it's plain or review and we have everything we needed do we need to decide and so i'm asking you why respond that why why wouldn't we decide that why wouldn't you decide whether johnson applies to crew or fender guideline is not that hard as to the second burglary charge does it does it still is does it still come out under something other than the residual class well the question whether the second degree burglary counts if you believe that if johnson applies to the career offender provision which the department says it dies then it's not a difficult question and i agree are there is there no possibility that there would be sheppard documents but you've you first had us discussing whether it whether johnson applies to the career offender category and you just said very softly which the department says it does did i hear that correctly but you know there's a guy here that yes and department mears d o j yes you know you're bond buyers there yes and there's one circuit decision on this so we don't need to send it back you're not asking us to send it back on that issue the government already conceded that night because in the district court and if it's not that then why do we send that one back because of the sheppard question yes ok and there are cases in this circuit that prior to the time when it really made a difference this court has had things that make it appear that it wouldn't qualify we also ago that you didn't think the second one counted either but you're not willing to concede that so you know it would be safe to say this might not be your most persuasive moment right now yes that would be safe to say that would be safe to say it would be safe to say that because of what this court has said in the earlier rulings about ohio burglary i am doubtful that we are going to be able to demonstrate in the district court that second degree burglary is a violent felony but i'm not absolutely certain that we can't ok fine enough fair enough and as far as the question goes it is our legal position that johnson applies to the guidelines and therefore if you know the court can say johnson applies to the guidelines but i can't give you much guidance on how that plays out in terms of the second degree burglary but other you have other points to make no she seems to be conceding johnson applies to your other burglary charge to yes your honor but she's saying she doesn't want to forego the opportunity to still show that that other burglary charge counts under something other than the residual clause so why is this so clear cut when we don't have any shepherd documents how can we decide that here well i think you know united states v price which is a perp in by the score and that opinion this  that second degree burglary can't meet the definition of burglary so it has to fall under the residual clause the documents that the government did introduce below they're not going to be able to show that the particular crime that he committed would generic burglary all that they were able to present to show you know this prior conviction these in this is unfit no number one of our reply supplemental brief are that they were able to show was the indictment and  indictment merely recite the elements of the statute itself and because the elements of the statute cannot meet cannot meet the generic definition of burglary that's all that they were able to show does that i do think in this instance it was the government's burden to go ahead in egypt use it as a has and if you get a full remain and they can that's a they get a do over on that don't they i'm not sure that they do having not introduced any of this information in his initial sentencing was it an issue well certainly was it was that particular conviction challenge well i think that the government just attempted to they they were trying to sentence a man for fifteen years and that is what they did you challenge the conviction that now you win under under johnson but was the other conviction that you were raised in a supplemental matter so why would we be criticizing them for not having introduced something to establish something that wasn't a dish or i you know honor if it is remained on that we will be more than satisfied ok on the fourth amendment issue i will somers makes it clear that when it's provided what has been described as a narrow exception to the w requirement in order to allow detentions to occur and search warrants it did it with a very clear assumption in mind the court stated quote this type of detention is not likely to be exploited by the officer to gain more information because the information the officer seek normally will be obtained through the search and not through the detention and then in footnote fifteen of that opinion the court clearly stated this seizure in this case is not likely to have coercive aspects likely to induce self incrimination if we take the coercive aspects and we put it over to the fifth amendment bucket that we've never even gotten yes your honor what would you have us if we go down the road that you want to go down on the fourth amendment what would you have a say then as the there were a bright line rule or even guidance as to why what happened here was violative of the fourth amendment that shouldn't be repeated how would we even describe that because we simply say don't take them in  bathroom or a small room with the supreme court said and florida viewer is that a detention violates the fourth amendment when it is more intrusive than is required by its underlying justification summers gives us exactly three underlying justifications and those relate to safety and protecting the integrity of the search now i cannot give you a bright line rule that this will always be ok and this will never be ok but that's the nature of these fourth amendment questions even if we don't set forth a bright line rule of we were we to agree with you on this case we would still be having to point to what fact or facts put us over the line wherever even though we don't tell them where the line is the toto i can't figure out what that was what those facts are here aside from what was in the bathroom when the officer took a man unquote and handcuffs can find him put in a small space told him he was a suspect the target of the investigation mirandized him and interrogated him all of those things together amount to a custodial interrogation and we know from detective canal's own testimony that he did not do that for any reason permitted under summers he did not do it to facilitate a search and magistrate said he could do he did it because he wanted to circumvent that search and he wanted to get information that meant he would have cooperation in get what he wanted from a suspect before prefer mean the only thing he was actually allowed to do inside of this man's house which is perform a search this is a case that tells us exactly what happens if this exception as allowed officers will use search warrants they will circumvent the search itself and they will seek information about circumventing the search they're just doing something in addition to the search that you say they're not allowed to do but he says he's doing it so that if the search yield something he will have this reporter and he will you know be able to get this increased cooperation he's trying potato through what he would be able to do with an arrest what he's supposed to do through a search and the supreme court has made or you make this assumption that this conversation was intended to have him say what was in the apartment that was the object of the search oh detective cannot hold us that was why he's not what he said he said that he is attempting to stablish a relationship that will result in this guy being a cooperating with the government and that's what they always do but what's not that's not in place of the surge there are there are two differences here a detective can now what he says in addition to the testimony you're referring to is that he likes to give suspects the chance to go ahead and  what is going to be found in the search and that helps build the report he was looking for that information the second is that he was going to but he's going to get that anyway through the search then why are law him to circumvent the magistrate's protection that's part of the asked was only asked do we have probable cause to search this man's possessions and the magistrate said yes search warrants and arrest warrants the supreme court made clear in stay gold and make clear in california and make clear in maryland that they protect different interests and so the fact that a magistrate has said you have probable cause and you may enter this man's home in order to invade this fourth amendment interests does not authorize the police to invade any fourth amendment interest otherwise a search warrant would allow an officer to search for anything not just what is in the warrant and an arrest warrant would authorize a search it obviously allows them to avoid to it to compromise their fourth amendment rights or the person could simply walk out the door but summers made it very clear that the supreme court intended that to be extremely narrow and that was reemphasized just in twenty thirteen when the supreme court decided bailey versus united states and made it very clear that the summer's detention if it does not meet one of the three hrs quire immense simply cannot be justified under the fourth amendment and let me just take you back to the see if i got the logic when you said all of these things together the moving  small room the handcuffing yes mounted to a custodial interrogation and therefore it violated his fourth amendment rights by having a custodial interrogation is that the logic chain that the supreme court has told well the yes your honor so but the all together is necessary because i guess you would say if you just left him on the couch in handcuffs he could talk to him for  taking this case and your firm under the criminal justice act it's a service to our system of justice case will be submitted for