morning your honor sign page nicol here on behalf of the of helen mr howe mentor we have before the court today basically two fourth amendment claims the arrest of the defendant and the search of the hotel room but the government says we can't really get to those claims because we didn't do what we were supposed to do in the district court and our answer to that has been no no it was the government that didn't do what the government was supposed to do in the district court and so we had these kind of dueling waiver claims which i thought i would walk through quickly first before getting to the merits of our issue our codefendant coming up after me and so if i don't get to thoroughly get to the merits i trust that he will do so so three duelling waiver claims i'm talking about are with respect to reservation of the challenge the arrest mr amador standing to challenge the search of the hotel room and the independent source doctrine so just to start with your rest the government says we did not properly client right that was definitely did not nobody directly addressed the arrest in the written motion did not file a motion to suppress those items right but the judge invited the parties to address the legality of the at the hearing the parties did address whether or not there was probable cause to support your arrest and then the judge ruled on it in the written order and because the judge ruled on the arrest in his written order this court can consider it under the hernandez rodriguez case which says when the district courts with want to read something and decide on the merits this court can consider it and i think that rule is really consistent with rule fifty one and the purposes underlying the rules of preservation because the purpose is following the rules of reservation arc that the district court has to have a fair opportunity to decide an issue before this court can say the district court got it wrong it district court has that opportunity created that opportunity really here which is why this court can consider it and what did the trial court ruled on that has ruled that against us on that issue that there was probable cause to support the arrest and then what is our standard so the standard of back to a time before district courts were obligated to make their factual findings on the record so now that they make this actual findings on the record there's no reason to view their findings in the light most favorable either to the winning party the district court order because that makes it seemingly impossible to ever win on appeal if that is the these arguments are really interesting but does it do they matter here do we have i don't think we really have we don't need to dance on how we look at them and into staying for i think that's probably true now as i stand here i'm going to think of the fact that we have a dispute but i think for the most part are bigger are bigger  are really the question the preservation whose whose duty was it to do what in the district court and whether the whether the arrests were illegal and whether the independent focus on the defendant prawn whether the defendant was responsible for the items in the hotel room so what do they know they knew that somebody who looks like him had been in the room for seven minutes earlier that day had gone into the room and had come back out of the wreck three or four hours well by the time they got back to the hotel it was longer than that but they knew that he had gone into the room for seven minutes and they knew that this person who looked like the person on the videotape was coming back into the hotel and walking down the hallway and that is it so no no no yes ok let's hear no no they also knew that the housekeeper had been in the room and had told others what she saw in the room was evidence of a crime in the room from the maid's report whether that was sufficient to support probable cause we've argued it wasn't but i'm not going to focus on that here when i'm focusing on was whether they had sufficient evidence that there was probable cause that mr an agent or was they had a person who had been seen going in and out of a drug house and it was around the perimeter when they were doing the rest or a search of the house that person was arrested this court said no probable cause because that merits association and that mere presen enough to show that this person you know trying to make the classroom distinction in that situation as compared to ours when you have a drug house with lots of people coming and going and a room where two people went in and came out with this is all we know is that these two people so the surveillance evidence we don't know what else the surveillance video shows we just know that they tracked these people hotel room before they could be the parents of the kids in the hotel room who went in this morning for seven minutes and said hey what are you doing here you gotta get rid of stuff this is bad they came back later to check and see we just don't know what about an hour to rest what were injured according to you when but yet they did so they know that these that according to the surveillance people these people look like the people who went instagram for seven minutes and came back out that enough for probable cause it's enough for reasonable suspicion they should have stopped and asked to question it probably would have gotten  asserted that in her motion which she joined and the government you never challenged and you have this both ways i mean i thought you were saying wait a minute your client is not connected to that room leave him alone and now you're saying but he can argue here whatever he wants to argue because he's connected to this rule which we learned after the arrest so before the arrest they don't know that this woman is the woman whose name the room was rented in they don't know that my client has a key they don't know that she was staying there with her so it's only after the arrest that these things come to light and i understand that i understand that tension there but i think that the difference is what they knew before the arrest and what they knew after so again i just want to emphasize this is one of those dueling waiver issues i believe standing with sufficiently raised the government never challenged and so this court has said more than once that if the government doesn't raise standing in the district court it can't r good morning james brown for the united states your honors i'd like to start to talk about it each issue is you wanted you to know that issue three and starting with this you won let's start i'd like to start with the preservation issue we think that the standard review is that they're not entitled to any review because these claims are weight this court is stated into focus cases where defendant is not raises oppression issue before the district court in the defendant has waived those issues and they are not entitled to review even under a player's smallest jump to the chase because her argument is that granted she didn't do it but the trial court invited you to argue that did argue that and so we have a all right that's that's that's an excellent question and let me it'll take me a little bit to explain it's of the court you just feel of the patient very much appreciated under the unlawful arrest issue two new grounds ground number one it's new new theory that the arrest of the lawful because the evidence known to police officers was insufficient to link on the door to room one fifty that's theory that she just that mycologist sent two minutes explaining that was not before the dish court ever ever it's a new theory on appeal basically she's arguing a different case on appeal and my colleague argued in the district court the second new theory is that your rest was unlawful because blacks report was not trustworthy enough to provide p c to arrest or now with respect to that second argument the second new theory the district court did adverse to that theory in footnote seven in footnote seven the court just needs to go to page seven of the district court's order where the court found that brianna black's report was explicit details trustworthy and reliable provided a reliable basis for the warrant and very good sentence from open oil company which reciting our brief the court says changing to a new theory on appeal that falls under the same general category as an argument presented at trial is not adequate to preserve issues where feel it's plain as day is seems a going in and out and it was only seven minutes well you know then then we get to this whole deal if he had no connection to the room whatsoever or he was an overnight guest he is now standing you know if he if he if he does if he was there he was there for seven minutes is that enough you know this is a this is a new series race for the first time on appeal we don't have we didn't have the opportunity to make a record we can't be tasked with making up know the seven minutes i'm not even sure where my colleague gets that from the record at least in this case there was no record made on on all these points about his explicit connection to the room we just pulled these threads together from the it would have been nice for them to say hey we don't think you had a sufficient connection to room one fifty in the district court so proof that was sufficient we had testimony there we had witnesses there we could have done it then instead of trying to do it now for the first time feel source argument no relying on it we care neither party raised before the district court what are we doing here's what the court does with it your honor the court this is this is an issue the look you said sufficient evidence apart from one apart from the illegal entry to the hotel that would be the officer's entry correct so then you're saying ok we've got enough here because we can look at the testimony  well again my colleague doesn't doesn't challenge that there's enough to support probable cause even taking out the illegal entry but the court did cite plenty of other information including one black district court cited as the other information porting the probable cause for the warrant even setting aside the illegal entry and they do not challenge that district court probable cause finding on appeal in other words the hearing cases which we discussed at length on page forty seven fifty one of mchale's grease and the now now we think it is obvious that whether or not the officers relied on a mistake by a third party is in a relevant factor under herring in davis why do we say that we say that because i'm hearing the court says that the analysis looks to deterrence and culpability taking into account the officers knowledge and experience that's what i'm talking about in this guy i'm talking about an arrest in this case we think it would apply to the rest if the officers if if if a reasonably well trained officer would have known that that the rest was not illegal in light of the government says back to these dueling waiver problems the government says we are we the government are not half with making up arguments for the defendants but here's the point i want to make in the district court at the hearing the defendants challenged the legality of the warrantless arrest and they challenged the warrantless search of the hotel room in those both of those situations the burden is on the government to prove probable cause as to arrest or to establish an exception one two and three and then the government comes back in response and once you say only everything's illegal here we'll just throw out that general concept and put it on the government to any possible reason known to mankind why it is proper i i'm going to give two answers my first answer is yes once you have a warrantless arrest or a warrant search that is all the defendant needs to say and then the government goes from there in this case they did more than that they said the arrest was illegal because there may didn't report seeing any