our fifth case for today is united states against one key sure thompson issue at the time the law enforcement officers entered mr keyes hotel room they did not have probable cause to believe that any crime whatsoever had actually been committed they were as i write why are we putting to one side the fact that they have heard from their fellow officer that the girl is down at that particular motel and that it's in the cheese from wisconsin and that this car is from wisconsin and that he's the only wisconsin person there and obviously the second question is why it's probable cause matter if as the district court did you credit the testimony of the officers that he consented to let them come into the room of address the first part of that first week we shouldn't put it to its side it just doesn't give them any reason to believe there's been a crime committed they might have believed that the minor was there or had been in that hotel room but there's nothing inherently illegal about that the call the minor place to her mother only said that she had apparently voluntarily traveled to illinois with this man and now want to see them home is that how the officers interpreted that call i thought that  they thought that they were being told about a potential kidnapping they were treating it as a potential kidnapping but the information did not say that she was there are injured masterson i guess who gets takes the call and now with everything they know ex post it's easy to say that perhaps there was some sort of crime afoot but they didn't know that at the time all they knew was that a girl had come to illinois and was staying in a hotel and now want to come on they were certainly within their rights to see if she was in that hotel room and as noted the district court did find that the defendant gay permission for the officers to enter the hotel room to look for the girl knew they did that knew exactly who they were asking about in new or she was correct she informed them that she was actually wasn't sure where she was but thought she'd gone to mcdonald's down the street the officers were allowed to come in at that point certainly they were allowed to look to see if the girl was in there as the defendant gave them permission to do once they did that they should have left the consent to enter they see all this sketchy stuff when they they're looking through the room there's the samsung tablet open to the back page there is a condom refuse around the room and there's a lot of disturbing material in that room although respectfully are sketchy isn't exactly a legal term they need probable cause to believe that those items are indicative that a crime had to i understand that i'm sorry i'm cumulating it we've got the masterson call we've got you know an interpretation that this girl is upset that she wants to come home why is she calling her mother and her mother is calling the police testified he actually conducted a full search of the room opening drawers checking in the closets in the bathroom things that were not within the scope of their consent to be in the room to look for the girl right but the focus is on what was found in plain view can i follow up on  question and have you explain to us a little more precisely the timing here about spotting the evidence in question in plain view  admission that they were involved in prostitution and then the seizure of the that evidence as i understand it the testimony from the officers was that they initially saw the items the tablet and the cell phones credit cards condom wrappers and cetera basically immediately upon entering room it's unclear to me whether they immediately collected those or waited some time but i believe they were collected before any statements were taken or perhaps simultaneously with any statements from the female that was in the room is that address specifically in the transcript or in the phone just distributed signing it is far as i can tell it was not clearly defined or i think it's ambiguous in the transcripts and the other timing issue that you quickly went over creighton goes down to the car with the one officer and makes the statements and i thought i remembered reading that that officer that calls back to the hotel room and basically says this is what i to know does the more thorough us search start maybe the government can answer this question or tell me that there's no evidence just a more thorough search start after the officer down the car calls back and says hey he's a pimp these two w they're being prostituted and and they know that one of them is under age because we've already established who she is so and they know about the reputation of that particular hotel and cetera if the more thorough stor search doesn't start until after the creighton statements that would strike me as a different case from the minute they leave all of a sudden they start room inside out i agree that it is different but i'm not sure that difference is meaningful in this case because the items that were collected here weren't part of that more thorough search they were items the officers decided to collect just upon seeing them and i think that's without any reference to anything that is creighton's that they decided that they were suspicious certainly ma already served their purpose for which the consent to enter the way weight of left room where was she going to go back to miss creighton yeah she could certainly go back into the room she wanted to once she'd finished talking the officer but the officers permitted to enter the room was limited  this describe if she wanted to or she could not she could go with the officers but the officers didn't have any valid basis to be present in the room once they'd conducted their limited search to terminate the miner was there so anything they did after that was beyond the scope of their permission warrant your honor they should have left the room because they said can we come in to look for this particular individual and the defendant apparently said yes go ahead that search takes five ten seconds that's the scope that they were allowed to be there for the search at all should not have occurred without some sort of intervening event a warrant additional consent intervening event unless it was a plate describing what would the situation was but they should have already left before that happened and i think these items were also taken before that happened they were present the hotel room without consent at that point if you want to say a quick word about your instruction point i would your honor i know the instruction that the issue with the instruction is that it is a valid statement of law under certain circumstances but it's ambiguous the way it was worded here to imply more than the law actually permits it let me break this down because as i understand this crime once they've crossed the state line once they've travelled across the state line the crimes complete they don't have to with the right temperature yes and you also agree that her voluntary participation in the travel is neither here or there that's not a relevant fact his only point is once they get there she's  not with she goes to school you know who cares the point is your honor that the defendant has to have the attack after time to travel occurs that the minor would engage in these prostitution or other illegal activity right but if she's doing that on her own without discussing it with him without telling him about it without any way for him to know what's going to happen if she's the one voluntarily of her own initiative of her own volition intending to do this prostitution without telling him about it right when that would make him not guilty rector right but  does doesn't the elements instruction to cure that problem with the only construction does say that but this instruction sort of undercuts that and why it's not that i understand the argument that you might be spun that way is there any indication here that the government tried to spin it that way not good not directly but certainly on its face the wording of the instruction says hey don't even concern yourself with what her what she was voluntarily doing on her own and other when arguments were stay he didn't tell you this this was her own doing and then the judge tells the jury ignore all that that undercuts mr ickes the facts did as i understand it the position you're taking on appeal is that the real problem is just the last phrase otherwise voluntarily protists yes right did it with the objection a trial was that the whole instruction was bad correct track did anybody propose the more limited version that you're suggesting on appeal not explicit your honor on counsel's explanation of what the defense was that the court should have realized that there could have been a more limited and still factually correct statement the law given for that consent part and thank you thank you  good morning may please the court captain sawyer on behalf of the united states like to begin with the timing argument raised by by the court i think i can clarify some of this judge kane was correct in his question and i think it is a salient point here to recognize that when the officers entered the motel room with the defendant's consent all of the items that they seized or immediately apparent to them in plain view in that motel room any subsequent and i think the court's language was more thorough search that followed miss creighton statement did not recover any additional evidence the only evidence we're really talking about here was the item was the evidence that was in plain view upon their initial and the government's view is even if any one of these things might have been a knock us by itself when you put it all together with what the police already knew including the circumstances of the girl's travel from wisconsin to illinois the reputation of the motel the nature of the objects back page the used condoms and so on the officers at the time that they saw it and certainly later at the time they seized it and that is the call from the mother to report that her daughter had been taken probably against her will from wisconsin had this record show the mother says obviously against your will there was some indication and i i don't recall except what the mother said but the what was communicated to the officers at the time was that there was there was some indication that she had been taken against her will and was being held at the romeoville super eight motel which each officer testified that they had in their prior experience a come to learn was often used as a location for prostitution activity they also upon arriving at the motel found again only about one car with the wisconsin license plates they ran those license plates they came back to an enterprise rental car location in wisconsin the officers also testified that based on their training experience rental car she was crying when she called her mother and said i want to come home that is correct your honor can you clarify the tim with consent the doors propped open a little bit maybe for a comeback from that but donal's for all i know but it will be a little bit exactly on a that was a district court's finding and my understanding is defendant is not at this point challenging the consent decision so the time that the officers entered the room with consent there are three police officers in that room one of them focuses her attention on miscreate who is asked for an identification she says she thinks it's in the car at this point the officers have already seen in plain view the items which they subsequently seize one of the officers goes with miss creighton to depart to retrieve this identification the other two officers remain in the motel room talking to mr key consent at no point is ever revoked by mr p and i don't think that's in dispute so those officers remain in the motel room where these items are in plain view continuing their conversation with mr cain at this point is when the other officer is talking to miscreate and while they are at the car miss creighton is asked whether she is working for  key there is testimony and i can direct the court to i believe it's pages twenty and twenty one and forty nine and fifty of the transcript and then subsequently pages eighty seven and page ninety where the timing of these events are discussed so awesome i'm sorry sergeant masterson the woman who goes with mis that the victim is across the street at a mcdonald's so they go in order to confirm that the victim is in fact at this mcdonald's during that point they take the victim into custody is accurate protective or somebody else comes up meet all these officers are driving up every two minutes yes your honor there is another officer so i believe his numerous swat techer slats and who also is sent to the mcdonald's in order to respond to look for the victim while while that's happening mr creighton also informs the same officer that the defendant was using the tablet computer in the hotel room to post both girls to back page dot com at that time the officer radios back to the two who are in the motel room and say take him into custody we're taking him to the station or i don't know the language was but indicating we now have the statement and they take him into custody so is there a further search incident should be arrested or there is a search incident to the arrest of the defendant i believe they recovered  identification hotel keys maybe some more prepaid credit cards but but the real salient point here and the takeaway is that there was a wealth of information available to the officers the at the very first moment where they see this evidence all the things we've already discussed the the call to the mother the distress the motel known to them for prostitution the that page on tablet on the back page out on the tablet which is suggestive again to those officers of prostitution a classic everything in the classic good example yes absolutely your honor and then in combination with the things that this court has already identified those prepaid credit cards the condoms except for then you add to that the information provided by miss creighton and by the time those officer sees those items they just have they they have a wealth of evidence to suggest that that that it is in fact prostitution that's occurring in this room and that and the diplomat you could talk a little bit about this instruction voluntarily participated phrase without any kind of limitation just an invitation to trouble i do think that the same effect could have been achieved by omitting that but i don't think that that language is in any way a basis for a personal career i don't think that it in any way misled viewing the instructions as a whole misled the jury as to what it had to find so suppose to take mr thompson's description of the defendant's position suppose this girl was he picked her up in wisconsin and traveled with  her to illinois without having any idea that she had going into the prostitution business in mind and without having any intent himself of moving her in that direction maybe it's just decided to travel with her for the day for whatever reason that wouldn't violate the statute statutes violated only if the travel is with the intent to prostitute to the minor that's correct so the possibility that he's presenting the theory of his defense isn't really before the jury as well i think if that had been the defense that he propounded at trial i think that that's the universe we would be in the fact the matter is that i think that the record supports the fact that it wasn't that clean and his argument at trial wasn't i didn't know anything about anything and this was completely behind my back he asked a lot of questions that went shifted trial counsel shifted the discussion or the focus from what did the defendant know or defendant knew nothing to what is it that april was doing and how was she autonomous and how was she acting voluntarily and how was she able to leave if she wanted to or except her and so she never took on a trial the government's evidence of specific intent on the defendant's part but rather shifted that to to the victim and so because of that the government's position was that they've muddied the waters with respect to that evidence and so the instruction was necessary in order to aid the jury in determining how it could consider that defense evidence and argument  cases it did your honor we requested the government requested an instruction that essentially said that that consent is not a defense to this to describe i do not recall and i can submit if the court would like a letter expounding on this whether we actually asked for that clause the voluntarily participated clause but the consent or voluntary participation of able to travel to engage in prostitution is not a defense to the charges and is the last piece of that instruction and we think a correct statement of the law and an prejudice argument i think is easily defeated by the fact that they were also instructed correctly on the law with respect to the burden that the government or and that is that the defendant intended that even gauge interest in prostitution at the time that he transported her from one state to the other and obviously the jury is presumed to follow those instructions and there was as the district court noted overwhelming evidence of the defendant's specific intent and we have this little bit from the jury instruction conference appendix grief of pages twelve and thirteen but i can't quite tell where the origin because the judge is just saying ok this instruction that instruction and then the instruction that whether she consented i held in reserve to see how the trial goes and gets on the next page which looks like four thirty seven maybe if the transcript she  the government respectfully request of the quarter from a conviction all right thanks very much mr thompson i think run out of time they'll give you a minute i was like oh oh all right you're  that the theory of the defense was unclear but it was presented to the jury in a way that was a way that could undermine the government's prove beyond a reasonable doubt that it on page four ninety five of the closing argument counsel for mr key argued that april was in the control room april is telling the want don't come in here i don't want you to know what i'm doing that are going alone is sufficient to give the jury an idea that the defense is able is doing this on the young on her own mr ke