admonish to draw nigh and give their attention for the court is now sitting god save the united states in this honorable court please be seated good morning and welcome to the four circuit judge here on and i are very pleased to be hearing your cases today our st case is united states versus antonio meller  officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises st in an unlawful manner by doing so he would risk suppression of all evidence on the premises both seen and unseen its action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers decision to seek a warrant or the magistrate's decision to grant it counsel can i am i understand the principle of law you're stating now so the district court the holding that we're reviewing is that the defendant didn't have standing to challenge the search of the car right had no reasonable expectation of privacy in the car and you are arguing that the search of the car was unconstitutional on the merits so can you just connect those things for me the search of the car is unconstitutional on the merits because the car was located in the curtilage now i understand your argument for why it was unconstitutional in the merits i'm not understanding how that is responsive to the district court's holding that there was no standing to challenge the search of the car well the the challenge the district court said you have no reasonable expectation in this car you can challenge the search because you're not on the agreement and the car was overdue are you challenging any of that or not at this point because the more important question is whether under collins mr miller had an expectation of privacy in the curtilage h all i'm asking you is we're looking at the standing holding your making an argument on the merits and i'm just asking you i think they may connect up but i'm wondering if you can connect them up for me that's not a question i had anticipated answering at this point because the he has standing under columns to challenge what the the entry of the officers onto his property that it would follow that just asking you to explain how what you want us to hold would what would we say for why we are reversing the district court's standing holding because mr miller had standing under collins to challenge the officers entry on to his property to search for the vehicle ok and so and so constitutional how does that relate to what the district court said well the district court chose not to address the collins issue and all i'm asking is i think you have an argument but not in your brief and so i'm troubled but i think your argument is look if they violated the constitution when they cross the colonel ij it doesn't matter if there is a reasonable expectation of privacy in the current more because what they found in the car would be tainted by that original illegality of that argument yes absolutely and i included that basic argument in my twenty eight j letter in response to bruce argument about the inevitable discovery because the issue is it doesn't matter what they found in the car what matters is that they entered his properly unconstitutionally matters what they found in the car because there's no evidence that derives directly from the entry onto the curtilage so of course it matters what they found in the car that's what you want suppressed correct ok let me the reason i'm concerned about this is because i don't this i don't mean to be sort of bogged down in semantics but i don't see this argument in your brief and i also didn't see you make it to the district court and that's my real  garage or been in the he didn't say in the living room but let's say the collins argument is in the living room that they would not they would had to have had a warrant to come onto his property to go in the garage and search for the car itself so i'm going to stop in one minute but i just want to be really frank about my concerns ok and address and i and it's helpful for me to know you are in council below but i hope i'm wondering whether there is a way to address my concerns with the district court i read the whole hearing the district court things the question is was there a reasonable expectation of privacy in the car so that there is standing to challenge the car search i agree that in a couple of places counsel mention curtilage issue but i'm not seeing counsel connecting it up and saying if i'm right about the curtilage it doesn't matter anymore whether there was a reasonable expectation of privacy in the car i think the district court reasonably thought look if i think there was expectation of privacy in the car we're done here you don't have standing and i don't see counsel ever saying that that is wrong so my st argument to that would be would be that mr th suppression hearing and mr mehlis b l t plea came before collins was decided so mr booth does make the argument yes they had been granted cert and i can't remember whether there had been argument in the supreme court but  collins was decided after mr miller entered his guilty plea so my argument would be that yes the illegal entry onto the property to look for and find a vehicle that necessarily so mick means that everything after that including the search of the car in the curtilage of his ho is unconstitutional so how does the presence of the people outside the house act your analysis given the precedent that we have concerning the officers our right to come up to the home to engage in a consensual encounter officer ham did not enter the property to engage in a consensual encounter with individual standing in the backyard doesn't matter what his subjective intent was yes it does matter because his subjective intent was to verify that the vehicle that he was looking for was indeed the green car in the driveway and at that point his subjective intent is to enter the property to recover the vehicle and that in itself is a search would you have any any case law that says that you can't have a dual purpose that he didn't couldn't have entered with the intent to talk to whoever was there plus to verify the car  that's what i'm having a little bit of trouble with so i had a mutually exclusive propositions there i would not say that they're mutually exclusive propositions but in this instance his entry w for recovery of the vehicle in other words he did not park his car on the street and walk up the driveway to speak to people he didn't pull into the driveway you know nonchalantly and park his car and go up to split to speak to people he activated his blue lights as he entered that property which is not an action that a normal everyday citizen can take he activated his blue lights as he entered that property which is you know a show of authority and he then went to the vehicle he verified the vin number and the tag number and in south carolina he would have had to have done that from the back because in south carolina there are no front tacks he verified that information which he would have necessarily have had to done standing in the curtilage of his home and then started asking people far do you know antonio miller where's deidre king and then when no one was forthcoming began asking for i d s and he specifically testified that no one was free to leave at least the green corps i'm not talking about the red car i'm not talking about the statements but at least the green car and the search of it have been something that is you know that would have been subject to the inevitable something and whether you did seek a warrant to search something are two different things in other words at that point when he entered the property he needed a warrant to search for the vehicle and to search the vehicle did he need a warrant i'm just pushing back a little i'm not sure on this myself but did he need a warrant i mean he had the g p s he had the rental agreement he had the permission of the owner he got it seems to me what he was doing on the current arguably was verifying the information he already had he absolutely needed a warrant and here's the reason why because not only did he have that rental agreement not only did he view that what he thought was the vehicle from across the street with other officers there was no exit circumstance and he knew the car had been disabled so there was no exit circumstance for him to enter the property thinking oh well the cars are going to move or you know he's getting ready to drive it he knew that it was not going anywhere there was time to meet with other officers in which to say hey here's what's going on i need you guys to go with me to get this up on this property to to see about this car and the car according to all the testimony was parked two to three feet from that house and no one went to get a warrant here and there was time he knew the car wasn't going to where there was no testimony ever that he said you know what maybe i should go get a warrant because it's so close to the house so it's your position that even if he could have obtained a warrant to do that the fact that he takes it out the inevitable discovery there is absolutely no evidence that he would have in the record that he would have gotten a warrant so yes that takes it navigable discovery even if he could have even if there was sufficient evidence for probable cause could have and would have are two different things when you're looking at what's the information that's available in the record and a could have is any day of the week he no i meant could have in terms of probable cause right you had probable cause he had probable cause and that means he should have gotten a warrant and there are no facts in this record to establish that he would have to counsel you told me that none of this was really clear until collins was decided and that's why it wasn't raised below but if that's true the officer and we would say the officer if we are looking at whether counsel below should have more vigorously raised the collins argument then we are perhaps playing error review and my position is that there was an it was definitely plain or it certainly playing today as we stand here today it did affect mr miller substantial rights and it would be a grave injustice for this court not to recognize it because it would definitely affect the how people view judicial proceedings i don't have anything more specifically unless we have more specific questions i'll reserve a little bit of time i have left i have one more question can we have that story about that but let's assume we don't take this as any preview of anything but  let's assume re rule against you end of term and that the search of the green car should not be suppressed and the evidence from should not be suppressed i want to with if that information  isn't suppress how would this not how would the warrant not the our how would the search of the house not be appropriate under the good faith exception as i've laid out of my brief the war itself is willfully and adequate there's nothing that connects mr miller the vehicle the residence other than perhaps his presence on the property with th after i think i understand that if i cut you off on the good faith i'm apologize but i'm right now i'm not focused on where the warrant itself was that with rights that understand your position you may have a little bit of a different take to some extent on it but i'm really talking about the good faith exceptions so if you could focus on that please my time is expired as a ok so my personal belief is that  it falls under the exception as being a bare bones affidavit it's wholly lacking in probable cause and that it's so facially deficient that officers executing could not presume that it was a ball the officer who sought the warrant officer brown provided the information to officer crane who then got the warrant the officer who executed the warrant was officer jordan so the information in the record as to what officer jordan knew upon entry of you know and execution of the warrant again the record is very if that's a real word i mean it's topsy turvy about who knew what when and there's the information in the record about what officer jordan executing officer knew about i don't think the question is  that was officer crain and officer around had called him and supplied the information my only point about what the officer executed in the warrant knew is under the mckenzie good case  it was uncontroverted that the individuals who saw the warrant also executed the warrant so they were executing the warrant based on information that they had provided the magistrate and also information that they knew but had inadvertently failed to provide the magistrate in this circumstance you've got different officer seeking the warrant providing information for seeking the warrant seeking the warrant and then executing the war because he only raised the trespass theory in his rebuttal argument at the suppression hearing that's why the district court didn't make a ruling on it that's why we don't have an adequate record on it and that's why this sorry i didn't say that he did make a curtilage argument in his reply oral argument at the end of the suppression hearing but ruled twelve requires a motion to suppress to make the arguments that you're going to make before trial that serves the salutary purpose of allowing the government then to present its counter arguments to the district court which allows the government and the defendant to then focus the witness's testimony on th particular points that are relevant to that which was not done here is resolved which allows the district court to make findings of fact and conclusions a law that allows you then to review that now judge harris pointed out a few minutes ago talking to my coll well there are some gaps here and there that's correct judge harris and that's what happens when defendants don't make the proper objections in the district court you don't get proper records and you don't get findings by the district court so therefore this claim is reviewed for plainer and plain and it is our submission that even assuming you were to find at this point that this is an error it's not a plain error and a plain error requires proof that the error was clear or obvious in here's why it isn't the fa developed at this record again this is not the best record in the world because you should wasn't right it's shows that most that this factual scenario is somewhere somewhere between call ins on the one hand and the law can talk situation in kentucky versus king on the other it may well be an appropriate case where the issue is squarely raised and it's presented to this court that this court might say on the set of facts governed by call ins or governed by kentucky versus ching but that this point this court or any other court of appeals has a clear rule that says that on this scenario this is a call ins there and is important to notice that in it's supreme court said no but in this case we have a closest to the scenario to the knock and talk situation and so because you don't have a clear rule of law in this scenario from this court there is no clear o bvious error for planar review and therefore the defendant loses on that particular crown the court didn't have any specific questions with respect to the search warrant issue i am happy to answer any questions you have both as to probable cause both as to one thing with respect or alternative theory on inventory the defendant argue that well maybe there could have been an inventory because officer hamm said it was customary for his department to inventory all cars and been reported joint appendix the when he heard that the officer had been there he sent two of his employees out to get the car which means that the auto the two employees could easily go onto the property without violating the th amendment because this would be a private search and just bring the car to the officers where they do the inventory so there is no underlying defect in the inventory here and in addition they consented to the search of the car but if you have any questions about the search since my colleague wasn't didn't for the search which officer was the leader of officer crain but all of the information was known to them the defendant hasn't made a collective knowledge argument that he wasn't allowed to consider all the evidence so we can assume you think that the  all the officers knew that is correct that there is there is an argument about collective knowledge of the officer of the recent case law about vertical and horizontal argument would be that the knowledge in this case satisfied defendant has not made any argument that you have to sort of exclude some of the information known to officer ham but i would say again in addition to the information known to the officers under a mckenzie good one of the important points of the supreme court made in leon about in determining good faith is that there division of authority in the judges who consider this issue that goes to the thing and you have a situation here where the south carolina court of appeals judges said it was a good warrant the supreme court of south carolina said it didn't the district court in this case said it did when you have that division of exception depend on your success on the search of the growing core yes i'll have to be up front of chordal but what happened was the officers found the twenty two grams of suspected cocaine in doctrine does not apply to us your position i don't believe that there is again that he would have had to seek a warrant in the circumstances that happened here but as i tried to explain to all departments and alternate basis here for why the officers would have been able to take the card image or it is that the the you save owner had sent two of his employees out to pick the car up they had they actually went on property but then the officer said you gotta hold up they could something of a partial record because the issue wasn't raised properly in the district court in the officer say we know once we were on the property it was a police matter it was it was a police matter but in terms of the evitable discovery here this this car that was over would not have stayed on and on miller's property for very long under some particular point the officers would have been tiled but take that car off his property miller couldn't keep it was overdue if the employees had gone to pick up the car is it clear that at that point they turned it over to the police why don't you just bring it back to the bone again i understand there were some testimony we don't i have a complete record on this again becomes indicate that at the normal course of events when a car goes missing if the rental companies employees pick it up that they then turn it over to the police rather than just bring it back to the current it's a little unclear i'd have to go back and read mr day's testimony get a seemed a little bit the reason he sent them there he said you wanted to get the key i believe let me see if i can find all these two pages he says on page forty six of the joint appendix i was just trying to get help to get the keys but because like i said we couldn't reach contact with anybody to know what was going on  and then he indicated that tell your employees it's going to be a while you're not getting the car back right away but at some point that car was going to go back either to the rental company where they would have issued a consent the worker bee and they actually did in this case that they later this car would have been taken off the miller  even if the representatives the owner had showed up at the scene the officers asked would it have been consistent with richland county policy to return it to the owner prior to conducting the inventory call ins applies to our alternative argument is that the inventory here would have been proper because there is no point at which that car would have been intitled to stay on miller's property forever it was going to come into the hands of the police by legal means sorry not completely get yes but it sounds like you're not necessarily contesting the argument that your colleague made about the requirement that the officer would have obtain warrant you're can't you're looking at the inn than torrie as the basis for yes that described is not that they would have gotten a warrant and then pursuant to the warrant that they were to search the car it was that testified that it was always the case that didn't inventory would be done when we recover a car that has been reported stolen so that's the inevitability that would have resulted in the seizure of the twenty two grams of suspect now for the questions we asked to affirm the judgment thank you here as far as the argument being forfeited i would again point to mr bloom's raising the argument in the district court again perhaps not as fully as they could have but it was on the table and the district court certainly could have addressed the issue indeed and in the order the district court did not address the inevitable discovery matter so it would its within scuse me the district court's discretion as to what it might or might not address in reaching its conclusion so there's while the evidence excuse me while the record is not entirely clear at this point it was raised and i would would argue that plain error does not apply but if it does i still believe that mr miller prevails based on the t t and so i would argue that the district court should be reversed that at that point counsel can ask you something and you know we have evidence in the house we have the evidence from the green corps we have some statements and we have the evidence and the writ is if we were to think that evidence in the car and the statement which you know should have been suppressed does that make any difference in the outcome here but not the evidence in the green car not the evidence and it doesn't really make a difference because the evidence that led to their search of the residence came from the green car so that would be if that was an error that would be all right or most error in your now i will say testimony when she wrote her order he testified that the reason he opened the door to that green car was because where there's one gun there's likely more he didn't open that door to do an inventory search he opened the door to that green car to look for evidence and so i would argue that his subjective reason for opening that door the st time was not to do an inventory search although he said oh well yes we would have gotten to that he opened that door to find evidence and that is wrong but you're not challenging the search of the red car right well only in the sense that i will say that counsel below did waive standing expressly waive standing but he did not if we're going to go the if we were able to go the route of the collins argument both of those cars were in the courage and mr miller did not waive any argument as to any vehicles in or any property in the curtilage of his home and he has standing to raise that defense counsel specifically said we have it wasn't just standing on the there was an allusion to sandy but we've got no objection to the search of the red car and it is for me because you are right that the logic of this curtilage argument would extend to both that's just even more reason why the district court would not have been on notice that there is some argument at work here that makes the standing issue of the cars irrelevant well yuri you are right that the theory that you are now propounding is inconsistent with the concession in the in the written papers well the best i can do for mr miller at this point is to argue that both of the cars were in the curtilage of his home and that he had the right to assert his th amendment right as to the his home and the cartilage and therefore the red car would be covered even if he didn't have even it was somebody else's property he would have standing to his sword his th member right in his home and  curtilage and also the in other words if if the owner as i said in my brief if the owner of the motorcycle and collins had signed a consent to say yeah you can go on joe's property and look and see if s my motorcycle that would not cure or that defect no but i'm all i'm saying is if the owner of the motorcycle had done that that wouldn't cure the th amendment intrusion so to me the inventory search of the vehicle is or is a red flag based on the ability you got to get in you got to be in the proper place at the proper time and other words you have to have a lawful reason to be on his property and officer hand did not at that point because he had probable cause he knew where the vehicle was it was disabled he had time to call his friends other officers for them to stage a an entry he activated his blue lights when he came out of the property it was in the curtain of mr miller's home i thought the whole point of the united ripple disc discovery exception is that of course there's been an underlying constitutional violation otherwise you don't need an exception to suppression i don't i guess i'm not understanding your argument that if there was a constitutional violation then that means you can't have inevitable discovery because in this circumstance he intruded into the curtilage there there's your  amendment violation there is no evidence to show that he would have gotten a warrant to get there right so there's your and then there's not there's no attenuation from the from that illegal entry to the discovery of the materials and in the cars i think the question is the inevitable discovery doctrine presupposes a constitutional violation i would argue that you still have to have some between well in other words there's certainly not enough time between the illegal entry and officer da way opening the door of the car to find the the grams of crack or some inventory search it's all scuse me it all flows from the illegal entry and so therefore it it doesn't work