for united states versus charley and we'll begin with mr much case was did mr sarlin know that there were drugs in the box in his truck so it's a knowledge case and that's why the admission of the testimon the officers testimony conveying the substance of the tip from a confidential informant wearing established working relationship with the government was error and their testimony show knowledge it shows knowledge in a couple different ways should run the and if you look at the entire thing right before the part that the objection was made to he says i received information about our tour of about three or four weeks before  this is helpful but it is so this is a testimony i'm looking to pick six ninety six of the record yes the answer was on that certain date the information i received was that there was a male a spinning man by the name of arturo driving a white avalanche that's going to be delivering  prosecution but the officers that quote rookie mistakes and so they were needing to explain kind of that they weren't making rookie mistakes they were in fact following up on a tip i don't think that that's the case shawn that term was used in closing argument but it was not used earlier there were things that were said that were valid cross examination such as sergeant had us made a statement that mr  said i don't want to go to prison and my wife had nothing to do with this she doesn't know anything now both of that statement wasn't long in the report two and a half years later at trial after the in remembers that so that is challenging a legitimate saying that's not challenging their investigation in a bad way but they were no it's not a rookie mistake i mean what you're saying is making up a story that's not a mistake that's a lie what was the rookie mistake that you all were accusing the officers of it's odd jarana if you look at page seven fifty nine and seven sixty which is where the term rookie mistake occurs he doesn't really follow up on as best as i can tell what he really means is the officers assumed because they found mr starlee with the box and there were drugs in the box that mr starr lee was guilty and that they should have open he was not i think this really important to change he was not challenging the beginning of the investigation he was not challenging why did any officer do anything he was saying don't make the rookie mistake which is terrible terminology my opinion but he said it don't make the mistake of assuming you on the jury have to look at all of the evidence and determine whether allows honestly cannot tell you the record in that seven fifty and sixty what he thinks the rookie mistake is i think it's just bad language i'm not denying he said it and i'm not denying that that's critical the officers but i can't tell what he's saying there i think he's saying the officers were too easy to think they have this case wrapped up because this is an open and shut case there's drugs in a box in his truck are you conceding that if the rookie mistake comment referred to the initiation of the investigation or or to the stop first let's look at when it was admitted detective contreras was the government's seventh witness ok there was no need seven witnesses in to be talking about something that happened at the very beginning of the investigation that involved out of court statements from well and in the light of that he was a seventh witness was that the testimony regarding the confidential informant cumulative of other testimony that would have sorry's knowledge now ok why because the question really comes down to this is a hidden drug case in the same way that it would be if it were out a port of entry at the border there is rugby but how many people get paid a bunch of money to transport kitty litter that citizens that infer knowledge if somebody says i'm paying a thousand dollars to take this box of kitty litter down the street i got a no that's a little weird ok if we knew it was a thousand dollars your honor or even really any sum that's just a very strange thing people don't typically do that is sort of randomly this is give someone kitty litter to transport ok so that that would put you on notice that this is kind of weird like why am i being asked to do this isn't u b s being given a box a package to it deliberates some random guy that's supposed to be delivering kitty litter doesn't that give him notice if we are on the jury that would it adds that a real sense that he knows what it's doing because if you look at the harm on the whole record you have the mishal comment about he received information about arturo three or four weeks before this is the testimony yes that's  record so it has zero out it's not a problem for you in the sense that it's not objected to when it's brought in the fact that the officer had a confidential informant right that that was an object to add you know about this confidential informant this later testimony that you did object to is simply flushing out all the more well there's testimony about the fact of the informant ok and i don't think i think what this court has cautioned and did so very recently in united states versus sosa and last year united states versus kizzy is you have to be careful extremely careful with this kind of background information and so that the existence of an informant may or may not be objects more i if it were only  yes yes is your point merely saying i got information from a confidential informant that may or may not be inserting hearsay but once you get the details now you're starting to talk about what that's out of out of court statement if i think that's jurisprudence going back for decades has suggested that even the i got information can be potentially tricky but given the particular facts of the case it may be either ok admissible or harmless but when you get into the details is where we're getting into a testimonial statement and you know i hear what you're saying i just want to make sure i understand else you need his name yes arturo the white avalanche correct and then i think you get it considering harm if we look at the earlier comment that was an object to about the three or four weeks and the later comments about did you know at that time what he had yes i see what yes six ninety four as i received information from confidential informant about three or four weeks ago and there was no objection to that ok and and that the fact that we have it stretching in terms of harm from three or four weeks before to what he knows exactly of that certain time is really telling the jury we have a witness who knows that this man is involved in delivering narcotics and dr jean's i think is why this isn't just haven't talked about but agreed with you on the confrontation clause then the right remedy is a new trial correct term with the evidence you want suppressed still coming in but not not the reference to the confidential informant or else procuring the confidential form or to come tell w well i think there's one interesting twist there and i do think for the reasons i set out my brief that the search the repeated searches go too far and we can talk about that too but even if you even if you were to disagree with me on the consent it may be that we there should be a hearing if you have any questions about what statements can you can bothered me that the magistrate judge specifically asked the prosecutor and are there any you haven't raised that have phrase that it should have been is that that testimony should have been suppressed and that's not the kind of test might get suppressed that's how you cross examine the guy you know it's not in europe or your memory and now in this case if we sent it back five years later away every year you mention it for the first time two years later that that's cross examination that's not because the fact that something's not in a report doesn't mean it didn't happen you know that's pretty dry and sometimes people don't put stuff in a report but it did happen and and retrial but but if that the premise of that is that it has to be harmful error yes and if it's harmful i believe you know we've talked about whether the whether the information that came in through the into the informant's tip was cumulative and what about the that is a jury determination is that really a confession or is that just a skier i don't want to go to jail for transporting can you later i mean i don't even know if i thought i had a box of kitty litter in police or opening it up and sorting through it how would i even know if it's in fact sixty thousand dollars worth of meth if i'm totally innocent i would be going what are you guys looking at what's going on i would be going my wife didn't do it i you know don't put me in jail i mean that to me here there's another way to take th circumstances of the case are i think are important right he's been put off to the side his he's watched them rouse his wife handcuff her toward her away there's all sorts of things been going on for an hour there's cops coming and going dogs coming and going i think it's a jury question again as to what they give it because as judge duncan said it's in a sense what is the record what is the record reflects about his his quote unquote confession sorely was upset and crying and said i don't want to go to jail i don't think it's linked directly to the drugs but i still would say even if they said to him and i can't mean i want to say can't remember this being there but perhaps so i think it was perfectly fair for the prosecutor in this case to go to the witness who had had contact with the c i he was the seventh witness at trial but he was also at the witness the lead detective who had had the contact with the cia wouldn't have been your contacts because isn't that when you get into the confrontation clause problem because that starts looking like testimonial evidence in retrospect we might say that the evidence was so and we do say that the evidence was so overwhelming that it might not have been quality of the investigation and so she was trying to link together why are these police looking at the situation but that's only one aspect of the confrontation clause analysis your honor of course there's the hope every question of whether it's testimonial as your question and this case is indistinguishable from politics or in which there was a three actually recording of this no go ahead sir there was actually a recording of the statement played for the jury that identified the  person by first and last name it was a statement where was it coming from in politics the statement was from a caller who was calling to get the police to come intercept a person who was dealing crack cocaine and the statement was there's a this person can be poly to work he's wearing a white shirt in green shorts he's driving this kind of car these how it starts looking different that starts looking like these kind of emergency cases or you know where in the statements made in a different context and you infer that it's not intended to be a testimonial here you've got a confidential informant speaking to the police it's do you do you see how i mean maybe you disagree with it isn't that a little bit different for confrontation testimonial under the undercurrent no this area of the laws been developing of a sense crawford so what's the test that we look to under ohio versus clark the test is whether the primary purpose of the conversation was to create a substitute an out of court substitute for in court testimony i got to tell you prior precedent rule aside i'm not sure i get followed or it isn't the whole point of somebody calling in whether it's the fault or fact pattern or informant is a kind idea to put somebody in jail isn't the purpose of an informant to inform about crime well in this instance the source was the source in this case was was telling the police there are narcotics at this location with this person at this particular to provide statements that should be used in court to put some in prison well going past crawford is and as you all of acknowledged that the test as it has developed over time one of the factors that the supreme court identified was whether the witness is talking about something that's happening in that moment versus talking about past events and that's the thread that of the supreme court's logic that gets picked up in politics so even setting policy or sided you carry that thread to this case you haven't and  you have a source who is saying to the police this is arcsin to happen this is this is exactly what's happening right now this person is in this location with these drugs and because that is that is happening right now the officers can arrest that person with the drugs and then use the drugs which are which can be used to to make the prosecution you don't need a source a statement is necessarily to make out a drug prosecution as this court has observed and that's why we this because i understand the rookie mistake rebuttal concept in fact i'm the one who raised it in this role argument discussion but in the actual closing argument the prosecutor is talking about that and then says based on the information was looking for an avalanche found or turo they saw the avalanche they saw the person they ran the plate they found her it was arturo they stopped they got the warrant and then they said they were looking for a drug dealer these factors all go to knowledge and the intent to distribute because when we come to the end what he's telling you is that he had the box to deliver any any don't know what it was ok so that's record on appeal seven seventy two so isn't that saying that instead of it just being kind of the background of how we got here this confidential informant tip is the proof of an all that archer a wasn't just taking some kitty litter oh my gosh i you know need a little extra money off solution pity later whoops there's sixty thousand dollars of meth in here but rather that he had knowledge so isn't that even if the original purpose in eliciting the information may have been ok or non testimonial isn't this use arguably a problem the prosecutor is mixing a lot of different threads together in the closing argument and i'd like to point out that it's also the rebuttal and not the initial closing argument in the initial closing argument there was nothing about the tip mentioned whatsoever it was only after the rookie mistake that you still i mean and i have no problem with rebutting the rookie mistake argument i think that's a totally appropriate in rebuttal and if she had said is look we an informant the tone there we weren't a bunch of ricky's you go ok but then she takes it to this point those factors all go to knowledge and the intent to distribute what is that referring to other than the ten yes and i acknowledge that the prosecutor did say that she did talk about knowledge and she talks about all of these all of these factors put together to add up to knowledge but she wasn't just talking about the tip as proof of knowledge she in that same passage that you're quoting from she also talked it went on to talk about the fact that there was two kilograms of high purity not that he had said that he had been paid to move the box from one unknown person to another unknown person into different parking lots that he did break down into tears when he was confronted with the math but he did say i don't want to go to prison my wife has nothing to do with this she mixed all these are factors together in other words we can affirm even if we find a confrontation clause that's correct under the harmlessness doctrine your  a similar confession there was similarly strong evidence and even though the prosecutor didn't mention the potential confrontation clause statement in the closing argument nevertheless this court on that evidence found that there are today you know if you have a couple of cases that say that wrongly criticized the prosecution and refused to find harmless error as a result because of the use of cases the statement that was related to the confrontation clause was one that was critical to the prosecution so for instance there's the twenty eight day case that mr lynch brought to the court showing that this defendant mr casey had been dealing in crack because they didn't find any crack when they went to the house and they took apart the plumbing and everything else they found only two tenths of a gram of of crack so they needed that testimony and there was confession in that case in the other cases similarly there are you're saying catching him with the drugs and his breakdown at that point is really going to override any other transport it but you just took it and then i'll send you realizing oh my gosh this is a man or that something is something that's exciting the police oh it's a mother the kitty litter wouldn't an ordinary person innocent break down because this isn't going to be a good situation right if you're innocently caught with a bunch of drugs in your car and you're going to kind of break down because wow that's a big right in this could just going to be your word against everybody else is that you didn't so wouldn't that be and other construction of his comments and not in light of his confession that he was being paid to move this box thinking well where we're on the record so i had a conversation with you for in the other side about what what does it mean to say  confessed can you help me where in the record can we glean what exactly was the substance in the circumstance of that confession seventy two to seventy three as i believe the cited record citation there your honor and what he said is that he had been paid to take the box of cat litter from a wal mart parking lot from a person that he did not know and he did not know and drive it to the restaurant parking lot where the police encounter time and  turn it over there to another person that he did not know so it's somewhat fanciful says to suggest that this would just happen in the ordinary course and that somebody would think nothing of this happening  but is the problem that the jury hears that agrees with your inference and then says and that stuff about the confidential informant that really seizes it on knowledge well in past cases where the evidence has been as strong as it is here even without his confidential sources statement this court is a firm based on harmless what is the knowledge requirement under the statute that he was convicted under it yes to know that there were there was a controlled substance he has it doesn't have to know that it  which controlled substance it was he doesn't have to know the quantities so all used to know is that it was a controlled substance was there any testimony that people use kitty litter to mask the odor of controlled substances  that there's probable cause and then there is of course inevitable discovery through an inventory search and on that the question of consent this court is again and again stated that a defendant has the right to before or after he was cackled in the back of the car before he was arrested is when the concert was given and there it was given on i'm in the your position would be wasn't feeling you know desperation happened to consent because he's sitting there in the back the police do that like so you know where we are in time that happens and that's within five minutes of the second daughter is a bit does the record reflect that while mr surly was in the car in the police car that he could see that going on the police rushing over to to the tidy cat box i do know that there was testimony that mr charlie had a view of some boat was what was going on with the search but i don't know exactly what he saw him on because he didn't testify to that effect that i recall i'd have to go back and he did testify at the suppression hearing and there was testimony from him that he could see what was going on with at least with some of the search but he was consenting to the search of the truck he had consented to the search of the draw not the not all cargo part of the truck but the whole truck right he considered the whole truck he did not restrict in time or method or any section of the truck or you can only look in the front or back or anything like right and the entire search took less than an hour as i understand it that's right it was a toxic only fifteen minutes more or less we don't know exactly when the search began but of course we know exactly when the search concluded from the from the video so it was this was all over in less than less than an hour and if you look at the video then you'll see that the officers are trying one method the dogs come in  would locate contraband in a particular location we'd have to disagree with the district court though if we were to affirm the basis that's right but the district court didn't have the benefit of your fly coelus i know in the district courts logic was premised on the idea that the quote unquote most intensive part of the search was that the dog snapped and of course we know that from florida versus harris that the dog sniff is only part of the calculus here looking at the totality of this confidential source had a three for three record of providing tips that lead to convictions and then the mr charlie behavior both at the restaurant and when he was stopped all of those contribute to to probably causing there was still a fair probability especially given what we know now which is changed made perhaps what the district court would have said in retrospect ok thank you you thank  the hearsay testimony that came in through an agent that he is really was one so i think that this sort of testimony is in fact testimonial is fairly well established by most of the jur pollard another important thing about polar ice your point basically is we don't have to go on back we can we can do this even accepting all i think that's correct they themselves say under these limited circumstances and another thing i would add to that you know you kill in this point maybe i shouldn't is that davis and him  both involved nine one one calls of the supreme court and they came out different ways so what it tells us is the primary purpose to us looks at the circumstances of the particular case and what clarke tells us is that you monger things you look at precise an area where the confidential informant talks to the police in some ways allowed to testify maybe the police about what the confidential informant said that we have that anywhere i'm not sure that we have it in and we have it very close in far of testimony is improper and is a constitutional violation you have two minutes you want to get started explaining why we can't affirm even if we accept your convert yes that's where i want to go next was i think i think that the problem is in judge change read to us from the prosecutor's argument she uses it very strongly as judge higginbotham said long ago in king that when the prosecutor must've known the strength of the poison when he reached for it and that's what happened is saying don't worry put your dogs aside don't think that this man was just nervous don't think this man was just scared worried about what they take his wife into but what do you do with it you know he's guilty but what you do with a consensual search and the knowledge that he's being paid to transport those two facts to get the confession again if it were if there were evidence in the record to change myself thousand dollars for the promise of the record of a substantial payment then that might cut differently but on a beyond a reasonable doubt standard the mere fact just news being paid we don't know what correct and under a beyond a reasonable doubt standard i don't think that gets the government to where it wants to be then i see you saying they could not have proven their case without this evidence no i'm not your honor i'm saying that it tainted the jury's consideration of the as saying if they had a reasonable doubt then this might have solved that doubt and then that that's the problem is how don't know probably was that you're saying because under the chapman beyond a reasonable doubt stay with the jury have reached the same verdict can we say that has the government established beyond a reasonable doubt the jury would reach the same burden i don't believe we can say that on this for good and i would ask that you reverse thank you ok thank you we appreciate everybody's arguments and mr lynch i notice that your court appointed and we appreciate your service and we of course always appreciate the service for both sides says thank