good morning may it please the court i name is kate schwarz i'm here today on behalf of the plaintiff appellants i would like to reserve two minutes of my time for a bottle please give your honour's this case which is before you now for the second time is a case involving dramatic state overreach by the arizona attorney general's office which executed six mass caesar warrants that were utterly devoid of the individual lies suspicion required to establish probable cause  like to begin at the outset of discussing the fourth amendment qualified immunity issue in this case by emphasizing that the contested constitutional question here is not whether individualized suspicion was required but rather whether the challenge satisfied the individualized suspicion requirement in other words although the supreme court has recognized some narrow exceptions to the fourth amendments main rule requiring an individualized suspicion of wrongdoing the defendants do not take the position in their brief that any that's correct your honor and so the question here is whether individualized suspicion was satisfied by these warrants and they were not because of the fact that each of these warrants was premised entirely on profile evidence these warrants authorized the whole of what ended up amounting to thousands of fun transfers and millions of dollars simply because each transfer matched in the sense general criteria that was deemed significant by the attorney general's office based on past investigations of suspected drug and human smugglers counsel is they is the are the funds here seized on the grounds that the funds were guilty is this one of those is this one of those kinds of forfeiture cases ye don't really have to think about them individualized guilt of any particular person we have to focus on the guilt of the fund so to speak that is that that these funds were being used in the illegal illegal transfers that's correct your honor but there still needs to be individualized suspicion with respect to each individual funds transfer individualized suspicion that each transfer was guilty and that is exactly what was lacking here when when the warrants were executed except their evidence it is that when the executed the warrant ninety percent of the time the money turned out to be guilty that's  a question but it was a question do you do this again without know they were claiming that in the past ninety percent of the time the funds were guilty but the reason we can test the validity and this is very important is because the attorney general's office treated these funds as though they were guilty automatically for matching a profile unless and until they were proved innocent by the the purported suspect in this case the sender or intended receiver of the funds so there was a call center of release program required by these warrants which was a call center staffed by law enforcement officers and that individual ised facts were only collected and individualized assessments were only yet made after the seizures were already carried out and then only if the intended receiver or the sender contacted the call center and then the onus was on the sender or the receiver to persuade the law enforcement officer in their unbridled discretion that the purpose of their funds was for an innocent reason looking at the name one of the name plaintiffs in this case javier torres drives home why this is so problematic your honour's mr torres called to the call center and explained to the law enforcement officers that the purpose of his fun transfer to him is that kaz was to repay her for a car that he had sold on her behalf when she moved from illinois to arizona car the law enforcement officers were not persuaded by that and his funds were deemed a criminal and forfeited now later mr torres in his desk has testified under oath in their depositions is that as corroborate same explanation was provided this perfectly lawful explanation and yet today eleven years after mr torres's funds were seized the defendant still cannot point to a single fact indicating that mr torres sent his funds for the purpose of facilitating drug or human smuggling but his funds were forfeited deemed to guilty for purposes of these statistical analyses and his money has still never been returned to him so as you can see the numb the the statistics that were offered by the defendants are flawed because we only get there if we accept the fact that these warrants operated not only on a seize first investigate later basis but on a basis that put the burden on the individual to prove their innocence which flipped the government's fourth amendment burden on its head it is of course the government's burden before invading and some of the looks much probably those in some of the more usual situation let's say the police was no individualized suspicion about these funds here i understand that that's part and i understand but i'm trying to follow up on what you said but look because i mean all that stuff at the back end whether any of that makes a difference and i'm not sure why it makes a difference your honor it only makes a difference you're right it is a side point it only makes a difference you're playing to the jury it's it's the reason it's important in the context of this case is because of the fact that these statistics sound very compelling and i make that point to show only that the statistics themselves are flawed and invalid but the statistics are actually a red herring because even accepting their validity they add nothing to the in the way of individualized suspicion they only speak to the strength of the criminal profile relied upon as the sole basis for the purported probable cause in this case and there is no precedent for finding that probable cause determination may rise or fall on the strength of a criminal profile all of the law to date holds without qualification that a profile alone is not enough to establish probable cause this court in the case of forty nine thousand five hundred seventy six dollars said unequivocally that in the fourth amendment context a criminal profile quote cannot establish probable cause and for that reason it went on to hold that matching a drug courier profile could not establish probable cause to justify forfeiture likewise in the supreme court's decision in florida versus royer the supreme court refused to accept that every nervous man paying cash for a ticket to new york city under an assumed name and what you mean your honor the defense would like this court to ignore the fact that they executed pure profile warrants and grant them qualified immunity because of the fact that judges issued these warrants now there is no question that after messerschmi that they prepared it because absolute immunity and believe was granted with respect to that particular action previously by and say well if i were you i would but i mean might get one vote that way but it is certainly true that they prepared saying is reasonable for so who knows the law would look at this and to do so and say what and would say but it isn't what i understand that there's no way that the attorney that there was probable cause with respect to every individual transfer that could be encompassed by every five hundred dollars sent from any one in twelve states to arizona over the course of however many weeks though i see you saying this would be it would be obvious just simply be on a duty to to to look through the affidavits and everything that was in support of this in which case there's a lot of material including a lot of statistical studies telling them precisely why there is a high probability that he's going to come across illegal illegal funds your honor and the they warrant affidavit certainly are voluminous there's no contesting that but even glancing through these warrant affidavits it's quite evident that all of the statistical of your has come from a profile evidence they the warrant affidavits talk about trends that are identified with respect to drug and human smugglers and explain the basis for the criteria ultimately the information in the warrant affidavits and all of the information in the defendant's brief here speaks only again to the strengths of the profile it's not what what doesn't doesn't messerschmitt tell us that that there that our responsibility is to find that no reasonable jurist would would have approved the warrant yes this court if ok and in this case we have multiple jurists in arizona who approve this it does appear a court level and we have a panel of three judges of the arizona court of appeals who also approved this program or similar programs that arizona you're on aren't the reasonable notice and i mean can you just visit before you answer before you give me your explanation can you just as an answer make sure that i'm correct in the in the in the factual hypothesis that i gave you yes but that's a predicate there are there are we have we have number of judges i want to say that maybe four or five judges at least in the were behaved unreasonably in reviewing this program no your honor i would disagree with you there i think that this court would be finding that the specific judges who authorize the warrants and that the defendants themselves acted objected leon reasonably but that is the the the qualified immunity inquiry never looks to decisions that occurred after the point at which in this case the warrants were executed because the qualified immunity words but it did look at a situation where a profile was offered as the sole purported basis to justify an arrest and said that matching drug her profile in that case was not adequate for the  have not pointed to any arizona thank you for correcting me any arizona state court decision honor but that decision post dated all of the seizures in this case that was and in a similar litigation that was brought by western union with respect to the sweet twenty one warrant and so that is not have any they please the court i'm dominic ray and with rusty crandall i represent the defendant polies we are not working on a blank slate today in fact far from it nine judges have weighed in on this case  immunity available to a police officer that's at ten fifty five in the earlier decision so we are now the reason we didn't win on absolute immunity across the board last time was that this service an execution function would be treated as as if it were  merely a police officer performing the task and not an attorney additionally my opinion on the matter as it into says but doesn't matter because in messerschmitt itself at page five forty one the court explains that messenger messerschmitt himself submitted that application so the same officer was involved there as well so we're on all fours with the precedent from messerschmitt on the subject of qualified immunity there are also the but there is individual ised reason to be suspicious of these wire transfers each and every one of them had probable cause as those many judges have held so far in this in this protracted litigation and the reason is  it as profile evidence which is a term used usually in the context of human behavior because we're talking about property being seized there are only objective features to property property doesn't have shifty eyes and sweaty the only things you can look to for wire transfers are traits like these so i understand why it why the other side compares it to profile evidence i'm sorry that's just not what is that that's just not true no but i i think i can clarify in a way that that's what you tell me what you tell me why you think it's not patently wrong in the case of many wire transfers you don't have a person that you know anything operandi avodah it's evidence like that that was the basis of these warrants to show that each and every piece of property here had probable cause we have we have case law that says you can't base one's strictly can make lots of arguments like that but i don't see how you can say that these warrants comply with ok so deal with you support phone from asian so this court and others have recognized the role of modus operandi evidence independent of any p s or there's no doubt about it i mean but we have also said you can't base a want only on profiling it's you have to specific facts a lot difficult to see that's let's just wait for me forty nine five seventy six forty nine thousand five hundred seventy most provide grounds for these i'm suspicion cannot establish probable cause citing lots of cases yes how do you distinguish that i distinguish that because that involves a search of the individual that then turned up the that says it's not allowed for property only seizure cases in fact this has a let me let me let me see if i can come that judge because he's question from a little different from a little different angle let's suppose that let's suppose th and yet and here's why we think that this is illegal he says do you have any other evidence and no we don't it it's just that we got a ninety to ninety seven percent level of confidence that this is this is a coyote related transfer profile i think that each of those cases involving drug courier profiles you know where the line is on probable cause is an inexact science and the various traits that they call profile  are not enough to establish probable cause but that is itself kind of an interesting thing because in for example united states versus one hundred twenty nine thousand seven hundred seventy two dollars which we cite extensively in this case the court identifies eight factors that was another one of these import cases the court identifies eight factors says five of them are profile and three of them are not now interestingly one of the three that is not is wrapping the money and fabric softener sheets and my friends on the other side cite that that page seven is being really decisive how that's so individualized that's no different than what we're talking about here that's just modus operandi evidence which is exactly what the arizona supreme court explained inside the second circuit case of  marine midland bank which goes through this discussion about if you have officers who establish for the court what modus operandi is like for certain criminals and certain criminal groups that suffices to create probable cause it would suffice if the warrant was sure but some of the outcomes are sort of suggest otherwise this court's precedent in us let me or maybe the question more pointed do you know of a case of the distinction that you are offering i do not know ok so give me what is you think your best case suggests that distinction based on the outcome or this court's decision in united states versus five million six hundred forty four thousand five hundred twenty dollars accept volume six take six it's the lower court's decision that case is a great one because it involves a couple of budget rent a car agents who go and find one of their missing vehicles and they find in the trunk actually after driving the car to go have lunch together which is kind of funny five point six million dollars and the police arrive and they promptly seize that money they know nothing about the owner absolutely nothing about the owner and yet that was a proper seizure it's not necessary to have some sort of specific tied to mr torres or to a specific crime all you need is probable cause something more than mere suspicion to believe that this money is involved in criminal activity and that case is a you know you find five billion dollars from the rental car it's just wrong money in the wrong place you know why why isn't that individualized suspicion it's no different than saying that a transfer was a person to person western union transfer during these ten days when we know that there's high smuggling for an amount that we know that's all of the traits that you could line up as to the rental car and its property you can also do something analogous for these transfers and in our case at the very least now i feel obliged to to discuss a long it's so it's sort of if you do that then you would use everything to us at this you know they outside and they have a side the house and i have a dog that sniffs one i say well you know it works you know he's right ninety eight percent of the time so it's just really just it's just you know know that but the problem is if you if you think that you then everything becomes and i was statistics and profiling and what i'm saying and what all the courts below have held is when you pile up enough of this evidence and you have the confluence of what may look innocent on its own or mail a guilty on its own for that matter but you pile up enough of these things the confluence of all those factors can create probable cause and that's what six judges have held and as you know i wish you wouldn't tell me how many judges are who make mistakes basis for the windows of time the seasons for example was based on information obtained from confidential informants former victims of human smuggling and the logs in various stash houses from that they developed the warrant strategy in the first place by the time that warrant eighteen which is the earliest one that's disputed in this case is executed there's already a bunch of data from the previous warrants which just goes into from twenty nine states is anybody who sending money home to a relative is going to have it seized because there may be some illegitimate activities going on there's no question pretty sweeping this you could have these twenty nine states going to thirty five states where anybody want to send the family money is going to have forfeited although he may have a right if the system works properly to challenge it and get it back that the whole judge i'm convinced by the warrants and affidavits you may not be but that only shows that it's not clearly established law the disagreement with the other you know if there is any only shows that it's not clearly established they issued warrants and i hate to treat this so quickly but it's kind of the scuse me it's kind of the straight forward part of this case we can disagree on this or  your honour's can disagree with the other judges involved but this was at the very least a debatable point the standard that no reasonable office officer would have served or executed this warrant is really the end of the question i enjoy talking about of the issues there are two issues in that respect we can select one that's right and we also could determine whether it's about constitutional violation and then say that but  it's an effort by the state to go above and beyond and try to provide a quicker way to get your money back it's not required i don't think the court should fault the state of arizona for endeavoring to to try a good government measure to lead to but i think this last point your honor is not actually before the court ok know we've gone way over the time here my opposing counsel said the probable cause does not require the state to that a thousand that is true but probable cause does require the state to pay to have probable cause that is individualized with respect to the person or place to be searched and the person or thing to be seized and that is what did not occur in this case it is clearly that is clearly established and the my cousin counsel cannot point to any case law that says that a criminal profile is alone sufficient to establish probable cause i can't speak to what they said is their strongest case for getting five million dollars puppy to how do  counsel the proposition that you've given us of course is a is a is a good solid proposition but the case is that they're always referring to it do involve people rather than seizures a property probably the property was the sort of incidentally when one was found on some identifiable personally usually a drug profile case where you do with marina blood because that seems to me to be the one case in which we do have only evidence about wire about some kinds of transfers of money your honor at the lane midleton case is actually quite distinguishable in that case it's important to point out at the outset that the vast majority of that money was ordered by the court to be returned and with respect to the money that was found right there was a right there that's because they had with big seasons like six million only one point seven have been have been traced to two actual bad acts but the one point seven it looks like was traced through just through transactions but i don't i don't think that it really helps you very much well that the narrow with specific markers that were tied to the colombian drug cartel that were found probable cause was found with respect so there were much more there than us then a profile there were cartel but there was but there was individual ised great cause with respect to those funds as to why those funds were criminal the fact that there was a marker specific money orders that tied them to a known drug cartel is an individualized fact about the funds all we know in this case is that the amount of money exceeded five hundred dollars it was sent from a so called corridor or state and it was intended to be received in arizona or sonora mexico that is it that is all inherently innocent criteria and that is what distinguishes the case regarding one hundred twenty nine thousand dollars the fat the fabric softener is what  scales in that case because wrapping money and fabric softener has no innocent explanation to it but wiring somebody five hundred dollars in arizona has a million perfectly reasonable explanations for it i think it's kind of important in closing to just drive home the point as loud that the defendants have always acknowledged that purely innocent fun transfers would never have believed be swept up into these sweeps they have never denied that and the reason that is the case is because there was no individualized suspicion with respect to each transfer going back to your hypothetical previously judged by b if there was individualized suspicion in other words more than just completely innocent criteria that amounted to a profile the defendants would not be able to say that yes inevitably there is going to be lawful fun transfer swept up because we have individualized suspicion with respect to all of them in which case all of them might be criminal they couldn't say that here and i think that really highlights the fact that this was pure profile evidence we have clearly established law that that's not acceptable to establish probable cause and so for