right welcome to day one of the west courtroom pal i'm honored to be sitting this week which judge degraded jolly mississippi and judge or so on from texas so we are the consummate circuit palin that we represent all three of the states so hopefully they'll wait us and get answers we have a robust docket for today and this week the main rules is just to stay in that mark of phone we do record the proceedings and sometimes if you get away from the mike it can be a little bit difficult to hear and occasionally people in the audience like to hear what you have to say also so if you'll just stay in the mic both in terms of your argument and answer in the court's questions that have been found i think you're familiar with the red light system itself we just expect you to hear so having said that i it please the court good morning my name is silly or as a federal public defender's office and i represent mr williams to begin with i should ask for this court's patience and understanding this is my first world argument and i have to admit i'm a little nervous o court found the evidence derived from it was the basis for a later search of mr williams home and the district court found that that initial search of mr williams on person was consensual and that it provided reasonable suspicion for that later home search where you say he's a probationary typically subject to some you know searches cetera anyway so where in time and otherwise do you say the normal or additional ability to do probation or were in the sort of normal terry world the government bears the burden of showing that officer green riesling in this case if we say you're correct about the first search for the i'm so i think charlie your point is getting to the government's arguments remain in posse and it's breached that oh well even if the search was unlawful it didn't provide any evidence and i think it's important to clarify the timeline of what happened according to officer green testimony and i think the clearest version so i think i think so because the district court found specifically that the evidence derived from that initial search provided the basis for reasonable suspicion which was the standard required to later search mr williams home i'm in it's important to suppress that evidence because that evidence was the basis for his conviction on that route through i mean i thought the basis for the search the tip itself served by prison mission but the government is arguing that that is immediately upon receiving this big tent i'm from the d n a on that per se provided reasonable suspicion to search the circumstances approach the tipple loan in this case does not provide reasonable suspicion of course a tip in certain circumstances depending on its level of detail and its specificity can provide reasonable suspicion to search a home and this court for example in keith and i believe judge shelley were on that panel determined that when a law enforcement officer was told by another officer that he had received a tip from a business owner and the individual had been  suspected that those materials might use for a bomb that that could provide the basis for reasonable suspicion and either crew certainly that to put specific it provided details but in this case all we have is that the d n a at some point in time was provided of the record and he confirms he doesn't know the source of the ten he doesn't know when this information was produced and he didn't know any other details than by his own description that mr williams was involved in our katic sales so i think we have government's burden to prove that that search fit within a very narrow range of exceptions to the work requirement and it's the government's burden also to prove the facts necessary to justify that search and so i do i think here it was that that information transmitted to him from the d n a which itself had received it from the new orleans police department that's all he knew that someone at some point in time had said that mr williams was involved in our conduct sales and i think it's important to highlight officer green himself didn't think that this was reasonable suspicion to go immediately knock down mr williams door and search his house top to bottom officer green who had previously been planning on terminating mr williams probation early so thought this was a model probationer had no reason to suspect him of criminal activity he didn't even think this was enough to go back on his recommendation to terminate probation he didn't think that would be fair he thought he needed to follow up on this tip to find out more information to make sure it was true and that was his plan his plan was to go figure out ok is there anything to this i'm so the government really is out on a limb by itself here and thinking that this tip was enough and i want to highlight that the district didn't find a reasonable suspicion as a crewing until much later if the standard is different from between probationers and someone who's not how would you articulate the differ so i think knights articulate articulate the difference being just a lowering from the standard warrant probable cause requirement to reasonable suspicion i'm concerned that the government is suggesting that there's somehow a different reasonable suspicion standard applied couple to probationers i think knights has already factored that in the supreme court has said you're right probationers have a lower expectation of privacy we are concerned that they're going to recommit and so we're going to lower the standard what's reasonable under the fourth amendment is reasonable suspicion you don't think the tip was reasonable suspicion that go talk to oh i a ask him about this ted what i'm saying is that that tip a loan did not provide reasonable suspicion as officer green agreed and the district court agreed to go search mr williams or down to the constant the protective sweep of the do exactly and that's why i think the district court properly focused on that because the question really is whether that initial friend's produces sufficient evidence to constitute reasonable suspicion to then take the next step to then increase the intrusion and search mr williams home and and i don't think that ted i think it's important to look at the record in this case the district court didn't even address the spirit so the district court had no factual findings on this below so this is a totally untested theory i want to highlight that and that's not it's not surprising that the district court wouldn't address this and this really was an afterthought below this protected critical area and that's concerning because terry is an exceptionally fact intensive inquiry and as i said the it's the government's burden to prove that officer green reasonably believed that mr williams was presently armed and dangerous and that can't be a mere hunch or an inarticulate suspicion that reasonable belief must be rooted in concrete particular and specific facts and it is a two part inquiry under minnesota v dickerson so not only do they have to show that this initial intrusion was justified at the onset that mr williams and there is reason to believe mr williams was armed and dangerous the scope of that search cannot go beyond what is necessary to discover weapons the moment that the scope of that search goes beyond that is unconstitutional and the evidence must be suppressed and so officer greene and i think that he talks about this twice only twice in the record very briefly at eight o five and seventy nine at those points sort of mentions in passing oh yeah i needed to reach into his pockets and remove its content pocket and i think it's important note the scope of this what the search action was and this is borne out in the video and i'm with you was in his pocket it alternately ended up being ten thousand dollars though he a totally untested theory this isn't an instance where a district court went through the normal inquiry well the frisk wasn't justified at the onset but for some other reason intervening factor it wasn't that they went to the court went through the inquiry and the government is n now trying to cut it off at a different point this is a totally untested theory and there been no factual findings on it there's been no resolution of any of these questions raised you're saying that this was a protective for us the district court didn't consider this theory the government is relying on sort of inconclusive statements throughout the record and trying to bundle together a protective frisk theory so this is very unique carrying a weapon or certainly not automatically and terry still applies to probationers and these two individuals had interacted on numerous times before they came into the police officer right there provides an officer they're not subject to search for any kind of weapon not that i'm aware of though i do know that officer green said he had never felt the need to pat down the surveillance before i mean he knew a lot about him i mean the person in this operation who knew the most about mr williams was officer green and he knew when can you do protective sweep of my probation or when it is supported by reasonable suspicion combined with a condition of probation that reasonable suspicion that an individual is engaged in criminal activity and that reasonable suspicion standard is the broadly applicable standard this is a narrow area of law but luckily we have a huge amount of key saw on this reasonable suspicion standard and that case was long settled and clear that you need specific particularized facts and i think that britain for example which the government relies on doesn't cut against that i mean all  cases where these searches have been justified based on reasonable suspicion there have been specific facts we haven't had to worry about whether this information which came to a game of telephone through these various agencies had just been sitting somewhere dusty in the police file we had some information we had some greater level of specificity we knew it was more current and it had predictive value there was some factor that had been ratcheted up here we have a baseline of almost nothing and i think that louisiana fi circuits decision and soulsby is the most analogous case to that they they said that i took almost identical to this one didn't rise to the level of reasonable suspicion so i don't think it's i don't think it's surprising that the government has that please the court discord in the supreme court have recognized the state supervision of its probationers a special needs area that justify diminished expectations of privacy of probation  mr williams has been convicted of a crime here a serious felony crime and in order to avoid going to jail agrees to a conditional liberty in order to effectively supervise those is suspicion that if you look at united states regrets and versus wisconsin the tip there is literally that often the probation officer testifies he can't even remember the police officers that told him it's just a tip that there may or could be guns at the house and the supreme court specifically holds that that tip is sufficient to justify reasonable suspicion search here you have a guy that's you know you're actually are hearing that the fact that he was on probation defines reasonable suspicion and a different way than if he were not all right when you look at griffin it's hard to say that a tip where there is no further investigation no basis of what he sa are you say i'm against that reasonable suspicion differs in the context of the reasonable suspicion necessary to conduct a pat down is not necessarily the same reasonable suspicion necessary to do something more invasive  griffin stands for the idea that reasonable suspicion is good enough based on a tip and then it doesn't have to have all of the corroborating information because there's all kinds of reasons why local law enforcement might not want to share all the underlying details with the probation officer very important never said as much it doesn't say we are applying a lower standard of reasonable suspicion to probationers it doesn't say that so and again the griffin i think is appropriate to read griffin and the search combined with his history of drug trafficking combined with how he had his house set up where nobody could access it without first alerting him re it rises to reasonable suspicion the district court i did speak tr information was going on no judge and i think the reason that didn't come in is because probation officer green was the one relaying the information about the tip and he just didn't ask those questions when they told them he didn't say ok tell me who gave you this tip where did it come from so you know that's not in the fair to say when he received the tip he was sort of well known fair to say skeptical but he wasn't probing it because he kind of didn't find it he did his appreciation of his probation and fair way to put it i think the what what he said was that he wanted to have me really get to the bottom of it because here he is about to write an early termination thing he walks into a meeting with his bosses and federal agents and they tell him hey that guy that you're you think is a model probationer we think is involved in drug trafficking and so he talked about it in terms of wanting to dispel or get to the bottom of that so that he could make an accurate representation to the state court and again on that on the pat down going back so gruesome the district court di on that basis i think this court came in but getting back to the actual facts of the pat down the problem with their argument is that they're trying to condense everything that happened at the car dealership to the pat down but the facts are that when green shows up he mirandized his williams he tells them what happens williams tells them i have fifteen thousand dollars on my person before he ever does the protective pat down  know then he does a pat down after a while what's the reasonable suspicion for that or the pat down or for the well the reason the suspicion is he has been informed the guy is and is dealing drugs again he knows that he has a history of drug  he also said in my experience where there's guns there's often drugs which just cordis indorsed over and over and then he sees the bulges you know over as judge stewart said ten thousand dollars in a bunch of different pockets we're not talking about a is pulled out this pull that out second tell what was behind the ball joints but again the thing about the pat down he's already told them about the money the district court didn't file i argued that it was very suspicious that he got fifteen thousand dollars and said fifteen it was actually ten he was reported to make in two thousand five hundred a month i argue that's extremely suspicious ok so the district court didn't buy that argument the district court focused on his conflicting explanations for the money so if you take the physical patdown of the money out of the equation he still has said he has the money there's no fruit of the poisonous tree he can and he mirandize him he says he's got the very contraband they're seeking to suppress toe is it your position that he says he said he had fifteen thousand dollars they could bring in the drug dog to sniff the money well so the drug dog sniffing the money happens outside the district court didn't rely on that so when did that happen that happens after they leave the dealership somebody goes with the money back to st bernard sheriff's office in to have a neutral environment to do the search but the district court's determination and there is reasonable suspicion a his time at some point yes from the very start they did that point had the guy know that the money was tanking and withdrawn by the time they got to his house sometime we got to the mother's house i don't know if they'd already related by the time they got to the mother sounds i don't know the answer to that but the district court didn't rely again on the dog search at all the district court found it was reasonable suspicion probable cause based on the tip the set up of the house the conflicting stories about where he got the money his reaction to the d if they said he couldn't leave the business but his wife was actually there all that series of things that are ticked off doesn't depend at all on the physical money i argued that the physical money was suspicious in the district court said no this is a potential cash type business i'm not going to tribute a lot of significance to that so i don't understand their argument that we come back to the district court says nothing's incriminating about the money so you can seize it because it's not incriminating but yet once you take that out of the equation all of a sudden the finding of reasonable suspicion and probable cause falls apart it doesn't make any sense that the statements are not going to be suppressed even if you find that there's no basis to suppress the statements about the money even if you found the pat down was bad which i think is not the right thing to find i mean a probation officer has it's not really a true terry situation a probation officer has the ability to go and interact with this presuming of the moment the dishes pat down and what the case turns on right wrong or otherwise what's the principle they read that you rel something wrong with it not enough whatever what's the principle there you relied on below in the district court and it you rely on here to justify reasonable suspicion and they s suspicion well i mean my first line argument is the grass under griffin the tip combined with his drug dealing history combined with the set up of his house is enough for them to go do a search of his house but that's not what you're allowed on below i did argue that below the district court didn't reach that the district court held a hearing and limited the hearing to the actions that took place at the car dealership ok what griffin and your brief you say there you know the supreme court found a tip ok the in that case there was a state regulation that authorized quote any probation officer to search a probations home without a warrant as long as a supervisor approves as long as they have reasonable grounds to believe the presence of the contraband item that the probation came at him quote unquote so are you arguing that the factual circumstances and louisiana or the same is in griffin where there was this state regulation that provided the understand how it griffin in and of itself is the support for you there when in answer the judge jolly's question you say it does and expressively deal with the situation here so that's what i'm trying to understand  read this and it says well there was actual state regulation in wisconsin then that makes me feel well griffin was based on particular situation in wisconsin so my question is do we read griffin as simply as you want us to read it or is it limited to that special circumstance where there was a regulation when there's nothing here and in the briefing it says louisiana st that's what i if i if i answer judge jolly that i didn't think that they were the same i think they are the same louisiana has a regulation and here article eight ninety five subsection thirteen that specifically says that the probationer has to agree to searches of his person property place of residence vehicle or any or all of them in any time by a probation officer with or without a warrant and with or without when the probation officer has reasonable suspicion to believe that the person is engaged in criminal activity which is the same thing as what the supreme court how the supreme court interprete unsubstantiated conditional tip was held by the supreme court to be reasonable suspicion to conduct the search this is the same i mean this tip is basically the same thing as the tip and griffin that is my first line argument the second line argument is that the series of specific and articulable facts that were established at the evidentiary hearing of what happened at the car dealership easily meets the standard reasonable suspicion even if the pat down is back on the can for the admission of the money the conflicting story about the origin of the money the visceral physical reaction to the arrival of the da despite many other law enforcement officers are being present on scene the then changing story of where the money came from the sec that part of the money was a trivial to a person he said was gone from mafia motor sports who probation officer green had heard the name and supervision of other people as a major player in drug trafficking all of that which was explicitly sound by the district court is easily reasonable suspicion and justifies the later searches if you take out the physical money doesn't change that that analysis at all so those are those are the two primary arguments if you don't want to reach the facts you can say groups and that's a broader holding and not one of the district court made but this court can affirm more than the ground but at a minimum the district court's analysis of the facts goes way beyond an articulate hunch or or you know it specifically articulable things that he went after getting the tip above and beyond what i think he had to do and did some investigatory work way before they get to the search of the house we didn't even touch on the fact that he confesses to having the money in the gun the district court didn't really base its holding on that anything had a have like to focus on two points and in particular first i want to clarify the timeline of the first skin the evidence that was seized in the value of that evidence and then speak briefly to griffin because i think there me  recent confusion about two independent strains of case thought the government appears to be suggesting that we shouldn't care about this unlawful for us so even if there was unlawful action here we don't care because it didn't produce any valuable evidence just to clarify what i think is a pretty confusing timeline and i think the clearest explanation of this is on seventy nine according to officer green zone testament he came to the business he approached mr williams and he immediately said hey cross do you have anything on you i need to know about anything illegal anything sharp anything that could hurt me to which mr williams simply replied according to officer green's testimony no i just have money so he didn't say how much and that it was quite a bit he didn't say where it came from he didn't say who it was associated with and he certainly didn't say it had drug residue on it and so certainly this is after that innocent statement we wouldn't think a police officer and would think anything of it most of us have money on us it was well he didn't i think it's important to remember that he didn't know how much money it was at that all and there were it's true there were there were rolls of money so we don't have much evidence on the record how big those were we just know that they created some voltages but it was only after at that point that's when the unlawful action poisoned the well and it was that search that unlawful search the bore tremendous fruit was only after officer green not only saw th but reached into the pockets removed the money looked at it examined it seized it and then passed it off to be counted and drug tested that he knew that it was a large amount of money and that he knew money combined with other factors is suspicious but he didn't know the amount of money before and he said i don't hear anything illegal i just have money so what were the vultures doing doesn't that allow a reasonable start to see with the baltimore and then you say it's in rolls and there's a lot of it now under terry so under protective fresca that's the only permitted if the officer specifically testifies i thought those boulders were weapons or during the course of the pat down i felt those bulges and i still thought it was a weapon i think majors and jollier if you were on that panel again that in that case the officer specifically testified he first had reasonable suspicion to believe that the individuals armed and dangerous he conducted the limited pat down permitted by terri he  felt a bolt and he described it he said it's large this is how it felt and i couldn't rule out that that wasn't a weapon i thought that might be a weapon so what i did is i just lifted the top of the pocket and i looked inside and i saw that it wasn't a weapon and so i did nothing more and it turned out that was cocaine but he importantly specifically testified that that's what he needed to do to rule out that the object was a weapon here also been didn't believe that these objects were weapons so he doesn't even have justification to pat down not to mention to remove and examine these objects  so it was only after that action that action of removing objects from mr williams pockets looking at them seizing him that he had this great deal of evidence that the mr williams was questioned about the specific observations that they had made upon seizing and looking at this evidence that he said after heavy questioning about this money that they were holding in front of them and them and saying look this is ten thousand dollars where did this come from that he said it was associated with an individual  probation their officer there that question i think i said if if this had even been two thousand dollars i would have thought anything of it because this is again it's a car dealership they deal in money so i think there's certainly no testimony that he could tell it was that large amount of money