from on his body on its face the blood warrant in this case permitted police officers searches blood or any number of sensitive and highly private facts about mr blakeney ranging from his hiv status to his genetic predisposition to various diseases information about his intelligence his sexual orientation is family lineage and on and on and on the district court i understood that argument and said  if the warrant we have sort of a transcript of this call but i think the most natural i mean at that transcript is that the warrant in this case is the final paragraph of that transcript where the court says ok i find there is probable well it's got the language as described earlier in this proceeding based on the information communicated to me and given as you say that it's not really a separate piece of two separate pieces of paper i mean isn't couldn't you fairly read this to either be  incorporating the part that came before or the sort of the whole thing has been one more so two points in response that are one is that so this court does not have much of any case law about what kind of language is sufficient to incorporate but in other circuits they have drawn a pretty hard line and said there has to be expressed language in corporations so for instance in the tracy case from the rd circuit that we cite in our brief it says there has to be explicit language of incorporation and it's not enough for the judge just to say having considered the facts presented to me i reasonably could we reasonably understand the warrant to either be the whole conversation or the end of the conversation but to have incorporated in the chair the offense so so i think the answer is no because i think again  warrants is when the judge says here is what you have probable cause to see isn't the only part of the transcript in which that happens is the end but but even if the court disagrees with me on that the good faith could you know might apply if affidavit itself supplied lacking in particular every but in this affidavit nowhere does the officer say i want to draw his blood and check what alcohol content that's not in the but is not is about the odor of alcohol and some house instead of the actual guns that the f b i wanted to seize and the supreme court said that's insufficient they said that's plainly invalid and obviously not a good enough warrant even though you know anyone who read the affidavit in that case would know that the officer was not attempting to seize the house he wanted to seize the guns and explosives the court said that doesn't matter if you look at the face of the warrant and the warrant says he wants he's asking permission to seize the house or officer in the growth case argued you know essentially what the government is arguing here that this is was a you know all things considered a reasonable search because the f b i and provided probable cause the search did not exceed the bounds of the probable cause that was is he says at the hospital did anybody ask mr blakeney to consent to a test to determine alcohol at which suggest that that's what he's giving permission for right it probably does but but again that the courts i mean language or something in the ballpark of language of incorporation it's not as though the grower and said you know you can search this house based on the facts that we've been talking about involving some weapons right like this one  says there's at least an argument to be made in this case that was not available to the world that you can believe this or it as actually again fairly and plainly read as about a possible dui related crash and that's what the district court held yes your honor and i think you know again this court doesn't have much case law on the incorporation language but other courts have been quite strict about it and it's not enough to simply is your client in this case but your system or a public defender right so you have clients in other cases and you want you want the police to get warrants right yes you're on it we're throwing out the door and write them out that's counterproductive of that but regardless the government has not suggested waiver they haven't suggested they've been prejudiced by our ability to raise as below and by having to depend on appeal so the extent the court thinks there was a waiver i think the government has has waived the waiver by failing to bring to the court's attention i assume almost out of times i'd like to transition just for a minute to the nd warrant in this case which was for the event data recorder if in this case the event data recorder warrants accident not because we think we know what they are and we want the evidence to back it up but just because we're trying to track what the causes of this accident work and that is you know insufficient  was killed right it took this out of your garden variety accident so i think that there is what the court said and i think though that you know people can die from car accidents for reasons unrelated to drunken driving or anything else i mean if they can but when someone you know need certainty you don't even need probability it's ironically you don't need fifty one percent for probable cause and if someone jumps over a raise center median on a highway and kills someone isn't there at least  simply you know a deer hitting the car or another car swerving in front of the car or or any of the you know a one hundred other things that could contribute you know if if if this one had had given some hints of why the cards on the media and i think this would be a different that's always going to be the case right the with the with the warrant could be all manner of different possibilities short of criminal activity but i don't know how that addresses the fact that given the context this might suggest which suggests or at least implicitly suggest a criminal offense o conclusive evidence right we just need probable cause it's just errors indicated something less than fifty percent so why isn't the looking at the entire context sufficient to right that reasonable well because i think there's just nothing in this warrant differentiates it from any other car accident so if this is enough to get a warrant to search that you know we are in fairness i mean it differentiates it from most car accidents in which nobody dies and nobody jumps over a center median it's not like this was a fender bender  those accidents are distinguished i thought that's what i just doesn't distinguish it from any other serious car accident and i think there are many many reasons that a serious car accident can occur and i think that it has at least some reason to believe that in this particular case the serious car accident that question but if they had certainly if they put that in the warrants that would be a much different story there would be no argument there i think that's this was not probable cause but it's not in the one i'd like to reserve the rest of  they have to use the court i'm not less wiseman representing the government i hope on the right distance from the microphone that sounds good so far let me just answer the question that you asked judgments about the timing of the two up that way the well it sounds like the transcript it sounds like maybe it looks like the officer said december when he meant june and he just had the tape wrong i believe so switched from lorry right in there and then you call when you read it verbatim and you get permission to sign it for the magistrate your honor rule the rule requires that there be a record made it does not require that the in writing and something i think that is commonly done but absolutely done because you have to do it under four point one the practice in this district has been that the oral conversations which are filed with the court suffice and if it says in writing i i have not noticed that because this has been going on for several years since the day of man exigency means in possibility in this case it was not easy for the police to do this it did take time they did it because they wanted to make sure there were no problems with their investigation but think about the facts of this case compared with mcnealy and compared with remember this was a case where the police came upon the scene of a busy highway there are two cars that are smashed to smithereens one car the defendant's vehicle hit the other car with such force that the engine dropped in one place and the chassis kept going there are two injured people there's one dead woman in the car still and there are a lot of people on this highway trying to go trying to travel so they get on that's not like the case in mcneely where it was somebody weaving down the road way no accident it is much more like the case in schumer versus california and the urgency that the police had to do everything the investigation the protection of the people the getting medical care for the two injured people as well as dealing with the body of the deceased all of that amounted to an urgency and that's what i do have but th all it's a kit it in fact under maryland law your honor the blood test would not have been allowed because it was beyond the maryland two hour time limit well that's another thing that's just to me doesn't that sort of under emergency as triggering the emergency exemption to the work that it i guess i don't understand what it was from two hours to do it right so they had to have to get a warrant and they got a war honor so both of those things are just to me but there's no need for saying that this is an emergency i mean i just think it undercuts your argument that there is an emergency there and you didn't need to get a war when a you had two hours and be you to get  they but they were trying to gather the evidence to make sure they had the probable cause to do all the other things they had to do during that and i'm not faulting what they did  which we submit is allowed under the rules was contained the probable cause and contain the particularity that is required so why do you think the warrant allowed the police to screen the blood for drugs and alcohol ok and why why drugs the pause lee i don't get that the officer just in reading the warrant in the transcript it seems like they're talking about dui well the the  ruling for you right the district court said i'm taking out the reference to p c p we're taking that out because of that frank's arguments with god so she right she found an ambiguity in that but for purposes of the analysis she found that the odor of alcohol was sufficient and your understanding is that the district or thought the odor of alcohol was sufficient to allow a screening of the blood for alcohol and also drugs yes ron  done on so many things are always done here on the web when when blood is tested whether it's a lab or a hospital or a medical examiner's office as in this case is screened for any kind of alcohol or drug well the supreme court said in birchfield that if there's suspicion of dui you can test for blood and so you can test the blood for alcohol and then if there is some reason to believe in addition that there might be drugs involved you could also do a screen for drugs but this report seems to suggest the mere fact that you thought someone was drunk was not enough to scream your blood for drugs i think what they said was if you st scream or do a breathalyzer test for alcohol and that comes up negative now you might have reason to believe it wasn't alcohol it was drugs so now you can test for drugs i don't understand the supreme court to be argument that was being made there we should always be allowed to screen for blood and that's better because we should always be able to a blood draw and screen the blood and that's better because we can also look for drugs the supreme court said not so fast if you ha some reason to believe that this is not just alcohol but also drugs then you can go get a warrant and do that well but you are saying is that whenever there's probable cause that someone is driving drunk there is also probable cause to search for drugs probably not in every single case i mean there are times that somebody just seems to be so drunk on alcohol and that something that a lot of little other is a very heavy smell of alcohol in the car yes so why isn't this that  case it certainly could be i would concede that point judge hours so the how so so then you're not reading the market i'm just trying to figure out your argument is this war is sufficiently particularized so so you think that warrant is properly read to allow for a search of drugs and alcohol of the part where it allows for search for drugs it's probably invalid i can understand that that argument and i would be willing to concede it but as judge pointed out a few minutes ago the judge asked a test to determine alcohol well and then and then ultimately i said i'm not was going to be your answer to my st question if you thought what this warrant authorized was a search for alcohol is it anything else tested for in this test now like d n a now and yet you have tested for d n a probably based on the that opens up the whole world of horribles that your colleague talked about it's pretty well in in some of these when one looks at the other wants a warrant for drugs doesn't say the drugs may be seized and then tested to see if it's cocaine a warrant for documents as in many of the cases cited by the defense doesn't say seize the documents and then read them and then check the handwriting and do a handwriting comparison and then maybe fingerprint them and see who touched them see if there's d n a on that all that is always known in law enforcement to be something that can be done and is done and i think that this blood is like drugs there was an assumption based on common practice that homicide case a manslaughter case and therefore the search and the seizure of the seizure and the search would be for evidence of the homicide which would be drunk driving reckless driving well d n a might tell you whether you have a history of doing of having these terrible accidents under a different name or something i mean you know i'm just quite surprised that the government says that this w i mean is that necessarily your argument are you possibly arguing i mean it sounds sort of like you're arguing that's not a separate test that's not a separate search it doesn't interfere with the reason or expected that once you have the blood screening it for i don't  in the case of united states versus minnick which was mentioned again i believe the defendants agree it was a case out of the district court in which the district judge said the items c seized if they in some way relate to those offense offenses and i think that's true for the search as well it's got to relate to the offense that there's probable cause for and in this case judge xena's found probable cause to believe there was evidence of alcohol or there might be evidence of alcohol or intoxication and therefore that's what the search was for joe that's really going skidoo and your representation to us is that there wasn't further search for and our final argument as to the blood is that the police did everything they could to make sure that their evidence would comport with the constitution and that is the whole purpose of good faith there is nothing to deter in this case by suppressing the evidence as jersey has real realized and we want to encourage the police to call the judge whenever possible and get a wa going east bound and then he says it j eight hundred and eighty three the chrysler crossed over the raised curb center median and struck the nissan head on causing extensive damage to the front end and passenger sides of both vehicles there is absolutely nothing to be game if the police officer had added a sentence to that paragraph that said and i think there's probable cause to investigate the crime of reckless driving well said the paragraph for the front seat passenger of the chrysler was pronounced dead by p g county so there is a death there is a death that occurred as a result of this accident that's clear in paragraph four paragraph five explains the facts of the crash that shows the crisis there was at fault and the judge could put that together the police officer could put that together the forms that we usually use in the u s district court in maryland at least have a line for that this came out of superior court but that doesn't change the fact that the probable cause is there for judge bailey to have determined that there was probable cause to believe in and on turn manslaughter had occurred and he you know do you concede that you have to have particulary you have to identify the crime issue to that and no warrant shall issue but upon probable cause particularly describing the items to be seized and to be searched facts support probable cause and the judge was perfectly capable of figuring out there was probable cause to believe the crime occurred but he didn't he didn't have to write that particular day requirement it's not of that is evidence about how the car was being operated for the five seconds before the crash exactly the and i graph seven and no d n a so i can ask you about this particular issue we have cases i thought that suggests that if we have found those warrants to be deficient because they weren't sufficiently particular so how was a warrant the fails to identify any crime so efficient as a matter constitutional well i just have not seen a case that says that the warren has to particularize the statute i mean the general fraud well that may be but if you if you if you have a general i would ation of fraud in a war and we have suggested that that by itself isn't sufficient to satisfy that i think alerting requirement how how does a warrant that says nothing at all about the crime but it does in lists the probable cause in this case to think that there was driving action that led to someone's death and that's what manslaughter is and i said i think i thought that your answer to judge mathis was that a warrant has to be particular in that it has to particularly describe what you're going to and that will be sufficient to be clear about what you're supposed to look for when you get there the other way you can do it is just by describing the evidence go into the house and search for cocaine scales guns and large amounts of currency and that's another way you can particularize a warrant so i thought your argument in this case in response to judge with months was we don't need to particularly describe defense because we have particularly described the evidence go search the e t our work for the evidence of how the car was being operated for the last five seconds so it doesn't matter why we want it we've told you what to search for why isn't that your answer i thought that's what he said to judgments that that is your if that is what i said i was just only evidence of a particular description of what the offenses you know they kill or homicide or something like that would be would be sufficient but not a it would be sufficient but why is it necessary if i if a warrant is issued saying go into this house and search for the following hand grenade it looks like this it's this size go get that hand grenade why does it matter what the offenses like that you've explained was very nicely the purposes of the particular area i mean so that the executing officer knows what to look for when he goes into the house he or she so why does it matter that the executing officer also know what the comments so i think in a warrant that provides that level of specificity it would not be required so i thought if i had not taken the position that across the board in every w there must always be a crime but if there isn't that level specificity then there needs to be something to cabinet discretion of right if you just you can't have a warrant that just says go search for evidence of iran or it's right it's going to be that kind of a warrant in evidence more and then you better say did you know it was to be tested for and so i want to point the court today to two cases one is the united states beat george case from the nd circuit that we cite in our brief and i case the affidavit described a robbery it listed specific items of evidence to be seized from the robbery you know a person mask keys and then there was a catch all final category that said and any other evidence of a crime and the nd circuit said that that part of the warrant was insufficiently particular and so anything that wasn't specifically listed in the war in the st part could not be seen as under the warrant not withstanding that it's very clear from the affidavit it's very clear from the war itself that the other items the other crime at issue here was robbery and so in the plus drug context where we don't even have the government counsel what is this pledge or warrant for and she said drugs and alcohol and maybe d n a and i think the fact that we're here arguing about what this warrant from its search for is sort of indicative of the fact that it doesn't particularize the source mission and the whole point of the particularity requirement is to avoid the sort of ex post facto guessing about what a war is for it's opposed to say exactly what a war is for so that there is no discretion left to the executing point for the for the alcohol the the screen of the blood do we have anything is ready thing like kind of an exit in c light doctrine that would allow us to say like maybe there were an exit in circumstances  sufficient to excuse getting a warrant but you know come on you're standing in the highway in the middle with dead bodies are being taken out of cars there's a lot going on and if if if if the warrant ended up being a little more colloquial th we would normally like we're going to let that go here because of the circumstances you know what i'm saying i understand your point i'm not aware of any case that says that the government hasn't cited one and to go back to your question to the government about this being an e the definition of an x and z is that there's no time to get a warrant so well if they got it when the court the supreme court talks about it i know there was at least one case where they said you know there might literally be time to call a magistrate but not time to sort of fully complied searched for so so no i think the answer your honor is no i'm not aware of that and certainly the government has not cited any case to that effect and westerners have any more questions we'll come down