america's thank you sasan on behalf of steven remarriages i would like to reserve two minutes please the supreme court was crystal clear in bailey that the government's awesome power to seize individuals in connection with a search warrant is strictly limited to those individuals who are actually on site at the time they execute the war and it does not extend to individuals who are off site such as romero's because if law enforcement could seize anyone who was off site that would swallow the general rule that prohibits law enforcement from seizing individuals absent probable cause that they've committed a crime and here the f b i acknowledged that remarries was not even a suspect at the time that they lured him back to the house they simply wanted to talk to him because they thought it might be helpful to their investigation so they came prepared with a premeditated ruse that included a cop car vests that said police on them designed to exploit the public's trust in their position as law enforcement officials and to trick romero's into giving up his th amendment right to be secure in his person from being seized absent probable cause to believe that he had committed a crime the f b i is tactics here were a brazen end run around bailey and if it's allowed to stand it would mean that law enforcement could seize any one of us at any time without reasonable suspicion that we had done anything wrong simply by exploiting our trust in law enforcement and tricking us into going somewhere where they're executing a search warrant that would of been literally our th amendment right to be secure in our person and also even the public's trust in law enforcement is it your position that he continued to be seized after the pat down was completed yes your honor i do believe that he would continue to be so i don't believe a reasonable person would feel free to not answer the questions and that's what that issue goes to is whether he voluntarily freely consented not to engage in that to engage in the conversation with law enforcement and i think when an individual has had their identification seized their means of transportation seized their phone there's f b i agents all over his house he's in a locked in a locked room in a room with a door close to law enforcement officers with guns blocking his way they tell him your you are not under arrest you'll sleep in your bed tonight but then they don't tell him that he's free not to answer their questions i think a reasonable person in that situation would want to do exactly what law enforcement was asking them to do and hopes that law enforcement doesn't change their mind and decide to arrest them i think callup united brenda and the california i think speaks to this issue simply because an individual passively acquiescence acquiesces in a situation like this that does not mean that they have voluntarily consented and in that case the supreme court talked about it's a reasonable person is going to know that they can't simply wander around a site that's being searched and they under surveillance the whole house was under surveillance they knew that he had left his car wasn't there so they could have done that or they could have called him up at work and said you know we like to talk to you we have some questions we're at your house were investigating  child pornography and you want to come and talk to us or they could have shown up at his work and done the same thing and at that point he would have been free to decline to speak to them and that's among a variety of cases florida v royer he had the right at that point he wasn't even a suspect so they had no authority to seize him in any capacity at that point in time they certainly could have asked to speak to him and so i would be our position that evidence that is flagrant that is where the deterrence value of suppression is at its highest and it outweighs other considerations here and i think in order to protect all of our th amendment rights it's critical that this court send a message and suppress the evidence at issue here that was do you contest the search of the car as an independent th amendment violation or as the fruit of lawful seizure mr ramirez according to your position that the car the car would not have been there but for the illegal groups to bring him back so the only reason that they have access to the car is because of the th amendment violation so it would be a fruit of the roots where law enforcement deliberately misrepresented the nature and purpose of a law enforcement investigation to expand their authority to do what they were otherwise prohibited from doing so are you saying  was independently on lawful search merely was the fruit of the unlawful seizure of mr ramirez do you see the difference yet if that car had been there at the time that they executed the search warrant they would have been entitled to search it so because they brought the car there it would that it is the product of them bringing anything that they brought there because of their deliberate misrepresentation of their purpose and nature of their investigation is is tainted by that th amendment violation it would not have been there but for that so it is the fruit of that conduct you would agree that your entire argument depends on us finding that the ruse was improper correct i i think this circuit's jurisprudence is crystal clear that when law enforcement deliberately misrepresented the nature and purpose of an investigation to expand their authority to do something they are otherwise unable to do which they absolutely were unable to do under clearly established supreme court precedent bailey and summers that is a th amendment violation and you would agree for example that if he had just happened to come home none of this would have been a proper part of the th amendment correct absolutely and the record is clear that the only reason he came home was because of the roots the f b i acknowledged that the district court found that he would not have been home otherwise and the warrant specifically covered that vehicle it covered any vehicle that was on site at the time they were executing the warrant and did the affidavit that supported the warrant provide a basis for finding probable cause to search vehicles that might be found  premises we're not we're not contesting that if the vehicle had been there at the time they executed the war we would not but there is something in the affidavit where the police officer sort of seemingly knowing what he was doing with the ra experience there would be evidence of this in the car where it could be transported away from the house as opposed to just sitting in the house that's that's correct your honor is a th amendment argument here for all the reasons we just talked about he was a result person would not have felt free to leave and not answer the questions for all the reasons i've talked about and there was no miranda given so there is not a voluntary the interview was not voluntary which addresses the th amendment and then there's the additional prong with respect to the th amendment that there was no sufficient act of free will to purge the taint so both th and th amendment thank you good morning your honour's may please the court david gappah for the united states briefly i'm sure the court noted that there were three issues raised in the defendant's brief the government's view of the defen in issue three they've conceded that that issue is now moot in light of the court having received funds so the rest who should payment is not necessary on issue two we file the twenty letter on friday outlining that this panel i'm sorry this court after briefing was completed in this case in united states versus choa address the issue that was raised in this case on the supervised release condition and that case the language in the condition that was challenge was him to the condition in this the arguments on appeal were the same and the panel squarely addressed that issue so let's go to issue number one press on issue one law enforcement acted reasonably and never violated any of the defendant's constitutional rights when it conducted a methodical investigation that ultimately confirmed that the defendant had a very substantial amount of very troubling child pornography the f b i had engaged in multiple undercover transactions they subpoenaed the internet service provider to determine the location where this activity was taking place they conducted some surveillance over a period of months to see who was at the residence and then they obtained a search warrant and they executed that on the morning of may th laid the then to do the warrant authorized search of the premises and any vehicles under the dominion or control of any of the occupants at the location to search for evidence of child pornography and  so there was probable cause for that warrant was issued by the magistrate it was executed that morning no question probably because who that weren't in that and limited scope of that were correct and when the agents arrived that morning it appeared that nobody was present there the primary case agent determined that he'd want to benefit and would benefit from questioning the person who had the name on the account for the internet service and when nobody was there the agent started to make some phone calls to try to determine if the occupants could be questioned and one of those phone calls was to someone who would move down suppose they used the ruse to get him to come to the house knowing that he had moved out just so that they could then search is car and bring it within the four corners of the warren would that be ok in your view but they actually did implement the ruse on everybody at the beginning when they st had contact but to answer the question if the design of the r was to bring evidence to the search that arguably would be a problem the district court took that view and said if the intent of the rules was to expand factually the scope of the warrant that would be a problem but then that the it turns on the subjective intent of the officers so if he has a good intent it's it's reasonable under the th amendment but if he has a bad intent it's not well the district court did have a colloquy with the defense on that issue and the defense seemed to have some shifting view of what their position was but finding but as i read his ruling after the wren case was discussed at some length with him by defense counsel he retreated from relying on subjective intent as the basis of his ruling in my reading that wrong i think that's a reasonable reading of the district court proceeding and the district court though at the same time found that as a matter of law that law enforcement is allowed to use deception and trickery and found that in this case that it was a reasonable use of that authority and that as soon as the agent encountered the defendant and had the defendant at the location just as he had done with the defendant's mother just as he had done on the phone with the other occupant once it was apparent to the agent that there was no need to continue with the ruse and that the integrity of the investigation would not be compromised agent ratz laugh very candidly told the defendant i'm with the f b i we're here serving a search warrant for child pornography are we in the right location so the ruse ended at that point and ramirez responded yes you're in the right location and then agent ross laugh asked would you like to answer some questions and then there was  a quick patdown which the district court found was was not an arrest and that was a brief pat down for officer safety reasons ramirez then agreed to answer questions he chose the location for the interview this is the authority for the pat down did that rest on summers theory or a terry theory it was not articulated by the district court but it was for officer safety purposes or some interesting theory would be under yes an exception under  summers and so that brief patdown even believe the defense can see that that was not an arrest and it was for officer safety reasons and after that happened the defendant agreed to go into the residence he chose the location the agent was concerned about privacy wanted to have a candid discussion and they chose a room that was only one other agent that main agent removed his body armor the door was not locked dominated by law enforcement there were multiple agencies there and there was a display of weapons in that and there were no display of weapons here there were other agents but as the district court found here it didn't matter to that that extent because in the room where the defendant chose to do the interview there were only two agents it was a consensual interview to defend it was not i saying this what it is not exactly what happened and craig got there in the basement in craighead with two agents right there were so he's in a room with two agents somehow a basement what's the difference in this setting this agent told the defendant at the beginning he was not under arrest that he would sleep in his own bad that night asked is there a place that you need to be tried to make him more comfortable off for the use of a phone let him call his employer and that he really was not free to go well you know as we pointed out for cricket if you're being questioned in your own home you're really not free to go home he would have been free to leave we don't know what would have happened but i was the car seized the vehicle at that point was at the location we don't know what would have happened we do know that the agent had taken the keys the wallet and the phone so he said to use a car correct but he was never told he was not free to leave he never indicated that he wanted to leave so well in cricket he was told it was free to leave so that actually makes it a better situation or a better argument for the government in that case than then you have right in this appeal that you've only in the footnote raise the th amendment issue right on the custodial interrogation so what is your what is your position on whether when he was seized to you agree that he was on the arrived at the property there is a brief just a seizure in the sense that it was the pat down but that was the only display of force the district court found here but your position was after the pat down the seizure ceased correct and at that point it became a voluntary encounter between ramirez who agreed to answer questions and he was told what the nature of the investigation was he had an in balancing the th amendment intrusion on the defendant against the government's interests that is what this court is charged to do and that's the touchdown for reasonableness in the th amendment context on balance the slight intrusion on the defendant and his th amendment right didn't rise to the level of an unlawful seizure and the court correctly denied the motion to suppress votes there were any other questions we would ask the court about a man and a half the government acknowledges that ramirez was seized under summers as as they have to this was not an officer safety in a sense of a terry search and seizure they took his phone they took his his keys his wallet his phone and then they subject all of that in the car to a search that that's not a terry pat down and the government correctly admits he was seized under summers he would not have been there to be seized under summers but for law enforcement deliberately map mis representing their role and their investigation to lure him back to give up his th amendment right to beef three of unreasonable government seizures the if they had run into him on the street knowing everything they knew about what he had you know they thought he was up to could they have done a terry stop and said we want to talk to you and then could they have done a pat down in connection no you were not at that time because they acknowledge he was not even a suspect at that time but that goes to what the subject of lee believe you the objective facts of reasonable suspicion could they have reasonable suspicion to think he was trafficking and that he was receiving child pornography i'm going to go with what the f said which specifically said he was not a suspect they didn't even know if he was the subscriber to the account they said they'd like to speak to him if he was the subscriber they did not know that at that time so no i don't believe they had reasonable suspicion