search and seizure that took place at a warehouse own mr dunn hired and used in texas mr dunn hutch a motion to suppress at the district court level that motion was denied and that's why we're here today the criminal case on this issue is in the supreme court emphasize that this kind of sweep as the officers alleged they conducted a protective suite of the warehouse to dispel the reasonable suspicion of danger in the instant case the offices argue that first of all mr care mr care alex care a codefendant working at the warehouse consented to allow them to search the premises however the government in a reply motion to the district court fifth circuit court of appeal number plates fifty seven and fifteen twenty seven  kerry did not allow them to consent at the district court level on page ninety three of the transcript from the motion to suppress the court ask officer schneider the key the key agent in charge the court asked specifically tell me again the purpose of your going to the warehouse on march first the witness officers should not assess the purpose was to find additional witnesses who could cooperate evidence of any illegal activity on page ninety four the court asked the case investigator again when you say that mr ker minute you into the office how did he it meet you into the office this testimony is key on page ninety four the motion to suppress the age of snyder say he opened the door and then we walked in and began talking to him this is not evidence of location no here we are the first of all do you agree that testimony is there that testimony is there but that's disputable testimony because if you look the chief evidence in this case was defense exhibit one it's a bit of video that was introduced at the district court level only u s b drive this court has it on cd when they walk up the subway to enter the warehouse you can see that as mr currier immediately opens the door the agents just walk in around mr mr ker simultaneously and enter the warehouse so there's no question of can they enter and if you will know in my brief i cite two cases from the ninth circuit united states versus a blue united states versus milla where similar incidents have occurred whether where a defendant opened the door to his home and the agent just follow the defendant in without asking for consent that they didn't have consent even to come in then the protect to sweep wouldn't even apply right exactly when we first argue that the person that there was no consent and then the government argued that there was a protective suite but we say to the district court in the motion to suppress we don't even get to that point as you say you round up because that was no consent you have to two agents at the motion to suppress and during the trial agent arceo lock and agent's nytol who question to schneider i asked him if we could search the warehouse and he told me yes so schneider said i asked him if he could search the warehouse and he told me yes how much and best nylons version of the events but where we're arguing that even before you get to that point at the toll or the warehouse there was no consent once the agent walked into understand that but therefore once that if you don't prevail on that testimony like this would allow the subsequent search of the whole place we are at least it would allow affirming a district court finding of that if it's debatable you think i don't think he's credible well in this case the agent says to the district court that he opened the door and then we walked in so therefore there would be no consent and so once he passes this is happening so so fast once the court takes a look at the video if it hasn't already you will see that it happened so fast the interim between the doorway and the area that they're called the warehouse is a very very short couple of steps so by the time he passes mr perfect i guess i'm trying to save it for you to prevail it's critical that you win at that threshold can come in in the first place because the subsequent testimony is at least leads to the inference to support the district finding that he occur into the warehouse and with respect to the to the plain view argument our situation or our argument is this first of all there was no reason to be there so he would have had to have a legitimate reason to be there and in order to conduct a protective sweep of the warehouse that would have had to be some possibility or reasonable suspicion or belief that that was danger in their warehouse and then back to page ninety three of the motion to suppress the court as a just not a so tell me again why were you there we wanted to look at the edge and say yes for illegal activity now in this case are all of the accounts that were legit in the indictment have to do with the interstate transportation of stolen goods there is no history of criminal activity that is dangerous they did not say they were looking for a dangerous person anyone with a weapon as a member of fact the agents even indicated that a month before the search of this warehouse they had conducted surveillance they had seen a person and mr care going back and forth into the warehouse at no time that they tried to stop mr care of this if the individual worker in the warehouse and at no time did to indicate that they saw a weapon or anything in that warehouse that would lead them to believe that there was danger and so there is no there's no protective swe that's lawful because there's no danger and no danger there as a matter of fact even under the protective sweep analysis you're only supposed to stay there the offices all allowed to stay there for short amount of time enough to conduct the protective suite in this case the agents testified at trial that they state forty to fifty minutes they took pictures of boxes moved the box and there excuse for doing that is to say well you could have had somebody who was a threat had in by hand boxes so the protective suite itself was not a lawful protective suite and the other issue is that the search warrant that they eventually g was an illegal and invalid search warrant and even if the war it was a legal search warrant the legal search warrant does not overcome the burden of entering the warehouse illegally in the first place so he used false information to give a search warrant and if if kirk consented then there would have been no reason to get a search warrant and the agency said well they been found but again even if the search warrant was illegal that does not allow the admission into the warehouse legally because there was no consent because of the interest in of time i would like s that would have been about seventeen dollars seventeen for seventy four cents each he also included shampoo but there was no evidence in the broker that there was stolen shampoo in the warehouse and there was also testimony that the promise that there was witness in the warehouse could have been bought from c v s and there was no proof that it was actually stolen so it's innocent mr then hence requested that the items for stolen baby formula or shampoo items that were never proven to be stolen by any testimony at trial would be subtracted from the allow the last amount the the district court denied and he increased that eighteen that that level of enhanced made by eighteen without any proof of the last now we understand that in this case the findon would have a burden of offering evidence of a lost amount and he did so by showing that the stolen baby formula or shampoo that was a little stolen could not be attributed to him but even before we get to that point concerning the job double jeopardy of the special assessment in this case under kim bro if if there are consecutive sentences the kim broken stands not of law allow separate special assessments for consecutive sentences and so we're asking the court to reverse the two hundred dollars special assessment there i want to go back return to issue to the aiding and a bit minute a shipment of over the counter medicine medicine medicine from maryland to texas on august twenty sixth two thousand two thousand and eleven this concerns a box that was found at fedex and the fedex agent attributes this box to mr dan hedge but there was no evidence that mr then hatchet anything to do with the box that was no evidence that a car ran it back then hertz traveled to maryland and there was no evidence that the goods in the buck box was even stolen the items had store stickers remaining on them they want shipped from someone named jose pereira who offered no testimony at trial and they were dressed to ninja two thousand and eleven the same applies to issue three when you look at counts three and four for the interstate transport of stolen goods that would have occurred on february twenty fourth and february twenty eighth of two thousand and twelve as the government alleges of the three components of the conviction for to stay and number three the government would have to prove their that the good stolen where more than five thousand dollars here the government does not meet its burden it expects the district court or the jury to convict then heads based on an stickered and there was no testimony that he had anything to do two reversed a similar conviction based on insufficient evidence as we are going this case in order for the conviction to stand the government would have to have proved that the boots were stolen that hatch knew that they of the united states to go over the facts that are in the record regarding the suppression issue there are actually three different consultants given here and i would ask the court to look at the government's suppression exhibit noname which is a diagram of the warehouse you'll see that there is a front door that the agents approached it's also visible on the video that is the glass door they stood there for a little bit cure came out after they knocked he unlocks the door he opens the door he stops out there is a very brief conversation and then he admits the chance into this lobby area once they get into the lobby area and on the video there's a don which had a very sophisticated security system in his warehouse and the there are different cameras so there is a separate camera in the lobby and so  sergeant schneider and the other agents who testified said they went into the lobby and they said you know we're here to do this investigation they ascertained that he knew about the investigation he knew that don hutch had been arrested just two days previously and they said they asked him is there anyone else in the warehouse and they already partially knew an answer to that because they had been surveilling this warehouse for weeks and they had seen many boosters coming go with their black plastic trash bags full of items and that particular morning they had seen kia and an unknown man into the warehouse so they suspected there was hit least one other person other th here in the warehouse but as sergeant schneider testified just because he indicated there was one person does that mean that i believe that i needed to see for myself so at that point they asked him can we look around and we look for this person and he says yes and on the video you can see they're all standing around everyone is her relaxed there was no yelling screaming nothing of that nature and they were kia and unfortunate event that the video does not have any sound but you can see this conversation and then cure points over his shoulder to the warehouse and then there's more gesturing and then they wait they leave and they walk through this little hallway here at that point is leaving them through this hallway to the warehouse which is room after on that diagram it's a very large room sort of in the back along the way they  various little rooms and offices and they see some products being looked like they're being packed up for shipment they walk into the warehouse and it's a very large room and you can see on the video shots and  think also the still pictures will show this to over particularly on the right side of the warehouse there is just a massive amount of these o t c products that death they know that the booster steel  they had been arrested together back in two thousand and eight for stealing items from a wal mart you're just just to get to the legal point you're saying consent number one entry consent number to go find anybody else here wh the circus santa as they get around in the day they get to the warehouse and immediately they know what's going on here and so they do a brief protective sweep because they say there are and you don't see this on the video there are some places where people could have been hiding then they asked on hotch for consent to search the warehouse and he does he gives formal consent and there are there are many many  i guess just god is that i mean the brief analysis is the does describe those three moments of consent he doesn't sign the consent form that i was the agents testimony that he actually gave it verbally he gave it verbal eight which prompts one of the agents to go and get their written consent form which is generally f b i policy they like to have a written consent form and so but then he waffles and he says never says i won't sign he said i would like to talk to my attorney so they thanks start talking to him about that he says he wants to call his attorney let him call his attorney and what's the government suggested if you if what would you say affirm this there's articulable facts to support reasonable suspicion of danger and sweet plain error even as to tool box and opening up box flaps or consent for the whole thing i think it's consent for the whole thing complains that they had an ulterior motive while the supreme court has said it doesn't matter when you're going to do a knock and talk that's a that's a good a valid investigatory technique and a subjective motivation simply doesn't matter if that if a voluntary consent is given and that would be the closest protective sweep in a crime charged like this with the facts presented that would still be reasonable suspicion to fear that fearful what's your best read protective sweep case if we did go there i think the best i mean we don't have anything with facts exactly like this one i think the best one is mendez that was handed down by this court in two thousand and five and that's where the agents learned that there are some aliens being harbored at a certain residence in dallas and they go there and they approach a door to to knock and talk and they know some things about that guy too they know he's a cuban immigrant living there or you know a few other things about him but they walk up the the screen doors close other doors open and they knock he comes and they say wow we you know we're here because we've heard that you're you've got some aliens here he says oh no it's just me and w pictures they took the pictures after he had given the verbal consent and some of the officer and then they get the foreman they're talking to him about that several  we were snapping photographs so that we could remember and we could be accurate and are also david they had decided at that point that they were going to go get the the search warrant just to be cautious and they wanted to make sure they were accurate  itself or is that just an aid to prove the memory of well i think just he did again there were three concepts consent to enter the lobby consent to go to the well house and do that protect us we followed by they were not attached to the affidavit the agents used those to just i don't i start out with somebody testified that they looked at the pictures in order to identify material to put into the war that's true but it was all in plain  shows up and he's in the landlord sees him what are you doing here who are you i'm here to pick up subtle wood's paperwork don had to enter the townhouse under another name and so the landlord actually made him sign a paper saying i had permission and leave a copy of the strivers license and the landlord said it was this black bag and it had papers the landlord wanted to see what was in there and this black bag a black gucci twelve conviction based on pinkerton i could not find one that's because almost any conspiracy is going to have people hiding stuff and that's a broad use of pinkerton perhaps but you have to look at the background of these two guys they went way back and they were very deep in this conspiracy kill was a major player he had you had a lot of proof of the conspiracy no question about that it's just then to say well kier because he was one of the phone calls made from the from the argue from jail i guess i do in terms of addressing that that is the destruction of the heavens that they leave to go get the search warrant there are only two agents remaining here and curing don had to have this phone conversation and it's at first they're discussing a shipment of baby formula and then a cure starts mine too we had a very talented linguist translate that all that stuff for us but anyway this is a reference to the video and don touch says tells him to remove it quote put them far apart from each other do you know what i aha and so kier locks the warehouse a side door at one twenty two there's are now there are sort of still photographs of that and in the government's exhibits and then there was a blip in the tape the videotape which the agent said could have been caused by someone tampering with the hard drive there's a second call between the two and dropped arches and jail so course these are all recorded john hawkes tells him make sure it's done do what i'm telling you they'll search you when you leave make sure you do what i told you and then the cameras become or the hard drive becomes in operable at one thirty seven so that's basically our theory on that and that was really an aiding and abetting all turns on reasonable for see ability and again when you look at the close connection of these two men and how close they were in this conspiracy they both had a lot to lose if the f b i got ahold of those there are also some computer files but apparently this is how don hatch initially captain as records and he would later transfer them into the computer but that you know i would say i don't know if it's the primary but it's certainly a very indicted some of the boosters but what would be reasonable for reasonably foreseeable to any coconspirator that another one would try to destroy evidence that incriminates them well i think that not necessarily all the coconspirators would have had on reasonable forsee ability as to count five this ledger died a hack owns the apartment or rents or whatever therefore ladies and gentlemen you've got enough to infer i do not remember a lot i know i just lab which is helpful but in terms of the doctor that's the charge of self i didn't follow your suggestion that well that went to aiding and abetting i don't think we had any aiding and abetting  to address the issue of consent and just touch on some of the things that the government proposed based upon the record when you look at the record page fourteen hundred eighty it testifies he says care opened the door of the warehouse and we just walked in at another place page fourteen hundred eighty of the record agents night again says that was a short window of time when care came to the door and locked it so that was a very very short window of time then again when you go back to the video you will see the agents just walk in paris mr care to get into the hallway there and then when pressed further on cross examination same page page fourteen hundred eighty of the record agent's niva stated the care opened the door and then the agents simply walked in and began talking to care and again i think that although there is no  verbal audible language to the video once you see the video it will become very clear to the court that once we are locks the door agent snyder simply walks around him goes in and those three three people within five minutes of walking to the the at the warehouse he asked for consent to search the warehouse but again when you look at the video you will see the agent care walks in agent s because he was already in costa raided mr care did not say anything to the landlord then had asked him for permission as a matter of fact and was the landlord there proposed that phone calls they were speaking in a foreign language she concluded that they were speaking in a code based upon a movie then she says even the code itself record pace three thousand and eight was the and she says she believes that they're discussing something and believe does not amount to of the standard that's that meet the standard of reasonable doubt here but she says ultimately that she really can't conclusively say what they're talking about if you actually speaking about her hiding evidence at all that her to george was a pattern george no objection to the charge i'm not sure if there was an objection to the charge there was a rule twenty nine motion by counted say and specifically no forseeable i can't say at the time i know that there was a motion for acquittal after the close of the government's and then there was also a subsequent motion but at this moment it escapes being so i could report back if the court amended thank you for your time because you think you know