good morning may it please the court i'm fed blank from the federal defender services of idaho representing jason bradford boise police discovered a gun in mr bradford's coat pocket after they conducted a pat down search the district court held and the government does not dispute on appeal that the pat down search was conducted without reason to believe that mr bradford was armed and dangerous the search was unlawful and the gun should be suppressed the issue here on appeal is whether the inevitable discovery doctrine excuses the constitutional violation for two independent independent reasons it does not st is simply a failure of proof the government did not put into evidence the record of the standard policies and procedures that would have led to the n f l discovery of the firearm second the doctrine does not apply because the and evitable discovery through the dog sniff is not sufficiently separate from the illegal frisk i want to understand the nd part of the argument i understand the st part of the argument which is the judge just supposed the normal investigative techniques and there's no evidence put in by the government at that time but as to the nd part windmill thought was in a legal pat down in the government doesn't challenge even absent that the rest of the the rest of the events would have proceeded which is to say that the dog would have alerted it would have been a search of the occurred anyway surely the record establishes that the record doesn't establish that they were going to walk away after if they didn't pat him down that's right we're not contesting we're not arguing about the motive for the dog sniff was what was search the record shows rather that the pat down search was the st chapter right but it doesn't lead to the it the pat down search is not a causal effect of the dog sniffing it is a officer was there just that almost just simultaneously with the pat down right pretty quick with it and we're going to conduct that sniff whether or whether or not your client was patted down isn't that true but they wanted to conduct  dogs right and patting him down didn't give them any reason to think there were drugs in the car and only gave him reason to think that he was armed so well so that sniff was going to occur anyway is my is is what's giving me difficulty with the  point i guess are factual argument is that the sniff was not going to occur without officer green attempting to do the pat down search that in this case was unlawful and yet that's not your argument i'm having difficulty figuring out why the record supports that why the record supports what here's kind of our the legal framework for argument and these exceptions to the exclusionary rule there's a continuum in this court's cases there's the independent source doctrine where there's a police investigation wholly unrelated to the unlawful police conduct that results in the discovery of the  the other end of the spectrum there's the search warrant cases where police had probable cause to get a search warrant and if they'd follow their standard procedures and practices they could of and they would have enough and we discovered the contraband but they simply chose not to and in those cases this that they were don't seem to have any car they would pay a chilling up with a dog and they were going to sniff that car period there's no suggestion that that the finding of the gun in your car led them to sniff the car well that's right in terms of motive but i think the factual tether is the testimony of the judge just finding and supported by the factual testimony that this was how officer green approached the dogs of the the courts front explanation  quote officer green testified that he patted down bradford because he was about to cut conduct the dog sniff and then that's officer green's testimony when he's describing his normal practices that he is going to do and you infer from that that if he's not patted him down the dog sniff would not have would not have gone forward no i don't i don't think that's right but i don't think the evidence is strong enough to support that i don't think so either that's why i'm asking can you give me your best case for your one is boat right which is sort of this is the beginning of this legal doctrine and that's that it describes how there doesn't have to be an independent source but there's still a factual inquiry as to whether the fact that makes the discovery an will arises from circumstances other those other than those disclosed by the illegal search and and then the other case that i'd cite to is is this line of warrant cases that i've tried to create this continuum with with judge or with so the one that we cite here is  riley or for instance young i just isn't the question we ask when we're figuring out if the doctor implies whether the fact that makes discovery of the evidence inevitable is borne of circumstances other than those brought to light by the illegal search itself and are the facts that make discovery of the hand and inevitable the presence of the drugs in the car wasn't brought to light by the initial fris so i'm trying to figure out how do you get around that but it again i think that the cases support it's not just merely a question of whether there was an independent motive to conduct what is termed the inevitable discovery but whether the circumstances of what we're deeming the inevitable search is related to the illegal search in this case same officer illegal search proceeds that purportedly lawful search by a matter of seconds and the testimony is that this is the this is the routine practice from a i guess a pulp policy perspective this is an instance in which the purposes of the exclusionary rule should come to bear it's the officer conducted this course of conduct in a fashion that violated mr bradford's rights and it makes sense to apply it to suppress the evidence to deter this type of police if the search had revealed no weapon is there any evidence in this case that the dog sniff wouldn't have gone forward now so you're saying that the standard you would apply is not whether it's borne out of the illegal search it just related to the illegal search and think that argument was that that they could have conducted surveillance and obtained the warrants they had everything they needed to obtain the warrant they normally would go through that process they just chose not to proceed lawfully so i don't think that that line of case is always the basis for those rulings that the motive to get the warrant is the evidence discovered in the room it's they've got probable cause they can do it the right way or the wrong way and they choose to do it the wrong way and we're not going to we're going to apply suppression rule exclusionary rule in those instances and that's what happened here put it on the search the right way didn't do it the right way to get it within on legal illegal pat down search the suppression of the gun is warranted let's say before your time's up but say we agree with you that the government didn't carry their burden here i am stand your argument that they should get another i think it's bite at the apple as you call it but let's say just for a minute we disagree with you on assume those facts here well i think that you're saying except doing that it's appropriate to remain with an open record which is not not our position but i do think it's appropriate to rema develop the factual record that there's there needs to be evidence that mr bradford would have been detained in a fashion that guaranteed that when he was arrested the firing would still be on his person there needs to be evidence that he would have been arrested if if these drugs have been found there needs to be evidence that he would have been searched incident to arrest so that st point is one which i think that there needs to be a factual record for that because both right and young for instance are cases where this court says we can't presume that some of the contraband still going to be there at a later time if the government did this so you start from the presumption that mess in front of me would have been discovered in the car even in the absence of his pat down we can see that we can see that that this methamphetamine would have been discovered in this in the car ok down search was not part and parcel or quote a routine that was preset that was going to happen regardless of the search on line twenty three dollars on page seventy two defense counsel ass that is a given in those cases you're going to do a pat down search officer green responds not necessarily every time no sir and then it continues on where officer green says that he would attempt to do so now the portion that the in his brief is line one thousand through twenty two on page seventy three and that simply does not support his factual case right now that it would have happened yet let me tell you what troubles me that this case st i start find a bunch of mess in front of me and somebody shrunk from somebody who's left to surveil drug house you're pretty likely to arrest him and when you arrest him sooner or later you're going to search and that seems to be routine police practice but it was your burden to establish inevitable discovery are these facts that are subject to judicial notice you put on if you're officer and said what i just said we have a record but we don't we  was juggling nine different issues that were raised during the suppression litigation and best practices this testimony would have been directly elicited from officer green during his testimony now the record i respectfully disagree that the record doesn't support judge windmills finding that these that the firearm would have inevitably been discovered and i'll point the court to the fact that he was in fact search and sent to his address and that's  record sixty six that offers a green asked another officer to quote double check his search incident to arrest and that's of excerpts of record three hundred and twenty three dollars and of course we know that a lawful arrest allows a full search of the person i will point to excerpts of record three hundred and twenty five thousand three hundred and twenty seven which showed that mr bradford possessed five grams of methamphetamine which were tested that night by officer green and submitted to the idaho state laboratory that night and extension seven are the underlying reports of the officers which show that he was contemporaneously arrested for both the firearms offense and the controlled substances offense which is possession with intent to distribute he had baggies he had a digital arrested even in the absence of the knowing that he had the fire it correct your honor we don't have any direct testimony elicited from the officer on that particular point i think it's a fact that has to be extrapolated from the we would have we could put on an officer so and so and say that he would have arrested him no you're not there's nothing like that the record crowe that's i guess my one of my concerns here or one of the the questions i have what do we do if we don't have that plea should this court find his a pilot arguments persuasive so we would ask that the function of the rule just be allowed to be exercised normally and remained but it initially we had an alternative kind of more complicated rodriguez argument before the district court in response to the motion in limine e that the district court specifically did not rule upon because he found the inevitable discovery dr and a pluggable i'll also point out at this point that we only had to prove before the district court and now it becomes a clearly erroneous standard and i think that the citations that i previously provided were but that it was clearly erroneous i think best practice is absolutely we should have a list of it that direct testimony from the officer that wasn't done here but the facts before they just record the video that was played in exhibit g in the st hearing which was the actual interaction between officer green and the defendant fully five hours of evidentiary hearing on this issue they are allowed to kind of exercise their discretion and decide whether or not the government offer additional evidence so we can say no no i was going to shift a little bit back to the facts and the substantive issue how do we know that even if he had been searched at that later point in time that he inevitably would have still had possession of the weapon in other words he was searched at an early point in time he was searched right away before the dog sniff that was while presumably he was still detained the traffic stop we just had a case here about a traffic stop we know those detentions are relatively brief so let's say the st officer finishes whatever traffic violation there was he's no longer to change right how do we know his detention would have lasted as long as it took for the dog to sniff for the drugs to be found for the gun still to be in his possession at that later point in time if he was not detained he could have done what defendant in one of our earlier cases did which was walk away from the scene you can walk away from the scene you can come back and while he was not detained he could have disposed of the weapon so how is that not a scenario that that quote calls into question inevitable discovery right so your question kind of speaks to our st response to the motion in limine which was had the routine traffic procedures been continued the timeframe would have been compassed the docs now that was our st argument that the district court did not rule upon the overall time from the initial stop to the dog sniff was twelve minutes we know that there was approximately less than five minutes between when officer green actually did the illegal pat down and the subsequent canine search so there is an open unanswered factual kind of question as to whether or not the traffic stop would have extended beyond that twelve minute period i will point you to the record if that's an open question how could we ever say inevitable discovery here then i mean if we don't know how long  detention would have been if the district court hasn't even resolved that then how do we know that the gun would have been in his possession after the search after the discovery of the of the drugs and at some  later search incident to arrest right so officer tyner testified that he would have contacted mr bradford's parole officer before he allowed him to leave and he would have checked to make sure that mr bradford didn't have an arrest  between that and the other normal routine traffic related activities that officer tyner had left to do which was call the probation officer check the registration finish filling out the ticket and then looking at the code as well as explaining the ticket to mr bradford it's perfectly within the record for this court to find that five minutes would not have allowed mr bradford to leave even though the district court never made any of these findings right corrector on to we you saying you're not asking us to make those findings are you i mean  doesn't don't involve somebody believing somebody about how long a traffic stop normally i mean you saw how much trouble we had in the case before us we can take you dish on notice of how long it normally takes to no access to traffic so no your honor but i think when we were viewed the record and it just of course factual findings that support the application of the inevitable discovery doctrine that this record supports that just records factual findings as it applies to that doctrine and i see my time is up we would ask this court to affirm that just minutes thank your honor so i'll try to make three points one is the point that i think judge statement made for me which is that another piece of evidence that the government failed to introduce even if the detention whether or not th detention and it is what's the normal polson procedure for detaining somebody in this circumstance where a firearm is and found what you've been directed to move away from the car and sit on the guardrail and would have had the opportunity to dispose of the contraband we're just speculating that he would have been detained in a fashion regardless of whether how this proceeds whether that would have allowed the police to discover the contraband if they inevitably searched him nd the proper remedy here then they get to make an argument well it's i don't understand how that argument could resolve this question the fact that the seizure wasn't unlawfully prolonged which is the lingering issue how come how could that not this it is just two different seizure issues here if you will this is seizure of his body and there's a seizure of the gun and so what they're saying is even if we hadn't patted him down because we stopped him for a traffic violation it would have taken us five minutes to do the normal still wouldn't have shown there's still nothing here that shows what they would have done in terms of searching him but that's an argument that they didn't get to make because the judge never got to it why didn't they get to make it well because they had the same incentive to put the evidence on didn't think he had to get to it but there fallback argument that was assuming the judge was that was that the inevitable discovery doctrine apply and that's what essentially the government's asking for now is the court to remain and to give them an opportunity to describe or to put in evidence of what the procedure is what it says we have you're going to say for which we have done in the past in other cases we've either us made the assumption or we send it back so i'm just trying for why wouldn't we do that here or i guess what's been highlighted by mr horowitz is you all go back to you know i guess he it to the district court to sort out whether or not he has a plea here are what was the circumstances of your plea or the conditions of your plea it's a it's a rule eleven plea yeah i don't i don't understand how that or i don't see that that changes the nature of the remedy in the case i mean the problem is that there's a failure proof on the government's part after a full opportunity to put put on evidence they are describing another reason or incentive why they would have they would have to fly shell the inevitable discovery doctrine that's the same posture as it was still ranked at the far end the link that we would have search to cetera et cetera right right it plays out the same way they have the same instant of they have the same opportunity that's the adversarial process they didn't put on the evidence necessary to sustain their verdict in the proper proper remedy is to vacate and direct the district court that as a legal matter there is not evidence to support its room thank you very much thank you both for your arguments here today that the case of united states of america versus jason bradford is