dish one one six three united states of america versus kevin price oral argument not to exceed fifteen minutes per side a case number fifteen to zero for one and sixteen desolate and sixty three to be  briefly note the passing recent passing a district court judge david katz of the northern district from where i hail he was a very good man a very good judge he will be missed he was a very good man and he was it is our position that the district court erred by misapplying or not applying probably the holding fairly recent holding of the united states supreme court in bailey versus united states as the court is aware mr price apprehended tryer to a search warrant being executed at his premises there were three police vehicles basically staking out mr prices residence one just beyond his driveway one in guarding an alley that ran behind the residence and one or just up the street north around the corner to the to the west the officers were assembling getting ready to execute a warrant the weather was very bad  the roads were snowbound the traffic was limited by the snow who had met if they had caught him right there around the premises it would be ok i wouldn't be standing here quite work out that way even the other way though right on the street would be in the card oh the street would not be within the fairly if it was parked on the street that's two parts underbody right and the the apprehension took place much further away than that you're at about bock way a block north of the residence mr price they didn't know it was him at the time a vehicle matching the description of one of his vehicle drove southbound  on fuller street which was the street where his residence was located around the block came up and parked on fifth which is the next street north of his residence park sort of haphazardly still an  briefly came back out one of the officers i think it was officer frederick who was on fisk observed the activity and said hey i think i might have seen a drug deal they taught this to suburban pulled off the top old often there was some discussion perhaps that should they pursue the vehicle decided no we don't have enough manpower the individual then was observed walking eastbound on fifth and turned southbound down the alley behind the residences that serves the residences on own  folder and then i guess was briefly observed going back and forth going from the house to another vehicle he entered that vehicle drove northbound through the alley and he was not positively identified as being mr price u ntil he made the turn eastbound or westbound sorry on to fisk ask a question about part of what you said there you have a pretty tough standard of review here you know we have to take the facts in the light most favorable to the district court's decision does does that mean would you concede that we have to take as a fact here that when he puts his head in the window of that there is good reason to think that they're engaging in some kind of hand and drug transaction it could have been that it could have been something innocent but you don't have to take into account the innocent conduct the officers are entitled to rely upon their observations at best they had reasonable suspicion it did not it was not i would not be probable cause or at least something that gets you marching towards probable cause but it might get you marching toward probable cause but it doesn't get you there is why it what it was what about when you  t i mean the had enough information to obtain the search warrant for the residence and they had some information that connected mr price to the residence and they had some information that connected mr price to prior drug activity and i knew mr priced in the or somebody did some one of the officers knew mr prize recognizing until he had already left am asking you about goes to the question that's the catalyst initially rise which is did they have probable cause to arrest him at the time he was arrested without regard to baguley and his but i genuinely want to hear the reasons why you think that and let me just sort of lay out the constellation of facts a little bit and let you respond to it so you know and again i mean the standard of review you know it's tough for you you've got you have a headwind there  but we have a suspected hand in hand drug transactions inside of the officers we have the facts in the affidavit giving rise to the warrant those are not i mean they're on the light slacks well ok i thought they were but on the light side frankly but that's fine i mean in terms of just how much it adds to this question then then isn't it fair to say that you have what looks li you know he he parks the trailer in a way that blocks you know and i mean i'd be i think judge yanker was very skeptical that he didn't notice a blue unmarked crown vic and you know two other police type  sitting around his house and he walks right by so you have potentially flight plus watching and and transaction plus the stuff that problem there in the first place it why isn't that probable cause i think if you add the element of flight here there question so you think the inference is not permissible no no i think a great quote it is you have it both ways right now i that's that's an excellent point the one thing i will say in having done this for a little while now is criminals do a lot of oh yes they do i had a case when i was a clerk where these guys got pulled over with a thousand pounds of cocaine in the car and they get caught just because they're going to eighty five in a fifty five i mean oh yeah i mean some so i mean your point is a very important one it's just not i don't know it's a it's a hard case it's a hard case but i don't think it's that hard when you take into account all they really had was reasonable suspicion unless you cruiser and hit him off and became head to head with his vehicle another came up behind they had him boxed in everybody came out guns drawn on the ground you know cost stuff didn't take him back to the residence so that would go that according suppressed and it offers find anything in the house that that linked up to that van you know the words no storage and all the receipts that they found for the storage unit were found in the truck that mr price was first driving that he left parked haphazardly on fisc street so if price so they're there the rest of the residence they want to execute a search warrant say price never comes home they execute the residence they don't even find him even get to the storage you it's once they searched the vehicle which was well off of the premises by the way up on fifth street or was until they searched that they came across these receipts from the storage unit or like what we maybe maybe we better go there because we're not finding what we're looking for here it's a vehicle on the premises when they first saw it  no no never was on the premises and here somewhere it was parked on fisk he drove it southbound past the residence on full around the block up the back i think this is how it happened but he he ended up park eastbound on fisc close to the house may please the court given where the court has gone i'd like to just start with probable cause i think that makes most sense i actually think that probable cause is apparent from the search warrant affidavit i notice cath and mr von admitted to distributing heroin and he revealed that he got a supply from kevin price he gave a description of mr price and he said he told the officers where mr price lived and provided vehicle information both of the vehicles that were on the premises at the time were the same ones that were described in the warrant there was a vehicle with a plow in it i just can't remember from the record of the time i had whether or not it's the same but what mr von advised was that he had been purchasing heroin from mr price since may of two thousand and thirteen so little under a year and that he purchased purchases between five and ten grams of heroin at a time and does the so approximate every ten to fourteen days so mr von told police that mr price had committed a crime based solely on mr vaughan's statements the officers had pca to arrest mr provide just the one thing that i recall that was a little light was any information about the reliability of this forum the informant was named so that's helpful of course to the government and in addition to the detectives drove mr irvine past mr price's house and pointed out he pointed out the house in the pickup truck and the officers also did additional surveillance and observed mr price walking out the front of the address so they could at least link mr price to the address one thing if they saw a bunch of traffic coming back and forth door when the man walks out it was you know i don't think that's probably because relevant there's also a report in the search warrant from another detective who stated that she also had received a tip about mr price some time previous so that adds to probable cause then the officer surveil the residence in advance of the search warrant and see what appears to be hand in hand transit oh i mean what about m arrive so it may be that he didn't see them right away and then realized what was going on and left one of the officers said he walks right by their vehicle on his way to do this i think that's true i don't know which vehicle it was and why there's a gun and whether he noticed it right away or noticed it later but he left the truck i mean that is readily a certain incoherency now whether it's an incoherent see in the stock prices thinking or in the office or story who knows but that's or there may be an innocent explanation that he simply hadn't figured it out yet and when he did he decided i'm going to leave the one truck in the road and go get the other one of the behind the other vehicle that was most obvious is the heart crown to be a cry so we don't know what the that's the vehicle and in addition we shouldn't lose sight of the fact that mr price did have six drug convictions and the officers were aware of that there certainly allowed to rely on that as part of their inference of the law say about whether that's  to but i do believe that the judge kathleen seems a little bit skeptical of i do believe that where you have an individual who's reported a crime who was an eyewitness to a crime whether or not he has demonstrated beyond a reasonable the observations of mr price on this both what may have been the drug transaction and what may have been or not have been the fly or at least the i mean it's obviously not quite a full speed run or departure but it's something the fact that he didn't park the past to begin with i mean that would that be something the fact that he didn't say he did park at the house to begin with i mean and he was a den a fireball to the officers yes before he left the premises i think all of those are more than sufficient to demonstrate probable cause to me is there anything else we got the full picture i think you have the full picture ok it was this until the of course they get into the house now you could i could argue to you even if they only had reasonable suspicion to do the initial stop once they get into the house and it did and continue to arrest at the at the at the beginning look like one and it this court has had a spectrum of cases from between houston and lopez arias and this this case falls on that spectrum somewhere and i could argue too hard that it's would be say there what looks like an arrest is not an arrest and therefore we get to tell you more information to that would support your argument that based on these various facts there was probable cause here i don't know that i get i don't know that i have a specific case that is exactly on point with this one that we'd be happy to look into that alright and i don't also want to give up on bailey entirely and i think that it's and interesting question whether or not someone who is on the premises and whom officer see on the premises who venice on the premises in the vicinity of that's different i mean you know that matters and i mean immediate vicinity i guess is from the occupants location and other relevant factors at my interest in the i don't mean i don't speak or fell a panelist on this but my interest in whether there was probable cause at the time of whatever it was is that i don't know why i value should i don't know why the law should be that it matters how quickly they apprehended him but it's certainly messy to try to deal with it in the in the context of this area and the government's primary concern i think on the baillie issue is that it would be an unfortunate turn of the law if someone who is on the premises were able to escape detention because of bailey if they just run fast if you're able to get away quickly from the premises and are no longer that's a different case so somebody who starts on the premises were search is ongoing and then flees the officers don't know if that person has evidence  i mean that that present questions about the integrity of the search that this guy on these facts doesn't i mean we you know we're there's all this conversation about this you know one block if you whatever what is the reason for this rule the reason seems to be we don't want people running off with evidence and we don't want people that are in this type zone to be doing things that are dangerous to the officers is that fair that also add although bailey discounts it a little bit that we don't want people to leave the scene get help and right now absolutely and that is a concern in this case primarily i mean you have bailey who i mean sorry but i always say on this point exactly bailey said that unexpected arrivals are always a concern and i think that's right however there is a heightened risk in a case like this one where the target of the investigation may be fully aware of what's going on which was not the case and daily in bailey there was no evidence that he walked by the cops coming up to the door in bailey the officers in even know whether or not for sure he was in actually associated with the residence to be searched guys they arrested they passed each other coming in and out of the house is my recollection i don't i don't believe it was on foot or had he just saw him in that they may have seen them in the car as they lives i guess i mean on the bailey issue can you cite for us any case in which a court held that  pursuit of somebody who was off the property curtilage pursuing a person moving away was permissible under summers and where the court didn't get reverse for that whole now i can't say i mean about you know the fact it just seems like you cannot pursue the guy absent some manifesting injury to safety or something if he is going the other way it's i mean you should kind of welcome that apparent apparently you know per the logic of these cases i mean we just take them as we've come to the other way that i think that bailey is distinguishable just to make one more point on bailey and i'll move on is that bailey does make a point of talking about the decision to arrest the decision of when to stop the person and bailey the decision wasn't made until five minutes later a mile away from the house that's not the case here here the officers attempted to detain mr price on the spot and just didn't manage it because of the back additions of the road and that is a distinction from from bailey i think that is important in this in this case i should also then just move on briefly to the inevitable discovery argument because what we have here is officers who are doing what they're supposed to do they're executing a search warrant a house they find these additional receipts for storage units they send an officer to figure out what it is they sent another officer to go and execute or to go get a search warrant and this isn't like say twenty where the officers just happy see you don't bother to get a warrant here they were on their way to do it but for the defendants interjection of no surgery because i want you to take me to jail i mean that's a thought in here they would have had this information utilized by the subjects but if there was a vehicle you know in toledo and they they still got a piece of they found a piece of paper and searching his house said hey actually this guy has some vehicles revs to do in ohio they couldn't call and have somebody go search that vehicle i mean the particularly requirement you have to say the place right here that the vehicle is associated with the house i mean it's yeah but but probably the language of the war is on the loose on that point that i mean you as opposed to the calls associated with the individual question whether it be valid if it's covered apparently unrelated vehicles unrelated to the house it is don't believe that we have a vehicle that's unrelated to the house in this case and in it in addition i would just note that the vehicles p c discussion does talk about the vehicles that mr price drives i would have to go back and look to make sure that the vehicle that's discussed here is the same one that they found up front is that what had them know so that i could really get profuse rocks at a lot of your calls so what happens is they execute the search warrant at the house they find these receipts for what our store is has a storage unit on it somebody goes to that unit which is far away for i don't know within the they were able to get there within you know half hour probably but right not with not not located with the process right so the officer goes there and they discover that the two storage units are actually a mailbox in a parking spot has a van on it and the van has license plates that don't match the truck don't match the van but they look at the bin number and the vin number indicates that it's owned by mr price so at that point another officer is going to write a search warrant search of it go get the warrant they go get the warrant but they radio back to the house and mr price who has been begging them to take him to jail at this point because he doesn't want to be labeled a snitch and all the neighbors are out on the porch is watching to see what's going the unconsented to search right it's inevitable because they were going to get we are going to get a war and if this isn't a case where they had p c and they just didn't bother to get it or they can you know said well i could have got it no they were on their way but one thing or no and you know look if they had probable cause to get a arrest warrant for mr price before they even executed the search when they could've gotten that warrant the same time they got the search warrant they didn't  there's no i mean if they had the probable cause and whine at what you just go out because and the reason they might have had probable cause at the time he was detained in all fairness is because  things happened well they were going to take him down regardless so they they did they took him down but they didn't do it in the immediate vicinity of the premises where you know i mean maybe they were maybe they work but i mean we don't consider it's not a question of their subjective intent ok well you know my argument is if they had the probably cause they should have gotten  warrant they should've gotten the warrant for mr prices arrest they should have gotten the warrant for the van because the officers should have been on notice that their conduct in this case was getting perilously close to crossing the line given the bailey decision if you're going to be careful if you're go queenie if that wasn't a case of them having enough information to go and get the warrant on and if their conduct in that case was not sufficient to bring it within the ambit of the inevitable discovery i want to get back to if mr price had spot of the police wouldn't the logical thing at that point for him to do would be just leave the scene completely logical thing but why go back when i know you know the eighty five in fact let me ask you just a credit if i may just real quick on the inevitable discovery if he does not give the tainted consent what happens if actually factually on the basis of this record what we had was the discovery of receipts in a truck which may have been within the purview of the warrant which was not on the premises but they find the receipts and they go are in the process of getting warm and i guess one could assume that they eventually would have got one but i don't know but i mean if we say ok they had probable cause that warrant that they were on the way to to get they had probable cause and we take out his tainted consent here we take ou rast or whatever you want call them all together and it still seems to lead to getting a search warrant for the van that has the weapons why isn't that whole discovery if you if you're going to take out facts that you've got to take out the fact that the truck would have been there either they wouldn't found the receipts for the stores which truck the one he was driving right yeah that's so i just want to you know me ask you one quick question there's just a lot of factual deep in this case i mean why number one why is he parking this truck in the trailer in the road and why is he walking to another vehicle and then driving away no idea what i mean can we can we say that that that adds to this suggestion of a flight and i don't think so why i mean what they're doing and if you do in selling drugs and from the cops if they're there if he knows that they're there i mean there's a slight i don't think you can say that it was  let's you he knows you he has to know what he's running from the behavior becomes particularly odd when one thinks about the weather conditions how so well it just seems to me that you'd be if you were going to be running around to this extent at sad your residence given the weather conditions you would have had to have had a reason that seems to you pretty good to do it like engaging in a drug transaction i go to purchase store and there's duck roads are awful i mean people travel during bad weather you know and that's the bailey and the government at page thirty one on their brief relies on the the old summer standard they said the police acted as swiftly as practical to detain him for investigatory purposes well one for investigatory purposes and yes they may have acted as quickly as practical but that was michigan versus something which was cabin by bailey ok i think you are at the end we appreciate very much the arguments that both of you did given and you very important service to your client and to the core