morning counsel good morning your honor jonathan chanelle on behalf of michael john i'm going to try to reserve two minutes for about all the other the briefs in this case hit on a lot of issues this is actually not a complicated case everybody agrees the district court and both parties that the risk of mr john was illegal and everybody agrees that mr chang had standing with respect to that frisk under the fruit of the poisonous tree doctrine that is all mr shaw needs to suppress all of the guess that there's no other evidence no other facts in this record that are at all interesting i just there are a lot of interesting facts are like yeah well i guess i mean it seems to me that you're focusing pretty heavy but the bottom line is there's no question that your client has no standing to search or to if you will object to the search of the area and therefore anything in the car in the parking lot the police can get without problem i was only reason that we get to your specific way you came up and phrased it is because you want them to only be subject to this frisk that was illegal but there were other things that were going on that are not illegal two responses to that your honor first under the fruit structuring under the fruits doctrine if the area where they were the car can be for searched without him having any problem with it and if the parking lot can be searched without any problem or that then anything they can find there regardless of what happens with them frisk is ok i do respectfully your honor how do you get there only by saying the only way they knew about those was because they frisk and got the key but the bottom line is there's no evidence to effect other then when things happen so respectfully i disagree on it all began with i'd like to emphasize that it's the government's burden to establish that the latter search was not the fruits of the first understand and as far as the evidence pointing to the fact that it was the for it's which is in our burden of proof but there is evidence in their record it's not just that close temporal proximity it's also a direct logical connection between the papers and the key is there any evidence the officers took anything from his possession anything except that he well the for the office is there any evidence answer a question i know there is not to looking at the evidence and i'm trying to suggest what it is here again i'm at the point where i say you know i'm trying to look at the area i don't think there's anything that says the government couldn't have got there as to the items seized i'm trying to think what was in your client's possession there is no evidence that the stuff was here is in the car or in the parking lot there's nothing in this record nothing submitted by your client just that you argue that you dropped the papers inadvertently but that has nothing to do with it before the district court you didn't even agree that you possess the papers so again i'm trying to get there but i can't so that's why i'm asking you it's not correct that mr john believe that finding is that page seventeen of the excerpts of record or eighteen what the district court found is that there are some documents that were officially incriminating and some that were not and there was no record evidence about how these documents were arrayed once they fell off his lap so for example there were no books that there was nothing facially incriminating about in the district court says i don't know if these notebooks run top of some of the papers that were officially incriminating i don't know how these things were laid out there's no record evidence on that question so that you ever challenge the record evidence that an inventory search actually took place well but what we're looking at here now is why would not this evidence have been found anyway correct you know the bottom line is if they can do an inventory search and you don't challenge the impoundment then how do we how do we deal with this because there's no question after finding the papers in the car they had probable cause arrest if they had probable cause to arrest they could have found the key they could have found the papers so i guess i'm trying to figure out where you're going on well so you've thrown out you've thrown a lot of  i've tried to put the evidence says it is for us so with let me try to take it as i can respect to the inventory search it's the government's burden to prove that inventory search what actually happened they have to prove that discovery was an abbot a bomb and in this case they presented no record evidence that any inventory search took place of the vehicle they have evidence of an immature i'm shaun's property which fell on to the ground outside the vehicle but there's no record evidence that an inventory search of the vehicle was were on his lap that requires proof of an intentional act and there's no proof that he did this intentionally so the government has i don't and i don't understand that argument but i didn't it's can see that that they have the right to ask them to get out of the buy a pat down search and even though the key was probably stolen he has standing to a two to object to it but i don't understand the standing argument with respect to stolen mayo that was not honest the relevant point that's when they approached him they did nothing through approach they approached the car so he said and they looked fully ask him to get out of the car he has he may have been in possession of them when he was in the car and if they if they had illegally ordered him out of the car that would be another story because i'm running out of time but we set a case called fernandez in our brief where the search also happened when the defendant was not in possession of the property he had pointed  someone else took it and this court held the still had standing over that suitcase because the government hadn't met its burden of proving abandonment even though he didn't possess it at the time it served and i'd argue the same analysis is appropriate here when i was standing at the moment the police approached him and there's no proof of subsequent abandonment well i'm sorry but you have the burden of proof an issue of standing and you chose not to have a hearing so you were content lie on the on the report that was prepared by the by the most angels police and the application for a search warrant but i have two questions first there in the course of the oral argument in a transparent envelope that and i quote you could see right through and see that there were checks and other people's names that was a representation that was made by the prosecutor it was not challenged except what was challenges that the defense counsel did i get there was no evidence i had that envelope and other papers and the networks are all arrayed so that there's no proof as the district court found that the officers could actually see ok so your argument is that they hadn't gotten the key stretch to say that they would just say wouldn't have looked at they found somebody sitting in a stolen car and they wouldn't have looked at the papers they would have just said here take them back if you haven't found the key is that your argument my argument is there's no suggesting mr chang was suspected of any crime and the government has never suggested he was the district court found that these papers were not facially incriminating and it's possible that the police officers were to look through the papers but there's simply no proof to that effect record i would encourage you to look at the district court's fact finding on page eighteen of the excerpts where it explains why there was nothing incriminating in plain view and that's that's a fact finding that would be reviewed for clear here is a curious thing about this case is that you chose not to have a hearing  i don't know of any case that would deprive this court of that discretion but i do think that the government to agree to litigate this case on the papers and so the relevant question is which parties have met their burdens based on the papers but i don't know of any authority this court obviously has bro decision i think so counsel in this case and i do know this case beloved by counsel was of the opinion is my understanding of the paper's sufficiently established both standing and the fourth amendment violation you are looking a little again i thank you good morning your honors may please the court my name is a neal and i represent the united states in this manner i i want to start by discussing three issues related stand in your honor but first i want to take the factual question that judge korman raised as to how the papers were arranged the translucent clear plastic on the lope only contained checks of one of the victims the rest of the items the record reflects were loose they weren't it's not like everything was in this clear on it was only checks as to one victim it was essentially a folio chats as to one victim so what the district court found was the officers could see the very top sheet of those checks and therefore knew what those checks were the other thing i would add your honor is that counsel has repeatedly stated that the district court found that there was that there were there was nothing facially incriminating about the items that were dropped but that simply is not correct your honors what's best not correct is it's not correct that the district court found that or it's not correct that there was nothing incriminating but you let your argument  it's not correct that the district court found that there was nothing facially incriminating as to all of the items your honor the district court's finding was limited to a few items that were proport of lee that were purportedly owned by defendant's parents  as an aside your honor and this is reflected in the record the government does not agree with the fact that those were defendant's parents but but that would that's what the district court's finding was limited to from this one factual course when are we talking about checks outside of the the the evidence that was submitted to the court includes checks that were outside on the logs your honor checks that hadn't had been filled out checks that hadn't been filled out well i thought the district court see it that the check correct register with the numerous blank discovered the discovery the district court looked at the fact that there were other items that the defendant did not have standing to your honor that there were a number of checks and mail i think belie the police report indicates that the suspects property was in fact or different than an image or a search of the car or in the record does it reflect that there was an inventory search of the vehicle the record reflects that the police officer searched the vehicle for search where in the record is there evidence of that your honor below the way that the parties construed l a p d report was that an inventory search actually occurred and the defendant didn't argue that an inventory search didn't actually occur in the record may i look to see that the parties agree that there was an image or research of the vehicle i don't have the exact page reference your honor but it was in the oral argument were you the attorney below i was yes i was the attorney is there anything in the record that fits for the policy of the police department regarding inventory searches usually we all have a written policy that talks about how human tori's searches are conducted and when their conduct is there anything like that in the record i don't believe that the actual language of the policy was attached but i believe that reference to the policy was made in the response by ripa lo and the cord just record below found that  inventory search generally in these records we find a policy that allows us to suggest the inventory search could appear and i agree with you i don't think there's anything in this record to suggested but it seems like the district court said that there was such policy and therefore it did occur but i guess that's my worry with the inventory search situation and your honor what i would say is that in most cases the question is whether an inventory search will occur here the parties proceed on the understanding that an inventory search had actually occurred the other thing i would point out your honor is that the district as that's on page twenty three this court decision says the evidence is undisputed that the officers did in fact collect the papers from the ground and inventory them but there's nothing said about inventory in the car yesterday on or i don't understand why you extrapolate from that that the parties agree that there was an inventory search of my recollection of the record year and i don't have an exact paid site is that there wasn't a question as to whether an inventory search occurred the the real question was asked to legality in the district court found in the government argued before the district court that the defendant didn't have standing to challenge the inventory search the defendant in his reply brief before this court raises the inventory search that argument wasn't made in the opening brief so i didn't have an opportunity to respond to it but a problem i'm having is that it appears that the court was using inventory in the context of in that's been collected and not doing an inventory of the vehicle once it's been impounded it may have been your honor but i think that taking a step back if if i may the fact is that the papers the defendant dropped on the ground were were they were at first they were held openly on his lap the record reflects that they were and i quote lying on his lap then he dropped them on the ground your honor we would argue that that doesn't indicate that defendant had a subjective expectation of privacy it's not like he concealed them in a bag it's not like he concealed in a briefcase and virtually opened now even if he had attempted to protect them in some way he then dropped them on the ground the officers saw them on the ground so at that point our position is that the officers were entitled to look at it it doesn't implicate the fourth amendment at at that point your honor regardless of whether there was a later inventory search of the car or not the officers saw the papers john i understand that argument but your response to two points on it your honor the first is that we don't believe that that argument perceives in the way that pulliam in visions the sargon perceiving podium is very clear that the that the the resulting ill again of the the items that were discovered have to be the have to be found but for me let me rephrase that pulliam makes clear that evidence will not be excluded as a fruit unless the illegality is at least the but for cause of the discovery now defendant in his reply brief says that that's not bootstrapping but we believe it absolutely is your honor especially in this situation where the defendant because the items were stolen and then dropped openly on the ground did not have a legitimate reasonable expectation of privacy either as to the location where the items were dropped or as to the items themselves the second point i would say in addition to pulliam your honor is that the district court did not make specific factual findings as to this fruit's argument because it was an argument that was new in the briefs before this court the record doesn't reflect that the defendant made any fruits argument as to the arrow key in before the district court so i would say that to the extent that the court feels like the record needs to be further developed and that would be something for the district court to do your honor but we don't believe that that's necessary here because the send send the case back the only other than i just want to answer that question is your argument the same you made the argument about the papers that were dropped when the defendant that the car is your argument the same as to any papers that remained in the car yes you are yes your honor because he doesn't have standing to contest the search of that vehicle he didn't have a reasonable expectation of privacy in that vehicle it's essentially the same as dropping them outside the vehicle in a public place i believe so your honor at least i want to detain the the different court found that the officers were entitled to order the defend out of a car and the district court also found that the officers would have reviewed papers in the car  the district court found that the mismatched license plate creates and i quote a strong and reasonable presumption that the vehicle the license plate or both are stolen so so i mean what i'm looking at here cars unregistered there's evidence the other people other people on the car and their improper plates is that's fishing grounds to arrest the defendant your honor it's an issue that the district grounds for ricin it's self or what i don't know what i don't know the answer to that question your honor and i haven't i haven't i haven't really thought about whether or not there's grounds for arrest but i do know is that the court found that the officers did precisely what officers basis for an editable discovery correct yesterday and all of the district court sliced a little fine in that respect because my understanding of the district court's reasoning was that the district court said that there was no issue as to the search of the items that the defendant didn't have standing to those are the stolen items and that the officers would have through a through a search engine to arrest discovered the other items that were purportedly owned by his parents but which the government did not believe  said we ask you if there was a basis for ricin you weren't able to a tick you lay the basis for rest i'm not trying to be evasive don i'm just trying to say that i didn't understand the district courts i'm asking you not what the district court were asking you was there a basis for rest at that point under the law assuming that the papers had not been looked at your honor yes even of the mail was a properly examined at at that point your honor i don't think that there was a  basis at that point and i thought oh if there's no basis then there's no way to get the key period if if the court believes that if that the defendant retained a legitimate expectation of privacy in those papers then i  agree that the analysis would likely stop there except for the fact that he doesn't well no answer to this question the the answer your honor is that the district court didn't develop this record because the parties argued standing there are additional facts  do believe could be developed but the district court those were not developed for the district court so to the extent there is need to be developed believe that there's a that's an issue that the dish of course should address i think thank you one minute for standing over the papers but regardless of this court's holding on that point under the fruits of the poisonous tree doctrine the logical and temporal proximity between the frisk and the search of the papers entitles mr john a your argument i want to be sure your argument is that they would not have looked at those papers but for the fact that they found the key that is my argument but i would also put it in terms of the government's ability to prove that they would have an isolation now so you have these police officers who have at least a good reason to believe that this car is stolen and they then and there's a passenger in the car and some support the proposition that it would have been the normal police officers were would not have just given him the mail back and let him go without looking at your honor i think that the fact you mention it might be a reason why the officers could have looked at john's papers but there's just no record evidence that they actually would have the question is whether these particular officers would have looked at the papers if they hadn't first illegally discovered evidence that race especially of mail theft which makes papers very suspicious of course you know the officers who encounter stolen car can be suspicious about any number of things but the question here is whether the government has proven that these particular officers would have still search the papers and i don't think the abstract principle that stolen cars are associated with crime is enough to meet that burden well there are cases for example i think that hold guns or such are so intimately associated with drugs that  know one one investigating drug activity and i have a reasonable suspicion that a person may be armed i mean there are certain there are certain facts of life  that we could take judicial notice or have celebrity like that you're on and i think you're right that it could support a reasonable suspicion but that's just in question from what we're confronting here which is whether as a question of empirical fact these particular officers would have still looked at the papers and i don't think that abstract connection is and so if we send them back for a hearing it would be the officers having to testify that they would have looked well and the court making a credibility determination about whether it agrees that they would have led when there's no suggestion of that in the report now suppose suppose suppose you get you you you you went on that point is that in the case i mean it seems to me that his accomplice buried him and terms of her statement to the  postal inspectors and he would not have been able to take the stand to refute it because they could have used even illegally seized overnights to impeach credibility so what do you win so that the question is even if you run this notion that they would have just spent it in the papers back without looking it up so i didn't litigate this case below but i did talk to mr john's trial lawyer who was of the opinion that he would not have pleaded