it please the court m j a lansing from billings montana and i'm appearing for ryan says slow and i'd like to reserve two minutes for rebuttal if i could one of the critical issues that we raised in our brief was the issue concerning mr says lo's reasonable expectation of privacy and in our brief what we did is we set forth the fact that the government had stipulated basically with the defendant in saying that mr sis low had a reasonable expectation of privacy in the bedroom of his home that he was sharing with his girlfriend and his girlfriend's mother at the  evidentiary hearing that we had prior to the hearing be in conducted one of the things i did was i reconfirmed that position of the united states that they had reasonable expectation of privacy and that was again confirmed it was also confirmed for the codefendant ms brown and we proceeded from that point forward unfortunately let me ask you this obviously the district judge disregards the stipulation which the district judge under certain sort of nance's is free to do had you known during the hearing that the district judge was inclined to or was tempted to disregard the stipulation and you were therefore going to have to put on proof with respect expectation of privacy what would you have done well there was a couple of different things judge i would tell you that obviously there was evidence that as far as what things were found in the room that connected mr sis low to the room there was clear male clothing in the room there was his wallet that was found in the room there was those types of things i know that during one of the phone calls and i realized there was discrepancies during the phone calls that mr made from the jail but there was also a phone call that he made i want to say to his mother in which he said that he had been staying there for approximately ten nights in the home of ms johnson  the i would of i would have also brought up the whole idea that because of the fact that even if we assume that ms johnson had supposedly kicked out mr sis lo the did not come out on direct examination or cross examination by the government that was actually a fact that came up during the cross examination of one of the government's witnesses by the counsel for available to you evidence that you could have put on that would have contradicted this is it mr slow is not aware of that fact would you put sizzla on the stand to say that i suppose i could have judge i mean obviously anytime you're going to put the defendant on the the judge i believe i would have had sufficient evidence to establish his standing i don't think that this was not a situation where you might have impeached th it comes back to the issues that we becomes them then you are entitled to impeach the ground i would think so judge i mean i realize that there are times when when attorneys enter into stipulations and  sure that sometimes they they may be stretches of of the facts sometimes that comes up in these sexual or excuse me in these sentencing guideline issues that you've that you've seen and  where the parties agree that the quantity is a certain amount but that is not this case but after that after the district court issued the order on the suppression did you ask the court to reconsider or ask for the opportunity to present further evidence at that point given the surprise inherent in that order i did not do that judge and you know i was i was thinking of that when i was getting ready for my argument and i thought obviously maybe i should have done that because now i'm asking you to help me do that so there we are but but i think the thing is is i would i would think that all attorneys understand that the judge is not bound by that stipulation i mean obviously the judge can reject that stipulation but it's the timing and  that you reverse the decision of judge waters concerning the motion to suppress i think you also have to live your judgment i'm sorry we have your judgments well and i think  asking for i'm asking for the court to reverse the decision of judge waters remand the case back for another hearing at which we can address the issue of standing and redecide the issues concerning the suppression of the three firearms that were seized from the bedroom of mr sis lo do we set aside the conviction i think the question is as a reaction to the conviction really is it dependent on a jury verdict the jury verdict was based in part upon the finding of the weapon that was set aside a conviction because the weapon was critical evidence such that we had to reverse going to guest judge and i think that i think that's what you're after happens next well i think there's there's also the related issue judge of the hearsay this is an exam stand later this is why i'm asking the question well i'm asking what you want us to do i mean are asking of relief from this court so i'd like to know why that is your vision let's say we gotten past the point to let's say we were to agree with you and i think we will but i'm saying let's say we do when i mean you must have thought about this but you need oh yes yes and you'll be asked this question what are you asking us to do if it's if if the only issue that you decide is simply the the stipulation issue and nothing else then then i suspect that all you can do is remain and the case back for judge waters to determine whether or not my client has standing and whether or not his constitutional rights were or violated or not so so bring in your other issues coming how these things in the play i'm sorry so bring in your other issues what what what what do you want well when we when we talk about the here say at the suppression hearing that was a major part of the determination of whether or not it was a lawful or unlawful search we believe that the hearsay evidence that was presented at the suppression hearing should not have been admitted if we follow the rule of a no one and if we follow the brewer case so if if we're saying that that evidence does not come in then obviously in that situation i believe the judgment should should be vacated reversed and sent back for a new trial if we also consider no issue i think i think you have i asked i thought you'd  waters oh never got to the merits i would tell you judge of the the search and seizure issue so she never made any really findings or conclusions concerning our motion to suppress all she got t was the issue of standing and that became as far as she got she got further when we talked about the codefendant ms brown ms brown she did get to the question of whether this was a lawful probation search whether this was a lawful consent search and obviously for ms brown we'd sit there and say for the consent search we think that that's equally applicable to us obviously for the probation search we don't think that come in why doesn't the hearsay come in because the rules of evidence apply to suppression hearings that's what brewer in essence is saying and and that was the issue that judge water struggled with prior to our hearing and that's why she actually had a second hearing at which she then allowed the agents to present here say evidence and she relied at that point on the matlock case to say she was going to allow the hearsay evidence in ok can one question before you sit down this is why i think we've established the judge can reject the stipulation of the parties particularly on an issue of law which is really the judge's province can a judge ever reject a stipulation without giving notice of the parties is there any law on that subject that's why i think it's probably a rare occasion where that comes up judge i look very hard to try and find a case that talked about the timing of that  could have found a case i would tell you it would have been in my brief but it's and i guess that's why i say it's just a matter of fundamental fairness judge and in this case there was no inclination she was going to reject the stipulation until she issued the order after the hearing was over is that correct best rich thank you thank you tarka for the united states i think mr lansing raised the critical issue here when he's pointed out that it was miss brown's counsel not the government that put at issue the fact that he misters this law had been excluded from the home her ms browne's position was adverse to mr sis lows on that point because she wanted to be able to argue that that she was not subject to a reduced expectation of privacy because the officers didn't have reason to believe that she was sharing the room with a probationer who would have been subject to a reasonable suspicion search condition how in the world can we trust anything about miss ms johnston in that she couldn't remember virtually anything when trial came around and she had to be shown notes that she signed earlier and all kinds of you know techniques to try to get her to try to remember what was going on how can we trust her testimony in any respect well i think we can trust her testimony i think the important issue with respect to the suppression issue in this is in supplemental excerpts of the record page pages seventy eight and seventy nine she was present and available to testify at the the second suppression hearing mr since those counsel objected to her testimony even though the court noted that he was he was giving up in doing so he was electing not to cross examine her on her out of court statements so he had an opportunity to do so at that point but he wanted to preserve the hearsay objection  soon but at that point he knew at that point he knew that the hearsay was was going to be going to come in the judge had had stated that on the record and i would also point out that at the suppression hearing he did to have an opportunity to cross examine this is supplemental excerpts of the record page ninety seven he had an opportunity to cross examine the police officer with respect to with respect to those statements the statements that he mr sissel had been excluded from the home actually her veracity that that issue right when the you're dealing with the question of what whether the search was reasonable the question in the oats case goes into this the question is whether the officers the facts known to the officers at the time that they conducted the search so the question wasn't whether or not mr johnson was what mr watson was saying is is true in the sort of abstract sense absolutely true the question was whether or not the officers had the facts known to the officers were that she that she knows that we were right so let's let's take a case that's not quite this one i'm going to try to to i'm going to clarify this one artificially the officers come to the door the person coming to the door and lies through her teeth and says he hasn't lived here for five years and of course i have four control over this room and you're free to go in there they go in there and they find something turns out the guy has been living there steadily has absolutely every expectation of privacy and she just lied are you saying that the expectation of privacy is gone because she lied i think and therefore the entire the officers are i should say it this way that the officers are entitled to act as if there is no expectation of privacy if she lied convincingly i think and i'm sorry if that's not a great answer to that question if if they really time so you really have to go and you know they really had no reason to believe to doubt her then they would have reason to believe that he didn't have standing if i could bring back in some of the facts from this case they did have reasoned more reason to believe that she knew that she was the owner of the trailer they knew that mr sis lho had been staying there and had been staying with his girlfriend and put down that his mother in law was his landlord so there was  reason for them to trust her statement that that she was the chief was the homeowner and was entitled to kick him out well but the question is whether she had kicked him out not whether she  indicted to do so well whether the op with the up whether the officer reasonably waved that she was entitle to kick him out in the oats case dealt exactly with that exactly with that issue do we know the order in which they found things in the room did they find his wallet first because as soon as they find his wallet they might say wait a minute she kicked him out of his wall is still here well i believe they believe that it's in the trial testimony as to the order but i do believe they found the wallet first but but i think the important thing there is is that shows that goes to the point that mr cisco sort of between a rock and a hard place here because there's only two tracks either he had no expectation of privacy because he had been excluded from the residence or he was an occupant of that room and he was subject to a reasonable suspicion search condition you know i need to know a little bit more about the search condition  which the dish just doesn't get to as to him what do we know about the condition of probation and the search that could be done the actual the actual wording of the search conditions that supplemental excerpts of the record page eight ok and it was that he i don't i don't have the exact language off the top my head i can look if you want but essentially he was subject to a reasonable search of his residence and he had put down that address as his residence miss johnson testified told the officers that he had been living there for about five weeks the officers independently knew that the that he was staying with his girlfriend miss brown and her mother so that all checked out so there was no question that absent him being kicked out that that was his residence and there's no question that there was reasonable suspicion to conduct a certain and that is your position that he was kicked out and how can a probation searched be valid if he was kicked out of the residence well that's i believe that's the rock in the hard place that the defense is not valid because they didn't have any reasonable suspicion yes that's correct i do think there are only two avenues here either he had no expectation of privacy because he was excluded from the residence or that he was occupying that room and he was subject to a reasonable search condition i think the only two paths to go down and either one leads to the reasonable the search being reasonable and the district court should be affirmed and this court can of course affirm on any ground supported by the record  can i see a question about the stipulation i mean if if a stipulation does anything it certainly lola's parties to rest on that particular issue done and go on you don't have to worry about it any more i mean how can it be fair to reject the stipulation for defendant in a criminal case after the hearing is over when there's no further chance to present evidence on the issue that in this case is critically important i think this would be a different case if if the government had conceded that that issue as a matter of law and then the government had had sort of sarap tissue slee elicited  the evidence contrary to that to that holding and sort of lead the judge to that question but that is not what happened in this case miss miss brown had a had a position that fundamentally undercut mistress this expectation of privacy she brought out supplemental excerpts of the record page ninety and ninety one brought out that he was kicked out and not allowed to return that fundamentally undercut his expectation of privacy and he was on notice that point he had an opportunity to cross examine the police officer and he had an opportunity at that hearing to cross examine mr johnson as well  slows opening brief but i think if you read it supplemental excerpts of the record pages four and five that the defense counsel mentions the stipulation raises the issue of the stipulation and then goes on to address a separate question about handing out pieces of evidence and the court says yes that's fine and that's that's the reference that he's that he raises in the for goes to that her statement addressed the stipulation at all  seven he says judge i have a couple matters to bring up the court that i've discussed with mr sullivan today the government has indicated that it would be willing to stipulate that mr sissel had a reasonable expectation of privacy in the bedroom in its context contents at nine atika with that we thought we would be able to shorten up the hearing a little bit this afternoon and i also discussed with mr sullivan that the government obviously had the burden of stablish in the consent and they're prepared to go forward last judge is that i do have copies of  at least possible exhibits that we might introduce i have one copy for the court another copy for the law clerk if i could provide those to the court i'm not sure if i'm going to introduce those so if i don't all retrieve them at the end of the hearing is that ok the court says that sounds fine question about handing out the evidence in the court just didn't say anything about the stipulation and so when miss brown brought the those facts that fundamentally undercut mr sr standing at into issue he had a opportunity an obligation to respond at that time and i think either way he runs into the problem that he either had no expectation of privacy or he had an expectation of prizes the subject of the search condition unless the court has any further questions just one thing judge you know what at the beginning of the united states response to our motion to suppress and i'm reading here at page seventeen of our opening brief and i'm repeating what the government said at the beginning of their brief as a threshold matter the government agrees that says lho had a legitimate expectation of privacy in the room where the firearms were located albeit a significantly diminished one as discussed i think we know all of that i think argument is you know the government got a position the court doesn't say accept the stipulation that's sort of passage we just heard and then during the hearing evidence comes in that contradicts it so awkward for me to sit there and say so judge are you going to accept our stipulation or not and she would probably say i would think so unless unless something i would be awkward about but the problem with that is judge is that if she's going to do that she needs to do that so that we get an opportunity to supplement the record what the mother said the argument that it doesn't matter either way  then then they entitled the search because she's the landlady and whether she was telling the truth or not doesn't matter well the thing is is is again judge waters never got to the point of determining whether it was a proper probation search she never got to that point judge let me ask you this though as the rubbish and search if he had not been kicked out let's just assume that he's still in that room there's no ambiguity about it at all would you have any defense to the argument that this is a valid provision surge yes judge what would those organs be those are the and those arguments were set forth in the two briefs that we filed at the district court level because they there was there was a conflict as to where he was actually living at and whether or not he and i'm talking about the probation officer actually had proper authority to go over to this nine attica street and search that because it's supposedly is where mr sisler was living at and there were and i would tell you i don't remember all the factors off top of my head for a proper probationary search at this point in time but but i would tell you  the probationer is living at where he had my question was assume that he is living in that room do you have a valid defense to this being proper a probationary search yes judge and what is that defen and what i'm saying judges is there are number of factors that go into determining whether or not it is a proper probationary cert i got that so what's the defense and and all i'm saying judges is i wish i could tell you every single factor off the top of my head i can tell you that they did not go over to his previous residence to see if he was still living there they did not go over and check any of the and surveilled the new residence which is required whether or not he was living at the nine attica street as as she was claiming that he had so there's something in a probationary conditions that require not only that he be living there but that they have checked elsewhere and where he might have been living before there can be a valid like i'm saying judge it's off topic i had i want to say there's about four or five factors that we briefed and that we presented evidence about concerning whether or either he's living there or he's not living there if he's not living there she certainly can say go into my you know place and search around here is the place where you show me the guns and i think that's all there is he's not living there if he has no expectation of privacy that he's fully authorized the right look you know no objection to living there can be well but anybody can say the police come in and search my house right i mean she's entitled to have the police come in and search of this it says you know this is the place where this guy showed me their guns it's my home he's not living here come in and look right can be any possible objection your client has to to do that for me he's living there and you have a you have a witness who is saying there he showed me three guns he's not allowed to hav guns i think i think opposing counsel has or the judge i would say it's it is not as simple as her saying you can search you can search my house i mean why not wise in that simple because it's on that basis that the court determined that the search of the bedroom for the codefendant ms brown an improper search because it was not a proper consent search she did not have mutual use and control over that particular bedroom and so  sharing it with who was ms brown sharing it with mr sis low no i'm so i want to talk about brown's concern right now but what i'm saying is is that when judge waters granted ms brown's motion to suppress it was on the basis that it was not a proper consent search and so all i was saying was is that it's not simply a matter of cannae johnson owns the house so she can consent to go wherever they want to inside that house it is i'm just saying judge i would submit that it's not that simple i'm afraid it is a simple because she may not have she may have search if he's living there and he is you have a witness that says i was shown guns there why isn't that the end of it i understand you ok well i think we've gotten with it we can t