good morning and welcome to the this circuit court of appeals we have experienced and seasoned tourney's here today so i will keep the introductory remarks brief please be aware of our slight system when you get a yellow light you got two minutes start to conclude redlight wrap it up rebuttal is for rebuttal only so don't raise new arguments on rebuttal get them all out in the original argument and we've of course read the briefs but we appreciate record sites where you are focusing on a particular fact all right so we will begin by calling case number seventeen dash three zero three eight three united states  please the court hosting counsel my name is fred merrick and i represent the appellant when he be mr bean's conviction was vacated by this court in march of two thousand and sixteen and the matter was reminded for the discrete issue of whether  circumstances existed at the time of the warrantless search of mr baines automobile which was parked in his own driveway under the automobile exception to the fourth amendment warrant requirement it is our position that the district court committed clear error when it found that exigent circumstances did in fact exist in this case the physical has already decided that probable cause existed because of the sniff search by officer goods drug dog so that the issue then becomes whether there were in fact the exigent circumstances the court discussed the five factors set out in blunt in its ruling and really relied on three of those five factors and i'll take up each factor as the court addressed it and then provide my response to that the first thing that the court discussed was the degree of urgency which was involved and the amount of time that was necessary to obtain a warrant the court found that there was a degree of urgency involved because the officers were in hot pursuit the trail was hot pursuant to previous cases decided by this circuit and fact there are no facts in the record to suggest how long it would have taken to obtain a warrant in this case and primarily i believe the reason for that is that at the time of the hearing the government was focused upon this being a traffic stop not upon exigent circumstances and so the record was known never fully fleshed out about how long it would take to get a warrant the court talks about the urgency and hot pursuit is our position that the hot pursuit ended when mr bean was handcuffed within two minutes of officer millis of her mills blocked in mr beams car in his own driveway and highly fluid situation own drug dealer who has a gun i would agree with then it seems to me your argument of clear error depends on establishing that prior to the car search all possible gone users were were essentially immobilized that is correct ok and so at that point mr bean is handcuffed and placed in the back of the car their record is confusing about at what point misses her slash being mr bangs wife gets arrested she's detained on list immediately when she comes around the corner we've got seven officers on scene and so some are dealing with her and some are searching the car and they all have a different opinion about at what point she is immobilized and that's what it probably all comes down at but that is is that you're correct and there is no answer for that question based upon the record as we want to lose i mean that's very candid of you i would have thought you'd say the record pretty much with the police chief establishes that she really couldn't have moved well the police chief does my problem with that fact and here again this record is very confusing the police chief who judge put immediately discount his entire testimony says he detains her the minute she comes around the corner so it so we have that as a beginning point and then we have another detention point as being some twenty minutes a we do know that the car is unlocked yes so we do have that fact in the record and i believe all of the officers testified to that and this being testifies to that as well so our position is that the hot pursuit in really at that point and so the urgency ends because officer mills and officer good in fact have a conversation about whether or not they can even enter the car officer mill's testimony is that he doesn't even think he has probable cause to enter the car at that point because all they have is the anonymous tip that mr bean has had the gun and all of us are good then says oh no problem i'll just run the drug dog around the car to see if there's something in the car and i raise that as an issue in my first brave the fifth circuit has already decided that issue so i'll move on but at that point they talked about whether or not they could even get in this car and so the urgency this is not where the officers are running and they're chasing somebody through an apartment complex and they have to stop the individual they've already stopped mr bean they were arrested him for resisting arrest his wife has some point in this is arrested and placed in the back of the police unit the second factor that the court relied upon is the reason believe that the contraband was about to be removed which i think goes exactly to your question again as well the contraband can't be removed mr bean is in handcuffs he's in the back of the is detained there is no one else in the trailer home we know that from the record because they ultimately search the trailer and there's no one there we have no evidence that a crowd had gathered that no one else in the neighborhood even knows that this is going on in fact the only evidence we have about people who might live in this rural area is provided by mrs bin when the government ask whether he's trying to establish boundaries and sidewalks and curtilage but he asked about whether or not people cross her yard and she said no one walks in our neighborhood it's not a neighborhood no one walks there so it's a rural area and there aren't other people know that this is even going on except mr bean and his wife who both been immobilised also the car at this point cannot be moved the record establishes that it is surrounded by a wooden fence on two sides the right side of the car in the front of the car the trailer sits on the left side of the car and officer mills has parked across the driveway so that the car cannot be moved at that point there's no evidence again of the crowd had gathered there's no evidence that the mobility of the car is going to cause the contraband to be removed the third factor is the possibility of the danger to the police officers who might be guarding the site while the search warrant is so here again there's nobody there except mrs b who they've detained mr bean who's in the back of the police car and seven police officers so as our position that at that point any one of those officers could have asked for a warrant in order to in order to search the vehicle which was parked on private property the only officer who said anything about danger in this entire record is officer mills and he says in in response to a question about why he ordered mr bean to the ground it is that he didn't know if mr bean had the gun on his person because he had exited the automobile but once he has him on the ground and handcuffs him he's aware that the gun is not there so at that point the gun is in the automobile mr bean is immobilized the wife is immobilized we don't know whether or not the gun is even in fact in the car they suspect that it is but don't know that so the s are there and any one of those officers including the chief could have asked for a warrant at that time the next factor that the judge will want to look at the judge and not rely upon with a factor discussed in blunt is the information that possessors of the contraband are aware that police are on their trail prior to mr bean pulling in his driveway he did not have any knowledge that the police were pursuing him every police officer was asked and every police officer responded that they had never activated their lights they never turned on their sirens they were simply searching for mr being as part of their investigation to determine whether or not this tip might even be true when they reach the driveway mr bean doesn't scare into his driveway to beat officer mills it's just fortuitous that he arrives there and turns into his driveway and officer mill's then blocks him in gets out of his car and asked mr being to step to the rear so mr bean doesn't know that they're looking for him if the gun in fact is on the premises it has to either be in his car or on his person there is no evidence as to whether or not he could have disposed of the weapon previously when he left the mill street apartment the record is devoid of any evident is to that particular point  and once again mr bean was arrested within two minutes after stepping out of his car of the fifth factor is the destructibility of the contraband and knowledge of that the efforts of criminals to dispose of this evidence is  is known to the police officers here again and we are back to the fact that mr bean is arrested in cuffed and that no one at that point can destroy anything because there's no way or other than the two individuals based conviction based upon the clear error committed by the court may please the court son your austin for the united states district court summarized its holding on page three fifty five of the record as quote there was urgency with prompt action and hot pursuit by law enforcement and the potential for  or destruction of evidence and the potential for danger because of the likely presence of a fire and by beings used the vehicle to flee the scene of the suspected crime and posed the question before this court is whether those findings are clearly erroneous they're not i don't know if they have to physically possess it but there's no evidence in the record one way or the other about how to secure a bridge in this case the point remains that there would be some type of delay during which time the vehicle would be seized while they're waiting for the warrant and there's no fourth amendment difference between a went lisey's or an up or at the search of an automobile the supreme court said that in chambers this court said that you read and so it doesn't matter if they could have seized the car they could search the car so and nothing bad would happen to the car in order for that to be true the car would have to be seized in the meantime because if an auto is undisputed there were officers all around it and the car was blocked by a police car which is a seizure so therefore it was yes and if the seizure was ok then the search is ok there's a little more than a difference between a seizure and a search of an automobile well i'm not understand your legal theory is your theory here the district courts theory that there were exit in circumstances that justified them finding the gun or is it some other legal theory there and it's exactly what the district found that there was an x and z yours was a matter of the timing you're saying at the time they blocked the car that anything that when you are supplying to the notion that they could have just sat around for hours having blocked a car and that's ok because the thing is if they block the car that's a seizure if they are blocked a car the car can be moved while they wait for the war so this case is just like carlton and just like read where simultaneous with the arrest of the defendant and whether other people on the scene who are detained but not arrested and lead the way president said but in carlton there were officers there securing and read those a rapist and a bank robber right and it was undisputed there were people either accomplices or others that had not been apprehended so who are going to draw a direct connection between those cases and this one who is this mystery person that had access to the gun in reid there is there is no they didn't know at the time that they were accomplices mr reid accomplished the bank robbery on his own there was only one person doing the  robbery who takes the money with the tracker gets back in the car you know they follow the tracker to his house so the court finds that the court dockets is missed no opportunity to get a warrant similarly here the officers miss no opportunity because by the time they arrived at not at the time so if you look at pages the testimony of pages four eighty and at five thirteen and the record they say that she was not in custody when the car was a say i'm asking you did the police chief say that she where the court finds that herb was not in custody at the time the car was searched so the court hearing all the testimony from all the officers makes a factual finding on that point and this court has been a factual finding unless it's clearly erroneous because their support and the record for that finding that for eighty and five thirteen it can't be clearly over the confusion on this helps you if it's confusing then we have to go with the fact finding the district court that's correct on it there's also she pointed out that you know they said later they searched the trailer and there wasn't anybody else in the trailer at the time they searched the car nobody had been inside the trailer they didn't know that there wasn't someone else inside the trailer and in reading in currents and this court doesn't gauge a certain amount of speculation about what might happen in the future about if the officers leave the scene other people might come there might be accomplices in carlton the wife or the mother might take the car for innocent purposes or otherwise i'd so there doesn't have to be certainty that something terrible is going to happen is the logic of your position would allow if brandished gone by drug well when he gets home under your theory would they have been able to go into the house without a warrant i don't not the same type of imminent destruction even you see i'll be frank i mean this case has had so many difficulties and it seems to me like a classic case for applying the exclusionary rule you have acknowledged police misconduct falsified a consent report i think i'm right the drug handler ends up getting the dog handler ends up getting indicted and and so you've got a huge amount of police misconduct you've got an immediate ability to call to get a warrant to get article three involved and factually we can debate about this wife who had to be escorted to the bathroom and there's seven officers around her and maybe cuffed maybe the police chief lying there too but this is a very controlled situation it's hard for me to imagine one more seven police officers cars blocked so we say yes what's the rule of law we're saying what's the rule of law going forward you can whenever you've got a gun brandished you can pretty much look anywhere even if you've got seven officers and you blocked everybody in and the only person arguably close to the car is the wife it's to be hard how would you write this rule to a not allow police to always look for guns without ever involving the judiciary the several responses your honor the first is a factual one about whether there were seven officers at the moment the car is searched not ok good you're right it is true that eventually there are seven officers on the scene by the time they're dealing with the m x and the fainting and they search the house but at the time the car is such that all happens before and i think that you know one reading of the records there's only four officers on the scene at the time a pretty good number it's still a good number but but this car and i encouraged him and the police had the house surrounded in redo there were several police cars and at least three officers present there probably more for there to be several police cars so this case is just like those cases there are enough officers on the scene where everything is secure where they're doing the search essentially simultaneously with  brandishing a firearm but you know that's been settled at this point the fact is that it was very close in time to the arrest in reid you know they're searching the car when the defendant is brought out of the house in handcuffs being arrested he sees the other officers searching the car like right at that moment so it's it's just like those cases so even if a court things that the rule on a change prospecting plea going forward no i'm just asking how do we maintain integrity to the words danger to the police hard to see that for me or danger of destruction of evidence very hard for me to see silly here in the it unless the currency that anytime there are enough officers on the scene to secure the vehicle you and mr beings mother shows up and says i'm here to take the car and jumps in is there any basis for them to stop or another she can jump in the car and drive off and if he's blocking her then that's a seizure if they move the  blocking and i'm seize it if you will and she can drive off in that the point you're making yes if there's nothing to keep the car there the fact that you have one hundred officer standing there doesn't make a difference unless you're allowed to seize the car once you're led to seize a car you point out you can search it this exact so i guess that's the problem we have here i did go back and look at your side so that's what i was doing up here and one officer officer mills says that when they did the thing with the day they were still just talking to mrs hart the chief says first that she was or were arrested at that point but then he backs off and says well off i wasn't really right there obs are crooks was an officer crook would know what's going on so the chief equivocates of it first says yes consistent with what my fellow pal members have been saying and then later backs off and says well kirk would know better because i was really off in the corner here i didn't know what was going on so that's the evidence on that so i suppose if it matters whether she was handcuffed at the time of the search there was inconsistent evidence on that i think there's you're right aaron thank you for pointing that out it would also say that i think she wasn't handcuffed because if you follow the timeline with everybody agrees that the car search happens before the emergency medical personnel show up and her story about the seizure or the fainting whatever it is that happens that causes them to call the illness it doesn't make sense if she's hand cuffed when that happens i think you know the timeline only makes sense that she's handcuffed after that incident so you know again the question is clear error the district court's finding explicitly finds on page three fifty two that she was not in custody and it's three fifty five that there are all of these factors in there we're talking about narcotics we're talking about a gun that those factors are present in cases like coolidge where the car had sat for two weeks and the defendant had plenty of time to destroy the evidence and the police had plenty of time to get a warrant this case is just like currents in and read the officers missed no opportunity to get a warrant and if they can seize the car they can search it the only way the i c c dissipates is that they can seize the car the car was  right thing i'd like to begin by pointing out that i just searching the record in ups or mills is the person who's testifying about misheard at five thirteen a cheap smith's testimony is on page six zero six of the record and he at that point says that to yell out again start with the officers at that time we in comes to so that is chief smith's testimony as ok i was using i'm sorry i was assuming five thirteen was a cheap thank you that is a challenge also mentions that was that  that i didn't go back and write and the chief's testimony is that she's handcuffed almost immediately after she comes around the trailer it here again and the record is not clear because both of those people have differing opinions but the chief says and after shortly after coming around the training the district court had two opinions first one we were verse then the second one finding exemption see is this is that was the first one have any indication as to know and this this court re mandated specifically for those factual findings so i also would like to distinguish read and carlton which are that a two cases that the judge relies upon can read that opinion written by the district court really rely primarily on the banks beeper or transmitter that had been placed and with the money had been in the car and they were very concerned about whether another bank robbery would be committed and beepers would interfere with each other and that's what provided the exigency in that case really not the fact that the and that is the one where white was in the color and  so this is in this case we do not have that we don't even know that the gun is in the corner in that case in read with the bank robbery they knew that that radio transmitter was in the car and wanted to shut that down does it matter that the chief was i want to look to what you pointed out i still i'm not real clear on the timing as he said they were starting to cover when she fainted and then they cuffed her after she fainted but in any event it kept saying she's not under arrest just detained to take the senate can it difference because then once she stops agitating they have to let her go if she's not under arrest it can't take her back to the station and put her in a cell like they can with mr bean who said they were detaining her because she was being agitated whatever and so given that is she really secure for the period of time necessary to get the warrant because you can't just detain somebody forever if they're not under at some point they can cut her for resisting arrest and place her in the back yeah but he's saying that's not arrest he says that over and over again that she's being detained because of being agitated they're just trying to secure the scene so to speak but that she's not under arrest that's what he's saying and i mean i can go back and read the whole rest of it but you pointed out those pages and i just looked at them and that's what he's saying  he does say that but she is not free to leave at that point she if she's handcuffed let's see we're back to this issue of they've got all this time in the world to go get a warrant and if she's just being detained they can't keep her the for all the time the world wants the immediacy of her agitation is over they have to let her go was a lawyer go she can jump in the car if the car isn't seized and drive off with a gun and i would agree with you except that our position is that we don't know that it's all the time in the world it might have taken less time to get the warrant than it did to get the dog out and have the conversation and run the dog around the car because under louisiana people perceive your it's your ass going to to reverse a district court's fact finding based on facts we don't have and that's the government's fault because it's their burden of proof ok it's their burden of proof before the district court but now on appeal you've got to point to evidence to show that what the district court concluded was wrong we don't have  you can't point to speculation of the warrant would have been quick because we can also speculate it would have been slow and i'm saying we don't know because we don't have any facts in the record and i can't create those facts in the record the government should have presented those facts in this hearing as to how long it was going to take to get the warrant if it would have taken a long time we would be in a different set of circumstances but we don't know how long it would take to get the warrant but in today's world those warrants come officers pretty quickly we don't know when those claiborne parish officers arrive because they were not called to testify so we don't know at what point exactly they arrive on the scene we do know they're on the scene shortly after p m s and before the search