good morning and welcome to the th circuit and also welcome to our busy things students the st case for argument today and you may see the then as the n a c o ongoing pas versus bar and you may p the morning honors make please the court my name is aaron keesler i represent the petitioner who vents young anger on pas i would like to reserve two minutes for a bottle on the right your honor this case is about whether a reasonable officer would know that using a ministre give search warrant for a business could be bootstrapped to allow entry without consent into a private residence and whether that  and if that is a constitutional violation which i believe it is and then secondly whether a subsequent subsequent encounter following that entry whether the government can show that subsequent encounter and the information obtained there was not the fruit of national constitutional violation let's suppose we conclude that the entry in his residence he was told that if he didn't cooperate with the officers at the initial encounter at the home that there was going to be problems he was told that he had to he was told that they were coming into his house whether they like it or not i know you're not asking about the moment but that is important to keep in mind he was later called by the ice officer and told to that he had to go to the post office so he goes to the post office and that's where the this question happens and  the record that the agent called him to tell him to go to the post i don't have that site and i have that cited for me but that your case hinges on that doesn't not right i could provide this i think well or cancel the i think significantly more agree just in a constitutional sense than the facts here even if you're right that there was a constitutional violation and the supreme court said this statement the murder confession should not be suppressed because that would be inconsistent with the th amendment so in light of new york the terrace even if we find a constitutional violation how can we rule that your client statement should be suppressed how do you distinguish new york  when a person allows entry into their home because they're submitting to the authority of the government rather than voluntarily allowing them and when an officer claims an independent authority to enter that home that that  injury is not consensual right but but in new york the harris the supreme court assumed there was a very similar type of constitutional violation and there was a murder confession that followed shortly on the actual entry into the home in the supreme court said that that confession shouldn't be suppressed because it wasn't come about by exploitation of the alleged illegality so i mean i i i would like you to explain asking me and well he asked you about holding from the united states right wing court and your initial response was to cite to a th circuit case serious or do you have some follow on supreme court authority that says harris was wrongly decided no i don't and i'm not arguing that the united states supreme court wrongly decided there's case just that the severity of the conduct in this case is such that  i know there's a temporal argument here and of course the presence of intervening circumstances but the the rd prong in is the flagrant flagrante of the official misconduct and i think that the conduct in this case was so severe constitutional violation to do that without a warrant so they said they would follow my understanding is they never did follow he called he called them ok so that's that's quite a bit different than what you record but there is it's all in the in the petitioners declaration there is no mention of this phone call from the ice agent but the it's in the i can find it well but if that's central to your case i would hope that might have been a citation you know we have that famous case about we're not pigs hunting travels and we've read the record so i just want to get your chronology they said they would follow up they did not there's a there's  there they did not follow up is that true i think there's a factual dispute about whether or not there was a phone call made and what you just told me that he made the phone call you know the there's a the the officer called him counsel your brief says a page three when two weeks passed without contacting mr angolans phone number changed he grew very nervous about what would happen if ice agents could not contact him by phone he felt impelled to present himself at a nearby post office where ice agents were conducting follow up interviews with his sun valley coworkers that's at page two of your very different and that's based on the declaration so you're now backing away from that well i'm not backing away from it there is evidence in the record that officer called you're sure of your service at that issue ok and so even if the ice agent called him is there anything in the record that required him to go to the post office as opposed to the portion that judge bennett just read which is he wanted to find out what was going on and he knew something was going on but stop this i think so your honor i think that again it's important to remember the encounter that new phone number you're ok and so he was doing whether it was voluntary or not he was doing what he was required by law to do correct yes you know he wasn't required by law to go to the address but that's not implicated here and i don't believe and he didn't try to file some form no you so i guess i'm still having some trouble understanding how it is you know he knew some of the people knew something was going on at the post office i have no understanding how it is the chain of events was not completely broken by his voluntarily going to us again because i think the point is that he was told that he had to comply or there would be problems at the house i know i'm going back and the house i thought he he was told that at the house right right but it's still in his mind well but nobody they didn't arrest him correct and they didn't send  morning your honor may please the court my name is andrew mclachlan and i represent the respondent attorney general of the united states the only question that this court needs to address is whether or not the admissions that petitioner seeks to suppress admissions made at the post office because there is no evidence of any admissions made anywhere else were required to be as it were required to be suppressed but before i get to that point there's a couple things that i need to mention right up front st of all in petitioners brief says that he is an alien and is on lawfully present well if true that moots the entire issue because there's he's conceded the case i was going to tell you that the government can't accept his admission of unlawful presen because it's not true the citation that he gives is to some other eight cases not of his own but unfortunately here an argument petitioners also admitted that he was the he's awfully present there is no suppression issue that's with those admissions on the record and that's amply demonstrated by lopez meadows and other cases i just want to put that out there so the court is where it what your understanding of what the records there is about whether the agent's called  and directed him to go to the post office i saw things that suggested that in the briefing but there is no record here about the record there is no record evidence that i could find that indicates that agents called him or that he called them to change his phone number it's mentioned in the briefing but not any of the evidence that i could find and i looked at some of the other cases that are in this immense consolidated record to to try to find if that was a mistake citing some other cases i couldn't find in any cases what i do know however is that this record is a little short on information because of what we what the agency calls the matter bar same as process this prime officious standard that results in burden being on the government that is the affidavit needs to establish something and it doesn't you don't go any further and that's the states that this case got stopped at so what you don't see is the employment records you don't see any of the other information that you might expect to see in a record in a suppression case because that isn't the way the agency process works so that there's two things st of all it means that even if this court were to find that the if the agency was entirely wrong and needs to send wanted to send it back for that purpose that means that it can't terminations not an issue and it would have to go back for the rest of the parsing this process would counsel if i've begun hermance view as expressed even if we assume for the sake of argument that there was a constitutional violation at the house there is no evidence that ought to be suppressed and so the petition should be denied that is correct rather and i think that's if you you don't really need to get past one son at all for that purpose one son was a case of a midnight warrantless entry into of a home and an arrest and a home after which he made admissions and then he was released on his own recognizance and indeed they may they said want to come back in three days and we'll talk some more and he came back in three days and they talk some more and those admissions were found to be admissible under those under the circumstances so i can't see this case was going to immigration court in two thousand and nine and the events took place in two thousand and eight ok i guess far as i know he has not been detained again i think i checked a few months ago but i haven't i haven't read recheck that  the final thing i want to talk about is this chronology that we started with remember that what this record does demonstrate is that there was an ai nine audit there was an audit of employment records back in june i think it was which is when they confirmed that he in fact was employed there that's what the the documents show and they found what they found was and i nine which is evidence of alien by itself in his name but it was supported by a group errantly according to the record was supported by a green card that had somebody else's a number on it was a fake green card and that's why they were looking for that in itself would be sufficient evidence to for removal so these officers as you can see throughout the record if you look at all of petitioners these officers were looking for evidence that the business was doing this as a organized process they were looking for evidence about this guy they already had it and that's what he told them at the door even his own some yelling going on there's some insisting that you tell us the truth and that's you know kind of intimidating there's no there's no doubt about that and in this case if he has this allegation that we're going to come in whether you like it or not i'm not sure that's what exactly was said given what we can see throughout the record of who we were for the purposes here we have to take his affidavit as as her right but you have to look to see what's missing that's what these cases are all about if the alien is clearly leaving something out that would undercut his own case so what happened here is they came to the door they said look magistrate found probable cause that you are lawfully present in the united states you had better talk to us or worry we are going to detain you and we're going to take you back and we're going to question you about this we can do this here in your house quietly or we can do it somewhere else and that's what i read into his record and that's what you see throughout the rest of the record of all of the other cases and petitioner concedes that he was in fact talking to his coworkers about what happened when they were stopped at the workplace so i imagine if petitioner here had been stopped at the workplace would he have made those emissions and this is where harris comes in if you would have made the exact same admissions had he been stopped based on that warrant at the workplace we're not dealing with one of the poisonous tree at all and that's kind of what that's what the hearse and that's why i felt obliged to add here is i was a little surprised to see that wasn't  brief that we'd left out that stage of the reasoning so instead of having this absence of consent simply by saying they yelled at me a lot so i stepped back out of the way and let them into my house and then they all that you support and i answered their questions about my employer instead of what this case is really about is if you look at the other affidavits in the case if you look at the affidavit the fact you have this panel has three of the other cases in front of the submitted work that are going to be submitted you will see there that there's references to the officer saying look we're after the employer if you help us we might give you work and work authorization and making promises but they say they reference this possibility so if the question is he really consent to the entry of his house the answer is yes he'd been talking to his coworkers and they were telling him this is what this is this is what's going on and when he didn't hear back from them and didn't see that possibility this is all my supposition based on what i read into this record but this is what the immigration judge was faced with the immigration judge saw that and saw that these massive gaps were left in his affidavit so to your knowledge is there any record evidence that shows he was told to come into the post office there is no such record evidence there's nothing further i would submit on the briefs nothing further thank you you have to page one thousand six hundred and forty two of the administrative record is and i to thirteen form submitted by special agent and cook and i to their team essentially a so he did receive an intervening phone how the government never offered agent coke or anyone to testify to support you know whether or not this was a genuine remember it's the government's burden this record site anywhere in your brief no no your honor