thank you that concludes the argument and miss foster's case so i'll now call the case of the united states versus willis maxon and mr blank and others know my name is david marcus i represent or can splunk before the court is the issue of whether or not the wiretap application that was submitted to the district court to the district court was adequate my argument is that the application had material risk representations in it that cause the issuing judge to believe that a wiretap application was the only way was was that was necessary and was the only way for the government to proceed in its investigation the primary deficiency in the affidavit is that the affidavit described their confidential source as a member of the d t o drug trafficking organization who has a limited knowledge of the operational activities of the d t oh that statement was accurate it was false in fact the agent at the hearing admitted that the confidential source was a lieutenant in the drug trafficking o rganization and that he actually was the less see of one of the stash houses of the organization at the hearing on the motion to exclude the wiretap dea agent had no explanation for why he described the confidential source in the manner that he did and he had no explanation for why he didn't inform the court that in fact that person was a lieutenant and the  lessee of the organiser of the stache ellis how would that have made a difference if he had done that because i think the agent would have been able to further investigate with this confidential source and it it conveyed to the judge that this confidence will source was less involved in this drug trafficking organization than he really was which may or complainants not for earthed wiretap application because he was dead by the time the second application was made correct yes but the first wiretap application my client is picked up on that wire he's an aggrieved party and the probable cause that was generated from the first wiretap is used in the second wiretap application which is the wire tap application on mice my client there was probable cause independently of the in the first application correct i mean there was all the activity at the time of the of the search and and going into the stash house that actually was in yes or there was probable cause but that doesn't mean that it was necessary for a wiretap to be had there were other investigative techniques that could have been done including what were those they could have placed a track on my client's vehicle and i believe that the explanation given for why they didn't put the tracker on is inadequate they could have followed pitt who later became known as the defendant voltaire who was supplying the retail enforcement decisions to that degree to determine whether or not they're in their judgment they were when they make a judgment about about whether it's risky to follow a particular defendant or maybe it may uncover and cover the entire investigation if they put on a tracking device should we be in the position of second guessing those decisions i think you have to salute you should be because the court needs to make a finding as to whether a wiretap was necessary if the police are just allowed to make who clue saree statements without review by the court then the necessity argue the necessity requirement of the statute becomes meaningless th marianna my name is roy kahn i represent willis maxie he's the talent here and was one of the defendants below different than mr marcos's client my client's participation in this alleged conspiracy occurred on one day of were that he was a individual in charge of a particular stash house this actually initiated all the investigation and the wiretaps that followed against alleged coconspirators this case began on july ninth two thousand and twelve when a detective ogden learned from an informant that this particular house may be a drug house containing drugs and weapons the informant according to m testimony was uncorroborated never tested the information and the source of that information was never substantiated it was just an individual saying there's a drug house on this location the police started doing the right thing they set up surveillance multiple cars set up surveillance on the premises within that thirty minutes of that surveillance two black men were observed leaving the house getting into a black pickup truck and departing the premises without any probable cause or any founded suspicion or any type of activity that can be deemed suspicious the vehicle was stopped and identifications obtained search for contraband was negative no criminal activity the two gentlemen were allowed to leave by these police officers unfortunately the two gentlemen returned back to the premises that were under surveillance and which time the police misconduct begins the individual vehicle pulls up into the driveway an order is given to raid and detain tend officers five police cars approach the premises the two individuals not having done anything wrong or having any found that suspicion of illegal activity were arrested taken to the ground five of those officers approximately go through the courage of this premises it's a link to the gate fence around the home and to through the gate approach the front door of the premises at least one of the officers according to the testimony both at the motion to suppress and at the trial had his gun drawn other officers surround the house knocked on the door mr macksey is in the house he opens the door the question is at this point have the police violated any constitutional right of mr macksey who was the resident of that house they answer is yes the government has relied a posse in that there was a show of force at that or at the government relies on the knock and you can you answer the government's argument that the blinds were drawn and therefore whatever the show was was not seen by its audience government argues a subjective knowledge requirement on the part of the tenant of the house that in correct according to jarred dean's and walker which is this court's decision following the same analysis as john dean's it's an object of standard it's an object of standard whether the police act in accordance with the custom when the objective standard be whether a reasonable person in maxis position would have understood that there was a show of  believe that the i mean if you're going to be able to back your ally you waiting the i'm sorry judge no i mean if there's if if people surround a building and nobody knows about it who's inside why would that and no reasonable person inside could be tenant of the people and the premises where the drug sniffing dog was brought upon the property whether that person knew there was a violation of the fourth amendment or not is irrelevant this is a violation of the curtilage of the home and the cases on that is if i could interrupt you for a moment or con then you can return to judge walker's question your curtilage argument as i take it is not dependent on any show of force correct i agree right correct that's what i think judge walker's trying to get at that if you're relying not just on the intrusion into the kernel a judge right that that at least i speak for myself that may not require any subjective knowledge on the part of the occupant of the home or the owner of the home but if you're looking at the use of force and whether a reasonable person would feel free to leave or feel that he had to you know do what the police asked him to do then it might become relevant current my argument is not that he complied voluntarily when he opened the door on the knock the argument is the first stage when the police enter a home's curtilage it is a trespass and a violation unless it falls within a certain exception the exception relied upon by the government that this was a knock and talk charge deans that lays out the narrow exception for knock and talks that is that the police are given the same license granted the same rights as the general public that is customary in this country so the u p s person the meter reader all have a right to approach a front door and speak to the occupant how about a sales person even a sales person any type of person that our country recognizes that license to approach a front door and talk is the same right given to police provided that they do it in the same custom and manner that's open to the public in this case that's not what occurred so how could the how could i don't want to make you argue against yourself but how could they have done it appropriately in this case if at all all number one by first discussion of certain facts where establishing police misconduct attempting arresting people with no probable cause and no evidence of criminal conduct had they during the surveillance without approaching this vehicle and arresting the two black men who did nothing had they merely approached the front door when they were conducting to say a valence had to get to give it time to knock on the door and see what's going on that would have been fine it would have been no issue but instead what they did is illegally detain and arrest people who did nothing wrong show a full force and it wasn't the requests the quantum it's of dried beans were not met that is but those those things you just mentioned are irrelevant to correct but it shows that they violated their dictates of charge correct it goes to the second issue and the third issue on the fourth amendment violation that being the breaking open of the door when mr  standing there responding to the knock and they break open the door to arrest him when he had not given them the key to allow entrance into the premises and the no other or third issue being when he when the door was broken open and this the maxi was removed across the threshold taken outside the police on their own decided that they would search the house they claim it was a protective sweep but there was not a single articulable fact presented at any time either in the motion to suppress or at the trial that establish that there was a reasonable suspicion of other individuals being at the house in fact mr macksey spoke to the police there for minutes was standing there present when they broke open the door and there was no indication of movement or any other evidence that there were people in the house so their entry into the house even if jar dean's requirement was met even if they knocked on the door and soar into the dark room cocaine sitting in a bowl in the living room and that probable cause to arrest existed without considering wang song and fruit of the poisonous tree even if their arrest was legal when they broke open the door and took them out of the premises they had no right to then conduct a search in the house without getting a warrant underpaid that was an illegal search there was no excessive exigency nothing established in the record thank you thank you good morning good morning may it please the court tonya long for the united states but asked this court to affirm the district court in this case i'd like to start with mr macksey and i'd like to start with an issue that is the primary issue in any fourth amendment context which is the issue of standing and in this case the court can affirm for any basis supported by the record in the government asked here that you affirm the denial of mr maxie's motion to suppress based on the fact that he failed to there several nights that he had been there at nights the past three or four days on and off but he also testified that when he was there he was never asleep that he was there just to pay the bills that he  there he paid half the rent he did testify that he paid half the rent but and i think also that he had been kicked out of his father's house so he didn't really have anywhere else  mean there's no evidence that you have anywhere else till you're are you testified at the hearing that he really lived at his father's house that he kept all of his clothes editing was that he had been kicked out of his father's house when that part of his testimony i don't believe that was part of his testimony at the suppression hearing that may have been part of the story that he told the police when he gave an interview with him the night that he was arrested but i would have to double check on that your honor but what he did testify as a hearing is that he that he did not know the leaseholder that well that he only had access to the living room the kitchen and the bathroom he had no access to the bedroom that the only property of his that was present there in the residence was his wallet and i that he really lived at his father's house that's where he kept his clothes and everything that he was at the stash house for a few days but not every day just to pay the bills only and then he when he was there he quote never be sleep so the evidence here establishes that mr massey was just the night watchman who was the cut man at this property which is used just for commercial purposes to package these drugs when he is but if if he used it all the time for that purpose and was there all the time the commercial nature of the activity wouldn't impact his expectation of privacy right well your honor in the case of united states versus cooper which we started in i was quoted in united states versus ribera own it says that there's a lower expectation of privacy in a house used mainly for commercial purposes and that to have a reasonable expectation of privacy you must establish that your guess for personal reasons he was not a resident here there's no evidence that he actually lived here in the district and so finding really gets around and i think that the magistrate judge really kind of passed over this issue during the hearing there was a statement that an abundance of caution there was standing here and then there's just kind of a footnote dropped in the reporting recommendation that they're standing and citing a case for the overnight guest so i think the magistrate judge here really wanted to get to the merits of the issue and didn't give him a full fright  you i think that this was a knock and talk by these officers yes your honor i think that the most important issue to focus on here is the real question is when detective ogden approaches the door and knocks is he lawfully in place because at that point when mr macksey opens the door there's a company by four other officers the testimony was yes between four or five officers actually approached the door in this case and at least one arm we think have a gun drawn right one officer did testify that was officer carde so he testified that he had his gun drawn in a low ready position he testified that it was in a low ready position and the magistrate judge found that it would not have been you a bull by mr macksey certainly at the time mr macksey open the door it would not have been to a ball because that in we introduce the government's exhibits in this case showing that the windows were blocked there's absolutely no indication that mr macksey knew anything that was going on outside the house at the time he opened the door and it seems that counsel is conceded they're not arguing that it was an involuntary opening opening of the door that mr number of policeman police who can go up to and i can talk that says if you if it's two that's fine but if it's more than that it's not fine no you are your honor not that i was able to find in my research and such a bright line rule would kind of go contrary to the reasonableness analysis that we have under the fourth amendment and i would point to a case like kentucky versus king which was the supreme court case that found that you could have a police created exigency and in that case we had multiple law enforcement initially stopped in the car and then released and then he returned along with codefendant pierre was not part of this appeal to the residence the officers also arrived and when he saw the officers he took off running  the officers had the informants information yes and then they also had the fact that blank had had tried to run away having been in having been surveilled coming out of the house which arguably i suppose we could reinforce their their belief that there were guns and drugs in the house and that if there are guns in the house and the police are coming then that raises the question of whether what they did was a was could be considered appropriate given the fact that there might be some danger there well your honor they took some tactical positions around the house because of the danger they sent multiple officers to the door but none of that really and that was reasonable for them to do given the knowledge that there may be weapons inside the house is a talking a successor to exit circumstances is that what your argument well not exactly your honor because i'm not arguing here that they had reasonable suspicion to enter the house this is the not going top this is them going up to the door and knocking and mr macksey opening it voluntarily but i think under the circumstances here it was reasonable for them to have some coverage in case something turned bad at the door when they opened the door it's very possible here that mr x you open the door he has the assault rifle you start shooting and it's reasonable in that situation to have other officers kind of in other positions where they can cover the officer at the door if that happens that didn't happen here when the officers entered the first went through the first yes into the into the yard where they do were who went to the door and did others go elsewhere well detective ogden who is the person who primarily testified to seeing the drugs in this case he said he testified that he walked directly to the door that he was with three or four officers who were behind him other officers testified that they came different times to the door officers there were two other officers who testified that they were on surveillance at other points around the house now they didn't testify as to whether they were within the c without but just didn't really do we know whether the gate was open i don't think they went over a fence but it was a gate open when they got there do we know is there any evidence about that you're on of it there is not any evidence i was able to find in the record of whether it was open it certainly was not locked but i don't think any of the officers remembered whether they had to open the gate or if they simply walked through an open gate but here what we have is another question where we have to look at mr max's point of view for his reasonable expectation of privacy and if that was actually encroached in a way that led to this covering up evidence now there were other people who were detained on the property mr blank who ran and was detained at mr pierre but the detention of them did not in any way affects whether detective ogden was lawfully in place when he goes up to the door to knock he's going up he's doing a knock and talk he does not demand that mr mexican out of the door he does not in any way force his way in before seeing the drugs in plain view and mr max's will is not over borne opening the door so the question is the other officers presence on the property does that someway invalidate this entire county or kind of from the beginning and government argues that it is not oh i think i mean for me i understand your argument it from my point of view pronouncing that correctly was you know the police have the same right to approach a house as any other citizen you walk up you knock on the door let's see what they say approach the home by the front path not promptly wait briefly to be received and then absent an invitation to linger longer or leave so that's one thing about whether whether this was a knock and talk but whether mr maxie's will was overcome by a show of force it is another in my mind do you separate those two things i think we can separate those two things yes and to talk about the first thing jordan is a case about whether this was a search there was a dog being brought up right they did a dog sniff they found drugs dog alerted they never even went to the door just went back and got a warrant and then serve the warrant so what you're doing the saying is you can't pretend you can't pretend that just because you can go up to the front door and knock on it that it's not a search when you bring a dog and specifically search that area and it was not limited to a dog and the you know judge scalia justice scalia also  said you can't dig through the bushes you can't do all of those things just because you could walk up the front door but the key difference here is that the officers are not searching they're on the property but they're not searching it would be one thing if they're digging through the bushes when they're taking tackle positions and they're finding evidence now they're thing if when they detained mr block they can see through a window and they can see other evidence that then leads them to go up to the door and knock or provides additional evidence for the search warrant none of that happened here none of the officers other prep other officers presence on the property actually led to the discovery of any evidence and so because it didn't lead to the discovery of evidence and it didn't impact the decision to go up and knock on the door it really is irrelevant in this case for whether there was some kind of infraction that led to the discovery of evidence the exclusionary rule only applies to conduct that results in discovery of evidence here and there was no difference for mr maxie's purposes if detective again had been alone and walked up to the door and not still mr macksey has opened the door voluntarily has exposed the drugs behind him to plain  not material in any way because the affidavit very carefully set forth what the primary c s did know that he was a former member of the organization that he had limited knowledge but then it also goes through and talks about some of the knowledge that he did have and things that he didn't have that the cia asked was not able to go back and re infiltrate the organization because it was a close knit group because they were suspicious of outsiders and also going into the next test of the component component components there's lots of reasons set forth in this affidavit about why these other techniques additional surveillance would not lead to this coverage of the evidence that that they needed and would not be viable and that's because there were counter said surveillance techniques that's because this is a six a very against small tight knit community where there are lookout there are people keeping watch and i think that the affidavit did a good specific job of laying out all of these risks and all of the reasons they would not be able to get the evidence this way this was not just a blanket pro forma affidavit it's very specific about what they did what they considered trying and why that would not work so for those reasons we asked this court to affirm thank you very briefly in rebuttal i'd like to return to the question the judge walker asked of should you be second guessing the police officers and i would ask the question is if not you then who because that necessity requirement in obviously has to be some review clearly but you know courts review and those in areas where there is some latitude and discretion i mean we are we for to agencies we defer to fabricated in the sense that there were there were no prior efforts to to to search to or to to engage in you know law enforcement techniques and or effort at the f a if the warrant was saw as a first as a first order of business rather than later on that would be the courts would step in but i my question is that when the details of what technique to use and whether when they say they're going to be at risk in a certain way how do we how do we know that they wouldn't be i think you have to consider what they say but i don't think that just because they say that the court should automatically accept it and i think that in this case when they describe their primary informant as and leave out the fact that he's a lieutenant in the organization and as a lessee of one of the stache osas i think that's a glaring misrepresentation of the court for saying that in the present tense or in the past tense  in the present tense he was still in your view a member of the organization no i misunderstood the court's question he was a past member and he was the lessee of one of the stash houses of one of the organizations so he had far more knowledge as a lieutenant and as a less see than a somebody who is described in the affidavit as a former member with limited knowledge and i completely understand the argument but your contention is not that at the time the affidavit was submitted he was still lieutenant and still leasing one of those dash elss no it is not was that he was it was a foreigner knowledge and that status at the time described correct and my contention is he had a lot more knowledge about the operation of the drug organization than was described in the affidavit tha brief time i have it like to address first the judge walker's concern about the subject of knowledge of the occupant of the house as to what the police were doing outside that is not the standard set up in charge dean's made that point oh i'm sorry i question is it could be subjective in the sense that if he saw a bunch of people these he thought that they weren't if he saw people out of people that he could he could that the government then would not be in a position to say well there's no evidence that he really paid any attention that would be subjective the question is what under what occurred here what would he have reasoned what would a reasonable person have concluded that that's not the stand they set out and tried things i want to quote to the court of page fourteen seventeen here however the question before the court is precisely whether the officer's conduct was an objective only reasonable search here their behavior objectively reveals using now you're confusing reason the search search aspect with a show of force aspect a show of force has to be perceived to be a show of force otherwise it makes no sense the show of force discussion your honor is only to show they didn't comply with what a reasonable person would do in approaching a house for for any purpose or given the license that they have to approach the house i see so you're not arguing that i'm not arguing the show of force where the opening of the door was based on this that show of force shows that it's far afield of what the late just scalia was talking about when we give the license to police to come up to someone's property through the c brought a dog in but so is this it's not an issue of why and what you were doing there as far as gathering evidence or complying with the requirements of jarred teens for example in my home if you would never expect on a community standard for your mailman or your salesman or your meter reader to come there with ten people with guns drawn approached your house grab two of your guests are on your property throw them to the floor that's not in the license to approach a house nor is it a license given to the police reverse drug sales tactics while is extremely strong but it's  not the license that jar deans is granting the police that is the same license given to the community at large so from that point on everything that happened was inappropriate and illegal nothing else i'll sit down thank you thank you