and grant mitchell we have filed a motion for student participation which this court has granted we've also filed a motion to divide the argument time so mr burley will be arguing for seven minutes mr you mr burr yes your honor may i please the court my name is danny burley and with my co counsel grant mitchell we represent the defendant tyrone dexter christian in this case this case is about the illegal search mr christian's home based on a deficient affidavit that did not establish the requisite direct reliable connection the nexus between mr christian's home and the illegal activity of another man reuben thomas listed in the affidavit the supreme court has stated that the very core of the fourth amendment is the right of a person to retreat into their own home and there be free from unreasonable government intrusion it is highly unreasonable to have your home searched after another person seen merely in the area of your home is uses the only reliable evidence to establish probable cause to forcefully enter and search your home the united states brown this court distilled its line of cases and held that if an abbott affidavit fails to  affidavit fails to include facts that directly connect the residence with suspected drug dealing activity or the evidence of the connection is unreliable it cannot be inferred that drugs will be found in the defendant's home even if the defendant is a known drug dealer stale that evidence would only hold up as probable cause to search the home for drugs and because drugs that this court has held many times over the drugs goes that evidence of drugs goes stale very quickly that eight months ago a stale drug subjects did state these things however this court is held in the absence of any indicia of reliability statements by informants these are only subjects but informants there must be substantial independent police crab aeration that occurs after that fact and the only fact that we have posted those statements is the illegal activity of reuben thomas seen in the area of the home in the district court when determined looking at that paragraph the district court even said that that in the area doesn't mean at the home it means it could mean next door maybe one hundred feet away is what the district court judge said as of the affidavit later say thomas denied being at the residence contrary to the observations of the law enforcement officers it does say that your honor why should why should at the residence your honor during being at the residence is contrary to the observations that means he was at the residence i mean you have to make a negative inference imprudence but it seems to be are here looks like a magistrate could interpret those words as meaning he was at the residence and if he was at the residence then you lose on this issue your honor they have if they had seen him at the residence there's really not much your argument is correct your honor if which we don't see but if they did see him at the residence it's still the observations of another man seen at the home in the courts cases or is another man seen at the home and then he then they went and tracked him down or any he had contraband that he got recently your honor we don't know when he got the contraband the government's brief states a lot of facts are nowhere listed in the affidavit between this association between mr christian a mr thomas and that paragraph doesn't associate mr christian to find drugs for mr thomas is simply states they had drugs on his person found a sun i believe it was twelve miles probable cause doesn't mean you're sure just means it's probable wouldn't any reasonable person say that it was probable that there were drugs there no your honor because simply and again a negative inference cannot mean that it's a negative i guess you could guy call that a negative inference but i mean it it's not really a negative inference it's just an inference it states he denied something contrary to the observation of the law enforcement officer suggests to me that the law enforcement in cases the deal with overwhelming evidence that these individuals that are subjects of arrest such as mr christian here are major players in large ongoing drug trafficking operations the evidence here isn't does not describe mr mr christian as a major player in a large church advocate but as to this one all you really need is this one i mean if you if the judge could reasonably infer that this person obtained drugs hours before at that residence had been a probable cause for  things don't do your honor is eight months before the stale evidence that in regards to a drug buy that doesn't exist of any quantity of any type it doesn't state anything and later on we are supposed to assume that turned extradition in six  no your honor the state's argument is not safe because when we're looking at a staleness argument in regards the records we must look at what could have established probable cause at some time in the past and again the only thing that could have possibly established that nexus is eight months ago a stale drug by a single drug buy that did not have the quantity the type or how it was corroborated in height on this court said that we must look at the number of controlled buys in combination with coming and going to the house we michel please the court my name is grant mitchell and i also represent the defendant mr christian in this matter this case really presents the prospect that the coconspirator exception can be applied in such a way that it becomes an exception that swallows the general rule against hearsay in many criminal cases here the statement at issue is one made by tunisia edwards to her boyfriend mr thomas while thomas was in jail recorded and the government argues that she is saying that my client removed incriminating evidence from thomas's residence in that recording she also says he did it he already did it and it is our position that this alleged conspiracy if if it  it's not the type that is contemplated by federal rule of evidence eight zero one t to be in keeping with supreme court precedent on this matter such as greenwald and cruel it's even if it is there's no way and the district court did not find that this statement was made during and in furtherance of any conspiracy so the only theory of a conspiracy that we had before the trial court was one to remove incriminating evidence obstruction of justice or crime like that's what the prosecution argued and so isn't it is central to an obstruction of justice the people who are conspiring know how successful others of so they know to go when they're in conspiracy talking about extending the life of the conspiracy you've said that these are two different conspiracies talking about the conspiracy to do drugs talking about the conspiracy to cover up crimes my question is why isn't it integral to a conspiracy to cover up a crime maybe she was not part of the crime at all but she could still be part of the cover up of the crime right that's conceptually all right if she was trying to cover up the crime the cover up the crime and there was a conspiracy to cover up the crime i'm having trouble seeing why one person can bring to another how successful they've been isn't integral to covering it up if if they had been successful he might say something different when interrogated right that's right your honor and so it's integral to integral to the coverup conspiracy not not necessarily your honor the that's my question watter and the scope necessarily informs the duration and whether or not an act can be in furtherance of a concern ongoing conspiracy and so here although it wasn't argued before the trial court in the trial court didn't find that those that that was inherent make it i'm not i'm just not seeing why not we got to what we you know we got we got we got this where they're not going to find it that helps the person that you're telling you know what to say when he's interrogated  right and it informs the listener of the speaker's past criminal acts and the state of all that's why they want to get him sure and the government why they want to get in but the rationale for letting it is that it's part of a conspiracy contributes to the conspiracy to cover it up i'm just asking why doesn't because your honor the statement was made after the primary central purpose of the conspiracy had been accomplished and that was the removing of the drugs so communicating this to mr thomas to perhaps as the bait now argue in their brief to keep him from cooperating with police that there's nothing inherently criminal about that it's that it comes after  criminal act of removing incriminating evidence which we do not concede but even if that's the case there's nothing about that that's criminal there are statutes that make it criminal to use threats use of force  keep a witness from let's assume you're successful on that argument but you're co counsel is not successful on his argument is with this b arms there certainly are two points on this and first point to page thirteen of the government's brief where they say they say quote the statement was relevant to prove christian had possessed the firearm found buried in his mother's yard for purposes of count two and that's that's really what i want to communicate to this court today is that this is not your typical harmless error analysis here you don't just look at the statement because there's also other evidence that was proffered protected the gun found in my client's mother's backyard that would not have been admissible otherwise the tr required the prosecution to find some other way of getting it in and this was the only other way besides referring to that proffer and looking at those pieces of evidence first point out the sheer frequency with which they were mentioned including four times by the prosecution in its closing argument and again on rebuttal closing arguing that because this gun was found in the backyard you can find it more likely that the other guns were also possessed by my client and good morning my name is timothy for hey i represent the united states on appeal i was also the trial counsel below if i can go in reverse order and talk about the coconspirator issue and whether it's harmless error even if we get to that point i would just draw the court's attention to the fact that while the tape statement was helpful and relevant to link the defendant to thomas for purposes of the drug distribution charge in count one and it was helpful and relevant to connect the defendant to the gun found buried in his mother's yard for purposes of i believe it was count three we would maintain that it would if the if the statement was permitted in error at all it's harmless error because i think it's important to remember that what the police found inside six eighteen granville was a large quantity of heroin up in the basement rafters of christians home and next to it were two other firearms or ruger i think it was a smith and wesson and one of those guns had the defendant's third gun that was found in the defendant's mother's car so i think in that sense it's harmless error because where it doesn't have anything to do with the other two guns and it really doesn't add that much to the distribution charge given the quantity of heroin found in christians house and the multitude of text messages found on his cell phone where he was that all of those are most errors were direct right so as to rest of think the reason that the transcript focuses more on the link between christian and the conversation between tunisia edwards and reuben thomas is because that was what the defense attorney was about at the district court stage there is no connection between christian and that conversation i think we all assumed in the record will support this that everybody understood that the statement plainly indicated that the it up now i think that that part of the test was was conceded pretty much before the district court because there were more focused on well christian isn't a member of this conspiracy there's not enough to link him to it they were really fighting about the third issue what does it really him of the obligation to make the determination well no but i think if you read the whole record in context you know you see the judge talking about it at the final pretrial at the beginning of the trial after reading the trial brief and referring to the trial free for all the issues are there and then the record certainly supports the finding that they were all of the elements were there did he go through one by one and that your contention was quote that the conspiracy was to remove incriminating evidence from thomas home so that thomas could avoid further legal problems write one that the government's there yes well and why one that was already accomplished his neck out and do this is he wants ruben thomas to know that he has done this so that ruben thomas won't roll over on them because he's in jail already making about inference as well i think it's a fair  e for a conspiracy and you're always doing that with with conspiracy law drawing fair inference is the whole point of helping ruben thomas is to keep thomas from talking to the police about christian because he's caught in christian still as far as he knows in business because he hasn't been arrested yet this is during that six hour period after thomas got arrested but before the police hit the house a guy understand your let's talk let's talk about the root the fundamental problem about the certain abilities of the search was for from my point of view this is not a problem because we're starting with the fundamental fact that the police did what we want them to do which magistrate whose job it is to review search warrants all day every day and that magistrate approve the warrant so that's a valid search on unless my opponents can overcome the presumption that it's a valid search and to do that as we all know we have to give great deference to that decision and we have to not read into the  the officers saul reuben thomas wall away from the area of the hail and leave the area in a vehicle and then later on it  is ruben thomas denied that he was at that address and that contrary to observations of the law enforcement officers i don't think you get to avoid the issue and have and expect the court to say something i don't understand it doesn't say we saw the ribbon thomas at this address as we saw him in the area so healthy and can we be expected to preserve that he left but he denied being at that address but that's contrary to observations of the law enforcement officers when they have immediately before that said all we saw him in was the area of the home well i do have to agree that if if sergeant bush were a law clerk or a judge or one of us lawyers he probably should have used more careful words but i would just think if he was a human being expressing what he had seen well i would not be the conditional rest of the record it was a t f agent holder and other people watching he's off getting his affidavit and as judge ocker pointed out one reasonable construction of the wording is he was trying to be careful because he wasn't there one is officers watching six eighteen grandville report seeing thomas in block area in the area but they're watching six eighteen granville not the city of broome rapids not the street that house then they see then he's followed he stopped and he's found with twenty grams of heroin that we reported that chunk for him and it's consistent with being taken off a bigger block of heroin and then as  all know the officers asked thomas where were you were going granville avenue when he says well i was on granville avenue but i wasn't on six eighteen two which bush says that's contrary to what the officer saw so you got to give it some meaning and so i think it's a reasonable interpretation for them as a theory is not contrary to what the officer saw just as contrary to the op off his observation try something let me make sure i get the wording right here entree into observations of the law enforcement officer right that's a page i do you want fifty you think if they're surveilling the house their eyeballs are looking at seven six eighteen granville they would know they  thomas walking in or out of six eighteen or they did and they don't say that in the affidavit you know what i could hardly got to know the importance of trailing who's going in and out of the house they're observing because they think it's a drug house well bush wants to make sure that he's not saying something that's false and since he wasn't there he doesn't want to say that he was in the house when he wanted to say ways he half agent said i saw a thomas walk out house i'm sure bush would have said he was observed i don't want to even i don't want to make that let me ask you this why you know if you've got to have corroboration which typically why wouldn't they have used the same person who did the controlled by eight months before do another controlled by the day before well there's a lot of reasons for  that that person might be in jail on a different offense it might not be out of town for a while wouldn't they have observed the house for two or three days and chalk up how many people are coming in and out and in and out and then when they have get cold i mean they just sort of sloppy police work here well i want to take a page from the right decision where a panel of this court said it's not about what should have been done or isn't in the affidavit what good faith was saying it was not he said quote because the half a day that included no observation of deliveries to the address no monitoring of the frequency or volume of visitors to the house no second controlled by and no further surveillance whatsoever they held that no reasonable officer could have believed the affidavit establish probable cause to search the residence now how do you distinguish that from our situation i don't think i can do it standing here because i would like to read the facts and i'd be glad to submit least force can provide confirming from nation that would enable you to bring that staleness to fruition on the date of the warrant that's brian that's high flown there's all kinds of case law on there and in these cases even talk about the fact that you need to have a of evidence from that surveillance other police corroborative evidence and in most of those cases it's a bunch of guys at the hales the police say ok i know i've got an old bar and i'm getting ready to get a warrant because i want to go inside that house and afghan to confirm it and the way they confirm it is by  staleness forward i respectfully disagree because we also have a statement in the affidavit about four months worth of multiple people saying they're buying large amounts of drugs from that house and they telling us this there's not in that group there's not even an allegation that they are known recognized experienced informants all it is is four people have told us four individuals  unspecified have given us the information that they're that there are lots of drug going on with their hails i mean that's isn't that the kind of generic playing that anybody could say without the without were rising to the level that the law expects of either some specificity or corroboration of the viability of the people you're relying on i think i'll just repeat what the law tells us which you have you have to take everything in the affidavit together not pick out one or two things and attack that all of it together to my mind and also in the mind of the issuing magistrate rises to the level of probable at our best case for your if i didn't point out that this there was a drug buy right there in the driveway right before the surgery right but which which you all talk about at length is what's the difference between a bare bones affidavit that no reasonable officer can rely on and what's an insufficient affidavit that just doesn't have enough probable cause in the key thing that you all point out is if there's any connection to that address no matter how stale or remote then and that's we might disagree about how old they are that their images you've got to show a profit or probability that they'll be drugs found today on the day of the search not enough for the good faith exception according to to wait on page four ninety seven for good faith and remember you've got multiple officers here doing the search not just the afghan including a t f agent drew i forget his last name now who watched the court makes and in white is you go look at the the good faith of the officers doing the search and one thing that we've got to factor in for good faith is you've got officers of seen all this stuff unfold in front of them how can they possibly have bad faith not knowing what's in the affidavit necessarily but knowing what they knew and so you've got that and you've got clear links between six eighteen grand built over a number of reasonable suspicion is not enough to be probable cause i would agree with that there's a different stand i mean like the reasonable suspicion is like a terry stop right out of fourth amendment issue and that wouldn't be it takes more than that we've got cases this a probable cause is more than reasonable suspicion oh yes it's a higher standard than reasonable suspicion but it's not proof beyond a reasonable doubt either it's not a difficult you've got to decide where in this whole spectrum of things this case falls your honour's two points on rebuttal we are not first on the floor of the mission fourth amendment issue and we are not dealing with one of the exceptions to leon good faith here that permits looking to facts that are outside the four corners of the affidavit if those facts were not brought before the magistrate and there's no evidence that they work so we are left with this affidavit we do not see that the affidavit establishes a system for the magistrate the facts that allow him to find probable cause there's so much that is missing there and there's also no reasonable officer could rely on this affidavit because it does not establish except for old and unreliable information there's nothing that says that there's going to be drug dealing in the place that searched at the time of the search and also like to turn back to the hearsay issue here what if what if someone was like across the street from a place that the over the years has been a drug house and then drives off and then later is found without having stopped anywhere else twenty whatever it is you say the area the area to me you could say the area means the whole neighborhood or you could say the area means the front yard and i could understand it either way i mean in normal english couldn't you see him from the area that house if the context is drugs and so forth saying from the area people assume that it's not from the whole neighborhood but it's from someplace close now maybe if they were if the person making the a didn't identify that they walked out of the front door because maybe they didn't see him walking out of the front door maybe they were out on the front lawn or in the group in the driveway or in the street in front of the house he would in normal parlance say the area of the house nexus to the house and there's a nexus when you're departing from an area that's close to the to the house why isn't that a nexus in ordinary understanding especially when you have a whole lot of other stuff which sort of leans that to wait but by itself wouldn't be in the i'm just having trouble seeing why that would be this court has never that would have to be an extension of any holding that this court has ever made and we would ask that that not be made here because of the implications for anyone living in a high crime neighborhood the fact that their home or because their neighborhood come from well speaking of the policy behind turning somebody near somebodies house in a beautiful around the house well i'm speaking of a high crime neighborhood because the implications there are all but all of your own and if we if we accept some kind of reasonable rationale like that we'd have to accept some unreasonable rationale about a whole neighborhood but i'm suggesting that it doesn't imply that at all it just applies the area around the house for the officer if the officer saw mr thomas go in and leave the house that would have been very easy to put in the ad was a true and if they'd seen him with drugs in his pocket they would have had a better case too but we have to look at the case