guerrero was walking through the woods when he tripped the game camera and alerted law enforcement to come to his location they used a canine which alerted on a backpack that he had once he was found in separated from that backpack and they unzipped it about six inches peeked inside saw that it was full of drugs secured the backpack and mr guzman guerrero took him down and informed the court of that received a warrant searched it found a lot of drugs so you can see that if the agents had not taken that peek that they nonetheless would still have gotten gone and gotten the warrant yes so then i guess it seems to me your case is controlled by our precedent that just says when a search warrant affidavit contains some law obtained evidence and some unlawfully obtained evidence the right thing for us as the reviewing court to do is to simply excise the unlawfully obtained evidence and assess whether the remaining evidence is sufficient to support probably cause and here it seems like it is so what if that's all true that it seems to me you lose so what what am i missing well i think that that accurately describes certainly a franks type challenge i think the distinction right challenge because the peak was disclosed to the magistr judge so there was nothing material that was withheld in the search warrant i think i misspoke i'm envisioning a title three wiretap situation where there's information that's in there that shouldn't be in there and it just gets or it's a misrepresentation just gets crossed out first of all i think that that is dangerous law and dangerous precedent i will concede that it is the law and it is the president exercising  the tainted ok in the in the situation of a title three i just think it's i think it encourages misrepresentation by law enforcement where the worst that could happen to them is it gets sort of crossed out and re evaluated the misrepresentation that's what i'm having trouble with yes i'm addressing judge watford's argument under a title three type analysis i don't think under a search warrant alice this it quite applies i think if you conduct the search and then inform the court that you conducted the search an application for a search warrant i think that's a little bit different situation i'm not talking about misrepresentations we have many cases dealing with search warrants in which you look at the four corners  law and that are you conceding that that you then lose under that framework or uncharted interrupt if i were arguing that the search warrant was invalid yes i'm not arguing search warrants invalid i'm arguing that the search took place before the search warrant the peak was the a lawful search i thought the evidence was that the dog had alerted to the backpack and coupled with the pre stop investigation that ice and the border see what's left of the defense case if if that's all true my perception of it is that that is all true and i conceded in my briefing that there was ample probable and i appreciated your concession i just i mean are you asking us to overturn what i think is a law on excising tainted material and then looking to see if the remaining allegations are sufficient to establish probable cause i think we're talking about two different issues excising for the purposes of determining whether a warrant should have issued or was valid is sort of one and i think that's the second thing that your honor addresses there the first one is where there is probable cause and a warrant would would have been obtained there i think is where that what i'm asking the court to do is essentially uphold wryly that's us versus riley at two twenty four federal third ninety six is from this court from two thousand and in that case what happened was the court found inevitable discovery up applicable where the agents had probable cause and would have gotten a warrant inevitably so you're arguing independent discovery versus independent source the government is i'm arguing that the prewar peak should be unlawful under the same theory that riley holds which is though there was probable cause inevitable discovery doesn't apply to a situation where you would have gotten a warrant anyway and the reason i think it's the case in riley and why it should be the case here is it's a bad precedent if you tell law enforcement you can peak and then you can get a warrant based on the peak and the worst that will happen is we will excise the peak that's just it puts it further erodes our fourth amendment liberties and i opposed that i think that they've been eroded enough ok riley is different tell me if i'm just looking at my note here in that case the government never did get the war correct and that's what seems to distinguish our case i think the supreme court addressed your concern i can't remember which cases it maybe it's the murray case where the court said look the government's not going to want to do this because what it will have to do then is take on the added burden of establishing that they would have gotten the warrant anyway and in a lot of situations they won't be able to do that because you would be able to show that you guys had no intention of getting a warrant was only because of what you saw during the peak that led you to go in and do it so here you're conceding that they were going to get the warrant anyway it seems to me that's what dooms your case if you could show otherwise than maybe we would have something to work with right well i appreciate that i'm not arguing that they would have gotten a warrant inevitably conceding i'm not conceding they would have gotten a warrant regardless i'm conceding that there was sufficient evidence of probable cause i thought your concession went to a little further right in your briefing you conceded that the agents intended to get a warrant regardless yeah that's how i read the very well my other thought that was what you said at the earlier in your argument before us here today are you now withdrawing those two concession well no i i think it's fair to assume that the government would have gotten a warrant i don't know but the problem with upholding the trial court's decision is it permits them not to i mean remember well what you're arguing for you want more deterrence right to deter law enforcement misconduct so that they don't regularly engage in what i will refer to as sneak  peek to see whether or not they're going to be wasting their time to put the warrant application together and run down a magistrate judge and so on that's certainly one of the reasons yeah i'm asking the court to reject the finding below but i thought the supreme court i can't remember the name of the case either but it was a case where they were asked to essentially got the exclusionary rule and there was a discussion in that case about other remedies that are available including civil rights actions against the agents for intentional violations of constitutional right i mean clearly you could make an internal affairs complaint to the border patrol based on the conduct of the agents there might potentially be a bit of an claim that could be brought here the problem for your client is it isn't going to save him from a criminal conviction but he might get some money damages out of the government if the agent's conduct was truly region well that may be the case that feels pretty far afield of the of the heartland of this particular case but that's what the supreme court has said in these kinds of situations that there are alternate remedies besides suppression of the evidence my concern is this mr was just walking through the woods with a backpack on in fact it wasn't even the woods really it was pretty sparse and i'm a backpacker so it seems to me that if the court were to uphold the reasoning of the district court that this is an inevitable discovery situation then  if a if a drug dog if i get stopped and a drug dog alerts on my backpack for whatever reason and they peek inside of it and find whatever then they can use just the minimal facts to establish probable cause tell the ma that they found whatever in my backpack and then get a warrant to search it and that peak would have been lawful concede there's more here i mean they had done you know that informant information they had previously seen your clients car that was that was that was all determined later that was compiled for the warrant and i'm not arguing against the validity of the war at the kind of collective knowledge doctrine applies the knot with regards to when there's a known traffic route moving around that's what the government says well as well that's why they put a game camera there i mean i assume it wasn't to catch game they caught they caught something it wasn't a four legged creature but it was a duel when they found him he was pretty low i guess i guess my concern is i think that this takes another of the many many many steps away from the fourth amendment to permit a prewar peak and i think that based on the president of riley this court can and should reject the inevitable me the district court rejected after the evidentiary hearing the government's argument both that it was necessary for officer safety to look into the backpack before they transported the arrestee and his possessions to the border patrol station and i assume the argument was made that it would have been inevitably discovered when the inventory the contents of the backpack when they were booking him what was it in the factual record  that caused the district court to reject what seems to me to be a pretty reasonable argument you know ultimately i'm not sure exactly why the district court rejected it in  district court's order it in fact i reviewed it i'm sorry i can't remember the case but the district court judge based it on a case that appeared to be that they found very similar which in which the law enforcement was searching through a persons i believe it was personal belongings and found as i read the order that the court analogy guys did this case to that circumstance counsel i'm concerned about the theory under which the district court made its findings it was based on inevitable discovery but this is an independent source case wasn't discovered there was this was found as a result of the search under the search warrant is not correct that is correct john so it can't really be affirmed on the basis of inevitable concerned discovery well i i would say i didn't argue it at the district court and i think it was argued under inevitable discovery it could very well be independent source if it doesn't stand and there are other theories here that might serve but that went well i'm not so sure i'm not so sure about that you know on and reading in reviewing wryly case in preparation for this reilly talks about well it could this be affirmed on the independent source theory i believe so your honor without the actual citations to that it certainly could be i think it's maybe a manner of improper semantics in terming it in  inevitable discovery because clearly the support was in the search warrant the search warrant was based on much more than simply the hypothetical of a person walking through the woods with a backpack  was but but survive an independent source you have a two part test the decision was not prompted by what they saw in the backpack and the information was presented to the  magistrate now that part's ok but the first part did the district court explicitly find that the agents would have sought a search warrant i realize there's a potential concession here but was there expressed finding by the district court i can review the order very quickly in honor i have the order with me i know that they did that and i believe that that was their  intention not because and i think the facts dictate that that was the intention because if they had the intention of talking did the district court make the explicit finding this required on the murray case to survive under independent source you know this is the alternate theory here the agents would have sought this the search warrant as i said maybe the concessions enough but i'm trying to piece this together thank you your honor if if it would help i can peruse the record further to determine if that was specifically stated i was reviewing it in terms of inevitable discovery and i could we could provide very quick what we think was their testimony by any of the agents at the suppression hearing as to what their intentions or whether the district court made findings on that issue or not i believe your honor that it was  i'm sorry don i can't answer that right now since the case agent was an ice agent but the arresting officer was a border patrol agent there correct i believe so so it was sort of a joint investigation between ice and border  this case is clearly distinguishable from riley which is what the defendant supports or uses to support this case in this case everything occurred everything occurred that support probable cause long before the peak honor just for the court first i'll note that in the order denying the motion to suppress the court wrote the court finds that the government has demonstrated by preponderance of the evidence that the search warrant would have been issued on the narcotics discovered  i don't i did argue below and i don't remember discussion of intent it was our intent to get a warrant that's pretty close is it not to would have is what i would have would have is what she said you know here's the thing i am here on behalf of somebody else not myself and so when i make these concessions etc it's it's not necessarily mine they are mine to make however i'm also an officer  counsel here is the attorney representing the defendant if you make a concession in the middle of it in a brief or an oral argument that concession is binding on your card and i'm not withdrawing the ones that have been made i'm excusing my failure to make more so when i say to the court you can affirm on any basis in the record and as judge scanlon points out there may be other theories here but i think that the theory upon which the district court denied the motion  suppress is the wrong theory and if this court affirms that theory that makes bad law and that's what i'm asking you to do whether it's a reman for an additional order or whatever it is i'm asking this court or  disposition on the basis of a lawful theory that the record supported correct and i think our case losses we can do that i think it does and that's the concession that i'm nervous to make right i i don't want to tell you're not giving away the store here counsel it's a pretty