it please the court and good morning brian butler from the federal public defender's office on behalf of mr schramm mr schramm right to a fair trial in this case was violated by the repeated it mission of minimally probative and highly prejudicial evidence that tended to portray him as a serial criminal and thus not worthy of the same level of due process that an ordinary citizen enjoys that came in that in three forms one a video of mr schramm being arrested in a traffic stop which could have been assumed to be a dui stop but whatever it was assumed to be the jury saw him in handcuffs on a prior occasions in the form of a  audio recording that where he was answering questions about another assault and in the form of a photograph showing him problem counsel said this is the problem and so that's the way he was looking i think that the way it was analyzed by the district court judge was  it's hard to under state the prejudice in a in a case where identity is the issue this is not a kid case about mens rea or something else this is a case it's a whodunit and it's really hard to understate the prejudice of the jury not proper for a for evidence as well i mean and i think this is the other point about this is under this court's opinion and luna were identity is the issue the evidence has to be distinctive and this wasn't distinctive evidence it was evidence about wearing having a cell phone smoking a cigarette and wearing a hooded sweatshirt and the government conceded that the hooded they couldn't even tell if the hooded sweatshirt was of the same yes we'd argue that it was plainer in this case when it comes to the audio recording one there was plenty of other evidence from which the jury could could compare the voice there was no need for the district court to admit this highly prejudicial recording but it also wasn't distinctive evidence the testimony was that mr schram had a gravelly smokers voice and there the government presented no scientific evidence about how to identify a voice but certainly if it's true that some people who smoke have a gravelly voice that hardly makes it distinctive evidence and other evidence was allowed in regardless of that and  finally the the other piece of evidence i mean the district court allowed in a photograph of mr schram was with shackles and the purpose was that somehow his canvas tennis shoes were distinctive and i think the comment was well they certainly have a distinctive shape i don't i don't know what that means in the context of a shoe they could yessiree have seen i mean i looked at the picture i could make it well i stand up and argue this i want to get your take on it is that let's assume under luna there were some errors here luna is a pretty strong case for you and no doubt about it but they're going to say look you have the cigarette outside you have two people lunsford in the niece who identify as a voice from the tape and you have the backpack and the letter from your client to the other niece telling her to pick up the backpack and basically i'm paraphrasing here don't tell anyone about that i've asked you for the don't don't tell me what about this backpack the backpack happens to be very very similar to the one that appears in the video the government going to say look even if there was a loon error here was all harmless or what wasn't plain because of all of the other evidence and  response well thank you for that question i mean there was a cigarette butt with mr strands of d n a on it outside of a minute market where there were numerous other cigarette butts and that fact alone only shows that he was a cigarette smoker and that he may have visited that convenience store that's in his neighborhood at some point i thought the clerk said she had just been sweeping the sidewalk and so she was swept away the other cigarette butts i don't think that i mean i don't think that evidence was particularly credible or would have been persuasive to the jury that beyond a reasonable doubt mr schramm was the robber just based on a cigarette but it's more than that it's also the voice recognition of the niece and her fiance yes and and and as i said you know the the there was no scientific evidence offered that the niece or the boyfriend would have been able to identify that voice the only evidence about the voice was it was a gravelly smokers voice and  be fair you've also mentioned the backpack the backpack with something that is in mass production i think those three facts this i don't think this court can say that mr schramm would have been convicted beyond a reasonable doubt based on only those three facts which is i think why the government press so hard to parade all this other prejudicial evidence in front of the jury the second way that mr tram's rights were violated was by the warr search of his girlfriend's residence where he was a social guest and i think the first issue is whether or not he had a reasonable expectation of privacy and the supreme court has clearly said that an overnight guest has a reasonable expectation of privacy and even in what i get this wrong and carter where the supreme court said that business guests don't have a result the expectation of privacy justice kennedy said they the guest you don't we show a connection to the property i think it's arguable that mr schramm was an overnight guest to you know the testimony that was undisputed was that he had spent the night there on many occasions i know i think absent the stay away order i think you have a good argument the problem is there's that stay away order in so how do you get around that stay away order here well the supreme court  ruckus disavowed the sort of bright line test based on sort of common law property notions and basically said inciting katz said we don't look to property rights or those kinds of things to determine whether someone has a reasonable expectation of privacy and only be a subjective expectation that subjectively reasonable and more recently in bird versus the united states the supreme court rejected the idea that the fact that the defendant's name wasn't on a car rental agreement negated his expectation of privacy so i think the court or the district court erred in just making that blanket statement about mr schramm expectation of privacy is there of first impression to analyze that expectation in you these circumstances i think in some respects that's true although i think bird it certainly tells us where the supreme court the supreme court might view this issue and frankly i think rockets also points this court in a similar direction it's not as though mr you know the government i think points to a footnote number twelve where they talk about a iran ful presence on the property but this isn't a case where mr schramm was a burglar or was trespassing he was invited into this home but there's a court order saying he can't go in there there certainly was but i got a trump par isn't there a third third circuit case which is not good for you and good for the government on this issue by my recollections you may be right yes this court certainly as you know is not bound by that  it looks like i'm out of time though you know ok thank you can will probably give you a minute for a bottle thank you very much please the court amy potter on behalf of the united states i'm going to start with the suppression issue and the cornerstone of the fourth amendment is reasonable in this and in this case we had a violent robber who has it's ups condit from probation and who officers believed and the district court found had probable cause to believe was in the home of this victim what they did is they talked to the homeowner missoni satterfield and the specific detective to talk to miss out her field was detective ford who she referred to as bill she knew bill because bill had investigated the assault case that resulted in the probation by or the probation order that prevented mr schramm from having contact with miss satterfield at all and also prevented him from being at her home at all so they talk to miss out or feel and they do they tell her hey look we think he's in there we want to go in she says no they tell her look you could be guilty of hindering if he's in there then they decide you know what we're just going to get a warrant and when they tell miss satterfield we're just going to get a warrant they don't ask again for consent as district court found she simply says well wait a second bill how about you and i just go in there together and detective well i'm not willing to go in by myself but let me go in with you and one other person and they go into the house that's reasonable what the defense would have them do is leave and leave potentially a violent domestic abuser in the home of this victim who also had probably robbed a bank and at the time a potentially armed bank robbery again there's no evidence later that it was armed but he hinted at the gun in both the minute market and the bank robbery and so when you add all those things together this was reasonable it was reasonable to go into the house and look for mr schramm when they found mr schramm they left they obtained a warrant and then they searched the house and found the evidence linking mr schramm to the bank robbery and with respect to the issue of whether the domestic violence restraining order is an issue of first impression i do think in court has to to trouville i not sure how to say it seven forty three f thirty eight eighty one and it is cited in our briefs is the closest case on point from the circuit there are district court cases that i did not present because i didn't think third circuit district courts would be all that compelling but they found that and they based it on ruckus that that presence in that house was wrongful and that no society was not willing to recognize a reasonable expectation of privacy by a domestic abuser that had been forbidden from being in that location by a court and again this was a condition of probation it was not something that miss satterfield could amend and it was not something that mr schramm could amend the only people that could amend these conditions were the probation officer and the court and so i believe it's reasonable i also think that mr satterfield gave consent and the evidence before the market the government alleged that it had been mr schramm and they relied on several pieces of evidence obviously we've mentioned the cigarette but what is critical about the cigarette is there's testimony by the clerk that she went outside and she swept up and she saw guy smoking he was wearing a sweater he had some facial hair he was talking on a cell phone and he had a raspy voice and she watched him put out the cigarette and step on it and then she went back in and later  identified that same person as the robber the government then offered identity evidence to prove in addition to the d n a that mr schramm was the robber that evidence included the sweat shirt which a similar sweatshirt was born th ree weeks prior during the traffic stop that was entered into evidence so at the traffic stop we have this distinctive sweatshirt it has no drawstring and grommets and ribbing we also have mr schramm wearing similar shoes three weeks before we have mr schramm in the video step out of the car and step on a cigarette we have mr schramm with a cell phone in that video so it wasn't just one sweatshirt it was a collection of identity issues that the district court viewed and determine was more probative than prejudicial and it district court is tasked with that he carefully reviewed it he indicate on the record boy that doesn't look like a dui stop and allowed that evidence and he excluded other identity evidence in terms of oh ye cigarette outside i would link to the back which is distinctive it's not just the nature of the backpack but also the way the string is tied is similar so there's that evidence and then there is the voice id the niece the niece is fiance and then also detect a ford all identified mr shams voices the voice of the minute market robber and there was also some evidence that he had frequent in that area so that would all be evidence that he in fact was the robber would you characterize that as overwhelming evidence i think the d n a combined with the voice identification was overwhelming yes your honor i think it's sufficient to meet the standard that this would not be a case we need to reverse the voi down the street looks like that you're on our i believe trial counsel is faced with a very difficult issue of identity they looked over the evidence they presented it to the district court and they wanted to put the best foot forward they could in terms of the trial and i think different evidence speaks to different jurors different ways so they were looking to link all the chains together in terms of stablish mr identity and that so they found the evidence that they presented to the district court and it you know with respect to the video the district court gave a limiting instruction that was requested by the defense there was no other limiting instructions as far as i can tell requested by the defense for the other evidence but the jury  it was a continuing objections to the very high prejudicial value of showing these prior police contacts i think that's the key thing is encounters with police it's being  stopped i mean it almost readings you know i mean to if he's been arrested or had these contacts with the police it's many times he has to be guilty we got are certainly that was not the government's argument or intention i think with the dui stop that was three weeks before the robbery and that was a separate police contact i believe the audio when you listen to it it actually appears that mr schramm was the victim of an attack as opposed to the assailant and certainly with respect to the pictures that involve the shoes  there was other evidence in the trial that he had been arrested for the minute market robbery on september twenty fourth those pictures were from the arrest for this offense so i think the jury knew and had expected in fact that he had been arrested for this particular robbery so that one was not so much a separate police contact that came out of his arrest for the minute market robbery but we would stand on that this was harmless and that there was overwhelming evidence of mr error this was highly prejudicial but there is a very welcoming evidence and it's kind of the concern that the government had this overwhelming evidence it should just stand on it instead of overreaching and putting in all this extra stuff that probably wasn't necessary for a conviction and if if we don't reverse some of those cases in the government has no incentive to just stand on evidence that this is strong enough anyway and not overreach and inflammatory we tiriel it's just a dilemma when we look at this from the whole judicial system i understand that and obviously i'm here arguing to uphold the conviction and arguing over well meaning when your trial counsel a few weeks before trial you don't ever think your case is overwhelming usually because that's why it's going to trial so you know they were trying to prove identity they presented it to the district court the district court i believe did a careful analysis and decided the three pieces that we're arguing about were not overly prejudicial now there was other evidence the district court excluded so i don't believe the district court abused its discretion i certainly understand the court's concern and it's one i'll take back but i think in this case the conviction should not be overturned i think sometimes when you reach for that one last cookie you can knock the jar off the shelf i understand and i'm sure they're watching right now and will have heard rule and they do so and yet you're conceding on appeal that it applied so that says to me that they had doubts about whether the evidence was particularly the id if you didn't have the conversation in the interview with the police it would have been i mean i can see no reasonable i mean you have the harder part you have to show no reasonable doubt so well your honor to that i would just say i didn't intend to concede for four b but it was raised in the brief and i felt at least an obligation to answer the for a for b issue that they raised i think i did point out in my brief that it was very clearly stated below that this was simply a four zero three it was never presented as a for a for b and the district court you know i know it's not analyzed as four four b because it wasn't before the district court my point the brief was to the extent they're raising it in this court is going to entertain it i believe it also qualified under four or four b and that this court could analyze it under those problems but it was not an intention to concede that they had raised that simply i didn't want to leave an argument unanswered in my brief so thank you for your time minutes i do want to just briefly address the government's argument about the validity of ms field's consent because i didn't have a chance to get to that initially as this court is aware of the sort of five factors that go into whether consent is voluntary and i won't go through those but i think what was clear was ms there was a clear effort on the part of the officers to overcome any resistance in the satterfield had to let in that she let him into her home she clearly didn't want them to go into the house they let her know that she was effectively detained that she wouldn't be able to go back into her house until they had obtained a warrant while guns certainly were not drawn she was surrounded by eight officers yes she was threatened with arrest she was not given miranda warnings or notified that she didn't was not able to consent and i think very significantly she denied consent several times before essentially giving in and i think those things are very important in terms of this court's analysis about whether or not she gave valid consent th government also raised its brief whether or not the good faith exception to the fourth amendment applies in this case i just want to know that very clearly does not apply to this case the united states versus leon as this court i'm sure is aware involved in a situation where officers went to the trouble to get a warrant and that warrant ended up not being supported by probable cause the supreme court is also outlined a couple of other exceptions in herring where the failure it was a warrantless search but where the failure was not updating the arrest warrant database and in davis where the officers were relying on binding precedent none of those things this president this case if there was a fourth amendment violation here it was a deliberate act on the part of these officers to overcome her will to allow her consent of this case that there's evidence that she was protecting him because she was afraid of him certainly there's evidence there was a no contact order i'll concede that but that at the time that they were approaching her that their concern was that she was afraid of him fact she was afraid of them she may have one of them to go get him and take him out of the house i thank you very much counsel thank you to you both for your argument briefing in this case matter is submitted