morning your honour's may please the court john abell here with the federal defender's office representing howard dixon i'm joined at counsel table by my colleague carmen's police officers conducted a th amendment search under jones when they inserted a key into the lock of mr dixon's van this search was done without a warrant and is therefore unreasonable unless it falls within one of the exceptions to the warrant requirements the exception at issue here is the one for parole and probation searches but that doesn't justify the search here because the officers did not have a sufficient degree of knowledge to connect mr dixon to the item they were searching in particular to the van w dixon said in his declaration that he was not approaching the van in fact that he had walked past it and that he was going to be picked up by a friend of his so he wasn't going to drive the fan the district judge should have had an evidentiary hearing on that material fact if th on it and so is that what you want here you're wanting it to be sent back down for that purpose your honor i think the record is not sufficient for the government occurrence burden so my st preference would be a reversal dixon in what he thought was the ban on two previous occasions you agree with that yes that's correct so he probably would have at least reasonable suspicion there the question is do we need or do we get to probable cause based upon the dropping of the key and his moving toward the bend your position that because those are both contested you have to go back for an evidentiary hearing to determine whether that's accurate or not you know i think there are a number of questions there some going to try and answer them all i don't concede that he had reasonable suspicion and seen him in the band practice and if i could explain what i think is insufficient about that is there is a declaration from the officer that he saw mr dixon driving this blue van two times however it's two times over a period of sixty days and records and say when we don't know if that was sixty two and sixty one days before the search or if it was the day before and so for this probation condition to be engaged either the officer has to demonstrate ownership and i think the fact that mr dixon was allegedly driving the van i don't think that goes to ownership  so we consider does it matter that there's ownership as long as he has control correct so it control would be enough however driving a car sixty two and sixty one days before the day of the search we don't know how many days correct we don't know though if i recall the record correctly i don't think your client contested that element of the officers statement is not correct that he had been seen in the van twice before right that's not contest in my class i guess why if you go back to the point does that not at least arguably create reasonable suspicion not probable cause but reasonable suspicion if the district court were to find the the fact that he had been in the car two times i would say it's still not enough for reasonable suspicion because it's consistent with him borrowing the car or with the room a barn a car from a roommate from a friend the fact that he drove it sixty two dollars or sixty one dollars days prior and i those are obviously the extreme limit of this sure but the point is it has to be reasonable suspicion that he controlled it on the day of the search let me let me move a little bit farther let lead to whether or not that constitutes reasonable suspicion is it your position that because the police inserted the key into the lock that that under jones and perhaps hardiness constitutes a search is that your view that's correct i would say jones yes and using it is there any case law other than our analog chalking if it's higher by a parking enforcement officer that was a search there's a fascinating district court decision from the eastern district of louisiana stasi and that found that rabin an officer swiped d n a from the outside of a car a hummer and that was found to be a search so that there's a bit in it that is a surge then i gather your position is that shoes had reasonable suspicion that's not enough you need probable cause right to make the search right well let me present your position so we think that the standard for the  out of information to connect the probationer to the item is is probable cause ok and what what what's your best argument that given the totality of what occurred here based  the st one is the contest and one that he was walking towards the driver side so i don't think you can rely on that and then there are the two observations of him driving the van which we've talked about and then there's the observation that on two occasions during the six thousand and sixty d ay period the van was parked in front of the apartment complex and for the same reason let's drop the key you're right right so the key the problem with relying on the key is that inserting the key was a search and that is always the threshold  inquiry did a search occur and so the government needed probable cause or even reasonable suspicion whatever standard this court chooses before conducting that initial search and i want to point to right i disagree with that and i think that there are reconcilable because jones itself had said that the jones inquiry was their search that always comes before the cat's inquiry and so the way i would read these cases is that this was a search under jones so there is no need for the court to analyze cats and all the reasonable expectations of privacy in currency and grant staff they rely exclusively on cats so this court could find them completely case all the court would have to do is applied jones find that there was a search and then there would be no deed to overrule there would be no need to overrule the other cats based precedents to stretch also a cat space precedent saying that touching a tire was not a search the th circuit applied jones and said it is a search under jones and it was not necessary to overrule the prior precedent and i think that is the route the court should take do you think we can bruise or currency even in the face of yes i think you could overrule it as well it would be easier more elegant i think to just not to do really what the for circuit did good morning your honor is in may please the court my name is sloan heffernan i represent the united states in this appeal district court in this case did not air by denying suppression of the evidence recovered from mr dixon's van or person nor did the absolutely your honor as this court recognized as previously current c made clear that the warrantless insertion of a key into a car doors locked was not a search requiring  probable cause under the th amendment but how can that be squared with jones even if this court were to follow the logic or the arguments proper mr dixon's counsel and say that under jones this is somehow a search which i don't think that it was either i do think that he's right in the sense that those cases can be reconciled jones for one is factually distinguishable from this case and from currency for a number of reasons and just as the narrow issue as to whether or not there was a search in jones there the court emphasize not just how significant the act was of applying the g p s device and subsequently monitoring the physical whereabouts of the car for twenty eight dollars days but also that the officer there had attached that device to the undercarriage of the vehicle but let me just read you a little piece here from jones accords and that when the government  quoting now physically occupied private property for the purpose of obtaining information including of a vehicle is a search that's pretty clear and i think that's clear but it also pretty assumes your honor that that there is a constitutionally protected interest or that the keyhole of the door is constitutionally protected jones didn't necessarily address that and if this court were to find that here mr jones's or i'm dixon's card or had a keyhole that was subject to constitutional protections that still wouldn't make jones necessarily dispositive on the real issue before the court which is now whether it was even a search but whether it would i think it through things w ok so the st question is it a search under currency no it wasn't a search under jones it's a clear question it's a more difficult one if the court were to find that  constitutionally protected area then i do agree that the insertion of the key but let's assume argue when that is a search what is the government's best argument that the police had probable cause to make such a search in this case the fact that its officer who initiated the search knew that mr dixon who had been investigating for a shooting was driving that van on at least two separate occasions in the two months leading up to the search that officer of show had also observed that van parked unoccupied outside of mr dixon suspected apartment on at least two occasions that on the date ochoa again observed that van parked outside of the apartment and observed mr dixon exit the apartment and approached the van carrying two bags and as he approached the van he was  summarizing facts in the case did describe mr dixon as approaching the van when he was detained the other side just says that they dispute that the council disputed that do you agree that if probable cause is the controlling question here that we would need to send this back to the district court for an evidentiary hearing on that issue no i don't agree your honor and the reason for that is even if probable cause where the standard and it's not court has never held that probable cause is the standard as to whether or not a proly possesses a vehicle right it would be if we said the surge was a search answer both of those sequentially it again we're back to whether we need to send this back for an evidentiary hearing to determine whether there's probable cause because mr dixon's counsel says that he disputes to at least two maybe three of the points that you make yes no i do not think so st of all i do think that on this record even before the keys were picked up from the ground that those facts you'd alone the prior is to say this is a certain you're just you just a court figure out whether or not you have probable cause and that is a possible way to deal with that it is a night to be clear that when the court found probable st expressed uncertainty or doubt as to whether or not probable cause was the standard but nd the disregard also said irrespective of everything else and it didn't specifically credit or discredit some of the other fact insertion of the key at that moment there was probable cause so whether or not this court were to find that that act in of itself was a search requiring probable cause under jones the reason it's not barred by jones and why this is still a valid search that wouldn't require remainder would require consideration or decision on some of the more thorny issues is because jones because jones never considered never addressed the reasonable ness of what happened in that case jones merely decided whether or not a search had occurred here there are a number of factors which this court can and should consider suggesting that even if this was a search it was reasonable w right does that lesson or the probable cause as to ownership or control over the blue minivan if he's also driving around i mean he's not you're not a city owned or controlled both cars are you know what the point of inclusion of that comment was it describes his prior observations in the two months leading up to the search oh doesn't that  that that dixon was just a driver not necessarily your honor i think the relevance of that is actually quite limited but i will point out in mr dixon's motion in his declaration submitted to the district court it's also in this court's record mr dixon himself acknowledged that he owned the blue van in this case at the time it was searched and he disputed that officer ochoa had ever seen him i think it was just more the officers attempt to describe all of his observations of mr dixon while he had been investigating him for those two months in relation to the shooting what is the government's position regarding granbury as i read granbury if lawfully is probable cause as opposed to reasonable suspicion for example i'm not quite sure but even assuming all just assume for the sake of answering your honour's question that let's assume it was probable cause or the standard required here for the st time under jones that wouldn't make what happened here any had not only all those officers observations we had a minimally invasive action and we had a defendant whose th amendment rights were significantly reduced and that's weighed against the fact of the government's compelling need to monitor and supervise parolees under the totality of the circumstances and the reduced privacy expectation with vehicles on balance this would make any kind of search irrespective of its reasonable suspicion or probably cost a one hundred dollars it would make it r just briefly the district court did not air with respect to the acceptance responsibility and determination while certain excerpts from the sensing transcript if viewed in isolation might suggest it had a narrow view of its rights or its ability to impose a sentence when viewed in its entirety in the dish or court be quite clear it was considering all of the proceedings that had sat through from the inception of the case through the application notes where it's quite clear disher courts are very clear direction that not only should a reduction after a trial be rare but it sets forth the factors that they can consider early purposes of sale and i actually i respectfully disagree with the defense characterization of that as was argued at sentencing before the district court and in the government sensing memorandum mr dixon when st found with the drugs was shown on video when they were recovered he says those aren't mine are words that affect even at the motion is suppressed hearing mr dixon's own attorney was claiming that the drugs later recovered from his person were not is they were  that was less than two months before mr dixon was later convicted of possessing those drugs but what's most striking with most significant as to that issue your honour's is that from the beginning of this case throughout mr dixon denied those drugs for sale and that the sentencing during the allocution mr dixon told the court i did not possess drugs for you for purposes of dealing on page twenty nine   twenty nine dollars the district court responded to that claim by saying mr dixon i believe that the evidence shows that you were dealing drugs so in essence mr dixon's conduct was lying to the district court judge about what was relevant conduct here is dealing drugs and the district court did find that the evidence showed that mr jackson was dealing drugs that alone mr demento done doesn't the not the sentencing guidelines contain a statement that the is not required to give in to admit relevant conduct beyond what the jury convicted him that's correct your honor think just in that the judge said that i don't believe that you know i think you're guilty is that enough for purposes of relevant conduct the on the offense of conviction in order to obtain the reduction but he was entitled to remain silent as was mr dixon mr dixon took it upon himself not just at the sensing hearing but even before to deny dealing but at the sentencing hearing during his allocution mr dixon chose to relinquish that right and at that point under religion other cases this court has found when he makes a false denial about relevant conduct to the district court veracity can absolutely be considered by the district court judge in denying acceptance so you think that the guidelines bice if you will is irrelevant here because it has nothing to do with whether the jury convicted him it's that he later on got involved in a discussion with the judge the judge concluded independently that he was lying and that's what he would basically a lot well st i don't think that the guidance and the guidelines of the commentary the truthful admission to you or at least not falsely denying relevant conduct here there was clear evidence on the record that mr dixon was in fact in relevant conduct that the report found to be true all right that's telling there's another van another blue van right there next to the van so not only is there this other black car but there's a van to make it even harder to reach probable cause and i want to point t granbury because granbury talks about the reasonableness of the probable cause determination and it says look at the investigative methods that the officers could have that is not take and here's there's a striking one the officers ran a v search on mr dixon it says that in the declaration and they never bothered to know down whether the car was registered to him that would have been a very very clean way of showing that he owned it and we wouldn't be here talking about that would it be ok to address the sentencing phase so we have a fundamental disagreement the government thinks that the district courts weekly engage with the merits and found that mr dixon wasn't genuinely contrite the more appropriate way to read the record is that the district judge said someone who does not plead guilty to the charge defenses cannot receive acceptance credit this was a legal determination and it happens to be wrong and we've shown the cases where people do get acceptance credit for doing exactly what mr dixon did which was to admit guilt to what he did and to deny it so what he didn't do and the government does not argue a harmless error in its brief there are a bunch of arguments about why it thinks mr dixon wasn't contrite but we know that the district court didn't treat this as harmless error because the district court told mr dixon test your theory on appeal had the district court decided that mr dixon had lied why would he have done that and further on in the record there is a debate about whether the probation violation was a class a or class c and the district judge said he would find it a class c but if the court the appellate court disagrees with him he would have entered the same sentence under class a so there's an example of how this judge deals with an error that he would consider harmless and in this case it's very clear that he relied on an incorrect incorrect we want our petition and we would request to remain and for the judge to do it again and to consider mr dixon this time