court my name is for any pas i represent mr jones along with attorney pat s m i did reserve three minutes for a bottle and we did request that attorney paris be able to handle the rebuttal thank you so much i would like to start with the first issue issues and i'm sure i won't get to all of them but like to start with the first issue which is namely the application of the automobile exception to the war acquirement to the dodge magnum that was parked in a rear lot that is very akin to a back yard car that is parked in a private driveway so there is currently a pending search in the supreme court i believe as calm as he virginia that's currently pending cert on the issue of whether a police officer can walk on to property in a private driveway without a warrant and search of car there's also the circuit split that i noted in my brief about whether given the height and or potentially height and expectation of privacy in your private driveway whether some sort of exit is required different here the question was who was perk there but i didn't know that there was a question of unlawfully being in the presence of the car so this is a little bit tricky of how the timeline works out so at some point the police do obtain a warrant to search the second and third floor apartment which we also challenge prior to up seeming that warrant the vehicle was being towed out of the property then detective campbell halt said toe and makes that toa operator put it back where he found it so in essence the car is not free to leave and it's under seizure at that point so at that point though that the car was stopped the police did not yet have a warrant to be on the property so they are on the property trying to gain access in other ways to the second and third floor apartments which we do also challenge in the second part of our if they'd allow the tow truck to come in come in and move the car a block away then you wouldn't have this issue so basically what you're suggesting then is that because it was removed and placed into a place that he had district court had some difficulty with the automobile exception is the lack of any particular law is suspicion relating to this car in particular so the only thing the government really science to in relationship to this car is that they had seen him so i'm talking about before that's or earlier in the day they had been surveilling his home and they did see him enter into the vehicle with no bags or anything like that he drives a short period of a short distance to this house at two three two s and they watched him drive up the driveway and parked in the rear of the building which is not viewable from the street so then later on after they have the access the warrant but before after the car already had been seized because detective campbell had stopped the truck operator from removing the car he purports to look into the car through the tens through a bag through another bag and allegedly see this lawman ammunition i do challenge in in the brief about the district court's precedent has not recognized an expectation of privacy in such spaces what's what's the what's your argument there so the argument is that the driveway is a shared driveway for this  believe the one building and the building next to it and then also just the tenants of one building it's shared among more than one building right so in my brief what i do is like in the lot the rear lot too to a backyard and that is exactly what it is in the sense that you cannot see it with our decision in united states v holland holding that there are no legitimate expectation of privacy in the common area of the two family house well with respect i don't think that the driveway can be considered a common area i think that that specifically related to the hallways of the house i think there's more of an expectation of privacy in a driveway that's servicing two buildings than in a hallway right outside your farm and i think that there is an enhanced expectation of privacy when you have a law that is hidden from the outside world and is the person has demonstrated subjectively an expectation of privacy  full and parking for you because we said there that we've not required the commentaries could be excessively to the public at large i think in my brief what i cited so what's the support i think you're viewing this kind of a crime leave a simple driveway common in that it's accessible to put residents here of two buildings what's the what's the this case support for viewing that as an that the back yard area was not open to business men who could approach the tenants in the course of their trade that's exactly not the case  seem to fit with the i would disagree excuse concerning me that was the backyard of a multi family house rat that's not the driveway that you would use here to there was a front to the house i think that souls main point of contention was that if you're a salesman and you wanted to access the the tenants in the house you would go up into the driveway and up to the front door this driveway goes up to the driveway up to the back of the house to a back door that back door is not accessible to the public at large and is only accessible to the tenants at the pro if you have a lot of problems here it's a forty year old case in this circuit has in the interim house to the contrary well i think that the issue about the privacy expectations in the driveway is something that is multifamily houses is something that is current in the sense that there are other district courts around the country that are seizure of evidence from the dodge magnum the district court properly ruled that that evan should not be surprised if that evidence is properly admissible in the trial before the jury here we have a  we've just heard from your adversary white should be i mean you know there was a lot done here without warrants and if there don't lead to more it's a pain we wouldn't have these issues at all it seems to me that was time for warrants here so what was going on is a little perplexing that's correct your honor and should this situation arise in the future i would advise the officers to obtain a warrant to seek an obtaining a warrant in that scenario with regards to the dodge magn car why here they didn't get a warrant why is there an expectation of privacy and not an expectation of privacy and under the circumstances i mean if the car was in a in a backyard they and you know i to submit that there's no reasonable expectation of privacy because the car was parked in a common driveway a driveway that was common to not only to multiple tenants at two thirty to two thirty four west and street but also in the multiple tenant units at the nearby or the next store multi tenant unit building which shared a common driveway and had a common kind of parking area in the back moreover we have in this case a scenario where the defendant demonstrated diminished expectation of privacy when he contacted a tow operator to try to get his vehicle towed or removed from two thirty two west and street to a garage or a commercial facility and the only reason the vehicle was not removed was because the officer stop the tow truck operator from driving away with the car instructed him to put it back in the rear of the common parking area to thirty two to thirty four western street moreover we have a scenario here where the officers were properly on the premises executing a search warrant on the premises and this car was parked within feet of the rear entrance which had a silver that time they had the warrant for the house that's what they saw when they searched the cars  that's where the circuit sequence of events was that's correct your honor yes they had searched the premises at the third floor and the second floor of two thirty two west linn street and they had completed that search but still had not vacated the premises they processing evidence when the officers came down detective campbell from the second floor he exit at the rear entrance which was a common stairwell that went to remind me what was in the car that was the evidence that was in the car the m  right that was am on the back that's correct your honor so detective campbell testified that when he looked into the rear of this hatchback vehicle he saw inside a bag a box that he recognized to be a long man named ignition  explained had it is that the only evidence in the car no your honor from the car the officers seized approximately six hundred grams of cocaine slightly under a kilogram of crack cocaine three firearms that had magazines that were fully loaded with ammunition as well as large amounts of additional ammunition and other he had evidence that was on his person at one point did meers out in the car i guess that was in the car that was in the car your money in the car ice and that day earlier there were two associates madeline rivera and charles tyson who went to two thirty two western st when they drove away they were the subject of a motor vehicle stop during the course of that motor vehicle stop significant portion of the affidavit in support of the warrant for among other searches the search of the second and third floor apartments at two thirty two west street with regards to the search of two thirty two west street in addition to the consent wish to district court did not decide on the government's admits that the evidence demonstrates that there was a basis for the initial entry into two thirty two western street based on a protective swee that statement the district court properly found that distills ample probable cause to support the search warrant for both the second floor and the third floor at two thirty two west of the street and this is based on not only the information obtained inception of the investigation information from the crime stopper reports in your surveillance of the evergreen residence and the stop of mr upshaw but specifically the events of december eighteenth two thousand and twelve the observations that day the seizure of crack from the green infinity the post arrest the minutes of charles tyson and and in his associate as well as the actions of mr jones acting nervous in the presence of detective campbell looking back and forth at the dodge magnum providing seemingly false information regarding madeline rivera engine trying to get a toe to toe to truck away excuse me the dodge magnum away from two thirty to weston street calling someone else to pick him up to leave that area with a substantial amount of cash on his person all of that taken together the district court properly concluded that there was ample probable cause even without that one statement to justify the warrants to search two thirty two west of the strip of the second and third floor with regards to the final three issues that are raised by the defense in connection with this appeal unless the court has questions for the government on those issues government will respectfully rest on its papers in conclusion the government's admits that in this case the suppression ruling was proper was legally sound inappropriate and the judgment of the district court was also an appropriate legally sound judgment and should be affirmed thank you and i know i have briefed time with respect to the very issue the government relies on its brief i will rebut that argument as follows this rivera evidence was particularly damning in this case because what was lacking in the government's case in chief notwithstanding the length of the investigation there was no evidence of hand to hand sales no cia no confession no surveillance video basically it was this highly unusual swap like raid at multiple sources of multiple people on the morning  eighteenth what it were very provide the case she provided the missing link and she provided it on a basis that was particularly prejudicial uncharged that could have been charged misconduct of prior drug dealings described with great particularities and in our brief we laid out in several pages what she said why was that particular prejudicial in this case look at the testimony of special agent zuck the agent who was not involved in the case and gave a generalized description of narcotics  activity he didn't meet rivera he didn't review her statement he didn't conduct the investigation here but what she said matched what he said would go on it to the extent that the government relied on its brief i believe me the point of four  make an argument the government counters it but you making an argument that that is from the breit burn up and i'll move on to you can use your time as you want i just wanted to make sure i understood what you were doing here ok go ahead please i didn't mean to interrupt i'm glad you did because if i'm losing you have lost one third of the battle with responding with respect to what's been argued here in court i would refer you to page eight fifty three on the question of the particularized suspicion to go into the apartment the government contends at some point that there was justification in the form of a protective sweep the argument seems to be that they had information somebody might have been in the apartment who was notified of law enforcement activities and their evidence of the protective sweep is that the money count warrantless let's assume that the warrantless entry into the house was it was it was improper how how does that further your case because ultimately the search warrant was obtained based upon probable cause independently and then i can understand i think the claim is that it was i don't think it was i our view was there was never particularly suspicion as to the house all the factors that mr stonebridge cited in his argument are sufficiently vague as to not be particularly you've got a man arrested five times before who looks nervous when the police stop him well ok i think he realizes trouble is coming i've heard them talking about probable cause for the warrant there was probable cause for the warrant independently of the of the improper initial entry into the house only by bootstrapping other perhaps potentially improper seizures and so the question is particularly suspicion has to mean something other than mere speculation or what transpired so quickly that morning in our cited multiple bases for for probable cause based upon other people who were arrested and what they had on and surveillance of that day that day of that project at that particular day they had no evidence other than the statement of trump one person arrested that there was no conduct at the house that day the car for example set unobserved in the back where others who had narcotics on them had access to the car people were found with crack on them after they've been in that house after they've been there and people were found with crack on them after they'd been to the house and had access to the car where crack was found and that car was unobserved for several hours this is probable cause this isn't proof beyond a reasonable down at some point will the court say to an officer submitting a warrant probable cause is other something more than mere suspicion probable cause if it's going to have any teeth in the forty's then it's going to mean something and i would hold them that there are drugs in the premises that's much more than mere suspicion under the precedent you know that cancer and the eyewitness said he purchased it what was it the second or the third floor which floor was it because i did my very first criminal case involved the suppression of a case where police went to the wrong chord that wasn't particular ised enough you've got people referring to the third floor now they're going into the second that's where the scale was found particularize means particularized except that that was where he lived and it's that that was a residence right and it's not uncommon for people to keep contraband in their residences i mean you know it's not but you have to it's not uncommon but that generalization is not particularize suspicion of a discreet locality the discreet locality was the third floor not the second i realize it may seem like an insignificant point in hindsight but you have to evaluate the case as it unfolds and consider the values that the fourth amendment is intended to protect mr jones how are you going to get around if we accept that