fourth amendment violation where the officers went into a home without a warrant at four am and entered into a bedroom i think the main issue in this case is whether this court can remedy this  this point this plane mistake that was made by the district court my understanding is your client was a guest in this house that's correct does he have standing under minnesota versus olson he certainly does not not require that you way or another wasn't raised correct was in disputed well let's not play which wasn't raised below you didn't the government didn't say he has an absence of standing you did it and you didn't the parties you can stipulate there w  maybe the government has conceded that issue and it's not in front of us i want to ask but tell me tell me why tell me why in light of our precedents you think and i don't know what the record just shows about how often your client was in this place but let's assume that he was only in this room when the time you think really think that they're standing going to our presidents to raise a fourth amendment challenge i do i do because this isn't a bedroom at four in the morning i mean i think that's the very core of what the fourth amendment protects is if i bring a intimate partner into my bedroom at four in the morning i don't want the police knocking on my door and bursting into my bedroom with my intimate partner that you're still one of the guests i think my guest has the same expectation that when he or she comes with me into a home at four am to share the bed with  me that my intimate partner has that right not to have the police come in at four in the morning i think that's that's quite clear and i think that's was the holding in olson and you know if the court is really concerned about this i did cite that case and it wasn't there was no opposition by the government and so i didn't go further into that and if the court needs further briefing on that i am very happy to provide that let's go back to the basis on which the district court did rule and the arguments the government's making an appeal and see if we could unravel them to district court said there was an independent source that's correct and why is that  well it's wrong and and as i can see that the trial attorney in this case did not make this argument as clearly as he should of but what was the key evidence against my client was the observations of my client and the clothing he was wearing and in the intimate proximity to mr floor is a are who was not there was no dispute he was robber one at the time the police entered the house they had no idea who robert t was in their case was built exactly on the observation of my client in that bedroom with the stolen property and wearing those clothes now when they did get a warrant at on the stuff that in effect was seized were seen the first time through with respect to your client's d n a yes do you really have an argument that they would never believe got your client's d n a and because the arrest was illegal they seized him illegally well but they eventually got a warrant eventually got a warning as presumably they eventually could have gotten an arrest warrant not over my client but i understand that i understand your argument with respect to the clothes he was wearing at the time  because the only evidence that they would have had for a warrant would have been the observations which they illegally obtained in that four am search in the bedroom well except i thought your argument in this case was maybe i'm wrong they eventually got it they got a warrant they had to did they have probable cause at the time they entered the house they have probable cause to look for mr floor as a car and to seize any property that they might have found there related to the robbery and so your argument is they never would have known that your client was involved in the robbery but for the illegal search that's right that they said that they said they had and he wasn't a suspect at the time they went into the house they didn't know anything about him they couldn't identify him from the video so they didn't they didn't have a clue so but i'm trying to work and i think you know an independent source i think your your argument sense i'm trying to address the government sort of inevitable discovery or well and on that one their problem is that there was probable cause at the time and they should have gone to war and then but i'm still focusing on the d n a it's you seems to me counterintuitive to suggest that they never would have found never would have been able to obtain your client's d n a well i don't know how i mean it's all counterfactual obviously but how they had no clue who my client was they had no clue that he was involved in the robbery or no suspicion that he was involved in the robbery and you know the london case from this court from two thousand and sixteen which follows a long line of presidents that you can't use inevitable discovery if you have probable cause you know you had probable cause and they did have probable cause we all that everybody knew floor as they are was robber one everybody knew that they had painted his phone and that he was very likely in what i'm going to ask a question about that there's no challenge in this case to the phone pinging is there you know it was in there wasn't my client's phone you know i would have a hard time making that argument but i have a solid fourth amendment violation i think it's very clear and it goes the very core of what the fourth amendment protects and what the government is saying is that this court can't correct this mistake at this point and it wasn't preserved who it wasn't that's what they're saying and it wasn't really it was a well you know the you argued long the government came back w that you've said you're on our ears a very accurate description of the record the code the there's there's four reasons why it in a way that the first reason is he basically said i am objecting to the search and waiver in the sense that you said i don't want to make this argument it might be a forfeiture which puts us into play in error areas so tell us why it's playing ok well yes under the management's to rule twelve i think we're now in plain error territory and it's not a waiver as in a known relinquishment of a right so there's no failing to raise something without knowing relinquishing it is made technically it's probably forfeiture as opposed to waive it's probably  pushing to point an error box tell us why it's played there because everybody agrees that the property and the clothes and my client's person was not in the house when they came back with a warrant and everybody agrees that entering into a home in the curtilage at four am under london is improper so it's in accord fourth amendment violation and there's no exception and it's per se unreasonable so i think plainly at this point the government's only rejoin der in their opposition was this inevitable discovery issue which is precluded precisely by london itself so i think the error is very plain and it effects my client's rights if that evidence is not submitted there's no evidence against him and it seriously affected the fairness proceeding and it goes to the core of the fourth amendment so it's an important high risk of prejudice seriously a core amendment right and i think under you know under lawrence versus texas in the heat search case with the lady of the house getting into the intimate it's those agents in the bedroom and four in the morning it's a very important principle which the court should have should uphold i mean i can go back on the twenty to fifty five and go back to the district court in argue i see or i can say i see why it was good cause under rule twelve  three for this court to issue it at this time and i think this court has recognized in certain absurd exceptions where it's clear the attorney strategy was to exclude the evidence not making the best argument there's no ice i thought it was ray's sufficiently and i didn't address the waiver potential waiver issue in my opening brief so i all that's in the reply brief your honor and so it's very plain here and it affected by nobody ever it's regrettable that my client's attorney did not raise this issue and from the district court i think everybody agrees but nobody i assure you regret that more than my client a sitting  prison while we're arguing over whether this court can correct it now or if i have to go back to the to the district court on twenty to fifty five and argue i see so i think the court also mention in the hoc ins case which i cited that where an issue doesn't need a further development of a record that the court can address it so that's another exception which the court can rely upon but i i think generally when an attorney makes a suppression motion and raises the issue and says the basic grounds on which he or she is arguing that the that the waiver rule that the government's asserting doesn't apply and that's that's what sort of makes me reluctant to take up i see at this point your primary argument is that the where below did enough to preserve this on appeal and your secondary argument is if you didn't and it was i say right well it's an alternative i understand but that's why in the first instance taking it up may not be the appropriate thing to do well it's you know it's one of the other it's either he did in the court can reverse or he didn't and that's good cause for for my client who was you know and had an appointed lawyer who was doing his best but you know made a mistake you know these mistakes get made all the time they're very regrettable and we do our best as it please the court for the government defendant launches a number of challenges his conviction but none of those have merit most particularly his fourth amendment but let's do the fourth amendment analysis this was an illegal search was it not  your independent source argument really doesn't work the one that the judge made it your honor we believe that most of the evidence defendant challenge in the district court is admissible under the independent source doctrine as defendant conceded the particular did the four items were he's talking about  that's correct your honor last of those for what you agree that they did that none of those would be admissible under the independent source rule that's correct however if they are admissible under the inevitable discovery what and so that's what that's what i wanted to walk you t discovery doctrine say it doesn't apply when you have probable cause to get a war your honor this court's decision in london stated only that where and all the government has shown is probable cause alone that does not honor the officers testified that at four am had normal ortiz not consented and opened the door then the officers would have sought a warrant at that time an s c r for thirteen for to four fourteen officer bray also testified that the officers would have doctrine applies even though you had probable cause at the time and later go to war yes your honor we believe that the argue that defense argument rests on a misreading of one in london was providing that the fact that probable cause exists alone does not mean that the inevitable discovery exception applies reading london in the manner defend and such us would be contrary to the precedents on which london rely and united states and united states young the supreme court's decision in murray as well as those of every other circuit that has considered the issue all of which make clear that probable cause alone is insufficient to trigger the application of the inevitable discovery doctrine rather what must be shown is that the make your honor it's that the officers have also shown that they would have saw a warrant and the district court made a finding to that effect just a few sentences after the sentences you quote the court in london cited quoted united states in which the court stated to quote directly if evidence were admitted so in plea because probable cause existed the simply because language shows that the one in court was speaking to the circumstance in which all the government has shown that probable cause alone existed and has made no showing that the government's would that the officers would have saw a warrant regardless of the initial entry here it is clear however the government has made that required showing and thus london is not speaking to that circumstance an in the supreme court's decision in mari the majority rejected the dissents per se role arguing that the inevitable discovery exception should apply only when the officers could show that they had already taken a step toward securing a warrant rather  majority explained that the government need show only that the officers would have sought a warrant and that in making that finding the district court need not rely solely on the officers assurances in keeping with that decision the district court here made a expressed finding that the officers would have sought a warrant based on officer bray and officer tones testimony norman ortiz did not open the door they would their first step would have been to secure perimeter and then seek a warrant thus it is simply implausible to think as defendant argues that the officers would not have been able to identify by race race as the second suspect indeed as the court found by race raising police would have been looking for evidence of the second suspect even though they did not know who that particular individual was and that all evidence relating to the second suspect was in plain view and thus upon execution of the warrant they would have discovered all of it in essence pirate's raises argument on appeal is essentially protesting the district court's lack of crisper factual findings however the reason for that is because he did not make this particular argument below as he in fact concedes both that argument and you also agree because you didn't make it to district court never addressed the how your honor the district court made its findings in the course of the independence or stock right right so this record never made a determination about whether these items would have been inevitably discovered while your honor we believe that the district court's findings here are sufficient to on from one another the court inquiry into under both is whether the police would have discovered the evidence absent any misconduct that's a core part of the inquiry under both is whether the police would have been able to obtain a warrant absent any facts tainted by the illegal entry and whether they would have saw a warrant regardless here at the district court although it may determine a logical error it made those expressed findings that the officers would have saw a warrant and that they would have been able to obtain a test the defendant's standing to make this argument below and thus i suppose and move in addition defendant makes a number of other challenges to his conviction but not all of those similarly lack of merit in particular he argues that officer tones testimony as to the affirmation of states are ortiz's alibi constituted inadmissible hearsay but that clearly the argument clearly fails under this court's decisions and united states  united states v walling which make clear that the admission of certain testimony for the purpose of explaining the facts and circumstances of the government's investigation is admissible in particular the reason for that testimony was because and thus the government introduced no testimony involving out of court statements for rather merely affirm that fact similarly all of defendants other contentions lack merit if this court has no further questions we urge you to frame the conviction below and edition and we urge you to find that the defendant's final argument as to whether hobbs act properly constitutes a crime of violence under nine twenty four a c three a is waived defendant and sensually made a series of argument his brief of arguments in their brief and should those primary arguments fail reserving a page or two at the end seeking a supplemental briefing on their back up arguments which is not a trend that we believe this court should encourage in any event we think it's unnecessary here because this court can clearly affirm because hobbs act robbery falls within the elements clause i'm nine twenty four we were already i think you were here so whether some other panel is going to decide that that's correct and if this court has any questions about that issue specifically the government would be happy to file supplemental briefing on the issue so as discussed we urge you to affirm the conviction below if there are no for the questions thank y thank you your honor is briefly the alibi issue was also an important issue it's clearly hearsay and it was clearly vouching by the process now it's not hearsay isn't it he didn't he didn't offer it for the truth of the matter he just simply said he offered the it ortiz had an alibi he didn't say it was an accurate alibi he didn't say he was telling the truth the question was why didn't you arrest tease at the time any answer was because he had an alibi yeah well it doesn't it doesn't value for his alibi it doesn't they may have improperly failed to arrest him they may have but it's it's merely a statement of fact it's not a it's not a statement of somebody else or for the truth of the matter is well it's an offer to show that we didn't arrest this guy because he's not the robber number two and that is the argument the exact argument that the prosecutor made in closing you said the police quickly cesar a tease and to say i you know i was at my grandmother's birthday party at the time and i have a memory of this but instead yes to police why didn't you arrest him and they said because he had an alibi it could it would if they said because he was white it might have been a terrible reason but it would have been a reason there reason that they gave was he had an alibi they didn't they didn't say is alibi was true well the prosecutor said it was true or did he  did he said with a police quickly eliminated him as a suspect nobody said was they eliminated him as well as we've learned this morning police make all kinds of mistakes and you argue that was a mistake on their part they should have eliminated we did but they he's balancing that the police did a an investigation and then they eliminated him i mean it's quite it's quite reasonable for the prosecutor bring in season artie's were to bring in just the grandmother party or wherever he was to say you know he wasn't there and therefore jury don't conclude that cesar ortiz was robber number two if they can do that we don't know but as for the main issue london is not a stand alone case london relied on the supreme court's case in florida versus jerry deans and the inevitable discovery document doctrine is is clearly precluded in the case and the court especially said you would marry excuse me inevitably discover and then there is also the question of memory and as to the murray argument but this court said in london is under murray this gives the wrong incentives why would you get a warrant if you're just go i'm going to try it without a warrant and i would have gotten a warrant anyways it but here but in this case they actually go and that's that so you know right they did update a why they did but they got the but the whole point is they went into the house at four in the morning without getting a warrant and they went into the intimate bedroom you know is is the magistrate going to say a night time warner to daytime warrant what is he going to say and then what do you discover at twelve noon you're not going to discover three men sleeping in a bad day yeah there it wearing the same clothes they were wearing at night at the they were wearing it for in the morning at noon they're going to be showered they're going to be out having breakfast there might be some evidence where you can say we found them having breakfast or brunch together at noon or or we saw them trying to leave the house i think it's not the same as yes it's not the same force and effect of finding them in the room