good morning honest my name is myra sun and i represent the appellate lawyer in dodd's we brief three issues in this appeal he was convicted of one count of possession with intent to distribute marijuana found at a location that was the subject of a search warrant the other two issues the two issues that i prefer which i would prefer not to address unless the court has questions are the four afford be issue i raised regarding firearms testified to about a witness and district courts denial of the suppression motion in this case our first challenge is to the adequacy of the oath an affirmation which is required by the fourth amendment but whether there was an oath or an affirmation  the other the phone took an oath and said here's here's the information i want to give you that's not contested i was out in the fill out that what i think your honor what we do contest because there is no record asian we believe that there is no proof of exactly what the district of them is showing judge hurt that is not that's fair i understand that argument and i want i just wanna make sure there's no there's no dispute that the officer took an oath over the over the phone with the with the so what if if that's the case here are we simply dealing with the with your contention that it wasn't properly or sent to cater written down or recorded yes but we've think that that has a constitutional dimension why because when this just when this court has talked about affidavits or the body of information that a police officer gives to support a probable cause the court has always talked about a document and i know that today that document can be digital it has four corners tape or four corners or it's or according the beginning in the end of the recording and the federal rules those rules require require that document question the constitution require our documenting if so tell me what case there's ok the cases that i largely relied on are united states versus andersen which is an older case and it talks about paper documents right so is there anything there's well there is a what i believe is that there is a paper and then there are some things outside of the paper that the court said we can consider those and just as it has said in andersen it said later in the united states versus long and it said later in united states versus whole we don't consider things that aren't recorded we don't consider things that are outside the four corners of whatever the met the issuing judge heard and the problem in this officer's testimony you know my problem with our problem with why that is not adequate and that there's a constitutional dimension to it is that facially we know that that affidavit was prepared afterward and therefore we know that that particular piece of paper the issuing judge could not have considered it wasn't produced then what we do have is testimony to be awfully which are as i understand your argument are you making and that's what this case boiled down to for you in part on that on that particular issue there so that you're still get you get your position is that if an officer in the field calls a judge and says here's what happened i swear can i get a warrant the warrant is invalid unless the judge at the time records what was said yes and that's true under alaska law said to you know your honor we made a motion for the court to take judicial notice that the state of the state court file is that there never was anything from the issuing judge well i understand but rest this was during an argument it was after everything was in mr dodson counsel made sure to point out that there isn't was no affidavit there was no evidence we didn't know she said what the issuing judge considered she made that argument there was also some reference earlier in the transcripts more of a housekeeping discussion about getting that the issuing judge and the the magistrate the federal magistrate said well maybe we can have him testify by phone if we have to and the government's attitude and have the excerpt of record cites excerpts of record cite ninety five ninety six that the government's counsel said i don't think we need and in this case because we've got an after prepared affidavit and we don't have any indication from the issuing judge that he considered this body of evidence that was later prepared i think it was absolutely necessary and there is going to go back to the beginning of your position because while we do have an after prepared affidavit in this case i take it your position is that issuing a search warrant based on an oral oath only is is yes if your position is that issuing a search warrant a judge gets called up and somebody recounts information that would would be probable cause and the judge says fine i'm faxing you a search  that says having heard the testimony of officer jones i do the search warrant that that search warrant on its face is invalid if the judge either hasn't had a court reporter take down the stuff what if later he doesn't get something that he signs something that he signed something that he says he saw understand but yeah but that what i'm saying ok because we see lots and lots of four search warrants there are lots and lots of oral surgeon you're saying there are no invalid no i'm not saying they're and that's just a body of information that is presented itself is insufficient to justify a search war no it has to be recorded so that a reviewing court can determine  we recorded a case where all we had let's not with that i don't want to it's words with you because i want to you may be right but i want to stand the the consequence of your position your position is that in a case where all that we have is the officers say is there's a constitutional dimension and a constitutional deficiency is when the information that was presented orally is not reduced to some i'm sorry my hypothetical meant to say that all we have all we have is that something is that oral something we said earlier in the officer says i swore to it and then the judge then issues a search warrant your position is that in every case where that occurs we have a constitutional violation  nowadays i think that an officer could type his affidavit in an e mail and the phone conversation could conceivably consist of officer is everything in this e mail that i just got from you true yes ok so the others there are a couple of things i also noticed about the record in preparing here there there's a duplicate original search warrant prepared by the officer which is required under alaska law there's got to be something and there is actually no signature of the judge on it by the officer for the judge he printed the judge's name where it says type or print name but he never signed but he did so in the first sign for his a george sort of search also could have signed for the judge right and so we right off the bat in our view we have both a fourth amendment and as alaska state law question about whether this is a search warrant because one thing i notice that alaska statutes twelve point three five point one two zero and so we think that this was not a document the four corners within which there's probable cause and i just wanted to make a quick comment on the burden of proof here the government said that we carry that burden and we think that we certainly came forward with evidence with this warrant that has many deficiencies in it and the government could easily responded so we think we carried any initial burden we may have had now the next issue that comes up here is what's in this affidavit if the court assumes that it is a proper post an affirmation you know the issuing judge didn't say this is what i heard was in this affidavit is our number of observations that this officer made after going on to mr dodd's property we've got in our midst ok so yeah i'm not going to go through that but why don't you when we hear from the government and then i'll give you a minute for two number represent the government that's case we're getting there's no doubt that there's a problem created by the fact that for whatever reason and we don't know the reason it's not in the record that the oral statements that trooper cooper provided to the judge stablish in probable cause were recorded that does cause problems but i'd submit it not the constitutional problem that we've got rather far afield from the language of the fourth amendment which says only that warrants be issued upon probable cause supported by oath or affirmation there is no dispute in this case that trooper cooper was placed under oath there's no dispute that he then gave evidence to the judge and there's no dispute that the judge then authorized trooper cooper to sign the warrant on his behalf that he's been executed the search warrant how came forth on them those under its face and the reason for all the rules is that you want to know what the magistrate took into account in deciding that there was probable cause  vision this case where the trooper cooper was a bad cop and he was exaggerating the under oath even though if one knew exactly what had in fact it and which isn't in the ring creation we would've found that there was a constitutional violation correct that's account how whoever created however gets created that the magistrate validates as an accurate portrayal what he or she was told amendment the fourth amendment requires that the issuing magistrate find probable cause here we have the f the warrant in which the issuing magistrate says that he's found probable cause so the question becomes here's my no i don't think there is a constitutional violation the issue then becomes was there probable cause and in some cases that would be hard to establish there may be there may be a lack of memory there or there may be the witnesses may have may be unavailable in this case however we are very confident that there was probable cause communicated to the magistrate because we have very clear evidence as to affidavit which he prepared immediately presumably as soon as presumably actually accurately reflected his memory at that point with it was and within a matter of days but his his fellow that's true but now let's assume there's just but we know because we've got boatloads of probable cause here for just for purposes of discussion the question is the validity of the warrant and one question i have for you is since a warrant was issued  you make a good faith or human it's case well there certainly is i do i think there may well be i'm asking what you have and we have you made one and leon was was argued extensively british even yes  supposed to do it officer called the judge then immediately thereafter a record if there were failings on the judge's part it seems to me that this is not the case in which we need to get into whether or not in another case whether or not there are reproduction is required it may well it may well be required in a different manner that occurred here but the officer certainly didn't do anything wrong i think that's absolutely true and it's as it seems to me is that the the argument from the defense was that by not recording this exchange somehow judge smith abdicated his judicial role and became part and parcel of the of the investigative team and under the the final problem of leon bad faith except yeah there's there's just no evidence at all we don't know the court us and the court yet you have the facilities available that's right that's right and we can speculate that that's why it wasn't recorded that for some reason the judge didn't think about the fact that he that it should have been recorded but but that's not that's not advocating your judicial that's making a mistake can actually question about the defendant's probationary status i take it that this search could have occurred in this case the district court did cite that fact suggesting that it lowered his that's his reasonable expectation of privacy with respect to the i guess i missed where you really think they could have come in that they could have come in and search since he was there without a warrant that's correct absolutely they went and got a warrant which may be insufficient according to the other side's argument could they excuse me insufficiency because the search would have been legal in any event or search pursuant to the warrant and without some indication that either the officer was proceeding in bad faith or that the the judge law enforcement officer to prepare the war order there under the alaska statute what ordinarily happens is the officer fills in the warrant it's a right of check check the exact that would occur here there actually was no testimony time advantage for magic that aspect of it wasn't was not raised by the defendant the only aspect that was challenged was the fact that the probable cause statement had not been recorded example a hurricane hits new arlan send the judicial records are destroyed we have no copies of the affidavit so if cases that are on appeal does that mean that all those warrants are now invalid because there is no written record anymore and even if we can reconstruct as we did in this case even if we conversed reconstruct what was what was told to the magistrate to support the finding of probable cause i don't think so can i ask you about that one issue that you're probably didn't have a chance to get to the district court concluded that it was relevant the focus in the trial ended up being its relevance to explain rosemarie jackson's from relationship with mr dodds what what they did together the fact that he that and the fact that she was testifying against him how it came to be that she was telling these are because you know it it to her credibility she had she had functioned as a surrogate purchaser for him because he was he was a felon and could not purchase firearms and self it the other the fact is this court's repeated recognition of the close connection between firearms and drug trafficking  and the the fact that that possession of quantities of firearms particularly when they are in the stored with the proceeds of the drugs are relevant evidence to drug trafficking those those two  both relied on by the district court judge any potential prejudice from that evidence was was vastly diminished both by a cautionary instruction from the judge and more importantly by the prosecutor herself telling the jury that they really shouldn't consider that those firearms against mr dodds but but they should use it so they understand mr jackson's relationship with him and what she was doing there  don't think that that was err on the part of the district court that that certainly wasn't an abuse of discretion it was not rational it was found in the facts the judge carefully considered the admission of this evidence on three different occasions pretrial at the time it was admitted to respond when i want to dress the good faith issue that ok the term with what we said originally what we say is that this case falls into take falls outside the good faith exception because it is enough like low g i sales versus new york which is one of the exceptions that was identified in leon or one of the situations identified in leon as being one in which there can't be good faith and films store and participated in going through some of the items and then left us not this that's not our case that was well i i just want to remind the court that that we have and that was defined as happened here is we're already done that had he done that in your view he would everything would have been all right yet so then therefore your view is that in this case right and the afterward i thought of as i was listening to the government is it's not so much a matter unrecorded it's a matter and preserved an preserve by the judge has bases for finding probable cause and so where we think the issue new judge abdicated his responsibility here is in not preserving even after the fact remains he moved up because his responsibility but the case you cite talks about case involved a different kind of abdication but we nonetheless think that it's an abdication here that was important because courts review affidavits to determine probable cause so there has to be a preserved affidavit for that purpose respect to good faith if i can very quickly one of the things that courts do is a cost in benefit analysis this is a case in which it is very easy to impose on the government a very small burden which is simply to get some indication from the issuing judge that the body of the information the prosecution is presenting is what the issu judge consider it's a small and simple thing that we would could easily ask the government to do and because of that that's another reason the good faith exception should not apply here