please the court my name is gail stage and i represent mr a choa at the outset i want to apologize to the court i have a chest cold and i have a lozenge are here just in case every need don't worry about it i start going crazy  are here today on a case that emanated from one indictment and turned into two different trials mr cho was charged with hobbs act robbery and using a gun during in relation to a crime of violence he was also charged with being a felon in possession the felon in possession charge was severed tried separately tried to a mistrial and then ultimately it was dismissed on the speedy trial act we've raised several different issues in the case i'm not sure what issues the court was most interested in but i wanted to particularly address the fact that the magistrate judge and the district court judge both relied upon the public safety exception when it they determined that the questioning of mr h o after he had been arrested outside of his home before he had been given any miranda warnings was appropriate based upon the public safety exception now the public safety exception was created essentially by the united states supreme court in new york versus quarrels and it in that case the court essentially said yes we have t witnesses that are in custody and but based on exit in circumstances confusion in a kaleidoscope of various factors there may be a public safety exception in which police officers can ask questions of a suspect regarding the location of a gun or other dangerous instrumentalities that might put the public or the police in danger now in quarrels the court made it very clear that this is a narrow exception to miranda and the court has repeatedly stated in later supreme court cases that quarrels is to be narrowly construed the facts of coral's is that a woman flagged down a police officer she told the officer that she had been raped and that the man who raped her had a gun and he ran into a supermarket the police ran into the supermarket they located the gentleman his holster was empty they threw him to the ground they cuffed him there was no question that he was in custody at the time and they said where's the gun and the united states supreme court said in that instance you have people milling around you have people that might pick up the gun and use the gun and so the police for public safety reasons and their own police officer safety reasons we want to find out where the gun is and in later cases in which both lower courts and the united states supreme court has upheld the public safety  exception the facts of those cases show that usually almost always the gun is either near the suspect the gun is  either in a room where there are other people potentially in this case the magistrate judge and a district court judge relied upon an th circuit case united states versus new some tell us what do you see as the differences between this case a new in new some there was information that a gentleman was in a hotel room with one person for definitely him possibly two other people and that he had a gun in our case while mr a cho was being arrested for possibly shooting a brinks messenger there was absolutely no evidence that he had a gun on his person or that there was a gun in the house scuse me couldn't couldn't a police officer fairly assume that a suspect they believed had robbed a bring silver person might have had weapons and might have had associates who would be interested in using those weapons yes and there are a few wrinkles in this case that i think set it apart from even the supplemental authority that the government put before the court in that case the gun the gentleman there were children in the house and the environment was becoming more and more hostile the gun was in the house the police knew there was a gun in the house in this particular case the police had an arrest warrant they went to the home in the early morning hours they took the occupants out of the home they secured the occupants they were essentially in custody that is concede the government it's undisputed the swat team leader agent swinnerton asked which i believe would fall within the public safety exception is there anybody else in the house and was given an unequivocal answer no there's no one else in the house he also asked are there any dangers to my police officers are there booby traps are there weapons is raising that's going to hurt them and the oldest gentleman who was at the scene said no no agent swinnerton knew who mr cho was he had done a little bit of research about mr cho he decided and this is where we are we separate from the public safety exception he decided that he didn't think that mr cho was being straightforward and in his words he said he decided to quote press the issue i looked at m out and i said you know we're going to find something if there's something in there you know we're going to find it now at this time the situation was not the kind of situation that we have in the news in new york versus quarrels it's not a kaleidoscope of confusion where police officers are having to make quick decisions and maybe can't artfully ask the kinds of questions there is no reason agents winterton could not number one hav the only thing you're trying to suppress from that that as a statement there was a handgun in the dresser on one of the bedrooms is that the st thing you're trying to suppress that particular statement yes you have had because when they did do this then they didn't find any guns they only found the gun excuse me and found the gun they found the ammunition in the drawer that was only when they had a warrant right that's correct ok what had basically what you're trying to do is start with this st entry or this st statement i guess is not even an entry you're not even challenge swat team could go in and do the safety suite and that they never found anything from that raw your honor they didn't take any evidence from the safety agents winterton specifically testified that his men were in a holding pattern at that time but there's no evidence that they obtained from the safety suite they did they did not starkey and said we know now that there's a gun here ok they already had an arrest warrant i'm not sure in this case why they didn't also get a search warrant if they believed that mr  your point then what's going to turn said is he pressed the question of again because based on cho was facial expression he thought there might be something in the house that he needed to know about before sending the members of the house that we need to know about in the public safety cases your honor police officers typically know about a gun either on the person near the person in the th circuit spork case cited well to be honest my best case is is the essentially the dissent in quarrels in that what the dissent is saying in quarrels is that you can't let this exception swallow up the rule that you can't let you know miranda set down a very careful rule and i want to make sure i have basically he asked him twice this was not like a prolong said i pressed the question again listen you know we're going to end up finding stuff i don't want to get her you have to let me know if there's anything that could hurt my guys before we go and he wasn't even asking if there was a gun and then you know clot just find it was all on one side well it is in the tone of an interrogation versus ultimately a question for say what other issue do you want us you've got to i'll rely upon my briefs for the remaining issues thank you a brinks armored car carrying thirty thousand dollars in cash when the seventy two year old brinks messenger carrying the cash failed to immediately turn over the bag with the money the defendant shot him in broad daylight in cold blood nothing in warrant briefs warrant overturning the defendant's convictions and sentences for his crimes specifically with respect to the defendant's premer and a statement the record clearly shows that the district court did not err in denying the defendant's premier and statements specifically the questions that agents were are there any weapons are there bombs are there booby traps any hazardous materials anything that we could encounter and find that could provide harm to anybody making entry into the house let me ask you something i think you know the law on this is pretty clear but just because i'm interested i mean going to think that the agents would have taken exactly the same precautions in  doing their safety sweep of the house and as they did when mr answered there was a gun if he hadn't answered there was a gun i mean don't you think they would be equally as cautious your honor i think there's obtaining information whether the swat team would have nevertheless conducted the sweep because obviously they couldn't take the defendants or the other individuals answers at face value that's a separate matter the fact of the matter is that question i'm asking so the question is do we have any reason to believe the swat team would have just cavalierly gone in had mr roach show us said no or not answered or do you think they would have taken this same care that they took when mr roach oh i said there's a gun in the drawer there are a gun in the house i think they would have been cautious but having the information that there was a firearm in the house i think really ramped up their caution in value what's the difference between if they're worried that there's another person there even if there is not a firearm in the house don't they have to worry that the other person has come armed with his or her own weapon know why wouldn't they have been exactly as cautious in going into the building as they were when mr o choa said that there was a weapon in the house because after mr acho a said that there was a weapon in the house that already confirmed what they previously could only suspect and i think that's where the added value of asking the question comes in it's one thing to think that there are harm that there are items that could cause harm and it's another thing but this is a guy who  just explained one hadn't shot a seventy two year old armed brinks messenger so you don't think that they would have been suspicious if he had said they would have used the same amount of care and would have been suspicious if he had said there's nobody else in the house and there are no other weapons i mean after all they didn't believe him when they said there was nobody else in the house right they they absolutely were right to be cautious and i do believe that they would have exercised a great deal of care when going in the house because of all of these unknown factor in a gun isn't really like a booby trap right i mean a gun can't fire itself that's correct you're ok so so a guy doesn't present the same kinds of dangers and lester's another person in the house as a booby trap would present right absolutely yes ok so i mean could you and i understand we are bound by the supreme court in this case and also by our own case law on this but i wonder if there is a basis for looking at a gun in a different way perhaps when there's nobody in the house then there is in looking at a booby trap or a bomb or something of that nature i think there is definitely a distinction to be made given the fact that this is all taking place very quickly six o'clock in the morning they have very limited information as agents winterton testified below he didn't know how many people would be in the house he didn't know whether there would be someone in the house they had conducted surveillance on the site but that didn't provide them with the exact number of people that would be in the house when they were making the arrest i want to think this what's to stop any law enforcement officer from asking the question before going into a house whether there's a gun in the house before mirandizing the person well i don't think anybody just do it in the public safety exception would be applicable absolutely no i or honor and i think these these facts under these facts it was warranted for some of the points that the court made earlier  the fact that the defendant had previously not just broad an armored brinks car while armed that he had actually discharged the fire he had shot the messenger in the leg i think that rightfully put the swat team on high alert and  made them very nervous about the situation that's not that's why they could ask the question that's not just it in addition to that they were aware as agents winterton testified below they were well aware of the defendant's criminal history in this case in and fourteen just a few short months before executing this arrest the defendant had just been released for homicide so also involving a firearm so i think taking those circumstances together the fact that the defendant has a very severe criminal history the fact that the additional their actions evidence these officers knew about that i looked at the time and he actually i just got out of jail for five months on a nd degree murder before he did this robbery how do we know that i didn't know there was any evidence these officers knew his priors the officer agent swinnerton did testify below that he was aware of the allegations as well as the defendant's criminal history something that he asked those questions or excuse me i believe he answered those questions on direct but also on cross examination where defense counsel below asked specifically what information did you have about the defendant in agent and indicated that he knew basically the bare bones of the allegations as well as the defendant's criminal history prior to the arrest and so the team there was very concerned about their own safety as well as the safety of other people who may have been in the in the hotel in the vicinity of the hotel where the defend it was staying at when they went to execute  in that case the officers knocked on the door the door opened they didn't immediately see anyone they went in saw the defendant neutralized him they handcuffed him and so they asked him these questions for their own safety and i think what that indicates is that it's not just a matter of do you have the subject apprehended and for lack of a better word neutralized in the moment i think the analysis is more in depth it's multi factorial in that way you sed in the it was part of the probable cause that went into the search warrant the district court specifically found that the independent or source doctrine applied and that was not challenged the low  by defense counsel and i don't believe that it was raised in appellate councils briefs either but i did want the record to be clear with that respect so everything that came from the warrant is subject to the independent source doctrine even if the court were to take issue with a statement unless the court has any other questions i would ask that this court i ask you this because i want defense counsel to be prepared on a reply i was confused because i looked at the gun count here the ammunition count and charge the gun that was found out in the yard and the three magazines but at trial everybody argued in opening closing about i have to admit i no i don't think anybody was that was something i went back to look at that night man is always to see what's charged and defense counsel doesn't raise it prob cancel didn't raise it either that we really amending the indictment and then if you go to look at the jury charge is charged in the or indictment says and the jury charges or and everybody was talking about the but it seemed like the jury was allowed to consider the dresser drawer ammunition at least as a possibility that was part of the verdict but i by saying maybe it's because he was on notice of it so you don't know anything about say that the evidence presented but you can't the bullets in the indictment and those match the number of bullets so in the magazines out in the yard for more rounds to get the ammunition in the in the  which not charged or the magazine in the drawer there also magazine in the drawer to anyway even to my question i was just saying that because i asked her about you know i don't have a bottle i want to know what you said know that in the government's brief they argued that even if the gun for somehow went away that the ammunition in the drawer could be used to convict so am i to argue that at trial to cite you have a choice you've got the gun at the end there's a circumstantial evidence case for the ammunition outside i got that but it was clearly his room it was overwhelming evidence that that was his room and overwhelming evidence that was his drawer so that was an easier charge is all i'm saying i do agree i think there was also evidence for your honor that other people occupied the room and there was no d n a evidence no fingerprint but i was santas a fact issue for the jury there was a lot of evidence let's say that we found that you couldn't use the statement would it have been plain error for the court then to have relied on the ammunition that was in the drawer yes your honor why is that i believe so if it was not properly charged in the indictment and there would have been a th amendment violation the jury i mean the grand jury obviously didn't indict as to to that indictment well that's interesting would they not have the independent source to find the ammunition and draw they got a search warrant they didn't find anything and find anything in the sweep ok so they go get an arrest search warrant and they did have an arrest warrant the go get a search warrant and then they found the ammunition in the drawer so i don't understand how you'd have allowing the evidence of the ammunition come in to be a problem to help me with that well honor st of all there was no search warrant originally issued in this case what happened was you had the arrest warrant they were going to get mr cho and taken in for questioning solely based on mr cho his statement that there was a gun in the many things in the application for the search warrant and he just wanted to testified that he reached out to agent starkey and said i now know there's a gun in the house and agents starkey use that information to obtain the search warrant so we don't know at that time if there would have been any search of the house or the yard or anything now it's very possible after questioning mr cho they would have been able to obtain a search warrant  i don't know why they didn't obtain one sooner but in terms of what he should swinnerton knew about mr cho he was briefed on the brings robbery he said he knew he was a convicted felon i don't think there's anything in the record and i just reviewed documentary which is the transcript of the motion to suppress that was the was the statement about the firearm i assume not the only thing in the search warrant i don't know that was just holes i'm sorry i don't have a copy of the search warrant with me but i do have a just swinnerton testimony in which he said they did not have a search warrant and that he relied upon the fact that he learned that there was a gun in the house to reach out to agent starkey and have him obtain a search warrant and agent starkey also testified to based on that information he obtained a search warrant so our you were about to argued that he knew he had a criminal history but he didn't know what what that history was there's nothing in the record that i that i can see i just reviewed the the transcript again he was briefed on the general situation and he knew what mr choa looked like he knew he was a convicted felon and that's the information that he had when he was questioning mr cho thank you your honors thank you counsel