it's numbers thirteen thirty eight fifty and thirteen thirty eight fifty one united states of america versus jesse owen re peter howard oral argument is not to exceed ten minutes for each defendant and twenty minutes for the apple searching her car and finding two kilograms of cocaine almost immediately she capitulated and decided she wanted to be a cooperating witness and she first indicated that she was from a beauty salon than a friend of hers own on the west side indicating she was unaware she had been followed she only said that she had been at this days inn on the west side was on seventeenth street borderline between cl lakewood and that she had gone into a room where she had purchased these two kilograms of cocaine they were from intermeeting on the consignment and she would pay for them within two days the police immediately sent a detective to watch the room while doing so they saw the cleaning people claim one fourteen and also clean one twelve they saw no scurrying activity of any in giving off any indication that they were aware that they were there that they had been brought to the attention of the police as merrill back one of the individuals had gone out to a local area a diner and bought some food he came back went into the room the police saw this twenty minutes before they entered the premises they saw the other individual in a cross to be engaged in the normal pursued twenty minutes later at three zero nine the police broke into the room starts a plan their purpose was to rest the individuals in the room and to secure the premises they had a canine with them and what does cain i did we are not we were not told except the judge says so they had a dog with him and he snapped but the reality is after that into the room they took pictures of the two individuals in room one twelve one of them had on the last vegas shirt which is the type of shirt that had been described by this young lady as having been warned by one of the two individuals police took a picture of him to the picture of the other individual and two other people who were in an adjoining room they took pictures of those people as well now the question here of course as i see it is did they have probable cause one to the premises to make an arrest and to make a search at that particular point they emphasize cigar of which of course as is the case is critical here but they would look at the fact that ensued girl the police had cause without regard to the legal observations that the police may do in the eighteen hours that he had that building under siege in this particular case the officers understand this is three zero nine at six ten or something shortly after six they searched the premises on the basis of the certainly during this entire interim jessie ray how did in the other two individuals in the other room were all in handcuffs need to go in the place was secure they should have waited for the word but then isn't the question whether they had enough evidence with out any of those observations to get the warrant i think that would not be accident circumstances in this particular case what about inevitable discovery in other words you don't have an accident circumstance problem if the police inevitably would discovered all of this without doing anything illegal in other words just having watched her leave the hotel having stopped her after she violates the traffic laws find the cocaine she admits she was at a place that looks like the days inn it seems to me at that point you have more than enough probable cause to get the warrant for those rooms so why wouldn't you say inevitable discovery i'm really amazed that the court would take the solution that's probable cause this is the first time informant who admittedly i'm not relying on the informant everything i said has nothing to do the informant pretend the informant doesn't exist all that's happening is the publicly observing a hotel in rooms they're not invading anyone's privacy a woman leaves the hotel they follow the woman it's just a suspicion they couldn't stop or until she violates a traffic laws once  traffic laws they properly find the cocaine shiny admits she was coming from place that meets the description of the days and that doesn't matter they saw her leave the days inn right right there you have probable cause to search the days inn on the search one twelve one fourteen she doesn't know what well she came out of well they have a sense of where it was sure to do that's sufficient probable cause to arrest or sufficient probable cause to search at most they could have this probable cause to arrest but an innocent why not probable cause to search to search for what she didn't give any indication stated she said that when she actions outside the home they saw them into this house according to the opinion of this court they knocked on the door especially for the purpose of thing if they could be voluntarily admitting it in order to talk to these two people but when they at least before i get started in sir mr judge sutton's question with regard to a case that's been decided by this court that goes with regard to the observation of drugs on the premises or case involving oh united states versus weaver and now is a case that was cited by this court where there was a drug transaction of half a balance of marijuana them with with the core all to merely decide it was that  that there were no observations about any type of mechanisms relating to drug trafficking activity in they thought that it was a half ounce as a half ounce of marijuana which which lends itself that it doesn't necessarily mean of course that there's trafficking going on but it doesn't exclude the possibility as well but typically when the informant had indicated that they believed one an informant believed that it was a marijuana growing operation  but nonetheless we believe that in this particular instance that it wasn't probable cause for the police officers to arrest mr howard or mr ray and likewise we believe that with the issue us just say it's a whole truckload just a whole truckload and they just unloaded it from this hotel and you're not allowed to go back to the hotel on the assumption gee i think they might be dealing something from that hotel room you know why i'm thinking that but it because possibly they think the interpretation is whether or not there's a fair probability that droughts will be found in the home now they the police in this instance didn't have any information that they would to her by consignment that means that she did not use money to purchase these drugs and that the understanding was was that she was going to pay back the money within the there are no you know was that about you know the tools of the trade scales right but she didn't indicate that she was on the premises she didn't see any other parts of the trade or the two of us something just happened i mean the they had information that connected the drugs to the particular then you i mean it's not like there was a deal out in the parking lot and turns out the person in that room i mean the information was that she got the drugs from the room and it wasn't stale it was like brand new information why is it not logical why would one think that this was the only deal why wouldn't one legitimately think that there might be more drugs in that very room that these drugs came from because it lends itself supposition or speculation the reason why i say that is because it would be different in a lot of the cases you're dealing with a reliable informant you're dealing with someone who has some working knowledge and to what the police her leave the days yes so it's not like i mean it's not like she's trying to pin it on somebody it would be different let's say they saw her let's say they didn't know where she came from and she could have said oh she came from you know some place else then she'd get that initially and go and so go go search the beauty shop or something well if they didn't know where she came from and you know maybe they would have a reason but they actually saw her leave the days and so it was credible her account was credible it was it was verified by other independent information would if it were a situation that she said that i went into one fourteen and one twelve what probable cause deal with exists to search in arrest those particular persons that were on one to our i think you have a i think you have a serious problem in this case if you have a sense of what part of the hotel she's coming from and when they stop her she exercised her fifth amendment rights and says nothing but it's to cap kilograms of cocaine that's a lot of cocaine and you have a very serious problem it seems to me i just can't imagine a warrant not issuing i mean for the hotel rooms in that part of the hotel where she left even if she could and if you know under my scenario in which she says that i came from room one fourteen instead of one twelve with that empower a judge that there was probable cause to search both hotel rooms the judge is going to rely on what they saw in terms of what room she likely was leaving from including the fact that it's plural it might be one of two or three rooms the think just by saying that she was in proximity of those two rooms does not necessarily implicate that those particular transactions were conducted in that room but they said all of the people they saw that they saw the people good afternoon your honors may please the court matthew shepard on behalf of the united states your honor that the decision of the district court denying the motion to suppress by both appellant should be affirmed in this case your honor  the first taking a look at the probable cause that the court was just discussing with the counsel for the appellants the position of the government is that there was more than enough probable cause beyond just the fact that this specific cocaine was taken from that room there were also other in additional factors indicate there would be additional evidence in that room such as the fact the packaging of the particular cocaine that she was found with was packaged unlike the  officer testified normally would be you find a brick of cocaine in a brick format as a kilo it was in a ziploc bag loose indicating had been taken off a larger amounts of cocaine there was test testimony that included in the affidavit for the war that ms johnson described future communications that would take place between her and the suppliers of the cocaine that there be future phone calls which would indicate there'd be figured this out you may have a quick answer and if you don't don't worry about it because i haven't figured it out in eleven years but i don't understand why inevitable discovery doesn't almost always trumps doesn't always trump exigent circumstances so i mean exigent circumstances in this case you'd say well you have probable cause and then on top of that you have to say we had a reason to go right into the room without the warrant right those are the two things but if you have the first thing probable cause why don't you always have a navigable discovery because that will always suffice for the war and so it just seems something about that doesn't make sense to me as a matter of logic your honor i don't disagree that that typically would have the factual at least beginnings for that both arguments are problematic i mean it just seems like it but i think one distinction in and i'm failing to come up with the name of the case right now in my understanding of inevitable discovery law also there needs to be some indication that the for example the obtaining of a war didn't come after the fact that the decision to obtain a warrant i do have been trying but there had been some indication that at least the  was sort of an ongoing alternative method in the sense of a and in this case i guess in the sense of they didn't say oh we have exit circumstances we need to hit this room and search for it and then later decide we're going to go get a war  right so i put in the form of a question here i think the inevitable discovery doctoring is always triggered only by the information the police have before the illegal entry so in other words you can't say i would collapse them but i'm still worried they're collapsed as is well but i don't think even though there may be a logical worry there i don't think that the response to that is well you can never have exit in circumstances because otherwise then the case law is saying that there are circumstances where you can enter the exit in circumstances exist for all sorts of items i think that that's not the solution but i'm just still very uncomfortable with the whole situation so i don't understand why what the and i'm not accusing the police of bad faith here i'm just i don't understand the incentive of going to the warrant if you can always say well joe's do your best to get something but we're crashing this place right now because as long as you have probable cause you'll always be able to say you know we would have gotten worn anyway maybe the whole point is well that's that's relying a lot on the courts and the courts of appeals and that's high risk whereas if you go to the magistrate first you eliminate a lot of risk maybe that's the answer and i think you're also i think i hear you again we're sort of talking to each other but i think i heard you also stressed the fact that you have to go for the warrant because you're really honoring the warrant requirement and so exigent circumstances is one thing and you know that eliminates the need for the warrant but if you if you're talking about you know some of these hybrid we're preserving things that cetera you are only you're only going to be able to you're only going to be able to invoke the inevitable discovery if you have gone ahead and gotten that warrant because probable cause won't do it for you you need the discovery is inevitable because you got the warrant and i think one way i guess it thing i would i guess offer the court and thinking about this and their ar circumstances where exigent circumstances would exist where the inevitable discovery doctrine would may not come into play and i think you have an example where it's not like this where there's surveillance in a traffic stop more of a spur of the moment almost pursuit situation where things are happening so quickly there isn't the any advance investigation for example and if i'm even thinking of an example say the officers were at the hotel you need probably cause you can't you can't ratchet down the probable cause requirement with such and see that's correct your honor but the probable cause that develops may not and i guess i see we're talking myself into a loop as example i'm going to i would say is for example the situation where the officers see someone you know they're chasing someone who goes with it was holding you know a firearm chasing someone they chase him in hot pursuit into a room that gives him the probable our present because in this case this it was a situation where the officer in charge of the investigation he didn't just on the spur of the moment say hey instead of going to get a warrant we're going to go hit this door because i can later claim exigent circumstances he  advice from the local prosecutor not a lot of cases where that was the testimony well but those are the facts of the case we have i understand you're saying and broader issues and broader concerns and i haven't figured this out so it's something about it doesn't make sense and i guess as i was looking at the issue i was more looking at the idea of it i guess independent calling an independent source as opposed to inevitable discovery in the sense that even if the initial accident circumstances and terry was not proper the warrant they alternately get was based on information from outside of that entry really doesn't matter in terms of how you characterize from your perspective that's correct and we believe there is probable cause to support the war independent of the agent circumstances so we don't think they're mutually exclusive point turns out that there really wasn't retrospect there's not an bridge and he doesn't really he has to make a legal conclusion but then he doesn't really give us explicitly the factual underpinnings of that would you say that's a correct characterization well you're right your honor he spends most of the facts that he suggests are more along the lines of the probable cause to believe there's evidence in the in the room that an accurate representation of what he of what he said and doesn't focus on why they believed the objectively reasonable reasons for believing the evidence would be destroyed or could be made and in fact all of the indications were that they had no idea what was going on honor i guess i would dispute to a point i would say the officers couldn't say that they said they all served at the house or at that not the house at the hotel couldn't say that they s anything specific which would indicate that scurrying around or suddenly everybody grabbing their suitcases and running out the door but then also you're talking about during part of this time what's going on behind a closed room and when they actually go make  to the room the doors are closed and they they can't see what's happening inside that room and in the context of a hotel room in which by nature by its very nature it's a transit location in that people typically have a lot to pack there's a bathroom the living space is relatively small typically there's a bathroom attached which evidence can be flushed or destroyed it doesn't necessarily take a lot to just walk away you may know it's not like walking away from a home where all of your possessions are there that in the context of a hotel room especially when you know the individuals are in there that there's a for a group of people who appear to be at least associated with each other and they're now behind closed doors in the context of this person having taken that amount of cocaine away it was objection objective a reasonable for the officers to believe that they would be notified of what happened and evidence leading to the destruction of evidence even if they didn't see that but the problem is a just they're not going to be able to look behind that closed door of a hotel room are there any further questions on the issue of the agent circumstances or in the issue of probable cause from the members of the panel do you think of independent source inevitable discovery is the same or do you do you have some you  first of all i don't think inevitable discovery has any role whatsoever to play here based on the search warrant affidavit that the issue which was included all of these illegal acquisitions you hotel management and have them tear off the wall or in the hotel room that eliminates this flushing they use ruses to get the people out of the hotel they call and say there's something wrong with this and something wrong with destroy the evidence that's what they say were the exigent circumstances that's not exigent circumstances in the context of this case if they believe there was a big quantity of cocaine they have to be insane dismiss that case as no discipline you could didn't decide it and here in magna they were talking about taking a blood tests with reference to whether or not a person was intoxicated testimony in totality even though he was not present in the same for all the time that elapsed before octane in the search warrant and we believe that mr howard's testimony was not given proper consideration because his testimony was not controverted by any way by the tenant cura bellows testimony so with reference to the issue of inevitable discovery we believe that the issue that in this case and how it was harmed was that howard testified that the officers had searched the premises and had he had observed the bag of money that was on the bed while he was on the bar in the practice room now the government says in this argument that a court made note of that there was there wasn't a specific time but we know from the evidence in a case that the warrant didn't was not up taint in the execution of that warrant didn't occur until three hours later and i just didn't think that the court could make a finding that mr howard's testimony categorically should be reject it without any countervailing evidence from the government's side of the case was says we have officers who were present during that period of time and no officer search that room