was samantha kuhn and i represent was andy daniels as the court knows several issues are raised in this appeal and so with the court's permission i'd like to focus on suppression today but of course if the court has any questions about the other issues you don't you don't waive anything that's in your brief suppression there's two questions that are really relevant to this appeal the first question is did mr daniels have standing to challenge the warrantless searches of the hotel and the second question is if he did have standing  those searches violations of his fourth amendment rights now the initial question of standing in the district court the district court found there was no standing in this case and that was based on a misreading or misinterpretation of the supreme court's holdings in olson and carter mr daniels to have standing all he needed was a reasonable expectation of privacy in that hotel room an expectation of privacy that society would recognize it subjectively reasonable what's the what's your strongest case first situation like that like this where the room is registered in the name of someone else i believe that as far as the strongest case for where standing has actually been found several of the cases that have gone up on appeal have actually been cases where they didn't find standing but i think that those are very clearly distinguishable because in those situations it's always a clear line where the purpose of the person being in that room was a purely commercial purpose and they had little to no ties to circumstance where it's a hotel room but i would say bird is probably one of the strongest cases that supports this view because in bird the supreme court acknowledged that just because someone isn't the authorized owner or rent ter leaseholder or person that's entitled to be occupying a specific space doesn't mean they necessarily don't have an expectation of privacy in that space and so i think bird and especially in bird it was it was uncovered that the defendant had drugs and had you know was engaging in an illicit and commercial activity in that case and they did not find that that somehow undermined his expectation of privacy even though he wasn't the actual person renting the vehicle so when olson the court created a spectrum the supreme court recognizes spectrum that was reaffirmed in carter and olson they identified someone who has an overnight guest as only one end of the spectrum and that seems to be where the district court went wrong because it appears from the opinion that the district court thought overnight status was actually dispositive of the issue and not just one end of the spectrum that has to be considered and in olson and carter the supreme court recognized at the other end of that spectrum was somebody who's just merely legitimately on the premises someone who just is allowed to be where they are at the time the search occurred nine carter the court looked at the defendant's reasonable expectation of privacy in a situation where he had paid drugs to an apartment lease holder to use her apartment for two hours for the sole purpose of packaging cocaine and the court recognized that he had no previous content connections and no relationship with that lease holder and so that combination of factors for the court even though the court recognized it was it was in the gray area between the spectrum the court looked at that combination of factors and said there was no expectation of privacy that society would recognize as reasonable now in this case we have an entirely different scenario all of the evidence that was presented at the suppression hearing and the trial showed that mr daniels and mr james had a relationship going back several years and that they were friends the officers that were observing him that day even recognized that they looked like they were friends they appeared to know each other very well and that was based on their conduct throughout a twelve hour period over the course of the day that they were being observed and during that time when they weren't in the hotel room they were seen going to the grocery store they were seen having a two hour meal and this was and it basically all the circumstances that to tell you the circumstances show that their relationship was not purely commercial it was in or it was a relationship that was based on social friendship and just because it was later uncovered that mr james was conducting some kind of illegal activity in a hotel room that does not change the analysis for standing this court made that clear and vega that just because illegal activities are occurring in the private space that doesn't undermine somebody is reasonable expectation of privacy under the fourth amendment so in this scenario we would argue that standing is clearly present here because mr daniels had a reasonable expectation of privacy in mr james's hotel room based on the longstanding friendship their relationship and the fact that they were together for twelve hours that day and they were clearly engaging is primarily social activities even if it was ultimately discovered that there were drug proceeds or drugs in the apartment after the fact and if there are no further questions on the standing issue i'm going to the actual fourth amendment searches so in this case with respect to the searches themselves it's undisputed that there was no warrant before the officers and to that hotel room and so in a situation like that we start from the presumption that the search was actually on reasonable and it's the government's burden to come back and provide some kind of legal justification that justifies their want list entry into that hotel room and here the government decided to rely on exiting circumstances specifically the imminent destruction of evidence and the supreme court has said in kentucky v king that that's allowable as long as the officers conduct preceeding the exit in c was reasonable and in that case the court upheld a fourth amendment search but on the basis that they found no fourth amendment violation or threatened fourth amendment violation leading up to that entry here that was not the case the government's conduct leading up to this actual search began with what they called a knock and talk and i'm not going to talk as this court has held in as the supreme court has recognized is an investigative tool that's not meant to use be a show of force it's not meant to make demands on the occupants and it's not intended to raid a residence it's supposed to be a normal citizen can do which is walk up to a house knock on the door and ask for permission to engage with the person inside or ask for admission and this court has repeatedly held and so has the supreme court that they've we've recognized that there are  certain procedures that would be followed in a reasonable knock and talk and that includes knocking on a door briefly waiting for a response and if you're not invited in or invited to linger longer on the doorstep retreating cautiously seeking a warrant or conducting further surveillance again the purpose is not to show of those who have a show of force and to try to demand entry into a place where you don't have a warrant to enter and anything more intrusive or invasive than a general accepted not going talk that would be a fourth amendment seizure that would be a violation of fourth amendment rights and so in this case we have a situation where we have ten agents who have decided to put on all of their tactical gear strap himself up with weapons put on their bulletproof police vests go up to a hotel room one of them has an assault rifle in his hand and they surround the hotel door they then try to use a ruse to get entry into the hotel room by lying to the occupants about who they are with express hope and this is explicitly testified they're hoping that hoping the door not realizing it's the police that alone would be a force moment violation because any consent that would have followed from that would have been invalid because it would have been based on the deceit from the officers and it would have been voluntary and consent to allow the officers in but then when that ruse didn't work mr james refused to open the door even though he acknowledged they were out there they continued to knock and they continued the man and tree into the hotel room over and over again for several minutes and the police officers even recognized some of the police officers that were not the one knocking said it went on for a pretty good while and went on for several minutes and continue knocking until they were able to identify an exit should exit and see it that allowed them to get in the reasonable person in that scenario in that hotel room would have felt like they were not free to leave and that's a test for what is an unlawful seizure mr james testified that he looked at the people and he saw marshals everywhere and then and then they kept knocking and kept knocking and wouldn't leave when he clearly was not going to open the door for them but even if that was not an actual unlawful seizure under the fourth amendment at the very least a reasonable person would do that as a threat and fourth amendment violation the conduct of the officers made it clear that they were not leaving until they were allowed in machine of that room until they found a reason to buston but ultimately the unreasonable us of all of us not going talk on direct and unreasonable ness of the officers leading up to the entry it doesn't even matter at the end of the day because there was no genuine is there a specific question regarding her well to tell tell us how the evidence is insufficient on aiding and abetting i believe that the evidence is insufficient for aiding and aiding and abetting conspiracy charges or or the actual of charges because there was no evidence of any kind of intent or knowledge on the part of mr daniels with respect to the actual drugs that were found in that hotel room on that december second lead there was drugs found in the trash can by mr james and that was it he indicated that he intended at some point to provide them to mr daniels but that was all the evidence we had that those were ever destined for his possession or that he was at all involved with it but agent don't vowing said that he heard the toilet flushing and then when the agents went into the bathroom mr daniels was sitting on the toilet with the lid down right agent i mean you're saying a juror a jury could not have completed from they have to mr daniels was involved in aiding and abetting whatever scheme was under way well first of all i believe and i'm may be incorrect by i believe that agent testimony was actually at the suppression hearing and not at the trial so i don't believe that was actually before the jury  but in addition to that at the trial mr james testified the testimony about the flushing of the toilet was or what might have been flushed down the toilet was there was no testing for residue to see if anything was actually flushed and mr mr james was questioned at trial about why mr daniels went into the bathroom he had knowledge mr james or mr daniels ran to the back to the bathroom but he was asked why that was happening and he said he had no idea and so there was no evidence that that was actually occurring there was no physical evidence of drugs had been flushed down the toilet and there was no testimony showing that that had happened i'm in fact i know from the testimony that mr james had identified the drugs or the amount of roughly the amount of drugs that would be found in the hotel room and that was consistent with no drugs being flushed down the toilet so i think that that's wholly insufficient to show that he flushed i think down the toilet and wholly insufficient to show that he was involved in any kind of aiding and abetting capacity with the drug dealing from there ok anything else just regarding genuine ads and see i would just like to briefly address the fact that even if this court doesn't find that the conduct leading up to the perceived exigency by the police officers was unreasonable and was sufficient to suppress the evidence  c itself was not based on a reasonable belief of the imminent destruction of evidence they had conducted officers had conducted nine hours of surveillance leading up to the knock and talk and during that time they had seen no evidence of actual narcotics in the room at best they believe that there might be some money and they thought that they might have seen a gun go into the room by five pm they knew their room number were mr james was staying they knew that he was playing a check out the following day and they knew that there had been money in the possession of people who had interacted with him but they didn't go get a warrant at that point they just kept ten agents stationed around the hotel room and so at after five pm two hours passed and they saw leon jackson emerge from the hotel room and so instead of following him with him like they did joppa to pull him over away from the hotel and out of sight they approach him in the middle of the parking lot and try to get more information from him about what's in the room but for them that was identical information to what they already had there was no new information suggesting drugs were in the room he had money in his possession and he said he had been in the room but it only seemed money and no drugs when they didn't get the information that they wanted they decided to conduct this knock and talk and bring ten da da agents armed up to the hotel room with a specific purpose of getting getting to see inside of that room and when their initial wrist didn't work they ended up pounding on the door over and over again demanding entry until they found this exit and see they heard a toilet flush one agent how to tell it flush another agent smelled some burning marijuana now there's several problems with this as serving as an exit and see warrant warranting the on the just unjustified search the first is the general reasonable reasonableness that underlies the fourth amendment the fourth amendment and as a supreme court has said that the touchstone of the fourth amendment is reasonable in this and that includes a consideration of proportionality and that's absolutely relevant to considering whether it's reasonable for engines to bust down into a hotel room and conduct search and in this case at best even if we take all of the information is true and assume it didn't produce did smell marijuana that would not justify this warrantless entry into somebody's private hotel room but even beyond that this court has outlined five factors that should be considered and determining whether whether they're exiting circumstances justifying a warrantless search and one of those is urgency and one of those is a reasonable belief by the officers that there is the imminent destruction of evidence inside and i focus on that that phrase reasonable belief greece testified that james told them after the fact that mr downs did in fact flush drugs down the toilet and that somebody had been smoking marijuana in the room and that was the evidence that the district court heard but the trial mr james testified he devore told any of the officers that anyone had been smoking in the room but he admitted somebody had come in after she had smoked prior to come in the hotel and then it was thirty minutes later that the officers even approached him with respect to the flushing mr james testified he had no idea why mr mr daniels went back to the bathroom he didn't testify that he was going back there to flush drugs all right your time has expired and you've saved time for a bottle thank you mr and mr mclaren thank you your honor good morning may it please the court run mclaren for the united states and joined this morning by brennan long who is trial counsel in this case i want to respond to a couple of points i want to start first with standing it was of course mr daniels this burden to establish standing in this case judg this up at the suppression hearing she said it standing is something that i'm concerned about there are some factors that i would like to hear more about for example whether mr daniels had a key to the room whether he was a registered guest in the room whether it was an overnight guests in the room these are all things that judge  e said i would like to hear more about this and mr daniels failed to present anything showing that he had standing to challenge a search of the hotel room the factors that were before a judge will also again that mr daniel significate that he will going to be an overnight guess that he didn't have any suitcases that mr james paid for the hotel room and portly that there was commercial activity going on inside the hotel room that this was this wasn't purely personal activity friends hanging out in the hotel room this was two drug dealers renting the hotel room almost as commercial office space to in which they would be packaging proceeds of their drug trafficking act you asked for opposing counsels best case she cited to bird and of the bird announces these general legal principles and i suppose that th general legal principles are helpful our best case i would point to philips for the proposition that using a space for commercial activity that that does matter for standing us is that this is something that this court has looked at for standing purposes and so looking at all of these factors that were before milan so judge was a concluded that mr daniels had no control over the room that evening or not the judge was a concluded but the factor show that mr daniels didn't have any control over the room that he didn't have the ability to exclude others from the room that this was renting the hotel room as a commercial office space for drug trafficking activity that mr daniels was a short term guest and thus he didn't have any standing and for that reason judge will as those findings as a standing are correct i want to turn to the exit in circumstances issue it's critical to note and i want to direct the court's attention to our away three fifty six note eighteen that's where judge will also credited the testimony of the agents who testified at the suppression hearing graves or a greaves who were there outside the motel room and what did their testimony say what did they perceive when they were outside the motel room what did they know when they were standing outside the motel room first they knew that mr james the head of this conspiracy they had been told by a c i it that he was a drug dealer that he regularly came from houston to new orleans as part of his drug trafficking act if they knew that james had met with the jackson brothers drop in jackson and leon jackson they knew that the jackson brothers were drug dealers they later apprehended the jackson brothers and found thousands of dollars in cash on the jackson brothers so what the agents know when they're standing outside the motel room is that there's all these drug dealers at the motel that they're meeting with each other and that they're dealing with thousands of dollars in cash the agents go up to the motel room yes they they there are seven to ten of them some of them are armed and if that's all that there was in this case then it would be a different analysis in this case but that's not all that there was in this case there was a break in the break is the existence either of the officers announce their presence they say hello or the police would you please listen they hear running around inside the room they are james come up to the door look through the people they hear all this commotion going on in the room that you're the toilet flushing the agents standing by th window signal to the agent standing at the door that they're flushing the toilet agent testified that he kind of mind the toilet flushing agent greve standing at the door and at that point based on all that they knew and based on the toilet flushing and hearing the commotion inside the room the agents decided to breach the door and enter the motel room again this was a break this was an accident circumstance that justified their warrantless entry i want to turn unless there's any questions about the fourth amendment issue i want to turn briefly to  sufficiency there was more than enough evidence in this case to support the three convictions even without the evidence from a motel room there was testimony from james the head of the conspiracy there was testimony from the other drug dealers involved with this conspiracy that jackson art from jackson and also healey and that testimony directly implicated daniel's in this conspiracy in this drug trafficking activity of bringing bricks of cocaine from houston to new orleans and side the doors of used cars they other members of the conspiracy relied on daniels relied on his salvage yard relied on his background as a mechanic working at the salvage yard to remove the doors to take the cocaine out of the doors to put cash in the doors and then to send it back up to  part because he played this important role as part of the conspiracy daniels was fronted drugs james and joppa jacks and james and donald testified that they were helping mr daniels kind of get his crack dealing business up off the ground that they would cook crack for him that they would talk to him about how to cook cracked also there was testimony from officers who witnessed mr daniels engaging in transactions in front of his house there was video that the jury saw  daniels engaging in hand to hand transactions in front of his house all of this evidence supports the convictions for the three counts and none of it has to do anything to do with the motel room and if there are no further questions the government has at this court affirmed daniels i just a couple of brief points the government says that they focus on philips as far as showing a lack of standing here but as this court well knows and as judge king i know that you were on that opinion no there was no permission for the defendant to be using the premises in that case the way he was using it he claimed that because he knew the family that owned the shed and he knew he was friends with them and they you know they were friends from way back that gave him permission to be there and that justified his standing but in that case it was clear that he had no permission to use the shed and the homeowner didn't even know he was using it much less in the capacity that he was when he dropped drugs through the through the roof of the shed and as far as the credibility of terminations of the district court of course you know credibility determinations by the district court are within their purview and generally are kind of immune from scrutiny but in this case the district court first of all didn't have the benefit of all the testimony that came out at the trial when she made her decision on the suppression issue and second of all it doesn't matter as far as the credibility as much as the reasonable belief element for why they justified their warrantless search into that hotel room this court doesn't have to question the district court's credibility terminations in order to reach a finding that the officers did not reasonably believe that there was an imminent destruction of evidence that was so urgent that they needed to enter that hotel room and the government also discusses sufficiency in the context of without the evidence from the hotel room and they focus on the testimony that came from the jackson brothers and from mr james but as the court case law makes clear verbal testimony is still suppress a ball as a fruit  unlawful search and in this case most of that testimony if not all of it derived immediately from that warrantless search of the hotel room they were able to bring in mr james and mr dan completely undermines the free will of any statements made by the co defendants this case or other people who that they identified as a result of that search in cases where verbal testimony has been allowed the government has been required to show some kind of separation in the link between the testimony or the statements that were made and the actual warrantless search on the fourth amendment violation in order to get that kind of testimony admissible and so i would argue that if suppression is warranted in this case it would be risk of responsibility the district court to really evaluate to what degree all of the testimony and how the evidence should be suppressed and how much of the evidence came directly from that search and just a couple of final points as far as this fourth amendment search goes the conduct of the officers leading up to the warrantless search of this hotel room was a clear aggressive show of force and they made it evident not only through their testimony but through their conduct that they were going into that hotel room one way or the other whether they got consent or whether they had to find  exit and see to break down the door and in this case if we allow this type of conduct to justify a want to search into a hotel room it basically gives law enforcement the license to conduct these knocking talks in a way that is so aggressive and so persistent that it will never be result in either consent or they can just stand outside of a hotel room for as long as they need to in order to gain entry through some kind of accident circumstance that they can identify and we can't set the bar that low for the fourth amendment protections where and just as one stepping back to standing as one final point i would just like to provide the court with a brief analogy i know that it's hard to look past the illegal conduct and the drugs that were located in the hotel room in order to look at the standing view from a bird's eye view but if the court considers you know as i said before vegas said that you cannot consider their legal activities in determining whether somebody is expectation of private privacy is objectively objectively reasonable under the fourth amendment and if you step back and take out the legal component of the activity there in gauging and i understand that commercial purpose is a factor this court considers but commercial purpose is to be considered as if it was the sole purpose and basically the reason for that is that in amounts to basically going to an apartment to a hotel purely for a business transaction and for purely for a business deal so i would contest a case where for example if i want to purchase a couch on craigslist and i go to the owner apartment for the pure purpose of negotiating a prize viewing the product and potentially making a purchase it would be unreasonable for me expect to expect him to share his privacy with me and contract if i go to a friend's house and while i'm there she adds asks me to help her package products that she sold on e bay because she wants to mail them out technically that's commercial activity but i would still maintain the same reasonable expectation of privacy in her home as her guest thank you thank you