my name is andy jacob i represent the employer appellant in a sense this case is not about ice and it's not about my client it's about deterring flagrant misconduct by the maricopa county sheriff's office the degree of that misconduct the flagrant c of it affects the notion of whether there was a n between what the sheriff's office did and the investigation by ice the court asked us to address two cases johns and  gorman and both of those cases applied suppression in a context analogous to that here where tainted information was communicated by one agency to a second one and the courts said because that transmission of tainted information substantially cause the subsequent investigation by the second agency even though the second agency itself didn't do anything wrong merited suppression impose those cases they didn't really talk about suppression serving the function to deter the first agency but we have very we have case law that's very clear about that and i would call the court's attention to the davis verses u case from the u s supreme court from two thousand eleven where they talk about a line of cases where they calibrate the cost benefit analysis of  suppression factoring in the flagrant c of the misconduct the misconduct here was not the kind of misconduct that you've heard of today where an officer is thinking very quickly forgets to say something doesn't quite maybe have suspicion to stop someone all happening in a few seconds time the misconduct here which the government does not can contest was described by the state court as really conscious disregard for the truth which is a polite way of saying whining the misconduct here was in filling out an affidavit for a search warrant omitting all sorts of information that would speak against their being probable cause and putting information in that wasn't true to support the probable cause i think is pretty obvious how egregious the conduct was in getting that search warrant in the state court proceeding help me understand the causal link that led to the second proceeding the wanted issue in front of us the cause and effect i believe should be viewed from the viewpoint of the sheriff's office close is the sheriff's office that we're trying to do you must first just what happened what happened was the sheriff's office did the raid they got information some of that information they had prior to the raid but in the raid they said they obtained evidence that there were currently ten am ploy who were not properly documented that there was forgery without specifying what that was and that they had evidence that the owner of the business knew this was going on as soon as they came back to the office they wrote this up it happened to have been partly on true as far as what the owner knew and they sent an e mail to three people at ice amongst other people attaching this report there's no reason that they would have sent this to ice except they wanted to cause ice to begin their own audit of from a management to impose a civil fine we were not allowed to take the depositions of two of the three people that they sent that e mail to but we were allowed to take the deposition of the agent who did the audit and he was very clear that he had no intention of getting this business until after he heard about this r now he denies that he saw that e mail which may or may not be true ordinarily you would want to be able to take the deposition of everybody that got the e mail to sort of find out why was it sent there so we weren't able to do that but he does say that he heard news reports that reiterated everything that was in that e mail and those news reports were caused by the sheriff's office making releases and making public statements they showed intention to let ice know about this and i said learned about it indirectly through this being a new story and mr millet testified that he only began this audit investigation because he learned about this raid now that makes our case a little different from the two cases that you asked us to look at where there's no question that there was one brain talking to the other brain vague they got them on the phone they gave them the information the difference here is that the information went through other people went through the newspeople to mr miller it was made probably right it was more than a lead as in u s versus smith right was held to be only illegal it it was made public the question again when you suppress in a situation like this is not mr miller state of mind other than to as stablished of the but for quite causation element it's was this what the sheriff's office intended to have happen and arguably if that e mail wasn't sent you'd say how do we know what the sheriff's office intended but there's no evident explanation why the sheriff's office sent that e mail to ice other than they wanted ice to do something  and not only did they want that the whole the whole purpose of this is that the sheriff's office is seeking publicity that they're hard on the immigration issues and they wanted support they weren't sure that the county attorney was going to prosecute in this case because they never had before so if they could get ice to do something that could add to the new story the value of the sheriff coming across as being hard and that's what we need to deter we need to prevent the sheriff's office from having this flagrant misconduct achieve what they sort to have it ach the other thing i wanted to call the court's attention to is the adamson case the two cases that the corps asked us to look at were cases where there was a criminal prosecution and the issue was to suppress evidence in that subsequent criminal prosecution added adamson it was a civil investigation like we have here and what the court held in that case is that maybe there is a little higher standard to suppress when you take information from one agency to suppress information in a civil investigation and that's where they basically were talking about the first agency had to act in bad faith and i think if you just forget that you need a search warrant or you make an error and you think you don't need one or you pat someone down when maybe you don't have cause for you can't art art articulate it that's not bad faith but when you're why in an affidavit for a search warrant and you have time to edit it and to check it with other people and to talk about the evidence that it's intentional conduct and it's polite to say it's a disregard for the truth it's flagrant and that satisfies adamson if the court doesn't have any questions all of reserve the rest of my time let's hear from the other side thank you i think so your honor yes and perhaps it's best to start with the two cases that this course asked asked us to address which are john's and gorman johns of course dealt with a customs officer who asked the sheriff's office to go and conduct a search or surveillance and they did and then based on that that customs office went out and in a single stream of investigation found drugs and to the extent that it's relevant that there was a separate agency there the sheriff's office they were acting at the behest of the customs  agents with respect to gorman which i think is a little more instructive there of course one police officer specifically requested that another police office down the road conduct a search with the dog to obtain the evidence that that  inextricably linked and it was deliberate and planned at that search would happen and the judge reinhardt said that the officers in permissible gamesmanship is precisely what the constitution prescribes there's no gamesmanship here and there's no evidence no gamesmanship is a sort of a pejorative term if the if the questioners rather than gamesmanship if the question is did the sheriff's office intend that the information that it on earth by its illegal search be used to stimulate activity by ice the answer is yes i don't know if that's correct your honor that last e mail that went out with the shift summary went to i think twenty six individuals in the law enforcement community there were there were the three individuals from ice but this is a sheriff's office that's operating the same territory with multiple law enforcement agencies i don't know if it's a reasonable conclusion to say definitely that was meant to induce ice to go ahead and launch i and nine invest i think it would be an implausible conclusion to conclude otherwise given what we know about the operation of the sheriff's office even if that's the case even if we assume that that that the sheriff's office wanted us to go out and conduct this investigation we know from the record that it had no effect on ice well there are various ways to convey the message any trial lawyer knows that publicity  is one way to get the the message out so if you can't quite talk to the jury directly try to get a lot of stuff in the newspapers and hope they didn't or the judge's instructions not to read the newspapers i mean everybody knows that there are various ways to get the message out this  release and you have to find that the sheriff's office pacifically issued a press release to induce the news agencies to publish information to get ice to go out and conduct a paperwork audit of this employer and i don't think you can make that logical i mean they're published they're publicizing their activities they made significant arrests they found significant information of identity theft and they're publicizing that of course they would i think any sheriff's office would i don't think it's an easy leap to make to say that that was that was done to induce ice to go out and do and i nine well if all we had was the press release i think you might be on pretty good ground but we have the press release but we also have an e mail to three ice employees containing the same information we do your honor we do but i would emphasize that the agency here the a l j made a factual determination based on the auditor's statements which specifically say i made the decision to initiate this audit based on my viewing of local news and internet reports i then went and i looked at the history for this company and saw that we received a tip in two thousand and twelve an anonymous tip ice maintains tip lines to to receive information about employers in this area i noticed also that we conducted an audit in two thousand but they didn't have information on the outcome of that audit and based on that i went out and i initiated this investigation not because of the shift summaries that's a factual determination by the agency that is reviewed for substantial evidence the fact that there are these shifts summaries that the that the that the auditor did not use in making the determination determination to target this employer that's not compelling evidence that would would go i think his his supervisor was on the chain was a signatory on some of the documents but he just signed off on this auditors decision to go out and target this employer after the fact the sit with made by the auditor they they could add nothing to the to the decision  you know as he had to say but that's easy to say because there's been no deposition you know i understand that your honor but again the factual determination is there it's reviewed for substantial evidence and there's no compelling evidence to conclude to the contrary that that the decision was made based on those news articles i'd like to address adam saying i am sorry he does not feel that i had a question about the sheriff's office shift summaries to ice interest i don't know who the other individuals are on that e mail i don't know if they were from other law enforcement agencies that information is not in the record i don't think you can just occlude conclude from the fact that they sent ships summaries to other law enforcement agencies that they want d to to somehow induce ice to go ahead and do this again that's a leap i don't think you're able to make just because these individuals from ice were included on those on those angles adamson i'd like to address  you're brought it up as a third case of relevance in that case which was attacked assessment jeopardy assessment which was excluded that evidence that was relied on by the i r s there is the exact evidence that was that was discovered through through the illegal search that's not the case here we have an independent agency that issued an independent subpoena based on a news report and got its own investigation collected its own evidence and assess penalty based on that i'll know just as a as a background here because these cases don't come up very often that ice doesn't have to have a reason to subpoena these documents from an employer that's part of the bargain that was created by congress in ninety six when they pass this law so your honor that's part of the scheme that was set up by congress when they passed this law in one thousand nine hundred six is that the employer would bear the burden of filling out these i nine paperwork to demonstrate that they they checked for employment authorization and that ice would have access to audit those documents when they wanted to and the lest there be any concern that this is some random law that ice chose to use to go out and get this employer it's not enforcement has ebbed and flowed over the years since one thousand nine hundred six but in two thousand and nine ice made this a priority publicly announced it and we've seen a significant uptick in these types of audits across the country they trickle up slowly to the circuit courts we don't see a lot of them here for various reasons but there has been an increase in this and foresman it is a priority for rice i also like to address the fact that there is no deterrent value to excluding this evidence well t n value to home deterrent value to people in the position of the sheriff their evidence is already been excluded and their criminal cases are gone they have no the i nine audit the paperwork a violation audit is not within their zone of primary understand i understand the concerns with the with the sheriff's office but i think as a matter of policy it's difficult as well because if you say that this evidence must be excluded because this employer learned of this the ice learned of this employer through this news report that's always going to be the case and this employer is going to be excluded or shielded from liability forever ice will always have learned of this employer's activities they grew but they're not asking for a rule that says whenever i see learns of something from a news report they can't use that that's not what they're asking at all well that's that's essentially what it is it's this news report well because there's but this is a very special news report coming as a result of outrageous behavior on part of the sheriff's department when the sheriff's department in addition to the news reports is presenting precisely this information by e mail to three employees of the organization at that time i said no reason to know that this was that that this evidence was going to be that that the subpoena would be scuse me that the search would be invalidated that was in two thousand and fifteen a full two years after ice initiated audit after the summaries and after the news reports that was well after this information is on the news as a matter of policy you want ice to go out and investigate different employers are going to be concerned about competition the public is going to say well what is ice going to be doing about this and again the sheriff's office evidence was excluded none of it is here their case fell apart they have been punished and penalized this is not in their zone of primary interest i understand the concerns about the sheriff's office but penalizing isis case  and shielding this this employer from liability for its paperwork violations which are a continuing violation for the amount of time that those people that those i nine's must be retained by the employer so still a violation that there's no deterrent value to that that's not what the fourth amendment is meant to is meant to do if there are no further questions or thank you very much appr i think i just need to call the court's attention to where the record answers some of the questions that you asked in the pen dix that we gave the court on pages one was that this evidence is not suppressive bull because it's identity evidence and i think the l j just didn't understand the basis for the cases that they're used to seeing where someone wants to suppress their identity as someone in in the country without authorization that's not our situation here and i also want to call the court's attention to our reply brief on page one at the bottom of page one is language from the affidavit that mr miller gave and he says the work site case was initiated based on information generated from the local television so even though they looked in their records got a little more support maybe from what they had he's very clear this investigation occurred because of what he heard coming out of the raid the two cases that the court asked us to look at johns and and and gorman both had language showing that the tainted information didn't have to be the only cause of the second in investigation john's uses the phrase significantly directed and gorman uses the phrase part of the impetus and i think we can surely say that the information that ice learned about the from a management versus united states now submitted for decision