Today is another criminal appeal United States versus McLean. Mr. Mitchell? Thank you, and I'm good. And why may I please the court? If you think the court for having us down here, two general issues in this case, and I'm sure the court is aware of the facts. One has to do with emotion is suppress, a warrant, less arrests, and the other has to do with 404B. I'd like to, if you don't mind me, sort of priming the pumps so to speak, with just a brief recitation of the facts. Because I think there's no dispute between the parties as to the factual findings made by the judge, and we both agree that they were correct. Pretty generically, and in form was arrested in Baltimore, city, back in March of 2010. The informant in exchange for, I think, a release on that case agreed to put the police officers on with some information about drugs being sold out of the nearby house. They could not identify the house from which the drugs are being sold, but he did say this is the block, it was the 22-hundred block of guilt for the avenue. He didn't know what, or at least the police, he didn't tell the police what drugs are being sold, nor identify which click or individuals were involved in the selling of the drugs. He could not identify the house or the participants or the drug, merely the block. That was enough. The officers went out and established surveillance and as the government, Mr. Perl supports that, in their brief, they set up surveillance about 300 feet, or the length of a football field away. 100 yards? With ten by five or ten by 50 binoculars. Three officers, I think second or third floor. Good distance, but they had a pair of binoculars. But the binoculars bring us up a lot closer. Oh, it does, I think it's a 10 to 50 times enhancement. So, obviously, we've never been to a football game, you know, the length of a football field. Like 30 feet. Well, I don't know that I'd go that far, you're on it, but it's certainly I would agree that it enhances the vision of the officers on surveillance. But apparently not well enough, because there's a lot of stuff that they couldn't see. Gentlemen later to be identified as McLean comes through the alley, goes into the back of a house that has a padlock on it, unlocks it with the key goes in, comes out, leaves, comes back with another gentleman, he sort of loiterers in the alley, goes back into the house by himself, comes back out, hands that gentleman a packet. They go up the street a little bit, officers still keeping their eyes on him. And at this point, it's important to, to... The houses are there in this area that the informant has identified as a location. It's a block, your honor. And if I could defer to counsel on that, because he was trial counsel, but they're flats, they're row houses. So I venture about 10 per side on the block, which is pretty common to that area of alteration. You're in there surveillance. How many people went in and out of any of these houses? From the back, I think, just McLean, I mean on the record, I think it's just McLean and this other fellow who stayed outside the house. And just McLean went in, but they were in the back alley, as opposed to across the street looking at the front of the houses. They all have rear entrances. They were looking at all of these houses. You don't know the number of them seem like it'd be significant on your question, whether or not there's a law for arrest, that if you, because I don't know what the scope of the search is, or at least the surveillance, I guess you could surveil the whole city if you were up in the satellite type. But..
. As best I know, your honor. It's a pretty big area, and they're far away from it. And it's a sort of standard Baltimore city block. McLean is the one that goes to one of those houses? Well, yeah, but it is at 7.38 o'clock in the morning. And it is back entrance. And so a lot of people, you suppose, would not be coming out the back of their houses at 8 o'clock in the morning. Also important point out response to your question. How much says that the people were going in the back of the house? I don't recall that he was saying that, your honor. I just recall that he points that they're selling the drugs out of a vacant house, and the house was vacant. How many vacant houses were on the block? I think more than one, Judge. By the way, I can't give you a specific number, but more than one. So the thing I want to point out sort of related to that is that officer says other than him coming in and out of this house and using a padlock to enter the back of the house, he said nothing was unusual or abnormal about his behavior. He described the police officer at the motions here described them as... I said, and someone's going 7 o'clock in the morning to a vacant house and taking a padlock on it. That looks a little unusual. Oh, I think it does, Judge. I mean, I hope it's clear from my brief that how I think these facts play out is if I were standing here arguing reasonable suspicion to conduct an investigative stop, I think we'd have a real live debate and not be sweating a little more, but we're not doing that. The government... The problem of calls makes it different. I think it does, Your Honor. Clearly, probable calls is higher on the spectrum than... They went down the corner of the residence hall. They did. They did. And they didn't go down what they normally do is they'll sort of roll up on you and put you up against the wall and patch it out for weapons and the courts are doing that, presuming that they're following the law. They pat down, they feel something that's immediately apparent contraband and they pull it out. But they said at the motions here, and the government does disagree and the judge did find and the officers agree, this is a full blown arrest. They just... They just drove down an arrest. Joe down an arrest at him. What is not a Terry stop? What is not a Terry stop? Put him in handcuffs, told him he was under arrest and searching his pockets and retrieved the key to the house. Now, McLean's not challenging the
... legality of the search of the house itself. It's a vacant house. He doesn't have standing to do that. But I submit to the extent the court's thinking in this direction. The key to the place that he's pocket. He did, Your Honor. You had first challenged that. That you thought you... That's all I... I'm sorry. Oh, yeah. That's what I'm challenging. And the reason why I think that gets McLean a new trial and that this is not harmless is because that's what ties him to the house in front of the jury. Other than the officer, one of the officers saying, and it's only one, because only one has binoculars. And the other two officers say, you know, 200 feet away, a football field away, I couldn't tell what was going on. But to be fair and clear, the officer with a binocular says, I know that's the guy that went into that house, the guy that he arrests because he... One with binoculars. The one with binoculars, yes, Your Honor. So, without the keys, without the key, the key is a critical piece of evidence, and I think the government agrees, that's all they have to tie McLean to that house because they arrested them down the street. So it's not these guys. This is the issue of vanity. The key issue is identity and puts them at the house. But nocklers, I thought they saw him going to this house. They did. They did, Judge. Or rather they testified, they did. One of them testified that he did. One of the officers at trial testified with my binoculars, and he said, I don't believe that it's McLean that I saw. Did you have any evidence about what these binoculars do? How close that makes him? I do. Did anybody explain it? Yeah, there is that, Your Honor. I do have a question sort of about that. I don't mean to.
.. I mean, it's skirted. The government actually put in its brief here. It was, in fact, about 100 yards, and he had 10 power binoculars or something. What does that make it look like? To the fellow that had the binoculars. It's looking through. It makes it to 10 by 50. This is at the government's brief page. What's the thing that it looked like? I think that means that it enhances it 10 times. Do you think it means that? That's what I thought it means, but was there any evidence for the jury to decide what that means? I don't think so, Your Honor. It's 10 times and he was 10 yards away. Well, like you said earlier, 30 yards away. If believed by the jury. 30, no, it's 100 yards. I'm sorry, 30 feet away. 10 yards. It's a football for you. Which is 100 yards. It'd be 10 yards away, so you've got to be here to counsel, right? What it would look like. You have to do the fellow with the binoculars. Right. So that's what they have. That's the testimony that they have. What Your Honor just recited with identifying, McLean, that's the testimony they have to tie, McLean to the house. Test them on you one Baltimore city detective with the pair of binoculars. Keys are critical. Keys are in McLean's pocket and open the back door and inside they find. You're saying McLean couldn't, or they couldn't consider the keys because it was the arrest was before they got the keys. They got the keys from the arrest. Keys are tainted. Right. Right. And I don't raise the fruits of an ill-dital arrest. They are. And I don't raise that as to the search of the house itself because of the warrant plus McLean not asserting an expectation of privacy or an interest in the house. But without the keys, it's the keys that McLean submits are the fruit of an ill-dital arrest. Now, there is, I mean, one important thing I'd like to point out here is the government wrote a very solid brief, it was a very capable council. Neither he nor I have been able to find a case in this circuit that comes anywhere close to comparing these kinds of facts with a probable cause analysis. The dust up is always around reasonable suspension. Do you represent him in the district? I did not, Your Honor. You're new to the case
. I am, Your Honor. With these cases that I cited and that the government cited and it's brief as well, the fight isn't around reasonable suspicion. Usually you're challenging the initial detention. You say, well, there wasn't enough suspicion to do that. And then you smell marijuana or the defendant throws contraband that's immediately apparent. You know, he throws cocaine or ditches heroin gel caps. I suppose a fair way of presenting that question is this judge, if you're going to make an arrest without a warrant, you have to have probable cause. So imagine submitting to a judge a request for a warrant saying, I want to arrest this person for drugs. You cannot tell the judge what the drug is. At no point along this continuum of time, I'm telling you got into the house, could they identify what drug this person that they arrested was allegedly dealing? You mean you had to know the officer need to know what the drug was? Why couldn't they just conclude that there was a shady drug transaction going on or having taken place? Well, Your Honor, four reasonable articles of suspicion, I think that's one thing, but could you imagine? What is marijuana or cocaine or heroin, you saw federal crime illegal? Well, I think that's certainly true, but they are separate crimes. I mean, they're all under one statue, but they all separate punishments. But they're all felonies. I mean, I don't know why I would have to know that it was marijuana or heroin or something. Well, I guess as a practical matter, submitting an affidavit in a request of a warrant to arrest or for search and seizure and not being able to identify the magistrate, what drugs you have probable cause to believe are there. Well, I mean, you can definitely have to say it. I mean, you possess, with the intent to distribute a controlled substance or distribute a controlled substance, that's all it has to say. That's what statute says. Right, but you have to find out what drug it was. That's a bill of particular. Right, or a two-wit clause. But if you're looking for probable cause of arrests on one, you have to have, under the totality of circumstances, there are reasonable basis to believe a crime has been committed, particularly a rise. The controlled substance being distributed. Right, or having been distributed. But it has to be particularized to the defendant and to the conduct. Why don't the officers testify that they saw what appeared to them based on their dollars and experience, that there was a passing of a small packet and some currency back? They did that, Your Honor. They did that. I am, again, I am making a very clear distinction between, I suppose what I'm saying is what they all do have done, what they normally do in these cases, is detain the individual or the other, the guys that he handed the packet off to, conduct it further investigation. They had to do a Terry stop first. They couldn't arrest first. Right, they, I don't know why, what difference does that make? Well, because I think probable cause, they could claim they have probable cause. That just makes it harder for them, perhaps, in the court proceeding, in this proceeding. Right, and that's what I'm, that's what I'm asserting. That might be a, they've got a enhanced burden because they've taken it on. We say there's probable cause. We don't claim we're stopping. And that's what they did, quite boldly, Judge. Now, Jay said this was a full blown arrest. So if they had the Terry stop information, but not the probable cause information, you know, you could win. And that's what I'm shooting for, Your Honor. And I'll sit down and listen to court and add any questions that I'll let Mr. Persel think
. Thank you. Thank you very much. You had some time, say it. Mr. Persel? You're not gonna give up this yet, are you? I don't have any give up in me, Judge. Actually, I do, but I didn't bring it with me today. Good morning, Your Honor. My name is John Persel. I'm an assistant, I was attorney of Baltimore. I did. I was the prosecutor in this case, and of course, the counsel didn't have the benefit of being there. So was not present for the pretrial hearing, extensive pretrial hearing, which all the officers who were involved in this stop in this arrest were present and testified before Judge Blake. Judge Blake's findings, and I must say, I didn't really believe that probable causes, that this first issue would be the issue we'd be discussing here today, but I'm happy to do that. What do you think the issue would go on? I thought, you know, on the, based on the state of things in the fourth circuit right now under 404, a lot, at least as I see it, I thought it would be a discussion about McBride and application to hear. Well, he has a 404 B issue, and it makes brief. And I don't think we're going to hold him to waive in it because he didn't get around to it. I don't think I did. We ask him a lot of questions. But the findings of Judge Blake in relation to the observations, which are very carefully set out in the government's brief, and more importantly, set out by Judge Blake and her findings are in the joint appendix at page 252. Judge Wyndon responds to one of your questions as to the access to the house. The officers were told by the informant who was himself involved in drugs that this house on the 2200 block of Gilleford Avenue was being used, and he said that the rear of the house was being accessed. He identified that specific house. He did, and there's a site to that in the joint appendix, and I can cite to, actually, I can cite to the pictures of the house that are part of the joint appendix. Does the informant information have anything to do with this? Of this defendant? No, with this appeal on a probable cause issue. It does, yes, Your Honor, because it was part of, it was the reason why the officers acted as they did to arrest the defendant, because they went there. The informant information sounds more like Terry's op stuff. Well, they were where they were, and they saw a felony being committed, they say, and they undertook to arrest somebody. Is it the same? I mean, that's what the judge found. I couldn't see where the informant information had much to do with it. The only reason I don't disconnect it, and there is no disconnect in it, because it is the informant information that took them to where they were, and it was the basis of time which they concluded, oh, the informant is correct. There are drug deals being, what they thought be drug deals, going on out of the back of this house. As to the house and other access though, to judge, if I may get to that, there are photographs in the joint appendix at pages 25 and 37. The front of the house was inaccessible, it was completely boarded up. This was an abandoned city owned home. The back of the home was boarded up, but somebody had hinged the plywood and put a lock on it. The defendant, of course, as the court's already noted, had the key to that. But based on what the informant said, the officers knew when they got to the scene that they were looking for activity. The defendant that owned his house is... No, in fact, he actually judge Blake found that he had no standing in the house, and this is, of course, with a bulk
. And this is the only drugs that were found in the case. The drugs that were transacted in the alley, those people who bought those from the defendant, they went on their way, they were not stopped. The three-man team. Basically, he had just taken over, at least from your perspective, taken over the house and locked it up. Yes. He used it as a stash house, it looked like. The drugs you're prosecuting for. The drugs that were found in the house were all cocaine, your honor, all vials of cocaine. He did prosecuting for the drug transaction industry. We don't know. There was nothing recovered there. So that one they saw was not what they showed. No. There was no evidence recovered. Charging with what, possessing with a tent to distribute what they found in the house. After they took the key from him after... The house. The court did drugs, but... He didn't argue standing, and the court found, of course, he had no standing. So those drugs, the fence argument... The fence argument, but he had the key. He did, yes. And that did not give him standing, however, because it was a city-owned home. In the end, it's for us taking those keys, they would have to have had a full-blown arrest. Your honor, we're not contesting that there wasn't, that the keys were not subject to search of this to arrest. That they were recovered, pursuant to that sort of an arrest, yes. We're not arguing, he did not argue, then or now, the reasonable suspicion. Because it was a more intrusive search, than I think Terry would permit. At least as articulated to us by the officers, and there was no sense in arguing something that was a failing argument. And in fact, even though the thinking of the police officers not determined things, they believed at that point they had probable cause. This was the man they had just seen do what this format was saying, they were doing selling drugs out of the house, the back of the house. The person who was actually seen doing the exchange and the money. What happened there? This was all seen because..
. The officers, there was a three-man team in a house, directly across in the rear of what turned out to be 204 Gilford, which was a house they were watching. Judge Blake found they had an unobstructed clear view, aid by binoculars, officer maize did. That is the officer who made the office. Only what I've had a binoculars. Only one did, but Judge Blake actually noted, because of the testimony of one of the other officers, that he was actually, even though he couldn't identify that offended by any way, but clothing, that he saw these transactions. There were no other people in the alley during this interval, which was about an alley. I get the people who were actually doing the transaction. No, and I'm getting to why they didn't do that, Your Honor. It's just strange to me, you see someone doing something, it seems like you've go to the people who are doing it, and not someone you think you saw down the road. They did go to the people who knew that they saw doing it, and that was the defendant. They had two different groups of people. They did go after them. I've gone to the actually did the transfer that they saw, the street level. The officers testimony was at them. Couldn't get to them or what, or did they made a judgment? It just didn't want to be bothered if they felt like that was the big guy going there. Yeah, they were, when they were watching from this hundred yards away, they saw the defendant, went to the house very quickly for about 30 seconds, the judge found long enough to retrieve something. Come back out and then go away. Then he came back again with another person, left that person standing in the alley. This is the defendant now. Went into the house, use the key, open the lock, went in, the drugs were found in the reports. The drugs were found. But the defendant did the transaction in the alley. The defendant did the transaction in the alley. When into the house? He delivered the substance to whatever it was, left town. When he was never apprehended. So the police had a choice, and the choice was this. I want to make sure I'm clear on that. May I? Can I find it? When the defendant came out of the house, he came with the other person, the other person was already out there. The other person walked with him to the edge of the sort of rear alley. They saw something between the defendant and this other person. They did, they did after the defendant went into the home. He left the man standing in the alley, walked the 15 feet to the door, used his key, went in. The drugs were, as the way we're found, right next to the door. So he grabbed, what he grabbed, came out, gave it to the person in the alley. They together walked a little bit away and met two other people who they stayed for the time. They know that he gave them drugs at that point? Well, the judge credited their experience, the details of what they exchanged. I'm saying, they weren't in the best neighborhoods. And people who live in the bad neighborhoods, you're not going to get the benefit of that. That happens. Well, I can live with that. But what I want to know is, when he gave this package to this individual, all they knew is they gave him a package
. Yes. But what really triggered this, as I understood it, was when this individual, this package didn't see someone else, he points over, someone else comes over, and they do an exchange and there's some money or something. Between this other individual and the person with the exchange. Yes. And what's confusing to me at that point is, you see the actual transaction of looks like there's money, which probably gives you a stronger belief this is actually drugs now. People don't just give a package for money for something and coming out of the house. Or why they couldn't get to them or... As I've been trying to clarify it is that... I don't know if that needs clarification. Either they couldn't get to them or they made a choice. Well, I mean, two seconds, and I'll explain exactly what they did. I'm like telling you why they did it, but this is what they said about why they did it. There are a hundred yards away. They're in the third floor of an abandoned building. They watch this transaction. They see the defendant give to another person, the defendant signals to those persons to come and get the drugs. Then the defendant goes, he walks up the street and goes away. Those individuals walk up the street and go out of sight. He goes out of sight. And so do the individuals. They're all out of sight. Now the police go from the third floor, get into their car, drive over, and the first person they see on the corner of one block east is the defendant. The person they had recognized who went to the house and made the transaction. Did they... Did they... The two individuals that were involved in the actual... So-called transaction, they go in the same direction as the defendant, or they went somewhere else? Well, they went to the same... They went back to the front of the 2200 block of.
.. of Guilford, but they were not seen again. And the officers were asked if they ever saw them again. They did not see them. They could have gone anywhere once they get out of the front of the block. I guess one I'm asking is... Officers at that point, if there's some basis for arrest, it's got to have occurred by then. And what you have is a defendant that comes out of house of hands of a package to someone, right? Obsensibly waves to someone, but then the actual people involved in the transaction are there. And they come down and they make a decision to go after the person they can't see down the road. I couldn't see anything. They're wondering what happened to the other two people... They're only... They see reasonable that you go after the people you just saw... Right. ...do this transaction. They did. But they didn't see that person... When they went out in the street, the person they saw... And the person they wanted was the person who had used the key to get into the house, to bring out the drugs and give them to the people nearby. I think it did happen. That's... I think it did happen. That's.
.. It's never been... It said anything else that we never got them. They never saw them again. And the officers actually were asked about that at length on cross examination at trial because it was part of the schools of the 404 at trial, but at the motions. And they said, listen. No, we have him at the door. That could give you the... Well, I guess the... When you saw the problem, because... When you're looking here... Because what you've got is you've got a defendant that comes out... When you've got a person who comes out dressed up in clothes... Who looks... I don't know if he looks... Officer May said, I saw him... I saw him, that's the person. He was very carefully cross and directed on that. And he said, I didn't just direct... I didn't just arrest him because it was clothing, for instance. I arrested him because I had just seen him. I've been watching him all this period. That was the man I had no question about it. And Judge Blake, as she should have, she credited that. But the reason they went after him is, first of all, they saw him first. And he was the person who had access to the house who did the deal. But that's also the person they said they wanted. They were not interested. And nobody's interested in buying from customers or getting from customers. Unless they can lead you to the dealer. They didn't need to be led to the dealer because they had the dealer. They just saw him access to Stash House, which the CIA, of course, I'd said, was exactly what was being done. They arrested the drug dealer. And they said that. We don't go after addicts unless we have to work our way up. We had the mean... We had now the guy who would work our way up too. It was really serious about the... The help that these binoculars gave. You know, you're on our heard your questions. And I just... I just... I don't know what to leave it for the jury to figure that out. Well, this was more of the motions hearing that in terms of its importance to the issue of probable cause. But neither place did we get into that. Did you introduce it in the jury? I mean... We did, but certainly... It's convinced the jury
. I didn't just arrest him because it was clothing, for instance. I arrested him because I had just seen him. I've been watching him all this period. That was the man I had no question about it. And Judge Blake, as she should have, she credited that. But the reason they went after him is, first of all, they saw him first. And he was the person who had access to the house who did the deal. But that's also the person they said they wanted. They were not interested. And nobody's interested in buying from customers or getting from customers. Unless they can lead you to the dealer. They didn't need to be led to the dealer because they had the dealer. They just saw him access to Stash House, which the CIA, of course, I'd said, was exactly what was being done. They arrested the drug dealer. And they said that. We don't go after addicts unless we have to work our way up. We had the mean... We had now the guy who would work our way up too. It was really serious about the... The help that these binoculars gave. You know, you're on our heard your questions. And I just... I just... I don't know what to leave it for the jury to figure that out. Well, this was more of the motions hearing that in terms of its importance to the issue of probable cause. But neither place did we get into that. Did you introduce it in the jury? I mean... We did, but certainly... It's convinced the jury. This is the right fella. I think the key helped a lot in that respect. But you had to... But okay. So it didn't be a difference what the binoculars did. Well, certainly no. It did because that led to him being the person they stopped. And as we... It was either they were just coincidentally insanely crazy that they just happened to pick out the guy they identified in. He just happens to have a key on... Would you like to join the blank then? No, but in the... And more to the point, Your Honor, in the motions hearing, we did not get into the specifics of how much that aids your vision. I think that... I assumed everybody sort of had a sense of that. And the witness himself testified... Oh, it's nice. The witness himself testified too with great clarity as to... And explained very carefully to the judge what he was able to see in terms of why he picked this person. And was very clear it wasn't just because he had on, you know, the whatever it was clothing they described. He said, that was the person. I picked him out. I knew that was... They were really going a lot on their experience and what they kind of perceived the neighborhood like. Well, Your Honor, this is a fourth circuit case cited in the government's brief called Johnson. And, you know, it applies, I think, here in a sort of a common sense thing
. This is the right fella. I think the key helped a lot in that respect. But you had to... But okay. So it didn't be a difference what the binoculars did. Well, certainly no. It did because that led to him being the person they stopped. And as we... It was either they were just coincidentally insanely crazy that they just happened to pick out the guy they identified in. He just happens to have a key on... Would you like to join the blank then? No, but in the... And more to the point, Your Honor, in the motions hearing, we did not get into the specifics of how much that aids your vision. I think that... I assumed everybody sort of had a sense of that. And the witness himself testified... Oh, it's nice. The witness himself testified too with great clarity as to... And explained very carefully to the judge what he was able to see in terms of why he picked this person. And was very clear it wasn't just because he had on, you know, the whatever it was clothing they described. He said, that was the person. I picked him out. I knew that was... They were really going a lot on their experience and what they kind of perceived the neighborhood like. Well, Your Honor, this is a fourth circuit case cited in the government's brief called Johnson. And, you know, it applies, I think, here in a sort of a common sense thing. But for police officers like this, this was a sergeant who had been doing this for years, only narcotics. They've worked in Baltimore, everything's narcotics. You know, what kind of interest was stuff like that when they're going to always do it on those television shows? That's television, Judge. But, you know, to take a picture is not a hard thing to do. You know, I've had that conversation and we all have... How much take your iPhone to take a picture just by this good as anything? They didn't take any pictures? Well, do anything to show the individual who's walking to this house, they got binoculars. Yeah. Why not just put a camera on your hand and is it coming... That click a picture of them as it's going there and you can pretty much identify it. Yeah, I am. We have to deal with the absence of evidence like that in every trial where the problem is... The problem we're doing that is it sort of creates a zone in which there are people who live and they have sort of less of rights than others. You all right? And you got in the area where you own drugs and all that kind of thing is going on. And I'm not sure it would fly in a different neighborhood. And it's bothersome not so much in terms of, you know, from the defendant's perspective, but just in terms of what the implications of it. To go in a neighborhood, just take your binoculars, get up on a floor when you really don't have access to get down to the person very quickly. There's no one down on the ground there to make the move. To actually have a drug transaction in sight, but you can't get to it. So then you get in your car and you go after the guy you think that you saw based upon his clothes. And you're in a neighborhood where people kind of probably look a lot like them, but based on the experiences stuff, they arrest him. Your Honor, I think Judge Blake with her many, many years of experience. And that's what we have hearing. That's why we bring the... I mean, the problem I got is we're dealing too much with years of experience and we're dealing too much with inferences and not enough with facts. And that's kind of what a fourth amendment has been divided up when we get to drug cases. It's somewhat bothersome. Because we got a community when you get experience and inferences, people living in areas and there are people who are not criminals who live in that area. And yet if somebody had walked to that door, innocently, if grandma had walked up to that door, and let's say grandma just said, well, I just had to keep some furniture here or keep a small package in here, taking a package and walked out with it. She'd been on the surveillance because I mean, you'd think that she had drugs. Someone says, there's drugs. You don't know what's in that package. I know that's far fixed. But nonetheless, the import of experience and what it looked like is very strong in this case
. But for police officers like this, this was a sergeant who had been doing this for years, only narcotics. They've worked in Baltimore, everything's narcotics. You know, what kind of interest was stuff like that when they're going to always do it on those television shows? That's television, Judge. But, you know, to take a picture is not a hard thing to do. You know, I've had that conversation and we all have... How much take your iPhone to take a picture just by this good as anything? They didn't take any pictures? Well, do anything to show the individual who's walking to this house, they got binoculars. Yeah. Why not just put a camera on your hand and is it coming... That click a picture of them as it's going there and you can pretty much identify it. Yeah, I am. We have to deal with the absence of evidence like that in every trial where the problem is... The problem we're doing that is it sort of creates a zone in which there are people who live and they have sort of less of rights than others. You all right? And you got in the area where you own drugs and all that kind of thing is going on. And I'm not sure it would fly in a different neighborhood. And it's bothersome not so much in terms of, you know, from the defendant's perspective, but just in terms of what the implications of it. To go in a neighborhood, just take your binoculars, get up on a floor when you really don't have access to get down to the person very quickly. There's no one down on the ground there to make the move. To actually have a drug transaction in sight, but you can't get to it. So then you get in your car and you go after the guy you think that you saw based upon his clothes. And you're in a neighborhood where people kind of probably look a lot like them, but based on the experiences stuff, they arrest him. Your Honor, I think Judge Blake with her many, many years of experience. And that's what we have hearing. That's why we bring the... I mean, the problem I got is we're dealing too much with years of experience and we're dealing too much with inferences and not enough with facts. And that's kind of what a fourth amendment has been divided up when we get to drug cases. It's somewhat bothersome. Because we got a community when you get experience and inferences, people living in areas and there are people who are not criminals who live in that area. And yet if somebody had walked to that door, innocently, if grandma had walked up to that door, and let's say grandma just said, well, I just had to keep some furniture here or keep a small package in here, taking a package and walked out with it. She'd been on the surveillance because I mean, you'd think that she had drugs. Someone says, there's drugs. You don't know what's in that package. I know that's far fixed. But nonetheless, the import of experience and what it looked like is very strong in this case. Which if you ask me, I agree with you totally. It looks, sure, experience feels that way. But shouldn't the fourth amendment require a little bit more for probable cause as opposed to reasonable suspicion? Well, they had the information going into it. And I don't think it's very nice. I mean, had they just waited a little bit more work here. It looks like it just took a little bit more. And it's right there in their hands. But why do that? I got my experience. I know what this is. I'm going to just do it. That's dangerous, isn't it? Well, it can be. And that's why it went through the careful litigation that it did go through. These are all questions that were posed. And Judge Blake didn't testify or she didn't find this based on her experience with previous things. She credited what was seen. And as I said, in the Johnson case, the fourth circuit case, I mean, there are certain transactions that, as they're done, fervent gestures, cash changing hands, packages going back and forth, in a way that is inconsistent with common everyday life. At least in the minds of the police and the judge who's listening to those police and making credibility findings about them. But from today, you don't know if it was in fact drugs that was exchanged or not? Well, there was nothing else. The first cash exchange that looked like it was. Judge, this was a good stop to people that had it. You didn't even make that. It just looks like that's what it was. Well. And it looked like he went in the house to drugs. And it looked like he had a package. And he looked guilty. And as a result of that, you get probable cause. Every what you got, I mean, it seems like there's another little step here that's missing. Something that's missing in this scenario that seems so easy. Go down, get these guys that just did that transaction. Look what they got right there. Most of them are probably going to turn evidence right then against this other guy, maybe. But if they don't... Well, they didn't see them as I pointed out. They did not see those people again. The buyers were gone, probably using the drugs and some other abandoned house. I don't know, but they were not on the street. So that's an impossibility. You've got to believe he's probably going to come back to this house
. Which if you ask me, I agree with you totally. It looks, sure, experience feels that way. But shouldn't the fourth amendment require a little bit more for probable cause as opposed to reasonable suspicion? Well, they had the information going into it. And I don't think it's very nice. I mean, had they just waited a little bit more work here. It looks like it just took a little bit more. And it's right there in their hands. But why do that? I got my experience. I know what this is. I'm going to just do it. That's dangerous, isn't it? Well, it can be. And that's why it went through the careful litigation that it did go through. These are all questions that were posed. And Judge Blake didn't testify or she didn't find this based on her experience with previous things. She credited what was seen. And as I said, in the Johnson case, the fourth circuit case, I mean, there are certain transactions that, as they're done, fervent gestures, cash changing hands, packages going back and forth, in a way that is inconsistent with common everyday life. At least in the minds of the police and the judge who's listening to those police and making credibility findings about them. But from today, you don't know if it was in fact drugs that was exchanged or not? Well, there was nothing else. The first cash exchange that looked like it was. Judge, this was a good stop to people that had it. You didn't even make that. It just looks like that's what it was. Well. And it looked like he went in the house to drugs. And it looked like he had a package. And he looked guilty. And as a result of that, you get probable cause. Every what you got, I mean, it seems like there's another little step here that's missing. Something that's missing in this scenario that seems so easy. Go down, get these guys that just did that transaction. Look what they got right there. Most of them are probably going to turn evidence right then against this other guy, maybe. But if they don't... Well, they didn't see them as I pointed out. They did not see those people again. The buyers were gone, probably using the drugs and some other abandoned house. I don't know, but they were not on the street. So that's an impossibility. You've got to believe he's probably going to come back to this house. He padlocked it. He's going to come back again. And maybe you have a... Now you really got something. Why don't you get a little closer this time? Take a few pictures and you really got something locked. And just watch it. Don't come up to the fourth circuit with it. That's not the set of facts that Judge Blake considered when she found that. She was limited just like we are to what we are. And that is experience and what it looked like. She was limited in the same way. She can make all the facts she wanted to make, but those facts can be based on no more than what it looks like and experience. Your honor, the standard for probable cause is this... Was it reasonable for those police officers to reach that conclusion? And she concluded, yes. Yes. It was. It was a suspicion the standard would be. Was it... Well, it's certainly a higher standard. What would reasonable... Reason would believe that there's a crime going on. But this is... It's not like it meets reasonable suspicion to me. What am I talking about reasonable suspicion? That's going to be... That's what I'm getting at. Right. And I think..
. He padlocked it. He's going to come back again. And maybe you have a... Now you really got something. Why don't you get a little closer this time? Take a few pictures and you really got something locked. And just watch it. Don't come up to the fourth circuit with it. That's not the set of facts that Judge Blake considered when she found that. She was limited just like we are to what we are. And that is experience and what it looked like. She was limited in the same way. She can make all the facts she wanted to make, but those facts can be based on no more than what it looks like and experience. Your honor, the standard for probable cause is this... Was it reasonable for those police officers to reach that conclusion? And she concluded, yes. Yes. It was. It was a suspicion the standard would be. Was it... Well, it's certainly a higher standard. What would reasonable... Reason would believe that there's a crime going on. But this is... It's not like it meets reasonable suspicion to me. What am I talking about reasonable suspicion? That's going to be... That's what I'm getting at. Right. And I think... She made... But you still have an articulated difference. What's the difference between reasonable suspicion and probable cause? Well, that's a tough one. Because... No, it should be easy because reasonable suspicion is... They're both measured under the totality of circumstances. It's not necessarily different things, but probable cause clearly is something much more elevated. Judges determined... The judges' determination is whether these officers, when they observed, what they observed, under the totality of the circumstances, could reasonably conclude that this individual... What is the difference between reasonable suspicion and probable... The difference is what you can do and how far you can go with that belief, with the reasonable suspicion... Well, I'm not asking the result of them asking... What... How do you differentiate between the two? And one has occurred as opposed to the other. Reasonable suspicion is reasonable suspicion, as opposed to a reasonable belief that these individuals have committed or are committing a crime. And that is the specific finding that the judge found that these individuals, that these officers had reached. It was reasonable for them to reach that based on her very detailed analysis of the facts. We don't have the other facts that the court would propose that the police officers have done, perhaps that would have been better if we did. But under the circumstances, based on what they knew from the CI, what they've been told, what was going on there, where was happening, what was happening, what they saw themselves... Some of the distance on two different occasions, the access of this person to a house for 30 seconds at a time to do nothing but a very brief transaction in the house to come out to.
. She made... But you still have an articulated difference. What's the difference between reasonable suspicion and probable cause? Well, that's a tough one. Because... No, it should be easy because reasonable suspicion is... They're both measured under the totality of circumstances. It's not necessarily different things, but probable cause clearly is something much more elevated. Judges determined... The judges' determination is whether these officers, when they observed, what they observed, under the totality of the circumstances, could reasonably conclude that this individual... What is the difference between reasonable suspicion and probable... The difference is what you can do and how far you can go with that belief, with the reasonable suspicion... Well, I'm not asking the result of them asking... What... How do you differentiate between the two? And one has occurred as opposed to the other. Reasonable suspicion is reasonable suspicion, as opposed to a reasonable belief that these individuals have committed or are committing a crime. And that is the specific finding that the judge found that these individuals, that these officers had reached. It was reasonable for them to reach that based on her very detailed analysis of the facts. We don't have the other facts that the court would propose that the police officers have done, perhaps that would have been better if we did. But under the circumstances, based on what they knew from the CI, what they've been told, what was going on there, where was happening, what was happening, what they saw themselves... Some of the distance on two different occasions, the access of this person to a house for 30 seconds at a time to do nothing but a very brief transaction in the house to come out to... To even leave somebody outside that house was significant because it means the judge, the defendant would not allow that person into this more protected place. Come out, do what was a money transaction with the officer opined, looked like what he called a pack, which is a pack of drugs, which turns out, of course, it doesn't matter what turns out to be. It turns out to be exactly what was in the house with packs of vials of cocaine. First, were you red light came on there? It did five minutes ago, yes, you're on it. Thank you very much. Everybody gets risk on the last day of the day. Appreciate it. Thank you, Ron. Mr. Mitchell? Thank you, Ron. The brief clear of a couple of things. Judge Therese... Therese was not, Mr. Persler, I think, mis-spoke. The confidential informant did not identify a particular house. He identified a particular block. I think this is a joint appendix, one of the six. In response to your honours inquiry about the binoculars, Mr. Persler's right, I don't think they got into the mechanics or the exact qualities that the... The binoculars had. But they were insufficient according to the officer that had the binoculars. They were insufficient for him. Yes, but between reasonable suspicion and probable co... Reasonable suspicion is what would lead a reasonable person to believe that there was some type of criminal activity of foot. Sounds like this case. You're out of point without people going in and out of the backs of Padlock, the band of houses. A probable co... A probable co... A probable co.
.. To even leave somebody outside that house was significant because it means the judge, the defendant would not allow that person into this more protected place. Come out, do what was a money transaction with the officer opined, looked like what he called a pack, which is a pack of drugs, which turns out, of course, it doesn't matter what turns out to be. It turns out to be exactly what was in the house with packs of vials of cocaine. First, were you red light came on there? It did five minutes ago, yes, you're on it. Thank you very much. Everybody gets risk on the last day of the day. Appreciate it. Thank you, Ron. Mr. Mitchell? Thank you, Ron. The brief clear of a couple of things. Judge Therese... Therese was not, Mr. Persler, I think, mis-spoke. The confidential informant did not identify a particular house. He identified a particular block. I think this is a joint appendix, one of the six. In response to your honours inquiry about the binoculars, Mr. Persler's right, I don't think they got into the mechanics or the exact qualities that the... The binoculars had. But they were insufficient according to the officer that had the binoculars. They were insufficient for him. Yes, but between reasonable suspicion and probable co... Reasonable suspicion is what would lead a reasonable person to believe that there was some type of criminal activity of foot. Sounds like this case. You're out of point without people going in and out of the backs of Padlock, the band of houses. A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probodyt of booze and sheep grow. In the brings and of 20 cancries. They had to find a pool of tea. Perfect bars and acceptance. I do eat a bear. the other gentleman, Mr. Persu points out and he's right, those three fellows were never seen from, never seen again. They had the contraband on them. They could await it, it's a stash house, they could await it so it's gone back. It's not too much demand, the fourth, the fourth amendment, it didn't dead, it's not too much demand that they, they just investigate a little further to get the problem, to go from the reasons suspicion that we all probably agree they had, to the actual probable cause necessary to curtail this person's freedom to agree to associated with formal arrest
.. A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probable co... A probodyt of booze and sheep grow. In the brings and of 20 cancries. They had to find a pool of tea. Perfect bars and acceptance. I do eat a bear. the other gentleman, Mr. Persu points out and he's right, those three fellows were never seen from, never seen again. They had the contraband on them. They could await it, it's a stash house, they could await it so it's gone back. It's not too much demand, the fourth, the fourth amendment, it didn't dead, it's not too much demand that they, they just investigate a little further to get the problem, to go from the reasons suspicion that we all probably agree they had, to the actual probable cause necessary to curtail this person's freedom to agree to associated with formal arrest. Four circuits recognize. He was going to, I'm just thinking this thing through it, it just seems like there's so many ways this could have been fixed. I'm wondering he's going into a house that's owned by this city. So clearly he has no reason to be in this house. They see him going into the house. At that point when he comes out of the house, could they have said, wait a minute, what are you doing in this room? Oh, sure. And I, what they had, have had a basis for an arrest then? I actually middle of the night last night woke up, went down to my computer at my house and got on Westlaw because I was thinking what if this is a trespassing? It isn't. It's a crime in Maryland to trespass on private property, posted. This is in the, the court can look at, I didn't put it in the joint at Penns because I didn't think it'd dealt recently. But there's just, there's like three or four trespassing statutes in Maryland. They require private, they require being staying on property after being told to leave. So this isn't, this isn't qualified to crime a trespassing either. So the answer to your question is yeah, they could have gone down and said, you're not supposed to be here. Get out or they could have gone down and said, what are you doing here? Or they could have watched more. But it's, it's that difference in that absence of additional fact that I'd like the court to really pay attention to that there's a difference in a distinction and it's clear between Terry and probable cause. Terry was a case where very metaphorical of this, fellow standing out in front of a jewelry store at weird hours with boulders in their jacket and this looks suspicious. The, the challenge and Perry wasn't, no one, the government didn't assert, state didn't assert that they had the right to arrest those gentlemen at that point. The state asserted the Supreme Court agreed that, that the officers had a right to detain them for further investigation. The officers here didn't detain anyone for further investigation. The four circuit as recognized as the Supreme Court recognized and I don't think anyone in this courtroom would disagree that you don't have a diminished expectation of privacy because you live in a bad neighborhood. I do think it's clearly, oh, and this is the other thing I want to point out. No one on this record either at the suppression hearing or at trial use that old buzz phrase, high drug area. It was reported by the officers being a dangerous area. But this was not reported as being a high drug trapping area. And then finally, Mr. Persel brought up Johnson. That was a case where the officers, the guy was in a high drug area. He was doing a lot of hand-to-hand transactions. Guys coming by and he would quote-unquote in the case, he referred to his hit them off, give them packets. The court said, look, we don't know what, what else the guy could have been doing. It's not like he was hanging out and talking with these gentlemen. They were coming up and getting something from him, give them money and walk away. That was a, that was a case in which there was clear articulable suspicion for a Terry detention. They then detained him. And when they were detaining him, he took heroin gel caps, identifiable narcotics out of his pocket and ditched them on the ground. So the defendant abandoned his right in that property, abandoned any expectation of privacy that he had in it. So he was left with only challenging the initial detention, which the court reasonably so found to be supported by articulable suspicion. So that's all I got. Just the distinction between reasonable suspicion and probable cause your honor. Thank you very much Mr. Mitchell
. We appreciate your half. We know your court of point counsel and you've done a good job and you'd be commended. Thank you very much. We're going to come down and recounsel and then go to the final case