Legal Case Summary

Good year on how are you and you probably obviously do get notice what we did grant you Mission that was asked for for your argument. Yes, your honor. Thank you Good afternoon. I don't think this yet Before you're done you may not be thinking All right Good afternoon, may it please the court my name is Michael Raphael. I represent the appellant mr. Samuel We're very peddia. I would like to reserve three minutes of my time for revolve of the three three yes, your honor Though agent Palsic was lawfully present when he observed mr. Rivera the request that was made by the agent Pacerica is them was posted and it's kind of modeled the district court didn't pass would very well, but he as I understand it He asked your client for clothes and Identification in the same sentence Your honor I understand from the record that he asked he says to the court I asked for clothing and where identification could be found and then in the next sentence specifies that I asked him where clothing could be located That's a page 79 to join a panic Well, there's a make a difference from the clothing thing that's not an issue It's not like it does an idea she was starting right here the clothing is the issue. It's the identification. Yes, your honor and then not relying upon Any implicit consent here

. Yes, your honor So you're arguing and I'm not sure it's super clear to me, but you're arguing in terms of the interrogation one interrogation two That part of interrogation one was that initial statement. Are you arguing that where are your clothes and identification? That's the interrogation no your honor the interrogation is after the identification is Not been interrogation asked the worst evidence that I can prove your identification That arguably could be an interrogation not making that argument no you're wrong I think that he under the day's deposit under left which was entitled to ask of Mr. Rivera-Padea where his clothes were the most specific statement on the record of page 79 Is the asked for the clothes were and then page 116 acknowledged that he does not recall whether he made any request of Mr. Rivera-Padea to produce identification That's different. That's why I was asking the question We have to go back and look at the Desmond If he asked where are your clothes and you have any identification as opposed to saying Where are your clothes and then later saying and you have an identification maybe two different things if it's part of the entire Transactionary saying to have any clothes and you have any evidence of your who you are And he's asking specifically for the defendant to show him where the officer can seize Evidence to conflict them with the crime he's being arrested for But you're not that maybe a problem, but you're not relying upon that as part of the interrogation I just asked for that now you're on Let me get to what is the interrogation one? When does it start the interrogation begins after agent policy has located the wallet search the wallet by opening it Absin any warrant or exception to the warrant requirement pulled out the Pennsylvania concealed carry permit or the Pennsylvania firearms permit Gone to the stairs and shadowed down to Mr. Rivera-Padea. Where is the gun? Where is the gun in the bedroom? That was the interrogation following the onlawful search without a warning to which Mr. Rivera-Padea responded that it was in the closet and Then agent Possek had him brought upstairs to stand three or four feet outside the door Point out where the key was to the fire safe box that the gun was located in at the top shelf of the closet Open the box and found the gun. So you're saying that he had a right to open the doorfold? No, you're on it

. Okay. No, you're on the end. Thank you No Moly opens the billful and it's really in mobile. I mean it's not a situation where the suppression testimony was really Carefully purse through I could tell if he opened the billful and just saw the driver's license and the gun permit Or looks that he pulled out from the billfold some cards in which whether driver's license and gun permit He said he's the top he saw the top quarters. I think I can forget. Yes, you're on that's for gun as soon as he opened the gun As soon as he opened the wallet then it's unclear maybe whether he pulled it out already saw a part of it When he just left the wallet full open or opened it. Yes, Ron. He opened the wallet He saw a problem. He sees again permit no problem I'm sorry, Ron

. And up to that up to that point is no problem. She's again permit no problem Then the problem there is a problem before that when agent Possek sees the wallet and plain view It has from its exterior no evidentiary value. Okay. Okay. Thank you. Here's a wallet that you can see now Yes, Ron. It's my wallet shouldn't have opened it. You're saying what he does this now you see my a our peak card. Yes, Ron So you know I'm an old person and I Want to do that by It may have been possible

. It's make that conclusion without opening the wallet. Okay, let me Zero in here on what troubles me I I agree with you. I'm speaking only for myself that There had to be justification for opening the wallet. Yes, Ron And they suggested two things they said that We were interested in opening the wallet because we frequently people While it's revealed their Original source Country yes, Ron and from my standpoint of you That's not probable cause there's no probable cause to believe that a wallet. You don't know anything else about it Is going to reveal nation of birth But the other thing they say is We had an arrest warrant and we had a lot of Evidence that we had put before a judge and said this is probable cause to believe that a crime has been committed Yes, Ron and when We got there we needed Additional or strike needed he he identified himself Yes, or verbally yes, Ron, but they said we looked in the wallet because we were entitled to confirm that This person was the person that had committed The crime that the court found it probable cause to believe had occurred Your honor, isn't that isn't the purpose of opening it? Isn't that probable cause to isn't there probable cause to believe that Finding identification of somebody under those circumstances is is evidence of a crime Your honor there may well be probable cause enough to support a seizure of the wallet and we would not argue here that the seizure of the wallet was unlawful But even that fullest measure of probable cause that items of evidentiary value may be contained if any private container as the Supreme Court said in Horton against California put note 11 Cannot Allow a search of a private space There must be a warrant or a warrant requirement Or a pardoning exception to the warrant requirement here. There was none Agent Balsek's plan view Okay, let me get it because that what's it's not you are going to open the wallet Is this a warrant for a crime? This is a warrant for an immigration violation your honor. It's not a crime being I know the assumption of That's a question it was that a warrant is for a crime but in the immigration context being out of status is not a crime That's a good point But you may get a warrant. I believe Literally to see somebody who's out of sat you know, you know, I mean by yes around it was out of status for some reason In other words, it's not entitled to be here for the purpose of Removal from the country you can see them you can see yes, right? I mean due to the border all the time. Yes, that's true

. So I thought I may be wrong But I thought that's a good point I thought and it wasn't clear to me in the record whether it was like an illegal reentry having previously been deported That would be a warrant Right, but that's not a record and it pays the record it just says for immigration violations Well, that's a hot issue by the way in immigration Yes, you're like I think you can get warrants that are not for a crime That's true, you're on and this was an exaggeration And and and at page 62 of the record you'll see your honor that at the immigration questionnaire It's specified as not applicable to question concerning when Mr. Rivera but he had previously entered the United States So this was not an illegal reentry. This was an initial entry without authorization Now the warrant that the ICE agents had when they came to arrest Mr. Rivera Had in it a fairly detailed description of his age height weight in general appearance When they entered his home he confirmed that he was in fact that Samuel Rivera but the and at page 116 of the record Agent Palsik acknowledges that yes, we knew we had the right guy He says at page 94 of the record We were getting the identification to grease the wheels to make it easier in the immigration proceedings Now while the identification may have evidentiary value in the immigration proceedings It was until the wallet was opened until that private container was searched Invisible to Agent Palsik the wallet itself disclosed nothing of its contents. It was a closed private container entitled protection from the fourth amendment Agent Palsik may well have had a Bacause to believe if you have a wallet there It's a reasonable conclusion to believe that inside that wallet you'll find things like drivers licenses and things like that I don't know the original conclusion on origin Absolutely, but that is in material to the question of whether he could have opened the wallet at that point and searched it That may have provided the fullest measure of probable cause for him to seize it to isolate it to preserve it for later Examination for evidence but not absent of warrant or exception to the warrant requirement and There was none such exception here Authorization for him to open the wallet look inside of it and find incriminating evidence no matter how much he believed that incriminating owners was contained within it Excuse When you say no matter how much you believe and the plane viewed no and I didn't realize that he come to this I've done it myself. I think in past cases, but and it's it's it's a there's a general view I think her pun intended that plane view stands for much more than it does and it's clear after Looking at some of these cases particularly one that wasn't really cited the Higgs versus Arizona that plane view It's not an excuse for anything other than the warrant requirement plane view doesn't give you probable cost if you have plane view Correct, you're right then if you have probable cost to seize it then if it's in plane view that leads I'll leave this the This the warrant requirement doesn't make any sense in that context But if you don't have probable cost to seize it the fact that it's in plane view Doesn't somehow jump over the fourth amendment to correct around although Higgs against Arizona And pardon me Arizona against Higgs the reason we don't rely on it is because it's a unique situation in Arizona against Higgs The officer was investigating and apartment where he was lawful The cost sees the government to begin with well, that's correct around them But the fourth amendment protects both possessory interests and privacy interests a seizure affects Possessory interests and a search affects the privacy interest in Arizona against Higgs those two interests were co extensive because if the officer had probable Cause to lift up the turntable to take it with him He had probable cost to turn it over and see the serial area He had authorization off to see the serial number And as we just this clear said that was a distinction that he mentioned I think the better case for us is Walter against United States in which case FBI agents came into possession They seized lawfully Boxes containing what they believe to be pornographic video tapes They believe these boxes to contain illicit pornographic video tapes because the boxes said they contained illicit pornographic video tapes Nonetheless when the agents open those boxes and exhibited the movies absent of warrant and without any exception of the warrant requirement They violated the owners of the owner of those boxes Fourth amendment privacy interest apart entirely from his Possessory interests protected by the fourth amendment They had the container in their possession There was no exigency its contents were not in plain view until exhibited There was no need to protect the officer's safety They have a right to seize the wallet at all I get that is only about that too Where he asked where's your identification? We are calling but at some point you've seized the wallet the officer goes upstairs and he sees a wallet A closed wallet doesn't know what's in it, but he has a wallet Did he even have did he have a right forget opening the wallet that he had a right to seize the wallet? Your honor before the district court I would argue that no he did not because the government failed to reduce evidence establishing probable cause that the wallet contained evidence I'd also point out that the wallet itself was clearly not considered evidence as the agents left it behind They did not arguing that on appeal no your honor I think that we don't need to reach that question because you're conceding that for purposes of this appeal Wouldn't have been this easier they could have seized it, but then they would have had to get a warrant At that point to actually open it and search its content for purposes of this appeal your honor I would assume for argument that Their seizure of the wallet was valid that there was probable cause to seize it Yeah, but I think because that really It obviously helps you get where you want to go where you wouldn't have made the concession But you just got me off the train when you started that the imagine there because I became confused when you said that because they had the right to seize it Seize it a whole other Panaply of complications take him like inventory searches inevitable discovery on all that kind of stuff your honor neither inventory searches more inevitable Discover would apply in this case because they didn't build the record for it. Well inevitable discovery Certainly they did not build a record for this they made no attempt to introduce evidence supporting the fact that the discovery of the The gun permit which started this whole chain of events was inevitable They even tried to introduce evidence concerning inevitable discovery of the gun And omitted any evidence concerning the inevitable discovery of the permit On inventory searches your honor. This is separate apart entirely from inventory searches inventory search policies apply when evidence comes into the government's possession of the artificial the agent testified of this This is such as it is your honor. This would be my expertise the government introduced me

. I don't question it But I really don't need it right now. Yes, Ron Because we have there was there was no evidence I'm going to go to the second statement. What is in your the the district courts error in finding sufficient intervening circumstances the big the chain of causation and allow everything to be kind of purged if you will Because of the Miranda warnings that were eventually given five hours later Well, you're under the first of all the because of the District Court's incorrect decision that the gun permit the search for the gun permit was lawful Which the court sort of glosses over it doesn't really examine whether this was a search which it says that the while it was examined It goes first to the unworn confession as the location of the gun and Says that the following confession was not tainted by the unworn confession because then there was the gun and because There is no need to suppress physical evidence recovered following an unworn confession that the later confession to the possession of the gun and everything that followed from it was fine If you go back to the previous step and correctly find that the search of the while it was on lawful Then there is nothing whatsoever to break the chain of causation between that illegal search and Everything discovered from that point on the permit the gun the initial unworn confession and the subsequent confession in writing If there was easier was legal If you're conceding they pick it up and they go to police station with it Now they're not going to hand it to him if he says I'd like to take it in the cell They'd say no, I would take anything in the cell certainly not without searching it first But soon they don't he doesn't ask for it. They don't have to inventory No, you're on or they do not this is evidence if you're saying it was legal for them if you're conceding It was legal to them to pick it up Not to look like you lost me with that conceding You pick it up you take it and you put it in a sack your market Maybe you have marked out of an envelope that you know one wallet and now go down a police station Don't they have don't the police have an interest at that point in knowing what's there so he can't say later I had $300 in that wallet when you gave it back to me when I was released or before I was deported It was only $200 in there or no dollars in there and you've stolen $300 for me or I had a receipt of some kind Which I could have gotten or a lottery I understand where your honor is coming from but I think that inventory searches are the same problem judge Mickey has it once in the real world that once you say they could take it and they could bring it down to the police station It just something happens. I just can't see them Your honor in every single case where there is a lawful seizure and an unlawful search like Walter against United States like Coolidge against New Hampshire like Horton against California like Berringer The police have physical custody of the Container that they believe contains evidence, but they do not inventory it because it's not taken so they didn't believe in that evidence They just they took it because the guys gonna be deported. They didn't want to leave his wallet behind No, you're a Walter against United States is with the contrary Walter against United States had the Portographic video boxes that said this is pornographic video They knew it was evidence. They knew it contained items of evidentiary value. It was in their possession It did not they don't know what's in this wallet when it's closed. They really don't that's true your honor But they don't know there's a gun permit in there

. That's not even pretty true your honor But agent Palsik said that he seized it specifically because he believed it would likely contain it Identification which in any immigration proceeding is of evidentiary value the container itself however was of no evidentiary value They were permitted to seize it to take possession of it arguably although I'm not conceding that saying that only for the purposes of this appeal When they then searched for the police station they weren't the least bit of interest in evidence They had on that is fingerprints. They had a immigration file on that a lot of information on this guy These are around they did so that's assumed they weren't the least bit interested down the police station in This is evidence. They just had a wallet Okay, which you say they legally see no your honor under those circumstances They wouldn't have not been able to legally seize the wallet under any circumstance if they believed that it contained nothing of evidentiary value They took an item of personal property Without any justification for invading Mr. Rivera-Padeeus possessory interests protected by the board of men They're motive in taking the wallet So you're saying you'll concede it that if they seize it was legal but only if They believe there was evidence in there. I would consider to have it so we could have it when he gets deported Then you say it's different You're on you have to look at their motive now. I've seen more reasonable to me than seizing the evidence. No, you're on our I it's different than their motive They took that wallet because they had Arguably probable cause to believe it contained evidence They seized it as a container that likely contained evidence just like the FBI did with the video boxes and Walter Again, not exactly to conclude that that was their reason for taking it. They took it after they opened it and saw the Saw the gun permit at Tation before the right to your mom. They picked it up moment

. They picked it up What is here in the record that says they believe there was something that they needed evidentially in that for the simple immigration Thing where they have a clearly a good file on them And he got a warrant which is unusual enough since it's about ten million Illegal immigrants in the country for them to have a warrant and they got a pretty good file on this guy at Patient 94 of the record your honor agent Palsik says that he looked in the wallet because he believed it contained identification Which can be of assistance in an immigration proceeding and in the district courts holding it says that his looking for identification in an immigration proceeding is a valid law enforcement purpose now that may give him As the Supreme Court says in Horton against California the fullest measure of probable cause to invade his Possessory interest in the wallet but because the wallet is a closed container and Also has around it a shroud of privacy that cannot be invaded absent of warrant or exception to the warrant requirement When he searched it when he opened it He invaded without probable cause. I'm sorry without a warrant without any exception to the warrant requirement of private space because he believed they contained evidence In doing that he violated the fourth amendment I'm Looking at help me with this if Because remember where we were before In the concession. I think is what's confusing me if I'm in Kremlin from wrong here You're conceiting that at the time you picked it up He thought that he might find the identification and then which he could use in the Removal proceeding which that would be evidence And at the time he picked up he had a reason he had every reason believe that so that would be reasonable That doesn't mean that he had a ability to open it without a warrant But isn't that exactly what plain view gives you gives you a way around the warrant requirement It gives you a way around the warrant requirement to seize items of evidentiary value when their evidentiary value is plain Why wouldn't that be plain if they can provide identification the first place you look for identification will be is wallet? That's true, but the wallet itself has no evidentiary value It is a container that likely contains items of evidentiary value Just as was the case in Walter against United States Council They seized the wallet and there's no gun permit and it's nothing just identification Goes to a removal proceeding and they introduce evidence from the wallet. They say here's this proves that he's here here's You know they actually use something in the removal proceeding they use whatever he has as drivers Why is there something they find in there they use? Would there be a violation of the fourth amendment today? Some are other could he defend and say you can't remove me because you you've used evidence That you're talking violation of the fourth amendment. This is a non-criminal proceeding now They just you're just removing it because he does not status and they use something in that wallet To bolster their case your honor not being familiar with proceedings in immigration cases and I apologize I'm not sure what rules of evidence would apply in that case, but they didn't come in a criminal I at least arguably I can't tell the records I'm clear they didn't come here in a criminal with a criminal warrant They didn't come here looking for evidence of gun possession They came here as far as I can tell to remove somebody who's out of status They had no there's nothing on the record that would suggest that he knew the officer knew the agents knew that there was an Inclusion or any underlying Civil proceeding. That's a civil proceeding. Yes, Ron. Okay One of which there were broad Powers to the government free runner. They They they open the wallet

. They don't find a gun permit or anything like that They just find identification stuff, but they use it they find stuff in there that's helpful to them Maybe they find proof of how we entered illegally maybe they find you know They find stuff that they then use it at the immigration. Is there a violation? See that's what's confusing me the interplay between a non-criminal proceeding Which these agents thought they were doing We suddenly gets converted into a criminal proceeding When well when they find the gun really at that point they later on find out that his application was illegal Lied on it, but at that point they don't even know that your honor Immigration proceeding or no when they entered his home can't don't think they've had it out of that He just put it in there and you're taking out of it and it being in there is is what's Confusing us because even then is a very Gratly complicates the issue and it's very interesting. I don't have the answer You're on right. I think that even allowing for an immigration proceeding the immigration agents who entered his home needed Justifications under the fourth amendment. They had that the true your honor. They did enter his home To arrest him to conduct a protective suite To search his grab area To take items of obvious evidentiary value in plain view. That's it well, but to look inside a closed Because the boxes in Walter He's talking about to me they're different and trying to explain I'm trying to intellectualize a widely different other than just a visceral reaction that the box that says pornographic Intrusion on the outside of it is different and because it depends on the guy's a good fall You're on I I don't think it is different I To be honest right the the Supreme Court in Ross against United States said that protections to containers all Close containers extend equally to all closed containers no matter their type or their outward worthiness In Smith against United States the closed container was a crumpled over paper bag And important against United States the Supreme Court says even if the items is a container It seizure does not compromise the interest in preserving the privacy of its contents because it may only be opened pursuing to either a search warrant and After some citations or one of the well-delineated exceptions to the warrant requirement But you get to get back to playing view You've used a sometime for a bottle of it. It's here from Mr. Warry You Yeah, for me please the court my name is beneath Gary and I represent the United States government Your Honor, I know you were asking Mr

. Raphael that the questions about whether or not this is a truly civil proceeding or a criminal proceeding And while this issue was not raised by either party in the briefing or below I believe there are this is There are some very criminal aspects to this Clearly are now yet yes, Your Honor But even at the time I mean there is there is an arrest warrant that's issued by an ICE It's another ICE officer actually is not a judge issues the administrative war in this case, but they do come in They place the the defendant in in handcuffs. They do are doing protective sweeps And when they bring the the defendant back to ICE administrative offices He's placed in a holding cell with with the other folks that were picked up on The right to open the bill for you're on right We believe that yeah, the officer was acting reasonably and this was a reasonable search because the probable cause there was probably a cause here As the agent testified the evidence wasn't in plain view the evidence that is Driving this right now the gun from it. That was clearly not in plain view and in order to get into the plain view doctrine The you've got to got you get you make it fast probably because if the if the gun from it had been Well, I'm not sure the dump made my leg out there As let's assume I'm not sure this is valid, but that's assume the gun permit was sitting on the table And it unless assume further there was probable cause to believe that gun permit was evidence of a crime I'm not sure it would have been frankly unless they thought it was a convicted felon and that's not in this case Why would they have probable cause to seize the war? The wall at your honor the wall at your not the one the wallet your honor The agent testified that in his experience While it's often carried from proof of identification This sometimes in his experience who would find purchase it contain Evidence of the drug dealing drug smuggling the fact that he bugs themselves. Yeah, in fact to me that hurts you if the agent says While it's frequently contained stuff that I can use as evidence I Know I just I don't know if that's going to be the pilot would say I conceded that's the right word that you had enough To interfere with this possessory interest in the wood you can seize the wallet you agreed with that and It seemed to implicitly agree that you could then apply for a search warrant at some point On the ground up you'd be looking the basis for your search would be in a civil case So I that confused me a little bit you you would say that I can find Proof of identification that I could use in the removal of proceeding which I You know a search warrant in the civil cases a little unusual concept to me. I'm not saying it isn't done It's just that I'm not familiar with it But remember at that point you would have no reason is a spec certainly they're your big gun They legally gotten possession of a gun That he had lied when he filled out an application Or again all that criminal activity you had no reason to suspect any of that or evidence of any of that Or you had reason to find is that you might find something in that wallet that would help you in the removal proceeding That's correct on that so he can see you can take the wallet for that reason. I don't know if he should concede that or not But he does he can see that you could take that would interfere with your possessory interest and Then you could take it down and then apply Again, I don't help you apply to a judge for a warrant To find evidence to support a civil proceeding Yeah, because the problem here is again, even if there's a gun for me it's the same problem if the gun for me to sitting on the table In plain view Undisquirt I don't know why the agent would have probable cause to believe that gun permit was evidence of a crime Well, you're on or I believe the agent would have probably caused in that scenario because this is an illegal alien And so one of the crime that identified to that yes, sure on and and one of the crimes of defendant played guilty to With preserves right to appeal on the fourth amendment issues Was that he was a nearly the alien in possession of fire Right to possess it sure on under entirely teen section 922 g So that that and itself would give the agents and I would be much more clear if I case that we have before today But I do believe that just based on the agent's experience and while the government's not distinguished Walter V. West that yes, right. I think that There's certain practicalities That really causes differences I believe between Walter and here and not not and one of those is the FBI and Walter It was already in possession of the films. They already had possession of those films back the FBI offices. They weren't actually In a defendant's home with two other adult males in the home at the same time in the upstairs bedroom when they discovered I think that the practicalities are very different between the two cases But there's Kevin said that you're on there's no one at arguing there any ex-concerned strangers or public safety Except that hurt you since me Walter's a much more clear case in contemporary. It's It seems me Walter would be a much clearer case where you would win if if Walter wasn't Apprope because they interviewed with the privacy interest How does the search here not interfere with the privacy interests? All right, the government believes just that because the wallet is distinctive in that and while we're not advocating for a rule Special wallet rule in any way. Well, you are but how do we write depending without getting this special while it's real? Well, you're on Walter. How do we do that? I'm sorry You're on in Walter given Walter given what given the cracks that we have to write in How could we come out of this case with anything but a Wallet exception to the Fourth Amendment? That's not what you're arguing is this I said it the agent said it you look. I know what's gonna be in a wallet. Yes, you're on an agent did say that and but I think given the Totality is for conferences the agent's experience. He knows what's in the wallet Experience they have to have to know it's an wallet. Oh, you need this driver's license They have drivers license. You know you know what mom and dad carry in their billfolds and purses If you're saying that his experience showed him that there'd be identification in a wallet that he could use to tie The defendant to the status he has been arrested for be a letter from home He could have a letter from his mother in his native country could be in a wallet picture We have a hard time writing an opinion that doesn't create an exception for us very special set of circumstances for a wallet While it's which may be the most pretzels should be perhaps the most private kinds of property for both possessory and Privacy interest will become the least because of the Curricure of it and what the officer could reasonably expect to find in it Therefore, this is a lighter burden on interfering with either the possessory or the privacy interest I think yes, Your Honor I think we're distinguished as this case from and while we're not advocating for one of those and while we're not advocating for a general wallet exception here You lose that's where that would be one your honor The other would be that this is a wallet that was seized and searched in an immigration case that the appellant Sited the bearing irrigation second circuit, which was a case where the agents opened a wallet when they were arresting Defended on drug charges and they used the contents of that wallet for large Denomination bills to Complete evidence in their case in the drug case that that's the situation where when you're arresting someone in drug charges and you see a wallet There's really agent doesn't have problem cost believe there's gonna be large denomination bills or small denomination bills Asian would have Probably cost of leave there's identification of the wallet, but that was it that was a drug case not an immigration case that we have in this case Um, but I think that goes to what mr

. They weren't actually In a defendant's home with two other adult males in the home at the same time in the upstairs bedroom when they discovered I think that the practicalities are very different between the two cases But there's Kevin said that you're on there's no one at arguing there any ex-concerned strangers or public safety Except that hurt you since me Walter's a much more clear case in contemporary. It's It seems me Walter would be a much clearer case where you would win if if Walter wasn't Apprope because they interviewed with the privacy interest How does the search here not interfere with the privacy interests? All right, the government believes just that because the wallet is distinctive in that and while we're not advocating for a rule Special wallet rule in any way. Well, you are but how do we write depending without getting this special while it's real? Well, you're on Walter. How do we do that? I'm sorry You're on in Walter given Walter given what given the cracks that we have to write in How could we come out of this case with anything but a Wallet exception to the Fourth Amendment? That's not what you're arguing is this I said it the agent said it you look. I know what's gonna be in a wallet. Yes, you're on an agent did say that and but I think given the Totality is for conferences the agent's experience. He knows what's in the wallet Experience they have to have to know it's an wallet. Oh, you need this driver's license They have drivers license. You know you know what mom and dad carry in their billfolds and purses If you're saying that his experience showed him that there'd be identification in a wallet that he could use to tie The defendant to the status he has been arrested for be a letter from home He could have a letter from his mother in his native country could be in a wallet picture We have a hard time writing an opinion that doesn't create an exception for us very special set of circumstances for a wallet While it's which may be the most pretzels should be perhaps the most private kinds of property for both possessory and Privacy interest will become the least because of the Curricure of it and what the officer could reasonably expect to find in it Therefore, this is a lighter burden on interfering with either the possessory or the privacy interest I think yes, Your Honor I think we're distinguished as this case from and while we're not advocating for one of those and while we're not advocating for a general wallet exception here You lose that's where that would be one your honor The other would be that this is a wallet that was seized and searched in an immigration case that the appellant Sited the bearing irrigation second circuit, which was a case where the agents opened a wallet when they were arresting Defended on drug charges and they used the contents of that wallet for large Denomination bills to Complete evidence in their case in the drug case that that's the situation where when you're arresting someone in drug charges and you see a wallet There's really agent doesn't have problem cost believe there's gonna be large denomination bills or small denomination bills Asian would have Probably cost of leave there's identification of the wallet, but that was it that was a drug case not an immigration case that we have in this case Um, but I think that goes to what mr. Raphael is arguing about the distinction between the privacy and the Possessory interest I would agree on it What's in there then would be in plan to do if you can immediately recognize this impriminating evidence your a value Yes, right. There's definitely two I agree mr. Raphael's correct is definitely two distinct issues. They're between the seizure and the search. I think that's correct Um, if I could I'd also like to address the second issue, which is the The written confessions the ice offices which is part of the restaurant asking about the words the gun Now why wouldn't that? Why isn't that the kind of thing which should have been proceeded by Miranda and if it is not and I guess you're conceiting that it was That it should be proceeded by Miranda aren't you? I wish the gun. Yes, you're on the the government in district court proceedings that did not Move for the admission of that evidence that okay, and that was going to agree with that directly connected to the second statement You've got the same agent involved in the interrogation um Why wouldn't that be sufficient as to give you the freedom poison street What's the break in the chain of circumstance? He's thinking himself with Jesus already got the gun I told him where the gun was it got the gun Uh, I better hope for the best item get here and cooperate and and give him a statement That's what he's asking me for the statement is is about the gun and would there have been a statement had there not been an illegal seizure of the gun Yes, Your Honor, and I think looking at that the factors in the brown versus Illinois the temporal proximity In the intervening circumstances that best from the government's viewpoint is a wash and and I realized that's the government's viewpoint It was a five-hour period between the the confed the written confession at ice offices and what transpired In the house but having said that though that the intervening circumstances were we're not Anything though a way in favor of admission the defendant was in a holding cell He was being processed in finger print. It was the same agent But however, I think that the third and most important factor in the brown is what really if they were submission in this case is the fact that The agents there was no flagrant official misconduct whatsoever the agents are acting reasonably Uh, both in opening the wall and also in the unwarranted Colleague they had the defendant regarding the firearm now. There's two Lot of the acting reasonably in opening the wallet. What makes that reason? Your Honor that is your Our position your interview would be that the agents were had blood leave that problem cause and they had problem cause and finding Evidence But believe in immigration immigration crime runner as far as identification lines immigration crime what immigration crime? What yes, Ronner this this would be administrative proceeding Big difference what probable cause did they have You know I go at two steps

. Raphael is arguing about the distinction between the privacy and the Possessory interest I would agree on it What's in there then would be in plan to do if you can immediately recognize this impriminating evidence your a value Yes, right. There's definitely two I agree mr. Raphael's correct is definitely two distinct issues. They're between the seizure and the search. I think that's correct Um, if I could I'd also like to address the second issue, which is the The written confessions the ice offices which is part of the restaurant asking about the words the gun Now why wouldn't that? Why isn't that the kind of thing which should have been proceeded by Miranda and if it is not and I guess you're conceiting that it was That it should be proceeded by Miranda aren't you? I wish the gun. Yes, you're on the the government in district court proceedings that did not Move for the admission of that evidence that okay, and that was going to agree with that directly connected to the second statement You've got the same agent involved in the interrogation um Why wouldn't that be sufficient as to give you the freedom poison street What's the break in the chain of circumstance? He's thinking himself with Jesus already got the gun I told him where the gun was it got the gun Uh, I better hope for the best item get here and cooperate and and give him a statement That's what he's asking me for the statement is is about the gun and would there have been a statement had there not been an illegal seizure of the gun Yes, Your Honor, and I think looking at that the factors in the brown versus Illinois the temporal proximity In the intervening circumstances that best from the government's viewpoint is a wash and and I realized that's the government's viewpoint It was a five-hour period between the the confed the written confession at ice offices and what transpired In the house but having said that though that the intervening circumstances were we're not Anything though a way in favor of admission the defendant was in a holding cell He was being processed in finger print. It was the same agent But however, I think that the third and most important factor in the brown is what really if they were submission in this case is the fact that The agents there was no flagrant official misconduct whatsoever the agents are acting reasonably Uh, both in opening the wall and also in the unwarranted Colleague they had the defendant regarding the firearm now. There's two Lot of the acting reasonably in opening the wallet. What makes that reason? Your Honor that is your Our position your interview would be that the agents were had blood leave that problem cause and they had problem cause and finding Evidence But believe in immigration immigration crime runner as far as identification lines immigration crime what immigration crime? What yes, Ronner this this would be administrative proceeding Big difference what probable cause did they have You know I go at two steps. I don't see the probable cause Really in taking the season the wallet, but let's assume that's conceded They then take it down to the to the station with them The notion if they're going to get a search warrant to get identification for a proceeding with them more than enough evidence Already to throw them out of the country is is to mean you know only in lawsuit could you get that kind of allegation? I'd defy you to find probably find a case anywhere where they Would be one thousand people here and eat with the pure immigration case at the getting search warrants I don't even know if you could get a judge I don't know what a judge would say I want a search warrant to see if he has a driver's license Why are you doing that what we're going to throw them out of the country? Do you commit a crime? No, we don't know anything about any crime. We just know he's out of status We want to make sure he is who he is. We already got a warrant Did he tell you who he was and he told you who he was he hasn't denied who he is He hasn't said I'm not so and so you've got the wrong guy So the note mean in the typical case we find a suitcase in a trunk we find the point. Yeah, this is a box of porn If theory is you lose your possessory rights so they can seize it That and you're probable cause that there may be evidence is good enough for the seizure But then you go get a search warrant Because there's evidence of what you have basis for believing use evidence of a crime that scenario just doesn't seem to need a fit A In immigration case we really don't need anything in the wallet to To get rid of them. I mean to you know deport him remove him In the notion that you're good like the suitcase you're going to take the thing at a search warrant We're like car sometimes you can you can tow a car But you can't look into the trunk or look into the car and pretty get a warrant There's a whole line of cases Don't see that here It last he was being arrested for an immigration crime You know, but there's nothing in the record that indicates he was Other than out of status and meaning he had no right to be here in the country And they for whatever the reason they decided to go get him and they went and got him and So I just don't see it That I don't see where the evidence you know it true And if you really thought there was evidence there that somehow you're going to take the wallet and go get a search warrant No, that makes any sense. It just doesn't fit this case personally. I obviously can't speak to the I'm not sure what the concession about the seizure of the bill for that I find that seizure of the bill for trouble Well, you're on I think the seizure of the bill fill wouldn't be much different than the locker in Chadwick where I think that the Supreme Court ruled it But the government was certainly entitled to seize the foot locker and then go get a search warrant to open its content That was criminal case. Yes, you're on all those are criminal cases. Those are cases where you've got you suspect And they have us to make you a list you will rest somebody for a crime and you're looking for evidence Butres nobody have proof beyond a reasonable doubt

. I don't see the probable cause Really in taking the season the wallet, but let's assume that's conceded They then take it down to the to the station with them The notion if they're going to get a search warrant to get identification for a proceeding with them more than enough evidence Already to throw them out of the country is is to mean you know only in lawsuit could you get that kind of allegation? I'd defy you to find probably find a case anywhere where they Would be one thousand people here and eat with the pure immigration case at the getting search warrants I don't even know if you could get a judge I don't know what a judge would say I want a search warrant to see if he has a driver's license Why are you doing that what we're going to throw them out of the country? Do you commit a crime? No, we don't know anything about any crime. We just know he's out of status We want to make sure he is who he is. We already got a warrant Did he tell you who he was and he told you who he was he hasn't denied who he is He hasn't said I'm not so and so you've got the wrong guy So the note mean in the typical case we find a suitcase in a trunk we find the point. Yeah, this is a box of porn If theory is you lose your possessory rights so they can seize it That and you're probable cause that there may be evidence is good enough for the seizure But then you go get a search warrant Because there's evidence of what you have basis for believing use evidence of a crime that scenario just doesn't seem to need a fit A In immigration case we really don't need anything in the wallet to To get rid of them. I mean to you know deport him remove him In the notion that you're good like the suitcase you're going to take the thing at a search warrant We're like car sometimes you can you can tow a car But you can't look into the trunk or look into the car and pretty get a warrant There's a whole line of cases Don't see that here It last he was being arrested for an immigration crime You know, but there's nothing in the record that indicates he was Other than out of status and meaning he had no right to be here in the country And they for whatever the reason they decided to go get him and they went and got him and So I just don't see it That I don't see where the evidence you know it true And if you really thought there was evidence there that somehow you're going to take the wallet and go get a search warrant No, that makes any sense. It just doesn't fit this case personally. I obviously can't speak to the I'm not sure what the concession about the seizure of the bill for that I find that seizure of the bill for trouble Well, you're on I think the seizure of the bill fill wouldn't be much different than the locker in Chadwick where I think that the Supreme Court ruled it But the government was certainly entitled to seize the foot locker and then go get a search warrant to open its content That was criminal case. Yes, you're on all those are criminal cases. Those are cases where you've got you suspect And they have us to make you a list you will rest somebody for a crime and you're looking for evidence Butres nobody have proof beyond a reasonable doubt. Well, that's not the standard in a You know, I mean there's reasons why that you you go out and have a right to get a search warrant for evidence government has a very heavy burden of proof in a criminal case But in a in a deportation case and do one thing he says I'm not the guy. I'm not the guy. I'm a different pedigas Then then I can see the agent saying well show me some identification that proves you're not who you say you are Or you're not who we have a warrant for But that's not the case here. He's never denied. He is in fact, he opened the door when they said I'm here for so and so he came down an open door He didn't say I'm sorry go to another house. You got the wrong address You got the wrong guy Never any show in this case about who he was and then the guy thing and the five hours seems he cuts both ways because So you can clearly in the cases that have gotten into this you can clearly keep someone Under detention sufficiently alone The word under will wear down the independence of their ability to to judge and exercise If you will and make it more likely that once you give him a random warrant or warnings that they will confess So the fact that was five hours after the initial event I'm not sure if that helps you or I initially thought I heard you I can see your point So you might have something there, but at least in my mind that it becomes a watch because the whole thrust of the statement Is about that which they got illegally? I don't know where the intervening break of circumstances I don't know where the causation is is broken They got the gun illegally And then they exploit that the right split the legality That's all they asked about is this gun that they found because now we've gone from a removal proceeding to a criminal prosecution Yes, Ron right as I said I believe the temporal proximity and intervening circumstances are best a wash from the government standpoint but I We do believe that There was a lack of a flagrant and official misconduct when you take it look at the case law when you have Taylor versus Alabama and Brown versus Illinois I went into this spectrum where you have pure fishing expeditions arrest without Any any valid probable cause or warrant in this case there was a valid A rest warrant to defend it and at the other end of the spectrum you have the Rawlings case I think this case would fall somewhere in between and I think it would it would be much closer to the Rawlings and it would be to The flagrant official misconduct you have in Taylor and Brown is it cold or warrant actually with the sign? Yes, you're on it is and it's signed by whom you're on it. It's signed by another ice official It's not a judge. There has been a Judicial determination of probable cause. I think that's right you're on right

. Well, that's not the standard in a You know, I mean there's reasons why that you you go out and have a right to get a search warrant for evidence government has a very heavy burden of proof in a criminal case But in a in a deportation case and do one thing he says I'm not the guy. I'm not the guy. I'm a different pedigas Then then I can see the agent saying well show me some identification that proves you're not who you say you are Or you're not who we have a warrant for But that's not the case here. He's never denied. He is in fact, he opened the door when they said I'm here for so and so he came down an open door He didn't say I'm sorry go to another house. You got the wrong address You got the wrong guy Never any show in this case about who he was and then the guy thing and the five hours seems he cuts both ways because So you can clearly in the cases that have gotten into this you can clearly keep someone Under detention sufficiently alone The word under will wear down the independence of their ability to to judge and exercise If you will and make it more likely that once you give him a random warrant or warnings that they will confess So the fact that was five hours after the initial event I'm not sure if that helps you or I initially thought I heard you I can see your point So you might have something there, but at least in my mind that it becomes a watch because the whole thrust of the statement Is about that which they got illegally? I don't know where the intervening break of circumstances I don't know where the causation is is broken They got the gun illegally And then they exploit that the right split the legality That's all they asked about is this gun that they found because now we've gone from a removal proceeding to a criminal prosecution Yes, Ron right as I said I believe the temporal proximity and intervening circumstances are best a wash from the government standpoint but I We do believe that There was a lack of a flagrant and official misconduct when you take it look at the case law when you have Taylor versus Alabama and Brown versus Illinois I went into this spectrum where you have pure fishing expeditions arrest without Any any valid probable cause or warrant in this case there was a valid A rest warrant to defend it and at the other end of the spectrum you have the Rawlings case I think this case would fall somewhere in between and I think it would it would be much closer to the Rawlings and it would be to The flagrant official misconduct you have in Taylor and Brown is it cold or warrant actually with the sign? Yes, you're on it is and it's signed by whom you're on it. It's signed by another ice official It's not a judge. There has been a Judicial determination of probable cause. I think that's right you're on right. I think it's it's really an admit To minister but it's it's basically an administrative way in a civil matter of Bring this guy You know into the custody of ice so they can deport it. Yes, you're right. I think that is status I think that's right you're on right now. I believe in the record Yeah, well the person who actually signed the warrant was actually the Asian Posit Supervisor who was also in the house with him So you admit they're a big for the memory problems for that if we were in a criminal context, well Yeah, let's see because both it's more even pies here too when you have a warrant You worry had a judicial determination And this is somebody may have a probable cause with that person committed to crime You don't even have and that some of the exceptions like the search incident to a An arrest and you know come from the fact that there has been not judicial determination Here you just had the administrative agency charged with removing illegal aliens in effect creating a mechanism for seizing somebody and And removing them from the country. I think it's right your honor In that there was no there certainly was no judge that signed off on that that warrant having said that though that the agents were acting under a lawful duty Isis charged with one of those warrants. I'm not saying the agents did anything wrong. Yes, right in the sense of arresting him they had a right to arrest him It's It's just the seizing of the wallet converting this to a criminal Yes, why don't I think the problem? Yes, right. I do believe though. This is a far cry from the agreed to search intent as an atta In brown cases, but yeah, that's not the only attachment

. I think it's it's really an admit To minister but it's it's basically an administrative way in a civil matter of Bring this guy You know into the custody of ice so they can deport it. Yes, you're right. I think that is status I think that's right you're on right now. I believe in the record Yeah, well the person who actually signed the warrant was actually the Asian Posit Supervisor who was also in the house with him So you admit they're a big for the memory problems for that if we were in a criminal context, well Yeah, let's see because both it's more even pies here too when you have a warrant You worry had a judicial determination And this is somebody may have a probable cause with that person committed to crime You don't even have and that some of the exceptions like the search incident to a An arrest and you know come from the fact that there has been not judicial determination Here you just had the administrative agency charged with removing illegal aliens in effect creating a mechanism for seizing somebody and And removing them from the country. I think it's right your honor In that there was no there certainly was no judge that signed off on that that warrant having said that though that the agents were acting under a lawful duty Isis charged with one of those warrants. I'm not saying the agents did anything wrong. Yes, right in the sense of arresting him they had a right to arrest him It's It's just the seizing of the wallet converting this to a criminal Yes, why don't I think the problem? Yes, right. I do believe though. This is a far cry from the agreed to search intent as an atta In brown cases, but yeah, that's not the only attachment. It's Since neither was significant exploitation. It's not an egregious kind of Intentionally worrying down the well. I don't think they clearly didn't In fact it's a period here and maybe mr. off-fail would disagree but it looks like everybody was acting in good faith doing the job But it doesn't necessarily mean that what they did was legal or appropriate Yes, Ronald. Thank you very much mr. off-fail. I think they said deliver You know, I've been asking you name correctly. Is it rough out? Okay? Okay, one of the few ones I've got right. No one of the few people one of the few people that pronounces my name correctly on the first trial First of all, let me say that I and we are not conceding that the search here was supported by that the seizure here was supported by probable cause No, no, because mr

. It's Since neither was significant exploitation. It's not an egregious kind of Intentionally worrying down the well. I don't think they clearly didn't In fact it's a period here and maybe mr. off-fail would disagree but it looks like everybody was acting in good faith doing the job But it doesn't necessarily mean that what they did was legal or appropriate Yes, Ronald. Thank you very much mr. off-fail. I think they said deliver You know, I've been asking you name correctly. Is it rough out? Okay? Okay, one of the few ones I've got right. No one of the few people one of the few people that pronounces my name correctly on the first trial First of all, let me say that I and we are not conceding that the search here was supported by that the seizure here was supported by probable cause No, no, because mr. McClodton whispered in your ear No, you're honor. I wanted to make that I wanted to make that clear after the argument I had I had suggested that we That we assume that for purposes of argument because I thought it would simplify the argument. Oh, yeah, I was incorrect We are not conceding that the seizure here was not supported by probable cause because there was no purpose whatsoever in taking the identification At page 116 of the record agent paucic confirms We knew we had the right guy and at page 94 of the record he says I was getting the immigration Or it was getting the identification documents because it would reach the wheels because it would make the immigration proceedings go more smoothly Second, I would like to say that the government had used no evidences. Your honor pointed out supporting warrant requirement exceptions for an inventory search or inevitable discovery They didn't really raise it below and they don't raise it here and according land or United States and smoothly I believe that that forecloses the possibility of finding that either of those would justify the seizure or the search in this case Finally, regarding the fruit of the unlawful seizure the gun permit the gun the first unworn confession and the subsequent sign confession contrary to what the government says Nothing purges the primary tank of the illegal seizure. There is insufficient time Taylor against Alabama involved a six hour lapse of time This case involved a five hour lapse of time As in Taylor against Alabama, there are no intervening circumstances Mr. Rivera-Padea was in custody without access to a lawyer without speaking to any members family For that entire time his only exposure to people was in interrogation and for Britain procedures and finally You're not arguing with us. We all was born down No, you're not knowing about the gun. They've never even asked in the question correct The question never would have even been asked no matter how many hours because he was destined to stay in custody Forever at that point. Yes, you're on that's correct And totally left the country and and the and the brown Factor that is strongest for us is the official misconduct Because Agent Possick when he finished with the immigration questionnaire began immediately with the proceeds of the illegal search He asked Mr

. McClodton whispered in your ear No, you're honor. I wanted to make that I wanted to make that clear after the argument I had I had suggested that we That we assume that for purposes of argument because I thought it would simplify the argument. Oh, yeah, I was incorrect We are not conceding that the seizure here was not supported by probable cause because there was no purpose whatsoever in taking the identification At page 116 of the record agent paucic confirms We knew we had the right guy and at page 94 of the record he says I was getting the immigration Or it was getting the identification documents because it would reach the wheels because it would make the immigration proceedings go more smoothly Second, I would like to say that the government had used no evidences. Your honor pointed out supporting warrant requirement exceptions for an inventory search or inevitable discovery They didn't really raise it below and they don't raise it here and according land or United States and smoothly I believe that that forecloses the possibility of finding that either of those would justify the seizure or the search in this case Finally, regarding the fruit of the unlawful seizure the gun permit the gun the first unworn confession and the subsequent sign confession contrary to what the government says Nothing purges the primary tank of the illegal seizure. There is insufficient time Taylor against Alabama involved a six hour lapse of time This case involved a five hour lapse of time As in Taylor against Alabama, there are no intervening circumstances Mr. Rivera-Padea was in custody without access to a lawyer without speaking to any members family For that entire time his only exposure to people was in interrogation and for Britain procedures and finally You're not arguing with us. We all was born down No, you're not knowing about the gun. They've never even asked in the question correct The question never would have even been asked no matter how many hours because he was destined to stay in custody Forever at that point. Yes, you're on that's correct And totally left the country and and the and the brown Factor that is strongest for us is the official misconduct Because Agent Possick when he finished with the immigration questionnaire began immediately with the proceeds of the illegal search He asked Mr. Rivera-Padea the first question handwritten question on page 62 of the appendix asks him about the caliber action and manufacturer of the gun He started right there and let Mr. Rivera-Padea know through exploitation of the proceeds of the illegal search That he knew everything already that Mr. Rivera-Padea had to say He let Mr. Rivera-Padea know that that bell had been wrong and there would be no further harm In Mr. Rivera-Padea answering his questions Because of that direct exploitation of the illegal search and its proceeds All three brown against the Illinois factors way heavily in favor of Finding that the fruit of this unlawful search the gun gun permit first confession and second confession Must all be suppressed as fruit of the poisonous street Thank you, your honor Could you phrase the issue in this case one way of phrasing what the issue is is does the Arrest of an alien to an administratively issue of warrant Give the arresting officers the right to seek evidence at the place of arrest Which would use your expression or the agent grease the wheels Uh of his removal I think the issue could be for is that way or I think it could be framed that I just don't know of any of Maybe there's authority out there. It wasn't really brief that way But that's what it comes down to I mean the arresting the guy and somebody gets it You know if we had some identification in his wallet maybe Maybe it would make it a little easier to get rid of them Even though he hasn't challenged his identity or anything like that That amount the probable cause to steal in a sense the most personal thing that one has Which would be your wallet Your honor. I think it's 16-year-old boy. You certainly don't want somebody searching I was at this wearing 16-year-old boy actually I wouldn't have minded No, you were pure Uh I mean this the opposite got into some areas that have not been We could be helpful I think in 28 years from both if you if you want to submit an additional Authority this could end up being in an hugely important case because of the number of Immigration could probably a third of our case blood now or immigration cases not always overstaying Um, visas or illegal entry a lot of them are self-discipline Children of prosecutions that disqualify someone for um, continuous thing But this could become a very important case. I add to that when they seized that I can't remember it was Iowa They they went to a factory and they seized hundreds of people They've acted a couple of locations And what they did is when they ultimately got hold of their wallets they got social security cards They found out that most of them were phony That and then what they did is they bought criminal charges they they were arrested solely on status charges That they were illegal aliens not a non-criminal just those administrative But then they turned them to encourage them to leave voluntarily they They found Social security cards and many of them and They They indicted them for uh for the crime of getting a phony social security card Then offered them deals which basically were time served and you agree to get out Yeah, so that was a place on it

. Rivera-Padea the first question handwritten question on page 62 of the appendix asks him about the caliber action and manufacturer of the gun He started right there and let Mr. Rivera-Padea know through exploitation of the proceeds of the illegal search That he knew everything already that Mr. Rivera-Padea had to say He let Mr. Rivera-Padea know that that bell had been wrong and there would be no further harm In Mr. Rivera-Padea answering his questions Because of that direct exploitation of the illegal search and its proceeds All three brown against the Illinois factors way heavily in favor of Finding that the fruit of this unlawful search the gun gun permit first confession and second confession Must all be suppressed as fruit of the poisonous street Thank you, your honor Could you phrase the issue in this case one way of phrasing what the issue is is does the Arrest of an alien to an administratively issue of warrant Give the arresting officers the right to seek evidence at the place of arrest Which would use your expression or the agent grease the wheels Uh of his removal I think the issue could be for is that way or I think it could be framed that I just don't know of any of Maybe there's authority out there. It wasn't really brief that way But that's what it comes down to I mean the arresting the guy and somebody gets it You know if we had some identification in his wallet maybe Maybe it would make it a little easier to get rid of them Even though he hasn't challenged his identity or anything like that That amount the probable cause to steal in a sense the most personal thing that one has Which would be your wallet Your honor. I think it's 16-year-old boy. You certainly don't want somebody searching I was at this wearing 16-year-old boy actually I wouldn't have minded No, you were pure Uh I mean this the opposite got into some areas that have not been We could be helpful I think in 28 years from both if you if you want to submit an additional Authority this could end up being in an hugely important case because of the number of Immigration could probably a third of our case blood now or immigration cases not always overstaying Um, visas or illegal entry a lot of them are self-discipline Children of prosecutions that disqualify someone for um, continuous thing But this could become a very important case. I add to that when they seized that I can't remember it was Iowa They they went to a factory and they seized hundreds of people They've acted a couple of locations And what they did is when they ultimately got hold of their wallets they got social security cards They found out that most of them were phony That and then what they did is they bought criminal charges they they were arrested solely on status charges That they were illegal aliens not a non-criminal just those administrative But then they turned them to encourage them to leave voluntarily they They found Social security cards and many of them and They They indicted them for uh for the crime of getting a phony social security card Then offered them deals which basically were time served and you agree to get out Yeah, so that was a place on it. Who am any case? The public defenders accepted the deal very very reluctantly and they thought it was vastly unfair But they basically said what choice do we have either we put the sky and jail forever or for a long long time Fighting a case Or we said we'll let them get back With no more time in jail to their home countries And so there is potential for abuse really is Taking an administrative warrant warrant that's not a criminal warrant Using it as a basis for searching a wallet Because what at least I read is that the first thing a lot of illegal immigrants do and I've had tried cases on these If you get some form of phony identification A fun quickly off the phony social security card phony drivers license Uh So there's likely to be and they government has used that when they find that they then turn a administrative case into a criminal case not for a gun that was just a Pure happenstance, but there are other crimes that are very common that they might find if they So a wallet yes, or on that's related to immigration like a phony driver's license phony identification So secure phony social security so I think there are implications really are and I'm curious in an immigration context when somebody has a non judicial warrant Wokes in one house to arrest somebody What rights do they have and specifically do they have a right to seize or search? A wallet Because they are very very likely not very likely but at least there's a strong Problem possibility That they will find evidence of a crime not the crime of holding a gun that was just out of the blue here But evidence of phony identification yes wrong and they could turn what is administrative arrest as they have done in other places in the country Into a criminal matter and then use that as leverage To that really greases the The way out of the country so Yeah, and they're probably our cases because of the number administrative Policeman inspectors going in the fine evidence of criminal violation or that they'll probably have cases out there So personally I know them. I can't speak judges, but if a 28 J letter addressing really what Can an arresting I use the word arrest arresting officer ice officer dude With respect to an administer enough dressing. It's not just to you. Well, you're Blocking the You know just what can an ice officer do? It's a very important when he comes with just the administrative you call it a warrant, but to me it's just Kind of an administrative piece of paper that another ice agent assigned There's clearly another fourth amendment warrant. Yeah, it's not a real fourth amendment warrant due And when you talk about seizing a wallet You are talking about finding evidence of other crimes, but the crime This case has kind of been distorted because we're all talking about a benefit in our right way just the fordison on the cake, but they actually Could probably find in a significant percentage of cases another crime and that's phone relates to To phony social security phony drivers license And they're on a guy he had a permit and he kept that I don't know how the septal gun were But he had begun lacking secures in this stuff It's a really Different kind of case you don't often see gun permits In cases now I understand in his situation you couldn't have a gun so the front was his problem But he also was taking care to keep the gun apparently keep the gun secured and set the house Where it does not help him one iota in terms of his criminal case, but um It's a different it's made to say you argue once before and I know you're a legal writing specialist I'm not totally sure what that means when We gave the mission argue you argued very very well on the last case It's I cannot remember now, but I remember you made a impression on the on the panel. Thank you around Good job beers look the old beer said yeah But the old guys out the pasture I've been with public centers office for two years your own right came in September 2006 to the appeals unit and in july this year Moved to the trial unit okay, they do a very good job. Thank you run I had a callus that started just about the same time Thank you think about the calls of links

Good year on how are you and you probably obviously do get notice what we did grant you Mission that was asked for for your argument. Yes, your honor. Thank you Good afternoon. I don't think this yet Before you're done you may not be thinking All right Good afternoon, may it please the court my name is Michael Raphael. I represent the appellant mr. Samuel We're very peddia. I would like to reserve three minutes of my time for revolve of the three three yes, your honor Though agent Palsic was lawfully present when he observed mr. Rivera the request that was made by the agent Pacerica is them was posted and it's kind of modeled the district court didn't pass would very well, but he as I understand it He asked your client for clothes and Identification in the same sentence Your honor I understand from the record that he asked he says to the court I asked for clothing and where identification could be found and then in the next sentence specifies that I asked him where clothing could be located That's a page 79 to join a panic Well, there's a make a difference from the clothing thing that's not an issue It's not like it does an idea she was starting right here the clothing is the issue. It's the identification. Yes, your honor and then not relying upon Any implicit consent here. Yes, your honor So you're arguing and I'm not sure it's super clear to me, but you're arguing in terms of the interrogation one interrogation two That part of interrogation one was that initial statement. Are you arguing that where are your clothes and identification? That's the interrogation no your honor the interrogation is after the identification is Not been interrogation asked the worst evidence that I can prove your identification That arguably could be an interrogation not making that argument no you're wrong I think that he under the day's deposit under left which was entitled to ask of Mr. Rivera-Padea where his clothes were the most specific statement on the record of page 79 Is the asked for the clothes were and then page 116 acknowledged that he does not recall whether he made any request of Mr. Rivera-Padea to produce identification That's different. That's why I was asking the question We have to go back and look at the Desmond If he asked where are your clothes and you have any identification as opposed to saying Where are your clothes and then later saying and you have an identification maybe two different things if it's part of the entire Transactionary saying to have any clothes and you have any evidence of your who you are And he's asking specifically for the defendant to show him where the officer can seize Evidence to conflict them with the crime he's being arrested for But you're not that maybe a problem, but you're not relying upon that as part of the interrogation I just asked for that now you're on Let me get to what is the interrogation one? When does it start the interrogation begins after agent policy has located the wallet search the wallet by opening it Absin any warrant or exception to the warrant requirement pulled out the Pennsylvania concealed carry permit or the Pennsylvania firearms permit Gone to the stairs and shadowed down to Mr. Rivera-Padea. Where is the gun? Where is the gun in the bedroom? That was the interrogation following the onlawful search without a warning to which Mr. Rivera-Padea responded that it was in the closet and Then agent Possek had him brought upstairs to stand three or four feet outside the door Point out where the key was to the fire safe box that the gun was located in at the top shelf of the closet Open the box and found the gun. So you're saying that he had a right to open the doorfold? No, you're on it. Okay. No, you're on the end. Thank you No Moly opens the billful and it's really in mobile. I mean it's not a situation where the suppression testimony was really Carefully purse through I could tell if he opened the billful and just saw the driver's license and the gun permit Or looks that he pulled out from the billfold some cards in which whether driver's license and gun permit He said he's the top he saw the top quarters. I think I can forget. Yes, you're on that's for gun as soon as he opened the gun As soon as he opened the wallet then it's unclear maybe whether he pulled it out already saw a part of it When he just left the wallet full open or opened it. Yes, Ron. He opened the wallet He saw a problem. He sees again permit no problem I'm sorry, Ron. And up to that up to that point is no problem. She's again permit no problem Then the problem there is a problem before that when agent Possek sees the wallet and plain view It has from its exterior no evidentiary value. Okay. Okay. Thank you. Here's a wallet that you can see now Yes, Ron. It's my wallet shouldn't have opened it. You're saying what he does this now you see my a our peak card. Yes, Ron So you know I'm an old person and I Want to do that by It may have been possible. It's make that conclusion without opening the wallet. Okay, let me Zero in here on what troubles me I I agree with you. I'm speaking only for myself that There had to be justification for opening the wallet. Yes, Ron And they suggested two things they said that We were interested in opening the wallet because we frequently people While it's revealed their Original source Country yes, Ron and from my standpoint of you That's not probable cause there's no probable cause to believe that a wallet. You don't know anything else about it Is going to reveal nation of birth But the other thing they say is We had an arrest warrant and we had a lot of Evidence that we had put before a judge and said this is probable cause to believe that a crime has been committed Yes, Ron and when We got there we needed Additional or strike needed he he identified himself Yes, or verbally yes, Ron, but they said we looked in the wallet because we were entitled to confirm that This person was the person that had committed The crime that the court found it probable cause to believe had occurred Your honor, isn't that isn't the purpose of opening it? Isn't that probable cause to isn't there probable cause to believe that Finding identification of somebody under those circumstances is is evidence of a crime Your honor there may well be probable cause enough to support a seizure of the wallet and we would not argue here that the seizure of the wallet was unlawful But even that fullest measure of probable cause that items of evidentiary value may be contained if any private container as the Supreme Court said in Horton against California put note 11 Cannot Allow a search of a private space There must be a warrant or a warrant requirement Or a pardoning exception to the warrant requirement here. There was none Agent Balsek's plan view Okay, let me get it because that what's it's not you are going to open the wallet Is this a warrant for a crime? This is a warrant for an immigration violation your honor. It's not a crime being I know the assumption of That's a question it was that a warrant is for a crime but in the immigration context being out of status is not a crime That's a good point But you may get a warrant. I believe Literally to see somebody who's out of sat you know, you know, I mean by yes around it was out of status for some reason In other words, it's not entitled to be here for the purpose of Removal from the country you can see them you can see yes, right? I mean due to the border all the time. Yes, that's true. So I thought I may be wrong But I thought that's a good point I thought and it wasn't clear to me in the record whether it was like an illegal reentry having previously been deported That would be a warrant Right, but that's not a record and it pays the record it just says for immigration violations Well, that's a hot issue by the way in immigration Yes, you're like I think you can get warrants that are not for a crime That's true, you're on and this was an exaggeration And and and at page 62 of the record you'll see your honor that at the immigration questionnaire It's specified as not applicable to question concerning when Mr. Rivera but he had previously entered the United States So this was not an illegal reentry. This was an initial entry without authorization Now the warrant that the ICE agents had when they came to arrest Mr. Rivera Had in it a fairly detailed description of his age height weight in general appearance When they entered his home he confirmed that he was in fact that Samuel Rivera but the and at page 116 of the record Agent Palsik acknowledges that yes, we knew we had the right guy He says at page 94 of the record We were getting the identification to grease the wheels to make it easier in the immigration proceedings Now while the identification may have evidentiary value in the immigration proceedings It was until the wallet was opened until that private container was searched Invisible to Agent Palsik the wallet itself disclosed nothing of its contents. It was a closed private container entitled protection from the fourth amendment Agent Palsik may well have had a Bacause to believe if you have a wallet there It's a reasonable conclusion to believe that inside that wallet you'll find things like drivers licenses and things like that I don't know the original conclusion on origin Absolutely, but that is in material to the question of whether he could have opened the wallet at that point and searched it That may have provided the fullest measure of probable cause for him to seize it to isolate it to preserve it for later Examination for evidence but not absent of warrant or exception to the warrant requirement and There was none such exception here Authorization for him to open the wallet look inside of it and find incriminating evidence no matter how much he believed that incriminating owners was contained within it Excuse When you say no matter how much you believe and the plane viewed no and I didn't realize that he come to this I've done it myself. I think in past cases, but and it's it's it's a there's a general view I think her pun intended that plane view stands for much more than it does and it's clear after Looking at some of these cases particularly one that wasn't really cited the Higgs versus Arizona that plane view It's not an excuse for anything other than the warrant requirement plane view doesn't give you probable cost if you have plane view Correct, you're right then if you have probable cost to seize it then if it's in plane view that leads I'll leave this the This the warrant requirement doesn't make any sense in that context But if you don't have probable cost to seize it the fact that it's in plane view Doesn't somehow jump over the fourth amendment to correct around although Higgs against Arizona And pardon me Arizona against Higgs the reason we don't rely on it is because it's a unique situation in Arizona against Higgs The officer was investigating and apartment where he was lawful The cost sees the government to begin with well, that's correct around them But the fourth amendment protects both possessory interests and privacy interests a seizure affects Possessory interests and a search affects the privacy interest in Arizona against Higgs those two interests were co extensive because if the officer had probable Cause to lift up the turntable to take it with him He had probable cost to turn it over and see the serial area He had authorization off to see the serial number And as we just this clear said that was a distinction that he mentioned I think the better case for us is Walter against United States in which case FBI agents came into possession They seized lawfully Boxes containing what they believe to be pornographic video tapes They believe these boxes to contain illicit pornographic video tapes because the boxes said they contained illicit pornographic video tapes Nonetheless when the agents open those boxes and exhibited the movies absent of warrant and without any exception of the warrant requirement They violated the owners of the owner of those boxes Fourth amendment privacy interest apart entirely from his Possessory interests protected by the fourth amendment They had the container in their possession There was no exigency its contents were not in plain view until exhibited There was no need to protect the officer's safety They have a right to seize the wallet at all I get that is only about that too Where he asked where's your identification? We are calling but at some point you've seized the wallet the officer goes upstairs and he sees a wallet A closed wallet doesn't know what's in it, but he has a wallet Did he even have did he have a right forget opening the wallet that he had a right to seize the wallet? Your honor before the district court I would argue that no he did not because the government failed to reduce evidence establishing probable cause that the wallet contained evidence I'd also point out that the wallet itself was clearly not considered evidence as the agents left it behind They did not arguing that on appeal no your honor I think that we don't need to reach that question because you're conceding that for purposes of this appeal Wouldn't have been this easier they could have seized it, but then they would have had to get a warrant At that point to actually open it and search its content for purposes of this appeal your honor I would assume for argument that Their seizure of the wallet was valid that there was probable cause to seize it Yeah, but I think because that really It obviously helps you get where you want to go where you wouldn't have made the concession But you just got me off the train when you started that the imagine there because I became confused when you said that because they had the right to seize it Seize it a whole other Panaply of complications take him like inventory searches inevitable discovery on all that kind of stuff your honor neither inventory searches more inevitable Discover would apply in this case because they didn't build the record for it. Well inevitable discovery Certainly they did not build a record for this they made no attempt to introduce evidence supporting the fact that the discovery of the The gun permit which started this whole chain of events was inevitable They even tried to introduce evidence concerning inevitable discovery of the gun And omitted any evidence concerning the inevitable discovery of the permit On inventory searches your honor. This is separate apart entirely from inventory searches inventory search policies apply when evidence comes into the government's possession of the artificial the agent testified of this This is such as it is your honor. This would be my expertise the government introduced me. I don't question it But I really don't need it right now. Yes, Ron Because we have there was there was no evidence I'm going to go to the second statement. What is in your the the district courts error in finding sufficient intervening circumstances the big the chain of causation and allow everything to be kind of purged if you will Because of the Miranda warnings that were eventually given five hours later Well, you're under the first of all the because of the District Court's incorrect decision that the gun permit the search for the gun permit was lawful Which the court sort of glosses over it doesn't really examine whether this was a search which it says that the while it was examined It goes first to the unworn confession as the location of the gun and Says that the following confession was not tainted by the unworn confession because then there was the gun and because There is no need to suppress physical evidence recovered following an unworn confession that the later confession to the possession of the gun and everything that followed from it was fine If you go back to the previous step and correctly find that the search of the while it was on lawful Then there is nothing whatsoever to break the chain of causation between that illegal search and Everything discovered from that point on the permit the gun the initial unworn confession and the subsequent confession in writing If there was easier was legal If you're conceding they pick it up and they go to police station with it Now they're not going to hand it to him if he says I'd like to take it in the cell They'd say no, I would take anything in the cell certainly not without searching it first But soon they don't he doesn't ask for it. They don't have to inventory No, you're on or they do not this is evidence if you're saying it was legal for them if you're conceding It was legal to them to pick it up Not to look like you lost me with that conceding You pick it up you take it and you put it in a sack your market Maybe you have marked out of an envelope that you know one wallet and now go down a police station Don't they have don't the police have an interest at that point in knowing what's there so he can't say later I had $300 in that wallet when you gave it back to me when I was released or before I was deported It was only $200 in there or no dollars in there and you've stolen $300 for me or I had a receipt of some kind Which I could have gotten or a lottery I understand where your honor is coming from but I think that inventory searches are the same problem judge Mickey has it once in the real world that once you say they could take it and they could bring it down to the police station It just something happens. I just can't see them Your honor in every single case where there is a lawful seizure and an unlawful search like Walter against United States like Coolidge against New Hampshire like Horton against California like Berringer The police have physical custody of the Container that they believe contains evidence, but they do not inventory it because it's not taken so they didn't believe in that evidence They just they took it because the guys gonna be deported. They didn't want to leave his wallet behind No, you're a Walter against United States is with the contrary Walter against United States had the Portographic video boxes that said this is pornographic video They knew it was evidence. They knew it contained items of evidentiary value. It was in their possession It did not they don't know what's in this wallet when it's closed. They really don't that's true your honor But they don't know there's a gun permit in there. That's not even pretty true your honor But agent Palsik said that he seized it specifically because he believed it would likely contain it Identification which in any immigration proceeding is of evidentiary value the container itself however was of no evidentiary value They were permitted to seize it to take possession of it arguably although I'm not conceding that saying that only for the purposes of this appeal When they then searched for the police station they weren't the least bit of interest in evidence They had on that is fingerprints. They had a immigration file on that a lot of information on this guy These are around they did so that's assumed they weren't the least bit interested down the police station in This is evidence. They just had a wallet Okay, which you say they legally see no your honor under those circumstances They wouldn't have not been able to legally seize the wallet under any circumstance if they believed that it contained nothing of evidentiary value They took an item of personal property Without any justification for invading Mr. Rivera-Padeeus possessory interests protected by the board of men They're motive in taking the wallet So you're saying you'll concede it that if they seize it was legal but only if They believe there was evidence in there. I would consider to have it so we could have it when he gets deported Then you say it's different You're on you have to look at their motive now. I've seen more reasonable to me than seizing the evidence. No, you're on our I it's different than their motive They took that wallet because they had Arguably probable cause to believe it contained evidence They seized it as a container that likely contained evidence just like the FBI did with the video boxes and Walter Again, not exactly to conclude that that was their reason for taking it. They took it after they opened it and saw the Saw the gun permit at Tation before the right to your mom. They picked it up moment. They picked it up What is here in the record that says they believe there was something that they needed evidentially in that for the simple immigration Thing where they have a clearly a good file on them And he got a warrant which is unusual enough since it's about ten million Illegal immigrants in the country for them to have a warrant and they got a pretty good file on this guy at Patient 94 of the record your honor agent Palsik says that he looked in the wallet because he believed it contained identification Which can be of assistance in an immigration proceeding and in the district courts holding it says that his looking for identification in an immigration proceeding is a valid law enforcement purpose now that may give him As the Supreme Court says in Horton against California the fullest measure of probable cause to invade his Possessory interest in the wallet but because the wallet is a closed container and Also has around it a shroud of privacy that cannot be invaded absent of warrant or exception to the warrant requirement When he searched it when he opened it He invaded without probable cause. I'm sorry without a warrant without any exception to the warrant requirement of private space because he believed they contained evidence In doing that he violated the fourth amendment I'm Looking at help me with this if Because remember where we were before In the concession. I think is what's confusing me if I'm in Kremlin from wrong here You're conceiting that at the time you picked it up He thought that he might find the identification and then which he could use in the Removal proceeding which that would be evidence And at the time he picked up he had a reason he had every reason believe that so that would be reasonable That doesn't mean that he had a ability to open it without a warrant But isn't that exactly what plain view gives you gives you a way around the warrant requirement It gives you a way around the warrant requirement to seize items of evidentiary value when their evidentiary value is plain Why wouldn't that be plain if they can provide identification the first place you look for identification will be is wallet? That's true, but the wallet itself has no evidentiary value It is a container that likely contains items of evidentiary value Just as was the case in Walter against United States Council They seized the wallet and there's no gun permit and it's nothing just identification Goes to a removal proceeding and they introduce evidence from the wallet. They say here's this proves that he's here here's You know they actually use something in the removal proceeding they use whatever he has as drivers Why is there something they find in there they use? Would there be a violation of the fourth amendment today? Some are other could he defend and say you can't remove me because you you've used evidence That you're talking violation of the fourth amendment. This is a non-criminal proceeding now They just you're just removing it because he does not status and they use something in that wallet To bolster their case your honor not being familiar with proceedings in immigration cases and I apologize I'm not sure what rules of evidence would apply in that case, but they didn't come in a criminal I at least arguably I can't tell the records I'm clear they didn't come here in a criminal with a criminal warrant They didn't come here looking for evidence of gun possession They came here as far as I can tell to remove somebody who's out of status They had no there's nothing on the record that would suggest that he knew the officer knew the agents knew that there was an Inclusion or any underlying Civil proceeding. That's a civil proceeding. Yes, Ron. Okay One of which there were broad Powers to the government free runner. They They they open the wallet. They don't find a gun permit or anything like that They just find identification stuff, but they use it they find stuff in there that's helpful to them Maybe they find proof of how we entered illegally maybe they find you know They find stuff that they then use it at the immigration. Is there a violation? See that's what's confusing me the interplay between a non-criminal proceeding Which these agents thought they were doing We suddenly gets converted into a criminal proceeding When well when they find the gun really at that point they later on find out that his application was illegal Lied on it, but at that point they don't even know that your honor Immigration proceeding or no when they entered his home can't don't think they've had it out of that He just put it in there and you're taking out of it and it being in there is is what's Confusing us because even then is a very Gratly complicates the issue and it's very interesting. I don't have the answer You're on right. I think that even allowing for an immigration proceeding the immigration agents who entered his home needed Justifications under the fourth amendment. They had that the true your honor. They did enter his home To arrest him to conduct a protective suite To search his grab area To take items of obvious evidentiary value in plain view. That's it well, but to look inside a closed Because the boxes in Walter He's talking about to me they're different and trying to explain I'm trying to intellectualize a widely different other than just a visceral reaction that the box that says pornographic Intrusion on the outside of it is different and because it depends on the guy's a good fall You're on I I don't think it is different I To be honest right the the Supreme Court in Ross against United States said that protections to containers all Close containers extend equally to all closed containers no matter their type or their outward worthiness In Smith against United States the closed container was a crumpled over paper bag And important against United States the Supreme Court says even if the items is a container It seizure does not compromise the interest in preserving the privacy of its contents because it may only be opened pursuing to either a search warrant and After some citations or one of the well-delineated exceptions to the warrant requirement But you get to get back to playing view You've used a sometime for a bottle of it. It's here from Mr. Warry You Yeah, for me please the court my name is beneath Gary and I represent the United States government Your Honor, I know you were asking Mr. Raphael that the questions about whether or not this is a truly civil proceeding or a criminal proceeding And while this issue was not raised by either party in the briefing or below I believe there are this is There are some very criminal aspects to this Clearly are now yet yes, Your Honor But even at the time I mean there is there is an arrest warrant that's issued by an ICE It's another ICE officer actually is not a judge issues the administrative war in this case, but they do come in They place the the defendant in in handcuffs. They do are doing protective sweeps And when they bring the the defendant back to ICE administrative offices He's placed in a holding cell with with the other folks that were picked up on The right to open the bill for you're on right We believe that yeah, the officer was acting reasonably and this was a reasonable search because the probable cause there was probably a cause here As the agent testified the evidence wasn't in plain view the evidence that is Driving this right now the gun from it. That was clearly not in plain view and in order to get into the plain view doctrine The you've got to got you get you make it fast probably because if the if the gun from it had been Well, I'm not sure the dump made my leg out there As let's assume I'm not sure this is valid, but that's assume the gun permit was sitting on the table And it unless assume further there was probable cause to believe that gun permit was evidence of a crime I'm not sure it would have been frankly unless they thought it was a convicted felon and that's not in this case Why would they have probable cause to seize the war? The wall at your honor the wall at your not the one the wallet your honor The agent testified that in his experience While it's often carried from proof of identification This sometimes in his experience who would find purchase it contain Evidence of the drug dealing drug smuggling the fact that he bugs themselves. Yeah, in fact to me that hurts you if the agent says While it's frequently contained stuff that I can use as evidence I Know I just I don't know if that's going to be the pilot would say I conceded that's the right word that you had enough To interfere with this possessory interest in the wood you can seize the wallet you agreed with that and It seemed to implicitly agree that you could then apply for a search warrant at some point On the ground up you'd be looking the basis for your search would be in a civil case So I that confused me a little bit you you would say that I can find Proof of identification that I could use in the removal of proceeding which I You know a search warrant in the civil cases a little unusual concept to me. I'm not saying it isn't done It's just that I'm not familiar with it But remember at that point you would have no reason is a spec certainly they're your big gun They legally gotten possession of a gun That he had lied when he filled out an application Or again all that criminal activity you had no reason to suspect any of that or evidence of any of that Or you had reason to find is that you might find something in that wallet that would help you in the removal proceeding That's correct on that so he can see you can take the wallet for that reason. I don't know if he should concede that or not But he does he can see that you could take that would interfere with your possessory interest and Then you could take it down and then apply Again, I don't help you apply to a judge for a warrant To find evidence to support a civil proceeding Yeah, because the problem here is again, even if there's a gun for me it's the same problem if the gun for me to sitting on the table In plain view Undisquirt I don't know why the agent would have probable cause to believe that gun permit was evidence of a crime Well, you're on or I believe the agent would have probably caused in that scenario because this is an illegal alien And so one of the crime that identified to that yes, sure on and and one of the crimes of defendant played guilty to With preserves right to appeal on the fourth amendment issues Was that he was a nearly the alien in possession of fire Right to possess it sure on under entirely teen section 922 g So that that and itself would give the agents and I would be much more clear if I case that we have before today But I do believe that just based on the agent's experience and while the government's not distinguished Walter V. West that yes, right. I think that There's certain practicalities That really causes differences I believe between Walter and here and not not and one of those is the FBI and Walter It was already in possession of the films. They already had possession of those films back the FBI offices. They weren't actually In a defendant's home with two other adult males in the home at the same time in the upstairs bedroom when they discovered I think that the practicalities are very different between the two cases But there's Kevin said that you're on there's no one at arguing there any ex-concerned strangers or public safety Except that hurt you since me Walter's a much more clear case in contemporary. It's It seems me Walter would be a much clearer case where you would win if if Walter wasn't Apprope because they interviewed with the privacy interest How does the search here not interfere with the privacy interests? All right, the government believes just that because the wallet is distinctive in that and while we're not advocating for a rule Special wallet rule in any way. Well, you are but how do we write depending without getting this special while it's real? Well, you're on Walter. How do we do that? I'm sorry You're on in Walter given Walter given what given the cracks that we have to write in How could we come out of this case with anything but a Wallet exception to the Fourth Amendment? That's not what you're arguing is this I said it the agent said it you look. I know what's gonna be in a wallet. Yes, you're on an agent did say that and but I think given the Totality is for conferences the agent's experience. He knows what's in the wallet Experience they have to have to know it's an wallet. Oh, you need this driver's license They have drivers license. You know you know what mom and dad carry in their billfolds and purses If you're saying that his experience showed him that there'd be identification in a wallet that he could use to tie The defendant to the status he has been arrested for be a letter from home He could have a letter from his mother in his native country could be in a wallet picture We have a hard time writing an opinion that doesn't create an exception for us very special set of circumstances for a wallet While it's which may be the most pretzels should be perhaps the most private kinds of property for both possessory and Privacy interest will become the least because of the Curricure of it and what the officer could reasonably expect to find in it Therefore, this is a lighter burden on interfering with either the possessory or the privacy interest I think yes, Your Honor I think we're distinguished as this case from and while we're not advocating for one of those and while we're not advocating for a general wallet exception here You lose that's where that would be one your honor The other would be that this is a wallet that was seized and searched in an immigration case that the appellant Sited the bearing irrigation second circuit, which was a case where the agents opened a wallet when they were arresting Defended on drug charges and they used the contents of that wallet for large Denomination bills to Complete evidence in their case in the drug case that that's the situation where when you're arresting someone in drug charges and you see a wallet There's really agent doesn't have problem cost believe there's gonna be large denomination bills or small denomination bills Asian would have Probably cost of leave there's identification of the wallet, but that was it that was a drug case not an immigration case that we have in this case Um, but I think that goes to what mr. Raphael is arguing about the distinction between the privacy and the Possessory interest I would agree on it What's in there then would be in plan to do if you can immediately recognize this impriminating evidence your a value Yes, right. There's definitely two I agree mr. Raphael's correct is definitely two distinct issues. They're between the seizure and the search. I think that's correct Um, if I could I'd also like to address the second issue, which is the The written confessions the ice offices which is part of the restaurant asking about the words the gun Now why wouldn't that? Why isn't that the kind of thing which should have been proceeded by Miranda and if it is not and I guess you're conceiting that it was That it should be proceeded by Miranda aren't you? I wish the gun. Yes, you're on the the government in district court proceedings that did not Move for the admission of that evidence that okay, and that was going to agree with that directly connected to the second statement You've got the same agent involved in the interrogation um Why wouldn't that be sufficient as to give you the freedom poison street What's the break in the chain of circumstance? He's thinking himself with Jesus already got the gun I told him where the gun was it got the gun Uh, I better hope for the best item get here and cooperate and and give him a statement That's what he's asking me for the statement is is about the gun and would there have been a statement had there not been an illegal seizure of the gun Yes, Your Honor, and I think looking at that the factors in the brown versus Illinois the temporal proximity In the intervening circumstances that best from the government's viewpoint is a wash and and I realized that's the government's viewpoint It was a five-hour period between the the confed the written confession at ice offices and what transpired In the house but having said that though that the intervening circumstances were we're not Anything though a way in favor of admission the defendant was in a holding cell He was being processed in finger print. It was the same agent But however, I think that the third and most important factor in the brown is what really if they were submission in this case is the fact that The agents there was no flagrant official misconduct whatsoever the agents are acting reasonably Uh, both in opening the wall and also in the unwarranted Colleague they had the defendant regarding the firearm now. There's two Lot of the acting reasonably in opening the wallet. What makes that reason? Your Honor that is your Our position your interview would be that the agents were had blood leave that problem cause and they had problem cause and finding Evidence But believe in immigration immigration crime runner as far as identification lines immigration crime what immigration crime? What yes, Ronner this this would be administrative proceeding Big difference what probable cause did they have You know I go at two steps. I don't see the probable cause Really in taking the season the wallet, but let's assume that's conceded They then take it down to the to the station with them The notion if they're going to get a search warrant to get identification for a proceeding with them more than enough evidence Already to throw them out of the country is is to mean you know only in lawsuit could you get that kind of allegation? I'd defy you to find probably find a case anywhere where they Would be one thousand people here and eat with the pure immigration case at the getting search warrants I don't even know if you could get a judge I don't know what a judge would say I want a search warrant to see if he has a driver's license Why are you doing that what we're going to throw them out of the country? Do you commit a crime? No, we don't know anything about any crime. We just know he's out of status We want to make sure he is who he is. We already got a warrant Did he tell you who he was and he told you who he was he hasn't denied who he is He hasn't said I'm not so and so you've got the wrong guy So the note mean in the typical case we find a suitcase in a trunk we find the point. Yeah, this is a box of porn If theory is you lose your possessory rights so they can seize it That and you're probable cause that there may be evidence is good enough for the seizure But then you go get a search warrant Because there's evidence of what you have basis for believing use evidence of a crime that scenario just doesn't seem to need a fit A In immigration case we really don't need anything in the wallet to To get rid of them. I mean to you know deport him remove him In the notion that you're good like the suitcase you're going to take the thing at a search warrant We're like car sometimes you can you can tow a car But you can't look into the trunk or look into the car and pretty get a warrant There's a whole line of cases Don't see that here It last he was being arrested for an immigration crime You know, but there's nothing in the record that indicates he was Other than out of status and meaning he had no right to be here in the country And they for whatever the reason they decided to go get him and they went and got him and So I just don't see it That I don't see where the evidence you know it true And if you really thought there was evidence there that somehow you're going to take the wallet and go get a search warrant No, that makes any sense. It just doesn't fit this case personally. I obviously can't speak to the I'm not sure what the concession about the seizure of the bill for that I find that seizure of the bill for trouble Well, you're on I think the seizure of the bill fill wouldn't be much different than the locker in Chadwick where I think that the Supreme Court ruled it But the government was certainly entitled to seize the foot locker and then go get a search warrant to open its content That was criminal case. Yes, you're on all those are criminal cases. Those are cases where you've got you suspect And they have us to make you a list you will rest somebody for a crime and you're looking for evidence Butres nobody have proof beyond a reasonable doubt. Well, that's not the standard in a You know, I mean there's reasons why that you you go out and have a right to get a search warrant for evidence government has a very heavy burden of proof in a criminal case But in a in a deportation case and do one thing he says I'm not the guy. I'm not the guy. I'm a different pedigas Then then I can see the agent saying well show me some identification that proves you're not who you say you are Or you're not who we have a warrant for But that's not the case here. He's never denied. He is in fact, he opened the door when they said I'm here for so and so he came down an open door He didn't say I'm sorry go to another house. You got the wrong address You got the wrong guy Never any show in this case about who he was and then the guy thing and the five hours seems he cuts both ways because So you can clearly in the cases that have gotten into this you can clearly keep someone Under detention sufficiently alone The word under will wear down the independence of their ability to to judge and exercise If you will and make it more likely that once you give him a random warrant or warnings that they will confess So the fact that was five hours after the initial event I'm not sure if that helps you or I initially thought I heard you I can see your point So you might have something there, but at least in my mind that it becomes a watch because the whole thrust of the statement Is about that which they got illegally? I don't know where the intervening break of circumstances I don't know where the causation is is broken They got the gun illegally And then they exploit that the right split the legality That's all they asked about is this gun that they found because now we've gone from a removal proceeding to a criminal prosecution Yes, Ron right as I said I believe the temporal proximity and intervening circumstances are best a wash from the government standpoint but I We do believe that There was a lack of a flagrant and official misconduct when you take it look at the case law when you have Taylor versus Alabama and Brown versus Illinois I went into this spectrum where you have pure fishing expeditions arrest without Any any valid probable cause or warrant in this case there was a valid A rest warrant to defend it and at the other end of the spectrum you have the Rawlings case I think this case would fall somewhere in between and I think it would it would be much closer to the Rawlings and it would be to The flagrant official misconduct you have in Taylor and Brown is it cold or warrant actually with the sign? Yes, you're on it is and it's signed by whom you're on it. It's signed by another ice official It's not a judge. There has been a Judicial determination of probable cause. I think that's right you're on right. I think it's it's really an admit To minister but it's it's basically an administrative way in a civil matter of Bring this guy You know into the custody of ice so they can deport it. Yes, you're right. I think that is status I think that's right you're on right now. I believe in the record Yeah, well the person who actually signed the warrant was actually the Asian Posit Supervisor who was also in the house with him So you admit they're a big for the memory problems for that if we were in a criminal context, well Yeah, let's see because both it's more even pies here too when you have a warrant You worry had a judicial determination And this is somebody may have a probable cause with that person committed to crime You don't even have and that some of the exceptions like the search incident to a An arrest and you know come from the fact that there has been not judicial determination Here you just had the administrative agency charged with removing illegal aliens in effect creating a mechanism for seizing somebody and And removing them from the country. I think it's right your honor In that there was no there certainly was no judge that signed off on that that warrant having said that though that the agents were acting under a lawful duty Isis charged with one of those warrants. I'm not saying the agents did anything wrong. Yes, right in the sense of arresting him they had a right to arrest him It's It's just the seizing of the wallet converting this to a criminal Yes, why don't I think the problem? Yes, right. I do believe though. This is a far cry from the agreed to search intent as an atta In brown cases, but yeah, that's not the only attachment. It's Since neither was significant exploitation. It's not an egregious kind of Intentionally worrying down the well. I don't think they clearly didn't In fact it's a period here and maybe mr. off-fail would disagree but it looks like everybody was acting in good faith doing the job But it doesn't necessarily mean that what they did was legal or appropriate Yes, Ronald. Thank you very much mr. off-fail. I think they said deliver You know, I've been asking you name correctly. Is it rough out? Okay? Okay, one of the few ones I've got right. No one of the few people one of the few people that pronounces my name correctly on the first trial First of all, let me say that I and we are not conceding that the search here was supported by that the seizure here was supported by probable cause No, no, because mr. McClodton whispered in your ear No, you're honor. I wanted to make that I wanted to make that clear after the argument I had I had suggested that we That we assume that for purposes of argument because I thought it would simplify the argument. Oh, yeah, I was incorrect We are not conceding that the seizure here was not supported by probable cause because there was no purpose whatsoever in taking the identification At page 116 of the record agent paucic confirms We knew we had the right guy and at page 94 of the record he says I was getting the immigration Or it was getting the identification documents because it would reach the wheels because it would make the immigration proceedings go more smoothly Second, I would like to say that the government had used no evidences. Your honor pointed out supporting warrant requirement exceptions for an inventory search or inevitable discovery They didn't really raise it below and they don't raise it here and according land or United States and smoothly I believe that that forecloses the possibility of finding that either of those would justify the seizure or the search in this case Finally, regarding the fruit of the unlawful seizure the gun permit the gun the first unworn confession and the subsequent sign confession contrary to what the government says Nothing purges the primary tank of the illegal seizure. There is insufficient time Taylor against Alabama involved a six hour lapse of time This case involved a five hour lapse of time As in Taylor against Alabama, there are no intervening circumstances Mr. Rivera-Padea was in custody without access to a lawyer without speaking to any members family For that entire time his only exposure to people was in interrogation and for Britain procedures and finally You're not arguing with us. We all was born down No, you're not knowing about the gun. They've never even asked in the question correct The question never would have even been asked no matter how many hours because he was destined to stay in custody Forever at that point. Yes, you're on that's correct And totally left the country and and the and the brown Factor that is strongest for us is the official misconduct Because Agent Possick when he finished with the immigration questionnaire began immediately with the proceeds of the illegal search He asked Mr. Rivera-Padea the first question handwritten question on page 62 of the appendix asks him about the caliber action and manufacturer of the gun He started right there and let Mr. Rivera-Padea know through exploitation of the proceeds of the illegal search That he knew everything already that Mr. Rivera-Padea had to say He let Mr. Rivera-Padea know that that bell had been wrong and there would be no further harm In Mr. Rivera-Padea answering his questions Because of that direct exploitation of the illegal search and its proceeds All three brown against the Illinois factors way heavily in favor of Finding that the fruit of this unlawful search the gun gun permit first confession and second confession Must all be suppressed as fruit of the poisonous street Thank you, your honor Could you phrase the issue in this case one way of phrasing what the issue is is does the Arrest of an alien to an administratively issue of warrant Give the arresting officers the right to seek evidence at the place of arrest Which would use your expression or the agent grease the wheels Uh of his removal I think the issue could be for is that way or I think it could be framed that I just don't know of any of Maybe there's authority out there. It wasn't really brief that way But that's what it comes down to I mean the arresting the guy and somebody gets it You know if we had some identification in his wallet maybe Maybe it would make it a little easier to get rid of them Even though he hasn't challenged his identity or anything like that That amount the probable cause to steal in a sense the most personal thing that one has Which would be your wallet Your honor. I think it's 16-year-old boy. You certainly don't want somebody searching I was at this wearing 16-year-old boy actually I wouldn't have minded No, you were pure Uh I mean this the opposite got into some areas that have not been We could be helpful I think in 28 years from both if you if you want to submit an additional Authority this could end up being in an hugely important case because of the number of Immigration could probably a third of our case blood now or immigration cases not always overstaying Um, visas or illegal entry a lot of them are self-discipline Children of prosecutions that disqualify someone for um, continuous thing But this could become a very important case. I add to that when they seized that I can't remember it was Iowa They they went to a factory and they seized hundreds of people They've acted a couple of locations And what they did is when they ultimately got hold of their wallets they got social security cards They found out that most of them were phony That and then what they did is they bought criminal charges they they were arrested solely on status charges That they were illegal aliens not a non-criminal just those administrative But then they turned them to encourage them to leave voluntarily they They found Social security cards and many of them and They They indicted them for uh for the crime of getting a phony social security card Then offered them deals which basically were time served and you agree to get out Yeah, so that was a place on it. Who am any case? The public defenders accepted the deal very very reluctantly and they thought it was vastly unfair But they basically said what choice do we have either we put the sky and jail forever or for a long long time Fighting a case Or we said we'll let them get back With no more time in jail to their home countries And so there is potential for abuse really is Taking an administrative warrant warrant that's not a criminal warrant Using it as a basis for searching a wallet Because what at least I read is that the first thing a lot of illegal immigrants do and I've had tried cases on these If you get some form of phony identification A fun quickly off the phony social security card phony drivers license Uh So there's likely to be and they government has used that when they find that they then turn a administrative case into a criminal case not for a gun that was just a Pure happenstance, but there are other crimes that are very common that they might find if they So a wallet yes, or on that's related to immigration like a phony driver's license phony identification So secure phony social security so I think there are implications really are and I'm curious in an immigration context when somebody has a non judicial warrant Wokes in one house to arrest somebody What rights do they have and specifically do they have a right to seize or search? A wallet Because they are very very likely not very likely but at least there's a strong Problem possibility That they will find evidence of a crime not the crime of holding a gun that was just out of the blue here But evidence of phony identification yes wrong and they could turn what is administrative arrest as they have done in other places in the country Into a criminal matter and then use that as leverage To that really greases the The way out of the country so Yeah, and they're probably our cases because of the number administrative Policeman inspectors going in the fine evidence of criminal violation or that they'll probably have cases out there So personally I know them. I can't speak judges, but if a 28 J letter addressing really what Can an arresting I use the word arrest arresting officer ice officer dude With respect to an administer enough dressing. It's not just to you. Well, you're Blocking the You know just what can an ice officer do? It's a very important when he comes with just the administrative you call it a warrant, but to me it's just Kind of an administrative piece of paper that another ice agent assigned There's clearly another fourth amendment warrant. Yeah, it's not a real fourth amendment warrant due And when you talk about seizing a wallet You are talking about finding evidence of other crimes, but the crime This case has kind of been distorted because we're all talking about a benefit in our right way just the fordison on the cake, but they actually Could probably find in a significant percentage of cases another crime and that's phone relates to To phony social security phony drivers license And they're on a guy he had a permit and he kept that I don't know how the septal gun were But he had begun lacking secures in this stuff It's a really Different kind of case you don't often see gun permits In cases now I understand in his situation you couldn't have a gun so the front was his problem But he also was taking care to keep the gun apparently keep the gun secured and set the house Where it does not help him one iota in terms of his criminal case, but um It's a different it's made to say you argue once before and I know you're a legal writing specialist I'm not totally sure what that means when We gave the mission argue you argued very very well on the last case It's I cannot remember now, but I remember you made a impression on the on the panel. Thank you around Good job beers look the old beer said yeah But the old guys out the pasture I've been with public centers office for two years your own right came in September 2006 to the appeals unit and in july this year Moved to the trial unit okay, they do a very good job. Thank you run I had a callus that started just about the same time Thank you think about the calls of link