Legal Case Summary

Good afternoon everyone. We will call the first case. United States of America versus James R. Set

. Mr. Kaczynski. Thank you Your Honor

. May I please the court? Good afternoon Your Honor. My name is William Kaczynski and I represent the appellant James Set in this case. I would ask to reserve three minutes for the court

. Thank you Your Honor. Your Honor, the first issue before the court this afternoon is whether Mr. Set warrantless arrest in Sido, Ohio by state and local Pennsylvania police who admittedly had no legal police authority outside of Pennsylvania violated his Fourth Amendment rights

. The facts very briefly because I know the court is aware of them was that Mr. Set was indicted on three counts one conspiracy to distribute crack cocaine the first was conspiracy the second count had to do with a control purchase that took place on April 21st of06 and the second was a by bust that's the third count was a by bust that took place on April 27th of06 that's the one that's that issue in our first matter and that is the one that took place outside of Pennsylvania and inside Ohio in its opinion the district court correctly found that the arresting officers had violated Ohio law the judge found that that the fresh pursuit statutes at Fourth by Ohio was violated because the police came in and did not honor the required arresting the person taking the before Ohio magistrate. Mr

. Schensky in the district court you complain that the arrest was illegal because the state police did not have authority under Pennsylvania law to arrest Mr. Set in Ohio is that correct? That's correct you're on it. Okay and and that is based primarily upon two cases that the that the district court recognized which I I commend to this court for for their reasoning although they're not binding of course on this court that is commonwealth versus said Vary and commonwealth versus Schaeffer

. Savari was the Supreme Court case Pennsylvania Supreme Court case in which a gentleman was driving into Delaware and a Pennsylvania state trooper followed him and eventually arrested him for DUI and brought him back to Pennsylvania without taking him before Delaware authorities. In that case the Pennsylvania Supreme Court said that suppression was required because the fact that this was a necessary as a demonstration of comedy to vindicate Delaware sovereignty and to ensure future compliance with Delaware law and to safeguard the individual right to be free from unlawful seizures. Commonwealth versus Schaeffer is an identical case except for the facts are that in that case the defendant went into New York and the trooper brought him back without any due process and there I would ask the court to consider the superior court's reasoning which I think was very succinctly put

. The troopers authority to arrest in New York comes solely from the New York statute which is similar to the one we have in Ohio the Tierhead issue. Therefore the trooper had a conditional grant of authority subject to final validation by the New York criminal courts and that validation meant that you had to go through the procedure. I've taken him before a local magistrate and given him the opportunity contest it and have bail but if not validated the superior court in Schaeffer said the arrest is void ab initio and that's without legal authority

. So Judge Fisher the ESIM saying that this relies upon a violation of state law but it's different than the normal cases that come before the court and it's certainly distinct from the case of Virginia versus Moore that the government asserts says that just because it's a state law violation to bad there's no Fourth Amendment violation and our position is that under the unusual and unique circumstances here where we have extra jurisdictional arrest that in fact the analysis should be that there is a violation and that therefore this arrest should have been suppressed. A violation of what law? Which law are you now hanging your hat on? That was I guess the purpose of my original question is it's below you you said it's illegal under Pennsylvania law but your brief seems to alleged it was illegal because he wasn't taken before magistrate you know Ohio and therefore we'll legal under a high law. I think under Ohio Pennsylvania and federal law Ohio the statute Pennsylvania both of the cases that I cited held that that that that Pennsylvania law requires suppression and federal law I would argue the Fourth Amendment and very specifically your honor and I don't mean to quote but it's only two sentences our argument relies upon the following the concept of reasonableness embodied in the Fourth Amendment logically presupposes an exercise of lawful authority by a police officer when a law enforcement official acts beyond his or her jurisdiction the resulting deprivation of liberty is just as unreasonable as an arrest without probable cause and that language comes from the cases I've cited in my brief foster Simon from the DC Circuit at well Ross V

. Neff from the 10th Circuit all of those were decided before Virginia be more were they not they were your honor and the way we have a violation of a statute in Virginia versus more do we not you did but it was just a violation of whether a police officer should arrest someone or whether he should write a citation and nothing to do with principles of comedy sovereignty a prerogative of a sovereign state and I think that takes it to a different level the government I asked the court to be very cautious with the government's argument because the government as I read its brief is asking the court and again I take the liberty of quoting one sentence it is I understand the government's position it's based solely on probable cause the government says on page 17 the determination of whether a Fourth Amendment violation has occurred requires application of the probable cost standard to the facts as presented to the district court in other words the reasonableness of the rest is dependent upon the existence of probable cause so in other words if there's no probable if there's probable cause to arrest of nothing else matters well I think that argument is severely mistaken and here's what in this kind of a case first of all as a 10th circuit has succinctly noted avenues to extended jurisdiction must come from the legislature not the courts second the the government's analysis is resolved oriented under these circumstances I can't ever imagine any extraterritorial by bus where there's not going to be probable cause because by definition the police are on the scene and they're orchestrating it if it's a bypass just because there's probable cause doesn't mean that it's if so facto reasonable there could be other factors that make it unreasonable right you're exactly right you're on or that's my backup argument if the court does not accept my per se argument then I would submit to the court rather than swinging to the government's argument that if there's probable cause forget any other analysis I would ask the court to consider the totality of the circumstances and I found that best because there don't seem to be a lot of circumstances talking about this I found it best articulated in United States versus Atwell which I've cited in my brief and in Atwell talking about an an inter jurisdictional type of an infraction the court looked at nine different factors and and I like to go if I could very briefly through those because only two of those factors argue for reasonableness in this case number one is probable cause we can see that number two the degree of police compliance with state law here there was none three the fact that the police are acting between political subdivisions of the same state well that's not that's not applicable here it's much more grievous here because the crossing state lines to engage in the activity number four presence of negligence and circumstances there were none here number five location where the where the crime occurred it occurred in Pennsylvania I suppose that factor weighs toward reasonableness but I'm not sure six officers knowledge is without authority and I think the record and I've indicated in my brief shows at best willful blindness on the part of these officers they didn't care they didn't ask they were with Pennsylvania state troopers were the ones that testified at discretion hearing but they were with four or five officers from Sharon Pennsylvania as judges Hartman and Fisher and Adelaide Lino Sharon is right on the border these are local officers and to to imagine that local officers don't know that a town a town an actual town of mazery is not in Pennsylvania to me it just is clearly erroneous to to the inferential leave is not justified well even if you want on this suppression issue there's still enough evidence to convict on the other two cons I agree I agree runner you're exact the right this is gonna go toward mitigation of sentence maybe ultimate what do you want to spend any of your time on the sentencing arguments that you made yes sir if I might very briefly mr. said submits at the court to recognize sentencing and trapment or manipulation as a basis for sentencing mitigation and the rationale for my request by the way what what is this concept of mitigation relief which you have you're on our foot before the court I can't find that I can find the departure I can find variance but I can't find this term mitigation relief where does it fit in your owner I guess it really is a weasel word I read vampire nation very carefully but I'm still kind of confused as between variance and departure and so forth so mitigation relief is my term for everything but that but although I did discuss the variance versus which one which one are you really asking for two two different things you know and they are two different things right right so so what how do you I am asking for I am asking for variance under 3553 a okay you're on and and what I like to distinguish if I can is sentencing and trapment versus sentencing factor manipulation because the government doesn't seem to believe in the latter but I set forth cases that they're distinct and the reason it's important for me to make this point is because I think Mr. Set has an argument on both of these this is a very unusual case and normally the court with respect to reasonable I know what my burden is and it's heavy but sentencing a trap and focuses on predisposition and it deals with you know where you have an actor who's predisposed to commit a lesser offense but the government entraps them into committing a greater offense whereas sentencing factor factor manipulation is where the government stretches out an investigation to increase the sentence I think we have both here because the government addressed the first in its brief but it didn't address the second and my argument on the second is very simple there was absolutely no evidence in the record to show any investigative purpose whatsoever in making that second by the first by I submit the trooper was disappointed because it didn't hit 50 grams which automatically kicks it up to 10 years and that's why there was a second now that's not what it doesn't come out explicitly any evidence but I think that it's a fair inference so I think Mr

. Set for reasons I stated in that sentencing a trapman argument if you weigh the evidence the only thing weighing against him was his statements that he could deliver this everything else 49 years of no drug sales argue the other way and for that reason I think the court clearly aired okay wait a minute don't say that quite you're stable you say there's nothing else in the way don't we have an express finding by a fact by the district court that he was not that he was predisposed absolutely you're on that's correct but the only fact that I agree with the jury you argued in trapment to the jury and I agree with the jury that you were predisposed now what are we gonna do about it what's the review of that clear area runner but but I would just urge you court to consider the fact that there's nothing to to back up the judges finding other than he the statements of Mr. Set which I submit repuffery if you if you look at all the evidence to the contrary 49 years the guy has never been arrested before for drug dealing he's a he's a crack user and you had three government witnesses all of whom said this guy doesn't deal in any quantity he's a crack user he's a crack yet and finally the district court also had a contradictory finding in its statement of the reasons paragraph eight the district court said there's a positive evidence that this guy committed any large-scale drug sales in the past so I think the court aired on that I think we'll have a back on our bottle Mr. Everhart they please the current Robert Everhart assistant United States attorney for the government as the Apollee in this case this was a case about fresh pursuit and contrary to my colleague's argument I think what Mr. Set pursuit did you say fresh pursuit Ohio law permits a Pennsylvania police officer to make an arrest when that arrest follows fresh pursuit what essentially Mr. Set is arguing and is arguing before this court is that he was not promptly arraigned in the state of Ohio two cases that are being argued to this court one the Pennsylvania Supreme Court decision and said Vary well before we leave the fresh pursuit pursuit issue how can something how can you describe this as a fresh pursuit which involves urgency less somebody escaped when this is a situation involving a sting over which the police have complete control and also a situation where there's no reason to believe that both that everybody involved was not going to go back home to where they live in Pennsylvania and indeed your honor the court found and the record supports that the police officers thought they were in Pennsylvania when they made the arrest and that was a reasonable determination by the court and based on the evidence and the record a reasonable finding of fact the troopers thought they were in Pennsylvania there was a lot of argument in the district court in the motion to suppress over where the take down occurred they were not on a highway they were in a parking lot the state trooper answered to the question about how this is a I'm going to get to that it is it is fresh person it couldn't be fresher in my view because the crime was ongoing it was an attempt to sell crack cocaine to undercover police officers that was initiated in Pennsylvania and the record actually establishes that mr. said who was bragging on the recorded tape conversations about how many deals he had done he's done small deals big deals on the day of the proposed sale in Pennsylvania which was supposed to occur at the Shinango mall which was about a mile or two inside Pennsylvania he all of a sudden changes and says it's going to occur the way the prior sale occurred on six days earlier so the pursuit occurs because mr

. Set pursuit did you say fresh pursuit Ohio law permits a Pennsylvania police officer to make an arrest when that arrest follows fresh pursuit what essentially Mr. Set is arguing and is arguing before this court is that he was not promptly arraigned in the state of Ohio two cases that are being argued to this court one the Pennsylvania Supreme Court decision and said Vary well before we leave the fresh pursuit pursuit issue how can something how can you describe this as a fresh pursuit which involves urgency less somebody escaped when this is a situation involving a sting over which the police have complete control and also a situation where there's no reason to believe that both that everybody involved was not going to go back home to where they live in Pennsylvania and indeed your honor the court found and the record supports that the police officers thought they were in Pennsylvania when they made the arrest and that was a reasonable determination by the court and based on the evidence and the record a reasonable finding of fact the troopers thought they were in Pennsylvania there was a lot of argument in the district court in the motion to suppress over where the take down occurred they were not on a highway they were in a parking lot the state trooper answered to the question about how this is a I'm going to get to that it is it is fresh person it couldn't be fresher in my view because the crime was ongoing it was an attempt to sell crack cocaine to undercover police officers that was initiated in Pennsylvania and the record actually establishes that mr. said who was bragging on the recorded tape conversations about how many deals he had done he's done small deals big deals on the day of the proposed sale in Pennsylvania which was supposed to occur at the Shinango mall which was about a mile or two inside Pennsylvania he all of a sudden changes and says it's going to occur the way the prior sale occurred on six days earlier so the pursuit occurs because mr. said and mr. Granison who is really the the in the eye of the police officer the reason for the second sale goes into Ohio to get the crack cocaine from mr. Granison Granison and mr

. said and mr. Granison who is really the the in the eye of the police officer the reason for the second sale goes into Ohio to get the crack cocaine from mr. Granison Granison and mr. said come back toward Pennsylvania and are stopped because the state troopers believe they were at that point in Pennsylvania had crossed over the border so there's a reasonable mistake by the officers here but even if their mistake is made the Ohio statute permits the arrest to occur and the reality is the sad very case which is what is relied upon here there was no fourth amendment issue the fourth amendment was not raised in the Pennsylvania Supreme Court or in the lower court and in fact professor Lafe the Fave has said the sad very cases a very minority view an appearance issue which is really the issue in sad vary is an issue that involved does not involve a fundamental right especially where the defendant receives a prompt appearance as he did in this case in the state where he was returned in Pennsylvania so there's no violation of anything even a McNabb Mallory rule application but isn't there at least a violation here of Ohio law only that part of Ohio law with regard to appearance but that isn't it nevertheless it's a violation of law I readily accept that there's a violation of Ohio law on its face the first circuit the fourth circuit the eighth circuit the ninth circuit the tenth circuit all read Virginia versus more the way the government argues in this case which says essentially that a violation of state law does not automatically raise a reasonableness or a fourth amendment issue more was decided on April 23rd 2008 the suppression hearing in this case occurred on March 6th of 2008 since the decision in Virginia versus more and I found a 28J letter to advise the court of a few additional cases that have come to the government's attention Virginia versus more has found peace in the Fourth Amendment arena as an appropriate analysis of when under what circumstances the possibility of a violation of state law may be a consideration in determining whether or not there was a Fourth Amendment violation I would point out that the tenth circuit in a case called Gonzalez has found that only when the constitutional test that issue requires an examination of the pertinent state law or interests does it become involved in the calculation of whether or not it's a reasonable search or seizure under the Fourth Amendment and the examples that were given by the tenth circuit were inventory searches which the Supreme Court has particularly pointed out require an application of a state law procedure with regard to inventorying a vehicle or other property subject to the inventory statute and I would point out that other than exceptional circumstances and no case which has applied Virginia versus more in a way that denigrates the primary requirement of the Fourth Amendment that is probable cause requirement I would point out a few additional facts that are important said argues that the troopers had time to respond and that is totally belied by the record and in fact the district court found that almost immediately the police officer had to respond to a change in plan so there was this argument that the police had plenty of time to anticipate the possibility of being in Ohio at the time of the arrest or the takedown that's belied by the record I suggest in fact the district court found that there was a sudden change of plan the shanango valet the shanango mall was two miles inside of the of the Pennsylvania border and I would suggest that that in and of itself was reason for the police to believe that there was we're going to be a Pennsylvania state case that would be based upon unrest in Pennsylvania I would also point out that this court has already on several occasions seen that a violation of state criminal procedural rules and US versus pre-mo which admittedly is non-presidential but it reflects the fact that a rule a procedure with regard to leaving an inventory at the time of a execution of a search warrant a violation of that state criminal rule procedure was viewed by this court is not raising a fourth amendment issue the reality is the district court was presented with a fourth amendment argument and now we have an argument of state law based on Pennsylvania Supreme Court decision pre-Veginia versus more and I I would recognize that Pennsylvania law as we are here today remains the the sad of sad very case however in light of Virginia versus more I would suggest that the Pennsylvania Supreme Court may have second thoughts mr. Eberhart on the totality of the circumstances test if that's the analysis that is to be used the mr. Seds council argues that they win under that test that the circumstances favor said as opposed to favoring the government you want to comment on that if the court would apply a totality the circumstance to the totality of the facts of this case what our clear is that the police officers were acting not only in good faith but in reasonable good faith based on the fact they believe they were in Pennsylvania they did not act in any way as if they were believed they were in Ohio so there is no flagrant violation of Ohio law there was no indication that the police officers were aware that they were in Ohio and that they ignored that the reality is they thought they were in Pennsylvania in fact one of the troopers who test the two troopers who testified one the supervisor the other the the undercover police officer both felt that they were in in Pennsylvania in particular the supervising trooper indicates that he had been involved in and state varteff situations and that he was well aware of the need to be inside Pennsylvania when engaging in that kind of investigative activity I would suggest that the investigative purpose here in reality was to get to granderson who mr

. said come back toward Pennsylvania and are stopped because the state troopers believe they were at that point in Pennsylvania had crossed over the border so there's a reasonable mistake by the officers here but even if their mistake is made the Ohio statute permits the arrest to occur and the reality is the sad very case which is what is relied upon here there was no fourth amendment issue the fourth amendment was not raised in the Pennsylvania Supreme Court or in the lower court and in fact professor Lafe the Fave has said the sad very cases a very minority view an appearance issue which is really the issue in sad vary is an issue that involved does not involve a fundamental right especially where the defendant receives a prompt appearance as he did in this case in the state where he was returned in Pennsylvania so there's no violation of anything even a McNabb Mallory rule application but isn't there at least a violation here of Ohio law only that part of Ohio law with regard to appearance but that isn't it nevertheless it's a violation of law I readily accept that there's a violation of Ohio law on its face the first circuit the fourth circuit the eighth circuit the ninth circuit the tenth circuit all read Virginia versus more the way the government argues in this case which says essentially that a violation of state law does not automatically raise a reasonableness or a fourth amendment issue more was decided on April 23rd 2008 the suppression hearing in this case occurred on March 6th of 2008 since the decision in Virginia versus more and I found a 28J letter to advise the court of a few additional cases that have come to the government's attention Virginia versus more has found peace in the Fourth Amendment arena as an appropriate analysis of when under what circumstances the possibility of a violation of state law may be a consideration in determining whether or not there was a Fourth Amendment violation I would point out that the tenth circuit in a case called Gonzalez has found that only when the constitutional test that issue requires an examination of the pertinent state law or interests does it become involved in the calculation of whether or not it's a reasonable search or seizure under the Fourth Amendment and the examples that were given by the tenth circuit were inventory searches which the Supreme Court has particularly pointed out require an application of a state law procedure with regard to inventorying a vehicle or other property subject to the inventory statute and I would point out that other than exceptional circumstances and no case which has applied Virginia versus more in a way that denigrates the primary requirement of the Fourth Amendment that is probable cause requirement I would point out a few additional facts that are important said argues that the troopers had time to respond and that is totally belied by the record and in fact the district court found that almost immediately the police officer had to respond to a change in plan so there was this argument that the police had plenty of time to anticipate the possibility of being in Ohio at the time of the arrest or the takedown that's belied by the record I suggest in fact the district court found that there was a sudden change of plan the shanango valet the shanango mall was two miles inside of the of the Pennsylvania border and I would suggest that that in and of itself was reason for the police to believe that there was we're going to be a Pennsylvania state case that would be based upon unrest in Pennsylvania I would also point out that this court has already on several occasions seen that a violation of state criminal procedural rules and US versus pre-mo which admittedly is non-presidential but it reflects the fact that a rule a procedure with regard to leaving an inventory at the time of a execution of a search warrant a violation of that state criminal rule procedure was viewed by this court is not raising a fourth amendment issue the reality is the district court was presented with a fourth amendment argument and now we have an argument of state law based on Pennsylvania Supreme Court decision pre-Veginia versus more and I I would recognize that Pennsylvania law as we are here today remains the the sad of sad very case however in light of Virginia versus more I would suggest that the Pennsylvania Supreme Court may have second thoughts mr. Eberhart on the totality of the circumstances test if that's the analysis that is to be used the mr. Seds council argues that they win under that test that the circumstances favor said as opposed to favoring the government you want to comment on that if the court would apply a totality the circumstance to the totality of the facts of this case what our clear is that the police officers were acting not only in good faith but in reasonable good faith based on the fact they believe they were in Pennsylvania they did not act in any way as if they were believed they were in Ohio so there is no flagrant violation of Ohio law there was no indication that the police officers were aware that they were in Ohio and that they ignored that the reality is they thought they were in Pennsylvania in fact one of the troopers who test the two troopers who testified one the supervisor the other the the undercover police officer both felt that they were in in Pennsylvania in particular the supervising trooper indicates that he had been involved in and state varteff situations and that he was well aware of the need to be inside Pennsylvania when engaging in that kind of investigative activity I would suggest that the investigative purpose here in reality was to get to granderson who mr. Grandison was the source it was his potential criminal activity and responsibility that was of importance to the the police in this case and examining the totality of the circumstance I would suggest that probable causes number one without any doubt and there can be no doubt that there was probable causes even conceded by mr. said in this case I would also point out to the court that the argument with regard to the violation of the of the Ohio statute about being the arraignment or appearance statute was not raised in this court until the reply brief and the argument that is being made here with regard to violation of Ohio law which was raised in the district court was focusing on a fourth amendment violation and not upon a violation of state law and in some I would suggest to the court that on the issue of the suppression and the denial of the motion to suppress the district court had full inadequate factual basis for concluding that this was a fresh pursuit case court makes very clear that hot pursuit is different than fresh pursuit and that fresh pursuit does not require the kind of wild police chase that we met in vision it requires only that there be a continuous pursuit following the engagement in criminal activity. Do you want to comment on sensing and trapped but in the context of this case? Well I think briefly the response to that argument is that the district court heard all of this mr

. Grandison was the source it was his potential criminal activity and responsibility that was of importance to the the police in this case and examining the totality of the circumstance I would suggest that probable causes number one without any doubt and there can be no doubt that there was probable causes even conceded by mr. said in this case I would also point out to the court that the argument with regard to the violation of the of the Ohio statute about being the arraignment or appearance statute was not raised in this court until the reply brief and the argument that is being made here with regard to violation of Ohio law which was raised in the district court was focusing on a fourth amendment violation and not upon a violation of state law and in some I would suggest to the court that on the issue of the suppression and the denial of the motion to suppress the district court had full inadequate factual basis for concluding that this was a fresh pursuit case court makes very clear that hot pursuit is different than fresh pursuit and that fresh pursuit does not require the kind of wild police chase that we met in vision it requires only that there be a continuous pursuit following the engagement in criminal activity. Do you want to comment on sensing and trapped but in the context of this case? Well I think briefly the response to that argument is that the district court heard all of this mr. said testified at trial and I spoke to trial counsel for the government about this just last week there was a question of whether or not the district court was going to charge the jury with regard to entrapment but the court did and the entrapment defense was presented to the jury the jury rejected it and the district court not only knew that but also heard the tapes of all of mr. said's conversations with the confidential informant and mr. said's argument that he was entrapped and that he was not predisposed is certainly belied by the record in this case there are certain occasions where mr

. said testified at trial and I spoke to trial counsel for the government about this just last week there was a question of whether or not the district court was going to charge the jury with regard to entrapment but the court did and the entrapment defense was presented to the jury the jury rejected it and the district court not only knew that but also heard the tapes of all of mr. said's conversations with the confidential informant and mr. said's argument that he was entrapped and that he was not predisposed is certainly belied by the record in this case there are certain occasions where mr. said in talking to the confidential informant says I've done small deals I've done big deals I can do any side deal in fact said is the one who tried to get to stay trooper to cough up ten thousand dollars for a bigger deal and the police officer said no I can't do that big of a deal I'm going to do the five thousand dollar deal so this argument that there is some predisposition there's lack of predisposition that indeed this is more than puffery this is a attempt to sell on the basis of an argument that he is ready and willing to engage in criminal activity involving as much as ten thousand dollars worth the crack cocaine and I think the investigative purpose here is fairly clear granison received a five k he was very much of an asset eventually to the government and he was the focus of this particular investigation and mr. said was one who prompted the investigation to go to a bigger and bigger sale and I don't think that whatever the terms are and I'm a little confused myself by the entrapment argument whether it's a variance whether it's a a a request for a departure the district court had a full inadequate basis for rejecting it in the in the record and the in the facts of the case if there are no other questions I'll rely on the group on other not thank you mr. Everett mr

. said in talking to the confidential informant says I've done small deals I've done big deals I can do any side deal in fact said is the one who tried to get to stay trooper to cough up ten thousand dollars for a bigger deal and the police officer said no I can't do that big of a deal I'm going to do the five thousand dollar deal so this argument that there is some predisposition there's lack of predisposition that indeed this is more than puffery this is a attempt to sell on the basis of an argument that he is ready and willing to engage in criminal activity involving as much as ten thousand dollars worth the crack cocaine and I think the investigative purpose here is fairly clear granison received a five k he was very much of an asset eventually to the government and he was the focus of this particular investigation and mr. said was one who prompted the investigation to go to a bigger and bigger sale and I don't think that whatever the terms are and I'm a little confused myself by the entrapment argument whether it's a variance whether it's a a a request for a departure the district court had a full inadequate basis for rejecting it in the in the record and the in the facts of the case if there are no other questions I'll rely on the group on other not thank you mr. Everett mr. Kaczynski thank you honor whether we're talking about fresh pursuit for hot pursuit I think one thing we we have to agree on we can all agree on the crime has to occur first and in fact the district court on page six of its opinion says quote it is recognized in talking about common law fresh pursuit it is recognized as being satisfied whenever an officer's attempted apprehension of a felony suspect was diligently undertaken after the commission of an offense and continued in a matter that was not significantly interrupted the offense was consummated in Ohio for began in Pennsylvania though it did begin in Pennsylvania but the argument that mr. Everhart made about there being no reaction time I differ on what the record shows there there was enough time for the police to get in position in Ohio right there is at least 15 minutes or something right right it depends on what relative time span we're using but initially it was supposed to occur within Pennsylvania it was it was but six days earlier they had the same situation where Grannison wanted to move it to Ohio and it was entirely predictable and his car during the whole operation was being was under aerial surveillance in fact one of the troopers passed up one of the defendants on the way into Ohio after they all got the call okay we're going back to the to mazerio high up so it wasn't as though were last minute thing the problem that I have in terms of policy is that if the court accepts the government argument that basically probable causes the tail that lags the dog here then you know you have a situation where you're encouraging this type type of cross-border police activity and you may have police in Ohio that don't know that an operation is going on and that's extremely dangerous doesn't it make sense though if a crime begins in one jurisdiction and it continues into another are you saying that that the law enforcement officers have to stop not at all your honor because this crime began in Pennsylvania continued for a period of time and then used the word consummate in Ohio correct why can't police from one county follow into another county when the crime begins in one locale and moves to another locale you're saying they need to shut it down right at the border no not at all your honor I guess what I'm saying is that there has to be compliance with the law of the state into which you're going in a nice case well here the fresh pursuit statute it says it does not necessarily imply instant pursuit but pursuit without unreasonable delay that's what the Ohio statute says now I agree with you when you say they didn't present them to a magistrate that's a different point right I mean they admitted a violation of that your honor my only response is that I think that the district court clearly aired in finding fresh or hot pursuit because I've never I can't conceive of a situation which the police are set up in a locale and it's considered fresh pursuit going into into that locale where basically they orchestrated a trap for these guys and the guys fell into the trap and they didn't follow them there they were there ahead of time or at least part of the force was there ahead of time and and it's part of my argument that the district court aired in making that determination of fresh pursuit because the facts didn't warrant it okay thank you the question okay we thank both catholic some interesting issues in this case and it'll take the matter under advisement

. Kaczynski thank you honor whether we're talking about fresh pursuit for hot pursuit I think one thing we we have to agree on we can all agree on the crime has to occur first and in fact the district court on page six of its opinion says quote it is recognized in talking about common law fresh pursuit it is recognized as being satisfied whenever an officer's attempted apprehension of a felony suspect was diligently undertaken after the commission of an offense and continued in a matter that was not significantly interrupted the offense was consummated in Ohio for began in Pennsylvania though it did begin in Pennsylvania but the argument that mr. Everhart made about there being no reaction time I differ on what the record shows there there was enough time for the police to get in position in Ohio right there is at least 15 minutes or something right right it depends on what relative time span we're using but initially it was supposed to occur within Pennsylvania it was it was but six days earlier they had the same situation where Grannison wanted to move it to Ohio and it was entirely predictable and his car during the whole operation was being was under aerial surveillance in fact one of the troopers passed up one of the defendants on the way into Ohio after they all got the call okay we're going back to the to mazerio high up so it wasn't as though were last minute thing the problem that I have in terms of policy is that if the court accepts the government argument that basically probable causes the tail that lags the dog here then you know you have a situation where you're encouraging this type type of cross-border police activity and you may have police in Ohio that don't know that an operation is going on and that's extremely dangerous doesn't it make sense though if a crime begins in one jurisdiction and it continues into another are you saying that that the law enforcement officers have to stop not at all your honor because this crime began in Pennsylvania continued for a period of time and then used the word consummate in Ohio correct why can't police from one county follow into another county when the crime begins in one locale and moves to another locale you're saying they need to shut it down right at the border no not at all your honor I guess what I'm saying is that there has to be compliance with the law of the state into which you're going in a nice case well here the fresh pursuit statute it says it does not necessarily imply instant pursuit but pursuit without unreasonable delay that's what the Ohio statute says now I agree with you when you say they didn't present them to a magistrate that's a different point right I mean they admitted a violation of that your honor my only response is that I think that the district court clearly aired in finding fresh or hot pursuit because I've never I can't conceive of a situation which the police are set up in a locale and it's considered fresh pursuit going into into that locale where basically they orchestrated a trap for these guys and the guys fell into the trap and they didn't follow them there they were there ahead of time or at least part of the force was there ahead of time and and it's part of my argument that the district court aired in making that determination of fresh pursuit because the facts didn't warrant it okay thank you the question okay we thank both catholic some interesting issues in this case and it'll take the matter under advisement

Good afternoon everyone. We will call the first case. United States of America versus James R. Set. Mr. Kaczynski. Thank you Your Honor. May I please the court? Good afternoon Your Honor. My name is William Kaczynski and I represent the appellant James Set in this case. I would ask to reserve three minutes for the court. Thank you Your Honor. Your Honor, the first issue before the court this afternoon is whether Mr. Set warrantless arrest in Sido, Ohio by state and local Pennsylvania police who admittedly had no legal police authority outside of Pennsylvania violated his Fourth Amendment rights. The facts very briefly because I know the court is aware of them was that Mr. Set was indicted on three counts one conspiracy to distribute crack cocaine the first was conspiracy the second count had to do with a control purchase that took place on April 21st of06 and the second was a by bust that's the third count was a by bust that took place on April 27th of06 that's the one that's that issue in our first matter and that is the one that took place outside of Pennsylvania and inside Ohio in its opinion the district court correctly found that the arresting officers had violated Ohio law the judge found that that the fresh pursuit statutes at Fourth by Ohio was violated because the police came in and did not honor the required arresting the person taking the before Ohio magistrate. Mr. Schensky in the district court you complain that the arrest was illegal because the state police did not have authority under Pennsylvania law to arrest Mr. Set in Ohio is that correct? That's correct you're on it. Okay and and that is based primarily upon two cases that the that the district court recognized which I I commend to this court for for their reasoning although they're not binding of course on this court that is commonwealth versus said Vary and commonwealth versus Schaeffer. Savari was the Supreme Court case Pennsylvania Supreme Court case in which a gentleman was driving into Delaware and a Pennsylvania state trooper followed him and eventually arrested him for DUI and brought him back to Pennsylvania without taking him before Delaware authorities. In that case the Pennsylvania Supreme Court said that suppression was required because the fact that this was a necessary as a demonstration of comedy to vindicate Delaware sovereignty and to ensure future compliance with Delaware law and to safeguard the individual right to be free from unlawful seizures. Commonwealth versus Schaeffer is an identical case except for the facts are that in that case the defendant went into New York and the trooper brought him back without any due process and there I would ask the court to consider the superior court's reasoning which I think was very succinctly put. The troopers authority to arrest in New York comes solely from the New York statute which is similar to the one we have in Ohio the Tierhead issue. Therefore the trooper had a conditional grant of authority subject to final validation by the New York criminal courts and that validation meant that you had to go through the procedure. I've taken him before a local magistrate and given him the opportunity contest it and have bail but if not validated the superior court in Schaeffer said the arrest is void ab initio and that's without legal authority. So Judge Fisher the ESIM saying that this relies upon a violation of state law but it's different than the normal cases that come before the court and it's certainly distinct from the case of Virginia versus Moore that the government asserts says that just because it's a state law violation to bad there's no Fourth Amendment violation and our position is that under the unusual and unique circumstances here where we have extra jurisdictional arrest that in fact the analysis should be that there is a violation and that therefore this arrest should have been suppressed. A violation of what law? Which law are you now hanging your hat on? That was I guess the purpose of my original question is it's below you you said it's illegal under Pennsylvania law but your brief seems to alleged it was illegal because he wasn't taken before magistrate you know Ohio and therefore we'll legal under a high law. I think under Ohio Pennsylvania and federal law Ohio the statute Pennsylvania both of the cases that I cited held that that that that Pennsylvania law requires suppression and federal law I would argue the Fourth Amendment and very specifically your honor and I don't mean to quote but it's only two sentences our argument relies upon the following the concept of reasonableness embodied in the Fourth Amendment logically presupposes an exercise of lawful authority by a police officer when a law enforcement official acts beyond his or her jurisdiction the resulting deprivation of liberty is just as unreasonable as an arrest without probable cause and that language comes from the cases I've cited in my brief foster Simon from the DC Circuit at well Ross V. Neff from the 10th Circuit all of those were decided before Virginia be more were they not they were your honor and the way we have a violation of a statute in Virginia versus more do we not you did but it was just a violation of whether a police officer should arrest someone or whether he should write a citation and nothing to do with principles of comedy sovereignty a prerogative of a sovereign state and I think that takes it to a different level the government I asked the court to be very cautious with the government's argument because the government as I read its brief is asking the court and again I take the liberty of quoting one sentence it is I understand the government's position it's based solely on probable cause the government says on page 17 the determination of whether a Fourth Amendment violation has occurred requires application of the probable cost standard to the facts as presented to the district court in other words the reasonableness of the rest is dependent upon the existence of probable cause so in other words if there's no probable if there's probable cause to arrest of nothing else matters well I think that argument is severely mistaken and here's what in this kind of a case first of all as a 10th circuit has succinctly noted avenues to extended jurisdiction must come from the legislature not the courts second the the government's analysis is resolved oriented under these circumstances I can't ever imagine any extraterritorial by bus where there's not going to be probable cause because by definition the police are on the scene and they're orchestrating it if it's a bypass just because there's probable cause doesn't mean that it's if so facto reasonable there could be other factors that make it unreasonable right you're exactly right you're on or that's my backup argument if the court does not accept my per se argument then I would submit to the court rather than swinging to the government's argument that if there's probable cause forget any other analysis I would ask the court to consider the totality of the circumstances and I found that best because there don't seem to be a lot of circumstances talking about this I found it best articulated in United States versus Atwell which I've cited in my brief and in Atwell talking about an an inter jurisdictional type of an infraction the court looked at nine different factors and and I like to go if I could very briefly through those because only two of those factors argue for reasonableness in this case number one is probable cause we can see that number two the degree of police compliance with state law here there was none three the fact that the police are acting between political subdivisions of the same state well that's not that's not applicable here it's much more grievous here because the crossing state lines to engage in the activity number four presence of negligence and circumstances there were none here number five location where the where the crime occurred it occurred in Pennsylvania I suppose that factor weighs toward reasonableness but I'm not sure six officers knowledge is without authority and I think the record and I've indicated in my brief shows at best willful blindness on the part of these officers they didn't care they didn't ask they were with Pennsylvania state troopers were the ones that testified at discretion hearing but they were with four or five officers from Sharon Pennsylvania as judges Hartman and Fisher and Adelaide Lino Sharon is right on the border these are local officers and to to imagine that local officers don't know that a town a town an actual town of mazery is not in Pennsylvania to me it just is clearly erroneous to to the inferential leave is not justified well even if you want on this suppression issue there's still enough evidence to convict on the other two cons I agree I agree runner you're exact the right this is gonna go toward mitigation of sentence maybe ultimate what do you want to spend any of your time on the sentencing arguments that you made yes sir if I might very briefly mr. said submits at the court to recognize sentencing and trapment or manipulation as a basis for sentencing mitigation and the rationale for my request by the way what what is this concept of mitigation relief which you have you're on our foot before the court I can't find that I can find the departure I can find variance but I can't find this term mitigation relief where does it fit in your owner I guess it really is a weasel word I read vampire nation very carefully but I'm still kind of confused as between variance and departure and so forth so mitigation relief is my term for everything but that but although I did discuss the variance versus which one which one are you really asking for two two different things you know and they are two different things right right so so what how do you I am asking for I am asking for variance under 3553 a okay you're on and and what I like to distinguish if I can is sentencing and trapment versus sentencing factor manipulation because the government doesn't seem to believe in the latter but I set forth cases that they're distinct and the reason it's important for me to make this point is because I think Mr. Set has an argument on both of these this is a very unusual case and normally the court with respect to reasonable I know what my burden is and it's heavy but sentencing a trap and focuses on predisposition and it deals with you know where you have an actor who's predisposed to commit a lesser offense but the government entraps them into committing a greater offense whereas sentencing factor factor manipulation is where the government stretches out an investigation to increase the sentence I think we have both here because the government addressed the first in its brief but it didn't address the second and my argument on the second is very simple there was absolutely no evidence in the record to show any investigative purpose whatsoever in making that second by the first by I submit the trooper was disappointed because it didn't hit 50 grams which automatically kicks it up to 10 years and that's why there was a second now that's not what it doesn't come out explicitly any evidence but I think that it's a fair inference so I think Mr. Set for reasons I stated in that sentencing a trapman argument if you weigh the evidence the only thing weighing against him was his statements that he could deliver this everything else 49 years of no drug sales argue the other way and for that reason I think the court clearly aired okay wait a minute don't say that quite you're stable you say there's nothing else in the way don't we have an express finding by a fact by the district court that he was not that he was predisposed absolutely you're on that's correct but the only fact that I agree with the jury you argued in trapment to the jury and I agree with the jury that you were predisposed now what are we gonna do about it what's the review of that clear area runner but but I would just urge you court to consider the fact that there's nothing to to back up the judges finding other than he the statements of Mr. Set which I submit repuffery if you if you look at all the evidence to the contrary 49 years the guy has never been arrested before for drug dealing he's a he's a crack user and you had three government witnesses all of whom said this guy doesn't deal in any quantity he's a crack user he's a crack yet and finally the district court also had a contradictory finding in its statement of the reasons paragraph eight the district court said there's a positive evidence that this guy committed any large-scale drug sales in the past so I think the court aired on that I think we'll have a back on our bottle Mr. Everhart they please the current Robert Everhart assistant United States attorney for the government as the Apollee in this case this was a case about fresh pursuit and contrary to my colleague's argument I think what Mr. Set pursuit did you say fresh pursuit Ohio law permits a Pennsylvania police officer to make an arrest when that arrest follows fresh pursuit what essentially Mr. Set is arguing and is arguing before this court is that he was not promptly arraigned in the state of Ohio two cases that are being argued to this court one the Pennsylvania Supreme Court decision and said Vary well before we leave the fresh pursuit pursuit issue how can something how can you describe this as a fresh pursuit which involves urgency less somebody escaped when this is a situation involving a sting over which the police have complete control and also a situation where there's no reason to believe that both that everybody involved was not going to go back home to where they live in Pennsylvania and indeed your honor the court found and the record supports that the police officers thought they were in Pennsylvania when they made the arrest and that was a reasonable determination by the court and based on the evidence and the record a reasonable finding of fact the troopers thought they were in Pennsylvania there was a lot of argument in the district court in the motion to suppress over where the take down occurred they were not on a highway they were in a parking lot the state trooper answered to the question about how this is a I'm going to get to that it is it is fresh person it couldn't be fresher in my view because the crime was ongoing it was an attempt to sell crack cocaine to undercover police officers that was initiated in Pennsylvania and the record actually establishes that mr. said who was bragging on the recorded tape conversations about how many deals he had done he's done small deals big deals on the day of the proposed sale in Pennsylvania which was supposed to occur at the Shinango mall which was about a mile or two inside Pennsylvania he all of a sudden changes and says it's going to occur the way the prior sale occurred on six days earlier so the pursuit occurs because mr. said and mr. Granison who is really the the in the eye of the police officer the reason for the second sale goes into Ohio to get the crack cocaine from mr. Granison Granison and mr. said come back toward Pennsylvania and are stopped because the state troopers believe they were at that point in Pennsylvania had crossed over the border so there's a reasonable mistake by the officers here but even if their mistake is made the Ohio statute permits the arrest to occur and the reality is the sad very case which is what is relied upon here there was no fourth amendment issue the fourth amendment was not raised in the Pennsylvania Supreme Court or in the lower court and in fact professor Lafe the Fave has said the sad very cases a very minority view an appearance issue which is really the issue in sad vary is an issue that involved does not involve a fundamental right especially where the defendant receives a prompt appearance as he did in this case in the state where he was returned in Pennsylvania so there's no violation of anything even a McNabb Mallory rule application but isn't there at least a violation here of Ohio law only that part of Ohio law with regard to appearance but that isn't it nevertheless it's a violation of law I readily accept that there's a violation of Ohio law on its face the first circuit the fourth circuit the eighth circuit the ninth circuit the tenth circuit all read Virginia versus more the way the government argues in this case which says essentially that a violation of state law does not automatically raise a reasonableness or a fourth amendment issue more was decided on April 23rd 2008 the suppression hearing in this case occurred on March 6th of 2008 since the decision in Virginia versus more and I found a 28J letter to advise the court of a few additional cases that have come to the government's attention Virginia versus more has found peace in the Fourth Amendment arena as an appropriate analysis of when under what circumstances the possibility of a violation of state law may be a consideration in determining whether or not there was a Fourth Amendment violation I would point out that the tenth circuit in a case called Gonzalez has found that only when the constitutional test that issue requires an examination of the pertinent state law or interests does it become involved in the calculation of whether or not it's a reasonable search or seizure under the Fourth Amendment and the examples that were given by the tenth circuit were inventory searches which the Supreme Court has particularly pointed out require an application of a state law procedure with regard to inventorying a vehicle or other property subject to the inventory statute and I would point out that other than exceptional circumstances and no case which has applied Virginia versus more in a way that denigrates the primary requirement of the Fourth Amendment that is probable cause requirement I would point out a few additional facts that are important said argues that the troopers had time to respond and that is totally belied by the record and in fact the district court found that almost immediately the police officer had to respond to a change in plan so there was this argument that the police had plenty of time to anticipate the possibility of being in Ohio at the time of the arrest or the takedown that's belied by the record I suggest in fact the district court found that there was a sudden change of plan the shanango valet the shanango mall was two miles inside of the of the Pennsylvania border and I would suggest that that in and of itself was reason for the police to believe that there was we're going to be a Pennsylvania state case that would be based upon unrest in Pennsylvania I would also point out that this court has already on several occasions seen that a violation of state criminal procedural rules and US versus pre-mo which admittedly is non-presidential but it reflects the fact that a rule a procedure with regard to leaving an inventory at the time of a execution of a search warrant a violation of that state criminal rule procedure was viewed by this court is not raising a fourth amendment issue the reality is the district court was presented with a fourth amendment argument and now we have an argument of state law based on Pennsylvania Supreme Court decision pre-Veginia versus more and I I would recognize that Pennsylvania law as we are here today remains the the sad of sad very case however in light of Virginia versus more I would suggest that the Pennsylvania Supreme Court may have second thoughts mr. Eberhart on the totality of the circumstances test if that's the analysis that is to be used the mr. Seds council argues that they win under that test that the circumstances favor said as opposed to favoring the government you want to comment on that if the court would apply a totality the circumstance to the totality of the facts of this case what our clear is that the police officers were acting not only in good faith but in reasonable good faith based on the fact they believe they were in Pennsylvania they did not act in any way as if they were believed they were in Ohio so there is no flagrant violation of Ohio law there was no indication that the police officers were aware that they were in Ohio and that they ignored that the reality is they thought they were in Pennsylvania in fact one of the troopers who test the two troopers who testified one the supervisor the other the the undercover police officer both felt that they were in in Pennsylvania in particular the supervising trooper indicates that he had been involved in and state varteff situations and that he was well aware of the need to be inside Pennsylvania when engaging in that kind of investigative activity I would suggest that the investigative purpose here in reality was to get to granderson who mr. Grandison was the source it was his potential criminal activity and responsibility that was of importance to the the police in this case and examining the totality of the circumstance I would suggest that probable causes number one without any doubt and there can be no doubt that there was probable causes even conceded by mr. said in this case I would also point out to the court that the argument with regard to the violation of the of the Ohio statute about being the arraignment or appearance statute was not raised in this court until the reply brief and the argument that is being made here with regard to violation of Ohio law which was raised in the district court was focusing on a fourth amendment violation and not upon a violation of state law and in some I would suggest to the court that on the issue of the suppression and the denial of the motion to suppress the district court had full inadequate factual basis for concluding that this was a fresh pursuit case court makes very clear that hot pursuit is different than fresh pursuit and that fresh pursuit does not require the kind of wild police chase that we met in vision it requires only that there be a continuous pursuit following the engagement in criminal activity. Do you want to comment on sensing and trapped but in the context of this case? Well I think briefly the response to that argument is that the district court heard all of this mr. said testified at trial and I spoke to trial counsel for the government about this just last week there was a question of whether or not the district court was going to charge the jury with regard to entrapment but the court did and the entrapment defense was presented to the jury the jury rejected it and the district court not only knew that but also heard the tapes of all of mr. said's conversations with the confidential informant and mr. said's argument that he was entrapped and that he was not predisposed is certainly belied by the record in this case there are certain occasions where mr. said in talking to the confidential informant says I've done small deals I've done big deals I can do any side deal in fact said is the one who tried to get to stay trooper to cough up ten thousand dollars for a bigger deal and the police officer said no I can't do that big of a deal I'm going to do the five thousand dollar deal so this argument that there is some predisposition there's lack of predisposition that indeed this is more than puffery this is a attempt to sell on the basis of an argument that he is ready and willing to engage in criminal activity involving as much as ten thousand dollars worth the crack cocaine and I think the investigative purpose here is fairly clear granison received a five k he was very much of an asset eventually to the government and he was the focus of this particular investigation and mr. said was one who prompted the investigation to go to a bigger and bigger sale and I don't think that whatever the terms are and I'm a little confused myself by the entrapment argument whether it's a variance whether it's a a a request for a departure the district court had a full inadequate basis for rejecting it in the in the record and the in the facts of the case if there are no other questions I'll rely on the group on other not thank you mr. Everett mr. Kaczynski thank you honor whether we're talking about fresh pursuit for hot pursuit I think one thing we we have to agree on we can all agree on the crime has to occur first and in fact the district court on page six of its opinion says quote it is recognized in talking about common law fresh pursuit it is recognized as being satisfied whenever an officer's attempted apprehension of a felony suspect was diligently undertaken after the commission of an offense and continued in a matter that was not significantly interrupted the offense was consummated in Ohio for began in Pennsylvania though it did begin in Pennsylvania but the argument that mr. Everhart made about there being no reaction time I differ on what the record shows there there was enough time for the police to get in position in Ohio right there is at least 15 minutes or something right right it depends on what relative time span we're using but initially it was supposed to occur within Pennsylvania it was it was but six days earlier they had the same situation where Grannison wanted to move it to Ohio and it was entirely predictable and his car during the whole operation was being was under aerial surveillance in fact one of the troopers passed up one of the defendants on the way into Ohio after they all got the call okay we're going back to the to mazerio high up so it wasn't as though were last minute thing the problem that I have in terms of policy is that if the court accepts the government argument that basically probable causes the tail that lags the dog here then you know you have a situation where you're encouraging this type type of cross-border police activity and you may have police in Ohio that don't know that an operation is going on and that's extremely dangerous doesn't it make sense though if a crime begins in one jurisdiction and it continues into another are you saying that that the law enforcement officers have to stop not at all your honor because this crime began in Pennsylvania continued for a period of time and then used the word consummate in Ohio correct why can't police from one county follow into another county when the crime begins in one locale and moves to another locale you're saying they need to shut it down right at the border no not at all your honor I guess what I'm saying is that there has to be compliance with the law of the state into which you're going in a nice case well here the fresh pursuit statute it says it does not necessarily imply instant pursuit but pursuit without unreasonable delay that's what the Ohio statute says now I agree with you when you say they didn't present them to a magistrate that's a different point right I mean they admitted a violation of that your honor my only response is that I think that the district court clearly aired in finding fresh or hot pursuit because I've never I can't conceive of a situation which the police are set up in a locale and it's considered fresh pursuit going into into that locale where basically they orchestrated a trap for these guys and the guys fell into the trap and they didn't follow them there they were there ahead of time or at least part of the force was there ahead of time and and it's part of my argument that the district court aired in making that determination of fresh pursuit because the facts didn't warrant it okay thank you the question okay we thank both catholic some interesting issues in this case and it'll take the matter under advisement

Good afternoon everyone. We will call the first case. United States of America versus James R. Set. Mr. Kaczynski. Thank you Your Honor. May I please the court? Good afternoon Your Honor. My name is William Kaczynski and I represent the appellant James Set in this case. I would ask to reserve three minutes for the court. Thank you Your Honor. Your Honor, the first issue before the court this afternoon is whether Mr. Set warrantless arrest in Sido, Ohio by state and local Pennsylvania police who admittedly had no legal police authority outside of Pennsylvania violated his Fourth Amendment rights. The facts very briefly because I know the court is aware of them was that Mr. Set was indicted on three counts one conspiracy to distribute crack cocaine the first was conspiracy the second count had to do with a control purchase that took place on April 21st of06 and the second was a by bust that's the third count was a by bust that took place on April 27th of06 that's the one that's that issue in our first matter and that is the one that took place outside of Pennsylvania and inside Ohio in its opinion the district court correctly found that the arresting officers had violated Ohio law the judge found that that the fresh pursuit statutes at Fourth by Ohio was violated because the police came in and did not honor the required arresting the person taking the before Ohio magistrate. Mr. Schensky in the district court you complain that the arrest was illegal because the state police did not have authority under Pennsylvania law to arrest Mr. Set in Ohio is that correct? That's correct you're on it. Okay and and that is based primarily upon two cases that the that the district court recognized which I I commend to this court for for their reasoning although they're not binding of course on this court that is commonwealth versus said Vary and commonwealth versus Schaeffer. Savari was the Supreme Court case Pennsylvania Supreme Court case in which a gentleman was driving into Delaware and a Pennsylvania state trooper followed him and eventually arrested him for DUI and brought him back to Pennsylvania without taking him before Delaware authorities. In that case the Pennsylvania Supreme Court said that suppression was required because the fact that this was a necessary as a demonstration of comedy to vindicate Delaware sovereignty and to ensure future compliance with Delaware law and to safeguard the individual right to be free from unlawful seizures. Commonwealth versus Schaeffer is an identical case except for the facts are that in that case the defendant went into New York and the trooper brought him back without any due process and there I would ask the court to consider the superior court's reasoning which I think was very succinctly put. The troopers authority to arrest in New York comes solely from the New York statute which is similar to the one we have in Ohio the Tierhead issue. Therefore the trooper had a conditional grant of authority subject to final validation by the New York criminal courts and that validation meant that you had to go through the procedure. I've taken him before a local magistrate and given him the opportunity contest it and have bail but if not validated the superior court in Schaeffer said the arrest is void ab initio and that's without legal authority. So Judge Fisher the ESIM saying that this relies upon a violation of state law but it's different than the normal cases that come before the court and it's certainly distinct from the case of Virginia versus Moore that the government asserts says that just because it's a state law violation to bad there's no Fourth Amendment violation and our position is that under the unusual and unique circumstances here where we have extra jurisdictional arrest that in fact the analysis should be that there is a violation and that therefore this arrest should have been suppressed. A violation of what law? Which law are you now hanging your hat on? That was I guess the purpose of my original question is it's below you you said it's illegal under Pennsylvania law but your brief seems to alleged it was illegal because he wasn't taken before magistrate you know Ohio and therefore we'll legal under a high law. I think under Ohio Pennsylvania and federal law Ohio the statute Pennsylvania both of the cases that I cited held that that that that Pennsylvania law requires suppression and federal law I would argue the Fourth Amendment and very specifically your honor and I don't mean to quote but it's only two sentences our argument relies upon the following the concept of reasonableness embodied in the Fourth Amendment logically presupposes an exercise of lawful authority by a police officer when a law enforcement official acts beyond his or her jurisdiction the resulting deprivation of liberty is just as unreasonable as an arrest without probable cause and that language comes from the cases I've cited in my brief foster Simon from the DC Circuit at well Ross V. Neff from the 10th Circuit all of those were decided before Virginia be more were they not they were your honor and the way we have a violation of a statute in Virginia versus more do we not you did but it was just a violation of whether a police officer should arrest someone or whether he should write a citation and nothing to do with principles of comedy sovereignty a prerogative of a sovereign state and I think that takes it to a different level the government I asked the court to be very cautious with the government's argument because the government as I read its brief is asking the court and again I take the liberty of quoting one sentence it is I understand the government's position it's based solely on probable cause the government says on page 17 the determination of whether a Fourth Amendment violation has occurred requires application of the probable cost standard to the facts as presented to the district court in other words the reasonableness of the rest is dependent upon the existence of probable cause so in other words if there's no probable if there's probable cause to arrest of nothing else matters well I think that argument is severely mistaken and here's what in this kind of a case first of all as a 10th circuit has succinctly noted avenues to extended jurisdiction must come from the legislature not the courts second the the government's analysis is resolved oriented under these circumstances I can't ever imagine any extraterritorial by bus where there's not going to be probable cause because by definition the police are on the scene and they're orchestrating it if it's a bypass just because there's probable cause doesn't mean that it's if so facto reasonable there could be other factors that make it unreasonable right you're exactly right you're on or that's my backup argument if the court does not accept my per se argument then I would submit to the court rather than swinging to the government's argument that if there's probable cause forget any other analysis I would ask the court to consider the totality of the circumstances and I found that best because there don't seem to be a lot of circumstances talking about this I found it best articulated in United States versus Atwell which I've cited in my brief and in Atwell talking about an an inter jurisdictional type of an infraction the court looked at nine different factors and and I like to go if I could very briefly through those because only two of those factors argue for reasonableness in this case number one is probable cause we can see that number two the degree of police compliance with state law here there was none three the fact that the police are acting between political subdivisions of the same state well that's not that's not applicable here it's much more grievous here because the crossing state lines to engage in the activity number four presence of negligence and circumstances there were none here number five location where the where the crime occurred it occurred in Pennsylvania I suppose that factor weighs toward reasonableness but I'm not sure six officers knowledge is without authority and I think the record and I've indicated in my brief shows at best willful blindness on the part of these officers they didn't care they didn't ask they were with Pennsylvania state troopers were the ones that testified at discretion hearing but they were with four or five officers from Sharon Pennsylvania as judges Hartman and Fisher and Adelaide Lino Sharon is right on the border these are local officers and to to imagine that local officers don't know that a town a town an actual town of mazery is not in Pennsylvania to me it just is clearly erroneous to to the inferential leave is not justified well even if you want on this suppression issue there's still enough evidence to convict on the other two cons I agree I agree runner you're exact the right this is gonna go toward mitigation of sentence maybe ultimate what do you want to spend any of your time on the sentencing arguments that you made yes sir if I might very briefly mr. said submits at the court to recognize sentencing and trapment or manipulation as a basis for sentencing mitigation and the rationale for my request by the way what what is this concept of mitigation relief which you have you're on our foot before the court I can't find that I can find the departure I can find variance but I can't find this term mitigation relief where does it fit in your owner I guess it really is a weasel word I read vampire nation very carefully but I'm still kind of confused as between variance and departure and so forth so mitigation relief is my term for everything but that but although I did discuss the variance versus which one which one are you really asking for two two different things you know and they are two different things right right so so what how do you I am asking for I am asking for variance under 3553 a okay you're on and and what I like to distinguish if I can is sentencing and trapment versus sentencing factor manipulation because the government doesn't seem to believe in the latter but I set forth cases that they're distinct and the reason it's important for me to make this point is because I think Mr. Set has an argument on both of these this is a very unusual case and normally the court with respect to reasonable I know what my burden is and it's heavy but sentencing a trap and focuses on predisposition and it deals with you know where you have an actor who's predisposed to commit a lesser offense but the government entraps them into committing a greater offense whereas sentencing factor factor manipulation is where the government stretches out an investigation to increase the sentence I think we have both here because the government addressed the first in its brief but it didn't address the second and my argument on the second is very simple there was absolutely no evidence in the record to show any investigative purpose whatsoever in making that second by the first by I submit the trooper was disappointed because it didn't hit 50 grams which automatically kicks it up to 10 years and that's why there was a second now that's not what it doesn't come out explicitly any evidence but I think that it's a fair inference so I think Mr. Set for reasons I stated in that sentencing a trapman argument if you weigh the evidence the only thing weighing against him was his statements that he could deliver this everything else 49 years of no drug sales argue the other way and for that reason I think the court clearly aired okay wait a minute don't say that quite you're stable you say there's nothing else in the way don't we have an express finding by a fact by the district court that he was not that he was predisposed absolutely you're on that's correct but the only fact that I agree with the jury you argued in trapment to the jury and I agree with the jury that you were predisposed now what are we gonna do about it what's the review of that clear area runner but but I would just urge you court to consider the fact that there's nothing to to back up the judges finding other than he the statements of Mr. Set which I submit repuffery if you if you look at all the evidence to the contrary 49 years the guy has never been arrested before for drug dealing he's a he's a crack user and you had three government witnesses all of whom said this guy doesn't deal in any quantity he's a crack user he's a crack yet and finally the district court also had a contradictory finding in its statement of the reasons paragraph eight the district court said there's a positive evidence that this guy committed any large-scale drug sales in the past so I think the court aired on that I think we'll have a back on our bottle Mr. Everhart they please the current Robert Everhart assistant United States attorney for the government as the Apollee in this case this was a case about fresh pursuit and contrary to my colleague's argument I think what Mr. Set pursuit did you say fresh pursuit Ohio law permits a Pennsylvania police officer to make an arrest when that arrest follows fresh pursuit what essentially Mr. Set is arguing and is arguing before this court is that he was not promptly arraigned in the state of Ohio two cases that are being argued to this court one the Pennsylvania Supreme Court decision and said Vary well before we leave the fresh pursuit pursuit issue how can something how can you describe this as a fresh pursuit which involves urgency less somebody escaped when this is a situation involving a sting over which the police have complete control and also a situation where there's no reason to believe that both that everybody involved was not going to go back home to where they live in Pennsylvania and indeed your honor the court found and the record supports that the police officers thought they were in Pennsylvania when they made the arrest and that was a reasonable determination by the court and based on the evidence and the record a reasonable finding of fact the troopers thought they were in Pennsylvania there was a lot of argument in the district court in the motion to suppress over where the take down occurred they were not on a highway they were in a parking lot the state trooper answered to the question about how this is a I'm going to get to that it is it is fresh person it couldn't be fresher in my view because the crime was ongoing it was an attempt to sell crack cocaine to undercover police officers that was initiated in Pennsylvania and the record actually establishes that mr. said who was bragging on the recorded tape conversations about how many deals he had done he's done small deals big deals on the day of the proposed sale in Pennsylvania which was supposed to occur at the Shinango mall which was about a mile or two inside Pennsylvania he all of a sudden changes and says it's going to occur the way the prior sale occurred on six days earlier so the pursuit occurs because mr. said and mr. Granison who is really the the in the eye of the police officer the reason for the second sale goes into Ohio to get the crack cocaine from mr. Granison Granison and mr. said come back toward Pennsylvania and are stopped because the state troopers believe they were at that point in Pennsylvania had crossed over the border so there's a reasonable mistake by the officers here but even if their mistake is made the Ohio statute permits the arrest to occur and the reality is the sad very case which is what is relied upon here there was no fourth amendment issue the fourth amendment was not raised in the Pennsylvania Supreme Court or in the lower court and in fact professor Lafe the Fave has said the sad very cases a very minority view an appearance issue which is really the issue in sad vary is an issue that involved does not involve a fundamental right especially where the defendant receives a prompt appearance as he did in this case in the state where he was returned in Pennsylvania so there's no violation of anything even a McNabb Mallory rule application but isn't there at least a violation here of Ohio law only that part of Ohio law with regard to appearance but that isn't it nevertheless it's a violation of law I readily accept that there's a violation of Ohio law on its face the first circuit the fourth circuit the eighth circuit the ninth circuit the tenth circuit all read Virginia versus more the way the government argues in this case which says essentially that a violation of state law does not automatically raise a reasonableness or a fourth amendment issue more was decided on April 23rd 2008 the suppression hearing in this case occurred on March 6th of 2008 since the decision in Virginia versus more and I found a 28J letter to advise the court of a few additional cases that have come to the government's attention Virginia versus more has found peace in the Fourth Amendment arena as an appropriate analysis of when under what circumstances the possibility of a violation of state law may be a consideration in determining whether or not there was a Fourth Amendment violation I would point out that the tenth circuit in a case called Gonzalez has found that only when the constitutional test that issue requires an examination of the pertinent state law or interests does it become involved in the calculation of whether or not it's a reasonable search or seizure under the Fourth Amendment and the examples that were given by the tenth circuit were inventory searches which the Supreme Court has particularly pointed out require an application of a state law procedure with regard to inventorying a vehicle or other property subject to the inventory statute and I would point out that other than exceptional circumstances and no case which has applied Virginia versus more in a way that denigrates the primary requirement of the Fourth Amendment that is probable cause requirement I would point out a few additional facts that are important said argues that the troopers had time to respond and that is totally belied by the record and in fact the district court found that almost immediately the police officer had to respond to a change in plan so there was this argument that the police had plenty of time to anticipate the possibility of being in Ohio at the time of the arrest or the takedown that's belied by the record I suggest in fact the district court found that there was a sudden change of plan the shanango valet the shanango mall was two miles inside of the of the Pennsylvania border and I would suggest that that in and of itself was reason for the police to believe that there was we're going to be a Pennsylvania state case that would be based upon unrest in Pennsylvania I would also point out that this court has already on several occasions seen that a violation of state criminal procedural rules and US versus pre-mo which admittedly is non-presidential but it reflects the fact that a rule a procedure with regard to leaving an inventory at the time of a execution of a search warrant a violation of that state criminal rule procedure was viewed by this court is not raising a fourth amendment issue the reality is the district court was presented with a fourth amendment argument and now we have an argument of state law based on Pennsylvania Supreme Court decision pre-Veginia versus more and I I would recognize that Pennsylvania law as we are here today remains the the sad of sad very case however in light of Virginia versus more I would suggest that the Pennsylvania Supreme Court may have second thoughts mr. Eberhart on the totality of the circumstances test if that's the analysis that is to be used the mr. Seds council argues that they win under that test that the circumstances favor said as opposed to favoring the government you want to comment on that if the court would apply a totality the circumstance to the totality of the facts of this case what our clear is that the police officers were acting not only in good faith but in reasonable good faith based on the fact they believe they were in Pennsylvania they did not act in any way as if they were believed they were in Ohio so there is no flagrant violation of Ohio law there was no indication that the police officers were aware that they were in Ohio and that they ignored that the reality is they thought they were in Pennsylvania in fact one of the troopers who test the two troopers who testified one the supervisor the other the the undercover police officer both felt that they were in in Pennsylvania in particular the supervising trooper indicates that he had been involved in and state varteff situations and that he was well aware of the need to be inside Pennsylvania when engaging in that kind of investigative activity I would suggest that the investigative purpose here in reality was to get to granderson who mr. Grandison was the source it was his potential criminal activity and responsibility that was of importance to the the police in this case and examining the totality of the circumstance I would suggest that probable causes number one without any doubt and there can be no doubt that there was probable causes even conceded by mr. said in this case I would also point out to the court that the argument with regard to the violation of the of the Ohio statute about being the arraignment or appearance statute was not raised in this court until the reply brief and the argument that is being made here with regard to violation of Ohio law which was raised in the district court was focusing on a fourth amendment violation and not upon a violation of state law and in some I would suggest to the court that on the issue of the suppression and the denial of the motion to suppress the district court had full inadequate factual basis for concluding that this was a fresh pursuit case court makes very clear that hot pursuit is different than fresh pursuit and that fresh pursuit does not require the kind of wild police chase that we met in vision it requires only that there be a continuous pursuit following the engagement in criminal activity. Do you want to comment on sensing and trapped but in the context of this case? Well I think briefly the response to that argument is that the district court heard all of this mr. said testified at trial and I spoke to trial counsel for the government about this just last week there was a question of whether or not the district court was going to charge the jury with regard to entrapment but the court did and the entrapment defense was presented to the jury the jury rejected it and the district court not only knew that but also heard the tapes of all of mr. said's conversations with the confidential informant and mr. said's argument that he was entrapped and that he was not predisposed is certainly belied by the record in this case there are certain occasions where mr. said in talking to the confidential informant says I've done small deals I've done big deals I can do any side deal in fact said is the one who tried to get to stay trooper to cough up ten thousand dollars for a bigger deal and the police officer said no I can't do that big of a deal I'm going to do the five thousand dollar deal so this argument that there is some predisposition there's lack of predisposition that indeed this is more than puffery this is a attempt to sell on the basis of an argument that he is ready and willing to engage in criminal activity involving as much as ten thousand dollars worth the crack cocaine and I think the investigative purpose here is fairly clear granison received a five k he was very much of an asset eventually to the government and he was the focus of this particular investigation and mr. said was one who prompted the investigation to go to a bigger and bigger sale and I don't think that whatever the terms are and I'm a little confused myself by the entrapment argument whether it's a variance whether it's a a a request for a departure the district court had a full inadequate basis for rejecting it in the in the record and the in the facts of the case if there are no other questions I'll rely on the group on other not thank you mr. Everett mr. Kaczynski thank you honor whether we're talking about fresh pursuit for hot pursuit I think one thing we we have to agree on we can all agree on the crime has to occur first and in fact the district court on page six of its opinion says quote it is recognized in talking about common law fresh pursuit it is recognized as being satisfied whenever an officer's attempted apprehension of a felony suspect was diligently undertaken after the commission of an offense and continued in a matter that was not significantly interrupted the offense was consummated in Ohio for began in Pennsylvania though it did begin in Pennsylvania but the argument that mr. Everhart made about there being no reaction time I differ on what the record shows there there was enough time for the police to get in position in Ohio right there is at least 15 minutes or something right right it depends on what relative time span we're using but initially it was supposed to occur within Pennsylvania it was it was but six days earlier they had the same situation where Grannison wanted to move it to Ohio and it was entirely predictable and his car during the whole operation was being was under aerial surveillance in fact one of the troopers passed up one of the defendants on the way into Ohio after they all got the call okay we're going back to the to mazerio high up so it wasn't as though were last minute thing the problem that I have in terms of policy is that if the court accepts the government argument that basically probable causes the tail that lags the dog here then you know you have a situation where you're encouraging this type type of cross-border police activity and you may have police in Ohio that don't know that an operation is going on and that's extremely dangerous doesn't it make sense though if a crime begins in one jurisdiction and it continues into another are you saying that that the law enforcement officers have to stop not at all your honor because this crime began in Pennsylvania continued for a period of time and then used the word consummate in Ohio correct why can't police from one county follow into another county when the crime begins in one locale and moves to another locale you're saying they need to shut it down right at the border no not at all your honor I guess what I'm saying is that there has to be compliance with the law of the state into which you're going in a nice case well here the fresh pursuit statute it says it does not necessarily imply instant pursuit but pursuit without unreasonable delay that's what the Ohio statute says now I agree with you when you say they didn't present them to a magistrate that's a different point right I mean they admitted a violation of that your honor my only response is that I think that the district court clearly aired in finding fresh or hot pursuit because I've never I can't conceive of a situation which the police are set up in a locale and it's considered fresh pursuit going into into that locale where basically they orchestrated a trap for these guys and the guys fell into the trap and they didn't follow them there they were there ahead of time or at least part of the force was there ahead of time and and it's part of my argument that the district court aired in making that determination of fresh pursuit because the facts didn't warrant it okay thank you the question okay we thank both catholic some interesting issues in this case and it'll take the matter under advisemen