good morning your honour's my name is erin bev harris and i represent the plaintiff appellant in this matter the central issue in this appeal is whether the immediate objective of the suffolk county home verification program is to gather incriminating evidence from sex offenders for potential prosecution for failing to register which is a felony offense under new york correction law one th dashti believe that the record demonstrates that this is in fact the immediate purpose of this program is to is law enforcement and i think the facts that i would point verification your client is required to register and were what these ingredients were we're not going talks but what they are is in fact kopko worst questioning of potentially incriminating questions given the fact that failure to register properly is a felony  offense that the registrant is not providing accurate information in the vast majority of cases the verification will turn out to be accurate it would have been accurate in your client's case and the point of that is so that with this is the legislative decision that members of the community when there's a sex offender living in the neighborhood so that's why it's important to get verified information and you know the fact that there's the possibility that if someone or something else happens there could be criminal consequences the courts have not not been persuaded that that's enough to find that its main purpose criminal prosecution well i think i think it's important to know the nature of these interactions is coercive people are led to believe that they're required to comply with the questioning that's happening as well as the question as to whether a seizure is occurring at the front door which is of course the most protected area in the th amendment was willing to that was the case that is correct she found that there was a material issue of fact that yes she to whether it is about gathering incriminating information wasn't just a follow up when she was refused questions though it was to find whether the addresses were accurate that were on file and over a three year period hundreds of these inquiries occur and only one thousand people were prosecuted so isn't doesn't that show that they were just trying to make sure the people who lived in the county would know where these people were living where the sex offenders were living so the dresses were correct not necessarily to prosecute york where there are nineteen arrests which i think is highly probative of what the immediate purpose of this program actually is out of how many confirmations how many people were visited well there's approximately a one thousand  registration people on the registry in suffolk county and they go you know once a year for some of them and twice a year for others and to get to the point again about how this is really about gathering incriminating information that the phrase that p f amelle uses in a for its determining the success of the program is how many felony leads it generates so that in the st year there are one hundred and seventy three dollars failure to register home address felony leads which i think is highly probative of what the immediate purpose of this program actually was and i think one of the flaws of the district court's opinion was that she failed to note that the a is very closely involved with this program they made sure that the forms that in which this information is gathered could be used for evidentiary purposes and she did not note that we're assuming it is true for the address has provided back what they're going to have to go to a judge in every case and we want to confirm well i i think that the purpose of the warrant requirement is to ensure that people are aware of what the proper scope of an increase is here we have people going to the door my client is a level one doesn't need to report his employment but they asked him about that anyway they went far beyond the scope of what my client is actually required to report to the registry which you ask about  simply compensatory damages for the emotional harm that he and his family experienced as they are not pursuing the injunction aspect of this is over and that's correct your honor we no longer have standing for that as he is no longer on the registry ask any question  program there's no you want probable cause what probable cause to engage in a short detention even on the street you're required to have reasonable suspicion to engage in a short detention this is on the to coerce him to confirm it yes what's going on here is that you can send in your dress you can even come down to the police station and saying what you're addresses but until there's a home  able to do go to the door and ask for information but that's not what's happening here if they want to develop that program from what you're calling off and all these send a letter saying you're required to comply and that's not something the program and this gets to another problematic part of this program which is that the police department actually had a policy of not telling people that they compliance was voluntarily and less people asked repeatedly and  and that it's a public function and here i think that there is a difference between that case because that case which was about public access t v had been since its beginning to have been private operators involved that was my understanding whereas here since the registry was created local law enforcement has been given the task of enforcing that law and i still think that the courts conclusion that parents for megan's law in gauging the public to function applies here and if i could just make one further point about the immediate purpose of this program is the state's burden to show that it's not law enforcement the division of criminal justice services is the agency that in fact maintains the sex offender registry there is nothing in the record that shows how this corrected information actually gets there what we do know is what incriminating information is found within twenty four hours it's sent to the police department for follow up and enforcement and this i think is really very similar to what was going on in ferguson where they they had a lot of will go up verifying the registry laudable goal but you can't do it by unconstitutional means and there how it was improving maternal health and well being was not clear at all from the policy likewise i think here the record is devoid of any information regarding how this corrected stuff gets to the division of seizure occurred the special needs exception to the th amendment weren't requirement applied and in balancing the special need against the plaintiff's privacy in terms of the seizure was reasonable and did not violate the th amendment  yes the reason why this community protection act was passed was because prior to february of two thousand and thirteen parents for megan's law was getting complaints that the sex offender registry was not accurate and there's really no point in having a sex offender registry if it's not an accurate registry so in order to facilitate ensuring that sex offenders were actually at the address is that they claim to be best actress passed and parents for mag entirely different from ferguson where pregnant women went into a hospital to get prenatal care were given your entire without their consent the results of these tests were distributed to the police department and then they faced to provide their al justice their s b to look at them and that's basically it they're there for two to five minutes and they're on their way that's what the testimony was and i would say that this case is more similar to so which where a police police officers have to submit to a breathalyzer test after their weapon is discharged and although it hasn't happened that a police officer actually  prosecuted as a result of the results of the breathalyzer test that doesn't mean it can't happen and that doesn't mean that that's the reason and the primary purpose of that policy it's a similar thing here where the primary purpose is the district court said it was a question of fact and didn't need to be resolved how could there be a question of fact about their given all the undisputed facts about the hernandez letter he's a former police officers exclusively that are performing the sharks they have for example where these people were in plain clothes not in a marked car they go out they do not can talk basically the letter by the way was not for that for the purpose of saying where we're coming to get this information and so you know you better answer these questions we nice to these former police officers when they go to your house i can see how somebody could potentially think that and that's i guess why there is a question of fact as to whether or not that's the case but i just want to note that it does if the purpose of this program was for law enforcement there were two hundred and fifty three referrals that were made to the police department in the st eighteen months of this program and only nineteen arrests were made in the st year alone parents for megan's law conducted two thousand six hundred and forty dollars verification attempts of one hundred and thirty five one thousand three hundred and fifty three sex offenders and only made one hundred and seventy three referrals and the forms that are used on these for these visits when you check off the forms they don't say this person is in violation of a crime they say this person may have failed to register or this person may have violated the registry how could that be used as evidence if you need probable cause after that the b s referrals were made to a police department and then it was up to the police department to then determine whether or not there was probable cause to prosecute and apparently this only occurred in one thousand cases so the primary purpose is clearly not law enforcement the primary purpose is  at that time they knocked on the door his wife was white dancer at the door and he was in the shower she did not ask them to leave  any point in time they waited on the sidewalk in front of the house and mr walk the sidewalk mr jones i think he actually went to his car which was parked on the street retrieved his license which was in his car showed them the license and that was it the nd time the st visit st as you're saying happened without before the letter i believe so i believe there was the the visit than the latter than the nd visit although i could i could be wrong the nd visit was was a knock on the door which later a year later he answered the door same thing happened he went to his car he got his i know that you're helping hesitating a bit so feel free to submit by tomorrow at five o'clock and a letter that you think are programmed to just give us the sequence of events and relying on the record as you think appropriate and then assuming there is no other subject for such a letter will ask opposing counsel to respond or no later than friday for barry twenty one gathering evidence to prosecute crimes they should be fired because there is no way that this information can lead to a probable cause finding to support an arrest warrant it's happened it's the st  well that's still correct it's not the basis for any arrest or any prosecution is to form would be the follow up is testified to by by lieutenant hernandez that if they get it ted and they open a file they go out and then they confirm and instead information that may be used this information that someone may have failed to register is not a crime it's not probable cause or evidence to support a probable cause fin now helpless sixty four what do i see here as far as you're concerned the lissa question is three quarters of the way down to the through the page where the parents of megan's law are the that that do the knocking of the visits check off this information that's the information that they're checking off and then one of them in this particular case was checked may have violated residency restriction back to what i'm trying to bring to the cour other information that you would have to establish just because someone may have failed to register doesn't necessarily mean they committed the crime that can be many reasons that are not criminal as to why the person hasn't registered yet  providing the police with the test as to who may need additional follow up any additional follow up is conducted by the police paying the parents of megan's law is not even notified of the please go back we have no idea if the police any further action on the information provided this is just a st step in trying to comply with the primary purpose of verifying the information somehow i mean i have the sense as i look at th way listen to that parents for megan's law is an integral part of law enforcement functions of suffered county and and is is a state actor of some kind it's certainly an arm of it's designed to be an arm of law enforcement apparatus of suffolk county now it may be that the particular search here is without fault but i don't see how it could be anything other than state action because whether it's a primary purpose and the primary purpose goes back to correct correct you're willing to accept at least the purchase is correct because actors because the decision of of the district court by just judge seibert would be affirmed on the basis of the special to the record is clear that they received the letter prior to the st visit as a result of receiving the letter they called the number at the bottom of the letter which was to the p d and they said do we need to comply with this and they were told use of the word sidewalk there's actually no sidewalk in front of his home he's referring to the walkway in the testimony that goes right up to his front porch and i'd like to be clear that justice scalia again in florida v one hundred dina's notes that the front here right i mean were they supposed to stand there being no sidewalk well they walking i'm just trying to say that they're walking up the his private walkway on to his step yes but what else is there that is what is the can you describe physically what the environment presents yes and in fact there is an external in the home is probably an office property there in the street no that's not actually true there's a yard there's a yard you can walk up the driveway and there's a walkway that goes along the side of his house up to a couple of steps to your care with the yard no problem if they come on from here in the yard well i think that there's a question is whether that's occurred curtilage question but it's clear that they were on his steps of the front porch but but i would like to go back to where it is the critical and well at least for we can assume that the colonel it includes his entire front porch including the steps that these officers were standing on and i just want to go back to this point about the forms being used as evidence perhaps the suffolk county police department was stupid for producing these forms as evidence like my opposing counsel suggests but the officer in charge of this program testified that the forms were created in consultation with the district attorney's office we have cite to this explicitly in the brief so they could be used as evidence and in fact their own thirty six witness testified that they needed to make sure the forms were proper for evidentiary purposes we have the citations in the brief and so it clear that these were used for evidence and therefore bear a lot of resemblance to the case of ferguson and not like the case in lynch and i just want to note as well that just like in this is incriminating evidence it might not be sufficient but that's not what the special needs test is asking for it is incriminating evidence that is going from these private entities to the profits to the police department for for a follow up and enforcement and i just want to note as well despite being explicitly asked we still have no information about how this gets to the division of criminal justice services and so it i just find it hard and what is your  my my theory is that that just demonstrates that the primary purpose is not to correct the registry because that is the entity that maintains the registry and that's your response to council's primary purpose or you're correct and they have not once tried that sent a letter that said these people are authorized so that they do so that others don't you know have their dogs go after them or whatever but that added a sentence that said you do not have to speak to them if you choose not to speak to them a police officer will visit your home i mean are you satisfied with that i'm just trying to figure out how how do they achieve the legitimate verification goal without causing the th amendment concerns you identif think that's exactly how your honor i think they need to because they're going to compliance is not required and they can engage in a program of knock and talks and in fact the suffolk county police department seem to have been doing that for several years before this private entity got involved  and so that is a program that's very likely permissible under the constitution so you say that they might very well be willing to do something like that that you're suing for damages me given the expectation of  damages in your client's case i think it would depend on the testimony regarding the emotional harm you know his family was there that day that created emotional harm for him and his family but you know when the damage is huge in this case no you honor they're probably not it's the constitutional injury that is really at issue here and unless there's any further to settle along the lines of getting some kind of change in the letter i just that that's the concern here they don't want people seeking their dogs these folks and you want people to know that they don't answer the questions if they'd rather speak you know a police officer