ok yeah whenever you're ready good morning again the case with usually the case before the court today involves the granting of a motion to quash arrest and suppress evidence by the supreme court the people maintain that the court's ruling is erroneous both fair actually illegal factually in the sense that it's ruling in particular regarding the expectation of privacy that the defendant here was against the manifest weight of the legally in the sense that the there was no fourth member violation defended must establish that he has an expectation of privacy which has been wrecking as it's reasonable i cited before he can challenge an entry by the police into that area or a search of those premises and that didn't happen here specifically stated you can find this in page twenty five of the record profits specifically stated that there has been no evidence showing that the defend his any expectation of privacy in the apartment so in your view is that the defendant can move to suppress the gun which was lawfully recovered in the reason why answer your question specifically about the gun is because in this case the firearm was recovered before the defendant was arrested his i'm sure you remember from the facts of the case the police suspicious according to the police officers and they file them into the building through the unlocked door and as are going up the stairs of this multi unit apartment building they see the defendant or he sounds he and the gun to the  where specifically were they then was there in court common area was a somebodies or if your honor it's very clear that they were in the common area of the building they hit enter through the main entrance to the multi unit building into the vestibule area and were going up the stairs which which go up between the different apartment buildings and sorry for the interruption but what about this whole curtilage argument and then you know they're referring us to dogs having drug sniffing dog cases urine absolutely there is a i'm going question as to where the curtilage line applies for purposes of a multi year deal the problem with that argument here is that it's a distraction it's a red herring in this case because the only way a defendant can claim force member texan within the critter wage is if he can establish that he has an expectation of privacy in the building itself in the property itself and that's why i started off this argument by pointing out that the evidence in this case is completely devoid of any aspect of an expectation of privacy of th it was effectively admitted below that it was if a defendant lived elsewhere than it was a girlfriend's apartment or at least potentially a girlfriend yeah that's just it was actually established that no i was saying that the extent of the evidence regarding the girlfriend is an a single question asked by the defense counsel the time when she went to the apartment to answer the door or woman i believe it may have been defendant's girlfriend it's the extent of there's no further development of that aspect there's no proof the defendant has stayed there repeatedly or overnight in any way no other connection of the defendant to that apartment or to the apartment building and i stress as i stated before that it is the defendant's burden to establish his expectation of privacy so i think the defendant takes the position that the police quickly even get in the front door of the building that all we have here  assuming that your honor i believe that there is sufficient basis what the u s supreme court held in wardlow is that flights from and readily identifiable police officer is in itself suspicions in can authorize but the key in this case is there wasn't a terrorist act because yes the defendant the police officer fled the fall of the defendant into the building he didn't stab the defendant until after he had made it into the apartment in what we know very clear from the fourth momen is that unless and until you are actually stopped until your movement is impeded by the police officers there is no fourth amendment and i'm for them an event at that point so following them into the building they there is no threshold expectation of privacy but even if there were once they're inside there's still no stop until after they see a gun being transferred from the defendant to the code so that you get in so if their point absolutely there is an defendant clearly did hand off the gun to the juvenile who then threw it on the ground so the gun was abandoned by either the defendant or more even more significantly by the court of the juvenile and when the police see a gun on the floor sitting there they are certainly entitled to recover in the reason why we know it was abandoned by that human else because he dropped it in ran away that's it's classic commandement every case the examples that might the council races in the brief involving where individual hands a sealed briefcase to another individual for safe keeping the court say that's not a vandeman the reason why there's not a venomous because there's an expectation is going to retain control in rio obtain control over that there was nothing like that here the juvenile at a minimum was discarding the gun in hopes of not being caught with it in hopes of not being held culpable for it so as i stated the property really here is against the manifest weight of the evidence because the evidence is very clear that the defendant has not met his burden at all of a scale between expectation of privacy the evidence is very clear that the firearm the gun was recovered before any arrest of the defendant in the evidence is very clear that the probable cause for the defendant's arrest developed as soon as the police officer saw the defendant hand the gun to the juvenile and then the that it is an exemption which the defendant would have to prove at trial so how is it that a fact that has to be proven in a trial by the defense now turns into a factor that the police officer must disprove in order to even have the lesser standard of running because he has a gun running from police or because a gun and then immediately tries to hand it to in another person a juvenile is not an indication of lawful possession or invited possession instead it is an indication under common sense  the circumstances how is the gun being possessed what is the individual doing with the gun at the moment that the police officers have encountered the reason why we have a provision in the concealed carry act is to allow the law abiding citizens to ensure that they that they inform the police officer that they are lawfully holding him so that way there is no misunderstanding and no mistake about what's going on it is intended to provide cover and assistance to those individuals who are not lawfully holding hands and are discarding it in a this point the police officer would not have seen the gun so certainly wouldn't have probable cause at the moment that he went up to the city apartment that would absolutely be inappropriate there is as i stated serious question is the ability of the police officer apartment because there's hasn't been established the defendant has an expectation of privacy but assuming he does actually have an expectation of privacy in the apartment then yes that would probably not allow for him to go there not having seen the guy because  heaps deciding to take an under budget and making small little portions of fine but the ultimate portion the ultimate fighting was that because the arrest was without probable cause because the judge because the police officer couldn't rely on seeing a gun since some people may be able to lawfully that's it since their arrest according to the judge was without probable cause then everything in related to it would be suppressed even though the gun was recovered independently gun at all because the gun was recovered independently of the rest the rest occurred after the fact now whether or not the police officer had the authority to go into that apartment in the rest of the fan and i can answer that question but it doesn't matter because what the case law has said in there is it most what happened at the excellent most the taking of the defendant into physical custody in that apartment dragging him out of the apartment is what the police officer said it most as a foursome and violation but they're absolutely was good morning your honour's this court should affirm to grant the motion to suppress with police officer here observe no contact which could have given rise to a reasonable pearlie if that marquees thomas thomas went into a residential apartment building were treat into your home which in florida versus hardiness it's listed as one of the important concerns of the fourth amendment here at best as a retreat into a residential building that is not right and in addition this is a probable cause you need more than simply a reasonable suspicion but on the chilly side to show you there was simply not enough this car was also as the officer testified that the man turned to go back into the building when the car was still down the block is the phrase that the officer used that is not and it was an  testimony about that again all we have in the record is that this was an unmarked police car it was down on the block it was an officer in plain clothes within the only designation that's referred t heard clearly would not have been visible inside of a police car down the block and and here again this was not a run down the gangway as mr wardlow did this was a water still run into a building that he  little where does he really easy to write the expectation of privacy what is it about that apartment building all the people living there are building gives this young man the right to have an expectation of privacy when he's running showing up didn't say you were able to enter the building itself and evidence that you were able quick and ready access to the apartment you were able to let yourself in you could lock the door behind you it was in the evening not the time of day and slim to read there that's not doesn't seem like a strong pillar again if there is any dispute about whether this was his girlfriend where was a witness the state could have called their girlfriend to the witness stand and interrogated her about the relationship they did not do that the building in which her apartment was located in the common area and the common area and under florida versus our jean as you can consider the could a watch and your fourth amendment rights extend to areas outside your home areas where you generally under our social norms would be considered areas where you don't expect strangers to intruder trespass unless they have a license to enter after people who are running from how do you call that roam there is no testimony running the police officer use the conclusory term fully but never testified that the men went inside any advance radius field or that they ran i simply turned around and would be akin to a private residential apartment building were committing any crime and having no reasonable suspicion to enter the building they also had no probable cause and anything they observed inside the building was a crime as you point out the concealed carry act doesn't allow people to display firearms inside a building the fact that thomas was able to walk into a residential permit building and then the officer observed that apartment building that would have given rise to any belief that they were doing any contact outside of the concealed carry act which does allow people to display and handle firearms with in their own homes within their own buildings it was in his field he had a connection sufficient to raise a fourth amendment it was while he was there it is girlfriend's apartment he said earlier stage should have brought her in this so all we know based on the record is that officer kerrick thought it was his girlfriend who opened the door oh how to stay out as well and sex under under the law when when a put a party has the burden of production which the state had shifted to it after the prima facie case was met under the law the trial court may draw a reasonable inference and adverse inference from the failure to present a witness here so that the conclusion from the absence of the girlfriend as a witness here the conclusion is not that the witness would have been favorable to the defendant in the procedural to be given just months to the fact findings that made by the trial court and of course it considered that particular issue should be one of jeff france although the ultimate question on the motion to suppress is but with respect to the factual pieces here that is part of the make standard review that you should defer to the trial court the trial court heard the witnesses saw them and again in addition to the facts that were presented in the said that we argued in general they failed to mate make their burden of proof that it had shifted to them and we also argued that they had waived their right in this court to make arguments about the lack of evidence where they had every opportunity to put it on themselves so it would be included in those arguments so it under that this the trial court did with proper deference and including that in french said arose when the state failed to put on any additional witnesses the defense did not need to rebut a ghost they needed to have something there to rebut the state deprive the defendant of his opportunity to present proper or bottle at the state and fair to put on any evidence he could have be examined the officer further about whether he observed any of the defendant's clothing in the apartment there was no questions about anything like they are at the state even attempted to make their case and meet their burden the defendant would have had the opportunity then to have brought in the bottle isn't this in the states it's a production that are going to persuade so when the state shows that the defendant lived elsewhere even if we assume this was his girlfriend's then no it is not under the law it's a to tell you the circumstances i would point  present he showed that the girlfriend showed a prior relationship he did have the ability to exclude others he went into that apartment and he closed and locked the door behind him self the girlfriend was in the apartment she didn't kick him out she was there at the time he had ready access he did not not there was no testimony that he knocked on the door waited for her to open the door for him he let himself in very quickly according to the officer was also seven thirty pm at the time this happened that is the time of day that typically a stranger would not be entering an apartment that into also indicates a level of connection to the premises and again then there was the  adverse inference from the state's failure to present evidence both put together that was enough to sustain his burden under a deferential review and again if there's any lack of if there's further facts it could have been put in the rock heard the inference arising from their lack of those facts goes against the state and not against thomas because a gun he did not have his opportunity to rebut that is a waiver by the state the waiver of their right to make that argument here before the court because that is just saying and begging and so here that somehow where the state never mentioned any of this fellow and never never gave the opportunity and sat down and rested found that he met his initial burden of proof on the issue when that happens at that point again the burden of production shifted to the state if there were further evidence said that the state now wants to argue should have been presented where was still in the trial court where was the state's attorney standing up and saying that we're with the state's attorney calling a witness had good or examining with recalling the officer to examine him further on what he observed had that happened the defendant could have had the opportunity to rebut it this is the state is the one who is trying to game the system here by waiting to raise these arguments on appeal that it never voiced in the trial until this panel and say where is where's the girlfriend where's the other evidence and those witnesses clearly this were within the state's ability to subpoena as well and so i mean to avoid typically a burden of there was proof on some of the factors they did show a relationship to this building and to a unit in the building and to a person in that building if there's any are these questions about oh you could have put on more you could put him or you could have put on more well the state was the one who had the opportunity to raise those questions below and did not do self and again the fact that the state sat down and rested its case where is the fourth amendment implicated when the going it's own on the floor and the testimony here was sat opposite he said i probably said freeze to the man that happened before the gun was yes but that would be a seizure but neither one of them oh they didn't they didn't stop thunder ran into the apartment the other person through the window ran away peo they were intruding upon the crew arrived at this apartment that intrusion happened at the moment that officer opened the door and bought into the building and that use the previous tests which the state relied upon its brief united states versus done in now the test is florida versus hardiness and the recent case collins versus virginia that the focus is now on whether you have the daily experience shows that this is the space that you would feel it should be an intrusion and whether there's an implied license and trunk those cases t about a defendant who's inside in the police doing something in the curve of the residence is there any case that says if a defendant takes a bag of rugs and and throws it down right front of his front door the police are powerless to do anything the question would be was the police officer in a position where the police officer had an implied license for genya where the person parked the motorcycle next to the house and it was only partially covered by a truck clearly the officer in that case sought quite visibly what they believe should be an item connected to a crime yet the could hard that the fact that the officer stepped off the what was implied license to knock on the street door of the single family home the fact that the officer stepped off that ve implied license to go lift the child and look at the motorcycle was in fact a search that was prohibited by the fourth amendment it was presumptively and reasonable without a warrant so i under the under  collins if the police officer observed a drop of the big drugs and it was in a spot where the officer had no implied license to be with outside of the very limited there are two ways it could be protected by the fourth member one would be the reasonable expectation of privacy which would be governed by the done factors and the second is the people versus hardiness collins sign of case which does not use the done test anymore has just been clarified by collins and now focuses on the social norms the idea of intrusion and that question of whether there was an implied license and here it was entirely reasonable and not against manifestly to the evidence for the trial court to conclude that a private residential building the interior of that building was not the conceal carry laws it is considered a space in which people can exercise their second amendment right to fire arms it is not a space such as this building here today when i walked in and saw the sign on the door and again we he did not have resources fissions of any crime simply because a person goes into a building even more though again did not say that they had there was a showing of a high crime area and again the ran through the gangway to the back alley he did not go into a house under these facts simply because someone turned around it seeing a car half block away went into a house  injuries but if there is if the argument is that this was suspicion of a crime the only crime this could be would be that you're inside an apartment building a space which is after you are are allowed to have your firearm the only way in which this behavior could be criminal would be if the officer had knowledge that the person did not have a license concealed carry act in connection with the terry stop if that had happened clearly the officer could have placed thomas under arrest there was no inquiry here there was no other information known to that officer that would have said that there was any criminal activity here taking place whatsoever it simply is not illegal under the concealed carry act to have a gun inside your home including inside your apartment building that is because the home is at the center of the second amendment it is also at the heart of the fourth amendment this is a place where a person may exercise their second amendment rights and a place for person may protect themselves and the officer observed nothing here at the time of the arrest or at the time of the recovery of of the weapon to indicate otherwise that there was any illegal conduct and for those reasons again the state has shown nothing in the fact finding fear that was against the manifest weight of the evidence and nor has the state shown that the trial different apartment building and we asserted that based upon that there was now the sufficient basis for the defendant to meet his burden of a sample showing sufficient privacy in response of the defense counsel argued that he does go into the apartment or the behind him his girlfriend opens the door that would be enough to say i wish thompson thomas maybe a residence building judge at least at this point in the proceedings we would suggest that we have met our initial burden that we should be able to proceed to argument in total issue the judge response is that your motion for direct finding is respectfully denied at this point the petitioner has met its burden the burden of production it shifts the state and we rest because we have no additional evidence boss as you could a subpoena his girlfriend who ever lived in their apartment we could have your honor but it is as you pointed out johnson makes it very clear and rockets before that in all the other cases that it is not our burden it is never our burden to prove that we have a burden or a production and we met our burden of production by proving that the defendant lives elsewhere undisputed evidence that the defendant lives elsewhere and then in our argument as to why the motion should be denied the assistance attorney specifically argued yet again that offen not have standing he had no privacy interest in the apartment building in which the gun was recovered and then the judge makes no additional findings after that other than the point in the midst of the argument that there's been no evidence to establish the different lives there and so this notion of sam backing where it is not our burden to prove when we put the defendant and notice that if there is a serious question of his expectation of privacy of his ability to prove it we have no further obligation to do any of that because we can't prove as i said we can't prove a negative what we can do is prove that he lives elsewhere we can't prove how often he may stay there we can prove that it's actually his girlfriend we don't even know there is no reference anywhere in the paperwork who that woman might be just it's the police officers belief that she may be the girl for in regards to the counter some virgin in other points cases this whole notion of the curtilage i'd just like to point out that in all of those cases the defendant was claiming that he had an expectation privacy not only in the home but also in the curtilage and it was a stablish in all those cases that it was his home in particular the case the council mentioned so extensively the as she said the u s supreme court recognized that the police officer had an implied license to go to the front door but he stepped off of that implied license when he said went to the driveway lifted up the tarp over a cover motorcycle and looked at the eyes which is what happened here you can't go in and open up containers you can't move things around you didn't do that here fell them in he saw the gun he recovered and then finally in regards to whether or not there was a terry sounds case yes the police officer was trying to conduct a terisa but he was never successful in doing so because while he was following him into the building no stop it ever occurred proceedings thank him thank you very much for your arguments which again are excellent briefs you've given us something to think about and we will take the matter under advisement