whether or not an unconstitutional unconscious search if the same evidence would have been inevitably discovered by law enforcement or whether or not the attenuated basis doctrine applies and we submit that neither of those the search the basic facts are that law enforcement response to a not on one call they enter an apartment without consent they do a protective sweep that's the first search that search has been held to be constitutionally sound officers become concerned by the demeanor of an individual in the apartment later identified as mr harris they determine to handcuff him they ask him questions he's uncooperative and officer can he then performs a second so called protective sweep during which he finds a substantial amount of crack cocaine in a kitchen whether or not the second search is sufficiently attenuated from the first search it is the issue that we have to consider and the supreme court has set forth five factors by which to evaluate whether or not there is a sufficient attenuation the first of those factors that would set forth in this case the first of those five factors is whether or not the information that is subsequently obtained by law enforcement was given by that individual's own free will and not tainted by the illegal search the information that law enforcement ultimately obtained from a woman by the name of phoenicia evans is both mr harris is name and the fact that he allegedly lives at that apartment phoenicia evans is a drug dealer herself she's living in the apartment and the drugs that are found are found in plain view there are scales a sari a scale and  which are also found in plain view miss evans when police first arrived miss evans and cooperative she's asking the police officers to please leave her home she is doing so at the direction of mr harris but she  nonetheless asking them to leave she's not providing them with any information about herself or mr harris and in fact she only becomes cooperative with law enforcement after the discovery of the narcotics officers acknowledged that given the quantity of narcotics that they discovered that somebody was likely going to jail that day so by the time as have miss evans begins to cooperate with law enforcement she too is aware that someone's getting arrested and she has incentive to make sure that it is not her who is getting arrested i would counsel judge cool if i could just interject a quick question what bothers me about this case is the issue of inevitable to s if the police are going there are a domestic violence call nine one one how would it be conceivable and that's after seeing this guy look a look through the window at the door or whatever that they wouldn't inquire on his name and and then do it check and find out he is on probation and that they can search we would agree that law enforcement absolutely would have asked those questions they would have asked mr harris its name his probationary status and they would have made the same responses would have been but for the discovery of the ok ok right but if they asked mr harris for his name and he refused to give it after the information that they had gotten that the spouse or girlfriend was not in danger of the sky they have already determined by the time the second search occurs they had already determined that ms evans was not currently in danger when they have when they approach the apartment they don't hear any signs of a struggle they go into the apartment they do the protective sweep they say that miss evans is not in distress she does not appear injured furniture is not overturned there's no holes in the wall there's clearly no active struggle going on when they subsequently handcuffed mr harris because he is highly agitated and i think in the police officers opinion his level of agitation is inconsistent with the facts as they know them to exist if they hadn't found the cocaine logically they would have continued questioning both mr harris and miss evans not only about their identities but also about this alleged domestic violence incident but there's no evidence to suggest that miss evans would have responded in a cooperative manner to law enforcement when she's the person that prior to the cocaine being discovered she's telling them to get out of her apartment mr harris says his name is jay go look it up and he's on probation go look it up he's trying to get out of the apartment and get the officers out of the apartment and law enforcement during the evidentiary hearing admitted that women are in particular are uncooperative with law enforcement when they're conducting a domestic violence investigation because the women don't want to see their significant others going to jail and so we have a situation at the outset well miss evans is being uncooperative with law enforcement and the government had the burden of proof preponderance of the evidence to show that but for the discovery of the cocaine evans's demeanor would have changed such that she would have cooperated and provided that information to law enforcement i don't quite follow that i'm sorry if  she was being uncooperative in then why wouldn't that trigger them checking out to see who this guy is they would have continued to try to figure out who he is we agree with that but the issue is when would they have learned that information and how would they have learned that information there's no reason to think miss evans would have provided that information she wasn't being cooperative so logically they would have taken mr harris they would have arrested him put him in the back of the police car taken him downtown fingerprinted him and in a day or two they would have known that he was in fact john harris by which time the drugs in that apartment would have been long gone  candidly they wouldn't know who he was they wouldn't know who he was they had no way absent absent miss evans saying that is john harris and he lives here and absent there's after they discover the drugs and figure out who he is there's yet another search where they find some a do you do you share with mr harris is a name on it that never would have been discovered can't ask you for identification they could have asked him for identification they never did there's no proof that he would have provided them with identification there's no proof that he even had identification so the what logically would have happened is harrison would have been taken to jail and they had no based on what they knew at the time they had no ability to freeze the scene to go get a once they removed him from the room she was free to answer their questions and answer them honestly she knew john harris is name she had been under duress by him they had had a report of actual violence against her and they had removed that man from the room and she was able to answer their questions as to who he was and the fact that he lived there before he was removed he was steering her answers he was telling her what to say he was telling her to tell the officers to leave once he was removed from the room after he tried to bolt she no longer told the officers to leave and her statement which is included it s e r two zero zero nine and ten indicates that she gave his name and she indicated that he had lived there been living there for some time  and that he was in fact her estranged husband but as i understand mr daly's argument in considering the inevitable discovery rule the court would have to consider the fact that miss evans only answered these questions after the evidence was discovered and she was concerned about potential charges against her two things in regard to that first of all john harris had admitted to officers while she was in the room that he was on parole and so she could safely assume that he would be gone and he was going to be arrested also he was the one who had been violent to her in public and that's what had triggered the nine one one call secondly this argument that mrs evans herself was a drug dealer is not found in record there was as in it was never proven because it was in fact prove in a trial that it was mr harris whose cocaine that was and indeed it was the finding of the court below that mr harris was the one hiding that cocaine in the kitchen miss evans was was not near it so it is merely speculation to say that she was also a drug dealer and she was then covering for herself in addition there is this clear indication that he while in the room is steering her answers and telling her what to say not not simply out loud but also mouthing the words to her it's a very threatening and coercive environment but he is removed and as soon as he is removed she is able to speak they were clear that their investigation was going to be persistent that they were going to identify they needed to identify these people not simply as a matter of protocol but as a matter of their experience their training that they would need to identify the parties who they were to each other whether or not they live there and they were going to search because of domestic violence call requires an investigation at that level they'd heard reports of violence from inside the apartment and while the defense argues that they  had they had seen no signs of a struggle the defense is describing a period of time that is seconds if not a couple of minutes they had not had a chance properly to assess the environment they had begun their domestic violence investigation by who these people were to each other what their relationship was and all of these things led to the court's finding below which is amply supported by the record that they were going to do a full and complete domestic violence investigation especially in a case like this where they had had violence reported and as the court found below her motivation for giving his name might have been that she didn't want to be dragged across the parking lot by her hair and more there had been actual violence done to this individual  and so there it is a far stronger finding in the record that that is why she would be willing to give his name rather than the idea that the drugs for which he was ultimately convicted somehow belong to her  would have engaged in that investigation had they not found the cocaine in the kitchen because the domestic violence investigation began before they found that cocaine it was then put on pause after mr harris bolted for the door it then resumed once he was in the car and officer sabra was running the records check on him but officer canada and indeed miss evans both testified that once mr harris was removed from the room the domestic violence investigation questions continued this is odd case so are you saying that they would even without knowing who he was they would have conducted an illegal search that would have been an illegal search of the house if he hadn't been on probation no your honor what i'm saying is they would have seen to it that they identified the parties they they needed a reason and a right to search the apartment the reason comes from the domestic violence report and the report of violence coming from inside the apartment or the sounds of it and the right came from the fact that he was on searchable probation and parole and so that's what this court's question was aimed at was would they have conducted an investigation sufficient to get well actually they say sufficient to discover the information they ended up discovering which was that he was on searchable probation and parole and that he lived there and that gave them the right to search the court seems to take for granted that they would have got his name and indeed the court below found the same that his name would have been part of the evidence that they had turned up no as it happens this investigation as i said was thorough these officers were not only trained to do this this was these individual officers m o was to support the evidence of domestic violence and in doing so they would have discovered his name  in addition they interviewed neighbors at the scene neighbors who knew mr harris as well so the further inquiry would have  status but where is the connection to that to lead the officer to believe that he was i there if they had continued this investigation so i'm sorry so when they you you offer some evidence as to why officers would have to skiver mr harris is pro status if they continue this detailed domestic violence investigation but how would they have obtained during that investigation how would they term in that he reside there because there's two question why who was he and did he live there yes understood so once they have his name a record check is going to be now that he had been removed that revealed that he lived there and indeed as this court found that the first time this case was examined they did in fact have probable cause to believe that he lived there yeah i that earlier case counsel they said there was clothing in the apartment or other indications he was residing there yes indeed there  once they found his searchable status and once they engaged in the search they found men's clothing men's shoes in his size they found keys on the couch where he had been sitting which miss evans later indicated to them were in fact his keys to the apartment  there were several indicators that he had been living there but first and foremost it was miss evans during the domestic violence investigation who told them so right thank you and if your honour's have any further questions i'm happy to answer them otherwise the government will submit no questions thank you i'd like to address a couple of comments excuse me mr conley made one of which was that mr harris stated that he was on probation not parole and the distinction is important for a couple of reasons proles necessarily searchable conditions  mr mr harris was on probation there is searchable and non searchable probation and at the evidentiary hearing officers admitted that knowing somebody is on probation is insufficient to justify a search because they have to know  distinction between those conditions as far as whether or not felicia evans is a drug dealer in the further excerpts of the record there is testimony at approximately pages fourteen and fifteen from a man named sergio solis who testifies that he had gone to miss evans at home on a number of occasions purchased drugs from her and from her boyfriend mr salis did not know the legal name of the boyfriend but identified him i believe as dee  boy and he was asked do you know who mr harris is he said he did is mr harris the same person as de boy he said no those are two different individuals so there is uncontroverted evidence in the record that felicia evans was in fact herself a drug dealer domestic violence investigation doesn't doesn't give officers the right to conduct a full search of a home which seems to be what the government is implying certainly the officers have the ability to go into the home and conduct a protective sweep for officer safety but that doesn't give them the opportunity to look for paperwork or other inducer of who might be living there so the issue becomes if they don't the government seems to assume that somehow this protective sweep in this questioning is going to reveal mr harris his name but there is no evidence of how that is supposed to happen and that is the government's burden and they failed to meet it make just argued is headed for a decision we'll hear the next case on the calendar i