circuit the issue boils down to a simple question whether a warrantless entry and search of a residence for evidence of crime following the completion of a protective sweep under the emergency doctrine violates the fourth amendment the question answers itself if you have a warrantless entry or search of a residence following the completion of effective sweep under the emergency doctrine the strict and narrow exception of the emergency suite has ended and i think the facts of this case indicate quite plainly that officer got three of arrived at a residence there was a nine one one call of a shooting the injured party was at the front door officer got three talked to a neighbor for a brief couple of minutes and then decided to do the protective sweep of the residence the government relies upon the emergency doctrine allowing the officer to go in with fellow officers to do this week officer guthrie testified that he was trained in protective sweeps he did a circular protective sweep of the residence he had every room within the residence he turned on the lights in the residence in every room he looked where anyone could be hiding he determined that there were no other injured parties in the residence keep in that when he arrived at the residence he had been told that the suspects the assailants had fled he was given a description of the vehicle and was told there was only one injured party that one injured party was left at the front door as he went in for the protective suite during a search of the house during the sweep he finds no other injured parties no other suspects no other reason to fear that there was a danger either to the officers conducting the sweep or to any of the residents of the of the home because your argument depends on there being a complete break and name presence of the officers inside the house it does not because you are my argument depends on the facts and the these and under other ninth circuit decisions is narrow in scope and it's limited to the reason for the emergency doctrine which takes us outside of the standard fourth amendment warrant engaged in a far more extensive search and we said that fell under the doctrine well in russell the court becomes very the majority becomes very concerned with the fact that there's continue confusion there was a call that there  someone had shot himself in the foot the nine one one officer hears other people talking in the background then they're talking about hiding the gun a name is given of hines that is injured the name is given that russell is injured so when the officers arrived at that residence they don't know how many people are in the residence and they don't know how many people are injured they see russell hopping out to a vehicle and leaving with two women but they don't know what's inside that residence at that point in time in other words when they went in for the protective get in there then they start looking through drawers they start conducting a more traditional investigation rather than eye protective swing now that gets factored into judge can't is question if there's no break and then if there's a break i think your case is stronger than if there's no break in the district court seems like there was no bright going back and conducting a more thorough search may not be a directional under russell well i think it is your honor because i think that the laws clear that once savant these are gone either via objecting first prong that there's an immediacy of danger or the subjective second prong which comes into play here that the subjective intent of the searching officers went from the immediacy of the danger to search for criminality by the occupant of the residence that didn't exist in the other cases because there were still objective facts indicating an emergency may still be existant in russell and in stafford and in power pal but in this particular case one officer got three leaves the residence the protective suite is over there is a bright line that we can point to in this case that one got three leaves the residence leaves the woman inside talks to the neighbor on the front lawn for fifteen minutes there is no concern of danger or immediacy of explosion of fire or anything that we can point to in the other cases because they know that is a safe secure location there is now no longer a combined immediacy criminalities search taking place when guthrie goes back in you now have a sole purpose of the officers to search for evidence of crying that doesn't exist in any of the other cases there's always an objective argument that can be made that they have not really defeat used the emergency situation in this case the emergency situation was totally the fuse whether officers one or two remained in the living room is irrelevant what's relevant is that crime one of servant these was gone there was no more immediacy of emergency and prong to i say very importantly was gone that is the subjective motivation of the officers with the search for evidence of crime now if the officers just sat in the living room after the protective sweep was over and they sat there for a half an hour saying what are we going to do now and decide well let's do something fishy here we think this guy was involved in some type of criminal activity let's starts the house now for evidence of criminal activity that clearly wouldn't come under the savant use emergency doctrine so just staying in the house can't protect can't this rate the fourth amendment because now you have a continued unlawful presence of the officers in fact of what they're basically trying to carve out here is an emergency protective suite continued occupancy exception but i think that the evidence is unclear on that and i think circumstantially the evidence it is more clear that one officer got three left the residence that officer billman was outside the residence talking break in occupancy yes but we don't know if he didn't make any findings and that was going to zooming for purposes of decision well i think there's a break in occupancy because i think logically if you take what the government then attempting to use on the second entry into the residence an overwhelming smell of marijuana if you have officers continuing to occupy that home for approximately twenty minutes to a half an hour no one reported a smell of marijuana in the residence that tells me there were no officers in the residence or officer guthrie did not smell marijuana on the re entry if we accept him at his word no other officers came forward and said while we were sitting in that residence for twenty minutes to half an hour we smelled marijuana that there is no evidence of that in the record but i submit that the breaking point is when the subject of intent of the officers change prong number two of serve on six when their search is now primarily motivated to find evidence of crime that's one of the occupancy for the emergency doctrine and because there is no other reason for them to remain in the residence once they're searching for evidence of crime without a warrant when i think you were to meet and you may have a card in your argument is not a primary so get your intent right i saw clear it is the only subjective intent he testified to it both at the deposition or they think they have some reason enough for the gentleman to stay and then it really doesn't matter if they have another intent then maybe it's arguable and you can defer to a court's ruling there is no evidence of anyone either re entering or remaining in that residence for an emergency doctrine reason in fact they concede they went back into search for evidence of criminality officer guthrie his whole focus after he left residence what is isley up to not is there still a danger in the residence that never enters his mind again and once he's outside of that residence he's to have the rest of the other officers leave the residence as well and either wait for a valid warrant or decide what residents during that time period of time that's at issue here we're talking about a period of time that's not going to exceed much and length between you know fifteen or twenty minutes that's the time we have to present to the court today how do we deal with the district court's order in that respect th find that of that puzzling because the district court has assumed it seems to me for the purposes of argument that there was a break so how can we reach back and on assume that for the purposes of this argument i don't agree that i've read justice  inside the threshold of his residence during that period of time the biggest chunk of time that's at issue in this case there is an officer with mr eisley inside the residence where he's gone i mean there's no arguing about the projector screen as i this crime scene as he was very specific about not trying to think about it in a linear progression he didn't think about it that way he thought about it more as an onion and it's very important to draw the contrast is this case is so factually determine it's important to look at  context of the events it's ten o'clock at night it's the middle of january there's a shooting victim down inside his red there's a police helicopter responding overhead they don't know who the shooters are they don't know where the shooters are they don't know what the motivation for the shooters were still there on the premises in the neighborhood inside the house there's a detached garage it is utter chaos for the first fifteen or twenty minutes and sergeant jeffrey is the court leader of this crime scene twelve or thirteen shillings the police department officers two thirds of the night shift available to that agency at that time are responding there is the only they have an outer perimeter they have an inner perimeter they're approaching their residence on floyd they're blocking possible suspect has out of the out of the the while balancing officer safety concerns are we going to get a shot it's an issue and i accept what you say and so far so good but then i get a suite and there the officers are are convinced that they have a secure scene and then they that at that point in time he doesn't know if it's about gambling i mean they're beginning to wonder what he doesn't know why but they know that it's secure so that point is not converted into a crime scene investigation as opposed to a scene in or had some clear sense of what happened here or where they are we're we're urgently concerned with our safety and with the safety of this perimeter and the safety of the community and he said that five of them but then they smelled the odor of marijuana and that has no little or nothing to do with safety right he has misty on the inside the residence i'm going to come to that if i make sure he has a shooting victim down in the threshold of the house just and he has a witness has a site he says i don't know if it's gambling i don't know if it's narcotics i don't know if it's any smuggling and i don't know if it's a love triangle he has a discount of the possibility that mr young or herself might be a suspect or that mr icily was shot another man and because there was some sort of personal issue at stake as opposed to something else police officers are naturally extremely cautious some of the circumstances he were after ten to fifteen minutes at the outside he walks back in the house and he said he immediately know this is the overwhelming odor of marijuana he said if you had read if you had noticed that the first time he was in the house he didn't register it maybe his adrenaline was pumping too hard something you know i don't know why he didn't register it but he did registered immediately in the first thing he did was ask you this do you know for consensus or to the residence at that point in time way to approach it is to is to give the police officers it is not to try to draw a bright line through this crime scene about what about when their subject the motivations shifted trying to discover whether whe weather the weather the urgency had abated in the surge and whether they had shifted years to trying to solve a crime a shooting crime i think that's at some point in their making very quick decisions under under very taxing circumstances with long and he stated and his testimony without with deliberate hyperbole that he had about five thousand things going at one time he's the crime scene coordinator he's trying to balance all of these concerns but he he was quite sure that he was that his concern for officer safety and his concern for trying to determine what motivated the shooting was about reaching a comfort factor for himself and for the team of officers that he's got out there that are trying to ensure the public safety records that the transcript page mr guthrie offers on page forty six he testified that after he finished discussing her having that short second contact with mr marino that i was more concerned that i didn't have a reasonable clear idea as to what motivated the shooting and then again it page twenty four of the court's excerpts or page nineteen of the actual transcript page he said that until we knew that the people are out of the area or we have them in custody then there is always a percy threat to the officers and to the community sergeant that's where he had not reached a factor where he felt comfortable with that crime scene there it's there's still a very dramatic tactical approach going on out there at that crime scene there are car perimeters there are levels of perimeters and they haven't figured out what exactly happened until they reach that comfort factor they feel that the public safety and officer safety you've got three subjective motivation as the crime scene evolved from time if you take his license five minutes slices and we want to determine when he at that point in time when he when he's cornered he's going back and forth from this crime scene at some point in time and not coming and going where we're concerned with what his subjective intent was was he did he suddenly shift gears to the side i'm going to investigate the crime or is he still concerned with trying to resolve the shooting and the time when he walks back into the residen he's not going back into conduct a crime scene investigation at that point in time the district court points out that that point in time he hadn't yet smelled marijuana he hadn't got back into him going to do i'm going to start looking through drawers and looking through closets he really just went back inside to make contact with  from issues about the motivation for the shooting so that he could determine what how to direct this emergency response that he's forgetting out there at that crime see there are other officers inside the residence and exception to the fourth amendment requirements that once once that the police to finish their community care to caretaking function and it turns into a crime scene and then then you've done the usual rules apply so if we  found no emergency present no suspects present no injured parties present left a young woman and her child in the residence with or without officers we're not sure left the injured party at the front door of the residen standing talking to officer filmon left the neighbor mr moreno ten to fifteen feet from the front door for a fifteen minute interview there is no objective indication that there was a perceived continuing threat the threat was not inside the residence if there was a perceived threat if there was a concern of the officers that the assailants were going to come back they weren't in the residence we know they're not in the residence there is no emergency in the residence if there was concern of these officers everyone should have been put into troll cars the house should have been surrounded that didn't happen we have a very casual interview on the front lawn we have the young lady and her child still in the residence this isn't like that the cases where there is a possible situation of explosion of danger this is diffused and has to be diffused because everybody is still acting very calmly after the protective sweep is over except in what you say is true continuous course of action once the pleas arrive well michigan be tyler and michigan v clifford are both fire danger cases and if you look at michigan the clifford which relies on tyler it indicates that the officers can go back repeatedly to attempt to find the source of the fire or to stop it from we can fling their under administrative concerns for protection of the public and to investigate the cause of the fire but once that investigation turns to a criminal investigation i e we think the restaurant owner torched his restaurant michigan v tyler and michigan the clifford both say you now have a good traditional fourth amendment issue it's no longer  an administrative fact finding situation now you need a traditional fourth amendment warrant to go back in the residence into the establishment to look for evidence against the owner with regard to the cause of the crime they actually discussed that mincey this is the crime scene investigation once again you need a warrant especially here and if your honour's would look at the factors numerated on page twelve of our opening brief the suspicions of officer guthrie were heightened by the location of the bullet hole the lack of cooperation by eiseley the fact that i usually call this neighbor and not the police the inability of isley to provide a description of the intruders the fact that isley had an expensive lexus in his driveway with no apparent means to afford it and that the neighbor during that ten to fifteen minute interview on the front lawn said you might be on the right track when you're checking out his lexus that's when guthrie goes back in to figure out what's eisley up to and he said it might have been alien smuggling it might have been gambling it might have been narcotics this is no longer investigation of a crime scene there never was a crime scene investigation they didn't get a warrant for d fingerprints blood samples the warrant is for evidence of controlled substances that is what they went to immediately they shifted from a protective sweeps less crime scene which still would need some sort of warrant once the sweep is over to evidence of criminality directed against mr isley they need to go get a warrant they can't go back in and search that residence once their suspicions were directed solely on mr eisley for criminality because that takes them