good morning honors and may please the court adam slate from behalf of the plaintiff appellant the united states with the court's permission i would like to reserve three minutes for a bottle the question in this case reduces essentially to did officers have probable cause requires that the officer i have the problem of that this was the probationer resident at the time correct correct and that's what we're here for yes did they have probation did have probable cause absolutely wrong or are in so so then let's get their share so first let's talk about what probable cause is and isn't it should be i do want to emphasize that the supreme court has  right but it's applied to a different thing sure but just so that we have our our terms defined before we engage in the algebra the real question is what it what are we pointing toward all or point you think all of our  in gauged in which is refusing to assaye all the facts think of it like there is water in a pot on a stone raises the level so divide on yourself all you're suggesting is this is one fact upon which using a different residence indeed it doesn't confirm i mean it was in front of a rich he's in front of a residence and that because he's in front of it it automatically says good reason he lives there no no it's not that alone so let's it's one of many facts of the police who they've never uses an informant before that this guy lives there isn't that the best we can say for that well and it's corroborated by the fact that they saw him there so now you have his who operated by the fact that he was in front of it courthouse that's good enough no it wouldn't be alone so then we have more so that we have those things and now we're still adding right so then we go to the fact that the informant said specifically the unit right which is not the case and some of the case  so now we have the unit and then we have the officer the fact that this guy we don't know of and he lives in on the sixth floor in the five o two makes him live that's it's shaky in the sense that various things were said about what was said to them and when she what she wrote can say anything about that  confused by the district court explicitly declined to make a single factual finding and as to show bomb the defendant himself we've any crossing accepted the entirety of her declaration a material part of which was i read the supervision history which has every time they  i'm ok counselor if the district court did not factually determine that that is a fact upon which i can rely can i rely on it well where now think about it well so as to the facts if the court feels that there are any disputed facts that are relevant to that that were not determined then it should be manned but is or if in fact the district court did not determine that this was a fire act and i rely on it because the district court explicitly disclaimed making any factual findings all this court is left to do is either say as a matter of law the district court should not have disclaimed any factual findings or  recall just cussing the defendant's probation service conditions and this your probation history i specifically recall reviewing and discussing with detective keep are the notes of the supervision history describing the numerous times success  yes so what she says i specifically recall discussing the defendant's probation service and his supervision history the supervision history exhibit a that she's referring to there if you look at g r one said she said she discussed it with him she didn't say she read it and so but she discussed there's three possibilities she simply said there is a history which wouldn't be michaela's presumably what she said is there in pretty much what she said she says there were numerous unsuccessful visits writing to interview and that's all she said she didn't say i am ations what they found she didn't say they went to the bedrooms i says that they went out there two times there was nobody present four times he wasn't present but they were told he was at work that's why does that suggest two times there was nobody at the house four times there was somebody at the house and they just said the person was at work that's quite a different story and twice they were into the bedroom court said the judge did not use in the of this because in the district court's opinion there was no evidence that ski bar knew anything about this and that is an excellent point your honor because  the district court i want to file with you to support actually did it said it need not make any such determinations because it divided and conquered each fact in isolation and then said and then when it got to the last fact that said this alone cannot predi cause ok that's the legal error i honor he should have entered their findings but i wanted to know where you were going to say about these facts that i'm to give the different courts are credit about but it made no foreigners it explicitly said that they didn't need to make any findings because it made the same ways be error that it would be here to similarly take each fact in isolation i know i'm a bit over so i just want to say very quickly the key thing is that they even went to the house and knocked on the door and before entering the see the defendant inside of the house which is one very good piece of evidence that he lives that that sounds pretty great if you tell a whole story whole story is they went there it was great so they and the door was half open  behind the screen they didn't knock on the screen they open the screen then after opening the screen with the door after open they knock on that door and it goes wide open then they see somebody that's what really happened is that that's very close but not quite the only thing that is slightly different from that recitation is it wasn't half open it was slightly ajar a slightly ajar but nonetheless the knock knock that open that's correct but under ari on which judge kleinfeld said there's nothing wrong with that per se unless the other door's wide open but the larger question is what do they learn from that they have this woman there and she says i don't live here i'm visiting him and that proves that what well it's consistent with the tip and the fact that they saw him there they now see him in the apartment the informant said he lives in he's sitting in the living room with a woman who says i'm visiting this guy i mean this is the that the if that's  has happened i'm trying to understand what that is and what ultimately we're looking for apparently although this wasn't known to the searching person at the time probation officer heard that be entitled to think well that in connection with his declaration which he says i have only suspected he didn't live in ontario is the result of that story was he did live there you know more than half the time no no freddy rodriguez said that that not a trick question i don't understand know exactly what we're looking for and we're looking for a while where he lived if he lived in two places then or if he stayed a lot of her house but his official residence was the other one he was there more than half the time does he live there and does he live and he lives in honor because the whole reason why we're even talking about this as we all know if this were simply if they had just walked into the sister's house which she had listed which is of course with judge watford and judge and pointed out we wouldn't be having this discussion so we're only here because he's transported in the government view respectfully erroneous lee his over my guest status to a new place but to the extent that he lives in both places then his rights revert to what they would be if one lives in ontario to put it another way and by the way he did live falsely and i don't really understand the point why does he have less rights than anybody else if he's an overnight guest i'd love to answer that question i'm very glad you asked the reason is because one has to first say what are the defendant's rights under the fourth amendment in the house he lists with probation and nights and all the other cases say literally zero he has right in the house that he lives in exactly so then we say so why is there why does he have why does the law enforcement conditions which here he says you can look at all my property and all my stuff and go into any residence so that's the first thing but anyway what was yours because that's not the condition anyway it's all very interesting it's not really in this case we have none of the traditional and dishes of residency that this court has pointed to again and again in the case law does he stay there late at night is he present there in the early morning hours does he have a key to the residence does he received packages o mail there or does he take in the laundry does he take in the dry clean does he take out the trash does he have pets there does he call it my place is there a co resident who says this is his place or this is your place none of those factors are here because the officers did zero surveillance and for that reason suppression here is consistent with the goal ask you this if in fact officers keep bar knew that he had been that is residence for six times when they went out to find it would there be probable cause your honor i think that if i mean as i read your brief it seemed to me that you were hinge ing your total argument on whether he knew that he had been in his residence for six times or whether he did so i'm asking you the question supposing he knew that he had been there for six times that or provided the prob was necessary under howard no your honor it would not why not because what we have here as an informant where there is no basis for knowledge no unsuccessful visits there was there is nothing in the notes reflective of the officers going into the bedroom or finding it on linton that is exclusively from officer rodriguez's declaration the district court in fact made numerous factual findings and that's correct also i went there seven and everybody was there first and in addition there are other significant fact mr vasquez twice responded to messages that were left for him at that residence that's a fact the court found significant in da only twice he was told to appear in person and very sort of ordered the destroyer concentrate on that for the district court references the notes in her analysis the spirit of her analysis is let's assume all of the facts most favorable to the government in the way the government has argued them the district court specifically found that officer rodriguez's personal knowledge was not part of the court's probable cause determination made that finding a fact the government has not challenge that on appeal and not a challenge  now so if the entirety of the notes were read they in fact would paint a much different different picture than is your percent success rate when we have is one in seven as opposed to the euro and six that's a lot closer to the two in ten and howard than it is to the one in twenty one in conway or the one in sixty in watts we also have twice responding to messages to n p r in person on very short order once the next day that's consistent with daily where they found it was significant that while they didn't know if it so again that that fact i would submit to the court is does not support probable cause because again as your as your honor pointed to there are those additional fact he was at work that's easily verifiable it was his probation officer knew  fact he was working so your honor if if that was the only fact before the court it's not suggestive of that being a false residence and the other facts before the court are not suggestive of it being a i'm sorry of the promotion or residence being his residence either and again i would like to be very specific the government has pointed to some statement that mr vasquez made to his girlfriend at some point about a month prior to the search that he was he was staying frequently with his girlfriend that fact again is only an officer rodriguez's declaration is not in the notes so what we do have here is his presence outside four months prior that's certainly much less significant than in granbury where he was present very frequently and using a key to come in and out of the searched residence we also have the the tipster and we know essentially nothing about him member right and he does know a name or two right yes it's not as if there are literally zero facts but the facts are so much less significant than they were in roll in which is where this court found they were only supportive of reasonable suspicion and roland he knew he was a probation or he knew specific details about where he was on probation that he was planning to make a particular flight the officers were then able to verify that they watched him do the things that the tipster said he would do and so while the tipster was otherwise unknown there was enough predict in detail to prove to be able to reach that threshold of some interest of veracity or basis for knowledge however only of reasonable suspicion and here of course we have probable cause to search a residence and the residence is the core protected space under the fourth amendment so your honor those facts added together don't amount to probable cause the district court did not engage in a divide and conquer alice's excerpts of record thirty one and thirty seven in the district court in gage with both counsel for the government and for the defense mentioned the totality of the circumstances standard and showed she knew how to apply it stated for example to defense counsel this extra fact that says she is visiting doesn't that sort of shore up those other facts she understood what it meant to have a totality test and how to balance it and in her written order she goes through in great detail all of this selling us we should do the same thing that it matters what she did well the government is absolutely right in that case this court shouldn't do the same thing but on balance the facts do not add up to probable cause and if i could just very briefly make clear the state of the record as to the door being a jar of the government seem to suggest in its briefing the door wasn't a jar wasn't perceptibly ajar officers the declaration at one forty six he says he knocks upon the door which was already slightly open his testimony is entirely  well the government says that these additional facts of his presence with another person inside and piniella saying i'm just visiting him that this would kind of tip the scales even if that weren't enough  position is because they went out the wife of no this other woman was there is no and the government's position as i understand it is that even if this court finds that the other facts weren't sufficient for probable cause the fact that mr vasquez is then present at the time that the door is open our position is the court shouldn't consider those facts at all because it was the product of an independent fourth amendment violation for the officers to learn them because because they opened a screen door or because they knocked on i don't know cho and in walker which the government relies on heavily the basic principle is where the door inside is open and the screen door is closed that's the primary barrier barrier that the occupants are creating with the outside world so the officer first at least has to try knocking on it if that doesn't work then walker which again is the tenth circuit case but walker would say the next reasonable thing you can do because it's what a neighbor or anyone else is to open it ear door but of course here we don't even have those facts officers seeing that the door was ajar went ahead and open the screen anyway and then knocked the door open and that's why we would be consistent with the district court conclusion contends that those additional facts cannot be considered in the probable cause analysis even if they are considered but if you did consider it they don't add very much if anything at all visiting is call the fact that he was there they do it that that would only so i now looked at the notes and they they don't say anything about coming in and seeing that he was living in their room or anything like that and they do say the messages there were left there gotcha him so even if over notes and they did say that at least once they did find him there so what is a proof so it's that they were at least six by my count eight times that they went he wasn't there so that's that's what the notes show and there's no question that show bomb said that she read that diskeeper are now they don't she is saying that she had that has that they went into his room and didn't look lifton so that we rely on jensen for collective knowledge this is an eighty one zero nine probation enforcement task force so another officer on that same task force is talking to other officers jensen says that with the last ten seconds let me just say the knocking on the door was absolutely permitted and it is fundamentally important because the probable cause question here is due to a problem positive thinking lives there  and informant says he lives there they see him their uniform is you know twenty six they knock on the door when the door slides open they see him sitting in there with a woman who says i don't live here he does i'm just here visiting him they haven't invaded yet at that point a reasonable person not in once or could judge or a government attorney but a reasonable law enforcement person of the west be standard could definitely have a substantial chance and probably cost of levy lives and what about the question of not not on the screen door so the screen door is first of all it's a metal screen door be on that we don't have facts in the other we believe supports our position here as is the tenth circuit case which is to say when there's a screen door any mostly closed wooden door inside it is just normal for the average citizen which informs the fourth moment analysis to not bang on some hard door particularly one that's mental that's all we know in the record in italy that's not so easy to always make a sound and it's certainly not comfortable to knock on and typically people then knock on a door that mostly obscures the doorway which is wood and when that happened they see him inside which corroborates interlocks with all the other facts they know that he lives in unit twenty six and before they conduct their search a woman says oh hey i don't live here he does i'm just here to visit if that's not probable cause then the probable cause dand with respect has mutated in this line of cases well beyond the confines that was b permits and under military gammy this panel absolutely should hold that there's probable cause in this case thank you she she never said that he lives there she said i'm just here to visit him