facts and of course when the police violate the constitution the general rule is that evidence seized as a direct result of those constitutional violations is normally suppressed however there is an exception which is the exception that central to this appeal and that is the attenuation doctrine exception now i think it's worth reading what that doctrine says it says the evidence is admissible when the connection between the constitutional police misconduct and the evidence is remote or has been interrupted by some intervening circumstance so that the interests protected by the constitutional guarantee the th amendment in this case that has been violated would not be served by suppression of the evidence i believe that in this particular case the th amendment interests are served by suppression because the police misconduct was grossly negligent reckless and in flagrant disregard of the constitution in a multiple number of way it was an entry into a home without consent without an arrest warrant without a search warrant without even trying to get consent from someone who came out of the house they had already apprehended their suspect in a neighbor's yard so essentially the case was over but they continued to investigate so they entered the home in violation of the th amendment let's say anyone there to give them permission to go in there was a woman who exited the home when the police were apprehending the suspect in the neighbor's yard and the police made no effort to ask her for consent to enter the home they also didn't ask her whether anyone was inside the home so they didn't know anybody was in the home they didn't know my client live there they didn't know my client they didn't know anything about him they just went into this home that was grossly negligent and reckless frankly and endangered themselves so they went in and the st thing they do is arrest my client three's officers with guns drawn arrest him put him in handcuffs and drag him out of his house so that's the nd violation they essentially arrest him seize him in his own violation of the th amendment then they take him to the cartilage of his home where they proceed to conduct it is a custodial interrogation without miranda warnings now they don't know anything about this guy they don't know his name they don't know anything about him he's not posed any danger to them he is unharmed and an arms of the police said the reason they went in as a subjective matter was to protect the public and to protect themselves but once they found out that he was unharmed in an armed they didn't and their investigation yes the as you well know our our court has previously ruled that  he emergency exception and the protective sweep exception were did not apply here and the actor had acted improperly there so what we're left with is a guest judge but of course this all boils down to the suspicion of this search if you will condition that was in his situation would you address that particular situation i mean it clearly there is a taint if you will the only question in my mind is what role if any does this suspicion less search condition play and if it doesn't why doesn't that's the crux of the matter your honor the reason it doesn't is because a line which i just read so that the interest protected by the amendment are not vindicate it in other words the fact that there isn't a potential intervening circumstance that we do not concede that it was an intervening circumstance because an intervening circumstance such as an arrest warrant in strife is very different then supervised release condition that permits a police to have discretion it's a very different calculus might be helpful to me and my colleagues yes there's a three concedes that the seizure was close in time to the violations secondly is the presence of an intervening circumstance the government contends that the discovery after all of these violations that the they went into the home seized him put him in handcuffs brought him out to the curtilage of the home patted him down asked him for his identification then ran it through the warrant system found out he was on supervised release they returned to the house my contention is that the taint of all those prior th amendment violations was not dissipated because the flagrant c is so strong in this case and it's not just one isolated little negligence like there wasn't strife where you just didn't have reasonable suspicion and stop somebody on the street this is an invasion of the home this is the chief evil against which the th amendment was was secured and so that's the very st problem with all of this and then everything that cascaded after that all the other should that aspect of the case play in our analysis i think it brings the weight of the in a burning circumstance much lower than if it were an arrest warrant so when you're doing the calculus between the intervening circumstance  analysis and the flagrant c analysis i think you come down in a situation where you have extreme you know much lower intervening circumstance weight a much higher flagrant c in this case than you had for example in the strife case is that answer question yeah so as far as the flagrant see goes there were there were more points to this i mean basically what we get down to is do the benefits of deterrence outweigh the social costs and in this case i believe the social costs are extremely low for a number of reasons st of all this is a nonviolent crime secondly mr garcia has already served time for his supervised release so it's not like if he with a supervised release situation is very different than  arrest warrant because the supervised release he's going to be charged with a violation of that and those does not apply in supervised release action so it's not like society doesn't get their pound of flesh for the violation they do and flagrant see prong the way it would have been much lower but because they didn't know until after they'd already committed all these violations it definitely makes a flagrant see stronger i mean it it equates mr garcia with all of us i mean any of us could have been involved in this what if he hadn't been you know subject to supervised release then it would be dealing with the one thousand nine hundred and three action so that's kind of the crux of it that's the reason why the rights of the th amendment are vindicated and i'll reserve the rest of my time thank you good morning may it please the court my name is briggs matheson and i represent the united states in this appeal this court should affirm the district court's decision not to apply the exclusionary rule in this case police officers discovered the challenge evidence in this case during a lawful search of mr garcia's home only after they learned that mr garcia was on federal supervised release with us in a minute wait a minute wait a minute i thought that the search of the home was found by our court to be inappropriate your honor i'm distinguishing between the protective sweep of the home that took place that's the th a much worse which was a violation that was the last of the emergency clyne was a violation right correct your honor the unlawful entry into mr garcia's home was not justified by either the protective sweep or the emergency aid exception but he was justified i beg your pardon your honor what did the justified you know one of the government is not arguing in this appeal that the entry into the home was justified that has already i thought for a minute you said that he had they conducted a lawful search to be home the search of mr garcia's home was authorized by the supervised release search condition that the officers discovered  after this week after the welfare check or protective suite but had they already got in the hall and they discovered the suspicion of the search element afterwards that's correct your honor and so the question in this appeal is whether the causal relationship between the th amendment violation that took place that's the unlawful entry into the home and the relationship between that violation and the discovery of the challenge evidence which came after the discovery of proximity of the time weighs against admitting the evidence i gather i take it that you also view the if you will that flagrantly of the violation is being somewhat suspect to really get out of the nd element which has to do with whether or not this is justified the meaning this is official a search it sounds to me like you're you've got all these violations and then you discover almost by accident afterwards that he's got this is specialist violation how can we base a sound exclusionary rule on something like that worry after the fact you under the attenuation analysis right the key teaching from utah versus strife is that the intervening circumstance needs to be independent from the th amendment violation in at issue and only that their reliance on us versus drives that that was in their arrest warrant judge smith points out and the police had no choice whatsoever but to arrest him at that point it is a mandate for them to act in this case they find a condition of supervised release they don't have to conduct a further search in fact there doesn't seem to be in their record any reason for them going back into the house which decision to go back into the house a nd time was and related to what the police had seen in the house the st time which was totally unlawful there is nothing in the record your honor to suggest that the officers reasons for acting on the search condition once they learned about it had anything to do with what they encountered during this isn't it your burden to prove in that it was unrelated that i mean there's nothing that explains why it know the record is quite complete as far as what the officers did why they did it and what they encountered during the protective sweep the district court found that the officers motivations for conducting the sweep were based on their genuinely held concerns for the community safety the sweep last of them not to i'd given that they had already arrested that person who they were chased by the time they entered the house well your honor this is that goes a little bit more to the flagrant see right now since and i think this was a very close case on that question that provoked thoughtful disagreement even hindsight by reviewing judicial officers but as your question on the intervening circumstance point i do want to address the distinction between the search condition here and the arrest warrant and i don't think it would be an extension your honor and here's why utah vs stright rejected adopting per se rules in this context and drawing categorical lines of inclusion or exclusion around what could qualify as an intervening circumstance and in fact brown versus illinois which is where the attenuation analysis derives from also rejected this idea that only certain types of circumstances could intervene the question as utah versus dr pointed out is really whether the intervening event had anything to do with the th amendment violation in contrary to a balance characterization of what happened here this was not a series of violations there's only one th amendment violation and by the minute you keep going back about the officers  that they had no legitimate basis for going in the house they take this guy outside they run a search they find out after the fact that he has a suspicion less warrant requirement and only then do they go back in but basically you've got to unconstitutional acts then you have this quite by accident almost discovery of the suspicion search i gather you would agree that if there had had there there had not been a suspicion a search condition you would have had no right to go back and write yes your honor i do want to address that the government is not contending or contesting the th amendment violation and it's true that on the objective facts this co previously found that there was one th amendment violation that was justified by neither of the two exceptions that your honor mentioned but i you keep going back to the idea that they were at all good faith and they were the only one in the house and that's not the case here i do want to be clear here are that the test that applies under the attenuation doctrine looks to the subjective purpose behind the officer's conduct and so even though from an objective standpoint the officers were not justified in performing the protective sweep or the welfare check there's no question on this record what motivated officers in doing so so you're saying that even though our court found that what they did was unconstitutional that we can still credit their motives for having done what they did on constitutionally in our analysis of whether the attenuation doctrine applies and search that's correct your honor and that's what this court articulated in the from a management case that the rd prong of the attenuation analysis looks at the subjective motivations of the officers involved and that's because the question at this point in this appeal is not whether a th amendment violation took place the question is whether the conduct was the type of deliberate or flagrant misconduct that the exclusionary rule is designed to deter or is even capable of deterring and the f management case provides a useful example of that principle and why it doesn't apply in this case though is for a moment management deal with a situation where there were two previous constitutional violations before you get to the subjective analysis of the officers think your honor from a management dealt with egregious what this court described as egregious th amendment violations distortions leading to raids for the purpose of conducting an investigation and for triggering investigations by ice into the targets of that investigation and that's nothing like the conduct that we have in this case in which the officers conducted the protective sweep for no in investigative purposes not with an idea that they were going to gather incriminating evidence they didn't know that mr garcia existed so they hadn't targeted him in any way and the district court found in that regard that this court this case is even easier than utah versus strife because the officers when they conduct committed the th amendment violation the unlawful entry they did not have in mind violating mr garcia's constitutional rights in any way whereas in utah versus strife the officer in that case specifically targeted the defendant as part of his investigation into narcotics trafficking and so in terms of the  whether it is your position that even sent thing that the police officers in the st illegal search influence their decision to  running the court so there this court explained in united states versus smith that if all a th amendment violation leads to is the uncovering of suspects identity or factors into law enforcement's decision to target a particular defendant that's the language that smith uses to target a particular defendant that is not sufficient to say that the th amendment violation thereby tainted the later discovery of evidence and that's especially the case when you have an intervening circumstance like the one we have here where there's a search condition that authorizes the officers to search mr garcia and his home for any reason or no reason whatsoever and so on this record which the parties agreed on remained was very complete in there was no need for further evidentiary findings on this record the only information that the officers learned during the protective sweep was that mr garcia existed inside the house and so for that fact to have factored into the decision to conduct the la search would and to find that that in turn warranted suppression would be to reduce the test to an impetus type or but for cause ation test and smith instructs that in attenuation is at its core the manifestation of the court  is that the officers were conducting the protective sweep and trying to secure the scene out of their concerns for safety they didn't ask for consent to the time before the nd time at either point yes to answer your question judge or law about whether or not there was any connection between the protective sweep the initial sweep and the subsequent searches i think there is a connection when they conducted that protective sweep they didn't find anything there was nothing at all to be found and so when they go back outside and they they're now patting mr garcia down and asking him his name and running his search they're obviously investigating him at this point and they have absolutely no basis to investigate him there's no reasonable suspicion no probable cause no warrants no anything so they were they were obviously trying to find additional evidence and people to arrest so i think there is definitely a connection there with regard to whether or not the point about supervised release being discretionary even the district court acknowledged that the police had discretion and that it wasn't a mandatory arrest warrant situation and that's what e r three hundred and twenty dollars so as far as the strife and the calculus between you know i think that there's a tendency to say well if there's an intervening circumstance you know that's the end of the analysis that isn't the end of the analysis utah versus strife is not applicable here because the calculus of the intervening circumstances which in that case were strong versus the flagrant misconduct which was extremely low is very different almost directly opposite to what we have here as far as it being a subjective or objective analysis i think it's pretty clear from the case law that it is it objective analysis and but even if we look at the subjective intentions of these officers the facts but why their subjective intent i mean they say they went in to protect whoever might be inside and to protect out the bystanders but they didn't stop their investigation once they were discovered mr garcia was unharmed unarmed and criminal is completely inapplicable in that case the court didn't even consider whether or not the the