they judge they ultimately enter the home after the warrantless entry into the garage finding weapons that leads to mr scott's conviction for being a felon in possession and one hundred ten month sentence the issues for us to resolve in debate today or respond to burglar alarms at scott residence they go down and meet mr scott and a locked gate to describe the property a little bit further it's a rural  area the gate is about a third of a mile off the closest public road then the home through the gate is another one hundred to two hundred yards mr scott present there with a pickup truck that's got the windows busted out he's in pretty bad shape bloody he he says to the officers my wife is shot at me and has run me over with this truck other officers  of continues to tell that version at that point then suspecting that he is the victim i think there are seven officers by this time they caravan and several vehicles down to the home at that point there's panel garage one of the doors is open sitting inside is mr scott chatting on a cell phone smoking a cigarette at that point in the district court found the existence circumstances dissipated  well wouldn't it still be a concern because at that point there was concern for child welfare west and could that not continue the district court found that it did not think it's on page four of the district court's order judge wright did find extant circumstance or are existing there at the gate but then she says once the officer spoke with stacy in the garage and small this and all the small children about whom defendant was worried and determined they were all safe all of the circumstances disappear and of course i agree with that proposition at that point stacy was obviously in the officer's admit this on the stand not in need she's not injured she's not in need of any aid she's calm smoking a cigarette chatting on the phone so i suggest to you that the district court is right that the existence circumstances had dissipated at that point and that was probably only after they talked to her and determined that she was not the person shooting people and that the kids were safe and right you know this it's sort of a timid little they certainly could have told that as they pulled up and looked at the two panel garage door i think so judge i think i think they could i and that's my interpretation of this evidence of a typical suppression hearing with seven all source testifying about events a year later the record is a bit fuzzy but i read the record to say once the two  officers came and approached standing outside of the garage i saw her smoking a cigarette chatting on the phone so she was not injured that's not what the district court found the district court found after talking with her they were able to determine suggestion in the record that they begin chatting with her outside another more than a suggestion the record is clear that then they move into the garage past the threshold and then they either can either begin or continue the conversation which of course continues to dissipate any existence at crossing the threshold was had her circuit had her invitation i don't believe so no in fact i do not believe it was so and we get into the implied consent issue is all they knew standing outside was what they were able to observe they did not she did not invite them in she made no gesture there was absolute silence on her part there was no invitation for b to enter into the garage now subsequently your honor she invites them into the home itself through the garage door that's what i meant by and that's clear threat but i'm i'm suggesting that the dividing line here of the fourth amendment wall is built right there at the threshold of the garage that the warrantless entry ok but until they engage her in discussion why would the exit in circumstances just because she was smoking a cigarette i mean she could have put the gun up against the wall you know still had the kids in peril and been sitting are smoking a cigarette until you talk to her i don't think that the exit in circumstances would have dissipated except that was not the testimony of several  officers their testimony was coming to the front sitting there seeing her sitting down paul morley smoking chatting seeing the child or children it's unclear at that point we were concerned for our safety and i believe that's the testimony and frank's so why doesn't consent get him the rest of the way at that point she says come on to it at that point she says come on in but it is already the fourth amendment violation has occurred once they crossed the threshold into the garage and so again there being no she didn't do anything to suggest to them you are invited to come into this garage  didn't do anything they exclude them either true or absent yes absolutely correct and that sort of reminds me of some old guilty plea cases from the supreme court you can't take as an affirmation something from when there's just silence she didn't do anything and all the cases that both the government i've decided on they complied consent there is act you're either verbal inviting them or there are some affirmative act as i call it my brief the opening the door and stepping back theme description seems to almost sound like she's expecting them to come in with her into the garage and come with her into the house this is all going to be on alarm system video come on in i show you the i'll show you the tape she does but in so reasonable and reasonable most being the linchpin here what would a reasonable officer do in this search in these circumstances there is nothing different between a lay person and office there's no expertise that an officer has standing outside of a garage and whether they enter or not it's just like if i saw my neighbor sitting in his garage or reasonably what i do i would just walk into the garage and say hey steve i would stand outside and say bob can i come in and that's the practical part of this case that there was no reason for the officers to breach that threshold without either an invitation express or implied my suggestion to you it was not implied because she didn't do anything there had to be affirmative act on her part that implied an invitation to enter and like i said the cases that we've all sided there is some specific thing that the person did that indicated to the police well where we were free to enter were being invited into this home it seems like this is hard to  put oneself in the position of the police there as they approach to whatever reason would reasonable officers here think they were being that that they were violating the privacy when the person and is so calm so and polite seeming to encourage their arrival in come in to to learn what it actually has happened avoid disclosure this just seems different you don't have the objecting person and you don't have the locked door and so right i think that the job that that has to be done in this case is what exactly privacy interest was invaded under these unique facts versus what legitimate needs did the officer have to enter that garage without a warrant let's assume then that that you're correct in that they did at that point why wouldn't her subsequent written consent when the day for the government and that is a  issue and brand the case that seems to be the center of that debate is sort of a curious opinion to me that the sort of factual paradigm in in tervening circumstances is you have the allure the initial for the moment violation leading to the other end of the continuum the obtaining of the evidence if what intervenes between those two is a valid concern and that valid consent purges the taint of the initial unlawfulness brandywine is confusing to me because i read the facts in one of two ways on one hand i read it to meet that paradigm which is that the factual paradigm then there is a post hoc consent to the extent that that's the way those facts are i believe that would be incorrectly decided that says if to say police barge into my home search it execute essential general warrant rummaging through all my stuff a blatant fourth amendment violation and then come to me two days later and say mr hendricks will you sign this consent it's simply a post hoc justification that just to the extent brand read that way i'm assuming it's not read that way so in this case we have that scenario we have it again i think the unlawful warrantless entry then the obtaining of the evidence then a subsequent post hoc justification and that and so i don't believe that that consent would purge the taint it's gone that there was nothing intervening between the initial  illegality and the obtaining of the evidence to purge the taint of stepping and other than that that leaves the police search and i don't know that i've got a great deal to add to it at the moment that as i read the record the parole officer authorized to the parole search at that point he did not have there was no officer had any reasonable suspicion to believe that  r scott had violated the terms of his parole at that point all they knew was they believed he was the victim his wife had shot at him who agree the government that you raised frank's issue with respect to the search of the vehicle government argued that it was moot because they don't they represented they didn't intend to use any of that evidence you didn't respond to that in your reply brief so do you agree that you know if if it's a moot issue if the government is he's not concerned about his own safety but none of the officers say anything about their about the kids safety until the kids come out of the house and so that the kids coming out the house is the key to accident circumstances ending and at that point the officers are already into the garage and mr hendricks said that the officers testified that as they approached the garage felt there was any safety concerns is that accurate and i would point the court to update us page two twenty one of the transcript concerning cheever expressed moning he mentions that when he first sees miss got he looks her very carefully to see if she has a weapon because if she does that may be a threat to him and so it's not only him it's only then that his concerns are related and so he's the one who first encounter that mr scott was involved in the shooting and that would be a profile ation we also pointed out that the officers had a legitimate reason to be on the property which was to do with the emergency situation to find out what the true story did you get past the threshold of the garage whenever you first spoke to her or responded he did in another place it's said it piers as if they're chatting outside then walk in and this on and that's  page one ninety of the transcript the officers make it appear that you know there was no conversation they just made observations felt secure walked down so unfortunately it's a fuzzy record to deal with your service in this case under the criminal justice act and providing representation for your power thank you for your willingness to serve