i've been told that many times myself out i'm a tyra's or two minutes for rip off and i do want to address both issues but i'll start with the search issue because a goes to the actual conviction which is of course the most fundamental thing for mr walton this is a case that i would characterize as one where the police and the government want to have their cake and eat it too the original focus of our motion to suppress evidence was that this house was to make an arrest they quote formulated a plan unquote the lead officer testified that quote my job was quote to get him to open the door and quote jack not a single one of the appetizers according to their testimony had their guns drawn yet three different officers testified that it's standard to have guns drawn when you're dealing with a suspect you think is armed or dangerous and that's frankly exactly w would be nice if you came out it means you're supposed to kind of so that's what happened here and that's why this is not a voluntary act and this is  do with the district court's conclusion that mr walton came out because his wife on the telephone told him to do it the problem with that your honor is that is a product of what the officers were saying and doing was reacting to what they were saying and doing and that was combined with what the officers are saying and doing that only happened because the opposition were at the door saying something about are there something about should well that's what she said she thought she heard that he went out because she told him to go out but it's also through well but she told him to come out because the officers with that said they're saying something bad being armed or something about shooting the testimony by the officers was that they said we want you to come out i don't think officers cannot walk up to someone's door and tell them quote we need unquote you to come out and lie to them about why they want them to come out and then the person comes out and have them say that's not an tells her husband to go up and the officer said that what they said was we need to see if you're armed i don't think they were claimed remember their exact words and they may well have said we need to see if you might shoot or something like that i don't think those two things are inconsistent and certainly whatever she said is a response to an a product frankly of them being at the door and what they're saying i was simmonds yet but she may or may not have heard them correctly and she and she admits that that she that she's not sure that she that she could have been she could hear words specific words are little bit ambiguous because we have no tape recording we have the memories of his wife we have the memories of the officers you know memories are tricky but they all testify more or from the same thing the officers are saying we told him to come out we needed to come out because we were worried that you might be armed and in that conversation it's easy to imagine a day might have used the word shoot and she says she heard the word shoot she might be misremembering she might have heard the words armed almost she doesn't say that but the testimony is actually pretty consistent the police officers were saying something to the effect of we need you to come out because we are concerned and i'm now making use of my own words around  concerned you may be armed and we may get some shooting here now whether those are the precise words i have no way of knowing the wife hearing some version of this tells him you've got to get outside you've got an eight year old son in that house and i don't want to shooting going on in and  injuring him so my point is your honor at that level of generality i don't think there's any dispute about the evidence and what the was so then what you have is what the wife says is a product of their misrepresentation about why they wanted to come out and so i think even if you could say it was just the wife telling him to go out that made him go out that's a product or a fruit or caused by their misrepresentation the bottom line here what's really troubling about this case it is this testimony by the lead officer it makes it very clear that their whole purpose their whole intent was to get this guy out of the house by hook or by crook and i don't have any dispute about that either that's true and that's the problem is that the way they did it was the wrong way the way you know that a trick someone into coming at you not a with you and in their minds are thinking once we talk with you of course we're going to arrest you now is that the fourth amendment it gets a lot more feisty in a closer call your honor but that's not what we have here so you need to address that i think that becomes right now a gray area frankly i don't i don't know for sure and the answer i'd rather my facts that i have than those but i think an argument could possibly need made there it's a gray area somewhere the line gets drawn but here they basically acted like we just want to see if your arm no big deal and that's not what it was and i do want to take a couple minutes on the breach of plea agreement issue unless the court has more questions on this search issue the main thing i wanted to emphasize there that i think the court really needs to understand why there was damage here is this is a case where there was a real chance of getting a polo guidelines since first and foremost you have the probation officer recommending affirmatively recommending a lower than the guidelines that doesn't happen very often and second there were arguments to support that recommendation we had very strong evidence that the guns in any mission were very old and had been left in the house when mr walton's father certified license certified nursing assistant and was trying to get a license doing that i mean this was a man who there was a strong argument was trying to turn his life around obviously he had a new offense so he hadn't been completely successful but there were strong arguments to support that recommendation yet another new career selling crack cocaine wealth or it's very you know he was doing it on this occasion hard falling back but i mean this was a there was stuff to support that recommendation and that's why the breach here was  arrested the district court property found that the reason that the defend open the door was because of the statements made to him by his wife that loud let me let me start from sort of general principles here just make sure i understand your argument and the consequences of your argument if he had not been talking to his wife on the telephone if you have somebody come to the door open the inner door the police have said to him we need for you to come out intending that he come out so i'm sorry i didn't understand just like that what if the police have their weapons if the police have their weapons drawn and the defendant can clearly see that their weapons are drawn they're telling him we need you to come out now then you're getting to a point where the person can't voluntarily decide i'm going to stay in but i saw you even said it was not a proper arrest without the weapons drawn because that was not my hypothetical my apathetic and said we needed to come out he steps out on the porch and they arrest him i heard you say that that's an illegal arrest no no i'm sorry you are then i misspoke i was saying no that would not be an involuntary well i mean why is that i mean need is that that sounds like a command what if they said to him not need then send him out on the porch and he is at that point you have to look at many more circumstances that one fact in a vacuum i think makes it a very close call you have to also look into what was the tone of the conversation was it was it the tone of an order or was it the tone about that that's true but the officers can operate with multiple motives and one of the things that that is clear here is yes they did intend to arrest him but at the same time they can also legitimately believe that they need him to come out because  telephone but that the government can't be held responsible for what someone else is going to misinterpret especially in this case on the she misinterpreted at all that we may fuss a little bit about the words but she's hearing basically what the police say they sent this to say we conclusion is very different than the reality of what's happened time she in her mind is telling her husband open the door they're going to shoot the house but the government can't be held responsible for her reaction to that she's not thinking they are not reacting as if what she's heard is they need to determine if you saw him she's reacting as if what she's heard is they're about to shoot the house you know she's please open the door that's what are you thinking the government can't be held responsible for her i believe in this case mis misinterpretation of hearing the correct word shoot used by the officers on the porch but you or i would i would turn to the question even if you excised the wife in the situation where there is no guns drawn where the word need whether or not they have to run the address they have to figure out who was there that they probably run a rap sheet i'm speculating out at facts be on the record with my two minutes left i'd like to turn to that breach are going lester any other questions on  voluntariness issue your honour's in this case your honor the first question is is there a breach and the government's missed that there's not because in this case you have to view the government's filing in time text the government's filing in which  repeatedly urged the court to apply the guideline level was in response to defend its position arguing that host book or the court should apply cents below the guideline level now that the government made a mistake and should have put a sentence in there th before the sentencing hearing the court could evaluate all of the facts defense position government's position government's recommendation that the defendant be sentenced to sixty three months and it sucked in that case there is no bridge the earlier attempts is properly seen not as an as an effort to undermine its bargain for recommendation but rather a response that the guideline level that the sensing commission computed in this case for this offense was appropriate and that the court stick with it free man to a different judge even if this court does find a breach and doesn't find it appropriate such an exercise would would be wasteful all of the information that would be presented that was presented to the district court with would simply be represented to a different district court surprise me at all given what the police say why is the wife somehow an independent cause for his coming out given that the only thing that's prompting the wife to do this is overhearing on the telephone th situation that the police are creating the police have to be able to have a consensual encounter with someone inside a house and not be held responsible for the even though i agree she didn't miss here but she did come to her ronis conclusion her i understand that i'm trying to point out how if they were the same we couldn't rely on that is exactly the product of something you're not supposed to do but she's focusing on the house being shot of obviously course of anyone who opens the door in response to that fear is acting out it is in acting voluntarily but that's not what the police did here they didn't lie they told the different why they were there that they needed to see him the reason they need to see him he didn't open the door in only after his wife e him on a bike and he took and they were on foot and they have a car there the testimony is that they were on foot they get were not able to catch him of the vehicle i believe was with the woman to whom he sold  they have probable cause they they don't have a warrant they've seen him just engaging in illegal activity they want to gain custody of you and government would assume after that fact they would speak with them and attempt to gain his consent search the residence war alternatively apply for  base the entry in the home and there was only three in the home until after the arrest and consent to search so exigent circumstances would really be dealing with either forcing him out of the house or going into the house to search it and that wasn't spitzer's declaration they were driving back and that was when they saw mr walton against a vehicle was back sack and i believe one of the officers out there they saw when they saw him on the bike they were in the car i believe so or else they line paragraph seven a lot of alleys second fact your honor i believe and i'm not finding it immediately in the record that one of the officers who testified testified that they were watching the house and saw mr walton return that certainly implied that he declarations that he returned to the house the third point i wanted to make was they did have a description if not an exact name please find that letter for you leave you find that you fill out one of these gunshy circle are right i'll do that your honor and all the other fun mistaken as well obviously third your honor if you look at the excerpt of record twelve they had a fairly detailed description and a moniker for mr walton there is there is case law that says you can get a rest they have a search warrant for the house and there's case was if you can get arrest warrants even when you don't have an exact name i would submit they could have gotten an arrest warrant for this person easy with this description and their description from observing him seconds i