was it inside the home or was it in a doorway or a porch to its home that the testimony honors that it was inside the home with a tackle taking him further inside into the living room so i think that i think the trial court made two errors st they made the conclusion that he could have been detained and maybe that's true i don't accept that premise because the fact that they used to get this was a this was a call that came in from a woman who said this is an emergency i'm just trying to make a record for my divorce attorney because we i'm trying to get custody of my children and then relayed verbal argument through a closed door at a house that mr bailey was fully entitled to go to but but he knew even discounting the stuff that he learned later he knew right at the very least that she was in fear and that this th had done some weird stuff right i mean he would come over and talk pictures around just bizarre behavior well would that not give our arguable reasonable suspicion to detain the guy and ask him some questions if that were the only factor out of that they relied on i think we c there but the trial court had several other facts that there's no way he could have known and in fact didn't even occur the banging on the door multiple rockets children these things that happened so my question in that regard is were these facts taken in the light most favorable to mr payne and so can we not just kind of i mean i tend to agree with you in the last the other side of that if the court was relying on stuff that it should have been relying on the can we not just going to scrub out the bad stuff and say even the good stuff would have been enough arguable reasonable suspicion porch or was he in his parents house physically at his parents house when officer so window went through the door because if he was in his house your argument would be that there's a there's either exigent circumstances or consent and there's probable cause to arrest them right that's right that's what they would have to show in order to be in this man's home and they'd not shown that and yes or to answer your question the detention and if you look at their motion for summary judgment page nineteen the moment that that officer decides to detain him is when he goes inside the house ok now there's some question there's a fact question about did he cross the threshold was he at the threshold three witnesses that he was inside the house ok but the officer says when he was detained he was on the porch and our question to you is are we bound by the supreme court's opinion and united states versus santana supreme court said that the doorway going to porch is considered a public place it's not a part of the curtilage of the home well the testimony is that he was inside the home the this does officers when they say that he does not ok and so your argument is that we have to look at the facts and the like most favorable to mr bailey and because he's got two witnesses who say that when the officer tackled him he was on the porch reasonable suspicion based detention occurred perhaps while the officer was at his car and dude was on bailey was on the porch the the they says for the full blown arrest which occurred on the light most and the fact on the facts light most favorable to you inside the house was his resistance of that initial detention is not right so we have the tension outside the house but no arrest alternately inside the house your view we don't have any potential i know that you don't lie i know that you dispute that intention but if there was a detention something short of an arrest then it happened outside the house when he was there going to say he wasn't free to leave because the officer was being a jerk and was ordering people around and that's where the detention occurred he was standing on the porch the officer standing near his car if that's what the guy was detained they was detained and when he turned around to walk into his house that's the basis for resisting an arrest or whatever resisting law enforcement activity so there is an arrest for that crime inside the house is that right testimony in the light most favorable to us he told him all of those things beforehand and the last thing you told him before you know them was you're not under arrest a reasonable citizen on his front porch been told he's not under arrest has the right then to discontinue that contacting go inside which is what he did the testimony is that is what he did and then the testimony is also that he was tackled inside his home it's it's tough your honor to convert he was free to go i thought he was free to go i told him he wasn't under arrest detention i guess what i'm suggesting is that even if there were a detention outside the home even you know because we're here on this sort of arguable reasonable suspicion standard qualified immunity even if there were a detention outside the home and even if there was probable cause to believe that he had violated the law by resisting that initial detention and it's possible that you still win because there is an arrest now inside the home it's ok i just want to make sure i had sort of the chronology correct and i recognise of course that you dispute my premises no no knew some there was no detention there was no reasonable suspicion i get that all i'm saying is that it might be that there was reasonable suspicion and there was a detention and there was a violation of the law but nonetheless peyton says the arrest occurred inside the home and that's an awful yes ok and they've actually argued in their briefs that there were i don't call them  i'm going back inside and slowly walked back inside and makes it inside there's there's no testimony or even suggestion that he quickly evaded or tried to do any of those things the justification for entering this home is that even though the report says there's no evidence of any firearms or anything like that and this is a staff sergeant air force you know studying for an exam i mean if he doesn't know those things it's outside of what he what he would know but there's really no reason to think that this man is heading off to get a gun he doesn't have any priors they know that before he gets there there's nothing out for domestic violence they know that the information that they have when they go in the house it's know i think the other side's the toughest spot in this case for them is showing on a qualified immunity sort of watered down arguable reasonable suspicion standard that there wasn't reasonable suspicion or that there wasn't a detention i think frankly for you the toughest part of this for you is if as judge wilson says reading the testimony in the light most favorable to bailey there was an arrest inside the home page it's pretty clear right well i don't think it is i don't think it's that clear and we don't think peyton is clear when it says we have drawn a firm and bright line at the entrance to the house i think the entrance of the house based on santana threshold  doorway we're good to go once you get in the house if we have exigent circumstances pursuant to florida statute nine a one fifteen deputy swindle was permitted if there is a misdemeanor committed in his presence which there was a violation for the statute forty three point zero two but so you've said two different things you said to me number one forget about paid in this case is controlled by cent tanna i have my doubts about that frankly i'm not even sure that santana has a majority holding because justice stevens has a separate concurring opinion in that case which seems to be narrower so the rule that you want to draw out of santana is a four justice rule i think and then separately haven't we said post peyton that to the extent that there is some uncertainty about how peyton and santana mix i'm looking at this case mcclish versus new nugent where we say to the extent that santana is read as allowing physical entry past peyton's firm line bounded by the unambiguous physical dimensions of the home without a warrant or an accident see the interpretation is inconsistent with peyton the court subsequent cases and our own binding precedent well that's what and that was the point i was going to get to your honor is that there were accidents ok so just so i'm clear so there are two arguments that you ride it sounds like you're right both your honor because i believe the facts support both are you talk to me st about payton and santana then i promise you will get extant circumstances but talk to me st about payments and tana it seems to me that if the testimony read in the light most favorable to bailey is that he's inside the house peyton just sinks you and that santana doesn't save you and that we have said that santana can't save you but the problem is the facts in the light most favorable the pla and nineteen through twenty five are the lines the question was all right so after mr swindle said you for the rd time that he wanted you to step out of his car and and you said no the next words out of his mouth are i'm going to ta you after i turned to go inside yes so as you turned to go inside you and mr swindle were the same distance apart we just saw the videotape of you and i answered roughly and didn't mr swindle say to you you were not free to go no ok did he say anything to you at all answer i'm going to tease you ok all right did he touch you at all before saying i'm going to tape you answer it was at the same time so what we've got to stablish here is there a turning around there is a touching there is a statement by deputy swindle i'm going to take this happens at the same time he later goes on to say that it's simultaneous or didn't swindle repeatedly would have an opportunity to teach swindle with two prior inconsistent statements which the jury would be entitled to rely upon right that is correct and didn't jeremy and evelyn both testify home yes ok so then i mean isn't that enough when they were eyewitnesses and we're going to read the testimony read the testimony of the evidence in the light most favorable to bailey the very worst we've got a he said she said between the parents of the officer and we believe the parents for purposes for this procedural posture right and i can appreciate that that statement however what we do know is this as he turned around to go inside and he says the put the appellants is claiming that  the testimony is reading that he was inside at the time that he was tackled well to get to that point the officer has to make some kind of effort to get to that get to that area where he's at let's change the facts about it let's say your officer rolls up on the house sees what is obviously a drug transaction going on the front porch the bailey goes into the be some additional facts that would be fleshed out but there could be a concern by the officer at that point that the really destruction that it's there's going to be some kind of weapon inside particularly the skin that you rely upon exigency of circumstances have officer safety a concern for that for which we do know how much the officer how is this officer safety he was concerned there what there might be a gun and this is the county a rule county where guns are are heavily populated and in fact what we do know your honour's is that there was a gun he had a gun his the appellants father came out and pointed a gun at his head while he's trying to arrest mr bailey he actually dealt with that so there suggest that you know well  then seemed like a well founded fear well it actually happened and so because it actually happened that further supports his his fear that he initially had he knew the area he also knew that this was a domestic dispute of some sort house the complainant you complete was not there no ok well i note that in your brief you never argue that consent or exigent circumstances apply flat in fact on page forty seven of your brief my reflect that you suggest any suggestion that he might need an exception to the work requirement if you have your proof with i do  where do you say on page forty seven about exigent circumstances i don't see anything about it there your honor judge was and might be referring to the st sentence where you say it does not matter whether this was an emergent situation or one where it was not not sure exactly what that means but it seems to me you did not argue exit in circumstances in your brief know i did never see that argument in your brief based on the circumstances that were going on at that time based on the law that had been established at the point of the arrest as of timber one hundred and twelve thousand and fourteen his actions were appropriate so it could be implicit from that you mean that that's where it would be but you take judge proctors point right this is the same colloquy that i was having with you earlier there are two different very different arguments that you're making one is forget about payton this is to send ten acase forget about exit circumstances for that matter they could arrest him because he was on the threshold or whatever the other is no no he was in the house fine i'll grant you your premise that he was in the house but exited circumstances permitted them to go into the house and it sounds to me from your response to judges wilson and proctor that you really haven't made the nd of those two arguments today you sort of have but not in the brief i would say would be implicit based on that that nd argument starts on page forty eight of our brief where we talk about what the clearly established is and what why he would be protected under that as we know that's a nd problem for qualified and qualified immunity and the purpose of qualified immunity as this court is well aware is to protect the officers and doing their job it's to make sure that only the clearly incompetent are held liable for their actions not that this these officers have to try to dance upon this hazy border of what is the law what can i do what can i do that they can actually they can protect themselves they can protect us they can do the change that way you don't have to worry about while i'm on the porch inside outside the foyer and the curtilage whatever at the threshold of the door the supreme court has said in the interest of clarity that's where the rules change that's a perfectly good discernable applicable rule for police and that could be and that could be the case and i don't i don't necessarily suggest that it's not the case however what we have conflicting here is you have you have those holdings then you also have the statute that an officer can go ahead and read nine hundred and one point fifteen dollars and it says he's allowed to go after somebody if a misdemeanors committed in his presence while he's conducting and subject to the th amendment presumably correct to the extent that there are any limitations yes however he says immediate or in fresh pursuit and so his actions deputy swindles actions were immediate this was not one of these we're going to sit here and think about what i'm going to do i mean the guy would in size you know should i so you know after i'm sure get a warrant should i just leave for the day should i just assume this dispute will all be over he had a right to go and do that and so based on those certain as of the law that was set at that time on september th two thousand and fourteen a reasonable officer would think he could go and do these things he did not make a completely incompetent or irrational decision to go and do what he did there's no dispute we wouldn't be here today if he had just gone and gotten a warrant that probably would have been the easiest and simplest things but we're not looking at things hindsight when we make these reviews we're not doing all the hindsight and what we have got the warrant for well he was what have been the probable cause leading to a warrant based on the circumstances well the st thing we would have is at that point when he went back into the house we had a violation of eight thousand eight hundred and forty three two he was not he was obstructing resisting or opposing a law enforcement officer conducting a lawfully executing duty which he listed telling him to me to make an investigation and sermon if a crime had occurred previously in that evening at his former marital but as that i thought at that point so when dell says he had no probable cause to conclude that any crime occurred that is correct and he was referring to whether or not there had been an assault or whether there had actually been stalking that had occurred there the fact that those issues never got charged with crimes that never charge against him it doesn't matter if you're state holding that an essential element of the crime of resisting an officer without violence is knowledge on the part of the defendant that the officer intended to detain him or her correct and that's thought my time is it may i answer the question you mary if we look at the facts of what was going on in a reasonable person would have known would have plot i can't leave the situation you have an officer who is repeatedly the mandy that your brother and your mother go back in the house repeatedly demanding you go to his patrol car to come and speak with him he is yelling he is being aggressive he is in greeley looking towards that came from mr bailey himself those were his words you have that you have an officer there in a marked patrol car in uniform this is not a friendly consensual encounter as the appellants have attempted to persuade this court to believe it was an investigatory attention by all means from the perception of law opposing that inside the home all the information that the deputy had when he showed up when he told him i wasn't under arrest and he acknowledged later you know what he said he was free to go was that a crime had not been committed the testimony that when he turned to go inside i mean it when he said something and placed my hand is in dispute in the location that's in dispute we've got a reactionary gap that he testified that he keeps witnesses gave that gap away from him to you know up to thirteen feet or yards i can't remember honestly i think his feet and the cooper versus state is exactly right and you have to have knowledge that you're being detained when an officer tells you you're not under arrest and then a year later but before the summary judgment says my understanding was he was free to go at that time nothing changed other than he wasn't going to continue a consensual encounter just so i understand the chronology the point you just made about the dispute the evidence my understanding from the record is that bailey evelyn jeremy if i had the names correct they said that the hand on the shoulder occurred inside the home the officer said it sort of started outside the home the testimony about a hand on the shoulder really only occurred from the deputy everyone else as i said the money was it was a it was a full tackle got it for arm with a taser but the for the st contact they say inside the home deputy says outside  got it ok exactly right and the other issue i guess that for chronology purposes although i think i think we get the hollering between the door that happened more than two hours ago before the deputy got there right at two hours before the deputy got there and they're separated by miles and miles and miles there's not there's not a concern that something's going to blow up there not a reasonable concern unless the panel has you know the questions of time and i appreciate you allow