little caseload it help to call it out on the the most important issue here is the constitutional issue we guarding the equal protection clause and the dismissal of a juror after the trial evidence closed that trial counsel i mean what i thought was we issue there was the fact that the district court made this decision ex party but that he asked is it ok for me to not to take the ultimate action the judge said judge we are all said to the parties i think it would be best for me to speak to the juror on my own he then the parties agreed to that and there was no objection when i complained objecting to the ex parte car asexually ex parte but the contact with the juror out of the presence of the parties what we do object to your and where the court erred was taking it to the next step because then the he came back he said he's gone this jury is not here if the issue is over and that issue was and the objection was made at that point and preserved and it's important to ana because church error i mean district court judges have broad discretion under twenty four to replace jurors there was at the juror he made a determination that he wasn't statutorily qualified so you're really complaining about the fact simply that he didn't come back and say a constitutional issue it goes to the earth and all of our cases are cast if we say if it goes so you're in it but it goes to the composition of the jury this was a jury in which there were only two qualified jurors at the end if a judge decides to dismiss suit your for cause let's just say before does the judge have to directed district judges to make a record on that so you can review the reasons for why they were to the excuse that europe does ok so the court says i dismissed for cause for this reason do the parties  did is after talking privately decided the person was not qualified and is this for a reason which again but whether the parties were there or not at that point is hard for me to see makes any difference i'd like to explain to you the difference it's your own i think it makes a difference someone it makes a difference the fact that this is a batson case makes a difference and it changes the the complection the case because with changes it changes the racial makeup of the jury in a significant way number two the judge did not find based on and that mr that the juror juror sixteen said he was illiterate in fact the judge says he would not admit he was illiterate i think at that point in time if i had been the trial attorney i would want to have explored that further literacy is not a binary thing your honest not you know you can counsel hadn't should have had an opportunity to have that explored further to find out what the limits of illiteracy was this was not a case in which literacy had anything to do with the substance there was that eight fact this is the only time i've seen a federal case in over forty years that there wasn't one piece of paper there wasn't one lease or anything and here there was no paperwork in this case so this was not a situation where literacy played any role other than in terms of the qualification and then the qualification is only he has to be secluded sufficiently literate to be able to fill out a questionnaire and he can have help filling out the questionnaire under the statute the statute contemplates that somebody may help another individual thought a questionnaire so what we had here is a judge having found that there was no racial new racially neutral reason for excusing the jury you're now switching because he thought that the fellow may be illiterate without giving the defendant who's on trial here the opportunities didn't come out of the blue is this the new decision didn't come out of the blue wasn't there some conversation between the jurors wife the juror jury administrator both the judge said there was some conversation we have not we don't even know the name of the jury administrative we don't know the circumstances on which that happened other than the jury ministr somebody sitting in the in the gallery and thought it might be a juror and went and spoke to that person and then that person said i helped my husband fill out the form again there's nothing wrong with helping him fill out the form the question is did he understand enough of the form to be qualified and the but then the the judge questioned the juror in camera and the jurors and and the judge reported back that he could not fill out the he couldn't meet the call occasions of the of the statute no your honor the judge respectfully the judge came back and he said that he had trouble reading that he didn't want to admit he was illiterate and the judge then made a conclusion that he was reported its decision when he came back he wanted the the judge said he doesn't want to admit he's a literate what does that mean your honor he has to be the standard is under the qualification is he he has to be able to read and write and of to be able to fill out the for he did not indicate that he was able to fill out the form if he had done that at work here and had said that would you have an objection lack of coming back and how much it is to the merits of the decision that the court made if i can your honor and it's really to the fact that the judge acted in an arbitrary fashion by coming by making a ruling without giving the parties a right to be heard and a right to see if there were additional questions that's should be put to the witness put to the jury now if the juror had said to the judge judge i can't read and write period the end of the question judge had made that finding then i think we'd have a different situation if there had not been a batson ruling if this was well you said a little bit more than the portion you focused on i made an increase of the jury the juror and it turns out he cannot read and write when i ask him if the answer was not so well i said well did you fill out this form he said no his wife thought out the form i said well did she do it just because it was convenient for her to do it he said no i can't do it and then later on on that same page that you were quoting from he didn't fill out the form itself the signature on the form was not his and so i don't think we can to continue with him so it wasn't simply wasn't simply a statement that i believe he's unwilling to admit that he's illiterate he had a conversation you can argue that it maybe wasn't sufficient but there were additional facts certainly on it and it is and it is in the record i'm not trying to mislead the court i understand that happens to be the section both saudi parties quoted in their briefs yet that i pointed you to and you went beyond that which is i understand but the point is your honor that this was an issue porton issue we got in the racial composition of the jury they had been a batson ruling and then the judge himself went in the back spoke to the jury without objection and made a ruling based upon his find it without giving the parties that an opportunity be heard and i think in that situation it becomes a structural error it went to the event of rights of the of the party i don't repeat if if i may just take a moment i don't think the  any obligation to show prejudice and that regarding preachers can be presumed by the the change in the racial composition of the jury by fifty percent so i think in that case the judge should have had given him the up to be heard we don't know what would have come of that if he had been heard and also your honor there was no contemporaneous record this is the judge reporting later the this court has suggested and instructed district judges and these types of situations it would be preferable to have a court reporter and i think if we had a court reporter there we'd be having a different discussion  and i still have my absolutely we take more of your time good morning you may please the court elizabeth muller an assistant united states attorney from the western district of new york representing the united states in this matter this court should uphold the district court's actions both issues that are a p r pealed here first the removal of the door for being statutorily ineligible and second the police officers actions as reasonable in bringing a dog to track a suspects to track a suspect after nine one one call about a man with a gun judge livingston you stole my thunder i was going to you the part of the record that you read right before i said up immediately before the quoted section where the judge finds and says that the juror admitted in chambers that he couldn't fill out the jury questionnaire the government does not see this isn't it true though that while the defense counsel in the government were both consented to proceeding by having the judge talk to the juror individually the defense counsel wasn't told that i  to buy the court i'm going to make a determination after i talked to him that's true judge i think a couple things about it it's clear from the record that the government counsel and defense counsel agreed that the district court quest could question this juror in chambers  i know the government attorneys assumed now we know incorrectly that a court reporter had gone into chambers to put the questioning on the record and that that was an error that was not learned of until the transcripts were received for this appeal but the district court came back and put his reasoning on the record and gave us a sufficient record of what was said in chambers explaining why he made the determination he did the quotes that your honor read earlier where he gave the he said and i said and he said gives us a record that lets us know what happened and the other side of the coin there is that there's not even a factual dispute about whether or not this juror was statutorily qualified  when the defense attorney at trial objected to the jurors removal on at eight to fifteen he said quote i would like my objection on the record judge we knew during the year that this individual could not read so he is admitting step that the statute which to qualify jurors where a juror must be able to read and write sufficiently to fill up the jury questionnaire he's admitting that even he thought that this juror was unable unqualified at the deer i think this will also would have been a different case judge as you mentioned if the voir dire had been a little more voluminous on this topic the judge had questioned the potential juror about his ability to read during voir dire he had said he looked at magazines and could understand some of what he saw and that the judge probably because he didn't want to embarrass the juror did not tell further at the time which i think is unfortunate because it would have likely been able to eliminate this problem earlier i can also give a little insight into why the juror administrator had this conversation with the jurors wife the jurors wife who was there at wada year and then after this juror was sat appeared throughout the entire trial was in the gallery the entire time and it's so you know maybe not uncommon for a member of the public to come in be interested if their spouse is sitting on a jury but was sort of lurking in the hallways and was at one point trying to get into where the jurors go and that's  maybe not lurking but was was sort of walking about looking for a door and ran into the jury administrator and that's what prompted that juror administrators say you know who are you and what are you looking for i know that none of this is in the record i can give this color as being part of the government that that was involved with this case but just so that you understand it was it was a conversation in a hallway between and that then becomes put on the record that you're aware of  error as the juror was statutorily unqualified and there is not a dispute in the government's view about his his qualifications as all the parties agree he can't read on the second issue the issue of whether it was reasonable for officer castello and the other officers to bring a dog to the defendant's house when he called nine one one the government's position is first it was an incredibly reasonable for police officers to bring a dog to track a suspect after a nine one one call reporting a man with a gun in an apartment hallway when the officers with the dog approached the defendant's door the door was ajar or open according to the record and they heard the defendant say come in it's open or come in officers that's the two renditions we get from officers iverson and costello common sense indicates at that point that the invitation to come in extended to all the officers waiting at the door both human and canine come in is a very broad invitation there were multiple cops on the scene we heard that police officers had spam include an invitation to a dog if someone calls out and you say come in the defendant can see there's testimony from the suppression hearing that there was nothing obstructing his view of seeing the dog walking and i think this is more akin to the us we read case out of the sixth circuit or the state the miller case out of north carolina where in both instances a police officer brought a dog to either a burglar alarm going off or a report of a break in at a house to track a suspect that's the same reasoning here they were trying to get a sent to track the person with a gun in the hallway in both of those cases law enforcement never gives the command for the dog to search for drugs and that's similar here if this is been some device the officer happened to be carrying and by activating the device you could tell if the person was  had drugs in the apartment or was illegally hacking into somebody else's computer it would clearly be a search in a warrantless search and on reasonable if the dog will alert to what he sniffs in the apartment i think the difference is that here police were lawfully present in the house and they were invited in including the dog where if the if the police had some sort of technology that was you know that they couldn't be seen and they were using it to in the apartment search for something else i think is a different case here the police are invited and they could they can look and see anything in their plain view and this in this instance it's sort of this is sort of the snafus sort of like the plainview for the dog i think it it is a different case if the police had instructed the dog to look for narcotics but where their dog the was it reasonable would it be reasonable for the police to have brought the equipment in the house whether it's the dog or not here it's reasonable for them to bring the dog there's no directly that was reasonable for him to have a dog when they were i think they're it's a hard analogy to i'm struggling with trying to find something else to an analogy as a two but it's like if the police were wearing a radiation badge to protect themselves to exposure to radiation and they walked in to an apartment in the  off because the person had you know some sort of contraband that was radioactive would that be an illegal search and seizure i would i would say i know that's a different case than here but possibly not because the radio the radiation badges to protect the officers not actually looking for not actually looking for radioactive material in the same way that the dog here was brought both to track a suspect and also there's testimony that he was brought for the safety of the officers this was a canine law enforcement officer who brought the canine everywhere they went in the district made a factual finding that officer castello brought the dog to track the suspect and for no other reason yes and it was also a factual find it was a clear line of si government would ask this court to uphold the district court's findings both on the juror removal issue and on the search and seizure thank you constitutional depredation we argue was shown there was not i take i take exception to the prosecutor saying there was no issue as to that the juror could not read i think that that was shorthand there was a discussion earlier on where he talked about problems reading and those issues came up and void and they were not found to be significant so i think it was it is spirituality read well enough to be at your right and he made an inquiry of the jury it is two thirteen it turns out he cannot read or write i asked him his answer was not so well so again the church is not making a finding that a juror based on evidence this is based on his  precedent that they can use to say they can bring a dog into the house any time they want and it's not an issue i think the analogy to the to the radiation barrier is misleading because that suggests protection i would suggest you only know we all see the police officers walking around with their radios on their chest if they had built into that radio some circuitry that would sniff drugs i think we'd have no doubt that that was technology being poured in and that the fact that it would show that there were drugs there and lead them to a further search would be a violation of the fourth amendment this is the same thing you wanted this store if there had been eying it's two fingers it is one for protection but it is also that it one could conceive of a dog that was only for protection and that would be no problem but this still this also dog for protection who also could do the other thing and would do it without command and that's what the record shows he did not have to have a command now ancient custom site and off the car still had ordered the dog to do it will that be something that would be another element to show that he had violated and intended to violate fourth amendment rights here he could be passive to also the argument that this was for protection is really misleading the police put themselves into the house they were three armed police officers there was one man who had called the police they didn't need the additional idea of the dog he's not reason why he wouldn't have seen the dog prior to the entry thing important thing is prior to the entry once the dog is in the house you know i think the idea that it that now does somebody not the dog didn't react right away very quickly  allergic to pry would have said that but this is somebody calling the police to protect him he was calling the police because he believed there was somebody in on man outside his house who meant to do him harm he called the police he asked them to come in he didn't have the store to there was nothing more of it you want us i think and also when we look at the objective standard here of the police having a hunch that this black man in this neighborhood was selling drugs alice apartment there's no evidence of that there was no suggestion that turned out they found drugs they found gun found a few hundred dollars but there was no they had nothing at point a into that apartment to suggest that they had no reason to bring that dog into the apartment except you and as a group they had the purpose of trying to get what they did get which was