good morning your honour's my name is myra sun and i represent mr coe this morning we're addressing a case that has two issues the first is a fourth amendment question about balancing the interests between privacy and spaces in the home and a question about the and with regard to sentencing a question simply about fairness constitutional procedural and substantive fanous i'd like to just spend a couple of minutes on the suppression motion and the bulk of my time on sente unless the court has issues that it wants to raise about the suppression issue with regard to consent on the suppression motion what we believe is the sequence of events that the district court found is that the officers were in the living room with mr coe that they had an interchange that was largely friendly and cooperative or at least co operative that he made a comment in the district court may found that he made this comment at this time that if he learned his neighbors were involved in kidnapping his parents that he would go next door and shoot them that's a quote from the police report and that is that x excerpt of record one a seven that at that point detective johnson decided to follow mr coe down the hallway where he saw a firearm and seized it had another exchange with mr coe in which he learned that there was another gun and they drove to a storage but more importantly to me to the defense your honor is that mr coe did not say to detective johnson do you want to come with me or if when he got up didn't say a didn't come didn't say come with me didn't expressly consent but to be expressing the objection to say well wait a minute wait here anything like that if this is a very short distance he say anything to indicate that the scope of his invitation into  was limited only to the living area there isn't what mr coe says happened is of course that the officer searched the home without his consent the district court found against him on that credibility question what i do think is more important and what the way i think the question should be framed is whether mr coe invited him to another port part of the house go to other parts of the house and that was after the officer his view was because we do know and i think detective johnson said that a few times he had gone up and gotten other things and come back with them to show that and so what i think is that there was to extent that there was a pattern in this internet action it was that i in the person well you're out of the test is objective it has to do with the objective reasonableness of the nature of the exchange and so that's why i go back to the fact that there had already been a pattern of the officers were sitting in the living room mr coe had a couple of times or three times i don't remember how many times already gone into other rooms and come back with material that he wanted to show the officers were the only objective of provoking moment they were there for a very benign reason they were there come my parents are gone i x at this point we get to the issue of the so called public emergency exception because that's why i think detective johnson articulated his reason for getting up and breaking the pattern that they already  had and this your honor is really where i want to talk briefly about the suppression motion and just quickly i want to say that this there are three components to the public emergency exception we know that they are that it that the situation be objective lee a nalyzed that the harm that's articulated be imminent and that the injury that's that the rest be a serious one and i just wanted to leave the court with the thought that  when a missing persons report is made in the home there is not in fact any object of reason for a police officer to the scope of his presence in the house and to follow a reporting the reporting citizen down the hallway into other spaces in the home there's just nothing about a missing person's report that would warrant that and again we i think the primary concern that the government played out in its brief was the statement about that quote if i fight if we found that the neighbors were involved in kidnapping his parents that he would go next door and shoot them and again i think that we do have to think about thirty the circumstances of a missing person's report and the heightened emotions that might be following them but we don't think that objectively a missing person's report justifies an i mean from the living room well that would he would be saying that from a whole week or a song well then that's added to his information it's it isn't just we've been sitting in the living room having a friendly conversation admitted and i don't know what the status of his waiver of jury trial would have been at that point and whether he would have wanted a jury trial and asked a jury to and i don't know whether it's a fruit of well if we decide  very but oh ok so i really wanted to talk about the sentencing and i'm sorry your honor that the constitutional error here i think well let me start first with substantive reasonable and that is because at the  page fifty five they talked about how the court only marked the nature and circumstances of the offense and not that defendant's history and characteristics and if we are talking about the and if we are talking about know only the nature and circumstances of this offen e we made a number of observations about that in our brief but i just wanted to talk about the premises here the first is that i'm not going to have any rebuttal time but the gut the government points to prior being a murder as distinguishing it and we already know the commission doesn't do that so let's think about why the district court can possibly substantively reasonably have thought that this murder was worse than some other murder because otherwise i think it puts in line pretty much any domestic murder that's an aged out conviction in line for a variance from the guidelines and i just don't think that either empirically or substantively reasonably that is that serves the goals of thirty five fifty three day the court also pointed to is using his identity to get the guns and again that is not by itself a factor that bears on it there are so many other that ways to get guns guns ways to get guns that don't wouldn't have exposed in the way this did so that doesn't make this more serious and finally there was the statement good afternoon make me sick or charlene kosky for the united states credible facts show that the officers in this case acted at all times reasonably and within the scope of consent the district court found the testimon officers credible and based on that testimony the court found the officers had coast consent to enter the residence that detective johnson acted reasonably within the house and that once inside he asked for permission to look around the house and receive ambiguity in the record if you just look at the reports it's unclear at what point detective johnson saw the gun whether it was after he asked for he did ask for consent to accompany mr coe through the house including  hallway but there was also a point where he walked from the living room the few feet to stand outside the bedroom while mr coe retreat documents related to the missing persons report and give them to him now it doesn't really matter because he has implied consent to be does not include permission to enter bedrooms but implied consent exists for example in that case where the wife did not object when the officers followed her into the bedroom and the test is reasonable miss in this case you have the officer who's standing in the living room and he walks a few feet to watch mr coe go into the bedroom to reach the documents and give them back all the other circumstances aside that's reasonable i would also point to testimony that the court found credible and the record detective johnson was describing exactly when he saw the weapon and it says i was just standing in the hallway when he went into the room so we're talking at about that point when he was sitting in the hallway and then he the court counsel asked what did you see in the hallway and he said in the hallway continue down that hallway there was access to other bedrooms and probably a bathroom if i remember right on the floor of that hallway where blankets and other items that were set up and the hallway did you ask him about that at one point when we were when i'd asked him if we could just take a look around the house to see if there was anything in the house that could be related to the disappearance of his family he went he accompanied me as we walked down the hallway and what did you ask him about the bed and then down below he says i also saw a knife on the floor and a handgun that was laying there on top of it kind of in a holster type device when did you see that handgun that was when he was accompanying down the hallway after he has received consent so according to the testimony maybe the reports a little ambiguous as to order that things happened but detective johnson clarified that ambiguity in testimony and the to in the court found that testimony credible and according to that testimony he saw the knife and the gun when he asked mr coe if you look around the house and  accompanied him down the hallway and then saw them laying on top of the bed so i would argue that it doesn't even matter because there was implied consent regardless and and johnson dept of johnson's actions within the house are reasonable at all times which is it's a touchstone test of the fourth amendment but even under coach argument the record suggests that he actually saw the weapon after he asked for consent to walk around the house while mr coe was accompanying him doing that you about the sentencing issue because i saw there's a fifth amendment issue that's raised and i saw something in the government's briefing that was unusual at least in my experience and that the government basically commented on  s failure to interview with the probation officer and said that it somehow raises a red flag because now because he didn't talk to probation there's a red flag about his instability his unwillingness to accept responsibility the future potential risk he poses it's unusual and i haven't seen the government in briefing commenting on somebody's exercise of their right not to interview with probation  and the reason i was bothered by that is that even though the district court acknowledge that he had a right to decline to interview with probation it seemed to me that the district court also picked up on the what was happening at the sentencing hearing that that's actually i think more reasonably interpreted as his explanation for why he's not giving any mitigating benefits so responding to mr arguments if the facts were that you have a defendant who brutally murdered his brother that was deported then uses murdered brother's identity to come back in and so and so we're familiar with that right with the facts of that prior conviction but i think my question is a little bit more narrow it really pinpointing the argument that the government made and the inference that it thinks the court can draw from somebodies failure to interview with probation why don't i don't think that and i think the government even said like it was walk it was being very careful how to express that concern but if she was not that there should be an adverse inference drawn it was that there is a real risk here there are mental health issues that are apparent and mr carwell it is his right not to participate in that interview process by not participating we have nothing to counteract those factors which those factors suggest that an upper barents is warranted probation i think that our johnston it's not i think that that's a perfectly acceptable statement i think that the court is explaining and responding i think the government is arguing that look there's a lot we don't know but there are a lot of red flags here that should be taken into account there is nothing in the record to counter those while mr coe has the right not to participate not to provide information by not doing so there are a lot of questions about his risk to the public and his risk averse database and the other relevant factors and i think then john if this were did exactly what it was required to do it commented on the fact that he was silent and i think that was actually appropriate in considering and explaining why he was not going to mitigate but also recognized that that was defendant's right and he conducted a careful review of the record and an extensive explanation of his sentence and why he was bearing up words and the statement of reasons and has come as a court i don't think that those could be interpreted as saying that he was punishing mr coe for his right to remain silent think it was just part of a full explanation for the factors that issue that went into imposing a sentence and i think that it was really more of an explanation for why mitigation was not warranted than anything else going back to the motion to suppress what was the emergency that justify the court's application of the emergency exception so the emergency exception speaks to the seizure of the firearms and  seizure of the firearms the district court looked at the facts that war and play in the house i noted that a and this is an objectively reasonable test so the officers knew the initial report had said that you know the suspected that mr coe had mental health issues he had said something about possibly shooting his neighbor and he had a rifle and he wanted to do something about his parents and that stuff that was in the initi themselves or others from serious harm and it has to be within the scope the manner of the search and seizure that the search or seizure must be reasonable to meet that need and in this case it's objectively reasonable based on mr behavior and comments that there was an imminent need to temper firearms and that's all that the officers did when they said we're going to temporarily seize these ending the conclusion of this investigation and that was reasonable under the circumstances in the court found that that was reasonable under the circumstances were no other questions i would just finally point out again the government does maintain that these arguments are waived because they were not raised below but if there are no further questions we asked you for thank you got a couple minutes couple of minutes thank you with my first twenty four seconds i want to refer the court again to excerpt of record one o seven and so actually page thirty three in the government supplemental excerpt to record the sequence reported by detective johnson in that report is sat in the living room talk to him i accompanied him down a hallway in the residence because of his comments about a willingness to shoot his neighbor i saw this and i asked him some questions i saw black colored handgun next paragraph i asked koch if i could look around the residence so that's in the report on the issue of constitutional error with regard to the sense your honor i just want to say this we don't know exactly what in johnson the district court said that made the defendant raise the issue of a fifth amendment violation because he had gone to trial and he had not testified and it sounded like they were saying oh he he raised an inference about my not testifying he relied on that and that judge was insulated from any kind of improper fifth amendment suffering from a nation violation because else here we have the district court the sequence of his comments really was right after that he didn't talk to the probation officer after saying the concerns he didn't talk to the  course that's his direction but then he goes on to consider it and then i just do think that the government you've got a situation where it's a pretty experienced district judge who you know explicitly knowledge that he understands there's a right not to don't think that the government picked up on something that came from the court because i think the bang bang bang statements that i quote came first and the government says again in its brief that no medical records were produced to i can't remember i was just looking at it no medical records were were produced that would show that he was free of mental illness i mean if that's what the district court also had in mind then i do think that that's a violation of the fifth amendment all right we've got the arguments well in hand they are you try a few kind of a psych western you know we we got again a filing  his identity could be suppressed and and you didn't argue that i didn't argue that i just if that would bother them yes but what i tried to do was have his supplemental brief accepted and consider because they think and i did think that mr shaw had ordered it forwarded that's why i didn't do anything else i'm sorry about ok thank you thank you just just alert us to the fact that there was something that was attempted absolutely there was something  all right we have coming up next meyer versus northwest trustee services incorporated