may please court good morning kevin bledsoe on behalf of the appellant's the issue in this case is whether it was clearly established that officers who had a reasonable belief that they interrupted a burglary in progress are prohibited from entering the home to check for potential victims or dish will perpetrators and the answer to that question is no that was not clearly established it was not clearly established in march of two thousand and eleven and is not clearly established now in fact numerous state and federal courts which have considered the question have all held that warrantless entries are justified on the basis that they didn't circumstances and the police reasonably believe that a burglary is in progress or has recently been committed i ask you a quick question just about the argumentation in that case it felt to me a bit like the briefs or ships passing in the night because you're talking about accident circumstances and burglaries in progress or recently concluded your opponent is talking about buoy and protective sweeps incident to arrest is that always been your contention have you always been travelling under an accident circumstances theory or were you ever travelling under a protective sweep theory and if no to the last question how was it that we got into protect sweep land here i think that the stronger position in the better position is that the entry into the home was based on exit in circumstances because of the burglary i think you can make an argument that you might have a billy sweep in arrest if someone is arrested on the note import the question my colleague ask you ask him you always proceeded under the theory that it was i want to make sure you argued to the district court the thing the same thing that you're arguing to us which i take to be really an exit in circumstances based position yes yes we did as circumstances go to that the search after the national search when they went in everything's ok then to come out and they go and later the re was there was an inch an initial entry by the first officer officer raible and what the undisputed facts are is that he having reasonable suspicion that he had interrupted a burglary in progress he opens the back door which leads to a two by four what's been referred to as a safe room so that opening that back door leads to basically a nother back door and what he does and you can see in that were some pictures that we put into our briefs this is a ten second entry where he simply opens the the second back door leaning in announcing the presence of law enforcement so that was justified further in zion correct correct it was literally a ten second and the pictures are there in evidence it was literally a ten second announcement now of course the initial officer investigated raible he doesn't have the bullet proof vest and so they haven't cumulated a team to do the full entry so the full entry that you see with the officers who have weapons drawn and are wearing bulletproof vest and there are four of them the full entry is then done again under existent circumstances to check for additional perpetrators  or potential victims somebody that might need medical attention somebody might be held hostage and again i think that the evidence that the law at the time was was pretty pretty pretty solid those are pretty much a consensus that a  burglary particularly a fresh burglary a burglary in progress is which is what they had reason to suspect does explainer does create an exit in circumstances too to check for for the safety of the occupants that might be in the house but i guess in fairness the district court says that you really didn't have any objective reason to believe that the burglary was still in progress and there is this there are sort of two lines of cases that i've seen some cases in the in the other u s court of appeals say in progress i think maybe what six eight ten ninth circuit's and then there are some state cases that seem to expand on that a bit to say yet in progress or recently concluded  colorado north carolina maryland whatever do you know i mean don't you sort of need that extension don't you need the recently concluded extension here i don't think that the law requires in progress although i think we have obviously a very strong evidence the suspicion that it is in progress because we have actual suspected burglars right in front of a unsecured back door but when you look at the case and you try to do the clearly established analysis yes there are a lot of cases which it seemingly just the suspicion of burglary alone without any evidence that this is an ongoing burglary or even a recently committed b nevertheless there are there's a finding of accident circumstantially if not if the burglary if you had reason to believe the burglary had concluded a week ago correct me if you have a hypothetical let's say where the police are you know doing a stakeout of a house and  know that the burglars did never entered into the home or they know the people in the home or are safe for some reason or again you're gamble if they know that this burglary is two weeks three weeks old then that would you know mitigate against the edge in circumstances but that's not what we what we have here and so there really is i think it sounds like your position is there are two pertinent existent circumstances here relevant to a burglary one in progress two recently concluded r the the former i supposed to check for perpetrators the latter i supposed to check for victims correct i think that i think that's a fair you know i think that it's notable in this case that the district court didn't have the benefit of the supreme court's decision in white versus poly when making its ruling the white vs poly case actually came out about three weeks later because the district court's opinion really has that same flaw in that it failed to identify a case where an officer acting under similar circumstances was held to violate the fourth amendment and what that means in a case like this is some binding precedent prior to march of two thousand and eleven from the united states in court from the eleventh circuit or from the florida supreme court  they would have similar facts meaning a case that involved existent circumstances in the context of a burglary of a dwelling something that would give the officers notice that what they were doing what they were about to do was unconstitutional so that all but the plainly incompetent would know what they did was wrong but in fact if you do that analysis if you look for the case law not only are you going to find out that is not clearly established that you can't go in the home it in fact there's a r body of case law that court has as reference in florida in other jurisdictions that hold the opposite that in fact reasonable suspicion of a burglary in a dwelling does in fact provide are multiple rooms and i think the evidence was that again when that back door opened it opened to like a two by four smaller room and they were i think there was a studio where there was some recording equipment and then some some back bedrooms as well so there was certainly reason to be concerned that somebody needed to go through and make sure again that there's not burglars still in the home or maybe more importantly that there's not a you know a victim somebody being held hostage all the reasons that every court that has analyzed this issue it is pretty much uniformly every court that's analyzed this issue as has found exit in circumstances under circumstances where the officers reasonably believe that they interrupted a burglary in progress and what about what about the downstream entries the third fourth fifth however many there were i guess once you've seen the marijuana in entry to write record i got to confess i was and we can ask mr haynes about this is well i was surprised that there wasn't more law on this sort of plain view justification for the third fourth fifth sixth entries looks like you guys are signing someone published decision of ours and a mississippi cases i just expected there would be more it's not really all there is you know there's also the florida supreme court case of cyber versus state one twenty three southern second four sixty so there is some law but  you know of course it would be the same analysis that the court would have to go through is there clearly established law that the re entries are improper and the answer is no you can't find the law that that helps mr haynes inside of the case and yet as the court had noted there are certainly cases out there that support our position of the case and that was because when they come into the house and they do see in plain view what is apparent contraband in plain view the you know the initial entries once you know the individuals expectation of privacy in that sense has as as as dissipated that the officers can you know stay and it's not a kind of  case law i think is the mississippi case that the court was referring to the issue is not how many times the police officers at that point cross the threshold or whether an additional officer comes in and the cases that are out there are counter to an mother and maybe a co author of the house came there later on in the process after the entries and actually at the request of her name was miss gregory at the request of mr gregory one of the officers based on our reading of the summary judgment and the arguments raise that they were alleging because of the arrests that they had a exigency which is the second component of buoy to determine if there were persons in there who could pose danger or were injured what they've grossly overstated and what the lower court never determined is probable cause this reasonable belief and there's a litany of cases th brought with me from within this circuit say is that in order for a the worn exception to apply in the burglary case and dockery versus doyle is the most recent case by this court cited in the two thirty and i'm very familiar with his call more versus peterson i was the actual attorney who represented mr moore in this court in a very well written in bank opinion side at four five six prior cases from within the circuit as well as adopted my argument from the us supreme court that reasonable suspicion does not allow an officer to get into the home and that was understand that the question is whether probable cause to believe that a burglary has been committed was being attempted allows an accident circuit exigent circumstances quick search of the house we don't have a decision directly on point judge nuisance introductory question was was that argued before the district court back through the district court opinion in the dischord has an extensive discussion about it and says basically yes you can go into the house as an accident circumstance if you have reason to believe there's a burglar in there so it was argued brought to the attention the district court the question is whether it's clearly established either that you can't do that even with probable cause to believe a burglary is going on all or your fallback position i would assume is that no reasonable officer could believe there was probable cause it's say that a burglary had occurred or was occurring in the house right now if i may give the court the published opinions united states versus franklin six ninety four federal you don't need to cite them to tell us what they said yes in that case this court that the warrantless search of the home may be justified were both probable cause and sort of the right and it's not clearly established that probable cause to believe burglary has occurred or is occurring is not a exigent circumstance so if they had probable if they had an arguable probable cause or reasonable officer could have believed that a burglary had occurred there then you lose because if they had probable cause to believe a burglary had occurred there it's not clearly established they couldn't sweep the house yeah i see that again is combining two issues the sweep is strictly for take i'm sorry i should news that verb if they had probable cause to believe that a burglary had recently occurred in that house as it is not clearly established that they could not go through the house in a non sweep fashion indeterminate if there were any burglars left in there are any occupants of the house who might be injured you're going to lose if you say our law is clearly established that if there is probable cause to believe a burglary just took place they can't go in without a warrant that's not clearly established ya know what i will give this court is the cases that says probable cause doesn't get you inside of a house is probable cause plus exigent circumstance and the plus accident circumstance for present purposes because it's not clearly established against these officers is the belief that a recent that a burglary has taken place that is taking one set of facts to satisfy both prongs no it isn't no it is not if they arrest him because they have probable cause they have arguable probable cause to believe they committed a burglary that's one thing yes and then the question is do they have arguable probable cause to believe that a burglary was committed in that house recently and that exit circumstance means someone in there is in need of help or there's no time to secure a warrant in this case according to the facts of the case he only saw two people the reason why he thought there may be a burglary because it was broad daylight noon no in there the cases that they have cited he didn't go through the home first time the video i asked the court to look at the video the video speaks for itself he went inside the four years of the house and now it's themselves he did not hear like the cases that are cited he can say that no reason officer could have believed that a burglar wouldn't say present i mean it doesn't come on council that's not what i'm legit i'm alleging that what i'm stating is that no reasonable officer would conclude th someone was in there that was in need of help when there's the not even a vehicle have to be in need of him it can be it can be committing the burglary or damaging property or harming someone inside intake or harm a someone inside so therefore they have to be probable cause that someone is inside their own offices statement was that he did this to you counsel and you haven't focused on it if you don't want to i'll promise own hassle you about this again yes but the law for qualified immunity purposes because it's not clearly established otherwise is if they had arguable probable cause to believe a burglary had recently occurred in that house that's enough they don't have to additionally have arguable probable cause to believe that in addition to a burglary there might be someone injured in there and there might be someone being held in there there might be a burglar in there in the fact that it is a recent burglary the other circuits that's enough you don't have to also believe there's a third burglar in the house again if i have put forth franklin parker vs allen also out of this court the eleventh give them permission to go into the sanctity of the home if you understand the chief question is that the existence circumstances here so the other circuits say so dca in florida says is that there there is reason to believe that a burglary was recently committed good enough good enough for extant circumstances i think what the chief is asking you to do is to explain to us how in the in the face of that law existing in other circuits in the d is clearly established against the officers i will offer the the court also united states vs two hundred ninety one thousand eight hundred twenty eight dollars that was the case a lemon circuit two thousand a to pinion this was a case in which the they found that there were some circumstances because the burglar alarm had gone off multiple times it was the middle of the night and the back door had been kicked in that gives the exigent circumstances doesn't mean if the back door had not been kicked in there wouldn't  i mean just because a circumstance exists in a case that finds no violation doesn't mean if it doesn't exist there is a valid and certainly done clearly established in every case within this circuit that deals with the burglary that found  circumstance there was physical evidence of the actual intrusion door breaking in a long arms going off right window sat a pink counsel you're flipping the burden they don't have to establish that there is a case clearly establish ing that they had the right to enter as eeg zach exigent circumstance of recent burglary you have to establish that we the supreme court of the supreme court of florida has held that the belief that a recent burglary has taken place in the house is not enough hail yes not infer but read holding out of one of those days one of those court the  as i mentioned before this unoccupied well if you don't get to go in because you have no reasonable belief that it is occupied you don't get to go into just investigate you don't get to go in to see what was taken you have the people in custody know it  because he said himself when he went by the house the first time and that's the point that the court brought on ecstasy is time card that was his reason to believe according officer abel that the car that there was no one at the house the issue of actions you see is timing is also factual and the under the lower court clearly pointed out two major distinctions about exigency first if he thought these people committed a burglary he did nothing when he first went by he went to a corner store met with an officer the record shows that was about a two minute delay before he came back secondly he didn't even wait for the obvious the come to determine you know to help him out he went by himself gun pool in the face of these people who were over night guess one  persons live there this is a situation that leaves this court often too many times saying apologize to the family this was the best set of circumstances if that was the homeowner even the overnight guess and he put his gun when he unmarked he had in custody they inform him that hey we stay here we do music here at that time as a district court noted he found no knife that the guy used to make a sandwich he saw no problem marks he simply was investigating what he thought was a burg hunch a burglary in of itself does not give you permission to go in the next point is it is so exit if someone is in there dying he waited over five minutes before the other unit came in to go check that kills  is a factual determination that at least the jury got to go in a less than two min yard there hasn't been a bright line but x is the means you have a need you are concerned that it was two minutes and therefore one of the first know when he know it was two minutes for he came back after he came out with the gun putting put them on the ground which in and of itself is a de facto arrest that i don't have time to get into handcuff them he waited for over five minutes before the rest of the people came to check on whoever may be in the house being hurt the ones with the bullet proof yes the ones with the best i know well i mean ya know i'm not not saying i blame him for waiting what i am saying is where's the agency because if someone's in there dying if someone has been gagged then yeah you got to go in there as an officer which you're going to try to find the person that you believe allowed you to go in let's say another burglar was in there now they are still in and ransack in everything in going out the front door because he's there in the back door waiting for over five minutes the district court properly noted the demeanor and we're asking the court just to give mr martin is the opportunity to have a jury of his peers tries case you see these officers laughing playin back turned to the door you know that's not  standard is first it goes from this officer all of them stated particular suite they get in the hands of skill lawyers and now they say well let's see if we can try to go x and you see i just asked this court to look at the order at no time does a district court find probable cause which is what is necessary to even couple with the circumstances not no time in this circuit have you all ever recognised xmas circumstances alone allows you to go into a house recently in the holloway decision that has two thousand not opinion  reiterated again probably cause for the crime plus action circumstances only reasonable suspicion was the chairman bob the lower court and it was a tough decision that then if you look at the opinion right now time to finish this thought the district court said that they were having a tough time officer able company and with the gun pointed in a knisley hand covering them that's in the wrist that's not a detention that's not a terry stop and they were right under the hane of the door like the front don't the door they were standing at they were still covered by the with the district court did fine and we agree with is that a reasonable officer could conclude that rivera and copeland were committing a burglary that was his twelve district court order the reason for that was  were locked or open or something i think in a light most favorable to to the plaintiff in this case the court should assume that the back door was shut however it is undisputed that this area that there was a rash of daytime burglaries in the of daytime burglaries in this area that there was one individual who himself acknowledges that he was acting in a anxious manner he was he described himself as being shaky and scared that his anxiety was going crazy with  cell phone in his hand pacing in a slow direction on the outside of the house and the officer knows that that is something that he has to be concerned of that the person is acting as a lookout that is that give exit just circumstances because you you know that's what does it or just because they were prime arcs on the door or just because the individual discover that later well the district court indicated they didn't as well this record indicated that he felt that the initial officer officer who you know kind of leaned in through the four door in and out of the presence that he didn't notice it but it was certainly noticed by the time the officers the four officers that were in protective vest by that time they had discovered the knives that were in the  pockets there were two knives in the pockets of mr rivera they were fresh part marks on the door that were consistent with those knives and the individuals outside the door had i d s that didn't match the the residence of the house so i think th correct that a reasonable officer could include that this was a burglary and again the important part is this would be a burglary in progress as opposed to just simply a stale burglary well as the admin is that right i mean because the district court does say that a reasonable officer could have concluded that that that rivera and copeland were committing a burglary but the district court also says but they had been neutralized and that there was no objective fact that gave reasonable officer reason to believe that there was a third perpetrator so i mean i think really reading the district court opinion for all its worth you can say this was a past tense burglary that has been stopped and i'm not saying necessarily that you lose because you've got cases that say that even for a fresh but concluded burglary there may be circumstances but i just think we need to be careful about reading too much into what the district court said or didn't say but i would say that there would be no reason for an officer having caught two suspected burglars just outside an unsecured home that officer would say i must have gotten all of them i must have gotten the two and since i have two there couldn't possibly be three or four or because i have two that must mean that nobody is inside you know injured or there's not a third you know being held all i mean to suggest is that i think you should be careful thinking that the district court statement that reasonable officer could have concluded that these two were committing a burglary somehow cinches your case for you ok i don't really think it does because i think there is an alternative explanation that namely that the district court gave that yes you know sort of was being committed but had been neutralized unlike all the other cases we certainly have evidence that the burglary was at the very least fresh thank you thank you council