to my argument and namely going to focus in on the search argument in terms of the bathroom that we raised in our brief i did raise some other arguments in regards to the jury trial and sentencing however i plan on bounds of the community care keeping function by doing so in its written order as sensually granny the officers ability to enter the bathroom based upon the community caretaking function without any analysis to that is their counsel what i'd like to ask use this as soon from the moment that we were to agree with you that the care taking exception doesn't justify opening the door to the bathroom armstrong so what would you are just as the resolution or as through the result if we were to agree with you that the caretaking function was you know applicable but we were to find on the record that the the words they use but essentially it's a joining joining rooms they can do that st protective sweep in any non adjoining rooms is also can be a buoy sweep more of a protective sweep but it's more find that and said that there was a ok to do a protective sweep in that situation i would argue if the court thinks that a belief would be appropriate for the bathroom it would come under the rubric of the not adjoining room lemus talk well council i we were finally able to get the video and i looked at the video yesterday and looking at the video from the front door are of the room you can see into the toilet and you can remedy is what you're asking me that further factual finding would have to be may in a proper way doing that would be to remaining it back to the district court to determine whether or not that would that take that took you're meaning the same factual scenario where he was arrested outside the hall in the hallway of the room and so i think that does make a difference because once that door is closed and the officers actually asked miss to put the dog in there and close the door i think that does make a difference in terms if you are in the end of the dying defendant exit in the officer when he and whether or not that it is my understanding when the op when mr fisher came out the door was open and then when the officer entered the door was open and they asked miss school to put the dog that was are being in that bathroom see inside that room is what my understanding of that was is that they were outside the room asking people to come out and then when they actually entered the room the door was actually close but  during an adjoining room but there's no doubt that a person could have been hiding in the bathroom i mean that doesn't mean a person was or that there's factual findings on that were made but there's no doubt that a person could have been hiding in the masterman would have been like one second away from the officers in this layout right act yes i would agree with you i think that's a reasonable assumption that reasonable atsic that had that assumption regarding  right but it's limited use areas someone can see or there would be a person hiding it so if the officer secret instance the toilet and see the shard of methamphetamine in there or the wastebasket in it if it's in permissible  the serial number as opposed to when you're looking for someone seeing that there's actually a stereo in the room i mean plain view does not require the officers to to figuratively or literally put on blinders and they're looking for a person if that the point where they're entitle to look into the bathroom or look in the shower without making an effort they see something in the in the trash and or the toilet that archetype  evidence or there may be firearms and so especially and in a situation where it is a immediately adjacent to the arrest attempts will you've used your time but we  ball's argument if one is using the independent source doctrine with regard to a warrant doesn't there have to be both testimony and on doing that but for the excised evidence the officers would in fact have sought the warrant and i read the transcript of the hearing pretty carefully and i don't see any question to any of the officers along the lines of if you hadn't seen the bag here the shar warrant had they not seen the shard in the bag and isn't that absolutely required under the independent source dr your honor i'm not sure and frankly that's because these issues were not fully developed low because the while the war is not sufficient without the shard in the toilet and the plastic bag in the trash can so frankly i would say that he has waived his arm to me and it was well known that this was an issue that was going to be addressed both by the district court he did not file a reply brief after the issue was raised and but but but but counsel to the senate clearly on challenge to the search for the bathroom right here early and clearly argued there what would be a bathroom should be suppressed and that there were approved so the poisonous tree right yes and one of the fruits i mean it scope and there's no question that to preserve the safety of an individual the community care taking function could be applicable and it just what is the sphere where admitted lee there was a large dog in the in the bathroom and leaving the large dog in the bastards that impact the dog safety but what was there about a supreme court or our case on the community care taking functions that would implicate that here because of a dog in the bathroom and frankly it is going to only breed that is not a perfect fit because essentially the emergency situation arose in the midst of the execution of a valid arrest warrant and the community care thinking ocean cases really stemmed from the situation where police are called out to a house based on a nine hundred and eleven in their investigation so it's not a perfect that but that said while they were executing the warrant they should essentially created an emergency that justified the officers going in and sue the bad after don't you need a finding from the district or that this would have been justified by a sweep and isn't bad in fact the way are you or your colleagues present of the testimony  community caretaking function argument the district court made general findings were guarding the dog being in the room the officers being surprised by the presence of the rd party who was unknown and frankly the testimony during the suppression hearing support that the danger posed by trying to excise a dog and a purse and was then tediously controlling a room where a standoff had just been engaged and posed significant danger to both law enforcement and the community out warred because the hotel in and of itself presents unique dangers when you look at excerpts of record for thirty four u s marshal peter thompson testify that the hotel is transit in nature in the sense that people are coming and going constantly both in the parking lot and in the hallway of  hotel so we take extra precautions when we're dealing with a hotel an excerpt of record for seventy six dollars the officers testified that they put the dog in the bathroom because quote we had to figure out how we're going to get that dog control so it didn't bite anybody so it's clear from the testimony in the record that the motivations of segregating the dog from the unknown person or persons in both the hotel room and the bathroom was simply to protect both officers and hotel guest and for the council did it haha i think the testimony is that the dog got put in the bathroom and i may be wrong here but that's the st time the shard and the baggie were actually seen by an officer who testified was when the door to the bathroom was then later opened to get the dog right yes they did when the dog had the trash can in the shower scene as the canine officer reached and to get that dog and the shield officer was holding holding outside the door so would you agree with your the st which is the protective search incident to arrest there's no reasonable suspicion acquired so long as it's a search of the adjoining area immediately to join your area that could contain a person as judge miller stated and the bathroom withstanding the fact that the district court expressly chose not to i believe yes based on the record based on exhibit three which is these depression kerry video now again this was not raised the a community caretaking function just a response to council on that is that we do do you not think that at that applies i think that it was the court exceeded the bounds on that and i think the rodriguez court did a very good job  i would just disagree with counsel is that that was appropriate and i do know that in the record the officers mr thompson did state that when they had the officers there they had eleven officers and they cleared the hallways so no one can come out of the room if i recall correctly that they were going to make sure that there was no other people that would be part of that when they made that knock and announce on that on that door so i think that there was a obviously significant police presence should they do well it is if that point is that emergency to let the dog out of their bathroom at that point that the officers went and started doing a search warrant i believe the search warrant was done within a matter of four hours  o i just don't think that there was any emergency knee not to conclude with a search warrant and finish it up with a search warrant