good morning may it please the court i'm assistant federal public defender wendy over myer for richard ward and i'll reserve two minutes for rebuttal we raised a number of fourth amendment issues in our briefing but this case really unravel with the first issue which is the initial warrantless entry into ward's home and the critical error below is that both the magistrate and the district court makes three different doctrines to fit the facts of this case rather than applying the clearly developed exceptions to the war requirement and the doctrines that were mixed were the protective sweep doctrine the exigent circumstances doctrine and the emergency aid doctrine and if you look at both the report recommendation and the final order the rulings in those cases combine all three into one sentence approving of the warrantless entry and none of the three exceptions apply in this case the protective sweep there was no arrest or a lawful entry to trigger a protective sweep under the exigent circumstances doctrine there is no probable cause there was no risk of a skate or destruction of evidence so really the closest one that it was the emergency aid doctrine do you need an arrest in order to justify the protective there is there's both circuit split and an intra circuit split within the circuits as to whether you need them the rest or not but what is clear is that you need at least a lawful entry  there is no case that i could find what you mean by lawful entry somebody has to let you in yeah consent or some other way that you were in the house lawfully and protect so i could not find any case where a protective they really are two separate doctrines but i think the court was trying to apply the emergency aid to it why would this not work under totality of circumstances as emergency aid where you have the shots the person by the door ambiguous you know ward answering questions why would that justify this emergency aid for emergency aid there must be an objective reasonable belief of an actual or imminent injury inside this home and hear a shots fired call is not per se a emergency exception and so particularly here the shots fired call was  verified and it was uncorroborated so what they think their shots fired then they think this guy has a weapon the way he's position himself up there by the door and you don't have to have a certainty that somebody is in there about to reasonable belief well if we back up a little bit when the police before the police arrived they were told it was blackmail adults or hispanic male adults fighting in the street that made the shots fired when they and nobody's on the street one woman runs over and says that's them and without asking a single question to that woman we don't know if she was the nine one one caller we don't know what she was referring to with that some because she was never talked to they go over this one officer goes over to this house and takes two white men down to the ground who are just standing in their yard and one standing in the yard when standing in the car now this officer stated it was his subjective belief that he assumed the person in the doorway who was just standing in the doorway had a weapon from the way his hands were positioned but he did not in fact see a weapon and there have been cases where officer says he have seen someone with a weapon and they ignore police commands and look there from the record mckenzie is the only officer testified as to this protective suite and he was a bit inconsistent as to whether he gave commands to ward our people outside the home or whether that also included during when he was questioned on cross on this he said you know i don't know you're the attorneys figure this out do do police have an obligation actually in the case why this where the information is that shots were fired and in the case of dearie ignoring the commands to to ensure that somebody isn't in fact shot and in the house manger in other words isn't it their responsibility to provide emergency aid to someone who may be injured well police do have a care taking function and that's where the emergency aid doctrine comes from and certainly a shots fired call is concerning but here the police did not do any corroboration or verification of that call to link it to these suspects or to this house in particular and also the police way that eighteen minutes from when they first arrived on the scene when they ordered the sweep and so that eighteen minute span well maybe there was time to get a warrant to telephonic warrant there was time to ask  of shells in the yard which we don't know how long those shells had been there obviously some shells had been fired at some time if you hear of this and shooting and you see some shells can't you put one together with the other on the issue of reasonable suspicion well i don't i don't know that the officers had that information when he made the decision to order the sweep he did not know that the shells were at the house but  yes possibly possibly but it doesn't necessarily correlate that there is someone actually injured in the home here on a reserve your remaining time oh yes i would like to good morning your honor stance he also appearing on behalf of the government may it please the court the main question in this case as words attorney noted is whether that initial entry was abducted lee reasonable and that's under the totality of the circumstances whether these officers reasonably believe that emergency existed and i think judge mckeown has already recognized several of the facts that pointed to such a reasonable belief of an emergency including the emergency nine one one calls there were two  fired unlawful use of a firearm we have deering who is standing by the door ignoring commands no word contends on appeal that there is some ambiguity in the record on that but notably the magistrate judge and then adopted by the district court resolve that ambiguity there were findings of fact that during was ignoring commands and so that question has already been resolved and there's nothing in the record to suggest that it was clearer in fact mackenzie's testimony on that point fully supports the court finding that in fact hearing was ignoring commands mackenzie also testified that he believed that the way that dering was standing before he pivoted into the house was consistent with a person who would hold a gun and a fire ready position and if not have his subjective belief that matters but what matters is whether or not an objective lee reasonable officer who has that information about what a firearms ready position is and what would you hold a gun when you're at the range so long as that's an objectively reasonable belief and that contributes to the totality of the circumstances as well we do have quite extensive findings here by the magistrate judge that were adopted correctly i judge george so i don't know if any of the actual i don't know that there's actually any challenge to the factual findings is there it sounds like that word is continuing to contend that it's not clear whether dering w commands and so just to point out that the court did find that he was and i think that the record supports that if you look at pages four sixty four four sixty five five fifteen five sixteen and five fifty two those are all the places where mckenzie is talking about this he was asked about it multiple times and he i think he did his best to make it clear but again he's talking about this unfolding situation he's initially the only officer on the scene and so he's trying to control three subjects for a few moments by himself until he gets back up and he's yelling at all three of them and then one of them one of them ignores his commands as to the point about the spent shell casings that were littered all over the front yard those were seen by mackenzie before the meet in tree into the home this is it for seventy two and also five fifty two of the record there was an argument made regarding the response time when the officers were all on scene and then how long it took them to decide to go in the house but this is an internally inconsistent argument work cannot have a both ways because on the one hand he said you should have spent more time you should have asked more questions you should've gotten more names and corroborated more pieces of information but the now he's complaining that eighteen minutes is too long and the officers apparently should have just run it in and so we think given all of the facts in the record there was an objectively reasonable basis that these officers should go in and just mckenzie testified he said it was my duty as an officer i have to make sure that no one is in there heard and because we start with the shots fired we move into varying levels of compliance with the suspects the person darting into the house they think he has a gun and really just a rapid situation where the officer i think reasonably believed that he needed to make sure that there wasn't a dangerous he arrived on the scene is there were certain information given by nine one one and then when he got there basically none of it was there and so he's now working with a little bit more of a blank slate to figure out what's going on and what i mean by that is there's two examples one is the the race that you mention so the nine one one reports there's a fight breaking out there's a group and there are these people of particular races and so when he gets there there's no more group that's gathered that's set to fight and there's also no more group that's by the house that has the bounce house in front of it so both of those groups have dispersed and he's kind of know he knows that there have been shots fired he knows that there's a potential potential emergency but he now kind of has to piece together from what he can see on scene and then the second point about the nine one one calls is he was given information about house numbers and ways to identify the relevant house involved and that information was also internally inconsistent because if he's saying if he saw ok to the right of forty six zero one and if you look at that that's at the back of the cul de sac and it would be to the right but it said it has a bounce house in front of it the problem with that is the the bounce house house was at the opening of the cul de sac so they're actually kind of it two different ends and so now he gets there and he has some information some of it he testified he remembered the details on he actually testified he didn't recall the races but in any event let's say that he had or he should have once he gets there there's no individuals really to speak of except for he has this woman rushing out to him and saying that's them there they are and so when you have two nine one one calls you have someone who looks like they're waiting for you on scene and comes to tell you that's them you're going to react with your gun because you are concerned that that's them means that's where the gun is right over there and so taking all of those things into account mackenzie reacted reasonably when he unripe on that scene especially given that the changing circumstances as they  were i'll just know as judge mckeown already acknowledged the officers didn't need to have a certainty of an emergency again this is this goes to reasonableness the supreme court has said over and over and most recently i think in brigham city and so that's really the test here  i think that with those arguments i've responded so far to all of the discussion regarding the initial entry and unless the court has any more questions about that or if the court would like to discuss the frank one clarification and going back to your brief it appeared that you didn't challenge the factual findings but instead challenge whether taken together the collection of findings provide an objective circumstance situation is am i correct and that's correct thank you yes the facts are pretty much agreed upon as to what happened when mackenzie arrived with a little exception as so whether he commanded during or not but again these officers waited eighteen minutes eighteen minutes to go into a house where if they truly believe someone was actually shot in fatally injured eighteen minutes is a really long period of time where it just doesn't match up with their reasons that they later claim for going into the house and so in these eighteen minutes of the house numbers they don't match the race of the suspects don't match the bounce house opposite side of the street f he simply went to the only people that were outside with no questions asked of the woman that came up to him even after he detained warton howard he didn't know officer went back to this woman we still don't know who this woman  is and what she saw and where the shots fired occurred we have no idea if that was work house or not and so that is not enough to to for the government to meet its very heavy burden that's what the supreme court has said it's a very heavy burden for the government to establish an exception to the warrant requirement when entering a home and so if permitted to stand here the ruling below really blurs the line between these exceptions and when you look at the totality the emergency is just not there and it's not reflected by the amount of time the police officers waited to go into the house eighteen minutes and they took twenty minutes to complete the sweep leaving the door locked up stairs were someone could have been injured inside that door so it just does not or in the alternative grant frank's hearing thank you thank you united states versus warren is submitted looks like it's nevada day here at the ninth circuit in terms of criminal cases the next case and thank you for coming in for your arguments the next case for argument is california versus the pain nation of sen isabel