just keep your eye on it we'll we'll try to help ok thank you your honor your your honour's defendants engaged in a parade of misconduct that began with sending in a malfunctioning device and ended with overrunning lawson's home for four hours do you think that was intentional of a malfunctioning device your honor the defendants the surveilling agents knew it at the time that it was sent and that it was now functioning yes lawson and at the very least he is entitled to a trial so the jury can decide the disputed factual issues at hand which you know counsel and we of course struggle with the qualified immunity doctrine but what we're dealing with exact language didn't cover this but it did seem to contemplate that something could go wrong right you carry with that your honor the conditions covered three spiffed specific circumstances and given that c grubb's clearly establishes the lawful floor for anticipatory warrants which is that the conditions must be tied to probable cause that evidence of a crime is occurring on the premises described although that's not really a problem here that i mean they were they put these what they thought the defendants thought were drugs in a fed ex package they had the device in the package unbeknownst to the agent that actually delivered the package it had malfunctioned the device had malfunctioned but they had every reason to believe based upon their information that there were people who were going to sell these drugs so the probable cause issue is less of an issue in terms of the initial entry than it is later isn't that correct your honor knowing the law investing crew and us the grubs any reasonable officer would know th here contemplated a failure to transmit after it had reached the location and not while in police custody so if the if that were if if if there would be no point in having the beeper i take it if they could just go in knowing that somebody was on the assumption that somebody was going to your honor effectively it's a pretty satisfied condition and their interpretation severs that condition from the probable cause the magistrate judge intended for it to be connected to and therefore their interpretation is unreasonable because it allows them to operate below the minimum requirement clearly set forth in grubb's in this case you've got a situation where  the one officer who was supposed to have read it and knew it but the rest of them are simply following the instructions of the their chief if you will is not correct your honor it's not the duty for line officers is that they need to inquire as to the scope of the warrant and make sure that they understand although they hadn't you are you suggesting that under it is essential that every officer would just say hypothetically there were ten officers one was the chief briefing based on comments and suppression hearing testimony it's not at all clear that he really understood the scope of what he was supposed to be doing and when he is the lead officer defendant clements and you are one of the line officers  and given that that testimony conflicts with the advanced briefing it is a tribal issue of fact as to whether or not the white officers really understood what was going on well again we struggle with this all the time given what  given us but the reality is they're saying that all but the plainly and competent you have to show they intentionally knowingly violated the constitutional rights of your client and in this case you've got this officer carrying a feather back that you knew there was a device in there he didn't actually know if i understand the record correctly that the device had malfunctioned before he delivered right correct john or you can't really fault him right well there's a tribal issue of fact as to whether or not they could have actually stopped him before delivery without a been necessary it's one thing that they could have done as opposed to the unreasonable action that they took here in this case and your honor i can see that i'm coming up on time and i want to keep answering your question i suspect we are specially nice a lot but i also want to leave time for mr snyder so we and i would just conclude by saying it's unreasonable to think that the condition could be tied to probable cause and you know it did not fail to transmit continue to transmit the entire time for these reasons they are not entitled to qualified immunity thank you thank you very much because they did not know when the package was going to be opened and in order to protect the contents of the package what were they to do what were their all time the officers had a number of choices they that they could have taken to remedy the situation here the warrant authorized the officers who entered stella place residence which was the first residence that the package was delivered to so they had fifteen minutes while the packages inside there were simply waiting outside they certainly could have gone in there to retrieve the package your honor after that during the first residence yes after that lisa val car self picked the package up from the first residence and she drove to mr lawson's house the officers followed her for they didn't know she made where we will have seen them knowing that she was under surveillance were they not concerned potentially that she was going to notify them that she was about ready to be arrested and they better get out of the house your honor for actions circumstances the officers need specific in articulable facts demonstrating an emergency but here the defendants have no concrete facts that there was an emergency all the that's not the way the police operate and that's the question is what would a reasonable officer do under the circumstances if the if she had called and said the cops are after me get out of there the whole scene would have gone up in smoke so to speak and i don't mean in the way they intended to use it the their would that not constitute an accident circumstance that the police should have been worried about your honor in might however the court in this court and driver a publicist said this the officers may not speculate as to what may or might have been the circumstances the specific facts demonstrating acts and circumstances in driver the court held there were no action circumstances even though the main suspect who had received the controlled delivery package was alone with the package and indicated a concern about the package that was not enough to to establish that destruction of evidence was imminent here the officers merely knew that a package was in the house and there are two people inside relative to driver the government is not established there has not met their burden that their actions circumstances here but the officers did know when the package was going to be opened defended in this case standard for action circumstances or specific facts here and while that could have been the case we don't know what actually happened and to me the action circumstances that is insufficient in addition the defense violated mr lawson's clearly established concluded reasonably concluded that you know the warrant interpreting in a commonsense way authorized their entering into the premises well let's let's say that hypothetically though i agree with you about the warrant i got real problems with the them you've got a situation here with it as i understand it took sixty four photos they obtained luggage terribly information they recovered a black container hidden behind a computer they in quotes accidently bump the computer move the screen saver got all kinds of private information i can that was gentlemanly be part of a protective suite the protective sweep here we think ya know was consistent with the fourth amendment in that they were looking for dangerous for the officers and but but wait a minute they're looking behind a computer screen for dangers for officers well it's unclear on the record whether that actually happened or not and to the extent there was in the criminal case they says suppress some of that evidence from the sweep it certainly did so and so that those there's no damages so even if even if this quote one of the conclude that there was a constitutional violation with the scope of the to sweep the officer cho could have reasonably concluded that what they were doing was consistent with the fourth amendment in that they commissioned that they conducted this to face protect this week where they were just looking for dangers know the first was a quick search through for people and then the second day they had to do things like clear that cross space with the mirror they had to wait for somebody to come in with me or one of the photos taken in the first week the photos one part of that the photos were taken much later but they were actually taken before they they had tamed the search warrant so and they were taken by members of the national guard and that was to document the for what the actual search pursuant to the search warrant occurred so that they could show later what whatsoever to do with the personal safety of the officers can you enlighten me in what way it is right your honor that it's not clear that that again that that was part of the protective sweep the protect us we took five to ten minutes if they did find that again the district court suppressed that evidence from the i get to take so what we're dealing with here correct me if i'm missing something this is a nine hundred eighty three action among other things where they're saying ok i was criminally charge i was exonerated or the evidence was suppressed and i want the i want the officer who are responsible for violating my constitutional rights to pay me damages because i've been damaged so in this case how is qualified immunity appropriate in connection with the protective sweep when the district court certainly found that that was in our court particularly found that it was violent to evolve their constitutional rights and not part right in the criminal case yes yes but in terms of part of it is good and it's a suit for damages your honor and here and there i mean even if there was a constitutional violation there are no damages because that there can be no injury no damages are available for a violation of the fourth amendment if the if the evidence to suppress i don't know if that we have case law directly on point for that  certainly plaintiffs have not pointed to any any damages resulting from the protective sweep again because the evidence was his press but i also think the officer is acting here in the heat of the moment in doing the protective search looking for dangers their search that they conducted was they could reasonably believe was consistent with the fourth amendment looking for some things to clear the crawl space and especially after they found a shotgun to do a search and that the fact there was there's some disagreement about when some of these other things happened and whether they were in plain sight or or not like the luggage tags and reading them but again even if that was a talk about a protective sweep really talking about searching for people in the premises that might create some harm or danger to the officers or to others that's correct and it's i think the record reflects th pretty quickly found out who was there and kind of held them off to the side and i think the defendant was kept in the garage or something like that the rest so there's really no basis for style after she was taken into custody she had told the officers there were two individuals in the house when they got there and found four individuals that was already inconsistent with the information they knew second if the extra reason to make sure that there were no other individuals in the house and then addition with that a shotgun being found in the house that was an extra hazard so there was very good reason for the officers to do i through a protective sweep here to make sure there were no dangers to the officers or the others in the house are the officers authorized to search for weapons in the premises as part of a protective sweep weapons in plain view your honor or where people could be hiding i mean they obviously can't go rummaging through through desk drawers and aren't even at this stage are we supposed to look at the evidence in the light most favorable to the nonmoving party and so if the mr moss and his family members allege certain facts we have to look at the evidence in the way most favorable to them when we decide this issue qualified immunity but the facts are that's correct your honor here i would like to address i know plaintiff alleges there are some factual disputes here dispute here because that was speculation about what they were hearing it could have been the noises about the officers moving about why they were in the house and waiting for the search warrant there wasn't any evidence that this although they were in the house for the four hours while they waited for the search or warrant there's no evidence in the record that there was an ongoing search that whole time the evidence is that the protective sweep took five to ten minutes and then they were waiting for the search warrant and there's also evidence the photographic conditions in the warrant was if that package was delivered to another location not to the first one but to another location and the device failed to transmit and here a common sense reading that the officers could have had was that it failed to transmit officers could have reason this or could have reasonably concluded that fails just transmit included failed to transmit properly because there were two pieces of two pieces of information the transmitter was supposed to deliver one was the location so which would make a noise depending where the box moved to the second was it was to do a constant beeping noise when the package was opened but it is clear that while the delivery was in place that now function and so it what the package was not going court has already held that the warrant didn't authorize it believed that the case law at the time a reasonable officer could have concluded that the warrant was satisfied based on other cases this court has had about commonsense interpretation like the gorman presentation let's hear to give you each one minute you don't have to take it if you want it you're welcome to  runners two quick points regarding the protective sweep this cordon quaver us denied deny qualified immunity to an officer that opened one drawer the court there acknowledge that the damages might be minimal but that is a question for the jury that is not a question that's appropriate on summary judgment here in addition as counsel acknowledge that there are tribal issues as to what the officers uncovered during the protective sweep the panel younus have noted that the the prior panel said to the extent that it said anything relevant to this case that's correct so you agree that there's a different standard like in the criminal case there was a technical fourth amendment violation and that's one standard  ok your honour's i'd just like to clarify as to the device failing to transmit this device can only transmit one tone at a time so it is either transmitting the steady default tone or it is transmitting the know that this isn't an incredibly important part of our system allows people to vent their concerns and frustrations with due process be heard have a determination without violence which is what we want to avoid so thank you