we always get great arguments by the way from montana lawyers looking forward to this please the court counsel my name is jason holden and i represent the defendant appellant david james matthew good morning the heart of mr matthews appeal focuses on the definition of his quote unquote premises in an anticipatory search warrant and the conditions of that in tessa pittodrie search warrant not being satisfied prior to its execution the search warrant in this case issued by a state district court judge in billings essentially did four things one it defined mr matthews residence to include his screened front patio and on page four of our page seven of our brief we have a picture of that house for the court the search warrant also did three additional things it require delivery of the package to mr matthew while he occupied his premises or his home second it required that he accept the package at his residence and then it required that he really enter his home here agent waldo's entry into the screen front patio without any of the conditions of the search warrant first being satisfied violated the fourth amendment agent waldo entered into myth for matthew's residence without a warrant he did so with the express intent to satisfy the conditions of a warrant now in your view he had what he had to do when he walked up the steps to the stops at the front door now you said one thing i couldn't tell by looking at the photograph of the house and an although in the papers or first two it is a screen porch where screen patio is that correct it was a screen not of the home where it's at the front of the well it's the it's the front of the home if the exterior of the home to if you look at that picture there's the mailbox yes there's a lock on the screen door on there's  number on the bottom of the screen door the steps lead up to it and but what it looks like that looks like a porch you enter the porch and you in the front door to the inside of the premises is the is the door and the inside door i did i disagree judge that that home itself i mean if that's the case should have the mailbox on the interior door of the interior door actually is the door to mr matthews living room and you don't have a license to walk into that interior enclosed screened front patio to deliver if you look that's why it's about you know if you walk up to the door and you look in through the screen and you see a band in packages if you were delivering a package you most likely just common sense you would open up the screen door if it was unlocked and walk in knock on the door nobody was there you'd either leave the package and if you're just a regular postman or a neighbor down i'm not talking about the instructions here but i mean just well i sort of disagree with that i think if you look in you see a lot of empty boxes correct you see a lot of empty  you see a table you see someone's home you see someone empty packages in the patio correct there are empty boxes yes your honor you see them and there's photos in the record yes  and you see these all these empty packages and boxes why would that allow i just think of it if you're a private person a private citizen and you're going to deliver a package and you knock on the door the screen door is just you know where you would first knock you know that didn't happen that not but you look in nobody's there you see these empty packages you open the door maybe you go to the front door and knock right leave the package on the front door i mean it isn't that the problem here that reasonable minds are going to differ on whether you're invited to that front door not the actual front door of the house saying twenty kids trick or treating half of them might go through the screen door to get to the door the other half might not want to go through the screen door so why should the police be penalized with the exclusionary rule when reasonable minds would differ whether they're being and whether there is an invitation to get to the front door i don't think that it's necessarily that reasonable minds differ in terms of whether or not they would go into the interior door or stay on the exterior door i think the question is under jar deans where that licen and but more importantly than that even if we look at the conditions of the warrant itself it's still required and defined that the screened front patio was mr mathews residence and a conditional warrant turn in to supper tory warrant is defined in grubb's as requiring a condition proceeding to occur before the warrant can be executed and you have to anticipate that a certain condition will be in place here the package must be delivered at his residence here you have an officer who didn't knock but let's assume that he had a license to walk into the screen front patio he is now in an enclosed screened front patio which is defined by the warrant to satisfy the warrant and that he cannot do and that's the that's why the conditions of the warrant were not satisfied the delivery must occur while mr matthews occupies his home he must have the opportunity to accept delivery and then he must say he did come out of the house correct or he came to the door well he answered the in the interior door which was his living room agent while joe said are you david remember that the package only had one name on it not a last name he said no i'm not and agent waldo said is this your address he showed in the package with the address and then he stepped from the living room into the enclosed front patio he never and that is where agent waldo delivered the package and that is where the package was found when the warrant was executed your honor didn't he delivered to him at his premises but agent walter was in his premises so that you know there's a lot of discussion about a hypertechnical reading of the warrant but what you have here is you have a an agent entering a home to satisfy the conditions of a warrant and that is what is unconstitutional here and to the extent it isn't unconstitutional it certainly doesn't satisfy the conditions of the warrant itself because you have the agent walking into the home to accomplish delivery and under grubs that condition proceeding is not satisfied so you're it is somewhat circular but the whole purpose of the of the int requirements you know the there preconditions was to make sure that he was at the premises when he received the package no i disagree what grub says about your honor is that i'm talking about this warrant no this warning is not just occupying the is the probable cause remember this isn't a drug case this is a an eventual search that that discovers a gun it's a felon in possession so the marijuana is the probable cause that allows them to enter it is the fact that the delivery of the package must go in or be at the home and here you have an officer entering the home to accomplish delivery and that is not in compliance with the conditions of the warrant itself holder you want to hold some time for i will hold forty seven seconds sure on well will give you a little more than that if you s the supreme court said and united states is using florida versus george dean there's no question that an individual's front porch area is individual has a reasonable expectation of privacy in that area and it's considered part of the home for the fourth amendment however as the supreme court noted any member of the public has an implied license to approach that front porch area for the purpose of knocking on that front door and engaging in the resident in conversation not only do we know from the record here that mr wall those purpose in interest in that area was to knock on the front door and speak to mr matthew it wasn't the outer door the front door the front door why wasn't the outer screen door the front door oh it's disputed in the in the record there's nothing in the record to indicate that the front door or that the screen door was the front door and a lock on it what it had latched he would have stopped there however if you would have knocked mr matthews would not have heard him i would point out this is this occurred search occurred in march first part of march in montana which is still very much winter in montana there was no reason to believe that the inner door would be open or any windows would be open such that you would knock on that door and stop there importantly not only do we know that agent waldo interviewed for the purpose of knocking on that front door but we also know that mr matthews received him as a licensee when agent although knocked on the door mr matthews answered engaged him in conversation eventually accepted the package shook agent while those hands hand and then saw him to the door that's entirely consistent with treating someone as a licensee approaching their front door which any of them in any member of the public would there was no indication of the contrary mr matthew didn't say what are you doing on my front porch or even let's continue this conversation out on the front steps there was no indication of that in the record that he was unreasonable for agent matthew waldo to consider the front door to be the front door of the residence and to enter under a license as your honor noted it is hard to imagine that any trick or treater or door to door salesman would stop at a screen door in montana in the winter and knock on that door and wait to be answered and there's certainly nothing in the record in this case to indicate that  wasn't the custom and practice of the community to enter to the front door to knock on it and and give mr mathews attention at that point mr matthews then accepted the package containing the drugs and then placed that package as your honor noted in that screen front porch area that contained numerous other open and an open packages of any reentered the h and then re entered the house and it would be common in this part of montana and this time of the year to sort of look at this porch as a place of shelter for somebody who's going to for a visitor who may be approaching the house you know i mean honor i think that's i think that's a fair way to put it there certainly isn't anything that would indicate that that individual be expected to wait outside that front door if there were there's no sign that says admittance beyond this point or even no soliciting or anything like that and importantly as i noted it's relevant to look at that age and while those intentions it's also relevant to look at how mr matthew treated agent while though again entirely consistent with there being a a license to interrupt that front porch i would note i would recommend the court's attention particularly to footnote four of which points out that the the fact that agent while that was interesting for the purposes of knocking and talking is what matters with respect to the license it doesn't matter that he had an investigatory purpose in in the conversation once he got mr matthews attention unless the court has any further questions you can address the conditions of supervision that issue the united states acknowledges that the district court didn't make a finding with has to be a reasonable relationship between the conditions and the crime it's not true in federal court but some findings have to be made as to why those conditions should be required here there was nothing on the record that p s r other than the mere fact of conviction we have this kneejerk reaction in every case where there's a sex offense no matter how old we're going to reimpose the sex offender conditions based on the conviction on so why should we read man remained back when there was no evidence these were necessary conditions that i believe what happened at the district court that they have told the defendant to go disprove our our ruling isn't that what they ultimately did come back and tell us why we shouldn't do what we did without any findings on the record whatsoever well what happened was the p s r indicated that he hadn't completed his his sex offender treatment mr matthew raised for the first time at the sentencing that that that he had in fact completed his his sex offender treatment the united states acknowledges the what should have happened at that point the united states should have asked for a continu determine whether or not whether or not he had in fact completed those that sex offender treatment instead what the court did reasonably enough since he had indicated that he had certificates showing that he had completed it the district court said if you if you provide those certificates we will modify the sentence i don't think that was unreasonable but i do think it was incorrect the district court did need to make a finding and what should have happened is it should have been continued to find out the answer to that factual question and that's why the united states asked for i don't think i necessarily have the credibility to say that i wouldn't have ignored the front door and entered and knocked on the interior door what i think we have however is agent waldo admitting at the hearing that he knew that mr matthew had an expectation of privacy in that screen front patio and in fact agent while the testified to the following effect he would have an expectation of privacy in there it was under the roof of his home i would consider it to be part of the residence it was within the residence by the expectation of privacy and so i asked if you look in all you have to do is just look through the door and you can see everything that's in the patio what kind of expectation of privacy is that the question is where does the license end and when you look at those photos your honor it doesn't allow a license to enter into the patio and knock on the interior door and even if it did and even if it did that doesn't satisfy the conditions of the warrant because the warrant required acceptance delivery acceptance and reentry and you can't do that by entering within the residence that's why that admission is so critical it isn't so much that mr matthews did not complete sex offender treatment that was in response to the district court judge going to impose the condition and mr matthew said i already did that in california i discharged parole there are there are are no facts that allow the imposition of the sex offender requirements here that we agree agreed to remain in our briefing but we stand firm on our original argument when the p s when the p s are came out did you file an objection to the probation officers recommendation so what happened here judges i was appointed his or his trial lawyer was discharged after the p s r came out and the sentencing memo and all of that came out and then i was appointed and when i came in to finish up the sentencing that is when i made the objection at the sentencing hearing at the sentencing hearing i did and it was it was a function of me being appointed after all of that had been completed so it wasn't entirely it's good to see the court we appreciate the opportunity thank you