good morning may it please the court michael shepherd for the defendant appellant tommy hart i too would like to reserve a couple minutes for a bottle i appreciate both the government's consent and the courts advancing the argument to mr hearts for health this case presents a very important test of the protections supplied by the fourth amendment and it's all to make the sanctuary a person's home none of the ways the government asked the court to carve up those protections come close to passing must the fourth amendment should apply to mr hart in this case as well as to other residents of public housing there are i think three undisputed facts that by themselves establish that the p p s officers who conducted the search and seizure in this case are governed by the fourth amendment the first is that the officers were hired by a public agency the second is if they work on public property and the third is that they were engaged in the quintessential traditional police function of in the words of sergeant carolina conducting patrols observing crimes acting on crimes by placing people under arrest let's say we agree with you what's the problem with what they did it seems to me that first of all your client was a person not known to them they knew the people on the property people who weren't living there weren't supposed to be there firearms are prohibited on the property this was shortly after a report came in that shots were fired in your client turn around and circumstance the tally of the circumstances yes it is but there is nothing really to the totality of the circumstance what did he do when he saw them what he did when he saw them depends on which testimony you take but basically he was standing having a peaceful conversation the two of the three officers emerged from the car one shouted gun the other drew his gun and they chased after him they saw gun portrait him from his pants one of the three said they saw that was anybody allowed to have a gun in that area you know now and so what did he do well after they shouted gun and started to chase and not identifying themselves as police officers but one extremely large man man who drew a gun he either depending on whose testimony you accept which of the two officers he either watched quickly back toward his apartment or he ran backwards apartment wheeling from these two men one of whom was shouting key and place it in the door in order to enter is there any dispute that he had a gun and they saw i do dispute that he had a gun it was twenty five feet to thirty feet in the dark in the shadows one of the testimony it's not that i don't believe it but it's not the strongest argument i hear so he either uses a key according to one of the officers or by either authors estimation he answers very quickly an apartment after midnight in a housing project which certainly suggests either he's the luckiest man on earth having gone through a door that just happens to be open in a housing project after midnight or he knew exactly where he was going and he knew the door was open that's the best for the prosecution i think the real evidence is he used a key and got in so they did know that he belonged where he was going to even think the line where he going he's the guy with a gun in an area where you're not allowed to have a gun and that's part of their job stop people with guns from on him and mr hart retreated back into the apartment that is a classic so rounding drawing gun seizure under the fourth amendment hundred numerous case law and that all preceded your honor when mr hart throws the gun out the window what's the used to chase cases it's not a surrounding somebody in it's own case i don't think it helps the government at all the best case is you wall street the sixth circuit case that post dates what are you d that deals with surrounding a man's home that it's the fruit of the poisonous tree and it is inadmissible now perhaps the court is thinking ok if they had surrounded the house and gotten a warrant on all the right things they may well have found the gun inside anyway but that doesn't rest or he might have crossed it out the window and i bet that doesn't that doesn't rescue them because as this court has said and this isn't cited in our brief because the government would completely obviate the warrant requirement of the fourth amendment so they don't get the benefit of inevitable discovery or whatever because they didn't do what they were supposed to do namely get a warning whilst the case is somewhat different in terms of the evidence the court decided it was a seizure because the nec case the police actually surrounded the house and purring in an armored vehicle in front of this in the that's somewhat different than the situation we have here where you have a fluid situation w people still running around banging on doors and they hadn't trapped him in the house which was demonstrated by his fleeing from a well i think they had tripped in the house that was certainly demonstrated after he tried to flee and lieutenant cox and pulled his weapon and then he retreated into the house and lieutenant cox and testified he wasn't free to leave officer adkins said they had the house surrounded he was in a position to know they had the house surrounded he confirmed they did have the house surround d yes they didn't have an armored vehicle or some of the other things and some of the other cases but the effect was exactly the same they had the house surrounded he was not free to leave when you go out with their weapons her dorothy was in ninety one and then subject what do we do with that two things one that's another chase case it's not a surround case it's a chase case and second i think you've also really well answers that with the following image if they had the guy surrounded and they brought plywood and tapped it up over all the windows and doors so we could not possibly escape he would not have submitted to authority but he certainly would have been seized under the fourth amendment so i think that i would distinguish  i forget the first part of the hernandez case on the ground that that is the right approach in a chase case it's not the right approach and it's the rejected approach in a surround case if i want to reserve any time for rebuttal i need to person is barricaded or is completely surrounded and is therefore seized within the meaning of already in other cases from the supreme court but that's not this case as dutch try pointed out this was a fluid situation when s let me explain this mission of the of the officers at that point at that point officer carolina was at the front door pounding on the door officer coxon had been standing by his car seventy five feet away from the back door when the defendant had no means of escape and i don't think the defendant from his point of view or a reasonable person in his position could have concluded at that point that he was still resisting the authority of the officers already there was officers were still running back and forth between the back and the front well that is an exit a difference in that there was no the officer said not stabilize the situation and they had they did not have the situation under control to the extent that it would be normal reaction but it is also a voluntary reaction or a voluntary going to be an act that that that when a voluntary intervening act i mean that if he doesn't leave it it's as clear as the nose on our faces that he threw the gun out because the cops and surround well that may be but but doesn't that make it through the scene here if it's a seizure and if it's an illegal seizure then he lands if it's an illegal seizure he has to show that it's a fruit and our position is that that his volunt somehow he started watching a football game on television and said well i'm sitting on a couch and it's father mr author wrote out the window no it was because the cops were all replies right but it was a voluntary decision to get rid of the god it wasn't voluntary decision to get rid of the guy yes r because of the open the window and threw it out because of the seizure well certainly the seizure predated it but you said it has to be an involuntary decision what do you mean what would be an involuntary decision in the face of an illegal seizure well i'm saying it has to be a  there is no question about it but it seems it was produced it was caused by the seizure i'm saying that when a suspect abandons something property of god in this case there has to be some more direct showing of causation between how more you're right could you get well he went back into the house and one of the stairs and threw the gun out he could have taken other steps like for example he could have hidden it he could have decided to give it to his girlfriend who was in the house i mean there were a number of just wait in the house and hope that the police would go away i mean there are a number of things he could have done but even if even if the court finds that causation between the seizure and the invent abandonment the district court's decision can still be upheld on circumstances both arise out of the same set of facts this was a person who was unfamiliar to the officers the drafters both of whom had three years of working in this area they there were about seven hundred fifty units in the in the area and they testified they were three minutes from the time at most three minutes from the time the officer saw him with a gun so the time he threw the gun out the window so so now we got the guy in place and what's the exigent circumstance that justifies going into the  gun to defend would have to show that the future that occurred as as as he painted it that is the surrounding the house was unjustified was not supported by probable cause and actions circumstances and our position and district court position so they they did not know who lived in that apartment and didn't know if there were children present or anything like that but they did know that an armed man had run into an apartment they were aware of situations in the past where  run into apartments where they were not residents but they testify that in their minds was this report two hours earlier of shots fired both officers coxon and carolina testified that that was in their minds of the time and they were aware of that they were also where were a number of people out and about there was a group having a barbecue down at the end of the street at the end of the block they considered this to be a dangerous situation and one that they had to to neutralize immediately by entering the apartment  fourteen in three thirty of the record to me arguing it was a seizure why wasn't it reasonable under these circumstances taking as a whole time place location information in the minds of the officer shots fired guns person running shots fired who is in the house shots fired two hours ago in a housing project would if that's sufficient then you know the everyplace in the housing project is always going to be open for you know what are your probably right for search and seizure and that can't be the ri information of any exit in c they had no information anybody was in the apartment and no information he didn't belong there no information anybody else was there he'd only been guilty of that they have information that nobody was there know but the key there is a very heavy burden on the government prove exigent circumstances and the fact that they have no information establishes that they don't meet the heavy burden as does their own conduct in this case which is completely inconsistent with any notion of existence or the or great fear that mr hart was going to do something with his weapon i mean if there was great fear that he was going to do something with this weapon which caroline of be standing there in full view in the front door knocking on the door and shouting wouldn't they have searched for weapons when they got inside wouldn't they have asked for assistance when they've