happen and why should we think that this is going to become a big problem if we deem the certification requirements not interest actual well i'll be very honest with your honor as to how it happened this is outside the record but if you ask me the question i supervise all appeals in our u s attorney's office and the approval process for a government appeal comes through may it eventually goes up the chain and it's made by the solicitor general to approve the government's appeal once we get that approval customarily i filed a notice of appeal and that's been true in every government appeal for the last fifteen years this was one instance in which i informed the trial usa with the case that the final decision had been made to appeal and he went ahead and filed a notice of appeal without my knowing then sought it popped up in my email moments later fortunately i looked at it and i saw that he probably filing his first notice of appeal did not include the same but that's required by section thirty seven thirty one i saw that i immediately filed it amended that's how it happened and i don't anticipate that this is any lang problem that this court has to be concerned with it's the first time it's happened in my experience and i don't expect it no no the notice of appeal is jurisdictional and the thirty day requirement in all likelihood is true sectionals not being disputed here but it's a statutory time requirement it's a quick glance of the requirement for a civil appeal in bowls that the supreme court court has ever held that rendered in this statute means enter the supreme court has a tree that way the statute goes back over one hundred years we have the federal rule that says that entry needs the entry on the docket so that in our view is really the easy way to resolve this and again i apologize about my office for creating this problem and the secretary and all the briefing that took place but but we don't believe that it's a difficult issue worker was the appealable trigger not the earlier entry of an opinion they granted the same relief which certainly supports our view here but then heart also had an interesting line where it said and it's a criminal case is that we are without the benefit of a rule such as were fifty eight of the federal civil procedure which at that time said entry means entry on the docket well turns out after hark congress did allow for a rule that is exactly that will so now we have that additional support but and we don't believe that they need any of again we regret the error but it's in consequence of with regard to the government's appeal the this case interestingly and maybe that's why the schedule has a tremendous amount in common with the  one foresman do to protect themselves during the dangerous and sometimes deadly business of policing while respecting fourth amendment rights and all of us as americans cherish fourth amendment rights and certainly the sanctity of the home but we also need police officers to be able to engage in reasonable conduct to protect the community and this case much like the white case is about the same thing which is it's very easy as my colleague mr shapiro said to stand here in this courtroom a year later and talk calmly about what happened and it's an entirely different game to be the police officer who has to protect himself or herself and the people around them at the time in question what we know the most important fact in this case regarding mr mallory is that the officers absolutely knew there was a gun in that house that they had not found that had been in the possession of mr mallory they offered her half saw the gun in his waistband that  record credited that they ran in they had to pry him out of the bathroom using a crowbar and he no longer had that guy so they know as they're taking him from the house there is a gun that is not they also know  having swept through the house to try to find mr mallory that there's nobody in the house that's not under their control isn't that important that that is an important fact and so that means in worrying about what might happen they don't have a worry that there's anyone behind them in the house who pose a danger any danger could come either from mr mallory or from the five family members who are on the front porch those are the people edition and the district court said that those people were quiet they had been several of them had acted earlier but they were quiet at the moment and we accept that and the mr mallory was handcuffed and he was under control and so that gets us right to the question in this case which is does an officer have to then say all right i'm going to assume that everybody is going to stay quiet while i walk the steps going out the front door or can i take the modest step of looking in the area along which we're walking to see if there's a gun near these people there's no concern about other people as your honor said question here is yes they were quiet but violence can explode in an instant and are we to stand here today and say to these police officers take your chances you know we're going to tell you a year later it was quiet it was grassed and to prevent an escape does have to stop i understand that at the point where they were walking the street out of the house on the same pathway didn't they have the right to continue to at least look for that that's what's so critical here is that they didn't take him out the front door and go back and look in the bedroom they look right behind the front door right next to where these people were standing haven't argued that this is a surgeon's rest issue in front of us you know we have not me read doesn't that mean they don't present a threat now and in the foreseeable moments it will take to get out of the home or the time it might take to get consent or search warrant well i think that is the judge's conclusion and  legal conclusion it is not a factual conclusion and every circuit to address the issue i think it's ten circuits have health at the final application to the facts of whether there are exigent circumstances or whether they dissipate it is a legal conclusion subject  what's happening in the case the this court has never had a situation like this in which it may be dispositive and every other court that has governed by the supreme court's guidance and they are now this case which explains that these final legal pre fourth amendment rights must be subject to plan a very revealing other further support from the church there were no there was no possibility of unknown federici in the house since the officers had already conducted a thorough search of the another sister had to be moved from the house a gunpoint another brother who was arrested because the officers then like his behavior had come back and argue now they were standing there quietly a couple moments later this was not a garden party and what these officers have to do at this moment is they have to decide how do we best protect ourselves and make sure nobody gets hurt here could it be that they are going to stay quiet could it be that everybody is under control absolutely no question about it but there's a reasonable officer have to make that gamble instead of making the additional reasonable really minimal step of looking along the very path that they're walking to me and the very proximity of these people who had acted just moments ago that's what this case is about is it making a difference that the gun was under the umbrella of i don't know what they had at least uncovered the gun well no i mean it wasn't hidden enough we know because mallory was able to toss it while on the run so it's not like it was buried under something difficult to get to and the other the danger of course in there being a weapon you're this area is not just the danger that someone will reach but what's the reaction of all these armed officers if someone tries to reach what danger does that pose to the people who are in the vicinity and so the officers themselves the question here is not a complete search of the entire house it's what reasonable steps in an officer take to effect an a warning your honour's brats weiser the fenders office here for happily mr mallory my colleague mentioned that we're on top and sides of the table that but that doesn't make a difference here actually makes all the difference because what the government's really arguing your assertions that arrest they have cited no cases and there are not and believe me i've looked that we found that apply the education circumstances doctoring to a situation like this where there has been arrest there's total control to see him and cost multiple officers ask escorting the defendant now why it's important that this is really what the government and my colleague pretty much laid it right out this exit in circumstances doctrine and when you look at that and you look at the case law it's quite clear that the doctrine doesn't apply here we slated a number of cases from the circuits not there aren't many  suspect the reason is because typically the government tries to tries to argue this under a surgeon's very didn't do that here but there aren't many cases but the ones that are all suggest that suppression is required hayden doesn't just say anything that happens at the same time as an arrest and the search that happens is at the same time as an arrest is permissible under is it in circumstances what it says is if it's immediately contemporary with the rest as part of an effort to find the suspect at large hayden was a sunni generous case about essentially limited to its facts that's why the court in this i was not that familiar with it before this case is not doesn't come into play that much because there was a unique factual situation walt officers hitting a house finding things in the in the basement laundry machine at the exact same time another officer found the defendant upstairs the court said the fourth amendment does not require police officers to to do may in the course of an investigation if to do so would gravely endangered their lives could you comment on that when they know there's a gun it's a volatile situation it w finding here is that the situation was under control that is the fact finding now could there be another situation the district court route a meticulous opinion detailed fact findings heard many many witnesses sorted out lots of testimony and it came to these conclusions and those are facts for instance and so could there be a different situation where there really is this murderous chaotic scene that's continuing at the time of the search is going to be at the time of the search and and under those facts you know maybe there's a different result in the exigent circumstances doctrine but that those aren't the facts are and let me try to explain we have this dispute in this case over are these facts or is it a legal conclusion th emergency qualifies under the under the exigent circumstances doctrine that might be a legal question going to you know our policy considerations the things the court might have looked at in brown and so forth but whether any particular saw and when he saw the gun that's relevant and the district court i would submit is in the best position to make that determination were the police in control if they were in control there can't as it serves even under the fact concept so it's not really an answer just to say hey this was written more and more of it really wasn't reasonable here next but it had been a reasonable for them to look at that's in the area under the umbrella or behind the door when they first went into the house when they were chasing him and that's interface pulled out of the house my client's brother was illegally detained moments earlier in the supposedly unrelated incident so this was in the middle of the night this was a situation where the  the officers came in and in response to a legitimate accidents in the house uncontrolled with a gun they did everything we're not here arguing that looking in the in the drawers on the third floor was wrong they're permitted to do that under hate but there is a difference and a meaningful difference if the fourth man is going to have anybody to hate the edge and sees over and now you're not allowed to just rummage through the house this is the house the specially when you had such a ready alternative at this point the mother was cooperating with the police the mother talked tried to talk the the the defendant in this case my clients are mallory out of the bathroom  didn't come out he didn't resist once he was pulled out she was on the government scene in this case why they couldn't have looked at her and said is it ok if we keep looking for this gun we don't really know concern about whatever you know let's we want to find that gun i suspect she probably would suggest given the fact that she has cooperated there and didn't take that opportunity that was right there in front of it and i do think that's material because we don't just that the we're not here disputing the explanation of what happened as a factual matter for the government but i would point your honour's to the the the part of the argument relating to whether the of there are twenty years of old on consider cases that say this is interesting when you look at the last you know when you look at all of the recent supreme court cases about what jurisdictional really means and when you look at this court is because everything flows back the thirty day requirement jurisdictional requirements must be completed within the time to file a notice of appeal that i don't think can really be disputed that's black letter law and it shows why the think it's a technicality it isn't important issue that regardless of whether the factual circumstances in this case really indicated the state or whatever else equitable considerations such as there was no bad intent here that was a mistake those are not exceptions to jurisdictional rules but why wasn't the certification timely at or why wasn't it timely if the clock story running is also pretty clear then it's not and why i say it's rendered instead of entered is because a couple of things first of all the rule for entry doesn't control because it's jurisdiction if we say it does  that if you're if the court were to if the court were to say that these the clock starts on the entry we don't have an argument i'm not going to see that but it would be a real leap to say that first of all it doesn't comport with the text it says rendered not entered and it would be inconsistent with this court's decision in the baker case which is a recent case where the court said we're not going to redefine or monkey around with the definition of the term that it was into to mean something that it doesn't need in that case a prisoner wanted to file a civil peel in the case that he had he was never notified of the district court's judgment and so then he came in when he finally found out about it months and months and months later he came in and filed his notice of you know and he said you know when you should count the clock the appeals clock entered means when i found out about it  and this court said no we can't torture meaning of enter to mean that it's not consistent with the fact this is jurisdictional and it just doesn't make any it doesn't make sense and i'm sorry you you're outta luck it's not your fault you're out of luck and that's the same goes for the government here the government is an unfortunate circumstance but that's the nature of a jurisdiction with respect to the standard of you back to marriage your honour's coles is controlling i don't think the case turns on it but it is there's no doubt that this court as consistently applied calls for last ever since close was decided as a sop of seeing a clear error standard here and the fact of matter is and that's a good reason why they do that by the court and that's because although there might be some where hain is controlling my friend mr spicer make a very critical statement when he said he's not arguing that there's a difference in time relating to hayden versus this case that this is this search was contemporaneous in the sense described in hayden during the time of arrest of the possible even that's a critical concession this is to say that hayden is limited to his facts which is quite a bold statement to make about a supreme court case is not accurate a quick glance at westfall on my smartphone tells me that hayden has been cited by courts six thousand five hundred sixty times this is a supreme court case that's deserving of respect and in fact the keep the facts here are stronger contemporaneous searchin hayden is a washing machine in the basement a fixture is in the bathroom while other officers are moving in on the defendant who's being arrested while he's pretending to be asleep here it's a search behind the front door that mallory came through and that they have to take him back out contemporaneous as the defense is now recognized with the arrests taking place that's what makes him controlling here the other couple points he made all address quickly the credibility finally of the district court yes the district court did find officer huff incredible as a once asked whether he saw mr mallory put the gun behind the door but the judge credited him regarding all the other facts that we've talked about an issue that we're left with are the facts as found by that issue of court as known to objective reasonable officer not half not one of the other people there what would an objective officer think that with these facts and that's what calls for the final legal conclusion record the judge said they could have asked the mother for consent maybe she would have given it they could have secured the building maybe they could have gotten a warrant now we on the other hand if this case were we've managed to flush out the record on that we think the record would actually in rule for that the party in that case wanted to stretch based on the fact that the inmate was not aware of the order at all that's not what we're asking for you are asking for the definition of entry as it is stated and will for as is consistently ultimately congress to enact rules to interpret these very provisions wolf or was an act it for this reason it interprets ranter and it has consistently been applied as many entered it to boot if we even needed more section thirty seven thirty one itself says that the statute is to be liberally construed to effectuate its purpose which we know is to permit government appeals to the extent permitted by the constitution i could go i could say more about reflection in the reference a is not accurately it's not defined one level in principle and to the extent that it's been contradicted by every supreme court case afterwards the principle that they derive is that as long as it's in the same statute then that means e cases finding these requirements not jurisdictional and somehow they're overruled by these recent supreme court cases well every single one of the recent supreme court cases has found the provision being looked at not jurisdictional that's the trend in the supremes court is to restrict excessive use of the term jurisdictional by lower court the only exception is balls which involves an explicit thirty day filing requirement for a civil appeal akin to the thirty day requirement here which we acknowledge