as this court noted in espinosa of the city and county of san francisco the emergency exception to the fourth amendment is narrow and its boundaries are rigorously guarded to prevent any expansion that would undo interfere with the sanctity of the home this case is about one of the most fundamental rights protected by the constitution the fourth amendment right to be free from under reasonable searches and seizures more particularly this case is about  our right to be free from warrantless intrusions into the home by police officers and as the us supreme court noted in peyton the new york that is the chief evil against which the wording of the fourth amendment is directed under the fourth amendment warrantless searches or per se on reasonable unless officers can show that the warrantless intrusion falls within a carefully limited category of exceptions we've got we've got here a call to the officers from the mother of the roommate who says summary judgment we we know they were going out to do a welfare check correct yes run they coat and we've watched the video i suspect everybody on the panel has they go to the side window and mrs to put it mildly agitated she's saying you can't come in you can't come in but she's she's yelling and and they keep asking to come in at what point do you think that their ability to go in and make the welfare check went away because we do recognize an exception to to check for welfare when when you have information that there's a problem they go to the window and mrs m and saks i think you know agitated way to be fair at that point they still have an accident see that allows them to enter if not when does it dissipate we're on i would i would disagree with the court's characterization is of miss him and as agitated this was  an incident that developed over almost well just tell me under your view of the facts taking them in the light most favorable to your client when on the way out there they had an exit and see when did the agency leave when did it dissipate but i would just i would disagree respectfully your honor i don't believe that the officers there was any exit insee that would have justified a warrantless intrigue or any emergency ongoing emergency that would have ever so let me change the facts for a little bit let's assume that no one comes to the window the officers have a child welfare call from somebody who says there's some sort of violence going on inside this apartment and they knew there had been a previous domestic violence call at that address a week before week to ten days before they'd been a domestic violence call that address nobody answers the door can they but they hear people inside can they force their way in no and again i disagree with the court's characterization slightly of the previous domestic violence call i can trust that later well the record makes clear there had been a domestic violence call at that address the week before whether or not anybody was guilty of domestic violence is not the issue the officers on the way out knew they were told in their testimonies and rebutted that this was the scene of a previous domestic violence call but let me answer your honor's question about the previous call first and then i'll get to the  question the previous call dealt with miss emmons calling the police officers to have her to help remove her husband from the house right didn't involve violence it was a domestic dispute but at the very least even under your your view of the events the police officers are on the way out they've gotten a call from someone that says there's possibly violence going on this idea apartment and they knew that there had been an incident a week before where they'd been called out to remove m used take all those facts your view that if nobody showed up at the door at that point they would not have exigency that would allow them to enter without a war yes i don't i don't think they would have been justified and i don't think that this call  actually the nine one one caller even though it was second hand and from another city didn't say that there was domestic violence going on now she says there was a civil war if she said the call was dropped and she couldn't get an answer from her daughter when she tried back and there was shouting that sounds as if as a parent that sounds pretty terrifying why isn't that sufficient even without knowing i have a previous incident to go make sure she's ok you don't dispute that build a factual basis for a welfare check do you i do your honor well so the play was let's the police could have what just said we're not going to heck with it you've called you've told us there's a problem going on in the apartment we know there was something that a week before but we're not going because there's no factual basis for a welfare check that's what watch it i guess it depends on how you would define welfare check i think that there was a basis for officers to respond and investigate for them when they said they were there for a welfare check sure which though it what point did the necessity to conduct the welfare check a bait well so i would look to this court's prior precedent for instruction on this one of the cases we cited martin the city of oceanside a case in which this court upheld a warrantless intrusion based on the emergency exception the officer in that case showed up he received a call from the woman's father who lived in oregon similar to this case said he was worried about his daughter hadn't heard from her for a few days the officer showed up he immediately started investigating trying to put together facts that would support a reasonably objective basis that there was an emergency inside but this isn't isn't of a matter of finding a case exactly like it these cases haul rise or fall on the unique circumstances and i think once it's not especially helpful to me at least to say it has this slight difference from another case or this slight similarity in another case i guess i just still don't understand what it is you expect of the officers to do when they arrive that should have been done differently then we should we have said ok i don't need to go inside i understand your honor i would have said within minutes when the officers responded amaechi area douglas this was that this is the person on whom they were sent to check she was outside the apartment less than ten feet away floating in the pool with the two kids she id herself to the officer she said hey i'm a meter i live there the officers told her you know this doesn't concern there any weapons in there if they would have done that at the very beginning when she contacted them it's undisputed she contacted them within several minutes of them arriving you can see that in the video if they had done that the need to conduct a welfare check as the court has framed it would have ended right there you have about a minute a little more than a minute and a half if you'd like to save it for rebuttal got to court doesn't have any further questions i'll reserve the rest for a please the court mike mcginnis on behalf of all defendants in response we'll world law enforcement often places officers in extraordinary position to make fast decisions under tense and unknown of circumstances well what's wrong with the argument we just heard at the very end which is they're going to check on a particular individual because she hung up the phone and couldn't be reached again and the mother was worried  and she says hey this is me and i'm fine why isn't that enough to dissipate the exigency well what we know from the call was the the incident took place inside the apartment that's at least the nature of the nine one one call there was no call back from the woman who had called dimitris mother saying there's no problem there is no issues the officers don't receive any other information from dispatch that the problem is no longer there or that the persons have left the ever mention if they received it does indicate that the person that they're supposed to check about is dimitri they learned that yes ok learned that before they went to the apartment at least the daughter was involved in some kind of incident but nobody really knows what the incident was you know incumbent upon them going to being dispatched to little seem to have more facts from wish they could have made an assessment that it will meet rio was in the pool if that hey i'm ok then that obviates the need for them to engage with ms emmons at the at the window doesn't i do but i think that it was a dynamic situation that was unfolding before them if you were call as well what they learned from ms emmons at the side window was in fact there was screaming inside the apartment there were children inside the apartment she had threatened violence to go to work outside the apartment the officers did not know when they says or do they not have to at all i think it is an evolving situation that's why these are so difficult and that's why i qualified immunity is so critical to officers on the scene but let me let me pose to you what i see watching this tape the officer at the scene we don't see it on the tape but everybody agrees demetrius says i'm ok the kids are with me here in the pool they go to the window and miss emmons says i was yelling at the kids before but they're down at the pool they wanted to go to the pool and i told him they couldn't but they're down at the pool now and i don't want you coming in my apartment and what i see the officer saying at that point is we have to come in your apartment and it's not as quickly evolving situation because they call a supervisor and it takes eleven minutes or so on the tape for the supervisors show up and for them them to say we're going in and so the question is why do they need to go and at that point i don't think the record is as clear as the court may view it that they knew that those children were at the pool the children that were in the apartment that was identified by the ms emmons actually say that at the window i don't believe that she ever identified those children as the children in her apartment if she did say i was yelling at my children she did but we don't know that the children down at the pool are the same children and so she's threatening violence against she's telling officers she's telling them why she knows that they're there and yet she's pretending she doesn't know why they're there i think i think one can divine that from the nature of her heart i think i'm still trying to focus on and i understand you're qualified point once you get this welfare call the officers inevitably authorized to go inside the apartment or does does that depend on the nature of their investigation once they get there they don't show up as apartment was it was there from the beginning did it go away i'm having the same difficulty with your argument that i did with your colleague it didn't go away because what happens again is that the nature of the event is transforming because if you recall officer leffingwell eventually gets to the apartment and has that conversation with her at the side window he was not involved in the original incident that's happening outside the door if you recall marty evans at this point is now being arrested and being questioned so officer leffingwell  per officer a physical of the psychological merges the response team officer is having this conversation with her he's the one who goes in so the nature of the incident starts out as a nine one one call welfare check that begins to investigate they were they were trying to find out what happened inside that apartment so all of that to find out what happened let me korea there's a difference it's a when you broaden the scope of their search then you can justify in a type of i'm ok now so had the offices found out before they left who they were going to check on then maybe all of this would have been avoided well one of the things i think the legal landscape demonstrates without question is you don't need to accept an innocent explanation and just walk away well what it what it i guess the hard part of this case is that a rapidly changing situation can change in either direction further supporting an entry or in the other direction dissipating the need for the entry and it seems to me that each of you is arguing that it can only go one way it's not a one way ranche it and that's that's what makes a case challenging is that in some respects it seems that the situation became less problematic because i mean had identified herself and said ok and on the other hand the shouting they first learned involved shouting at some children and that could create yet a different exigency potentially so and i would submit that that is the very moment why qualified immunity is so critical to officers it's not just to get out of jail free card it is a recognition that officers are facing these ever changing circumstances and if you look at the legal landscape of cases th about particularly in the case of domestic violence and i'm not suggesting that domestic violence in and of itself is the trump card that's not what i'm saying it is a critical factor in the way officers view what's happening during their event what they're hearing there's they're seeing somebody who's nervous an agitated the court has already acknowledged that that's what you see i think that's what a reasonable officer would see why is she so aggravated agitated she's she's talking over the officers who are doing nothing but curt contemporaneously and repeatedly telling her why they're there they're just trying to get her to understand why they're there and she's not having any more can i ask you a question for you before you say it's a question about marty  very difficult to tell on the tape what happened but does does the excessive force claim on his behalf rest on whether or not the police have the right to enter because they were using the force on him i take it because he was closing the door he would he there's no evidence that he used any force that's true because he's out he comes out and it apparently all we can tell from looking at the tape and what the officers say and what he says is he closed the door and they threw him to the ground so if they didn't have the right to enter was that excessive force i would say i would say not necessarily because the pin code section one forty eight require simply that the officers are in their performance of their duties entry and exit is not necessary to the performance of their duties was the getting there on the welfare call why with what way were they performing their duties putting him to the ground if it was not in order to get into the apartment because they didn't come out and threaten violence he just came out and said why are you here in the  next and he's apparently shutting the door behind him if he were blocking the door behind him as he comes out and they put him to the ground and say you're blocking the door and they want to go in so if they don't have the right to go and was in that excessive force well in the first instance they they clearly have the right to go  d that's our position on this on the excessive force i believe the officers are in the performance of their duties whether they're going in or not they're there to check on the well for now whether they're talking to him each other still having a conversation with ms emmons when an unknown individual starts to walk out of the door of the case and she said they hear her talking look to be fair they hear her talking to marty inside and and one of the officer says the husband or the man is going to come to the door maybe we can talk some sen into him so it's not an unknown person coming to the front door they've they've directed him to the front door so they don't have to deal with her because she's agitated i don't believe that the record reflects that i believe all they hear him say is the officer performance of the duties the officers are investigating a nine one one call at that apartment or in the right place they have a man they don't know who he is there's no reference in the nine one one call as to who he is there is some potential event of violence happening in here unannounced a man comes out of the door and if you look at the tape he's coming out of there awkward way even he admits that he's obstructing their efforts to get into the house they know why he knows why they're there he's at the window listening to it i think officer could reasonably have found that so you know we're probably cause is a fairly low bar is there a probability of a crime the officers at this point are investigating this incident they have a man coming out he could have evidence he could have a weapon all they're doing is securing him while officer leffingwell still going to have an opportunity to ask any questions about whether he has a weapon or will these on the default position always is to take him down in ha take him down ask questions later know that the right thing to do the fastening to do and the more secure thing to do for the officers who don't know who he is is to secure a misquote please possible when you have a potential violent incident happening inside an apartment  much thank you others very briefly i just wanted to make clear one fact to the court that the officers were aware of the identity of the individual on whom they were sent to check it was cad dispatch the information went out it was a meter douglas she was twenty four years old they had that information at their deposition both of the first officers to respond testified that they knew that  opposing counsel raised the issue of real world consequences in policing and in this case you know just even for the sake of officer safety there are some things that these the first officers on the scene should have done they not whether they were negligent i think i could find it they weren't reasonable and circumstances the question is whether or not they have qualified immunity which is to say with some case clearly establishes that their course of conduct was wrong so what what's your best case that says well i would say we've got a number of good cases well i could be your for you if you got a number of good ones and you must have a best one to me last martin v city of oceanside i think that's the case that most clearly tracks it doesn't martin approve a search it does so i can give me one that disapproves one well i don't think that that's actually what's required well i think it might be because martin doesn't say if we had something doesn't say this is this it doesn't say this is the floor this is the minimum it says here is this that's what i was trying to get interviewed says here's the constellation of facts and here's the answer but didn't doesn't sort of flow or it doesn't say anything that differs from this isn't good enough well i think if you take the four cases that we did cite together brooks black brown and martin i think it those cases together clearly established the contours of the right we're talking about so but is there a case among them and that's why i'm having difficulty in which the court said this search was unconstitutional so that this fictional police officer this is the supreme court's problem they created it we didn't reading the cases would have said i can't do this because here's a case that tells me i can't well i to part after that you're on i would say that that is a case on all fours is not what's required i understand i'll tell you every single one of the cases you call your best c approved the entry and that's that's my problem trying to find a case that says no this injury is no good so that a police officer reading it would say ok now i know the entry into ms emmons or portman is no they do your honor and if you take those four cases there a ones that approve searches they are but you have one that doesn't i don't your honor but i don't think that that's what's important and i think i think what's critical is that these four cases taken together show that at a minimum in order for an officer to make a warrant rea worthless entry into a home they must have an objective lee reasonable belief that there's an emergency at hand and an immediate need for their assistance to protect life or property if you look at the officers own words and conduct in this case they did not