morning good morning may please the court my name is kyle wacken heim from the federal public defender's office lessness of oklahoma and i represent michael morse mr morris challenges the district court's denial of his motion to suppress on the basis that the search of his house without a warrant was on reason we submit that the district court's conclusion that this search for mr morris and his house was justified by the consent and exits in circumstances exception was aaron we asked this court to reverse i'd like to begin speaking on consent but even before i get to that mr morris asked to prevail in my opinion on both issues for this court to reverse and the standard is substantially more difficult for consent given the review for clear error but i think we can get there based on the facts of the  record i think that the primary complaint that mr morris has on this if you will is the district court swain of the circumstances the totality of the circumstances and to that end there are a number of circumstances that i don't believe were given appropriate consideration first as a brief review you may recall that the consent to search for mr morris was given by his mother who exited from the house and this case is somewhat unique because we have body worn camera footage of two officers officer hobbs and officer pack officer hobbs is the officer who interviews and eventually secures consent for miss morris officer peck arguably is more relevant for the incertain stance from because his video recording spans a number of hours from the very beginning all the way through and i encourage the court as it has been done so already to review that videotape we know that it was very important for the district court below i think the district court stated that he was a big fan of these body worn cameras it was one of his first interactions with them and he placed great weight and specifically at page one hundred six of volume three when asked if her consent was given voluntarily she said i was at that point exhausted i was tired i was hurt i was groggy i just wanted someplace comfortable to sit she stated that it was not of her own free will that's a consideration that this court should take into account and it that this a court did not appropriately take how do we review the district court's findings for clearer and when if i look at you and say well you know he looked view from my vantage point was necessary to ation we have here i agree has defied the policeman's hammers were shown the verbatim transcript was shown and the court made a decision on what and i say that the district court below and the clear review of the record shows that one of the primary arguments made by mr morris was that his mother was threatened with jail right by not consent well i mean i've watched the video she was threatened with jail if she was lying to the police about her son being in the house that's very different than threatened with jail if you don't consent to coming in searching for your son and i think it's important not to overstate that because the video is pretty clear on that point i'd like to make about that if she was lying and he was found inside the home so presumably she was line she was not taken to jail the only difference was that she did consent so she consented he was found in the home while she line i think from her perspective she didn't know that he was in the home oh layout of the house you'll see that through the front door is the main living room area with the recliner which miss moore said that's where she was and when they clear the house you'll see mr morris his bedroom which is accessed through a back door so it's possible that she didn't know that her her son was there and certainly that's what she testified to i think some of the other factors to be considered also support that her consent was not given voluntarily the scene itself a summer night dark miss morris arouse from her sleep which was induced by medication she was drifting off watching her her television program and is ordered out through the p a from office are pack into blaring police lights with multiple weapons pointed at her including at least two a ar fifteen and her condition if you see in the videotape it's very difficult for her to get out of the house she's asking for a  place she's visibly uncomfortable and what's i think also important is that when her consent becomes but her lack of consent is the most unequivocal when the tone changes i think that this record highlights that what is the officer do he makes her walk somewhere else and he knew at that point that she had arthritis that she was hurting that she just wanted to sit down and i'm not immediately tried to help her to sit down wanted to in the car but the door was locked and right didn't have the key it wasn't like he was trying intentionally make her arthritis worse by making her stand i don't know why he didn't get the key to open the door she she was not a place to sit down and the only point i'm trying to make is that when the consent becomes an issue she's whisked away and this is your view of the video and as judge kelly points out i might have a different view the video judge briscoe may have a different view but we will we have to find is that the district court's view of the video was clearly iranians how do we how do we get there other contexts though not in the totality of circumstances so far that the failure to properly apply a legal standard does become an abuse of discretion so that's one way to get there and something else i'd like to note a supreme court recently in a different context for probable cause i submit that the whole picture presented to the district low requires the conclusion that her consent was not given voluntarily what but if the court disagrees and affirms on that it doesn't need to get to the exigent circumstances question but since that was a belt and suspenders approach to the order below a fillip we do need to address transcript at six sets a fight at one twenty six am and they enter at three am approximately that's at eighty six of the transcript of that's about an hour and a half we submit that there is an additional amount of time that should be taken into account and that is the amount of time from the report of the shooting when the shooting took place to the entrance of the officers now both officers i believe testified that their impression was that the shooting had just  occurred however the district court at page one hundred seventeen three when entering into a dialogue with counsel says that in his mind when officers arrived their frame of mind was that the shooting had occurred within the last one and a half to two hours so the point here is that when you're looking at what is the immediacy what is the edge and see here first we have two witnesses that wait at least an hour before reporting a shooting that's unusual did the officers know that there was that time gap between the and the target of the shooting and the report the actual shooting and the report by the people in the car  s and then is later told we need statements in case something goes wrong in there so he travels and he interviews these two people gets their statements observes the bullet fragment defect in the vehicle and travels back and when he arrives back at that point the team is aware and the testimony in the record defense counsel questioned repeatedly what took so long and the officers stated we had to come up with a plan i submit that the objective facts below don't support that they were they took one and a half or three hours to devise a plan for four people to get into a two bedroom apartment this is much different than some of the others it is not the kind of thing you want officers to do before they go to a residence not a meter or an rounds an elderly woman who is ill of her sleep i'd like them to get a warrant but when they're planning to get in what i submitted that it did not take that entire amount of time to go in a two to devise a plan to go in of course you want to go you want to be careful you want to sure officer safety and the safety of the individuals inside but what distinguishes the edge of the circumstances in this case which we submit our absence is that on all the other cases that are side and there's something observed on scene there's something to substantiate an immediacy we need to get in that house and either see if there's any victims of reported shootings or we see a person through the window we see a nine one one call back that's not be an answer when officers arrive it see that they see apart from this morris coming out of the house with a light getting turned off when they first arrive there's nothing else and i submit that eccentricity just simply isn't met and i know the subjective belief of the officers is not relevant but i think it informs me what actions they were taking during the period of time in between arrival and entry into the house district court did not clearly err in determining that consent was always been curious in the world of video recordings of everything we can see the video and what happened just as the district court and why do we have to defer more to the point of the facts of this case the santos case at this this court also indicate in that case there was a video and this court indicated that there was to be deference given to the district court findings which is essentially what facts and circumstances in our case in again speculating to the extent there are findings that are clearly outside the realm of the record which we do not have in this case we may rise to the level of clear but in his case fortunately we have a the facts support that and that is the crews and then there's case points out it is not inappropriate to threaten a warrant when you have probable cause to to get a warrant and in this case the evidence supports that they are the record indicates all of this background organizing checking things in creating a plan before they go to the home that's correct so the exigency is a little hard to support here in your eye we can see and the court goes on also in the heart of say quote the business of policemen and firemen is in italics these to act not to speculate or meditate whether the report is correct what what is the emergency here run of the the record reflect that an individual fired a weapon off of a porch and not only did the individual fire a weapon off the porch but into a passing car and not only into a passing car but in doing passing car that was occupied by two individuals by the time the end the officers ultimately go into the residence they confirmed that this vehicle had been struck by this that it does vehicle had been struck and officer peck also indicates as a transcript of page eighty four that he knows that he is dealing with a convicted felon so the emergency is that we have officers responding after midnight in the dark of night to an individual who is standing on a porch and shooting off of his fortune but he wasn't standing on the porch shooting record does not indicate there was activity going on at the house there was activity inside the house but again against the backdrop of the realities of the situation which we are to look at those are the realities of the situation officers are responding to an incident where an individual is shooting off of a porch into a passing car and again has been a hard case pointed out it is the business of police to act to drive better stop the business of the police to act without a warrant unless it truly is an exigent circumstance so you have to look at the immediacy versus what would there be some imminent danger if you took the time to get a warning and it doesn't appear to be anything that would have prevented it here so i guess maybe we should focus on your concern and our team yes your honor and again the government would submit that the exigent circumstances are at play here in are satisfied but again they concede that the consent argument would probably be the the more sound way to affirm the district court and there are a number of factors that govern this analysis as this court has pointed out defense counsel pointed out that ms morris was was somewhat medicated and was not someone all to her which when dealing with this but again as this court has indicated in the sims case are the cases i have never required perfect mental ability to find a consent to search was freely and voluntarily given and again the question is one when looking at the totality of the circumstances of mental awareness and as the district court pointed out mr hobbs in dealing with with with mrs morris was noticeably cured courteous and he was very businesslike this report also pointed out that quote she was respons she was mentally alert and she was reasonably articulate as the transcript indicates again by all outward appearances on the record mrs morris consistently engaged with the officers and as this report pointed out she knew how to say what she means in the the record reflects that in the videos defense counsel also pointed out many officers were on the scene that night your honor i believe the record is a little hazy on that  i believe there's some indication that there were up to seven officers on the scene and they're all armed and they were armed your honor but in dealing with mrs morse individually it appears that there were not seven officers  with that were those additional officers visible to her i mean in the video we're pretty much we're seeing two people interact with her but where are these other officers that surrounded the house your hon believe the record is a little gray in that area there is some indication in the record that officers were establishing a perimeter that they were keeping eyes affixed to the house which under the circumstances would be prudent they have an individual was shooting off of the porch there is some indication also in the record and i believe that the video is reflect this there were two officers engaged with ms morris but there's also indication that i believe another officer was in the alley in terms of the police presence of the vehicles i believe there's evidence in the record to support the one police cruiser was was close to her and the others were staged somewhat in the distance away from the location where the individuals were speaking with her the officers were speaking with mrs morse i believe there's testimony the record of those that not have their lights on some confliction in that in the testimony officer hobbs testified at the transcript of page fifty one that it was not a threat to the district court nonetheless did give credence to this and said that the threat was ultimately in the mix so to speak he did make these communications but as the court pointed out these were conditioned on her wine which is similar to what we had in the nick neal case to some nice but in fairness when she consented there was no more talk about taking her in for lying and she was obviously lying that's correct your honor my listeners did feel that she was lying yeah so i mean yeah you can say what i was really doing was threatening you he consent was it was nevertheless free and voluntarily given here against the backdrop of the macneill case this is morris and this case was at her house the the defendant in the macneill case was at a police station so she was not at she she was at her own place and again similar to the circumstances of here the court indicated that if she was lying then they would take her to jail similarly in the macneil case they were giving the defendant in that case options if she was lying that would be something that they would look to charge her with which is similar to what the district court indicated in this case the district court pointed out in the transcript at page one twelve that the jail statement was conditioned on her whining and not on denying access which is i believe an important point that really i mean you've got two officers you've got weapons showing you've got perimeter with more officers again more gun more cars and there's reference to going to jail i mean just the reference of going to jail for any reason doesn't that intimidate her i mean you're in the middle of the night you've just been aroused  your sleep and all of this chaos ensues and she's got i think rheumatoid arthritis i mean she thought she's got difficulties got health issues in scripture and in looking in looking at these instances in their my consent be voluntary your honor with regard to being intimidated as this court pointed out in the macneill case is not per se career going to present a suspect with the correct information to make a reasonable decision and again against the backdrop of the macneill case mrs macneill the defendant that case was in a police station and was presented with similar similar statements in that if she was wanting to get it was conditional if she was lying and she would go to jail the court upheld that that was voluntary consent again in this case the officers were within the tenth circuit precedent by indicating and giving her well and giving her information so that she could make the correct decision and make a well informed decision based on the record your honor the government would ask the court to affirm if there are no further question i'd just like to make a couple of points first on the edge and circumstances government places great weight on the in the jar case smith that cases is drastically different there's an immediate need there's a victim laying in the floor there's a nine one one call and it's just simply not observed at the scene and the difference when i'm next in can be seen lying on the floor right through the window or something i think that or when opening the door hence a need to know when and if this court to take a little more comfort in the ability made part of the record the exhibit of miss morse's hands but speaking to her rheumatoid arthritis you can look it of footage of her hands at two hours fifty three minutes and ten seconds officer  some of the other characteristics and factors i think should be taken into account that i didn't get a meant opportunity to mention one the number of times that consent is denied or in the words of officer hobbs deflect it's clear that she is saying no in one way or another and in her mind perhaps she's covering for her son if you believe that she's lying to cover him but she also has to have directive basis not to let the officers in one she's very protective of her dog that's clear into she didn't think she had the ability to consent and she's quickly not strong armed but very firmly persuaded to abandon those two positions one will do our best not  shoot the dog although if you were to look at twenty five fifty eight of the hobbs video you hear one officer say to the next if we have to will blink the dog responded yeah i know and then secondly whether or not she had the authority and she's told well you've got the authority and she's marked between the officers for oh she tried to fast time which i'm sort of i know it's