team of twenty six law enforcement officers approached of arrived at a single wide trailer in an improv neighborhood in rural north carolina mr oz was shared the home with five family members this stop by the officers was one of a series of of stops that they intended to make during the day of the officers called their visit to the home knock and talk encounter and they admitted in court that they had neither warrant nor probable cause to enter the house they decided at some point that they were not going to leave the home without gaining entry they would not let their lack of legal entitlement deter them after knocking on the door a few times and getting no response the officers utilized a pair of bruce's in order to try to gain entry first officer said in english publisher's clearinghouse when that didn't succeed the officers gained entry to the home by using the roofs that had worked reliably for them in the past they threatened to knock the door down the threat worked the evidence gained by the illegal entry provided the basis for mr was prosecution and officers entry to the house without a warrant without probable cause violated the fourth amendment right against it weren't listened yes here on yes you can come in and then as they were coming and she said it a second time yes you can come in and had her hand like this to come in she could have talked to them at the  door and they would started talking to her at the door explained why they were there this is a search and so or quite talk questioning and they did ask if they could come in and she said yes come on in now isn't that quite distinct from the effort to get the door to the open as opposed to the entry into the home which they asked to do they apparently recognize that just because the door was open they couldn't barge in so in and she said yes well i want to address the facts specific to this case and the case that i think governs this situation first of all when they say claimed that they were going to break the door down in order to get in and the occupants knew that these people were police officers that constituted a cop a claim of lawful authority to enter that home and miss pole open the door in submission to that claim a reasonable person would not think that someone who is willing to knock the door down that's let's let's yes or let's the she open the door let's let's concede what you're saying that you opened the door because she believed she had opened the door yes ok now at that point the officers explain their purpose for being there and then they say it's cold out here can we come in and she said ok you can come in and then she said it a second time ok you come in and she pulled the door back further and put her hand just her hand in toward the room you know i think same demand a that at that point where she opened the door and they explained what they were doing she could have continued talking to them and not invited them in and said i prefer you not to come and that i think the rules was to get the door open not to get into the house and you sort of collapse that because the officers clearly recognize they couldn't just because  door was open they couldn't go in but your honor the focus here cannot be on the subjective intent or expectation of the officers going about what she manifested in other words she opened the door and she said she thought she had to although the defendant it's a said he'd recognize he didn't have to he didn't recognize they were going to break it down they also recognize that he didn't have to answer the questions answer all those things during his examination but answer all those questions but the only question to you is you make a lot about the roost open the door but the officers clearly recognize that that did not entitle them to get into the trailer and did not use that ruse to get into the trailer they just got they got use that ruse to get to talk to her now she's at the door talking to them and they have this interchange with pretty low key energy agents they're all very professional quiet she was gracious and they said why they were there and they said it's cold out here can we come in and talk to you she sure come in and again your honor the focus needs to be an objective standard it needs to be what a reasonable person would believe under these circumstances and i submit that when an officer says to you i'm going to knock the door down no reasonable person would think then that that often is a door she opened the door yes your honor they take it from that right now what happens and the officers clearly did not feel entitled to enter the reason of that they did not gain entry by reason they got the door open now the question is what tom explained to me what happened in that interchange where she was exercising the discretion as to whether to come in or they didn't threaten her they didn't say she had to they said we're here to talk a little bit about security in the neighborhood and it was cold i think it was january whatever and they said it's cold out here she spoke i want to hear out of this case is governed by the supreme court's decision and bumper versus a stick with the facts just tell us john is that accurate it's accurate that when the door opened they engage ms powell and conversation they ask you say it's they didn't say we're entitle to come you know we're searching they came and said we're doing a security check or whatever the walk and talk language how many people are in the house i don't believe you when you say you're the only one i think there are more people here and it's called out here knock your door down can never be dissipated once that statement has been made and i believe that is that your position does my position your honor at least the facts in this case did not dissipate that threat the officers at that point said we are in command of what happens in this house we can do what we're going to do and in any event that's what a reasonable person would take in that she opened the door because the defendant said she could yes she asked and the defendant said go ahead and open the door so she opened the door and then the defendant testifies and he says did you believe that they were going to take the door down answer no said he explained all of these things as to how he what he was thinking and what was their reactions and he didn't feel coerced at all he said they were the police though your honor i disagree that he did not feel coerced i think that he had a as any reasonable person would in that situation even if he didn't think that door was going to come down i think he reasonably believed they were not going to leave without entering that house any reasonable person would think that under the circumstances he said had told her it's mrs pollack told her to go there after they were identified as officers as i said before i said before if i had seen that they were not officers i would have gone there are a lot of them to knock on the door down or to keep on knocking eventually they would get tired but you heard her testify according the statement they were scared testified and so forth and he said he didn't give that any fact that were knock it down didn't give it any thought so the question that was so you were just asked about whether it's dissipated he never believed that that played into the entry into the house he let him into the house because there were not some on identified person but rather were police officers your honor i understand your point but i need to go back to the fact that even if he didn't think that at all and i don't acknowledge that but even if he didn't read in the testimony i understand your honor but even if mr also were thought they'll at the tape ok i read the briefs and i thought oh my god this is this is outrageous you know you're just on a fishing expedition and you're threatening to knock somebody store down and then i looked at the tape and it was like there was almost a total disconnect between what the officer said we're going to knock the door down and then once the door was opened mr powell was engaging in a conversational tone there was nothing you know excited about it there was the whole scene was was very conversational was this is the best way i can put it so how do we you know you're just saying that's irrelevant because once the threat was made it can never never be affected no matter how factually things evolved to be just a conversation between the person in the police i think a reasonable person being told that they were going to be subjected to having their door beaten down by police officers would make every attempt to be very acquiescent once that door opened they would try to be hey that's the way they testified she did not open the doors result of that right she opened that door because the defendant told her to open the door and the defendant told open the door said he had thought earlier they were not officers because only one of them had the word police on it when they saw that they agreed to open the door now that's a different scenario than you just explained and the timing though in my view the timing establishes that their announcement that they were going to break down the door which happened just before mr also instructed her to open the door in my mind that timing compels the inference that that statement caused mr i was about to tell her to open the door and mr answer was we don't have actual evidence of why the door was open i mean who opened it both ms powell and the defendant explained she did not open the door she asked powell i mean she asked the defendant and the defendant said go pin the door because the officers i had thought they were not officers and that's the testimony that's undisputed and it's the combination of the being officers and making that threat b r s i do want to point to bumper of the north carolina  supreme court case from one thousand nine hundred sixty eight where officers approached the house of the defendant and their grandmother met him at the door and the officer said i have a search warrant i'm for warrant to search your house there was no animosity there was no shouting there was nothing and the grandmother said go ahead and show him the door there were no physical threats no verbal threats they said that they had authority to enter the house and they did there's another case that this network decidedly different these people didn't these officers did not assert they had title meant them and they didn't threaten they didn't even say we want to come in after the door was opened they engaged or with a few conversations are you the only one here  yes and then she reverse that and they're asking a few questions and then see when we come in and she said yes they didn't say we have a warrant and i would direct the court's attention to a decision by this court united states versus mouat from two thousand eight where officers responded to a complaint about loud music at someone's home they went to the door of the ins the officer demanded that the door be opened demanded the to do or be opened when the door finally was open to crack the court said the fact that that door was opened a crack constituted a search and it was an illegal search because it was open only on the demand of the police officer who did not have a warrant and did not claim to have a warrant and so that case  also compels the decision that this search was not consensual in this case the court says since there was what they saw through that crack right they obtained that evidence through their demand here the only question is whether the entry into the house was demanded but the entry of the hut to the house was unnecessary was absolutely dependent on this improper behavior of demanding that the door enter and the opening of that door is a violation excuse me in that when the evidence is to the contrary i'm sorry sir i don't understand why you keep asserting that the door was open because they threaten to tear it down the door was threatened after they threatened to tear it down and said they open the door because the it was threaten to tear it down and that's not what the evidence shows i'm sorry you're out the door was open after there was a threat to tear it down and a reasonable person would have opened the door at that point in a but the actual facts again no matter what the subject of a views were of the people you must subjective this is not what he thought this is what he said and did he told her to open the door because there are officers how bad the behavior if the suspect is not flummoxed by it it's not a violation and i disagree i think that the law is clear that if a reasonable person were distressed by that  officers it wasn't like they were shouting you know it i was struck when i watched the team you know because i thought this is a no brainer when i read the brief and then when i watched the tape i  really became conflicted because the officers weren't screaming they weren't doing multiple pounding makan kind of thing it was they were just saying they're making this comment and and that's why i'm wondering that even if it was coercive couldn't this the course of effect have dissipated as evidence by their reaction in this house reaction and important to note that when you talk about dissipation or attenuation there are factors that should be considered one is the amount of time that elapsed twenty seconds at most elapsed between the opening of the door and the entry that is not enough time for any coercion to dissipate the presence of intervening circumstances in this case nothing changed between the time the door opened and they entered there were no intervening circumstance while there was a conversation but i don't think that i looked at that take you yes you're on a whole take and then i looked at the beginning which you focused on mostly and i looked at that two more times and i kept looking for some actually very mannerisms or something that  coarser or that she reacted to and basically she opened the door and they had this low level conversation she was not under stress she didn't show anything she didn't show fear says they started off and say are you the only one home we heard some other people in here she said yes and then they said we have us some more people in here says yeah there are other people in here and explain what they were doing there and they said it's cold out here can we come in and she said sure in a in a in a genuine not a fearful fashion genuinely generous way and then she said it a second time of course you can come in and so they walked in now that entry for my view did not look worst it did me look like she was under fear and then we get the facts and then we learn that the reason she opened the door was not out of fear the reason she opened the door because the defendant told  the door and she asked should i open the door and the friend say yes open the door it's police and they let a man and then the conversation within the house was as low key is it could be i mean if there was no thing we suspect this we suspect that we as a matter of fact they were basically looking for what weapons or something and they found out the weapons were register yet they were there on a very very stale informant coursed all it was his voluntary decision to go this route open the door let him come in and he also said further on that he knew he didn't have to answering those questions and he felt he answered involuntar whining may it please the court christine frets representing the united states judge king and i have to tell you that when i read miss hayes brief for the first time i had the same reaction you did i immediately thought a phrase like open the door are going to knock it down has absolutely no place at an architect and that is the office has position and i can assure you that the case is and his supervisor now know that this is not a ruse that we view as being appropriate in this context the statement was and remains unacceptable and it absolutely weighs against a finding of voluntary consent but consent just like custody is to be determined from the totality of the circumstances and the record in this case and especially that body camera footage support the district court's factual findings first that miss powell provided voluntary consent to the officers entry into her residence and second that the defendant was not in custody at a minimum on this record and after reviewing the video i don't believe it can be said that the district court's view of the evidence is implausible and that is the standard that has to be met here this is a clearly erroneous standard in this court has to be convinced that the district court spectral findings were implausible and that's not possible to meet here the magistrate judge he d heard testimony from all of the relevant parties did a very thorough review of that testimony as well as the video which i think is some of the most compelling evidence and provides the foundation as to why the district court reach the conclusions that it did and the court didn't discount that that statement was made the court recognized that out weighed against consent they recognize other factors that weighed against consent such as the absence of any warning that you don't need to let us in and those are factors that weighed against consent but on the whole and under the totality of the circumstances the remaining factors supported the determination that mr powell consented to the entry of her home the court looked at things like the officers approaching the door of the residence in mid morning without any drawn weapons they knocked repeatedly without yelling or violent pounding on the door that was the court's factual finding that there was no yelling or violent pounding on the door the defendant directed powell to open the door after recognizing the visitors as officers miss powell is an adult who is fully capable of communicating opened once ms howe opened the door the officers did not use hostile accusatory or threatening language and they asked in a conversational tone for permission to enter and they asked because it was cold outside and then mr powell freely and casually invited them in their entry into the home wasn't connected to this statement that had been previously made the door opening was a result of the defendant saying that she should open the door because he was concerned about his immigration status and the invitation into the home honestly it was after this observation that it was cold and when you watch the video it's almost as if was i'm sorry i'm being impolite it's cold inside yes ok come in ok come in and then she gestured she opened the door more widely and i would suggest that the fact that she chose to engage the officers in conversation upon opening the door and have a dialogue with them also supports the finding of consent that she wasn't under the impression that they were immediately allowed to come into her home and the fact that they stood pretty still and calmly when she opened the door and talked with her in a conversational manner also supports that in spite of that ill advised statement they knew that they were not going to enter that home without consent and other factors to consider miss house characteristics that she was educated she was in she had a cheer degree she was in a nursing program considered the siding it was nine thirty in the morning it was light out she was not home alone although there were multiple officers at the scene the defendant saw only the two officers who stand at the porch and he recognized those as officers and and i think also the tone and the tenor of that exchange it really was watching the video really change my image that i had created in my head of how th occurred and i'm i'm very relieved that the court has taken the time to review that video footage very closely because again that that changed everything for me and i'm not here to suggest that this was an inappropriate statement in this context we don't think it was we're not happy that the statement was made but at the end of the day we did not see this a constitutional violation we believe that the district court got it right applying the law to these facts and given the high standard to show clear we simply don't think that the district court's view of you your honor this very casual notice of the constitutional violation of the conduct in this case the very casual ness which with with which the officers undertook to threaten to break this door down is in itself troubling it's part of a pattern that they use in this community they acknowledge that that this is part of the one of the tools in their tool box when they go to people's homes is they threaten to break the door down why because it works they do it because it works they knew if they said it the door would be opened and your honor i understand that you're making a distinction between the door opening and them entering but that is a distinction that i don't think applies because i don't think any reasonable person would think that someone who has threatened to break down your door will stand placidly on the other side of the threshold the message that you'll be giving the police officers in this case if you let this go if you affirm the conviction is make your threats in a low tone make your assertion of authority in a way that sounds conversational if you can gain acquiescence without looking like somebody felt threatened or afraid that's ok and it's service to the court so important and i know you've done it quite a bit i think we very much appreciated i want to acknowledge that will come down and greet counsel