in this case the officers armed with a judge issued search warrant and a list of potential threats acted reasonably to protect their own safety and the integrity of the search when they  home as they are authorized to do under controlling supreme court precedent what i mean in front of his home was that were he stayed no your honor that is not where he stayed but that is where the initial detention occurred  detention and what makes this case different from other cases i'm familiar with is that he was taken some distance away correct i think that's the fact you have to face up to correct your honor the detention although it initially occurred on  arrest somebody and take him some distance away to a police substation correct your honor there is no one point case law that says that during a summer's detention officers are permitted to transport the suspect however there is also no case law precluding that which goes directly to the clearly established prong of the qualified immunity analysis in addition the officers when they detained gillan transported him and effected what was in essence a much less restrictive detention than those which are authorized under the controlling case mueller v mena and later cases interpret ing summers permit actually a quite restrictive detention the use of handcuffs for the duration of the search has been uniformly approved by the court so how is that more you act like that's an outlier in this case of within that in this case as i understand it mr guillen was handcuffed and was transported and was within the police substation when they finally took the handcuffs off that doesn't strike me as being a a lesser intrusion indeed was he arrested no for arrest no there were not grounds for arrest by d p s and guillen was told initially by officer white that he was under arrest due to officer white's mistaken belief however he was also told later by other never free to leave for the duration of the search they are always detained for the duration of the search and they can't just decide to leave and as to the restrain what sense was he not under arrest during the time between when he was told he was under arrest and then later when he was told he was not embarrassed because he was being detained pursuant to the search warrant is there any way he could have known that at in that gap of time where he had been told he was arrested in the negev of time i don't know that there's any way that he could have known that or anyone who saw him in handcuffs being driven to the police station or or walking into the police station i mean there's a there's a public view issue here that's not there when he's at his own home correct there is a public view issue however the detention could have occurred in its entirety for example in his front yard he could have been handcuffed he could have been guarded in his front yard by officers on the premises and that still would have implicated a public view situation and as far as the restriction on his detention he was handcuffed while he was driven to the substation proximately five minutes away however once there the remainder of his detention occurred without hand yes he was free to move about the substation he was free to make phone calls to his lawyer or whoever he had access to facilities and in that sense it was a reasonable interpretation of summers by the officers that they could take steps to effect a less restrictive detention well what was all but that except your premises less restrictive i don't see anything in summers that authorize putting somebody in handcuffs tellingly or under arrest and c beyond this point to it it tries to confine the authority that's given and the confinement would not open the door it seems to me to what happened in this case summers did set limits on the authority however in the time since summers courts including this court have analyzed situations where the facts materially different from summers and still analyzed whether the summers authority would apply in many times it did and sometimes it didn't summers and in that case the individual pressler was not taken as far away as a police substation was taken and told to lie down in a ditch some distance from the house the distance isn't defined and that case our court said that crossed the line summers wasn't good enough to protect why is this case different correct your honor well some but taylor is not binding on this court it also doesn't preclude qualified immunity evolved significantly particularly as we saw in the supreme court's ruling in two thousand and five in wheeler vino where it clarified the categorical nature of the summer's authority but it also involved in the  evaluation of officer safety as an important factor which was not even cited in taylor or even recognised as a legitimate law enforcement interest under summers so  officer safety i can understand that certainly a legitimate concern was there any particular threat articulated the mr gillon there were a number of threats that were personal to dylan which number one necessitate involvement in the first place where both those weren't threats he made at the time that was it's not like there was a detention and then a decision this isn't a good safe place he's threatening us we have to take him someplace else they'd made an assessment beforehand all the swat team and those preparations pretty elaborate preparations were made because what it was perceived that mr gillon might be capable of doing but did he articulate any threats or take any action that would have caused the officers on the scene to say oh we have to do something more to protect ourselves when he yes he did when he was detained he was combative and he with the officers and he was non compliant with commands and your honor when coming out of do you mean physically combative he was not complying with convict commands and he aggress towards them when he was still told to stay in the same place and the officers particularly officer white felt like that was a threatening behavior on the part of the armed he was armed with two weapons and had always been expected to be armed as well which was part of the reason that the initial operation was planned so as to avoid any contact with guillen at all which is one major factual distinction between this case and taylor where it appears that the whole plan was to lure the suspects out of the house for the purpose of detaining them and then conducting a search at some later time here this operation was planned to avoid contact with him it was planned to start the moment that he left his house and officer bowling gave the entry team the green light to head over and so that factual difference on top of the later case law that clarified the categorical nature of this authority is what distinguishes united change that mainly the court in bailey because the suspects initial detention occurred a mile away from his house the court in bailey analyze that as an entirely separate detention from those analyzed in summers in bailey the court said quote it is necessary then to discuss the reasons for the rule explained in summers to determine if its rationale extends to a detention like the one here so summers clarified in mena they the categorical authority requires only that you ask whether there's a search warrant and whether there are occupants at the time because in bailey they determined that bailey was not an occupant being one mile away from his house they revisited the balancing test that does not need to be done here because the result of mueller was that it relieves courts and officers of performing an ad hoc balancing test every time a summer's detention occurs and by doing that it implicitly recognizes that there are variations in the different elements of the balancing test and so although even if the balancing test were revisit it in this case the three law enforcement interests were served because guillen was in front of his home at the time he was detained he was a danger to officers at the home  he could have frustrated the search because he was at the home and those those elements separate this case from bailey i notice my time is running short so if there are no further questions and will  did not have the warrant they were not there to execute a search warrant they were part of the executing team they were simply on scene as surveillance officers or even one test twenty one officer said they were been deployed as a sniper team the start of guillen was without probable cause without reasonable suspicion it was just a stop and it was illegal there is no justification under summers and we look at summers it's very clear summers is a narrow exception and it applies where and when a warrant is executed and that language is consistent throughout the subsequent cases even that had to do with a search warrant but it was for the length of time while the house was being searched the case law is very clear about where and when we are allowed to detain folks this is not what happen see anything in the cases that said detention starts only when you actually enter into the place it was searched there the language that you pointed to i think turned on that i mean  executed what what was the logical distinction i mean it wasn't like the search was a surprise to the officers they were there might have been the forerunners and they were surprised when mr yellin returned and they took action based on that entirely it appears because they knew the surge team was about to arrive in the the mission had then to try to accomplish the search when he was not there and suddenly he's there so now what do we do so i'm not sure that that the notion that we should disregard the fact that a search warrant had been obtained and was about to be executed this seems to come with an affair penumbra of that search warrant i don't think so you think we were looking at this the search warrant was not something going to be executed within the next five minutes in fact the officer that assisted with guillen's attention and took him to the substation was the person with the war and they waited until he was completely finished at the substation to return to the house really that summers justifications are even supported by holding guillen somewhere away from the house here when we look at that's one instance we have the taylor case there is little difference there are the officers generated a ruse flushed out the suspects and stopped them before the warrant was ever served as well and again holding them some distance away confuse about your logic on i have to look at the record on that i mean that's just the facts of what happened that skilling was arrested put in a car the officer with the warrant then accompanied him so the police station and that's an interesting point so you're saying that white or so his bowling one of the bowling is he was one of the swat team members but who drove ellen to the substation he was bowling vehicle he's a d p s officer he wasn't on the swat team who simply assume for a moment there's a constitutional violation of what you described what case clearly established that the premature detention whether it's five or forty five minutes is a constitutional violation a fourth amendment violation well that's not that's not no good not misreport very very clear saying we can't go to very high level right so tell me what case would clearly establish that what they did with regard to the timing of the detention was a violation i don't not sure it's the timing specifically it's not having the warrant present at the scene ok so tell me what case would clearly establish that that think it's all the cases judge when we look and see that that that's an answer that our court is given in the supreme court is rejected on multiple occasions so telling me that fourth amendment law generically is it isn't going to be an answer that flies at least not with our sup here it's simply is obvious judge when i don't i mean i don't think it's obvious i really don't think the premature detention of a fairly brief period of time is a constitutional violation so let me put the question to you this way point me to a case away and so forth not so much of a timing of all that was time that was in the background to this in the background in its own and they were stopped apparently before the arrest warrant was even served it is part of the components a slightly different analysis but i would point taylor's a thirty year old case that does support and how do you respond to opposing counsel's argument that that was pretty and ill or change the change the landscape well it is pre do we consider this search to have started i mean do you have a case that says that when the officers are surveilling the house that's not the beginning of the search or that you need the warrant to be there it would be the beginning of the search we have what we do have the facts from the record we have is the position of don't have a case where officers arrived and rounded someone up ahead of time and haul them away we simply don't have that we have to work is the closest we've got it's obvious we don't do that because that's a fourth amendment violation guillen was not there mr gillon a rives what do we do if they had simply stopped him and held him at that point knowing the warrant is on the way in the search is about to be conducted i think that's a very different case but it's not a very different case because the detention happens before the warrant is physically present it i think that's the one leap here judges that these officers who actually made the stop were doing it in in anticipation of the search warrant a different location when the search starts forty five minutes later i think that's problematic i think that's a violation i don't think summers is it just of it is it because it's do you think that's because officer white had the view that it was a never asked that the officers were mistaken as to what kind of warrant was there they weren't randomly seizing somebody who they thought was dangerous they thought they were operating as part of an established plan procedure where it should may have been one in which they got their fact as to what kind of warrant wrong but was actually true with regard to the fact that an operation was going to proceed with the search and they wanted the search to take place without mr gillon being present so what case  but you're saying i don't have a particular case isn't that a problem for us i mean even your brief says existing precedent must replace the question beyond debate and if it does with there is no case on all fours facts we've got taylor and we've also got bailey brody all those cases now brody again is this from the i think d c circuit it was a month before this case it but it's a virtual force it's the where in the when is so patently obvious that you can't see someone unless you are executing a search warrant you are permitted to seize people without probable cause where and when you execute a war if we start making case but otherwise no i think this is obvious as  fluff that unless we have any more questions i think i'll say thank you very much  honors i would like to quickly make two points the first has to do with the obviousness principle which this court addressed in a sharpie orange county recently that the obviousness principle has extremely limited political ity in fourth amendment or officers are encountering suspects in different factual scenarios every day and in sharp both of the issues that this court dealt with were it particularly the issue regarding summers was far more a field from the actual facts of summaries yet still this court granted qualified immunity gillan has no clearly established precedent that can satisfy the white standard and as this court had stated in sharp without that qualified immunity is appropriate the second issue that i want to address is the issue of timing although forty five minutes elapsed between guillen's detention and the  warrant i don't know i don't know that it is not in the record that his dad was at at dylan's home prior to the transport i believe that he was but in any event the forty five minutes to lapsed due to return home the swat entry team was staged five minutes away it's only speculation how quickly they would have a right tat he not returned home but also that time was elapsed so that the swat team could talk to him allow him to help facilitate the search that assisted them with their concerns for officer safety provide his house and vehicle keys because the warrants were also for hi so the forty five minutes was in response to his return not zooming in response to him being taken to a different location that's the piece that the puzzles me the most i particular if they wanted to confer with him why was he taken to a different location the only thing that we have in the record to explain the transport is boeing's testimony that they had transported him for his convenience so he wasn't in his front yard in front of all of his neighbors and handcuffed during the search unfortunately that's the that's the only thing in the record to explain the transport however then his detention you know i don't believe that the officers would have taken his handcuffs off had he remained at the house so the detention at the substation did permit that to happen but the forty five minutes didn't just elapse by virtue of the transport it also elapsed because his dad went and spoke with  about the possibility of explosives about the other safety concerns and asked for the keys and once they were provided the swat team revise the operational plan so as to do west damage to the property and be