everything considering only the facts the deputies knew at the time they entered mr merrick's home and arrested him the law compels one result there were no exemptions circumstances in addition to call and i understand that the dispatcher typed you know that the opposition received a written statement summary that left out the one salient fact about the person fearing for her safety but what is in my correct that that's all they received and they did not also receive any kind of a you know audio or radio traffic communication from the dispatcher to the officers that's correct your honor based on the two declarations from valerie reese and i believe her name is denise osama in the record who are the two dispatchers on call that evening they transmitted over the computer aided dispatch system a brief summary of the nine one one call it did not state anything about ms merrick fearing for her life to the contrary only relayed that mr merrick was allegedly drunk breaking property and that dispatch transmission also stated specifically that there was no physical altercation so ok that's the part i know forgive me that's the part i know my question is i just want to make sure that that is all they received they didn't they did not have any radio traffic or all traffic between the dispatcher is that right that's correct based on the record your honor none of the deputies stated that they received radio transmission or any other communication beyond the computer aided dispatch trainers and so the feared for her life part of this as i understand it is in dispute some of the couple of the officer said that they heard that or what is the record on that well your honor the deputies did submit declarations to the district court stating that they were aware of this fact but that is contradicted by the dispatcher's own declarations that they did not transmit this fact based on their statements of what they destroyed the district court did not appear to consider the  allegation that ms merrick may have reported to nine one one that she was fearing for her life it was in dispute obviously yes yes your honor and it did not appear to factor into the court's analysis of whether the circumstances were existent which is proper based on the record however what had been the result would have been different had or should have been different could it have been different if indeed that was part of the record that she had said she miss america had feared for her life it's possible but based on this court's precedent it probably would analysis if we look at the facts of martinez harris and hopkins versus city of sierra vista in each of those cases we had nine one one calls that were reporting actual violence and then when the officers were arrived on the scene the house was quiet or they could visibly identify the victim see that she was physically unharmed and so the idea that  the fact that ms merritt could have feared for her life at one point still would have been weighed against the fact that when the police officers here arrived the house was quiet they could see miss america her children there was no signs of a domestic dispute th the property reported in the ca do you transmission your honor you're correct there was a report of breaking property but at the time that the deputies arrived they didn't see any broken property the damage or that your honor notes was discovered by i believe deputy burke after he entered the house after mr merrick was restrained and arrested in his front yard and was doing a search of the property so the fact about the broken door was not known to the deputies at the time that they arrived at me before you go past this you just said that the broken door wasn't known to them when they entered the house when they arrived at the house it wasn't known to them when they entered the house was it no it was an on your honor ok so those important point it's important point for me i'm not concerned about when they arrive i'm concerned about when they stepped across the threshold and just to be clear my understanding from the record is that door wasn't visible is that right that is correct your honor and he wasn't arrested for damaging property destroying property right he was not he was arrested for the misdemeanor of child endangerment and the mystery meter of resisting a police officer and its opponents position that probable cause was lacking on both of those crimes first it cannot connect to the misdemeanor resisting a police officer or failing to was it resisting or failing to obey an order it was resisting a police officer under penal code section one forty eight your honor and is that conduct the conduct of refusing to step out of his house what is the conduct yes your honor it is refusing to step out of his house and refusing to according to a kelly's and their answering brief allow the deputies to enter the house and talk to mr merrick however the california supreme court in people v whetsel have stated unequivocally that riff standing at the doorway of your own home and refusing to allow an officer to enter your home without a warrant does not constitute resisting arrest or resisting a peace officer under penal code one forty eight  when you raise that i have a question i didn't see it anywhere but this whole notion of the fact that he was a strange day as i understand it that in the call it was she said a strange husband a strange seems to suggest that they weren't living together now nothing seems to have been made of that but if he wasn't living there cleary whether he had the right to to not exit the house when the police asked him to can you speak to that a little bit i can a little bit your honor you're correct that there's not a lot in the record as to the status of their relationship and there's there are some facts that sits that would suggest it's strained but i guess what i'm getting at there was the police thought it was strange putting aside for the moment the reality was that there was standing to make a fourth amendment claim i'm not so much raising that issue but i'm really raising the issue of what they knew at the time and they knew he was strangely i didn't see that they argued that anywhere but soon as i saw the strange i thought is it his house is he living there because strange often means maybe usually means they're separated based on the facts that are in the record it appears he was living there indeed  testimony to deputy a billy burke whoever she gave her statement to after suggested that he was sleeping there on regular occasions that they had a practice of being together and she described their ongoing relationship and some of the strain in it so  know that initially when they got there they did not initially but your honor is correct that neither at the district court level nor on appeal have upheld he has argued that the facts of the estrangement indicated to them that mr merrick lacked the consent to refuse their entry to the child endangerment but we have to consider both the california courts of appeals interpretation of two seventy three a b as well as the facts that the deputies knew at the time they decided to arrest mr merrick without a warrant again they did not know about the broken door at the time that they arrested mr merrick for child endangerment they learned about that after and the fact that they did know do not rise to the level of quote serious domestic violence against the other parent while aware that his while aware that his child was at the scene that the california court of appeal requires to state a claim for child endangerment what the yes he is me forgive me for interrupting but you raise a good point if they couldn't see the broken door but they arrested him for destroying property what what do they what do we know about what they knew what property when they arrested him for there's no evidence in the record that the deputies saw any broken property when they arrived at the house or when they immediately entered the home the broken door is the only evidence of broken property in the record but did they know they were thinking that there wasn't allegations about other things having been thrown around or no broken glass on the floor enough i can't i don't see that anywhere no you're o care and it's just the broken door on the broken door wasn't visible when they entered is that right that's correct but the day they did not arrest him for destruction of property did they know they did not write her child endangerment and resisting a peace officer and but wait a  no they had arrested him immediately upon entering the house mr merrick refused to allow them to enter the home without a warrant two deputies crossed the threshold grabbed both of his arms brought him out into the front yard handcuffed him and  executed a leg sweep leaving him on his front lawn for about twenty minutes before sending him to the county jail and but the police is it not reasonable for the police to have been concerned because one thought is why didn't the police question her which was which we will i will ask your adversary here before they took the next step of taking him out but isn't it wasn't it reasonable to think that the children and the mom this is the woman who had just called the police and now she's sitting there mute on the sofa with her children holding on to her i mean isn't it reasonable that they would be concerned about her feeling intimidated by the man who's now at the door saying i guess something to the effect we don't need your everything's fine when that had been a reasonable reaction by the police it may have been reasonable your honor but it's not excuse their requirement for them to get a warrant or prove exigent circumstances and so the if we look at this court's decision and hopkins there the defendant appeared at the door drunk an officer was responding to a call that a woman had been beaten and screaming in the apartment the loud noises were coming from the apartment the officer asked to speak with the wife and the declaration going back to a question earlier asked by my colleague it says the complaining witness states a strange husband so to my mind please i was no police officers of the think that he doesn't live there that they're separated estranged husband drunk and breaking complaining witness property she wants him sent on the way so it goes back to the trespass idea if the police officers were incorrect but understood that he didn't live there and that he was drunk and that she asked him to be removed could they have done what they did here if that was actually the police officers reasonable belief that he was an intruder but the record does not support that your honor none of the deputies testified that they understood mr merrick not to have a right to either not consent to the search or to be in the home but they said this other thing and that's what we're struggling with i think or at least for my part they said which seems to be on support that they understood she feared for her life and they didn't as far as we can tell they didn't know that fact that's correct your honor they did not know that fact and the deputies have not explained why or how the facts of the strange man does relayed by the dispatcher factored into their decision at all but based on the he said they didn't know they feared for their life i apologize judge kristen i just want to be sure of this i thought the police somewhere along the line somebody said they thought she had reported that she feared for her life in their declaration to the district court your honor the deputies to state that they believe that possible based on the contradictory evidence in the record that that fact was not related to them ok but to me that i would say that the fact in dispute not a fact that's not true if they are dispute your honor yes  thank you i just wanted to say the court thank you for having me and so on or to be here on behalf of the county council's office in fresno as well as the sheriff's office we're honored to present this argument i'd like to address a couple of things here that seem to be a issue with what the court the first thing is in the record it is true that the deputies did testify or declare in their declaration is a part of summary judgment that they did know that there was a door that was broken and that property of the of the color was being broken or had been broken and that she wanted him removed so give me when excuse me that's so helpful to me when did they know that how could we see in the record when they knew about the door so so by my estimation if you look at the declaration yeah i got right here all right let's look at the declaration of it's actually a sixty eight in the record your honor that's valerie rees the other declaration from the first dispatcher is at one thirty one thirty one the ok and you'll see that the first dispatcher is the cat operator all right she she takes but she takes down the cat information and relays that to a second dispatcher that second dispatcher at sixty eight on the record is valerie reese in valerie reese testified that while she didn't express lee state that yes i conveyed to them that she was and fearful for her life and that and that the caller stated the door was being broken she says i i it was obviously some time after after the incident so she stated that i would my practice would have been to communicate all critical information to the officers via radio so you see there at line twenty four on page sixty eight she was assigned a radio dispatcher i believe that the record supports that the officers did receive a radio call and that is supported by their declarations where they turn around and they testify hey door being broken down callers in fear for her life property has been broken it was my that's why this is my and i'm struggling with whether they only got typed words and i see this statement in the in that the declaration of ms reese and so when i go back to the officers declarations from radio transmission yes your honor obviously there is some speculation involved in that given that given the fact that the radio dispatcher simply testified that she communicated all relevant information however when you couple that with the with the declarations from the officers at least officers more deputies mol donato and robinson they testified to that they declared that so i take it at face value i know that the court did not expressly address their knowledge of that issue i will also say at this point that i don't think it matters that they had that tidbit of information certainly the record supports that they very well may have but i don't think that that's dispositive and certainly to get to the last point and assume they didn't if you wouldn't tell me why that would not matter i'm sure you said assume that they did not yes you used you tell me you think it doesn't matter and so i'm interested here why you think that would not matter i don't think it matters your honor because the district court number one didn't expressly address it in its findings in in finding in favor of the deputies in summary judgment they had enough information let's look at it let's assume they didn't know that let's look at what else they had if that that just the door that with that is that you're both talking about just the door yes you're on another door and i will say also that she was in fear for her life so there's two to fax you yes i wasn't speaking about the door i was talking about her statement about her personal safety and when you said you didn't think that mattered i well that's what i meant i'm getting to that just just now so i don't think it matters because i wanted to to examine what they did know all right and this is why it doesn't matter what they did know is nine one one call ok a strange to wife and we can not necessarily that he wasn't living there but although that's a that's a certainly a valid possibility as well i don't think that matters either other than to the extent that the officers knew something was going on in that relationship all right a couple that with the nine one one call with information that property is being broken and specifically her property also that he's drunk and she wants him gone all right now obviously that's what they knew at the time you couple that with the information that we've all learned after the fact and what the actual nine one one call it just confirms that but but as to the officers knowledge that's what they had when they over rived ok then we also have another situation developing which is what they develop the facts that they developed at the point that they were apt door talking to mr america prior to entry in this very important to understand this at the time prior to their what i consider to be i guess for purposes of this argument the seizure or the arrest in this case being the crossing of the arms if you will and perhaps a foot over the threshold of the apartment door ok he was clearly standing at the door within the swing of the door  now the intrusion by the officers was very minimal to go across it but that's what i consider the breaking point with their knowledge prior to that prior to reaching across what did they develop at that point in addition to what they had when they arrive by the dispatch they observed a the woman the nine one one call caller with children and i would submit the children at this moment or a new factor for the officers they were not they were not informed that there were children present through either the cad or all information would would support that they were told over the radio they didn't know there were children involved until that moment they're still outside they see children clinging to the mother to the nine one one call or she silent moments ago and this reminds me i think they arrived at eleven fifty nine pm if you look at the cad reports of both officer mulder not on robinson s unit patrol kat's eleven fifty nine or thereabouts if you look at the an interview or two later it says i think twelve o seven midnight zero seven one detained one detained so from the from the moment of eleven fifty nine when they arrived moments later really in that developing situation he was detained so this is a rapidly developing domestic violence situation which the officers knew and drawing from their experience they knew going into this before they even got there this is a absolutely yes yes fully uniformed obviously armed typical deputies situation a patrol deputies two of them at the door at that time talking to mr merrick who the evidence supports was immediately abrupt in the change of his what we can say was a calm tone during the first few seconds of the conversation but that immediately changed and he became aggressive he was intoxicated the officers confirm the signs of intoxication all of this prior to entry but after the cad and the radio dispatch so these are these are factors being developed by experienced patrol officers on the scene of a domestic violence dispute and they are intentionally taking this information in this is what they saw drunk and that was reported by the way your honor is that your honor stated drunk intoxicated breaking property standing at the door now yelling about god given rights and the fact that he did not want to come outside which in the officers experience is amply supported by the record is the law enforcement technique ok tried and true separate these individuals so that we can get a handle on this situation in my opinion this is all about securing the scen saying if you want we will apply for a warrant so that we can come in and arrest you and we will keep an eye on you so that nothing happens to the woman or to the child whilst we're here that's a great question and let me answer let me answer it this way again let me let me read it refocus you on the amount of time that we're talking about here minutes less than six minutes counsel this is this is not a persuasive argument it's seven or eight minute that's a long time they could have asked her to come outside so just basic questions exactly my question they have to have probable cause and i haven't heard it all right so if the idea is to keep them separate if they've got a much easier much more constitutionally permissible way to do that or so in the officers  declarations what they stated was that they were trying to get a handle on mr merrick and calming him down and repeatedly asking him to step outside so that they can interview again with the intent to separate them he refused to even probable cause well i'm just  of the probable cause obviously was the exigent circumstances and the the one forty eight to seventy three which was found by the court and i'm just getting to that judge just give me one second ok ok so so what we have here is itself may not provide probable cause if that's all you are looking at is a person's passive refusal or exercise of a fourth amendment right if you will to read to to decline to step out of their home of their house in and of itself that won't form the basis of a one forty eight losses in that art that's not what we had you have to couple information that we had coupled with the fact that the court specifically found that he was impeding in the case law supports you can you can decline consen but you can't impede it lawful investigation the lawful investigation was the officers had a duty to look into this domestic violence situation they could not have and this court has a pond in other cases probably would have been a dereliction of duty at that moment to turn around and say we're leaving but here's what happened mr america's attempted to shut the door all right and officer robinson had to stick his foot in the door all the sudden it became a different situation there is testimony in the record where he stepped back toward the family and at that moment i would say in addition to observing the issue of the children and we know that two seventy three is the misdemeanor version of the of the child endangerment it just says that a child must a reasonable belief that the child may be in danger or may be aggressive and then went to shut the door you have in the record that said that he went to shut the door and that's when the police officer put his foot to prevent the shouting at the that's correct and the deputies testified if you will do declared in their in their support for summary judgment that that was academy one a one in terms of a domestic dispute that but when i can understand obviously they want to separate the parties that are in dispute why not and i think i think judge bath with the other the other moment why not take the mom and the children out why not say in this merrick please step outside i'd like to talk to you good good question i think they were concerned and i think again we're talking about the facts of this case and obviously in hindsight now this is what the officers in my opinion  were were thinking through through the decorations were focused on mr america has become aggressive belligerent he's drunk he's intoxicated they were focused on controlling him and the immediate scene between them he was between the nine one one call around the children and the officers so at any moment as we know in domestic situations they had a situation where they had to keep him focused on the officers and not turning around turning something into a potential hostage situation or something worse than they were already in countering so that was the deputy's focus the foot goes in the door within within seconds mr merrick according to the officers two officers stepped back toward the family that coupled with what they observed to be children in distress and a reasonable assumption and the court  also noted this that those children witnessed some form of domestic dispute all right and we know if we skip ahead but what happened but what mary testified to but again folks trying to focus on just what they knew at that moment here they have a situation where now we have to control it the actions of the officers at that split second moment was to make a decision and reach across the threshold actually control mr merrick with the least amount of resource possible remember they didn't have weapons drawn they didn't anybody they didn't taser anyone none of those weapons were even presented to mr merrick it simply was a developing situation that the officers had to make a split second decision in time in terms of controlling him at that moment which they had reasonable grounds to believe that in that situation in their training and experience they had not let him go back inside so they grabbed him escorted him out everything after that is in the record and we're really not here to talk about that in my opinion so you point out to me anything in the declaration of robinson mild amount of alvarado about a foot in the door oh yes your honor and i also believe it's in there and in their report that's attached to that declaration but let me grab that for you because i i see here is that they also stepping back toward i'm really good at robinson i asked in several more times with up outside he started to walk backwards toward mary and the children i district court on the claims of fourth amendment arrest and entry seizure of mr merrick california constitution claim article one section one which provides protections coextensive with the fourth amendment as well as the california tort law claim a false imprisonment absent probable cause the arrest of mr merrick was false imprisonment and what do you expect to happen if this court were to do that well your honor it depends on this court's instructions if it finds that the undisputed facts in the record support that there was a fourth amendment violation and lack of probable cause as a matter of law then the trial court would be able to determine damages if however this court determines that there is a question of fact that needs to be determined prior to pelleas argument first judge christian i need to clarify it appears from the record at sixty nine that valerie reese did operator radio and that was my mistake at sixty nine she also states though that she believe she transmitted only that no physical altercation was reported and that he was drunk and breaking property so it still appears despite the presence of radio transmission that the fact that miss merrick may have feared for her life was not communicate to the deputies before they spoke with ms merrick after arresting mr merrick in addition the deputy burke specifically states that he actually reviewed the cad transmission in his car so he would have had that same information regarding what happened at the time of mr merrick's arrest based on my review of the record neither deputy robinson's report nor any of the deputies declarations suggests that they had to forcibly keep the door open deputy rob i believe alvarado described mr merrick taking a step backwards but none of them describe that situation as posing an imminent physical danger to ms merrick and this court has been exceedingly clear in the case of domestic disturbances that these do not create per se exit in c and particularly where the victim is visible and the officers can ascertain that there is no immediate threat of physical danger exigencies have not been found th