agents mr edwards and mr lay back called the police because of the domestic disturbance they allege between my client and his wife to police officers arrived on the scene simultaneously  to a trooper with the michigan state police they arrived on the scene and were invited into the home to talk to my client and his wife whether a domestic disturbance was there or not  and then he walked out of the house and spoke with mr edwards and mr lay back the three of them but then attempted to open up the garage through the main door could not get it open so the three of them walk around to a side door  officer did not have a warrant to enter into that garage he did not have the authority to enter into that garage this case was determined by the did record time summary judgment and material factual dispute since again this is based on an order granting summary judgment we need to determine a factor tried the lower court held that the specific identification meaning war court record on page eight thousand four hundred and ten of officer schneider report which means officer sheets is now the rd officer on the scene he has been specifically aidid from the lower court record them summary judgment would have been wrong for granted this is is that the issue before that's one of the two factual issues the st one being is off the sheets of the rd officer the nd factual issue is whether it was off the sheets to and mr lay back who were the other two who were at the side door with officer sheets and the money was to what it said mr edwards stated in his deposition he did not go into the garage he did not see anyone go into the garage has no idea how that garage was accessed mr layback testified that he did not go in but he says and i quote he let me in in the mail pronoun and it was the officer not the trooper at the time just three officers on the scene one female either schneider a trooper sebring and then you have officer sheets so with his deposition testimony it has a reasonable conclusion is office and sheets open the garage to take officers sheets deposition no i was not the attorney on the lower court and the dep and the deposition of officer she was not take it or not i would love to have an answer that question your honor i do know it seems rather short  and also sheets were there those two said we didn't do it if there's three people standing at the door to said i didn't do it and the rd one says i didn't unlawfully or without authorization and the crotch therefore that's a good that is a genuine issue a material fact that the lower court should not have granted summary judgment that should have continued on to trial now that you have to specific references to the lower court record that there is a material don't you issue of fact in this case both to the rd officer and to whether officer sheets access to garage i submit that the record did error and that this court cou whether there's a factual issue of whether there was an improper search and seizure under the th amendment there are some monetary damages that offered because of this not just to physical damage to the garage but also to los was it the affidavit he refused to consider it was the difference of the application of what the magistrate judge and the judge clearly and they were looking at to we'll look at this case from an excessive force type of cases where you don't have to have the specific reference or the specific identification where judge cleveland used more of the illegal see search and seizure cases where there just by his mere presence is not enough to create a genuine for material facts that that was the difference of what judge cleveland used to overturn stafford's recommendation thank sheets allowed access to a garage that allowed the possession to occur plaintiff's brief says the sole issue is whether or not the appellee mr sheets was identified as a police officer who opened the garage mr edwards who were employed by best recovery went to the object days house they had hooked the vehicle up for the purpose of repossession to the truck then mrs jew day  he wasn't the agency that was present there were two reports one offered by the author ben michigan state police the other offered by k pac and officer schneider the only reference is that mr sheets was actually in the the cape back officers and they refer to the episode so that transpired in the house your honor they don't refer to anything that trends the took place outside of the house or a body else as there's no i thought i thought it was pretty clear there are only three  information that you possess you know your people and you're saying well because they said there might have been four of us but we don't know i mean i look to me to me there's enough circumstantial evidence he is there the other two didn't do it can identify anybody else it's speculation conjecture whether there is even a th person and therefore the circumstances i mean circumstantial evidence is enough to get past where you are why isn't the circumstantial evidence itself enough you're creating an issue because you're under the mere presence of the officer at the search without showing that he was directly responsible is insufficient to assail us and that's what judge clearly was looking at is the circumstances for th amendment search and seizure violation it's  the say ok we've got five of us there you can't tell which it was which one of us did this so guess what we all go free i said no that's not right you get the information you need and you know it you almost the d the issue was which of the officers was there and under those circumstances there was one officer who was nor did they have the shotgun the officer bettendorf and for that reason in officer came from she claimed that the officer that an officer came into the house with a bar and then attempted to pry the garage door open that was unsuccessful then the way in which the garage door could have been opened was that somebody open i'm saying that there that this is a me today testified under oath that there were four different police officers there she was specifically asked who opened the door she said she couldn't she didn't know who opened the door she identified that there were guys three person who is identified in the house we don't dispute that however this is a day specifically testified under oath that she suffered police officers there and then we were at asking her to specifically identify who was that person she was actually show photograph during her deposition she couldn't identify it the same with mr live at home she was shown a photograph of the officer sheets and was unable to identify officer sheets then that was same photograph was shown to mr love that during his deposition he was unable to identify officer sheets this is a different circumstance th where people were concealing their identities no one was concealing their identities there they were all of the to be seen it's under speed and unrefuted the affidavit by mr sheets that he wasn't the one that he was personally parsing it out to say i actually entered the garage his his the purpose of his affidavit was to indicate that he in fact not in the garage he didn't open it he didn't allow  words he say so those are very important but you might have intended to do something more but we actually see what he did that's what we rule out understandable your honor but but but the it at least look decisions indicate that it's done enough that the officer may only be present that it that it has to be specifically shown that he was the person and you would you concede circumstantial evidence is enough  you do not necessarily have to have direct evidence circumstantial evidence or it's that way but i would submit your honor that the circumstantial evidence in this case but based on the testimony of ms i mean today doesn't it ok to answer my question you will see that mr out to the ambulance a th car pulled up and the officer never got out of the car in her deposition that was the reference to a th officer well after all these events occurred now back to the affidavit of mr sheets which is document lower court fifty five desh ten page thirty one paragraph four quote while i did not open plaintiff's garage without consent i did not enter plaintiff grog without consent and did not enter plaintiff vehicle or participate in the repossession he affirms i didn't go in the vehicle i did repossessed the vehicle but i didn't go in the garage without consent if he didn't go in the garage which all the evidence i've already pointed out shows is officer sheets i thought she was about unable to recognize a picture to that is she was not able to recognize the picture because the where she was in the house she had she was talking with trooper sebring saw rd officer as she only described him as the man had his hand on the gun that's how she was describing the rd officer coming in so no she was not able to see the face she was able to know it was the rd officer that came inside of her house and he had his hand on the gun that's how she described it interest and she was genuine in that that i couldn't do it and she didn't have the sight lines to be able to see the side door that's where you have the deposition transcripts of the other two people next to the door that said i didn't go in the garage but she's did say i didn't go in the garage without consent