please the court to be in a chant on behalf of share a little dog i'd like to try to reserve two minutes for rebuttal miss little dog races three sets of issues on appeal the denial of a motion to suppress trial issues as to the sufficiency of the first in the instructions as to both counts and federal public defenders conflict of interest in representing both ms little dog and mister unless the court prefers that i'd like to focus today on the search or make sure you do spend some time on the sixth amendment issue but go ahead start with a search enforcement officers want to arrest a suspect in a private residence the fourth amendment requires they obtain a warrant if the suspect is if it's their house then an arrest warrant will do but when they want to enter the home of a third party they must obtain a search warrant and this additional requirement safeguards an individual's privacy interests in their own home which is at the core of the fourth amendment here despite well established principles the officers who came to ms little dogs home did not have a search warrant they threatened to kick her door in if she didn't come to the door and when she did open the door they walked in without asking for or waiting for permission this entry was unconstitutional as a matter of law and every search that followed is a fruit of the of the poisonous tree the government argues that the searchers were legal because they fell within the consent exception to the want all part of it but for the government to prevail they must prove three things asked each search the consent must be clear and unequivocal it must be voluntary and freely given not coerced and it must not be the fruit of a fourth amendment violation the prior entry and i would submit the government can't meet its burden as to any of these three requirements but the clearest obstacle for them is the fruit of the p as i noted the officers initial entry was unconstitutional as a matter of wall the government argues otherwise saying that she implied lea consented to coming in her door but i it's based on nothing she didn't say they could come in she did nothing to indicate that they come in they didn't even ask that they could come in instead they just threatened to kick her door if the first consent was coerced wouldn't that taint the second set and the government's response was no there are two separate searches that's an accurate as a matter of law if it's not true that if you have unconstitutional conduct and the officers room they'd be sort of argue that because what they do is they point to some cases that say moving out of the doorway shows consent but in this case the record is very clear that for her to open the door she needs to move out of the doorway so she could not even open the door without moving out of the doorway because she's in a wheelchair and she needs to wheel back and both witnesses testified to that the judge also found that and finish she opened the door the  testimony is quite clear the government asked deputy price did she invite you in and his response was when she opened the door i walked in so he didn't even testify that he was invited in so the only thing the government bases its argument in is the fact that she backed up into the doorway but again in all the cases it cites this court has said if an individual backs up because they can even though they could continue the conversation at the door that would be consent but the case like this where the she had to back up in order to open the inward facing door no no court has ever held that that would be con furthermore none of the cases the government cites involved officer saying if you don't come to the door i'm going to kick it in this is like the platonic ideal of threatening illegal conduct so every case that they rely on there may or may not have been a request for entry absolutely not a request for entry it was if you don't come to the door i'm going to kick it in and that's that that's what distinguishes this case from every case the government site real quick on the suppression issue there were two charges in this case there was  harboring there was the false statement yes how would the we were to agree with you on the search issue how would that help on the false statement i think you would help on a false statement quite clearly because there are two bases on which the the jury could have convicted one was that she she knew he was in the house when she said she didn't know where he was and the other was that he left wednesday when it's when there was a video camera and wal mart showing that they were together on wednesday i find it hard to believe well it was clearly a fact a jury if they didn't know that he was in the house and all they had was that there was this wal mart video there was so much question at trial as to which day was wednesday and when was friday and when was tuesday she didn't say that she had he had never been with her she was very open that he had been with her that she had been taking him into town and ceremonies but that he had left on wednesday so i think if that both counts very clearly w jump and i may need to give you a little bit of time because i think the six member question least for me is troubling in this case as to what happened so i just wanna make sure i understand the facts correctly the federal defenders did represent gallardo for maybe was a brief point in time but there was a point  time they did represent him correct that's correct and according to your client and she put this in a letter i think to the court she went to federal defenders and they said on more than one occasion defender said we can't represent you because of a conflict yes and my understanding is that that was never brazil in any way by the district court that's correct so if we were to agree with you that something's going on here that doesn't feel quite right and you're not in custody now is that correct she received probation ok so if we were to send this case back to the district court to try to look into this and try to figure out what the heck happened here on this issue as i understand that's never really been done in this case is that right then if we were to do that and send it back i take it obviously you you want to win all argument you're trying to win i always very good at being as well as advocate but if we were to send it back and fix a member ground could we  take assuming that it is not resolved in your client's favor isom then we could look at the rest of this case i would think that you would want to address both the search and the sufficiency of the evidence because both of those could take to make this case away but i guess if we're looking at those questions we're we're all we're looking at those questions for the through the lens of a possibly compromised counsel right that not you not you obviously i'm talking about the previous council right but in terms of sufficiency it seems to me it doesn't really doesn't matter if the government can put on sufficient evidence they can't we try her for that count regardless and then in terms of the thirds if this court were to resolve it in her favor the case would probably go away of course if the court is not inclined to resolve the search issue in her favor you could just go straight to the for it or it might be that you know baby steps first that i always think if there's a problem with counsel that's kind of a root issue and they have other problems may flow from that i guess is what i'm asking i just want to make sure that i understood the lay of the land and the state of the record at this point so there's been nothing no discussion at all the district court about why this was ok right in the hallway that would require automatic  warning may please the court my name is brian big and i represent the united states like to first start by touching on the suppression issue and then going to the six i'm an issue that the court has addressed here the government's perspective the district court properly denied in this little dog's motion suppress in the first instance and i think that it's important when we're considering the suppression component of this case to look at what it was the district court did in this case the district court conducted here in the district court requested supplemental briefing in the district  court and drafted a twelve page order addressing the suppression issue in this case now what miss little dog has done in this argument is recast her initial suppression issue to say that this wasn't a consent to search issue on its own it's a consent to entry issue and that wasn't clearly addressed by the district court but i think that that misreads what the record truly indicates and what the district court did in this situation and the reason that that's important is because the district court first page two of its breach of its order and i think that this is important wording for the court so i'm going to read just a quick portion of it and it says quote the testimony presented at the hearing raised some concerns whether the presence of multiple officers with guns drawn at little dogs house caused little dog to feel compelled to consent to two separate searches of her house a careful review of the testimony presented at the hearing however indicates that little dog has failed to rebut the testimony from  voluntarily consented to the suit two searches the district court then goes on if you're looking at page sixteen of the record at page sixteen it addresses specifically that multiple officers who were present the presence of guns and what's being classified the threat to kick in the door the district court even found that if this were the sole factor alone that the court were looking at this would probably go to involuntary consent but as the district court found there were additional factors to look at additional facts that had to be considered because of the fact of the totality of the circumstances analysis from the purses bustamante case that's what's required in these sorts of things and so to say that the district court was just solely focused on what happened inside of the house is just a misread of the record quite frankly the district court goes on under its analysis on page eighteen of the record and says pacifically mistal dog was cooperative during both the first and the second searches just said that she was helpful and she did not appear freighted any point the district court even noted it page eighteen of the record said there is an inherently coercive it even acknowledging inherently coerc component from the first search to the second search based on the totality of the circumstances the district court remained convinced was the words the judge morris used in this case then this little dog had consented to these searches now from the government's perspective not only was this considered but then if you look at what the argument was that miss little dog was raising during that consent to search issue during the suppression component the district court to find that is a quote series of unreasonable actions by law enforcement they were looking at more they were looking at more than just what was happening inside the house and the reason that that's important is because if you look at what happened with the actual consent that was given here was inside the living room of miss little dogs house it was with an officer who was sitting next to or what that point did not have his taser out anymore it was an officer who knows her is known her for a number of years as indicated at page one fifty five one fifty three one sixty four of the record that deputy bryce knows who she is and so if you're just looking at an isolating that component of the search all are of the consent alone that certainly is the district court found when she says he's not here you can go look at the district court even said during argument at page one eighty nine that that is clearly consent in this situation but what miss little dog was concerned with was everything else that went into this search it was the fact of how the officers came to the door it was the knocking it was the multiple officers that were present that was the issue as far as the search was concerned now jumping to the sixth amendment issue this this is a situation quite frankly from the government's perspective that this is not something that is ripe for appeal or right for this court to address on appeal and as judge owens has already alluded to whether or not this would be proper to go back to the district court for findings on the government's perspective the cork and i can a on not only the suppression issue but then the trial issue and this should be reserved for a post conviction procedure so the post conviction procedure is what miss little dog's proper course of remedy in this situation is the holloway case is not was there was a filing form the district court judge that the public defender's office had three times already said they couldn't represent her due to conflicts and she brought this to the court the holloway case that cited for the automatic reversal that needs to go back is a situation were co defendants were represented by the same council the district court failed to address it in resulted in an automatic reversal that is not the situation that this court faces faces miss little dog who is facing charges of harboring a fugitive in false statements versus mr gill lardo who is facing charges in south dakota on abuse of sexual contact of a minor there not a situation of co de fendants here so that's why you're on our automatic reversal is not the proper course instead the proper recourse is for this court to allow it to proceed under a post conviction relief procedure where miss little dog would of course waive the attorney client privilege and proper discovery could be done in this type of a case in county i understand in the ineffectiveness this is of counsel but we always are not always but almost always do that and post conviction but but normally conflicts like this you want to root out at the district court level and that to simply wasn't done here so why not just send it back so we actually have some idea as to what's going on normally if you look at our sixth amendment cases there are almost always on direct appeal there not on collateral review when it comes to co and and i totally agree and i think that the courts reading the what typically happens in conflict issues is that they are addressed at the district court level however in this situation even though miss little dog did raise this fact and i have two thousand and sixteen regarding a potential conflict issue if you look at the record in august of two thousand and sixteen when this little dog was represented by mr gallagher at the motion to withdraw her guilty plea this isn't something that is addressed and so th government and maybe even the courts in that instance was left to guess was this something that was already resolved was it something that was waived and we're not at that stage and so yes the district court did not make an inquiry on it at that point but what should happen instead of unwinding the entire thing to see about a conflict issue is to allow miss little dog to to go for a post conviction relief on this exact issue but i guess i'm just puzzled as to why she should have to wait that long i mean twenty fifty five's or more arduous to do then there's no right to counsel for twenty to fifty five where there is right to counsel now you're going to everyone's going to get a better product if we send it back now than if we wait and see if she manages to hire a lawyer and there were she had all kinds of issues with lawyers in this case reading the record so i guess how would the government be prejudiced if if we were to send it back now for six memmott analysis by this record as opposed to by way of collateral review in the way that i would say your honour's because of the fact that this would take take the proper procedure out of place and the proper procedure would be for this to be a collateral peel but to answer the question directly your honor i can't see a prejudice to the government in that sort of a situation  indictment language of what harboring is and his trial counsel i can tell you the word felony never came up in trial it didn't appear on the face of any of the documents that were presented at trial i can tell you though that if we were looking at this under the hill decision which is the evidence viewed in the light most favorable to the government you have an indictment a complaint in a rest warrant and it wanted poster and so all of those things describe abuse of sexual contact of a minor under the age of twelve and so with this court would have to determine is that no reasonable juror could conclude that that was a felony offense that he was being prosecuted for and i don't think that's appropriate under this record your honor i think the court should properly affirm the decision of the district court regarding the suppression issue as well of the convictions for both harboring a fugitive and false statement and then allow this to be addressed in post collateral proceedings thank you  a first very briefly on the search issue i don't believe the government has ever argued that issue of taint was waived it clearly wasn't waived it was litigated quite fiercely below and discussed specifically at the r t twenty six through two thirty  two repeatedly and so i'm not sure what the government means when they say that it's been recast on appeal and then in terms of the care with which the district court took it whether or not a consent is the fruit of an unlawful entry is an issue that's reviewed to to the sixth amendment issue under holloway reversal is automatic so i would argue that it doesn't even need to go back for this for the district court to address the issue it just needs to go back for a new trial reversal is automatic because there was contemporaneous representation of two individuals it was brought to the court's attention it was not miss little dogs job to keep bringing to the court's attention when she had already written the letter explaining that she had been told three times that the federal public defender's office had a conflict of interest and that finally with respect to the felony warrant issue it would be under speculation for a jury to decide this was a felony when there was absolutely no evidence of it noted in the record there are four or five jurisdictions in which this exact crime is in the