good morning maybe please the court blank from the federal defender services of idaho on behalf of appellant james borough the district court here assumed without deciding that the bail bondsman was acting as a government agent when he conducted the intrigue into mr burroughs home that's at issue therefore the issue before this court if you say that it it it's on the final page of his of his order that he's not reaching that issue so assuming without deciding that and that it was the bail bondsman that came out and found the gun right and so even if we assume mr borough didn't feel like you had a choice about whether to let the bondsman enter his house on the day of the search didn't mr borough have a choice on about whether to let him enter and search his home when he cosigned the bail bond agreement and so why doesn't that agreement constitute sufficient consent to the search well this supreme court case clear that private contract between parties is not consent to a search by a government agent it's not something that the government can rely on well i don't think this is you rely on bumper right that's one of the case i i just don't see bumper as you know bumper to me is really concerned with the government using a show of its own authority to conduct unlawful searches and you know i guess i don't see that as the same situation so what is your best case for your argument that bumper applies to all searches conducted pursuant to a claim of right to enter the property well just the other cases that we cite that support that proposition or korngold and also korngold there's a tariff agreement that between the airline and the private party and the court says that in fact the airline agent calls and says checks you know with this allow me to get into the bag the agents are asking me to get into the bag and the says that doesn't matter that's not the question that's that's not an independent basis that justifies this search and in walther which is that foundational case on agency there's i thought believe a federal regulation that the searching party believes authorizes independently to get into the container and that's not an independent basis well i guess i just see you the way that you're asking us to read bumper as you know let me hypothetically say or even state that it it there's an argument that there's no show of authority and that there was a claim based on a contractual right and so apply bumper to mean that any entry or search based on such a claim of right constitutes a search based on a lawful show of authority in my view would be an unprecedented expansion of the circuits fourth amendment jurisprudence i mean i'm thinking you're asking us to go where no one's gone well i don't cite a case that is exactly square  combining these two doctrines but it's not a step beyond either of those bumper defines to worsen as when a person doesn't think they have the ability to refuse the search and then it's well as steady and liked it just fine when he thought he could get out of jail on bond and then he was willing to submit to a search for that and then he skipped bond right and so then the bondsman there you know i'm not sure do we have to assume that he was acting as a government agent i mean can't we assume from here that he wanted to get his money back because if he brings her back in then how much money were they out ten thousand bucks or how much twenty thousand twenty thousand one small factual clarification it wasn't mr berger who skipped bond he was a cosigner on the bill on application for his brother i'm not sure that that's material to the  question that you're asking but ok so i guess the other the other the foundational case really is stoner v california and that's a case that holds that  contract or state property law that allows a hotelier to go into a guest's room that's not something that the police can rely on that doesn't allow them to circumvent the fourth amendment requirement let's assume for a moment that the that he was date on a few days in the city on the date of the search where they find mr burrow or where they find mr call it go he can ok right could it be said that that he was out there both for the purposes of helping the police get evidence about a gun additional the new evidence about the gun as well as well maybe couple responses one is that's not the premise of the district court's decision and i know but i'm just asking is there evidence to support to support that you know i think i think the district court has to decide that and i do you think that's a factual question that's a factual question and i don't think we're guaranteed to win on a remained by any means but i think we certainly have what are just were to find that he had both motives what happens i think that doesn't automatically mean we lose we're fighting an uphill battle i think walther points to two factors whether there's direction whether the government is directing the particular search and then second whether there's a legitimate independent purpose but for instance korngold says even if there was a legitimate independent search purpose in this particular search it wouldn't matter because the degree of the government agents involvement in the search was so significant that it that it would still how would you characterize the degree of the of the government of the officer in new search  our position would be that the reason mr rattigan decided to go out there in december thirty first was he wanted to help out detective dave or that or what reason ingratiate himself with with canyon county sheriff's office is what it appears i'm not saying that the district made that finding that it will necessarily make that finding but there's there's evidence a very close collaboration that we think requires the district courts and what is that evidence of close collaboration that the same day he gets a phone call from detective dave in court mr red again goes into the office signs a declaration later gets a phone call that it's not going to work out goes out twice leaves voice mails to detective david port that have nothing to do with any independent purpose there only for the benefit of mr david port's information he leaves it after a first visit when he's unable to get to the house and he leaves it immediately after the second visit when he's when he's going to get into the house one other thing that i would point out in the legitimate independent purpose prong is mr ragen actually testified that he didn't want to get into the bathroom where mr burrell was found he says i didn't want to get in there one because it was barricaded into because i was afraid so hagan was in there so i'm not sure exactly what the the final time was e outside the bathroom i believe that the swat team found him inside the bathroom know that after they came in and raided he didn't find him there correct mr rattigan never found him it was the swat team which executed the search warrant early in the morning of the following day or late that same night so there's some place where davenport at one point  agent and there's you're not her agent wink wink we know you're going back out there and the district court has to decide whether this is an implicit agreement i would agree that there's not evidence in the record for the district court to conclude there's an explicit agreement between these parties but our position  remand would be that there's an implicit agreement and no real legitimate independent purpose that the reason that mr rattigan is going there in december thirty first and making those phone calls is because he wants to help out the kenyan county sheriff's department and i see them almost at a time please the court press that would appearing for the district of idaho u s attorney's office because the courts deciding whether a private party perpetrated a fourth man the court should apply the two part test set forth in the united states versus miller that requires first they look to whether or not there was an unreasonable intrusion on the defendant's privacy and secondly whether or not there was the private parties conduct amounted to government conduct in this case the district court held that there was no unreasonable intrusion into the privacy of the defendant the district court did not reach and specifically did not reach the second question of whether or not the bondsman was a government actor and so we disagree with counsel statement that the court assumed for the purposes of the analysis and in fact the court specifically stated the court need not reach the question of whether ratigan acted in an instrument of the government what the court did is it it found on the first prong and so it found it didn't have to reach the second prong basically the court he invited  in right that's correct the district court analyzed the first prong it's that that there was both a valid consent and i was difficult finding which is entitled to deference unless clearly erroneous consent was because of the agreement on the bill the the agreement in the the first piece of information wasn't good enough for warrant so i guess it's mr arad against intent in requesting to enter mr burroughs home at the time of the search necessary to our analysis and also in other words what i'm saying is does it matter whether mr rattigan intended to search for the fugitive or to see if mr burroughs still had a gun in plain sight or do both the consent does matter and he can do both cleveland talk says that you can have a dual motive and so in this court found that specifically that he did not exceed the scope of his consent which was to go to search for fugitives the undisputed evidence in this case is that he went there to search for a fugitive the district court made that specific finding even if he had a secondary motive the cleveland case that we've cited says it doesn't matter as long as you're working within your independent motive any sort of secondary or alternative motive to help law enforcement it just doesn't matter it's a little bit like the tail light being out if the kill lights out it doesn't matter that you'd also like to search the car but the tail lights out i mean i mean there was an argument before the court said otherwise it would say that well if you really were stopping bondsman in his employ had a twenty thousand dollar interest in locating that fugitive that's why they had been to the residence six times before and they have this contract allowed him to do that so the fact they have ever had to bring him in or they had to pay or they lose twenty thousand that's correct and that and the district court specifically found that the the bail bondsman did not exceed the scope of his consent when he went there there's there's again no evidence otherwise the suggestion that was sort of a wink and nod is just simply not supported by the facts and again the district court's finding on these issues are entitled to deference unless it's been shown that there's there are no facts i mean i think i don't know i can't point any facts that the district court could have made on that point but there was consent he's within the scope of that i don't understand if the district court didn't delve into the government agent issue why you can say there's no evidence of wink and there was not direct evidence of course but there was the circumstances counsel a lot of line in terms of the timing and the calls and so on and so forth couldn't the district could naturally a nerd to his benefit to have a good relationship with the sheriff's office i think the court have to make some significant assumptions to get to that point and i would note the court's correct that the district court specifically did not rule on the issue of whether writing the contact amounted to government contact with the district court did point out some undisputed facts and then evidently in point to the conclusion that he wasn't a government actor for instance he held the officer didn't request that rather than go back to the residen can tell in the reporting edition of criminal activity you can ask him to contact him if he learned of any additional criminal activity or or information about the defendant instead he told him you're not our agent and if you come across any additional criminal activity you you can report that if  information give us a call there further the undisputed testimony by the bondsman by mr rattigan is that he actually went back on december thirty first because he talked to a colleague and he felt strongly if he went back on new year's eve vacation for the new year's holiday and six days later he came back and found out that ratigan had reports and said left a message on his desk phone i mean the facts show essentially that law enforcement did everything right they didn't ask the bondsman to go back there and again i think all these findings of fact and understated evidence leads to one conclusion that is there no there was no government action is your review no the district court statement the borough as rather can if you would like to come in and your honor the record shows that he showed up and knocked on the door there were other occupants in the residence they let him in and when mr burroughs the defendant came out he said to him you want to come in look around you know and he did so there was no show of authority hey i'm here pursuant to that you just showed up and told him to go and look around but again we think the most important consent in this case actually was that prior written contract and i understand that  chords statements and find them we also see this case is actually different and distinct as bumper and i don't think bumper applies because in bumper there was an invalid search warrant that was the basis for the later consent and after th said well the consent that she gave that the grandmother gave pursuant to that search warrant is invalid that's not a valid consent in this case there is a valid consent that was the contractual agreement that allowed him to go in to search so even if he showed up at the time even if he would have said hey i'm here to search for sort of that even if you found that consent was not valid there is still a valid consent that allows them to go and the government whether there's a mix motive  response on the case the cleveland case is directly on point in that saying that there's a dual motive is ok in that case the electric company employees went to the property pursuant to a customer service agreement and the court found that they weren't exceeding the authority of their customer service agreement so that a dual motive is ok and i said that my brief i get the court the you know it was for that in closing the government thinks that this is just like the miller in the cleveland case in that the law enforcement officers have no basis to tell radek and he couldn't go back he had a twenty thousand dollar interest in obtaining in finding that fugitive so the officers had no he wasn't doing anything illegal or improper they had no basis to tell him he could not go to the residence so  government asked the court to affirm the district court's findings thank you ok a few brief points in response to judge fisher and judge callahan's question that the question of of the motive that mr reddin had been going there is relevant i disagree with the government that the district court made a finding as to what his particular motive was on that day that's the factual issue that has to be resolved reading the factual findings that's it's just a recitation of what actually happened but our theory of the case is there was an implicit agreement and that turns on some credibility determinations in the broader context of this exchange that the district court gets t first chance to look at it and has to in then just the general point about the bumper case if if a if dave in port had gone to the door with mr ratigan and without a search warrant and said i'm going to just follow you since you have a right to go be there because of the fact of this parole agreement that would clearly violate the fourth agreement it's no different given that mr rattigan for the purposes of this hearing we're assuming that he was acting as a government agent for the same reason that david port couldn't go in there with him mr rattigan couldn't do it alone relying on that authority that's one small inferential step beyond the situation of bumper of north carolina so remained as appropriate thank you ok thank you thank