i also want to note that mr kopp did informed me before hand that in regard to the jury instruction case or the jury instruction claimed that pursuant to a case number nine sixty six f rd seven hundred i guess that that has already been determinative so i will waive that issue at this time and move on to the other issues and thank you mr hopper tell me that because i didn't want to look like such a fool from the court not white his girlfriend xa did the room unclothed and i think almost to the day it was a day like today except for there was no snow falling on the ground but it was very cold it was in january and she was pulled out of the room naked she  they were asked they asked her who else was in the room and she said anthony referring to anthony whitehead and the officers asked him to step out of the room they could see a figure in the back and he stood up came around the bed and walked out the door stark naked was laid across the door the threshold parallel to it its head past the door frame and his feet past the other door frame was several officers standing over him now deputy lana going to be a stated that he that there was i'm sorry shortly thereafter one of the other deputy volpi testified in fact that he went back to the bathroom and checked back there this is a very small hotel room with just the bathroom he checked the bathroom st but noticed as he was coming in this bed with this frame and it's got this giant box underneath it rather than just a standard bed frame and box spring and was concerned about that and that that might have a person inside of it and then elected to lift up the mattress now i would know that if he was concerned about this box this framed this ca having a cavity in it and that there was somebody there or it was surprising to me that he would not have at least asked for backup there to come into the room when they were going to lift this mattress up initially by lifting the mattress up all the way the gun was clear up at the front right hand corner of the mattress you were concerned about somebody being inside of that cavity i would assume that you would want several other of your law enforcement officers fellow looking for law enforcement officers with you there when you gently lifted up the the foot of the mattress there was a great deal of testimony and focus paid upon this cavity and yet and yet it's clear in my brief and by the record in the transcript of the of the suppression hearing that once they lifted that up there was a small thin cotton kind of a pat and that is to keep the mattress the top mattress from sliding on the plywood they didn't even bother lifting that up if they were so concerned at this cavity contains some body and again that's where all the attention was they never looked in the cavity i inquired about that and there was no explanation why this cavity which inside this box was such a big deal when they enter the room and then it's gone and it concerned about what's even more salient here and i don't think that this was noted in my brief is the fact that the gun was left at the front that u front if they were so concerned that somebody was in that cavity why did they leave the gun there initially before they came back in a white significance of all this is the significance that this is  search there of the bet again if they pay so much lip service to it while they're testifying and even in the police reports i mean it's just the record is replete with all of this these concerns about this cavity and yet nothing to you judge your you're absolutely correct i'm not going to make that argument being the smartest the object at the objective search was correct they went into the bathroom they came through the room you know concerned about you know this cavity and i just want to point that out for the court as far as the as far as the consent goes and i know that their case law cuts both ways in the circuit the initial decision in the williams case they decided to the u s supreme court case and je said that even though the room was registered in her name and that he does vicariously there were they would state that that's not doesn't preclude him from having a reasonable expectation of privacy now i will concede in fact that the later case client's claim that his right to privacy was violated in fact as far as the consent that was given by miss lark i would note and this kind of to me was the whole key in this is what my argument was in particular in regard to this when they had heard in that a t f in the back of that vehicle that the a t f agents did and she was in there for i think i believe was approximately thirty minutes close to it if i'm not correct don't hold me to that but i know it was quite a long time while they were talking to her and that recording was provided for everyone to listen to if you'll note that that they kept telling miss lark that they were only that they found a good and that they were only interested in the gun and that they were not targeting her for the gun what they failed to tell for was that cocaine was also found in the room so by the time she actually consented to the search of the room both the relief and then eventually in writing which was probably twenty minutes into this thing with all of the discussion about this gun we just want the gun we just want the gun no discussion of the cocaine and that placed her in peril she didn't know about that and they didn't bother telling her about that and i think that's i think that's very relevant in regard to whether or not this search was consensual but no expressed promise was made her right counsel that is concede that as well that could have that that's an argument that can be made in this case again i wanted to focus more on the law enforcement's you know the statements regarding they knew that we're going to find a gun instruction instead of the the newer version that was decided in the motto is case and i will submit my twenty eight dollars a letter from the court's consideration it's mentioned at our brief but it had been decided yet when the time we filed our brief the other bit of housekeeping that i wanted to do and it hasn't come up yet but i will also put this in my letter but the defendant was arrested later also with cocaine and in my brief for some strange reason i give the same date january twenty two thousand and seventeen and in looking at it it popped out to me it was june th wasn't the same day it was about five months later that he was arrested again in a parking lot with cocaine that's just a that's just a misprint in my brief let me talk about the two issues which i think are the most important here we have raised the question of whether there's a reasonable expectation of privacy the in his report recommendation laid it all out and then didn't actually come to a conclusion that it was it was doubtful defendant had the burden of proof we don't know much about the case other than the fact that and again this is something i was looking for this in my brief there were two actually three warrants out for mr whitehead's arrest and one of them or both of them involved in the kidnapping of brittany lark so the the other thing that i that that occurred if you look at the magistrate's report recommendation they talked about it is that mr whitehead was a suspect in a police shooting or shooting at a police officer ford's way was that he so yes they knew he was armed dangerous and so when they knock on the door and miss lark enters or answers without any clothing on there was testimony that they could see somebody in the background but they didn't know if it was one or two people observe fairly small hotel room it was the time of day it was like three o'clock in the afternoon or so it was light outside but all the blinds were drawn so they really couldn't see what was going on and so the testimony  was yes they asked her is the entity here she said yes he comes out he is handcuffed and sliced down at the threshold now we have argued in our brief as we did in our response to his motion to suppress that under the incident to arrest exception you really have two things number one you have the question of was he in a position to actually reach for the gun the argument counter to argument is that well there was one officer there he was going to his knees he was in handcuffs could be very difficult for him to get the gun but the case law has indicated that that's not necessarily a risk that the police have to k and especially since you know we're talking about a very small hotel room and we're talking about a bed that he easily could have lodged for he could have gotten a gun i think it would have been difficult but certainly not outside the realm of possibility i think certainly though the stronger of the two arguments from the government standpoint is the protective sweep rationale and under blue you have really two things number one is you don't need reasonable suspicion if it's if it's relatively close and the bed obviously was really very close and we are talking about an objective standard i mean it's i think it's at the suppression hearing mr haley as he as he did today is arguing not that they didn't have the right to do it because there were certainly space for someone to hide in there and again the officers were sure whether we were looking at one or two individuals  is that they were looking for a gun because they really didn't do that thorough search and that was pretty much the point he was trying to make and i have to two responses to that which is number one it was pretty clear to me from the testimony and you could read the record and protective sweep and you mention that they don't actually need a reasonable reasonable articulable when it's close by but we don't use words like immediately is joining and the question i have for you is when he is outside at the threshold of he's right at the doorway they had to walk over him to get in and we're talking about a very small room so i think he is under the case law close enough the nd thing is that the  argued that even if you need articulable fact we have them given the fact that a bench in the shooting they had every reason to believe that he was armed they weren't clear it wasn't clear if there was another person in the room i mean on the one hand you could say you've got two naked people we kind of figure out you know what they might have been doing but at the same time it's not uncommon for three people to be involved or i mean they really didn't have any way of knowing and they're arresting these two individuals right outside the room that could be a very scary situation if there is a rd person in there so the actual question i think they were under buoy close enough and secondly i think even if we concerned we also have that and and as your question judge i think they were justified in seizing the weapon out of the case all that i've read and we've argued be made that argument that once they see the gun and part of the reason is you know for their own protection the idea of leaving it there probably wasn't a smart thing to done but i think what it shows i think what it shows is they're trying to follow the law you know it's i sit here arguing cases where the argument is you know the defense the the police have not followed the defendant's rights they violated their rights but there are instances such as here where you see cases where wow you took a chance here you know the argument that i had about him getting the gun we have to do individuals to leave the gun there doesn't sound like a very smart thing for me to do but but again i think they were doing that to try to make sure they were going by the book and that gets to the other question of consent which is just i want to add i want to follow up on that when we have a gay partner from two thousand and seven i think when they went back and got something illegal we have other cases that suggest you need to get you to that when you leave the evidence bear even though it's in pla or should we just say they could go back in the in the room and and thank god i think here we have consent i mean i don't know that i need to answer that ed and the argument here was and i want to make this clear the argument was not that consent was the fruit of the poisonous tree the argument was that the consent was was not informed consent and the whole theory is is that they somehow misled her which of course is simply untrue they told her from the get go and they told her repeatedly you're not you're not a suspect here mr haley says well but there was that those that cocaine in the pocket of the piano well that was never any thought on our part that that was our responsibility there in her pants we had no evidence that she do it was there so we were trying to trick her she's never charged with that they told her correctly you are not the focus the focus is the gun and at one point she said  was i'm clear because you're not going to find my fingerprints or d n a on the gun and of course they did and they found his so in this situation had i think we have extra strictly valid consent she was in custody but she was informed both by orally and by the form that she sayd that she had the right to withhold consent which the case law says that's one factor when you're looking at atten uation i mean looking at time which we had here you're looking at purpose and fragrance see and you really didn't have any flavor and see and in my view it all on the part of the officers and again they didn't  mislead or mr haley said they did but they they were absolutely straight with her and told her you're not the focus and that she gave consent so i think we have that here even if we needed it to get back into the room i have eight seconds left so unless there's a question to the threshold as i said he's got several heavily armed law enforcement officers standing over him the bed if you look at the photograph of the room just the closest corner of the bed is easily five or six feet from the entrance of the door and that's the closest quarter the corner where the gun was found and where mr whitehead was st observed was on the far corner corner of the bed which would have easily been i don't know maybe ten feet in or more away from where he was sat with all these law enforcement officers standing over him my nd point about miss lark is this the cocaine was found in his pants they didn't say the cocaine they didn't say anything about where the cocaine was  they didn't even tell her about the cocaine and i think that was my point and that's all your honor well thank you mr healey the court appreciate your willingness to accept the criminal justice act appointment and appreciates the