thank you good morning your honor christian drastic on behalf of charles fourteen degrees or three minutes for a bottle may please the court when the he clean police officers in this case were at the all the warehouse they did not merely keep the peace as the government claims they were not there for mere presence to keep the peace all they needed to do was escort mr fort lee off the premises after to retrieve his own belongings but instead ltimately fired the police were according to the record in an adjoining room that's correct what isn't clear to me is at the time then that they proceeded to go toward the locker did or did propose that he had been fired i'm not aware i don't think the record is clear on that either what the police although what the police did know was when they were when they were coming there and they were coming because and i would say two points to that one factual one legal the first is factually after mr for the office and the officers were there in in a position that prevented him from going to the locker room officer testimony was that the sergeant was the one who said who instructed everyone that they were going to go to the locker room indicating that you know at that point the officers were the ones who were taking everyone to the locker room so whether he was fired or not the officers were in some position and had some for knowledge that now they were going to the locker room for the search the second is whether he had been fired or not there was no  contractual basis there was no policy basis there was no hint book there was no consent that allowed mr ashburn or to search mr for his belongings at will or based on a rumor so the question is whether he state did assist they did more than than merely merely keep their presence and merely keep keep the actors safe they did assist and intervene to at least chill mr foreman is right to object and resist mr as said fifty three that he asked the police ahead of time to protect him while he search the sixty six that he'd asked the police to prevent mr fort lee from getting his belongings for his safety and that he could not leave with his back that the sixty six and then officer ash also testified he couldn't have left with his back at page eighty eighty five and then they took actual steps to make that happen the first is they were outside the office when mr for the exit the second is that the sergeant directed everyone we're going to go to the locker room now an escort so they were there specifically to make sure that he or because they were there he could not we with his bag that's correct and that's the undisputed testimony of both mr ashburn and officer ashleigh they had been there and he would have been able to leave yes that's also the undisputed test or there would have been a dispute between the two that's correct right and that's what the district court found is that that that had police not been present this is a the order of page five page eighty one fifty two that mr foreman would have grabbed his backpack and left and right that means that are either would have been an incident  or mr ford he would have taken his own belongings and left and at that point if there would have been in this incident right the question is who's in the right here right well ohio law is actually clear on this which is mr for me as the property owner has a right to use reasonable force to protect his property from someone else and maybe why and why is that really so it was in their policy at this company of not having guns on the property there was a policy why did he have i mean it's their property it's their locker why did he have a reasonable expectation of privacy at all in the gun i mean he wasn't allowed to be there and storing it in their property he had it he had a reasonable right expectation of privacy in his in his bag know the same way anybody has a reasonable rate of expectation of privacy even when they have contraband in their bag or on is that we don't look at x x post to see did you did you have drugs in your does the police were x in t allowed to search your would risk you in the company been allowed to say listen it's our property no guns and we do random searches yes absolutely and if they had that policy and there was to be a policy because under ohio law the default is that they don't have that right and so just like any other private actors mr ford we could if made aware that policy could decide whether to continue his employment or not could decide all employees could decide whether they wanted to bring items to the warehouse or not but with but the background of ohio law is that a private actor even in an employer even a business makes no distinction doesn't have a right to invade testimony that there was no policy but that's the only thing on the record on that what about this point from the you know this has a no good deed goes unpunished flavor to it from the officers perspective they get a call that hey you know you know i can see i can see in the future when they start getting liability doing now we don't do that you call us when there's a problem or they put themselves at risk in other words every time they do something that looks like they're invading your client's privacy it's pretty easy to also say given what they were told you know they want to be aggressive they don't want to give them access to this so i'm just worried about that problem if you win it that i think there's this two options when the officers arrive at a scene like this right in the one is they can side with the searcher and say we're going to protect the search we're going to make sure it happens the other is that they can be present they can do everything law enforcement entitle to do and escort mr foreign with his belongings off the premises they can even say you know we'll walk right next to you we want to make sure that you leave this person this is your employer no longer wants to be president officer wouldn't you want the bag opened before u s court i'm out of course but at that point we're  talking we're now beyond what the fourth amendment allows i mean an officer any time they've heard a rumor that someone has a gun i or anyone in this courtroom i believe would want to know that i want to see what's inside someone's bag once they've heard that rumor but a rumor isn't sufficient under jail and a whole lot of supreme court cases for the officers to decide we are now entitled to see what's inside this bag and they can't assist a private party without under the fourth amendment absolutely but without at least a policy or consent or some contractual right that the that the private person gets to do that either i mean we have this balance in our in our whole constant but the the employer could have said you know i'm sorry to have to do this you're fired i understand you have a gun or there's some people said you have a gun we don't want to just go back to your locker and get your bag and leave we think that's dangerous and so we've got some officers that are going to help us do this that can't be done it can be done as long as what do this means is we're going to go to the locker with you and escort you off no no we're going to lock our opening the bag first because i don't want you to have a backpack with you know sixty rounds that's exactly right without without some either factual basis that provides probable cause or without a contractual right or consent that's right they cannot simply say we've heard a rumor we're going to open your back high risk i don't believe it's more high risk than any other situation where law enforcement encounters someone where there's been a rumor that they have something on them they can always ask questions they can always ask consent what they can't do is search the bag that's the balance we've struck in our constitutional employee or employer could have searched the bag the employer could not have searched the bag without consent or contractual right because the primacy of an individual's property rights under ohio law and under us law is paramount so what's the ohio case or statute that says the employer who has a policy banning guns can't say i want to look i hear you have a gun it's a rumor stick with that and they can't say i want to check your bag but i don't have a i don't have a case that says  exactly what i have is a collection of cases in six ohio jurisprudence third assault suchan sixteen which says a person her has the right to use reasonable force to present someone else from taking their property and also  in the section on trespass eighty eight ohio jurisprudence third trespassed section thirty two and this i think is worth noting even where a creditor legally enters property to reprocess something so they have the right to repossess if the property me objects and tells them to leave they are now it actually a trespasser they now need to get a court order the right of self help to invade someone's property under ohio law is secondary to the property rights of the owner what they can do is go get a court order in that instance so in that situation the repossession if you're coming into rivers us the property and i just say i don't want you to do that that's and said yes what right that person becomes appendix five twenty two which also collects a number of hopeful cases on this in the repossession addiction another question good faith yes good faith exception how does that work here i mean so what if the officers have that human you get the officer on the stand and he says yeah i know how these rules work and we were their community caretaker whatever the line the officer draws and i never really thought we were doing this we thought we were doing this at the insurer direction of the employer why why would a good faith apply them out know what there is to deter the officer that most is making a mistake about when their conduct crosses the line into state action and while we're with the side with the side of the the with on the side of the person that's performing the search what i would suggest is they have a duty under the law to make sure that that search is lawful once they've decided to side with that they can't simply rely on  probably this is ok they need to do something i would they know the rules of the employment they would know they can simply they can ask i mean they have to do something they can't simply show up and say we're going to soon that this employer has a right over the property owner they know generally a property owner can't and there's no general right to search someone's belongings the police are well trained in that and so the employment context doesn't you know for really shift that there's nothing magical about the employment context that says employers get to search their employees backs that's one private actor in another private actor and the property owner has primary rights under ohio law and under federal law i'd reserve the up and go yeah yeah i still want to get back to this one point because it seems to me it makes a difference some of the conversation here sounds almost like it's a civil suit against the police officers th supervisor knew that he was fired and was no longer an employee is and isn't the grab them and your theory is that the supervisor did something wrong the supervisor do something or i mean i would quibble with some of the language perhaps but generally that's correct but the question becomes can are the police intitled right can they prevent their own responsibility for the actions  here by emboldening your private actor by appearing by sheltering the private actor standing next to them while they perform the search to make sure that the property owner doesn't get inside it and the answer to that was yes i mean the whole point is whether it's a state action search yes and that's my that's the punchline right i salute lee and it doesn't really matter whether the employer's opening the bag or the officers open the bag the hope debate here is whether it's state action and therefore the exclusionary rule applies that's exactly right and the that's county of cook that's where the police presence state action when they when they take what is actually about good faith the question isn't what the employer did it's about deterring officers and that's yours that's exactly right and when the officers i mean i i  would i have to know that the government didn't raise a good faith below it's been forfeited but regardless the officers decided i mean by their own testimony they were going to side with the searcher they were going to make sure that the search happened and by doing that incumbent on them to do at least one step of finding out is there any basis for this search and by doing nothing good faith doesn't think you get your rebutt thank you our good morning may it please the court james ewing for the united states because this was a private search that did not implicate the fourth amendment this court should affirm the judgment of the district court when mr ashburner planned initiated and executed this search he was not acting as an agent of the police or an agent of the government he was acting as a responsible supervisor who was looking out for his own and his employees safety chronologically ashburner decided that he was going to conduct this  call the police so that they could be present for his own safety and for his employees safety told mr ford he was going to search his bag when told mr ford need to open his locker grant this is these are all personal things that mr ashburn or did mr ashburn was the one that reached in grabbed the backpack took it out put it on a bench mr ashburn is the one that unzipped all seven zipper pockets of that backpack mr ashbridge or planned initiated and executed this sees presence made no difference at all so this this goes to appellants ability to resist argument or the concept that the police impeded his his ability to resist this search of right and that correct and there's a number of problems with that one that's not factually supported by the record if you look at page i d sixty five to sixty seven mr ashburn was adamant that mr ford was not free to leave he had not finished dismissing him he was going to search that backpack before mr forni well after and it's not he hasn't if if his claim to the extent his claim depends on this but for tested but for the police presence outside the office mr forni would have simply walked out and grabbed his backpack and left he hasn't made that now a page i d one thirteen mr ashburn or says i was surprised that the police weren't still in the office where i put  i didn't know that he didn't he didn't when he came when everybody came out of the office and the police were standing there that wasn't some sort of coordinated thing in mr asheville's or officer asher also said which way does that cut you know which way well it if his i t's a factual it's a factual argument to the extent of the c standard his claim depends on this but for the police's presence i simply would have marched out of the office grabbed my backpack and left he hasn't made that out and underhill this court has to view the evidence in the light most favorable to the government and he hasn't made that i was a matter of fact that's one of two what about the fact that the officers ask him whether he has a permit for the gun what does that have to do with community care taking and making sure no violence explodes on the scene that looks like classic law enforcement regarding once they're at the locker well once they're at the walker your honor there's still the fact that that  police are present there does not make does not somehow transform this search by mr ashburn right that's why i didn't ask the question based solely on presence i asked the question based on their question well why do you have a permit for this which sounds like question of law enforcement not let's make sure violence doesn't break out regarding that that would be more along the lines of i think that's one way this one potential way to read it but another potential way to read it would be that they're trying they haven't ascertained at that point when they asked the question whether there was a gun in the bag or not so if someone in other words they have an uncovered the bag so they're trying to they're trying to the police are trying to fit what is the situation we're trying to deal with here this person has just been fired not not incidentally big just maybe i misremembered this i thought they asked do you have a permit after the gun comes out no it was worth or was before so he asked whether he and he says yes i have a permit i have a disease they ask because he says he has a gun in the bag is that how the question comes up i'm forgetting no they simply that they simply ask him as mr ashburn or it is searching the bag do you have a concealed carry permit or something along those lines if the gun has not been uncovered at that point so they're trying to assess the situation they're there to try to to try to keep the peace and we know from you know his lever says gasman says the police is presence solely to keep the peace does not transform an otherwise private search into a public search this really gets to my second problem with their their argument that it was his his property interest in the bag was chilled again going back to what even if he can make out the case that but for the police presence outside of the office he simply would have marched out gotten his bag and leave which we don't think the facts support that but even if he can make that out once there and once everyone is at the walker point he's still the one the private individual is still the one that is conducting the search but of course that of course it is the fact that if he wasn't you go and bring in the state actor the fact that he was the one is what triggers the state actor analysis that's right granted but i mean i guess my point is that aspirin for example once they're at the lockers because again there the argument seems to rely on this concept that but for these police outside the office when i walked out there would have even been any search at all and so to respond to that it's the concept that even once they're at the lockers it's still actually better performing the search effort of have said for example if you he doesn't think he can object at that point because the police are standing there doesn't matter whether it's if the private party i mean that's the whole point of the is what point is the private party being aided sisted whatever by the police and we've formulated the test that if the it's in the it's in the from the point of view of the of the person who's getting searched right if he if his right to object is being chilled whether or not it's the private actor doing the search right what we would say that this really goes to the kind of the continuum that his lead versus gasman sets up where you have you know a continuum between mere presence solely to keep the peace on the one hand and really something that what it can to happen in the hinsliff case itself which was a repossession case where the police ended up breaking the window of the car pulling the er owner out of the car so that the repo man could take the car so that's kind of the other into the spectrum what we're saying is that we're way over here on mere presence and his leadership gas says that mere presence soley to keep the peace does not transform a private remember but he did at vance that he had a cartridge in the bag and wasn't that what triggered police question that you have a permit that's right you are that now that you remind me that he said that he  said that he had a a forty five caliber cartridge and he later described it as a almost as a a rip of a museum piece or something like that not not a wide cartridge but that did that was the response to why i the question about do you have a license for it would be a light at excuse me on it isn't that sound like law enforcement activity regarding the cartridge itself because the cartridge by itself is not dangerous i can see i c see if there's a gun at that point then you asked you have a permit maybe that makes some sense because maybe that makes it less dangerous this is a law abiding citizen use but why are they asking for a permit for a cartridge when the cartridge by itself is not dangerous well i guess it would still sounds like law enforcement i take that point on i think that that that the interaction at the at the locker was still kind of the police trying to assess the situation what are we dealing with here and it goes to your point of kind of no good deed goes unpunished we know from the davis case that the sole reason for the exclusionary rule is to deter police misconduct and there is simply no police misconduct to deter here seem to be raising a good faith argument are you you're here are we raising our brief we raise a community caretaker exception which was laid out in this court in twenty seventeen in the lewis case and really what the community care taker is that an exception to the exclusionary rule well it's not it's not an exception so much that it's the action in corey united the way i see that it seems like you and i i always admire advocates that focus on what they think is the key issue but and i think it is the key issue is this is state action that's just seems to be arguments not about reasonable expectations of privacy it's not about good faith exceptions it's  action we think that we think that this court can decide the case because this was a private search and therefore it doesn't implicate the fourth amendment however if this court were to disagree and thought that on that continuum that his sleep ursus gasman sets out that the that the officers actions were were not mere presence but they were more than that we would point this court to the lewis case which in this is the this is the which he talks about when the when the police do things to keep the peace and to keep people safe they're not not to investigate crime necessarily that falls under the community care takers and that's what we expect from the police if you think about in this scenario mr mr ashburn or has got what he considers potentially a volatile issue on his hands he calls the police they arrive they they are they are not there to in they're there to keep the peace the district court properly found at page one fifty two page thirty one fifty two the police were there to stand by while ashburner you'll remember he carried out his intentions so what is there really to deter here isn't this what we expect from police that in the in our society to keep some volatile situation from from escalating so again we i ask the no good deed goes unpunished point because it does bother me but i just wonder why this can't be dealt with in a training situation you know you do have this separate community caretaker function we do want the police to honor these calls and then help the employer out but that when they're there there are some rules and one really easy one would be just to say be telling the individual for me you know where to here for law enforcement purposes we're just here to make sure no one is hurt and that's all we're here for and you know you know the locks you have to brace your hands and if that's the way they presented they solve the whole problem because that that testimony will be in front of us that's not what happened here and you know that doesn't seem that hard to fix it just seems like training with the police officers actions really come after the fact point out the reason why they were there in the first place but even after they found the firearm which wasn't in it up being illegal because it violated the national firearms act what they did at that point was they simply escorted forty off gave him oversee and checked his truck which he allowed them to do and let him leave so that was that was driving home there that they they were there and the lewis case talks about the police officer's actions being quote totally divorced from investigating crime and that's why they were here they didn't go to the all the warehouse on their own they went in response to ashburn his call to hey come be present in order for this volatile situation to not kick off into something worse and we know we also know from the record that the reason that forty was being fired was because of an allegation that was made by another all the employee so that makes the that makes the that makes the atmosphere even more fraught and there's even more reason for the police to be there so again all they have a policy of searching their employees lockers so there's nothing in the record about a search policy what is in the record is that they had a policy which was discussed in the previous argument that there were no firearms on the property that was in there that was in their company hymn book that was also published on a sign right next to the employee entrance so for him to had no right to have that firearm on all the property he also did it so the to the extent that he has argued some property interest in the firearm he didn't have that now there's one point let me ask you this question though let's assume there were no police there at all he's fired with the supervisor have a right then to go search is bag he's a fire guy leave it that's the supervisor still have a right to search that bag we would say yes because of the because of a number of reasons and again that's not the propriety or impropriety of ash brenner's conduct is doesn't really answer the question here but to answer your honor's in other words it doesn't answer the question of whether the fourth amendment applies and the evidence should be excluded but we think that it would have been proper because you know it's part and parcel to him it's essentially one in the same of his terminations let's get you off of these grounds in a safe way it's all these it's all these  locker they have a policy that there's no firearms on the grounds so we think that his actions were reasonable i see him running out of time i just want to make one quick point about the sold off case which is cited versus gasman case the solo case is the seventh circuit case about the repossession of the trailer and if if you read it page ten seventy five of sold out case it says the preacher the police prevent a different from exercising his right to resist in that case but says that may not by itself may not have made them actual participants so even then they may not have been actual participants in the search if there are no further questions first my my my colleague said that he hasn't made out that he would have taken his backpack had the police not been there the district court found that he would have paid thirty one fifty two and also at three seventy four th mr ford would have grabbed his back to the first one and the second was he would have grabbed his bag the district court added in that second order that would have been a confrontational act and that's where the district court erred because it flipped the law on its head  guess although there's no fourth amendment that doesn't give the fact that there is a policy against guns doesn't mean that at will were based on a rumor the employer has a right to search they could of course have a policy that employers employees can consent to that would allow them to search but that policy it just is that we this is just a matter of state all yes we don't know generally i didn't look nationwide or time constraints i would point under the law this was more than keeping the peace or mere presence and i would point again to sold all in mid on so little there was presence plus statements the officers arrived escorted employee employees of the reapers us or onto the property and said we're here to make sure that you don't interfere the actions here have the same effect and then in the middle  they arrive they again escorted the repossess or on to the property they didn't make any statements but they position themselves in such a way as to frustrate the sightline in the ability of the property owner to object and this court found that that honor quickly the first is the government hasn't didn't raise that below there's a footnote in the brief on appeal but the second to answer on the merits we contend it's not reasonable both under probable cause reasonable suspicion standards but then also under common law standards contract consent but there's this is where the community caretaker would also come into play where could it be reasonable under the community and but the community my answer that the communicator caretaker function doesn't allow police to perform searches it