the absence of some information from the officers to believe that the defendant is not home at the time should be sufficient to satisfy probable cause last reason to believe  of a cottage behind my house and had a guy living there for a while who basically was there like twenty four hours a day he almost never left his avocations and was surfing the web and eighth grade and didn't have another job and so you could pretty much guarantee any time he's there suppose the authorities have information like that doesn't that give them a pretty good reason to believe that he's going to be there at an ordinary time when it go to arrest him and the fact that he hadn't been seen all day could he never left the place it's just that that's too tough for burton to expect them to have independent affirmative evidence somebody is present and  i start with that deliberately extreme example because it seems to me that there can't be just a yes no or absolute requirement for specific affirmative evidence this is simply one factor thrown into the mix of everything else in order to reach a solution whether or not there is reason to believe and one of the factors that may fairly be considered is someone's customary practice that's all your honor and looking for that individual the officer to go by that out of several occasions and one of the officers don't think is important what is important is that there was an individual in the car and an individual was identified so we have an issue here where it seems as though officers put it's taken some  reasonable line is not a black white there's only one reasonable response by definition reasonable can cover a variety so in this case it isn't so much whether it was unreason whether whether it might have been reasonable to stop the person driving way to make sure that it was mr diaz who was still left at the house in case there was only one person of your form and we don't know the math the possibility is that it could have been two but we still go back to the question was there a reason to believe that if he was there and the fact that a car drove away or was driven away is simply one more fact to be tossed in the hopper if this were a place where nobody ever visited then the i'm just saying that looking at how little evidence that they had regarding whether or not mr who has a presence that day in the hall coupled with the fact that a vehicle leans with an individual  eyes that said your honor i'd like to move on to the second issue because that is also an issue that we had a great concern about and that was our fifth amendment right to call bad mr diaz was very concerned that his wife would be subject to criminal prosecution herself and i was concerned about that fifth amendment issue if he did in fact can't be the case that you were caught by surprise that the fifth amendment might right my view exerted by this witness is pretty obvious that would be coming in as you say you would have given that same counsel yourself so all the complaint really is appoint counsel for her in advance so that she was taken off the table at an earlier moment but i'm not sure where your client has a constitutional right for her to be appointed counsel in advance so she may not have but she did is the reason to believe issue with the execution of the arrest warrant the district court here proceeded very conscientiously and i would submit to the court that the district court looked exactly where gorman said to look the district court focused on the fact that in discussing the probable cause standard gorman focused on professor lafave statements and his discussion of how the probable cause standard is to be applied under circumstances where the police have a valid arrest warrant and are seeking to execute it at the defendant's residence not at some other residence but at the defendant gorman court quoted professor of the fayed and also quoted the fifth circuit case with the following language in emphasize the following language reasonable belief embodies the same standards of reasonableness as probable cause but allows the officer who has already been to the magistrate to secure an arrest warrant to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without circumstances the court here found that these officers had probable cause to believe mr diaz was at his residence under all the facts of this case you don't dispute with your colleague s standard articulated by the court that unless there is some evidence that he's not home we have reasonable leave he is home that's the correct them no your honor and the court clearly applied the probable cause standard i think the way the gorman standard works in the probable cause standard under these circumstances it's really a matter of what inference what inference the police are allowed to draw from the fact that the building in question is the defendant's residence that's really the issue and in this particular case the officers were able to draw a strong enough inference that he was there because of the past history with this defendant they had been out there on at least five occasions he had been there on four of those five occasions they defended himself and told the police that that was the best way to get a hold of him it was just to come out there during the day they knew that the defendant worked out of his home he was a mechanic and he worked there so the question really becomes whether the district court was clearly erroneous and it's finding that there were no countervailing factors present at the time which would suggest to the police that the defendant was not at home on this particular occasion and that then focuses on the individual or individuals leaving in the red and silver s ten the record is absolutely clear that that was not the defendant's car the vehicle they you knew the defendant to use was a black s ten it turned out that is the defendant admitted he testified at the suppression hearing his wife also testified his car was in disrepair it was in one of the sheds being fixed the red and silver aston was his son's automobile so that the automobile itself there was nothing to indicate to the police that this on the premises at the time furthermore by the defendant's own testimony as he was leaving and they passed the surveillance one of the surveillance vehicles his wife said that looks like the feds based on the the way the vehicle looked the defendant himself claimed that he passed very close to the vehicle and yet he could not identify who was in the vehicle he knew these officers very well they've been out of the house on a number of occasions he couldn't identify who was in their car how are they supposed to do it in a five in his car so there was no countervailing circumstances here to indicate that the defendant had left you on this record we cannot assume that they did identify invite you can't say that that's absolutely correct your honor and here the officers testified that they could not see who was in the car and it appears you  courts of terminations through a clearly erroneous standard that's absolutely correct your honor he applied here expressed some confusion but he clearly acquired the probable cause standard he found that they had probable cause to believe he was here or there at the time and that all gets into these factual findings about it being the defendant's residence him telling them that he could be found there him working out of the home they've been out there on a number of occasions before and almost all the time he's been there the fact that they've been out there before when his vehicle has been gone but he has been there they've knocked on the door before and it's taken him a long time to come to the door but he's in fact been home the fact that there were at least eight dogs presence of according to his wife they're barking bait can't hear so they can't listen to hear if they hear any noise in the house they're there blinds and blankets and so forth curtains over the windows they can't c n n they did everything they could do under the circumstances the district court me ask just there in the circumstances that it struck me as a somewhat unusual scenario how stretched out this was the number of times they visited him in the fact that his potential violation had been on the table for a long long time as they'd been out previously he'd answer the door sometimes it's taken him a while to answer but he had as far as i knew always responded and i can't tell that it looks like the fact that that he may have have and vulnerable to being arrested or being charged with this of hansard things with an on the table for a long time as well as the fences argued or in the briefs and then orally today but just the fact that defendant answered or didn't answer the door might have have suggested to the officers what to do because he had never failed to answer is there a reason why the officers felt it necessary to physically enter the premises is there a reason why the defendant should have been suspicious that on this visit they were going to try to arrest him so maybe he wouldn't answer the door this time when in the past he has i don't think there was anything about this occasion your honor that would have suggested to the defendant that this time he's going to be arrested i don't think i'm not aware of any facts that would do that but i am aware that this testimony in the records that on at least one previous occasion when they had not it took him some thirty minutes to come to the door it turned out he was inside sleeping and then he eventually after all that time comes the door so the fact that they knocked and he doesn't immediately open the door under all the circumstances here he that he's not that he's not there that way in some some fashion in favor of a course that tells the officers to wait and he's not like they were just there and dashing out and then in the area for a while they had it under observation is something that kept them from waiting to see if he didn't answer the door in the next half hour and that point giving them reason perhaps not to believe that he was there what i think that they would know similarly in the record is that they were they were i don't know wouldn't defendant would believe that he's being arrested this time but they did mention they were concerned about the dogs they're concerned about the fact that if if the defendant is in there and he's awake he's got surveillance there's at least one surveillance camera that he's got and perhaps because of the way they've come this time you know that i know they've got the instrument that's necessary if they have to breach the door they have that with them if the defend nt could see them the surveillance out there could have been indicators that this was different from some of the other more casual visits out there clearly whatever instrument it was necessary to breach the door they had it and had it ready so under all the circumstances i think the district court's factual findings were not clearly erroneous turning to the second issue which was the attempt to cause  refusal to appoint counsel ahead of trial for jamie diaz was clearly based on your own legal grounds he made it clear that he couldn't think of any authority to appoint legal counsel her to have been charged you hadn't been arrested she hadn't been interviewed you hadn't invoked that that none of these things that happened and he made it clear that he simply couldn't come up with any authority to appoint counsel at public expense under those circumstances and even asked  the defense counsel to supply any authority if there was any defense counsel filed another pleading and basically conceded that there was no such authority under these circumstances if a feeling of a train wreck and the brain are going to collide at the intersection seemed like something out of the them before you get to the glacier well that and i think that was a question and i think it showed that the district court didn't simply say no i'm not going to do it the district court explained these are the only avenues of authority i can think of and they don't apply here if council knows of any please tell the court so the court was very conscientious and by the time that we got to trial i want to emphasize that this court that the procedure followed by the district court here was correct it was very conscientious when the issue first came up by that time it was during trial by that time another attorney moved i'm mr carter had been called in to represent jamie diaz the court made it clear that what it was concerned about was either side knowingly knowingly putting a witness on the stand knowing that they're go not something that's unexpected or accidental but putting as a witness on the stand for the purpose of having them invoke the fifth what the court said was for defense counsel m and meet with the witness and with her attorney to see if there was even going to be an issue or not and i'm looking at page three thirty five of the trial transcript with use in the excerpt of record at page one fifty four and he makes it three thirty six soon as you've had a chance to visit with mr diaz and with mr carter you can advise the court as to whether it's even going to be an issue if it's going to be an issue we probably need to take it up outside the presence of the jury decide the issue and then bring the jury again now that's exactly the way the district court is supposed to proceed go talk to the witness and her counsel see if this is even an issue if it is an issue then we'll have a there has been a recess defense counsel has talked to the witness and her attorney has come back and reported to the court the following we would like to call in this b s some of the questioning i've discussed with mr diaz of tourney is permissible very limited but some of the question he believes is not objectionable and that she will not take her fifth amendment right against self incrimination that's sad after a short time into the questioning  believe that we're going to get into a situation where he does not want his client to testify i suggest that the court of mr carter invoke her fifth amendment right in the court interjects but not in front of the jury and then defense counsel s would like it in front of the jury defense counsel has specifically sat very quickly into the questioning she's going to invoke the fifth and he wants her to do it in front of the jury the judge had already explain you the reason why you can't have that is because then the witness doesn't answer the question there's no cross examination on the point and the jury is left speculating about what the witness would have sat and counsel we all know that if the witness takes the fifth amendment that can't be used by the jury in trimming the guilt of that witness in this case by case it's with was on trial for why can't the jury use that claim of the fifth amendment to determine the possession of the gun by someone who's not on trial because that the end vocation of the fifth and then that is not evidence it's not evidence for or against it's the witness saying i'm not going to answer the question it creates no inferences of well a common sense to the action is the reason she's saying that it's because she doesn't want to incriminate argument isn't well the problem is that it's no evidence there's no evidence in front of the jury no valid evidence in front of the jury and what they're not supposed to do is speculate and that's exactly  is not supposed to have this improperly because the government doesn't have a right to cross examine and the government doesn't have six remember right the government doesn't have a sixth amendment right that pertains only to the fugitive but the government does have a right to cross know and through the defendant son he testified that he remembers the day when jamie diaz found the weapon when they were cleaning up the place he remembers the day it was found she found it it was brought into the kitchen he remembers his dad clearing the weapon in the make sure that it wasn't loaded and then he said he didn't really see it anymore he was asked well you know was this did your father keep it and he basically said no he didn't have any reason for any weapon we didn't have any reason for anyway so the testimony came in not through her but through the son so her testimony would have simply been adding to his so in terms of any possible prejudice on this record i don't think there was any he got his this denson and he got it in through the sun now but the question here is like there are million things a jury could speculate about and of course the jurors are instructed to not speculate to try the case on the evidence that's presented to them under the rules of evidence but we're going from on a situation from where they could speculate about some things were something is being presented on the stand introduced for the purpose of making them special now that's that's going from the frying pan into the fire that's inappropriate that's why the courts have ruled you cannot neither side can put a witness