into someone's home and then based on whatever information you allegedly received can you arrest that person arguing that the right was that was violated was his being arrested place side of the apartment but the actual seizure took place inside an apartment and then with the show of police authority ordering mr artie's out of the apartment he was arrested so theoretically if he chose to stay in his home based on allegations that we've put forth in our papers he was under the understanding that if he didn't comply with that sure with already he could have been hurt and we submit that a reasonable person in his position in their own home where they haven't done anything wrong and no one's called the police and the police force they were in handcuffs somebody that that's the situation in and of itself that's problematic from a threshold level to entry in a home problematic and then the question becomes and this is this is the question and i'm quite sure that the court will decide where you have this th amendment violation because we submit there's no the th amendment violation entering the home without probable cause actually did circumstances an emergency or a consent when you have this injury into the home ok once you have that into the home the question becomes is there some way or in some way shape or form that that entry can be cured because our our position is that's in effect what these are arguing you're saying that you can come into our home illegally but depending on what happens in the home ok that th amendment violation becomes meaningless not in maybe factual situations where that applies but we submit that that's not here  that's the constitutional violation for the simple fact that to enter the home the the sanctity of the home goes back a long ways this discord knows so just to enter the home just with the police who are coming in more than a search it's a search but it implicates the th amendment in a much broader spectrum because if the police can just enter into a home for any recent just what we want to go into this home over here ok dinner for from him it becomes meaningless now quite seven hills there are exceptions i would imagine is if you're at the front door and you hear a gunshot or if you're at the front door in a bullet comes to the door well that might be a different situation but we don't have that factual predicate predicate here what we have is a non criminal noise complaint that doesn't even rise to the level of a criminal st under new york law namely disorder we have a situation where the noise complaint doesn't identify a particular apartment and there are several apartments on the floor the noise complaint does not identify a particular person in the noise complaint only says the  floor the police officer and based on the record as my recollection as i can recount to record to police officer when he got to the location he never really stated that he heard a noise he just the door opened and he walked into an apartment we're going out and he came correct in our position is that that's not that does not really dispositive of anything unless we have some type of factual search that  easy answer that yes or no he's not taking into custody entering the door and looking around that's where we're stopping ok and out of constitutional violation i think that's the at that's what the illegal search well yes is the answer to that question so they're going from there you have another constitutional violation everything's rolled in together in a sense you my serious role than to go there but i think this fact pattern here even though it's a small case involving a young man stan and a housing process project i think that it presents interesting issues in and of itself because you have a situation where you have the entry into the apartment summarily geishas about what happened in apartment and then ordering of the individual outside but our position is that basically that the police didn't have the authority to go into the apartment they didn't have the authority to seize anyone and they didn't have the authority to arrest mr  record the plaintiffs does not make a worthless entry claim his claims are false arrest false imprisonment reckless investigation and inadequate training and supervision those last two he seems to have completely just waived on  district court did not consider the question of whether true or improper search took place the question was solely focused on our our motion and the court's decision was focused on these questions of of those five claims that i raised  no time has the plaintiffs said the district court errored by ms improperly construing his complaint or the claims within it and that these issues haven't been properly joined and on that point has there been any effort to somehow unlawful and the focus on the critical point at the time of the rest to the police have probable cause to make the rast and the court found that there was clear undisputed evidence that the police officer dead the police officer had  heard from mr rich has a cousin who said that he hit he hit her and the police officer saw on her face a scar and that was more than sufficient to establish probable cause for assault in their degree in the court the law is very clear for police officer has credible evidence from a eyewitness or a victim that's sufficient to establish probable cause just turning a moment to this question of whether  doesn't doesn't work so even if you were to find that that st entry was not appropriate just because the police later learned about the that hitting and saw the scar doesn't mean that the rest was somehow   depositions and the way that he sets up the facts he said that the police when they st came in the st thing they did was that they handcuffed his other cousin who was lunging after him so that the only way that i can read  what happened on that evening was that the police entered in order to change a verbal fight into a physical one but again this wasn't the question that was put forward by the plaintiff and therefore we really don't have much evidence to understand exactly what the police did at the moment and treat what we do position of the plaintiffs at the time of the rest is the plaintiff in their home outside of the home at this court is somewhat recently an alan said that that was the key question when you're considering a page in violation here it's undisputed by the by the show force entering the apartment or asking the point if the come out that the caesar actually took place inside the home the court's precedents here suggest that it's simply asking someone to come out is and i'm not sure the parties are not in some dispute over the question of whether or not the store teases exit of the apartment was entirely voluntary and other words i'm not saying that this was a is or is not a genuine issue of material fact and under your conception of the case with the lack of of the poisonous tree element i can understand how you would say well it's not a material fact but the question is because it's summary judgment can we really say that this was a request such as least subjectively believed that he had no choice but to leave the apartment so does st of all can we really say based on this summary judgment record that it was a request or was it in fact something more like a directive or don't we know is it just as it's one of those factual issues that we don't have agreement among the parties here i think there is agreement among par objective facts one that the police at didn't have their gun their guns drawn on mr ortez also testifies to around the language that he thinks the police officer used he said can you step out for a moment  not and does not know and cannot be presumed and that he's waving constitutional rights by stepping outside wouldn't a person reasonably believe that if a police officer asked you to step outside if you did not do so that you may be subjecting yourself to resisting arrest for example yes i think a number of people wouldn't realize their constitutional rights and here i think the question of qualified immunity is useful instructive a few district courts have had cases with far more extreme facts where the police officers have shown force through  reserve from time refill your honor i'd like to address two issues with regard to the entry into the apartment factually it was made out in the complaint that there was a warrantless century we believe the court is correct that as soon as she opened the door that is a search i think just scalia said that in a case where if you lift up a turntable that's a search so that's a sorry so we did allege a th amendment violation come in coming through the door in effect that he didn't even have the right to come through the door to start with next with regard to the outside of the home argument that's been put forth we submitted that argument has no merit because that argument based on this fact pattern swallows the th amendment because in effect says that well if you go in for whatever reason you go in and even if you have no reason at all and you find something in the home th