please the court yes counsel i'd like to reserve three minutes for rebuttal government has conceded that the present sense impression heir to that central part of the case of a van fleeing away from a one way in one way out rode from the maccie residence was there a question is can the government sustain its burden to show that it's more probable than not that the air was harmless and i say no the foundation of this case was no proof cannot prove it cannot exclude equals not guilty these facts indicate that it was not harmless first it's extremely rare that you would have two knives with blood and not have two attackers second alonzo smart was outside of the house based upon kesha crushers testimony counsel isn't there a more simple reason why that particular statements exclusion was harmless because mr c testified about the man your honor he all that mr croucher could testify about was seeing tail lights and so in the opening statement i mentioned that we would have an eyewitness with seeing taylor  said you saw a real driving away from nelson he's house so front and so forth yes well i think he assumed that the tail lights were to a vehicle well we had this to answer the question it was during the nine one one call where what did you see when you picked out the window sir i saw a vehicle leaving the residence so i guess regardless of what other evidence the same information came to the other where they didn't well sometimes who delivers the information to trial matters licky sure crutcher was called by the government it was on cross examination she heard the statement contemporaneous with the nine one one call and if the court looks at the record chad crutcher was called by the defense both the court and the government went after him and in addition to the harmless your honor not only did they exclude the evidence but then they put on the f b i agent to put in rank hearsay that was that he testified there was no vehicle even though he would have no perception of that second he testified that mr smart went out the back window because he knew the police were becoming all of this in the context of the van matters because the van allows someone else in addition to mr smart and so to say that in a murder case for which there is no direct evidence at all but you have to witness is he would say the same thing one of them testified by the government not gone after in terms of a witness and so they were what the government did here on the harmlessness is exclude obvious present sense impression used the case agent to call rank hearsay and then keep and then go after chad crutcher in his testimony he was not in the same position to see where the car was leaving from and so he testified judge's questions that he could only see it down the road and so there was a lot made of the fact that he couldn't see it where the house where licky sure crutcher was listening to britney able as she saw the car leaving so in addition to that you have britney able to obviously is hiding from the f b i as a motive here and the whole alonzo smart mystery as to him being outside is never addressed and so that was central to a case where you have two knives used with blood in an attack where nelson mckee has no blood on his shirt no blood on his shorts no blood inside the house other than direct drops of blood so no castoffs but you're your expert was like two assailants would never put the two knives together here your your theory is it's  suicide she let she wrote the note she was despondent i mean it's not can where you go in with these two theories two theories are that it was the government's burden to prove a case beyond a reasonable doubt baron who could not exclude suicide there was evidence that suggested suicide including that there was also evidence that suggested two attackers so his opinion was the two knives were consistent with two attackers or suicide but not a single attacker was what he testified to two knives in general was consistent with two attackers but not when they're placed next to each other on a table that's more like sadness i agree on that one fact than there were the absence of any cast off in the house suggests that it could have occurred outside with two attackers then you drop the knives inside the house you blame the person who's there and you flee away in the van that's why the van is so important when you have someone outside the house so i agree this is not a case where i could show up on the defense and prove one theory but it is an acceptable technique to say as the trial judge said you have to prove beyond a reasonable doubt that you can exclude both of these theories and they did not and that's why it's not at this stage harmless error it's conceded to be error and the only question is is it harmless the judge then lets in the case agent testifying that there's no vehicle the judge lets all this in then decides to let look he should pressure statement come in then reverses him self the jury was at this point this critical evidence was not there for me to argue in closing like i could have if i said vonnie curtis she was called first she gave us how drunk nelson mickey was after drinking a if that was my burden on the other side to prove it was two attackers i couldn't get there if it was my burden to prove that there was notes tears like this will always fall and right where the tear falls is where the cut is on the chea there are evidence that suggests all three outcomes and if you cannot prove and you cannot exclude that would be a not guilty we're not here on sufficiency we're here under the walk a standard in going back to those cases in walk we had direct evidence of a one pound call on a telephone we had direct evidence from an informant testifying that he sold drugs and the search was bad and i know that there was a dissent in the case from judge graber but i'm pointing that out only because that's a whole lot better evidence than the government has here and that was found not to be harmed less and it was reversed in in morales the a mock case we had testimony that someone was a really bad bookkeeper from the expert and then others brought in testimony which was no she's gone to professional courses she's a really good bookkeeper that was found not to be harmless on a same standard as here so moving on to the search unless there's any questions  the search issue we have two issues one there was no one merge in c this is not an exit in c case the emergency is a caretaker function and the caretaker function is there someone going to be inside the house who you have personal observations is hurt so you think the trail of blood isn't enough to follow the trail of under the drug or case no because once mickey came to the door and they could see him and he was not hurt unlike michigan v fisher or unlike the personal observations in the brighton city case so drugger was a case where they follow the trail of the door the key was inside the door they turned the key they open the door and then they say something and drucker says i'm coming out and the court reversed and said at that point there was no ability to go inside so there was no personal observations for any emergency in this case to allow entry moving on to the consent the prosecutor who called the three witnesses said there wasn't can said he didn't argue it in his briefs he argued with the judge and the findings themselves are completely inconsistent the findings that the court made well he said he may have been too intoxicated but then went on to explain that he could talk rationally to them and unequivocal and specific freely and voluntarily under the ship standard mr mckee may have said sure may have said come in may have said is not sufficient and likely orally consented their entry those factual findings are simply not consistent and if the prosecutor who's called the witness tells the judge he doesn't have consent that's pretty good evidence that there's a mistake to be made intoxicated never the last his statements were the product of rational and intellect and so on he was able to follow orders he provided cogent answers for examples of that so it's not  it's not that equivocal and he kind of adopted officer menards testimony that the key said something to the effect of come on in and said there's nothing to confirm it but there's nothing to refute well nothing to refute it would be clear error here because standing right behind him it's kyle legace who said i never heard him consent to anything well not hearing is not saying he didn't say that's like saying i didn't see whether the light was green or red is kind of somewhere that he didn't hear anything but it doesn't mean it didn't happen if the other person hurt it all i'm saying is that the finding itself i understand that the two individuals who were there heard no consent the person who asked for consent was casing that guess who originally asked and then what he saw was questioning and then walking into the door and unequivocal when it's on a sure come in you may have said that you have to make a finding that there was i'm reading what i'm reading from something where it was quite on equivocal the findings in the written order and your honor i'm going back to seventeen zero nine seven seventeen ten where the judge says and the finding out whether he or lee consented is probably so i don't believe probably so is sufficient  with that i'd reserve the rest of the time unless the court wants me to answer the question for them thank you counsel good morning may it please the court adam flake for the united states with respect to the issue of consent one one three zero the district court said the court finds no reason to disbelieve officer maynard's testimony that he made a finding of fact and he certainly can see that he stated it in an interesting way he said probably so and maybe so but i think that the court  equate the district courts unusual language for its finding with a finding that somehow mickey's consent was equivocal those are two different things that the district court's finding was that his phraseology was that was interesting it well it sort of you know we said in show blue that the consent must be unequivocal specific freely given freely and intelligently given there must be convincing evidence that defendant has waived his rights for must be it's kind of tough to sustain as i said before you're out of the courts phrasing was interesting but i don't think that the that the court found that they could set itself was was equivocal  with respect to the that i also think that the court actually made three findings or upheld it on three different bases one was consent was expressed one was consent was implied and that the final was that entirely alternative theory of exemption see and i think that that each of those was correct the trail of blood across the snow and blood on the doorstep i think  was combined with somebody who had just left the house literally dying not not dressed for the weather was certainly sufficient to create a reasonable belief for the officers that they needed to look inside further and determine whether anyone police had more information available to them and dug or they talked to the victim they didn't have a reasonable belief that he will anyone else was inside and here they simply couldn't talk to the victim she was dying they got to it a bloody door they they  did not know who was in the house i'd also note i apologize for not pointing this out in my brief but one of the very first things that they asked the police asked them the key and the key on his doorstep was pain else and what's going on a his response was nothing somebody had just left the house and dying there was something going on that well that was not enough of an assure if he had said i'd you know my wife just got stabbed and ran out and let me help you out but everything in here is cleared up maybe i'd be a closer case but the answer they got was nothing and then he asked why is cheryl bleeding and got no response and got in yes and got inconsistent responses and i was cutting something well she must have cut herself they were not able to they were able to assure themselves by talking it over they should have reasonably been able to assure themselves by talking that there wasn't a good reason to  skip the warrant requirement basically but in this case what i think it's i think it's clear that what they did was quite obvious the sort of behavior that we would like to encourage from the police not discourage in this particular case didn't turn out that there was anyone in the house of course but in light of all of the circumstances i think they had it very well but very reasonable belief that they needed to act without with all with all possible speed and once once they had looked around the house briefly and seen the evidence in plain view that the court did suppress some statements and things subsequent to that and there was litigation over at what point the emergency stop but i don't understand their argument to be that we the police properly entered and should have stopped before they stopped i think the argument was that they they not shouldn't have entered at all actually argument that's correct do you want to get to the present sense impression yes you that to be very clear we are conceding that that was error as i pointed out my brief they were allowed to get in similar evidence from chad crutcher that he saw taillights driving away  i'd also like to point out that the theory that with respect to the tail lights and the lawn so smart doesn't make a  lot of sense the houses are eighty yards away somehow a car came and alonzo smart went outside and rode in the car for eighty yards and then got back out of the car and then was nearby and got picked up on his way out anyway and again they were allowed to make this argument anyway it didn't wash with the jury they found the key there he came and sat down next to two  with respect to the entry into the house the emergency didn't require them to sweep the house in the beginning they all sat at the table and in fact more than three to five minutes went by before they even went around into the house so their actions show that it was not an emergency by looking throughout the house with respect to the cuyp of questionings the court asked the drugger decision how could we distinguish it we cannot in terms of this case for the first fourteen minutes of that case no one was concluding anything and in fact agent b i agent maynard fourteen minutes into the cape says i can't figure out whether she stabbed herself or she got stabbed so the only thing i'm arresting you on is possession of alcohol so clearly it isn't a more serious situation in that they were still trying to figure out what happened only upon news that there was a fake tallahassee and and kyle negative negative going back over the house and coming back did they move to a more serious situation so i don't believe that the entry in the house can be withstood on either consent or an emergency with respect to the harmlessness on the present sense impression sometimes quality of evidence is more important in quality and so quantity here the court is saying well you got that in through jack roger but actually seeing the van was more important and the theory isn't that he somehow he was gone from nine thirty to ten and he was gone for two hours and the only testimony was they picked him up on the road after they were leased from the house at around twelve thirty at night that should have been given to the jury thank you thank you the cases are going to be submitted for decision and we will be in recess