and on that date defendant officers committed five separate violations of those clearly established fourth amendment rights and concluding otherwise the district court improperly resolved disputed issues of fact on summary judgment and made several errors of the law that they have  three days or ninety nine market street is the grandmother's house mr keating that was all mr king spotter's grandmother had lived there before she passed away and mr keating was renovating at and would sleep there occasionally when the renovations ran a light in violation of his crown there's nothing that forbids him in the polls statute they haven't said anything and i'm not aware of anything of the biz a parolee from sleeping outside of his approved residence and every night were well he the officer had probable cause to believe he was living there and that's based on what the officer knows at the time ok so that was the question him for you the officer says he was keating made him and i don't see corresponding the nile's that create genuine issues a genuine disputes a material fact as to all of them so for instance he says  ah mr keating told him he's living at ninety market street mr king says all of his belongings are at ninety market street mr keating says he no longer lives at three james street mr keating tells him after being asked do you wish to say you live at three james or ninety market i love that ninety market so i'm looking at those entries in the in the deposition transcript and i'm trying to figure out ok so what are the corresponding statements from this you cheating that create the genuine this huge that there remodelling it he would stay there once in a while he would crash there when working like he never concedes that he was there and in fact his testimony is to the contrary and even of cause which is that he's really don't understand what creates the genuine issue if there is nothing in the testimony that specifically our country picks mean there is the one exchange you just mentioned but there are several that i read to you is it that one exchange that you're relying on is principally i want to basis for thinking that it was a residence and even if he thought even if he did tell him that he occasionally stop there occasionally sleeping outside one's residence we submit is not enough to create probable cause to believe that the violation it's it was clearly established by arizona versus hicks in other cases that a search must be within the scope of its justification and the sheer cost that was allegedly in there to look for evidence of a residency violation so you could open the on the couch on the first floor and then found that that was not the case and mr embargo was known to the police apparently he was there as well and he disappeared mr o'mara was there and casa testified in this litigation that the results turn up positive we have no evidence contemporaneous with the test that the results were positive and produce any documents or report showing a positive result and our view is that keating testified that he did that sufficient to clear all the police and do the broader search well two responses first again we dispute that he had a positive test for morphy so that factors in the  enough to justified cause to search for suspected pro violation of using drugs here we dispute the test was there it or your analysis test that this is that eight to sixteen yes those are the result of that test nothing heati position is a strip search need a warrant but certainly could search the residence for for drugs if there was a positive result on the morphine test it would be disputed that there was a positive result and we haven't seen any paper or any really ask you whether you were staying there and then the other exchange and that and at the point if you suggested that if you tell him that you were staying overnight there on occasion i don't believe so no  just want to make sure that those are the only two exchanges that you're relying on and i know under the heat of battle there are there are more so on rebuttal that i'd like you to attack that one for me ok i'll take a look and find more specific pages  the wrong and the issues that i'm taking are going to be the qualified immunity issue and since i will present the police officers who arrive second the factual issues unique to them whereas attorneys a or the bulk of the factual issues related to summary judgment standard which relate to the poll officer his client and he'll also address the waiver issue that he raises as the plaintiff's argument on long that we believe is not clearly established when it comes to the parole search area there's a lot of open questions right now and a lot of these are left open in the wake of the sampson versus case what do we need to decide you know or this court could decide as the district court did that there's been no constitutional violation this court could also alternatively decide that the law is not clearly only if those changing with issues of material fact would show if proven a violation of a clearly established law and we don't believe that they would when you look at what is clearly established in this context the plaintiffs are arguing that taint the rest of the day with regard to the searches because that would create a genuine issue as to whether there was a fourth amendment violation would have to go to a jury you are if you would if the first search violated the clearly established then yes that would take the whole process with one call yard which is unique to my clients which is they arrived in the middle of it believing that it was his residence and after he'd already signed the home provider agreement and so they ate we would order you were entitled to arrive on the representations of the parole officer when they arrived so even if the parole officer you know even if there were a dispute as to why keating told the parole officer before they arrived they were privy to those conversations and you know my colleague will address the actual conversation between vehicle officer and mr king but we would argue secondarily that  even if you accept his version of the facts it's not clearly established that the entry into the home by the prolonged officer before the officers arrived would have violated the fourth amendment under siege and versus california the supreme court in that case held that that in california police officers and paul officers don't even need reasonable suspicion to enter the home of a parolee and when you look at it in this context the supreme court has not answered the question as to whether the fourth amendment basically has a lower bar for searches in states like california than states like pennsylvania generally speaking the supreme court applies the same standard state by state and in the same some case for example the supreme court  one of its prior pennsylvania cases as a reason for more of the justification and the importance and the degree of searches in the court context in the coolies diminished expectation of privacy let me ask you this  and whether that was a legitimate injury by the police officers now we believe it was when you look at the patrol protective sweep cases they have this court has applied that doctrine which is originally from the  two searches even without in the west and in this case they believe that there was a and ecologists or a someone in the residence associated with mr keating that they had a prior relationship with that could be dangerous and under the protective suite doctrine they had the ability to protect themselves and protect the parole officer by checking in trying to make sure that that person is secure it turns out that in that short time frame he was not secure and had fled out the back but and once they came in he was on the couch they didn't know if he was hiding in a closet if he was hiding up stairs you know it appears he wasn't in the house at all were left at some point during the search but they were not able to locate him so there are suspicions that at least he was not safely going to stay where he was were confirmed by the time but the point they wear and it is not clearly established that they could not do that second entry it's also not clearly established as plaintiffs would like it to be that police cannot participate in parole searches in a sampson case the supreme court categorically said that it was permissible for the police to initiate a parole search which isn't even what we're talking about in this case other circuit said worked more directly at the question of police participating for searches and have said that it's completely reasonable for paul officer for his own safety or her own safety to call for police backup just just because of the unique consequences or the unique circumstances of the poor situation is that your position based on what appeared to be  bargains flight and the concern of the officers that they gave them the basis for a search of the entire premises we believe that at least gave them the basis for the search to go inside i believe the search for the entire premises was based upon the initial justification for the poor search we don't believe that this was a separate search that took place after that we've been that there are other testimony is that basically there was an initial run into the house to work for  laws the fourth amendment that establishes the extent of a search and watch permissible when they work outside of state role they will lie on cases outside the parole context there while growing cases but all searches are different doesn't there's no real ability to do that and so it would almost create a bigger limitation on paul searches then non pros searches if you applied that weren't doctrine to the reentry in this case your description confused me for a moment because i i could it was operating under the notion that there were two searches he made it sound like three or maybe it's just two as it relates to your cl the focus is distracted he's gone then they do the search to find him and then based on what you've just said there was an eight after that a more exacting search that what you've got to say is i to have some different facts from the different sides and at this point we we may say we're so into this incredible but that's not our decision to make you will or we don't believe it's necessary to demonstrate that the alcohol was failing in order to sight another crime has been committed your honor i don't believe in the pool search context that the parole search has to be limited to purely walking around for plain sight i believe i believe that parole officer and at the time they arrived the checks had already been found and so for for their perspective they would not have been involved in moving a physics book or anything along those lines or even aware of whether there was a physics book even if you take the plaintiff's testimony on that and i have not been looking at my timer but i believe i've probably hit seven minutes easily but yeah don't worry about  know thank you ok ok thank you apologize for so you know the records the record we want to make sure the route i'm now i don't want to represent keeping your honor let me jump in with some of the questions you had with respect to a dispute as to whether or not  was probable cause to believe that that mr keating was a resident of of the market street residence on it for the court to appendix three nineteen which is mr keating's only admission that he in is that if you take out the word well the rest of the sentence still doesn't make any sense especially the part of the sentence that refers to agent causeless testimony saying that keating told this and the importance of this is that under a middle district rule fifty six point one if you don't dispute something deny something it's admitted and we think the district court quite correctly characterized this issue as undisputed it was never presented below it was never addressed to me it wasn't presented as a disputed fact no it was not is not it was not presented as  part of an argument to to try and disqualify summary judgment and as we point out in our brief this one has repeatedly held that you have to make specific reference to the argument you want to make so as to alert this record here's what are ten said keating primarily slept at the james think james residence but would sleep at the market street residence once in a while here's their response admitted only occasionally played to sleep there while he was made of a mouse which concert was well work two you have to have one it's the code actually calls it the approved residence this is not a normal person this is not a rock biting person if you can use a language from the from sampson friend sites like arizona be hex once a parole agent has reasonable suspicion that a parole violation has occurred he can search the house ok so obviously you're  colleagues pointed out in their brief under the excuse me are under sixty one p a c s a six one five one they define real property as any residence so he may only have one approved residence but i certainly somebody can live in two different residences and he has control over those residents and they can be stretched and so he he and the probable cause is called violation that he can investigate is whether or not he's living there whether or not he's in a non approved residence or opposing counsel at some is it is to explain when you need to get permission before you move into a house and very very specifically at three seventy nine three eighty the agent explains that the fact that he did that couldn't  violation and you know my i appreciate the zeal of opposing counsel and they make a series or arguments here and they're very imaginative but they weren't made wel kaplan my colleagues say to joseph this is not a circumstance where a long period of time went by and there were something separate some sort of separate motivation to the search this was simply a continuing search  parole violations and one of the other things that that the agent talked about it in i can't again at three hundred nine is he saw that there was another person in the premises he also  wasn't reasonable yes rather the structure the basis of the strip search is sixty one p a s sixty one fifty three which gives a parole officer the capability of searching parolee including for contraband and the statute is great clear that the standard there is reasonable suspicion again my opposing counsel say through a whole series of cases where one of the things you completely to get the stuff going on or and so so again we have more than than just his criminal background but you can include the criminal background and all you need under pennsylvania law is reasonable take the whole series of cases from this court from the supreme court talking about the minute to minute hence decisions that have to be made that shouldn't be second guessed this court is really to do that i don't think they should do that case i'm going to go very fast  inherently don't give you guidance but in that same paragraph it also says that occurs when a general rule applies with particular clarity well here we have these opposition to talk are saying that the entry was improper because it was the home of his parents the place he was working and that the privileges granted to a pro officer were of no use and so those are places we preserve that in every argument we make i appreciate the compliment for maginot said ness with every argument we made was made by keating in the court below maybe not with the same refinance that we make them here but these arguments were made and addressed by that which a court which should resolve these disputed issues adverse are cases especially commonwealth vs edward said you need to establish you need to have probable cause to believe it's the residence in order to search it under the exceptions  before us is a statement by agent cause as he told me he lives there and the statement by seems to be just you keeping that says he knows that i stay there occasionally when continuation search we can see that if the fact show that officer consulate interrupted his search when it was incomplete in order to call for officer backup that's a valid continuation of the original search here called them in they were reporting just reported stolen they were turned over to the police officers well was the purpose under those facts of don't back into the house the searches were complete this was a fishing expedition for more parole violations nd that's his answer as well and that's reflected in the deposition testimony pages i saw right through to the extent that the those don't establish that then let's say he said i don't believe so or other see