this is an appeal from a no contest plea suppression hearing and the main issue really here is a reasonable expectation of privacy and is society prepared  i think that's correct your honor however i think you have you can't ignore the fact that the court in care citing cats that trespassing is a form of intrusion that may violate one's reasonable expectation of privacy so we're saying that that had an expectation of privacy in this six unit apartment complex and that that also is what distinguishes this from some of the other cases in this circuit and others is the fact that it was a trust that because the apartment manager testified at the suppression hearing the only people permitted and yes it's not a locked door i can see that there's no buzzer system and all that but the only people allowed in our tenants there are gas and business invitees the officer in this case was none of those things and i think what also really and then they viewed something they saw something in a common hallway well that's not what happened here the officer did go in correct but but then what he did is he there was this code covert action b none of the other cases have that element and i think so so i think that not only the covert action the covert nature of that but it also then starts bringing in the kernel it's cases your honour's because because now  morgan says five to seven feet from the home as a colonel is currently your honor i was not trial counsel so mr foulston may be able to dispute this but it seems like the camera was toasted within the kernel it's right there it's the apartment is that they're focusing on is at the bottom of the stairs and the smoke detector camera is right there i mean mr trice is seen right at the door multiple times and he's literally almost on top so it's not it's not a great area around the front doorstep i don't think early age only means single family homes i think curtilage means apartments and when you train a covert camera on the front doorstep that that i have a tougher argument your honor if the officer went into the apartment complex through and i'm locked door walked downstairs although walking downstairs in this is the basement is a basement apartment so i'd  you just saw something happening if mr trice was doing a drug transaction then i'd have a problem but that's not what we have here madam don't how do you handle our deal with cases like united states houston where there there's a whole camera footage or a video camera that is capturing what's happening curtilage yes your honor i think the difference in houston is here here in our case we have an interior hallway in houston the entire everything is outside it's on a pole camera on a public street it covers all the public domain the fact that it may be may cover partial kerl age from a public area is different than here where the officer goes inside an apartment which i think nobody would dispute there is an expectation of privacy in some places within the apartment and then places a camera directly facing the door of expect if you see somebody in a hallway and you can you can make adjustments to your whatever it is you're doing but when there's a covert camera place you really don't know so  you can see you know at least one of the clips mr trice is on his cell phone doing something on another clip he's actually speaking to somebody and against some of the cases distinguish your expectation of privacy by saying hey look you're walking down a hallway with your friend do a drug transaction full view of other people you've sort of given up your expectation of privacy but that's not what happened here mr trice this is a six unit apartment it's again it's  like the king case where we have single two single family homes it's a basement apartment so you don't think somebody down in your basement apartment except the other tenant there was only two tenants in the basement in this apartment complex and i think that distinguishes is the only other thing is if the landlord had allowed the law enforcement in i think that would be that that would be a distinguishing factor but we don't have that jar entrance way to a hallway in a in an apartment building that a hallway there was no reasonable expectation of privacy in the hallway am i reading that case the wrong way i mean that seems to be factors and dillard to ultimately the they knocked on the door of the apartment and they got consent to enter and yes they were both open but st of all again that was i believe a multi unit apartment complex versus six units and the law enforcement i believe if i'm not mistaken saw also saw where the person was going other words they were their own eyes could see what was going on they didn't plan a camera and then go to a magistrate and a open door i'm in the building this is what i saw i think that's what dillard says and that's not what happened in trite so that's how i would distinguish dillard and i know magistrate in the affidavit did not disclose that hey you know this is why they disclose that we did surveillance and saw a trice coming in and out apartment b five but they failed to tell the judge that they did it through coverts event surveillance and i don't think that's the type of case when when the good faith exception is in mine to deter on lawful police conduct i think you should tell a judge hey this is how i found out this is the correct department and he should be honest to the judge when getting your warrant and prior prior to the covert surveillance they didn't know where he tries which apartment he's in they saw him coming and going from the apartment complex but they didn't know it so to mr fox's point if you excise the improper stuff from the warrant you don't have probable cause you don't get that didn't they know the within the posse act that was registered to this particular apartment and they knew that it was a pontiac registered to a crib donda mcfarren a trite but they didn't tie him to her that's the important distinction is they never tied him to that  again if you excise the improper covert surveillance and going into the apartment improperly they don't have probable cause and that's why all the evidence should have been suppressed unless the  building and there is no barriers that access that call common hallway and there was not here then it's a public space and it can't be resolved with the notion that this is somehow curtilage my opponent even just conceded in his argument one of the judges here asked is the entire home way curtilage and he said no well at what point do you draw the line for curtilage here this isn't some subjective drawing it's what society determines to be objective leave reasonable based on the characteristics of what it is that was intruded upon and here again under dillard it was a common hallway to an apartment building was six units other to put or what would have would have would allow some detector like sight of the fact that he would be put on the wall was there any questioning of the property manager about that particular no there was no questioning based on my recollection and recent reading in the transcript that there was questioning about that kind of drama or was simply within the context of trespassers and lawyers and in response to that the property manager said well if we got a call from one of our residents that there was a lawyer in the hallway we would call the authorities this this idea that there is there is trespassing here and that the police would need some invitation to to  enter this area i think misses the mark in gone for example in one thousand nine hundred and eighty seven supreme court case where the police were found to effectively go on to private property not being within curtilage it was a ranch area but it was to look inside a barn where there was illegal drug manufacturing going on there was no discussion of trespass there because it was the open fields doctrine and i don't think you can square the notion that this public hallway is is is which has no preclusion the access is something less than what would amount to a sidewalk in suburbia and for that reason i don't think this case  nobody has a reasonable expectation of privacy and hidden cameras facing their apartment doors that that would be fine i think if it space that that is visible  by it is it is fair game now i understand the court is is concerned about long term warrantless surveillance and that's justifiable but one of the things the site is now facing which wasn't it isn't here in this case but what is going to be something i'm sure the courts will have to grapple with is the explosion of bring cameras on people's front doorsteps i think is bring cameras become more and more widely used is available where they have a a camera appearing out from from a front door step into a neighborhood a lot of surveillance is being obtained through that and it's not necessarily would have had access to as a police officer or any other member of the public then this is effectively a pull camera and the court's holding in houston talks about the mere possibility that bannon may have stood there for five to six hours not the practicability of him doing so and i think when technology is used reasonably as it was in this circumstance in a public area to see something that your average the camera could actually peer inside the apartment and contrary to my opponent's assertions the district court found that there was absolutely nothing that it could really see or discern inside the apartment so back back to the question about whether this was posted on curtilage i maintain that it was not in preparation for this argument and the appeal brief search the case law to determine whether there's been a court  have willfully he omitted the issue that he was doing covert surveillance here i submit your honor that that is not an issue for this panel because it was not raised in the district court  enforcement does not and is not required to disclose all of their tactics in affidavits which then become a publicly available because it would undermine their their ability to to investigate all their wives i do if investigative tactics are available to law enforcement there's based on binding appellate precedent and the use of a pull camera is under houston and the entry into a common apartment building is under dillard then law enforcement officers should go and use those techniques to do their job and that's what banning gates here the touchstone of the th amendment is reasonable and here this was a camera that was motion activated so it wasn't even continuously streaming it only triggered when there was motion around  camera it was only on for five to six hours that type of surveillance is far less than what this court has previously approved in houston what it recently approved in terms of a twenty three dollars day surveillance on a p ask you a question about that if you if you if you know the concurrence justice alito concurrence and jones and he said there that reasonable expectation of privacy might differentiate between here or would you say that it's just an appropriate and monitoring for months would be fine and if i'm understanding your question correctly your honor you're asking would monitoring for months in the confines of a hall way of an apartment building be ok is that your question yes i believe under this court's precedent as currently written it would now would the court have concerns about that would society have concerns about that i concede it absolutely would and perhaps there would be a case in the future where that type of surveillance occurs and it becomes right for this court to consider  district court below is even concerned about that section four of the opinion order referenced the future but again what officer beynon did here was reasonable based on the fact that it was a motion activated  was not a fishing expedition which again was also a basis for this court to uphold a search on a good face and are decided in my brief and united states v mohammad and it was very very confined and very voluntarily given to officers i have little doubt that at some point in the future appellate courts will probably have to grapple with some type of scenario like that but the poll cameron houston was was ten weeks long  you can at least based on the characteristics of trite his apartment building which is affectively just an open hallway the hartman door is coming off each area you can isn't the government's position that there can never be any cartilage in an apartment building no that is not the government's position the government's position it is his found no case law asserting off that area from public passers by how close it is to the home and what the uses are of it and here there is simply no indication that mr trice would be using the area immediately outside his front door for anything other than to enter and exit and i'd further submit that the mere act of entering an exit in a resident is not something that's typically a private impair and therefore not something that the  burban neighborhoods are open and conspicuous so why wouldn't we have apply the same rule to the front door of an apartment building that flies to the front door of the home and i was in response to that your honor i think the supreme court's issue in hardiness with is that the police were going to that front porch to use a drug sniffing dog to find out something that was going on inside the home which is actually constitutionally protected by the  amendment hartings did not or jelly beans did not deal with the issue of someone entering her accident on their door which could be viewed invisible by any any any passer by at all and and  that's effectively the same as to what the search amounted to here if you would even call it a search it was simply the issue of whether mr trice is going in or out of that apartment there was nothing else going from that surveillance as i think this court will find by the district court's opinion and i would respectfully request that the court deny this based on dillard in houston but even if the court were to find this to be an unconstitutional search that this was first of all thank your honour's to to say that mr paulson said multiple times this is all visible to the public that's not true this was the hallway in the basement of an apartment building nobody walking the camera the court can see its focus right on the door if that's not curtilage then i guess nobody has curtilage and i think that the troubling thing the troubling precedent out of this case if this affirms the district court the district court that the common unlocked hallway in a low rent apartment building does not carry the same level of protection as the doorstep in suburbia now that's that's  incredible president i mean we are portioning privacy rights based on race and socioeconomic status when we do something like this we know if this camera was trained on a front door suburbia i think the district court would have even said this wouldn't have been a proper search and so that's just wrong then that again i distinguished dillard and the other cases you don't need to overrule dillard i know this court can anyway i'm not asking that something this is different when you post to surreptitiously post a camera trained on colonel edge of somebodies apartment that's not that that does violate the th amendment i know it's an apartment it's a little different than a home but it doesn't mean you give up all your rights to privacy that apartment was raheem trice his expectation in the basement apartment reasonable that nobody be training to serve a camera on him and videotaping him and hearing what he was saying yes  he did capture maybe didn't capture drugs or guns or anything like that but you can see inside his apartment even for a brief minute again in suburbia district court says that's wrong low rent apartment building everything's