there was a legal or the court wrongly held that consent cannot justify a search that has an administrative purpose this was conscious contrary to well established authority because a bad legal air it didn't it did not make a factual determination as to whether defendant actually consented in this case and yet in records there was one clear the court says it's unclear but if if a reading of that entire paragraph and consent feels that really the court was talking was making a legal determination the court in regard to the administrative justification of the search makes numerous factual findings and it's clear it's making factual findings and if you look at the consent portion of your order it's clear that there is no factual finding there it says consent is a clear and it falls out with a discussion of the law of rai the court believes that consent cannot justify an industry search so even though the court did determine consent was unclear that was not a factual determination there's no discussion of the test the testimony of the hearing there's no discussion of painting else in the record we did discuss if you said it was the and in another part of its order to say that testimony but in the in the consents analysis we're finding it makes that determination that consent is not applicable it does not reference that testimony i think if the court concluded that the search was really a pretext for a criminal investigation ok it doesn't matter about consent or doesn't it doesn't matter  well they can sense the right because even if it was a pretextual shirts invalid for whatever purpose if it was for a criminal investigation then the a causation of defendant consent back that course is him into consenting or otherwise convinces him to let them into his business to make this search then in that context a misrepresentation or i suppose a pretext would be part of the consents announces here with the record shows is that before the investigators made their claim of any claim of authority to search investigator player who's in chicago gets on the phone testifies that he outlines the the search that they want to conduct and after hearing word that there's so much that investigators want to conduct in the business defendant says ok and granted that does not sound like a lot that's defended just saying ok but if you compare that to other cases it's actually more than we have in some other cases for example in people if you henderson which we cite in our brief that's a case from our state supreme court in that case police officers were armed in uniforms with a badge right at the house of the suspect they're searching for the suspects mother answers the door she says her son is home she points to rome the officers go away and they locate suspect inside and that was sufficient for consent according to question is just whether investigators a reasonable person in the shoes of these investigators would believe that then defendant authorize their consent and then we look at things like origin was that consent voluntary and that's where pretext can play a role i will let's assume for our this even if it was a pretext and this was just a criminal investigation dressed up as a mystery as the nation even if it had a criminal purpose and these investigators were acting as criminal agents and we dispute all of that as of course you do even if they were the question is still the same one whether a reasonable person in these investigator shoes believe that defending voluntarily consented to the search reading the purpose of the search whatever the target of the search whatever the investigators  you really can't be consenting well if they had misstated what they were looking for where if it they had a probably misstated their purpose of baird's if they had said to him before he consented we're here for a purely administrative purpose to to see if you're  well it's your burden to show that it's that it's consensual well here's what we have i think are a couple of answers first we have cases where nonverbal conduct is sufficient so ok so at least over we don't need to determine valid ministry of search nor must we consider the argument the state's argument on the issue of consent because under people versus doherty misrepresenting the criminal purpose of the search this  with that i do i take issue not as a principle but i take issue with its application in this case because it was not that misrepresentation at caused tending to consent if there was a song we have to look at the time line here if any consent f judge burns found that that this was really just a ruse to help the criminal investigation there's your misrepresentation that voids the can some bad i guess are separate sound a couple questions first is rather he was trial judge clearly if this was a pretext for the investigation did he not that was just answer so how do you get over that manifest weight or those were based on their will terminations who these people were who they work for what they were doing how do you get past the manifest weight those crash will findings went to a different question of the trial court was addressing the trial court was asking if this if the people are saying that this search was justified by the statutory statutory authority which brings us into that in minnesota search exception to the war acquirement these are the factual findings that negate any administrative authority these investigators hack because there position no second when regarded as the center prefer regarding those findings as it comes to pretext the findings themselves are subject to this high standard of review but the legal conclusion that those add up there being a lot of communication between this private investigator and this group of private investigators that's contracted with the federal government and the f b i and there is a lot of communication but that doesn't add up to a criminal pretext in fact that these agents were working on behalf of the f b i there's no there's affirmative uncontroverted testimony from both of those investigators he testified that they were not working at the direction of the f b i no one in the f b i told them what to look for and that's in their own understanding that everything that they found was going to be shared with young and in fact wasn't that the case didn't they have daily briefings telling the f b i what we found today i mean what's the difference between between the i walking in there or this private company walking in there and then reporting to the f b i every night well i believe the testimony was that if they uncovered anything of a criminal nature they would share with us that that's that's different than testifying at the f b i was telling directed them that we have this target of our investigation we need to get in there we don't want to get a warrant or can't get a warrant so what we're going to do send you in there i want you to find these files that support criminal charges and then bring them to a private investigator saying i'll share anything i find that suggested criminal activity with you doesn't mean that there is that this was a pretext for the criminal search this is just one of them to see their old documents trusts all internal documents medicare regulations so today and they're going to verify whether that's true or not but testimony at the hearing from both investigators again was that the purpose was just to ensure that this whomping was complying with the provisions of their medicare contract miss raymond why don't we go further and consider the issue of consent if this was simply a pretext you had not your honor but why not the reason there's a couple reasons  argument on consent is that dr we was asked to consent to this audit and that was consenting to an audit not consenting to a criminal investigation so we still are in the same problem which is if you're using an administrative scheme to search for criminal evidence you can't do that that's what people versus madison says that's also what united states versus berger cites that they call it a fundamental principle in the law ministry searches that you cannot use that was only to do the administrative audit and the true purpose was to search for criminal evidence that was judge barnes finding based on ten specific findings of fact but can't you have consent to work an unlawful search bustamante the law presume that when this stated purpose is really something other than what it is that you really hit send is it is it your position well claim to lawful authority and in fact in the biz well in the bumper cases that law developed to avoid exactly what's going on here which is when the government goes in and claims to have legal authority to conduct the search and then later turns out that lawful authority is not lawful the government tries to go back and say yeah but they let us in they let us conduct a search and what the united states supreme court held in bumper and biz well is that that's no good once you make a claim of lawful with the pretext the issue a pretext i believe is determinative and that is because whether dr lee consented to the search like the claim state claims or whether there was a claim of lawful authority as we believe the record suggests it was only to conduct an administrative search and under united states versus berger says we knew our first burger and the people versus madison which is an illinois supreme court case you may not use an administrative search to search for criminal evidence and judge burns found as a matter of fact that was the purpose of the search so that whether it was by consent whether it was by a claim of waffle authority if it was pretext al it is unconstitutional and the up and should be suppressed i can also i would also like to point out we believe back takes care of whole issue but on the issue of consent of the state point is only put into the record in chicago and the amount prospect of her testify the first thing he did is introduce himself to dr lee and to hand him a copy of the audit letter and that's the letter that says we will be conducting an audit we will be looking at the stock you will be doing we had a copy of that letter when some time after the chicago auditor arrived he called dr levy and we know that because of the testimony that it was deliberately a simultaneous arrival in addition if you look at the testimony office manager that's notifying that's not asking permission he was no to find him of the legal authority he auditor in mount prospect yes the u k is that indicates something it indicates that the auditors were asserting their legal right they had the waffle right to search dr lee's offices they weren't asking for permission and that's how you get into the biz long bumper line of cases that's what makes it once you show what you claim to  whatever sanctions going to result as a real maybe obstruction of justice or what have you know that's the or loss of your medicare license or whatever by failing to get out of the way as lily saying saying ok is just not interfering isn't their right that's right and they say it's a mistake it would clear based on the behavior of that but that's not what's what's going on here here you have been going in and making a show to have the authority to hand dr lee the letter they flash their medicare badge his very signed a contract with medicare saying that he has to follow the medicare rules so here it's very different that pattern because there's a claim to have a legal authority to search and that's that's what makes it like the bumper case the north carolina vs bumper case where they go to the door and they say just very briefly just a couple points i think the dispute here really isn't about the law i think we agree that if the target of the search really acquiescence to a search that's an end and started actually voluntarily poor testifies the for the first thing we know that happens is that where walks into the chicago office talks the office manager hands over this letter outlining the search going and gets on the phone with the defendant has that conversation which we've already detail we know that investigators amount prospects also arrive they also show this later letter to defend if there's nothing record suggesting defendant had read this letter had this letter in his hand at the time he has this conversation port so yes it's true that if these investigators made a claim of lawful authority to come in and make this search i doubt negate any consent but that's not the case we have here that's not what the record shows and that's really the dispute a get on to in addition to the conversation the telephone are safe and we can look at the rest of the circumstances henderson says it's relevant to look at whether or not the defendant were the target of the search objects a search and here we don't have that yes it's true if a bunch of  police officers arrive at a location and they're armed and when they come knocking on a door and they say we're coming in they defended probably wouldn't feel comfortable to object but i think it's good to contrast the circumstances here with those in henderson our case w consent to search these are investigators who are unarmed they're wearing laminated id cards and i badges they specifically testified both investigators that didn't make any threats it didn't use any other language that caused defendant to be fearful and then defend it not only consents and that's obviously a dispute but he does everything you'd expect some of it to with voluntarily consent he doesn't just comply he gives them a room investigators room to work  purpose of the search that that search is purely administrative when it's actually criminal that search is ok but it's our position that's not what happened here defendants are always free to consent they do it all the time and sometimes with bad reason sometimes and they don't understand the law or the consequences of their city our courts have said that consent in whatever the reason whatever the purpose in fact investigators don't even need us or officers don't when in in terms of when the government is justifying search based on the administrative search exception the government says we have statutes that authorize the search they're compliant with berger they're compliant with the warrant requirement and they're question otherwise valid ministries search we don't we don't look at the subjective intent but we have the investigators and they can talk to the ministry of search now if their primary purpose if it's truly rube's if it's true the f b i trying to use this and