good morning your honor and may it please the court my name is nova chance and i'm very pleased to be representing the appellant's case again mr cannon sanders today i'd like to focus my argument on why the community care taking exception we had an unstable situation there was obviously emotional people there we had somebody up stairs who we don't know who that person is we don't know if there are any injuries we don't know what's going on upstairs we don't know what's going on in the house with the emotions that are going on we've got to make sure everybody is ok that is what officer tom prager testified at the suppression hearing as to why he and officer cross thought it permissible to enter mr sanders home without a warrant less than a minute after they arrived in the scene in response to a domestic disturbance call now what's notable is what officer praeger didn't say he didn't say we went in and because we had a report of an assault in progress we went and because someone was screaming in pain and side we went in because we had reports of an altercation involving a gun we went in because we've dealt with mr sanders before and we knew he was a violent and unpredictable guy he didn't say any of those things and in fact he couldn't say any of those things because if we look at the objective the objective lee available evidence that was available to the police at the moment that they entered mr sanders house shares with a nail grandma had called nine hundred and eleven to report that her granddaughter had called and was crying and said mom and dad are fighting really bad she asked police i don't know what's going on there i don't know if there's guns in the house i don't know she was upset could you just go over and make sure check and see that everything's ok said there's three children of the house eleven thousand and one when police arrived they can see there's a child probably the eleven year old and upstairs window flailing their arms are acting excited they knock on the door she answers the door she has obviously been crying and we can see that in the video she has some minor scratches there not bleeding on her face and her neck police asked of everything ok she says yes everything's fine we are all fine officer say can we come and she says now they say your daughter called earth she says don't tell him they called you at this point there's no indication those officers have any interest in going to the house they say we need to talk to him we haven't even talked about me and to this point we need to talk to him immensely francoise looks at the officers and she's well i don't want you to go in i'll go and have him come out and the officer say ok that's fine the only thing that narrative that you just laid out yet that that that the we make our determination all right so we have a nine hundred and eleven call report a possible violence a report of a child potentially in a in that situation a woman who victim arguably who comes out with a red marks on her on her throat for an indication but don't tell don't tell the guy who may be did this that you're here that the child reported isn't there i mean it's a reasonable belief is a pretty low barrier wouldn't you agree and i understand if you need probable cause here and might be a different story but reasonable belief it seems to me like you're raising the barrier here for what the officers had no i respectfully disagree your honor reasonable if it's absolutely a lower standard than probable cause there's no question about that but in order to establish this community caretaking function applies we need the th ic an articulable facts demonstrating that at the moment police made entry into the residen trained inexperienced police officer would reasonably believe based on the tally of the circumstances that there is no time to wait for a warrant because an emergency currently exists inside the resident that requires the officers to make immediate entry so absolutely reasonable belief is a lower standard we can't ignore these additional components of what's required to overcome someone's incredibly important th amendment right to be free from governmental intrusion particularly at the threshold of the home which of course the supreme court has told us multiple times is the very core of the th amendment protections and at the end of the day we also have to keep in mind that the that's a rerun short here the government's really trying to hang its hat in this case and i think that the district court in the magistrate judge that did the our in our you know i understand police have a very difficult job and i do not dispute for a moment you know the common sense and practical experience tells us the police need to be on earth in domestic situations there's a lot to think about there's a lot going on situations happen quickly but the th amendment exceptions don't turn simply on generalities the police can possibly think about any given situation i mean any time a police gets called to a domestic disturbance and i would just like to clarify for a moment graham i didn't say anything about violence occurring she said that granddaughter said mom and dad were fighting real bad now based on training and experience was reasonable when officers opened the door they've heard that the people inside the house were fighting they see it from scratches they think kareena francoise is crying and you know she says don't tell him that we thought that she told you that she's the one that cult you know certainly i think in that context that that what the district court found that they had a reasonable suspicion that there was some sort of assault that may have occurred that certainly francoise may have been assaulted by her boyfriend in the house but that is not detached for them to then enter the house a reasonable suspicion that she's been assaulted is not the same thing as a reasonable suspicion if in find out how they're currently exist and emergency that requires us to ignore your th amendment d where there was a report of domestic violence situation the woman had actually told police i think this individual is the one that had assaulted me when police arrived on the scene of the brother's house i believe it's where the  have suspected that she had in fact been assaulted just prior to their arrival and they might have suspected that the person inside was the person that did it they knew there were children in there but i think it really is essentially the same thing as the smith versus kansas city case but in that case the court so that there were no facts indicating a threat to the child or the woman here is seems to be the we do have facts well i think we have facts indicating that possibly corrina had been assaulted it's a reasonable  you know don't tell the guy that the child reported this isn't there a reasonable inference there that the reason you don't want the child identified is because there may be some harm that comes of the child as a result of that well i a conclusion that there was currently an emergency situation i think we just really wish more do what you're talking about though we have grandma saying my granddaughter called she's reported there's a fight it's really bad i really couldn't understand her very well could she was very upset i don't know if there are weapons or not weapons there and now what you've got is this statement that goes don't tell them and then you open the door and you hear crying of a child you don't know which child is crying you don't know why the child is crying what you do know is that there is some evidence that something has happened that is physical in nature there's evidence that that that kareena is is very u hold on wait a minute we need to do something else and doesn't that i mean that sounds both reasonable and articulable to me you know you say that there's no articulable reason there and it's not reasonable why is it not reasonable that point to say we need further you know there isn't a i thought that line police were called to domestic disturbances all the time i mean i suspect i'm not a police officer i suspect it's one of the most common things that they respond to if every time they show up and they suspect that an assault has occurred and there happens to be a child crying inside they're allowed to just go ahead and go right in well that is not the facts the facts are there's a fight it's really bad i don't know if it's physical or verbal i couldn't understand my granddaughter very well i'm not sure there are guns or weapons that's a different story right i mean you know because you have an independent report right michel have filtered through a couple people and you know  don't get that many phone calls on nine hundred and eleven from the children reporting mom and dad are fighting i mean it just just been it happens but it's not the about the most common way that the officers are called i mean that they would have some heightened awareness as opposed to just this is a domestic we're we've been called to no question you're on it certainly i think it's reasonable for them to have a heightened awareness but at the end of the day we still have this ultimate task what did they know about what was going on in the house and was what they knew sufficiently compounding to overcome that th amendment interest you know i don't think that there was a great deal of information available to the officers other than as the government argued there was a situation the magistrate someone could have been in danger the district court judge said there was reason to think the child may have been at risk and i would just comment in relation to comment of don't tell him that we said that mr sanders with inside the house he didn't hear the comment he was not in a position where all of a sudden it's a child called i'm going to run upstairs and choke or that simply wasn't a possibility because mr sanders was inside the house with the children in the residence we know that when police arrived the child up stairs is crying and flailing a raving to law enforcement additionally what hasn't been discussed this morning is the officer notes governments exhibit number one after crosses st body cam at approximately one hundred and fifteen once he's in the residence notes i heard yelling when i was here so in addition when he arrives on scene it appears that he here's yelling prior to  again we had the yelling the adult female comes out she's clearly upset she has injuries that are obvious and around horsemen are able to see when the doors opened they can hear crying coming from what sounds like downstairs opposing counsel argued that essentially and that the victim when she shuts the door had permission from law enforcement to do that and if they had given her that permission the video shows that the victim doesn't can't you're not allowed in the house they still would have to speak to the defendant and she says well i'll tell them to come to the door she doesn't say that she's going to go in she doesn't say that she's going to close the door you can tell been reviewing the video it appears that the law enforcement officers are somewhat surprised by the fact she goes into the door and then pulls it shut and mediately begin their discussion at that time discussing the fact that there was a crying child upstairs that they have concerns and then make the immediate  where that in these sort of situations domestic victims frequently minimize that their time and i think happened despite the fact that things have occurred and so the fact that the victim says we're ok we're fine  it's something that law enforcement couldn't necessarily count on because in these situations what was suspected and ultimately turned out to be true the victims and the situations downplay the situation in particular while the perpetrators are still on scene and in their presence so based on out of these factors submit that law enforcement had more than reasonable cause to go in the residence and find out what was to interfere with their interaction with her and as soon as they are able to speak to the young female that's up stairs they learn almost immediately that there was a gun involved in this incident at that moment w upstairs that the gun is potentially in a cabinet downstairs but after that goes downstairs the defendant as patted down to make sure he doesn't have the weapon and then the search is limited to the cabinet around the same victim at this point it's additionally concerning that both the victim and the defendant the two adults in the residence have both indicated they do not know where this firearm is both acknowledge there is a firearm in the residence but neither one of them is willing to tell unfortunately where the firearm is so based on the circumstances we had three children on scene no adults the knew the location they had other factors that led them to be inside the residence none of which had been dispelled and shows how dangerous the situation was that they unknowingly quite this individual next to the firearm so based on that we believe that up until and past the moment of the discovery of a firearm well unfortunately both justified to be with the child the female and i think ultimately after the defendant's arrest that this was indeed his residence but you could say this is not my house you could still be residing there could be a true at some point or points during that this he waive his standing in this case around as we have before you questions regarding the defendant sentence we would argue that based on the defendant's recordings with his victim indicating that the statements were interviews need to go away supports the finding of the district court that there was indeed obstruction in this case based on the finding absence of struction acceptance was properly denied in this case as noted by the just report the defendant up and through sentencing continued should be affirmed absent any questions from the court i would concede the rest of my time are certainly not by any stretch of the imagination contending that the officers had to just up and leave this scene i mean the question is what was reasonable what would a reasonably trained officer do in this circumstance and what we're looking at the totality of the circumstances you know we have these things that the officers did know we have a suspicion even a reasonable suspicion that ms they francoise has been assaulted that doesn't necessarily lead to a conclusion that the children are in any sort of danger in the house people fight all the time and never lay a finger on their children certainly doesn't give rise to a conclusion those children during emergencies urgent compelling danger right now that we need to go inside that house to protect them but you know when we're looking at the totality of the circumstances it's not just what did they know that supports going and we have to look at the entire scene we also have to look at what they didn't now they didn't know there was a gun there was no information indicating that there was they didn't know that a physical assault had in fact actually occurred no reports of past domestic violence incidents at this particular address they didn't see any blood there was no indication of exactly how fresh those wounds were they certainly weren't actively bleeding at the time we're all fine we're all fine that counts for something now certainly they could think that she's a domestic violence victim and she's diminishing what might have happened but does that automatically mean well gosh we get to run right in and make everybody is ok you know the government has conceded that a crying child alone is not enough but where do we draw that line and i think that's ultimately the question that we have to ask here if we apply the caretaker exception