may please the court my name is jared cause it went on behalf of the appellant daniel martinez a requesting to reserve five minutes of my time for rebuttal mr martinez appeals from the denial of his post trial motions for judgment as a matter of law and for a new trial under rule fifty nine limits on the fourth amendment on police authority under the fourth amendment must be respected and the reason that they exist and what they're designed to do is to prevent interference with the liberty interest of innocent people they're designed to protect the privacy interests of people who don't want to be bothered by the government and when they are not respected what happens is the police invade the privacy interests of the wrong people they arrest the wrong people they search the wrong areas and the wrong people get prosecuted that is what happened in this case officer webber arrested the wrong person in the wrong place under circumstances that they disputed in the trial believe it or not at one time this case was extreme of survivor claimed that ten to fifteen police officers were inside of daniel martinez his house and he entered to join a hot pursuit in progress during the discovery phase unfortunately perhaps whoever of the defense realized that the building which officer weber entered was in fact two units and that all of the officers who claimed to have entered that building  other unit at trial the defense began to shift their defenses and they offered multiple justifications for the entry they offered multiple justifications for mr martinez a seizure all in a desperate effort to avoid what was obvious there wasn't ten to fifteen officers inside the home when officer letter of an officer webber entered it in fact by the time that officer webber entered which was established trial all of the officers inside that building had left the building facts parker says to him let's go get these yards over here because that's what it's where they thought the suspect was hiding and in fact the suspect had run in and out of the other unit jumped a fence and hid in the garbage can  o instead of a trial the defense tried to present a defense that officer webber entered the wrong house by mistake he didn't realize which house he was going in to even though the proper address was given over the radio numerous times you just didn't hear it and it was just a big accident the problem with that defense is that it isn't based on the facts that were known to officer weber or what he claims he knew what he claims he knew was that he saw ten to fifteen officers who were in hot pursuit inside the unit he enter so whether or not the building and we conceded for the purposes of appeal that it is impossible to tell that the building contains two units it looks like one from the outside it doesn't matter because when we evaluate under the objective standard for probable cause whether it existed we look at what facts the officer claims he knew and if he knew that there were ten to fifteen officers inside that house and calm pursuit this search was justified no question about it  unfortunately that did not become the trial and it was not what was about and that defense was effectively abandoned at the trial and it was not argued in closing argument there were no corroborating officers who came to officer weber's defense in fact at one point officer webber asked during the trial why would i find any officers to corroborate my story indeed he could not because there were none and even the officer who he tried to claim was there officer knew him yes says he was not inside the unit that officer whatever search when you read the brief of the appellant it becomes clear that their argument in favor of probable cause is not really an argument in favor of probable cause it is nothing but a thinly veiled confession of probable cause to not exist and the reason is because i got page nineteen of their brief they talk about how officer webber could enter the house by mistake because of the layout of the backyard problem is officer webber had never in his life been in that backyard he had no idea what it looked like those were not facts available to him he did not know he speculated certainly as as pitch twenty high like that some time suspects double that so it was ok to enter that house because what if the guy had double back problem is there's no evidence in the record that the suspect double back and in fact the suspect did he was seen running out of the back door of the home and although he wasn't seen they believe he jumped the fence and in fact that's where they found it  speculation cannot form the basis of probable cause just because it's possible that a suspect might do something doesn't mean that officers are entitled to go inside someone's house so then again not page twenty four of the defense argues he had been seen exiting the rear of the building but sometimes they went they double back so officer webber went in anyways but to get up to other has no knowledge of what transpired behind the home and he cannot use that to support an argument for probable cause and that is why the judge in this case issued erroneous during structures to the jury on the accident circumstances i'm supplying a very long very detailed instruction on all of the defense theories of can see in this case including mistake and escape  both of which were improperly given that created a lot of confusion in the trial it was extremely prejudicial because it wasn't the prima facia case that officer webber had offered pretrial and the  district court ought to have granted judgment to mr martinez as a matter of law because there was no evidence of ten to fifteen officers inside the home when officer went off or during the trial and even if that's not the case the manifest weight of the evidence given the defense's own presentation was that there dahl where it's a novel theory you're obstructing me because you're keeping me away from my other job never heard that theory before which particular jury instruction was that with regard to was it the ones you just mentioned no the edge and construction was not that would be the probable cause instruction in the malicious prosecution instructions that you're referring to there was no instruction actually given as to whether that was a valid theory or the defense was actually just allowed to argue that when an officer radios for help that any officer who responds to the victim of obstruction which is completely insane an officer who radios for assistance and then takes it off another officer away from his job to come aid you remember the circumstance here is that mr martinez is confronted by a police officer in his living room by himself an officer who he is at present suing for civil rights violations at the same home and he tells him to get out of his house and argues with him about his authority to be there at which point officer weather radios for help and based on that radio call the defense is arguing and presented to the jury argument that that the sufficient for probable cause for obstruction of justice which of course is ludicrous there is no authority for even if it were true she said that ten to fifteen officers were inside this home an officer weapon or as he testified and admits when daniel enters no other officers are inside the home he's there by himself armed with a very limited amount of information and if you continue to occupy the home after the small house had been searched room to room and was standing in the main area of the house find self that would be  unlawful because any probable cause that may have existed to believe that the suspect was in the house at that point had dissipated and was over and that is why the officers had having seen him run through the back door were searching the yards and establishing a two block  r and then finally finally but next you get to the problem of the actual stop and arrest of daniel martinez in the first place officer webber conceived in his testimony that he asks daniel what's your name and danny says daniel martinez and then he tells daniel to put his hands behind his back in his own home and you could see that he was only doing that because he wanted off for noon yes to have a chance to calm and see if you could identify daniel at the suspect they were looking for don't and on that point the defense again shifted to trial because of how they got caught during discovery they said but we did have probable cause he was a long haired hispanic it doesn't matter that he had a red shirt that of a gra suggesting that they could have a rasta and conducted a full blown arrived at any person within there to block perimeter we have long hair that's a cert they couldn't do that the only thing that officer weber could have done while he was in that house was stop daniel and try to see if he was the that officer noon yes and cells are searching for he had no way to do anything else because his defense of arresting the wrong person is that he didn't hear any of the conflicting information come over the radio that would have conflicted with his probable cause determination and again this trial sort of blossomed out of control because of these shifting defenses that were not appropriately presented at the right time in fact the numerous justifications for the arrest  that the only thing consistent about what they presented is that they're trying to abuse what is an ambiguous resisting arrest statute to try to justify what happened they say that even if the search was not justified because of the presence of ten to fifteen officers when he steps away from officer webber after being told to put his hands behind his back not whether concedes that daniel did not know what was going on but that's resisting it he can be arrested but that's not last name as the one at the unit they were looking for and the individual in that house struck the officer battered her with this and attacked the officer with the catch up and the only court of appeal said that that was fine that respect but again it doesn't matter that a book will each do you can it doesn't matter though because at the end of the day officer webb are standing in this man's living room and he's challenging his authority and he's suing this officer for civil rights violations at the time that he's suing a lot of officers who work at his district and in fact all six in the previous incident two thousand and eight is mother his father his uncle his brother and his best friend and himself were all arrested physically abused and four of them are maliciously prosecuted and the city did settle the case sometime after his arrest in this one but so he you know he has the information yes it's the third time that his home has been unlawfully invaded by the police in the last several years and he sees this man standing in his living room and he reacts the way that he thinks he should and i think within the limits of what he's allowed to do i'm pulling away stepping away not cooperating with an officer who's attempting to handcuff him without any explanation as to what is happening or why he's being handcuffed in his own home or any understanding of the circumstances does not make him a criminal and on this point it's important because at some point others are new yes cops and says you got the wrong guy and there's disputed evidence in the r that another officer named mike golic said we'll take him to jail anyways and they did it they took him to jail and they charged him with four inconsistent criminal charges charged with two counts of resisting for pulling away and two counts of obstructing for blocking their access to a room and as was flushed out during the case that doesn't make any sense they could not have been trying to find the right guy and knowing daniel was the wrong one and he was blocking the rakshas to a room at the same time they thought they were arresting the right guy and he was pulling away and he does are inconsistent and they admit it and that's why a trial they were forced to concede that the second obstruction charge was done for different reasons lever says like five different reasons why he charged  obstruction he can't keep his story straight noone has accused me of job assess what charge him with obstruction because i got radioed away from the search i was doing by officer webber that is not you can't say there is not malice or or there's probable cause for a prosecution because what we really meant to charge them with isn't even a criminal act that's not a defense that's an excuse in a desperate effort to avoid liability in a case where it was clearly established that the should have been all these various rationales or justifications that are being offered in the course of the trial those are all that and argued before the jury and the fact that they've shifted the fact that they're different to the fact that they may contradict those all  we did what we did it's a warrantless action by the police and our job is to carry the burden of persuasion and tell the jury why that didn't happen but when they start coming up with all these last minute defenses and our burden to persuade the jury becomes well we've got disprove this defense and disprove that defense disprove this defense and they get all these instructions on all these different areas and they're arguing that if i get radio to away from up from a search i'm doing in an alley i'm obstructed which is not legal it's not a legal basis to charge anyone arrest anyone for anything it becomes very confusing for a jury to wade through all of that and figure out who's supposed to prove what and what are the facts and what am i allowed to find here so that's why we challenge the  court's framework for this under under bogan versus the city of chicago is because they have to do more than just scum up with some defense at some point they have to be required to live with what they said in the first place when they come up with a justification and it is disproving they should lose when it was just proven the ten to fifteen officers were not in the house they should lose they don't get to come up to trial and come throwing out three or four more justifications for the ten or fifteen officers was court in this case the jury heard from numerous witnesses about the role of officer webber and officer shot in the pursuit of a gun offender and the arrest and prosecution of danielle martinez the jury returned a verdict for the defendant on all counts this morning i was playing that the district court properly denied dana martinez motion for judgment as a matter of law and for a new trial on each of these claims each claim is supported by the but who was walking in with him yes no he and his partner arrived his partner went to the to the yards and he went into the building and then wanted and then he went in there for a few minutes and was he was searching from room to room in a residence that he believed was one residence and he said at one time if there were ten to fifteen other officers he did say there were ten to fifteen other officers so did by the way it's not true that that his testimony is highly and corroborated officer shot and said the same thing that there were ten to fifteen officers inside so and the jury heard heard this testimony and heard plaintiff's arguments for why they should deem officer webber not credible that it fell to the jury to decide what the truth was mistaken about whether it was one or two units as if our defense were one or the other it is not one of the other it's all part of the same narrative there were lots of factors that contributed to whether the setting up there were other officers setting up a perimeter to make sure that the offender did not escape there were other officers in in the building when this is a fast moving event of course so this all takes place within a matter of minutes the ten or fifteen all right well there were more probably more than ten or fifteen officers are told not to form the perimeter but yes he testified he saw ten to fifteen officers i think officer chavez says he says five to fifteen  sees on the inside and that's in the transcript at three sixteen he knows that he start searching room to room and he hears over the radio a female officer saying coming back in through the back and that's close and that's really close in time to when he encounters in martinez so for purposes of the unlawful entry and search claim the jury heard testimony it isn't true that this was a bandit a trial the jury heard testimony that he saw officers inside the talman entrance and also her testimony that he believed this residence was the same one that the offender had really run things had already run through and that was significant that he made he believe this was somehow hypos and counsel thinks that this evidence now whether or not they resist mistake about the residential units is is irrelevant and challenges the jury instruction about mistake which was reasonable but mistaken factual judgments by police do not invalidate otherwise reasonable searches this this instruction was important and it's certainly it's mystifying to me how my opposing counsel thinks it's  irrelevant the very first sentence in the plaintiff's opening statement was the police arrested the wrong person in the wrong house and that was a running theme theme throughout trial it was highly relevant to the officers defense to explain why it was reasonable for officer webber to go into daniel martinez residence to explain why he believed he he reasonably believed he had a gun and shoot the right one and so the jury heard lots of testimony about this on the plane decide they were the were he talked a lot about the address over one door versus the address number over another door officer webber said he didn't he wasn't paying attention he showed up it looked like one house the jury saw a picture of that house in the record at our two eighty nine common design common here said he didn't go in the backyard but the fact of the matter is he parked several houses beyond the house you can see that on the dash cam and he's walking back to the house so he can have a concept of this common backyard and common garage the dispatcher is telling him the information that she's getting at the time which is a description which includes he's a male he's a spanish he gray shirt blue jeans ponytail and is re that information as these events are unfolding visually the officers post to make this really decide what he's supposed to do one of his old movie first drives when he first arrives he is going to the house about the need and that's when the discussion with regard to not discuss the argument about get out here and the resisting place a few minutes after that he got out of the car around three fifty and  home because you have reasonable or probable cause that somebody has committed a crime is in there you have exigent circumstances once you are in there the only case he relies on for not being able people versus where where the issue there was whether whether an officer can enter and search for the purpose of an investigatory stop and here the issue is not whether or not whether in entered in search for the purpose of an investigatory stop the purpose was to search for and apprehend a fleeing offender for whom there was probable cause to believe had committed a crime and so when he when he runs into daniel martinez he actually does have probable cause to believe daniel martinez has committed a crime and the detention is justified on that basis he is he is in the place he's in the building where the offender is last known to have been seen and he fits key aspects of the description he's male he's hispanic his he's wearing his hair in braids or ponytail he's in blue jeans officer webber asked his name and he says daniel martinez webber remember the name martinez having come over the radio and he's in the place a it's a rubber reasonably believed to be the residence where the gun offender had last been seen and then you martinez is behaving like someone who is still fleet yelling obscenities and heading to the door he's reaching for the door even daniel martina's acknowledges that was loose going to that time frame or that you said three fifty three fifty four it's in that timeframe probably close to the end of that time frame how and turning to the obstruction charge obstructs the jury was instructed on the statute pertaining to obstruction which is a person who knowingly or is resists or obstructs the performance of one by one known to be the person to be a peace officer of any unauthorized act within his official capacity and obstruction includes any conduct that of facts that the effect of which impedes or was arrested the officer officer webber had probable cause for three different crimes for the gun offense which i discussed before based on the key aspects of the description that daniel martinez in the location of his behavior resisting a peace officer that's the pulling away and the flailing that's a sort of a classic example of resisting and obstructing a peace officer as i just explained now in terms on the refusal to comply with an order that takes way it takes an officer away from his police work we cite several examples on page thirty seven of our brief refusing to comply with an order to disperse for example  obstruction refusing to comply with an order to get back in the car with obstruction refusing to comply with an order to leave a traffic scene was obstruction and we submit that refusing to comply with an order to put your hands behind your back it's in the same  n and with respect to the malicious prosecution claim again and we submit that there is ample evidence from which the jury could conclude that the officers had probable cause to prosecute  daniel martinez for resisting arrest and obstructing for centrally based on the same evidence that supported his arrest for the that and also  also the evidence supported the jury the jury's conclusion that the officers lacked malice in pursuing the charges with respect to the errors in the criminal complaint that my  mention here about in the written criminal complaint there were words to the effect of that daniel martinez interference included blocking access to a room rather than my taking the two officers away for the suspect that was still at large the jury heard all this heard the you know that saw the demeanor of the witnesses and the criminal written charges were of course not the only evidence of probable cause to prosecute for in the record there there is a lot of communication over the radio tapes that are record and the jury heard all of that and knew officer new nose was nearby it would have been easy to bring him around and make that determination so that's what he intended to do and that would be sufficient and as i said i don't the case is that my posing counsel relies on i mean a court that's the very reason he went into the building was to find out find the offender if he has what he looks like him and there's reasonable suspicion of course he has he's reasonable he's acting reasonably to detain this person for purposes of identification judgment in her favor on the she was on that melissa a malicious prosecution retaliation and conspiracy claims officer shot this is only on the malicious prosecution i believe that's correct oh ruled against us on except to the extent that the trial was made on fair by the presentation of all these conflicting evidence we did raise in the brief under the challenging the bogan standard the problem with her testimony which was at first i remember nothing about this case and then she showed up a trial and remember to aspects that supported her defense which was problematic but that that is not we are not challenging districts ruling i'm not sanctioning her for presenting her witnesses to us pretrial obviously that would be in a f there is probable cause because an officer gets radioed away from their side that is absurd there's no with order for it the court has rejected it was argued to trial it is legally baseless there's no authority for it it's not ambiguous about there's nothing in the u s about this an officer who radios away for help because the guy a person in the house is arguing with him and he you know that that's just not a basis to charge anyone with a criminal act it's not just whether or not an op it sure is obstructed otherwise every time you ask for directions to a police officer you're obstructing him in some kind of capacity that's not a crime he's allowed to argue with the officer about why he's in his home and he's allowed to protest the fact that he's in his home this is not obstruction and the court should also reject the idea that officer webber is allowed to present all these numerous defenses at the eleventh hour after he got caught where we prescribe a lot of conduct that constitutes abbott yes just absolutely there is a lot of things that can cause you to obstruction but one officer radioing another officer for help is not one of those things that's prescribed it's an ambiguous in officers actions in trying to get help because the guy who suing the defen obstructive while he was still out and still had one handcuff on the other also showed up eventually it took two off to get and go and that's what they're describing is resisting arrest this is not blocking access to a room they're not hindering the search he has no idea searches going on and whether concedes that it can't be as a matter of law obstructing when you are when you are confronted by an officer in your home and you argue with him and the ambiguous circumstances the officer says put your hands behind your back and you protest that's not home without probable cause the fourth amendment is unambiguous about that it's in the text of the statute itself there cannot be investigatory stops inside someone's home he has to have probable cause the concept of a hot pursuit is it was they didn't know where the suspect was they certainly didn't have probable cause to think that he was in the other unit in the building i think your honors and if there are no further question