good morning and welcome to our court at the outset judge branson i wanted to welcome and introduce to you our visiting judge judge or slow garro from the southern district of florida we're delighted to have a help us with our work this week she has served with great distinction in the southern district of florida for many years she was appointed by president bush bush forty one in  and she has served there after on that court and she's also sat with us by designation on many occasions and so we're delighted judge and daryn to have you join us and make sure we don't make too many glaring mistakes i'm delighted to be here nd observation for you when you make your argument you can safely assume that we've had a chance to review the briefs the record excerpts and in some cases we've read the record itself so feel free to go right to the heart of your argument as you proceed rd and the last observation in our time system there is a clock little tell you how much time you've got left how much you've used and there's a green light means of course you can proceed there is a yellow or amber light is a two minute warning the red light means that your time is up and would be much appreciated if you could bring your remarks to a conclusion when i when the time is up with that we will proceed with the st case which is the united states versus  good morning your honors in may it please the court a town for the united states the district court suppression order should be reversed for three reasons st and foremost the court required the government to prove that men royo investigat actually believe that someone dangerous was in the yarbrough home nd the court applied a divide and conquer approach to the touting of the circumstances and rd even if the sweep was on reasonable it did not taint the yarborough's consent because the sweep was not purposeful and was not flagrant st the court suppressed the shotgun's because the government had not met its burden of proving man roy's subjective intent but the government never has that burden been roy's subjective intent is irrelevant as this court and the supreme court have repeatedly made clear instead what matters is what a reasonably prudent officer would do under the taliban of the circumstances the district court subjective intent error is especially grave because it is self contradictory in this case on the one hand the district court found that investigat did not believe someone dangerous was in the house but on the other hand agreed with the magistrate judge that monroe i conducted the sweep for officer safety that the sweep was not a sham and the sweep was done in good faith thus even taken on its own terms the district court's ruling cannot be affirmed if the district court had applied the correct tests in objective to then it is objective really clear that the court would have ruled here the court continued to apply a subjective intent analysis and requirement of the government because it discounted the government's arguments as after the fact justifications are lawyer and in fact every objective analysis isn't by its very definition an after the fact analysis based on the tell it any other circumstances that is why it is an objective test that's why we have an objective test but even beyond that the courts analysis the circumstances and tell me specifically counsel what objective basis there was for an office who did that the house contained a dangerous associated with the cars that were the driveway what reason did they have to believe that they had to go back in the house for a protective sweep when they went in there probably in order to arrest two people they had accomplished that objective they brought them all outside it's got to be some reason some articulable reason to believe that there was someone else in that house that was going to come out guns a blazing while they were sitting on the lot standing on the lawn processing at least two of the people had to be processed coughed put in a car and taken downtown yes sir but what i want you to zero in like a laser beam for me is what articulable bases there was to go back into that house after they had secured their objectives and had arrested the two people they went to arrest yes or and that articulable suspicion that is investigated and roy had to conduct the sweep began before their arrival even before the day of the arrest and so to your point i will get to it that over the course of the months leading up to the arrest of the yarborough's there were a number of tips that came in to investigate him and roy via text message or e mail telephone where the investigator and i was informed that there was high levels of activity what he understood to be drug activity in new york writes no it just so that i'm clear that was an anonymous tip or did that known source the tips as i'm describing them are anonymous and cording to this record are all anonymous yes or so the anonymous tip says one there are a lot of people going in and out of that house and to maybe there's some drug activity well it overstated understated is that about right well that is that is about right i would add that investigator and roy he himself at least believe that they activity described going on at the arbor home was drug activity what specifically are they told by the tipster about not just a lot of people going in and out but that there were drugs there the factors in that if you'd like me to continue with the totality yes sir but i but i wanted you to tell me st what the to the tipster does not there is nothing in what he didn't say just tell me what he did say the tipster said that there was lots of activity going on at that house i don't believe the record indicates any specific drug that is being either dealt distributed or used at the yarborough home and yes and there are several tips until the day of the arrest right that is correct by e mail text telephone and so but that is just a part of the taliban in these circumstances i understand that i'm just yes trying to break it down piece by piece then tell me the nd piece of object of evidence that articulately gives a basis for going back and after the two folks are arrested that they went to arrest in the st place yes sir so as as investigator and roy went to arrest the yarborough's on that day he was told prior three men in the driveway detain two and you detain those two not mr yarbrough he was arrested detained those two for officer safety purposes they stay with sims he announces him self at the dorm and roid does is noticed by mrs yarbro his wife in the house is there anyone in the house that's correct and he indicates he cooperates and so they are she is there anyone in the house who just specifically is the wife in the house i'm not exactly certain if there if it was that specific your honor but i do know that that conversation indicated that mrs yarbrough was in the home right because i thought that what they asked him was whether mrs yarber was in the house he says yes and one of them goes in and the other one stays with the three outside there's that is correct and there is nothing in the record there indicates that in royal asked anyone is or anyone else in the home besides mrs yarbrough he then goes to the door and houses him self she sees him she runs to the home and locks herself in what we later determined to be a bathroom he follows  sweep that sweep lasted less than a minute he did before he went in and what did he know about the content of the walk what the charges were that records like to look at the records very slight on  that we will concede that point that is something that we would have liked to have brought out here today as well he didn't understand there's nothing in the record it indicates that him and roy knew of the criminal history of either mr or mrs yarbrough that would have been handy information for th herself in the bathroom not cooperating with law enforcement that alone was enough to reasonably suspect that everyone was there was not the four individuals that had been detained that there could be more people out and out tell me how if you've got one person and that he that mr yarbrough disclosed his wife was in the house and granted she ran to the bathroom why does her running to the bathroom indicate that others might be in the well it doesn't indicate that others might be in the house it does give rise to reasonable suspicion that someone else could be in the home that is dangerous because of her of her furtive gesture of her not cooperating with law enforcement in fact doing exactly the opposite of what the three men in the driveway did that would suggest to any reasonable prudent reasonably prudent officer that it would be necessary to ensure that no one else was in that home because he is now in investigator instance now not receiving cooperation he does have that sort of reasonable suspicion that this is now a dangerous place it's also unfamiliar territory as he's on unfamiliar turf i believe the case law uses that language and  that is in and of itself reasonable for an officer to ensure officer safety and i would like to turn briefly to the consent though even if we were to assume argue endo and the facts in this case are much like colace as it relates to the s well you have not seen the articles that is correct he had tried to arrest them a couple of times as it relates to consent he not that i just wanted to do well further on the question judge of our ask you does the record reflect whether he did see lots of activity he'd been there  when he goes on the earlier occasions does he see multiple activity does he see lots of folks come and go on the record as i don't think he says that but maybe i missed that he does not say that but he doesn't say either way i don't believe that he did see any activity but i don't think the record indicates that the tip wasn't the the tip certainly indicated that over the course of that month prior to the arrest how many prior occasions did he go before he was able to successfully it's a warrant for arrest to my yes or and i know i know that we are short on time sauce i'll say that nothing in the record supports a finding that the sweep was flagrant or misconduct that would demand the suppression of the shotguns shotgun evidence no contraband was exploited  all by law enforcement in fact the magistrate and the district court judge both agreed that the sweep was not done that and that it was done in good faith that it was not a sham it was done for officer safety and in fact it was brief it was temp in its scope and the officer did leave the evidence of contraband behind not exploiting the the methamphetamine that was found in the el toit can and what else was this officer to do but to remove those shotguns from that home for officers was that the we have said this court reversed the district's suppression order thank you thank you very much and you have reserved your full time m government is seeking to muddy the waters here because the courts ultimate conclusion in this case was correct that officer monroy that his search and this home was not conducted with a reasonable suspicion that a dangerous person remained inside the home is the standard addressing a search that occurs after consent has been given and that is where the taint analysis applies but that's not what is that issue here what's at issue here is the search that took place before this consent was given and the yarborough's consent later cannot retroactively validate this this search which this initial sweep which was unreasonable because it wasn't supported by reasonable suspicion that a dangerous person remained inside the arbroath home and it's important to look at this case the government makes a point to fact that officer monroy in new you know before he arrived at the home but what that does is ignores the snapshot of facts that officer monroy i knew as he was going into the home as this court has discussed for example the government places great weight on these anonymous question the chips are dead your honor that's and the government doesn't speak for the government argues that that's predictive information but the supreme court in jail addressed a similar situation in jail they indicating just where that person is it doesn't have the predictive value that can corroborate an anonymous tip so for example if the tip was able to anticipate future activity that probably that question was asked to the officers maybe not struck me was a very brief sort of suppression hearing there was a lot of stuff that was when i asked them didn't come out but was there any discussion about what it meant to that you know was there a number of people alleged to be there and you know that information wasn't included in the tape and so and additionally as this court has honor not to my knowledge so what evidence is there about what they were looking for when they went in presumably there's testimony from the officers saying we went to arrest a and b here's why i'm just this record it's not it's not clear i'm just asking what's in the record and i'm bound by it like you but i'm just asking you to help me with the record yes your honor and and i believe the district court mention what did they not know that they were going in for a parole revocation  i thought there was testimony at least about that much your honor i believe that the information that this was a parole revocation arose not from testimony but i rose from a filing that the government like one of the government's responses yarborough's motion to suppress and the district court did mention it did mention that even if this is even if the officers were aware that they were coming to arre revocation for for possession of paraphernalia and simple possession of drugs that doesn't corroborate that this is a drug house which suggests a high level of drug activity and to some extent it does i mean we do recognize that you know flight can signify some awareness of wrongdoing but again that ignores the fact that officer monroy learned when he went into the bathroom so for example he testified that you know when someone runs like that in a home they're running into a bathroom that potentially trying to flush evidence on the toilet trying to conceal evidence but he didn't you know he didn't hear it sounds to indicate that evidence was being assured him when he went into the room to arrest mr yarbrough he didn't testify that he saw evidence being destroyed or that she was trying to conceal evidence and he was able to go into the bathroom detain her take her outside when she was detained and while he was in the home he heard no one else and he saw no one else and he saw nothing to corroborate that there were weapons in the home and he's done nothing to show drug activity in the home so when you look at the snapshot of facts of when officer monroy re entered the home to do the sweep it simply doesn't show a reasonable suspicion even in light of the flight so if the officer has has exited the home is there still a justification for a protective suite because if in fact there is somebody else secreted in the home that person would present a danger to the officer even though the officers outside potentially yes your honor and any case that is that a protective sweep would be appropriate if there are so articulable facts that create a reasonable eye for the central question is once they went in and took mrs yarborough out comfort the mall at a mall on the lawn would a reasonable officer have reasonable basis to believe that maybe there's someone else in that house that they'd saying that there was lots of activity b that everyone was there suggesting that multitude of doesn't necessarily mean it's more than four but it could  see that they knew they were there to arrest at least one of them for a parole revocation involving drugs some drug crime of some kind not a distribution crime but some drug offense and then when they went in to arrest her are she fled flight which yields consciousness of guilt about something so they go in and they bust her and they take her out is there some reason for them to believe out of some caution that maybe we best just check this for this place out before we proceed any further maybe somebody else is there and he's going to come out with guns a blazing you don't need a lot but you need some articulable basis where they were concerned about their safety rather than using it as a s but our but here they didn't have this reasonable they didn't have reasonable suspicion and the government in focusing on things like the tip and the flight they look before you with let's talk about the flight what inference could an officer reasonably draw from the fact that when they went to effect the warrant in the home which they had every right to go into because a magistrate gave them the right to do it and she fled does that yield went into the bathroom does that yield some inference that maybe there's someone else in the area that's the question or it doesn't suggest that there's someone else in the area as officer in monterey testified this this information could be relevant to show for example that she was trying to conceal contraband and accordingly if there is for example if this were like an accident circumstances search it would be a very different analysis but her flight didn't indicate that another dangerous person was in the home and to the extent that it suggested that she herself was trying to conceal evidence any concern of that was alleviated when officer montoya was able to enter into the bathroom and  and see what she was doing and i would just like the fact that there were multiple there were two cars outside so does that give rise to a reasonable suspicion on the part of the officer that there may in fact be another person in the house that that justifies the officer going back not in this case your honor because again like this court has looked to multiple vehicles as an indicator that someone else could remain inside the home but in this case again looking at the snapshot of facts that officer monterey knew when he went into the home they knew those cars belong to through those two trucks belong to you and you that one was mr yarborough's and that one belonged to one of the other men in the yard and both of those men had been detained and what the that did the officer know i mean obviously a one car carrier can carry multiple people so just because the officers have detained the owners of the two cars does that necessarily rule out that there's a stray passenger  st point they come back and they make a couple of additional arguments there's one i want you to zero in on and that was can they came back out and they asked for concern we have asked the basic question of whether the consent was tainted by a prior illegal seizure here of the weapons we ask three questions to determine whether the consent somehow was tainted  by those circumstances we look at the temporal proximity of the seizure and then the consent we look at the presence of the circumstances and particularly the purpose in flagrante of the official misconduct tell me forty four minutes from the time that they went in on the protective sweep yes your honor what i said too long and what's it to look it was fact in this case and it's something that the government i mean i'm sorry something that the district court focused on in this case officer monroy exit at the yarbrough home without or with guns that mr yarbrough was not legally allowed to possess and the government focuses heavily on this team analysis and the taint analysis applies to whether the search that occurred after the consent is valid however in this case what we're between the wasn't enough time elapsed to have purged the taint correct what about the presence of intervening circumstances were there any so that the government sides to a consent form that was executed  misconduct do you have a real man flagrant misconduct here well the reason i ask is when the officers go when the officer goes in the st time to do the protective sweep he doesn't ransacked the house he doesn't this illegal search and here they had been brought face to face with incriminating evidence which i mean in this court opinion in de lancey it specifically noted as a factor that could result in a different that could lead to a different right the way just trying to see whether the consent was tainted when i note the form says i've been informed of my constitutional right not to have a search made of the premises the property owned by me and or under my care custody and control without a search warrant knowing of my lawful right to refuse to consent to such search i willingly give my permission to the above named officers to conduct a search of the premises and property including all buildings in the vehicles that's one significant element in determining the voluntar yeah i mean your argument is they will was over borne by the circumstances there was a taint here and it pervaded everything that happened thereafter and his argument is even if we were wrong on the front end we were able to cure it taint analysis that is that this court is discussing deals with a search after consent has been gained and whether consent can whether that  search and this case the government is trying to argue that it so is it your view that one stay on lawfully obtained the guns on the front and there was no way they could have gotten a valid on tainted consent not you know even to the extent even if this court determined that that the taint analysis or that that's the later consent wasn't tainted it simply doesn't correct the initial unlawful search and the course we care about the consent search because of the inevitable discovery doctrine that there is a truly inconceivable we wouldn't have found the shotguns had we gotten the consent and then inevitably discovered those shotguns but regarded the council made a point to say we still would have found no shotguns giving a lawful consent search secondary search that we got forty four minutes after the protective sweep in the intervening circumstance of the consent form signed by both the r bros along with the fact there is no flagrant conduct here there's no misconduct by the officers what are we punishing or deterring here that an officer took two weapons from a home and that's not the problem the problem is that maybe officers the problem is that the understood and signed by both of them that that search would have produced the shotguns that we that we gained in the in the protective sweep but the shotguns and selves were not evidence of contraband the only contraband that investigator men roid cording to this record knew at the time of that protective sweep was the dope was the was the methamphetamine and he left that behind he didn't exploit that evidence there's nothing in the record that says he  mentioned it to the mother to the two men that were outside or either of the arbor as he didn't mention the dope eating exploited it wasn't flagrant he cleared sock shotguns for officer safety and that is why we asked this court to reverse a district co law have a question for you did the government raise before the district the inevitable discovery doctrine i'm sorry could you repeat that question to the government raised before the district court the inevitable discovery reconsideration after de district court ruled and i didn't see anything in there either well what we did is we mean it's sort of form over substance i think the magistrate and the government are saying the same things still are saying the same things but we just adopted the language that was so sort of adeptly described in the dual ansi opinion by this court i'm talking about once the district court had ruled you filed a motion for reconsideration the inevitable discovery doctrine was that mentioned there i i can't find it and that so i was just no ma'am i don't believe that it was and i agree with your summation of what you can't find but we but it was discussed at the at the lower level and they are was accepted in the credibility determinations were to accepted