that issue in the trial court was the qualified immunity in as a defense to a nine hundred eighty three action basically that's the roots of this case however rather than the usual circumstance where play and attempted to prove through our opposition papers through that motion the presence of tribal issues of fact on both the determination of probable cause and on the application of the qualified immunity so it's a little bit of a twist on what you may be used to seeing in terms of an appeal from a qualified immunity denial in the trial court judge  and the second is did officer hackett have a right to enter the homes those two fact nexus which these saucy analysis must approach and let me talk about the first big bit stand there house but a homeowner can still say no thank you you can't come in the homeowner may refuse consent precisely yes and can stand in a doorway and scream at the officer and say you're not coming into my house footnote in our brief but i think that the facts support the conclusion that he did not well know he did not aggressively attack the officer he did physically officer hackett and this is this is a key distinction from wetzel officer hackett told v i guess he was going to enter the house he had his fourth amendment waiver he was going to enter the house he should step aside or he was going to recent arrest him for resisting delaying or obstructing the officers performance of his duty and let me underline those those words in the statute resisting delaying or obstructing and we cited and discussed some like the case called mohammed to is applying the facts of the given case to that clear bright line of law we've got if you look at the dissent in website by justice clark of the california supreme court he takes an issue just looks like you know can come in now but i feel like everything is in two different tracks here if i understand it correctly you worked at the heart of your position is that he wasn't being asked to consent because the packet believed he had the right to enter the house under the waiver if i put your position correctly yes ma'am except he have a search warrant or the functional equivalent of a search warrant you can't go in without consent period you agree with that you know and let me just so the second part of my  you cannot go into a house without consent you agree with that yes yes all right so your position here is that here you had the functional equivalent of a search warrant therefore you did not fact that you have your authority to search construing it most liberally in your favor from the waiver was to search martinez's place of the officers that that's where he lives that he lived there for two years he lived there with his mother and that's what they had they had no other information that he was that was his place  his ruling helped us out with that in his in oral argument judge miller was cited all of the facts bearing upon the question of the reason the rest of the belief that that was his residence and that's markers in front of them where they were told they should call the jail to find out if he was in there which disappeared in the second but judge miller concluded i would be inclined to find there is a genuine issue of material fact relative to that another fact is he was obligated by the court by the terms of his probation to advise of any change of address not give us the fact that has something to do with the folks that live in that house that shows he lived with his mother and his brother and i'm i maybe simpleton but i'm very persuaded by that because it's not a random house it's not joe blow's house they go there it's not unreasonable to believe that that is his house and in terms of the deportation why isn't reasonable to believe it's  his house he's a big adult guy he's been in prison all over the place he's been deported actually and nobody even checked with a neighbor is this guy ever seen around here now nobody the probation amendment you know i don't mean to belittle the fourth member certainly but i'm suggesting to you the circumstances that were presented to the officers in light of the long standing repeated address given by this man the man the fact that it was his mother his brother now your honor let me let me compare who is not but the brother dead the brother said he doesn't live or he hasn't lived here for years we don't even know where he is he's not in this house and we're not going to let you in the house and as the motley court remarked it's not very invasive mother court remarks your honor it's not infrequent that relatives and friends give misleading information to police officers when they're looking for suspects so go get a search warrant you don't just barge into someone's house morning mike marin and for mr davis i think the court has highlighted the fact that we are talking about the sanctity of the home here and i know you know that but i just can't help but start my argument off with  that in terms of the facts that they had what do they have they had essentially two facts they had the fact that two years before mr martinez had given that address is addressed and they had the fact that the people living in the home were mr martinez his brother big there are more than two i don't know if they make any difference but there are more than two there are enough appreciate so you know i think that to me what's important is what information they didn't have that they have absolutely actually i think what's important is the information they do have because there's lots of things in the world that you can do so the question is what did you actually do based on what you actually knew and was that sufficient to create a reasonable i think that is the this is me i'm so i'm going serious about it i don't think it's funny at all i think when somebody tells a government official something in order to get probation which is a government benefit that he wasn't entitle and he makes a representation and he says here is my address and i know i have to tell you if i don't live there i think that's entirely to some degree wait how much is a difference i think that's  testified to and this is essentially all that's in the record is that that you know he didn't go to that address he didn't go check it out he didn't ask if there was appealed if he was getting mail there he said from his memory that was a mail boxes etc type place where people that's as another inference i think i think the other thing that we have to consider is the totality of what officer hakka didn't know he also knew that the guy had twenty eight aliases and used eight different social security numbers and when the probation officer told him give him the little information he gave him all that was what is this is what is the last known address in the prevention file no information that this man had ever been contacted in any way shape or form at this address not even a phone call you so long as you question different a different recital and i think that's a relevant fact as well but the truth of the matter is they have nothing and i guess i should but i do want to comment on this and that is i don't think there's any real question that the law that we're applying of the judge miller applied this clearly established it goes back to the the harvard case from one thousand nine hundred goes to the watch case which was a year and a half before this you know and a and a fairly high level of generality that can't be in dispute my question is a little more focused because actually this situation is almost the flip side of those cases and of the ordinary case where the officers know that the suspect the parolee the probationer is not act his last known address and they get a tip of some sort that he is in fact at somebody else's rest and in that different circumstance the question is do the officers have enough based on that knowing that it's somebody else's residence to go forward and in those cases we have required expected appeal only when there is a lot of other cooperation surveillance he'll use whatever here you do have officers who are relying on his own statement that that's where he lives and it pans out that it clearly established in two thousand and two that the officers couldn't reasonably believe they could rely on what he said where he said he live which is where judge miller looked at it and he said look i'm what i'm looking for is what the law requires we look for is there substantial evidence and we have this minimal amount of evidence and so clearly it's falls far short of substantial evidence and i more information but that's not really a question the question is whether this information sufficed and what i'm i'm just focusing in on in me tell me that i shouldn't worry about it but i'm focusing in on the fact that so at least so far as i know which is not much we so far as what i know there isn't anything out there that actually pertains to an execution of a search warrant scuse me execution of an arrest warrant at a house where the parolee or probation or said he lives hasn't changed that address despite an obligation to do sell and they weren't operating off of  anonymous or otherwise i'm reliable they're going on what the guy himself said so so what's the closest thing to say that even if it were long and let's suppose i think it was even if it were wrong that it was unreasonable for hackett to have believed nevertheless if you can go into the house under those circumstances well one piece comes to mind to have that in my brain and in my notes for whatever that's worth while the other thing i quoted in my brief the it's the mendocino case where it talks about even though in certain circumstances officers can rely on collect information the line officer still has an obligation to check into that and and what we know from our case is that officer hacker did absolutely nothing to check into the information he was getting when he didn't check in t and that's and he doesn't ask any questions like ok ask him have you guys ever contacted this man here has anybody from probation or law enforcement ever seen him here those kinds of questions and it seems to me when they have no other industry other than what we probate the probation file and if and if you ask the questions we know what the answers are and they always return nobody ever contacted altogether so it seems to me that in terms of precedent we know what the standard is and we know that at a minimum any reasonable officer will know that you need more than what we have here ok one other one other question and that  is the record in the light most favorable to us record these in many respects these are not my facts we'll know there's always some more if that's what you're where you're going i mean then you have to add the fact that from hackett's perspective  to make it clear the officers had a right to enter because it was it was a hot pursuit of the burglar and so they had a right to enter but at the same time the homeowner had an absolute right to stand in her doorway refuse admission because there was no fact that those facts from let's all are contained in the majority opinion and then in the dissenting opinion in a footnote justice quite lays out the actual testimony where the officer says i asked to repeatedly to move from the in the front door or the back door for that matter i mean and i think that the fact that they kept asking for consent which they admit that they did for twenty minutes i mean they have the right to go that's what i see my time is up in that says anything else