hear that united states versus cooks  hole in the floor of its search the district court aired what it found circumstances here because there was no emergency situation or probable calls to justify ripping up that flooring however the district court was correct in finding that the protective suite was overbroad because there was no reasonable articulable facts suggesting that someone in that hole could pose a danger to police can i ask you a quick question and a case that of an ongoing ongoing or immediately concluded burglary sort of passes the fourth amendment test and it just seems pretty close here i mean that there was it was evident that there was some hostage situation going on it was evident that the guy was doing something with the floorboard and you know the whole seemingly big enough to stash someone and why is that not good enough under montanus here are if you look back at holloway which is that kind of outlined the emergency aid exception in the first place and that's what we're dealing with here right so you still have to have that probable cause and that probable cause has to be you know considering that to tallahassee the circumstances that there's a fair probability for that fact that is that piece  police reasonably believed that they could show the talent to that there were people in danger or the possibility for people in danger and that whole and we're talking about you know the probable cause here for that justification not probable cause searching for evidence right as the probable cause for the justification for the exigency which is the potential for hostages and so here the lower court as you mentioned found two specific facts one that there had been a hostage situation and two that he had been doing something with mysterious with the whole and i think context of the facts is important because we are dealing with the totality of the circumstances right and so here you have a situation where police show up at mr lee goes his house at about ten thirty in the morning they set up surveillance for about two  hours they see a car leave come back leave and come back again and they approach miss clemmons as she's getting out of the core announce themselves as police officers she takes off running boards herself up locks the door creates the standoff situation at that point  consider them hostages because they're not traditionally what you think of when you hear that word you know this isn't a bank robbery or a kidnapping or something like this these two individuals were at mr cooke's out when police showed up they were walking freely pointed to for probable cause was that there were hostages to begin with right so understanding what type of hostages we're dealing with i think is important and here you know the most important fact is miss pryse the only reason we consider him hostages is because they wanted to leave and they couldn't because the front door was locked at some point miss pryse exits the back door she sobbed and talks to police and goes back into her own free delish right and so i think it's important to consider that because these are traditional did they know that there were maybe more than four people and that there was no information presented to you officers there is no testimony whatsoever that there were any more than the fact that the officers testified that they didn't believe there were any more than four now the government made a big deal that there could be more than four but you're talking about could we don't know why she went back inside to wait until we don't know for example somebody else sometimes they let somebody out the scene that are so she just run of she's a person that runs in a city as they are now she runs and runs inside it puts a boulder that's correct that's correct and i think what all of this boils down to is what the district court noted in its protective sweep analysis that we're dealing with conceivability versus reasonable that's right that while something's conceivable doesn't necessarily mean that it's reasonable under a fourth amendment review and while it's certainly conceivable  reasonable analysis but so i guess back to montana as a mountain as we said the responding officer will have no real way of knowing whether he's rounded up everybody whether additional victims may remain inside here the evidence is at the very least sort of a quick look around but the officer said like well we knew that there were four we weren't sure that there were more than four but we really didn't know at that point and it just seems like from a commonsense perspective what what rationale is there for requiring the officers to leave that situation as it is hostage situation a hole in the floor bolted out big enough to stick hostages and i don't know go find a magistrate get a warrant come back that just seems crazy to me well certainly justified in looking in the immediate areas where a hostage could be right just to sweep the house go into the protective sweep analysis but here they did a little bit more than that they ripped up a piece of plywood that was nailed down in the face he  did it didn't need time i wouldn't concede that your honor you know i think going back to looking to whether or not it's reasonable believe that hostages could have been in that house we have to believe or you would have to believe to find that that willie cooks at some point you know prior to police showing up that day at ten thirty in the morning right prior to his friends coming over to his house that morning not knowing that the police are going to show up prior to all of that for some unknown reason he just goes and kidnap somebody taz them up throws them up on and gag them so they can't make any noise throws him up under a house for no reason that's what you have to believe under the totality to find probable cause here is just not reasonable again it may be conceivable but that's a big difference between conceivability and reasonable and that's why the district court got the probable cause determination wrong below now the government also argued protective sweep and district court below found that separate sweeps here as well mr coke's was taken into custody and they did a thirty second cursory sweep to see if anybody else was in the house they didn't find anybody then they go back in for three to five minutes and this is where they come in with a suspicion of danger it is simply unreasonable to believe somebody to lock down in a crawl space could have jumped up and surprise attack them at any point in any event but he says that it should take no longer than necessary to complete the arrest and leave the residence here mr coke's was clearly in custody at the time of the second suite there is some dispute whether he was in custody at the first suite and the district court found that it actually couldn't find if he was arrested inside or outside of the house but i think out of the second prong of really irrelevant where he was arrested because they didn't have those articulable facts so we would ask for this court to firm on the protective sweep decision  good morning may it please the court michael believes lee for the united states will establish the fourth amendment does not require police officers to delay in the course of the investigation if to do so would gravely endangered the lives of themselves with a lot of other people the test is whether officers reasonably could have perceived that delay would endangered their lives or the lives of others oh this court case and holloway recognizes that endangerment of wife is last fall squarely within the  exception of extensive circumstantial case with regard to the case just knew some you referred to i apologized for not citing that but that sounds like that's what these facts show i mean that the police the question is whether they were it was reasonable for them to go in the house to ensure number one whether there was anybody else that would be a danger to them one thing that they had evidence that had information that mr cooke's was armed he wasn't arrested with a gun  that's entirely supported by the record entirely supported by the facts the court just found that the protect a sweep was exceeded when they pulled up this whole round and were perfectly satisfied with the court affirming on the basis of the district court's reasoning we made the two which is a picture of the outside of the house so the officers outside the house would assume that this home had a crawl space still at the length of the home and what we noted in the brief was cross bases have an access point typically that's a reasonable assumption that this prospect would have an access point the access point across space is not a makeshift hole covered by plywood in the middle of the home in the hallway so the fact that there was another entrance exit to this point would justify them going in to make sure that there wasn't somebody that wants to attack from the other access does that does that at all undermine the extreme circumstances rationale i mean i'm thinking you know about my own house we put in addition on the back of the house and in a little den area there is an flap right that so i can get on there and check the records or whatever and if if we had busted a hole in the floor covered it up with plywood and stuff people down there when they just crawl out the side flap right  they couldn't otherwise escape just go out the same flat that the surprise attacks would go out you know us restrain for one thing with regard to hostages with regard to another dangerous individual i don't know that there's no record no testimony in the record as to that they knew where the other access point was search certainty is that this individual was motivated by the presence of the police outside his home to do something with the whole of or that's what the hostages were saying he's doing something with a hole in the floor they could hear through the front door power tools how long how long have they been there before the noise commences they had been there a couple hours before they approached because they saw somebody coming they were away from the house right right so i think that the record reflects the individuals come out and i think it's a reason for it's that the reason the door was on barricaded is because he's finished sealing someone or something in that floor that he did not want the police to find i think that established the probable cause you had to just circumstances for that for the purposes of the district court's analysis is the fact that they're kind of in a hot and the floor as a district court concluded hosack should not have to wait but banks is on the record and you have to show there are more than four people well the fact that there were people in the house you know i don't think the officers have to assume that because they know there are at least four people in the house that there are only four people my house the officers have to make assumptions that are most consistent with their safety in the safety of i'm looking at  warrant so that they could search the home after they execute the rest in the second thing is is that as the district court found that the time table shows that they weren't searching the home they were motivated by safety concerns safety concerns for themselves and safety concerns for any other people that were in the home and one of the thing to answer your question i mean i think that the information that they're getting that they're for at least four people in the house or because the voices they're hearing and i think maybe one of the haas just said there are four people in the house but even if you assume that hostages being proof that doesn't they may not know everything that's going on that's why they don't we don't know where they're being kept in the house officers can't see in the house if somebody is in the crawl space if i go to somebody's home and  how many people are here i'm not going to know if somebody is in the crawl space so it's just the officers in that kind of situation chaotic situation where you have a dangerous man only people hostage and he's doing the same with the floor and i guess i think you could reach the conclusion that he's doing it obviously motivated by the fact that the police are outside and what he's done that's when the door becomes an barricaded that the police in that situation have to act like i said whether officers reason we could have perceived that delay were a danger their lives or the or the lives of others and so good they when they go in there quickly and they did the quick thirty second just to make sure that nobody standing out in the open i mean he i think he said that they had a right to go in there and look for hostages right other hostages i think he said that it's this morning you can find a hostage in a drawer right so there's no evidence at all that they were doing a general search of the home what they were searching for or again i know this report rejected the idea that well just with regard to opening the floor the disco police had a basis to determine whether other people there's no question there were other people there's no doubt about that the question is how many and so on the question would be whether the officers were required to assume that there were only they think to be an ongoing burglary detain two suspects outside the home the court holds that they had no way of knowing one way or the other whether there might be additional victims inside and given the value the force and the places on the preservation of human life that the officers were justified in doing in extreme circumstances based search of the house in places where the hostage or victims could be found there was a hostage situation there it was an ongoing burglary it seems to me that this case is more exigent in that yeah and then they have to make the assumptions that are most consistent with protecting the safety of those people and themselves i mean that's perfectly reasonable and i think the holloway case if you look at the language in holloway it talks about to find it real quick of course just about what it was and i realize the facts are different there were reports of shots fired but what's the possibility of a something by using contraband or someone in that hole because of the way he's acting he's motivated by their presence again he's what he's done that's when the door becomes a barricaded that holloway says the possibility i think that you have you know probability is not a certainty it's just a fair probability and the fact that there were other hostages in this home that he had kept to the police knowledges against their will with the use of a firearm makes it a fair probability that is not the same thing as saying there are only four there's a big distinction in this kind of situation fast moving just chaotic the police are doing the best they can again i think desert shows extensively i know some subject motivation is not relevant but it shows what they were motivated by where the protection themselves and others they were not motivated made and motivated by excuse me going in there and doing a general search has absolutely zero evidence that that's what they did or that's what they were deterred like to clear up a couple of factual things that i think are quite clear at this point first the drilling that the officers heard was at the inception of the standoff it was right after they barricaded them  selves in the house there's no testimony that there was prolonged drilling or drilling going on throughout the four hours so i think that was important to bring up secondly the government talked about motivation and repeatedly referred to that they were the officers on the ground were looking for additional suspect and hostages not a single officer that testified stated that they were looking for hostages there was one question asked of an officer could there be hostages in that hole and he said yes we were ask and he was looking for quote potential hostages and that the officers performed a three to five minute secondary sweep quote to check for possible hiding locations and potential hostages in the house the responses to questions where they are not your own or perhaps not testify that the reason i think his initial testimony during this which was the first one on the scene that approaching this clements that is primary motivation was looking for additional assailants not looking for hostages again that it was in response to a question could an ongoing burglary or responding to an ongoing burglary here you have police setting up surveillance of the house for two hours they have a four hour standoff and then a subsequent search they have the place surrounded for literally six hours watching not what's inside of the house but at least what's coming and going right and so if we're going to believe again that hostages could have been in that hole they were already in there for six to eight hours by the time the police made intrigue so it's a little bit different than an ongoing burglary where you have absolutely no facts what's going on but for that it's own going burglar here they had facts they had information they had talked to people on the ground repeatedly they had seen hostages come inside and go outside they had done research on willie coke's before they went to the house so