the united states court of appeals for the th circuit is now open according to law got the united states and dishonorable courts good morning this is judge bell pryor this is our last day of oral argument for this panel this week we have had a good week and judge granted i have been very happy to have our great place to have our colleagues from the middle masten unlike the officers in ns one in the th circuit case who came across mr hindes one in a back bedroom in the process of executing an arrest warrant there they  instructed him ordered mr one to show hands here the officers even though in that mr masten was really in the process of just leaving that's what they understood him to be they ordered him to show his hands certainly permissible they ordered him to lay down on the ground they ordered him to crawl out the door all of these would be seizure and coexistent of an arrest in essence they were i think treating him as if he were the suspect of the arrest warrant search warrant you've got a neutral magistrate who has determined that this premises will be searched and anyone who's on the premises it's reasonable to understand that they would be categorically detained or would be detained so the interest magistrate judge make that determination shows this to be a different scenario here i believe we are judging the reasonableness of the actions in light of the circumstances so there may be a case completion of the execution of the arrest warrant why isn't that the i think it was more than was necessary to execute the arrest warners determine whether the individuals were there i mean they knew mr master was not just coming out of the heat coming out of the hotel room they haven't gone in yet  the interests are the same whether china restaurant research well and i think your honor here the interest may even be a little different because they were operating on a hunch as to whether someone was there but i would say to answer your question whether they could have done it is a different way we're not going to we're not going to prescribe how how they how they do that we're just going to determine if some are should be applied in this cont question then becomes well was this method reasonable or not isn't that right i think that's true i think that's part of the analysis it was this reason we continue was unreasonable it wasn't necessary for all sorts safety they knew that three black males and three black females who matched the description which they meant to me possibly could be that people were looking for they knew two males left and one female so they knew in the room that there was a male and two females and they approached around with five  indicate this is a reasonable appropriate the actions they took don't seem reasonably related in scope to the circumstances of what they're doing in light of the matches mine is i don't think this is a new threshold case i think it's the matches findings that set the guy here that they knew him not to be what they're looking for they knew it was not engaged in any reasonable suspicion they knew is not engaged in criminal activity didn't believe in criminal activity was occurring in the hotel room males matching conses inbox description entered the room with her with her the key to later that night and two of the males left a short time later they knew all of that  point out at the suppression hearing on page seventy three officer byrd was asked what do you mean by match the description he said i saw them get out of the car from eighty to one hundred yards away and said when you say they matched the description do you mean and he says on page seventy three matching the description means it's a possibility that that's the person we're looking for and that's my point they thought was there possibly in the room but possibly left they possibly could still be in there and when i seizure just as the magistrate judge did in this case and i think this court could uphold the magistrate judge's ruling on that basis but i also think this is an opportunity for the court to provide some clarity in this area and extend the categorical rule in summers to arrest  i think you can see that in this case when that door opens and you have three people one of which is the person who they're looking for is girlfriend there now in between you and where the potential suspect may be if if mr han's had been in the bathroom and he hears the police come in and he's armed and he's not going to let him take him alive he now has three people in between him and police if there's a shootout between them those people are endangered if mr hines grabs miss rogers and puts a gun to her head and now holding her hostage obviously the arrest is not going to occur so that i think that factor is also heightened and then lastly the last factor that the supreme court talked about bailey versus united states the interest in bringing flight when you're executing an arrest warrant one thing you don't want to happen is for other people to alert the individual against whom the arrest warrant as needs to be executed and if the police are coming for him and that is obviously a problem when there are other people present at the scene and then those three factors those three interest law enforcement interest in summers and in bailey we're balanced against the intrusion on personal liberty and i think arguably the intrusion on personal liberty if you're president if you're an innocent rd party who was present when i search present there so i think if you're balancing both the interest of law enforcement against the interest of the person who's going to be detained there's a real argument that it's it's time for this court and for other courts to go ahead and extend that rule that has been applied religiously to search warrants to arrest warrants as well and i think that's consistent with the development of the law i think some of the cases that inside here today whether it's maryland versus buoy or the cases in this courthouse and the hall of the united states versus clark e i think what this court is recognizing what the supreme court is recognized is that a law enforcement officer when they're performing their duty has the right to direct and control the movements of people who are present at that time and i think the supreme court said it best in summers that this is the safety of all involved is going to be greatest when when police can execute that on question control the police should have to make a split  nd decision when that when that hotel door opens and frankly it shouldn't take a forty five page magistrate judge opinion an oral argument in front of the th circuit to conclude that the brief detention of individuals present during the execution of an arrest warning us to man suspected of robbery and possibly homicide who are both members of a violent gang is reasonable that should be something the police should be able to rely on without having to calculate all these different i didn't see anything in the record that indicated specifically aspects of restraint with regard to space and time but as i understood the facts and i saw the pictures that were exhibits  sounds like was the threshold out into the hall your honor i don't know that there was anything that specifically spoke to that other than the fact that from the record it seems as though essentially the police officer and mr masson were almost face to face the door was locked we opened the way i read the record the door slightly open the police are or are ready to go into this room and presumably when they go into that room the st thing they're going to do is tell everybody in the room to get down on the ground and they're going to see those people and that that instance and  don't know if we'd even be here if that isn't the case i think people would rather want to i just want to know if i missed it i don't think you've missed it your honor i don't think there's anything specific about that and judge grant as to your question about what factors would be considered do you going to apply as arrest warrants you would essentially have the same thing you have in summers if a magistrate judge a district court judge issued an arrest warrant and the police or lawfully executing that arrest warrant during the execution of that arrest warrant they could briefly season detain individuals in the immediate area of the arrest warrant i think you would have a pulmonary step that you don't have in search warrants because the person sees could make the argument as mr masters makes here that there is a rd party doctor and this is my home you can't just come into my home and sees me and arrest somebody who is here as a guest so there would be that st threshold question in this case i think if we look at the facts it's very clear that mr mas he is neither the owner of this hotel room nor does he stand in the shoes of the owner of the cell to room record reflects mr madison had been there for fifteen to thirty minutes the reason he was going to the door in the st place according to testimony at trial was he was actually leaving to go to work he succeeded reasonably the detention would be reasonable per se just as it would be in the execution of a search warrant and i think we still are we still called to consider whether it was reasonable for the police to question i think in that in this particular case there's obviously a lot of evidence that the police reasonably concluded that mr hines would have been there they didn't know that mr han's rented rooms under his girlfriend's name they knew that his girlfriend was there they provision of peyton is that the room is in fact the suspects so that takes away the rd party doctrine because and just take this case as examine it just seems to me it's just the easier and cleaner way to this this the suspects are there in the suspects are inside and they can go in at will and that it is the suspects room and they can go in and see that suspect and then i think you would apply the summers doctrine to say in the process of seizing that suspect they can briefly detain other individuals who are present i think that's the cleanest way to do it and i think now this court would be deciding for the st time if they if you were to follow what i'm suggesting that summers applies categorically you don't have to do that the easiest way to decide this case is just to say that the reasonable if you look at this it was reasonable what the police did at the tally the circumstances considering all the factors but i think for the sake of judges lawyers and especially police officers who were called upon to execute these arrest  some clarity in this area would be good as i said earlier this case this case did not deserve a forty five page opinion and th circuit argument just on those basic facts and i don't think you can ask police officers to try   point we're here we're having this discussion we're looking at this and they have this is a circumstance where the court could do that and should do that and i think it would but i guess the point i'm trying to make is it would police officers valuable for everyone in the circuit to have that direction i don't know that i have anything else if the court has any other questions i'm happy to entertain them otherwise  attention to a home there has been no probable cause determination that you would typically have with a search warrant and now we're going to place the type of category of attention based on the police officers execution of an arrest warrant possibly hundreds for maybe one hundred yards we thought that might be my mock and so they did not meet the threshold of th circuit law that you need to probably know there they are so in this case there's a fundamental someone in the car and while he said it was possible somebody was there was possible somebody was and it was possible my hands a mark of the left i just don't think the courts words decision to talk about probability for all sort of make that determination know case the gomez doesn't reach that point in one doesn't reach that point the traffic cases don't reach that point the directing of manner is to step aside and again i think two minutes remaining all that violates his th d amendment privacy rights and i don't believe you have to read standing because he's got a personal privacy right he sees before they ever reach to enter the room i do say i only have about a minute left i would like to address my rd argument because i i know you are a court appointed and we very much appreciate you except in the appointment and assisting us this morning thank you your honor we would ask for just a reversal of the motion to suppress with instructions or alternatively  new trial thank you very much