members of the court council my name is landon brown and i represent the appellant's in this matter i like to reserve five minutes for a bottle i like to focus on the questions of the panel provided in its docket entry first did defend exceed the scope of consent by using tear gas and causing damage to plaintiff's property the answer that question is no scope of consent is defined by the express object of the search and the communication between different story but they weren't and they weren't physically in the house and they were nonetheless attacking the house no way and i gather that most of the damage came from the tear gas correct i believe  and once they obtained consent to go into the house the manner in which they chose to go in the house is is controlled by the reasonable this right i don't suppose when the house is but an hour and a half not coming in the house but it's saying it was tear gas right but that was a manner in which they were conducting the search of the inside of the house and so in conducting the search of the object of this was to get him to come out of the house so they didn't have to search that crack and that's reasonable under under the fourth amendment due to officer safety concerns that may be reasonable but it's not within the footprint to which she consent well when they're using tear gas to get inside the home they are still searching the inside of the home and they are searching within the confines of the walls of the home and the damages that was that did occur did occur inside the  let me get you to get to the second piece because if you want to save a lot of rebuttal time you're coming close let's assume for the purpose of the second part of the analysis that it was beyond the scope of consent and what was the clearly established law if any that being a constitutional violation your honor there is no clearly established law that would beyond that we don't have a constitutional issue and we have a question of construing what she said and what they said it seems to me that this is pushing qualified immunity a little but throws a wall to say that when when you're dealing with a consent question you don't look at what you could and should do when you need another case in which somebody said the same words as a matter of consent i don't understand that i mean in the consent is you know a quasi contractual notion it's defined in a certain way for these purposes but you already told me how it's defined and this is absolute that what believe in this instance the clearly established law needs to inform sievers of winfield that there are specific conduct of creating a any reasonable person think that when somebody said that you can go in my house and arrest somebody and here's a key that that meant you can stand at my side my house right or an area happened and spray share gas into an order to get the guy to come out so you don't have to go in the house whether they had the consent how could any reasonable person think they had to consent well there is no requirement for the officers to obtain consent as to their specific manner of which they conduct the search and that would be unreasonable to to enforce that type of requirement that's not the question quite you told me that the quote that the question is the footprint what did she agreed that they could do where could they go how could they get into how she can agree that they could go and even if we were to say that they violated the scope of consent by first using tear gas and then waiting to see if that strategy worked at then going into the what i thought they first attempted to go through the front door and there was a latch on the door they didn't they didn't do that until afterwards right correct they they they deployed tear gas first and then they tried to go through the front door and were able to make it ok and or but even if that was outside the scope of consent  from the supreme court case city vested overseas and so i do believe there still needs to be a case on point that square that governs the facts of this case and would inform these officers beyond doubt that when they obtain consent to search a home they cannot first use that safety procedure to go in tear gas the question is with that particular conduct which is the use of tear gas with tear gas to enter the home with it that particular conduct was clearly establish was unconstitutional correct yes and their specific conduct was they created the tactical plan which eventually led to the tear gas being deployed i have actually have a slightly different question about that they asked her do we have permission to get inside your house and apprehend him and she said yes and gave my cue that she was pretty sure wasn't going to work but that came later yes the deployment of the tear gas method of entering the house getting inside the house and if so why  you cannot throw objects or put objects inside someone's house without consent any more than you can enter with your body so i guess i'm not sure why it isn't an  entry i would agree with that i do believe it is an intrigue into the home and i believe that that entry is gauged by the reasonableness based on the facts and circumstances that the officers were confronted with in this case given that they were searching for a barricaded dangerous and violen think it was a reasonable step for them to take to ensure that the key it's my understanding that the key that he that she told them that he was that he had locked the front door so they knew that the key was going to get them in  what she wasn't hiding by giving him the keys she wasn't playing a game on them and i knew that it was going to get them in the front door correct but it appears that it would have gotten in the background correct and just to back up the officer who she your honors counsel please the court and i'm sure my hopes and i represent she's west for the purposes of scope of consent the question at issue is whether reasonable typical person would understand the violation of law this in my opinion is the obvious case that the supreme court references and as for recently is with regard to this consent question i mean  typical reasonable person have understood the exchange between the officer and person consenting that that's what needs to be judged here when when the government asks an individual for consent to go into their home or to search their belongings so do you think the scope of the consent and looking out how a reasonable person would understand it would depend on the nature of the thing that para looking for for example if the can santa as you may go into the house and look for illegal drugs the answer as to what a reasonable person would think that means might be different then may we go into your house to arrest a dangerous found one who may be high on drugs i guess i guess my the reason i'm asking is that i think it might be reasonably understood that if what you're looking for is a dangerous felon who may be well be armed and high on drugs that these kind of swat team techniques would be what is done and not simply i think we'll go and look in your kitchen drawers for some you know heroin that you might have hidden there so why isn't this within what would be anticipated for this particular kind of search while your are arrest sure this is this is  situation in which the appellant's a list of the number of things that they considered when it was she in the tear gas and then ultimately going and searching miss west set aside the question was do we have permission to get into your house and apprehend right yes ok they spent an hour and a half not going inside their house and apprehending him but trying to get him to come out and most of the damage came from that so what does that have to do with her consent majesty which are directing all this in the wrong place well i think the consent the scope of consent issue is is not on the search but it's on the whether in your view it is an entry into her house to toss tear gas or any other object into the house isn't that an entry i do believe that's an entry i can't say at this point that i have a case this of so so in a sense they did enter her house right away they just didn't do it with human beings at the beginning they didn't retire guess at the beginning and they're still raises all the issues that you've raised but it's not a non sure i follow you on well i'm simply suggesting that your argument seems to be about what i think they did on reasonably once they went in her house and searched and  then rather than the question of whether they should what they did actually was within the consent of her consent because it involves something other than going inside her house and getting like dropping the bomb for the purposes of qualified immunity and clearly established law this situation in which an individual can sense of a search of the house and even assuming there may be  some reasonable variations as as to what that that that that what was permitted by the consent it's the amount of destruction and this goes back to what  previously said as i think the confusion is between a search and seizure is is she she gave permission to for the officers to seize her property for a limited period of time but doesn't the fact that there is some difference of opinion as to the scope of they consent means this is not an obvious case no your honor i think that this is an obvious case because if police officers you're saying in a in a way and maybe this is the right answer but it seems to me that the result of what you're saying is that any time a person you know skin sand to enter their home or other property to get somebody who's dangerous who might otherwise me swat team procedures they're not really having that concern and because it could be very destructive because it often involves this sort of procedure so it may just be that you can't give consent in this situation on the last you're told all of those what's permissible under that search but it simply obviates the need for the weren't and if the same destruction could have occurred with the weren't i guess i have some difficulty seeing that it's a clear violation clearly established why when there is consent in the same circumstance but consent the consent here is is an individual citizen giving giving the government permission to go on their property  they if the person giving consent doesn't you know what that they're consenting to something far beyond what the plain language of the interaction and tailed then they're not actually giving consent  if they could if they needed a warrant there is a case on point that i don't i don't have a right for me that that's a question what do they say their consent is that what they say what he wanted to do or what the consent was when and i don't believe that's in the records as to what was said thank you to to clarify about the information that was presented to the d a to the prosecutor the record does show that that that the law enforcement officers informed the prosecuting attorney of the facts that were at present that were that were current at the scene we don't know what those specific facts were because the recollection at the type of those depositions wasn't clear but what was clear is that the law enforcement officer informed the prosecutor that it was a obtained and yet the officer still win and as a result i do believe that presidential case is required on point to squarely govern the facts of this case in order to inform these officers that their specific conduct i saw  if there are only bombing the footprint of the home and nowhere else side that footprint then then yeah it would be within that footprint of the scope of consent but there's a big reason when this issue of whether or not based on the facts and circumstances that's allowable