that the date that's at issue in this case as far as the record shows all that lieutenant sutton had to go on at this point where he decided he could in fact go ahead and enter in that ms mitchell did have authority to consent to the entry was her assertion that she and mr clay had been living together at this apartment for some number of months i think the record best demonstrates this if you have you'll find it on page i d numbers two sixty three two sixty six where the magistrate judge judge we're who presided  suppression hearing asked lieutenant what beyond ms mitchell's claim that she had been living there did you have to corroborate what she was saying and lead you to conclude it would be proper to go on to go ahead and enter it at this point but i mean it's a little bit like saying all i saw was his face and it's really power it's like the most powerful thing you're living there well i've not seen that in a case that the parties have cited or i found her on or in which an individual's claim i've been living there and i'm telling you it's ok to go ahead and go in the court police there had some independent knowledge that gillis resided at this residence they knew her they had they knew independent of the day that case came up this lady has a connection and lives in this apartment from time to time and they know this thing about what they knew after talking to her that would suggest she wasn't living there with the police that they and i told him that during that conversation and that took place we know we can conclude fairly before they enter because the maintenance man subsequently went over there and opened the door he gave them the he didn't open but i think you opened my understanding around it was he opened the door and he went he testified it suppression hearing he went this is not a large building maybe twenty units or something like that he went to a i never had a key which is what she testified to ok he assumed going to his testimony that she didn't have a key that day and she probably had left it behind in fleeing but he didn't ask her ok which  isn't that the reasonable step that for instance the waller case from this court talks about when some can ambiguity is raised the police have a duty to inquire what could be more reasonable and i expect police to say all right well this is your apartment do you have a key now if the answer is i left it behind because i was trying to get away from my boyfriend that's kind of understandable but the answer is as it would be here no i don't have one of never had one but that's an inquiry that should have been made and if you know we come back record doesn't say i want to wait other halves or have a key is that right now i asked her in cross examination did you ever have a key to this apartment not just with you that day but i mean ever since february when they said they moved in your honor and the answer was i never had a key and she further elaborated that the suppression hearing that she's been substantial amounts of time for living in her grandmother's house and that you regarded herself as a gassed in mr clay's residence this apart this apartment your story changed from the clothing in the apartment she did spend some time there i mean did that she was at least a frequent guest certainly i mean she's the one who described herself as a guest and she also have summer baby had some connection and frankly does substantiate her assertion that we've been living there together or have been living there pretty often with him for the last few months going back you ask judge another key factor there is the girlfriend had a lease that showed a copy of the lease that you presented to the police that they that identified her as the lessee and as i said here the testimony from within it suddenly i don't really have any information about who the lessee was but that's a distinguishing feature and also in gillis the girlfriend was able to produce a key not to the entry door but to some interior door inside the dwelling which is something somebody would have who has a you know a stake is as a resident or at least you know some right to be authority over the place even though you live there i don't think the court has his rule that if you don't have a key you can have actual authority and we feel so regard chaps true then why is the key so important i mean what she said was true she was living there she was living there for a fair bit of time they were boyfriend girlfriend just not that extraordinary to say whether as a matter of actual thirty upon dorothy you're hard to come and go as you please and and also that other people and if the court were to rule unsubstantiated claim by an individual that i've been living here an individual unknown to the police the cases the parties of brief have indicated that's where you start of course i live here it's oh i'm saying it's ok if you go in but i think the core is always required some additional circumstances some additional information so the police can act on something more than just an individual's word you know and course the idea about peyton versus new york is the dwelling is the exterior of the dwelling is the core value of the fourth amendment so those once you show up at the police station that day with that evidence the fact that she's got you had she had some facial out in the record but she  her appearance photos were taken that day that substantiated that you believe physical altercation or no the record in this case but yes your honor that's correct and her cell phones there's a cell phone found in the parking lot well in resp particular in the absence of a case well i guess the longer you live there the more likely it would be on the other hand that you would have a key to the apartment ok that you would be able to provide additional information that would substantiate your claim you know my my kids don't have keys to my house and they let people in the house all the time never occurred to me to complain but maybe after this case i'm going to say that it is i see one of the for the court to  morning court my name's andrew smith an assistant u s attorney i'm here today on half the united states i'd like to focus a majority my time on this issue i think we spent the most of mr abels time and that is kind of a middle of the facts of the case are a little bit confusing  with a lot of officers if lieutenant sutton heads out to the apartment to the apartment with actually two other officers you have officer choir's with the victim and you have two other officers actually executing search when all that is kind of creates a lot of noise a lot of confusion middle east but i think it has the potential to overshadow how much lieutenants a sudden really knew before he went that apartment i think in the briefing there's a little short shrift on clay standpoint as to how much he actually knew and just that you made a few of these points just a moment ago  step back and consider what really happened that morning you know the officers didn't wake up that morning deciding they were going to quit kick placed or they were responding to a call from a woman who claims she'd been sick domestically assaulted she came in in person to the police station she showed up with a real name her face had injuries on it and that is in the record by the way both choir and son testified at suppression hearing that the marks on her face were visible she proceeds to tell them a specific address a specific place in frankfurt a specific apartment at a specific address she's identifies a specific location within that partment where these the the guns and drugs that she identified are and then she travels with the police to that location so it's not a case here where she merely shows up and say hey i live at this place you should go search it they have a host of kind of corroborating things that she's both they can both visibly see and that she's telling them and i don't lot of credence in what she says what was the rush why  a one well in this case and i think it's the facts show what we have here is a woman who's been assaulted she's the only factor considered to as her expression of interest to go back to the apartment get her things there again as another factor that kind of corroborates this is in fact where she lives she order that but she also says he has a gun she fears that he's gone back into their goal number one if you read the testimony of the authors below their initial entry in there wasn't really to go in and search around it was to search and try to find him what we have here is a guy who they just learned has a gun apparently is dealing drugs and is of apparently just assaulted someone certainly there are more accidents circumstances that you could kind of manufacture but that indicates a pretty compelling need for the police to go do some police work and find this guy son went into through that door other than he knew far more than that you know this was just a boyfriend and girlfriend he had a host of kind of corroborating factors to be able to swat with him at the excuse me of the swat team with with he didn't have a swat team with him at the time he had two other officers who met him there and the testimony was generally he calls the leasing office they come in provide a key the representative leasing office and maintenance guy for lack of a better term goes around to a different apartment choir at this time is kept mitchell's out there at the scene mitchell the consenting girlfriend ex girlfriend but they've taken her around the corner for her safety and so everything kind of lends itself to this picture where the police do believe there's a potentially dangerous individual in there they're going to look for him they go into range not to have a key almost you know the longer you've been living together the odder it is well again i think it kind of depends on your living situations i think the panel noted i don't think it's actually that remarkable as a general proposition for anyone not to have a key on them at a given time even sometimes even a place they live in but certainly in these circumstances where we again keep in mind what the police knew at that time but they knew as the narrative is this woman literally been assaulted she was essentially running for her safety she goes off her grandmother she shows up at the police station having been assaulted it's completely reasonable this is what we tenet sutton said based on his you know eighteen some odd years experience completely reasonable conclude in those circumstances that she's not going to grab her key before she leaves in those circumstance this case this court has repeatedly held that the key isn't really determined of anything and certainly something you can consider but in penny the consenting girlfriend didn't have a key and u s b hudson there was no key in hazy bolt and there was no key united states there was no key so again a key is unfortunate is no kind of numerated list an exhaustive list of things you can look out to to determine apparent already because every case is going to be a little different but certainly a key is not something that tips the scales way off kilter here and certainly under these circumstances given the exigencies with which she left and kind of the other circumstance the police know about it's not really a red flag in the circumstances at all and the other key factor that brought up was the name on the lease and again i think you know as this court has recognized as a district court recognized below just how the realities of how people live together nowadays the legal formalities of who's name on a lease is not really determine if at all of authority to kind of exercise to be in control over a property and you can go to any college town you know go down to lexington which is where arses and how many kids are living there in the summer honest you know kind of informal sublet with someone doesn't mean they don't have authority let people in our department a lot of their names are going to be on the lease again it's something you know i suppose it's something somehow look past all that and look at the warrant there are a couple points the bare mention based on the brief in the briefing clay argues that looking to the text of the search warrant self that if the court were somehow not to credit the observations of the fleas from that initial entry meaning they would find that you know how to care for you to quote have a key to the apartment it's not don't think it's in the record one way or another what we do know is that he was renting a play interesting enough had been a resident at this apartment complex in a different apartment apparently got kicked out i think for failing to pay rent or something and so the leasing office kind of knew his name from that circumstance he then kind of informally sublets it from another friend who testified who his name was on the lease it seems like clay had a key and also had a key  there's this reference to the lock closet inside so it seems like he did have a key well i guess would make sense given that the house was locked when arrived out of a foolish move and if you have drugs and guns who knows what you're worried about and i think it's worth mentioning it going back to second to their initial entry and kind of the reasonableness of the police conduct here we talked about kind of what sutton knew when he went in but worth noting they go into protective sweep and then they encounter a closet that's locked now th records longer but the court found below that she had told them of that mitchell told them of this law closet beforehand but they encounter a lock closet and they're clearly not just trying to rip apart you know doors and look for evidence you know damn the cost they encounter a lock closet and what are they do they go get a search warrant which is again kind of this encounter lock closet that's a reasonable manifestation that ok she has consent they've already consent to this face over here but not this law closet here think it really does corroborate that the police were acting reasonably when they went in there that they weren't just looking to secure evidence at all costs what about the foyer arman further and so her one twenty four c conviction you know i guess it's  is this drug being used in furtherance of dealing drugs or is this just somebody is hunting rifle on the wall and there is happens to be some drugs there if you look at those other factors that are even addressed in clay's brief you know is the gun legal legally owned no he's a convicted felon is it loaded yes what kind of handgun is a small i mean what kind of gun what kind of firearm it's a small handgun there is an expert testimony about that's consistent with what drug traffickers typically use so all of those are already kind of stacked against gray and so the only thing that he really hangs had on is kind of how strategically is this gun located and all that rests on the idea that the closet was locked and submit to the court that the lock on the closet is completely immaterial because what the testimony below was is that the drugs were inside that lock closet and then what he was dealing the drugs he was always dealing at from that closet so in other words whenever he was engaged in the drug trafficking activity closets open the firearms here the drugs are over here mere feet away from each other the fact that when he leaves he locks it all up doesn't affect the accessibility of that firearm when he's actually engaged in the drug trafficking activity who otherwise any time you have any firearm that's found behind any locked door what's the point when the police find it would presumably be inaccessible that's of course not the case so i think you know we cited a number of cases in our brief and clay attempts to distinguish them and i think those attempts distinction just kind of lead credence to how readily accessible this farm was again it's a loaded gun it's found in the same shelf where there's i think something like eighty thousand dollars of cocaine found within mere feet of each other the only thing that arguably renders it inaccessible is that it's zipped up in a bag at the time it's found but again that doesn't render it and accessible compared to you know we have cases it's found in an attic it's found out in the garage the idea here is when we look at all the factors and there's a talent it's pretty clear and there's very very strong evidence below that that drug was being possessed in furtherance of dealing cocaine and i want to work back just a couple more points on the initial entry the search the warrant i would say you know putting even the warrant you know it can argue about what point should be excised i would say you know clay suggests that the government concedes that doesn't concede that that would be the proper if one were necessary and of course it certainly doesn't concede or believe that any kind of it is necessary that i think all that was properly considered the initial entry was lawful but if there were some kind of it the course certainly shouldn't strike the portion that says the complain also advise that clay usually keeps a fireman a clausing cocaine in the top dresser because the record below shows that mitchell told officer officers that the closet was locked before they went in there that wasn't something they gained as as a product of that initial entry so we have here you know come living past a search warrant it even if for some reason the court were to find it absolutely shouldn't that initial entry was problematic and even if after review here it finds its the search warrant was problematic those are kind of two hurdles that he has to clear there's still good faith and ultimately here we have  who clearly engaged in a very reasonable course of conduct they have a very credible complaint it shows up nothing no red flags never really arise they go to the commonwealth attorney with a warrant a search warrant affidavit kamel to turn signs off and they present it to him at a magistrate who is there's no evidence that is not neutral or detached he issues that warrant and in reliance on that they go in they execute the search warrant they find the gun they find the drugs that's a perfect case for good faith even if there was something wrong with the entry which which there wasn't and i think under this there was a little bit of confusion raised in the brace about their sort of the mclean decision the davis decision back in two thousand five two thousand six from this case from the circuit but i think in the time sense and herring case the davis case for the supreme court it's become clear kind of really what the exclusionary rule is all about disclosure rules really meant to deter future misconduct it's really intentional or reckless and there's just nothing like that present in this case that rises to that level determinative but courts case law is and whether or not they're on the lease is not necessarily determined to but i don't agree that the inability to produce a key and not being on the lease aren't red flags  leasing aides insist she told him and euna learned that ms mitchell never had a key now you made there may be follow up well you know what i learned they lived together for a long time i mean that all would have been confirmed right useful in a case where further asking would have found something devastating to the government's position but i'm not sure that's true here all the inquiry in the world would still have established she look there because were there and she lived there for seven many months perhaps it would have but it didn't happen in and that's why the court directed to preserve the are the fourth amendment values that are at issue here find out what's going on find out what the status of these people is it's not sufficient just rely upon the word of somebody who claims they have authority the courts never held that alone from an unknown person is sufficient for the police to conclude they have a to authorize their warrantless entry the courts always require there be additional facts and information obtained or vailable may be independent knowledge if you are been risk for instance  a better example where the couple had a very competitive us relationship and the police knew them all too well but there's nothing like that here there were red flags raised that warranted further inquiry and had that been with respect to the weapon really all the record says it's in the clause it tucked away and is it bad it mitchell said she saw it while they were moving in and out for all the records says it never came out according over in the corner is the gun bag zipped up in same closet not necessarily immediately accessible not that far away i have to concede that but zip and it was loaded it's a different thing if it's tucked under even if it's never moved never been referred to if it's sitting under the sofa care so folk cushion that's pretty easy is pretty easy access but the next room are zipped up in a bag that's not easy but about that setting three goes beyond mere possession that there has to be some indication that it serves the mission of the drug dealing in just being there isn't enough proof of that service i think isn't the case all should thank you all very much thank you very much in case a summit it