because the district court found a constitutional violation i sort of revamped my research to focus on the clearly established right portion and how we determine the contours and how we determine the level of specificity that's required in doing that i noticed that i relied heavily on jordanians they relied heavily on carroll vs carmen both of which were decided after the conduct issue but going backwards through jar deans you find that that court relied on united states versus jones which was a two thousand and twelve case and it relied heavily on it for the concepts about the you the concepts of when a court decides a search occurred in part looks at what the officer was intending to do and i don't mean in a subjective manner i mean based on the objective facts available so going backwards from jones which was a two thousand and twelve case they relied on silverman versus united states which is interesting because that brings us into the concept of capturing communications electronic eavesdropping and things of that nature and that's really where i would like this court to focus as you decide whether the conduct of the officers in going along the sides of the house to listen and look in the windows falls within the contours of what we have established all the hardesty case i don't think changes the analysis or helps either side because even though it's from all six as the officers approached there was a change in the condition of the home someone turned the lights out there were issues of whether someone inside needed assistance so the purposes of stand simply were different objectives but in a light most favorable to the plaintiffs those two officers went along the sides of the house to gather information and i think that's where the district court made its mistake and i believe it was reversible er gold for fifty one us to zero four and that's the case where it was first determined that even with an arrest warrant the police cannot search a third party's dwelling for the subject of the arrest warrant there was no warrant here but nonetheless the concept covers that covers our situation the police to a third party's home looking for someone else and i know the courts from earlier with the facts they were quite well developed and briefed the police it doesn't appear to me they really claim that they believe robert lived there they knew he stayed over at the other a vehicle was there as a bedroom was there as the baseball bat was there so i think as again in a light most favorable to the plaintiffs this was not considered his dwell unfortunately income or for do we don't know a lot about the extensiveness of the entry into the curtilage it just doesn't give us much specifics the only thing we do know is that the approach in that case was  not o'clock in the morning and here it was august so it was they light well into the evening if it was sunny but obviously the breach of the door heard of i think it a little bit after midnight on the following day but they breached they had a warrant that oh yes yes i think they had both been about pre war and activity at this time yes i think they actually had a search warrant an arrest warrant i think so if we just go back and look at sixth circuit precedent for dealing with backyards i realize at this point i'm talking about the side yard where they're gathering information but nonetheless they broke the plane of the establishing the protection for the back yards so the that's where i think the district court again went to stray on working with then how to define the contours and of course we have you know significant discussions and most recently is hope versus polls are five thirty six us seven thirty and it it talked about immunity and the degree of specificity and the fact that a novel fact situation can be included and there are five there are four therefore deny immunity and i think that's what happened but in that regard you're just talking about i assume entering on the property trying the initial knock and talk and saying that once nobody answered remaining on the courage and going and looking listening that was the constitution of violations yes smit and clayton are the ones that went down the sides of the house and then those two plus styne away remained yes so was it the going or the warrant there are exceptions there are the usual hot pursuit he sees something and the case law is pretty clear if if he makes an objective observation from a place where he's law then he can react to that and go enter to prevent the destruction of evidence render aid things of that nature so i i wish i could say it's unqualified but it isn't but in this context without more they could not go in there and i think the key is their proximity to the house the rural setting and their purpose was to see if they heard any activity or could determine if robert was there they were looking for evidence to justify where they are usually wanted to do a knock and talk right yes and it was ok to go on to knock great start away on the porch for a period of time was lawful i personally have a problem with him looking in the window but i don't think i have the legal authority to say that that was a constitutional violation maybe a little bit of socially inappropriate but we're not to a constitutional level but stein away on the porch for five minutes ten minutes fifteen minutes i'm not going to wear and claiming that that's a violation of the constitution but we're talking hours at this point that's the difference right yes not that they were necessarily looking for evidence it's that they're it's that they were at least as i understood what the district court did in this case it's it's an extended knock and talk an hours long knock and talk in other words trying to rouse these people so that they could speak with them and that the district court said it was problematic but it wasn't clearly established that it was problematic that if i'm understanding that correctly that doesn't have anything to do with searching for evidence that has to do with trying to rouse the people in the house so that you could talk with them which is not crazy is a matter matter of social mores i mean if you go to a house and you know they're in there and you ring the doorbell and you yell and nobody comes and you really want to talk to him you go around the back and knock on the back door or you see if the lights are on to see if they're really there i mean that but say i doubted you could say well that should be constitutionally prohibited but then you have to have a case which which says that's constitutionally prohibited not an analogy to a case where they're in the backyard looking for marijuana or something like that that's that's w you know so you you pull around and park and you're you're automatically looking younger the side yard and the back porch and it's just a few feet away from the street and that creates a significant problem and we're i think we're on solid ground here is the rural setting the scene hardest if you have indications that there's somebody inside if the police seventy patients that there's someone inside they can go around to the other entrances to see if they can rouse them i know that one fact that i made particular note of from hardesty was the fact that as the police were approaching the lights went out well here correct me if i'm wrong on the facts but the police had good reason to believe that your client had gone to his house and when they got there his truck was there in the hood was warm yes so that gives him good reason to believe that he's inside we i don't think we have a good time frame about how long it took the police to get over there the officer from the seam stayed and talked to people for a while and then he went over there and they met i think out of the street so it was a fairly reasonable you're right and the lights going off in the house at hardesty was a definitive thing and they didn't have anything additional other than a truck parked in the driveway until they went along the sides of the house  behalf of the defendants and appellee s i guess i'll start with the search claim since that's what you mainly focus and yes i'll start with the unlawful search claim since that's what mr bostic focused on i do think that what the deputies did here was within the scope of the not contact me not in talk investigative technique as this court held in hardesty the officers can go around to other entrances to see if someone is available and as your honour's noted they had good reason to believe that robert's inside the house his truck was there it was warm this was about a half an hour took him about a half an hour for the deputies to get there after they interviewed the complainant so they had good reason to believe that different i mean they couldn't do it for days could they no your honor and i understand that the time issue is is the big issue here but there's testimony they got there around seven o'clock in left at about eight forty to get a warrant during that time the hour and a half they were knocking they were trying to get a hold of someone inside the house and around the house and two of them did enter the curtilage but as you know this court's decisions in hardesty and the supreme court's decisions in carroll so that's permissible and as to the time factor i know the district court cited judge deans which said basically describe this implied license as you know allowing officers to go in the door not promptly wait briefly to be received and then this case occurred in august two thousand and eleven and at that time there was no case that even really touched on the durational limits of a knock and talk you know he mentioned wild turkey calmer for where this  you know there was no clearly established law addressing whether it was constitutional to surround the house you know by the curtilage during knock and talk that was issued after this incident but they were looking at whether it was clearly established in february two thousand nine because that's when that incident occurred so i think that case is relevant here as well in terms of this concept that what the deputies were doing was amounting to a search you know your honor mentioned you know these cases are distinguishable and they are the jar dean's case i mean they are doing this knock and talk with a drug sniffing dog alerting to marijuana that's quite different than what the deputies did here was just trying to get ahold of someone in the house there was really no evidence incriminating evidence even to search for this on this property same with the dhanbad case you know they're they were looking for stolen property that was being secret in the garage  here like they're just trying to make contact with someone inside the house and i don't know how long did it take to get the word it took about three hours but hopefully get it yes he left at eight forty and there was testimony he didn't get back until about he got it at about eleven thirty got back about midnight what do you call that time well they're waiting in they're still on the program but i think that's what's not clearly establishes whether they were entitled to to do that without a warrant you know i know this knocking talk was kind of an extended knock intact but i don't think there's any case and i know the district court was unable to find any plaintiffs didn't point to any case that said that what these deputies did just staying on the yards from the house only in the curtilage for an hour correct minute that point they were i guess outside the courage by making sure that he wasn't going to leave you have the right to be outside  so where did they wait they all waited in one spot you know they were still on the property they were just about fifty to sixty yards away from the house and i guess it's not really developed whether that's still within the courage i would argue that it's not but sixty yards from the house is arguably in the courage well i mean i don't know they live on twenty acres so it's you know they have a large property and i guess i guess that was the concern you know w with they don't want all of them to leave i mean there's multiple exits this is twenty acres they have to this is a pretty serious and violent crime that is difficult part is being on the curtilage or in the courage like under the  eaves or just under the window or whatever for hours right as opposed to minutes because the basis for allowing them to be there is the is the implied implied license lied license the implied license is that you can go to the door and knock you can be an acquaintance or a friend returning from years ago or or somebody trying to hand out bills or whatever you're all here that's people implicitly allow that that most people and so it's it's constitutionally ok to do that the difficulty is extending that for a long time and it's interesting that it's really only you know a half those which is still a long time for that kind of thing but it's not five years five hours is being yards away right and i think it's really it really is a gray area you know when you look at the case law because there's a lot of cases where you know an officer goes to get a warrant and you have other officers surrounding the house securing the perimeter making sure you know the deputy doesn't leave and there's never been a case to say that you know even if they're on the curtilage what there is what they're doing is wrong i mean this is a pretty common police action and i think there needs to be some case as you mentioned to put these deputies on notice that if they can't do that there needs to be some case to put them on notice of that i think this fall within at most a gray area and i would like to bet the flash  the flash bang well i would first argue i guess that the use of the flash thing didn't violate clearly established law this incident like i said occurred in august two thousand and eleven at time the only case finding a constitutional violation for a flashbang was i think rather authored versity of whitehall that case was very distinguishable in that the officer supposedly knew going into it that there were highly flammable accelerants in the house and that the flash bang would likely cause a fire and it of fact did cause a fire if i recall correctly and i think as  established i also think that the use of a flashbang was objective lee reasonable here you know if we start out with a crime it is she was a pretty serious crime or had reported that he used a baseball bat threatened her with a threaten to bash her brains then stoller phone when she tried to call for help there was also the issue that after lieutenant dominic got to the scene he had intelligence officer coming to gather information and that officer found that robert stored guns at his parents house you know they had reason to believe that robert knew the deputies were outside so they had really no idea what was awaiting them inside we're through we have a warrant it's time for you to come out yes i know there was a museum i know there was an issue with before the tactical team went in there was crisis resolution team that did the negotiations and there's an issue there with you know why didn't they tell him they had a warrant and i believe there is testimony that they did not mention the warrant during a bow she ations but there is also testimony that the tactician before they went in didn't mention the  warrant who mentioned that there was there was like a period where there was the crisis the hostage negotiators try and you know using the bullhorns the flashing lights making announcements phone calls and there's an issue there will did they did they even tell them they had a warrant no they didn't but none of those negotiators for their supervisor this are parties to this case so i'm looking at you know what lieutenant dominated and he supervised the tactical team which did announce there was a surprising people these people presumably were in there for hours the right nonresponsive and when that happens you might be able to draw an inference that there are or that they're preparing traps or whatever and so therefore you might want to be a that robert knew that the deputies had been outside because they'd been knocking and trying to get ahold of him for hours and also the access to guns so they had no idea what they were going into when they entered the house and again i would go back to the fact that i don't believe that the use of a flash bang was a clearly established violation at the time that this occurred there is also a failure to intervene claim i don't know if if you want me to get into that essentially are i know during the depositions of the officers would not acknowledge an overhead satellite shot that i had as if to refresh their memory as to the way out but then they put it in one of their birth in their priest in the district court the defendants put an aerial photo of the property and i i'm sorry i can't give you the page id number but the brief says it is it's in one of the districts i don't know if it's an appellate brief but it's it's in the district court record the fifty to sixty yards you know it's it's a large backyard the proximity the use enclosures you know our other place sets toys grills no i mean we don't we do and that was the thing i was the reason i pointed out about in  the court a lot this concept is only going to be able to be identified in the limited nature forever we have so many configurations of residential properties that the courts are going to have to hold the police to some commonsense about applying these factors real tough to put that in the context of something that's clearly established out there that would have told these officers that fifty to sixty yards out was still within the courage in this property right and that's why i wanted to bring it up was because it was either clayton or schmidt that we were they were sort of joking at the deposition about the mosquitoes because it was august and he was just getting eaten mosquitoes and when somebody left to go get the warrant i do remember there was testimony about the number of officers i think they had three and in one one left to get the warrant they somehow they changed a little bit but they were still in a position to clearly see the house which was the point of them being there so him and my last remaining seconds i just want to talk about the flash bang the use of the swat team and to dominate he trained these guys he trained them he selected them he put them on this team he set their policies and the way they treated mr nihilists i put that quote of him in the back or in the last the very end of my brief nobody says it better about that animalistic behavior that they demonstrated toward him not telling these people there was no warrant is eminently unreasonable so i would