two individuals who are overnight guests who are standing directly behind the back door of the house and seen on the video standing on the welcome mat can lawfully be seized at gunpoint when they're not doing anything when they're just going along being what normal people would be when their guest at a house now the findings of the motson is case rely heavily on what officer raible believe i believe on pa it talks about that rivera seem nervous all we're asking is that let a jury look at the tape to determine if mr revere seemed nervous it says that copeland was huddling over nothing on the videotape ever shows m officers word is the gospel then there's no need to even fall nights in a three complaint because they always are going to say you know what this what i believe this is what i saw the great thing about a case with a videotape and what this court normally that mean this is objective evidence and two people may differ on what they see let the jury decide this furthermore they rely heavily on the fact that of pretty much the entire city it goes down or in city you see dale tone in it you can't just take a map some five years later and say oh this is a port of a rash of burglaries they are attempting to put lipstick on a p c but it's still a pig nothing happened on the video that was suspicious whatsoever they claim that copeland looked around the corner to always just went to the mailbox and you see him picking up some trash but even if he did there's a mark karr that by their own admission has gone by this house two or three times driving very slowly well the average citizen is going to look and say well i want to what's going on with that car but again that's not on the tape when we when let's just say mr rivera did not walk straight like they claim they said he walked you know out a little bit and came closer to the house and out again this is an elementary school yawners we don't have to walk in a single file line since when does not walking in a single file raise to a level of any type of criminal suspicion now we do believe as we brief that the court use the improper mean to determine whether or not the season was justified they were plot reasonable suspicion and as the a factor of one of your previous cases in more versus peterson this court has clearly now enunciated that terri in reasonable suspicion does not apply to the home and what we have here are two overnight guess again in the clear courage of the home the the video and print out some of the pictures there not only on the concrete slab i'm sorry there's an overhang there's three wall surrounding them they're just they're smoking a cigarette and then i started thinking  burglars take a smoke break if what he saw was so criminal you never saw these two people trying to hide never saw them duck cover but more importantly at the time he came out with the gun they were taking a smoke break in all my time in criminal law i've never seen a criminal in the process of a crime take a smoke break this we believe is unreasonable but what has happen is the in over time reasonable suspicion and argument probable cause has become extremely arguable you have people that graduated from major universities today that will argue with you and not that the world is still flat or that there is no global warming even though they empirical evidence is there where they'll say up vaccines cause autism no vaccine keep children from getting infectious diseases similarly that is what the arguing they're trying to come up with possible conclusions that this innocent behavior could have led to but the five hundred pound gorilla that wasn't addressed in montanus and hasn't been addressed here is why would and twisting all cameras also the inside cameras but again you claim arguably that these two individuals that you saw were engaged in a burglary much of their argument in  their brief deals with facts that were only known after the seizure and i'm asking his court not even to consider that the fact that he had to sand was not in his pocket unless obvious arabia has x ray vision he didn't see those the prime marks and they said they saw in the back door again he didn't see those the fact that their address didn't match even though they were overnight guests and information was provided for that they didn't even have the i d s at the time of the initial seizure so even if probable cause was not the standard even if this court were to say that the gunpoint was not a de facto risk even though i breach that issue in which was an responded to by the a pelleas notwithstanding that the reasonable suspicion was not  on two fronts by the st we believe that this would court a plot the wrong standard but even if they did apply reasonable suspicion and i would argue that clarke and reported this opinion is the only case that they've ever cited to you could apply reasonable suspicion to the home and i would distinguish clark because clark dealt with area of a bunch of vacant homes bacon yes or a majority argument so much i really hate to interrupt you but i did i did have a question stand that you take the position the facts are in dispute but when we evaluate this case don't we evaluate it from the as through the as of a reasonable police officer reasonable this is the linchpin but what i implore this court to to address again is that standard don't just let them argue that the world is flat with all the evidence is it is round the tape speaks for itself beginning with the claims that he says that the walking pattern of mr revere at the time he said that happen you see mr rivera standing still he's standing still on the tape with this court has it over and over again when two sides can reasonably differ as to what's seen on the tape let the jury see the tape not just let the officers say with this what i believe but even to believe in that was the crime of not walking straight i mean that's i'm asking what's the crime on believes a burglary was in session i asked just that again buttressed the dismantling of the tapes those two things do not add up at trial we would have been able to argue to a jury that that's not reasonable for him to believe the cause to suspect they were there and copeland were committing a burglary and therefore they had edge in circumstances to go inside the house without award so the district court we're not worried about the search are we no we're not worried about the search but in mountain as the court did decide on a probable cause to believe that the individuals are completing a burglary course in money as it was decided last year  well after this incident the letter act but i think the court is bound by the prior precedent of martin has when the mountain has opinion is actually reviewing the identical set of facts  what that mountain is opinion decided is that the decision about whether the search was lawful turns on whether or not the officers had probable cause to believe that this was a burglary but the decision about the search involve well it involved began the undisputed fact that there was a rash of daytime burglaries undisputed facts that mr rivera was was pacing on the streets anxious that there were no cars at the house that he was on a cell phone that he was taking kind of an unusual route on the perimeter of the home and that the other suspect looked like he was in a position of a lookout now this is these aren't disputed facts these are the facts that in fact the appellant's agreed to so there's nothing about the video that is going to contradict what both officer raible and rivera agree occurred before the video starts meaning we don't have video of his demeanor and his actions out on the corner but rivera himself acknowledges yes i was scared i was shaking these are his words he says my you know the courage that somebody could walk up to if they go into the house i think what's important in this case is that obviously the officers had exited circumstances to believe that they were burglarizing the place and you know did not believe that they were you know the lawful  residents in there i don't think it's clearly established at all that you know the peyton versus new york idea that you need to have a warrant to enter into the home applies to the courage and it certainly wasn't clearly established in march of two thousand and eleven i think the case that my colleague refers to the more vs peterson case was a two thousand and fifteen case this is march of two thousand and eleven so there's no  no clearly established law that says that the standard of stopping somebody outside the physical threshold of the home requires both probable cause and a warrant and i think that explanation for the manipulation of the cameras that happened hours after the initial stop and that was because the officers are at that point are going to be conducting a a pursuant to a warrant a search and the concern was that they didn't want that to be something that somebody could remotely see how they were conducting the search of the home with the warrant but that didn't affect in any way and even you know martin as in the deposition the record that didn't affect his ability to have the recording he says that he just if you take his light most favorable to him he says i just chose not to record the earlier parts because i thought the most important part  for my purposes was you know the actual stop and so that's why we don't have what happened you know three minutes four minutes five minutes before the actual stop the things that caused raible to be concerned that there was a burglary the things that raible to call in the signal twenty one dollars to call his fellow officer and to meet with the fellow officer get out the at the gas station beforehand all those things that aren't disputed because raible himself says yes  you know scared yes shaky anxious i was all those things that he says that was because i got a phone call and i was going to go to new jersey but i really was you know actually nervous and pacing you know were you out kind of on the perimeter of the house not you know going from the front to the back without actually going on you know the property says yes now the reason i was doing that was because i don't like to get my shoes dirty but you know from the officers perspective it looks like this is an individual who's you know  anxiety he's nervous he seems to be trying to avoid being seen on the property and it's the totality of the circumstances the rash of daytime burglaries the anxious pacing on the street that there's no cars in the home circuit said probable cause now they do do the initial stop and they are in the process of you know one securing the suspects checking their i d s and to find out that it's not they don't match the residence they at that point  you know see the knives see the prime arc so that increases the concern and all this is happening in a very short period of time and then within ten minutes they may have other grounds obviously to to arrest the suspects meaning the warrant for the arrested as long as well as the possession of the suspended driver's license so you have to consider the totality of the circumstances do you agree that we evaluate them through the eyes of the police officer yes i think that's absolutely true who are making decisions at you know a tense you know an uncertain circumstances so and again i think that's why both the district court and the th circuit in the earlier case determined that there was no reasonable grounds to be concerned and during that period of time when they've they've secured the suspect they are actively investigating and making sure that they want to go inside to make sure they are not additional perpetrators or are suspects inside the home  and and obviously running their id's which which lead to lead to their arrest you know i want to emphasize the fact that you know these officers are entitled and certainly officer  qualified immunity which means that you know there needs to be clearly established law to show that under these set of circumstances that the officer did not have grounds to stop this individual these individuals and  circuit that means generally speaking binding president from the united states supreme court the th circuit or the florida supreme court so they would have noticed that when you see these set of circumstances this would not give you grounds to stop that the set of circumstances do not establish either arguable reasonable suspicion act shoe a probable cause or arguable probable cause either one now obviously we have a case now know it's the modern is case that is analyzing this very set of facts and i do believe that the that case does indicate that the officers had probable cause problem cause for the initial stop which only increased when they find shortly thereafter shortly after stopping them that one of them has knobs they are scratch marks on the door consistent with those knives and the i d s don't match the residence so you know it's unfortunate that we don't have the video showing what exactly you know rivera was doing that that officer abel found suspicious but we you know we do have you  place and i think in the light most favorable to him you should you should accept that but you also have to acknowledge that he was acting suspiciously he was acting anxious submitted an affidavit saying that there was a rash of daytime burglaries in march of two thousand and eleven that happened you know primarily in the daytime and that there this map reflects the march two thousand and eleven  burglaries in that area now again and you know you have to kind of look at his deposition and realize where route forty four is and where fifteen a is but there's no counter you know he hasn't submitted any affidavit  or you know deposition testimony to counter what both what raible says and he certainly doesn't have an smit anything to counter what both raible and his own client says about his own certainly the martin is case you know i think it's controlling but i think it certainly should be persuasive for all the reason you have any authority the disk controlling just the fact that there is a prior precedent rule which i think would were constitutionally permissible turns on whether the officers had probable cause to suspect a burglary if they did then they could enter and it seems clear to us that they did so it's identifying the issue of whether the officers had probable cause and it says its decision turns on the resolution of that issue it reaches a conclusion it seems clear to us that they did and of course that it analyzes the fa that this decision of the district court should be affirm these officers legitimately thought this was a burglary in progress but they're wrong or did they have some or terry or motive is one really an honest evaluation of of the facts to lead them to believe it was a doing so is a pretend you're position is a pretext for drugs or yes yes and we were precluded from doing that because of the summary judgment based upon reasonable suspicion you all asked the question if you look on camera position that we did this caesar based upon a belief that there was a burglary the one thing they keep point about this rash of burglaries and they still didn't address it he attacks the two thousand and sixteen map nothing on that map was stablish is the dates of which these burglaries occurred they cannot rely upon that now whether or not you are bound by the facts of the previous case st argue that you don't but it's only up to a certain point he keeps saying there's probable cause because it's been previously found in  decision but if you strip away those facts that were found after the gun point cesar on the curtilage of the home they don't have it if there's a page on there this is at the walking in the either the is not on there because that's not how the court addressed it because it came to the court in monson is on whether or not it was probably cost plus exigent circumstances he keeps calling this a stop there are no stops in the home as i did argu peterson that's been clearly established by the th amendment itself sometimes the law is so clear that you don't have to have a ruling to say that well you know this you should know this you should know this that you do not have terry stops at the home and that is what apparently occurred but for the gun the gun takes to write out of it the gun now makes it probable cause and there has never been an analysis as to whether or not at that point but i s of course consider this treat transpire that wasn't transpired because the court just set up we're going to go reasonable suspicion we're going to call this a stop the court never addressed the courage that we see this occurring on again that takes it in to probable cause the one if this is such a burglary and you think something is happening then he go and meet up with another officer if time is of the essence and in something dangerous as happened in the same way you came out by yourself with this gun the nd time around you would have done it the st time around these are the facts that our disputed islander stand that we have to look at a reasonable officer but we also have to look at a reasonable officer in light of the objective facts we cannot let him put the lives that all over this pig and say listen this is what we have to do is say well is it reasonable for him to make this argument that what he saw was probable cause of a burglary and i would submit that again where they're going to take the loot they got a call over something because there's no car so if you caused injury to people because he has violated a home with his gun and shot people is i hate to interrupt you tube i want to be sure all of your minutes or your callers are here so if it is i agree i mean that's got to be it's but the courage cases from the spring core came out after an arc or really came out after this incident is that a problem for you i don't believe is a problem because when you read those independence and today of all days this is normally a holiday a moment to work on is that this is the th anniversary of brown versus board of education where a court that had at least three members from the deep south decided unanimously to give the th amendment some question is really not well i'm not there inside the curtilage outside the curlews well that there's probable cause a reasonable belief that they're committing a burglary and it has but it has to be probable cause and not reasonable suspicion that is the issue and