on i mean it was based on the fact there was a unequivocally across other quickly the crime happened just a few minutes earlier in that exact same neighborhood just a few to under feet away and then the description was more than just his ethnicity it is gender it was really just very precise and then they saw him in that location and no evidence that there was a lot of other people around that could have also been confused with  a baseball cap in albuquerque that's quite common and the probable cause inquiry as this or this found has the there has to be some probabilistic notion that this that is the person and so when you look at a majority hispanic state a very thick city and we have an american indian here is not particularly helpful description it is also true that twenty minutes after the incident occurred officers did encounter mr sosa now they encountered him on the street and gave him an order to go back to the building that he came from an order he was the only person they found and it is often true that officers will arrest the only person  established how do you get around the earlier supreme court some territories which said that the front porch was not cruel it's rather clearly can't currently be law but we are constantly instructed that we should not be the ones to correct circuit law that has interpreted prior supreme court law although they didn't interpret sentara but but we may be bound not by we can't abrogate centerra but since jury is out there not for the law whether it is or not courage but it is out there for whether or not he's clearly established to these officers that they would have to conduct themselves according to the rules of curtilage rather than according to the rules exigent circumstances because they didn't didn't have a warrant and so where this becomes important is whether there are accidents circumstances clearly established if we follow and whether that needs to be done depending on whether we follow sometimes or not or whether that kind of makes the law clearly established that you don't need to establish action circumstances so i think you ought to address exigent circumstance because if we fight this  scrape off evidence of glass or other things and that's there seems to me that the risk of disposal of evidence might be considered an accident circumstance i'm not saying it is  to this announced as your honor that that you're doing now i mean his his calmness his submissiveness and the fact that he that he did not argue with absence that he did everything he made no move to go inside the house there was no threat that he was going to flee at all at any time in the but there also but we but the officer said that he did make a move to go inside he turned to go inside we can't just disregard that can well it's but what i think that judge belly is getting at is the clearly established prong and frankly as i did not see in your brief where you haven't argued clearly established prong as to your curtilage issue i didn't see any cases cited i didn't see any analysis of any cases i think that's problematic for starters and it's also problematic for you to be referring now to this court's prior opinion on the direct appeal when that would not be the case law that we would look here in the case that the in the carlos case the court held that a police officer just like any member of the public has an implied license to enter the homes curtilage to knock on the front door to speak with  s for the purpose of arresting him and in fact they never even asked him a single question until after they already were in the middle of a hint i agree your honor and the you know like i said the investigative detention around her that was her oldest until they already were in the process of handcuffing him i mean he was clearly arrested by the and he had no discretion to say in the middle of my hands are up you got the guns drawn  is the what did judge bodach in the previous case decide what aspect of that becomes a law of the case in this case and how does it affect your or questions but i'm the has presented an affidavit for the court's consideration here so in terms of the law of the case the argument is that the defendants who are being sued in this matter in this civil matter are not the same as the united states which was the prosecuting party in the criminal matter and so i'm sorry go ahead my guess i would like for you no follow up because i understand what you're saying which is essentially that we could basically freshly consider the issue of the constitutional violation despite the fact that are calling some criminal pale resolve that you know against your client but why would we do that when at least at on the civil side we now have additional facts as developed through the civil proceeding through discovery and we are to view the facts in a light most favorable to the point how how does that help you with this point even if we were reevaluated those facts well the facts developed by mr sosa who is the defendant in the criminal proceedings are very similar if not almost exactly the same as they are of this proceeding but the officers did provide the court with additional facts and some of those facts include the nature of the call being a priority one call which is the highest priority and indicates to them that there was an immediate threat to life or property it also provided a dditional details about the work that officer dems such did in terms of what he was doing as he was circling the house what is what he was focused on at the time his interaction with mr sosa and noticed that he was breathing heavily it both officers provided additional details with regard to why mr so says behavior was suspicious neither officer knew at the time that mr sosa was on his own porch so it appeared to them as if mr sosa was attempting to conceal himself on somebody else's you know it's a walkway up to the front door but again here we can't we can't accept the officers provision facts here there's these a lot of these facts are contested by the point of this point so i don't again i don't i don't see the facts that one would have any meaning as far as reconsidering the panel's decision on the criminal side i think we probably could but why should well in this case the plaintiff paid some lip service to contesting his facts but didn't actually contest them so for instance the plaintiff has said that he was in fact by his front door and he is not able to contest the officers view point of that as him attempting to conceal himself with regard to him breathing heavily he does say he contests that but he doesn't say he was not breathing heavily all he says was he had finished smoking a cigarette and says why the family he said he walked at a regular pace to his apartment we can infer from that that he wasn't panning presumably heavily i mean it's inconsistent at least but not contested from from the defense perspective so for those reasons the court can reconsider the prior ruling  states that we could disregard previous rulings but should we and and the should we ask that to the case so little strange for one panel of the court to be the speech of course not your honor but the whole point is that the nature of the call being a priority one call involving imminent threat to life and property involving a home invasion using violent means into an occupied this is all due this is all or chooses not to reconsider the prior opinion this the defense can still stand on the basis of qualified immunity is this court has already recognized this morning on the clearly established process and i think that the court is well aware that there has not been case law developed in the briefing in this case that would clearly have established to these officers that the conduct that they engaged in in tw violation of the waar in violation of mr sosa's rights and the case that mr sosa relies on the carlos case again was decided in two thousand and sixteen the but it does go to the curtilage issue as well because there was not clearly established law that the officers could not perform an investigative detention of mr sosa on the walkway or porch area on the way to his front door you know not knowing that that was his property you know they're assuming that this man who matched the description precisely of the suspect is engaging in some sort of furtive behavior says he was on his front porch why does it matter what the officers might have fought well your honor the officers perspective is is important because we can't look at the facts solely from mr sosa perspective because the two thousand and twenty hindsight whether this was mr sosa sports in fact and the court has held that twenty two we shouldn't look at these cases with two thousand and twenty vision of hindsight we have to look at you know from the officers perspective with regard to whether there's a mistake if there's a mistake of fact then the court should look at it that way off it was never the officers never articulated that they well your honor i think that the evidence that mr sosa has presented that he was smoking was not evidence that the officer somewhat him smoking it was just that he was smoking as the officers were investigating mr so evidence was that he was turning towards the front door at the time that the officers approached him but an officer would not be liable for a reasonable mistake or mistake a fact and the court should look at it from the perspective previous opinion of this court did he have it before him he knew about it the district court below in the civil case yes ok yes i'm sorry your honor i  was confused just because there wasn't a trial in this matter but yes he he understood that there was an opinion i did but if i said trial i must spoke i did say that i thought the question was was the trial court court did held and this was a two thousand and ten case prior to mr sosa arrest and something that could guide the officers in this matter if not the search has reasonable suspicion that a suspect committed a serious crime including burglary it the trial court just construe that inquiry and clearly established far too narrow in in the way that the trial court approached it yes and the court didn't reach that currently to shew i think if you look