available i'm still here ok good thank you your colleagues forgot about you but the council didn't thank you good morning may it please court with the federal public defender's office in muskogee oklahoma and i represent the appellant jack nugent as often do when i'm getting ready for oral argument i try to go over the briefing in the case and figure out what really wasn't talked about as clearly as i would walk in what stands out to me up from the record as a whole and in this case i notice that we spent in our briefing a great deal of focus on this question of whether a search happened whether it actually was a search when deputy clinton opens the back of the camper and there's good reason that we did that that was one of the key findings in the district court's ruling is that opening the truck was a community caretaking function and therefore it was not a search we talked about it in the briefing also but i would like to focus for a moment on the case law that it dresses this concept of community care taking function because if you look at that case law it simply does not apply to these facts st of all none of that case law says that if an officer engages in a community caretaking function then it's not a search but is that issue raised in any of those cases do they specifically say caretaking function does not satisfy the search requirements what the case law says is that in a narrow set of facts that if an officer is in gauged in a community caretaking function and completes what would invoke the th amendment that the conduct is nevertheless reasonable conduct and doesn't violate the th amendment and the two the two chicago police officer is is found in a wrecked car the authorities in wisconsin think that he's should have a service weapon with him the car is already been impounded and they go out and look in the trunk of the car for what they're really looking for as a service weapon and on those facts the united states supreme court said look these officers are following an established procedure the car is already impounded and they really think that there's a dangerous instrumentality present in the vehicle on that narrow set of facts we find that this is is not an unreasonable act by the officers appears in supreme court opinions and one of our opinions that suggests there there might not have been a search here not just because it was too many caretaking but because they weren't looking for something and there's a just concurring opinion in jones says when the government does engage in physical intrusion of a constitutionally protected area in order to obtain information that intrusion may constitute a violation of the th amendment now in community care taking you may be searching for information like a gun katie but that wasn't the situation here and then in our ackerman decision which was written by judge course each time it says jones explained the government conduct in there constitute a th amendment search either when it infringes on a reasonable expectation of privacy or when involves a physical intrusion a trespass on a constitutionally protected space or thing for the purpose of obtaining information so i haven't been able to find anything really pursuing that but there is some authority that if the officers aren't trying to obtain information it's not a search your honor what i would respond to that is that whether the officer is intending to obtain information or all the  amendment precedent is evaluated on an objective basis i come from a background before i started doing these these federal criminal cases and found what i want to do with my life i was an insurance defense attorney and this this sort of reminds me of the situations that would come up where someone would punch someone and say well this ought to be covered on my insurance policy because i didn't intend the harm and in that context and that's the same way in this context let's look at it objective i'm not sure how you measure objective lee whether the officer is trying to obtain information if the if the test is tried is whether they're doing this to obtain information that kind of sounds objected to me but even if it were objective in this situation what's there to indicate that the officer was trying to obtain information what is the to be expected result of the officers conduct that that is the standard and what th decide then then ok so in other word that that essentially rules reads out there would be any possible requirement that you're trying to obtain information because any time information is found to say well that was  expected that should be the standard if we want to maintain the th amendment let me let me address this separate issue here the opening of the door that he can say it's a search that was not at the officers initiative was yes it was yes there was no request by anyone for him to open that door well the the woman wanted to get into the car to get stuffed so he's acting as her agent to open that door you know know that there was there was no request there was no need for the officer to open the door for her to get in there in the testimony it's clear that there was no request for help with this they didn't provide help with getting into the other part of the car there was also no need for an officer to be there to keep the fight from breaking out the officers testimon was that they were calm at this point but they kept it up the side of the car he got in between them took control of the space between behind the truck opened it up and looked down inside saw the bucket of a munition and picked it up and took it out of the car inside of the area that is what happened there was no request there was no need she was not infirm there was there was no asking do you need help is it ok for me to open this door and in fact the district court found that there was no consent so i made it out so if counsel just i'm i'm looking at the at the transcript of the hearing and at one point asked to deputy clinton was asked and i'm i'm on page eighty one of record twenty seven of the transcripts so it was this this sounds like it was at her request for you to assist her in obtaining her belongings is that right answer yes how is that consistent with your answer to judge hearts in other testimony he makes it clear that he didn't ask for anybody's permission that he was not confirmed concerned with anyone safety and there's no testimony about any conversation going on where she is asking him to help i believe the testimony that you are addressing is in redirect by the government yes after there was testimony already establishing that i just kind of walked over there and opened it up and nobody had asked me to do it and i don't ask calm that by the time that they get to the vehicle that he's not concerned for safety that's on page seventy four dollars but none of that addresses because i mean that request issue ultimately there was no testimony there there was no statement in the report that is attached to the brief as an exhibit that's on the record i would encourage the court to look at at the at the exhibits and governments exhibit one includes an affidavit from deputy clinton and if you read over the details of what actually happened there was never any indication that anyone said i need you to open the door the officer testified that they all walked out he got in the middle and opened the door up looked inside saw a bucket of bullets took it out of the car and then immediately the effort  begins let's take her over here and interview her in the car and ask her about guns another officer during that time period is for the st time running a background check on mr nugent let me read from the cross belongings mr nugent i believe did not have any objections at that time so she could get her belongings that's not what i asked you if you did you ask for permission to open the back of the truck he says i have to reference my report and then he says there's nothing in his report on that point right which is not doesn't mean it didn't happen but it doesn't it's not in his report it's not in his report and it's a statement that i can't remember that anybody asked me to open the back what me look at my report well it's also not in there and to the extent that the government is the one that it's arguing consent the burden is on the government and the district court made a finding on consent and said i don't find that there is consent and then the government expressly didn't object to that in the report recommendation and then in their appeal brief indicated they were i'm sorry i want to make sure when you say consent there are two things it's not clear whether he's saying  to finding the bullets take them out of the car and starting a criminal investigation if they didn't didn't mr nugent give deputy clinton the keys to the truck that i do not recall or i recall the test he had the keys and he had the title in his pocket but i don't believe that any keys that there's any evidence that keys were handed over for purposes of accessing the vehicle i have a  different question i mean i meant quite sure that we're that this who opened the door is all that important it's only important if there would have been a probable cause to arrest when they saw the ammunition and i didn't see any testimony that they would have arrested him merely for the ammunition but secondly the real issue is not that the who opened the door but rather that one closed again because it was the fact the door remained open that enabled him to go back and see the gun and that really was the triggering event and regardless of who opened the door it wasn't close and so my question is was there any testimony about any impropriety of this of the officer that left that door open me whether he improperly opened it or whether julie would have opened it is only his mind that she would have shut the door after she opened it with if she would have left the door open anyhow then he still had the exact same opportunity to come in and see the gun and that was the real triggering event so to questions it was really just a movie about whether the door remained open somehow because the officer opened it in the st place and secondly was there any testimony that the that the officers would in fact have arrested purely on the ammunition the district court found that the subsequent search of the vehicle was supported by probable cause because they had seen the ammunition and subsequently determined that mr nugent had a felony conviction when they learned that didn't they take mr parrish over and or interview her in a squad car about firearms and another officer then runs a background check on mr nugent to figure out whether he has a prior conviction in the district court or the district court's ruling is at that point there is probable cause that a crime has been committed so that they can search the car because we've got it we've got talk about a gun which was prompted by finding the ammunition and a look into his background which was also prompted by so everything is triggered by seeing the m o you either win or lose based on whether the officer could have seen the i'm the the district court essentially adopted a fruit of the nonpoisonous tree analysis what he said was is that there was no search when they open the car up looked at a bucket of a munition and seized it and took it out and once they had that all that they then did was figure out that he was a felon and at that point you've got probable cause and everything that happens going forward is permissible that was the analysis of the district court your time has expired judge matheson did you have any questions i just had one more question it's slightly different variation on what we've been talking about but how could mr nugent have had a reasonable expectation of privacy when he knew that ms parrish was going to take her things from the back of the truck in the presence of the officers there's a reasonable expectation of privacy in the close compartments of the vehicles and the ammunition was was that in a closed apartment there ammunition according to the testimony is in a bucket that is very close to the  but he did say i looked down into the bucket and it was the positioning of his body in the process of opening the vehicle that gave him the vantage point on the gun which is a little bit of a separate issue please the court my name is linda epperly i represent the government of the united states quickly in reference to add the court's question regarding whether or not a community caregiving function is recogniz d as an exception to the exclusionary rule or exception to the search requirement recently and two thousand and fifteen in this court's case of united states versus gilmore arising out of the stop show here in denver this court found that you know normally searches conducted outside the judicial process are per se and reasonable under the th amendment subject only to a few established and delineated upset exceptions and this court found an exception is for the community caregiving functions which are police actions totally divorced from detection investigation or acquisition of evidence relating to a violation of a criminal statute and i believe that there are several other of the cases that talk about the community caregiving function being an exception to the normal th amendment analysis and that's because as this as the supreme court stated in elkins vs united states the courts have seldom shown themselves unaware of the practical demands of effective criminal law enforcement one of the practical demands on law enforcement is not only investigating crimes but it's dealing with people who are passed out at the stock show or wandering around in a field for several hours and then found slumped over or in a car that has been wrecked or in this case a car that is disabled with a couple who  sureness council but but what the officers responding to a reported domestic altercation how does that take this into community care taking they weren't responding to a domestic situation and the woman had called been allowed into the office there and had called for help the parties had agreed that they would separate for the night they could and the car wasn't going anywhere because it was disabled and the officers were attempting to simply keep these parties separated from one another until she could retrieve her property out of the vehicle both parties understood this there was no objection as they stood at the back of that truck with the officer in between the two parties the hatchback was going to be opened by someone  the officer maybe didn't have to be the person who opened the hatchback but i would suggest a couple of things one that we like to believe our officers and not the home are well trained and courteous people and as  because they both knew that they needed to separate somehow better act was going to get out of it the other thing that made it somewhat reasonable for him to see it opened it rather than then it's not clear that he would have seen that buck is there because when shielded she might have been standing between him and the bug and blocked his view she might have shut the door after she had gotten her clothes out we don't know any of those things but had those things happened then he might not have ever seen that bug and she probably almost certainly would have taken the bucket but on the ground first of all the proof all that were true perhaps but in this case the testimony was that all three of them were lined up there at the back of that pick at once that truck lid came up the officer did not have to lean over or stick his hand opening the car he would know that but if the op is the government's burden on this he likely he the officer likely would have been standing still and pros close proximity to the back of the truck for for a couple of reasons one to stay between these two parties and secondly the dependent pen in fact asked the officer to make sure that when she went into the back of that truck she did not get out any of the jewelry that supposedly belonged to one of his family members so the officer would have stayed where the officer could monitor both of the individuals and monitor what was coming in and out of the bit about just to be clear on that last point mr nugent asked the officer to make sure that she didn't take the jewelry or did he ask her not to take the jewel i do not have the citation to the record in front of me to be able to tell you exactly who that was asked of my assumption would be that it was asked of the officer because those two people were attempting to not talk with each other at that point and i think it would also be consistent with a little bit later in the testimony where the defendant did give the key to the passenger portion of the compartment to the officer so the officer c attempt to open the door and that then the court had some question about that there's a citation to the record at page four of our brief that indicates the defendant gave him the keys to attempt to open that door down so can i maybe just breakdown it seems like we're touching on different bases for the search that we talked about community care taking i think we've been talking about maybe inevitable discovery in terms of he would have seen the ammunition if she had opened the bag and then the rd possibility that i think you're touching on now and i'd like you to address further is whether it's your position that the tect of clinton had consent to open the camp st shell that on the truck i mean we have not addressed consent for one reason your honor and that is that the the magistrate judge went to great detail in providing several ways in which the search could be upheld including community character and in plain view probable cause inevitable discovery well i'd however render stand that that there was there was a reliance on community care taking but if we don't agree with that is sent back up position consent in the view of the government factually could be a back out position however given the number of other alternatives it would seem that that would be perhaps the more problematic way to go the taking do we need to reverse know your own because there our position would be there were four different bases given by the magistrate court as a way to justify the seizure of the shot of the rifle on the ammunition in order for the defendant to prevail the defendant would need to prevail on each and every one of these possibilities been argued that you're path of consent it would not be because we brought the issue before the court it would have to be this court searching for some alternative grounds to affirm it and this that certainly would not be the cleanest route to do so but we did what we argue moment i may have misunderstood your question we argued in our brief i think at the beginning of our summary that the defendant would need to prevail on community care to take in plain view probable cause cetera and we also indicated in our brief that we did not appeal the magistrate's decision on the issue of consent to it i just asked a question a different lie and that is just that's the case hinges on whether the detective violated the th amendment when he opened the trucks camper sh no your honor because there were other alternative views one of which was was plain view the ammunition it didn't matter who opened the back of that trailer could be s with out the agent having to penetrate the the boundary of the vehicle after the ammunition was removed then the parties went into the interior of the car and through the open door the officer was able to see the stock of the rifle at that time the woman also inside it was that from the door of the hatch back you could see the stall i believe he could see my recollection as he could see it from both and i know that when they were trying to get into the door is when she told him he's got to get in here and he tried to shoot me with it last night i thought he saw the good of these photographs that reportedly shows the stalk of the gun with those taken from the front seat or they've taken from the that i cannot tell you and i'm not sure i am not sure that no matter which place it certainly could be seen and while the defendants would like to argue it just a rifle because the very yes and yes precisely and so therefore our argument would be that no matter which one of them turned the the lever on the back of this hatch whether it had been the office or whether any been the defendant or the woman the hatch was going to be out and once it was opened the ammunition woods was going to be saying and over cases that have come before this court where a door or a panel was left open and i think most of those were dead drug sniffing cases where there was the allegation that the officer left it open in order for  a scent to be more accessible to the dog that was eventually coming by or left it open so that the drug dog might actually jump in through an open window there there certainly was not any of that in this case there was no drug drug dog involved obviously but it but i really don't think that intent matters even though was a big party or briefing for the member we just look at the objective tests we don't look at the subject of tests so you re in said you don't use it for the th amendment the supreme court has recently said you only look at the objective and i just don't see how we can get into what the officers intent was as the very kind of psychoanalyst that we've been told who is to  it is a it is difficult from an analytical and logical or legal view yes so i think that the your brief was a little bit unhelpful to us leading us down of factor that we shouldn't really be considering it can't consider well it's difficult because on the one hand you do have the cases that talk about for th amendment analysis you look at you know the  objective test not a subjective one however we also have in setting up this community caregiving discussion in all of these cases from the supreme court on down that in community caretaking situations the officers goal is not to investigate similar to the language that this marks around and even if we accept a community function you have got no cases the say that that satisfies or excuses an officers unauthorized search so i mean i don't think it really much matters whether we say this was community function or not because because it doesn't excuse an improper search we're still back to the b c question was this an improper search or not and we do that objective really n going back to what you mentioned earlier the community caregiving is an exception to the th amendment some perhaps we never get to that discussion of the objective subjective standard with respect to the inevitable