we know that the hickory hills police were looking for this patrick ten tylo patrick it sold them drugs months before months before we know that the police never attempted to get an arrest warrant or search warrant we know that cantillon had been at the griffin home the day before for a barbecue and the kid stayed overnight and we know that the defendant officer boy and his partner went to the hampton inn first in crestwood to try to find the stencil which then led them to the gryphon home after griffin home there was plan so to speak put together were off for a bite was going to go over the fence go in the back yard to establish this perimeter at no time to day plan an officer by getting consent from the homeowners after bite did not believe he needed consent because he said he was conversation between detective hope part and john griffin who is the homeowner quote i asked him if it was ok if two of us stepped into the house to confirm that patrick wasn't there at that point the stories diverge a little bit we know the children are there we know the dog with her everybody says that according to the miner and according to general thing john then turns to his son and says take the dog and go in the back yard he's creating this zone of safety in the backyard there's a  a point the very least there's a question of fact there's there's this issue of scope of consent what what is the scope of consent the words that were stressed were in the two of us come inside the house look at the actions of mr griffin i'm going to take my children because i don't and them around the police while they're looking for patrick eat the children don't know anything about patrick and what he did away from the home i'm going to take my dog which is a big dog and i'm going to put him in this area to make everybody say and to keep my children away from these police who are going to be searching the house i think looking at that a reasonable jury can say ok i'm giving you permission to go into the backyard and in fact if you privacy that has nothing to do with consent she just said as a child in your backyard you don't have a reasonable expectation of privacy that's wrong going to the consensual i did the jury instruction and the jury instruction was  all searches are per se on reasonable you can't go in my backyard unless you have a warrant or have consent so naturally in the dream struction you have to put in that exception and that's right put in the language from people versus him and oh and michael  versus rest back that you get a look at the the communication between the official in the consent or that was what was taken away when you pull that consent out of the jury instruction the defendant then got to argue there was no search because i hate as a police officer i'm just going in this backyard to establish this perimeter excuse me counseling he wouldn't have been able to argue that anyway you're saying because of the court's ruling that it wasn't for the court's ruling it would have gotten are you know yes and now is that because i was unable to argue the law to the the to to the jury about consent one of the jurors sent on a note and said when you see it does search of the home mean a search of the yard so one of the at least one of the jurors got it as far as what the issue was but it wasn't in the instructions so we went down a different road and all they had to do is determine whether or not the search was reasonable and that's not the legal standard it's per se under reasonable unless the jury can go to this consent to she would say well wait a minute you know we had this conversation at the door with they said two of us we had we had the actions of john griffin putting everyone in the back yard we had the actions of him moving around the house with the police to make sure they don't exceed the scope of the consent gap verify that captured until it was in here so the jury never was instructed as to the law of the counte different i think from the from the united states supreme court down that is a search because i don't and i know one of the cases that even even if you violate or go past the threshold by a fraction of an inch and look at a nine intimate rog but that's a search under the fourth amendment so as soon as they enter onto the land that is a search they're invading the privacy also i mean common sense wise why is he back there they're runs now i can stop on because i'm in the backyard and what's interesting is is the other detective who did not into the yard was able to look through this wooden fence and he sees the dog so i think he did the right thing in saying you have a six foot wooden fence around the yard words is bad day going to go i established a trial that he was overweight and i don't think he was a danger to anyone you had him enclosed without even going into the yard  privacy flows from the adults right and i would agree with that if the consent if the jury was properly instructed and came back and rejected the consent and said well you know we think based upon the actions of the parties based upon the conversations that there was consent then i would agree at that point done she the father can consent for the child and i think the fact that that the jury was not properly instructed was not able to consider consent as a law as it should have been you know in a legal argument to the jury then that prevents or it or mitigates the argument in this case well the kid would a lost anyway even if she didn't direct out based on the no i don't have any dispute with the fact that hobart asking the two of us step inside your house i don't i mean shoot where the dispute starts is the police say the family it was like one big happy family going around the house looking for ten tylo whereas a miner and john griffin and kelly taylor say that when we told we're going to backyard they want the backyard and we know that and we know the dog was back there because in one he was shot into one of the other detective saw the dog who was on the like the porch or the dac just before it ran around the house when officer bite was in the backyard so i don't think i think that as far as that initial conversation you know there's not a big dispute and i don't think there's a there despite there is also the issue about imputing consent to which i brought up where you had officer by along he was at the fence he could not see the front door he could not hear the conversation at the front door he relies on the saucer we sit we sit doesn't hear what's going on in the front door so then you have the other legal issue can you impute consent if i'm if i'm having a conversation regarding the the scope of the consent can you come in can you imputed to the person who can see hear or know what's going on in the front with the with the observation of the officer at the side door who heard footsteps and i think the seventh circuit and a reversing the trial are the magistrates decision to deny the motion to suppress and said you can't impute the knowledge unless these officers are in seven thousand dollars in the life of the stock what other money other than seven thousand dollars for the death of the dog would you expect to get head to trial court left in six year olds oh this latest the six year old in there is evidence presented from the prove than proving that if the officers let the jury decide if the officers violated the fourth amendment if these damages flowed from that violation if i came into your yard and i did not have consent and i didn't have a warrant and i as a juror decided that there was a consent based upon what a typical reasonable person would have understood between us communication then i could say you know what you damage this minor you this minor head dramatic damages as a result from seeing his dog would shatter at the top of the head and then and then afterward seeing the dog buried in all those kind of things so it was always you but the police had to shoot the dart right i mean in terms of i mean that was a lot of our even her testimon naturally run up because you're a stranger the question is what happens at that at that point the dog was shot in the top of the head and a between the eyes that wouldn't fight would infer the dog had his head down it wasn't consistent with what the officer said was a  a minor testified that the dog didn't do anything so and the jury came back and they did award money on the conversion count so i have to infer from that there must have been something in the juror's mind to say he wasn't one hundred the officers are wrong for not telling him by his dogs going to be let out get out of their yard right even i mean it and i would agree with it let's let's move the dog inside and say that griffin gave them permission we know to have the officers come inside let's say the dog was in the room he makes an aggressive move toward the officer there's no case because of the fact that the officers are rightfully they're there by consent they're in the in the in the house and they had to use they had to defend themselves and i don't have a problem with that but you know in this particular instance i mean that probably part of the reason why the fourth member was there in the first place i mean let you know this is their castle let's let john griffin did everything right now that he comes from a police family they don't have anything against police let's do everything right let's create a zone of safety for everybody let's take these two guys and just show them until it's not here and i think it was it was that the violation then of the fourth amendment going into a part of the of the house that you one invited that you never asked to go i mean that wasn't on the table for john griffin i mean you can't say that there's two of us and we want to come inside and i know the defense argument is well he didn't express we limited well why communicate this to the office and outside who were going in the back yard and they did and that's part of the problem and that's what created the safety risk because you had a situation where his name escapes me starts with a w the detective went to the site he sees the dog we know we have officers over on this side we know we have officers in the house they all had nextel phones i mean it's an unbelievable that they weren't sitting there in communication with another one another no one and they knew there was a dog there before it but he still goes back there so if you're if you're walking up you see a dog run you see a guard dog on duty why don't you take out your radio which is in your hand and say hey guys what's up what's going on in there or write you know printed mr griffin stamp his might be a little different he didn't have to go to counseling you know he did have all these problems that took years to work through but you know it's the kid here that kind of gets ripped off by an improper jury instruction and by a finding that he didn't have a reason let's face it the privacy and the you know the one the other issue to the family medical expense act that was not allowed to bring in those those damages and i think with that with the case i mean graham the parents that have the money to pay out of pocket for a counsel the kid needed the counseling the counselor work with them grandfather said you know what let i'll write some checks pay me back if you get paid if you get the money i mean that's what happened and woolsey foster seems to say that a tort fees or should not receive a windfall and i think that was a shriners hospital that was it providing free treatment i was not able to present that claim to the jury other ninth circuit instructions unfortunately you know the i p o ripe e i a you don't see many of these types of cases even i was even surprised in the seventh circuit not to see a pattern instruction on a search case that's why i want to the ninth circuit and got the i tried to get the instruction which was the least complicated which is basically just this is the law and i think the instruction number twenty four was a very uncomplicated very to the point and track the precise wording from the supreme court and the fourth amendment and it should have been given and i am in for the life of me i don't know why defense counsel would have objected to it because that was their defense consent i did this instruction for them  and even in the instruction conference if you read the record he says i don't i now legit there's an issue about the scope of consent he's saying that but he objects to the reasonable you know what would a typical reasonable person and then again to the court memorandum order says scope of consent is an issue so if it's an issue then it should have been before the jury and a jury instruction and i and i firmly believe that's reversible or throw it up you know no party has a right to obstruct the jury on issues that raise c c's in this is clearly raised as it was raised during the proceedings during the jury instruction conference in my motion for judgment that was painting a verdict fagin reminded the court that i to the fact that the jury wasn't advice or instructed on consent and i said if that's the case if if you're taking consent out of it then it's a person a violation because now all you know all the jury has to determine is whether there's a search did but the problem is it wasn't the law given to them right well that's the problem i can yeah i can argue it but i don't have such a piece of paper to say you know ladies and gentlemen this is a law because the instruction it was given to him was well as long as it's reasonable and it's not you can't go in a house just because i'm looking for somebody you know i want the house because i heard their toilet was filthy and i was concerned for these people i wasn't searching for anything that's a violation of the fourth  you know it's family members and in the just common sense wise looking back on it it doesn't make any sense because what the courts seem to be saying if the grandfather said here here's a thousand for the counseling that's ok but for the grandfather to write the check directly from his account to the counselor was wrong and i just don't understand why why that would prevent the family medical expense a claim whereas if john paid it out of his pocket i mean we're up against a loan from you know there's no insurance involved here they're not going to cover this so for those reasons i think if case does go back i think i mean either i'll have john pace grandfather back before trial or or it would go back and you know with with regard to the family medical expense act in the fact that he's a third party in the tortfeasor can't benefit from that  brief and all handle very odd briefly just to make sure the panel doesn't have any questions but the first issue that i think we need to deal with is the waiver issue which really wasn't discussed at all in plaintiff's original art initial argument the issue is whether or not the plaintiff waived the right to raise this jury instruction issue on appeal and it's very curious to me considering this is now sort of the central up point of his appeal i mean the law is really very clear in that literally no reference whatsoever to the jury instruction issue we believe that he waived this issue for his failure to comply with his plain black letter law requirement tantamount to a failure to convey the law and he in he states it correctly that the failure to convey the the correct law for the instructions may be reviewed de novo but if you if you look at the cases that he cited in his brief on those cases the issue really wasn't the acceptance or rejection of the jury instruction in those cases the issue was really with the law contained within the jury instruction in those cases the courts of appeals were really sure see through that initial question of  review is appropriate this issue ations much different this issue ation the argument is and we will argue that the the issue was not properly raised such that it became an issue for the jury and therefore it was not   use of discretion to refuse the instruction and that's why we believe the use of discretion is the correct standard of review moving on to the substance of plaintiff's jury instruction argument the trial court has obviously has discretion to decide what issues are raised by the absence of what issues are not we contend and we submit that the scope of consent was actually not really an issue for the jury and was not sufficiently raised in the evidence to become an issue for the jury and in there are two main reasons for that one reason is because the police officers conduct his testimony his statements about about whether or not he believed that  have probable cause or whether was necessary all this testimony really needs to be sort of swept aside it shouldn't be considered in any event because it's really not relevant in a fourth amendment context of police officers and we all know that police conduct is that is judged by an objective reasonable the standard so the question really has to do with whether or not the police officer's actions were reasonable given the facts and circumstances known to them at the time of yog alleged violation so i mean this testimony regarding officer bites i understand ins it really needs to be taken away in its entirety and i think what we have left is we have a mr griffin the plaintiff saying yes come into my home look for this in the backyards begin with or whether it's removed afterwards mr griffin this testimony was i need to place my child my dog in the backyard and that was that was really a hotly contested issue and that was that that's one thing i'm saying there was a there was a very serious i debate over whether he actually made that statement and it wasn't enough of course that the dog was in the backyard there's no question about that i would never argue that the dog was out of the horse like point one officer and go with the dog in the house again all the child was was indoors it was with the officers when they were conducting the search and again that was really the hot topic and that was fiercely debated between the parties oh you're saying so they're saying that the child within the yard and the dog that's that's exactly correct from what i just got from what you just said that the dog may have been out there the whole time that's your theory that's possible so this officer i climbed in the back of this yard with a big old guard dog sign on it with this one hundred fifty pound search his home that's that that's absolutely possible and i'm not necessarily even arguing that the that mr griffin did not let the dog out i think the substance of my of my legal argument is the simple act of of letting the dog out isn't sufficient to home and i was going to strangers walking around through his home he does apparently i mean absolutely i see the evidence would show he does the right thing by going in the dog on the backyard we want to tag the two officers walking around in the house i cannot fortunately there's an officer in the back believe that that's why the jury found for the plaintiffs on the conversion count in awarded them seven thousand dollars for the loss of the dog i'm so i want to i want to screw with that analysis one bit my argument is simply that the scope of consent issue was not that as a matter of law the act of letting your dog into the backyard even if you stated i need to place my dog in backyard given the other his other testimony is not sufficient to limit the scope of the search  of the home he now he never actually limited scope that's clear he never told the police officers don't go in the backyard that's clear and i think of a few cases should be considered counsel before you get yes horse you've just  in our state change here when a hotly contested issue the fact of whether or not this dog without the backing gave consent to the dock to go back to that with a ten hotly contested issue yet you believe it should have gone to the has to be that has it's all wrapped up in whether or not the owner was taking a step and saying you can come into my house as opposed to my back yard so i mean it's all wrapped up together isn't it in yes in a sense yes but again i don't do i think the argument is that i don't believe that him stating even if you let's assume argue endo that he said yes come into my house excuse me for a moment i need to place my our dog and my child in the backyard let's assume that that's exactly  d even in that situation the scope of consent still i believe would have applied to the backyard and the reason for that is because consent was was obtained to search for a person at his property and obviously a person can be found in the backyard in there are really two cases that i think are particularly instructive are the first cases people versus armstrong and that case really deals with the oh ability of the homeowner or the person giving the consent to limit the scope of the search in that case the police officers were investigating a homicide they act on the defendant's door and the defense roommate answered the police officers entered the apartment and they sort of walked down the hallway in see the defendant hiding in the bath tub the defendant ultimately tried to wash or suppress the arrest arguing that the search exceeded the scope of the consent to enter what the court held in that case they said well the home wan limited the search they said come in and because the homeowner didn't limit the search they had they helped the police were justified walking down the hallway and that's obviously where they found the defendant now the second case that i think is particularly instructive on this legal issue literally conducted an inch by inch search of this person's home and eventually found drugs inside of a shoe box in a nightstand they tried to introduce the drugs against the defendant the homeowner and it was that search needs to be tailored to what it is that they're looking for in the issues in the reason that they were there in the first place therefore the courts stated that the police may have been justified in searching the room sort of doing  cursory search to make sure that no one was there to make sure that another victim or or the suspect wasn't hiding in the house they would have been authorized to do that general cursory search but what they did is they did it inch by inch exhaustive search and obviously a person can't hide sight of a shoe box in a nightstand so you can see how this the scope of the search was vastly exceeded the reason they were there in the first place and i think that that case really stands for proposition that when i consent to search for something is obtained that search really should be tailored to the subject of a search that should be tailored to the thing that they're looking for griffin knew that the police officers were looking for a person he gave them consent to search for a person that incentive person but and that's absolutely correct that that's absolutely correct but again we have to keep in mind it i would respectfully suggest that it's somewhat irrelevant because again in the fourth amendment perspective for in a forthcoming analysis the question is really for the officer's actions reasonable given the facts and circumstances known  second person the second person then gave the signal to the third person to go on here that's exactly correct and you can see how different this case is from the united states for six hours in alice there was an officer who was standing by side door who literally had no idea what was going on at the front he heard some sort of shuffling inside the home he decided to break down the door i'm in that case the court held that you can't use a suspicious composition at the front to sort of justify this intrusion from someone who really had no idea whatsoever what was going on this case is different because officer bite was notified that consent was obtained when he saw the hendra if the panel doesn't have any questions about the search issue i'm i think a move on to what if the seizure issue and i really feel like we could rest in the brief in this matter i think god just as quinn really put it quite well when he regard so it we believe certainly that the jury's verdict in that regard that the seizure was not objectively unreasonable should stand moving on to the directed verdict for a g t's claim we submit it's it would be one thing if if the police searched his bedroom which i've said well that happened but but the but which really gets my next point which is it in any event even if it was there even if we assume well ok let's assume that the j v did have a instructed as could the jury conceivably in that not factually would where the instructor they could come back with leverage for mr griffen based on his expectation of privacy in the backyard the jury was instructed on an unreasonable search and seizure expense act you know our argument is really quite simple we believe that this is an issue of standing the plaintiffs argues that under the act the parents are liable for the expense of the child we generally don't disagree with that statement however mr james taylor a third party paid j t's built and we know from the cases that plaintiff cites we know that one third party pays the bills of another person not as a party to be compensated to be able to present the reasonable value of the medical services they receive so the collateral source rule is applied and she weighs one ways to prevent the jury from hearing that medicaid or an insurance company paid the bills because i guess a good idea is that if a jury hears that they may say well you know the bills are paid anyway so we don't really need to compensate him for that that's improper i'm that's one of the purpose of the collateral source rule the second purpose is to ensure that different that's a very interesting point i think that the the way the clutter source replies is that it keeps evidence of the of the up a your out of evidence yet in this case it's sort of unique because james taylor was actually a plaintiff introduced it into a so that that sort of prong to the cloud of source rule obviously doesn't apply here because it was actually plaintiff wanted the jury to hear the james taylor's want to pay the expense as opposed to the other situation where blue cross or something like that you wouldn't want the jury to hear that so it it really just doesn't apply i would say that doesn't apply to our case on the second prong of the collateral source rule is this idea that an injured person should be able to be compensated for the reasonable value of the medical services that are rendered to him and i would submit that's that wasn't an issue at all we're not arguing that he should somehow get five dollars for every ten dollars or we're not arguing anything feels shouldn't get a windfall but i don't think there was any windfall to hickory hill so again j t was able to put forth a reasonable value for medical services we can say give him ten cents for every twenty cents or something like that we record were really from his domestic situation in college taylor who who may have had some substance abuse issues and not from the should give the dog i'm finally the last comment on making and i do believe that he might even be able to rest in the brief is the conversion comment by judge stark clear of an area with just a steel asked a question of on that was the communication between the front door and officer we said i just wanted to make it clear that there wasn't first of all there wasn't a plan about a hand route the plan was for bite to go in the backyard and then he supposedly grabs his hand he's not privy to that conversation so he doesn't hear the two of us want to come inside your house so not how can if he can't hear was being said he doesn't know what's peace as he sees two bodies i want to make that very clear because there wasn't a communication and i think that's important his face when it comes to him shooting consent and that ellis case that we talked about earlier you got to know what's going to happen if you know it's going to end that's fine  armstrong case is an area one case where two detectives went there they're investigating a murder the homeowner a lot of men in the front foyer area they took two steps and they see somebody moved in the bathroom which was right right there and then they had the person stopped by the ba it was covered in blood and they sat him down in the kitchen and then he went from there that's what armstrong was so you can see the ig he's exceeded the scope and that case but all these other cases it was an issue it was an issue of fact for the trial judge to make in these criminal cases what was the scope of consent of the jury we are firm believers in the jury system they can believe or disbelieve any story we're put into it my only point in this case is at least give the griffins a fair shot at least let me argue to the jury what the law is and let them base their decision on the law as opposed to something that's being made up because he really wanted a jury trial their own formulation of what the was in the fourth amendment and i think that's the bottom line in this case and why we have feel these are legal issues they're not that saying that the jury you know they have a right in the world to decide what facts they want to believe and what not to believe so based on the fact that i think a lot of this a lot of the issues of forth from mr griffin's claim fluting the child's that this case needs to go back on it and all and allow me to argue with the law to the jury and let them decide whether or not they believe that the child the father or the police dog was there and detective great saw the dog and it would have just come out of the door so