good morning your honor may please the court seemingly more appearing for javier garcia today we're going to talk about the fourth amendment and specifically the word in the fourth amendment that is houses the fourth amendment protects people from unreasonable searches and seizures in their houses that means that police generally speaking cannot go into a house without a warrant cannot arrest someone in their house without a warrant in this case the police had no intention to seek a warrant that's the testimony of officer lopez so there are a few exceptions to this if for him they decided that they didn't have time to do it there was an emergency so why not get to that issue where they were they justified in considering going to the type of emergency that allows them to make of sweeps protection people right so there's the emergency exception which is to help people inside the home and here we didn't have any well and people outside the home to there was there was people beginning to gather there was the young boy there was the older woman and there was a police officers of somebody has a gun it could be troublesome now why not focus just that at that moment when they made the decision to go tell me why they didn't have sufficient evidence to make a protective sweep ok so the reason they did not have sufficient evidence for a protective sweep is they did not arrest the suspect in the house or anywhere near the house not even in the cartilage of the house so that's the first issue under they actually apprehended the suspect in a neighbor's yard so by the time they entered the home they had already apprehended the suspect the suspect by the suspect you mean the person who ran through the house and went out the window correct your honor i know you say they've apprehended how did they get that information was it when the police officer brought so i spoke around or did they telephone each other so the officer that went around behind the house to see if if the man who ran in the house exited radioed the officer that was in front of the house with his gun waiting in front of the house and said i have them he's in a neighbor's yard that's what  statement from the police officer who's back of the house to the police officer in front of the house so their net no one ever saw a gun what they saw they saw what they thought was a gun well no they actually didn't even see that what they saw was he was holding his waistband which could mean that he had a gun it could also mean he was holding something including holding up his pants as he was running i mean there's all kinds of reasons why he could be holding his waistband you know unlike the cases where they've actually seen someone with a gun or saw a gun in the person's possession which might give them a reasonable suspicion which is obviously different than probable cause but a reasonable suspicion there wasn't that here there was a speculation speculation is not sufficient where  speculations now for sure if we have ever held that you have to see the gun well you have to have specific art facts upon which you can draw it right we've never held that you have to see the gun i'm not aware of any cases say you have to that you have to see the gun but i am aware of cases where you actually have to have some fact yeah i can't speculate on their cases it's a cannot speculate there's let's just assume for the sake of argument that the for their own protection at least curious and worried that they may have a gun because of what happened now at the time that the police officer back radioed to the police officer in front w mention of gun one way or the other now was the defendant was the person who went out the back window was he still in the back when the police officers made the entry into the house or was he in the front of the house with the police officers i think that's unclear from the record i think officer lopez was unclear at the time that they entered the house whether officer rizal is had returned with the never question i think the record is unclear exactly where brazil alice was you know what officer lopez knew was unclear about that all he knows is officer rosellas had apprehended the suspect in the backyard so he was caught by the time they decided to enter the have ok well that's it was still left open if he had a gun whether he still had a gun when he went out the back that information apparently wasn't in the police officers mind it's mine so he could have thought it's either in the with the defendant or he left in the house and the gun may still be in the house but again your honor there's all these cases that say you can't speculate about what might happen or what assuming that that's the fact i'm still curious whether or not they have sufficient to go in and make this protective sweep what's your argument on that assuming that they think there may be a gun in the house would they be able to make the swee i don't think so because there's the case and i think it's hoyas but i'd have to look at my notes where they actually saw an individual on his porch and they saw an actual gun and he went inside his house and then the whole the officers went into the house after him because they suspected he was committing a felony misdemeanor a crime of having a gun and that was held to be not sufficient so remember when you're relying on exigency you also have to have probable cause and that's the thing that i think's really missing here the officers didn't even know that my client was in the house they had no way they know that anyone was in the house so they didn't have any problem caused to believe a crime was committed or being committed or going to be committed so without that probable cause even if there was exigency which i also dispute on the facts they didn't have any right to go in for a protective suite i mean let me ask you a different question or go at this a little bit differently wasn't your client on supervised released at the time he was but the officers were not aware of it it's minute he's on a supervised release as a part of his supervised release as i understand it he's required to submit his person his residence his office his vehicle or any of his property under his control to his search by a law enforcement officer at any time with or without cause cups that factor into this well the facts are this into it because remember you have to look at what the officers knew before they went in the house and they did not what so what if they why do i have to look at what they knew before they went in the house if he is under probation and he is under the requirement that he's required to submit himself to this search by any law enforcement officer at any time with or without cause what difference does it make to what they know or don't know and what case tells me that well i think that the because well the bottom line the bottom line that nobody's really argued so i really wanted your input here nobody's really far really in my book even looked at this argument but i said to myself that this guy was on probation and he had to be searched any time that anybody wanted to any time for with or without cause in his residence or his person why is there an knew if he knows at any time with or without cause they can do whatever they want to do because it's from the officers perspective the facts that they knew at the time it's not based on the defendant's status i see well it's interesting i was interested nobody's even talked about that briefing in otherwise i would need to send it back to let somebody think about that and the district court you could do that your honor and that would be just fine with me we'd be happy to brief that to the district court and see what they say but it seems to me that i remember from other cases that i've handled that i've seen cases that say that that is not a factor unless the officers know that the person is on probation with conditions or supervised release ok and then the bathroom window correct correct a visibly shaken but on the harmed woman executes the apartment a few minutes later yes she didn't say anything to the officers but the apartment is l what we're really looking at yes and that is insufficient she didn't come out screaming she didn't come out yelling she was completely unharmed the officers did not ask her consent to go in the home they apparently did not ask or couldn't remember if they asked her whether someone was in the home i think that was six actually what the officer testified that he could not recall whether he asked her and so without any facts i mean she was outside the home she wasn't in the home if she was in the home at the window looking afraid and freaked out and scared and yelling or hysterical then of course they can go in and make sure she's ok but she was outside and there was one but i guess the question is would it be unreasonable to assume that the officer could not think that someone may be harmed again may is not sufficient there needs to be specific articulable facts upon which you can rationally and infer that there is an emergency going on and if you look at the cases which we did in the briefing i think pretty thoroughly all of the cases where they allowed that kind of entry under either exigency or urgency that officers had facts that they knew that allowed them to make those inferences they didn't have them here is my time well you don't have any reserve now that i took you over so i'll give you some ok i'll try to be fair not allowed in idaho but i'll try  it is that ok now you're a very fair susan gray on behalf of the united states may it please the court the district court properly found that the officers brief sweep of the apartment was an object of glee reasonable under the fourth amendment emergency exception and for their own safety and that the district nurses arrest occurred outside the building following the legal probation search that uncovered the distribution amounts of controlled substance now all three of those issues are really facts that are presented this case the emergency exception the protective sweep and the rest are all very facts intensive inquiries and in this case the district court did everything that the court could ask of her she had an extensive in evidentiary hearing where she recognized that in each of these the question of whether or not to for example there was an emerging see if there was is turns on the totality of the circumstances and there's no bright line rules it so i understand there's no bright line rule but i tried to put it very carefully to your opponent because those are the facts  fleeing suspect who is perhaps armed who runs through an apartment and out a bathroom window two there's a visibly shaken woman who acts of the apartment a few minutes later but she doesn't say anything to the officers then third the apartments in a high crime area my idea is can i find anything in that which says the officers have twenty three that based on his body language they believed him to be armed and i suspect their apps are md ok he entered a unit that they didn't know to be his and this is unlike nor the nor a case they didn't know what the time that the entry that he'd run into his home and they had no reason at that point to believe it was empty they'd not been informed that anyone was inside no one was inside and there was nothing to indicate that they'd seen a boy come out they'd see the woman come out frightened shaking and more specifically officer lopez says he said as if something horrible had happened to your they also the judge district court also credited officer lopez is testimony that even if he'd asked her questions about what happened or if there were other people in there that based on his experience in that neighborhood she might not have told him because people routinely don't want to tell anyone how many people they have illegally staying in the apartment specifically found that imposing that additional type of verification is particularly reasonable and recently here where any kind of those kinds of questions an inquiry wouldn't have led to a research result and the other thing that i think is very important is the court found there was such a short period of time between the never as running by the woman running it coming out within minutes of never as running out by and the officers going in she found she also credited their experience though your honor in a as you pointed out this is a high crime area the officers have been pretrial in this area for officer safety for three years and they know that people who flee through apartments can sometimes injure people in those individuals in the apartment and there was no more than that that was required for them to go into i their community caretaking function to make sure someone hadn't been injured well when i looked at this i mean you look at the united states versus granville it's a nine hour case in two thousand it that we should not base this case on general propositions it has these specific to our case and there are general propositions that  sometimes suspects can hurt people but in this particular case i'm trying to figure out what the facts the civic to this would be that would make it such that they would automatically be able to suggest that this would require such a search but your honor i think the court needs to keep in mind that in all of these situations the officers being asked to make a split second decision based on their what they know on the scene this is not a situation where officers are responding to a nine eleven call or a neighbor calling in a complaint they're watching this happen in real time and i think one of the crucial facts is that this woman comes out of the apartment she's shaking she's scared and the officer says it looked as if something horrible had happened at that point don't the officers in their community care taking function they would be remiss had they not gone in to see if someone was injured give me the timeline as to when the arrest occurred the arrest yes it seems to me that  if not went in after the arrest occurred certainly seemed to go in after the arrest occurred they did go in after and so therefore the one who's supposed to have caused all the problem as already been arrested and they have only three facts in the first place no your honor i disagree and let me tell you why his arrest didn't change the equation they still had the facts that he ran in they don't know that it's his apartment a woman comes out frightened shaking something terrible has happened looking that way they don't know who's in the apartment and but they don't know that no one is in the apartment and they don't know if someone is hurt but more importantly they've seen a man run through this apartment he's come out the back window when they arrest him there is nothing no evidence in the record that they found a gun on him so they believe it that they have reason to believe that at that point that gun is still in there they're standing out here and concerned throughout this incident that someone in that apartment be it a gang member or someone else in the house could take a pot shot at the bystanders could take a pot shot at them or that somebody could be in there injured and so so his arrest doesn't change the equation the need to go in there and make sure specifically because they're the record is does not say that there is not clear that the record there's nothing in the record indicating the gun was found therefore there is it was reasonable for the officers to believe that that gun was still in there and that someone could be injured in that apartment being held against their will having been injured based on their experience when they read he ran through so i think you can imagine the uproar it was vacant well how did the police officers testified in relationship to own you point out and i think it's a good point that that they thought the guy had a gun and he went out the other side there's no gun if so facto gun still inside the house did the police officers articulate that as a reason your honor i think it was it was generally understood that at that point they because the office of the the answer then is no your honor i think there is something that corroborates corroboration i'm just trying to i'm just trying to let you answer the question because that was going to be my next question i didn't find anything in the police officer statements any place that said they were looking for the gun well your honor they couldn't go in and they could do a protective sweep and i don't know what's a can do but i can try to figure out here we have three fact i tried to print boil it down on what they knew so that i could give some objective reason to go running in their own emergency basis i got the law saying this should be a narrow exception shouldn't be wide to let the police do anything they want to do and then at that point they got him arrested well so i'm saying to myself why would i do this while your honor if i may and i know i'm short of time i think with the officers behavior after the arrest as he stands there and with his gun still pointed it at the area and continues to shoot people away to try and one of the things he reiterated over and over again i was concerned for the bystander safety as i kept trying to move them out of the way all of the people that came out of the unit that certainly indicates and the district court found that this corroborated just concerned that there was a danger in that apartment so i'll give you one last i don't want you to based on this that i mean i kept saying to myself why is that not even argued your honor having been a district judge and give a mad probation instruction to all my people who are on probation and expecting them to do what they had to do the honor i couldn't understand why they didn't even factor in here while you're on it that is the basis for that is the basis for the last having to do with whether there's  but they had to get in the door to find that he was there and once they found his identity immediately they acted on the suspicion of the search that was the issue with that that i just have one question in terms of the theory that there might be a gun everything is speculative right up until the time when they don't find the gun what is it that made them think that there was a gun in the house that required them to go into the house without a warrant what is the the suspects flight headlong flight into the apartment at that they didn't notice and secondly he's holding his waist officer lopez testified that he knew in his experience that's where individuals in that neighborhood would often hold their weapon and then when the older woman came out shaking scared and i think this is a crucial the officer who witnessed her who was on the scene sar come out as if something towards horrible had happened that's how he described it to the district court where that's how he made it seem when he needed to build up what he had to justify going into the into the house while you're o district court made credibility financer out her order and she accepted his testimony and there was a period during the evidence you're hearing i believe that two thirty six to two thirty eight where it defense counsel suggest attempted to suggest that this was some sort of to look for drugs or to make an arrest and the district court challenge him and i believe that's one to thirty six or to thirty eight to said where's the evidence you have to support that and he didn't have any and she said i deal with evidence and the evidence here is that this the officers here were dealing with a situation very fast moving very tense trying to make a decision whether they should go in and at that point they had the facts we've just been discussing that they also knew a gun had not been found but i'm also asking in terms of the concern for safety the young man was a child was coming out and an officer stopped him and asked him who was that and he identified it repeated again who was that he identified him the child i think demeanor was not was not indicated as being scared or trying to get out in a hurry and so it seems to me that the child versus the woman who may or may not have been nervous and worried and thinking someone is hurt you're saying that because of the risk reputation of the police if she thought somebody in there was hurt she wouldn't have told him or needed help honor i think that at that particular point he said that if i asked her how many people were in the unit she might not tell me because of my experience but i think again to the extent the court may be asking why what was in the asking more questions actually if you look at our one sixty four through one sixty six you'll see that the officer testifies i was asking questions i can't remember the specific ones i was trying to figure out what was going on so there wasn't this he didn't just stand silent meanwhile and i think this is very important meanwhile he's in the middle of a dangerous neighborhood where he knows that there's violence there's gangs he knows somebody has run into apartment he doesn't know that's his and he thinks he may have a gun so everything he's doing is aimed at trying to protect the residents of the area as well as themselves and at that point he believes in the district court found in those factual findings are entitled to great deference that he believed there was someone with a gun inside that house thank you thank you for your argument to give you one minute counts were thank you ok so i just want to respond with a few facts first of all when the suspect came running toward the second officer the officer was in front of the house the officer did not and holster his gun so by that time it's very possible that the guy was no longer holding his waistband because it seems reasonable to me that if someone is running at you and you think they have a gun you're going to pull out your gun to protect yourself and any other bystanders so i don't think you probably had one the other thing is the woman came out of the house shaken and scared because an officer was pointing a gun at her as she came out of her house i think each of us would be frightened and scared if that happened and then the third thing is officer rose alice when he operate headed mr never as the the fleeing suspect i call him ferris bueller because he ran through the house he didn't tell officer lopez anything about it gun so there wasn't any information about a gun and to address your question judge wallace as well as yours judge bout's officer lopez never testified that they were going into the house to look for a