he pleased court for the quick good morning jackson and barton acted reasonably on march twelfth of two thousand and sixteen when they made the decision based on a tell t of circumstances that they were faced in that relatively short period of time from the time they arrived on the scene until the time they entered the apartment was not more than three minutes they were faced with when they arrived at the scene they first heard a description of the prior events from carroll bach when the door opens to the apartment and i think what escalates this even quicker to one two three go for these two deputies is as jackson and deputy barton are out in the hallway he sees curly quarterman over to the right on a couch and as soon as deputy jackson first asks may we step in almost immediately on the tape you hear deputy bond say no no don't you move so fast in his stride during the hearing what there was a result of as soon as the door opens and he sees mr corner and he sees him scooting trying to get up to from the couch and later described as fidgety which he describes based on his volatile to him it was a fight or flee response into an individual that he knew it as soon one because he's standing up when police enter the apartment well makes a volatile as he knows that there's an individual in there with a gun that they've been informed earlier of them objecting to the word i great i grant you potentially volatile but i think the whole point of the district court's opinion is what he saw what they saw when they came in the room was far different than what the complaining mother might have led them to believe they would see of all to the point of damn an individual that may have a gun that's getting up as soon as he sees police deputies at the door and th he's seen that situation to him it's an individual that is getting up in a fight or flee response he says at this point in time because the door just opened mr quarterman did not know if he's over overly generally a police officer in nonetheless gets qualified immunity i'm sorry even if he if he isn't if he is an excessively jittery or skittish police officer he gets qualified immunity face and heated exchange do they enter at the no no don't you move so fast state but do they enter the room at the no no don't you move so fast you're not are you sure what she says yeah i go in and out of the testimony deputy barney here is this point they're still out in the hallway a deputy jackson attempts to this is all this is a twenty second time period that you're slicing and dicing here that we're going to come in for a few minutes is that when they actually enter that that statement yes deputy jackson describes it that's when he takes the step in which is it makes a very limited intrusion but it does take takes two steps places himself between christina and the defendant because the defendant said there someplace before they step in and you're telling me i don't have a gun he denies having a gun yes is it had to be quick door door opens and he sees them there is immediate reaction to that is he starts trying to get up and get the modern interviews that is drawn to get up and get away or at this point because it's so early in the encounter they don't know if there's a second person in there you know if someone in there has a gun and someone earlier had gone and got in a heated argument or a walk and drove her out of the apartment to the point of she was called nine one one out of fear for her safety did he deny having the gun before they entered yes yes i think right after the statement that was ben was referring to the jackson tries to say where's the male half wor and explain to them that someone's stated that there's an image will in there with a gun and he originally denies it and say they were coming in to look for someone else being there he did not then say we're the reason the go in the jackson went in was to get between them the daughter and the defendant here and so yes for safety reasons of the safety reason it is now you're now you're elaborating on what was on on what i haven't read all of the testimony but your description of what of their motivation is different than than jackson's quoting quoting in the materials if you jackson's testified be found it to the officers all the way this is one district court concluded what what was the objectively unreasonable for the men the violation that they did not know what the court rattled off three or four things that seemed unreasonable but never clarified cares about pat downs it doesn't it doesn't care about motivation and what people suspect and so forth except except as that for fides justification for actions which are alleged to violate and i thought th seems to be brief like a wrong entry case but then we then we move onto to it one full search without even focusing on whether if this is a terry frisk than obviously that they can remove a gun from the holster on his hip right yes so how does the district court get to saying that there was an unlawful search and seizure from the defendant personally when the court is apparently i'm happy with the entry i don't know if any focus on the fourth amendment issues it's a lot better than the speculation about who did what and why other than their testimony the district finds it circumstances did not exist and of yosh not a problem cause the standard for the accident but to do what and then if they didn't have probable cause to enter but they entered let's let's break it down you talked about the entry what's wrong with what's wrong with the search is it wasn't it was in the rest search what i don't think so i think it's focused the district court order is focusing on the entry itself because once they're in there she usually says enter and search yes he or officers like probably cost in her hand search and she says that several times she puts the two together yes and once they enter i mean they have circumstances of alone well i think there's two types and there is the immediate aid you know someone's dying or in there where they can it seems to see that the case was as you can enter without probable cause in these type of situations were that war crime it seems to be more the opinions look to certain stances and probably counsel was the community care taking exception to the warrant requirement ever brief to the district court no she doesn't mention it you do you all didn't brief it to kno it's not briefed on appeal either you know zero reason for that well i think the officers went there more for investigative purposes than a purpose originally they went up there they were concerned for the safety christina bach and that's why they  please the court i like to start by addressing where mr west fall left off and i thought about this and violation and what needed to be established to justify the entry when i was briefing and again paying for oral argument because there are several reasonable basis to see and seize that gun and holster even even if the entry was unlawful and i go to the mendez case this year which and which involved deadly force in the court made it clear that the circumstance you go claim the police for creating circumstances that then make their next conduct reasonable and that seems to me what the district court doing here stage of the case it would be improper to rely on some other kind of community caretaking or emergency aid where it's just about exigency a little come up later i'm sorry and well this isn't the end of the case right it's  immunity and the issue remains until all the way through trial and at the end of the trial of the government having gotten its act together will renew it the requests for qualified immunity now are this is a government by the government your honor and the first circuit kurz first circuit case called romain there was that was a government appeal where it was about an unlawful entry into an apartment and below the government at the district court the government had argued standing and then fail to raise it on appeal and there the first circuit court of appeals determined that was waived they weren't going to address it just because of air preservation principles and preserving the argument why does this g characterized as an investigatory situation they weren't there wasn't an ongoing drug case or an ongoing gun case against them they were there on a domestic violence or domestic dispute i would disagree with that characterization at that as the district court correct that when these exigent circumstances cases or emergency aid community care taking generally one horseman here are receive a report of something that's obviously volatile somebody has been hurt somebody is being threatened that's not what we have here and then once you have carol box saying he got in my face he had a gun he's up there he's kicking my daughter out why isn't that i don't see what the investigative it's not like she has said he's a felon and he hasn't gone then maybe it's investigative because i didn't see requires an immediate threat of harm to the person that is still them in the apartment or that someone has been the mother in law does say my daughter has not come out of the apartment she doesn't say that she's being held against her will she doesn't say that her daughter has been threatened she doesn't make any indication that her daughter is in danger in any way she just mean sure that sure after the fact we learn that all of this is all because this was all nice and friendly and she was leaving and so forth and defend her boyfriend i would disagree with that first characterization that it would be objectively reasonable to think that especially just listening to the video or listening to the recording herself this isn't a mother who saying oh my goodness my daughter's in danger please help her she's obviously angry well he's in there he's kicking around he got what he wanted he got in my face he's got my daughter's not come out right it doesn't sound like she's afraid or scared for her daughter's safety and even if it's not just that and then what the officer see when they arrive at the apartment as they're why would she call the police if she didn't have some obviously just angry and angry that she doesn't describe it as he came at me he's yelling in my face i had to get out of there she describes the two having a heated verbal exchange and it's not and it's something that's relied upon both for carroll box actions and for the law enforcement actions while she determined it was worthy of nine one one call so it must be reasonable people can be unreasonable all the time that's why this court demands to determine whether something objectively reasonable and that's when the officers need to step in and say ok let the officer surely have the right to do or not can talk right you know about now can talk gotten it right and there is ok so they got the right to do or not can talk they get there and they don't enter  till after a good bit is said and you heard it described earlier why isn't the remember the mother says you got on here all this other stuff and they say he was moving real quick hands toward couch buddies getting got have a catch is the real testimony here kind of scooting around i didn't know what was going on no no don't you move so fast she says what's wrong wrong what's boy don't you think all that's enough no your quickly scooting over trying to stand up for the couch reaching in the couch i think that's in his testimony council i don't think he's concerned i think the overall idea is he doesn't know what he might be doing he's got is he's moving quickly and i would acknowledge that noise to further the record but i don't think that his first immediate thought was i thought he was reaching for a gun as i don't know what has happened i don't know if the guns in the couch he says right we didn't had made the scene safe in the mother's already told him there's a gun involved but what they did at that point was that they told him to stop moving and they told him to stay seated and he complied with that demand and then they stayed outside of the apartment for a period of time before they second so counsel  if a threat is reasonably perceived it can be it doesn't matter that it wasn't the police themselves but that the threat wasn't to the police themselves that the police entered  before we get to the search the entry was to put a put an arm uniformed policeman between two people who the mother thought might be having an off alter cation that could turn physical including with a firearm the sounds pretty exit in to me no your honor because there is no report of the threats well have to leave the facts and go to law what about our roberts case you know several of us were involved in that what do you think about the roberts case this court last year you know what i'm referring to yes i do you ok ok says me looks a lot like this case that case materially distinguished from the facts that we have here robert involved the law enforcement believed they were going to find a homicide suspect now that's much different from getting a report that my daughter's ex boyfriend and i had a heated verbal exchange and he got in my face so there dear are dealing with someone they came into the apartment it appeared that the that the defendant was high and also the defense he was on the couch he was on the couch and he looks scared nervous almost to flee and they get in there immediately that's correct yeah  but unlike in the rodriguez case here the deputy testified that there was nothing abnormal about mr quarterman on the couch that he was just sitting there normally there was nothing about him and that rate of sorry who testified there was nothing looked normal so because in rodriguez they knew the officers knew that they were dealing with a potentially dangerous suspect who was under the influence it's much different than the facts that we have here  way you think we have to look at i think that the way that it's been briefed and conceded by the government as to what exception that this court is can rely upon and what extent let me put it the different way if if the if the entry was wrongful why does the the search and seizure of the gun get suppressed because  otherwise be lawful not suppress the bullets poison fruit you're if you're saying the only if the only while ation was wrongful entry then we have a certain issue well they're saying the if you're saying the subsequent search and seizure were or were wrongful which is kind of the way i read the district court opinion then we have a second fourth amendment independent fourth amendment violation to analyze do you want to say will do both of them or dangerous your honor there's nothing on lawful about his arresting a firearm in your own home see that and analysis by the district court i just well for you know they're in the room they shouldn't be there they see so i suppress it i don't i don't think if law enforcement is in the apartment improperly but somehow what they do all there and there can be justified especially because nothing intervening happened they immediately seized him and ordered him to turn around and then  after he was seized your honor immediately after i thought i thought before they even entered he denied having a gun he did you're on a look at them they see the holster ok they didn't see the gun they saw the holster well guess what might be in the holster after they entered the apartment you're on right well but that's the whole point isn't this a two step analysis here what if we think he came in appropriately then the question is is there a bad search right i think that's one way to look at it as your own ok and that's what i did i didn't see much argument are now alice's of that and i think judge loken was just saying why isn't that a reasonable terry stop once they see the gun they're in these circumstances because they didn't initiate the terry stop after they saw the gun they seized him and then ordered him to turn around and then i don't see how it's crystal clear in the record that they didn't see the hol before they seized him my understanding is that they came in ordered him to stand up and turn around and that's when this blading occurs and then when he does turn around deputy bond says you do have a gu to the conclusion that i think it's arguable and i don't any of that any of that as he as he does that he does it in a threatening from bowden's perspective he does it in a threatening manner blading and he and he exposes on his hip as he turns around and now that now they do now they do their terry thing they take control of him and they take the holster i mean they don't have to bail have to pat him down they can see what their interest what they're concerned about even if they saw a firearm your honor if this is a terry frisk and if the court is going to decide in or reach under that under that ground i would ask for the opportunity to prove that issue because i think you're right it's not really completely discussed but the the question is so nice of you other someone is armed and dangerous and in that case there was a report of somebody with a firearm and the third circuit said well that's not enough you amendment concern is out there entering his the domestic violence situation which is even more frightening i would disagree with that but i know you say you say at the end of your brief this is not a domestic violence case  that's your that's that's your view of it i'm sure that wasn't the officer view but i would assert that that view is not objective a reasonable your own let me ask you how was this argued below did you argue illegal entry and then one song or did you are thank you the defense characterizes the mother care walk is angry and bitter which is their characterization but the focus of this and what the government focuses on is appeals what the disagreement the district court is is not the defense's characterization or even the district court judges characterization is what the two deputies used eighteen year veteran saw and whether or not what they saw was objective only reasonable by their actions when after they get talked to carol bock they immediately go up to the apartment and because based on her statements to these officers these deputies they believe that there is a dangerous kicked out of the apartment i think most importantly and again i think two questions to her are you leaving and if he if he is he trying to prevent you from leaving before you know you have to go in the room for that but i think what i mean might almost a slam dunk reasonable thing to do isn't it exactly except what escalates this is almost immediately when the door is opened is when curly quarterman starts making these movements on the couch and it pages motion and will soon as he makes those movements based on what they know at that point in time that very quickly in twenty seconds yes is a short period of time when you look at it but when you're standing in an open doorway with looking for a gun that was used to