benjamin moore case number seventeen dash one three seven five  seven may please the court and your adler from the federal defender's office on behalf of benjamin moore in this case the government failed to meet its heavy burden to establish specific and unequivocal consent of mrs golding to search the couch in her home without a warrant had no time to the officers request her consent to search the couch and at no time to cheat affirmatively invite or request them to do so all she did was reported a domestic violence incident and the answer the responding officers routine follow up questions and she did so while on the street two to three hundred yards away from where the search actually occurred that falls far short of implied consent under this court's binding precedence in bates versus harvey bashir versus rockdale county georgia and united states versus can solace in bates for example this court found no implied consent even though the officer in that case requested consent to search the home and the individual responded i guess so the court found that to equivocal to imply consent in this case there was no request for consent at all let alone a positive response our position is that where there is no request for consent as there was not here the only way for the government to meet its burden is to identify an affirmative in an unambiguous invitation or request by the individual to all of that process not there was a question whether the entry at all dispute that there was consent to enter the home the that is correct there's those are entry cases but the principles are the same i understand that we'll have to look at them but we don't have a case like this where there was clearly unauthorized entry is that correct i think that is correct but i would say to you that is hurting us i don't believe there's a published case from this court dealing with the search of a site that you have challenge the entry is illegal that's correct yes what i would say is the reason why the officers were authorized to enter the home was we believe x in circumstances and the government could seize that that justification of that and i agree with you there we don't have what we are saying is that once the exigency was gone and they were inside a home without a warrant it should have occurred to them that they needed it to justification to search the home and one possible justification would have been consent and they didn't bother to ask her at any point in time either on the street or even after the search had already happened and there's you know but the officer did not just willy nilly feel like i'm just going home he gets a broadcast from another officer saying hey sure the wife was telling them about a gun and infer from that her consent that the retrieve the particular incident is i think that's possible only if you reverse the burden of proof it's not our burden to his to show that she would have refused consent had she been asked it is the government's burn to show that she says that she in fact did consent specifically in unequivocal he and merely telling the officers that that there was a fire in the house in response to the officers questions fall short of that of that standard so you know isn't there a third person who is in the house and so there might have been a concern for officer safety about having what happened is the wife in recounting the incident was referring to another male who was in the residence earlier in the day but there was no male in the residence at the time there was only a female roommate there may have been a little confusion was mrs golding what was going on she said she started recounting the incident and that incident earlier in the day had involved another man and the officer may have believed that this is the third person was a man but in fact she clarified and said no no no it's a roommate and she's in her room and they all to merely regardless of what they thought they went in they determined that the only person in the house was this female roommate they removed her they secured the scene they testified that nobody's going in or out of the home at that point and that precedes the search of the couch and that is why there is no dispute in this case that despite the lawful entry the exigency was gone before they searched the the sofa i think you're right that no exigent circumstances whether the original entry or even this search but i thought she went back in the house with them took them back in the house what did they go back and why was miss golden going back into the house with the opposite the officers requested her to come back to the home to further explain what had happened that's right they remember now they want her to walk through the house and tell mom where the altercation began how the events transpire that is correct your honor they had left her in the back of a patrol car they drove her around the block they removed her from the patrol car she walked them through the house and to explain where things took place but of course that all happened after the search had already occurred couch and she's not in the house at that time wrecked ok and so they lift up the couch they see the gun they don't take it they just put the couch pillow back down right they do not put the pillow back down but if they do they take apart the couch they take all the cushions off the couch and they leave the cushions off the couch they leave the firearm in the couch where it is they don't remove the firearm at the time but they do remove the cushions so it's it was not in plain view and that is how they discovered it by removing the cushions they don't put the cushions back  so then about a half an hour later they bring her back to the scene they she walks through the residence of course but the search the violation had already occurred by that point in time so our view is that the only relevant facts here are what happened on the street and the violation is removing the cushions from the couch search for the gun or act ok that's correct that they needed an additional justification because it was not in plain view there was no as you can see and they're in a home without a warrant and you know our position is that on the street that is the relevant exchange between mrs golding and officer dowling she is not told they are going to search the couch she is not she's not of course see them searching the couch  know if he asked her a question about the car she just told him we don't know she first said he she says that he threatened to shoot her and when she says that he starts asking very targeted questions about where the firearm is where in the house it's set oh that's the sofa where the settee is it is in the mattress and she is at storing those specific targeted questions in our position is that answering officers investigative questions is not consent or request or an invitation to go ahead and search that area especially when she could have easily done so i've just completed that want to upon the gun if they don't take the violation occurs the search occurs by removing the couch cushions and seeing the made either of those arguments in this case at any point in the litigation and we think if they could have in fact got no warrant and we don't know whether they could have or couldn't have that only if they could have that only furthers the reason why they should have stopped at that moment when there was no longer any existence even go get the warrant that that would be our response to that in any event this case was ultimately dropped we don't know if there was enough probable cause or not probably maybe certainly is not getting off and we're not here to defend his actions in this case what we are are here to say is that when we're talking about implied consent and there's no request for consent by the officers for more is required for that for the government defendant was searching for the gun in the bedroom but she knew it was in the so far is that what happened she tell that to dowling yes that is why in the recording then captures dowling telling weighing m sers the gun in the sofa ok and going to to weigh in she was to press charges and the defendant on a gun before and then he picked up the night as the defendant was trying she picked up a knife is trying to do it why couldn't they she says as a gun in the house to verify her charges five couldn't they look at the sofa where she says there was a gun and look at it they are trying to decide what duress him for and so what our house she says with a gun is i would that be an implied consent because she's saying i had a gun i was looking for a gun is in the so far lo and behold i go in there and it's in the sofa and that vera is her she's not mak verify her account is not an exception to the word require absent x i agree with that but i mean it's impart of the implied overall plot consent here why would that be enough because she's merely reporting to the office happened she's trying to tell the officer here's the situation here's the altar cation and she's giving them a lot of facts about what they were arguing about and all of those things and she's just trying to make sure they understand what happened and that is what officer dalin is trying to do as well trying and for them to push she she did not say she wanted to press charges until after the officer relayed to the other officers where the gun was located in the in the cat in the couch and that is only more reason why they should have simply asked if it was alright if they could have retrieved it and our position is that merely saying where it is in response to the officers questions is not an invitation to go get it thank you you preserve five minutes good morning in may it please the court eileen cannon on behalf of the united states he with me counsel table is david turkey who handled this matter in the district court the search of the defendant's gun was reasonable in this case and the district court correctly declined to apply the exclusionary rule the relevant question for consent is what he took the reasonable person have understood the victim to be consenting to a search of the firearm that minutes before had put her at risk during a violent confrontation with the defendant we think the answer is plainly as under an objective reasonable standard which of course is the relevant what if she were at the police station instead of being questioned three hundred yards outside the house and she's having this conversation with the officer and the exact conversation occurs and he says what happened was there a gun and she explains all of this how would she know that there was then going to be a search of her house why would that give consent implied or otherwise  concern you know for a search of her house i think that would be a very different circumstance we're talking about here is a frantic victim of domestic violence calling nine one one for help she gets there after being what if they had just taken her picked her up and they brought her down to the police station and they had this discussion i think it would be a very different case on the totality of the circumstances would certainly shift well because actually in conversation how does the how does the nature of the consent whether it's implied or not change based on the exact same conversation if it occurs the police station verses outside of her house while you're adding into an element of for formalism to this interview it becomes much more in like an as opposed to the police responding to aid her exact same conversation yes but it's minutes it's minutes later it's far removed from the place where this domestic violent confrontation has just taken place at the confrontation is also over and she's with the police in the scenario here i'm not understanding i just want to give you an opportunity to explain why you think the words would i have a different meaning in that context i mean the words wouldn't have a different meaning she would still be saying to them he threatened to shoot me and then very reasoned and i would i should mention she's the first person on the scene to alert the officers of the presence of a firearm when they get there they're being told that there's a knife on the scene and so she's the one that volunteers that he was threatening to shoot her very reasonably he the officer then asks well does he have a gun and then follows up to ask where the gun is those are extremely reasonable questions i agree those are reasonable questions or is no problem and  had said do you mind if we take a look or go get it we wouldn't be here today yet he didn't say that so how and by the way she's not the one who gave him the keys so how did she even know that he was going to look for the gun at the time she told him where the gun was our position is that she's alerting the officers to the presence of a firearm and to the location precisely of the firearm in her home any reasonable officer in that circumstance would understand her to be consenting to the officer search for that firearm to retrieve it and to defuse a very dangerous situation that had just put her at risk minute if i see here's the thing it didn't defuse any situation because this the area was already secured you have conceded there were no circumstances a search warrant could have been obtained because the house was secured i mean i'm not sure i'm following you here i think it's important to keep the timing in to in perspective the two officers who actually go in to conduct the protective sweep they enter and it takes them a total of three minutes from the point they enter the home conduct the sweep locate the roommate and then almost immediately thereafter direct the roommate to the porch and locate the fire and this is a very very fo that's true it does happen quickly but it seems like when you look at it by the tape or whatever the recording that the female roommate exit  at five fifty seven am at five fifty eight deputy williams asked her to step outside on the front porch and she did at five fifty nine is when and also at five fifty eight after she steps out i guess williams tells valdes there's a gun in the sofa then at five fifty nine which is after she's already out of the house that is the first time that valdez removes the sofa cushions and finds the sawed off shotgun right yes yes ma'am so even though it's happening quickly there's still there's no exigency we've already established that and there i mean the place was secure at that point there's no question about that i mean the officers testified that the place was secure so why didn't they just either ask for consent directly or get a search warrant well the reason why they didn't ask for consent there's been a lot of discussion about that is because any reasonable officer in that circumstance would have have understood her to be consenting they understood and perceived her to be consenting after all they wouldn't have been there had she not called nine one one for assistance this entire encounter is extremely operative is calling nine hundred one for assistance mean that your consenting to a search of your house no it does not but in this case i would if they had found but if she had what if they had found cocaine or something in the house and it turned out it was hers and you know we were here on a suppression for her i mean that seems like she would then be saying she's not saying anything but you know you'd still be arguing that she gave implied consent i don't i don't know if we would your honor because here was a targeted circumscribe search to look for the two items that had put her at risk as wife had gone in the night the same exact thing happens but they go in and when they're in there they find they're digging through a couch and they find a bag of cocaine with a gun and it turns out the cocaine is hers i honestly don't know what we what what would have transpired as of that all i can say is that what it should answer is if she had told us and the way i have cocaine that under the so far and that's how you found the coquet here she's saying where the gun is yes and that's equivalent to what we different such a watch and in this case she like i mentioned she's volunteer in the presence of a firearm these officers are there to help her she precisely identifies the location of the fire and she even uses hand gestures to tell them it's in the side portion of the couch all they do is go in there account for the firearm and ensure that it is indeed there and then at that point it becomes a crime scene and they don't want to taint or can't contaminate the evidence by handling it with their bare hands and so they at that point wait but this entire encounter if you intent to later exercise dominion over that firearm where the gun was she definitely knew where the firearm was and in fact she's the one that chimes in communication with the officer and clarifies to deputy dowling you know he hid in the in the sofa so she's participating in the exchange she's never once hinting that she doesn't want him there and i would note there's nothing to suggest that the that the police overcame her will nothing to suggest that she  either her age or intelligence or something would have undermined her ability to consent i don't think there's any question about that and i don't think the concern is whether or not she had the ability to consent to the competency to consent the question is whether reasonable person would understood what occurred there to be her consent right that's correct so it also therefore doesn't matter what happened after they've they did the search and found the gun right well because that in our view because because she didn't know what was going to happen afterwards and it is indicative of the entire encounter the fact that she subsequently goes through a reenactment point by point and explains to the officers what happened they're there they're actually trying to help her to get a victim witness advocate out to the scenes or she can file a temporary restraining order but we have to evaluate whether the whether the consent whether a reasonable person would have understood it is consent at the time that the search occurred not after the search occurred so i don't see how we can really consider what happened afterwards when we're trying to determine whether a reasonable person would have understood what she said as consent to search the house as opposed to just explaining her answers to the you know just giving her answers questions that she was being asked by the officers it is correct that you're examining the circumstances as they existed at that moment in the exchange between the victim and deputy dowling but it is still relevant in our view that her entire demeanor her gestures her statements throughout the encounter are wholly consistent with a victim who is seeking police assistance and wants them there to retrieve the firearm that had put her at risk i would also note that even if the officers could have potentially done something slightly di here's the problem right the problem the problem is that we don't know what she what her intentions were we just don't know and we couldn't if we could very easily know if you know the officers if the officer had either gone back to his car and gotten there in consent form or simply just asked do you mind if we take the gun can we look for the gun can we retrieve the gun but the officer did none of those things and she wasn't present at the house when all of this was occurring i mean it just yes but she's a couple blocks away having a conversation with deputy downing watching him as he relays the transmission to his fellow officers that the going is in the sofa and then she participates in that exchange by clarifying that it was him who hi it she's entirely aware of what's happening and any reason officer in our view would understand her to be consenting to a search a limited search for those two items that put her at risk i would also want to stress that the fourth amendment i between that relay of the phone call and when she gets back to sing and goes back in to the house with the officers which is when they actually physically take the gun it's approximately thirty minutes because after she initially says the gun is in the sofa she then is asked to write a written statement she writes a lengthy statement on the scene the officer asks her to read it back for accuracy and then after after that a few minutes later is when they all go back to the residence and she does that reenactment point by point she showing them the genesis of the disagreement with her husband and how it all started and then after that actually the officers bring in the defendant so that he can get his medication he can get his clothing he's on cost for a large portion of that encounter so this is a cooperative encounter there is no hint of discomfort with the officer's actions the defendant himself gave the keys  and although we're not proceeding on a consent theory via him i think it is relevant that he himself is not protesting their presence or the search of that exam if you're not proceeding under that theory why is that relevant because for example if he had been physically present protesting it would potentially change the calculus but man why why because why because aren't we asking about whether whether mrs golden gave her consent i mean you all of construe not proceed as you just said on the theory that he gave his consent that's correct all i'm saying is that that fact the fact that you don't have another occupant sort of contemporaneously objecting i think is relevant to the entire examination of the t circumstances which is after all the fourth amendment task i guess i'm sorry i'm just a little confused why would that be relevant to whether she imply adly gave her consent it's relevant so far as a places everything in context obviously it's not a critical fact but the fact that he gave the key in response in response to defect attack that he valdez's request just shows that one of many facts indicate that this is an entirely cooperative encounter they're not using any coercive threats or police procedures as we would have in those cases that my friend has cited such as bates the harvey and bashir of iraq deal those are materially indistinguishable cases where you have a truly flagrant police conduct in one case in bates you have officers barging into a third party's home to execute a civil commitment order and they're doing so in a very rough manner at the homeowner herself is objecting to their presence contemporaneously we have nothing of the sort here we have a victim seeking help which is what we should be encouraging victims to do and we have officers quite reasonably reacting nobody is answering to discourage the victim from seeking help we would just like i mean myself i would just like to see you know the fourth amendment followed that's all and i'm i know the officers were doing the best that they could under the circumstances but it would have required one simple question you know is it ok with you if we go and get the gun but that's not the test the test is not what we did it's not the test if the implied consent could be reasonably understood right that it's not the test but if it can't be reasonably understood then we have a problem well i think plainly it's reasonably understood under the circumstances that this victim is is asking the police to be there and to retrieve the firearm in the sofa where she alerts them to not just the presence of the firearm but the precise location of it the exclusionary rule i will i will end with is a harsh sanction that really reserved for flagrant and grossly negligent police conduct this is not what we have a question when he ensure that the weapon is site i was trying to understand why he didn't take the weapon then why did he just valdes you agree took the cushion you couldn't see it without the and then i did not realize this your account of the council says and you didn't put the question back on the weapon is that correct that is correct although there is a portion in the video where i think maybe the question was placed back i have to  loaded and unloaded i know there were three loose rounds i believe it was unloaded and the rounds were adjacent to the firearm but i may be incorrect on that point whether  go to page thirty washington sure that the weapon a cipher wherever the weapon is yes and that's what deputy valdez says was that out a sign that he says i didn't see the need for me to go apply for a search warrant for something that we were told by the victim it was there all i did was look for that weapon and make sure that weapon was safe i think that's a very indicative quote on the part of the officer who's being told by his colleagues on the scene that the victim is is precisely identifying the location of a firearm and we viewed in that light and under the t circumstances i'm on his show the search is completed at that time i don't know it's just unusual fact pattern i don't i don't know whether the search is completed at that are rather that they never took the bar and search got completed because they found the weapon right i mean they went through the couch they lifted it up they found something they couldn't see until they searched the couch right yes and the seizure of the weapon was that morning after they have taken mr moore to the police station he's got his medication he's dressed the victim is there the roommate is there and then they put the weapon in evidence bags so as not to contaminate the evidence and then the process that as they ordinarily would  we ask that you please affirm the district court's order denying the defendant's motion to suppress and affirm his sentence as well thank you counsel the officers in this case were not proceeding on a consent theory they were proceeding on an exit in c theory that we all agree was not applicable at the time of the search so when the officer  yes i wanted to account for the firearm to make sure it was safe well if there's no exigency then that's not a valid justification there's either an x which is they try to make sure the evidence was secure that and whatever are in the course of their rest help me with that because at that point they testified both officers that they had secured the scene the room it was out nobody is coming in or out of the house alone firearm in a couch in an house that is fully secured by the police is not an exit in circumstance it's not a danger to anybody that's why they were not allowed to account for the firearm on the safety russian which is what was going on here and that russia now we all an hour later he's in handcuffs he doesn't have a shirt on they bring him in he needs to get his edit medication before they bring him to the police station and he needs to get a change of clothes is that after they found the car yes it's a half an hour later alcott they found the gun and they not found the gun were concerned about the possibility they could have left him outside brought his medication brought his clothes out if that was a concern but the way they chose to proceed here was to go immediately into the coach and it's interesting that officer valdez a couple of minutes after he removes the couch cushions turns to officer williams and says did a good officer don't tell me to do that it looks like he and he kind of realizes that maybe they shouldn't have done this and officer williams as i told you to do it but i think even then even then after the search has already happened and there's a whiff that something may have gone wrong here they don't ask mrs golden for her consent and i asked two question suppose after all this happened and when they went back to the house the second time start around the house and then they take the weapon i think that's a closer case given that the search is already you know where i'm headed the fridge is five dead in the implied consent when that happened also at least be something under the  the circumstances we can't consider at that because we can at least consider it it may not be enough in your view but can we at least consider the second entry in the house and what goes on there since i didn't actually take the gun they just put up the cushions lived on they are then they go back and before they actually take the they have whatever that encounter is i know you said that and cameras not enough i understand that but can we about the entry ok they're all about the entry of tried to find some case like this i could not find a case like this where the interest is legal or nobody is contesting case that is where the entry was ok then i don't believe we have relied on any such case your honor but our par our view is that this court's decisions and zaal is especially where it announces that principle explicitly cannot be kept in two cases where the law of the entry is not being challenged the car that's helpful the point is that a failure to object is not sufficient especially where as here there is no request for consent at all because when an individual is not put to the choice to agree to consent or refuse then the only way that you can infer consent in that situation is an invitation and express unambiguous invitation and our position is that that clearly did not happen here so we ask you one more thing if you don't mind for fourth amendment purposes for analysis analysis purposes is there a difference between whether the officers just searched and didn't seize or both searched and seized no your honor that is not relevant at all because the constitutional violation happened at the moment of the search the seizure in this case omitted the made it happen later derives directly from the unlawful search of the couch so we don't understand there to be any constitutional distinction in that regard in the government does not argue that there has we respectfully ask that the court reversed the denial of the motion to suppress thank you counsel