space protected by the fourth amendment to the home itself they did so without a warrant they did so without any reason to believe there was anyone inside much less anyone dangerous and nothing made it imperative for them to enter the home immediately simply put this was a warrantless search without consent without exigency and without even so much as reasonable suspicion the undisputed facts of this case are these your honour's this batch received call reporting that there was an older intoxicated gentleman apparently threatening his daughter with a firearm inside his home the caller to dispatch related that the information he was reporting came from the daughter who herself who was texting information and who asked him to call the police when two troopers responded to the scene about fifteen minutes later wasn't part of the information he was telling some at the through someone outside your own kill i don't believe it's clear whether the person calling just spoke with that level of detail but he did say that there was a man inside the home waving a gun around erratic that he may have barest hated himself inside about him that he was frightening the daughter that he may have been in danger in her and that the circumstances were very volatile and that was not answer my question was it wasn't he also saying to samantha daughter that there was someone outside trying to kill i'm sorry yeah well yes the father did apparently says oh there was nothing else there was this mysterious third person but i don't believe that information was reported to the police your honor as is my submission that the caller to dispatch did not rely on any suggestion on the daughter's part that she feared that her father about someone was outside trying to kill or just that he was waving a gun around and writing her all right when the police did arrive what they saw was two individuals looking out from inside the front door of the home and they commanded those individuals to exit which  immediately one was an older man and as he appeared to well as he began to walk toward the officers his balance was poor his motor skills of appeared to be impaired and so officers took him to match the report of an older male who was intoxicated the younger woman who came out of the home was about the right age to be his daughter the officers had the older man walk about twenty feet away from the home asked him to lie face down on the ground handcuffed him behind his back and then secured him at the very far edge of the yard next to their cruiser they found it on necessary place and side of their cruiser at that point he apparently engaged in polite conversation with one of the troopers to whom he provided his name other biographical information and even responded to inquiries about a motorcycle in the garage at all points throughout this encounter he was perfectly compliance with not at this point he noticed that samantha white appeared shaken so this was another piece of information corroborating the reports the troopers have now on this to paladin circumstances at this point in time  hovan elected to march right up to and into the home in order to investigate its interior what was the visibility like what was the time of day was this was at between midnight and one am in the morning  record is quite discrepant as to exactly what the visibility was at the front door through the whole band the one who went inside said it was dark another point he said he did think a light was on inside the house somewhere his colleague trooper hill unissued described the front door as having been fairly well alumina it in response to another question from the district already said it was very well of them unaided there's discovered two guns that were beyond the threshold of that home which he sees unlawfully and brought back to his cruiser thereby thereby making their recovering owns a mystery why did he see the guns as he walk submit the suggestions of his testimony is that he saw the guns as he was walking into the hall that's the closest i think is he was walking as he was walking home which is also consistent with his prior statement two days after the incident when he said i entered the home and saw the god now he gave other testimony that was that he was still outside the hall when he saw the guns i guess his most precise testimony in response to leading questions from the feet he said he saw the guns and it's assume for a second under your argument could he have gone in and seizes guns without a war now and he c make any under your theory of the fourth amendment as it applies to these facts even if he saw them outside while he was outside he could not have seized them with war that's right that would still have involved a warrant that any space that lies across the threshold of the home is not immediately adjoining period that is the holding of your r v fallacy so worried a look at this as an issue of facts which i don't think is the most f district court did is there enough of a record for us to decide to an existent circumstances yes there is one thing let me try to explain why what we know from the record here is that mr white was arrested outside the home and secured more than twenty feet away so we've got the test under sure our being was there reasonable suspicion to believe that someone inside the home toy with a danger  going to begin with this if your own testimony they didn't claim to have reasonable suspicion they said they went into the home to make sure there was no one inside they weren't investigating a suspicion they were trying to verify what they believed to exist and as the court said unsure are to quote no information i e having no information can not be a basis for a protective suite that requires information to justify it in the first place they had reason to believe that there was a firearm at least one firearm in the home is that there that's fair so does it follow that any individual in the home that was not accounted for would pose potential danger given the belief that there is a firearm yes but just before i address that question very immediate i want to make a crucial point that there is every nazi reason also if there was any other person inside if you did have a circumstance where there was an unknown person inside the home and a loose firearm i would suggest that perhaps that would be enough to support protect this week unless facts known to the officers compelled the conclusion that whoever that individual was would not or could not use the gun so why isn't the fact that the report here came in from a third person why isn't that enough to create at least a reasonable articulable belief that there could be someone else in that home  under the facts known to officers it would have been reasonable to infer believe gas that that third party was inside the home i would be flatly on reason first of all the district court made an implicit factual finding that the person was not inside the home and the reason that's obvious is because he said he was relaying information by taxed so first of all if you'd been inside this small home it's unthinkable that he would've also had personal information to report i e there's a man running around in the next room i e i hear my girlfriend screaming that's one reason he couldn't have been in the home the other reason is that it's not possible to believe that the two if he was in the home that significance but it does so because it says that means he couldn't have called that that means they couldn't be telephone communications between samantha and this third party so i would submit that implicit in that is that he's not in the hall furthermore one of the troopers troopers hill testified that it was his understanding that this third party had been contacted in some way by samantha again indicating the belief that he in exemplary fashion they were indeed confronted with a situation that was in the words of the district court fraught with danger and they acted to a million rate that danger in a way as the district work included that was absolutely respectful of and consistent with the orphan i understand they were called to what was described to them on the radio as a domestic situation the facts were not known they were not acting in a court room lighted heated safe they were acting under the under the focus of the particular facts as they were unfolding and as they were changing before their eyes that's always the common scenario isn't it is it is the common scenario although some scenarios that the facts have happened and the police are coming on the scene and they know what the facts are others the facts are changing literally right before their eyes so  what do you do in this case really had this information in advance of the father dragging the daughter in the inside currently a trailer home now the officers arriving to take him outside and at least twenty if caught him the primary suspect here in cuffs and she is outside also so both of the participants are outside and you and he got immobilized essentially they go inside and one of the officers goes inside now at some point the fourth amendment has a role here it absolutely it absolutely does have a role and that tension is really what motivates many many of the supreme court cases bowie for one  is very very practical it deals with the practicalities of of arresting individuals was an injury i can't remember the facts was it in in home it was in home it was clearly in the home and it was dealing with the dangers and that's a very unique set of circumstances because you know what lurks around the corner but this is very different because the officers were outside well except that the corner that's lurking in this from the front door of the trailer where there's been report of a of a man with a gun understand to the that buoy is dealing with a very practical situation that facts often are not what what they're believed to they even prong one was even a possibility so that may have been just simply the facts driving that decision and the case may say may not stand for that proposition and indeed  in lots this court a did not treat sure are as controlling and indeed there are cases from other circuits cited in our brief dealing with fourth of the situation of fourth amendment protected areas in which courts other circuit courts like this court in lats have concluded that yes you may apply to an arrest just outside the home as long as the area that you're looking at is number one was a finding of it was a finding of fact although its character is one that is that is both legal and factual because there are facts findings that underlie it and you're applying the law to to immediately adjoining when got to work if the facts were as your honor states them the answer might very well be no but you have to you have to remember that the facts which we now know them to be which is that the primary suspect was handcuffed and immobilized and that the secondary suspect was no with a secondary individual was no threat are facts that we now know but those officers did not then know that they are the officers clearly didn't be samantha said he didn't see her he said he did not see her as an immediate threat given her size but that doesn't mean that that's not subject to change and the method and in the case of domestic violence victims it often does that people who start out as no threat and as the victim change character and all of a sudden when they realize that their loved one is being arrested rather than just removed they do become a threat it is a it is a situation that is subject to change likewise when when the officers arrive and there are two people they the best analysis the conclusion that they leap to is that this is probably the perpetrator and probably the daughter but they don't know that for a fact because as the district court found they don't know samantha and they don't know why they don't know for sure that the that the report of a man barricaded with a gun in a vast room is these two that he's done better had seen nothing inconsistent that report at the time they entered the home and that right well that no that's not correct they're told it's man with a gun they have men without them they're told that that if it's white who's the man with a gun that he is violen t and unpredictable and has gotten into fights with the state police they get man without gun and that man without gun is absolutely passive and absolutely compliant the one who's not compliant to samantha she ordered away from him and does not comply suggesting that she that her alliances are if not if not shifting certainly undecided that that she does not respond to the state police the way you would expect a victim to do it and in any event her her reliability is unknown they also know that the information that they're given is a passed down the lane kind of information anybody who's played the telephone game as a child knows by the time it gets to the third hand it hasn't it has lost things and it has picked up things so they they do not and they say in their testimony in the district court we don't know what happened we don't really is they say they were not sure i think they didn't they they suspected that they did i think that like the defense if you had stopped them while the process was unfolding and said what is your best guess as to who you've got and what's going on they would say i suspect this is white and this is some half of them but to something to seems that we are imposing unnecessary burdens on law enforcement officials especially when you're see these is is of concern to them but actually what it seems like it requires here is to get a word telephone which doesn't take very long at all but there is a fairly accurate and i would say that is required in these circumstances because i don't think you would never agree with that but i'm i'm speaking practically and and in terms of experience what does it require to get a warrant could they just not call it in and one number one no you can't simply just call it in an order as well as if somebody is on duty to take you know these immediate emergency types of applications where could that happen if not well there's two answers one is the very practical answer which is as i say they were told that there was man barricaded in bathroom with that if if they took the time even to cross examine the people who they have to get identification to find out who they are to get their story straight it may well be that if that person is is still in the barricaded situation that person may be killed or there may somebody may have already have been hurt and in fact the trooper was very clear that when asked why he went  in he wanted to see if there was somebody who needed medical attention it was clear that in his mind one of the possibilities was i don't have the the players all right or there is a third party on the scene who is not accounted for and in order to do that if they the to go through the business of a telephone warrant means you have to locate the judge it's now one o'clock in the morning you have to walk wake a judge up the telephone warrant assure are itself makes clear you're supposed to have a duplicate original you're supposed to write down all of the information on both sides of the telephone the judge then instructs the officer to sign the duplicate original it's it's in fact a long and involved process itself it's quicker than than driving halfway across the county to find a judge but that doesn't make it you're not talking you're not talking seconds or or the couple of minutes that he that he needed to go in and make sure that there's nobody dying or about to die on the floor or indeed that while they're out in the out five feet away talking to samantha and twenty feet away talking to white that there's not somebody in the house who's got the gun which as george stark pointed out and i think that that that would be an appropriate course because there are issues there are fact issues that the defense says are unclear from the record for example that didn't whether or not there was a  threat to the defendant and whether the officers needed out of that was part of the totality of that that might be made part of the record that very well might be as well as the three feet business by the way it's paragraph of page one hundred three of the appendix and the officer very clear that he sees the guns before he ever gets in the house he's three feet away the approximate distance of we've actually gone who said it really didn't make any difference or as the or agreement they were making as even if he saw them three feet away he could point but that doesn't mean that that it wouldn't that that information would not get folded into the exigent circumstances but there's no finding on it there is no finding out that's that's quite true there was no fighting off you know it wasn't raised in this case but you're a point twenty feet away well no that's that's not quite correct that the defendant got to a point twenty feet away and samantha was samantha's between five and ten five and ten ok and to say that that when you have two people come out of the house at gunpoint that the officer can't approach so so so he's entitled to be within five feet as it's hot so the crux of what i'm getting to you help clarify is really question is whether at five from five to ten that range from five to ten what rights the police have under buoy either prong  then under that under the law compelling logic of blowing in there is no reason to think that standing outside the front door within five feet of a home so you would argue that that's the vantage point from which we should analyze report one because that's where the officers are at that is fine that he has to make his decision but if we go to buoy port to we have to analyze the facts which may be on this record sufficient for us to make it  the facts may very well be insufficient on this record there are there are certainly indications that that the state police were were made aware and indeed went out over the radio was as it indicates a p s r that there were at least claims that there was a third person there also was they knew by the way that there was a third person they knew that there was somebody relaying the information they they didn't know where he was they didn't know if you know arrived in the fifteen minutes that it took them to get there they didn't know if he was the same person that the person in the house thought was trying to kill him they didn't know if the person that was trying to kill him was a fantasy which is what it turned out to be but this was not part of the judge's decision was it was not part of the judge's decision because the judge the judge relying on la didn't think he needed to go that far ok this is your thank you very much no one reported to officers as edge fisher your question originally pointed out that mr white believes someone was at the home to kill him that information is not in officers had at the time they were reporting to the scene that comes out apparently from the discovery i have not from anything on the record from a statement samantha makes about an hour later at the barracks and that as my friend has said came out more at sentencing but at the time that the officers responded there's no information available to them that somebody is trying to kill mr y nor that's math as a threat the idea that it was reasonable for the officers to believe that someone was barricaded in the bathroom is also a gross distortion of the record the closest thing we have to someone barricaded in the bathroom is one of the troopers saying maybe he heard someone was barricaded in the bathroom numerous other statements by the troopers of what they heard was that a man was waving a gun around and moving his daughter from room to room so it's not it's not even perfectly clear anything about being variegated in the bathroom with that and finally the officers did not have any doubt in their minds that the people they were confront who left the home where the older man who was reported to be the assailants and the younger woman said to him and his daughter and i would refer the court in that regard to pages one hundred thirty two sugar hill testimony and one hundred one which is trooper hovan testimony where he says that what he encountered at the residence was exactly consistent with the information reported to dispatch for all these reasons your honors there's no call there's no warrant and there's no with no propriety in ordering a re man here just to make the point as plainly as possible sure our states that a sweep incident to an arrest occurring just outside the home must be analyzed under the second prong of the we analysis the district court said that the situation was fraught with danger what do we what they cross the threshold and they made the search it would be clearly were not it was not for it was clearly erroneous to find at that moment that it was a situation for all danger that's right and that even though they don't know what's in the house even though they have no information that anyone is inside the house that is what's required they're not allowed to walk inside the house to make sure they're right there's no one there and all the information known to them at that point they did that