reserve five minutes for for me what i'm clear freeman today and i represent the appellant to mr ronald koeman in a matter that boils down to basically two search warrants that are in for multiple reasons and a fairly agree just set of violations of mr coleman's property rights by an authorised intrusion under the curtilage of his home including out of the private protected space of an exclusive enclave of residential homes a housing complex that was very clearly set up to maintain the privacy of the residents and saw start there because of these intrusions flow the some of the  warrant so if the court finds that the police did indeed violate the fourth amendment by entering mr coleman's driveway entering his condominium complex you can use distinguish between the two your brief uses the phrase unlawful surveillance conducted from the private condo premises that sounds like simply walking even to this place that has no gates no guard station it does have a sign that says private property but you know every restaurant every office building is private property too but is that what you're calling on lawful surveillance is simply walking into the condo of any sort well your honor in here i do want to make sure that i'm clear on the distinctions we do have two distinct violations the one is the entry into the condominium complex either in vehicles or walking for purposes of surveillance and what did they gather from that that got into the warrant things like there is a paragraph and i have it in my notes if you'd like me to come to the exact citation but where they observed mr coleman's girlfriend leave the home and  one of the vehicles things like that they're close enough to be observing the front door intimately which is over a mile from any public thoroughfare from said steve st which is the last public thoroughfare before entry into the sun so they are observing the home with things like mr coleman's golf not any of the particular drug deals that know all that and that's part of the issue here is there is no allegation of any drug transaction of any illegal conduct in the home the warrant for the home which perhaps i'll get to later it dresses things like the home being bought on land contract the fact that the home belongs to mr coleman and that he did purchase it on land can't contract that his girlfriend leaves the home and enclave that becomes subject of tracking in a tracking warrant there is absolutely no allegation of a drug transaction occurring in the home or in this private complex in i think that's sort of  the drug deals doesn't come from what you call this on lawful surveillance that happens elsewhere well some of the unlawful surveillance yes i see what you're saying the tracking then is this all i heard about say that what you called unlawful surveillance separate from the g p s tracker is seeing the girlfriend leave the home and related there were some other related allegations of along those lines but yes yes and then it's the tracking that becomes extremely problematic because  the facts are apparently what they were standing in the area or they had driven their car in and were watching it from the car i didn't quite get that part for the tracking or for the surveillance the girlfriend i mean the girlfriend now it's a let's say you know you say that they that they found this important piece of evidence by being inside the complex physically right to the richard telling me and i was just asking you know or do they simply walk in stand there they you know drive in with the classic kind of cops the at a distance with cameras or a point i do not have a clear picture of that in terms of other was a marked police car unmarked but given the exhibits that the government had at the motion hearing and that have been made a supplemental part of this record and given some of the other photography that's in the record from the district court i do believe they were in a vehicle some of those pictures are coming from a viewer colvin know with review mirrors and things so i do believe that it was  ar and then we get to the actual out the second entry that's problematic here not just their surveillance but the application of the g p s tracking unit if i have a warrant to put a tracking device on a car what is it me do in terms of work can i only then find the car in a public place if i don't have anything else in the warrant as this warn is written yes this were very clearly had a box that officers could have asked the magistrate judge to check that would have allowed them to enter private property to apply the warrant that box was not checked i mean if it's a constitutional limitation we're talking about here it's kind of odd that one could check a box a could just wave that off i mean does that box thing actually make sense legally i think so because again we don't have a detached magistrate judge determining whether or not there and that this where is probable cause to believe that it's that this tracking would lead to the contraband that would lead to evidence of a crime and that there should be a permission to enter into this protected fourth amendment space sort of the bedrock of but the protected part is kind of the the query isn't it that as i understand the affirmative permission the government cites this doll your case where they did have a warrant that you can enter private space in the supreme court upheld sixty three but independent of the the issue of whether something is curtilage is you sort of have we have this sort of oddity that if if the car was parked two feet on to the driveway of a public of a driveway that is private but right up against the street would you say the policeman can't walk two feet on the driveway to attach it at the other in you know we have a completely enclosed garage that collins and cases like that would certainly say is curtilage and aren't we sort of a little bit in between this that is it's relatively public the other condo people can walk in it's not enclosed or are you saying that without checking the box i can't walk two feet off a public street into a private driveway i'm saying it and i believe the supreme court in collins said it and i believe that's one thing that i does collins's spend so much time on it being enclosed on three sides it being beyond the first perimeter of the house all of those things that i think would make an ordinary person think you know this maybe curtilage whereas you know two fee do believe our text test bill remains fluid i don't think there's a bright line rule that says you know is the line in the sand or i don't think we have a line in the sand that there is some sort of like imprint in the cement but i think that justice alito brought up this very issue i can't quite close him verbatim but he said something like why should walking just a few feet up the drive make the difference this in columns in collins yes but why why isn't it just whatever the fourth amendment allows you to do you can do that if you can place the tracking device consistent with it so in hardiness justice scalia says well girl scouts and trick or treaters can come onto your property knock on the door and leave right would police can knock and talk white if police have if you have an implied license to be on the property to do certain things why can't while you're doing that you just  tracking device i think that just goes to justice scalia's point that yes the girl cuts girl scout can sell cookies but the gentlemen with the metal detector on to be kind of flagging around your garden path can see police officers for one it's a license to enter into something you would expect the public is what the implied licenses absolutely but i think the homeowner i can't think of a homeowner that would imply a license to come in put something on my whether or not the automotive exception would allow the entry and it wasn't a warrant and it's not a tracking case so a warrant is is a judicial authorization to basically infringe upon  privacy or other interests are protected by the fourth amendment right and so if you have a warrant to search your house you can do that if you have a warrant to to trespass in the manner otherwise forbid by jones you can do that and i mean it seems like we're cutting a pretty fine to say ok he had a warrant to do the trespass of attaching the object to the car that intrusion on fourth amendment interest but because he didn't check this other box he does the warrant does not constitutionally allow him to walk you know ten feet up the share driveway if you follow me i do your honor and i understand him out of time but i could only answer very briefly i do believe that there is a distinction the warrant gives them the permission to trust past against the  vehicle but it didn't give the permission to trust passed against the sacrosanct house and i think that we needed both there that's that's a very concise answer thank you you're from the government box and the need for it if you look back at the mistreatment i mean just i think explained it pretty clearly right i've read that's what that's what it purports to be i don't know that that's actually correct because if you look back at the two thousand and six advisory no possibly the box on the administrative form which doesn't come from case law is just a form that the administrative offices put together may be a reference in rule forty one to the fact that rule forty one is talking about either trackers for things like  things like beepers that go into a box or whatever that's going to go on private property but it's burger request for purposes of installing maintaining or removing the tracking device authority to enter the following vehicle or private property or both and it's just with the vehicle right so there is they could have said twelve fifty five you know cherry tree lane and therefore would have been able to go onto that property and put the device on this car but they didn't ask for that right so there's a couple of answers to that the first is i actually think the box may have originally been  kero the issue of the box once you can once there's no p c required to actually put the beeper in the box but once it goes into private property that's the issue so i think that that's the origin of the box potentially that's the first issue second is when an office r has knows what private property they might be have to go on to in order to place a tracker on the car that he had the best practice would be to ask the magistrate for specific permission but remember private property isn't really the issue you can have fifteen acres of private property and you know it does mean you know fifteen acres or courage i'm not saying all this all i'm saying is it doesn't give you anything more than what collins would let you do right if you don't put anything else on this war and if you don't ask for permission to go on to or you know the very house or something you get call ins right you get whatever else or hardiness whatever else you could come up with that the fourth amendment would allow you to do you get the usual rule which is that the manner in which officers execute a warrant is generally left to the their discretion so long as it's reasonable so for instance an officer who's going to execute an arrest warrant can go into a house where that officer has a reasonable belief that the person is we all accept that as being true right that's a reasonable execution of a warrant for a car that's being moved around and the officer doesn't know where it is in this case the testified at the hearing that there were four potential locations where they thought the car might be where they thought coleman might live and so they didn't list all of those on the warrant that would probably have various particularly already issues only be here talking about the particularity of the war  but even if you don't have to get to good faith here they executed this warrant it just boils back down to i mean when you say reasonable i think we're talking about fourth amendment reasonable one right walk up the driveway right and it just boils down to whether  this driveway had the sort of the same curtilage character that the driveway columns have right sure it's obviously distinguishable from collins collins it is a driveway that is enclosed on three sides it's thirty house past the entrance to the house there and we're talking about there's a tarp over a motorcycle and they go and up and lift the tarp right here we're talking about this is this driveway is indistinguishable from the traveling galaxies the cars parked between the that's obviously hyperbole but there is a difference that this is this this driveway is within private property i mean you can analogize the private property generally in the condo to be like an open field but i mean if this were a driveway three quarters of a mile into a former's open field we're folks feel free to walk neighbors feel free to walk up there put stuff  always curtilage discussions are fact bound so it's going to get so hyped it's a yeah so i mean if you look at oliver oliver they walked paddle were no trespassing sign around a gate over a you know to get to back into the open residential neighborhood it's a kind of complex people drive in there all the time and there are tons of neighbors who are going to see that car and that place under the dining factors and again done is another case where i think the officers like went over a fence and looked into a bar and that was back from the road there are there is no there are no heightened there's no privacy at this particular driveway as compared to any other residential neighborhood and that's clear from the picture of the driveway is clear from the permission to enter this office building to place the bug so they had a title three warrant to place the the bug but they didn't specifically request permission to enter into the building so it's in some respects very similar to the question here and that they have a warrant they're supposed to place it and how do you reasonably affect that weren't affected by going to or they are going to be entered into at least a very clearly and close clearly reasonably i don't know if that would be sort of at least a rule statement if you didn't go that far how would you state it just reasonable and everything's up for grabs well i think it has to be case by case i think entering the on your side can i state the rule is they can do things as long as they don't go into the curtilage or well i think we would you would you would say and they have been that more narrowly i think that privilege would be reasonable in some is bad you want to even go into the curtilage but i'm saying suppose i won't give you that do you want the rule to be short of the curtilage is ok or any other way of distinguishing it i don't understand i don't know whether there would be i can imagine a constitutional issue with anything short of the curtilage i think the issue becomes the curtilage into a house even into a garage if the garage door is open and the officers see a car in a garage that seems you're pushing oh they're trying to push me a lot further than you are right this case doesn't require that so there's a part of enough to go that far i don't think that's part of even has to get to that issue really and that there's this is clearly not cartilage but i think we've explored that thoroughly do you want to speak briefly at least to the warrant for the house just to make clear that there is a nexus here between the house that was searched and the p c for the war in this case specifically there the court can read the word for itself it's in and it will of course but the last control by officers have eyes on the vehicle as it leaves mr coleman's residence and then that was that by being inside the condo complex it's not entirely clear from the record but and obviously are limited to the four corners the affidavit but they must have been inside the kind of complex the only use of g p s tracking information in the warrant for the premises is they have actual surveillance of the vehicle even so that's eyes on and then they use they do see the g p s movement of the car from the indication that they used their authority to get to the place that is that whatever they did watching the house with the girlfriend could have been done by your bread truck or a political campaign or something of that sort they were in that neighborhood the same way that anyone else would be in that neighborhood and of course that links that location to the to the drug buyer that the last control purchase of the three or four that are done in that in this case in addition obviously there's the records warrant portion of it which adds to the p c for the premises warrant meaning of the money laundering related evidence i do want to speak briefly to the first step back issue that came up in the twenty g letter that we received a couple days ago this is obviously very new and however this court specifically judges i believe rejected one of my colleagues artistic impressionistic arguments in the briefly just to talk about what whether exclusion is the proper remedy here since i don't think that was flushed out it was talked about the brief but not fleshed out that this is an interesting case in that as the courts sort of alluded to they did have a warrant and they didn't get any evidence that they were actually asked to get i mean that they were that they were they didn't have a war and the forty to seize this isn't a case where they wanted to curtilage with you know your honors there's a lot i hope i can address in five minutes but one of the things is going back to that box in the distinction i think that it's not that simple that we've got several circumstances right can think of that we have constitutional protections within protections that we require separate warrants or separate authorizations i don't remember all the details but quite a while ago i litigated not going to now it's violation obviously if you want to forgo knocking in announcing to execute a warrant you have to get permission to do that if you want to effect a search in a home you can use the arrest warrant to do it might my colleague from the u s attorney's office talks about making an arrest in a home but that does not grant the license to ransack that other words i mean they had a warrant  that was based on probable cause to think that the vehicle was being used in some sort of illicit activity but in order to intrude upon curtilage to put the tracker on the vehicle if i understand you're saying they would need to show probable cause that that home was also being used in the list of activity otherwise you can't intrude on the home for purposes of intruding on the curtilage that would be ok i guess i have trouble conceiving of a driveway that would not be courage under collins and again i know that the test is fluid but i think that most drivers are probably going to be curtilage now  currently kind of make a big deal about the brick wall and i think there's i mean was this just sort of embroidery for that in some ways and i think that's where justice alito helps kind of flush some of that out and it is hard i think to visualize the spoken word but my feeling of that wall is it's a small kind of garden almost a decorative wall trying to just delineating the car spot from the where the grass might grow kind of thing but the just to get in the weeds there the motorcycle there's the house on one side i mean that's a big thing right the house is on one side and then you've got these two walls that we can argue about helpful they are is that fair yes ok yes in and i think actually that brings beat up against the house seems a lot more like curtilage than things being down a driveway i do think that there is some idea that the closer the spaces to the house the more unequivocally it's private extension of that home but when i think of like going out to walk the dog in the morning in my pajamas or drinking my cup of coffee and getting the paper that space that i wouldn't have been would still be curtilage because i'm there we get it tripping neighbor girl scout selling cookies there is that implied license from hardiness in i think that by me i helps and that's one of the cases i cited in that room recent rule twenty eight letter from the illinois supreme court kind of interpret ing and crunching down hardiness crunching on some of this other recent fourth amendment case law and also finding no good faith to save their intrusion into in unlocked common space in an apartment the home i mean one could make an argument but one could make the argument i don't think i can concede that here i think well no i mean it would be an argument in your view yes yeah but a few things just in the short time i have left  one thing my colleague it also mentioned was that she felt there might be license to even go into our garage i think that zap in another of those cases i cited in the letter goes into the limits on this in absolutely that district court did not think there would be a license to go into a garage