intending to first respond to the government's argument that hans post please sentencing agreement waives his appeal bars his appeal and then second focus on the the primary issue on the merits which said search is invalid because the officers intruded onto his front porch to his front door to look for evidence before the warrant was obtained with respect to the waiver of appeal our position is that  the waiver in the in the sentencing agreement does not fire this appeal for three reasons first that the waiver is ambiguous and in the unique circumstances of this case does not cover the motion to suppress it said that it would cover the conviction and to a lay person what was left to appeal at that point the sentence and the and the guilty plea on the convict what was i mean if i didn't  it's hard to imagine that it didn't cover the the order of the suppression motion but there was really nothing and i think the for an attorney i think that would be a reasonable assumption but for a layperson whose english is not his first language who were the record shows his difficulties communicating with his attorney he asked for another attorney i think that under the circumstances where the i thought it was a simple deal first deal not so great and he reserves the right to appeal denial of a motion to suppress second deals to reflect he gets a safety valve and he gives up the right to any appeal as you say quite clear between the attorneys but i don't really understand why it wasn't clear to  him is the idea i think the idea you're suggesting is the judge has to specifically address him again right yeah well that's how do we tell whether the judge did i mean when the judge says does the defense evidence thing where they paid how do we know who the judge is looking at well i mean the judge could have just easily asked mr town directly do you understand the agreement did you sign the agreement what do we have hearing is that your signature on the agreement do you want all the typical questions to you know about the signature that's not contested now i don't think in the brief he's not saying it's not my signature is you know there's nothing that says but what he is saying says he's not sure what to do about the waiver of appellate rights and how enforceable it is do you think i should advise him of his right the prosecutor says he thinks it's in forcible because he got the safety valve the judge says he did yes and the judge says all right you think i need to advise him of his right to appeal mr brace and the defense lawyer says only as to the sentence perhaps but not anything else that would seem to indicate a defense understanding that he's now waived his right to appeal denial of a motion to suppress defiance clear as a bell between the lawyers between their lawyers and they asked they asked his defense attorney but they didn't ask ok now let me ask you the next question let's that the judge should have said mr red pen and here's the deal you're giving up your right to appeal denial of a motion to suppress so the search is treated as though it was ok whether it was or not in exchange the government's giving you the safety valves deal so your sentences going to be such and such and do you understand that that's the deal you've made and you want to make that deal and that i'm trying to think in terms of plain error terms instead of the defense lawyer saying only if the sentence perhaps but not anything else he should have said well judge the audit advised him again of his waiver but suppose he didn't where's the denial of substantial rights in the indication that hand would have done anything else well the record has to show that it was a knowing and voluntary waiver and the argument is that it's ok i guess have to show a knowing and voluntary waiver the judge will ask some questions and then make a finding either explicit or implicit that he knowingly and understood the agreement but here there is absolutely no questions of the defendant at all all the officers violated mr tan's fourth amendment rights by going on his porch or front approaching his front door to search for evidence of a of a crime and that's essentially the key part of the evidence in the search warrant appropriate and the clear that you look at the officers conduct objectively to determine whether or not their purpose was first search and here it's clear because the affidavit says they were there the circular i was there case law at the time that allowed them what they did now and pages nine and ten in my reply brief davis garcia roberts hirsch they all talk about it's appropriate for officers to go in to talk to approach a door or to talk to people but it's not appropriate to go there as a search or to arrest someone for other purposes i think i think that hardiness is not any is not inconsistent with other ninth circuit law  like to reserve my remaining time unless the court has questions all right morning honors christiane highsmith the united states why the hell didn't why didn't the government when the judge said do i need to talk to him about waiver again why didn't the prosecutor say yes just to make sure i don't know your honor i was not there during the sentencing but i believe the key is that this what this waiver was entered into knowingly in voluntarily a close look at all of the factors and they can we know that we know the lawyer was happy about it he in a great deal for his client we also know the client may not have real good judgment about a lot of things like growing marijuana and maybe he would have done the stupid thing the record i think is very clear that he did understand it first of all there was only one purpose to that waiver the only one where you say the record is very clear give me the words absolutely so first of all the agreement itself mr tan signed the agreement certifying that he had read it completely that he understood it and that he had voluntarily agreed to it ok number one he signed a written yes your honor number two his attorney signed it saying that he had gone through it word by word with his to with his client third your honor the district court at the sentencing hearing specifically addressed both parties and said you know and i paraphrase lawyers yes said to both lawyers but had an extensive discussion with both lawyers he said to both lawyers what should i do with this appellate waiver when i was a district judge when i asked that kind of question what i was hoping for was the lawyers would protect me from error and sometimes the prosecutor protected me from error that and the prosecutor didn't i don't think that there was error here because i think when we look at the those statements to the both of the lawyers they specifically said we've waived our rights to appeal the conviction it seems like you got a pretty good benefit on the other hand maybe he didn't fully understand he had this motion to suppress that has some arguable merit here and so maybe he could still do that with the conviction even though he had entered into something with respect to the sentencing again i just returned if i could the only purpose of that waiver agreement was to trade  his appellate rights for a specific sentence recommendation that was a good deal but then going back to to all of those factors you've got that one agreement with only one purpose you have the specific statement from the district judge repeatedly  here's where i'm trying to think how how we could write if we felt we had to publish ruhleben says you have to ask the defendant specifically and not just as lawyer and when the judge did the rule eleven colloquy earlier in the case as i recall the colloquy says you retain the right to appeal the denial motion to suppress so here we have a subsequent deal which is better for the defendant and part of that i idea is he's selling his right to appeal the denial of the motion to suppress in exchange for a much better sentence but the judge never asks him about it so why does the judge's colloquy at the earlier time save this subsequent time where it's a different deal i think it's the opposite i don't think it's the earlier quality saves this deal i think it's this deal saves the earlier caller because there was confusion after that first change of the entry of the open the open plea what this very simple agreement did was clarify that and said he gives up his right to appeal his motion to suppress which he went through three times he gives up his right to an interpreter he specifically says i don't need an interpreter i don't want one he goes through five hearings that an interpreter this deal clarif that and then the other you know the other circuits that have addressed the issue of whether rule of it applies to a this kind of a scenario where there is a waiver of appellate rights agreement they have said that the court is not required to do what i was getting at was in the first coll judge said so mr tan if the court accept your plea i would allow you to preserve your right to appeal from the denial of a motion to suppress so what i was looking for was for the judge to say in the second colloquy the one at sentencing remember the first time i told you you could preserve your right to appeal from a denial of the motion to suppress well under this new deal you can understand that that would have been much easier well you know let's assume applies second for the hardeen example the record is clear there are three different instances where at the various suppression motions the defense lawyer asks the law enforcement witnesses what happened with detective weta the testimony is always he approached the front door he went up to the front door he walked to the front door toward the front door three times during the suppression hearings where the burden is on the defense and where they need to establish a basis for suppression the record is very clear that he approached the front door consistent with the property law license in fact there is no violation of charge and because he the record of objective we shows that he intended to go up to the front door of course not for the purposes of his or they didn't want to talk to him they wanted to see if they could find any clues we don't know that your honor the we look at the record as it is the record as it is has those three statements now he hears those fans as he's walking to the front door it doesn't it would not make sense for him to then go and knock on the door after he knows there's a marijuana grow there all look at this affidavit by brian swenson were to say what you needed door for it does not say does not say what there's no there is no statement where he says what he went up to the front door your honor we can only we can only look at the factors we can only look at the testimony and infer the purpose of why he went to the front door the first sentence what i infer from all this stuff in the previous paragraphs about how the guy is probably a dope dealer and there's probably a stash in there is that he's going up to noise yes your honor and my contention is that under the case law at that time in two thousand and ten and also under our den because the circumstances objective we show that he entered the curtilage for the intent of approaching the front jordan's garcia roberts both of those cases there it's never it can't be it doesn't make sense that the rule is he has to complete the knock i mean there have been cases where an officer under the property law license you know a newspaper delivery person doesn't go up and knock on your door they drop the newspaper off there's been case law on the ninth circuit's you've read heart hardiness and what it says is that the general license to the public to approach the front door for all sorts of things doesn't encompass the right to approach the front door would be within the cartilage for investigatory purposes but absolutely wrong first of all esque doesn't apply here because this happened five three years beforehand so under then existing precedent we've got garcia we've got roberts do we have some good authority that says it doesn't apply before that it's yeah i think thomas i think the thomas case says that you're honest your honor and in that case there is the drug detection dog which went to the to the traffic stop the highway traffic stop and the court specific this court specifically said in thomas from tw essentially that neither party nessun or jones were retroactive and so that's why i think it's the officers at that point there then their reliance on that existing precedent controls in that scenario through i just want to point out that in the search warrant affidavit on paragraph thirty three two sentences before it states and this is an excerpt of record paid seventeen that the detective approached the front door the first sentence of their paragraph says that they conducted surveillance to look for signs commonly associated with marijuana growing operations if they were there they do a knock and talk they could have said that they would have said that we're here to knock and  time and i just want to with respect to the ninth circuit this court's case thomas i think that is inapplicable in terms of it was a vehicle search it wasn't a search into the