out of this case involves the search of a locked private bedroom by the occupant of a house whose brother was on a fourth waiver in state court the brother was on probation for a nonviolent crime  my client was there he had actually had a prior record but was not on probation or parole his brother who also had a prior record was also not on probation or parole they were in the house during the search of this my client actually was outside the entire time and when the search of this house happened ultimately after about thirty minutes without my client's consent agents and this was a probation search was meant to be a conservative fourth waiver i think we're pretty familiar with the facts i want to start asking some questions and second why wasn't enough here for the officers to fear for their safety and to need to clear all the rooms given that the officers knew the franco brothers had prior violent convictions found guns and drug paraphernalia in the home during that sweep and had previously been allegedly misled that when they went there that a brother was not home when in fact he was home on a prior case well all of that information happened but the last time that happened was in two thousand and eleven this is now two thousand and fifteen the took since who had any kind of broader felony convictions or violent crimes including actually my client did not have any violent crime convictions his brother did though they were out front this was this is before they actually went into the into the locked bedroom the rest of the house in the area had been searched and it wasn't even important actually for this the one who was actually on probation or parole to even be in the house and in fact during that period of time he was supposed to and in fact later that day did surrender to sort of weekends but essentially what your honor i think is asking is this is essentially why doesn't this fall within maryland versus boy and  exception to the fourth amendment it is assumed that if it is without a warrant and in this case it would not be justified as a basis for the fourth waiver for the brother it has to fall within what would be the exception of maryland versus bu that exception isn't there and in fact the government cites one case it's called us versus pop where the where this court said there is no particular time limit but if you actually look at the facts of that case there was a search of a room that took place for approximately one minute and in that search they overturned a sofa you know room where there were other people whom they believe were violent did you say thirty hours was it thirteen minutes well the initially they said they started that they were outside it was thirteen minutes when he didn't get consent but they said that the actual rest of the house was searched by thirty minutes and that's when they wanted to go in and went into the room so we're now dealing with and well there's manning marable purses boy before you go further into that case you're not disputing that they had a right to be there right well actually are you saying no well actually under a lot of they don't under federal law actually under the waiver of the in the probation there they are allowed to go in and search somebody who's on supervision you're not denying that i'm not denying that but the reasonableness of the search well if this were in state court this would be different when we're not there when we're not actually in federal court what i am asked i asked the home where there were cohabitants and where one of them had waived a proper warrant to come in and check it was ok for them to be there yes well actually i think under federal permission to go there and what do they do when you've got somebody on supervision who is sharing a place with people who have a violent record how did the police react to that situation what do you think they should have done if they suspected that in that lock the club you would have a key to their room or have access to that room or have hidden things in that room which of the officers have done well didn't that answer ok there are two things they could have seen whether or not it actually surrendered himself by that point because he was supposed to do so so that would explain why isn't there the other basis is that they could've staked it out or they could have tried to consider that it would be some basis and make an application for it i don't think there would have been a basis to say to search your room because we think somebody might be there so there could have been some other way to do it but also for their concern for their safety if they're trying to enter and this is order safety trying to enter a lot room or somebody is waiting it's pretty obvious they going to try and get in this isn't a brief and cursory sweep i mean i'm the reason i'm so your position that there should be no type of sweep or search that is permissible when officers come in and are conducting a probation search like this one i don't think it falls within maryland versus buoy correct i don't think that that exception to the fourth amendment which says it has to be part of a search engine to arrest for a violent crime and has to be brief and cursory none of which was phil none of which filled any of those check boxes would apply in other words so i mean to answer your question i think under state law it probably would have been considered reasonable all right so let's and they would have had a right to be there i'm really not arguing at this point but they were this was an unreasonable thing i'm not really arguing are really caring about at this point the terms of of cloud ios such condition what i am saying is though that this went beyond what was the permissible scope of that search and the exception that was given for that which is a protective sleep which is a fourth amendment exception was not filled i mean there have to be carefully delineated fourth amendment exceptions and if it's not be for chris really it's not for a biodefense and i mean  hooey and say what can be the scope of a protective suite well as far as i can tell this court has said that under hoyo switch preexistent bruey that they essentially overlap but i don't think i mean that when i tried to look and see where we exactly the nations of this court talking about the scope of bluey it was hard for me to find i was once where someone said yes sometimes it applies and sometimes it doesn't but i think at least as far as i could see from the ninth circuit that basically they were following the contours of brewer because that is the exception that set up by the by the supreme court kind do i just want to go to other issues first of all good faith government and argue it trial it's a way i don't think it applies the issue here is not whether or not they were reasonably relying on the fourth webber condition the question is whether or not they then went beyond that and use the exception of brewer which is not some discovered by good faith the other is inevitable discovery and the basis and again that was not argued before the district court that has now waived i think before this court but the issue was what they found were guns in another area that was not related to pedro franco with his parents and there were i think methamphetamine pipe that was found in a common area of the garage but if you want to be application which actually is for what's in this case it was an application say why do we need to go and search this safe which is found in a closet and someone's private bedroom and that was the basis on which that particular i don't know if i that it never became an issue but as far as i can i mean i have to say from looking at the state of the search they were happy about the search at all but i don't think i don't think they gave consent for thank may please the court benjamin holly for the united states beginning with the protective sweep and the buoy factors the it seems everyone agrees that this was limited in the sense of they were only looking where someone could hide where there could be a person one of the we factors so then we look at the ok let's go ahead that's correct and it's not in the usual for a probation inspection where the probation person has waived to have was it ten to twelve people come and execute a search on somebody who had a nonviolent record and it's sort of smells at the outset and the issue here is because those officers or at least officers had been to this house multiple times before sometimes for cloudy or sometimes for the other brothers so they had a history of this house and knew that it was  t why they were looking for claudio so two responses that one factual and one legal factually claudio was unaccounted for at the time of the search was which was about four thirty in the afternoon he turned himself into the jail three hours later at seven thirty so it wasn't kno where he was what time was he supposed to turn himself in that's not clear from the record my inference from the record is that this is one of those you do a forty eight hour week and some so if you turn yourself in it friday at seven you get out sunday seven if you turn yourself in friday eight you know sunday it was surely a particular he was living and the people he was living with as opposed to him himself and his record so the record doesn't go into detail about specifically why they selected that many people but you know but again it's because they've had a history with several of these to really go search for the other two violent brothers who we perceive to be violent offenders and we can do whatever we want as long as we have we have the non violent probation or the i one says we can do whatever we want is so in night we can use that to not are you arguing that at that can be used as a pretext the search of claudio to search an entire house where ever he may be living i'm i'm going to lock doors too bad and  scope of a probationary search is confined to where claudio would be where he yes or where he got his belongings so not necessarily that ok see that what in this case would have been his room and arguably maybe the common areas of the house definitely her common areas and his his room so argument to kind of separated out they were legally there in the house because of the fourth waiver to get into pedro franco's room was based on the before they get into pedro frankel's room they've already observed methamphetamine pipe they'd observed two guns under the parents bed and then they cannot exactly sure of the timing of this but they did find more guns in the back yard the area with the trees and the out out buildings again where they t definitely easy for people to hide so part of our argument there was they couldn't and obviously will eventually did get a search warrant which is going to then take longer to serve they want to make sure that that one room doesn't hold any surprises even if they're not ultimately going to be searching that room because of cloudy older need to make sure there's no one there and again that's given this history with this family and with being lied to specifically about whether a brother was there that the family before said no he was there present a real risk to these officers and there was no i forgot it seems like the area was already cleared and if it see a locked room they know it's not claudio's room why not go get a warrant at that point and hold guns to the door if they felt that compelled to do well again search for right the methamphetamine pipe the guns they've completed the sweep aspect of it but four pages room so they're still going to be there for some time processing that evidence they've otherwise legally seen i want you yes or no counsel do you have to the question different cases argument would be that there's no reason to limit it to a search incident to arrest and that's what the majority of courts have held because the analysis the risk is the same whether someone's arrested or not in fact it's probably even greater risk if there hasn't been an arrest on the on the it he never described it as he said it was short but segmented and flowing moving from area to area and surrounding the property if you look at the record the reporter transferred from forty four to forty five fifty five to fifty six