appellant joseph w kaminski jr in this case this appeal is about to broad issues and six law enforcement officers the broad issues are the fourth amendment exception of the naacp and  consent and the scope of the curtilage fourth amendment protection in this particular case the circumstance a rose in december of two thousand and eleven december just to be clear so the first and second amendment thousand and eighteen so these instant these circumstances rose on december eleventh two thousand and sixteen one kawin tree police officer and two state police officers arrived at mr kaminski property in tree it's a matter of agreement in this case that there were no exigent circumstances no one's claimed exigent circumstances and there were not we claimed that the officers the state police officers on the route from middletown connecticut get to comm i'm sorry in this case though didn't mr a kaminski invite everybody in well when they arrived there they indicated to him that he was a felon which turned out not to be true and he call where they said that before they said that there was an officer who he recognized that right lieutenant selenski from the coventry police department and didn't miss a kaminski waved him in after referred to as walter which doesn't sound like he's that high walter which doesn't sound like he's feeling terribly intimidated and he waves him in tell me what's wrong with the entry all what we what we claim want to appeal because the the state police follow their motion for summary later or later summary judgment later on we claim that the entry by detective mattson and by by detective in bimbo from the state police was not consensual wait there's three people standing there says may i come in or may we c kaminski testified that he believed that walter was asking to come in and he didn't even know who the other to play well he said he believed that was there anything that would indicate to the officers that it was only the lieutenant who lieutenant selenski and some other officers they planned it that way the lieutenant went again when at the door way lieutenants alinsky says may we come in and your client gestures to come in what would you suggest what would indicate in that interaction to a reasonable officer the local officers standing with zelinsky that they were not invited in well attend because  knew that by staging it so he would be the first one there that joe kaminski would ask a man because he knew that's great that's good police work tell me what would say to one of those other officers who are also their local officers from the officer that he was saying lieutenants on ski you can come in i don't know those other guys they have to stay outside what would what would tell them that that's what was intended well certainly the police officers own actions would tell them that that's person be our spokes person that seems like a perfectly reasonable thing i'm still looking for what in the interaction would indicate that the invitation was limited because he knew lieutenant selenski and waved him and he never said the other officers can come in as well and once they got into the house then they asked him if he could search and he called his attorney and he and he told his attorney they say i'm a felon we now know he's not they want to take my guns what do you say the attorney said let them do it because well all right so again now we have a consent on the advice of an attorney inside to a surgeon by the way terms of a search did any of these officers go rummaging around in things is that the testimony or isn't the testimony of mr kaminski that he went and said there's a gun here's a gun i have some in here and there's some in that closet and then they took them well in connecticut criminal possession of a firearm because you're a felon carries five years for each count he had fifty nine firearms in his house you know there are not me do you have any case that says that when a person acting on the advice of his attorney says you can look here you can take this item that is i'm consented i don't know of any case where the police come to your house claim you're a felon and want to take your guns under direct you wessex you're not a felony of the directs that is here because it's five years for each count he has fifty nine guns he's facing hundreds of years in jail and so he wants to cooperate and he's not a felon they came to the what is what is the problem with their being mistaken about his being a felon and what i was i mean back when i was there's no requirement that they go get a warrant if they get consent so the fact that they could have gotten a warrant when they could have applied for a warrant is totally irrelevant the whole purpose of the fourth amendment warrant requirement is to prevent things like this to have a neutral magistrate review it who would say to you since nine hundred sixty four has there been any weren't requirement and unless under the totality of the circumstances the consent could be found to be coerced it is a valid substitute for a warrant and there is no requirement that consent not be asked for when you could get a warrant there's no case that's the well we certainly assert in this case that it was under duress because he's threatened with hundreds of years in jail i cite to anyone else or say to him you're going to jail buddy if you don't let us search ok so he's an f f can you say yes or no to that did any officer say that to him no but he's an f f l he's owned firearms for over fifty years he it to be n f l you have to know the law he very well he had a pistol permit he had a right to sell through commentry he knew what it meant when officers come to your door and say you're a felon and when you have fifty nine guns in your house he knew what that meant and his attorney knew what that meant to and his attorney was under the belief that his client was a felon after all when the state police tell you you're a felon most people believe that because they figure they have the information is there anything wrong is there any evidence any indication whatsoever that these officers were lying intentionally that they knew that he was not a phone there is no evidence that they knew that except if you go by the detective matheson's history with the department she had i think she was the longest serving member of the firearms she'd been with the state police for a long time she was the go to person in the firearms unit and they did not do their due diligence the whole point of the coroner our government is and a most negligence right it goes beyond negligence and knock getting a warrant in this case in footnote ten which i cite to a tenth circuit case the opinion by justice course achieved wrote that the whole concept of the search warrant requirement is being is being outmoded or not used because of the knocking consent the knock at the exception has swallowed the roll and if you look at this case you can see why the exception can't swallow the rule because it was so obvious that this man was in a felon and they came to his house and i am i am i am missing something but you don't seem to have addressed the qualified immunity issue when you're here and i have not because i don't think they should have qualified immunity the fourth and you haven't addressed it now that the fourth amendment is clearly established law that you need a warrant to go into somebody's house it's clearly established it doesn't provide for a mistake because it provides for consent exemption also every officer knows that this officer may twenty ninth two thousand eight hundred one thirty eight supreme court at sixteen sixty three the johnson that's a decision that's why i asked you to address qualified immunity that post dates this episode but that was our decision in united states against alexander so is the supreme court's decision in florida against your deans all of which clarify the concept of colonel edge so to the extent that one could say that and i think it's pretty plausible argument that the officers were the meaning back officers were on these curtilage most of the cases that one would cite to establish that or ones that post dated this activity some of them even post date the district court's decision and a federal judge thought that they were not on his colonel or some having a little trouble why you could say that a reasonable police officer would have known that he or she was on the  back at the time of this episode and that's why i like you to address yes the district court used the fourth on factors and in his decision went through those factors piece by piece we used those factors as well we want through the piece by piece and we came to a different conclusion we also pointed out that that means that reasonable persons skilled lawyers could differ well they always differs in that some manifestation of the fact that reasonable minds who are trained in the law differ on whether it's colonel edge but in any case there's a winner and a loser so obviously yes we're going to have this agreement but the issue we're dealing with in terms of qualified immunity is whether reasonable officers could clarified that since that time but how you expect officers to have reached the absolutely correct determination that ultimately the supreme court reach later on because the fourth factor that the district court judge used the fourth don factor that he used the steps taken by the resident to protect the area from observation what factor that he used is that my client a united states marine corps veteran from the korean war flew a flag in his backyard and because of that that was an invitation to outsiders that they could come on i am i argue it's the exact opposite when you put a flag in your backyard stands for everything that the united states of america is it stands for the fourth amendment i mean just just like it is an analogy to maritime law when a ship fly hops flag it's not in the invitation to come on the ship it's an imitation to say i support the united states of america i support the constitution i support the fourth amendment and that doesn't mean you can just come on my property and violate my rights and the problem is and you have to say that it is a problem isn't it isn't it that the property abuts of publicly that there is that there is no fencing or enclosure at the back of the property but there's the stone wall there is there is a stone wall which is more of the most people have want to like i mean i just think of the ramifications of an analysis like debating policy under current the supreme court's current iteration of what is and is not curtilage or how we figure that out we're looking back retrospectively at what officers knew or should have known about the law at the time and everything you're telling me is it wasn't clear enough i didn't mean to argue that and i'm not saying that what i'm saying is that those officers knew very well what they were doing when can't threaten people with hundreds of years in jail and then when they let you in your house say oh he consented to coming in here it's just not fair one might think that if you had evidence of a crime in your house you might prefer not to invite the officers in but to stand on the war and requirement well the difficulty with that is you know he called his attorney as an attorney you're you know you're there there are they're saying you're a criminal they're saying you have gone as in your house don't let him in  him get a warrant i mean i think the involvement of the attorney shows even more that it was under duress than him just letting him in which was an interesting thing thank you argument and reading the briefs i'm not going to address that issue unless the court has specific questions about it there are four ways that the coventry police department defendants would succeed in defending this appeal and basically their arguments are cane pain that the yard is not curtilage and that is an evolving area of the law of course with the recent cases that they would be entitled to qualified immunity in their determination that the yard was not curtilage in two thousand and eleven because of the state of the law at the time and there's also arguments that because the officers were not conducting any search or any investigation they were merely taking a position of cover in a situation where they were told that there were machine guns in  house and multiple firearms that they were taking a position to cover not to investigate this issue but merely to protect the officers that were going to go and knock on the door that it doesn't implicate the fourth amendment at most it might be a state tort trespass and finally that they would be entitled to qualified immunity for making that determination that no search warrant would be required to take those positions of cover and as i said in my brief those are fo that because the area behind the kaminsky property is open to the public that it does not constitute cartilage that's correct your honor and i understand that the more recent cases come back from that position but i don't believe that it's been abandoned there are i don't know if your honour's have reviewed it but there's a videotape that's on the record that was actually taken in the kaminsky yard and that videotape which was taken from a normal stance that somebody would have in the yard shows the lake if you can see out on to the lake all those positions in the lake can see into his yard was the fact that you can see into a place doesn't mean that officers are entitled to go in and search it didn't say they didn't search here can i just ask is the record clear as to which side of the stone wall the room it is not your own or obviously we have the ocean in the light most favorable to the plaintiff what is the evidence for which side of the stone wall the room it would be near the stone wall because that's what mr kaminski testified to there's issues about where the officers were but the ones that he says he saw were near the so all in the stone wall i believe if you look at the photographs it's not actually a stone wall it's more of a retaining wall where the house side of the wall is fairly level to the top it's not like a big wall that someone could hide behind or you as for privacy you know the buffer between the water  example if you walk up on somebodies porch you've entered the curtilage but there is an implied privilege to the public to come and knock on your door or ring your doorbell and one of the things that's interesting to me about this situation is that the front door is apparently sort of net nailed shut i think that's a little over dramatic way of putting it but that's the basic idea and there's a path that leads around to the back door which is the only place to seek entry to the house and i should think that all of the officers were entitled to go there and it strikes me as a little peculiar that if some of the officers back  perhaps there was not to present too intimidating presence when consent is being sought that they have they wouldn't have been violation of anything if they were standing on the porch seeking entrance but the but it makes sense that the officers are not going to want to stand in line directly at the door of someone that might open the door they were absent for their own safety and the only way that those officers can provide safety for the one in ten thousand chance admittedly that it could be a danger is to take basically hiding behind a tree or being near a stone wall in this case mr kaminski i believe you testified so they could jump behind the wall because of a dangerous felon like me something like  that if we were to tell officers that they can't do this type of thing imagine the scenario where three o'clock in the morning officers go to a house there's loud music that's serving the neighbors the person who lives at the house is known to have firearms he's fought with the police prior the officers have left the option of asking for a warrant if they want to go take a position to cover in this person's yard so that the officer knocking on the door to deal with the loud  noise to protect that officer just in case this person does come out with a gun so are we going to tell police officers they have to do that they have to stop at three am or not investigate the loud music what alternatives are we going to give the officers when we have a even if it is curtilage even if it was no question that it was curtilage the de minimus interference in the privacy right by taking a position to cover behind a tree how does that implicate a reasonable expectation of privacy of the first motion for summary judgment and as the second rule fifty six statement in this in this sense if you look at the first motion for summary judgment it says that dexter and i'm quoting assisted in physically carrying the firearms that the plaintive was turning over from his home and loading them into police vehicles the second rule fifty six statement says along with an a inside and i quote left his position around the kaminsky home that's correct your honor and he came back and he came back he went back to his cruiser and they called him at a later time after some time help that they had gathered the weapons and then he assist came back morning hours may please the court i'm assistant attorney general james bell forty and i represent the state of pele's in this case i just want to address the talk issue because that's what really impacts the detectives mattson and who are the two state little more investigation before heading off going off to coventry police department would some of the problems here of has just been avoided that if there had been more research done about the one thousand sixty four connecticut statute honestly or i don't know if that's true because it took a while for all the lawyers and the people involved in this to figure cases like us be santa and which shows that reliance on a database like n c i c or in that case it was a statewide database in the state of new york is not a basis for a fourth amendment violation so i don't and i think it's important here also that even plaintiffs counsel at the time attorney weisman was apparently of the impression that that mr kaminski was a felon as well so so whether or not it could have been avoided i mean i suppose it's possible but i don't think that's required in the fourth amendment i don't think there's no forty do i guess i take it you can tell us today that it was only a misdemeanor that was the that's the ultimate resolution of kaminski was pardoned for that offense is that right it's true your honor and we know when that happened and how that impacts us because i was sort of under the impression which could be totally mistaken because i don't know that the record goes into this and all  that at some point they just decided well let's just pardon the guy it's not really a problem and i don't know when if ever the people involved in the case came to the conclusion that he was not in fact a felon yes sure and i returned to him after the fact i mean with the exception of three of the assault weapons that's a state issue that's being litigated in the state courts as we speak but i think what the as to whether he's allowed as to whether he's allowed to possess those three weapons but i think that's kind of far afield from the issue i think the main issue here is that appellant's council seems to be asking this court to overturn the knock and talk rule i just don't think that's warranted in this case particularly given that the supreme court has recognized the existence that rule for a long time police officers could have gone to in this case there's really only one door i believe your honor said before that you know saying it was nailed shut would be too dramatic i don't think it's too dramatic your honor because that's what the plaintiffs say in their statement of uncontested facts enjoin appendix five  yes your honor but i think it's fair to to rely on the plaintiff's contention that it's nailed shut so there's one door in this house and that's and they drive on the driveway they knock up to the door they're not going to door they ask if they can come in and then mr kaminski says and this is from his statement of uncontested facts join appendix five fifteen so they i left the door open and i waved them in and that was and is that before they told them the reason for their coming yes yes your honor they don't mention anything about what's going on the exchange at attorney and then his attorney tells him he's going to cooperate with you and then he does cooperate with them by going through the house and collecting his weapons and handing them to the state police but it had been a different possibly a different situation if before he waived them then they had said you're a convicted felon and we need to talk to you your honor i it might impact because the totality the circumstances test but  i don't think saying you're a convicted felon we need to talk to you is tantamount to we're going to arrest you we're going to get a warrant if you don't if you don't let us in the house so i think that's a much different thing and place this point that this that circumstance you know arguably in i think you're right you are the argument to be made but i think given the totality of circumstances in this case and that that would be a key fact if the if that were but in this case we don't even have a hint and i'm not i'm not sure i've ever seen a case in which taking only the plaintiff's testimony the police behavior was more civil was than what was here i mean i've seen plenty of cases where the police say their behavior was at least the civilized but one where you don't have to look at what the  warrant come to arrest him but they didn't do that they knocked on the door and tried to settle the issue because he is an older man and starting on that issue let me just ask one thing that i find interesting at the very least how did the issue or the suggestion that there were machine guns which obviously as is different from an assault weapon as you get into the case does does the record indicate that somewhere so that that has to do with  secretary of treasury but anyway that's true but i thought how did the machine guns come up i believe your honor it was during the initial investigation when they determined that he had been registering certain weapons for a year so they knew that he was in possession of machine guns they were not necessarily aware that he was in possession of the assault weapons which as your honor pointed out is a different animal altogether under connecticut law but i mean they were aware that he had machine guns because he had registered them previously  thing that issues that the final issue about the machine guns the law in connecticut is that if you have machine guns you send an annual registration into the state police which m and the state police knew he had machine guns they sent him out a notice every year and say do you still have these machine guns and in fact he still receives those notices even though he has another machine guns in years and then he just sends back and says yes i have the machine guns the issue with the assault weapons was there's an issue in connecticut ruben bradford the commissioner of state police said anything manufactured parts of temper thirteen thousand nine hundred ninety four is not an assault weapon and then all of a sudden when the new commissioner came in she said well that only applies to certain assault weapons manufacture prior to september thirteenth  kaminski these are contraband so there are three guns that are at issue whether ruben bradford's official pronouncement was sufficient for residents in connecticut to rely on and not and we're waiting for an appellate court decision in that case but the three guns were not returned to him because he's not allowed to have them except the state ruled they were contraband and that's why they weren't allowed to get back to him with regard to the issue of the officer stationed outside on the curtilage because they were providing some sort of cover i do pose detective mat though i said when you went in the house did you touch mr kaminski to see if he had weapons on him oh now did you know if he had gone fooling around anywhere oh no did you take any protective measures whatsoever when you went in that house oh no while that they were standing there and for what purpose they were standing there what i meant what purpose were they doing there do they search anything they were they look under the overturned canoes did they look in a shed they looked through bush used to find things they were part of the investigative contingent that was there so the question is what did they do other than stand on what is arguably kernel each day they stood on the curtilage part of an investigation to seize the firearms from mr kamensky and i just want to say that we're not saying that the police should have got in arrest warrant before they got there i know that was brought up in one of the arguments it's a search warrant that they should have up i'm sorry could you i ask you are you aware of the case that that says because the fourth amendment talks about searches and seizures and i'm not sure that these people were searching anything and they didn't seize anything on the kernel of the only seizures took place in the house in the first instance by the officers who went inside the house so i'm trying to understand what is the fourth amendment violation other trespass on property and that might be a violation but if there is a be curious as to what can you slow on the stablish is that we i do not know but we are going by their presence at the property been ok if they were standing at the doorstep our argument is that there is a license yes for some people to come to your doorstep for example the mailman has a license to come to your doorstep but does he have a license to come to your doorstep knock on the door and say can i come in and i have a big package and then when he comes in he's there for completely different purpose you know he's there to say i want to you know i i want to take this opportunity to look around your house or i want to do this no he was invited in first pacific purpose if the owner had known the real purpose and why they were there he would never invited them into his house and it's the same way in this case when mr kaminski waive lieutenant selensk having no expectation that anybody suspected he was a felon he'd been a federal firearms licensee for years had a pistol permit issued by the state police a permit to sell firearms why wouldn't he have invited lieutenant selenski and of course he would have but he wouldn't have invited them in if he knew that they were coming in because there was an allegation that he was a felon which he knew from the beginning that he was not he said from the beginning was not a felon he would have never invited them in and nobody would ever in fight for example mailman in or anybody else and if they didn't know their real purpose yes thank you thank you thank you thank you all for your arguments the court will of reserve decision