i will obviously address anything the court desires my intent is to discuss the first two issues in our brief first of the trial court setting aside a trial stipulation and more importantly within that stipulation setting aside the whole course of proceeding was and then secondly i would discuss the fourth amendment issue which was the substantive issue at stake why doesn't th trial court have that authority set aside stipulation because the timing of it after trial was the court actually made findings  did not have an issue of fact you know if you case shouldn't have gone to trial in the first place now is a district judge i know there are a couple occasions when i led a case that i filed because i thought if the defense  there's no appeal involved but sometimes the jury doesn't do what you think they're going to be in it and you get a verdict for the plaintiff and then you have to bite the bullet and say this is really an issue of law and i am going to grant the verdict the judgment where the defendant never should've gone to trial in the first place and isn't that what we're dealing with your honor you're correct that is what we're dealing with except and present evidence and present direct and cross examination on whether it was or was not reasonable for agent rizieq e to believe that the parole of skylander lived in that residence so you think we need to r record before and it seems to indicate pretty strongly that this was his residence no you are have a record based on both parties agreeing the only questions we will ask concern consent or lack that he was seen at this address in fact police surveillance went to arrest the parole officer went to arrest him because he was at that address right the only evidence that that this was actually his residence as opposed to merely a place where he was was one piece of i think one sentence in rizieq he's testimony that i got something from my verdict motion i don't believe it's the test and this really does go down to the issue to the fourth amendment issue all of those all of the cases saying that our cases with arrest warrants here there was no believed to be the parole violators residence and take him into custody well that's what the trial judge held but no pre warning that's wrong as a matter of law yes i am yes i am there's no court has held that and i think that that an arrest warrant serves or arrest or search warrant serves a very important purpose and would have served it in this case to say to the unwilling  homeowner or less c you may not want me here but i have a right to be here this is law fall let me in instead this was at the testimony showed a crazy man banging and saying let me in period he's actually lucky that the person inside didn't have a gun and defend herself with it because that would have been a defense in a homicide case that was just a crazy man demanding entry without any in disha that he was entitled to be there fortunately that's not the case we have here but that is one of the very purposes of and arrest or search warrant to say i mean title to be here and that wasn't the case so that every case every case where entry was made even mistakenly based on being the wrong residence there was a warrant and whenever there wasn't a warrant the courts have held that it was an illegal entry so i yes i think the trial court was wrong on that fourth amendment analysis  mayor with a case from this court called united states united states versus james hill i'm not i apologize i was not in the briefs i'm not familiar with the case well you're right it wasn't in the brief but it seems to hold that well first of all i should inquire whether was there any in  home residents searched there's the record here is far as i was able to determine doesn't tell us whether there was any such consent well if there was present you're right it's not in the record it was not of this residence because this residence was never the registered residence of this parolee claudie robinson he was and of scotland or in other words he had you know indicating i'm not telling you where i live and so the fact that he went to summer residence all of a person we know is a call deceptive and then fills out a piece of paperwork append dot saying this will be my a probate parole officer cannot enter a residence with reason to believe that violation has occurred and that this is the residence and he then you're right i think maybe you wan want to give you the comment opportunity to comment with and several days on hill versus the united states versus hill because it seems to me to hold that  judge ross suggested that a parole officer doesn't need a warrant to do this even though there is no consent or regulation that giving him express authority to do that states versus hill is nine sixty seven bed second nine o two authored by that distinguished judge judge the record i would be glad to comment on ok i think unrelated now to that fourth amendment issue one of the things we raised well let me answer this in the defendant's answer in the district court he never raised this issue never said it was reasonable if we look at is it it's in the appendix is answer never raise a raise consent as an affirmative defense never raised i was entitled to be there because because i was of a mistaken belief that this was quote a robinson's residence in his summary judgment motion which is not part of the record i do have copies here and of his brief never raised it then at trial and therefore there was no discovery on it because it wasn't raised factually or legally in the answer then at trial oh agreed that this is the only issue is consent as raised in his answer and then we tried the case only on the consent issue and then the jury instructions submitted by defendant raised consent did not raise this other issue and the special verdict form agreed to by defendant's counsel concerned only consent so this issue if we're wrong on the fourth amendment issue this issue was never raised so i suggest it is waived and i suggest that this court should not answer it because you know the principle of constitutional avoidance the constitutional question if another question can answer or can decide the case but the commonwealth from the beginning say we didn't need a warrant and yes and the court would not until after the trial would not give me on that basis so that because the commonwealth of pennsylvania certainly has maintained actually your honor that's not the case even on summary judgment the commonwealth two arguments one we had a warrant which they did not and two and second that there was consent which we won on a trial that it was it was an issue posed verdict but not until then so we never raise that and of course the limited scope of the trial was never ever ever brought up until the trial judge was font they brought it up when i let me know you make sure you started off with an argument that i i had not perceived i want to make sure i understand you're saying that you did not have a fair opportunity to offer evidence relevant to whether there was reason to believe this was his residence is that what you're saying yes and i'm saying it and for example the trial court even one of our issues we raised  trial court denied us the opportunity to present eighty eight or some subset of eight witnesses in an incident two years earlier where this defendant did the exact same thing knowing it wasn't the residen and for the courts information because i know that you asked should you remain and those witnesses would have been very relevant have moved outside the jurisdiction and are beyond our subpoena power so  not be an adequate remedy for us because we can't prove what we could have proven at trial we can still make certain attempts but not as complete attempts so what what is it that you want i what i'm asking come come on up here ok i know that you suggested that i inform the court you my opinion on that case is there a time period but i want your response he said we had no fair opportunity to tender evidence on the subject of whether there was reason to believe that he was in resident yeah i'd be happy this house i be have was the opportunity i have to start there your honor firstly the reason i asked for the court's indulgence is because mr diller characterized certain things in the record about the opportunity present exactly that and i would point to the fact and judge roth you're exactly right we made the legal argument presented here at summary judgment as recognized by the district court at appendix twenty four where the where it mentioned argument that in any event they did not mean arrest warrant because of specific statute so we made that argument and moreover as part of the summary judgment record  time at the time of the arrest this is a paid paragraph eleven of our statement caught robinson and painted official photo identification card in the pens made driver's license centers was so security card and birth certificate indicating application for each as the address in question in the important thing is plaintiff's response to that specific paragraph which simply states at mit so that that's stuff that was not disputed in the record for purposes of summary judgment which is why with all due respect we thought we should have a summary judgment granted on this issue and we also ask that the clues wait a minute women i didn't make myself clear i didn't ask you whether there was any evidence of reason to believe that he was resident in this house ok i ask you what opportunity and notice at this particular location i don't understand them to be disputing the fact that well actually it was they did they had an opportunity they had not part of their own evidence exactly and they didn't present any frankly we think because there isn't any  just on this sort of out of the blue and surprised we reasserted the exact same legal argument at the close of their case and i would prefer the court to volume three appendix one ninety eight to two hundred making the exact same argument again the district court recognized that and then we made these exact same argument at the act you know post trauma patients which plane just counsel had the opportunity to brief so this is not a circumstance where suddenly out of the blue some issue arose that hadn't been addressed had been addressed at least three separate times and to the district courts credit we thank the district court finally recognized that it had made a mistake in not granting summary judgment so judge roth your characterization of the cases the right this is simply a circumstance where whatever happened at trial the trial itself with utterly unnecessary and with respect to the we we cited in our brief to all these cases that have to do with when a super lation isn't is not binding on a court and fact is that it's up to the courts as a sign that despite an abuse of discretion standard and the court correctly determined as this court has people's lives for example in the mint that to the extent this had to do with some legal issue it was not bound by it there's absolutely nothing wrong with that that's that's hornbook law repeated parole or probation and the government's interest and if you have an arrest warrant that is all you need that's what we said that's what knight says you have to look at night chyna in each of those cases there matter of law anybody agrees to go into prole has to sign the same sort of consent that you find in this court case and in williams and i so why why why on earth is that not in the record if that's the case it should have been placed in the record your honor it was not in the hill there was no such the reason i directed counsel's attention to the hill is that hill there was no such consent united states versus yes but again your honor i agree with you it should be in the record is not we've distinguished the cases  intention the summary judgment again i think it's pretty clear they don't want to apply the graham standards the district court recognized the graham standards properly applied them here and certainly was not  even if you got there we were we are entitled to unity i think the district court deserves credit after being repeatedly asked come back to the legal issue presented and to address it correctly and we think the corporate graeme factors and you to reach a legal conclusion as to whether or not the the force used was objective the reasonable under all the circumstances present what do you say for the proposition that that's a matter of law rather than a three ninety four to three ninety  five thank you i have a question mr de loan about the board of probation and parole regulations title thirty seven yes or section seventy one point one which talks about if an agent has reason to believe that a parolee has violated the conditions of the pro ana talks about applying to the district supervisor for the issuance of a warrant to commit and retain and then talks later on about if you can't contact the district supervisor or feels that immediate confinement isn't heard of you may utilize an order to detain for forty eight hours and so forth and i'm i'm just sort of an alternative procedure that he can follow but he's not required to do it and i don't have alternative to yeah hold on just a second you know really this is your thirty seven p a code seventy one point one yes and what paragraph oh well it seems that a and e i guess my question is to what extent though you're  asking the interplay between a and b and to what extent are these to be followed do they need to be followed well i like i said it doesn't say must and i think if you about he's been able to contact a district supervisor or and he can use a for you know our warrant but again i think the key part is the a part which is a may this is a code and this regulation but it doesn't it discretionary with the parole officer and i guess the regulations don't know about this stuff no absolutely not and you're saying the statute gives we should look at the statute exactly but to the extent that and it's an important step that the issue turns on weighing the expectations of privacy on one hand and the states legitimate interest in the objectives of the parole system on the other hand if the right if the state system says that we can't have warrants doesn't that suggest that the state doesn't have that strong an interest in having parole officers able to make a i think it was order but it was one of the cases we cited where they had a bench warrant put out for someone who didn't appear for something that's very similar to this and i think what the general assembly of pennsylvania was doing with saying look this is pretty simple you're supposed to be somewhere to given time if you're going to follow your parole and if you don't do that you're you're a fugitive and we are giving you the authority to arrest that person wherever you reasonably believe him to be so it's you have to look at it in the context of the circumstances and the reason those circumstances work is because the the balance that you were talking about just as they've all been between what kind of privacy rights you have as a parolee and what kind of an interest the commonwealth has in supervising parole so to the extent there may be some inconsistency between the statute and the regulations you say we if i may have like to address two things quickly that this was a lone mention first concerning the summary judgment motion be the issue presented here was not presented in that motion motion itself just said defendant was for summary judgment so it doesn't shed any light the brief and the issue as defined by rizieq e was whether rizieq he was permitted to enter residents without a search warrant when he had probable cause to believe that the subject of an arrest warrant resided and was present inside the residence so the subject of an arrest warrant and claudy robinson was not the subject of an arrest warrant that was everything that was briefed everything that every factor that was brought to bear in summary judgment motion concerned that issue as the find by the defendant so this was not simply posed verdict was not simply rehashing the summary judgment motion this was a new motion when you had the opportunity to  facts we didn't admit that those facts constituted a reasonable belief we admitted facts that were facts but all because the issue of whether it was or was not a reasonable belief was not an issue we didn't have to bring forth all of the other facts about whether was or was not reasonable because it wasn't an issue looking we're looking at this from the point of view of the  officer and the facts he has before him that there is an identification card that there's a birth certificate and there's a social security card all is listing this as a resident and residence and that the man has been seen there and is presently there now can we not as a matter of law say on the basis of those facts we reasonably believe that that was a residence no because it wasn't an issue so therefore we didn't raise but you're not denying that those facts are true no i'm not and on the basis of those facts alone couldn't an officer reasonably believe that that was a residence even if it wasn't a residence we're talking about his belief was that rest reasonable well if those are the only facts that exist in the world maybe ok and those are the facts he is considering and going into this residence and but if he is reasonable and saying that these facts and firm that this is the residence he's unreasonable  not doing a bit more and we didn't present that because it wasn't an issue he's not reasonable in not saying sometimes lie about the residents and i know this it's going to light about his residence he wasn't reasonable and not determining who owns the house and making inquiry we didn't raise any of these matters and the house that's why he's resigning no but he didn't he didn't make any inquiry that that's assuming that's where he's residing and he was not and he didn't make any inquiry and we didn't present these facts because it wasn't an issue raised we agreed that no we agreed to certain facts but we didn't raise the universe of facts because it wasn't an issue before the court well reasonably relief was and if you were it wasn't all right you know i don't think there's any anything to be gained from well though the the first part of that issue the subject of an arrest warrant that that as far as i see ends the inquiry on that issue because that was one thing that the commonwealth was saying rizieq you were saying as part of his argument we knew that was not there also judge the record you ask about the the regulations i don't think that the regulations mean that you may ask for a warrant and part b says in your supervisor can say yes or no or you can just ignore this completely at your discretion don't risk being told no i don't think that's discretionary is a statute from the regulations well certainly arguments can be made in general the regulations go above and beyond the statutes but when regulations are in our implementing statutes and are not inconsistent with the statu