october fourteenth of two thousand and thirteen little bit in the background there was a minor that had committed suicide possibly a month earlier in salem are familiar with the facts we really are and i say that not to be rude and cut you off but to give you more argument i appreciate that you know the case we follow the case the judge on the motion to dismiss order found probable cause which resulted in the majority of the claims being dismissed with prejudice the only two remaining claims with a warrantless entry into the home for the arrest on a model of a county clay sheriff's office and mckinney the sheriff's office claim was resolved against us on summary judgment so we proceeded to trial on the sole issue of whether or not there was consent by my clients for mr mckinney detective mckinney as well as the other three officers and to ignore home on that day i believe under the case law clearly set forth in this circuit you cannot do a warrantless arrest in a home using some implied consent to the extent it's even a political most of the cases that have come out of this court recently have said implied consent is not a political to entry to a home there is no dispute in this case that there was no verbal consent is i'm not sure that they've said that to the exclusion of someone stepping back a show of authority in this case we have a show of the already guns drawn pointed at the individual in that case that they didn't know if the guns had been drawn or not was the issue in this case and in our case we had three law enforcement officers armed with bulletproof vests at the front door and that was a show where you that's a show of authority you know arm with bulletproof vests you defend with bulletproof fast i thought and edmonson there was a genuine issue material fact as to whether the officers had the guns drawn i guess there was a finding that they had the guns drawn the wrong i thought it was a funny there was no evidence that the drug dogs were seen ok we can check that out i'll have to doublecheck you write this some dict and some of the cases saying that  was asked to comb in there was we come into your home and there was nothing like that in this case in fact in one of the cases there was a signed consent form after the fact and they were even even disclosed to him you don't have to agree county sheriff's office he ok they open the door we're here to arrest your daughter mckinney's position he went there went back and put the dog away to came back and open the door he's almost that's where was he still had doorway was where the officers reached in and pulled someone out from a doorway you can't physically extract somebody from the house and so that was voluntary apologia case you're talking about it's the one judge marcus wrote cop reached in and pull the guy out and said ok you're no longer in your house i'm already they found that to be a wall full of left that that was of course it is mean he reached in the house didn't say may i come in didn't say i'm here to arrest somebody and the guy stepped back he reached and grabbed him in extracted him from the house i mean that's very distinguishable i understand your your argument about the other cases informed component of that they have to know one of the officers are asking to enter the house right they said they did it was a safe house they just said we're here to wester daughter no they entered no but if he's going to to another case consent has to be informed right yeah and informed of want the purpose for which they want to enter the house and also what about your rights you kno counsel that is what talk to me about this before a consent can be valid and the person who gives the consent has to know what purpose the entry is for and the only way he can know that is if the police officers tell him so by saying we're here to arrest your daughter that was informing him of why they wanted to enter the house  know i don't i see it was the point of why they were there not entering the house they didn't say so we entered the house to rest your daughter so we come in the one said that there was no verbal start of the night at all they might have been there for one purpose but wanted to enter the house for another who said they were going to enter the house one thing they could just add a side to have the daughter brought up they had four law and four to levels went into the house so he didn't know they were going to enter their house his house a jury couldn't find under the circumstances that he knew they were going to enter that they were trying to enter the house under i don't think that's implied consent of the taste law i'm not asking you if it's implied consent i'm asking you if a jury could have found under all the circumstances that he mr ohman knew why they wanted to enter the house after they had said we're here to arrest your daughter i think a jury could have found anything like they did or i think as a i'm bothered by about your case i'm going to tell them but the reason i'm telling you this is not to argue with you it's to give you an opportunity to confront my concerns and try to alleviate them so i can rule in your favor and the point you make the point is it was a command we're here to rest your daughter and i'm suggesting to you the counterargument which i'd like your view on is it's also informing mr roman because he open your door a second time that they were going to come in to arrest that really what of the evidence they just said they had they believe they had implied consent as a result of him opening the door stepping that i mean and i don't think that is legally sufficient under the case law certainly in the eleventh circuit i don't need to you don't have to have a best case and i used to hate these questions when i was an attorney but what's your best case for opening the door and stepping back is not implied consent to the shepherd versus davis though applied to and said open the door and not objecting the more versus peterson case  that was another case that was decided we're that was two thousand and fifteen case and more versus peter said there was no consent to entry to the house where they stood in front of the suspect and stated he was under arrest he was going to be arrested that is no different than what we have here in fact it's it's almost like the point they knocked on the door it was the kid said the defendant opened the door they said we're here to we're going to arres that point in time i think that offended turned around to some to have self into the court found that that wasn't sufficient implied consent in this case we don't just have somebody in the doorway we have someone we have a western daughter and at the  consent of enter are would have would have justified the conclusion that there was consent if they engaged in conversation so mean that they had a right to be there to begin with if they gave in conversation where he rested daughter to come in side talk to you daughter and get arrested without incident who you do that that would have been probably if he says ok that's fine but this is also earlier in the day about seven hours earlier they called to ask to bring the daughter in and this isn't a test a test where the mother said no we're not going to bring the daughter in what he talked to or many said that once the officers went into the house when the bell screaming don't take my baby don't take my baby that would also be an indication hey don't be my house and take my baby i mean there  what she did and we alleged in the complaint that there were statements of there were falsified the statement said there were two really omitted that he did and that he ultimately makes this legal conclusion that something that my client may seven months earlier was a factor in this teenager committing suicide there was nothing in the affidavit that the parts of it that supply sufficient evidence for probable cause and even if there was we and that he had this one page document which is his affidavit which which attaches place hypothetically if we if we thought you were right about that you're asking for a new trial on that the claims that probable cause would be an element where a defense were so the only thing left that we actually tried was even if the one probable cause there was no word or consent to add to the whole country us and if you look at the one page intimidating her if you listen to that tire tire video audio you call whatever bully whatever she said did not meet the standard of an aggravated and not seven months after the fact that my client had no contact with my client is undisputed my hotline had no contact with her since from february two thousand and thirty for the date of the suicide in september two thousand thirteen there's nothing on the affidavit says she stated your client stated that she and her mother roseann go went to the victim's residence september ten twenty day after after the suicide they then went to express regret for the the mother oh you're saying she had no conversation with the victim yes there was no contact no conversations no communication no text messages and this happened a bit also that someone else was doing it at the same time so i think it's quite a leap to get to the point of you know that this was a contributing factor to the suicide when seven months went by and there was zero communication my client plus we dispute a lot of the statements in the affidavit what it's worth before i forget have a copy of the affidavit and it is dated warns describe predicting predicated their probable cause on didn't go put this in for warrant didn't ask for a warrant didn't do a thing this was all that we know of he had as of the day and he had made a decision before he went to the house that there was going to be a rest this was not adopted talk situation but we don't believe he had a right to be there and the other i think critical issue in this case the porch became a huge issue out of and it was an issue that we  substantially more facts and dick and of implied consent and any of the cases we cited out of the eleventh circuit ramirez all of the cases the suggestion that adam ansen is closer on point  here hands upon his it those facts are far afield from this case and actually our case are so much stronger and and almost all of them are completely uncontested first of all this is a situation that had been going on for some time between detective mckinney and this family in fact he had already interviewed this youth and her father at the father's other home previously been allowed in the home to interview the juvenile that day there was the prior phone conversation when they were asked to come down to the sheriff's office they declined and detective mckinney told them we're going to arrest your daughter they then came to the house after to make the arrest of this affidavit according to the only testimony in the case and as judge corns pointed out there are actually two times on the fight and i'm not sure what the distinction is but both of them are in the afternoon this after they've to believe that on october fourteenth the twenty thirteen at approximately two pm this committed the egret the offense of aggravated stalking this form is used either to show the date and time of the arrest or the date and time of the ents to lots of times the incident is an immediate thing and so you need it explained that his date time where it's sirens bulletproof vests clearly identifying who they are they knock and announce polk county sheriff's office there are three of them and lieutenant wright is somewhere behind them a little ways back  missed all of this is on contest about why mr rogan comes to the door opens the door and is informed at that point we are there to read rest ok your daughter at that point the the three contested matters as to what occurred at that front door that the jury heard and clearly could determine which story was correct occur according to detective mckinney and the other officers said can you give me a minute to put the dog up what i'm said he said can you give me a minute to secure the dough they did he closed the door a huge factor we're looking at the t circumstances as to whether or not this was whether implied or not express the talent the of the circumstances as this court has required that is a huge factor found in none of the cases and they waited several minutes while he put up the dog by the way he did admit there was a dog in the house he just declined to eat he stated that he did not recall anything about going to the door twice so they wait several minutes he then returns he opens the door wide open steps back holding near the top of the door all the way back completely fitting this court this which in those cases that's virtually the only fact that occur that allowed the implied consent to be determined the officers then entered the home one at a time in a line there was never an objection never a question never a hesitation according to the testimony no one was ever touched the door was not even touched there were no threats no gestures nothing now appellant likes to try to mix up concept of arrest versus consent a victory because later the mother did come from the back and said please don't take my daughter or something to that that's clearly objecting to the arrest that has nothing to do with the entry which has already occurred prior to that fact in this particular case if we go all the way back to the pleadings them selves this can same issue isn't even in the pleadings we submitted unsuccessfully a number of times judge driven do not and i are motions disagree found that the fact that consent is mention one time in the complaint paragraph fifty five which is in the false arrest state court claim count and is not the real ledged in count ten the federal plame they do say that they didn't consent to the problem actually of the false arrest there is never any suggestion of lack of consent of entry until we get to the trout and the discovery leading up to the trial the porch issue is even more point what difference does it make that they didn't time to get over that we also move that's when all the planes that it's it's somewhat ironic i would suggest that judge craven and if you read the transcript and you see her very strong involvement in this case i fairly ironic that judge griffin who i would suggest bent over backwards to allow this issue to go to trial is now being appealed for having committed error in this case we don't we don't reverse judgments on  i understand but my other point is an interesting line up there is no assignment of air whatsoever in this case to anything else judge or even did a trial like i see in most of my appeals the only air they  is you should have taken this away from the jury there were not for all the have to ascribe to except that the standard would say that that would not be appropriate under the facts of this case clearly that's that's the issue they present they got to do is present that issue s or at they prevail on it you lose and that's what they've done like you're on the porch issue is even worse and i'll just briefly discuss it and that's i think that's why i got off on that pleading i apologize for that i do that all the time that the porch issue is much worse because not only was it not ever plaid it wasn't discovered it wasn't in the pretrial step it wasn't in the trial briefs it wasn't in the motion for judgment as a matter of all the rule fifty motion it wasn't into the jury instructions ever requested by anyone it wasn't mentioned in the closing and the only time it really came up other then judge scribblings questions to lieutenant rudd what's she figured out there was a porch at this house which happened in the middle of trial the argument then that occurred was due to a jury question that asked about the pork and so in volume three of the transcript of the trial and page three that we're advised that there's a question about the porch i'm and i'm reading here page three beginning in line i the first question is by law is the screened in porch consider part of the house the answer to that is no i assume the parties agree plaintiff agrees mr marks no i don't agree that the court well has the plaintiff alleged in this case that the opening of the screen door was any part of the claim dempster mr marks well i mean it wasn't i'm sorry your honor we didn't specifically say screen door but we said there was no consent to enter anything by the way that's not in the complaint anywhere that's probably where i got off she then let me argue and then went back to mr marks as she was trying to fashion her response and she said that she's going to tell the jury no and his responses page six volume three line sixteen i just don't think that's the law i just think it's irrelevant to their determination here alternately but i think you're telling them something that you know hasn't been bereaved and you know i'm pretty sure a screen porch with a door in it is in a club in a closed area as part of the house the court and you're pretty sure to be wrong about that unless there are certain clear and disha that this is part of the living space of the house and there's been no evidence of it so the porch issue has take to even call it a red herring it is so far out there also out there is the suggestion that the summary judgment in favor of judge sheriff judd on whether or not he had a policy or custom encouraging or allowing warrantless searches without consent or  based on the general order seventy four point three which is in there which is a model kaliya standard based on the florida statutes it even goes so far as to cite payton and say that you can't do a warrant less arrest in a home without consent or exigence in then says you can't i'm sorry and then says that you can't ok i didn't read that your hon deputy may enter a suspects premises to effect a lawful arrest in accordance with nine a one point one five florida statute when the deputy reasonably believes the person to be arrested is within the premises right that's that's a short version that thankfully is explained better when they actually make the peyton site later i would submit i think it's a model they don't make it later they they you know that's how it is and i and then b so as you can go in with probable cause on more than a spy episodic basis the sheriff's office i'm proud to say i would wonder if it's occurred to you that maybe this needs clearing up so that we won't have future cases based on this problem in revised actually several times since and prior to trial and i'm sure it's been taken care of already your honor although that's not part of my duties thankfully i would be qualified as gibson is and thank you for that suggestion but in this particular case there's nothing whatsoever in the record that would suggest sheriff had a policy or custom that encouraged these types of ras other than this general order order  i think the general order obviously needs clarification and i'm sure that note has been written down to understand and lawyers sometimes mike the mistake of exaggerating the strength of their position and when you say there's nothing in the record and this language is right there in the record it seems to me like that's a gross exaggeration i apologize for us i was not intending testimony was clearly a trial of the kitties testability that he the conversation was will you bring your daughter down she said though i said had you bade the decision to arrest her yes did you tell her issue was judge kevin took over the question of the officer and the officer said we should dock of the screed poured we laughed at the screen porch we don't attribute for we laughed at the screen porch they made a big issue about that and the judge took over over the because the testimony of that actually asked the question that there was a jury was back there that would tell a bylaw it stopped more of the house if anything i was just tell him it's not to be considered in this battle but she say by law it just really misconstrued the attire trial if they really jeopardize and i knew they'd come back with it but it's words that happened because it was the judge that made a big issue out of it it was the the judge said the judge said no not for this case something to that effect but the question was by law is the screed porch part of the home that was the question by well i don't know who put misleading but a way to get back to to the probable cause issue if if you look at the affidavit and you look at but aggravated stalking is that is not sufficiently alleged in there and if you you'll fact that would