the honor of all united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court today's exception to the exclusionary rule this quite should not apply the independent source exception in this case because to do so would simply the protections of the th amendment this court should follow the in this case two officers illegally searched the defendant's residence the officers were in the residence legally to do a protective sweep instead of doing a protective sweep the officers searched the close top on it removed it covered the vent looked in the band saw how men moved in how and saw the gun then they went into a nd bedroom where base opened a drawer in the bottom of the nightstand some plastic bag opened a plastic bag looked in a plastic bag saw the heroin in while doing that they broke apart from richer and rummaged through things and broke french are and the defendant has photographic proof that they broke the furniture because are photos of the bag with the headboard off in the sideboard off in the furniture on the floor the defendant testified at the hearing that he had someone ramming his front door and he thought i was being rod he fired a shot through the front door and then he tried to skip through the back and when he realized it was a glass door at the back he saw a police officer is not he was looking rob he ran upstairs with the heroin and the gun and he had it in a vent now he testifies assuming without conceding that there's probable cause to search the residence if you accept exercise that got in the drugs in this case we should still not apply the independent search independent source exception because the who suffers whose behavior in this case the severity of their misconduct it we have to not apply the independent source because it sullies the protections of the th amendment any of what you alleged to be illegal conduct of the sweep would have given probable cause for obtaining a warrant for a search so all we have to consider is a district court doesn't care about what happened in the application for the war because if you just look at the facts as they existed at the time of the reasoning of the house was there probable cause them to obtain a warrant if it had been sa if so then inevitably it would have been discovered law enforcement misconduct is the supposedly rising in the affidavit for the war but that's a relevant if the inevitable discovery doctrine is relied on because we never get to the question of behavior as to the actual warrant up occasion we would just look at was there are sufficient evidence to support getting a warrant inevitably if it had been sought at the time of the freezing of their residen you have an epochal discovery based on the evidence that was available to the officers at the time they froze the apartment right away and go in with that's right and the only basis for the of the misconduct has to be conduct that occurred during the sweep itself not in the warrant out occasion and if we look at just what you allege occurred during the sweep itself to the district court was there a claim says severe police misconduct and the fact that police officers lied on the stand if the court found the police officers lied on the stand she said i'm chris waited by the opposite count of a block of heroin sticking out of the floor in the the evidence in because it does a franks exercise the illegal evidence and find moco ass and allows the evidence in and then they go on to lie at the trial so what i'm saying is you have at this point you have to stop it you have to obtained and would have been properly again it's going to be excluded from the evidence that's what you want us to say and i have come to where we draw the line ok those court cases your honor is correct in the government's late for cases where there was it reaches police misconduct and they still did it frank's and just took it out of the end of the wind up each and decided if there was a common cause but in not of those cases did the defendant raise the issue i'm raising right now which is they never claimed that this sully the protections of the th man they never asked him to apply madrid and in fact the only case where people answer to this circuit to climate drift and we don't even need to climb into it we have our own image and we say sylvestris you can't sully the protections of the th amendment if it's so bad that you do that we say that but even in this court indent examined whether they would apply madrid but indent they didn't put the illegally obtained evidence in intentionally violate the th amendment you know i what do you draw the law and that's another way of putting the question i think you draw the line at this case and because of how bad the search w there was a credibility judgment that had to be made and the district court concludes just that i'm unpersuaded she thinks that they lied of that there was intentional line of that they were projects or anything like that she just says unpersuaded we're hearing all the evidence as to exactly what happened which is a favorable finding to you but for the selling the prophylaxis you need a finding it sounds like an intentional misconduct on the part of the opposite she doesn't make that finding we have been cases of defendants and sentencing hearings where they're just believed but we don't have a finding that they committed perjury she doesn't just say you know i'm not going to find here she doesn't she stands persuaded i think that there was any intentional misconduct on the part of the officers in the testimony they gave to see she says she's i'm persuaded by the officers that count situation that does it can't mean anything but i don't believe the officers we also denied entrance where the defendants account is not believed by the sentencing judge but we don't say therefore that the sentencing judge has done enough to find that he perjured himself here there is nothing like that by the district court is there no way you can interpret that statement as anything she didn't even she didn't have to say it and there's no way because her moving didn't depend on it but she puts it in there and there's no way you can interpret that statement as anything but i don't believe we subsidise the i'm telling the truth you can interpret it any other way she's not saying they misremembered and she's not saying it's empirical and they may not have seen correctly they might have relied on somebody else who didn't she ball approach to the sweep what do we do with the fact that there is no fact finding on any of those points in the district court's opinion and yet she found without having made those findings which you say would be necessary findings we'd have to make it's not as if she found those things and then said it didn't solve it she did not make those findings and then she concluded there was no sullying how on this record are we going to be able to you want to punish you clearly erred on all those points that we should find on our own that there was perjurious on our own that they must have destroyed all this for editor and therefore hurt their decision about selling is wrong i'm just not quite sure they did i q that alarm i mean once she made a ruling did they say can you you know can you give us a rule ruled they didn't say there's nothing in the record after she rules to say you haven't given us the findings on this we please give us a finding is that your honor said that what i'm asking for is an exclusionary rule on steroids and i think exactly the opposite we have chopped into the exclusionary  the idea that the court found that the officers lied what the court said was with respect to the conflict between the testimony of the officers and the testimony of mr set up to go the court said quote i am not sort of think it was test then the course and i quote nor do i resolve the conflict the evidence as to whether a bag in the back bedroom containing heroin was unique or were next to the bet not persuaded language that counsel is focusing on and he clearly shows that the court did not make a finding as to whether or not the officers lie and that of course makes sense because the whole structure the paragraph is to indicate that the court didn't have to make that finding because it found that moving the bench which the officer admitted to doing and looking inside the bag which the other officers a even in their opening brief the defendant said the officers destroyed the apartment there was no evidence to support that and in fact there were pictures taken of every room in the apartment prior to the search and there was no evidence to support that what and as far as breaking up furniture is concerned the only evidence concerning the breaking of furniture was  was moved and in the back bedroom bad that was on the floor came off its wooden frame that's the only evidence that they quote unquote destroyed or broke furniture so that's  supported by the record either and in fact there was no egregious circumstances here because the court found i think properly so that the protective sweep was just a protect sweep was in part necessary because for whatever reason the defendant had fired a shot at the officers before they could reach the part is ok the court did find that the officer testimony concerning his understanding of the purpose of a security sweep he he indicated that he was looking for the fire now that's not work that's not allowed under and the purposes of this is curity suite which is to freeze the apartment to make sure that no one else is there but it is understandable given the circumstances that having to been fired upon the officer want to fight they got and  with that understanding it was not regis behavior that remainder of the search go beyond the law and so there were two defendants keep down from the upstairs the officers were on the st floor was the office once they did finally come down the officers did secure them and then only two of one the dozen or so of this is who were present seen went upstairs to determine whether there were any other people you already addressed the issue of whether there was an argument of district court about lying with anything i did to the district court about the destroying a property in the apartment i don't believe that there was  things in my belief is that the parties below and even the district court used them interchangeably as far as what the what these requirements were the court was asked to sort of decide and i think the understanding was well where evidence has the only independent source would have been the war yes and  you don't need a war you just need evidence at the time of whatever the circumstance is to make the judgment that if you saw one you could get one that's of me so i thought it worked well no i think that's right and i think that the  and least i was approaching it was well the officers actually seized i don't it's got to be an independent source which would be the warrant if they never sees them or seen them it would be inevitable discovery  on week as far as the circumstances here and that you know whether or not the court thought it was applying inevitable discovery or the only fact that i could see would be different from the analysis w conduct of the officers in the preparation of the david for them or not petition that's relevant to the independent stores analysis but it's not relevant you know little discovery now and i just don't think there's anything about how that was in plain view and the district court had ruled otherwise well that the one of the officers indicated that he had misspoke that was the inconsistent testimony already one is as efficient there are mechanisms to deter police misconduct i don't think it happened here but my question is assume they live all over the place assume they broke every piece of furniture in the and they won't hear thank you counselor thank you once that there was no rebuttal that concludes the arguments for today this session of the honorable united states court of appeals has now recessed until next session of the court god save the united states of america and that's our whole court