issue i would like to rest on my briefs on the remaining issues this case before the court is a co tenant consent search case that according to the district court falls somewhere between matlock  and randolph now the district court and i ask you just to put a limit or a question for a moment just so i understand what it is that you are arguing that i have you argue any of them and i just to make sure i have the totality of the argument yes your honor i'm just talk about the search issue it's your own search and the consequential statement that's issued after that he makes after that if i have your argument right you're saying two things one you're saying the suit warrantless search was no good first because the defendant was there they didn't get consent from him and they ought to have gotten consent from him they detained him and they didn't get his consent and therefore the koach ip and couldn't provide what he did not provide that's argument one right correct ok the second argument you make if i have it right is not w  that that her consent was voluntary and those we would we would assume but not admit that her consent was voluntary and we would also admit that authority and so i will not be addressing that part of the of the search issue of the fourth amendment issue on so the only claim you're making is that they had to get his consent and as a koach opinion she couldn't trump him without him saying ok the my argument is that the a consent that they obtained was not effective as to him because his fourth amendment rights were violated by the police conduct that's too general his fourth amendment were violated by what police conduct are you talking about the failure to ask him for consent when he was present are you talking about any contact towards the only us to him your honor that he  was not asked that he was not told that a search was being conducted but most importantly that he was precluded from expressing an objection because he was detained he was handcuffed and detained twenty feet from the door of the house while the consent colloquy was going on inside in the living room of the house you are not making the point that he was absent you honor the district court found that he was present the district court found adopted the magistrates are in our and found that he was physically present it found that he was not present at the door when the officer spoke with the  occupant that he was not involved in the conversation between the officers and miss lang they found that he was never asked for his consent and that he never refused consent prior otherwise unavailable or was on the otherwise unavailable in other words he was available and it reiterates that and says he was perfectly available to be asked but he was not asked whether he consented to the search and he failed to sue a sponte express any objection to the search what specifically was the finding and the evidence as to whether he knew a search was going on the record is void of any evidence that he was told that that there was a search going on or they were about to do a search or that they they were in the process of a search so where exactly was he terms of the front door of the house when the police he was this house faces north the door the front door faces north he was on the east  it's not clear your honor it's not clear well your honor there is there is a testimony that the cohabited of the property opened the door stepped out of the threshold and looked and saw the defendant handcuffed now i don't know how far she had to step out to look but he was to the right of the front door oh if she could see him assuming he wasn't turned around with  back to her p could see her yes but he could not i don't i don't believe he could see into the into the living room or he could hear that you know that station that went on if he could see the front door yes your honor which is what we just talked about this or you could see the officers going into the front door he was not told the purpose of their visit and your honor in this so you're arguing from the proposition that co occupants are  call them even if they're just koach offense consent isn't valid unless the police officers go to the defendant and say we're going to asked a code tenet for permission to search would you like to object your honor i think that that's clear under randolph that when the police arrive at a residence and they have reason to believe that there's more than one tenant and they're both present they have an obligation to ask both tenants for permission i thought what randolph said is if one tenant objects the co tenants the other the co tenants consent can't override the objection but it didn't say the officers had an affirmative duty to go as the defendant if he objected did your honor i would suggest that whatever rule the court finds in this case that it be one that is respectful of the reasonable expectation of somebody of privacy in their home and in this case the officer that went that first spoke to mr moore alice had done a background check on him he would see than anonymous tip and in the background check he had established that he was a resident of this house so when he first came up to him he knew that this man lived in the house and in fact he asked him some questions and i said you know i don't understand that be disputed here but what i'm talking about is suppose they go the house and the defendant isn't nicco tenet says he's that billy's not club across town they've got to go to billy's in ask him for permission well your honor that was the rule in matlock that they don't and the reason for that is because the court  did not want to impose a burden on the police that would perhaps hamper their investigations if they had to go out and look for every possible person that had a right to object to the search but in this case the police officer that was leading the investigation the very first person that he talked to that had a connection with this house was mr morality and this rouse was cooperative he was truthful he was also handcuffed and your honor with regard to the handcuffing i want to make a point that the district court did not have the benefit of the testimony of the accurate testimony of the police officers regarding the fact that the client was handcuffed and when they testified at the when he testified at the suppression hearing they suggested that in fact he wasn't one of the lead detective was asked what if anything did you do did you detain them did you leave them alone and he his answer was i saw them standing i didn't think there was any reason not to stop them because he object this is not the motion to suppress your honor and then does he object no your honor is your client ever say in words or substance while he's detained on the front lawn not yet under arrest but under detention i object to you going in and searching that house your honor there was the purpose of the police visit and i love that but that isn't my question and that maybe you did not drop the point to make but i simply want to know your honor he did not why isn't that fatal to the position if you look at the holding of the supreme court in randolph it requires a physically present in ha and to express lee refuse consent to a police officer that would be dispositive regardless of the consent of a fellow occupant but isn't the law clear and maybe i misunderstood it i always thought the law was it's got to object in some form or fashion to doing it if he's asleep they don't have to wake him up and ask he loses if he's under arrest in a police car they don't have to go to him and say i want permission he's got to object he's got to be there otherwise this exception to the power of a coal occupant to consent is good what am i missing well your honor the supreme court and roundoff saw this case coming over the horizon and a d they said that the consent of by one co occupant might not be sufficient if there's evidence that the police have removed the potentially objecting tenet from the entrance for the sake of avoiding a possible objection t police officer knew that he was a potentially objecting tenant they took him outside and basically immobilize and there's no finding in this case that that he knew now that the purpose of the police officers arresting him handcuff take him outside was to remove any potential objection your honor i would suggest that the determination of the announce is a fourth amendment issues there is driven by by reasonable this and reasonable this is determined by a totality of circumstances and i think that if the sooner the investigation and the knowledge that the police officer had regarding mr morale as it did you argued this factual and legal theory to the district court your honor i was not the the attorney are you when i say you i'm talking about you the defendants your honor and i cannot say well if i don't i'm not your predecessor didn't argue it express for the specific purpose of not allowing him to object to what was going on yes your honor my recollection is that wants sent that's your recollection in response what did the district court say district  magistrate judge what's the what's the finding of fact as to whether that as a historical matter is true about the officers purpose he was not asked and he failed to sue a sponte expressing objection and it was  d me ask you with the court of the district court didn't address your factual predicate that their purpose of removing him was so their subjective motivation in removing him was to prevent him from objecting you asked the district court to find that you argued that that was what happened in the district court didn't find you are again i wasn't there but my recollection is that it was argued like that but i would just say that the subjective intent of the police officer is not an issue is always an objective no considering you know i understand about reasonableness for arrest and in that sort of thing but when you say that what randolph stands for is the proposition that if the police officer remove somebody from a house in order to prevent that person from objecting so a coke can ten ten it can consent and he can't object about it then you're talking about motivation and that is subjective it has to be subject you don't say what a reasonable police officer have had the motivation so that kind of record has to be bell built in the district court and to the extent that you bracket you predecessor counsel close bracket failed to do so then the defendant hasn't made out the exception to the code tenet consent your honor to the language which in the in the opinion that states that the when the police act in that manner the the following light right afterwards it says in the opinion that it's determined by reasonable this and i believe it says by an objective standard ok let me just if i might come back to where i began counsel just so i understand the totality of the arguments you randolph argument to wit your client had to be given the opportunity to say no he wasn't he and therefore lange didn't have the power to consent to this search in words or substance that's correct your honor there isn't in the did the reason i raise it is in your brief you also say there's a question about whether her subsequent consent was any good then the government comes back and its response of pleading and looks at this question of the land sea and the question of even if the initial entry was no good that it tainted whether it did it it tainted the subsequent consent that's not your argument here you're not going into the taint you don't go into deland see even raise it in your in your blue for i just want to make sure i got that right just not right have that right your honor i'm not considering those validly voluntarily consented consent the problem is the initial illegal entry tainted the whole thing really bad or not you made that argument in the blue brief you show me where if i look at the topical heading on page fourteen that's where you make the argument the dish record aired in denying the motion to suppress it was warrantless a law enforcement failed to obtain consent from the defendant when the defendant was present in the front of the yard and was available to grant or deny consent and where they did not otherwise have probable cause to search and then when you go into the argument you only come out of it on page eighteen and you make reference to there's some question as to whether the langs consent was truly voluntary since they were a team of police officers together with a police dog they came to the door and advised they wanted to search there for the lang doesn't speak english was shown a piece of paper she thought it was a permit to come in she thought she had no choice she signed it that's the argument that you make yes your old one police never asked him for consent to her consent was not t terry correct that's the beginning in the end of the argument two fold yes you're right it isn't you don't make a delay and taint the argument and come back and say temporality intervening causation purpose exploitation none of that's in the blue brief no right just want to make sure in fairness that that's not an argument you were raising although it comes up in response and in reply right that's correct thank you if you have are you able i'm sorry just to touch on that state that repeatedly both detective rodriguez and detective tours that their purpose in going to the house was to get a consent and i believe that the district court found that and held that the taint was dissipated but you're not arguing that that was error that's not the heart of what you're complaining about to have that right that's right your own ok ok thank you we're here now  please to court my me my name is my dear and i represent the united states of america your honor out as been stated in the supreme court has consistently held that an officer only needs voluntary consent and that consent can come from a third party his argument is not if you remove the defendant prevent the defendant from objecting with the purpose of not letting the defendant object will you want to defend it wasn't removed the officer that initially approached him found him in the yard in the street with the car that was obstructing the traffic so they approached him they never removed him and your honor from the record i do believe that the defendant is able to see the undisputed and the reason why i say that is because at the suppression hearing mislaying only says she steps out she sees a man sitting on the floor ground miss roman says they're all handcuffed at the suppression hearing but at the trial when she at the suppression hearing they were handcuffed at what point in time she didn't say at what point when she comes out the hell she sees them but i but your honor at the i thought that he wasn't arrested he was detained on the front lawn but that he wasn't arrested until after they obtained the written consent from the slang searched the house and found the firearms in the room only then did they replace him under arrest correct detain him out of range of objecting knowing what's going on and objecting that's the same thing whether he's under arrest or ordered to join or he's not outside of the range of being able to object in fact when he gives a statement later to the  police how far was he from this record he says to him that from the from where he was being detained on the front lawn and the front door of that house is twenty to twenty five feet is what the record indicates from from northeast side of the house when he's on the east side of the house but he's able to see the front door just to come back to judge crimes question just so that i'm clear can we tell from the record whether when he was detained wherever it was that he was detained however far it was whether was east or north was he coughed or not when he was under detention but before they formally placed him under arrest your honor i would submit to you no because of the witnesses testimony roy reason no finding what you say the facts suggest he was not handcuffed at that time correct there's no factual find because it wasn't raised at the suppression hearing but i was going to say roy read one of the gentleman that was detained with him he's the one who had a firearm who handed it over to the police and was told to just wait there he said that they were told to sit on the grow and there were two people arrested which included to defend it and they were handcuffed also at the trial erica roman who at the suppression hearings and they were all handcuffed she says at the trial they were not she doesn't know if they were handcuffed she retract that statement as i don't know i didn't see that she just indicated that she saw their hands but she didn't know if they were handcuffs so that's what i submit to the court that there's no factual finding or evidence that he was actually handcuffed prior to being arrested under control of or as you see it we get the precise facts of this case and the controlling law as you see it could the police officers intentionally take the defendant away from his house so that he's not physically in the position to in my view i think it would be more problematic if that was the motivation of the police officers in moving the defendant if he's moved for a reasonable reason then i would not think that the moving the defendant affects their ability to actually code if you can say i thought there was case law out there maybe i misunderstood it that if he's under arrest in a police car away from the scene he's in a position no different than he's in the house he's asleep and no more have to wake the guy up or bring him to the house and say do you object we want your consent and that's why i misunderstood that no i don't believe you are your honor that's why i say the motivation for moving them becomes a very of the individual becomes very important if he's moved because he's being arrested or being taken somewhere to be questioned that's different than if an officer is moving as you're they purpose of making it impossible for him to interpose an objection so you would suggest if that was the record evidence and there were a finding by trial judge that they intentionally moved him away so he couldn't object under those circumstances that would be the functional equivalent of him expressly objecting searching my house and there's someone else there who's an occupant as well who says no i don't object you have that i've got nothing to hide you can't go when we know that it's right in courts told us that if the police remove somebody it put them under arrest and they drive them away making it impossible for him to interpose an objection and they do that among other things for a purpose of making it impossible and then they go to the koach a pen and say we want to consent she says sure come on and have that it and she give consent of those circumstances you are one of the purposes wise to preclude him from objecting by removing him from the presence or i believe she can still give consent because there still was a valid reason for removing him and that was the fact that he was being placed under arrest ok so the whole thing has to be i do think that becomes more problematic but in a situation where someone is under arrest such as the case is here then there is a basis to remove that person from the location and then go back in x the code for permission to sorry if you don't have to give them a chance but you can for take substantial steps to make it impossible that's really what you're saying i do believe the case law that would support that got me ask you this was this theory argument objection exception raised before the district court did the defendant's counsel at that time whoever she or he was argue that the suppression motion should be granted because the police officers for the purpose of preventing him from objecting to the co tenants consent put him out of the position he could see it or put him in a place where he couldn't object y i don't believe so i believe the defense of the argument at the suppression hearing was that the officers should have axed him they spoke to him and from what he stated the logical next question should have been could they have consent to search the house and they did not accept consent although he was there and available all right and there was no dispute they didn't ask him for consent no yes or no need for a fact finding on that although there was one in pl there were no facts findings by the district court on whether or not the police officers had the subjective intent to interfere with or make it more unlikely that he would object to the consent when they d you asked a question about handcuffs and there was testimony at the court about it at the trial level about handcuffs not at the at the motion to suppress so that the fact that at the at the trial what did they looked out her door the detective phillips was talking to mr ellis and when she looked out the front door she says he was sitting down handcuffed that's her testimony roy read the person that was quoted by the who testified at trial about whether he was handcuffed or not several people your honor detect they all agreed the detectives everybody yes everybody agreed who testified at trial that he was handcuffed well let me give you the names roy reid did i don't really care about the names were there any dispute at trial about whether he was handcuffed there was no dispute he w we've been laboring this that should have been brought out earlier we've held that on a motion to suppress if there's evidence that clarifies any ambiguity at the motion to suppress this presented at trial i was going to bring that up you're on right ran out ok so we can except for the purposes of our discussion here today that he was handcuffed when he was to take a period but also i would just stop at that and go on to the next argument i think the court should consider the effect of that difference in the testimony between the motion to suppress and the trial because at the motion to suppress it was almost a mr action and so if they had if we had known or count prior counsel had known that these people were handcuffed he would have made the argument  let me ask why i mean you can object would you handcuff sound just as well and then he wouldn't gag wasn't the record is void of any indication that he was gagged for god's sakes he could speak could he not you could speak ok then what does it make if he could use his hand you're out wouldn't do in sign language well it's a matter of what his knowledge was and there's the record is void that he anybody communicated irrespective of his knowledge what difference does it make whether he was handcuffed when he did not object whatever his knowledge was what difference does it make if he was handcuffed well the difference would be that he would stand up and walk twenty feet into his living room and say what's going on here and he was told sit down and all but he was detained for moving whether he was correct or not so i was didn't matter that he was handcuffed or not that's correct i may ask the question again differently and just be sure that i've got the record right at the outset i asked you whether he ever objected verbal or answer no the baby explanation for why but the answer to that question was no was there any evidence  in this case at the suppression hearing or even at the trial that he was detained where he was detained and cough when he was c because the attorney asked the detective he was there you knew that he was a resident you had verified that he lived there you asked him all these questions and he answered truthfully why did you ask him the final question do you consent to us searching your house and the answer was i don't know i could've but i did see that i'm running out of time and your orders and again just so that i'm clear was that act argument ever made to the to the