and doing visions of privacy during the execution of search warrants the search warrant in this case was for documents relating to phony loans and bank accounts there were three suspects all were african american the narrow issue here is the correctness of the trial court's ruling that the defendant deputies acted reasonably for fourth amendment purposes when they ordered the white the saddler out of their bed naked at gunpoint at seven in the morning the holding of franklin is a detention conducted in connection with the execution of a search warrant may be unreasonable if it involves an undue invasion of privacy the standard of an undue invasion of privacy embodies the balancing test that is at the core of the fourth amendment determination of reasonableness as a plumber matter do you have any problem with law enforcement officials executing the that pointing a weapon at someone unnecessarily is itself the use of force that's robinson versus on a county however that was decided after this incident and they granted the officers in that case qualified immunity you got a search warrant case i'm not firearms out of a bed well yeah but that's part of your climb up unto invasion of your right of privacy that they did so with firearms at the ready yes so i just want to establish that you don't have any problem per se with the fact that they had firearms at the ready when they executed the one well the supreme court case was a search for gang members this is a search for documents relating to a bank fraud and the fire it issue in this case was a registered firearm that they should the five firearms at the ready when they enter the premises no i'm arguing to you that they should not have ordered this couple out of bed naked at gunpoint bed but i think it's the or being ordered out of bed naked that is the end you invasion of privacy in this case right in other words let's assume that they just came in and they threw the firearms the cuff a lot of that without without farms present you have the same case well i believe that the firearms were part of what caused the compliance so that would be a different case but i think yes we would still be here if there were no firearms and they got out of bed just on the show of police authority but i think the fact that they had firearms pointed at them helped them comply with her getting out of that and also made th the entire experience that much more degrading humiliating and traumatizing well the thing handle it according to what your friend across the aisle said this is quickly as possible or a matter of minutes and not allow the nude i don't know what that means not making a new show if they were that they were nude i mean they got out of bed nude with officers of the opposite sex looking at them but they didn't parade them they did it in a matter of minutes the whole the whole the whole  just a few minutes the whole search and they'd rounded them up and put them in a common room with everyone else in other words they didn't want them or anything is there any way that they could have gotten out of bed with greater facility then that was actually executed i don't know what you mean by greater facility i mean i think they walk into the bedroom there are two people who they immediately know are not suspects in this white collar vein fraud a reason why officer would know that a mistake had been made that they were in the wrong house that this was not the house that the suspects were living and the people say to the officers were naked and yet these officers these deputies order them out of bed in full view of members of the opposite sex stark naked your position then is that as soon as they entered the room and they saw there were two white people in bed they should have just left the room they should have well yes they should have said we have a search warrant we're sorry please come out we need to discuss this with you and allow them to dress privately and come out for the in my opinion they should have knocked at the door when chased hall judy son said my parents are in or my mom and her boyfriend are in the bedroom a an allegedly fraudulent bank transaction that they had they had some information that the people they were looking for were armed they had information that one of the three suspects had registered a firearm none of these people had histories of violent crimes or anything like that when they didn't know who was in the house they knew that the suspects were not in the house as soon as they entered because all the people were white who were in the house and all the suspects were black people once they realized that an error had been made under the list in case they needed to back off and reconsider what they were doing and of board the search and certainly not order non suspect out of bed stark naked first thing in the morning you're relying on the you know we're not relying on the main a case for relying on franklin versus foxworth which holds that search warrant cannot be executed in a manner which causes it under invasion of privacy that concept of an undertow invasion of privacy requires balancing of the individual's privacy interests in this case two non suspect who are naked in their marital bed together against the countervailing governmental interests which here are nil because by the time that the officers encountered mr bradley in the saddler in their bed a reasonable officer would have known that an error had been made and they were in the wrong house in terms of the officer safety issue no one wants to minimize that however it's much more dangerous to go running in the town as it is without announcing your presence than it is to knock at the door and have the people come it won't require them cockroaches no knock it was not a no knock warrant it what happened was they were approaching the house and paul the son was waiting to be picked up from work so he saw them coming he opened the door for them they immediately asked him who else is here he says my mom and her boyfriend are they prone to him out at gunpoint and then went charging into the house and encountered the plaintiff in their bedroom man this obviously was a this is a family home in lancaster or high desert and when they went in there was a young white man at the door and then there's a white couple in the master bedroom now they were certainly constitutionally allowed to go through the other rooms of the house and do what they call clearing it to see if there's other individuals they did that were not here because of that once they did that then they knew they were in the wrong house and that was done instantaneously i mean that's the first thing they did by the time they were ordering these people out of bed there was no legitimate reason for them to have caused this really egregious violation of privacy  was not the culmination of the search as one of the justices pointed out that was something that happened fairly early on and they went out in the start of the rest of the house they searched i believe there was a pool house they searched a garage before it was done so i think that the point was was aptly named that just because at some point during the search they encountered individuals of a different race i didn't necessarily mean that the case would be halted at that point you know i think that that is that that might have been a compelling argument forty five years ago in the deep south we lived in a segregated society but the fact is there could be different people of different races in the house and that was the uncontroverted evidence that was presented t district court which here at least point to which they do that they've made i think mistake with the whole shooting match i think it's when they clear the house and they came back and said you know i think we've got the it's not that they have the wrong house this is they had the right house at the wrong time it because there affidavit does talk about the steps that went through and and there was there was you know when you're surveilling suspected criminals if you if you leave someone parked in front of house for two weeks they're going to get the hint that something is going perfect world where we had an ending resources there could have been there's always more that could have been done but the the fact is that this is because we're talking about qualified immunity for sale signs out there for a long time there search for sales i had already been removed i think you're right that if they do you know that this it's the it's the nature of the uncontroverted record is that they indicate that the the people moved in the first week of september the death in there and she could do the same thing i'm not sure i would when they when i'm not sure exactly where they get where they say it will be you know here i'm not sure that's all that different than what was actually done i mean they said you know get out show with your hands the woman stood up think that there has i don't i'm not sure there's ever been a case it's been more amenable to summary judgment let me let me go back a little bit on first of all this this was not a gun case it was a case of that white place information when they saw him at another residence so what was the reasonable basis for believing that there was a gun at this residence i think that whenever you have an ongoing conspiracy like that w and there's multiple locations you're never sure who you're going to encounter at any given location i think it was just problems and i would i would agree with that if we had to live for a drug conspiracy if we had a like in that and i mean a case where it was a drive by shooting case we have people who are dangerous but at least and you can probably correctly i don't see things record that indicate that the police except for the registration of the firearm believed that the suspects the suspects nothing plaintiffs were dangerous i think that that was probably the be determining factor for that i'm sorry i don't see an indication that they were dangerous except for the gun so yes i would agree with the gun to a person who record does not indicate that they saw that person anywhere near this residence is enough to say we're we can go into your bedroom we think you have a gun under the sheets and therefore you've got to get case that's true but i you know i am not i would be reluctant as a as a the ninth circuit justice to issue a law that says there are different rules that apply depending on the type of case you're searching for there you can't invade privacy and only in the context of a search and franklin they think they the same situation well i agree with you but franklin is a completely a completely different case it could not be more different they used a they used a battering ram they pulled a clearly ill man out of bed they left him exposed on the couch with his genitals exposed for two hours right i agree what we're talking about just in the language of franklin says it talks about the where the unreasonable manner first fire removing a gravely ill and semi naked man from the sick bed without providing any clothing or covering that's the that's the first thing i say is the invasion of privacy now that's that's talking about degree explanation of what my concerns are so you can address right first of all i disagree with your premise that there is any sort of a contribution contrary fact at this point i believe that when you look at their briefs in our various we cited the same fact same law we have just come to completely different conclusions and the question is is this a constitutional violation and if so was it clearly established and if so was there or was there reasonable mistake you know when we talk about what franklin tells us it talks about overly prolonged overly intrusive searches if we had a case where they sat her on the couch for two hours naked i think yes clearly established you couldn't do that in france ok but when someone comes in executes a warrant and says ok show us your hands get dressed come out wait a minute we've got it we've got the wrong house immediately leaves i don't think you can say that franklin clearly establishes that that's a constitutional violation assuming it is which which i'm not convinced it is in fact i don't believe it you know when we when we talk about qualified immunity melly versus briggs the u s supreme court case talks about how it's designed to protect all but the plainly incompetent and those that knowingly violate the law this was not that type of case the officers did exactly what they were supposed to do once they realized that they had the suspect was not there they discontinue the search they apologized and left they did not toss the place there was no allegations of improper force or inappropriate sexual comments or harassment of any type this was the type of reasonable mistake the qualified immunity was designed to any nice especially where in a case like this the facts really aren't controverted there's nothing for a jury to decide here but you've got to you have to go to qualify to be the i thought you were talking that there was no constitutional violation here in the first place i gree that there was no constitutional violation in terms of the manner that he alleged two different types of  well if you ask me i think there's an undue invasion of privacy but i think that's for a jury to decide you know i think what i would be real i talked about how i would be reluctant to issue a holding that said you must immediately just continue a search whenever you see a person of a different race here when you knew that this one party had a gun registered in their name who well you know people who go around and shoot up other people and they have those little computers you run you can run they make out that they have any record you know i don't know him to be on today are there with that would probably have taken longer than the time they actually spent conducting the search i don't question the question is do you do you when one when the when the husband when the male says let me put a robe on on her and they say now then and you have no suspicion that point that there's a firearm in the bat and you seven in the morning there in the wrong house that tips it over into question off on frankly i'm not i'm not quarreling with you i'm just saying that the argument is  that it's not saying oh we have to call off the search we have to we have to issue a ruling like that no it says that once you become convinced that there's no firearm present or no danger then you have to take a little more reasonable methods and i don't know at that point and it's  i'm saying is when when you come up with an argument that says look when they went in there they look and there was an argument that when they saw a naked people when they saw naked people in the bed they should turn their backs on suspects which are they th that we would have to say i did all of a large room with hank police now that's the that's the argument is that the jury's entitle to to determine whether or not at that point their actions are reasonable i think that's the argument the problem with that is that there are no conflicting facts to resolve in this case the the facts are what they are i think the briefs read virtually identical it was on video tape all that everything tracks the we know the entries made it thirty seconds we know it minute two when the place is secured they're seated on the couch and at that point the video camera comes and they don't bring a video camera and when they're still clearing the house but once it's secure then they bring it in because they're going to videotape the search i mean this was a this was sort of a this is the by the book search and once they realized that something was wrong they immediately left and i think like i said we  this is as a matter of law under these uncontroverted facts are they entitled to qualified immunity and that's not a determination for the earth the two people in bed at night that they were told they were naked i think time when his car was observed at the other address that where they executed the search right so what gave them reason to believe that this guy was at this address and seven in the morning and if you're saying that it was a registered think i'm not i'm not sure how to how to answer you other it without reiterating what it is we've already been talking about for for twenty two minutes which is five times as long as the search took and that's something that we need to remember is it was it was such a rapidly evolving quick thing that we have spent you know months briefing and now thirty five minutes combined talking about and we were out of there in four five minutes so again this is like i said this is the type of reasonableness state that if you can grit qualified  y in this case you have completely got it there's nothing left the facts are in dispute it and we're talking about a minimally a minimally invasive surgery there's no evidence whatsoever of any excessive force sexual comments harassment there was there's no evidence of that it was embarrassing thing i grant you that the but the problem i mean their best argument and we're not the best argument i think is under franklin when they right to come in with guns you may have a right to search where you may have a right to come in the bedroom but once you understood that there was no gun in the bed and this and these people were not the suspects that you didn't have a right to order me out of pat naked that made the search on reasonable and ok but they were ordered out of bed before the entire house was cleared before the entire search with the entire clearing was completed so it's not like the clear difference it's a huge difference it's not like they clear the house and they said geez we got the wrong place ok get out of bed anyway it was in the middle of the search they said you know get a big show with your hands up their officers went on they searched the rest the house they searched the pool room or the pool house they searched the garage and then when they come back in the people are already be prepared to concede that i think that whenever you're executing a search for there's multiple parties in the house you've got to control the situation you never know what's going to be present what could be used for a weapon what sort of destruction of evidence  flights going to occur you take control of the situation to assemble them in a location where they can be observed and then you conduct your search they assembled everybody they realized they were not going to conduct a search here and they and they left so i don't just a huge stretch to say improper frankly describes a big litany of atrocities that you clearly cannot do ok this is absolutely on the other end of this spectrum i don't think when you look at franken you can say hey raid took place in mid december so it was about two and a half months that they had lived there in terms of the degree of exposure i think the best would be page eleven of of their brief female so they did have that available she did see mr brett lee while he was naked and in terms of their police records judge gregersen you asked about that a civilian employee of the united states department of defense you work out at one of those air bases and has a security clearance and no criminal record whatsoever mr adler works for some real estate company and she also has no criminal record whatsoever jase all the young man and it was seventeen and waiting to be picked up to go to high school thank you just one question i think the difficult difficult argument from your from your point for you with a diff is that you only have franklin right that's the only case you got and franklin is a marquis just case and that's what in franklin would you point us to to say that the law was clearly established that a brief order  read which was taken a detention conducted in connection with the search may be unreasonable if it involves an undue invasion of privacy i think putting an ellipsis in the right place has it read like that and so what is an undue invasion of privacy that is an invasion of privacy that is not outweighed by a countervailing governmental interest and here there was no governmental interest in ordering these people out of bed ordering out of bed is a very very serious invasion of privacy as just bigger some pointed out and exposing a spouse in front of another spouse gunpoint members of the opposite sex so that had to be outweighed by some countervailing governmental interest and here the person in bed was not tree line scott who had the thirty one year old black male who ha who has the registered weapon that they know about or they may be aware of that but they don't know they know that a person who has been at the house or house has a weapon they don't know where the why would be a reasonable for a police officer say well that's there may not have been aware it was the state at that point oh absolutely he was because they were all three that these were black suspects that's in the record that's absolutely clear they don't know that whether the black suspect is in the seconds to see who is in the house they asked chase hall when they encountered him at the door who's here my mom and her boyfriend are in bed in the master bedroom they go in the master bedroom it only takes a moment to who is down and take someone's word for who's they are going to look at the entire house any police officer with half a brain is not going to take their word they don't know who's in you know hiding somewhere so they've got to have some time to clear the house thank you very much you know the moral of this case is always wear your pajamas when you go to