america versus michael holmes mr lang's is here for holmes and this krigsman is here for the united states morning and i am pleased the court this case is about the fourth amendment and i think the most difficult question to answer is where even to  i hope it's my intent that i deftly leave two points of contention with this court first i think the record really developed in this matter there was a number of briefing there was the evidence you're hearing there was effectively the supplemental appointing of my office the federal defender's office as well to be consistent and to try to succinctly answer your honor's question the one material fact that seems to be the contention here is whether the gate was partially open or a jar  it you admit to place that material fact that you didn't this is in terms of mr holmes there wasn't an ns to submit affirmative evidence i should you qualify that yellow holes argument that this issue is in contention but an unrefuted factual record to support the district court's determination that the gate was open throughout the state of the record i'm going to use the word an rebut it so there were three witnesses who testified tompkins in this case is the only individual who to the best of his memory his recollection says that he recalls the gate on december twenty nine back in tw was not all the way open it was not all the way closed when given the question was the gate partially ajar he has answer was yes sir mr court made a factual determination based on the testimony of those three witnesses that the gate was open so how can we on review declare that to be clearly erroneous and overturn i'll clarify one witness the other two witnesses could not support that you have to look at detective type and sell it page sixty at the transcript that's the particular area where he is able to do give a degree in terms of the fact which lends itself to the contention here in terms of what the we find fault with what the district court did in this case is we take the position that the district court sad or made a finding that this one material fact was fatal in terms of trying to formulate a bright line rule to balance the interest in law enforcement the home owners to say because the gate was a jar that in fact makes mr holmes lose this particular case the fourth and i'm just trying to establish whether or not there was an erroneous finding of fact that the gate was ajar or open and i hear argument but i just don't see a basis for us to declare clear error as to that factual fire and i agree your honor and i'm walking that fine line and i'm just simply trying to be consistent with what the record has there detective times testified the gate was partially open we did not affirmatively introduce any evidence in terms of the evidence or hearing to overcome that ideally in a in a textbook world could i say meaning that this court has that factual findings of the review yes i would love to have the case go back down if this is a material component in terms of the analysis to further elucidate or investigate that particular fact but the specific answer to that question is no we don't have anything there my legal objection just as a matter of consistency is to say our contention was the gate was closed on that day but we don't have evidence to support that have been detected happens is the one person who  which segue i'm sorry yes your honor as i understand the record the first time that the confidential informant informant approached the residence the gate was closed is that what the record says yes so the earth is there should we attribute any significance to the fact that when law enforcement for its first a pro choice this residence there was a different situation in terms of the game i would because when we look to fourth amendment jurisprudence the supreme court says that the analysis is reasonable ness we have to look to the totality of circumstances and i think in finding fault if i can with what the district court tried to do was formulate this bright line rule in which it says well if there is a fence w a no trespassing sign and the gate is closed we went and i think this is a this is a difficult situation because we're supposed to look at how a member of the public would view this residence whether it's ok to come in or not but in the case of law or law enforcement they might make multiple attempts as they did in this case and in applying the reasonable person standard can we can or the fact that law enforcement encountered a different situation when they first approach because of course law enforcement unlike a girl scout or somebody approaching the door might make multiple attempts and on some of those attempts might find the gate unlocked or or open which goes to the reasonableness of the fourth member jurisprudence in any particular situation don't i think that's our contention your honor to just to try to get to the heart of your question is what the district court here did as a de facto matter was formulate a bright line rule applied that rule against what should have been applied i e a totality of circumstance analysis which should mean that yes we look to i would suggest the overall investigation of what law enforcement did meaning in this case chronologically we have a complaint drugs are being sold out of this house we have a first attempt with a c i in which the gate is closed we have a second attempt in which the testimony as far as i can read from the transcript the c i broached the gate we don't have any testimony as to whether the gate was open or closed on the second attempt but that person went to the front door and was rebuffed again we have a third approach by a law enforcement in which again we don't have testimony as to whether the gate was open or closed on the on the first knock on top will say and then ultimately we get to the fourth time to approach the home this december twenty ninth date in which to have to thompson says will recall the gate being slightly ajar if you will that goes to the of circumstances in terms of approaching whether or not a reasonable respectful citizen has in a taishan or an implied imitation to approach the front door our position is when we look at all the surrounding circumstances in this residence this home in terms of what we're presented specifically as to the knock and talk in this case any implied license any implied invitation to come to that front door it wasn't there you have what i understand what your position is but what's your best authority to support that we should look at those multiple attempts in informing our totality of circumstances i would suggest hardiness and then jones and in the cases that flow from that i think the tennessee case the christians in terms of following what is required in terms of the totality of circumstance case our from our contention is that what the district court did here is when it looked to the various factors it essentially said well i'm going to effectively exclude this particular factor from my analysis i'm going to include this one particular material fact that's a significant to my analysis but i'm going to give  everything else that comes to play in this instance and so our position is that if one we apply it to a challenge analysis properly at the end of the day mr holmes should win this case so your argument is that the combination of a close gate and the signs would lead to the conclusion that a reasonable person should not enter as factors pacific to this particular case yes in terms of what the court has on the record before it and light of all the surrounding circumstances in this instance the police simply did not have any implied license or any implied imitation approached the front door what about the fact that the front door was visible through the screened in porch and the locks blocked and a factor to consider you here you have a residential where can we say that there's an express invitation or even for that matter an implied imitation to approach the front door and there any evidence in the record from the evidence you're hearing that you were client ordered any of the confidential informants off the court because they were trespassing i see my time is up around if it's ok i can answer that question for you in terms of any evidence no not one way or the other there was never any i have evidence to show or establish what happened between the can morning your honor should we krigsman for the united states may please the court when detectives tompkins and you aren't walk through an open gate in broad daylight and took the direct path to michael holmes front door they did so because the habits of the country a societal convention deems it perfectly acceptable to approach a home speak with the uk knock on the door speak with the occupants and absent an invitation to stay longer to leave and nothing that michael holme dog in the front yard garage boarded a no doorbell what more does he have what would he have to do in order to express lee revoked and implied license to knock yes you are and if i could address that in a couple different steps first of all if we start in of course in this circuit the our president our guiding president is taylor and taylor tells us that a fence with a closed gate is not enough to revoke the implied license so if we start with that premise and then we leave we look to what the district court did below and considering all these other factors that your honor has mentioned for instance the dog and the burglar bars in the variety of  none of these combined unambiguously to revoke the implied license and particular with respect to the signs your honor because i think the district court after considering a number of these factors sort of hone down hone down his analysis and correct that is correct but in reaching that holding your honor the court referred to and relied on the ninth circuit decision in united states davis that said absent expressed orders to the contrary the police may else would he have to do well yes sure as we briefed and as the district court referred to in his order there are two obvious ways that have been recognized in various cases that have dealt with this issue the one is when he was amassing all this construction material on the side of his yard and buying the four other signs that he posted on the fence in front of the side yard he could have purchased a five dollars padlock and put that on the gate leading to the main gate leading to the front of the house that would have been an express revocation of the implied license police officers cannot jump over a locked fence we accept that as a violation of fourth amendment and or and particularly in the middle district of florida there's can tonic case on that point he also could have expressly told visitors not to approach trespassing signs do not mean that individuals cannot approach the front door to knock on the front door no trespassing signs are directed at trespassers trespassing is understood to be an authorized unlicensed use of the property for one's own purposes when we have this implied license that it's been that justice scalia said is formed as a result of the habits of the country we we need express orders to revoke that implied license and a much closer case for sure and the question iraq does arise if whether a sign in and of itself can revoke the implied license i don't think that any court has resolved that affirmatively one way or the other but that keep out is clearly a more expressed command order than no trespassing keep out would be a more would apply to a broader range of visitors it wouldn't apply to simply trespassers and it might i don't know but in this case that this court need not decide that because of course there wasn't a keep out sign and there weren't any signs even any signs instructing visitors to stay away that were posted on the main path to the front door so we have layer that we have in this case instead of having express orders revoking this default setting the implied license we have layer of ambiguity ambiguity upon layer of ambiguity we have ambiguous signs posted in an ambiguous manner and we have an open gate and i think i'd like to correct the record i think i may have heard appellants counsel that the gate had been closed for both of the c i visits and the record establishes in fact that in the december third visit and that's doc thirty seven at sixteen and seventeen that the main  the officers had not been told to leave the property and there is some testimony in the record at docs thirty seven seventeenth and fifty eight and then pages one hundred and one hundred twenty eight indicating that when the officers d briefed the c i they talked to the cia about what had happened and it was the officers understanding detective tompkins understanding that the conversation had been brief and that that mr holme become leery because of the conversation about drugs not because he had told them to leave the property limit let me ask you the question and i asked mr lang's what is the significance if any legally to these cryer attempts by law enforcement to reach the door yes you are that goes to the ambiguity that the officers faced on december twenty ninth when they when they made their successful knock on top because they had been present on these other occasions and because on december third they had seen the gate open and then on december twenty ninth they see the gate open again this clearly indicates to them as reasonable place officers that michael holmes is not making efforts to keep people categorically excluded from the approach to his front door so this is again adds to the ambiguity that a reasonable person would have perceived if they had visited michael holmes house so i that's one way he could have revoked it there and there may be instances where a court determines that a different combination of signage or a different message on signage would revoke but here we don't have that on this and on the facts of this case he needed to affix that gate in a closed setting and not allow people to come through it because a chain link chain link fence in a residential setting just doesn't tell people categorically you can't come up to my porch and leave a package you can't come and return my dog who's escaped out of the open gate or guess the question is whether or not the chain link fence in conjunction with everything else road trespassing signs were of dog  and i think the problem with that your honor is that the tell of the of these circumstances they don't unambiguously and clearly and categorically bar visitors because the gate is open and the signs are clustered on the right side of the house there's not a single sign posted on the front on the long stretch of lawn directly in front of the house and the in the facts the record shows that there was this construction project going on on the side of the house with piles of lumber so a reasonable person coming to this property would not have interpreted the bear where a dog sign which was the only sign on the main gate to the entry as prohibiting them from walking to the front door and knocking on the front door for the many reasons that people knock on a front door they would have reasonably concluded that if those signs meant anything the no trespassing signs it meant that they can't they couldn't trespass on to that side yard for their own purposes so so it is your position here that that notwithstanding all the factors that question are are you saying that we should not declare as a matter of law on this record that holmes  to enter and a no trespassing sign does not mean that individuals cannot approach the front door you've argued that the the no trespassing sign is ambiguous that the sign should have been in front of the door that maybe the sign should have been on the path to the house instead of on the fence how does this provide any rule that law enforcement and people who want to are folks coming to their door can follow yes your honor i understand your question  and this is a constant struggle any sport amendment cases and i was in preparation for the argument i was reading a number of them and clearly the courts want to devise a categorical rule whenever they can to help police officers and citizens who are citizens citizenry but it also became apparent to me when i was reading these cases that the struggle particularly the fourth amendment context is big because you have this concept of reasonableness and you have all the different circumstances that arise the infinite range of circumstances that arise when a police officer is potentially involved in a fourth amendment situation it is very very hard to come up with a categorical rule that is not over broad and it's over generalizes so in most cases at least come my review most cases the courts defer to the totality of the circumstances test and i think in fact last term the supreme court in the collins versus virginia case  rejected for genius attempt to fashion a categorical rule about approaching about entering garages based on the automobile exception and the court specifically said there no we're not going to fashion a categorical rule in this case so it's certainly desirable to have a categorical rule one can be formed the best the district court judge said here in these cases little itty bitty facts make a difference and they make a difference to those police officers who are on the street and making quick judgments and certainly and also in the context important know this is not can talk this is a consensual encounter so the invasion of privacy is very limited here it's a limited acceptable intrusion that has developed and it is implied license has developed from the habs to the country so because it's a consensual encounter in the first instance that the concern it's really let me look at it in a slightly different light than we look at it in terms of executing a search warrant in a home arresting an individual in the home like did that answer your question want to try to distinguish i e the taylor case from this court the facts of that case i think are distinguishable from this particular instance there you had nine one one calls you had three hang ups and that particular opinion i think the language was we would expect the police to have been derelict in his duty at that hadn't least investigated the nine one one call in that case which lens and so he took that hypothetical if police were responding to a nine one one hang up call at this address and the gate was closed would the officers be permitted to enter the property if the case closed the exit in circumstances certainly if you are investigating in terms of a hypothetical something serious inside someone's being attacked this child is being abused there's something going themselves do not generally rise to the level of a search that implicates fourth amendment issues but not in talks obviously have to follow fourth amendment jurisprudence in the sense to answer just wilson's earlier question all mr holmes had to say as soon as he realized the police were at the door was get off my porch i don't want to talk to you that's a retroactive answer in terms of our position because by the time the police were at his front door they had already committed a trust past they had already violated the fourth amendment and at that point in terms of dirt if you wanted to make clear that he was revoking any authority to enter the property that would be the answer to such wilson's question would it not get off my court i think as a practical matter sure if for that matter in this case if if i might grab my copy of said i'm looking at page eighty five of the transcript on this is at the end of recross he had undergone direct cross and redirect in the recross he was asked quote mr hall had mr holmes told you to leave and said quote there's no trespassing signs here you wouldn't have left was the question posed to detective tompkins and his answer was quote honestly sir i don't know if he asked me to i have a legal obligation if i'm not able to validate his information if you just open the door and said quote no trespassing sign you have to leave i would ask him at least may i have i have to identify who he is so i take that answer to mean that just have to what are you going to leave so even had mr holmes in this particular instance said hey get off my property and i think the detective just said well i still have to go forward and validate what i want to do and i'm not going to listen that's rather than answer the question as to how the doctrine of implied consent can be revoked under these circumstances in light of all the surrounding circumstances i come back to the notion of reasonableness here you have a residential house in an urban setting small boarded up porch you have mesh screen you have a lattice that covers the front door you've got the front door we don't know whether or not that was locked burglar doors absence a doorbell the chain link fence the gate the truck blocking the driveway the signs four of them be where a dog which can ordinarily denote hey come on my property are subject to attack by my guard dog private property all of the other factors that i think that the district court judge in this case gave a little w suggest or at least to me on equivocally and expressly say i don't want you coming on my property and fianna matter even though the supreme court has said that knock and talks are constitutional and that the officers have a right to knock on the go if they don't commit a least knock on the guy your says they can enter and run a canine dog around or heat sensors like an kilo or things of that nature but that had they just gone to the door and knocked under the constitution that's reasonable knock and talks are perfectly fine it's an investigatory tool it's a consensual encounter it means with fourth amendment jurisprudence but the totality of the case or the circumstances of this case tell us that the police were barred from event coming out of the property out in this case when we look at all the surrounding circumstances you have the mailbox out front the outside of the gate you had the trash cans out front they could have very well done trash balls they had three prior attempts and in terms of approaching the house in this particular case when we look at the pictures in this matter all of it suggests that as the judge found in footnote thirty that many of the barriers used by holmes might well be tour girl scouts trick or treaters or anyone who has a casual interest in visiting to me that's the reasonable respectful citizen even the district court said mr holmes did in this case expressly revoked any implied license to approach is front door we'd ask for a reversal in this particular case thank you your honor all right thank you counsel