in the central district of california as a result of what happened in the district of nevada i first like to indicate that this case is clearly distinguishable from sampson mr justice thomas was writing about a circumstance where we were dealing with parole scores of where there's no federal parole so we're not concerned with parole there was no federal parole of the time of this incident in the sampson case there was a california statute that required a waiver of privileges on the fourth amendment that every parolee in california was required to agree to a search clause it wasn't intended by judge ray that klein be subject to a search clause and he was on an illegal probationary sentence at the time i would respectfully submit to your honor's that there is no way that any enforcement of described as a ceremonial sword they didn't arrest him they didn't mirandize him and then they proceeded to enter areas in his home that were outside of the gravity area as defined by channel so my position most respectfully would be that that  juncture they had violated his rights rick because of the fact that we believe one sentence under which they were searching was void and secondly even assuming argue well that somehow it was a legal sentence they had coerced him follow up on judge fletcher's questioning i do with you that sampson would be distinguished because we're really looking there at i think that with parolees and this is a probationer but you can do you agree that under nights you can search the a probationer if there's reasonable suspicion i think you can search those areas that would present danger to the officers  or with reasonable suspicion was not engender by the viewing or inflated view of what they call ceremonial which others might describe as decorative there was no indication that there was contraband per se or real dangerous weapons meaning firearms within the dominion or control of the area in which mr klein was in but once they have reasonable suspicion doesn't that enable them to search more than just the area a search incident to an arrest for purposes of officer safety we can sort of internal check things within the immediate immediate area of this from the grab area i think was the phrase that you used ok was the drawer within the grab area i was how far away wasn't it was it was outside of the reach of the defendant well how far was outside of the reach i've i would be misspeaking if i told you your honor but i think it's in the record and i think it's clear that they didn't w concerned about their safety because they had handcuffed him i what i would like to say one thing to you your honor all of these arguments about what probation officers could have done if you accept my initial argument which is that he should have been on probation there shouldn't be any probation officers in this house and i understand that calls for a conclusion which is similar to the conclusion that turner court reached in the second circuit where they had a visiting eight circuit judge so you have the opinions basically two circuits and which they say quite clearly you can violate some of these conditions on probation if they're illegally on probation in this case he's illegally on probation how can you then allow probation officers to go to someone's house i would agree with you judge fletcher if you were on probation they could come to your house but if you're not supposed to be on probation and it's void as a matter of law then the actions of those officers and being there are illegal and everything that follows after that as a result of the initial galaxy which going back to what i just heard it's all a consequence of mr klein never having any representation at critical stages and i'm the one who read the was illegal the correction of it was illegal the lack of counsel was illegal all of those actions were illegal actions and i think it's important that a court like the ninth circuit step in and say if courts within our jurisdiction central district and district of nevada are subjecting an individual like mr kline to severe consequences as a result of that illegality and there are he's doing seventy months in prison as a result of the search that occurred on the illegal probation that he was on like i guess i understand your position on the question of reasonable suspicion there was the sword and there had two probation officers going through my possessions and haven't had a problem in over a year and all the sudden there in my house that can create anxiety not that doesn't rise to the level of creating a not my position as it is is this your honour's the ninth circuit has to say one sentence is a legal it's illegal and the consequences that flow from that are that there can be no consequences adverse to a district court with direction that he was not on probation and well but that that would be the ice making a determination that as a matter of law is not on probation thought it would have to be in the context of the suppression but that's the way that's the only vehicle by which i saw that i could bring this i did tell mr client what problems i saw and i think that's wh got him to seek out counsel to do the core novus but i was stuck with my case and did it the best way that i saw said and to be quite honest your honor it's ironic that this procedural question is stopping mr kline from getting relief when it's a technical violation and the jurist and the jurisdiction of violation that he's not getting the benefit of he's getting the burden of procedure without the benefit of it and it seems the choice of either remaining in nevada or going back to california most research we don't have as time i checked the judges in nevada made that decision not mr ellis that's why mr klein should have had a hearing in front of a judge with counsel and a federal judge in las vegas would have decided whether in the unique circumstances of mr client's case he was going to impose a search was mr ellis was making a pronouncement the most respectfully i would argue vehemently against if they try to do it the one of my clients with my knowledge i go in front of an article three judg i say judge ray didn't want this and why should he have it he's a successful businessman he's been here he's working and i think you argument i might lose at that point in time judge pro or judge george or judge jones might say mr  morning may please the court my name is patrick walsh and i represent the united states there are three ways this court can affirm the decision below denying the motion to suppress first they can agree with the district court that they to review the sentence of probation and that there was a valid search condition and the search occurred during pursuit of that search condition the second way is that this court could find that the defendant was on probation  error that the exclusionary rule in the united states versus leon should apply and the evidence in this case should not be suppressed because both the probation officers and the a t f agent that stuff the search warrant acted under good faith belief and a reasonable propped up next to the fence but it wasn't in some display case the officers described it as a dangerous weapon and when they sought they merely said to the defendant that is a dangerous weapon and as a condition of his probation he was not allowed to have it and  have sharpened blades although they're very heavy and do have a tip that certainly would be would be dangerous to have any clue as to whether this had a lot of sharpened blade or not there's no evidence in the record there's a photograph of it that shows that it  refusal to answer stalling in combination with the sport of words around the room as if i wonder if their weapons that i have here are visible you know and the officers then reached out into areas that were within his gras officers were in the way so he it was well within his grasp area and the first first door open revealed what they thought was what could be construed as drug paraphernalia the the other door contained a high capacity magazine this is a large magazine there's a photograph in the record with point two two three caliber ammunition in it you know when you see the magazine and you wonder where's the gun because he was it was our contention that the officers the probable cause to arrest the before they open the doors under duress i don't believe the magistrate judge relied on that the facts that she put forth supported the testimony of probation officer ellis who when you look at the top the entire circumstances even klein admitted that officer ellis was pleasant to him otherwise than when he came to his business that he didn't announce to his employees that was on probation they did a very quiet respectful way officer also testified that he had a couple problems with mr klein but that he was able to resolve those with mr klein without going to the court duress that was his testimony not the officer stuff on credit that he would write that under duress and then they have another form which you know they care about that when you go with this one he judge to determine so that it is really no big deal to him if it has to go to a hearing or not they will question and i don't think it's improper either for the nevada judges and the nevada probation officers to want such a condition  was no hearing there was no hearing but the waiver then of course goes before the judge so and again in that waiver when you're to determining whether the waiver was voluntary you need to look at the language in the written waiver which tells mr klein he has the right duress is not credible so kline also testified that he or he again for the first time never mentioned before that they asked him to do a different waiver a waiver allowing him to be drug tested and he refused because he didn't feel drug testing was necessary and he there's no explanation why he felt comfortable with that one and yet not comfortable with the i felt course to sign the other allowed for the set was a violation if there was dangerous weapons and so when the officers went into the home they didn't do a search they just they came in saying i've never been to your home before although other officers had visits and not searches of the home but home imposed by judge wright so therefore once they saw that he would have their probable cause to violate the conditions of his probation they came even further when he did refuse to answer the questions about other weapons that made these for the looks around them probable cause to arrest him rule thirty two point one was in effect that requires a hearing that requires the police an officer to advise the individual that he's entitled to counsel none of those things occurred in this case they're not waiver call us they're not they're not house with the illegal probation in effect the question you asked judge fletcher can they justify this search they saw the ceremonial sword they then went into areas they had no rights to search incident to arrest because obviously they don't go beyond that they go beyond the with the doors what triggers right calling a temple that's where they at that point i think at that point they stop i mean they didn't they didn't start rummaging through closets or anything else they went to the drawer of the house that we have testimony according to the government and i don't nobody disputes this that with three to five three to five feet