defenders on behalf of mr harris i would like reserve three minutes of rebuttal if i may i thank you and here is serving a fifteen year sentence for illegally possessing a firearm the district court erred in denying consent to war list searches of his residence based upon reasonable suspicion was that it could be one of his probation that was a condition your honor why do we even have to look at the search for your car because the search warrant was the sole mechanism that law enforcement use to get into the house and to get to him while they i mean the facts are that the girlfriend came out of the house inform the police that you're quiet had a shotgun in the house and he meant to use it against the police isn't that reasonable suspicion to believe you have a weapon inside your i think the story has to begin a little further back than that well probation officer did seek to get a stay of arrests warrant and did seek a reasonable suspicion doesn't that create reasons this is suspicion necessary for a warrant was served because the officers did a search by him by setting up these flash bangs without having st seen whether or of it was part of the execution of the search warrant the law enforcement under the resident right they were outside they were there with the search warrant to execute the search warrant armed of that was the only reason that they were there detective why were they w fact that detective owens was tasked by his commander to go get the search warrant he said that they were in the process of getting an arrest warrant that time they did not have an arrest warrant yet but he goes at his direction of his commander to get a search warrant he's told by the strategic response team that he has to get a search warrant he doesn't need a search warrant he doesn't need an arrest warrant because he's allowed to have a warrantless search of the residence based on reasonable suspicion so ended up there because they intended to do something else i mean we look at the object of evidence or th amendment violations not subjective considerations and objectively did they violate the th amendment no they did your honor but the point is that law enforcement has nothing to verify that mr harris was actually in the house and why if they had seen him on the porch it's enter the house until the girlfriend said he was in the house and had a gun that's correct  nd could i go back just as just as a step here is i'm not so sure the the best analysis is to disregard both of the warrants at the time that they did these things at the house did they have an arrest at that point that is not clear from the record with the testimony that cited in the government's brief and i believe it was detective it was so sure a man said that he probably served mr that trooper allen probably served mr harris with both warrants house could they have arrested him for his probation violation absolutely they could have either done it as a because he violated and because the arrest warrant but that's not the case here even without the arrest warrant they they had information that he had violated his probation conditions is that right i mean like what i'm trying to figure out why did why were they interested in him to begin with his probation officer and found that he had violated terms of his probation by because there is a complaint in state court which mr harris had disclose to his probation office and then he had not shown up when the probation officer asked him to show up so he's in violation of the probation conditions so so he could be arrested for violating for the probate on the basis of reasonable suspicion because he had violated his conditions of probation had they seen him and know where he was with a certain amount side so they think that he's that his house but they we don't have probable cause to believe that he that house at this point that's why they go to his house and they do not go into his house but they set off flash things so i'm forgetting about all the warrants that kind of stuff the flash bangs or devices that make a big noise in the light outside the house is that it that's correct but i want to just direct the court that st they got on the loudspeaker and said come on now we know you're in there there was no response by anyone they didn't see curtains moving they didn't see any indication that he was in the house there was nothing to believe that he was holed up and there for all they knew he was in the house so then they  girl friend comes out in there with a gun that's correct and then they send your gas in to which mr harris comes out with you would you agree that this clearly reasonable suspicion it at the point where the girlfriend says he's in the house with a gun that's correct so so can't you can't use loudspeakers and set up flash bangs outside the house to try to get somebody out i am not aware or alternatively that says as you said earlier that it's a search but i think it's no i don't have any case to that your honor but i think that it's that arrest warrant allows you to go out and if you see the person you may arrest them a search warrant says if we see if we believe there is evidence at this property we can search it they did nothing to verify that mr harris himself was in the house that th all they believed was he might be living there and we have the search warrant and that's enough this gives law enforcement carte blanche to say we have an arrest warrant so we can search your friends your family your girlfriend your sister whoever this is not what an arrest warrant allows what they did was they took  step further and went to get a search warrant and that search warrant was riddled with misleading and false statements and the government does not contest that there are misleading and false statements and here we have a franks violation and the search warrant was the sole mechanism that law enforcement used house all we know from the record is the probation officer said that that's the house he was living at while under supervision so he could have been staying somewhere else but law enforcement and nothing to verify that he was staying there that he was living there there's nothing in the record say that the house was in his name but this isn't the kind of case where you're trying to figure out a way to get in a house to see of of a drug dealers there and has drugs this guy is obligated to tell the probation officer were he lives it's wrecked and if he moves he's got a tell that's correct and he had told her that he live someplace else so why is there any mystery about why they were it was reasonable for them to believe that that's where he lived his reason to believe that that was where he was living that's where he was staying the law enforcement has a duty to do if they're if if they are effectuating the arrest warrant or if they are using some reasonable suspicion because he is on probation they have a duty to find out that the person is actually in that house so they don't go in case and find nobody they could have waited outside for an hour around the straight look to see when he comes out to his car and wait for him on the porch they didn't do that they immediately go and what they're clearly trying to do is gain access to the house isn't about mr harris this is about them armed with a search warrant and only a search warrant to get into that house to try to get evidence and that's exactly what they were trying to arrest him but that was their purpose because the probation officer asserted and had evidence that he had violated his probation conditions specifically the probation officer told him to show up because of the state court matter and he doesn't show up which seems to be a pretty clear violation but the truth is the detective owens who was leading the operation said he had to get a search warrant to search warrant is that the mechanism here  they have been wrong about that and so the concern that i have is would it if we forget about the warrants and say maybe they're bad warrants could officers go to this house where the probation officer says he's supposed to be living because he said he was living there and the probation officer says he didn't show up when i told him to and he's admitted that there is the state court that are going against that proceeding and so they try to get him to come out by making a lot of noise is is there a case that says that is good bad or indifferent i am not aware of a case good or bad i just know that i verifying that he was in the house they weren't just there to arrest him they are armed with a search warrant they were clearly to execute that's how they're trying to verify he's in the house they're trying to lure him out in that what they are seeking by way of these loudspeakers and it seems so yes but then i can endure and say they were selling girl scout cookies sure they could do that as well as i see my time's running low i want to switch gears to the plea the district court committed plain error by improperly it vising mr harris as to the statutory penalties in this case and violated criminal rule eleven we all agree there is an error and that the error was obvious because the district court failed to advise him of the armed career criminal acts statutory penalties eyes that is st right he was advised to i mean he had say my time is up or your honor mr harris through the plea colloquy said the career criminal statute is off the table the district court did not rectify that did not say oh yes it is and there's a fifteen year mandatory minimum of the district court let  alone had the district or properly advised mr harris that the fifteen years was still in the table and he could be subject to it there's a reasonable belief that he would have gone to trial as he had previously and we think it's worth noting that at the pretrial before the trial and which in which  guilty he did say that he had been offered a seven year binding plea by the government and we believe that that goes to mr harris a state of mind that he believed the fifteen years didn't apply that he could get below the fifteen to go to seven and the distance that his desperate parents as advised by the district have please the court lauren tanner bradley for the united states i'd like to start out just quickly addressing some of the suppression issues just to clarify for the record and it is in the record that there was a probation violation arrest warrant that is that our seventy two to forty three dollars the probation file is also in the record i do not have a cite for that but this would have been listed as his residence it was the understanding of all the officers involved that this was his residence a probation officer was present to execute that warrant and i think that it is clear on these facts that a warrant was not required once mr hyde exited that residence and stated that mr harris was inside with a firearm before that at that point the officers would not have had well i guess i'm trying to understand the question exactly at the point of the flash bangs you said there was a probation violation arrest warrant correct i'm asking on the basis of the probation rest wore it would go into his house to get him to rest based on a reasonable suspicion that mr harris is inside and that they have warrantless means without a warrant correct and he's consented to searches without a warrant so whether there's a warning or not is correct and in this case the reason that they even went to go get the warrant had more to do it caspi policy than it had do with any requirement by law enforcement redundance for fraud so with a reasonable suspicion and the probation officer knowing that he had reported to the probation officer as demanded by the probation officer pending probation officer get the police to break down his door and arrest him in his home under those circumstances if they know him to be in his home i believe that no i didn't say they knew him to be and so they have reasonable suspicion that he might be there in this simple sense that he has told  probation officer that that's his place of abode my understanding of the facts they have no reason to know whether he is or isn't there and it is we don't know that it is only could be the girlfriend's home it could be some other friends yes i think that they could still going to pick lee these conditions allow that require to break down the door and go in if he doesn't answer the door i believe that they have reasonable suspicion to believe that he's in there and he himself in that sense is the contraband so yes whole question is can they enter with an arrest warrant without permission to come in the house if somebody that's that's an easy one but can they break somebodies can they break somebody else's door down to arrest somebody because they have reasonable suspicion they're in the house i suspect the answer to that is no but i don't know and i suspect that's why they were set is setting off flash bangs and and using love speakers and a lot otherwise you just well i think that under these circumstances they are in a position where they're quite frankly afraid of this individual and they're trying to create the safest situation possible and i suppose going  breaking down anyone's door soon certainly wouldn't be something that they could do but they could certainly approach the door knock on it and and execute that warrant once they see him in fact had the police officers i don't have case law specifically  somebody is the door so how does that help i think that what the officers did in this instance was permissible under the th amendment based on with a based on the conduct that they engaged and if someone from the general public went outside and made lots of noise and it elicited a response that would be that would be something that could be done and so here with the police officer did is something that someone from the general public could engage and we talked about the facts of this case yes didn't come out of the house yes no he did not come out of the house just to see what was going on but i think you know that if you hadn't gas me it's a good thing you gassed me because otherwise would have yes those are the facts of this case and that would certainly support reason a lot of the house that's when they we that under the facts of this case mr hyde comes out makes these statements and the officers at that point shoot your gas mr harris comes out tells them where the firearm is and they go into the house and find it at that point and there certainly was no warrant required there's a reason that's a legitimate reason that causes this hides to come out of the house if you're going to rely on this saying oh he's in there and he's got a fire you have to have a reason why she's coming out of the house and if she were just you know what if you were pretending if you had the police pretending to be selling girl scout cookies and they knocked at the door and high job and the door and pretend girl scout says hey of harrison there and she said yes and he has a gun that's one thing but that isn't what happened here you are relying in essence on the fact that the probation officer has reasonable suspicion that harris has violated probation conditions and has reasonable suspicion that harris uses this residence as his place of abode because it is listed with the probation officer as by harris as his residence i don't know what the exact language was so correct me with but as where he lives i guess correct so i  was interested in whether that alone is enough for the probation officer to send the police to arrest him if they don't know that he's at his house about time and the way they chose to arrest him was not to knock on the door and see if he opened it and then say aha were resting i thought there were limits as to when police officers can go into someone's house to arrest them without a warrant to arrest us but maybe you know you're saying maybe that that idea of mine is wrong which would obviously confined cases one way or the other and i have not researched that specifically but i would also argue that having reasonable suspicion to believe that someone on probation is inside the house and who you have a probation violation arrest warrant for someone his family their remarkable suspicion to believe someone is in the house if they give the house as their residence is that right like i'm not at my house today would they have reasonable suspicion to think i'm at my house i've given it as a residence listing for wherever and you're an individual who's on probation who's failing to report yes i believe that the that arises just reasonable suspicion they can go inside the house that i based on the facts of this case i think it is a very clear issue and yes i would be happy to address that under these circumstances this court needs to look at the entire record doing so it is very clear to research the issue at the suppression hearing mr harris raise the issue himself asking the court if he would be an armed career criminal during the st three arraignment it was correctly advised of all the penalties in this case there was a l discussion mr harris says i always wanted to plead he was afraid of the life sentence that is his own term the his own language and he still pleads anyways he receives a p s r after that point that's at o whether his criminal history meets the requirements of a c c a there's a motion hearing where his defense counsel stayed on the record i have been laboring for hours and hours and hours trying to find a non frivolous workable argument as to why it does not apply this is something that the prosecution also addressed it was addressed at link in his nd motion to withdraw the plea he references the a c c a during his competency hearing he specifically mentions that the p s r references a twenty four year and ten month guidelines range during the nd during the nd reading rearrangement the court actually directs his attention to the penalties page advises him by not stating fifteen years to life but i state the a c c i might apply this could lead to greater penalties he says the career criminal is off the table the court says i can't make you any promises about what i don't know if you're a career criminal or not she later says i don't know whether it applies or not if i applied it and you think it's wrong you could appeal that do you want to plead guilty yes let's do it he knew these are terms of art that we were using but they were terms of art the mr harris fully understood the parties had discussed ad nauseum ideally we would have stated the exact penalty range but parties i think took for granted what this would look like on a record and took for granted that it might be looked at as a blank slate which is why i'm asking this court you cannot look at this on a blank slate you have to consider the entire record here i'd also just say that mr harris benefited greatly from the simply there was reference to the seven year binding plea agreement that was rejected by mr harris that is in the record it was rejected because he wanted to appeal his suppression issue and if you look at all of these hearings holistically it becomes very clear that mr harris wanted to appeal the suppression issue that was his issue with this case he did not like how that firing with the taint and that is what he wanted to just really isn't true and it's not borne out by the facts but as to the suppression issue being on probation is not carte blanche to have your person or your house searched whenever anybody wants the government the law enforcement has to show some sort of reasonable suspicion and mr harris had contraband on the property to justify us or warrantless search or that he was at that property to justify taking him into custody for his violation the government did nothing in this case to verify that he was at this property and i believe that normally i think the court up to standards i think the standards are important that normally a warrantless arrests can be done by initiates a finding probably cause but because he was on probation there is still a need that there is reasonable suspicion that the law enforcement took no actions to verify that mr mr harris was at that house in fact detective owens own testimony says well i was told to get a warrant before that i went to the house i couldn't find anyone there i went back and got the warrant and when i got the warrant we all came back he was driving a bobcat or something like that with a number of other law enforcement officers we made announcements over the loudspeaker no one responded was no response at all and to me that you're that you may be conflating a couple different things here the ability to enter the house under the terms of probation is accompanied by this question a reasonable suspicion but where does the duty arise in your estimation to have reasonable suspicion that he's at the house before you approach the house to try to find out if he's in there they can do warrantless search with reasonable suspicion to believe that there is contraband although i'm not i'm not at the search brecht you seem to be saying dollars time you're saying that the flash bangs in the loudspeaker are a surge doesn't seem to be any authority for that you seem to be saying they had to verify that he was at the house before they can do the things that they did weird is reasonable suspicion become a requirement in order to go to the house to see if he's there you are believe we all have a th man and protection to be free from unreasonable searches and seizures i believe that under that the law enforcement has a duty to make sure that if they are executing an arrest warrant for a specific person that their lease be a reasonable suspicion that that person is there at that time they can't go back and say well we have reasonable suspicion that you're these nine houses agreed earlier that they could walk up and knock on the door and see if he answered absolutely absolutely could have knocked up and walked in that they could not you don't have to have reasonable suspicion to do a knock and talk you know but i believe that when they have to have reasonable suspicion to actually enter when law enforcement takes a step further and operates flash bangs which is you can be dangerous and it is hazardous and that is something that goes enforcement took it a step further took it too far without verifying that mr harris was in the house you know it but that it was a sort order you're just making it up as you go along you think maybe that should be the policy of your arm i believe that's a reasonable interpretation the  mature fun to you haven't found any authority i have not i have not your honor so that would show that we making time for us i believe that's true and we asked the court to find that make that finding and