panels in some manner the intruder broke the glass and to the garage and then entered a secondary door into the problem part of the shop its home intruder made their way up the stairs carol sh noise glass breaking on the rear door and she had exited the master bedroom across the top of the stairs and looked into where a guest of the shadows rachel allen's had been sleeping in the spare bedroom seeing that nothing was wrong with mrs owens at that time finished coming up the stairs and headed directly to the room that mrs shabbat had taken refuge and she had managed to block the door with a chair from a desk that was inside that bedroom and hidden beneath the desk the intruder proceeded to try to kick the door in leaving footprints on the door mon foresman specifically focused on him from the outset they sent a law enforcement and main contact of law enforcement into hampshire and asked that mon course manassas be sent to the owns home on liquid drive in londonderry to see if mr owens was home local law enforcement in new hampshire was instructed that under no circumstance were they to make contact directly with mr owens law enforcement parked at the end of winter drive and made their way quietly in the cover of night drive across mr owens lawn into the driveway of his home they specifically chose that route and chose to park their vehicle at the end of the road so as not to be seeing them detected again their purpose was to see if mr owens was home and not to make contact with them to tell him what had happened to his wife a law enforcement officer officer dire approached across the yard into the driveway of the allens home and touch the hood of the vehicle the defense maintains that that vehicle was warm was certainly evidence that was used against him it's listed all through the search warrant affidavit that was introduced at trial to show that he had been out and about away from his home on the evening that morning and question this when you are sure of the girl is that that is exactly no you're on i don't believe so and the reason i say that is what is in part because of the timing of how this all unfolded on the morning in question the nine one one call came in at just before three am law enforcement and they made contact with law enforcement in your hampshire at approximately four fifteen or fo twenty in the morning it was not over an hour later that the officers approached mr owens home so to the extent they believed he was a suspect and they wanted to search his vehicle they had ample time during which to get a warrant so the texas exigency that you talk of  is not as critical in this particular case as it may have been it wasn't discovered by accident they didn't stumble on mr holland's home by accident they had ample time in which to plan their approach the house and game the search warrant that you speak of well let's leave that for a particular factors to look at in terms of assisting the court in determining whether or not a particular place is curtilage however the court and dunn clearly said that those are not the only four issues that can be looked at and that the overarching  issue is how intimately the area to be searched or to be accessed is tied to the home itself here the area where the vehicle was parked was approximately ten feet or so well from the actual garage door and which they didn't drive away in the dr on a dead end street you can also see from the pictures particularly the want on page twenty eight twelve of the exhibit that i believe is exhibit number defense marks defense exhibit four it's page twenty eight twelve you see in front of the specifically made the approach he did because he could use those trees and bushes as cover and they would protect him from being seen from the front door additionally the fact that it's a dead end street is also a fact that the court actually failed to place enough  for a number of reasons first that information regarding the search that occurred in the driveway was used in multiple search warrants that were signed to allow law enforcement to search mr owens car which found the boots that were compared with the blueprint that you speak of it allow them to take a d n a sample from him that was compared with d n a that was found in the garage area however there was also evidence introduced mr owens had been to the shop at home or he and rachel owens had been friends of theirs and they had visited that home so the fact that his d n a was present in the home in and of itself i would submit has less significance in this particular case that it may in some other cases the search warrant affidavits that the information about the temperature of the motor vehicle was used and also used to access is computer so there's a significant amount of taint to the other evidence that flows from that initial search the fact that the other information was introduced at trial i think subsequently dismissed and it's no longer pending and didn't result in a  to sume that there was a constitutional violation number one you'd have to excise that allegation of the warmth of the car from the one of the affidavit at the time and whether there was probable cause without that allegation and number two you have to determine whether admission of the evidence about mr owens had said that he that he was that he had nine millimeter firearms and in fact he said that he had driven two and it was understood that he had driven  two so going back to touching the hood of the car and after the officer did that that officer then retreated back to the cruiser i believe that's what happened and then would need to confirm but i believe that's the case yes so i believe that they went back to it at the ad where they were stationed at the end of the street so i went up touch the vehicle went back there and then after he left i think they followed him and at the other house so there was protection against public hearing and it was and the area that went up to the the part of the driveway that connected to the front walkway was prior to that area that had been closed so that's a very different situation from a driveway where you have a short driveway that has and your part in the area or in the area that one must go through you know where to get to the front steps so there's going to be people in and out there's an expectation that people will walk through that area it's perfectly viewable from the street there's nothing protecting it and that is a very different from the current situation so i think that there are situations where a driveway is part of the code which here all the factors all the context sign it could be a bush is it could be trees anything that protects that area from the public and all of those factors here so i mean this is there was there was nature protection on three sides of the house and the only  few trees around the side of the house that brought the deal from that area but if you remember any member of the public walking down the street sees the driveway right there in fact the next the neighbor right across the street at the front door can see the driveway right there there's no nothing spark taking it there's nothing there's nothing suggesting that that is an intimate part of the house that's really that's where the inquiry for credit which is this part of the house part of the usage of the house or is it just something that's open to the public that's part of the open evidence is that that is the wrong way to approach the front door is through the drive and so one would expect that people of the members of public are going to go into that area and there's nothing saying don't come the particular circumstances of this case again there wasn't that wasn't here in all of the factors we believe the district got it correctly and determined that it wasn't curtilage but again even if you assume that it was code orange and there was a fourth and then intrusion then we also evidence at trial were godless of whether this notion of touching the car and it being one was introduced thank you  you just briefly to address your point chief judge howard about what happened after officer dyer retreated from the property he returned to the end of winter drive stationary and exchanged information back with his commanding officers who told maine what had been found home if you look at i think it's the photograph on page twenty eight twelve of the appendix you see the driveway at the front of the hall where the evidence collection get all parked and there is a walkway after you take a couple of steps into the driveway that there is off to the right