officer understand that someone could can come into their home and have the weapons seized and then you know the record is absolutely devoid of any further information about that her seizure or any information about how that procedure should be carried out officer marino did testify that he understood he had to go find the officer and seize the firearm but beyond that there is no further lately lation is describing under what circumstance stances or how when or where they should seize the firearm and there was no testimony provided outlining a specific procedure to that extent so is it any kind of domestic violence enter the home in this case because officers were investigation investigating threats of possible release of sexually explicit videos and devoid from those text messages and avoid from the any indication that the four officers injured the home they had knowledge that mr ijaz was physically violent that he had threatened physical violence that he had all used the firearm in connection to the crime they were investigating or that he had ever used the firearm in inappropriate manner and this is what distinguishes mr rodriguez this case from every case relied on by the government and the court below courts have found that a firearm creates an edge and circumstance but only when there's an imminent threat to the officers on scene or are people nearby well thought of that simply break the stance and the responding to him they had they certainly had probable cause to go and arrest it's a domestic dispute i think many officers would say there's probably more danger in responding to a domestic dispute than going even to a drug point and so they want to account for the gun why can't they account for the  particularly when there are other people in the house who knows what their relationship is to the domestic dispute they would just leave with the officer and leave the firearm a police department firearm unaccounted for wouldn't that be a problem not in this case  honor to begin with officer mario the saw officer investigating this complaint was well aware that the complaining witness was not in that home he had met with her earlier that day nd officers knew who was in the home and that was an officer mr rodriguez's family rd there are some cases relied on the court below from the court of light on the low that didn't of domestic violence cases that were ongoing but in those cases there was an act of domestic violence situation in the home where a weapon was being used what we don't have here is any indication that the weapon was really the most violent allegation because it wasn't or that the weapon in the home was creating the type a matter of constitutional law the police department is prohibited from having a different procedure when it comes to accounting for the firearms that it provides to its officers and i thought why would that be why could not a police department search pursuant to a police procedure any time an officers arrested outside of this home and there's a firearm inside yes why not well your honor we haven't reached that question in this case because there is no full the administrative procedure on the directive to seize the firearm and we didn't brief this issue and i'd be happy to submit supplemental briefing but it is my understanding that pursuant to constitutional a ministry of search the court would have to consider a number of factors including how when and where they are allowed to enter the home whether there's a substantial government interest versus the intrusion of privacy and there is no record below that  even if an administrative search might be reasonable in some circumstances i would posit that a warrantless entry into the home the home that is the most protected place by the th amendment would likely be unreasonable i think you said family members who are in the hole yes your honor and this was a domestic dispute between him and another person you're not the police were absolutely investigating an allegation that he was threatening to re actually exclusive video of a woman who was not in the hot and sure but so what you're saying is they had they had no choice but to leave the gun where his family members in the wake of arresting him would have unrestricted access to the police department firearms you know they had a number of choices they could have secured the scene and gotten a warrant there were twelve officers on scene only be outside of the scene you would say they could you correct john so they couldn't do anything to restrict access to the police department firearms until they got a warrant there they think they could have restricted the family's access they also it's important you know egypt morio met with a district attorney so stay with how would they have restricted the family access and which made them all come out of the house from way they could have done that your honor and you would see that is less of a constitutional violation than one saying to him we're going to walk in with you to get the gun you want and come out instead of going to take all the family they had a low a lot of other options available to them they could have sought the consent of other parties who were present there they could have started a warrant earlier in the day because officer mario met with the district attorney earlier the day before he went to the home they also could have you're not i i don't have the exact hour but i believe the record is clear that after officer here was off duty a friend of his wife came to his home to report these complaints after he looked over the text messages officer maria went and met with a state district attorney after meeting with the state district attorney later that night at midnight he went to mr rodriguez's home rodriguez handcuffed at no time during that conversation was his liberty at all restricted officer maria allowed mr rodriguez to walk back into the home in front of him and actually allowed mr reed three is to go and pick up the gun and place it on the bed and that's that's officer marina's testimony so if that weapon created such an imminent threat that it was necessary to breach the sanctity of the home he wouldn't have allowed mr rodriguez to go get the gun himself and believe there was an armed drug dealer inside the house required suppression of evidence found by an otherwise lawful search warrant and that's because there must be proof that a suspect possesses a weapon and was likely to use the weapon or become violent and the record it is not is devoid of facts that would substantiate that mr rodriguez was at all going to become violent or use the weapon in an inappropriate man but obviously it is the government's burden to prove group valid consent by a preponderance of the evidence and and mr roger gets at the stand and said that he didn't consent so what do we know about consent we know that there was a conversation outside the home the only two witnesses to that conversation were officer rio and mr rodriguez we know that the district court declined to make a credibility terminations and declined to make a decision as to whether there was valid consent in this it isn't an undisputed that he ought rodrigues offered to go and get a weapon and the officer said no i'll go with you and then they went in his there were no facts that contested that that statement from officer marie oh that is correct and it is true that something was said outside the home that had to do with the weapon obviously because that's how officers induct in the home however there is no clear finding of fact on consent in this statement made by officer richard marino say no i'll go get the weapon that is not requesting consent or garnering consent that is a statement that i'm going to enter your home into the home and then of the specific time frame isn't that clear from the record however we do know that there were various steps before they were able to even locate rodriguez or where he was for i mean for example  i just passed i was pointing out this was a police department fire on property which needed to be accounted for and the procedures which have largely been not been challenged due state that this is the then i'm very interested you can see two miles away they couldn't go get the gun but two feet they could go into the house and get it so the difference while you're out of there i would and that's that's a completely understandable position and if that is the case then well yes i would have to retract that was probably would probably be reasonable under these protocols to go get a firearm with the defendant having been arrested however going getting back to the specific facts of this case when the officers went to the house testimony which was two words in response to the attorney at the fence attorneys question of whether or not he had given any kind of consent he said negative no that is the extent of the evidence showing that this was well you're honest when we look at the record as a whole the surrounding circumstances the interaction between the officers in this case so just that this wasn't a consensual search this was a situation shake his head or whatever the burden than the status quo the null set here is no consent the question is did the police obtain consent and if the evidence in the record is that when they said they were going to go and he said no when i st heard it because i was trying to figure out if there is just a blanket policy that an officer who becomes a police officer except as part of the condition of the one that although you are procedure being a uniform procedure google account for the department's weapons whenever does domestic dispute the record is pretty skinny on this procedure date it's understand there's no document in the record the two mile away rest he's disarmed we're not talking specifically about disarming here we're talking about accounting for the gun even if he isn't armed and now you're recitation of the procedures twice used who w it the case that the police officers could have at midnight gone to the house knocked on the door greeted at the door said they're here to arrest and to seize a weapon and get told no you can't enter they just go ahead and go in and get the get the gun at that  that they're for a fact in the house that is government property and that there are other people living in that house there are other people that put that could have access to our guard that is what distinguishes this case from other cases where a defendant as or is that outside and there's no evidence of people other people being inside the home that in those cases that have been found that a warrant is necessary here however it is clear that at least three other people l should rule against you want to exist in circumstances and if we should conclude that there was no finding and consent is the proper result here in ri man for a finding on consent worst case over i wo and so we would suggest that the correct procedure would be to allow the district court to reach that issue which we believe it or not have to end right at its reliance on the existence or i have forgotten now did the government rely on consent in front of the ma as to how the police would justify not necessarily in season the computer but everything else that these i don't mean on the i mean the other electronics but your honor the the complaint where the where the victim alleged that he was threatening to disseminate photos and videos of her so obviously a camera would be able to produce produced such as such items and moreover like the technology today once you take it with the camera it can be uploaded to your computer another point you're on is that these items were plugged in with their chargers further further showing that they were not there just temporarily or that they were someone else's wallet and that one of the room but rather that they were his in his room where he stored his things just like his garden and that they were there because pike in regards to the sole case for light on by the government u s b lopez it's important to note that that case involved a threat of a person pointing a sawed off shotgun at another individual officers responding to a nine eleven dollars call for service when they got to the scene the victim was on scene provided a description an officer saw the defendant who matched the description on scene that person then disregarded officers commands to stop and ran to the home in that case they found that the fire circumstances and the st circuit called that case a close margin and compared to the facts of our case i would submit that there is a vast difference because there was no threat of violence there was no allegation of physical violence and there was a cooperative person on scene turning to the consent consent was the sole seery advanced by the government of the suppression hearing in fact in arguments at the a suppression hearing they stated if there was no valid consent there was no legal entry into the home so the easiest decision for the magistrate or the district court judge to make was that there had been done consent and the court declined to do that issue of consent and then in in the in the analysis of education circumstances the court states consent is not relevant because there is action circumstances so i these yes this court would have to remain for an evidentiary hearing on consent but we would submit that when the government's sole theory of entry was consent and that was the highly contested issue at the evidence your hearing and the court declined to make a ruling on consent the record so i just didn't say because it couldn't said because it's going to go off on the southern races so why is the government prohibited from arguing now that it's entitle to at least a determination on concern district court was wrong on the basis that it did decide merits find your honor of course i don't think the government's prohibited but i do believe the record is clear that should if consent had been blatantly obvious