warrant and there were no exigent circumstances justifying its presence here right to go to mr brennan's front door to knock on it to wait to be received and if you wasn't received he had to leave unfortunately he didn't do that instead he lingered for an hour and a half he circled the house five to ten times pounding on doors and windows he took mr brennan security camera which was pointed at the front entrance and he turned it away from the entrance  longer see outside and he further obscured with crime scene tape from his police vehicle he also turned on the emergency lights and sirens on his police vehicle in the driveway and he did all this in violation of mr property to try and make contact with people inside the house it's that knocking talk exception and that license extends as far as a stranger would have when coming up to the house as just a scalia colorfully put it  it's the same license that girl scouts and trick or treaters navigate without issue every year it's hardesty still good law your honor we believe that to the extent  the police officers to extend the knock and talk section to go around to the back of the house it's been advocated by her genius but would it is that beyond debate i mean would a reasonable fishel know that because our court just applied it in tw sixteen we believe a reasonable official would know that we also don't think you necessarily need to reach that issue in this case but it it says you can take reasonable steps to find the person and it's though do you have any case itself i think we would speak to that issue as well in hardesty the officers approach the house they saw the lights go off as they approached it and so they had good reason to believe that there are people in the house so they want to run to the back door to try that also says we don't want to see officers go away it's actually and so i guess what i'm struggling with is if hardesty remains good law then why would apply here in the question would be were these reasonable steps and then the next question would be in light of westby is it beyond debate to a reasonable official to it to an official that this is reasonable let me ask the third question just so that you have it all and then what case would show them that so we try and take these in order you want me to ask one again i will just a reasonable step and we would say no it wasn't because the actions went so far beyond what was acceptable in hardesty right this isn't just going around the back door and then not getting a response and leaving this is staying for an hour and a half beyond that first stepping onto the property of the officer have stayed in the police car on the street and waited for some action to occur went back to his car but he went around it five times went back to his car and then when the woman showed up i can't remember a name i'm sorry got out in talk to her and then reengaged my understanding is that his car was parked in the  driveway so he was on the property even when he was in the car he was he was on the property entirely know whether the car in the driveway was within the curtilage or because depending on the length of a driveway might ver that's right based on the dash cam video which i believe was submitted as part of the record you can see that the car looks like it's at most twenty to thirty feet from the house and we'd say that certainly just typically five to seven  affirm the district court in saying that those steps were not reasonable that's correct yes and they stayed on the property for an hour or more with their i believe it was also roughly about an hour and a half but that case when you have a timing problem right i mean it that case came out after the actions of this happened here we do we were not using that case to try and establish it to try and say that the wall was clearly established at the time this violation occurred i mean that he does go to show that the protections in the curtilage are clearly established and so well that he's didn't come out after this conduct but that we need a case don't we need something going to durational limits what is reasonable if if if i know somebody is inside that i suspect somebody is inside the house  so that's a slight change in the normal fact pattern where you just walk up to a house and knock and nobody answers i have to leave right if i know somebody i have reason to suspect somebody is in there because i hear noises i get to do more stuff or i mean isn't the hardest he says i can try to find the person i can go knock on the window so don't we need a limit on that principle a case that says you can do but you can't do it five times or you can't do it for an hour or whatever it is that's correct your honor and i think that case is hardiness which says that the license you have extends far as a stranger would have coming on to the property and to make contact as again the stranger comes onto your property and knocks on the door they may hear you inside but a stranger go around the house looking for you i think it would depend on what was customary in that location and that would be that says that the license of the officer typically permits the visitor to approach the home by the front path not promptly wait briefly to be received and then absent in the taishan to linger longer leave and so your point would be here there was no invitation by brennan to the officer that's correct to stay to linger longer and so and terry davis is decided in twenty thirty twenty thirteen and so and this search that the the events here occurred in two thousand and fifteen and i believe it's february twenty first two thousand and fifteen ok so those are dina's is the law so to the extent that hardesty which was decided earlier conflicts with sardine as hard as is no longer valid that's correct your honor but was applied by our court in twenty sixteen so it's a little unfair to ask an officer to make that conclusion when we haven't made it correct i mean you're asking an officer to look at two cases unresolved and that's what was b stands for is we can't do that and that may be correct your honor but i think the behavior here extended so far beyond what hardesty said was reasonable think hardesty actually drew that line what hardest he said is that you can take reasonable steps to try and make contact with people in the house but i think and why isn't it kentucky versus king where if i'm investigating something i suspect somebody is in the house so that changes the fact pattern because i'm knocking on the door but the lights go out or i hear a noise and then and  this defendant is he's on probation he's subject to the warrantless you know breath test whatever why does that not make it you know i'm afraid there's going to be evidence to gets destroyed or he's in there i don't know what he's doing the i mean does that change the scenario with having those facts but no it doesn't your honor for a few reasons first of all i should point out there's a factual issue with the deputy knowing that someone's in the house he said in his deposition that he couldn't say that it was a if it was a person or a dog the noises you heard when he was first standing at the at the front door i think beyond that getting to the evidence being destroyed dissipation of alcohol in the blood stream alone isn't enough to establish an accident circumstance we also have pretty good evidence here that deputy dawson didn't believe there was an accident circumstance because if there was it would have warranted him not only violating the curtilage but also violating the fourth amendment protections in the home and he lingered for an hour and a half without doing so we couldn't believe that there was an accident circumstance that kind of warranted that fourth amendment violation but i think even beyond that  although the warrantless mr brennan agreed to the warrantless breath test that was the only fourth amendment protection that he waived he didn't explicitly waive any other required any other protections and on the probation agreement in this case only apart from the current issue that we've been talking about what was should there be qualified immunity for the arrest even if we assuming we put the curtilage just to the side that's correct your honor we do the obligation to submit to the breath test only triggers at the point where the test is actually demanded and in this case the deputy didn't to man to test until mr brown and actually came out of his house at that point as soon as he demanded the test mr brown and submitted to it again we get back to this beyond debate the officer could believe that when he rang and knocked him beat on the house he was demanding the test be submitted to and that would be enough to arrest him right if he knew and didn't come out and didn't take the breath test on demand that would be an on going to mansur question i guess a lot of time if mr brennan knew that the officer was there to demand a test then yes he would be under an obligation to come out there could a reasonable fishel make the conclusion that since trounced around this house activated my siren beat on the door and waited for him to talk to a woman who had multiple stories that he knew i don't think they could because i think the reasonable official would have tried to make and effective demand of the officer didn't do that he stayed outside pounding on the doors and windows turning on the sirens but he never yelled out hey i'm here to do a breath test a number of else is the to do  say i want to breath right yell that out don't have to do that or is liable even though he beat on the house rang the doorbell activated his sirens asked this woman who gave him multiple stories which looks suspicious to begin  officer's perspective on the scene which is what we're required to do and were evaluating probable cause certainly an officer could believe that plaintiff was attempting to avoid taking the p b t that in conjunction with his avoidance the night before when officers were on the scene for thirty minutes and he refused to come out despite the fact that josh exited the trailer and said he's inside and he's awake so then the officers go back the next night again refuses to come out then we have ashley officer could have very loudly i'm here for to give you your p b t he could have but there's no case indicating that that's required your honor and in addition to that that we might have another argument from the plaintiff that you know doing that may have violated his privacy rights screaming it out for the neighbors to hear i mean i think that it was pretty obvious this is something that he had agreed to and it was it was clear that he was actively avoiding taking the actually right when she appeared on the scene she said one of her first stories was that he had called and indicated he was on vacation and wanted her to go and find out why someone was at his house and her story changed a few times to my brother called me and asked me to do this and my father called and asked me to do this and that wasted about twenty to thirty minutes by the way of deputy dawson's presence on the scene or part i'm sorry or just to get a war there's i mean he certainly he could have gone and gotten a warrant but there's a couple things first of all it's when are we required to do that because there's no guidance that suggests that any time that you appear and you attempt to make contact with a probationer and they don't answer the door that you should then immediately go get a warrant i mean there's got to be some sort of indication for officers to be able to determine when exactly they need to do that i mean had been the previous event the day before which would suggest that brennan was not going to easily comply with the p b t and so that would seem to be a trigger for the officer to go get a warrant at that point well it could have been but then it also could provide the plaintiff with an argument that you know i was in the house but i didn't hear the knocking maybe josh did when he went out and saw the officers i mean the point of this officer taking these actions was to prevent the plaintiff from having an argument later saying i didn't know that he was there i didn't hear him i was sleeping this is exactly the argument that they made in their brief in fact when we move from the search argument to the arrest argument where they argue well as soon as he demanded i complied i mean it's a very disingenuous argument and the this officer made a number of attempts to get him to comply with us order that he agreed with and just say that he was required to immediately get a warrant when he didn't answer the door or what about what about the search conditions and i move you to that because it's as judge moore said you're your friend on the other side it's pretty clear that her hardness as you can and he clearly lingered so why why is he entitled to qualified immunity there this is distinct for two significant reasons first of all in that case the officers were conducting what was deemed forensic search of the kernel into the train search dog the defendant or the plane while they were searching for criminal activity evidence of criminal activity in the courage i mean that's really what charging us is about searching for criminal home to detect odors from inside the house of the house and what he's doing here is he's searching the house for the defense well hardesty this case is more similar to  see says officers were not searching the curtilage for criminal activity like they were injured to us but we're attempting to make contact with the accutane for valid reasons it's a distinct situation and here we have the added situation with the probation order we didn't have that and hardesty wouldn't have that injured innocence anything because you don't have a search condition the only thing the probation order allowed you to do is give the test on demand he didn't allow you to invade his otherwise protected privacy but in conjunction with the probation order and i mean i think it has to be implied that the officer needs to make every opportunity to let the probationer know that he's demanding the test otherwise there will always be this argument that so it seems to me that hard to square with your other image because it seems to me he did that when he banged on the door let's say i buy that argument and i say ok but they lose on the arrest condition then everything he did thereafter seems to me well beyond the implied license to stay well i think it's completely different from what the supreme court was in visioning when they decided joining us because like justice scalia had sad you know this is similar to what trick or treater girl scout would do well in our case the officers armed with an order requiring the plaintiff to submit and demand to a p p t trick or treaters and girl scouts are not armed with i didn't give you i mean  your officer concedes i think that dignam you up but they were to break down the door and go in no certainly not what this is if if we conclude circling the house multiple times is a servant right then if he exceeded his license then he's violating the rights but there's no case law to demonstrate that he was this was clearly established that he could not make every effort to contact the plaintiff to enter you know the probation you have search conditions and you have the p b t but they're not the same so what your why is it that the that the breath test allows you to do all kinds of things wager with regard to the property well there's there's one of probation or agrees to take a breath test and demand that implicitly suggest that an officer has the duty to make every effort to let the probationer know that the test is being demanded but officer break down the door now let me throw a rock through the window now so why can he otherwise violate your rights especially when why shouldn't we consider it against him that you don't have the search conditions i mean it seems to me that if the court wanted you to be able to do this they would impose the search conditions well the search conditions certainly would have allowed him to enter the home but in traipse through the garden meander into the back yard and take other detours that we hear from the pathway that a visitor would customarily use right and like sets this case apart is that if the plaintiff is required to submit to the to the p p t the officer has to let him know that it's being demanded otherwise there would be otherwise there would never be any incentive for any probation or two to comply i mean you concede right he can't otherwise violate his rights to demand the breath test no but he needed to  with everything that this officer had before him in terms of what occurred the night before ashley wright's presence on the scene and the fact that p b t s are let's say the artist he said the only steps you can take not saying that necessarily his status as a probation or but the requirement for him to submit to a p v t on demand requires the officer to let him know that the p b t is being demanded if he had just knocked a couple times on laughed plaintiff would have said i didn't hear him and i didn't know it was being demanded an officer pull him over on the road without any other thing to demand the breath test temporary seizure  arguably i think that he he might be able to do that i mean it's it's p v t and demand i mean the officer would probably know that he wasn't allowed to do that given the fact given the state of the law there needs to be some additional guidance if the court is going to consider reversing judge c in this case there needs to be some additional guidance with respect to how to handle these probationers because the officers really stuck between a rock and a hard place you know he made his best efforts to try to contact the plane after i understand it so they knew the night before that he wasn't responding and they could have gotten a warrant be they could have gotten not only a warrant but the court to sign off on a changed condition  and michigan has this is michigan right michigan has we know that for all circuit defendants and circuit court defendants they have the search condition i assume for discord defendants you can also put in the search condition but it's not mandatory and that's not the deputy's prerogative i mean i understand but he can go to the court and ask right so you know the night before why is the only action he can take to arguably invade this person's right where he attempted to go back again to give them another chance i mean if to immediately get a i mean that's that's a good question your honor is that what we're required to do to immediately then get if someone doesn't answer one time we go now back then are we required to go get a search warrant and or or can we have time to second time i mean the area with respect not whether you can attempt ten times but the question is can you linger can you go around the property can you bang on the house for five to ten  would say in this situation where it appeared that he was attempting to avoid it that was the best course of action because then it cut off his argument to later say i didn't know that you were demanding it which the exactly the argument that they made with  why the officers between a rock and a hard place because if they just knock and leave then it leaves the plaintiff with the argument that i didn't hear you i didn't know you were there i didn't know you were demanding it if he stays and he makes every effort to alert the plaintiff that he's there and demanding the test the sirens the lights the knocking that it's too much so we need some guidance in terms of what about giving the guidelines that under the circumstances of the after the first effort to reach brennan failed the officer needs to go get a warrant in order to go through the curtain lids and go into the house and order a breath test that that is a guidance your honor but it's not something that the step he had the benefit of so you're going to go off on the clearly established but that but that guidance would comply with her and her dina's i think it would but it also create quite a burden  the on the courts but if that's i mean at least that is something that is a clear line that our officers can work with other than that it's very difficult to determine what exactly they're allowed to do and not allowed to do is too much of a burden so you think th officers i mean it may be a burden on the judicial system because a lot of these things happen at night when people are more apt to be consuming alcohol so i mean that but that's what he did here was reasonable i think that under these circumstances it absolutely was your honor because it was designed to preclude the plaintiff from being able to say i didn't know that you were trying to get a hold of me i didn't know that you were attempting to administer a p b t which again is exactly what he argues we were to uphold that argument of yours we would be saying in effect that her genius allows for an exception to the protection of the curtilage when you have a probation or who has on e appeared to fail to produce and sell or requested to what i'm saying is that with respect to qualified immunity the core always looks at the particular ice facts of the case confronting the officer and that not clearly establish the law with respect to what the officer was permitted or not permitted to do in this case because the facts were so different from judging us where he wasn't searching for criminal act or activity in the curtilage he was like hard y attempting valid contact with him for criminal activity inside the house he was attempting to make contact with a with a person not looking for drug activity with the tried to touch and dog so that and that that in conjunction with having a probation order so there are so many different factual nuances to this case wasn't even searching for criminal activity was i'm sorry your honor i mean at least in our dina's they had a tip that there were drugs in the house three he was just trying to enforce an order in our case he was trying to make contact with the probation and force the order and he was on the phone with a probation officer during the time that he was on the promise of us i said that my time is up unless the court has any other questions thank you very much can spend on the curtilage the supreme court this last term made very clear and collins we were ginia how well established did the protections in the curtilage are and your client did give up some rights right with this probation condition he gave a new subject to what would otherwise be a search right the breath test that's correct yes ok so he's agreed to be subject to that yes search without a warrant on demand yes that's correct ok what are the women it's then on what the police can do if they want to administer this test well they have to make an effective demand of some time and like i mentioned earlier that could be just after knocking yelling out loudly what they're there to do it's kind of ironic right you're complaining that he did all these things to try and get is that tension but you're saying that it's not enough in the second claim to make him aware i mean i find that kind of ironic you're saying officers have to do all these things to make them aware but when they do in the essentially violate his rights no your hon classify it slightly differently i think the steps that he took weren't effective steps to convey that he was there to do the breath test now there's a factual dispute about whether or not mr brennan even knew the officers were outside to begin with and taking the facts in the light most favorable to mr brennan he didn't know they were there at that that officers were there to begin with but even if he had the officers have to take steps to indicate that they're there to perform this breath test and how is he damaged by everything they'd just curious i know that's not part of this inquiry but if they never knew nothing happened it's kind of like a tree falling in the forest when no one's there how does he know i mean how the interview he did with the police internal affairs team there's also the embarrassment of having the police there for an hour and a half with the lights and sirens on his deputy dawson said he's pretty sure he woke up half the neighborhood and beyond that  brennan were walking down the street and the police officer this same police officer knew about the night before could the police officer just simply say to brennan hi no you're brennan and you're supposed to submit to a that and so they are required to make that effective demand without violating his other rights and that's just not what happened in this case going to the arrest there's there's no evidence mr brennan knew that the officer was there let alone that he knew that he was there to demand officer doesn't have to know that right the officer only has to believe that he knew and didn't submit right it's for an arrest it's what the officer near not what mr brennan yes but every reasonable offer in this case officer in this case couldn't have thought that first of all because mr brennan blew this zero point zero zero zero  test all the results are relevant if he's of baiting then he's of baited the demand and the officer has permission to arrest him and the officer to be fair believe he woke up half the neighborhood to use your words so it seems pretty reasonable that a reasonable fishel would believe that mr brennan knew he was there and he had this actually right making multiple stories that's correct your honor and a reasonable officer could have believed that he knew he was there but a reasonable officer couldn't believe that he knew he was there to perform the breath test and that's what the else would they be there is there any other condition and probation that he would be there or there's not but the police could be there for any number of reasons i would side of trying to perform this broadcast and deputy dawson never indicated before mr brennan came outside and actually spoke with them that that's what he was there to do thank you i see your red light is on we taking you beyond it we thank you very much for your argument and i were especially impressed that as a law student you have been handling our questions as beautifully as you have and we appreciate the argument on the other side as well so we thank you both and the case will be submitted and the court