Legal Case Summary

May I please the court? I'm Sean Andrew Sear. The court appointed me to represent the appearance, Leila and Christopher Covey. Their case lies near the core of the Fourth Amendment. Government agents intruded into the curtilage of the Covey's secluded rural home without a warrant, exigency or consent. Based on that conduct, the Covey's have stated a valid claim under the Fourth Amendment. Well, let me ask you this. Did you ever plead in your complaint or your griefs that you are seeking only nominal damages? Or more than that? Well, the complaint lists the damages. What damages would be available have not been briefed, but nominal damages would be a form of relief. And secondly, the injury that you claimed as it was resolved from the criminal proceeding rather than only the Fourth Amendment valid. There, Mr. Covey cannot recover damages from the criminal proceeding. So you're not asking for that? No. Any damages as a result of the criminal? He cannot recover damages for the criminal proceeding. Now, this would be that the scope of damages as it has been briefed, but at the very least nominal damages would be sought for the Fourth Amendment violation. If he were to receive any damages, wouldn't it undermine his criminal conviction? No, Your Honor. The determination on this issue, on this claim, which is the search claim, would not imply, demonstrate much less necessarily so the involuntary divest conviction because it would simply be a determination about what happened on that day and whether there was violation of the Fourth Amendment on that day. So we have cited hearing the pro-size in which the Supreme Court has said that a Fourth Amendment search claim in a section 1983 action that success on that claim is irrelevant to the validity of a conviction secured by a counsel guilty plea. And that is the test under Heck. The test under Heck is whether the success on that claim would demonstrate necessarily imply the involuntary divest conviction and if it will not necessarily demonstrate the involuntary divest conviction, then the claim proceeds and the Supreme Court has at least twice in tack and I'm aware of Nelson and Skinner said that we were careful in Heck to emphasize the word necessarily. So my answer to that question as we brief this issue is no, that this is a distinct claim. I'd like to begin with the officers and in particular the factual determination made by the District Court on that claim before I talk about the knock and talk exception. The District Court resolved the claim by finding on a pro-saicum complaint at the Rule 12B6 stage that the officers necessarily saw Mr. Cubby at his workbench outside before they entered the yard. And we have contested that binding. And if we back up in the record, this is where the court relied on Alvarez. I'll note and my colleagues can correct me if I'm wrong

. I went back over the briefs in the District Court. I didn't see any of them citing Alvarez. The magistrate judge in the magistrate's report made a determination that it was clear that he was outside, clear to the officers, to that the Cubby's objective. They objected and said that based on the property and the way out of the residence, that the officers could not have seen him at the workbench until after they had breached the Courtaulds were in the private backyard area. The District Court said this court disagrees at the 12B6 stage. And the court invoked the criminal complaint submitted by officer of Spayho the following day and the photographs. And we submit that the criminal complaint does not speak to this issue of whether the officers saw Mr. Cubby before they entered the yard. You say ambiguous on that question. Just doesn't address that question. And the photographs. Did we be considering the criminal complaint at all at this stage? Well, the District Court have considered it at all. The Covey's filed the District Court complaint. And so as often happens in a pro-say case, the District Court will consider documents filed in opposition, including briefs, filed in opposition to a motion to dismiss in construing the pro-sayed pleadings. Our point is that that document on its face doesn't answer this question. And the photographs raise all kinds of questions because from the area where the officers parked, which was on grass partially partially on gravel, there is a wall that screens the door, the basement door off the patio. Mr. Manchester says in his brief, well, but the back of the patio would have been visible, which we can see it in, we said in our opening brief, but that's irrelevant if that's not where the workbench was. And in fact, the criminal complaint says, when they first saw him, he was at the door, and the Covey said below in objecting to the magistrate Judges report that the workbench was to the just to the left of that door. In other words, it was in a corner. And you're talking about the patio, the basement door. The basement door out by the patio. And so if a workbench is to the left of the door against the wall of the home, and then there's this perpendicular stone wall. So he's in that right angle area. And the officers are parked partially on the grass off the gravel up here

. Is there any indication where the officers were parked? The Covey's annotated, the photographs, they submitted your honor. And so it would be J.A. 51, I believe, where they say this is where the officers parked on the grass. So it's the Covey's annotation of those photographs. That's the only indication. Right, that's the supplemental information. The complaint says your honor in perhaps, I have to get the particular paragraph, but it says they parked off the driveway. That's all right, I can't. On the grass. So we have a decision by the district judge under rule 12 p. 6 that turns on a factual finding on the basis of this Alvarez case that none of the other, none of the defendants even brought to the district court's attention. Now, beyond that, the scope of this knock and talk exception, we take our position is that they are expanding this beyond its logical breaking point. This is a limited license that allows what's called a licensed intrusion. What the Supreme Court has called an invitation or license that exists by custom, it's implied. It's the license the Supreme Court said more than 60 years ago extends to solicitors, hawkers, and peddlers to approach a front door. And it's what this court and tailor said allows a person to approach the front door of a castle and the court referred to a polster, a salesman, or an officer of the law. In other words, this is the license. They limited the license that allows visitors to approach a customary entranceway or a place where a visitor could reasonably expect to be received, which in almost every case is going to be the front door. This is grounded on implied consent. The notion being that the homeowner, unless the homeowner takes extraordinary steps to seal the cartilage, will be received at that door for a consensual encounter, which the homeowner can reject. The homeowner cannot answer the door, can speak from behind the door, can open the door, and kindly ask that visitor, that polster, that salesman, or that officer, to leave, and they must leave. And the irony here is that the knock-and-talk exception is being invoked by officers who are claiming that they saw him, but yet never, if we just take that as true for the sake of what I'm about to say, but never sought to get consent, never motion to the man, but cornered him against the back of his home, in the cartilage, in the patio area. Mr. Manchaz, I think, says in the brief, well, he didn't see us, doesn't mean we didn't see him

. This is supposed to be a consensual encounter, not a sneak attack by officers, in the cartilage of a home, who have reason to suspect that there might be pot in that area. So this is taking this very limited license and our submission, expanding it, to what would be, in effect, a special law enforcement right for investigation in the cartilage as a matter of expediency and convenience. And I want to be clear about this. We are not arguing that there's an inflexible rule requiring visitors to begin every encounter at the front door in every single case, because there may be cases in which the back of a home or some other area is, under the circumstances, in customary entrance way, a place where visitors could expect to be received, but this is not that case. This is a case in which the photos indicate there's no entrance behind the home to the main residential part of the home. And what the officers are relying on is a basement door, a glass door under a deck, around the screening wall, with no walkway. There. So under these circumstances, is when you look at knock-and-talk cases, these are cases decided on developed records where we have circumstances that would allow a reasonable person to conclude that they're approaching a customary entrance way or a place otherwise where a visitor could be expected to be received. We turn to the tax assessor for the moment of, and again, go to the district courts' factual finding here. The district court said that the tax assessor didn't do anything beyond executing the normal responsibilities of his employment as a tax assessor, and that the coves have no reasonable expectation of privacy with regard to items viewable by the naked eye from the curtallage of their home when a property tax assessor is executing the responsibilities of his employment. Let me put aside our argument about the propriety of a government tax agent, in truting without home and or knowledge or consent into the curtallage of a home to gather information for the government to assess tax. Let's put that aside for the moment and just put him in the yard to assess property, like the tax assessor in the weed green case from the sixth circuit. The district court's determination that the tax assessor didn't do anything but execute normal responsibilities, and see, so only matters that were plainly viewable to the naked eye is not supported by this record. The record does not establish that the marijuana was plainly viewable to the naked eye. The coves have maintained, it wasn't. And if we go back and look at this in the record, the tax assessor never even advanced a fourth amendment merits argument in his motion to dismiss. In opposition to the other motions to dismiss, the coves said that the marijuana was not in plain view when the tax assessor was there. This isn't something that I'm bringing into the case after the fact. This is what the coves maintain in opposition to the motions to dismiss. They said it was not in plain view and that in fact, they alluded to personal effects and said that it wasn't in plain view and the assessor would have had to play a close container. The magistrate judge's report nonetheless said that marijuana was growing openly in the patio area. To that, the coves objected and said again, no, the only marijuana that was in that area when the assessor was there was in a non-transparent close container. But the criminal complaint that the coves himself submitted says that the officers could see what appeared to be marijuana on the workbench. Exactly, Your Honor. And that's, I think, where the confusion arises

. The scene that the officer saw when they arrived later was not the scene that the assessor saw when the assessor was there earlier. And that's what the coves have been maintaining when they left the home, which is when the assessor came without notice, knowledge or consent. The marijuana was not out in the open. It was in a bin, in containers in the bin, in closed containers. And they have said this in opposition to the motions to dismiss about the closed container and they said in an objecting to the magistrate judge's report. I want to go back to my initial question because I'm having a little hard time with the fact that in the case that I said on the issue. Is the suit to recover nominal damages for the entry to the Courage? Or does R being intent for the suit to go further than that? Namely, are you gonna be challenging the seizure? Which you have weighed by pleading guilty? Now, I'm trying to figure out what is it you? Mr. Covey could get nominal damages. He cannot recover damages for having been convicted of the crime he acknowledges he is guilty of and is not challenging that conviction. He is not contending his innocent. He cannot get damages for that, Your Honor. So it is that your contending for the democrylation was the entry into the Courage? Yes, yes, Your Honor. And it's disconnected from his plea. And so if he is limited to nominal damages then he is limited to nominal damages. He cannot recover damages for having been convicted. And so getting back to the taxes as a certify if I can. You can, but if it cost of your three minutes you've left for a bottle. Your Honor, I'll, I'll, okay. Thank you. Say the rest of the bottle. Thank you. Mr. Butler. Thank you, Your Honor. Your Honor, it's my name is Thomas Buck and I represent the Ohio County assessor and her employees and the Ohio County Sheriff and his employees in this matter

. On behalf of my clients I urge you to affirm the decision the court below because there plainly was no Fourth Amendment violation by any of my clients in this matter. What I'd like to start with, and first I'd like to respond to the questions you had earlier, plaintiff is actually seeking anywhere between five million and eight million depending on how your read is complaint. Any specific counts, not only for the Fourth Amendment but also for false imprisonment, false arrest and other things like that. Those are all set forth and it's complaint. That's one to respond to earlier. A question. Now, I'll start with the assessor. In the present case, the assessor didn't conduct a search. And before the plaintiff can bring a Fourth Amendment claim against my client, they got a show and alleged that a search occurred and that that search was inappropriate. We don't have a search here. There's no question of fact that's been raised and no pleading that anything happened other than the assessor going to do the assessor's job. This case is very similar to the wild green case and amazingly similar to the Taylor versus the Department of Natural Resources case. And the general idea is people do not have a reasonable expectation of privacy even in their cartilage when it comes to a postal worker coming to deliver mail or a package or a meter reader coming to do a job or in the Taylor case, a DNR officer coming and looking at the property. In the Taylor case, the DNR officer went through a lock fence, traveled up a private drive, walked all the way around the property even peered in the windows. Plenty of said this is a fourth-minute violation. Court looked at it and said no. The DNR officer there wasn't there for a search. He was checking the property doing what a DNR supposed to do. We don't have a problem here and they looked other little factors like the time of the day. Was it at night when something nefarious could happen? No, it was during the day. The DN officer left a calling card saying, hey, I was here doing my job. If we look at those factors in our case, in plaintiffs complaint paragraph seven, plaintive alleges 12 o'clock, my assessor was there. It's not in dispute, middle of the day, business hours, when you'd expect somebody to come do that kind of job. My assessor walked around the property. Assessors are allowed to figure the outside dimensions of the real estate for calculating value

. They're allowed to walk around all aspects of the property. No search. What impact was your internal regulation that when you see no trespassing size you were to back off? Well, that comes down to a separate issue. Did the assessor violate an internal policy? Maybe. That internal policy can't create a fourth amendment claim. Bylating an internal policy on how you do the assessment doesn't change the assessment to an illegal search. That's what plaintive would need to show. And nothing in 189 CSR2 converts anything the assessor did or didn't do into a search. If it's not a search, we don't have a fourth amendment claim. What was he going, why did he open the door to their home? Well, we don't concede he did, but for purposes of today's argument. You have to do. You have to get to see that. On arguments. What plaintive alleges in their complaint is the assessor took the business card and assessment documents and set them inside the door. In West Virginia, a lot of people don't lock their doors. We don't have a real problem with crime and some areas. So assuming that's what happened, the assessor set the paperwork there inside the door and went about his business. Again, not a search. Now, did he violate a policy maybe by opening that door? Possibly, but that would be a state law issue. What about going into closed containers to find marijuana? Well, that's interesting because that's not a legend of plaintiffs complaint. In fact, that's not even a legend in any of the pleadings. The bin, rummaging around the bins, wasn't mentioned by the plaintiffs at all in the complaint. You can look at joint appendix number 11. It's not in there. Wasn't into a plaintiffs briefs

. And that would be docket 35 and docket 41 wasn't in there. Wasn't in the rebuttal brief in docket 48. In fact, it surfaces later on as a new change in the facts. And plaintiffs have changed a lot of the facts to try to create a question of fact here when there isn't one. For example, plaintiffs have tried to argue that the officers parked in the grass. But if you look at paragraph number 11 of plaintiffs complaint, they say the officers pulled up in the driveway. So they changed the car from the driveway to the grass. We changed open view to hidden containers and rummaging around. There's no factual basis to support this rumbling for a round argument. And that's something they added after the fact when they wanted to try to get around the court's decision. In the case, and I assume that you can't take into consideration new facts that the appellants add just because they're trying to get around the court's decision. The state court issues the procedural rules, you mentioned. Not only do they not create a constitutional law standard, they don't create a civil cause of action of themselves. So plaintiff is trying to take an administrative provision and turn it into a constitutional law claim so he can stay to claim that he doesn't have otherwise. And we submit that it's inappropriate. And there's no precedent to support that. Further, the court below was very precise in how it decided this case. Didn't sweep with a broad brush. What they did is just cut out the state law claims and dismiss them without prejudice. Plaintiff is free to pursue the state law claims. They can go ahead if there's any claim under 189 CSR2, they're free to do that in the state court. They don't have to entangle it with a federal court. We don't have to have the federal court interpreting these internal procedures created by the state. The state court can do that. So that issue really isn't even before us now

. Finally, even if there were some issues there, the Supreme Court is clearly held in the Davis Worship's share case that somebody in my assessor's position does not lose their qualified immunity simply because they may have violated an internal procedure or regulation. And they address that issue very clearly. You can't use this internal procedure to take away a qualified immunity. The only fact in this case are the assessors are doing an assessment. Whether you violated internal procedures or not is a state law issue. There was no search. We have no fourth member violation. If we even try to call a search, we have qualified immunity because we're allowed to be there. We're allowed to look around that property. We're allowed to be in the cartilage. So based on that, we argue that the dismissal of the assessor was appropriate and we ask that you guys affirm that decision. Moving on to my officers, we submit that there was no internal violation or no constitutional violation there either. Here, no question, a fact, this is a rural house in states of construction. The officers pull up to this house and there are two entrances. They're left with a decision, a quick decision, which door to choose. Are you saying there's some exegency here? No. Oh, you said a quick decision. Oh, you pull up, you look at the house, you make a decision which door you go to. A quick decision, though. Oh, then that'd be real quick, but you walk up on the house. I said they have a front door. I mean, go figure. Not real, it's a door. It's a walkway. In front door with a walkway

. On present case, the idea of a front door, while that works in a lot of environments, doesn't always work in West Virginia. Because this is not suburbia. There's no street, there's no sidewalk, there's no picket fence, and there's no numbers over the door telling you what's the front door. There's no trespass signs. There are, there's no question, but there's plenty of cases. There's a gate and a sidewalk to a front door with an awning over it right next to the driveway in the photograph. There it is. There's a door on one side of the building. There's a door on the other side of the building. So where did they, where did they go? What they did is they chose the door where they saw the homeowner. They chose a large double door glass French door opening onto a porch. It was on ground level. There was no fence. You never knocked on the front door. They did not knock on the front door. Okay, so in the district court's opinion at page two where it says upon arrival at the home, the officers knocked on the front door and receiving no answer proceeded to walk to the back of the home where they found Mr. Covey and observed marijuana and the sense of marijuana. Where does that, where does that come from? It's in the district court's opinion of page two and again at page nine. Yeah, it gets the district court clarifies it later and says it went straight to the back door. I believe that may, I don't know where that came from. That may have been quite. Yeah, I think it was in a maulganation maybe of the assessor going to the front door knocking and then the officer is going directly to where they saw the, the, the, the. And where is the district court clarifying it? Where did actually not the district court where in your briefs is that clarified? I don't know if I clarified it in the brief at all, but it is, it is clear, cleared in the record later and I don't remember the page off hand. Perhaps one of my colleagues will later when they, you know, they might be able to address that a little more precisely. So all the, I mean, you indicated a minute ago that the plaintiff continued to change the facts

. It appears all parties are changing the facts here under this. That's not changing the fact. I believe that it's possible. The original factual history by the way that may have had an error in it. The, the, the defendants are not changing any of the facts. The simple facts are the officers pulled up, saw him walked over and courts have shown and argued. The officers don't have to engage in some fancy algorithm or have a, have some type of crystal ball to figure out which door is the main entrance. This door was, I mean, house was under construction. As I said earlier, this door is the double door. The tax assessor, correct? The tax assessor called to the front door. The tax assessor contacted Sheriff Butler and informed him of seeing marijuana on the back, on the back porch area. So they went straight to the back porch area? The assessor went to the front door. But the officers since the assessor had told them the marijuana was on the back porch, they went straight to the back porch area. There's nothing in a record that says where the marijuana was or whether the assessor told anybody where it was. There's nothing in a record that sports that. Just that he saw it on the premises. They drove up there. They, to my, to my knowledge, I have no knowledge of the mask and wear. Uncontrovert facts are they pull up the driveway, have a clear sight of that entrance to the house. The plaintiffs wanna call the rear entrance and they see the gentleman there and they walk over to talk to him. Exactly what anybody would do. The girls' gout cookie salesman would do it. Anybody coming up to that place, sees the person there's gonna go talk to them. There's no violation there. At all. Some questions, facts is whether or not they saw him in the rear before they approached that the rear curb was in the factual questions which came for us over at Chicano A. No, plaintiffs complaint. Plaintiffs specifically says he was out there and the officers say we pulled up, he was out there. Now, plaintiffs wanna pretend the cops didn't see him and try to create a question of fact, but that was specific alleged he was outside. The officers pulled up upon arrival saw him. Very consistent with the facts there. So there's no real issue there, a fact was. Finally, even if there were some dispute or some argument of whether things were seen or whatever qualified immunity that clearly covers here. Alba rest says you can go around to the back door. The Kennedy case says you can. Bradshaw says if you smell moonshine, you can go around the back door. Here there's no factual dispute that the officer smelled marijuana. It's clearly in the record page 33, if I remember correctly. So if you can go check out, where were they when they smelled the marijuana? Where were they? Where were they? Pulled up the driveway, got out of the vehicle, so smelled an immediate upon arrival. If soon they, they, elighted the car, they smelled marijuana. Yes. Did we know how far away that was? Walk right over to the main door where the plane was working. Chopping it up? I'll tell you what, you know, linear feet. Didn't measure it, I think plane to Vargas is at 60 feet. Smell marijuana, not burning, 60 feet away. I have no experience with marijuana, but I've been told that it's very pungent, you can smell very clearly when you know what you're doing. And their ability to smell the marijuana is not in dispute in this case, just like in a Bradshaw case, the court specifically noted there was no dispute as to the officer's ability to smell moonshine. So that issue is not in dispute. Is this, that's a council. Is this really a knock and talk case? Or this really is, before they got there, they really, they knew there was contraband there

. Some questions, facts is whether or not they saw him in the rear before they approached that the rear curb was in the factual questions which came for us over at Chicano A. No, plaintiffs complaint. Plaintiffs specifically says he was out there and the officers say we pulled up, he was out there. Now, plaintiffs wanna pretend the cops didn't see him and try to create a question of fact, but that was specific alleged he was outside. The officers pulled up upon arrival saw him. Very consistent with the facts there. So there's no real issue there, a fact was. Finally, even if there were some dispute or some argument of whether things were seen or whatever qualified immunity that clearly covers here. Alba rest says you can go around to the back door. The Kennedy case says you can. Bradshaw says if you smell moonshine, you can go around the back door. Here there's no factual dispute that the officer smelled marijuana. It's clearly in the record page 33, if I remember correctly. So if you can go check out, where were they when they smelled the marijuana? Where were they? Where were they? Pulled up the driveway, got out of the vehicle, so smelled an immediate upon arrival. If soon they, they, elighted the car, they smelled marijuana. Yes. Did we know how far away that was? Walk right over to the main door where the plane was working. Chopping it up? I'll tell you what, you know, linear feet. Didn't measure it, I think plane to Vargas is at 60 feet. Smell marijuana, not burning, 60 feet away. I have no experience with marijuana, but I've been told that it's very pungent, you can smell very clearly when you know what you're doing. And their ability to smell the marijuana is not in dispute in this case, just like in a Bradshaw case, the court specifically noted there was no dispute as to the officer's ability to smell moonshine. So that issue is not in dispute. Is this, that's a council. Is this really a knock and talk case? Or this really is, before they got there, they really, they knew there was contraband there. They knew as, as back as a question of things had just, they knew it was behind the house in the rear door. Knock and talk is the exception was for, you go where people go normally, police officers can knock at us at, ma'am, sir, did you see this going here? And in the context of that, like any public person could do, you see something with clear view. But here, this was the case, they knew exactly what they were going. And they knew what they were looking for, and they knew where it was, right? And I mean, at least the facts of the case based on what the assessor told them. I'm out of time, but I'll answer your question, if I may. Absolutely, go ahead. All the record shows is the assessor contacted Sheriff Butler. Told Sheriff Butler he believes he saw what may have been marijuana at the home. Based on that tip, the record says, Sheriff Butler passed that information to the High Valley Drug Task Force, which dispatched two officers to go talk. They went and didn't knock and talk. They had no evidence that it was there. There's nothing in the record saying where it was. They simply went to talk to the individual. The assessor could have been wrong. Maybe they were a buck out of these. It's a plant that kind of looks like marijuana. It could have been that. All they had was a tip, credible tip, went and went to talk to the person it was in plain view. And there's no allegation of any great conspiracy or cooperation between the departments. None of that's here. Thank you. Mr. Hemelfar. May please the court. Edward Hemelfar, but the Department of Justice for former DEA agent, Robert Manches

. They knew as, as back as a question of things had just, they knew it was behind the house in the rear door. Knock and talk is the exception was for, you go where people go normally, police officers can knock at us at, ma'am, sir, did you see this going here? And in the context of that, like any public person could do, you see something with clear view. But here, this was the case, they knew exactly what they were going. And they knew what they were looking for, and they knew where it was, right? And I mean, at least the facts of the case based on what the assessor told them. I'm out of time, but I'll answer your question, if I may. Absolutely, go ahead. All the record shows is the assessor contacted Sheriff Butler. Told Sheriff Butler he believes he saw what may have been marijuana at the home. Based on that tip, the record says, Sheriff Butler passed that information to the High Valley Drug Task Force, which dispatched two officers to go talk. They went and didn't knock and talk. They had no evidence that it was there. There's nothing in the record saying where it was. They simply went to talk to the individual. The assessor could have been wrong. Maybe they were a buck out of these. It's a plant that kind of looks like marijuana. It could have been that. All they had was a tip, credible tip, went and went to talk to the person it was in plain view. And there's no allegation of any great conspiracy or cooperation between the departments. None of that's here. Thank you. Mr. Hemelfar. May please the court. Edward Hemelfar, but the Department of Justice for former DEA agent, Robert Manches. I'd like to respond quickly to the question about, knock and talk and you already have a suspicion. This court in the Edons against Kennedy Case said, you can have a suspicion. Still do a valid knock and talk. Even if you suspect before you go there, that this criminal activity taking place. And maybe more important than that, the spring court recently. Could you add the front door? That case involved both the front and rear doors, as I recall, you're around here. The front door first? Not necessarily, because in this case, as the photographs that the Covey submitted demonstrate, the officers arrived and they could see Mr. Covey standing outside the back. And I would suggest that the court look at page 50 of the joint appendix at the top photo. So if you look at, we start with that. With a lot of houses, if you go in the driveway, you're facing the front of the house. With this, as you can see, from here, if you go to the end of the driveway, you're in a 90 degree angle with the front of the house. What that means is when you come in the driveway, you're facing the side of the house. Which, by the way, was the side of the house and Mr. Covey was standing outside at the other door. So this photograph demonstrates as the officers came in the driveway, they could see him standing out there. And in addition, as we discussed in our brief, the photographs on the next couple of pages confirm that you could see at least part of the patio from where they parked. And we're assuming that's where they parked, by the way, the photographs, according to Plankton's brief, the photographs were taken after the lawsuit was begun. And for present purposes, we assume that that's an accurate representation where they parked. In our view, this case really starts and ends with the Alvarez decision, because under Alvarez, reasonable officers could believe that that decision allows them to talk to the homeowner if the homeowner is visible in the back or the side yard here. You don't have to go to the front door if he's visible out in the yard. For example, if you go up to knock at the front door and there's a porch and the homeowner's sitting on a chair on the porch, you don't have to knock on the door first before you turn and you talk to the person sitting outside. If there's a person standing in the front yard with a rake, you don't have to go up to the front door, knock, not getting it, it's come out and talk to that person either because he's visible right there. And the same thing applies to this side door. If he's standing outside as the company the ledges, the officers who see him do not have to go to the front door first in a futile effort to find him inside

. I'd like to respond quickly to the question about, knock and talk and you already have a suspicion. This court in the Edons against Kennedy Case said, you can have a suspicion. Still do a valid knock and talk. Even if you suspect before you go there, that this criminal activity taking place. And maybe more important than that, the spring court recently. Could you add the front door? That case involved both the front and rear doors, as I recall, you're around here. The front door first? Not necessarily, because in this case, as the photographs that the Covey submitted demonstrate, the officers arrived and they could see Mr. Covey standing outside the back. And I would suggest that the court look at page 50 of the joint appendix at the top photo. So if you look at, we start with that. With a lot of houses, if you go in the driveway, you're facing the front of the house. With this, as you can see, from here, if you go to the end of the driveway, you're in a 90 degree angle with the front of the house. What that means is when you come in the driveway, you're facing the side of the house. Which, by the way, was the side of the house and Mr. Covey was standing outside at the other door. So this photograph demonstrates as the officers came in the driveway, they could see him standing out there. And in addition, as we discussed in our brief, the photographs on the next couple of pages confirm that you could see at least part of the patio from where they parked. And we're assuming that's where they parked, by the way, the photographs, according to Plankton's brief, the photographs were taken after the lawsuit was begun. And for present purposes, we assume that that's an accurate representation where they parked. In our view, this case really starts and ends with the Alvarez decision, because under Alvarez, reasonable officers could believe that that decision allows them to talk to the homeowner if the homeowner is visible in the back or the side yard here. You don't have to go to the front door if he's visible out in the yard. For example, if you go up to knock at the front door and there's a porch and the homeowner's sitting on a chair on the porch, you don't have to knock on the door first before you turn and you talk to the person sitting outside. If there's a person standing in the front yard with a rake, you don't have to go up to the front door, knock, not getting it, it's come out and talk to that person either because he's visible right there. And the same thing applies to this side door. If he's standing outside as the company the ledges, the officers who see him do not have to go to the front door first in a futile effort to find him inside. I mean, they already know he's outside. So these photographs, I think, are really demonstrative of this point. In addition, the criminal complaint that the cub is also put in the record below says that upon arrival officers observed the white male standing under the deck near the rear basement walk out door. That's on page 33. The male appeared to be working at the work bench as officers approached the male. He began walking toward officers. At that point they could see and smell the marijuana. The idea was that they went to talk to him about this tip. What do you know about this? Somebody said there's marijuana here. What do you know about that? Well, that was kind of short circuit because when they got there and they saw him and they went to talk to him, it became really obvious that there was marijuana there. They could see it and they could smell it. At that point, there's no further point than asking many questions. They detained them and the rest of the case unfolded. And he eventually pleaded guilty. So that's basically... The plaintiffs will stuck with their pleading. That's right. There is this concept of pleading yourself out of court. And we suggest that this is really a case of that by putting in these photographs. They put enough facts forward, you're saying, that would establish, you know, otherwise there was visible site connection. Yes, would they put in the record below that does this efficiently for purposes of the however as? And that's in nutshell, that's their position. And it's the court's first question. So we have to try to answer them otherwise

. I mean, they already know he's outside. So these photographs, I think, are really demonstrative of this point. In addition, the criminal complaint that the cub is also put in the record below says that upon arrival officers observed the white male standing under the deck near the rear basement walk out door. That's on page 33. The male appeared to be working at the work bench as officers approached the male. He began walking toward officers. At that point they could see and smell the marijuana. The idea was that they went to talk to him about this tip. What do you know about this? Somebody said there's marijuana here. What do you know about that? Well, that was kind of short circuit because when they got there and they saw him and they went to talk to him, it became really obvious that there was marijuana there. They could see it and they could smell it. At that point, there's no further point than asking many questions. They detained them and the rest of the case unfolded. And he eventually pleaded guilty. So that's basically... The plaintiffs will stuck with their pleading. That's right. There is this concept of pleading yourself out of court. And we suggest that this is really a case of that by putting in these photographs. They put enough facts forward, you're saying, that would establish, you know, otherwise there was visible site connection. Yes, would they put in the record below that does this efficiently for purposes of the however as? And that's in nutshell, that's their position. And it's the court's first question. So we have to try to answer them otherwise. I'll defer to my co-pansel. Thank you very much. All right. All right, Ms. Hall. Yes, Your Honors, may it please the court and for purposes of clarifying the answer to your earlier question, the appellees of brief at page three contains the correct version of the facts. And it correctly states that the officers arrived and that they saw the, they did not go to the front door. Instead they saw Mr. Covey at the main door on the side and they approached him there. And even though the District Court's opinion does contain some incorrect facts at the beginning at page 74 of the Joint Appendix, the District Court correctly assesses the facts and bases its decision on that correct assessment. On page 74, the court states, in this case, in the criminal complaint as well as in the plaintiff's complaint filed in this court, it is clear that when the officers arrived at the plaintiff's home in order to conduct a knock and talk, Mr. Covey was present on the property and was on the back patio at a workbench, realizing that Mr. Covey was not inside the house, the officers proceeded to the backyard. We don't need to find any of the, about a judge, about a district judge. This is a knock and talk case, do we? Based on the fact that you've been, that has been already here. We believe that, first of all, we believe that it was a knock and talk case. We believe that even though a parent suggests that some special exception, some special law enforcement exception needs to exist in order to approach someone when you see them in the yard, we believe that it's the opposite. We believe that Girl Scouts, all manner of people are permitted to approach someone in their yard when they see them. And that the natural thing to do is to go directly to that person rather than to go see them on the side of the house and walk to another door, knock on the door, knowing that they're not there. And in fact, I think that could, you could argue that that is the wrong decision. And that begs the point that when the officers are faced with the decision of two doors, two possibilities of where to go, and a person at one of them, no person at the other one, and they are making that decision, and they are using their discretion. And the concept of qualified immunity shields them from making an incorrect decision and protects them from liability in that situation. Here we believe that number one, the law enforcement officer saw Mr. Covey at the home, they went to the appropriate door, they talked to him directly, they didn't search it, they didn't go and look out into his yard, they went directly to him and spoke to him. Number two, we are not aware of any United States Supreme Court law or any Fourth Circuit law that requires the officers to go only to one door or to knock at that door before they proceed to another door

. I'll defer to my co-pansel. Thank you very much. All right. All right, Ms. Hall. Yes, Your Honors, may it please the court and for purposes of clarifying the answer to your earlier question, the appellees of brief at page three contains the correct version of the facts. And it correctly states that the officers arrived and that they saw the, they did not go to the front door. Instead they saw Mr. Covey at the main door on the side and they approached him there. And even though the District Court's opinion does contain some incorrect facts at the beginning at page 74 of the Joint Appendix, the District Court correctly assesses the facts and bases its decision on that correct assessment. On page 74, the court states, in this case, in the criminal complaint as well as in the plaintiff's complaint filed in this court, it is clear that when the officers arrived at the plaintiff's home in order to conduct a knock and talk, Mr. Covey was present on the property and was on the back patio at a workbench, realizing that Mr. Covey was not inside the house, the officers proceeded to the backyard. We don't need to find any of the, about a judge, about a district judge. This is a knock and talk case, do we? Based on the fact that you've been, that has been already here. We believe that, first of all, we believe that it was a knock and talk case. We believe that even though a parent suggests that some special exception, some special law enforcement exception needs to exist in order to approach someone when you see them in the yard, we believe that it's the opposite. We believe that Girl Scouts, all manner of people are permitted to approach someone in their yard when they see them. And that the natural thing to do is to go directly to that person rather than to go see them on the side of the house and walk to another door, knock on the door, knowing that they're not there. And in fact, I think that could, you could argue that that is the wrong decision. And that begs the point that when the officers are faced with the decision of two doors, two possibilities of where to go, and a person at one of them, no person at the other one, and they are making that decision, and they are using their discretion. And the concept of qualified immunity shields them from making an incorrect decision and protects them from liability in that situation. Here we believe that number one, the law enforcement officer saw Mr. Covey at the home, they went to the appropriate door, they talked to him directly, they didn't search it, they didn't go and look out into his yard, they went directly to him and spoke to him. Number two, we are not aware of any United States Supreme Court law or any Fourth Circuit law that requires the officers to go only to one door or to knock at that door before they proceed to another door. And in fact, in Bradshaw and in Alvarez, the court declined to exercise and implement that kind of bright line, inflexible rule. Instead, the court indicated that reasonableness is the touchdown. Here we believe that the reasonable decision was the decision to approach the Covey's directly or Mr. Covey directly. And finally, when the court, and finally, as they pointed out in Edons, and Edons was not a case where they went to the front door or the back door, in fact, they went back to a shed, even in the face of no trespassing signs and in the face of a gated, locked, locked sense around the perimeter of the house. The court said even there if there was a Fourth Amendment violation, the officers were still entitled to qualify to immunity. Why? They were entitled to qualify to immunity because at that point, and I think that was in 1998, there was certainly no law precluding what they had done. And at this point, in 2009, there's certainly no West Virginia court, no United States Supreme Court, no Fourth Circuit law that requires the officers to choose a particular door or requires them to make the right choice. And second guess exactly what the homeowner thought appropriate door was. I have nothing further unless the court has questions. Just one thing. You would agree if we do have to make a factual determination, we don't have jurisdiction to decide this case on qualified immunity. You agree with that? I'm sorry, Your Honor? You agree that if we have to make a factual determination, if there's a factual question still existing, then we don't have jurisdiction under our precedent for a Fourth Circuit, we call it a jurisdiction, no matter we don't resolve, can't resolve factual matter, correct? That's a limiting as to interlocatory jurisdiction in these qualified immunity cases. I do, Your Honor, but I do not believe that you have to make a factual determination. So you think it's absolutely clear? Is that because of the complaint of the plaintiffs themselves, as to where he was when they were prior? That's because of the complaint and the materials that the plaint have chinchored with the complaint that are not in dispute. I mean, the complaint states that the Covey's were outside, he was outside at his workbench, and that's at the record page 13, paragraph 13. He doesn't dispute that. And the record page 33 states, up on arrival, the officer saw Mr. Covey working at his workbench. So there is no place in the complaint and no place at the record, or Mr. Covey says, that based on the photographs, it seems like there would be a question of fact as to how they could have seen Mr. Covey working at his workbench if they parked in the driveway. The driveway is, as they have tendered it, at the photograph, there really is not a driveway. There is a gravel or a dirt path that leads up, it appears to lead directly to the side where the workbench is visible. So we would maintain that no, the office, it's uncontroverted that the officer stated in the complaint at page 33 that they saw the Covey's, and that has not been contested

. And in fact, in Bradshaw and in Alvarez, the court declined to exercise and implement that kind of bright line, inflexible rule. Instead, the court indicated that reasonableness is the touchdown. Here we believe that the reasonable decision was the decision to approach the Covey's directly or Mr. Covey directly. And finally, when the court, and finally, as they pointed out in Edons, and Edons was not a case where they went to the front door or the back door, in fact, they went back to a shed, even in the face of no trespassing signs and in the face of a gated, locked, locked sense around the perimeter of the house. The court said even there if there was a Fourth Amendment violation, the officers were still entitled to qualify to immunity. Why? They were entitled to qualify to immunity because at that point, and I think that was in 1998, there was certainly no law precluding what they had done. And at this point, in 2009, there's certainly no West Virginia court, no United States Supreme Court, no Fourth Circuit law that requires the officers to choose a particular door or requires them to make the right choice. And second guess exactly what the homeowner thought appropriate door was. I have nothing further unless the court has questions. Just one thing. You would agree if we do have to make a factual determination, we don't have jurisdiction to decide this case on qualified immunity. You agree with that? I'm sorry, Your Honor? You agree that if we have to make a factual determination, if there's a factual question still existing, then we don't have jurisdiction under our precedent for a Fourth Circuit, we call it a jurisdiction, no matter we don't resolve, can't resolve factual matter, correct? That's a limiting as to interlocatory jurisdiction in these qualified immunity cases. I do, Your Honor, but I do not believe that you have to make a factual determination. So you think it's absolutely clear? Is that because of the complaint of the plaintiffs themselves, as to where he was when they were prior? That's because of the complaint and the materials that the plaint have chinchored with the complaint that are not in dispute. I mean, the complaint states that the Covey's were outside, he was outside at his workbench, and that's at the record page 13, paragraph 13. He doesn't dispute that. And the record page 33 states, up on arrival, the officer saw Mr. Covey working at his workbench. So there is no place in the complaint and no place at the record, or Mr. Covey says, that based on the photographs, it seems like there would be a question of fact as to how they could have seen Mr. Covey working at his workbench if they parked in the driveway. The driveway is, as they have tendered it, at the photograph, there really is not a driveway. There is a gravel or a dirt path that leads up, it appears to lead directly to the side where the workbench is visible. So we would maintain that no, the office, it's uncontroverted that the officer stated in the complaint at page 33 that they saw the Covey's, and that has not been contested. The fact that the Covey's did not see the officers does not mean that the officers did not see the Covey's. Thank you very much, Your Honor. Thank you, Ms. Hall. Mr. Andrew Sir. I'd like to pick up where that discussion just left off. The criminal complaint says, upon arrival, the officer saw white male under a deck. Upon arrival, as we've said, doesn't mean necessarily immediately upon entering the driveway. It means it could mean soon thereafter, as we've demonstrated in the report. Why it means soon thereafter, because it says upon, you'd be reading something into the word upon. Well, if I say, upon arrival, I saw someone, you can't, how do you read into it, or assume thereafter? We can't read in those words to that, that's pretty clear. Upon arrival, I saw, you know, Bill, doesn't say upon, shortly thereafter, arrival, I saw Bill, that's different, that's a different sentence, isn't it? I mean, we can't change the English language. Well, Your Honor, in our reply brief, we pointed out to the, just as one example, the Supreme Court's HOMDEN decision, where they say upon arrival, the German saboteurs, in the, in the Kirin case, were taken in the custody by the FBI. The German saboteurs weren't taken in the custody upon the arrival of their submarines on the beaches in New York and Florida. It was sometime thereafter. If I say tomorrow, to students that upon arrival in Richmond, I had dinner at such and such restaurant. That's true, but I had dinner about an hour after, and after I checked in the hotel. If I say upon arrival at the courthouse, I argued this case, it's true, but it doesn't mean immediately upon walking through the doors before going to the metal detectors. That phrase, as we've demonstrated in the reply brief, as a matter of meaning, is not, is not 100% clear, and then you have the photographs. Then you have the photographs. The photographs don't purport to say, this is exactly where the car was parked. It's just a photograph. I mean, they annotated it, but, I mean, the problem is, what you're from, they prosaing, they put all this stuff in their own case, and it made all these things to be weighed by the judge, and look at it, but what does it say that this depicts where exactly where the car was upon arrival, upon stopping, upon, where is that? It's just, that's a picture that accurately depicts the home. And, but, where is that in the record that that is annotated to say? This is our estimate

. The fact that the Covey's did not see the officers does not mean that the officers did not see the Covey's. Thank you very much, Your Honor. Thank you, Ms. Hall. Mr. Andrew Sir. I'd like to pick up where that discussion just left off. The criminal complaint says, upon arrival, the officer saw white male under a deck. Upon arrival, as we've said, doesn't mean necessarily immediately upon entering the driveway. It means it could mean soon thereafter, as we've demonstrated in the report. Why it means soon thereafter, because it says upon, you'd be reading something into the word upon. Well, if I say, upon arrival, I saw someone, you can't, how do you read into it, or assume thereafter? We can't read in those words to that, that's pretty clear. Upon arrival, I saw, you know, Bill, doesn't say upon, shortly thereafter, arrival, I saw Bill, that's different, that's a different sentence, isn't it? I mean, we can't change the English language. Well, Your Honor, in our reply brief, we pointed out to the, just as one example, the Supreme Court's HOMDEN decision, where they say upon arrival, the German saboteurs, in the, in the Kirin case, were taken in the custody by the FBI. The German saboteurs weren't taken in the custody upon the arrival of their submarines on the beaches in New York and Florida. It was sometime thereafter. If I say tomorrow, to students that upon arrival in Richmond, I had dinner at such and such restaurant. That's true, but I had dinner about an hour after, and after I checked in the hotel. If I say upon arrival at the courthouse, I argued this case, it's true, but it doesn't mean immediately upon walking through the doors before going to the metal detectors. That phrase, as we've demonstrated in the reply brief, as a matter of meaning, is not, is not 100% clear, and then you have the photographs. Then you have the photographs. The photographs don't purport to say, this is exactly where the car was parked. It's just a photograph. I mean, they annotated it, but, I mean, the problem is, what you're from, they prosaing, they put all this stuff in their own case, and it made all these things to be weighed by the judge, and look at it, but what does it say that this depicts where exactly where the car was upon arrival, upon stopping, upon, where is that? It's just, that's a picture that accurately depicts the home. And, but, where is that in the record that that is annotated to say? This is our estimate. But first of all, they wouldn't know what the big present they would, if you can't be seen, that you can't see. So he would have been a position to see where he stopped initially, so the picture can't purport to do that anyway, could it? Well, what the picture says is that on May 50th, the office is parked on grass with view of rear yard, 75 feet to patio door. And so, correct, at this stage, we don't have a record. We're at an, on a pro-say complaint, and we don't know anything about what the officer saw, or what they would claim their vantage point was. I've heard Mr. Buck say somehow that the officers, and I've never seen this stated before. I can be corrected on this. They might have smelled marijuana from 75 feet away. That's what they say. Well, something that says that's disputed. Well, what they said again is when they saw him, and this is the question that I'm raising, when they saw him, they observed marijuana and smelled marijuana. Again, where are they to observe marijuana on a workbench, if they're not already in the yard by the bench, to observe and smell marijuana, if they are already breaching the cartilage going back there. But they're probably not breaching it for court, what they say is they saw him back there. They're moving toward him. I mean, that's, that's in the process of seeing someone, well, it's kind of superfluous or ridiculous, but not going to front door when I see the inhabitant in the back. I mean, that's what the facts, it's your client put it in the cell. Upon arrival, that was a complaint said, they put it in there, and you can't use your own type statements and contradict what you said before. I mean, that's what they put in. And they said that, yes, we saw him, and we moved toward as we saw him, and then saw marijuana, we smelled it too. I mean, why is that inconsistent with defendant's version of what seems to become undisputed? They did put the criminal complaint in there, and it's, it's, it's our contention that that criminal complaint at this stage does not conclusively establish when they saw him, where they were, when they first saw him, whether they were already in the yard, when they saw him, and there's nothing more. It does, it's an extravices for purposes of a knock and talk that it's extravices, they saw him upon arrival. Now you're right, you could say, for a second, but that's the facts of the case. Did they put in a pun arrival? They saw him, and we know it was sometime before they didn't go to the front door, they said they saw him, and there's nothing that your client can really dispute of that, right? Because your client didn't see by their own version. They couldn't say, oh yeah, I saw him, because I've peeped around the corner and saw exactly what he stopped, because if you can see, you can be seen. So their evidence is that he couldn't see them

. But first of all, they wouldn't know what the big present they would, if you can't be seen, that you can't see. So he would have been a position to see where he stopped initially, so the picture can't purport to do that anyway, could it? Well, what the picture says is that on May 50th, the office is parked on grass with view of rear yard, 75 feet to patio door. And so, correct, at this stage, we don't have a record. We're at an, on a pro-say complaint, and we don't know anything about what the officer saw, or what they would claim their vantage point was. I've heard Mr. Buck say somehow that the officers, and I've never seen this stated before. I can be corrected on this. They might have smelled marijuana from 75 feet away. That's what they say. Well, something that says that's disputed. Well, what they said again is when they saw him, and this is the question that I'm raising, when they saw him, they observed marijuana and smelled marijuana. Again, where are they to observe marijuana on a workbench, if they're not already in the yard by the bench, to observe and smell marijuana, if they are already breaching the cartilage going back there. But they're probably not breaching it for court, what they say is they saw him back there. They're moving toward him. I mean, that's, that's in the process of seeing someone, well, it's kind of superfluous or ridiculous, but not going to front door when I see the inhabitant in the back. I mean, that's what the facts, it's your client put it in the cell. Upon arrival, that was a complaint said, they put it in there, and you can't use your own type statements and contradict what you said before. I mean, that's what they put in. And they said that, yes, we saw him, and we moved toward as we saw him, and then saw marijuana, we smelled it too. I mean, why is that inconsistent with defendant's version of what seems to become undisputed? They did put the criminal complaint in there, and it's, it's, it's our contention that that criminal complaint at this stage does not conclusively establish when they saw him, where they were, when they first saw him, whether they were already in the yard, when they saw him, and there's nothing more. It does, it's an extravices for purposes of a knock and talk that it's extravices, they saw him upon arrival. Now you're right, you could say, for a second, but that's the facts of the case. Did they put in a pun arrival? They saw him, and we know it was sometime before they didn't go to the front door, they said they saw him, and there's nothing that your client can really dispute of that, right? Because your client didn't see by their own version. They couldn't say, oh yeah, I saw him, because I've peeped around the corner and saw exactly what he stopped, because if you can see, you can be seen. So their evidence is that he couldn't see them. So how could they really contradict that if they were already put in? I know it's a problem, it's not useful, but we have to take these cases for as their plan, and that's what your client put in. Well, Your Honor, there's nothing more I can say about the face of the criminal complaint, and whether the establishes are not or what the photographs mean there, and we have in our brief an argument about the scope of Alvarez, well, let me address the tax assessor point real quickly. It's asserted that this is changing facts, that this is as if I've come into this appeal and changed facts, and that's not the case. The cubbies said in their opposition to the motion to dismiss, this is Doc, Doc at entry 41 at page two, where they can test that the marijuana was in plain view to the assessor. They say, additionally, when the agent entered curtallage at the rear walk out basement patio area, he further violated plainness, reasonable expectation of privacy, and then proceeded to compound the situation by snooping in the closed containers on plainness rear walk out patio area. And again, in opposition to the mansion's motion to dismiss DE48 at 11, where they say that he illegally searched plainness walk out basement patio personal effects. And then again, in objecting to the magistrate judges report, I don't know what else pro-save folks could have done. Now, no one's contested the marijuana was seen in the patio area, the briefs filed below by the defendants, including Mr. Butsbury, said the tax assessor observed what he thought to be marijuana in the patio area. And so we have a question wholly aside from the opening of a front door, which we maintain is regardless of what was seen when he did that highly problematic. In the wager case on which they rely from the six circuit, just the close by Canyon, Your Honor, in the wager case, which was a summary judgment case, in which the court said it was an unsettling intrusion. The court said tax assessors would be well advised to obtain consent or warrant as a matter of course, before breaching the curto, which because in many instances, such an intrusion may be a fourth amendment search, and this is that case, Your Honor. So we urge the court to reverse the rule 12 p6 dismissal. Thank you very much. Thank you so much. Mr. Andrew Sir, we note that you are court-upon it, and we want to thank you especially because of your work and your assistance to the court in taking these cases, we really appreciate that. And of course, we acknowledge the work of all counsels. In this case, we're going to come down, Greg Counselor, and first ask our esteemed court every day to dismiss us for the day. The son of a court stands adjourned until tomorrow morning at 9.30. God save the United States and the son of a court.

May I please the court? I'm Sean Andrew Sear. The court appointed me to represent the appearance, Leila and Christopher Covey. Their case lies near the core of the Fourth Amendment. Government agents intruded into the curtilage of the Covey's secluded rural home without a warrant, exigency or consent. Based on that conduct, the Covey's have stated a valid claim under the Fourth Amendment. Well, let me ask you this. Did you ever plead in your complaint or your griefs that you are seeking only nominal damages? Or more than that? Well, the complaint lists the damages. What damages would be available have not been briefed, but nominal damages would be a form of relief. And secondly, the injury that you claimed as it was resolved from the criminal proceeding rather than only the Fourth Amendment valid. There, Mr. Covey cannot recover damages from the criminal proceeding. So you're not asking for that? No. Any damages as a result of the criminal? He cannot recover damages for the criminal proceeding. Now, this would be that the scope of damages as it has been briefed, but at the very least nominal damages would be sought for the Fourth Amendment violation. If he were to receive any damages, wouldn't it undermine his criminal conviction? No, Your Honor. The determination on this issue, on this claim, which is the search claim, would not imply, demonstrate much less necessarily so the involuntary divest conviction because it would simply be a determination about what happened on that day and whether there was violation of the Fourth Amendment on that day. So we have cited hearing the pro-size in which the Supreme Court has said that a Fourth Amendment search claim in a section 1983 action that success on that claim is irrelevant to the validity of a conviction secured by a counsel guilty plea. And that is the test under Heck. The test under Heck is whether the success on that claim would demonstrate necessarily imply the involuntary divest conviction and if it will not necessarily demonstrate the involuntary divest conviction, then the claim proceeds and the Supreme Court has at least twice in tack and I'm aware of Nelson and Skinner said that we were careful in Heck to emphasize the word necessarily. So my answer to that question as we brief this issue is no, that this is a distinct claim. I'd like to begin with the officers and in particular the factual determination made by the District Court on that claim before I talk about the knock and talk exception. The District Court resolved the claim by finding on a pro-saicum complaint at the Rule 12B6 stage that the officers necessarily saw Mr. Cubby at his workbench outside before they entered the yard. And we have contested that binding. And if we back up in the record, this is where the court relied on Alvarez. I'll note and my colleagues can correct me if I'm wrong. I went back over the briefs in the District Court. I didn't see any of them citing Alvarez. The magistrate judge in the magistrate's report made a determination that it was clear that he was outside, clear to the officers, to that the Cubby's objective. They objected and said that based on the property and the way out of the residence, that the officers could not have seen him at the workbench until after they had breached the Courtaulds were in the private backyard area. The District Court said this court disagrees at the 12B6 stage. And the court invoked the criminal complaint submitted by officer of Spayho the following day and the photographs. And we submit that the criminal complaint does not speak to this issue of whether the officers saw Mr. Cubby before they entered the yard. You say ambiguous on that question. Just doesn't address that question. And the photographs. Did we be considering the criminal complaint at all at this stage? Well, the District Court have considered it at all. The Covey's filed the District Court complaint. And so as often happens in a pro-say case, the District Court will consider documents filed in opposition, including briefs, filed in opposition to a motion to dismiss in construing the pro-sayed pleadings. Our point is that that document on its face doesn't answer this question. And the photographs raise all kinds of questions because from the area where the officers parked, which was on grass partially partially on gravel, there is a wall that screens the door, the basement door off the patio. Mr. Manchester says in his brief, well, but the back of the patio would have been visible, which we can see it in, we said in our opening brief, but that's irrelevant if that's not where the workbench was. And in fact, the criminal complaint says, when they first saw him, he was at the door, and the Covey said below in objecting to the magistrate Judges report that the workbench was to the just to the left of that door. In other words, it was in a corner. And you're talking about the patio, the basement door. The basement door out by the patio. And so if a workbench is to the left of the door against the wall of the home, and then there's this perpendicular stone wall. So he's in that right angle area. And the officers are parked partially on the grass off the gravel up here. Is there any indication where the officers were parked? The Covey's annotated, the photographs, they submitted your honor. And so it would be J.A. 51, I believe, where they say this is where the officers parked on the grass. So it's the Covey's annotation of those photographs. That's the only indication. Right, that's the supplemental information. The complaint says your honor in perhaps, I have to get the particular paragraph, but it says they parked off the driveway. That's all right, I can't. On the grass. So we have a decision by the district judge under rule 12 p. 6 that turns on a factual finding on the basis of this Alvarez case that none of the other, none of the defendants even brought to the district court's attention. Now, beyond that, the scope of this knock and talk exception, we take our position is that they are expanding this beyond its logical breaking point. This is a limited license that allows what's called a licensed intrusion. What the Supreme Court has called an invitation or license that exists by custom, it's implied. It's the license the Supreme Court said more than 60 years ago extends to solicitors, hawkers, and peddlers to approach a front door. And it's what this court and tailor said allows a person to approach the front door of a castle and the court referred to a polster, a salesman, or an officer of the law. In other words, this is the license. They limited the license that allows visitors to approach a customary entranceway or a place where a visitor could reasonably expect to be received, which in almost every case is going to be the front door. This is grounded on implied consent. The notion being that the homeowner, unless the homeowner takes extraordinary steps to seal the cartilage, will be received at that door for a consensual encounter, which the homeowner can reject. The homeowner cannot answer the door, can speak from behind the door, can open the door, and kindly ask that visitor, that polster, that salesman, or that officer, to leave, and they must leave. And the irony here is that the knock-and-talk exception is being invoked by officers who are claiming that they saw him, but yet never, if we just take that as true for the sake of what I'm about to say, but never sought to get consent, never motion to the man, but cornered him against the back of his home, in the cartilage, in the patio area. Mr. Manchaz, I think, says in the brief, well, he didn't see us, doesn't mean we didn't see him. This is supposed to be a consensual encounter, not a sneak attack by officers, in the cartilage of a home, who have reason to suspect that there might be pot in that area. So this is taking this very limited license and our submission, expanding it, to what would be, in effect, a special law enforcement right for investigation in the cartilage as a matter of expediency and convenience. And I want to be clear about this. We are not arguing that there's an inflexible rule requiring visitors to begin every encounter at the front door in every single case, because there may be cases in which the back of a home or some other area is, under the circumstances, in customary entrance way, a place where visitors could expect to be received, but this is not that case. This is a case in which the photos indicate there's no entrance behind the home to the main residential part of the home. And what the officers are relying on is a basement door, a glass door under a deck, around the screening wall, with no walkway. There. So under these circumstances, is when you look at knock-and-talk cases, these are cases decided on developed records where we have circumstances that would allow a reasonable person to conclude that they're approaching a customary entrance way or a place otherwise where a visitor could be expected to be received. We turn to the tax assessor for the moment of, and again, go to the district courts' factual finding here. The district court said that the tax assessor didn't do anything beyond executing the normal responsibilities of his employment as a tax assessor, and that the coves have no reasonable expectation of privacy with regard to items viewable by the naked eye from the curtallage of their home when a property tax assessor is executing the responsibilities of his employment. Let me put aside our argument about the propriety of a government tax agent, in truting without home and or knowledge or consent into the curtallage of a home to gather information for the government to assess tax. Let's put that aside for the moment and just put him in the yard to assess property, like the tax assessor in the weed green case from the sixth circuit. The district court's determination that the tax assessor didn't do anything but execute normal responsibilities, and see, so only matters that were plainly viewable to the naked eye is not supported by this record. The record does not establish that the marijuana was plainly viewable to the naked eye. The coves have maintained, it wasn't. And if we go back and look at this in the record, the tax assessor never even advanced a fourth amendment merits argument in his motion to dismiss. In opposition to the other motions to dismiss, the coves said that the marijuana was not in plain view when the tax assessor was there. This isn't something that I'm bringing into the case after the fact. This is what the coves maintain in opposition to the motions to dismiss. They said it was not in plain view and that in fact, they alluded to personal effects and said that it wasn't in plain view and the assessor would have had to play a close container. The magistrate judge's report nonetheless said that marijuana was growing openly in the patio area. To that, the coves objected and said again, no, the only marijuana that was in that area when the assessor was there was in a non-transparent close container. But the criminal complaint that the coves himself submitted says that the officers could see what appeared to be marijuana on the workbench. Exactly, Your Honor. And that's, I think, where the confusion arises. The scene that the officer saw when they arrived later was not the scene that the assessor saw when the assessor was there earlier. And that's what the coves have been maintaining when they left the home, which is when the assessor came without notice, knowledge or consent. The marijuana was not out in the open. It was in a bin, in containers in the bin, in closed containers. And they have said this in opposition to the motions to dismiss about the closed container and they said in an objecting to the magistrate judge's report. I want to go back to my initial question because I'm having a little hard time with the fact that in the case that I said on the issue. Is the suit to recover nominal damages for the entry to the Courage? Or does R being intent for the suit to go further than that? Namely, are you gonna be challenging the seizure? Which you have weighed by pleading guilty? Now, I'm trying to figure out what is it you? Mr. Covey could get nominal damages. He cannot recover damages for having been convicted of the crime he acknowledges he is guilty of and is not challenging that conviction. He is not contending his innocent. He cannot get damages for that, Your Honor. So it is that your contending for the democrylation was the entry into the Courage? Yes, yes, Your Honor. And it's disconnected from his plea. And so if he is limited to nominal damages then he is limited to nominal damages. He cannot recover damages for having been convicted. And so getting back to the taxes as a certify if I can. You can, but if it cost of your three minutes you've left for a bottle. Your Honor, I'll, I'll, okay. Thank you. Say the rest of the bottle. Thank you. Mr. Butler. Thank you, Your Honor. Your Honor, it's my name is Thomas Buck and I represent the Ohio County assessor and her employees and the Ohio County Sheriff and his employees in this matter. On behalf of my clients I urge you to affirm the decision the court below because there plainly was no Fourth Amendment violation by any of my clients in this matter. What I'd like to start with, and first I'd like to respond to the questions you had earlier, plaintiff is actually seeking anywhere between five million and eight million depending on how your read is complaint. Any specific counts, not only for the Fourth Amendment but also for false imprisonment, false arrest and other things like that. Those are all set forth and it's complaint. That's one to respond to earlier. A question. Now, I'll start with the assessor. In the present case, the assessor didn't conduct a search. And before the plaintiff can bring a Fourth Amendment claim against my client, they got a show and alleged that a search occurred and that that search was inappropriate. We don't have a search here. There's no question of fact that's been raised and no pleading that anything happened other than the assessor going to do the assessor's job. This case is very similar to the wild green case and amazingly similar to the Taylor versus the Department of Natural Resources case. And the general idea is people do not have a reasonable expectation of privacy even in their cartilage when it comes to a postal worker coming to deliver mail or a package or a meter reader coming to do a job or in the Taylor case, a DNR officer coming and looking at the property. In the Taylor case, the DNR officer went through a lock fence, traveled up a private drive, walked all the way around the property even peered in the windows. Plenty of said this is a fourth-minute violation. Court looked at it and said no. The DNR officer there wasn't there for a search. He was checking the property doing what a DNR supposed to do. We don't have a problem here and they looked other little factors like the time of the day. Was it at night when something nefarious could happen? No, it was during the day. The DN officer left a calling card saying, hey, I was here doing my job. If we look at those factors in our case, in plaintiffs complaint paragraph seven, plaintive alleges 12 o'clock, my assessor was there. It's not in dispute, middle of the day, business hours, when you'd expect somebody to come do that kind of job. My assessor walked around the property. Assessors are allowed to figure the outside dimensions of the real estate for calculating value. They're allowed to walk around all aspects of the property. No search. What impact was your internal regulation that when you see no trespassing size you were to back off? Well, that comes down to a separate issue. Did the assessor violate an internal policy? Maybe. That internal policy can't create a fourth amendment claim. Bylating an internal policy on how you do the assessment doesn't change the assessment to an illegal search. That's what plaintive would need to show. And nothing in 189 CSR2 converts anything the assessor did or didn't do into a search. If it's not a search, we don't have a fourth amendment claim. What was he going, why did he open the door to their home? Well, we don't concede he did, but for purposes of today's argument. You have to do. You have to get to see that. On arguments. What plaintive alleges in their complaint is the assessor took the business card and assessment documents and set them inside the door. In West Virginia, a lot of people don't lock their doors. We don't have a real problem with crime and some areas. So assuming that's what happened, the assessor set the paperwork there inside the door and went about his business. Again, not a search. Now, did he violate a policy maybe by opening that door? Possibly, but that would be a state law issue. What about going into closed containers to find marijuana? Well, that's interesting because that's not a legend of plaintiffs complaint. In fact, that's not even a legend in any of the pleadings. The bin, rummaging around the bins, wasn't mentioned by the plaintiffs at all in the complaint. You can look at joint appendix number 11. It's not in there. Wasn't into a plaintiffs briefs. And that would be docket 35 and docket 41 wasn't in there. Wasn't in the rebuttal brief in docket 48. In fact, it surfaces later on as a new change in the facts. And plaintiffs have changed a lot of the facts to try to create a question of fact here when there isn't one. For example, plaintiffs have tried to argue that the officers parked in the grass. But if you look at paragraph number 11 of plaintiffs complaint, they say the officers pulled up in the driveway. So they changed the car from the driveway to the grass. We changed open view to hidden containers and rummaging around. There's no factual basis to support this rumbling for a round argument. And that's something they added after the fact when they wanted to try to get around the court's decision. In the case, and I assume that you can't take into consideration new facts that the appellants add just because they're trying to get around the court's decision. The state court issues the procedural rules, you mentioned. Not only do they not create a constitutional law standard, they don't create a civil cause of action of themselves. So plaintiff is trying to take an administrative provision and turn it into a constitutional law claim so he can stay to claim that he doesn't have otherwise. And we submit that it's inappropriate. And there's no precedent to support that. Further, the court below was very precise in how it decided this case. Didn't sweep with a broad brush. What they did is just cut out the state law claims and dismiss them without prejudice. Plaintiff is free to pursue the state law claims. They can go ahead if there's any claim under 189 CSR2, they're free to do that in the state court. They don't have to entangle it with a federal court. We don't have to have the federal court interpreting these internal procedures created by the state. The state court can do that. So that issue really isn't even before us now. Finally, even if there were some issues there, the Supreme Court is clearly held in the Davis Worship's share case that somebody in my assessor's position does not lose their qualified immunity simply because they may have violated an internal procedure or regulation. And they address that issue very clearly. You can't use this internal procedure to take away a qualified immunity. The only fact in this case are the assessors are doing an assessment. Whether you violated internal procedures or not is a state law issue. There was no search. We have no fourth member violation. If we even try to call a search, we have qualified immunity because we're allowed to be there. We're allowed to look around that property. We're allowed to be in the cartilage. So based on that, we argue that the dismissal of the assessor was appropriate and we ask that you guys affirm that decision. Moving on to my officers, we submit that there was no internal violation or no constitutional violation there either. Here, no question, a fact, this is a rural house in states of construction. The officers pull up to this house and there are two entrances. They're left with a decision, a quick decision, which door to choose. Are you saying there's some exegency here? No. Oh, you said a quick decision. Oh, you pull up, you look at the house, you make a decision which door you go to. A quick decision, though. Oh, then that'd be real quick, but you walk up on the house. I said they have a front door. I mean, go figure. Not real, it's a door. It's a walkway. In front door with a walkway. On present case, the idea of a front door, while that works in a lot of environments, doesn't always work in West Virginia. Because this is not suburbia. There's no street, there's no sidewalk, there's no picket fence, and there's no numbers over the door telling you what's the front door. There's no trespass signs. There are, there's no question, but there's plenty of cases. There's a gate and a sidewalk to a front door with an awning over it right next to the driveway in the photograph. There it is. There's a door on one side of the building. There's a door on the other side of the building. So where did they, where did they go? What they did is they chose the door where they saw the homeowner. They chose a large double door glass French door opening onto a porch. It was on ground level. There was no fence. You never knocked on the front door. They did not knock on the front door. Okay, so in the district court's opinion at page two where it says upon arrival at the home, the officers knocked on the front door and receiving no answer proceeded to walk to the back of the home where they found Mr. Covey and observed marijuana and the sense of marijuana. Where does that, where does that come from? It's in the district court's opinion of page two and again at page nine. Yeah, it gets the district court clarifies it later and says it went straight to the back door. I believe that may, I don't know where that came from. That may have been quite. Yeah, I think it was in a maulganation maybe of the assessor going to the front door knocking and then the officer is going directly to where they saw the, the, the, the. And where is the district court clarifying it? Where did actually not the district court where in your briefs is that clarified? I don't know if I clarified it in the brief at all, but it is, it is clear, cleared in the record later and I don't remember the page off hand. Perhaps one of my colleagues will later when they, you know, they might be able to address that a little more precisely. So all the, I mean, you indicated a minute ago that the plaintiff continued to change the facts. It appears all parties are changing the facts here under this. That's not changing the fact. I believe that it's possible. The original factual history by the way that may have had an error in it. The, the, the defendants are not changing any of the facts. The simple facts are the officers pulled up, saw him walked over and courts have shown and argued. The officers don't have to engage in some fancy algorithm or have a, have some type of crystal ball to figure out which door is the main entrance. This door was, I mean, house was under construction. As I said earlier, this door is the double door. The tax assessor, correct? The tax assessor called to the front door. The tax assessor contacted Sheriff Butler and informed him of seeing marijuana on the back, on the back porch area. So they went straight to the back porch area? The assessor went to the front door. But the officers since the assessor had told them the marijuana was on the back porch, they went straight to the back porch area. There's nothing in a record that says where the marijuana was or whether the assessor told anybody where it was. There's nothing in a record that sports that. Just that he saw it on the premises. They drove up there. They, to my, to my knowledge, I have no knowledge of the mask and wear. Uncontrovert facts are they pull up the driveway, have a clear sight of that entrance to the house. The plaintiffs wanna call the rear entrance and they see the gentleman there and they walk over to talk to him. Exactly what anybody would do. The girls' gout cookie salesman would do it. Anybody coming up to that place, sees the person there's gonna go talk to them. There's no violation there. At all. Some questions, facts is whether or not they saw him in the rear before they approached that the rear curb was in the factual questions which came for us over at Chicano A. No, plaintiffs complaint. Plaintiffs specifically says he was out there and the officers say we pulled up, he was out there. Now, plaintiffs wanna pretend the cops didn't see him and try to create a question of fact, but that was specific alleged he was outside. The officers pulled up upon arrival saw him. Very consistent with the facts there. So there's no real issue there, a fact was. Finally, even if there were some dispute or some argument of whether things were seen or whatever qualified immunity that clearly covers here. Alba rest says you can go around to the back door. The Kennedy case says you can. Bradshaw says if you smell moonshine, you can go around the back door. Here there's no factual dispute that the officer smelled marijuana. It's clearly in the record page 33, if I remember correctly. So if you can go check out, where were they when they smelled the marijuana? Where were they? Where were they? Pulled up the driveway, got out of the vehicle, so smelled an immediate upon arrival. If soon they, they, elighted the car, they smelled marijuana. Yes. Did we know how far away that was? Walk right over to the main door where the plane was working. Chopping it up? I'll tell you what, you know, linear feet. Didn't measure it, I think plane to Vargas is at 60 feet. Smell marijuana, not burning, 60 feet away. I have no experience with marijuana, but I've been told that it's very pungent, you can smell very clearly when you know what you're doing. And their ability to smell the marijuana is not in dispute in this case, just like in a Bradshaw case, the court specifically noted there was no dispute as to the officer's ability to smell moonshine. So that issue is not in dispute. Is this, that's a council. Is this really a knock and talk case? Or this really is, before they got there, they really, they knew there was contraband there. They knew as, as back as a question of things had just, they knew it was behind the house in the rear door. Knock and talk is the exception was for, you go where people go normally, police officers can knock at us at, ma'am, sir, did you see this going here? And in the context of that, like any public person could do, you see something with clear view. But here, this was the case, they knew exactly what they were going. And they knew what they were looking for, and they knew where it was, right? And I mean, at least the facts of the case based on what the assessor told them. I'm out of time, but I'll answer your question, if I may. Absolutely, go ahead. All the record shows is the assessor contacted Sheriff Butler. Told Sheriff Butler he believes he saw what may have been marijuana at the home. Based on that tip, the record says, Sheriff Butler passed that information to the High Valley Drug Task Force, which dispatched two officers to go talk. They went and didn't knock and talk. They had no evidence that it was there. There's nothing in the record saying where it was. They simply went to talk to the individual. The assessor could have been wrong. Maybe they were a buck out of these. It's a plant that kind of looks like marijuana. It could have been that. All they had was a tip, credible tip, went and went to talk to the person it was in plain view. And there's no allegation of any great conspiracy or cooperation between the departments. None of that's here. Thank you. Mr. Hemelfar. May please the court. Edward Hemelfar, but the Department of Justice for former DEA agent, Robert Manches. I'd like to respond quickly to the question about, knock and talk and you already have a suspicion. This court in the Edons against Kennedy Case said, you can have a suspicion. Still do a valid knock and talk. Even if you suspect before you go there, that this criminal activity taking place. And maybe more important than that, the spring court recently. Could you add the front door? That case involved both the front and rear doors, as I recall, you're around here. The front door first? Not necessarily, because in this case, as the photographs that the Covey submitted demonstrate, the officers arrived and they could see Mr. Covey standing outside the back. And I would suggest that the court look at page 50 of the joint appendix at the top photo. So if you look at, we start with that. With a lot of houses, if you go in the driveway, you're facing the front of the house. With this, as you can see, from here, if you go to the end of the driveway, you're in a 90 degree angle with the front of the house. What that means is when you come in the driveway, you're facing the side of the house. Which, by the way, was the side of the house and Mr. Covey was standing outside at the other door. So this photograph demonstrates as the officers came in the driveway, they could see him standing out there. And in addition, as we discussed in our brief, the photographs on the next couple of pages confirm that you could see at least part of the patio from where they parked. And we're assuming that's where they parked, by the way, the photographs, according to Plankton's brief, the photographs were taken after the lawsuit was begun. And for present purposes, we assume that that's an accurate representation where they parked. In our view, this case really starts and ends with the Alvarez decision, because under Alvarez, reasonable officers could believe that that decision allows them to talk to the homeowner if the homeowner is visible in the back or the side yard here. You don't have to go to the front door if he's visible out in the yard. For example, if you go up to knock at the front door and there's a porch and the homeowner's sitting on a chair on the porch, you don't have to knock on the door first before you turn and you talk to the person sitting outside. If there's a person standing in the front yard with a rake, you don't have to go up to the front door, knock, not getting it, it's come out and talk to that person either because he's visible right there. And the same thing applies to this side door. If he's standing outside as the company the ledges, the officers who see him do not have to go to the front door first in a futile effort to find him inside. I mean, they already know he's outside. So these photographs, I think, are really demonstrative of this point. In addition, the criminal complaint that the cub is also put in the record below says that upon arrival officers observed the white male standing under the deck near the rear basement walk out door. That's on page 33. The male appeared to be working at the work bench as officers approached the male. He began walking toward officers. At that point they could see and smell the marijuana. The idea was that they went to talk to him about this tip. What do you know about this? Somebody said there's marijuana here. What do you know about that? Well, that was kind of short circuit because when they got there and they saw him and they went to talk to him, it became really obvious that there was marijuana there. They could see it and they could smell it. At that point, there's no further point than asking many questions. They detained them and the rest of the case unfolded. And he eventually pleaded guilty. So that's basically... The plaintiffs will stuck with their pleading. That's right. There is this concept of pleading yourself out of court. And we suggest that this is really a case of that by putting in these photographs. They put enough facts forward, you're saying, that would establish, you know, otherwise there was visible site connection. Yes, would they put in the record below that does this efficiently for purposes of the however as? And that's in nutshell, that's their position. And it's the court's first question. So we have to try to answer them otherwise. I'll defer to my co-pansel. Thank you very much. All right. All right, Ms. Hall. Yes, Your Honors, may it please the court and for purposes of clarifying the answer to your earlier question, the appellees of brief at page three contains the correct version of the facts. And it correctly states that the officers arrived and that they saw the, they did not go to the front door. Instead they saw Mr. Covey at the main door on the side and they approached him there. And even though the District Court's opinion does contain some incorrect facts at the beginning at page 74 of the Joint Appendix, the District Court correctly assesses the facts and bases its decision on that correct assessment. On page 74, the court states, in this case, in the criminal complaint as well as in the plaintiff's complaint filed in this court, it is clear that when the officers arrived at the plaintiff's home in order to conduct a knock and talk, Mr. Covey was present on the property and was on the back patio at a workbench, realizing that Mr. Covey was not inside the house, the officers proceeded to the backyard. We don't need to find any of the, about a judge, about a district judge. This is a knock and talk case, do we? Based on the fact that you've been, that has been already here. We believe that, first of all, we believe that it was a knock and talk case. We believe that even though a parent suggests that some special exception, some special law enforcement exception needs to exist in order to approach someone when you see them in the yard, we believe that it's the opposite. We believe that Girl Scouts, all manner of people are permitted to approach someone in their yard when they see them. And that the natural thing to do is to go directly to that person rather than to go see them on the side of the house and walk to another door, knock on the door, knowing that they're not there. And in fact, I think that could, you could argue that that is the wrong decision. And that begs the point that when the officers are faced with the decision of two doors, two possibilities of where to go, and a person at one of them, no person at the other one, and they are making that decision, and they are using their discretion. And the concept of qualified immunity shields them from making an incorrect decision and protects them from liability in that situation. Here we believe that number one, the law enforcement officer saw Mr. Covey at the home, they went to the appropriate door, they talked to him directly, they didn't search it, they didn't go and look out into his yard, they went directly to him and spoke to him. Number two, we are not aware of any United States Supreme Court law or any Fourth Circuit law that requires the officers to go only to one door or to knock at that door before they proceed to another door. And in fact, in Bradshaw and in Alvarez, the court declined to exercise and implement that kind of bright line, inflexible rule. Instead, the court indicated that reasonableness is the touchdown. Here we believe that the reasonable decision was the decision to approach the Covey's directly or Mr. Covey directly. And finally, when the court, and finally, as they pointed out in Edons, and Edons was not a case where they went to the front door or the back door, in fact, they went back to a shed, even in the face of no trespassing signs and in the face of a gated, locked, locked sense around the perimeter of the house. The court said even there if there was a Fourth Amendment violation, the officers were still entitled to qualify to immunity. Why? They were entitled to qualify to immunity because at that point, and I think that was in 1998, there was certainly no law precluding what they had done. And at this point, in 2009, there's certainly no West Virginia court, no United States Supreme Court, no Fourth Circuit law that requires the officers to choose a particular door or requires them to make the right choice. And second guess exactly what the homeowner thought appropriate door was. I have nothing further unless the court has questions. Just one thing. You would agree if we do have to make a factual determination, we don't have jurisdiction to decide this case on qualified immunity. You agree with that? I'm sorry, Your Honor? You agree that if we have to make a factual determination, if there's a factual question still existing, then we don't have jurisdiction under our precedent for a Fourth Circuit, we call it a jurisdiction, no matter we don't resolve, can't resolve factual matter, correct? That's a limiting as to interlocatory jurisdiction in these qualified immunity cases. I do, Your Honor, but I do not believe that you have to make a factual determination. So you think it's absolutely clear? Is that because of the complaint of the plaintiffs themselves, as to where he was when they were prior? That's because of the complaint and the materials that the plaint have chinchored with the complaint that are not in dispute. I mean, the complaint states that the Covey's were outside, he was outside at his workbench, and that's at the record page 13, paragraph 13. He doesn't dispute that. And the record page 33 states, up on arrival, the officer saw Mr. Covey working at his workbench. So there is no place in the complaint and no place at the record, or Mr. Covey says, that based on the photographs, it seems like there would be a question of fact as to how they could have seen Mr. Covey working at his workbench if they parked in the driveway. The driveway is, as they have tendered it, at the photograph, there really is not a driveway. There is a gravel or a dirt path that leads up, it appears to lead directly to the side where the workbench is visible. So we would maintain that no, the office, it's uncontroverted that the officer stated in the complaint at page 33 that they saw the Covey's, and that has not been contested. The fact that the Covey's did not see the officers does not mean that the officers did not see the Covey's. Thank you very much, Your Honor. Thank you, Ms. Hall. Mr. Andrew Sir. I'd like to pick up where that discussion just left off. The criminal complaint says, upon arrival, the officer saw white male under a deck. Upon arrival, as we've said, doesn't mean necessarily immediately upon entering the driveway. It means it could mean soon thereafter, as we've demonstrated in the report. Why it means soon thereafter, because it says upon, you'd be reading something into the word upon. Well, if I say, upon arrival, I saw someone, you can't, how do you read into it, or assume thereafter? We can't read in those words to that, that's pretty clear. Upon arrival, I saw, you know, Bill, doesn't say upon, shortly thereafter, arrival, I saw Bill, that's different, that's a different sentence, isn't it? I mean, we can't change the English language. Well, Your Honor, in our reply brief, we pointed out to the, just as one example, the Supreme Court's HOMDEN decision, where they say upon arrival, the German saboteurs, in the, in the Kirin case, were taken in the custody by the FBI. The German saboteurs weren't taken in the custody upon the arrival of their submarines on the beaches in New York and Florida. It was sometime thereafter. If I say tomorrow, to students that upon arrival in Richmond, I had dinner at such and such restaurant. That's true, but I had dinner about an hour after, and after I checked in the hotel. If I say upon arrival at the courthouse, I argued this case, it's true, but it doesn't mean immediately upon walking through the doors before going to the metal detectors. That phrase, as we've demonstrated in the reply brief, as a matter of meaning, is not, is not 100% clear, and then you have the photographs. Then you have the photographs. The photographs don't purport to say, this is exactly where the car was parked. It's just a photograph. I mean, they annotated it, but, I mean, the problem is, what you're from, they prosaing, they put all this stuff in their own case, and it made all these things to be weighed by the judge, and look at it, but what does it say that this depicts where exactly where the car was upon arrival, upon stopping, upon, where is that? It's just, that's a picture that accurately depicts the home. And, but, where is that in the record that that is annotated to say? This is our estimate. But first of all, they wouldn't know what the big present they would, if you can't be seen, that you can't see. So he would have been a position to see where he stopped initially, so the picture can't purport to do that anyway, could it? Well, what the picture says is that on May 50th, the office is parked on grass with view of rear yard, 75 feet to patio door. And so, correct, at this stage, we don't have a record. We're at an, on a pro-say complaint, and we don't know anything about what the officer saw, or what they would claim their vantage point was. I've heard Mr. Buck say somehow that the officers, and I've never seen this stated before. I can be corrected on this. They might have smelled marijuana from 75 feet away. That's what they say. Well, something that says that's disputed. Well, what they said again is when they saw him, and this is the question that I'm raising, when they saw him, they observed marijuana and smelled marijuana. Again, where are they to observe marijuana on a workbench, if they're not already in the yard by the bench, to observe and smell marijuana, if they are already breaching the cartilage going back there. But they're probably not breaching it for court, what they say is they saw him back there. They're moving toward him. I mean, that's, that's in the process of seeing someone, well, it's kind of superfluous or ridiculous, but not going to front door when I see the inhabitant in the back. I mean, that's what the facts, it's your client put it in the cell. Upon arrival, that was a complaint said, they put it in there, and you can't use your own type statements and contradict what you said before. I mean, that's what they put in. And they said that, yes, we saw him, and we moved toward as we saw him, and then saw marijuana, we smelled it too. I mean, why is that inconsistent with defendant's version of what seems to become undisputed? They did put the criminal complaint in there, and it's, it's, it's our contention that that criminal complaint at this stage does not conclusively establish when they saw him, where they were, when they first saw him, whether they were already in the yard, when they saw him, and there's nothing more. It does, it's an extravices for purposes of a knock and talk that it's extravices, they saw him upon arrival. Now you're right, you could say, for a second, but that's the facts of the case. Did they put in a pun arrival? They saw him, and we know it was sometime before they didn't go to the front door, they said they saw him, and there's nothing that your client can really dispute of that, right? Because your client didn't see by their own version. They couldn't say, oh yeah, I saw him, because I've peeped around the corner and saw exactly what he stopped, because if you can see, you can be seen. So their evidence is that he couldn't see them. So how could they really contradict that if they were already put in? I know it's a problem, it's not useful, but we have to take these cases for as their plan, and that's what your client put in. Well, Your Honor, there's nothing more I can say about the face of the criminal complaint, and whether the establishes are not or what the photographs mean there, and we have in our brief an argument about the scope of Alvarez, well, let me address the tax assessor point real quickly. It's asserted that this is changing facts, that this is as if I've come into this appeal and changed facts, and that's not the case. The cubbies said in their opposition to the motion to dismiss, this is Doc, Doc at entry 41 at page two, where they can test that the marijuana was in plain view to the assessor. They say, additionally, when the agent entered curtallage at the rear walk out basement patio area, he further violated plainness, reasonable expectation of privacy, and then proceeded to compound the situation by snooping in the closed containers on plainness rear walk out patio area. And again, in opposition to the mansion's motion to dismiss DE48 at 11, where they say that he illegally searched plainness walk out basement patio personal effects. And then again, in objecting to the magistrate judges report, I don't know what else pro-save folks could have done. Now, no one's contested the marijuana was seen in the patio area, the briefs filed below by the defendants, including Mr. Butsbury, said the tax assessor observed what he thought to be marijuana in the patio area. And so we have a question wholly aside from the opening of a front door, which we maintain is regardless of what was seen when he did that highly problematic. In the wager case on which they rely from the six circuit, just the close by Canyon, Your Honor, in the wager case, which was a summary judgment case, in which the court said it was an unsettling intrusion. The court said tax assessors would be well advised to obtain consent or warrant as a matter of course, before breaching the curto, which because in many instances, such an intrusion may be a fourth amendment search, and this is that case, Your Honor. So we urge the court to reverse the rule 12 p6 dismissal. Thank you very much. Thank you so much. Mr. Andrew Sir, we note that you are court-upon it, and we want to thank you especially because of your work and your assistance to the court in taking these cases, we really appreciate that. And of course, we acknowledge the work of all counsels. In this case, we're going to come down, Greg Counselor, and first ask our esteemed court every day to dismiss us for the day. The son of a court stands adjourned until tomorrow morning at 9.30. God save the United States and the son of a court