Good morning. May I please the court? My name is John Gunter and I represent the appellant Nathan Webb. The District Court dismissed Webb's complaint on the ground that he failed to plausibly plead that his ex-girlfriend Nicole Upturge lacked actual authority to consent to a police search of his home. However, the District Court aired because Webb plausibly pleaded that Upturge lacked actual and apparent authority and because the District Court based its decision on unwarranted inferences from a North Carolina appellant opinion. Under United States V. Matlock, actual authority to consent to a search of a home rests not on a person's mere property interest, but upon all the surrounding circumstances that indicate that that person lacks joint access and control for most purposes. Thus, courts typically look at all of the surrounding factors in a case and utilize a multifactor totality of the circumstances test to determine whether joint access and control is present in any given case. Mr. Webb plausibly pleaded that Upturge lacked that joint access and control for most purposes because- She was on the lease, right? Yes, Your Honor, she was. How does that- hasn't at least one court held that that's sufficient? I'm not aware of a court that's held that at least by itself is sufficient on its own, Your Honor. I've certainly- Well, okay. A lease in this case would have been sufficient because after all she did live until two days or three days prior to it in this place, right? She did have keys then. I mean, taking all the facts of this case with her name on the lease, isn't there a circuit that would have said that's sufficient amount of ownership to give her a right to get into the house? I'm not aware of any circuit that has said that at this point, Your Honor, in- What's the right to- What's the right to have a less e? I'm not- To have property that she has leased. I'm not certain on the State Property Law issue, Your Honor. I would imagine that there is, while one is on the lease, that there would presumably be- It's a property interest, Your Honor. However, United States V. Matlock says- Property interest in what against the whole world? It'd be a- I'm sorry. If you rent an apartment, you have a right to live in it. Yes, Your Honor. I'm gonna house
. You have a right to live in it. You have a right to go and come at the house long as you're paying to rent. I suppose you can combine with the terms, even against the landlord, right? Yes, Your Honor. And she was the less e at the property at the time this occurred. Yes, Your Honor. That's true. And- But in this case, she had- In this case, the- The fourth amendment analysis of actual authority is distinct from the property law. Your man was the coalesce. Yes, Your Honor. It's a distinct analysis. He was somewhere else. He didn't show up at the house. No, Your Honor. He was there. Yes, Your Honor. And her belongings remained in the house. Your Honor, it's not clear precisely how much of her belongings remained at the time. The record indicates that she had sent a friend- Matter how much of her belongings were there. I think it does, Your Honor, because if- If it doesn't matter, then it could create issues where a person could simply leave behind just anything in a home and then leave to go somewhere else and live somewhere else and then say they somehow still have actual authority over that home to consent to a search
. But in this case, Your Honor, the facts that Web did plead on his side are that Upturge had surrendered her key to Mr. Web prior to the search. He said she's moving out. Yes, Your Honor. He entered the baby. Yes, Your Honor. She was leaving. And in addition- She used to know that too. And she did leave. Yes, Your Honor. Yes. She was staying with her family. She had moved to her family's home in Clayton, North Carolina, some 30 miles away from Mr. Web's home. Was that a Web's home in Raleigh? I believe it was in Kerry, Your Honor. Kerry, on the other side of town, on the other side of the city. Yes, Your Honor. And additionally, on the day of the June 4th search, she returned with the police to encounter a locked door. And then- Police were there because they were investigating the child abuse, right? Yes, Your Honor
. And so they- and she needed their things from the house, the babies things, and they escorted her there. I thought they were protecting her. They were worried about not so much investigating, but just being sure anything was okay with her. Going back to their house. Your Honor, the record's not completely clear as to the reason why they were with her. Off- Detective Braun did indicate in her police- Correct. Here's a complaint. Yes, Your Honor. What? The complaint mentioned the gun. They wrote that they- She had told me he had a gun in her- Yes, Your Honor. And- Is that in the record? The gun? Yes, Your Honor, it is. And I was referring to Detective Braun's police report, which is in the joint appendix. She had indicated- The complaint includes the complaint and the attachments to the complaint, correct? Yes, Your Honor. That's what we consider. Yes, Your Honor. Where are- in the joint appendix, there are only four pages of the attachments to the complaint. Where's the rest of the attachments to the complaint? I'm not certain, Your Honor, where the rest of it is. To be in the record. To be in the record on appeal
. Right. Right. I mean, this appendix is not the record on appeal. It's not in the joint appendix. Yes, Your Honor. Yes. So it is in the record on appeal and the statement of investigating officer, which was attached to the complaint, does indicate why they were there, says to assist Ms. Upchurch in parentheses, living girlfriend, in materie- being personal property from the residents, she shared with the defendant. That's what the attachment to the complaint says. Yes, Your Honor. And the- The- I guess what I was referring to is the detective, Braun and her police report, said that the reason that they were accompanying her was a matter of police procedure. And it's not clear what precisely the procedure is in that case. They would- because it would presumably be perhaps the investigation or perhaps because they- Mr. Webb and his complaint had said that there was no history of child abuse, or- I'm sorry, there was no history of domestic abuse among them. And so he had questioned why they would be accompanying her to the home. But as to the specific purpose of that, then it's- it would certainly yes to be to collect her things. But the reason that Detective Braun said that he had no choice in the matter was that- it was a matter of police procedure in that point. It's not clear exactly what was the reason for that procedure. There's a tell-home call between the- the lady and your client during this entry to the house, right? Yes, Your Honor
. And police officers. And they're saying- And ultimately one of the police officers says, we didn't need your pee anyway. Because- Is that right? Yes, Your Honor. Detective Braun- What does the detective- What does the police officer say? Detective Braun told Mr. Webb that they didn't need him because Ms. Ubshirtch had gotten into the residence. And then Mr. Webb responded that he was going to sue them because she had broken in. They had allowed her to break in to the residence. And that- because the door was locked at the time. And that she had no- You didn't have a pee. No, Your Honor. She gave- She- She'd given up the pee to him, is that right? Yes, Your Honor. And what's the evidence that she broke in? At this point, Your Honor, the evidence is the- The allegations that she broke in. What's the point of that? At this point, the- The- It's- The complaint that Mr. Webb stated that she broke into the home. The- The police reports are opaque at this point. They- They- Don't indicate one way or the other. I believe- Officer- Don't they- Don't they say that she- Guardian? Yes, Your Honor
. But that's- That's not the same thing. They don't say that she brought Togor- Key out. No, Your Honor. That's correct. And- Everybody acknowledges that there was this phone call or series of phone calls in which they tried to get his consent to get into the house, right? Yes, Your Honor. That's true. That took place what right before the actual entry? Yes, Yes, Your Honor. Do we know how many calls and what- What the timing was exactly? I don't believe we know precisely how many calls at this point, Your Honor. On this record, on the complaint, what have we done? He said it was multiple calls. Multiple calls. Yes, Your Honor. And- And that he told- He said- And he says in the complaint that the officers allowed her to force entry. Yes, Your Honor. Through a rear door. Yes. But by breaking in, is specifically what was that? This was- This was force entry. By breaking in, that's right. That's okay with the size. So there have been no affidavits filed by anybody, right? There are affidavits by the police officers at this point, but I believe they are- They're- In reference to a service and process issue
. At this point, there hasn't been anything from Ms. Upchurch or Mr. Web in this case. Was- Is there any affidavits from a police officer putting this fact in dispute- The fact about- They assisted- They watched her break into the house. I don't believe so, Your Honor. I believe that what we have- We have a police report that is not Determinate in one way or the other. That's right, Your Honor. Yes. And because this- Because at the pleading stage, we shouldn't decide factual disputes, then- We would argue that it should then proceed to discovery to see precisely- Did she, in fact- We wouldn't have been- And proceed to discovery. Even if you're right on this 12-B6 thing, They say- Even on the right on this part of the 12-B6, because they said in the- In the district court- That they also were entitled to 12-B6 relief based on qualified immunity. Which was not addressed. Yes, Your Honor. Wouldn't that have to be addressed first before you went to any discovery? Your Honor, get your weather on the basis of the complaint. They were in my- Yes, Your Honor. I think that that would be an appropriate remedy to see if- If in fact- Because it wasn't decided below. It was decided on actual authority grounds. You clearly didn't handle it below, right? No, Your Honor. Is- Is there transcript of what happened below? The transcript- I- I don't believe so, Your Honor. It's the- It's the district court's opinion and the memoranda from both Mr
. Webb and from the police officers. Was there hearing? I believe there- I'm not certain, Your Honor. Of that- What- At what point were you all- Was there already- At what point were you appointed? I guess I don't know. Did you compile the Joint Appendix? Yes, Your Honor. We compiled the Joint Appendix with the- With the Pozing Council. Who- They were representing Mr. Webb- Prior to this proceeding- Or- I'm sorry, they were representing the officers prior to this proceeding. Mr. Webb was a pro-say plaintiff in prison at the time that he filed this lawsuit. And then he has since been released. He wrote it out in hand. Yes, Your Honor, he did. He's been released now? Yes, Your Honor. In addition to the- Did he- Are these- Police reports filed by him- As- As attachments to the complaint- Exhibition to the complaint- I believe so. Well, the- The last page of the complaint- This says page 18 of 18, And then you go into- Some more stuff- Starting page 1 of 23. Yes, it looks to me like they were part of the complaint- The numbers would be continuous- The 18 of 41. Your Honor, he- I remember now that he took some of the- Um- Police- Parts of the police reports and attached them to the complaint- You don't- Would- Why- We- Do we know which ones were? He took- Right, the ones that are in the J.A. Or- Yes, Your Honor- Or- Or do we don't know that? Yeah, it's the ones that are in the- The joint- The joint- There's nothing attached to the complaint that's not in the J
.A. If we go back and look at the record- There would be- This would be exactly what's- In the record indicates. There- There might be one thing, Your Honor, I'm not certain- I believe there are several things- I read from one of them earlier- That's in the docket that was attached to the complaint- That's not in the J.A. Okay. But the record- The docket will show that- So- Yes, Your Honor- In addition to the- You don't- You don't know why they- This numbering here- Why they- Why they start out number in these- Police reports that page 1 of 23- Is if they're separate from the complaint- I believe that those are just photocopies of the police reports themselves- No, but we expect the record- The- The appendix ought to show- That's actually what we had in the records- It's going to- It's going to- It's going to- It's going to- It's going to- It's going to- It's going to- It's going to- It's going to- It's going to- It's going to- It's going to- You're not alone- Listen, there are people that have clerked for us- I don't understand- And- And we- And we- And we know- And the record- It's going to- And the record- So- So you- That's right, I'm not being- The- Thank you, Your Honor. That's right, say it's right. Say it never reads- It's got a rule, very closely- And they don't know the difference- But- But there is a major difference. Yes, Your Honor. Uh- And you- So you'll know it now- You'll be away head up- I'll- I'll- I'll remember it- From now on, Your Honor- In your life- In your life- In your life- It's important to note that, in addition to pleading plausibly- That up-tritch- Lackdack's- authority. The District Court wasn't saying that Mr. Web's pleadings were legally insufficient as a matter of law. It was relying on the State V Web opinion, the appeal from Mr. Web's criminal case, to find that a key fact from one of his pleadings was untrue. And in this case, it's the that up church was no longer residing at the residence that she was residing in Clayton, North Carolina. However, the Court drew an unwarranted inference from that opinion because the opinion simply referenced her intent for sleeping away from home. And it's actually completely consistent with a later decision to move out of the home. And in fact, that's precisely what Mr. Web alleges and that's what he put in his motion to alter or amend the judgment
. He included that argument as well. So with that unwarranted inference removed then, the key fact that she was no longer living at the residence is still should be taken as true for the purposes of the complaint. Is that an abandonment of the least then, as a matter of law, as that church of position is? By moving, or saying she was moving out and going home to her mother with the baby, does that constitute an abandonment of her legal rights as a lessee in your view, under the North Carolina law? It might your honor, but I think because Mr. Web is a layman. He's not- Otherwise, she'd been entitled to go back in there. If she is a lessee on the property, it looks to me like she can go get in the house. And I thought that if I go home and I don't have a key, I can title to enter my own house somewhere and other- Did you accept that? That she could enter the home because she was on the lease floor? Yes. I would say that that's certainly possible, but it's not clear to me what North Carolina property law would have to say on this issue, but I would emphasize that the Fourth Amendment inquiry is distinct from the property law inquiry. And in this case, it would be all of the fact suggesting whether she did in fact have that joint access and control for most purposes. And all of these other factors would then suggest that she did not have joint access and control for most purposes. So just being on the lease, if there were other factors the way- the other way, you would say that she didn't have the right under the Fourth Amendment. Yes, Your Honor, that's it. All right. I can't be understanding your argument. I'm going to lift it. Thank you. Thank you. Thank you. Thanks so much. May I please the court? Good morning. My name is David Coates. I represent the Appellese Defendants, Carrie Police Detective Braun, and Carrie Police Officer who has been out this month. I think it was important to establish what the district court had before it when it decided it was 12-E6 motion, which is- Well, you know, you have an obligation to also prepare, you're supposed to jointly appear, prepare the joint appendix, you're obviously an experienced lawyer. So it's probably a good idea to put everything in that's attached to the complaint, because the 12-E6 motion word, as my friend said, entitled to consider it all- Yes, Your Honor. And apparently it's not all in the record. I mean, in the joint appendix, is that correct? No, Your Honor. A point very well taken. It is not all in the record. It's not all in the joint appendix. It's all in the record, yes, sir. It is all in the joint appendix. Yes, sir. Okay. So there's some things left out of the appendix that ought to have been in there. Yes, sir. Yes. And I think the- Do you know what they are? Can you specify portions of the police narratives and the police report? You have Ben Houtton and Smith had their own narratives as Detective Braun, the road to Archer's and report, and that is partially in the joint appendix, but not completely, but it is completely in the record on appeal. Did any of that inform the issue here? I think it does somewhat since it was attached to the complaint about what the officers were dealing with on the night of June 4, 2010, yes, sir
. May I please the court? Good morning. My name is David Coates. I represent the Appellese Defendants, Carrie Police Detective Braun, and Carrie Police Officer who has been out this month. I think it was important to establish what the district court had before it when it decided it was 12-E6 motion, which is- Well, you know, you have an obligation to also prepare, you're supposed to jointly appear, prepare the joint appendix, you're obviously an experienced lawyer. So it's probably a good idea to put everything in that's attached to the complaint, because the 12-E6 motion word, as my friend said, entitled to consider it all- Yes, Your Honor. And apparently it's not all in the record. I mean, in the joint appendix, is that correct? No, Your Honor. A point very well taken. It is not all in the record. It's not all in the joint appendix. It's all in the record, yes, sir. It is all in the joint appendix. Yes, sir. Okay. So there's some things left out of the appendix that ought to have been in there. Yes, sir. Yes. And I think the- Do you know what they are? Can you specify portions of the police narratives and the police report? You have Ben Houtton and Smith had their own narratives as Detective Braun, the road to Archer's and report, and that is partially in the joint appendix, but not completely, but it is completely in the record on appeal. Did any of that inform the issue here? I think it does somewhat since it was attached to the complaint about what the officers were dealing with on the night of June 4, 2010, yes, sir. I think he's already admitted in the complaint in paragraph 10 that Miss Upturge had belongings in the house, admitted in paragraph 14 through 16, the complaint. He was voluntarily not present on the night of June 4, 2010, who was supposed to be there. Officer Smith called him time and time again. He hung up the phone. He- Well, but the officer calling time and time again, suggest to me that the officers- there is no claim here that the officers didn't know that he was asserting his rights to not have them come into his house in which he paid the rent and which he had all the keys. Well, Detective- And you're telling us once again, but I mean you somehow are relying on the fact that the police officers were called time and again that night before the entry, the unauthorized entry, or these surgedly unauthorized entry. I'm not sure somebody who has the least whole interest in the property can make an unauthorized entry- Well, you're the- you're the North Carolina lawyer here, sir. We expect you to know more about that than we would, or this young man from the University of Virginia, that you can probably tell us what the law is, for a less- for a less- interim- Yes, sir- property. There's a North Carolina landlord tenant act. It's discussed in detail in Westridge, Tredeson, North Carolina real estate law. She has an absolute right as a less need to go into that house. Well, is that featured in your brief? It is not featured in the briefs. Uh-huh. And I think- I guess there's an argument that the Fourth Amendment analysis is different from the property law analysis. I mean, there may be the same, but it may be different. There is case law that says that even if you do have a least-hold interest, you can be a person that is not entitled to entry, and under certain circumstances. The thing I'm most curious about is- is understand it, you made a argument that your clients were entitled to qualify to immunity below, that correct? Yes, Your Honor. But you have not made that argument in front of us. The Court did not reach that, Your Honor
. I think he's already admitted in the complaint in paragraph 10 that Miss Upturge had belongings in the house, admitted in paragraph 14 through 16, the complaint. He was voluntarily not present on the night of June 4, 2010, who was supposed to be there. Officer Smith called him time and time again. He hung up the phone. He- Well, but the officer calling time and time again, suggest to me that the officers- there is no claim here that the officers didn't know that he was asserting his rights to not have them come into his house in which he paid the rent and which he had all the keys. Well, Detective- And you're telling us once again, but I mean you somehow are relying on the fact that the police officers were called time and again that night before the entry, the unauthorized entry, or these surgedly unauthorized entry. I'm not sure somebody who has the least whole interest in the property can make an unauthorized entry- Well, you're the- you're the North Carolina lawyer here, sir. We expect you to know more about that than we would, or this young man from the University of Virginia, that you can probably tell us what the law is, for a less- for a less- interim- Yes, sir- property. There's a North Carolina landlord tenant act. It's discussed in detail in Westridge, Tredeson, North Carolina real estate law. She has an absolute right as a less need to go into that house. Well, is that featured in your brief? It is not featured in the briefs. Uh-huh. And I think- I guess there's an argument that the Fourth Amendment analysis is different from the property law analysis. I mean, there may be the same, but it may be different. There is case law that says that even if you do have a least-hold interest, you can be a person that is not entitled to entry, and under certain circumstances. The thing I'm most curious about is- is understand it, you made a argument that your clients were entitled to qualify to immunity below, that correct? Yes, Your Honor. But you have not made that argument in front of us. The Court did not reach that, Your Honor. It decided the 12b6 on the grounds of common authority to allow entry into the house, and it did not discuss the process defenses of the qualified. You're familiar with the fact that we can affirm on any grounds that it's fairly presented to us. Yes, Your Honor. That's right. That's what I'm saying. And it's presented to us, I guess. I appreciate that. I would mention that Detective Braun before the entry on June 4, 2010 did have conversations with Mr. Webb, Officer Smith tried. Detective Braun got through, and he said, I'm not coming back to the house. I'm not coming back to the house at all. So it's different than the Fernandez case, for example, which I think is a stronger case, and I think the case- Fernandez versus California case, it was decided a couple weeks ago by the Supreme Court, is the strongest case on point. I think that case was even stronger for the objecting co-tenant, because in that case, the objecting co-tenant was physically present and objected, was taken from the scene, pursuant to a lawful arrest, but was physically present and objected, waltzically present, to the search. It doesn't this, I don't think the record is unclear that he objected and continued to object, and was objecting seconds before they entered. And the police officer indeed, I mean, in the record before us, the police officer calls him back and sort of is, yada yada yada, you lose because we got in anyway, too bad for you. Kind of rub it in. Yeah, so I don't, I don't think that's your strongest argument. I mean, I think he's made his objection to the entry pretty clear. But the Fernandez case- He hasn't just abandoned the house
. It decided the 12b6 on the grounds of common authority to allow entry into the house, and it did not discuss the process defenses of the qualified. You're familiar with the fact that we can affirm on any grounds that it's fairly presented to us. Yes, Your Honor. That's right. That's what I'm saying. And it's presented to us, I guess. I appreciate that. I would mention that Detective Braun before the entry on June 4, 2010 did have conversations with Mr. Webb, Officer Smith tried. Detective Braun got through, and he said, I'm not coming back to the house. I'm not coming back to the house at all. So it's different than the Fernandez case, for example, which I think is a stronger case, and I think the case- Fernandez versus California case, it was decided a couple weeks ago by the Supreme Court, is the strongest case on point. I think that case was even stronger for the objecting co-tenant, because in that case, the objecting co-tenant was physically present and objected, was taken from the scene, pursuant to a lawful arrest, but was physically present and objected, waltzically present, to the search. It doesn't this, I don't think the record is unclear that he objected and continued to object, and was objecting seconds before they entered. And the police officer indeed, I mean, in the record before us, the police officer calls him back and sort of is, yada yada yada, you lose because we got in anyway, too bad for you. Kind of rub it in. Yeah, so I don't, I don't think that's your strongest argument. I mean, I think he's made his objection to the entry pretty clear. But the Fernandez case- He hasn't just abandoned the house. But the Fernandez case says you've got to be physically present. He was not present, that's right. Right. That's exactly right, but they knew that he didn't- They cured that problem by calling him all at on. Your client's in it, President. And he's in the crisis whether she whether he's well at 12b6 here, whether he's led to nothing to complain. But do you take a position? Would you take a position or plan to take a position? Your client's title, a qualified immunity on the basis of the record as it present exists. Yes, the officers were acting. So if we were to be a review that complaints sufficient, would you immediately then go to discovery or would you try to litigate the, and get resolved the visual versus foresight claim that you throw into your brief in the district court? I don't think the discovery would be needed, Your Honor. You think you can win on qualified immunity right now? Yes, sir. Do we have a right to decide that issue right here now? For the court of the field? I believe so. But why would we decide it when the district court didn't even address it? Did you didn't raise it on the field? No, sir. So I think I'll reach the valid court. I think the the practice from the the six circuit, for example, Your Honor, when Your Honor mentioned that the the leasehold interest in and of itself suffice, the language in the the practice in the six circuit does say that the co-tenant who allowed entry had a leasehold interest in that leasehold interest in and of itself quote strongly supports the police officers reliance on that fact. No, but there's a case from the 11th circuit that said a spouse who jointly owned the property wasn't didn't have a lease, didn't have an inter-sufficient interest. So I mean, you know, I think the law is all over the place. I don't think Your Honor, with since Fernandez has come out that it really is all over the place because you've got to be physically present to object. And there's no physically presence to object here. And so, under Fernandez, even though if you object time and time again, even if you tell the officers by phone, by fax, by email, by text, what have you? I object to your entry into the house and I object to the co-tenant, allow me entry into the house
. But the Fernandez case says you've got to be physically present. He was not present, that's right. Right. That's exactly right, but they knew that he didn't- They cured that problem by calling him all at on. Your client's in it, President. And he's in the crisis whether she whether he's well at 12b6 here, whether he's led to nothing to complain. But do you take a position? Would you take a position or plan to take a position? Your client's title, a qualified immunity on the basis of the record as it present exists. Yes, the officers were acting. So if we were to be a review that complaints sufficient, would you immediately then go to discovery or would you try to litigate the, and get resolved the visual versus foresight claim that you throw into your brief in the district court? I don't think the discovery would be needed, Your Honor. You think you can win on qualified immunity right now? Yes, sir. Do we have a right to decide that issue right here now? For the court of the field? I believe so. But why would we decide it when the district court didn't even address it? Did you didn't raise it on the field? No, sir. So I think I'll reach the valid court. I think the the practice from the the six circuit, for example, Your Honor, when Your Honor mentioned that the the leasehold interest in and of itself suffice, the language in the the practice in the six circuit does say that the co-tenant who allowed entry had a leasehold interest in that leasehold interest in and of itself quote strongly supports the police officers reliance on that fact. No, but there's a case from the 11th circuit that said a spouse who jointly owned the property wasn't didn't have a lease, didn't have an inter-sufficient interest. So I mean, you know, I think the law is all over the place. I don't think Your Honor, with since Fernandez has come out that it really is all over the place because you've got to be physically present to object. And there's no physically presence to object here. And so, under Fernandez, even though if you object time and time again, even if you tell the officers by phone, by fax, by email, by text, what have you? I object to your entry into the house and I object to the co-tenant, allow me entry into the house. That is in material. You've got to be physically present at the house object. And absent that, the co-tenant has that authorization. The only question is, did the co-tenant miss up church have that common authority? Well, I would agree with you that Fernandez is very helpful except for the fact that your client kept calling the defendant so that it wasn't like they can argue as was argued in Fernandez. Well, he's gone away. He doesn't know he's not here to object. They brought him his objection present to the site by continually calling them. I respectfully think that. And they knew that because then they called him after they got in the house and said, you know, we didn't need you. So that they they knew full well that he continued to object. Unlike Fernandez, where you just walk away and you're not there to object. They knew at the time they got in the house that he was objecting. According to this complaint, maybe your client say something else, but it doesn't sound like they do. It sounds like they can see that fact. I don't I mean, we can see the fact that we tried him time and time again because he was supposed to meet us at the house on June 4th, but he objected to you're going in. He did a fact missing in Fernandez. I don't believe so, Your Honor, because Mr. Fernandez did object and he was taking away the scene by an arrest. Right
. That is in material. You've got to be physically present at the house object. And absent that, the co-tenant has that authorization. The only question is, did the co-tenant miss up church have that common authority? Well, I would agree with you that Fernandez is very helpful except for the fact that your client kept calling the defendant so that it wasn't like they can argue as was argued in Fernandez. Well, he's gone away. He doesn't know he's not here to object. They brought him his objection present to the site by continually calling them. I respectfully think that. And they knew that because then they called him after they got in the house and said, you know, we didn't need you. So that they they knew full well that he continued to object. Unlike Fernandez, where you just walk away and you're not there to object. They knew at the time they got in the house that he was objecting. According to this complaint, maybe your client say something else, but it doesn't sound like they do. It sounds like they can see that fact. I don't I mean, we can see the fact that we tried him time and time again because he was supposed to meet us at the house on June 4th, but he objected to you're going in. He did a fact missing in Fernandez. I don't believe so, Your Honor, because Mr. Fernandez did object and he was taking away the scene by an arrest. Right. And I think according to the opinion in Fernandez, again, it's immaterial, the method of communication of the objection. You've got to be physically present standing with y'all throughout the premises. And if it's by telephone, you're saying, you object, I don't believe that's I believe that's immaterial, Your Honor. Well, Fernandez might help you on a qualifying immunity argument. I'll give you that, but I don't think Fernandez brings you home without that on on a complaint. What's your best argument standing there on your feet is for why you're entitled to a qualified immunity. Your clients are entitled to a qualified immunity. That the the officers who are present at the scene, Ben Houten and Smith and Detective Braun, we're all acting pursuant to their roles, official roles and their official capacity for the Carri Police Department. The the narratives of their reports are there and that they were pursuant to those those actions they were acting. They were entitled to a qualified immunity. You say they acted reasonably? Yes, sir. Good, mate. Yes, sir. They did not force entry. If entry was forced at all into the house, misuptchurch of her own accord entered the house and of her own accord, allow the officers in the house. The officers did not do any of that. And again, with respect to the common authority, you have a woman who had at least old interest in the property. She lived there continuously for nine months. She had personal belongings in the property
. And I think according to the opinion in Fernandez, again, it's immaterial, the method of communication of the objection. You've got to be physically present standing with y'all throughout the premises. And if it's by telephone, you're saying, you object, I don't believe that's I believe that's immaterial, Your Honor. Well, Fernandez might help you on a qualifying immunity argument. I'll give you that, but I don't think Fernandez brings you home without that on on a complaint. What's your best argument standing there on your feet is for why you're entitled to a qualified immunity. Your clients are entitled to a qualified immunity. That the the officers who are present at the scene, Ben Houten and Smith and Detective Braun, we're all acting pursuant to their roles, official roles and their official capacity for the Carri Police Department. The the narratives of their reports are there and that they were pursuant to those those actions they were acting. They were entitled to a qualified immunity. You say they acted reasonably? Yes, sir. Good, mate. Yes, sir. They did not force entry. If entry was forced at all into the house, misuptchurch of her own accord entered the house and of her own accord, allow the officers in the house. The officers did not do any of that. And again, with respect to the common authority, you have a woman who had at least old interest in the property. She lived there continuously for nine months. She had personal belongings in the property. She brought her child there. She and the child lived together for six weeks in the house until the loniest child abuse occurred. And she did leave the house voluntarily once the child abuse became manifest. But respect what you're on, I think that is something that has seen time and time again in domestic abuse cases where you have the the suffering partner goes to a shelter, goes to a family's house to sat in the other. They still have a at least old interest in their apartment or their rental house. I don't think because you're the subject of domestic abuse or subject to abuse of your child that you've lost all rights and interest to go back to that house to get your personal belongings whenever you want to. And so I think it, it, it, it, it, in the Supreme Court supports that in the Fernandez decision. They speak directly to that point that you're making. Yes, Your Honor. I don't think anyone can say on the June 4, 2010, Nikki Upshirsch did not have a right to go to that house on 12, 12, old impacts from carry. You go into that house. Yeah, but the question is whether the officers had the right to go in due to his steadfast objection, explicit objections that I don't want you in my house. And they knew it. They kept calling him and they kept saying don't go in there. I think so. You know, maybe you, maybe you're right on the, on the young lady going to get her blowing. But maybe he states a claim on the rest of I don't believe so. You're right. Once she enters the house, it, or her own manner of her own volition in her, her own accord
. She brought her child there. She and the child lived together for six weeks in the house until the loniest child abuse occurred. And she did leave the house voluntarily once the child abuse became manifest. But respect what you're on, I think that is something that has seen time and time again in domestic abuse cases where you have the the suffering partner goes to a shelter, goes to a family's house to sat in the other. They still have a at least old interest in their apartment or their rental house. I don't think because you're the subject of domestic abuse or subject to abuse of your child that you've lost all rights and interest to go back to that house to get your personal belongings whenever you want to. And so I think it, it, it, it, it, in the Supreme Court supports that in the Fernandez decision. They speak directly to that point that you're making. Yes, Your Honor. I don't think anyone can say on the June 4, 2010, Nikki Upshirsch did not have a right to go to that house on 12, 12, old impacts from carry. You go into that house. Yeah, but the question is whether the officers had the right to go in due to his steadfast objection, explicit objections that I don't want you in my house. And they knew it. They kept calling him and they kept saying don't go in there. I think so. You know, maybe you, maybe you're right on the, on the young lady going to get her blowing. But maybe he states a claim on the rest of I don't believe so. You're right. Once she enters the house, it, or her own manner of her own volition in her, her own accord. And then she voluntarily lets the police officers in. I wish it had to just judge, dress, and fall out of anything too. And we, at least we maybe we could have picked something here. Yes, I had a election process. Yes, sir. Which way? Right. I don't know. I, I, you just told you just sort of abandoned that. In the district court and then on the, and then saying about it, I don't want to be a leader. There was no hearing just a quick, correct? No, you're honor. There was not. But he had, you, you raised it in your brief and he ruled against you. Did you go back and ask for reconsideration on any? He did not rule against us on that issue or the issue. I was expecting back. He didn't dress the qualified immunity issue. He didn't go back and say that. We did not go back and ask the district court to do that. I would also just, as a minor point, I think such that in particular mentions the record for the court and what's to be decided on in the 12-E6 motion. The rule 59, Emotion that the plaintiff filed after the district court entered the order to dismiss the reply brief, for example, mentions certain facts from that
. And then she voluntarily lets the police officers in. I wish it had to just judge, dress, and fall out of anything too. And we, at least we maybe we could have picked something here. Yes, I had a election process. Yes, sir. Which way? Right. I don't know. I, I, you just told you just sort of abandoned that. In the district court and then on the, and then saying about it, I don't want to be a leader. There was no hearing just a quick, correct? No, you're honor. There was not. But he had, you, you raised it in your brief and he ruled against you. Did you go back and ask for reconsideration on any? He did not rule against us on that issue or the issue. I was expecting back. He didn't dress the qualified immunity issue. He didn't go back and say that. We did not go back and ask the district court to do that. I would also just, as a minor point, I think such that in particular mentions the record for the court and what's to be decided on in the 12-E6 motion. The rule 59, Emotion that the plaintiff filed after the district court entered the order to dismiss the reply brief, for example, mentions certain facts from that. Yeah, we can. Okay. Okay. Thank you, Your Honor. Thank you very, I, I think we understand. Thank you very much. Thank you very much. Mr. Gunter, do you have any Rebona? Your Honor, I just like to emphasize quickly once again the distinction in the Fourth Amendment analysis and the State Property Law analysis. Certainly the State Property Law interest is relevant to any consideration of whether a person has joint access and control from those purposes under the Fourth Amendment. But in this case, we would argue that it's not, in this case, in these cases with so many facts indicating that up church lack that access, we would argue that it's not dispositive. And in this case, she had specifically indicated to Mr. Webb that she was no longer going to be living in the home, that she was moving to her family's home in Clayton, North Carolina, as you said on the other side of town, Your Honor. And, and then she had given back her key and that she, and that she broke into the home. It's, at that point, Your Honor, it's, that indicates that she did not have the joint access and control for most purposes on that day. And that she, in fact, instead had to use force to break in over the objections of Mr. Webb. Thank you. Thank you very much
. We would like to come down and greet the lawyers and then we'll take a short recess. And Mr. Grunter, I understand that you are court appointed as well. I understand tha