Legal Case Summary

You see it? Call the case of US versus Hill and Mr. Greenlee whenever you're ready to proceed. Good morning, Your Honors, and may I please the court. My name is Andrew Greenlee, and I'm here on behalf of the defendant Robert Hill. I intend to discuss the probationary search issue, and I'll leave the remaining issues to my co-counsel. Your Honors, a home visit is not the same thing as a warrantless search. And when a defendant agrees as a condition of his probation to allow his own probation officer to conduct a home visit, it's not the same thing as allowing any officer at any time for any reason to intrude his home. In this case, after the arrest, after the protective sweep, and after the removal of the defendant's from the scene, law enforcement should have gotten a warrant. At that point in time, the government transformed from a supervisory function into an investigatory function. And at that point in time, there was no, we know from nights and we know from Samsung, and at that point in time, the governmental interest in supervision had really disappeared. Could I ask about that, sir? If I did not misread nights, Griffin, and Samson, they talk about balancing the expectation of privacy that a parolier probationer has, and they say two things about that. Number one is the status itself by virtue of all of the conditions of supervised release of probation, as well as in addition to that, whatever effect, whatever language in a special condition might have been. Here we have standard condition 10, which allowed a home visit in the seizure of contraband and plane sight, not as much as what was in nights in Samson. But on the other hand, they were pretty clear that given the need for the state, that then you get into a totality of the circumstances, test, and reasonableness, isn't it true that you're not claiming that there wasn't, if not probable, cause at least, reasonable suspicion, after they found what they found when the agents went upstairs to affect the arrest? You're not denying that already. You're on our, we would concede that there is a certain degree, a certain diminution in the expectation of privacy, simply by virtue of the fact that somebody is on probation. We recognize that

. We would agree that at the point in time that they arrived upstairs, they might have reasonable suspicion if the standard is reasonable suspicion. Where we part ways with your analysis is that in these other cases, in Griffin, Nights and Samson, there was a blanket waiver that any law enforcement officer, at any point in time, could it conduct a warrantless search of the premises? In this case, we have nothing near that. We do have a home visit, but that, again, we submit that it's not the same thing. But your argument strikes me as a scope of consent argument that he consented to a home visit, but not a warrantless visit. And the Supreme Court was very clear in all of their cases, Nights, Griffin, and Samson, that they were not reaching consent. It was a diminished expectation of privacy. And they didn't say, so for example, if you look at Samson, there was no suspicion at all. There was no reasonable suspicion or anything. It's a very fluid test. The Supreme Court seems to have articulated that once you get that lowered expectation of privacy and the heightened public policy interest, that totality of the circumstances and reasonableness kicks in. And I hear you saying something different than that. But again, we don't disagree that in that particular case, if you look at Samson, the law enforcement officer knew that the person was on probation, he knew that as a condition of all California provisions, he could search that person. And he expressly said, I knew that I could search that person because of the California law permits it. Now, we know here from the government's own regulations in the U.S

. probation office, their own monograph. A home visit is a different animal from a full-blown warrantless search. The government knows how to, they know how to, as a condition of probation or parole, they know how to impose that condition. And in this case, they chose not to. That suggests that the government, in its own regulations, recognize that there is a, their interest in supervising these people is less than it would otherwise be if there were somebody who, for instance, were on parole than somebody who was on probation. Really, didn't we decide this very issue in the Bradley case? Didn't you present that case to us? This 1978 decision that had a strikingly similar condition such as this, that a lot for home business, and didn't we say there that in the absence of exigen circumstances that the officers were required to get a warrant? Your Honor, yeah, that's what the court said. I granted that that was bizarre. Is that case no longer a good law in light of these other cases that are at the Supreme side? I do believe that the analysis has changed slightly, but we think that it's informative in so far as once these defendants had been arrested, removed from the scene. At that point, the government's interest in the supervision of probationers is evaporated. There's nothing left. All there is at that point in time is the government's interest in investigating the commission of crime. And at that point, they conducted this walkthrough search. Of course, they brought along Agent Zumo, but the defendants weren't there. It wasn't a home visit because the defendants weren't even present. They conducted this intrusive walkthrough search, investigated the entirety of the premises

. And then, in my view, they should have stopped. They could have very easily. There would have been no problem to get a warrant at that point. After they've removed these people from the scene, after they've effectuated the purpose of their very home visit, they should have stopped and they should have gotten a warrant. Because at that point in time, it's a law enforcement function. It's no longer a function of the U.S. probation office supervising probationers. And for these reasons, Your Honor, I think that this court should reverse. All right. Thank you very much. Mr. Cornbren. Please, the court. I'm going to briefly address the dog search issue

. What's important is what the defendants did not object to in this case. Clearly the officers had a right to enter the home to affect the arrest. Clearly the officers had a right to do the Maryland versus Buie protective sweep through the apartment to make sure they were safe during that operation. We're not objecting to the limited items they saw in plain view when they did the Buie sweep. They saw a few pills on a dresser. They saw a package of synthetic marijuana on the table. They saw a barker in the bathroom with a needle. All of that is indicative of personal use. It's only after they invite the probation officer upstairs and probation leads them through a second sweep that they see things that are indicative of drug trafficking, packaging material to formulate sale quantities, digital scales, additional items on the coffee table in the living room. Because of the drug distribution indications, Zumos suggests that a dog be obtained. Twenty minutes later, officer Quinn shows up with Quincy the drug-sniffing dog. He does another sweep of the house. There's a high search tip by Quincy the dog. There's a tie a lot of place. And the officers candidly admit that's when we decided to get the search warrant application

. We concede that normally a dog sniff is not a search based on the place case from 1983. But that deals with out in the public, a lawfully stopped vehicle on a public through way. The dog is just going around the vehicle. Here we have a uniformed officer in a residence with a dog on a leash. And even after place, this court and whitehead, which was a 1988 case, found that the use of a drug-sniffing dog in a protected area that has forth of memory protections, is a search. The government makes hay of jar deans, the Supreme Court case from 2013. It's a bit of a red herring. All jar deans dealt with was the use of a drug-sniffing dog on the porch, the outside curtailage. They never crossed the threshold. So to say that this was a unclear area of the law such that the officers could rely on the Davis good faith exception is just not accurate. There's clear case law that says you simply cannot use a drug-sniffing dog in a forth amendment protected location. Unless there's any questions on that. Did the fact that the probation officer had the ability to do a home visit change the dynamic about whether it was a protected area or not. The curtailage, of course, the decision in jar deans was you don't have a right to go up to that curtailage and bring the dog. That is protected

. I understand the distinction of your colleagues argument with regard to whether or not this qualified as an appropriate scope of the search. But they did have a right to be there for a home visit. And while it's not the case that you would expect them to bring a drug-sniffing dog in a home visit. Once they have the right to be where they were, does that change the dynamic as to whether it's a protected place in your view. I think what our colleagues are saying is a home visit is quite different from a search in that typical home visit probation officer knocks on the door. I'm here for a home visit. Can I come in? Barker took the stand in this case and he said, look, I never consented to zoom will coming in. We think it's far beyond just a home visit. Thank you. Cheryl. Please the court. I was appointed to this case just for our argument. The original attorney from his done again was unable for health reasons to continue in the case. So I very much appreciate the opportunity to appear in the case for the argument. I'm here to address the argument that the government has made that even if the search were illegal and the dogs and if were illegal

. There's an independent source by which this evidence would have been recovered and therefore it should be permitted in. This is an easy case with respect to that argument. Murray makes it an easy case in my view, the Supreme Court decision in Murray. This court has reaffirmed in several cases the absolute requirement that both prongs of Murray be applied. And the two prongs of course are that nothing in the search warrant after David makes reference to the illegal search or the fruits of that illegal search or any observations during that illegal search. And secondly, that the officers would have sought a warrant even without that illegal search. And of course the second is a key but you can call them one the first and one the second but they're both essential. In fact, this court has said so in classic case we cite United States versus Moat at 513 fed 395 a 2008 case but it also said it in cases in which it permitted the fruits of the. Tainted search to come in. In United States versus Bullard for example 645 F3237 a 2011 case from the fourth circuit. They emphasized again that the two prongs have to be have to be satisfied. And the in Moat what this court specifically said in quoting from Murray is that the government must establish that no information gained from the illegal search affected either the agent's decision to seek the warrant or the magistrate judges decision to grant it. A third case by the way is an unpublished case United States versus Browder founded 462 fed appendix 411 February 2nd of 2012 it's an anders brief case but the court again affirmed the absolute requirement that both prongs be applied. On occasion we've also have omitted analysis of that second programming what do you make of those those cases. I well there are some when you say omitted you mean the whether it would have been whether they would have sought a warrant but for it can't be admitted I'm omitted the case laws clear on that it's simply error to omit that second one sometimes there the analysis is conflated and so that's when we have these excise cases come up they ask and that in those case I'll back up once that Murray is the classic

. I'm election to that you know this far better than I am sure Murray didn't make any reference to caros and I guess that's what is a little bit confusing here you would have thought that the Supreme Court were intending to add an additional gloss to caros they would have said so I see caros is sort of a next step in the equation that's sort of our excise case whether it can be excised but the Murray is a classic case in the sense that there's a completely independent source in Murray there's a warehouse search they find marijuana and. After that completely independent confidential source tells them about this warehouse with marijuana therefore it's completely attenuated from it that's the classic independent source the other cases that become more problematic are the cases in which there's a question about whether they read whether the law enforcement officers relied on what they found in the earlier things in these cases like Allen and others go off on what it is they go off on one or more of these factors what it is the officers knew before they went in before they went into the hotel room. They already planned plan to get a warrant had they had the suspects under surveillance for years and had abundant evidence of drug activity and that sort of thing were there was there a blood trail that led into the building in which they searched the filing cabinet so that of course they would have sought a warrant based on all of that information here the excise question again respectfully is an easy one the excise question is what if you were to eliminate these paragraphs. So if you were to have five and six from the search warrant affidavit would there still be sufficient probable cause second firstly but secondly and more importantly under Murray with the officers have sought a warrant and the answer from the officer himself who made the decision officer root is that he absolutely would not have he says again let me make sure I understand your position so with respect to that first prong you're conceding that excising that information still suffices to support a finding a product. I don't do not concede that what is it that there's that the fish there's virtually no analysis by the way in either the report and recommendation or the district court's decision on why that would establish probable cause assume your honor is speaking about what was and this is in paragraph four of the affidavit the paraphernalia found in the protective sweep of course the preliminary part of that argument is if they shouldn't have been there in the first place then that goes out anyway it's tainted from that. From the opening of the doors the entry into those other rooms which is where they found the paraphernalia well but they were there to execute in the rest warrant and certainly they were entitled to conduct a protective sweep and whatever was found that were seen and planing you there is shouldn't shouldn't be excise from the warrant. I respect again I don't consent that when the purpose of the visit was to what it was that once barkers taken into custody that and secured that they had in this under the circumstances of this case that they had the right to open that locked door and so on I don't concede that but back to this the officer was asked who made the decision this is rude I'm looking out the record joint appendix 92 96 and 118. And he said that he's the one who made the decision to seek the warrant and when asked repeatedly whether he made that decision before or after the dog sniff he said after the dog sniff. And so he wasn't asked the follow up question that you might have thought the prosecutor would have asked which is if you made it that time but assume for a moment the drug dog had not been there what would you have done he wasn't asked that so it's not a situation they said to him specifically absent the sniff from the drugs from all the other evidence that you have seen if that was all it was would you have sought a warrant. In other words that question wasn't there the cause of relations question wasn't asked exactly that's right however he was asked specifically did you make the decision before or after the dog sniff right out of context even of the other thing when he said but that doesn't help us with the notion of whether he would have that's just not in the record that it's just not in the record but of course it's the government's burden to prove and they didn't do that as your honor pointed out but also he was asked at 118 when he made the decision to call the USA and he said again this is just dealing with a temporal issue but and not just temperate. It's also substantive issue because it's after the fact of that sniff and so I suggest at least respectfully that that supports the inference that they the officer would not have the fact is did not apply for a warrant certainly could have applied for the warrant instead of instead of ordering the dog sniff that took that time it could have used his time if he had the probable cause in other words I don't think they can have it both ways if he had that probable cause from the protective sweep then he should have sought the warrant then that's simple but he didn't and that's not the case. I think it's not that he had tainted it and so what I think is key about these independent source cases is we're not going to just open things up you know the first reference we see is in silverthorn which is very- The given judge's question is that if we just if we agree with you is the result that it goes back to the district court judge to determine whether or not the officers would have? Well that's that's an interesting question your honor I mean all of your questions are interesting that's particularly interesting that way when we're sitting up that's right. In that's a decision this court made in the case called United States versus Campbell which again just tracks law I think broke the opinion but it's it was a troubling scenario and they ordered it back for a demand on factual finding I believe in that case. Murray also you know gave that's a remedy that's possible in this case and as I say there is no analysis about whether the the the first part established probable cause you know this is a maybe a soft ball if it were to go back and you know we know what the question and answer are supposed to be but I must say that this officer candidly said that he sought the affidavit only after the dog sniff. I'm blocking my late I'm sorry thank you very much for the time

. Good morning may it please the court I'm Sean Morgan I'm here today on behalf of the government I'd like to spend a couple moments talking to you a little bit about the factual background of the three appellants that bring us here today because I think it greatly informed the officers view on February 8th 2013 and it greatly informed the district courts analysis at the time that Judge Keely wrote the nearly 35 page memorandum opinion in order that we believe was thorough and correct in every aspect of its analysis. In this case the although the lead defendant on this appeal is Robert Hill this case really began as a result of continuing criminal activity by Eric Barker Mr. Barker was on his third term of federal supervised release. He had two prior drug felony convictions one from the southern district of West Virginia one from the northern district of West Virginia. His second federal drug felony from the northern district of West Virginia he had been the subject of a revocation. His southern district of West Virginia since also had resulted in the supervised release revocation. Mr. Barker had been on supervision for only nine weeks after having been released from his term of imprisonment for his prior revocation at a time when he continued to violate those conditions of release. He was unemployed he had moved to a new residence without the permission of his probation officer he had tested positive for drugs again he had missed drug screens again and the probation officer had sought and obtained an arrest warrant for him the probation officer received information to indicate that Mr. Barker was at a residence on Philippi Pike there was an arrest team that sought and obtained entry to that residence to execute the warrant and find him. In the course of doing so the arresting officers encountered two other people who were present one behind a locked door was Megan Dunnigan who also was on a term of federal supervised release for a drug felony conviction. The second appellant Hill was in another bedroom down the hallway he also was on a term of federal supervised release for a drug felony conviction. I take dispute with the reference that was made by Mr. Greeley that at the time the probation officer conducted a walk through that the appellants had been removed from the scene. The joint appendix that pages 91 and 92 makes clear that officer Zuma was brought upstairs initially in order to identify Mr

. Dunnigan and Mr. Hill the marshals believed that they knew those persons and believed that they were on supervision. But officer Zuma came up initially in order to be able to identify who those persons were and it's the government's position that the appellants were present at the time of the walk through and had not yet been removed from the scene. And why does that matter in terms of the ability of the officers to conduct that walk through? I just wanted to make sure that the record was clear that there wasn't some attenuated circumstance under which the scene was secured and the probation officer then decided that he would go around and conduct a walk through. Well, they had conducted the sweep by then. The sweep had been conducted by the arrest team while the probation officer was downstairs. I don't take issue with that. I think that's entirely appropriate. And the question is what was the basis, the legal basis for the walk through? Well, the legal basis for the walk through we think was properly analyzed by district judge Keely when she was addressing the issue in light of the night's test. The unanimous Supreme Court decision that held that you look at both whether there is a reasonable suspicion and whether there's a condition of probation or in this case, the condition of supervision that would authorize the search by the probation officer. And the condition of supervision in that case is different than what we have here. It is. It is. We acknowledge. Frankly, strikingly similar to the condition in Bradley where we said that the we needed the officers needed probable cause to conduct that search. That case was submitted post briefing, the 28J letter. And the government didn't respond. It would suggest it to me that somehow you thought there was something to that. It's the government's position. You're on that. I do agree that this is similar to Bradley. The condition in Barker was a condition that we interpret differently than the appellants do. The court requires the probation officer to ask permission in order to take a look around his residence. And the facts and circumstances surrounding this particular supervisor and this particular set of facts to me make clear that the district court applied the appropriate balancing test when rolling that the probation officers walk through was completely appropriate in light of night and in light of Bradley. We don't dispute that the condition of release that the district court utilized at the time that Mr. Barker was placed on supervision is narrower than nights. But we also think that. Do you think that nights overruled Bradley? I do your honor. I do. And I think that the district court's analysis of nights is the proper analysis that that that this court should adopt

. That case was submitted post briefing, the 28J letter. And the government didn't respond. It would suggest it to me that somehow you thought there was something to that. It's the government's position. You're on that. I do agree that this is similar to Bradley. The condition in Barker was a condition that we interpret differently than the appellants do. The court requires the probation officer to ask permission in order to take a look around his residence. And the facts and circumstances surrounding this particular supervisor and this particular set of facts to me make clear that the district court applied the appropriate balancing test when rolling that the probation officers walk through was completely appropriate in light of night and in light of Bradley. We don't dispute that the condition of release that the district court utilized at the time that Mr. Barker was placed on supervision is narrower than nights. But we also think that. Do you think that nights overruled Bradley? I do your honor. I do. And I think that the district court's analysis of nights is the proper analysis that that that this court should adopt. We agree that there should be a balancing. I don't think anyone disputes that there should be a balancing between a person's reasonable expectation of privacy and the legitimate need of the probation office to conduct oversight of someone on supervision. But the district court was. That was very detailed and its analysis of the different steps that had been undertaken by Mr. Barker during his terms of supervision that continued to diminish his expectation of privacy and continued to escalate the need of the probation office to supervise him more intensively and make clear the reason that it was completely appropriate under this set of facts and circumstances in order for the probation office to conduct that walk. Walk through of the residents. This is if we were to find that nights which was 2001. Did superseded Trump Bradley, which I think was 1979. We still would be left with the issue of the difference significant difference between the language and standard condition 10 and the language in nights in Samson. That allowed the court to go as far as it did. In looking if we were to look for other jurisdictions. We would come to the conclusion that the 11th circuit and the 6th circuit have taken dramatically different approaches and this with the 6th circuit a much narrower one that would seem to be problematic for the government's position in this case. But the 11th circuit and Judge Keely sided the young which had no search condition. If we were looking to be guided by what other courts have done, circuit courts have done in the absence of specific language in the 4th circuit. How would you help us figure out whether we should follow the 6th or the 11th? We agree with district judge Keely's reliance on Yucknavitch and we would have no problem with this circuit adopting the holding in that case

. We agree that there should be a balancing. I don't think anyone disputes that there should be a balancing between a person's reasonable expectation of privacy and the legitimate need of the probation office to conduct oversight of someone on supervision. But the district court was. That was very detailed and its analysis of the different steps that had been undertaken by Mr. Barker during his terms of supervision that continued to diminish his expectation of privacy and continued to escalate the need of the probation office to supervise him more intensively and make clear the reason that it was completely appropriate under this set of facts and circumstances in order for the probation office to conduct that walk. Walk through of the residents. This is if we were to find that nights which was 2001. Did superseded Trump Bradley, which I think was 1979. We still would be left with the issue of the difference significant difference between the language and standard condition 10 and the language in nights in Samson. That allowed the court to go as far as it did. In looking if we were to look for other jurisdictions. We would come to the conclusion that the 11th circuit and the 6th circuit have taken dramatically different approaches and this with the 6th circuit a much narrower one that would seem to be problematic for the government's position in this case. But the 11th circuit and Judge Keely sided the young which had no search condition. If we were looking to be guided by what other courts have done, circuit courts have done in the absence of specific language in the 4th circuit. How would you help us figure out whether we should follow the 6th or the 11th? We agree with district judge Keely's reliance on Yucknavitch and we would have no problem with this circuit adopting the holding in that case. In Yucknavitch, the court was analyzing whether in light of particular language in a search condition of release that that language in the condition upset the night's balancing test to require more than reasonable suspicion. We maintain that reasonable suspicion is the touch starting here. Why should we apply that test given the fact that at the very beginning of this process when negotiating terms of condition, the government is certainly free to require a term of condition similar to that in nights. The defendant typically is not in the best bargaining position. Why shouldn't we honor the bargain that the defendant struck in this case? That is that he would allow home visits but by its plain terms that the condition in this case did not allow the kind of conduct that the police conducted here. Because otherwise it would eviscerate the probation officer's ability. No, I mean the government could simply insist upon that as a term of more explicit term of condition that would allow a warrantless search. Indeed, if he had the prior history of lack of success on supervised release that you mentioned when you started your argument, they certainly could have moved for violation and asked that to be added on the basis of the fact that he wasn't doing so well less far. I don't disagree that hypothetically that could have happened. The conditions of a release that were imposed at the time, including specifically condition number 10, was a standard condition that at that time was applied universally to all defendants placed on supervision. Despite the more narrow language of condition number 10 at the time that Mr. Barker was placed on release conditions, we continue to maintain that that condition did not give him free rein to avoid probation officer supervision. Factually speaking, in this case he had effectively absconded from supervision yet again and he was living in a location where the probation officer did not even know he was located in order to be able to supervise him. It was only because the probation officer had received that information and the search warrant was executed on February 8, 2013 that the probation officer ever was in the residence to start with. It was not like your typical routine home visit where a probation officer would, as the defendants suggest, this probation officer should be limited, knock on the door and make an attempt to conduct an inspection

. In Yucknavitch, the court was analyzing whether in light of particular language in a search condition of release that that language in the condition upset the night's balancing test to require more than reasonable suspicion. We maintain that reasonable suspicion is the touch starting here. Why should we apply that test given the fact that at the very beginning of this process when negotiating terms of condition, the government is certainly free to require a term of condition similar to that in nights. The defendant typically is not in the best bargaining position. Why shouldn't we honor the bargain that the defendant struck in this case? That is that he would allow home visits but by its plain terms that the condition in this case did not allow the kind of conduct that the police conducted here. Because otherwise it would eviscerate the probation officer's ability. No, I mean the government could simply insist upon that as a term of more explicit term of condition that would allow a warrantless search. Indeed, if he had the prior history of lack of success on supervised release that you mentioned when you started your argument, they certainly could have moved for violation and asked that to be added on the basis of the fact that he wasn't doing so well less far. I don't disagree that hypothetically that could have happened. The conditions of a release that were imposed at the time, including specifically condition number 10, was a standard condition that at that time was applied universally to all defendants placed on supervision. Despite the more narrow language of condition number 10 at the time that Mr. Barker was placed on release conditions, we continue to maintain that that condition did not give him free rein to avoid probation officer supervision. Factually speaking, in this case he had effectively absconded from supervision yet again and he was living in a location where the probation officer did not even know he was located in order to be able to supervise him. It was only because the probation officer had received that information and the search warrant was executed on February 8, 2013 that the probation officer ever was in the residence to start with. It was not like your typical routine home visit where a probation officer would, as the defendants suggest, this probation officer should be limited, knock on the door and make an attempt to conduct an inspection. This is a circumstance where a supervise was in violation of his release conditions again. I would say continuously would be a fair way to put it based upon Eric Barker's history of supervision with the court. In light of that, it is the government's position that the probation officer did not need permission because condition number 10 said that he shall permit a visit and he shall permit confiscation of contraband in plain view of the probation officer. It is the contraband that wasn't in plain view. It was not the paraphernalia that was sitting out there that was revealed by the dog. If we are talking about reasonableness under the circumstances, we appreciate the emphatic tone of the Supreme Court about the need for the probation officer to be able to supervise. The record here shows that they were on the phone with the magistrate judge. Why couldn't they have based upon what they saw when they went in that spot and got the telephone search warrant from the magistrate judge? They were on the phone with them right when they were there and they didn't do that. They then brought the dog in and then only after that that they seek a search warrant. If the circumstances, we look at the tally of the circumstances, then why didn't they take advantage of that gold opportunity that they had? I think there is another factor to consider as well in terms of what the officers knew at the time that officer Zumo made his walk through. In addition to the drug usage paraphernalia that has been pointed out, a salient fact that Judge Keely noted in her opinion that we believe is a compelling one that weighs in favor of drug distribution versus drug possession is the fact that when Eric Barker was taken into custody, not only had he been attempting to use drugs based upon the tourniquet and the needles that were found. But when he was padded down, he had approximately $1,300 in cash on his person. This is at a time when he had told the probation officer that he was unemployed, he was a twice convicted drug felon. When you combine that with the multiple drugs and drug paraphernalia that were seen during the protective sweep, we believe that the totality of the circumstances militates in favor of not only a finding that all three of these supermarkets were found. And the other thing that was in the process of the drug use was that the officers were not able to provide the drug use in the drug use

. This is a circumstance where a supervise was in violation of his release conditions again. I would say continuously would be a fair way to put it based upon Eric Barker's history of supervision with the court. In light of that, it is the government's position that the probation officer did not need permission because condition number 10 said that he shall permit a visit and he shall permit confiscation of contraband in plain view of the probation officer. It is the contraband that wasn't in plain view. It was not the paraphernalia that was sitting out there that was revealed by the dog. If we are talking about reasonableness under the circumstances, we appreciate the emphatic tone of the Supreme Court about the need for the probation officer to be able to supervise. The record here shows that they were on the phone with the magistrate judge. Why couldn't they have based upon what they saw when they went in that spot and got the telephone search warrant from the magistrate judge? They were on the phone with them right when they were there and they didn't do that. They then brought the dog in and then only after that that they seek a search warrant. If the circumstances, we look at the tally of the circumstances, then why didn't they take advantage of that gold opportunity that they had? I think there is another factor to consider as well in terms of what the officers knew at the time that officer Zumo made his walk through. In addition to the drug usage paraphernalia that has been pointed out, a salient fact that Judge Keely noted in her opinion that we believe is a compelling one that weighs in favor of drug distribution versus drug possession is the fact that when Eric Barker was taken into custody, not only had he been attempting to use drugs based upon the tourniquet and the needles that were found. But when he was padded down, he had approximately $1,300 in cash on his person. This is at a time when he had told the probation officer that he was unemployed, he was a twice convicted drug felon. When you combine that with the multiple drugs and drug paraphernalia that were seen during the protective sweep, we believe that the totality of the circumstances militates in favor of not only a finding that all three of these supermarkets were found. And the other thing that was in the process of the drug use was that the officers were not able to provide the drug use in the drug use. I don't think that you answered Judge Grim's question about why the officers didn't take advantage of the fact that they had a magistrate on the phone and had apparently sufficient cause to get a telephone warrant. I think that that would have been another way to go. I think at the time that the officers were on the phone with the magistrate, they were seeking authority to arrest Ms. Donigan and to arrest Mr. Hill. At the point that the arrest warrant was executed for Mr. Barker, no one had expected Mr. Hill or Ms. Donigan to be present. And when they were found in that location, the probation officer was on the phone obtaining authority in order to be able to execute arrests on those two for their violation of their supervised release conditions and the fact that they were involved in drug usage drug distribution and were associating with Mr. Barker and with each other. Mr. Barker, when they did not have his permission to do so. In the absence of this evidence that was the paraphernalia that was discovered as a result of the arrest warrant, is in your position that the probation officer could have come to this home with a drug dog and insisted on walking through the residents with the dog absent any other evidence as part of this term of condition. I think in light of nights he would have had to have had reasonable suspicion

. I don't think that you answered Judge Grim's question about why the officers didn't take advantage of the fact that they had a magistrate on the phone and had apparently sufficient cause to get a telephone warrant. I think that that would have been another way to go. I think at the time that the officers were on the phone with the magistrate, they were seeking authority to arrest Ms. Donigan and to arrest Mr. Hill. At the point that the arrest warrant was executed for Mr. Barker, no one had expected Mr. Hill or Ms. Donigan to be present. And when they were found in that location, the probation officer was on the phone obtaining authority in order to be able to execute arrests on those two for their violation of their supervised release conditions and the fact that they were involved in drug usage drug distribution and were associating with Mr. Barker and with each other. Mr. Barker, when they did not have his permission to do so. In the absence of this evidence that was the paraphernalia that was discovered as a result of the arrest warrant, is in your position that the probation officer could have come to this home with a drug dog and insisted on walking through the residents with the dog absent any other evidence as part of this term of condition. I think in light of nights he would have had to have had reasonable suspicion. Absent a warrant, I think he could have had reasonable suspicion on the basis that Mr. Barker was staying somewhere that the probation officer did not know or expect him to be staying. He was not employed that he was missing drug screens that he was using drugs again because that was the pattern of Mr. Barker's behavior during his prior terms of supervision that led to revocation. But of course, you're on the way that this drug dog sniff happened. This happened about six weeks before the ordained decision came down. So it was a circumstance under which at the time that it happened, the officers were relying upon Jeffice, which is something that the district court didn't address because the district court in conducting the balancing test under nights and finding that there was reasonable suspicion for the walkthrough and the finding of the evidence in that circumstance that she did not need to address the drug dog sniff at all. Could you address this issue with respect to Murray and the second prong and the evidence, the testimony that suggests these officers that the officer who had made the decision testified that he didn't, he wasn't going to seek the warrant until after the drugs, the dogs, the dogs, the dogs. And it wasn't going to seek a warrant until then. Or I did not seek the warrant until then. Right. What he said was I did not seek the warrant until then. The district court in making its analysis of that issue relied upon the Allen decision from this court from 2011 at 631, Fed 3164. And the district court in analyzing Allen and we believe it's the same analysis that would be applicable in light of Murray considered the fact that even if you excised paragraph four from the search warrant, the remaining evidence. And I said that wrong, even if you excised, paragraphs five and six, paragraph four, recites sufficient basis for probable cause in order to uphold the issuance of the search warrant

. Absent a warrant, I think he could have had reasonable suspicion on the basis that Mr. Barker was staying somewhere that the probation officer did not know or expect him to be staying. He was not employed that he was missing drug screens that he was using drugs again because that was the pattern of Mr. Barker's behavior during his prior terms of supervision that led to revocation. But of course, you're on the way that this drug dog sniff happened. This happened about six weeks before the ordained decision came down. So it was a circumstance under which at the time that it happened, the officers were relying upon Jeffice, which is something that the district court didn't address because the district court in conducting the balancing test under nights and finding that there was reasonable suspicion for the walkthrough and the finding of the evidence in that circumstance that she did not need to address the drug dog sniff at all. Could you address this issue with respect to Murray and the second prong and the evidence, the testimony that suggests these officers that the officer who had made the decision testified that he didn't, he wasn't going to seek the warrant until after the drugs, the dogs, the dogs, the dogs. And it wasn't going to seek a warrant until then. Or I did not seek the warrant until then. Right. What he said was I did not seek the warrant until then. The district court in making its analysis of that issue relied upon the Allen decision from this court from 2011 at 631, Fed 3164. And the district court in analyzing Allen and we believe it's the same analysis that would be applicable in light of Murray considered the fact that even if you excised paragraph four from the search warrant, the remaining evidence. And I said that wrong, even if you excised, paragraphs five and six, paragraph four, recites sufficient basis for probable cause in order to uphold the issuance of the search warrant. Well, that gets you to the first prong, but I don't recall that the district court ever discussed the second prong of Murray. I'm not sure that she did discuss the second prong of Murray. I think she looked at Allen and she concluded that a judicial officer of reasonable prudence would conclude that the apartment was going to likely contain exactly the evidence that it did. Evidence of additional contraband illegal drugs and evidence of the crime of drug distribution. Well, then it appears the analysis is incomplete. So why shouldn't we, if we think Murray is good law, send it back. I think that there's a separate reason that you could avoid doing that. If you look at the totality of the facts and circumstances in this case, and you look at the items that were seized relative to the search warrant. Everything except the baggy of heroin that was found in the ceiling tile is something that was seen in plain view before officer Zumo ever walked through before the K9 sniff. We believe that the inevitable discovery doctrine would be an independent basis on which you could uphold the seizure of the items in the case. This is the government's position that there was no error in this case whatsoever by district judge Keely that there's no reason to remand that the memorandum and opinion that she issued and her order denying the motions to suppress was a correct opinion in all respects. And we believe that it should be upheld on its face and that there's no need for remand. Thank you very much. Hornbrake, you have some rebuttal. It's the defendant's position that the fourth circuit case Bradley need not be overturned because it's on four points with the Supreme Court case law

. Well, that gets you to the first prong, but I don't recall that the district court ever discussed the second prong of Murray. I'm not sure that she did discuss the second prong of Murray. I think she looked at Allen and she concluded that a judicial officer of reasonable prudence would conclude that the apartment was going to likely contain exactly the evidence that it did. Evidence of additional contraband illegal drugs and evidence of the crime of drug distribution. Well, then it appears the analysis is incomplete. So why shouldn't we, if we think Murray is good law, send it back. I think that there's a separate reason that you could avoid doing that. If you look at the totality of the facts and circumstances in this case, and you look at the items that were seized relative to the search warrant. Everything except the baggy of heroin that was found in the ceiling tile is something that was seen in plain view before officer Zumo ever walked through before the K9 sniff. We believe that the inevitable discovery doctrine would be an independent basis on which you could uphold the seizure of the items in the case. This is the government's position that there was no error in this case whatsoever by district judge Keely that there's no reason to remand that the memorandum and opinion that she issued and her order denying the motions to suppress was a correct opinion in all respects. And we believe that it should be upheld on its face and that there's no need for remand. Thank you very much. Hornbrake, you have some rebuttal. It's the defendant's position that the fourth circuit case Bradley need not be overturned because it's on four points with the Supreme Court case law. The common thread between knights and Griffin and Samson is the condition of supervision. It's the salient factor that the Supreme Court relies upon. All Bradley said was your condition of supervision allowed only home visits. It didn't allow the officer to go into the home and conduct a full search. So Bradley is actually on par with subsequent case law that came out at least nine years later. But Bradley didn't go through the analysis that was done in Griffin about the the the demure status of being on supervised release as diminishing the expectation of privacy. And that's the starting point. I quit as there before you even get to look at the condition. So it would seem to me that even if even if Bradley has some consistent analysis that you can't say it's not affected by the subsequent Supreme Court case law, can you? Well, clearly Bradley didn't highlight the condition the way the Supreme Court did in the other three cases. But what we don't what we don't have any case of perhaps this is one where you have if you're looking at the two aspects that diminished the expectation of privacy on behalf of the individual. One is the status alone and the other one is the nature of the condition. We have a difference in the nature of the condition here that is that that has perhaps enhances the expectation of privacy. What we don't have any guidance on is when those is there is sufficiently reduced expectation of privacy on the virtue of the status in and of itself that allows us to then go to the totality of circumstances because the state special needs remains the same. Our position would be you cannot the salient factor has to look at the condition at issue. Bradley dealt with a home visit

. The common thread between knights and Griffin and Samson is the condition of supervision. It's the salient factor that the Supreme Court relies upon. All Bradley said was your condition of supervision allowed only home visits. It didn't allow the officer to go into the home and conduct a full search. So Bradley is actually on par with subsequent case law that came out at least nine years later. But Bradley didn't go through the analysis that was done in Griffin about the the the demure status of being on supervised release as diminishing the expectation of privacy. And that's the starting point. I quit as there before you even get to look at the condition. So it would seem to me that even if even if Bradley has some consistent analysis that you can't say it's not affected by the subsequent Supreme Court case law, can you? Well, clearly Bradley didn't highlight the condition the way the Supreme Court did in the other three cases. But what we don't what we don't have any case of perhaps this is one where you have if you're looking at the two aspects that diminished the expectation of privacy on behalf of the individual. One is the status alone and the other one is the nature of the condition. We have a difference in the nature of the condition here that is that that has perhaps enhances the expectation of privacy. What we don't have any guidance on is when those is there is sufficiently reduced expectation of privacy on the virtue of the status in and of itself that allows us to then go to the totality of circumstances because the state special needs remains the same. Our position would be you cannot the salient factor has to look at the condition at issue. Bradley dealt with a home visit. I think we cite the Henry case from this third six circuit, which was a home visit condition. It's not a full blown search. Yacovic he argued that while the officers had a right to visit him, they couldn't search the computer. That was your traditional officers at the door. They knock it takes Yacovic 10 minutes to answer the door and they come in. So Yacovic really shouldn't have been relied upon by the court for that particular point. Back to paragraph four of the search warrant application. That's the point in time when Zumo comes in. In other words, the sweep had already taken place. The officers found limited items indicative of drug usage only. Paragraph four is when Zumo comes in and does the second search. So if you find that the home visit condition did not allow Zumo's actions, even paragraph four has to come out. We think five or six are much easier because the dog sniff was just off the boards. Thank you. All right

. We're going to come down and read counsel. Then take a brief recess before moving on to our next two cases. This court will take a brief recess