[00:00:14] Speaker 03:
Council, whenever you're ready.

[00:00:16] Speaker 00:
Okay.

[00:00:17] Speaker 00:
Thank you.

[00:00:17] Speaker 00:
Good morning, Your Honors.

[00:00:18] Speaker 00:
My name is Alex Kuhlmann, and I'm the attorney for the plaintiff and appellant, Michael Newman.

[00:00:24] Speaker 00:
May it please the Court?

[00:00:25] Speaker 00:
Can I reserve two minutes for rebuttal, please?

[00:00:27] Speaker 00:
Thank you.

[00:00:29] Speaker 00:
In addressing a motion for summary judgment, the District Court is to take the facts in the light most favorable to the non-moving party, which in this case is Mr. Newman, the appellant,

[00:00:39] Speaker 00:
The court here did essentially the reverse.

[00:00:42] Speaker 00:
It viewed the facts in a very pro-defense light.

[00:00:45] Speaker 04:
Well, we have de novo reviews, so arguing with the district court is unnecessary.

[00:00:50] Speaker 04:
Just go right to the heart of your argument.

[00:00:53] Speaker 00:
Sure.

[00:00:53] Speaker 00:
Well, this is a case, of course, about hot pursuit, and the factual concern I have, and I'm not going to

[00:01:03] Speaker 00:
attack, I guess, the magistrate, but rather say why I think the facts matter.

[00:01:07] Speaker 00:
The factual concern I have is that the omitted facts, in particular Deputy Underhill's statement about where the driver he was pursuing was last seen, go directly to the question of whether this subsequent entry into the home was immediate and continuous for purposes of the hot pursuit exception.

[00:01:26] Speaker 00:
There are, in addition to omitting that fact about where the driver was last seen, the District Court also omits Deputy Underhill's statements about the fact that he doesn't know whether the driver went into the home and that the driver went somewhere over to the rear of the residence.

[00:01:41] Speaker 04:
Which is why he looked in the backyard first.

[00:01:44] Speaker 00:
Exactly.

[00:01:45] Speaker 04:
Not having found him in the backyard, given the terrain, why wasn't it reasonable, more than reasonable, to believe that he had gone into the house?

[00:01:55] Speaker 00:
Well, now that's a separate question from whether hot pursuit existed.

[00:01:59] Speaker 00:
Probable cause is one thing.

[00:02:00] Speaker 04:
Do you concede probable cause?

[00:02:02] Speaker 00:
No.

[00:02:04] Speaker 04:
Oh, okay.

[00:02:06] Speaker 04:
So that's why I thought not.

[00:02:08] Speaker 04:
That's why I asked the question.

[00:02:10] Speaker 04:
Having seen him go there and not finding him in the backyard, why isn't the...

[00:02:17] Speaker 04:
Pretty much the only logical conclusion is that he must have gone into the house.

[00:02:21] Speaker 00:
Well, but let's be careful about what the facts are.

[00:02:24] Speaker 00:
Your honor just said having seen him go there.

[00:02:27] Speaker 00:
The actual state of the evidence is Deputy Underhill radios that this individual is last seen going toward

[00:02:34] Speaker 00:
a residence at 4083 Camellia Drive.

[00:02:37] Speaker 00:
That fact is to be taken in the light most favorable to Mr. Newman.

[00:02:41] Speaker 00:
So it's not that he saw him go into the backyard.

[00:02:44] Speaker 00:
Indeed, Appellee's own brief states on page 18, he saw him run toward the back of the property if not actually enter the backyard.

[00:02:53] Speaker 04:
I thought that he saw him running toward the back of that house.

[00:03:02] Speaker 00:
Toward, right.

[00:03:04] Speaker 04:
But toward is not enter the backyard and that makes it so he went down somewhere over to the rear of the residence is what deputy Underhill says so he went after him to the rear of the residence why I don't understand why that fact

[00:03:21] Speaker 04:
Isn't a fact.

[00:03:25] Speaker 00:
It is a fact.

[00:03:26] Speaker 04:
Okay.

[00:03:27] Speaker 00:
Is it probable cause to enter a home in the middle of the night through the back door when the deputy has no idea what the nexus is between this individual and that home?

[00:03:37] Speaker 04:
Does that matter?

[00:03:38] Speaker 04:
Suppose he runs into some perfect stranger's house.

[00:03:41] Speaker 04:
That's even more dangerous and more important for the police to follow.

[00:03:47] Speaker 00:
Right.

[00:03:48] Speaker 00:
Well, danger is not the test for the Fourth Amendment.

[00:03:51] Speaker 00:
Probable cause requires more than danger.

[00:03:54] Speaker 00:
Even a homicide case or a domestic violence case doesn't make the Fourth Amendment just evaporate.

[00:03:58] Speaker 00:
Okay.

[00:03:59] Speaker 04:
I think, is it not undisputed that Deputy Underhill saw him go down somewhere over to the rear of that specific residence?

[00:04:09] Speaker 04:
That's what he says.

[00:04:10] Speaker 00:
That's what he said, yes.

[00:04:11] Speaker 04:
Okay.

[00:04:13] Speaker 04:
He looks in the backyard, doesn't find him.

[00:04:17] Speaker 04:
Where else could he be in the house?

[00:04:20] Speaker 00:
He could also be in one of the neighboring yards.

[00:04:22] Speaker 00:
The Deputy Underhill and Deputy Barmer spent several minutes using their flashlights to look into the neighboring yards to the immediate... And he wasn't there either.

[00:04:31] Speaker 04:
So certainty is not required for probable cause, is it?

[00:04:35] Speaker 04:
Just probable cause.

[00:04:38] Speaker 00:
That's correct.

[00:04:39] Speaker 04:
However... But if he's not in the backyard, he's not in the neighbor's yard,

[00:04:44] Speaker 04:
And there's the back door to a house there within the area.

[00:04:51] Speaker 04:
Why isn't that an appropriate probable cause finding as a matter of law?

[00:04:58] Speaker 00:
I'm going to say there's two different issues going on here.

[00:05:01] Speaker 00:
There's probable cause, and I don't want to get too back on the ropes about probable cause because the other issue, both of which has to be satisfied here, is hot pursuit.

[00:05:10] Speaker 00:
Hot pursuit and probable cause both must be satisfied in order for the entry to be valid.

[00:05:17] Speaker 00:
Hot pursuit.

[00:05:18] Speaker 00:
Let me answer the question about probable cause, first of all.

[00:05:22] Speaker 00:
The driver had no nexus to this house.

[00:05:27] Speaker 00:
The deputy did not know the driver.

[00:05:29] Speaker 00:
The deputy did not know the car.

[00:05:31] Speaker 00:
This car came to this house.

[00:05:33] Speaker 00:
This individual ran toward the rear of the house.

[00:05:37] Speaker 00:
But where that person went after that was not clear at the time to this deputy.

[00:05:43] Speaker 00:
The warrant requirement for entering into a home, I would say, is not easily waived merely because someone ran into the vicinity of a home in the middle of the night.

[00:05:55] Speaker 00:
That happens all the time.

[00:05:57] Speaker 03:
Another option that didn't the deputy testify that he heard noise consistent with the door opening and closing.

[00:06:03] Speaker 00:
In his declaration attached for purposes of motion for summary judgment, yes, the deputy did testify.

[00:06:08] Speaker 04:
And that's under oath, of course.

[00:06:09] Speaker 00:
Yes.

[00:06:10] Speaker 00:
However, that testimony is contradicted by the evidence of what occurred at the scene in terms of his own statements and his own actions at the scene.

[00:06:20] Speaker 00:
Because a reasonable inference for a jury to reach is that if he had heard that noise, he would have relayed that fact to his colleagues at the time, but he did not.

[00:06:31] Speaker 03:
That's not an inconsistency.

[00:06:33] Speaker 03:
That's just different information.

[00:06:37] Speaker 00:
It's different information that is to be viewed in the light most favorable to Mr. Newman as the non-movie.

[00:06:42] Speaker 04:
Well, he heard something.

[00:06:44] Speaker 00:
So he says.

[00:06:45] Speaker 04:
And the back door was unlocked.

[00:06:47] Speaker 04:
That is undisputed.

[00:06:49] Speaker 04:
Right.

[00:06:50] Speaker 00:
Well, yes, that's what he said at the time.

[00:06:54] Speaker 00:
In terms of whether this entry constitutes hot pursuit, which also has to be satisfied here, there has to be an immediate and continuous flow of the pursuit into the home.

[00:07:05] Speaker 01:
Does it have to be reckless?

[00:07:07] Speaker 00:
No.

[00:07:08] Speaker 01:
Good.

[00:07:08] Speaker 01:
Okay.

[00:07:11] Speaker 00:
It has to, however, flow into the entries to the home in a way that's immediate and continuous and some framework for that.

[00:07:17] Speaker 01:
Should we run a clock or should we focus on what the deputies were doing?

[00:07:22] Speaker 00:
I think it's a totality of the circumstance type analysis.

[00:07:25] Speaker 00:
I think time matters.

[00:07:26] Speaker 00:
And here the nine minute interval between the termination of the pursuit and the entry to the home.

[00:07:31] Speaker 00:
is certainly significant in the sense that it's far more than the two minute break that occurred.

[00:07:36] Speaker 04:
But it isn't really nine minutes, because they're searching for him during much of that time.

[00:07:43] Speaker 04:
So why isn't that part of the pursuit?

[00:07:46] Speaker 04:
Follow to the backyard, look around the backyard, look at the neighbor's yard.

[00:07:51] Speaker 04:
Why isn't that all part of the pursuit?

[00:07:53] Speaker 04:
Because what your version of it is, if you don't find him,

[00:07:57] Speaker 04:
Immediately, you're not pursuing.

[00:08:00] Speaker 04:
That's how you get to nine minutes, but it seems much, much more continuous to me.

[00:08:07] Speaker 00:
If that were the rule, though, Johnson would have come out the other way, and Johnson

[00:08:11] Speaker 04:
there's a half an hour search for this individual, if the rule were that searching for that person is... Except during that time, as I understand that case, they never saw the suspect, they didn't know where it had gone, they didn't have any clue as to where he was, which is quite different than the situation here.

[00:08:28] Speaker 04:
That's why, I mean, it does tie back to the question of probable cause, because you're dealing with a fairly limited geographic scope here.

[00:08:37] Speaker 04:
And there, the person fled into the woods, and they didn't know where he could possibly be.

[00:08:42] Speaker 04:
And here, there's a closed backyard, which he's not in, but he's gone into it, and an open back door.

[00:08:49] Speaker 04:
It just seems completely different to me.

[00:08:51] Speaker 04:
And 30 minutes is a long time.

[00:08:53] Speaker 04:
It's not continuous.

[00:08:56] Speaker 00:
Right.

[00:08:57] Speaker 01:
Does it matter that the officers, or deputies rather, heard voices from inside the house, knowing then that if their suspect had gone inside, that someone else was also present?

[00:09:11] Speaker 00:
Well, I don't think there's any evidence that someone else was also present.

[00:09:14] Speaker 00:
It's not really clear who's the... They heard voices.

[00:09:17] Speaker 01:
Was Delacruz talking to himself?

[00:09:21] Speaker 00:
Yeah, I think the evidence is not clear about whether the voices refers to multiple voices or a voice.

[00:09:28] Speaker 00:
I don't think that is necessarily clear.

[00:09:30] Speaker 00:
In any event, assuming, for the sake of argument, that there were multiple voices, there was no indication of any sort of drama or any kind of

[00:09:39] Speaker 00:
a domestic violence type situation that would require going into the home immediately, as opposed to, for example, knocking on the front door of the house or getting a warrant, which would have been a reasonable approach to take under the circumstances.

[00:09:53] Speaker 00:
Given that, nine minutes of investigation is going by.

[00:09:56] Speaker 00:
And I appreciate Your Honor's point about the fact that that

[00:10:00] Speaker 00:
investigation in some sense does follow from the pursuit.

[00:10:05] Speaker 00:
But the point is when a helicopter's flying around using infrared vision and when there's flashlights being shined in other people's backyards, there's people shouting into the house, come out with your hands up.

[00:10:15] Speaker 00:
That's not a pursuit anymore.

[00:10:17] Speaker 00:
That's investigation.

[00:10:18] Speaker 00:
And similarly, when they go into the home and they start interrogating my client for 20 minutes, saying, you know, who do you know who drives this car?

[00:10:27] Speaker 01:
Debating fresh pursuit with your client.

[00:10:30] Speaker 00:
Yeah.

[00:10:30] Speaker 00:
Well, that's no longer hot pursuit.

[00:10:32] Speaker 00:
That's now an interrogation of my client.

[00:10:35] Speaker 00:
So when they ultimately, 29 minutes after losing sight of this driver, they finally get to the driver through the consent of the client.

[00:10:42] Speaker 04:
As I understand it though, and I may be wrong about this, but I understood that you're

[00:10:48] Speaker 04:
claim is that the violation occurred when they entered the home because they had no right to enter the home without a warrant.

[00:10:57] Speaker 04:
That's right.

[00:10:57] Speaker 04:
So the fact that they talked for 20 minutes after that is after the alleged Fourth Amendment violation happened.

[00:11:04] Speaker 00:
That's true.

[00:11:05] Speaker 04:
Okay.

[00:11:05] Speaker 04:
So it's not

[00:11:07] Speaker 04:
doesn't bear on the specific question that you raised.

[00:11:11] Speaker 00:
Well, I don't entirely agree with that point.

[00:11:13] Speaker 00:
I think Fourth Amendment analysis is always about the totality of the circumstances.

[00:11:17] Speaker 00:
And I think it does matter that they spend 20 minutes interrogating my client.

[00:11:21] Speaker 04:
But that's not your claim.

[00:11:23] Speaker 04:
Your claim is that they should never have entered the House.

[00:11:26] Speaker 04:
So it's the entry that's the alleged violation.

[00:11:29] Speaker 04:
So what led up to that either is a hot pursuit or it isn't.

[00:11:35] Speaker 04:
regardless of whether they talked to him or didn't talk to him.

[00:11:41] Speaker 00:
Again, I view it somewhat differently, but you're the boss.

[00:11:45] Speaker 00:
I think I will reserve my remaining time and- I'm sorry, I just have one question before you do.

[00:11:50] Speaker 03:
It's interesting, you seem to separate hot pursuit and probable cause.

[00:11:55] Speaker 03:
So probable cause is standard thing, but what is hot pursuit then?

[00:12:00] Speaker 03:
Is that a legal determination that the officer was in hot pursuit?

[00:12:05] Speaker 00:
Yeah, hot pursuit comes from the idea, it's laid out in Welsh versus Wisconsin, and it requires that the, it's actually a little bit murky, but the legal standard is the entry has to be immediate and continuous with the pursuit.

[00:12:21] Speaker 03:
Right.

[00:12:22] Speaker 03:
Then why is that separated from the probable cause standard?

[00:12:25] Speaker 03:
the probable cause calculus change by the fact that he is in hot pursuit, that officer is in hot pursuit?

[00:12:33] Speaker 00:
I agree that they would seem to kind of blend into each other to an extent.

[00:12:37] Speaker 00:
There might be scenarios where one is present and not the other.

[00:12:41] Speaker 00:
My contention here is they're both missing.

[00:12:43] Speaker 00:
I have a sense that might not be persuasive on that point.

[00:12:46] Speaker 03:
Thank you, counsel.

[00:12:58] Speaker 02:
Good morning, Your Honors, and may it please the Court, my name is Dan Roberts, and I'm here on behalf of the appellees, the defendants below, deputies Underhill, Deputy Laidlaw, and Sergeant Blankenship.

[00:13:10] Speaker 02:
The appellant's argument in this case, well,

[00:13:16] Speaker 02:
Let me start with one thing that should just be laid out at the very beginning.

[00:13:20] Speaker 02:
There was some discussion in appellant's argument about danger and whether there was danger in going into the house.

[00:13:28] Speaker 02:
That's not really an issue here because this is a felony pursuit.

[00:13:32] Speaker 02:
And under the Lang versus California case from the Supreme Court,

[00:13:38] Speaker 02:
three or four years ago now, I guess.

[00:13:41] Speaker 02:
The issue there was in a misdemeanor pursuit, you must have, you must do a case-by-case analysis determining whether or not the hot pursuit justified setting aside the warrant requirement.

[00:13:53] Speaker 02:
But it kept the rule that in a felony pursuit context, the hot pursuit doctrine is a categorical exception.

[00:14:01] Speaker 04:
I read Lang differently than that.

[00:14:04] Speaker 04:
I thought that the court did not decide for sure that a fleeing felon case always presents exigent circumstances.

[00:14:12] Speaker 04:
They assumed it for the purpose of decision.

[00:14:14] Speaker 04:
But I don't read it as actually deciding that there's a categorical rule.

[00:14:24] Speaker 02:
I would agree with Your Honor to the extent that the

[00:14:28] Speaker 02:
The opinion of the court in Lange was very clear that they were focusing on the misdemeanor context, and they were not ruling one way or the other on the question of felony.

[00:14:41] Speaker 04:
Okay, so they didn't decide for sure that a felony always justifies hot pursuit.

[00:14:48] Speaker 04:
But I think the plaintiff here, and if I'm wrong, I hope counsel will correct me, but I think there's no dispute that the pursuit began because of a felony.

[00:15:05] Speaker 02:
That is correct, Your Honor.

[00:15:06] Speaker 02:
And there has not been a dispute in this case about whether or not the hot pursuit doctrine

[00:15:15] Speaker 02:
if the facts justify it would justify the excusal of the warrant requirement here.

[00:15:19] Speaker 02:
The dispute in this case has always been about whether the facts of the case support the application of the hot pursuit doctrine, and those requirements being immediacy and continuity of the pursuit.

[00:15:35] Speaker 02:
The defendants below, and as the court pointed out here, it's de novo review, the evidence before the court

[00:15:43] Speaker 02:
is that Deputy Underhill began the pursuit of Mr. Dela Cruz, who is not the plaintiff here, but it was plaintiff's roommate, learned later, began the pursuit actually during the commission of the felony.

[00:15:59] Speaker 02:
The felony was felony evading from a traffic stop.

[00:16:02] Speaker 02:
So there is no question about the immediacy of the pursuit.

[00:16:06] Speaker 02:
It began

[00:16:08] Speaker 02:
upon the observation of the felony.

[00:16:10] Speaker 02:
So the only question then is continuity.

[00:16:13] Speaker 02:
The deputy pursued by vehicle the suspect all the way to the subject house, plaintiff's house, saw him get out of the car.

[00:16:24] Speaker 02:
That's put out over the radio.

[00:16:27] Speaker 02:
It's heard in the belt recording that's in the record.

[00:16:31] Speaker 02:
sees the suspect with the vernacular's foot bail, but flee on foot toward the residence.

[00:16:37] Speaker 02:
He puts that out at the time that he sees it.

[00:16:40] Speaker 02:
Now, the appellant makes a big point of, well, he said last seen fleeing towards the residence.

[00:16:49] Speaker 02:
That's the last report on the audio recording.

[00:16:57] Speaker 02:
But that's not the end of the evidence.

[00:17:01] Speaker 02:
There is evidence here in the form of a declaration, which is how evidence on a summary judgment motion, one of the ways that evidence on a summary judgment motion can be put forward, that after that point, he saw the suspect go into the backyard and that he heard sounds consistent with a door opening and closing.

[00:17:23] Speaker 02:
wishes to disregard, doesn't dispute those facts, doesn't offer any contrary evidence to those facts, just ignores them as being self-serving.

[00:17:34] Speaker 02:
But those, focusing only on what is corroborated

[00:17:39] Speaker 02:
by the audio recording.

[00:17:41] Speaker 02:
But there is no requirement that declaration testimony or if, you know, it would be deposition or however else the testimony in a summary judgment motion appropriate manner be presented.

[00:17:56] Speaker 02:
There's no requirement that it also be corroborated by an audio recording.

[00:18:02] Speaker 04:
Well, actually, the audio actually has more in it than what you said.

[00:18:07] Speaker 04:
He says last seen toward the residence at the address.

[00:18:12] Speaker 04:
He then says he went down somewhere over to the rear of the residence.

[00:18:17] Speaker 04:
He ran this way.

[00:18:18] Speaker 04:
I think he may be inside.

[00:18:20] Speaker 04:
I don't know if he made it inside because, yeah, because he came and locked the door.

[00:18:26] Speaker 04:
Now, he hadn't locked the door, but it continued.

[00:18:31] Speaker 02:
That is correct, John.

[00:18:32] Speaker 04:
Quite a bit beyond just saying he ran toward the address.

[00:18:36] Speaker 02:
That is correct.

[00:18:37] Speaker 02:
My point is that you cannot discount or disregard the declaration testimony just because it's not corroborated fully by the audio.

[00:18:50] Speaker 02:
The evidence before the court, both below and of course here in the record, is that the deputy saw him go into the backyard

[00:19:01] Speaker 02:
and heard the sounds consistent with the door opening and closing.

[00:19:05] Speaker 02:
It was included in the declaration.

[00:19:06] Speaker 02:
It's consistent with the audio recording.

[00:19:10] Speaker 02:
The appellant had the opportunity below and here, consistent with the record, on summary judgment then to do one or both of two things.

[00:19:24] Speaker 02:
He could argue that the evidence put forward does, including the declaration, does not support the requirements of the hot pursuit exception.

[00:19:36] Speaker 02:
He could offer contrary disputing facts.

[00:19:40] Speaker 02:
He could dispute the evidence by offering contrary evidence of, well, somebody else saw him run away, or the audio recording says he ran down the hill instead of into the backyard, or a neighbor saw something else, or the

[00:19:57] Speaker 02:
flight officer in the helicopter saw something else there is no such evidence here of course there is no such evidence because we know after the fact that the suspect did go into the house that's where he was arrested that wasn't known to the officer or the deputy at the time but there is no contrary evidence for the appellant

[00:20:16] Speaker 02:
to point to, and the appellant does not argue anywhere that the facts, the evidence that the defendants did submit, including the declaration, do not support the application of the hot pursuit doctrine.

[00:20:35] Speaker 02:
All the appellant offers is that, well, the

[00:20:42] Speaker 02:
If you look just at the audio recording, and I agree with Your Honor that there's more to the audio recording than the appellant focuses on, but he said last seen toward the residence.

[00:20:55] Speaker 02:
Even if you focus just on that, last seen toward the residence is a report put out by radio at the time.

[00:21:02] Speaker 02:
He gets out of the truck.

[00:21:04] Speaker 02:
I see him run toward the residence.

[00:21:06] Speaker 02:
It doesn't account for what he sees after that point, after he clicks his mic, puts that out over the air, and it's caught on his belt recording.

[00:21:15] Speaker 02:
So the only thing that the appellant can fault then is that, well, the deputy did not continue to narrate

[00:21:23] Speaker 02:
on his audio recording, everything else that he saw after that point.

[00:21:29] Speaker 02:
So you should disregard his later testimony.

[00:21:35] Speaker 02:
There is no contrary evidence, and the absence of corroboration is not a basis to ignore the evidence that there is.

[00:21:43] Speaker 02:
So what we have here is we have undisputed evidence in the testimony of the deputy,

[00:21:51] Speaker 02:
and no argument that under that evidence, the hot pursuit doctrine does not apply.

[00:21:59] Speaker 02:
With that, the hot pursuit doctrine excuses the failure to get a warrant to go into the house under those circumstances.

[00:22:08] Speaker 02:
We do have a, what I would believe is it's

[00:22:12] Speaker 02:
I guess it was a semi-separate question of probable cause.

[00:22:15] Speaker 02:
I agree with the appellant that you have to have both.

[00:22:18] Speaker 02:
You have to have in this circumstance the hot pursuit exception to the warrant requirement to justify not getting a warrant.

[00:22:26] Speaker 02:
But you still have to have probable cause to believe the suspect.

[00:22:29] Speaker 04:
Sure, you can't just go barging into every house on the street.

[00:22:33] Speaker 02:
Exactly.

[00:22:33] Speaker 02:
I can't remember the name of the case, but there is a case out of this circuit, or perhaps it's the Supreme Court, where there was hot pursuit into a hotel, but there was not probable cause to believe that the suspect ran into every room there and the police were found.

[00:22:48] Speaker 02:
And unfortunately, I can't remember the name of the case.

[00:22:51] Speaker 02:
You need to have probable cause for that.

[00:22:53] Speaker 02:
But here there is more than sufficient probable cause.

[00:22:56] Speaker 02:
As Judge Graber pointed out in Appellant's argument here, the suspect is seen going into the backyard.

[00:23:05] Speaker 02:
It's enclosed.

[00:23:06] Speaker 02:
It's on a hill.

[00:23:08] Speaker 02:
There's a fence.

[00:23:08] Speaker 02:
There's a drop-off.

[00:23:10] Speaker 02:
He's not in the backyard.

[00:23:12] Speaker 02:
He didn't go over.

[00:23:13] Speaker 02:
It is at least

[00:23:16] Speaker 02:
probable that he, that he, that he went into the house.

[00:23:20] Speaker 02:
It doesn't require certainty, it's not beyond a reasonable doubt that, well, he could, there's some doubt here, he could have gone somewhere else.

[00:23:28] Speaker 02:
We're talking about probable cause here.

[00:23:30] Speaker 02:
It was probable he went into the house.

[00:23:32] Speaker 02:
And, of course, he did.

[00:23:35] Speaker 02:
That is all that is necessary in this case here, is that the evidence provided supports judgment as a matter of law in favor of the defendants, and that there is no evidence on which to controvert the defendant's evidence here.

[00:23:55] Speaker 02:
Only questions about lack of corroboration, but no contrary evidence.

[00:24:00] Speaker 01:
I take it you would agree that if the deputies had conferred outside for let's say half an hour or more about what to do that we probably would no longer be talking about hot pursuit.

[00:24:15] Speaker 02:
Probably not.

[00:24:17] Speaker 02:
If they had

[00:24:19] Speaker 02:
I think time is a factor, it's not dispositive.

[00:24:22] Speaker 02:
I think what is dispositive, and particularly looking at the Johnson case, what was dispositive there was, yes, there was time.

[00:24:31] Speaker 02:
There was also the fact that they had no idea where he went.

[00:24:34] Speaker 02:
The suspect there ran out into the woods and could have gone in any number of directions.

[00:24:38] Speaker 02:
But also, there was an actual physical break in the pursuit.

[00:24:43] Speaker 02:
The pursuing officer left the scene of the subject property, went back to a different area, I believe about a quarter mile away, where the pursuit started to go and pick up his, I think it was his OC spray canister there.

[00:24:59] Speaker 02:
The pursuit ended and he left.

[00:25:01] Speaker 02:
and came back later.

[00:25:03] Speaker 02:
That is, by any definition of the word, continuous, not continuous.

[00:25:09] Speaker 02:
He left and went away.

[00:25:11] Speaker 02:
We have no such thing here.

[00:25:12] Speaker 02:
We have a situation where the suspect was chased to a certain location, and rather than continue, like, he's not here, he went here.

[00:25:25] Speaker 02:
I, as the deputy, have an option,

[00:25:29] Speaker 02:
question to ask myself.

[00:25:31] Speaker 02:
Sorry, I'm tripping on my words a little bit here.

[00:25:36] Speaker 02:
I chased into the backyard, I heard the sounds of a door opening and closing.

[00:25:40] Speaker 02:
I'm by myself.

[00:25:42] Speaker 02:
I can run into the house after him by myself or I can wait for backup.

[00:25:48] Speaker 02:
Not wait half an hour or an hour, wait a number of minutes for backup,

[00:25:54] Speaker 04:
And then... Do we know from the record how long it was between the time he asked for backup and backup arrived?

[00:26:03] Speaker 04:
I don't believe that he... Obviously, it's less than nine minutes, but do we know more precisely than that?

[00:26:09] Speaker 02:
Off the top of my head, Your Honor, I'm sorry.

[00:26:10] Speaker 02:
I don't.

[00:26:11] Speaker 02:
I don't know that there was not a... He did not request backup at the time.

[00:26:14] Speaker 02:
He knew backup was on its way.

[00:26:16] Speaker 02:
Um, the, in this particular area, it's somewhat unique.

[00:26:21] Speaker 02:
This is sheriff's deputy.

[00:26:22] Speaker 02:
He's on his area of patrol is unincorporated, uh, county area.

[00:26:27] Speaker 02:
The location of the end of the pursuit is actually incorporated city.

[00:26:31] Speaker 02:
So it's a little bit out of his jurisdiction.

[00:26:34] Speaker 02:
The way that it works out there, this is somewhat outside the.

[00:26:38] Speaker 02:
I believe he, he did say that.

[00:26:41] Speaker 02:
My point being that the, the deputies all responding to it were

[00:26:46] Speaker 02:
confusing and it's on a windy streets up in the hills.

[00:26:50] Speaker 02:
It is confusing to get there.

[00:26:53] Speaker 02:
My point being, however,

[00:26:56] Speaker 02:
There was, he did, the Deputy Underhill did not call for backup at the back door.

[00:27:01] Speaker 02:
He knew backup was on its way.

[00:27:02] Speaker 02:
It was slightly delayed.

[00:27:04] Speaker 02:
It was some small number of minutes, certainly, I believe less than seven, certainly less than nine, that he waited there for backup and then proceeded to call in to the house and have the conversation with the plaintiff

[00:27:23] Speaker 02:
yelling through the door to the plaintiff in another room before entering.

[00:27:28] Speaker 02:
I believe that's as far as we need to go.

[00:27:31] Speaker 02:
I believe I've adequately briefed the question of qualified immunity, which we don't need to get to.

[00:27:37] Speaker 02:
But I have nothing further to add to my briefing on that.

[00:27:41] Speaker 02:
In my last 20 seconds, I did want to focus on the Bain Act issue under state law.

[00:27:47] Speaker 02:
If, again, we don't need to get there if there is no constitutional violation, but the appellant's position on that point requires ignoring the word by in that statute, that the violation occur by threats, intimidation, or coercion.

[00:28:05] Speaker 02:
The violation here

[00:28:08] Speaker 02:
Thank you, Your Honor.

[00:28:10] Speaker 02:
Wrap up.

[00:28:10] Speaker 02:
Just to finish my sentence, the violation here entering, crossing the threshold into the House, had already happened before any of the actions that the appellant states where the threats, intimidation, or coercion had happened.

[00:28:28] Speaker 02:
Thank you very much for your time, Your Honor.

[00:28:39] Speaker 00:
Very briefly, I don't want to get too much into the swamp of facts, but my colleague suggested there is no contrary evidence to Deputy Underhill's statements in his declaration.

[00:28:52] Speaker 00:
And I just think that's not the case.

[00:28:55] Speaker 00:
And fundamentally, it doesn't respect the way evidence is to be viewed on summary judgment.

[00:29:00] Speaker 00:
there's quite a bit of evidence contradicting the deputy's declaration, and it consists of the deputy's own statements at the time and the deputy's own actions at the time.

[00:29:11] Speaker 00:
If the deputy heard, it is a reasonable inference that if the deputy heard somebody opening and closing the door, he would have said that to somebody at the time, as all his- The district court said that the underheal can be heard on the audio recording mentioning a door.

[00:29:26] Speaker 00:
Yes, and what he says is there's an unlocked door.

[00:29:30] Speaker 00:
That's what he broadcasts over the dispatch.

[00:29:33] Speaker 04:
Well, first he says, uh, he came and locked the door, dude.

[00:29:38] Speaker 00:
Right.

[00:29:39] Speaker 00:
He says that.

[00:29:39] Speaker 04:
And then he says, ah, we got an unlocked rear door, because he's presumably moved from hearing a sound to looking at it.

[00:29:50] Speaker 00:
Well, that presumption, again, that's not... Well, that's what makes sense.

[00:29:55] Speaker 04:
He says he came and locked the door.

[00:29:56] Speaker 04:
Ah, we got an unlocked door.

[00:30:00] Speaker 00:
Right, so one way to look at that fax is the deputy is checking different doors.

[00:30:05] Speaker 00:
He finds one locked, one unlocked.

[00:30:07] Speaker 04:
Where's there evidence that there's more than one door?

[00:30:10] Speaker 00:
Well, I've been to the house.

[00:30:11] Speaker 00:
There's like five doors.

[00:30:13] Speaker 04:
You're not a witness.

[00:30:16] Speaker 04:
Where is it in this record that says that he tried different doors?

[00:30:20] Speaker 00:
My point is the evidence is to be viewed in a light most favorable to Mr. Newman and a reasonable inference is

[00:30:26] Speaker 00:
that if the deputy heard the sound of a door opening and closing, he would have said so.

[00:30:31] Speaker 04:
If the deputy went into the backyard and then... What if he heard no sound but noticed that the door was unlocked, which just justifies even further his view that somebody's just gone in there?

[00:30:43] Speaker 00:
Well, I guess my point is there is a tension in the evidence.

[00:30:47] Speaker 00:
There's a tension in the evidence.

[00:30:48] Speaker 04:
There are different ways to view... But if there's a tension, and none of the tense ways of looking at it

[00:30:54] Speaker 04:
detracts from probable cause, I don't understand how it helps you.

[00:30:59] Speaker 00:
Well, because it's not just probable cause, it's also hot pursuit.

[00:31:04] Speaker 00:
And I understand I might not be persuading you on that point, but my point is the tension goes to hot pursuit.

[00:31:12] Speaker 00:
And if the facts are just left out, such that hot pursuit is sort of a foregone conclusion, then my client is not getting the benefit of the evidentiary inferences to which he is entitled on summary judgment.

[00:31:25] Speaker 00:
I think there's an evidentiary issue there that should go to the jury.

[00:31:28] Speaker 03:
Thank you, counsel.

[00:31:29] Speaker 00:
Thank you very much.

[00:31:32] Speaker 03:
This case is submitted.

[00:31:34] Speaker 03:
The next case for argument