[00:00:03] Speaker 02: Case number 13-3097, United States of America versus Michael Anthony Weaver Appellant. [00:00:08] Speaker 02: Ms. [00:00:09] Speaker 02: Dyer for the appellant, Ms. [00:00:10] Speaker 02: Heffernan for the appellee. [00:00:12] Speaker 03: Ms. [00:00:12] Speaker 02: Dyer, good morning. [00:00:13] Speaker 03: Good morning, and may it please the Court. [00:00:16] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:00:21] Speaker 03: A police officer's right to enter the home of the subject of an arrest warrant is not absolute. [00:00:27] Speaker 03: Instead, that right is qualified. [00:00:30] Speaker 03: If, in contrast, a warrant authorizes a search of the home rather than the seizure of a person, then the officer's entry into the home is requisite to, it is indispensable to, the officer's execution of the warrant. [00:00:45] Speaker 03: That same necessity is not inherent in the execution of an arrest warrant. [00:00:52] Speaker 03: That is clear from the court's decision in Payton, where the court recognized two limits, at least two limits, on an officer's authority to enter with an arrest warrant. [00:01:02] Speaker 03: First, the officers must have a reasonable belief that the subject is within the home. [00:01:07] Speaker 03: But if the subject is already standing at the door, then the subject is not within [00:01:11] Speaker 03: the home's interior. [00:01:14] Speaker 03: If the subject is standing at the door, the officers have no further reason to look for what they are, to search for what they are looking to find. [00:01:21] Speaker 03: They have already found what they need to find at the threshold. [00:01:26] Speaker 03: And in addition, the court also limited the authority to enter or [00:01:31] Speaker 03: expressed another limitation on the authority to enter. [00:01:35] Speaker 03: It did not outline exactly what that limitation was, but there was no reason to state another limitation if it was not in fact an additional one. [00:01:42] Speaker 03: What limitation could that be but the Fourth Amendment? [00:01:45] Speaker 03: And what right is more fundamental in these circumstances than the right to the privacy in the home and the right not to have the officers open the door with a key, which is what happened here? [00:01:56] Speaker 03: So in this case, the moment the officers used that key to open the door, they crossed the threshold and broke the threshold. [00:02:03] Speaker 03: And that was the Fourth Amendment violation that occurred in this case. [00:02:07] Speaker 03: Here, the knock-and-announce requirement also served to protect privacy in the home. [00:02:13] Speaker 03: And the Supreme Court in Richards did recognize that individual privacy is affected by the knock-and-announce requirement. [00:02:20] Speaker 03: So the court's identification of three interests protected by that requirement in Hudson was not a statement of every possible interest that the requirement could protect. [00:02:31] Speaker 03: In fact, the court's citation of cases in Hudson primarily focused on warrantless searches and entrances with a search warrant. [00:02:42] Speaker 03: The court also cited Wilson v. Arkansas, in which the court recognized that the knock-and-announce requirements are, in fact, a Fourth Amendment consideration. [00:02:51] Speaker 03: And so in Wilson, the court recognized both that not-can-announce requirements are a Fourth Amendment violation and that if officers fail properly to not-can-announce, their entry into the home is unconstitutional and unreasonable, absent countervailing circumstances, which were not present here. [00:03:12] Speaker 03: In Acarino, in this court's case, this court recognized, first of all recognized that the exclusionary rule does protect [00:03:21] Speaker 02: Let me just stop you because I want to be sure the violation here is the failure to announce the purpose. [00:03:33] Speaker 02: The real violation is when the officers opened the door with a key. [00:03:36] Speaker 02: That's what I thought I heard you say. [00:03:38] Speaker 02: All right, so why is that a violation not contingent on the failure to announce the purpose? [00:03:46] Speaker 03: Well, had the officers announced their purpose, then it would have given Mr. Weaver a chance to surrender at the door. [00:03:52] Speaker 03: And that is why the announcement of the purpose was so critical in this case. [00:03:56] Speaker 03: But it was the officers breaking of the threshold to enter the home, thereby searching the home [00:04:03] Speaker 03: Well, they were in movement inside. [00:04:05] Speaker 03: Right. [00:04:06] Speaker 03: But they did not suggest that any of that movement was anything in particular, or even suspicious, remotely. [00:04:14] Speaker 03: There's nothing in the record to suggest that they believed that that movement meant anything at all. [00:04:19] Speaker 03: So it was the moment that they turned the door with the key that they broke the threshold, that the warrant did not authorize them to do that. [00:04:31] Speaker 03: Now, the court has recognized that the officers do not need a separate search warrant when they are entering the home of the subject of their arrest warrant. [00:04:40] Speaker 03: But the limitations on that, the use of that warrant to break the threshold, require that an announcement be made and that the individual inside be given an opportunity to surrender at the door. [00:04:55] Speaker 03: Justice White recognized this in his dissent in Payton. [00:04:58] Speaker 03: When twice he said at page 617, that's 445 U.S. [00:05:05] Speaker 03: at 617, he said that the not going to announce requirements allow the arrestee to surrender at his front door, thereby maintaining his dignity and preventing the officers from entering other rooms in the dwelling. [00:05:16] Speaker 03: And then at 618, he also says there is no danger that the officers will use their entry power as a pretext to justify an otherwise invalid arrest. [00:05:25] Speaker 01: How clear is the record here that the door could have been opened and the suspect surrendered himself without the officers thereby having smelled what they described as a strong odor of fresh marijuana or glanced over his shoulder and seen even from [00:05:50] Speaker 01: be outside the threshold, the drugs that gave them? [00:05:54] Speaker 03: The officer testified that he smelled the marijuana when he entered and he testified that he looked to the left and saw marijuana in the kitchen. [00:06:03] Speaker 03: So that does not suggest that he could see it from outside the door. [00:06:07] Speaker 03: Nothing in the record suggests that he could have detected [00:06:09] Speaker 03: protected marijuana in any way from outside the door. [00:06:14] Speaker 01: If we were to agree with you, would the appropriate order be for us to remand and give the government an opportunity to establish facts relating to whether they would have seen or smelled from outside the threshold? [00:06:29] Speaker 03: That would expand the remand history of this court far further than it has ever done before. [00:06:41] Speaker 03: The court often does remand for further factual findings by the district court. [00:06:47] Speaker 03: And that does not necessarily limit, I believe, the court to the existing record. [00:06:52] Speaker 03: But this court doesn't do that unless the court [00:06:56] Speaker 03: the district court has failed to make factual findings. [00:06:59] Speaker 01: Well, here the district court signaled that she was going to apply Hudson and there was no point in doing any factual finding on issues that are raised by the potential inapplicability of Hudson, so wouldn't that [00:07:12] Speaker 01: explain why there's no record. [00:07:14] Speaker 01: It wouldn't have occurred to the government to make a record of those questions if they think, well, that's what applies here. [00:07:19] Speaker 03: If this court were to do that in this case, then why doesn't it do that in almost every search case where perhaps officers could testify to more evidence? [00:07:29] Speaker 03: Typically this court, if the record is insufficient, [00:07:32] Speaker 03: invalidates or reverses the district court's denial of the suppression motion. [00:07:40] Speaker 03: And the record goes back and the evidence is suppressed. [00:07:43] Speaker 01: And what cases are you thinking about? [00:07:45] Speaker 03: Virtually all the cases in which the court does not remand for further findings. [00:07:50] Speaker 01: Right, but here we have this threshold legal inquiry that's going to shape the landscape, and that's not really the typical configuration. [00:07:57] Speaker 03: I don't have those cases at my fingertips, but I believe there are many cases in which it would be possible for officers to testify to more. [00:08:06] Speaker 03: And this court does not remand for further factual findings to allow them to do that. [00:08:09] Speaker 01: And your principal basis for distinguishing Hudson is that [00:08:14] Speaker 01: In Hudson, one of the factors that the court relied on was that the residents did not have a reasonable expectation of privacy in the very items and space that were the subject of the search warrant. [00:08:31] Speaker 01: And here you're saying that the resident retains the reasonable expectation of privacy in the home because that's not the subject of the search warrant, except to the extent necessary to get the suspect under custody. [00:08:48] Speaker 03: That's correct. [00:08:48] Speaker 03: And that's what was recognized in Stiegel, that the magistrate, there has been an independent judicial finding in this case that the officers have authority, they have probable cause to make an arrest. [00:09:00] Speaker 03: There has been no independent judicial finding that there is anything suspicious in the home or any justification for searching the home. [00:09:09] Speaker 03: So the officer's entry into the home, that's why the entry itself forms a constitutional violation. [00:09:16] Speaker 03: And I believe this court did hold that that type of entry without announcement in Acarino was a Fourth Amendment violation and required suppression. [00:09:27] Speaker 03: But it is that entry that had no independent judicial finding to justify it. [00:09:37] Speaker 03: So yes, it is that distinction. [00:09:39] Speaker 03: And I think as I read Hudson, I believe that the court's real rationale was the officers already had an independent judicial finding to search. [00:09:48] Speaker 03: I'm not saying that that was inevitable because inevitability finding is something slightly different, but it is that there was already an independent judicial finding that the officers were gonna get in the house and search for evidence. [00:10:02] Speaker 03: And so the fact that they made the entrance [00:10:05] Speaker 03: The fact that they didn't wait more seconds before making the entrance seemed less significant to the court. [00:10:12] Speaker 03: But in this case, there has been no independent judicial finding of a right to enter, and so the entrance itself is more significant and is a violation of the suspect's privacy in the home, which the suspect does retain. [00:10:27] Speaker 03: in the face of the arrest warrant. [00:10:33] Speaker 03: If the suspect were out in the hallway, there would be no reason to enter the apartment. [00:10:37] Speaker 01: It sounds like your position is maybe pushing the cases [00:10:41] Speaker 01: a little bit further in the sense that you're saying that the arrest warrant privileges the officers to enter the home only to the extent necessary to take the suspect into custody and that anything they do that oversteps the bare minimum of home intrusion that is necessary. [00:11:05] Speaker 01: So we're gonna have a lot of inquiry into the extent of the entry and whether it's [00:11:11] Speaker 01: But the Fourth Amendment needs necessity. [00:11:14] Speaker 03: Fourth Amendment inquiries do go into these types of specifics. [00:11:17] Speaker 03: And the real question here is, was the officer's entry reasonable under these circumstances? [00:11:23] Speaker 03: We don't have exigent circumstances. [00:11:26] Speaker 03: So we know, I mean, the court could send the case back for further factual findings on whether there was any exigency possibly. [00:11:34] Speaker 03: But there's nothing in the record now that suggests any exigency. [00:11:37] Speaker 03: And I don't think the court has ever done that kind of thing before. [00:11:40] Speaker 03: So it's a question of when they're standing at the door, if they've made the proper announcement, which they are required to make based on historical precedent, you know, far back into the 12th century and maybe 13th century, but, and whether they've, you know, if the suspect does not answer, then we recognize they have a right to enter then. [00:12:05] Speaker 03: They have a right to break. [00:12:06] Speaker 03: They have a right to cross the threshold. [00:12:08] Speaker 01: And the defect here is really that they failed to announce their purpose, more so than the timing. [00:12:14] Speaker 01: And if they had announced their purpose, your position is, oh, they only want me. [00:12:18] Speaker 01: They don't want to come in. [00:12:19] Speaker 01: And he wouldn't have struggled against the police pushing against the door, or at least you're entitled to the assumption that that might be the case. [00:12:25] Speaker 03: Well, he didn't push against the door until they opened it with a key. [00:12:28] Speaker 03: He had a right, not to announce police, even if he believes that they are police, to ignore them. [00:12:34] Speaker 03: At that point, he has no obligation to answer the door. [00:12:38] Speaker 03: So he's pushing on the door after they open it. [00:12:42] Speaker 03: And at that point, he just has no idea. [00:12:45] Speaker 03: If this is a two and a half year old warrant, that they might be coming for him with a search warrant. [00:12:51] Speaker 01: What do they have to say? [00:12:52] Speaker 01: Police warrant? [00:12:54] Speaker 01: or police warrant for the arrest, or police warrant for the arrest of Mr. Weaver? [00:12:58] Speaker 03: Well, that's a good question, and I don't know that this court has to answer it, because here they didn't say warrant at all. [00:13:05] Speaker 03: And if they said warrant, is that enough? [00:13:07] Speaker 03: Well, I think that that- Or arrest warrant. [00:13:09] Speaker 03: I think that, you know, I don't know that I have cases saying that there has to be arrest warrant, but I think they do need to say arrest warrant, because I think that at that point, the people inside- That would have to be a provision, right? [00:13:22] Speaker 03: Yes, and they have to express, once somebody does answer the door, so they have a right to require somebody to open the door with a warrant. [00:13:30] Speaker 03: We know that they have that right. [00:13:32] Speaker 03: But once somebody opens the door, they do have an obligation to explain who the warrant is for so that that person, if it's a guest or if it's a child, that somebody can call somebody to come to the door and protect everybody else's privacy in the house. [00:13:46] Speaker 03: And then that person can surrender, at least has an opportunity [00:13:50] Speaker 03: to avoid having police come in the house. [00:13:54] Speaker 03: So in terms of the circumstances in which police might otherwise enter, I think that that is a question that boils down to what is a reasonable entry under various circumstances. [00:14:06] Speaker 03: And we know at least here that there was no exigency. [00:14:10] Speaker 03: And we don't have any record on what would have happened. [00:14:13] Speaker 03: And I don't think the police officers could even testify as to what would have happened had he opened the door and put his hands across the threshold of the door [00:14:20] Speaker 03: and said, or stepped outside, but even if they were standing in the way so they couldn't step outside, he could have put his hands through the door and said, here, handcuff me. [00:14:31] Speaker 03: I don't need clothes. [00:14:33] Speaker 03: I will accompany you. [00:14:35] Speaker 03: And at that point, what obligation do they have? [00:14:38] Speaker 03: Or what right do they have then to violate his privacy, which is a whole nother right that he maintains. [00:14:46] Speaker 01: Is that enough to distinguish Hudson? [00:14:49] Speaker 01: I mean, there was a lot else in Hudson about the utility of the cost benefit of the exclusionary rule and other interests served by not going to announce that exclusion would not advance, all of which seem identical in your case. [00:15:04] Speaker 03: Well, the deterrence of police officers is not identical. [00:15:07] Speaker 03: And Justice Scalia's other considerations are things like potential violence if the police wait too long, but that kind of flies in the face of potential violence if they barge in. [00:15:18] Speaker 03: And I think that the [00:15:22] Speaker 01: But they crossed that bridge in Hudson. [00:15:24] Speaker 01: The potential violence if they barge in was there too, right? [00:15:27] Speaker 03: Failure to- It's in every case, but I think it's a police officer's individual judgment. [00:15:30] Speaker 03: Is it more risky to barge in? [00:15:33] Speaker 03: In which case they can apply for a no-knock warrant, or is it more risky if they wait a minute or two and then enter? [00:15:41] Speaker 03: allowing people perhaps to arm themselves. [00:15:44] Speaker 03: I'm not sure what that concern is. [00:15:47] Speaker 03: And the other is the flood of litigation, which courts had been dealing with for decades as to how many seconds were enough and similar types of knock-and-announce litigation, which is true for many Fourth Amendment considerations, and the knock-and-announce is one of them. [00:16:06] Speaker 03: So, but I do think that deterrence, on the deterrence question, the arrest warrant is very different because it allows the officers to get in the house and see things they wouldn't otherwise have seen as occurred here. [00:16:19] Speaker 03: All right, we'll give you a couple minutes. [00:16:20] Speaker 02: The court has no further questions. [00:16:21] Speaker 02: Thank you very much. [00:16:22] Speaker 02: Ms. [00:16:22] Speaker 02: Heffernan. [00:16:24] Speaker 00: Good morning, may it please the court. [00:16:26] Speaker 00: Appellant's argument rises and falls on his reading of Peyton, and that reading is incorrect. [00:16:32] Speaker 00: Peyton, in the 35 years since Peyton, the Supreme Court decided Peyton, no court, as far as we are aware, has read into Peyton the type of limitation that an appellant is asking this court to read into Peyton today. [00:16:46] Speaker 00: Peyton authorizes the limited authority of the police officers to enter the home to make the arrest. [00:16:52] Speaker 00: There's nothing in Peyton that says that [00:16:56] Speaker 00: This entire process needs to proceed that entry that the officers not only need to knock and announce, but to have conversations about does this person want to come out? [00:17:08] Speaker 00: Do they want to step across the threshold? [00:17:11] Speaker 00: Should we step into the home? [00:17:12] Speaker 00: None of that is in Peyton. [00:17:13] Speaker 00: No court has ever understood Peyton to be limited in that way. [00:17:17] Speaker 00: The limited necessity of Peyton is what the police can do when they enter the home, and that's arrest the home. [00:17:24] Speaker 00: arrest the subject of the warrant. [00:17:27] Speaker 00: I also wanted to point out that Peyton was decided before Bowie. [00:17:30] Speaker 00: And so the comments in Peyton and the dissent about what can occur when the police execute a warrant are now also subject to Bowie. [00:17:39] Speaker 00: And Bowie permits the police to do a sweep for third parties [00:17:46] Speaker 00: of the area immediately adjacent to the site of arrest. [00:17:52] Speaker 01: That isn't what was going on here. [00:17:55] Speaker 01: They weren't doing a protective sweep. [00:17:56] Speaker 00: That's correct. [00:17:57] Speaker 00: But I wanted to point out that the comments and the dissent in Payton needs to be read in light of Bowie. [00:18:05] Speaker 00: And I do think, actually, Bowie's an important consideration with respect to the deterrence. [00:18:14] Speaker 00: Appellant argues that the deterrence stakes are higher in an arrest warrant setting because he contends that if the arrest takes place at the threshold, that's the end of the story. [00:18:28] Speaker 00: But actually under buoy, if the arrest takes place at the set threshold, they get a sweep of the immediate area adjacent to the side of the arrest. [00:18:36] Speaker 01: But you understand the concern. [00:18:37] Speaker 01: The concern is unlike in a search warrant situation where [00:18:41] Speaker 01: The resident's expectation of privacy in his or her home is trumped by the warrant supported by probable cause. [00:18:50] Speaker 01: Here you have a situation where somebody, this guy, he's a suspect long being sought by the police and he's got family maybe and his kids are sitting having breakfast with him and the police come to the door. [00:19:04] Speaker 01: You know, there's a lot of privacy interest. [00:19:06] Speaker 01: Other people who live in the house, you might not want to be seen being handcuffed in front of your elderly parents, in front of your spouse, in front of your children. [00:19:16] Speaker 01: You might want to protect other people, your roommates, whose unlawful conduct, they have a right to, you know, [00:19:24] Speaker 01: not have to be observed in the absence of a warrant. [00:19:27] Speaker 01: And so you'd want to step out. [00:19:28] Speaker 01: So there really is a different deterrence dynamic here. [00:19:32] Speaker 01: I'm not saying it's determinative, but you do have to take that on, don't you? [00:19:38] Speaker 00: off the point, to the extent that we're talking about third party's privacy interests. [00:19:43] Speaker 00: That's Stiegel. [00:19:44] Speaker 00: Stiegel is not this case because we are not here talking about the privacy interests. [00:19:49] Speaker 00: We're not talking about a case in which the privacy interests of third parties have been invaded. [00:19:53] Speaker 01: Would it also be the defendant's privacy interests if I'm the mother and I'm about to be arrested on drug charges and my minor children are in the house? [00:20:03] Speaker 01: It's my privacy interests that I don't want them to witness me being taken away. [00:20:07] Speaker 00: I understand that, but the warrant requirement protects those interests. [00:20:12] Speaker 00: The warrant requirement, either you have an arrest warrant or a search warrant. [00:20:16] Speaker 00: The same interests are taken into consideration. [00:20:20] Speaker 00: It's just the fact that the search warrant permits more than an arrest warrant does. [00:20:25] Speaker 00: But those considerations are taken into consideration with respect to an arrest warrant, which is why Peyton says that police are authorized to enter the limit purpose of making an arrest. [00:20:37] Speaker 00: Now, what Appellant is positing here today with respect to when we get to a Hudson analysis, setting aside Paton, which we strenuously disagree with their reading of Paton, as requiring this dialogue at the door such that the courts have long recognized how inherently dangerous an arrest situation is. [00:21:02] Speaker 00: And they have never required this kind of dialogue [00:21:06] Speaker 00: option exchanging for an arrestee. [00:21:09] Speaker 00: The police are entitled to take control of the situation and take the arrestee into custody. [00:21:13] Speaker 00: And that's exactly what happened here. [00:21:15] Speaker 00: The custody situation took place right at the threshold, right where they took him down. [00:21:20] Speaker 00: The officer didn't go any further than that when he spotted the marijuana and smelled it. [00:21:26] Speaker 01: But you were going to talk about Peyton and why it's distinguishable. [00:21:29] Speaker 01: Take away the third party interest. [00:21:31] Speaker 01: If I'm committing unlawful conduct in my home, [00:21:35] Speaker 01: In the absence of a search warrant, I still have a reasonable expectation of privacy in my home, and they come with an arrest warrant. [00:21:42] Speaker 01: And yes, the police have an interest in entering my home to the extent that they need to do that to take me into custody, but don't have an interest, a separate interest or authorization, privilege, [00:21:55] Speaker 01: to enter the home. [00:21:56] Speaker 01: And so there's a concern, I guess, that the balance are raising here that if the police could arrest me on the street, they'll say, oh, but let's get a warrant because we want to go see what's going on in the house. [00:22:10] Speaker 01: And that's a different concern. [00:22:13] Speaker 01: from the concern in Hudson, right? [00:22:16] Speaker 00: Payton is quite clear, and it says that if there's probable cause to believe that somebody has committed a felony, then it's reasonable to require the arrestee to open their doors to the police. [00:22:27] Speaker 00: The police are entitled to enter the home. [00:22:28] Speaker 00: The case law does not require the police to do a stakeout of a home for a couple of days to see if the defendant's going to step out, the arrestee is going to step out. [00:22:37] Speaker 00: It just doesn't require that. [00:22:38] Speaker 00: What about knock and announce? [00:22:40] Speaker 01: Isn't the point of knock and announce to get the president to come to the door? [00:22:43] Speaker 01: And open it voluntarily? [00:22:44] Speaker 00: Yeah, the point of the knock-and-announce are three points of the knock-and-announce, as the Supreme Court described. [00:22:50] Speaker 00: One of those is preventing the destruction of property. [00:22:53] Speaker 00: The second is protecting life and limb from a surprised resident. [00:22:58] Speaker 00: And the third is just the dignity in getting dressed. [00:23:01] Speaker 00: It was quite clear under Hudson that there are two different interests. [00:23:05] Speaker 00: There's the interest protected by the warrant requirement, which are the interests that you've outlaid. [00:23:10] Speaker 00: And there are the interests [00:23:12] Speaker 00: And those are two different interests. [00:23:16] Speaker 00: And so once a warrant is obtained, then we set aside those interests, unless the scope of the warrant is exceeded. [00:23:23] Speaker 00: This is not a case in which the scope of the arrest warrant was exceeded. [00:23:27] Speaker 00: They didn't go rummaging in boxes and do other things. [00:23:33] Speaker 00: that exceeded the scope of the war. [00:23:35] Speaker 00: So those, the interests are very different, which is one of the reasons why the Supreme Court holding a Hudson is a categorical holding that you don't, the exclusionary rule does not come into play when we are simply dealing with a not going to announce violation. [00:23:54] Speaker 00: The Supreme Court in Hudson also pointed out how we don't want to get involved in opening the floodgates of litigation. [00:24:00] Speaker 00: And that's exactly what Appellant is asking for here in trying to limit Peyton in a way that no court has ever done so. [00:24:07] Speaker 00: Because now... [00:24:09] Speaker 00: The Supreme Court in Hudson was worried about debating what was reasonable. [00:24:12] Speaker 00: Now we're going to debate not only how long it took to open the door, but what was said, were they aware of their choices, did the police step back so that they could step out before they then first stepped in. [00:24:24] Speaker 00: That's exactly the kind of second guessing and hair splitting litigation that the Supreme Court has recognized that we don't engage in and we don't want officers [00:24:32] Speaker 00: engaged in the very risky enterprise of executing an arrest warrant to have to sit and wait too long to figure out what kind of choices they get so that they're not violating the Fourth Amendment. [00:24:49] Speaker 00: That's another substantial cost that the Supreme Court in Hudson said was too costly and not outweighed by the deterrent benefits. [00:24:59] Speaker 00: And as I pointed out, under Bowie, it's incorrect to say that there's a heightened deterrence here, particularly on the facts of this case, because Bowie permitted a sweep of the room that immediately joining the doorway. [00:25:14] Speaker 00: And that's where the marijuana was. [00:25:16] Speaker 01: But I don't think Appellant is contesting that. [00:25:18] Speaker 01: I think Appellant grants that there would be protective sweep authority. [00:25:22] Speaker 01: But the position, as I understand it, is that knock and announce is to allow orderly execution of the arrest warrant and privacy and dignity of the individual. [00:25:35] Speaker 01: and in the absence of a search warrant, the intact privacy of the home, and that therefore if the arrest warrant can be executed without intrusion into the home, that that is what should happen. [00:25:49] Speaker 00: Under Hudson says that's incorrect. [00:25:51] Speaker 00: Hudson says that the warrant requirement covers the privacy interests you've just identified. [00:25:56] Speaker 00: The not going to announce requirement covers different [00:26:00] Speaker 00: interests, and it doesn't cover the privacy interests that are the subject of the warrant requirement. [00:26:06] Speaker 00: The warrant requirement takes care of that. [00:26:09] Speaker 00: The not going to announce rule covers different interests. [00:26:11] Speaker 00: And when it identified the interests that were covered by the not going to announce rule, it didn't, by the way, say the not going to announce rule also is required because we want defendants to be able to step out of their house and keep the police from entering it. [00:26:29] Speaker 00: And it makes sense, because the warrant requirement already covers the privacy interests. [00:26:33] Speaker 00: It's just the arrest warrant permits a much lesser intrusion into those privacy interests than the search warrant. [00:26:44] Speaker 00: If there are no further questions, we'd ask that the judgment be affirmed. [00:26:47] Speaker 02: All right, thank you. [00:26:49] Speaker 02: Does Ms. [00:26:49] Speaker 02: Dyer have any time? [00:26:51] Speaker 02: Why don't you take a couple minutes. [00:26:55] Speaker 03: I just have a couple of points. [00:26:56] Speaker 03: One, I would say that the warrant requirement, the government says that the warrant requirement does authorize an invasion of privacy. [00:27:03] Speaker 03: Well, that's true for search warrants and not arrest warrants. [00:27:06] Speaker 03: With respect to the protective suite, that is only authorized where the officers do have a concern for their safety. [00:27:11] Speaker 03: And as Judge Plurte has identified, there was no such expression of concern in this case. [00:27:17] Speaker 03: And in terms of [00:27:19] Speaker 03: extending Hudson or reading Hudson differently. [00:27:22] Speaker 03: I would just note that [00:27:27] Speaker 03: I would point the court to the first two paragraphs of Justice Kennedy's concurrence, where Justice Kennedy does make several statements that are very broad. [00:27:40] Speaker 03: One is the not going to announce requirement protects rights and expectations linked to ancient principles in our constitutional order. [00:27:47] Speaker 03: As to the basic right in question, privacy and security in the home are central to the Fourth Amendment's guarantees. [00:27:53] Speaker 03: And it bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry. [00:28:02] Speaker 03: If the Court has no further questions, we would... Thank you.