[00:00:05] Speaker 04:
Mr. Bradshaw for the appellant, Mr. Law for the appellees.

[00:00:50] Speaker 03:
Good morning.

[00:01:06] Speaker 00:
Good morning.

[00:01:07] Speaker 00:
Good morning, Your Honors.

[00:01:08] Speaker 00:
If you please record, my name is Horace Bradshaw.

[00:01:12] Speaker 00:
I'm here for the appellate, Mr. Mark Thorpe.

[00:01:19] Speaker 00:
The reason I'm here, Your Honor, is that the intrusion, we're looking to remand a dismissal of a matter.

[00:01:29] Speaker 00:
We believe it should have been given an opportunity for a jury trial.

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There was an intrusion into the cold corners of Mark Thorpe.

[00:01:38] Speaker 00:
They went into his kitchen freezer, pursuant to an animal humane society search warrant.

[00:01:45] Speaker 00:
to concern themselves with a dog that may have been abused.

[00:01:51] Speaker 00:
Pursuant to that search warrant, they ended up rummaging through the freezer.

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This search warrant did not happen in the vacuum.

[00:02:04] Speaker 00:
It did not happen in the vacuum?

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Something led up to it.

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The search was a culmination of a series of searches.

[00:02:13] Speaker 03:
Was the search of the freezer

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in contravention of the search warrant?

[00:02:18] Speaker 00:
It was a pretty broad search warrant, wasn't it?

[00:02:20] Speaker 00:
The search warrant came as a result of a apparent viewing.

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What did the search warrant say?

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The search warrant allowed them to look for a dog who was experiencing an abuse.

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That was the reason.

[00:02:35] Speaker 03:
I don't think that's the language.

[00:02:36] Speaker 03:
What was the actual language of the search warrant?

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It was not just to look for a dog.

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It was to look for evidence of

[00:02:44] Speaker 03:
cruelty or abuse, right?

[00:02:46] Speaker 00:
Yeah, inside the house.

[00:02:47] Speaker 00:
Inside the house.

[00:02:49] Speaker 03:
Was the freezer inside the house?

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It was.

[00:02:51] Speaker 03:
So what was there about looking into the freezer that violated the search warrant?

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It was a very broad search warrant.

[00:02:58] Speaker 00:
It was broad, Your Honor, and we have questions about the basis for the search warrant being granted as well.

[00:03:04] Speaker 03:
Let's just take one at a time.

[00:03:06] Speaker 03:
Was there something taking the terms of the search warrant itself?

[00:03:10] Speaker 03:
Was there something about looking into the freezer that violated the terms of the search warrant?

[00:03:15] Speaker 00:
The search warrant was granted to animal humane society personnel employees.

[00:03:21] Speaker 00:
They had already determined there was no abuse evident.

[00:03:25] Speaker 00:
There was a subsequent rambling through the home as a result of this.

[00:03:30] Speaker 03:
It was outside of... That's a different question, isn't it?

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I mean, the question I'm getting at was there's something about the search of the freezer that

[00:03:39] Speaker 03:
contravened what the language of the search warrant itself allowed for.

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I would argue that there was.

[00:03:47] Speaker 03:
And what was that?

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They were looking for very specific evidence of abuse.

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There was no evidence of abuse.

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There would be no scope in the freezer to identify abuse of the animal.

[00:04:02] Speaker 00:
There would be nothing in the freezer that would identify an abuse of an animal.

[00:04:05] Speaker 04:
Your argument is because they saw the dog, they saw the water, they saw the dog food.

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And they concluded the dog was okay.

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And so if you open the freezer to look for food, you know there's already food.

[00:04:21] Speaker 04:
So there's no point.

[00:04:25] Speaker 04:
Is that your argument?

[00:04:29] Speaker 04:
Well, I mean, the purpose point is there is some language in the search warrant that's broad.

[00:04:35] Speaker 04:
And I think your argument is that the search warrant was not, has to be read in the context of what the people who applied for it identified was the purpose of seeking this authority.

[00:04:55] Speaker 00:
Yes, I would agree with that.

[00:04:57] Speaker 00:
That's not a concession on our part.

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We're simply saying that this was not a search warrant that was granted

[00:05:04] Speaker 00:
or ended up in the freezer by mistake.

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There was more to this.

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It was not a vacuum.

[00:05:11] Speaker 00:
The officers, the Washington Humane Society employees, do you mind if I go to the question of whether they were officers or not, or should I simply stick with what we have?

[00:05:21] Speaker 04:
Let's stick with what we have.

[00:05:23] Speaker 00:
Okay.

[00:05:24] Speaker 00:
The Humane Society employees.

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did in fact perform their duties as civilian arbiters of Washington Humane Society rules and regulations.

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Once they determined that there was no evidence of abuse, there would be no reason to go into the freezer.

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And the reason given by the government for entering the freezer was a notion, an instinct, SNH.

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case that they felt or they suspected there might be something in the freezer.

[00:06:02] Speaker 03:
So we're not hearing, this isn't a suppression hearing that we're reviewing, right?

[00:06:07] Speaker 03:
Right.

[00:06:09] Speaker 03:
We're looking at this under qualified immunity.

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Is there qualified immunity for the officer here?

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And to show, to pierce that, you have to show that he violated some clearly established law.

[00:06:23] Speaker 03:
What was the clearly established law

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he violated by looking at the freezer.

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Qualified immunity is one part of this.

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But what we're really looking for is a chance for a jury to have a chance to review these facts.

[00:06:37] Speaker 03:
Well, I'm looking at qualified immunity right now.

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So can you help me understand that?

[00:06:44] Speaker 00:
What was the clearly established law that was violated when you looked into the freezer?

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I believe that when he expanded the scope of the search

[00:06:56] Speaker 00:
to include the freezer.

[00:06:57] Speaker 02:
When you say expanded, what do you mean?

[00:06:59] Speaker 02:
I mean, in response to Judge Griffith's questions, you haven't identified any way in which the search exceeded the language of the search warrant.

[00:07:14] Speaker 00:
I'm thinking because I am looking to respond to the question.

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And I know what I understand about the case.

[00:07:25] Speaker 00:
I believe it is my position or our position that once the professionals, the humanity, the humane society of professionals had reviewed the judiciary.

[00:07:38] Speaker 02:
But you don't have any case for the proposition that an opinion right off the bat by a professional bars the exercise of judgment by the officer executing the warrant.

[00:07:55] Speaker 02:
which would be extraordinary.

[00:07:56] Speaker 00:
I believe that SH does say that the generic statements of a narrative that's used to support a search of this type, they have to be somewhat more specific and somewhat less than clairvoyant.

[00:08:10] Speaker 00:
They have to know more about the circumstance, more about what they ask for, more about what they're looking for.

[00:08:17] Speaker 00:
They can't simply say, we can do this because we are the police.

[00:08:21] Speaker 04:
They can't simply say- No, but the district court cited for you

[00:08:25] Speaker 04:
the proposition that, under qualified immunity, you would have a very high burden to show that the decision to go into the freezer was basically incompetence.

[00:08:42] Speaker 00:
A difficult note.

[00:08:43] Speaker 00:
And that may well be true.

[00:08:44] Speaker 00:
And I agree with that.

[00:08:46] Speaker 04:
No, it's not a question of it may well be true.

[00:08:48] Speaker 04:
That was what the district court said.

[00:08:50] Speaker 04:
You have to show us that the district court was

[00:08:53] Speaker 04:
an error in that, and I thought that's what Judge Griffith's questions were giving you the opportunity to do.

[00:08:59] Speaker 00:
And I'm trying my best to give it.

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What I'm saying to you is as follows.

[00:09:04] Speaker 00:
I believe they've gone, that this sort of question, the question that you're raising to me, weren't an opportunity for a jury to review the facts.

[00:09:14] Speaker 04:
No.

[00:09:14] Speaker 00:
What allowed, I understand what you're saying, Judge Rogers, I do.

[00:09:21] Speaker 04:
You know, I'm just saying what the Supreme Court has said you have to show to overcome qualified immunity, and you have to make that argument to us.

[00:09:32] Speaker 04:
And I think your brief makes clear sort of what your theory is, but the District Court rejected it and told you why.

[00:09:42] Speaker 04:
And we have to be persuaded that this report was wrong.

[00:09:46] Speaker 00:
Your Honor, I apologize, but I have to yield to the brief and responses to that question.

[00:09:50] Speaker 00:
I cannot respond more than to say that there is a case that suggests

[00:09:59] Speaker 00:
that an officer must have something more than clairvoyance, must have something more than a routine narrative that allows him to search the entire property as a result, particularly in this matter.

[00:10:13] Speaker 00:
And I apologize.

[00:10:14] Speaker 00:
I know I'm running out of time.

[00:10:15] Speaker 00:
But I'm doing my best to respond.

[00:10:18] Speaker 04:
Steve, the gentleman?

[00:10:21] Speaker 04:
No.

[00:10:21] Speaker 04:
All right.

[00:10:22] Speaker 04:
Do you want to move on?

[00:10:24] Speaker 00:
Thank you.

[00:10:28] Speaker 00:
uh... with the start of the first war obtained by the civilian employee of the washington your honor does it now my time is

[00:10:36] Speaker 04:
We're giving you a few extra minutes.

[00:10:38] Speaker 00:
Thank you.

[00:10:40] Speaker 00:
The Washington Maine Society, the District of Columbia repeatedly calls for the humane law enforcement officers, but does not take responsibility for their official actions.

[00:10:50] Speaker 00:
Law enforcement authority can only exist by delegation of the mayor.

[00:10:53] Speaker 00:
It does not exist otherwise.

[00:10:56] Speaker 00:
This delegation is permitted by the mayor appointing special officers.

[00:11:00] Speaker 00:
There's no indication that the Humane Society has been identified as a special officer, but if they were,

[00:11:06] Speaker 00:
and have been, then the government would have to take responsibility for their training, for their preparation for this work, and that has not been done.

[00:11:15] Speaker 00:
That is a concern.

[00:11:18] Speaker 00:
But the Metropolitan Police officers, and this goes somewhat to Judge Griffith's concern, where it seems that the employees of the Humane Society did not necessarily understand what the nature of the search would be, or the scope of the search would be, or how it happened that they would ransackle the home looking for evidence of abuse of an animal.

[00:11:42] Speaker 00:
I do believe that the officers, particularly Ramsey, did know.

[00:11:46] Speaker 00:
He simply searched and whatever he could later contrive a narrative to justify.

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And that's where I was moving the court.

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I hope that that would be your concern, but I understand the other concern that you presented, sir, and I wish I was more alert to it.

[00:12:02] Speaker 00:
But I must say, it is a concern that is somewhat absurd that the officer would search and then justify.

[00:12:15] Speaker 00:
search the freezer, and then respond.

[00:12:18] Speaker 00:
And the narrative that he used is the same narrative that's been objected to in the past.

[00:12:27] Speaker 00:
So that is a concern.

[00:12:29] Speaker 00:
He ended up in the kitchen.

[00:12:33] Speaker 00:
Then outside is just so much going on.

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The reason, I must say this, there are just three facts that the government can't overlook.

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And we haven't addressed this, but you've read the brief.

[00:12:51] Speaker 00:
On the morning of the raid, there was an advertisement for an AMC commissioner's property to be sold.

[00:13:00] Speaker 00:
The gentleman who was about to be the beneficiary of that auction was the appellant, Mr. Thorpe.

[00:13:09] Speaker 00:
Officers were outside his home.

[00:13:11] Speaker 00:
They wrote tickets on his property

[00:13:16] Speaker 00:
on his private property, on cars on his private property.

[00:13:20] Speaker 00:
They wrote tickets for bus zone violations when there was no bus zone.

[00:13:26] Speaker 00:
They suggested that they saw him hit a dog.

[00:13:29] Speaker 00:
In depositions later, it was suggested they may have seen him hit a dog.

[00:13:34] Speaker 00:
That was the basis for this initial warrant.

[00:13:37] Speaker 00:
No.

[00:13:40] Speaker 00:
And on that morning, officers Rapp and Enola wrote tickets, as I indicated.

[00:13:45] Speaker 00:
The home was raided, and the results of the raid were reported back to the chief of police.

[00:13:52] Speaker 00:
Now, there is evidence offered that they were also reported back to the ANC commissioner involved.

[00:13:58] Speaker 00:
That is also in the record.

[00:14:01] Speaker 00:
This was not an issue.

[00:14:05] Speaker 00:
This was not an issue that was right for summary judgment.

[00:14:08] Speaker 00:
That's the concern here, and that's why I'm here.

[00:14:13] Speaker 00:
I would note one other final matter.

[00:14:18] Speaker 00:
There was money taken on that time.

[00:14:20] Speaker 00:
Eventually, after a year and a half, it was returned.

[00:14:23] Speaker 00:
However, there was $30,000 in cashier's checks in the police record, photographs of it.

[00:14:32] Speaker 00:
It never apparently made it to the evidence group.

[00:14:36] Speaker 00:
It's never been returned.

[00:14:38] Speaker 00:
That is a question that someone might want

[00:14:42] Speaker 00:
a fact-finder to review.

[00:14:43] Speaker 00:
Where is that money?

[00:14:44] Speaker 00:
How did that play into this?

[00:14:47] Speaker 00:
Those are legitimate concerns.

[00:14:49] Speaker 00:
Those are legitimate reasons to bring an action.

[00:14:52] Speaker 00:
Summary judgment just is not appropriate under these circumstances.

[00:14:56] Speaker 04:
All right.

[00:14:57] Speaker 04:
Why don't we hear from the government, and we'll give you a couple of minutes in rebuttal.

[00:15:14] Speaker 01:
Good morning and may it please the Court Richard Love for the District of Columbia and Lieutenant now Captain Kyle.

[00:15:25] Speaker 01:
The District Court correctly found that both the search warrants were appropriately authorized, that Lieutenant Kyle did not exceed the scope of the initial warrant and that there was probable cause for Mr. Thorpe's arrest.

[00:15:38] Speaker 01:
Mr. Thorpe failed to allege a favorable termination of his criminal prosecution sufficient to state a claim, a plausible claim, for malicious prosecution.

[00:15:48] Speaker 01:
He failed to properly amend his complaint to include any allegation related to the seizure of his currency, and the Court properly denied his untimely attempt to add unrelated claims against new defendants.

[00:16:03] Speaker 01:
He also failed to present any developed argument that the court aired in dismissing his conspiracy claim, and he failed to submit evidence to demonstrate that Lieutenant Kyle was an active participant in a prior Fourth Amendment violation sufficient to hold the district liable for negligent supervision and retention.

[00:16:25] Speaker 01:
And finally, the district court did not improperly ignore the deposition testimony referenced by Mr. Thorpe during the summary judgment briefing.

[00:16:35] Speaker 03:
The basis for this... What about the freezer?

[00:16:38] Speaker 03:
We talked about the freezer.

[00:16:40] Speaker 01:
So, Sergeant Kyle, as the court noted, first of all, the

[00:16:46] Speaker 01:
The warrant is very broad.

[00:16:47] Speaker 01:
It says, animals physically abused, dead or alive, born or unborn.

[00:16:52] Speaker 03:
Mr. Love, I agree with you on that.

[00:16:55] Speaker 03:
Was there anything that could have happened in the search that would have made it impermissible to look into the freezer?

[00:17:02] Speaker 01:
No.

[00:17:03] Speaker 01:
And I think it's a warrant.

[00:17:05] Speaker 03:
No?

[00:17:05] Speaker 03:
Why is that not the case?

[00:17:06] Speaker 03:
I mean, here the Humane Society officers say, we've got enough.

[00:17:11] Speaker 03:
We see the dog.

[00:17:14] Speaker 03:
The dog looks fine.

[00:17:15] Speaker 03:
We're going to take the dog into the vet just to double check.

[00:17:18] Speaker 03:
There's enough food here.

[00:17:20] Speaker 03:
There's enough water there.

[00:17:22] Speaker 03:
The experts say, we're done.

[00:17:23] Speaker 03:
And yet, Officer Kyle goes to look in the freezer.

[00:17:29] Speaker 03:
Why?

[00:17:30] Speaker 01:
Well, as he testified, he was looking for animals that are alive, and a good place to store a dead animal is in a freezer.

[00:17:37] Speaker 01:
And again, there were hours between- What kind of animal are we talking about?

[00:17:41] Speaker 01:
Well, it could have been a cat.

[00:17:42] Speaker 04:
It could have been- No evidence this man had a cat.

[00:17:46] Speaker 01:
Well, but the idea that this- This man has a large dog, right?

[00:17:51] Speaker 01:
I understand that.

[00:17:52] Speaker 01:
But the idea that this warrant is confined solely to that, the warrant plainly says any other evidence of animal cruelty.

[00:18:00] Speaker 01:
The fact that he was observed

[00:18:02] Speaker 01:
inflicting a punishment that caused his dog to yelp and cry in pain, multiple strikes, means he could have abused other animals.

[00:18:12] Speaker 01:
There could be other evidence of abuse of other animals, including cats, should they be in the house.

[00:18:19] Speaker 01:
They didn't know one way or the other.

[00:18:22] Speaker 01:
hours to secrete any evidence of other animal cruelty because the police repeatedly asked them to come outside.

[00:18:32] Speaker 04:
I don't know if a man is seen striking a dog.

[00:18:36] Speaker 01:
Yes.

[00:18:37] Speaker 04:
And that testimony is not the strongest that is suggested from time to time.

[00:18:47] Speaker 04:
Can you get a warrant?

[00:18:49] Speaker 04:
the cause of concern about cruelty to that dog.

[00:18:56] Speaker 01:
Well, that was the precipitating event.

[00:18:58] Speaker 04:
I know, but how far can you go?

[00:19:07] Speaker 04:
Well, I don't think it was.

[00:19:08] Speaker 04:
Because the guy's not watering his plants, you know?

[00:19:14] Speaker 04:
That's the only concern here.

[00:19:16] Speaker 04:
And you're looking at, I gather, in the freezer that's part of a refrigerator as distinct from a separate freezer that would be large enough to hold a dog.

[00:19:32] Speaker 02:
Well, dogs come in wide sizes.

[00:19:34] Speaker 04:
They come in many sizes.

[00:19:36] Speaker 04:
But my point is, they have a suspicion that this man may be mistreating his

[00:19:44] Speaker 04:
That's it.

[00:19:49] Speaker 04:
There's no evidence that he has a reputation as an animal abuser, that people in the community have been concerned about how he's treating cats and other animals.

[00:20:03] Speaker 04:
I'm just wondering that after, as Judge Griffith's hypothetical suggests, after the expert said, we're satisfied.

[00:20:12] Speaker 04:
There's no evidence of animal cruelty here.

[00:20:16] Speaker 04:
Let's go.

[00:20:18] Speaker 01:
The experts, as you know, Sergeant Officer Russell and her supervisor, Officer Durama, both testified that there have been occasions where they have searched freezers for evidence of animal cruelty.

[00:20:35] Speaker 01:
So it's not beyond the pale.

[00:20:37] Speaker 04:
Yes, but that doesn't mean that those searches were legal, all right?

[00:20:42] Speaker 04:
And we don't know what kind of animals they were looking for.

[00:20:44] Speaker 04:
They don't know if they found anything.

[00:20:47] Speaker 04:
You know, I mean, a lot of things happen in life.

[00:20:51] Speaker 04:
So I just wonder how far the district wants to go on this type of search warrant.

[00:20:58] Speaker 01:
Well, I think we'll go so far as I think the district court correctly indicated.

[00:21:04] Speaker 01:
I've indicated what Lieutenant Kyle testified to and what doesn't.

[00:21:10] Speaker 04:
So what should have happened here then is that the magistrate issued too broad a warrant

[00:21:16] Speaker 04:
that it should have been made clear based on the affidavit that the warrant was to look for cruelty to this animal as there was no evidence, no indication, no suggestion that this man was abusing animals or even had an animal other than this dog.

[00:21:36] Speaker 01:
Well, I think the district court properly addressed that possibility.

[00:21:40] Speaker 01:
He indicated even if the scope of the warrant was a mismatch for the allegations, that Lieutenant Kyle would still be entitled to qualified immunity.

[00:21:50] Speaker 04:
So that's where we are on this, and that's the end of it.

[00:21:52] Speaker 04:
And as we've been talking with counsel for appellant, the Supreme Court has made it very clear that the burden is very heavy to defeat.

[00:22:06] Speaker 04:
qualified immunity.

[00:22:08] Speaker 01:
Right, and I would suggest that, or I would submit that we have a number of things that show we didn't act in violation of clearly established law or otherwise incompetently.

[00:22:20] Speaker 04:
We have the plain terms of the warrant, which is... Well, he wasn't substantially incompetent.

[00:22:26] Speaker 04:
Excuse me?

[00:22:26] Speaker 04:
He wasn't substantially incompetent.

[00:22:29] Speaker 01:
If I said that, I misspoke.

[00:22:30] Speaker 04:
No, that was what the district court was saying.

[00:22:34] Speaker 01:
I think the district court says it wasn't plainly incompetent.

[00:22:38] Speaker 01:
And at any rate, I think you have both the broadness of the terms of the warrant itself, his own testimony providing a reason for why he looked in the freezer.

[00:22:52] Speaker 03:
But Mr. Lough, here's what troubles me.

[00:22:54] Speaker 03:
I agree with you that there's a broad language of the warrant.

[00:22:58] Speaker 03:
and going in the freezer's fair game based on the language of the warrant.

[00:23:04] Speaker 03:
But once the experts say, we've got enough, we're done, what I'm troubled with is Officer Kyle then participating in what looks like a wide-ranging exploratory search that's the very type of search that the Fourth Amendment is intended to proclaim.

[00:23:21] Speaker 03:
The facts on the ground change.

[00:23:23] Speaker 04:
Of a home.

[00:23:24] Speaker 03:
Right.

[00:23:25] Speaker 03:
And what I'm trying to get at is the district telling us that under circumstances like that, once you have broad language of a search warrant, once you get in there and if circumstances change and all the evidence is obtained by looking in the first spot you go to, but yet the district now, the officers now have license to look throughout the rest of the house, every nook and cranny, even though they've got everything,

[00:23:56] Speaker 03:
that they need in the first instance?

[00:23:58] Speaker 03:
Is that the argument you're making?

[00:24:00] Speaker 01:
Well, certainly I understand the court's concern.

[00:24:04] Speaker 01:
But I think here, hours have passed since Mr. Thorpe was on notice that the police were going to follow up.

[00:24:15] Speaker 01:
He refused their request to explain or talk to him.

[00:24:19] Speaker 03:
I don't think you're answering my question.

[00:24:21] Speaker 03:
I want to know the district's view

[00:24:23] Speaker 03:
about what circumstances would change the nature of the search from the original search warrant, would limit it in some way.

[00:24:33] Speaker 01:
When would that happen?

[00:24:35] Speaker 01:
The first one is there was a long opportunity for him to secrete

[00:24:41] Speaker 03:
evidence of animal cruelty because of the time that passed.

[00:24:55] Speaker 03:
the officers would have an obligation to stop searching.

[00:24:59] Speaker 03:
You're giving me reasons for why under these circumstances they could go the full length of the wire.

[00:25:06] Speaker 03:
I'm trying to get some sense of the district sense of when does an officer say enough is enough and we don't have to look through every nook and cranny of the house even though the plain language

[00:25:18] Speaker 03:
of the search warrant would allow that?

[00:25:22] Speaker 03:
Are there any circumstances in which the facts on the ground change the nature of the search, permissible nature of the search?

[00:25:31] Speaker 01:
Yeah, I mean, certainly.

[00:25:33] Speaker 01:
And I think it would depend on the factual circumstances.

[00:25:36] Speaker 01:
And that's why I'm having trouble answering your question, since it's asking for limitations.

[00:25:41] Speaker 01:
And my understanding of this record supports, I think, what the

[00:25:51] Speaker 01:
the officers did here.

[00:25:54] Speaker 01:
The last thing they looked in was the freezer.

[00:25:57] Speaker 01:
They were exercising caution to ensure that there wasn't other evidence of animal cruelty.

[00:26:05] Speaker 04:
They understood that the... I mean, many of the cases arise in the context of the police have evidence of unlawful criminal activity by a defendant or a potential defendant.

[00:26:19] Speaker 04:
And they go in the home looking for a gun, or they go in the home looking for drugs.

[00:26:25] Speaker 04:
And the search extends.

[00:26:28] Speaker 04:
They find some drugs, but they think there may be drugs elsewhere in the house.

[00:26:32] Speaker 04:
They find one gun, but this person, given his past experience and record, there may be other guns in the house.

[00:26:43] Speaker 04:
People have talked about the man has multiple guns, that type of thing.

[00:26:47] Speaker 04:
This is a little different, isn't it?

[00:26:49] Speaker 04:
This is a man.

[00:26:50] Speaker 04:
The police tell him to take the dog inside the house.

[00:26:56] Speaker 04:
All right.

[00:26:58] Speaker 04:
He's out on the street with his dog.

[00:27:00] Speaker 04:
The dog, I gather, was in a car or SUV.

[00:27:06] Speaker 04:
And then he's on the sidewalk, and one of the officers sees him hitting the dog.

[00:27:12] Speaker 04:
The dog yelps.

[00:27:15] Speaker 04:
So they tell him to take the dog inside the house.

[00:27:20] Speaker 04:
And that's all they have about this man to support the affidavit.

[00:27:27] Speaker 01:
Well, if I could respond to that, Your Honor, because I think the evidence is quite stronger as to what the officer's observations were.

[00:27:38] Speaker 01:
Officer Anoja repeatedly testified that he observed Thorpe strike the dog and heard it crying.

[00:27:44] Speaker 01:
You could look at supplemental appendix pages 22 to 23, 25.

[00:27:47] Speaker 01:
I know, that's all I said.

[00:27:47] Speaker 04:
There's no evidence that anybody testified he threw the dog from a truck, for example.

[00:27:53] Speaker 04:
Well, I think there was testimony that he was... I couldn't find anything about throwing the dog from the truck.

[00:27:59] Speaker 01:
No.

[00:27:59] Speaker 04:
All I found was one officer said he saw Mr. Thorpe hit the dog and the dog yelped.

[00:28:10] Speaker 04:
All right.

[00:28:11] Speaker 01:
I think that what, with respect, Judge Rogers, Officer Anojo said, I saw him striking the dog who was crying at multiple strikes.

[00:28:23] Speaker 01:
So he's hit the dog several times.

[00:28:26] Speaker 01:
The dog is crying out in pain.

[00:28:29] Speaker 04:
Officer Russell... Ah, there's no statement about pain.

[00:28:31] Speaker 04:
That's what I'm trying to get at.

[00:28:33] Speaker 04:
The dog yelps.

[00:28:34] Speaker 04:
No, he's been... Any time a dog is hit, they're going to yelp, I suppose.

[00:28:38] Speaker 04:
But all I'm getting at is this case is a little different.

[00:28:43] Speaker 04:
The man is on the public street, and he's told to take the dog in his house.

[00:28:51] Speaker 04:
And then they get the warrant based on the Humane Society people's concern about there could be potential for cruelty to animals.

[00:29:01] Speaker 01:
And further risk of abuse for the animals, yes.

[00:29:05] Speaker 04:
And so they go in to find out

[00:29:08] Speaker 04:
if there is any such evidence.

[00:29:10] Speaker 04:
And they find none.

[00:29:12] Speaker 04:
Why isn't the search over?

[00:29:14] Speaker 01:
Well, I think the search is not over because it was reasonable for them to believe that there may be other evidence of animal cruelty beyond the dog.

[00:29:24] Speaker 04:
Even though, as the hypothetical is, the experts say, we're satisfied.

[00:29:30] Speaker 04:
There is no evidence of animal cruelty.

[00:29:34] Speaker 01:
Well, I mean, I think what they

[00:29:37] Speaker 01:
testified to was, Officer Russell was asked about the freezer, and she said it wasn't a priority of hers to search the freezer.

[00:29:45] Speaker 04:
Well, she also testified it's possible they had been played, quote, her words.

[00:29:50] Speaker 01:
Well, that was dirhamo, but yes, Your Honor, that's correct.

[00:29:55] Speaker 01:
But I think that

[00:29:59] Speaker 01:
I understand the court's concern, but I think at worst, the court correctly found that Lieutenant Kyle was entitled to qualified immunity, that his search of the freezer fell within the scope of the warrant, and that he did not violate clearly established law in searching the freezer.

[00:30:25] Speaker 04:
And we're not reviewing a motion to suppress.

[00:30:27] Speaker 01:
We are not reviewing the motion to distress.

[00:30:30] Speaker 01:
We're trying to determine whether or not the district court

[00:30:35] Speaker 01:
was incorrect in granting summary judgment, I think its decision was very thorough.

[00:30:43] Speaker 01:
It addressed numerous alternative theories, was very generous in its analysis of the complaint, and very thorough in its discussion of the

[00:31:02] Speaker 01:
record, which I think is not accurately represented in the appellant's brief.

[00:31:11] Speaker 01:
And for all those reasons, and I think that we've laid out in our brief, we would ask that the court affirm the district court's decision here.

[00:31:25] Speaker 01:
Unless the court has any other question, I will leave it at that.

[00:31:31] Speaker 04:
All right, Councilor Philis-Horne, you'll give me two minutes.

[00:31:34] Speaker 00:
I thank you.

[00:31:37] Speaker 00:
I'd like to take this time to refer to a deposition testimony that was referred to by Judge Rogers.

[00:31:45] Speaker 00:
I believe it hit it on the head.

[00:31:47] Speaker 00:
This is Anoja, Officer Anoja.

[00:31:50] Speaker 00:
This is at page 6 and 7 of page 57 of the deposition.

[00:31:57] Speaker 00:
Officer Anoja was asked,

[00:32:01] Speaker 00:
Which side do you think?

[00:32:02] Speaker 00:
Which side were you looking?

[00:32:04] Speaker 00:
Are you looking out your window out the wraps window when you look at the truck?

[00:32:09] Speaker 00:
I'm looking out wraps window.

[00:32:10] Speaker 00:
Okay.

[00:32:11] Speaker 00:
And it was park racing northbound.

[00:32:14] Speaker 00:
I opened the door and I'm running towards Mr. Thorpe and the dog.

[00:32:19] Speaker 00:
How come?

[00:32:20] Speaker 00:
Because I observed that the dog was maybe struck.

[00:32:25] Speaker 00:
I observed that the dog was maybe struck.

[00:32:29] Speaker 00:
Okay.

[00:32:30] Speaker 00:
where you observed a hand movement, you said, then you thought the dog was being struck.

[00:32:35] Speaker 00:
And there was an objection.

[00:32:38] Speaker 00:
And we moved forward.

[00:32:42] Speaker 00:
Okay, and had the dog, did he have the dog on his shoulder?

[00:32:45] Speaker 00:
He had the dog on his shoulder.

[00:32:47] Speaker 00:
I saw the dog's back, but it's a black dog.

[00:32:51] Speaker 00:
Hmm, maybe a little brown, or maybe it's neck.

[00:32:54] Speaker 00:
Okay, and I saw earth.

[00:32:57] Speaker 00:
Okay, dust on the back, on his back, okay.

[00:33:01] Speaker 00:
And I asked Mr. Thorpe, what are you doing?

[00:33:06] Speaker 00:
And he said, I'm taking the dog in the house safely without a leash.

[00:33:11] Speaker 00:
Okay.

[00:33:12] Speaker 00:
And I said, well, take the dog in the house and you come back out.

[00:33:18] Speaker 00:
What did you want to talk to him about?

[00:33:21] Speaker 00:
What I had just witnessed.

[00:33:24] Speaker 00:
And I moved forward.

[00:33:25] Speaker 00:
Oh, excuse me.

[00:33:26] Speaker 00:
Mr. Thorpe was telling me that he was taking the dog in safely without a leash.

[00:33:32] Speaker 04:
Anything else?

[00:33:35] Speaker 00:
He puts the dog in the house.

[00:33:38] Speaker 00:
You told him to put the dog in the house, right?

[00:33:40] Speaker 00:
Yes.

[00:33:41] Speaker 00:
And he said what you told him.

[00:33:43] Speaker 04:
I don't think it's helpful to read what's simply confirming.

[00:33:47] Speaker 00:
It is.

[00:33:47] Speaker 00:
Okay, I apologize, Your Honor.

[00:33:49] Speaker 00:
What I'm saying is as follows.

[00:33:51] Speaker 00:
There was more to this that was outside the scope of that search for an injured dog, well outside the scope of that search for an injured dog.

[00:34:00] Speaker 00:
In fact, how do you get a warrant for a dog you have told him to put in the house and that he did put in the house safely without a leash?

[00:34:10] Speaker 00:
How does a warrant then go from putting him in the house without a leash to banging down the door, going through the home, going into a freezer,

[00:34:22] Speaker 00:
Your Honor, I think that's going a bit far.

[00:34:24] Speaker 00:
I know it's a high burden, but I believe that is too far.

[00:34:28] Speaker 00:
There's more to this than meets the eye.

[00:34:31] Speaker 00:
For this reason, and the reason set forth in the brief, the appellate's brief, and for which other reasons the court may find to be good and sufficient call, this appeal should be remanded, those lawsuits reinstated, and the matter is set for a jury trial.

[00:34:45] Speaker 04:
Thank you.

[00:34:46] Speaker 04:
We'll take the case under advisement.