[00:00:01] Speaker 02:
Good morning, I'd like to reserve five minutes of the argument.

[00:00:10] Speaker 02:
Okay.

[00:00:10] Speaker 02:
Yes, Doug Phelps here.

[00:00:11] Speaker 02:
I represent Mr. Lobdell, the Lobdell's in this particular case.

[00:00:16] Speaker 02:
And this is a de novo review.

[00:00:19] Speaker 02:
And under Holloway versus Warren, the court must accept all factual allegations as true.

[00:00:28] Speaker 02:
In this case, we brought a Fourth Amendment search issue, a Fourteenth Amendment due process claim, and a 1983 claim regarding municipal supervision, state law claims, and common law negligence claims.

[00:00:46] Speaker 02:
The facts are particularly important in this case in that the police arrived after a call from Zlobdale

[00:00:56] Speaker 02:
And the police upon arrival had Mr. Lobdell exit the home.

[00:01:03] Speaker 02:
He did exit the home voluntarily, was handcuffed, placed in the back of the squad car under arrest, and given Miranda warnings and questioned.

[00:01:16] Speaker 02:
And he denied having any firearms.

[00:01:21] Speaker 02:
and told the law enforcement that he was not consenting to any search of the home.

[00:01:28] Speaker 02:
Ms.

[00:01:28] Speaker 02:
Lobdell was outside the home.

[00:01:32] Speaker 02:
The police came into the home, were in the home for 19 minutes and then determined that they needed to find some sort of a reason to continue to search the home after Mr. Lobdell told them they couldn't search the home.

[00:01:47] Speaker 02:
and they came up with an argument that there was exigent circumstances that would justify their search and they continued the search without any agreement by either party.

[00:02:02] Speaker 04:
Well, didn't they also, excuse me, didn't they also assert that Ms.

[00:02:10] Speaker 04:
Logdale had consented?

[00:02:13] Speaker 02:
They did, but the court, the court may

[00:02:15] Speaker 02:
In the decision of the court, the court said that Ms.

[00:02:21] Speaker 02:
Lobdell had not agreed to or consented to the search of the home.

[00:02:28] Speaker 02:
That was part of what the court found in the court's decision, that she had not consented to a search.

[00:02:37] Speaker 02:
And we cited to that in our brief.

[00:02:39] Speaker 02:
The lawyer court mentioned that Ms.

[00:02:41] Speaker 02:
Lobdell never gave explicit consent to search the home

[00:02:46] Speaker 02:
we cite ER 4 through 7-8 on that.

[00:02:50] Speaker 02:
So the court actually found that she never gave explicit consent to search the home.

[00:03:03] Speaker 04:
Well, did she give, excuse me, I'm sorry, forgive me, did she give implicit consent by leading them

[00:03:12] Speaker 04:
to the place where she believed the gun had come from?

[00:03:20] Speaker 02:
Well, at that point, law enforcement had already entered the home, having been advised by Mr. Blobdale that he did not consent to the search.

[00:03:31] Speaker 02:
So at that point, they're in the home without a search warrant.

[00:03:36] Speaker 02:
She doesn't say get out of here.

[00:03:39] Speaker 04:
She says come with me and I'll show you where I think the gun was in effect.

[00:03:45] Speaker 02:
Well effectively they asked where she believed the gun was and I guess once they're in the home then she does take them into a bedroom where she says she initially and I don't think she ever said she saw the gun.

[00:04:04] Speaker 02:
She came into the room

[00:04:06] Speaker 02:
saw a gun case there and Mr. Lobdell had his hands behind his back.

[00:04:12] Speaker 02:
I think it was her, I guess, opinion that he may have had a gun behind his back at that particular point.

[00:04:22] Speaker 05:
Well, when she makes her call, her phone call, she says her husband is intoxicating and carrying a firearm.

[00:04:30] Speaker 02:
That's what the 911 alleged that she had said.

[00:04:36] Speaker 02:
But when the police arrived, they removed both Mr. Lobdale and Mrs. Lobdale, and then they re-entered the home after he's handcuffed and in the back of the squad car.

[00:04:52] Speaker 02:
and has told him that he's not agreeing to the search of the home.

[00:04:55] Speaker 05:
Would she assume for a moment, what's not here in the record, but assume for a moment she gave explicit permission to come into the house and search for the firearm.

[00:05:06] Speaker 05:
Did she have authority to give that permission?

[00:05:09] Speaker 02:
No.

[00:05:10] Speaker 05:
Why not?

[00:05:10] Speaker 02:
Because the husband had already told law enforcement they could not search the home.

[00:05:17] Speaker 05:
But she's also, I assume, a resident of the home?

[00:05:22] Speaker 02:
Yes.

[00:05:23] Speaker 02:
That's right.

[00:05:24] Speaker 05:
So she can't override the husband and give permission?

[00:05:27] Speaker 02:
I don't believe so.

[00:05:28] Speaker 05:
Why not?

[00:05:30] Speaker 02:
Well, case law, when a person is physically present and that in having a refusal of consent to police the surge,

[00:05:42] Speaker 02:
Any other consent is irrelevant.

[00:05:46] Speaker 03:
Can you point me to the record where it shows that Mr. Lobdell expressly refused consent?

[00:05:54] Speaker 03:
I have your briefing.

[00:05:57] Speaker 03:
My understanding of the record is that he was just silent.

[00:06:01] Speaker 03:
The officers didn't ask him for his consent.

[00:06:04] Speaker 03:
He didn't actively

[00:06:08] Speaker 03:
affirmatively say, I don't consent.

[00:06:10] Speaker 03:
He was just silent.

[00:06:12] Speaker 02:
So if I'm wrong, can you please point me to the record that shows he- I think unless he gives them consent, there is no consent.

[00:06:24] Speaker 02:
If he does not give them consent, then there is no consent.

[00:06:29] Speaker 02:
And they can't take it that merely his silence

[00:06:35] Speaker 03:
is some sort of agreement to search, but my understanding- But you're clarifying that he just didn't expressly give consent, right?

[00:06:45] Speaker 03:
He didn't affirmatively say, I object.

[00:06:48] Speaker 03:
Is that correct?

[00:06:48] Speaker 03:
Or you do not have my consent?

[00:06:50] Speaker 03:
There was never a discussion between Mr. Lobdell and the police.

[00:06:54] Speaker 03:
Is that correct?

[00:06:55] Speaker 02:
My understanding was the police asked me when he told them no.

[00:06:59] Speaker 03:
OK.

[00:06:59] Speaker 03:
Can you point me to the record that shows that?

[00:07:05] Speaker 02:
We cited to that in our briefing, and it was in ER 4 through 7A.

[00:07:10] Speaker 03:
Sorry, can you repeat that?

[00:07:19] Speaker 02:
The lower court made the conclusion that Ms.

[00:07:21] Speaker 02:
Lobdell's consent negated Mr. Lobdell's refusal in the decision of the lower court, which

[00:07:36] Speaker 02:
would appear to me to be an acknowledgement that Mr. Lobdell refused to allow entry into the home.

[00:07:47] Speaker 04:
Well, going back to Ms.

[00:07:49] Speaker 04:
Lobdell,

[00:07:52] Speaker 04:
The record says that after she explained to the officers how she had been mistreated by Mr. Lobdell, she was asked if she knew where the firearm was, because she explained to the officers already about the firearm.

[00:08:17] Speaker 04:
And then, quote, Ms.

[00:08:21] Speaker 04:
Lobdell escorted the police officer to their bedroom and said that the last place that she saw the gun case was on top of a storage tote near the bed.

[00:08:34] Speaker 04:
Why isn't that consent?

[00:08:35] Speaker 04:
She's leading the police officer into her home and pointing him to the right place.

[00:08:46] Speaker 02:
I think that was in response to the police who were already in the home at that point, asking her to point out what she believed occurred.

[00:08:59] Speaker 02:
And it was not in response to any particular requests for a search.

[00:09:07] Speaker 02:
And that question was not put to Ms.

[00:09:11] Speaker 02:
Lobdell.

[00:09:12] Speaker 02:
But even if it had been, the case law indicates that

[00:09:17] Speaker 02:
once Mr. Lobdale says no, then what they should have gone and done is gotten a warrant.

[00:09:24] Speaker 02:
And we would point out that a warrantless search is presumptively a violation of the Fourth Amendment.

[00:09:37] Speaker 04:
So they first enter to do a protective sweep.

[00:09:41] Speaker 04:
That's not where they

[00:09:45] Speaker 04:
search for the gun in the sense we're now talking about it's not where they obtain the gun.

[00:09:52] Speaker 04:
They do a protective sweep, then they talk to her, they ask to speak to her, they talk to her at length,

[00:10:00] Speaker 04:
She explains all about the firearm, and then they say, where was the firearm?

[00:10:07] Speaker 04:
And she doesn't just verbally respond.

[00:10:10] Speaker 04:
She says, come with me, in effect, and takes them to the place where they are able to recover the firearm.

[00:10:16] Speaker 04:
Why isn't that total consent?

[00:10:18] Speaker 02:
Well, it wasn't a protective sweep, because the police surrounded the home upon arrival, and they demanded that Mr. Lobdell come out.

[00:10:27] Speaker 02:
He came out, surrendered.

[00:10:30] Speaker 02:
They handcuffed him and placed him in the back of the squad car.

[00:10:34] Speaker 02:
And after they handcuffed him and placed him in the back of the squad car, they read him Miranda warnings.

[00:10:41] Speaker 02:
And then they questioned him about searching the house.

[00:10:44] Speaker 02:
He told them no.

[00:10:46] Speaker 02:
Mr. Lobdale was outside of the home before the police ever entered it.

[00:10:51] Speaker 02:
The perpetrator, or the alleged perpetrator at that point, was in custody, and there was nothing

[00:11:00] Speaker 02:
to enter the home for in terms of a protective suite.

[00:11:06] Speaker 02:
The perpetrator was already in custody.

[00:11:09] Speaker 02:
So there was no basis for a protective sweep at that point.

[00:11:15] Speaker 03:
Council, do you want to reserve the rest of your time?

[00:11:18] Speaker 02:
Yes, that's fine.

[00:11:19] Speaker 02:
Thank you.

[00:11:28] Speaker 00:
Good morning, Your Honors.

[00:11:29] Speaker 03:
Okay, good morning.

[00:11:33] Speaker 00:
May it please the court.

[00:11:34] Speaker 00:
My name is Rekia Adams on behalf of the City of Airway Heights and the Airway Heights individuals.

[00:11:40] Speaker 00:
I'm splitting my time today with the County of Spokane, so after 10 minutes I'll be stepping aside to give Miss Yeakley the remainder of my time.

[00:11:47] Speaker 00:
Thank you.

[00:11:50] Speaker 00:
Your honors, in order for the appellants to get the relief they seek, this court would have to reverse the lower court and agree with the appellants that Danielle Lobdell's consent to search for a loaded gun was invalid.

[00:12:01] Speaker 00:
And two, a loaded weapon missing in a home with two young children is not dangerous.

[00:12:06] Speaker 04:
The record shows the opposite of these contentions and the law upholds the warrantless search that took place here This court should affirm the lower courts really say the protective sweep was justified because of the presence of the children and that they didn't yet have the actual loaded gun and so there was a implicit danger right then right there or the protective sweep for the police to secure the premises and

[00:12:31] Speaker 00:
directly after a domestic violence call, yes.

[00:12:34] Speaker 00:
And then there's the separate search that happened after the protective sweep.

[00:12:39] Speaker 00:
And that search is also justified even without the warrant, given that Mrs. Lobdell consented to the search, impliedly, and that exigent circumstances or the emergency exception would allow for the police officers to secure a loaded gun in a home with two young children.

[00:12:59] Speaker 05:
So the protective sweep is justified, even though everyone is outside the home.

[00:13:05] Speaker 05:
And it's justified because the police think, well, after we leave, he's going to go back in, have access to the gun, and the danger will then be clear and present.

[00:13:13] Speaker 05:
Is that the argument?

[00:13:14] Speaker 00:
That's part of the argument that Mr. Lobdell could bail out, come home, find the weapon that he had hidden and presumably use it.

[00:13:25] Speaker 00:
Also that two young children, I believe they were five and seven years old, could come across the loaded weapon in the time that the police arrived to detain Mr. Lobdell.

[00:13:36] Speaker 00:
So that protective sweep was for the protection of the officers at the time.

[00:13:42] Speaker 03:
So focusing on the protective sweep for the moment, the focus there is on the possibility that the young children, even after Mr. Lubdale was secured, the possibility that young children would find the gun that had not yet been found.

[00:13:59] Speaker 03:
Is that correct?

[00:14:00] Speaker 00:
Yes, Your Honor.

[00:14:01] Speaker 04:
Why is that protection of the police?

[00:14:05] Speaker 04:
It's protection of the children.

[00:14:06] Speaker 00:
And it's also for the protection of the police if the children got a hold of the weapon and accidentally aimed it at the police, Your Honor.

[00:14:14] Speaker 00:
This is a dangerous weapon.

[00:14:16] Speaker 00:
It's loaded and... That seems pretty far-fetched.

[00:14:19] Speaker 05:
Everybody's outside.

[00:14:20] Speaker 05:
The children are outside.

[00:14:22] Speaker 05:
For your hypothetical to have any real bite, you have to have the children back in the house.

[00:14:27] Speaker 05:
You have to have the police in the house.

[00:14:29] Speaker 05:
You have to have these little children finding a gun and shooting the police in the house.

[00:14:33] Speaker 05:
That's a stretch.

[00:14:37] Speaker 00:
I understand your concern, Your Honor, but the children were alone in the home at the time, Mrs. Lobdell.

[00:14:42] Speaker 05:
But at the time they go in, the children are not in the house.

[00:14:45] Speaker 00:
At the time that the police enter to do the protective sweep, the children are alone in the home.

[00:14:49] Speaker 00:
It's Mrs. Lobdell that is outside waiting for the police, and it's Mr. Lobdell that's then being detained and then placed.

[00:14:57] Speaker 05:
You see, the children come out later.

[00:14:58] Speaker 05:
I did not have the timeline.

[00:15:02] Speaker 03:
That's also my understanding of the record, but apart from that, I have a question about whether that portion of the search, the protective sweep, is even being challenged on appeal.

[00:15:14] Speaker 00:
That was going to be my next point, Your Honor, that I don't believe the appellants are challenging the protective sweep.

[00:15:20] Speaker 00:
It was pursuant to the emergency that was going on in the domestic violence situation.

[00:15:25] Speaker 00:
And Appellant's main argument is that the warrantless search for the weapon was unreasonable and in violation of the Fourth Amendment.

[00:15:34] Speaker 00:
And there's two reasons that it was not.

[00:15:36] Speaker 00:
The first that you began discussing this morning is that Mrs. Lobdell impliedly consented to the search.

[00:15:44] Speaker 00:
And I'd like to correct the record here that Appellant's pointed out.

[00:15:48] Speaker 00:
They had said that

[00:15:51] Speaker 00:
Danielle Lobdell had not given any consent in response to a question about the search, but that is not true.

[00:15:59] Speaker 00:
The body cam video shows officer Carbaugh asking Danielle Lobdell, can you show me where the box is referring to the gun case?

[00:16:08] Speaker 00:
and Danielle Lobdell gestures forward to have the officers follow her into the bedroom.

[00:16:14] Speaker 00:
And that is a direct question.

[00:16:16] Speaker 00:
Can you show me where that gun case is and where you last saw the gun?

[00:16:20] Speaker 00:
And it's not just that Mrs. Lobdell

[00:16:24] Speaker 00:
didn't see the gun.

[00:16:26] Speaker 00:
She had heard the gun being loaded, but the young son had seen his father walking around with the gun behind his back and the young daughter had also heard the gun being loaded as well.

[00:16:38] Speaker 00:
So that's three reports of at least seeing or hearing the gun in the home.

[00:16:45] Speaker 00:
And Mrs. Lobdell does have the authority to consent to a search within her home.

[00:16:51] Speaker 00:
She lives in that home.

[00:16:52] Speaker 00:
She has the authority to agree to a search within that home.

[00:16:57] Speaker 00:
This is from Fernandez v. California.

[00:17:00] Speaker 00:
One occupant may consent even if the other objects.

[00:17:05] Speaker 00:
Your honors, I believe that you correctly pointed out that Mr. Lobdell never expressly objected to the search that was going on.

[00:17:17] Speaker 00:
He was detained in the cop car, and at no point does he say, you shouldn't be searching my home or object to it.

[00:17:26] Speaker 04:
And in Georgia... And as you just pointed out, even if he had,

[00:17:33] Speaker 04:
she had an independent right to invite them in.

[00:17:38] Speaker 04:
It would be absurd if the victim of a crime, as she then was asserting she was, who had total residency in the area where the crime was being committed

[00:17:52] Speaker 04:
when the police came and what she wants to show them where the crime was committed and how the gun was there and so forth and says come with me and hear you and the assaulter says oh no i'm also resident and i assert you have no right to do that that would be a very strange reading of the fourth amendment that she didn't have the right to override that that's correct your honor that would

[00:18:18] Speaker 00:
go against her own agency to consent to something happening in her own home.

[00:18:23] Speaker 00:
And also, the law says that if there is an objector to a search, that objector must be physically present within the home to state that objection.

[00:18:31] Speaker 00:
And here, Mr. Lobdell was neither physically present.

[00:18:34] Speaker 00:
He was off-site from the home, detained in a cop car, and he did not expressly object or impliedly object.

[00:18:45] Speaker 00:
And here Mrs Lobdell did have the authority to consent to the search within her home.

[00:18:49] Speaker 00:
She did.

[00:18:51] Speaker 00:
And just quickly on the second point, Your Honor, that even if you find that Mrs. Lobdell did not consent to the search in the home, there are emergency circumstances here that do justify the warrantless search.

[00:19:04] Speaker 00:
And that is that there was a, as we discussed just a moment ago, there was a loaded weapon in the home with two young children.

[00:19:11] Speaker 00:
And the basis for that search then is securing the weapon in order to protect the children from finding it later.

[00:19:21] Speaker 00:
Court has no further questions.

[00:19:23] Speaker 00:
I would then yield my remaining time to Ms.

[00:19:28] Speaker 00:
Yeakley.

[00:19:29] Speaker 00:
Thank you.

[00:19:30] Speaker 03:
Thank you.

[00:19:34] Speaker 03:
And you might want to wait.

[00:19:35] Speaker 01:
Good morning, Your Honors.

[00:19:36] Speaker 03:
Just give us a few seconds.

[00:19:38] Speaker 03:
I'll let you know when we're all set up.

[00:19:47] Speaker 03:
Okay, I think we're ready.

[00:19:49] Speaker 01:
Thank you, Your Honors.

[00:19:50] Speaker 01:
May I please the Court?

[00:19:51] Speaker 01:
Ms.

[00:19:52] Speaker 01:
Adams made a very clear argument, which I appreciate, because really the parties have the same argument.

[00:19:58] Speaker 01:
So unless the Court has any specific questions for me, what I would like to do is go back and add some additional information to questions that the judges, the panel has already asked.

[00:20:13] Speaker 01:
With respect to Judge Fletcher, he asked the plaintiff's attorney

[00:20:18] Speaker 01:
whether or not there was explicit permission to come in and search and what was his authority for saying that that was necessary.

[00:20:26] Speaker 01:
Obviously, that's a summary.

[00:20:28] Speaker 01:
I may have gotten it slightly incorrect.

[00:20:31] Speaker 01:
That is Fernandez.

[00:20:34] Speaker 01:
And that case specifically says that if a person is detained or under arrest, then it's the same as being absent.

[00:20:45] Speaker 01:
The other case that addresses the issue of implicit versus

[00:20:54] Speaker 01:
explicit is Escobar, and that's actually Ninth Circuit Case 309 Fed Sub 778, where it states that consent can be expressed or implied, but it must be unequivocal and specific.

[00:21:10] Speaker 01:
And as has already been described by Ms.

[00:21:14] Speaker 01:
Adams, the

[00:21:16] Speaker 01:
The video is very clear that Mrs. Lobdell led them to the bedroom and said, yes, they actually asked if they could look in the box.

[00:21:26] Speaker 01:
They dumped an entire storage box upside down on the bed.

[00:21:31] Speaker 01:
And she continued to allow them to do so.

[00:21:35] Speaker 01:
So I agree with the argument that's been set forward.

[00:21:41] Speaker 01:
by Ms.

[00:21:42] Speaker 01:
Adams that implicit consent was clearly given and I do believe that it meets the unequivocal and specific standard of the Supreme Court and of this court as well.

[00:21:53] Speaker 01:
The second question was by Judge Song and that is with respect to where in the record does it say there was no consent given.

[00:22:04] Speaker 01:
I struggled to find that as well.

[00:22:08] Speaker 01:
My apologies to plaintiff's counsel in this particular case.

[00:22:11] Speaker 01:
I'm not exactly sure what ER-4 through 7-8 is, but I will submit to the record that nowhere in the complaint or the video camera

[00:22:22] Speaker 01:
Is there any reference to Mr. Lobdell expressly saying you don't have authority to search?

[00:22:29] Speaker 01:
Again, parroting to some extent what Ms.

[00:22:33] Speaker 01:
Adams said, the only discussion was about whether or not there was a gun.

[00:22:41] Speaker 01:
Mr. Lobdell continually said there was not.

[00:22:45] Speaker 01:
Then we get back to even the implicit consent, or I think the argument can be made that there is actually implicit consent given by Mr. Lobdell as well because the officer went so far as to say, look, could you just tell me where the gun is?

[00:23:01] Speaker 01:
I don't really want to have to tear your house apart.

[00:23:03] Speaker 01:
We just want to know where it is because we don't want to have guns in the house with the kids.

[00:23:07] Speaker 01:
So with respect to those two questions that were asked, I wanted to provide that supplemental information.

[00:23:18] Speaker 01:
Does the court have any specific questions for me?

[00:23:25] Speaker 01:
No.

[00:23:25] Speaker 01:
OK.

[00:23:26] Speaker 01:
Thank you then, Your Honors.

[00:23:27] Speaker 01:
I appreciate your time.

[00:23:29] Speaker 03:
Thank you.

[00:23:47] Speaker 03:
when you're ready, Council.

[00:23:51] Speaker 03:
I think you have three minutes and 56 seconds for your rebuttal.

[00:23:56] Speaker 02:
Well, I would like to point out that the officers repeatedly were discussing whether or not there were any exceptions to the warrant requirement.

[00:24:05] Speaker 02:
If they had consent from Mr. Lobdell or from anyone else, why were they having discussions about whether or not there was an exception to the warrant

[00:24:16] Speaker 02:
requirement that would allow them to go in and search the house.

[00:24:21] Speaker 02:
And that these discussions were 19 minutes into their time in the house.

[00:24:30] Speaker 02:
And the status of the case is that warrantless searches are presumed to be unreasonable and the

[00:24:47] Speaker 02:
standard here is that the facts are to be assumed to be the as stated by the plaintiff in the complaint and the court's findings that Ms.

[00:25:00] Speaker 02:
Laudale did not consent in the court below.

[00:25:05] Speaker 02:
are something that should be considered.

[00:25:09] Speaker 04:
Excuse me, did you in your briefing state an objection to the protective sweep?

[00:25:21] Speaker 02:
I believe that we stated it in our argument in that we indicated that there was not any agreement to the surge and that Ms.

[00:25:31] Speaker 02:
Lobdell never consented to the search

[00:25:35] Speaker 02:
The protective sweep cannot be a protective sweep because they surrounded the house.

[00:25:43] Speaker 02:
They ordered Mr. Laudale out and he came out and surrendered and was handcuffed in the squad car at the time that the search was conducted.

[00:25:54] Speaker 02:
There was no one to be protected to be doing a protective sweep for.

[00:26:00] Speaker 02:
He's in custody.

[00:26:01] Speaker 02:
He's handcuffed.

[00:26:03] Speaker 02:
He's in the back of a squad car.

[00:26:06] Speaker 02:
Mirandize and not free the lead.

[00:26:09] Speaker 04:
So I'm not sure what they were doing a protective sweep for I'm just I'm looking I'm looking at your brief and I don't see Anything about the protective sweeping objective being a ground on Appeal, but maybe if you want to point me to where in your brief you say that I'll take a look I

[00:26:36] Speaker 02:
Well, I'll just point out the factually.

[00:26:39] Speaker 04:
No, I really would like an answer to my question.

[00:26:45] Speaker 04:
Where in your brief, if anywhere, do you state as a ground of appeal your objection to the protective suite?

[00:26:58] Speaker 02:
Well, we argue that there was no community caretaking function.

[00:27:04] Speaker 02:
and that this was actually a criminal investigation because they had placed Mr. Lobdale in handcuffs and advised him as Miranda Rice when they were interrogating him.

[00:27:18] Speaker 02:
That's at page 12 of our brief.

[00:27:21] Speaker 02:
And that the court, you know, is considered the totality of the circumstances and whether there was an immediate need to protect others or themselves

[00:27:32] Speaker 02:
from serious harm and the search and the scope and the manner must be reasonable.

[00:27:38] Speaker 02:
And we cite US versus Snipe.

[00:27:41] Speaker 02:
There wasn't a protective sweep here.

[00:27:44] Speaker 02:
He's in custody and in the back of the squad car when they're doing what they claim is a protective sweep.

[00:27:52] Speaker 02:
The US versus Snipe would say that there has to be a reasonable basis

[00:28:00] Speaker 02:
to protect others or themselves from serious harm.

[00:28:05] Speaker 02:
And we argued that at page 12 of our brief.

[00:28:08] Speaker 03:
Okay, thank you, Council.

[00:28:11] Speaker 04:
Forgive me.

[00:28:11] Speaker 04:
I had one other question.

[00:28:12] Speaker 04:
No problem.

[00:28:14] Speaker 04:
Give me the pages you say show that Mr. Lobdell objected.

[00:28:22] Speaker 02:
We cited ER 4 through 78 in our brief.

[00:28:27] Speaker 04:
I'm sorry.

[00:28:29] Speaker 02:
Oh, I'm sorry.

[00:28:30] Speaker 02:
We cited 4 through 78.

[00:28:32] Speaker 04:
What page of the record?

[00:28:35] Speaker 02:
We cited to the record in 4 through 78 in our brief.

[00:28:42] Speaker 04:
4 through 78?

[00:28:43] Speaker 02:
4 through 78.

[00:28:47] Speaker 04:
So you're saying it's somewhere in that 74 pages?

[00:28:51] Speaker 02:
Yes.

[00:28:52] Speaker 04:
Where?

[00:28:53] Speaker 02:
And additionally there is body cam of

[00:28:57] Speaker 04:
Now, I'm asking about what you just asserted in your argument that you say the record shows that Mr. Lobdell objected to the search.

[00:29:13] Speaker 04:
And you're citing for that 74 pages.

[00:29:17] Speaker 04:
I have them now right in front of me.

[00:29:19] Speaker 04:
Show me where in those 74 pages that is stated.

[00:29:24] Speaker 02:
I don't have it in front of me right now.

[00:29:27] Speaker 02:
Never mind.

[00:29:29] Speaker 02:
Never mind.

[00:29:30] Speaker 02:
I apologize.

[00:29:33] Speaker 02:
Any further questions?

[00:29:35] Speaker 03:
Okay.

[00:29:36] Speaker 03:
Thank you, Council.

[00:29:37] Speaker 03:
This matter is submitted.

[00:29:39] Speaker 02:
Thank you.