[00:00:01] Speaker 04:
Good morning, ladies and gentlemen.

[00:00:02] Speaker 04:
Welcome to the Ninth Circuit.

[00:00:04] Speaker 04:
Before we handle other matters, the Court wishes to make a special acknowledgement here.

[00:00:11] Speaker 04:
We understand that the parents of Jonathan Glass, who's one of the counsel here today, are here celebrating their 50th wedding anniversary.

[00:00:20] Speaker 04:
The Court wishes to acknowledge that and to congratulate you for that.

[00:00:25] Speaker 04:
We are, after all, a human institution, and to have 50 years of a successful marriage is quite an accomplishment, so we congratulate you.

[00:00:34] Speaker 04:
Before we have the argued case today, we need to submit a number of cases.

[00:00:39] Speaker 04:
They are Arguido versus Garland, Chen versus Garland, an additional Chen versus Garland, Wee versus Garland, an additional Chen versus Garland,

[00:00:54] Speaker 04:
Ameskua versus Garland and Fatai versus Ramos.

[00:01:02] Speaker 04:
Those cases are all now submitted and we'll now hear argument in the sole argued case of the day.

[00:01:07] Speaker 04:
I believe Mr. Horry, you're representing the appellants in Yarofalchow.

[00:01:14] Speaker 04:
Is that the way you say it?

[00:01:17] Speaker 03:
Yarofalchow, Your Honor.

[00:01:18] Speaker 04:
Okay, very good.

[00:01:19] Speaker 04:
I believe you're first.

[00:01:20] Speaker 04:
Please proceed.

[00:01:22] Speaker 03:
Good morning, Your Honors.

[00:01:23] Speaker 03:
May it please the Court.

[00:01:25] Speaker 03:
My name is Joseph Hoare, representing Appellant Nicholas Yarofalchu.

[00:01:30] Speaker 03:
Your Honors, Nick Yarofalchu was seized.

[00:01:33] Speaker 03:
He was seized first by show of authority, and if that wasn't a seizure, he was seized shortly after by physical force.

[00:01:39] Speaker 04:
Counsel, let me ask you this.

[00:01:41] Speaker 04:
I thought you dropped your seizure claim.

[00:01:46] Speaker 04:
Do you still have a seizure claim?

[00:01:48] Speaker 03:
That is the claim, yes.

[00:01:50] Speaker 04:
Okay, so you dropped the search claim, not the seizure claim?

[00:01:56] Speaker 03:
Well, we really never had a search claim.

[00:01:58] Speaker 03:
It was a seizure claim all along.

[00:01:59] Speaker 04:
Okay, very well.

[00:02:01] Speaker 04:
How can you have a seizure?

[00:02:02] Speaker 04:
Your client went back into the house, came out with a camera, and started taking pictures.

[00:02:12] Speaker 04:
How was he then seized?

[00:02:16] Speaker 03:
Well, yeah, the district court also said that they found that since he could move around going in and out of the house that he wasn't seized.

[00:02:23] Speaker 03:
But a seizure occurs, a seizure by show of authority occurs when a reasonable person would feel that he's not free to terminate encounter with police.

[00:02:32] Speaker 03:
Let's put ourselves in his shoes.

[00:02:35] Speaker 03:
Nick Yarofalchuk tried to terminate his encounter with the police.

[00:02:38] Speaker 03:
He told Sergeant Cabrera in no uncertain terms, get the F out of my house, off my property.

[00:02:44] Speaker 03:
And that's the vernacular, Your Honors, for I want to terminate this encounter.

[00:02:49] Speaker 03:
But what was Cabrera's response to this attempt to terminate the encounter?

[00:02:54] Speaker 03:
He parked at the head of the driveway, came back onto the property, started directing people around.

[00:02:59] Speaker 03:
The guests were going to leave.

[00:03:01] Speaker 03:
Sergeant Cabrera stopped them.

[00:03:03] Speaker 03:
Officer Fidiel was already gone.

[00:03:05] Speaker 03:
Cabrera called him back.

[00:03:08] Speaker 03:
Nicky Orofouchi tried to chase Cabrera out, continued to try that, but he stayed.

[00:03:12] Speaker 03:
So everything about his demeanor, his words, his actions said you are not free to terminate this encounter.

[00:03:19] Speaker 03:
This encounter is going to be terminated when, how, and if I say it is.

[00:03:24] Speaker 04:
Counsel, I think one of your principal arguments is that this occurred on the curtilage of your client's property.

[00:03:31] Speaker 04:
That's right.

[00:03:31] Speaker 04:
You're not applying the done four-factor test, I gather, in this case.

[00:03:35] Speaker 04:
Is that correct?

[00:03:37] Speaker 03:
No, we are applying that, and we, I think all parties were in agreement as to where the curtilage was.

[00:03:45] Speaker 04:
And what is that for ported agreement?

[00:03:47] Speaker 04:
It's right at the boundary line of the property, over the property, where is it?

[00:03:52] Speaker 03:
It's at the hedges.

[00:03:54] Speaker 04:
At the hedges, which is the border line of the property, right?

[00:03:57] Speaker 03:
Now, doesn't that... Well, I think the property goes a little bit out, but yeah.

[00:04:00] Speaker 04:
I can say, doesn't that conflict with Dunn, with Jardines, the other cases that define what we traditionally mean by curtilage?

[00:04:13] Speaker 03:
Your Honor, there wasn't any dispute about that.

[00:04:15] Speaker 03:
And the parties were in agreement, the district court was in agreement, that that was the curtilage.

[00:04:19] Speaker 04:
Excuse me, are you saying that the government is claiming that they arrested your client on his curtilage?

[00:04:27] Speaker 04:
That's not true.

[00:04:29] Speaker 03:
No, they're not saying they didn't arrest him.

[00:04:31] Speaker 03:
They're not saying he wasn't in the curtilage.

[00:04:33] Speaker 03:
As to the arrest by show of authority, on that one

[00:04:41] Speaker 03:
The issue is not was he in the curtilage.

[00:04:43] Speaker 03:
Everyone agrees that being back in the house or at the building.

[00:04:47] Speaker 04:
It is an issue because we have a whole different standard of whether the, as you call it, a seizure occurred on a curtilage.

[00:04:55] Speaker 04:
It's very different outside the curtilage and in.

[00:04:57] Speaker 03:
That's right.

[00:04:58] Speaker 04:
They did not agree that that occurred in the curtilage, did they?

[00:05:02] Speaker 03:
They didn't agree he was arrested.

[00:05:05] Speaker 04:
So when he was handcuffed, they didn't agree he was arrested?

[00:05:08] Speaker 03:
No, the handcuff was the second arrest.

[00:05:10] Speaker 03:
That was the second seizure, the seizure of a physical force.

[00:05:13] Speaker 03:
That one they don't say was in the cartilage.

[00:05:15] Speaker 01:
That one they say was... Why isn't there a reasonable mistake effect here?

[00:05:23] Speaker 01:
I mean, the two officers thought that Mr. Yarofalchuk was not on his property, and either way, it sounds like the arrest happened a few inches from the property line.

[00:05:33] Speaker 03:
Well, it happened

[00:05:36] Speaker 03:
Right out between the hedges, which marks the curtilage.

[00:05:40] Speaker 03:
And there were, let me distinguish, I want to distinguish between the two seizures.

[00:05:49] Speaker 03:
The first one was he, and it's the location of the seizure is marked by the location of the arrested person.

[00:05:56] Speaker 03:
He was back by the house, back at the house or in the driveway or in the pavilion.

[00:06:03] Speaker 03:
at the time of the seizure by show of authority.

[00:06:06] Speaker 03:
So there's no location issue there.

[00:06:08] Speaker 03:
It's just, was there an arrest?

[00:06:10] Speaker 03:
The second one, the hands up.

[00:06:12] Speaker 04:
It sounds like you're saying that a show of authority, in your case, to be a police officer carrying a firearm, whether or not brandished, is a seizure.

[00:06:21] Speaker 04:
Is that your position?

[00:06:24] Speaker 03:
No, no, that's not our position.

[00:06:25] Speaker 03:
We wouldn't take it that far at all.

[00:06:27] Speaker 03:
But the seizure occurred through the conduct of the officer as reasonably understood by a reasonable person in Mr. Yarofalchuk's situation.

[00:06:41] Speaker 03:
The second seizure, the handcuffing was clearly a seizure.

[00:06:43] Speaker 03:
The question was where did it occur?

[00:06:45] Speaker 03:
and it occurred in the doorway, it occurred in the doorway, the entrance to the curtilage.

[00:06:52] Speaker 05:
What case is it, do you use that analysis in front of the curtilage?

[00:06:57] Speaker 05:
It doesn't really make, I don't find that argument at all persuasive.

[00:07:01] Speaker 05:
Your better argument is the show of authority, which was within the hedges, took place around his house.

[00:07:10] Speaker 03:
Right, it did, yes, we agree, that is our position.

[00:07:13] Speaker 05:
That's the better argument.

[00:07:15] Speaker 05:
The second argument on the physical seizure, I don't find that at all persuasive.

[00:07:21] Speaker 03:
Well, the physical seizure.

[00:07:23] Speaker 05:
But the other argument, it does take place within, the other argument centers the seizure within the curtilage.

[00:07:30] Speaker 03:
Right.

[00:07:30] Speaker 05:
The show of authority.

[00:07:32] Speaker 05:
And what buttresses that is he asked Cabrera to leave, and Cabrera did not leave.

[00:07:38] Speaker 05:
He just drove his vehicle off the property and parked it outside the hedges.

[00:07:44] Speaker 05:
That's right.

[00:07:46] Speaker 05:
So what is a homeowner supposed to do when he wants to terminate an encounter with the police that initially started as, quote unquote, a knock and talk?

[00:07:59] Speaker 03:
I think the homeowner is supposed to do just what Mr. Yarafouchi did, cut off the encounter.

[00:08:04] Speaker 03:
I said, get out of here.

[00:08:06] Speaker 03:
I don't want to talk to you.

[00:08:09] Speaker 01:
Just to narrow the issues.

[00:08:11] Speaker 03:
That should be sufficient to terminate the encounter.

[00:08:14] Speaker 01:
Just to narrow the issues, do you concede that it was probable cause for the handcuffing and arrest?

[00:08:20] Speaker 01:
You don't seem to challenge that in your opening brief.

[00:08:22] Speaker 03:
No, we don't.

[00:08:23] Speaker 03:
No, we don't.

[00:08:24] Speaker 03:
We don't.

[00:08:24] Speaker 03:
You don't challenge that?

[00:08:25] Speaker 03:
No, yeah.

[00:08:27] Speaker 03:
We think the police officers had information.

[00:08:31] Speaker 03:
We don't necessarily agree with all that information, but based on what information they had, they had probable cause, and we don't argue that issue.

[00:08:41] Speaker 04:
So what's your best argument that the curtilage, that everything occurred inside the curtilage?

[00:08:47] Speaker 03:
Yes, everything did occur inside the curtilage.

[00:08:50] Speaker 04:
And if it didn't, if it didn't, do you lose?

[00:08:56] Speaker 03:
If none of it, if neither the seizure by show of authority or the seizure by physical force occurred inside the curtilage, then ... No, if it occurred outside the curtilage?

[00:09:07] Speaker 03:
Yeah, we lose.

[00:09:08] Speaker 03:
Yeah, we lose.

[00:09:10] Speaker 03:
We lose.

[00:09:13] Speaker 03:
You want to save any of your time?

[00:09:15] Speaker 04:
It's up to you, but you've got two minutes and seven seconds left.

[00:09:19] Speaker 04:
It's up to you.

[00:09:19] Speaker 03:
I'll just say, with respect to the handcuffing and the seizure out by the cartilage, or out by the, I'm sorry, out by the, at the entrance to the cartilage, the court said there that it's more like the front porch, but yeah, it is more like the front porch,

[00:09:41] Speaker 03:
Jardine found that the classic exemplar of, uh, of the curtilage and the, the entrance, the one step into the, into the entrance, the step to come around, not, not into the doorway, but around behind, uh, Mr. Yarofalcio to make the arrest, uh, takes this out of any, any possible reading of, of, of Santana or any doorway exception.

[00:10:00] Speaker 03:
And we maintain there is no doorway exception in the first place.

[00:10:03] Speaker 03:
Santana was a hot pursuit case.

[00:10:05] Speaker 03:
So I'll reserve the rest of my time, Your Honor.

[00:10:07] Speaker 04:
Very well.

[00:10:08] Speaker 04:
All right, Mr. Glass, I understand this is your first appearance before us, so have at it.

[00:10:20] Speaker 02:
Thank you, Your Honor.

[00:10:20] Speaker 02:
And good morning, Your Honors.

[00:10:22] Speaker 02:
May it please the Court.

[00:10:23] Speaker 02:
My name is Jonathan Glass, and I represent the appellee, Sergeant John A. Cabrera.

[00:10:28] Speaker 02:
We are asking this Court to affirm the two lower court orders at issue today.

[00:10:32] Speaker 02:
I don't think that there's much to say about the second one of the amending the complaint.

[00:10:36] Speaker 02:
I think the parties did a good enough job briefing that, so we'll leave it there.

[00:10:39] Speaker 02:
But I want to spend my time on the qualified immunity arguments.

[00:10:43] Speaker 02:
Now, we believe that Sergeant Cabrera is entitled to qualified immunity because he did not violate plaintiff's constitutional rights, and that that right is not clearly established.

[00:10:52] Speaker 02:
Now, to start with, we contend that the seizure occurred with the actual physical restraint of Mr. Yarofalchi.

[00:11:00] Speaker 02:
It was not at the pavilion or the pala pala.

[00:11:02] Speaker 02:
That was a knock and talk, which is clearly allowed.

[00:11:04] Speaker 02:
In fact... A knock and talk can evolve into a seizure.

[00:11:07] Speaker 02:
It can, your honor, but in this case it didn't.

[00:11:09] Speaker 05:
Why didn't he just leave?

[00:11:11] Speaker 05:
I mean, he asked him to leave.

[00:11:13] Speaker 05:
Why didn't he leave?

[00:11:14] Speaker 02:
We contended that he did actually leave, because he backed out of the thing.

[00:11:17] Speaker 05:
Backed out of the thing?

[00:11:19] Speaker 05:
He parked in front of the driveway.

[00:11:22] Speaker 02:
Not quite in front.

[00:11:22] Speaker 02:
There was room for him to move and leave, and that's in the records 73.

[00:11:27] Speaker 05:
Why didn't he just get a warrant to arrest him?

[00:11:31] Speaker 02:
Your Honor, because I think what was going on and the reason that this encounter started, we have to remember, started with a threat of violence, a threat of shooting individuals.

[00:11:40] Speaker 02:
And this was not the first time that this complainant had had this kind of run-in with Mr. Yarofalchuk.

[00:11:46] Speaker 02:
And so the officer was definitely concerned about that.

[00:11:48] Speaker 02:
And so I think what he was trying to do was look and go, hey, I need to make sure that this is going to cool down, because again, he got

[00:11:54] Speaker 02:
I think you could have there was enough room for him to go yes your honor yes he was he was he could have walked right through and gone I can't say whether anything would have happened I don't again that would have been him being in public at that point and whether he ran into the officer in public that would be a valid arrest on probable cause

[00:12:20] Speaker 02:
I'm sorry, what?

[00:12:22] Speaker 02:
I think that would change the analysis.

[00:12:27] Speaker 02:
If he had done that, I think that would, you would then have to look at how long did the officer remain to deescalate the situation.

[00:12:33] Speaker 02:
How long was he there to observe and conduct surveillance like Pereiraia?

[00:12:38] Speaker 02:
Again, that threat of violence, your honor.

[00:12:41] Speaker 05:
To shoot an individual, a government employee that he was...

[00:12:48] Speaker 02:
Your Honor, he became irate at the property.

[00:12:51] Speaker 02:
He started cussing at the officers telling them to get out.

[00:12:53] Speaker 02:
And again, I think that coupled with... I would classify that as violence when you couple it with what was going on before.

[00:13:00] Speaker 02:
Yes.

[00:13:01] Speaker 02:
Again, I think taking the totality of the circumstances.

[00:13:04] Speaker 05:
Remember, this encounter happened...

[00:13:11] Speaker 02:
Again, I think he was.

[00:13:12] Speaker 02:
If he was going to come out of the house with a gun, again, that would be different, right?

[00:13:16] Speaker 02:
But if he had just stayed in the house, I think we would be looking at this much more under parea rea, where the court said you can go back and conduct surveillance.

[00:13:23] Speaker 02:
You can do further surveillance when you're asked to leave and end the knock and talk, which was ended.

[00:13:32] Speaker 02:
Again not not on the property within the cartilage I think that is very clear but again we've already acknowledged that that was outside of the cartilage and the pictures established that that was outside of the cartilage even mr. Your falch was established that

[00:13:50] Speaker 05:
You know, knock on the door and say, hey, we have some questions.

[00:13:54] Speaker 05:
I'd like to ask you some questions, you know.

[00:13:56] Speaker 05:
I'm concerned about this incident that took place down at the beach.

[00:14:02] Speaker 05:
And the homeowner says, you know, hi, you know.

[00:14:07] Speaker 05:
I really don't want to talk about that.

[00:14:10] Speaker 05:
I don't have anything to say.

[00:14:12] Speaker 05:
Please leave.

[00:14:14] Speaker 02:
Right.

[00:14:15] Speaker 02:
And then again.

[00:14:15] Speaker 05:
I mean, and the officer doesn't leave.

[00:14:18] Speaker 05:
What is the homeowner to do?

[00:14:20] Speaker 02:
Again, your honor, I think he, one, could have stayed in the house.

[00:14:22] Speaker 02:
Two, he didn't have to reengage with the officer, which I think is one of the things here that really changes this analysis as well.

[00:14:28] Speaker 02:
He reengages with the officer.

[00:14:29] Speaker 02:
He comes back out to say, I want to record this.

[00:14:31] Speaker 02:
I want to show the world, broadcast this, and make this complaint.

[00:14:34] Speaker 05:
Well, Cabrera did get him to leave.

[00:14:36] Speaker 05:
I mean, Cabrera left, went out, got in his vehicle, drove it outside, and parked it.

[00:14:40] Speaker 05:
And then he came back on the property.

[00:14:42] Speaker 02:
Yes, your honor.

[00:14:43] Speaker 02:
That was to talk to those three individuals who were witnesses and to get their information.

[00:14:47] Speaker 05:
And they tried to leave, and he told them not to leave.

[00:14:49] Speaker 02:
right and again i that again that may be an issue for those three individuals but that was not something for mister here felt you and he is the one that we're talking about he is the one that was the subject of this and again he was able to go into the house he could have stayed in the house made a decision to come back out and re-engage with the officer

[00:15:10] Speaker 05:
I guess your other argument, and the district court initially I think thought about this carefully, was that there was no clearly established law that would suggest to a reasonable officer that they could exercise, you know, that by doing what he did here at that time would violate any clearly established law.

[00:15:29] Speaker 02:
I do believe that is what the trial court found, and again, I'd point the court to Pereiraia.

[00:15:33] Speaker 02:
Again, this court said that when an individual terminates a knock-and-talk, you have some options, and one of those options is to conduct further surveillance.

[00:15:41] Speaker 02:
I think the court meant what it said, and you can conduct surveillance from a public roadway when you're not on the individual's property, which again, we've established that's not where he was.

[00:15:49] Speaker 02:
He was in a public place to be able to view.

[00:15:52] Speaker 01:
Why aren't there disputed material factual issues regarding whether the driveway was blocked or not, whether Mr. Yarofolchuk was on his property when he was arrested or not?

[00:16:03] Speaker 01:
Those all seem to be in dispute.

[00:16:06] Speaker 02:
I think they were in dispute until that second hearing where Mr. Yarafaltu produced pictures that clearly showed that Sergeant Cabrera was not blocking the drive, that there was enough room for the car to leave, that he could have gone out and used the driveway that way.

[00:16:22] Speaker 02:
And I think that really changed the analysis for the court.

[00:16:23] Speaker 02:
If you read the trial court's transcript there, the trial court really even expressed that that was a change.

[00:16:30] Speaker 02:
That was information that the trial court didn't have before.

[00:16:32] Speaker 02:
When it had that picture, it changed the analysis entirely because the trial court originally had said the blocking of the driveway was that show of force because he couldn't leave.

[00:16:40] Speaker 02:
But now because he had enough room to actually leave, it was no longer any kind of show of force and therefore there was no seizure at that time.

[00:16:47] Speaker 02:
And so the seizure occurred when they actually physically restrained him then.

[00:16:50] Speaker 04:
So from your perspective, the pictures resolve material disputes of fact in this issue.

[00:16:55] Speaker 04:
Is that correct?

[00:16:56] Speaker 02:
Yes, Your Honor.

[00:16:57] Speaker 02:
Yes.

[00:16:57] Speaker 02:
And again, those are taking things in the best light of Mr. Yerifalchuk, but those were his pictures.

[00:17:02] Speaker 02:
He produced them.

[00:17:03] Speaker 02:
I don't think we have to get into the Scott case from the Supreme Court that talks about that standard for it.

[00:17:09] Speaker 02:
The second thing in regards to this not being well established is that the doorway cases are still good law.

[00:17:14] Speaker 02:
They have not been overturned either by this court or the Supreme Court.

[00:17:18] Speaker 02:
But they've never been applied in this situation.

[00:17:20] Speaker 04:
They've literally been treated as a doorway.

[00:17:24] Speaker 04:
The idea that way out in the yard, I mean, we've seen the pictures.

[00:17:27] Speaker 04:
It's a great big, expansive place, like a park.

[00:17:30] Speaker 04:
That's not a doorway.

[00:17:31] Speaker 04:
Do you have any cases that say doorways are parks?

[00:17:34] Speaker 02:
no your honor and again i think that's part of what was drawing the parallel for why this really initially was not curtilage and i understand the parties did agree in the trial court to say that the bushes were going to be the demarcator for the curtilage and but again i think if you apply the the done factors that's not where you get again he's in the driveway which is also been held to be a common area and so i think that would have been there but again they agreed to that in the lower court and so i think here

[00:18:00] Speaker 02:
We're using that.

[00:18:01] Speaker 02:
We're saying even with that, it wouldn't.

[00:18:03] Speaker 02:
Your Honor, if I can just wrap up, I see I have a question.

[00:18:05] Speaker 01:
Can I just say one quick question?

[00:18:05] Speaker 01:
Do you concede that it was clearly established that a warrantless arrest on the curtilage would have been unconstitutional?

[00:18:12] Speaker 02:
Within the curtilage, yes.

[00:18:13] Speaker 02:
I would agree with that.

[00:18:14] Speaker 02:
Okay.

[00:18:15] Speaker 02:
Again, I think this case does turn on whether it's inside or outside of the curtilage.

[00:18:18] Speaker 02:
Other questions?

[00:18:19] Speaker 04:
Unfortunately, our time is up.

[00:18:22] Speaker 04:
Thank you for your argument, counsel.

[00:18:24] Speaker 00:
we will now hear from you say it blazee or blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blazee blaze

[00:18:51] Speaker 00:
that a seizure occurred prior to Mr. Yarfalchu's arrest, Officer Fidiel is still entitled to qualified immunity because he was not an integral participant in the alleged unconstitutional conduct.

[00:19:06] Speaker 00:
An official can only be an integral participant if the defendant knew and acquiesced in the constitutionally defective conduct and as a part of a common plan with those conduct

[00:19:19] Speaker 00:
with whose conducts constituted the constitutional violations.

[00:19:23] Speaker 01:
But Mr. Fidiel blocked the driveway and placed the handcuffs on Mr. Yarofalchew.

[00:19:28] Speaker 01:
So that seems a little bit inconsistent with your argument.

[00:19:33] Speaker 00:
Your Honor, even if Officer Fidiel partially blocked the driveway, it was reasonable.

[00:19:39] Speaker 00:
I mean, while it might have been inconvenient for the individuals in the car, this fact should be looked in the context of a rapidly evolving

[00:19:49] Speaker 00:
situation or potentially dangerous situation because Officer Fidel was responding to a call for backup from Officer Cabrera when the situation had escalated.

[00:20:00] Speaker 00:
So I think that the court should consider the reasonableness of an officer's judgment in a situation that's rapidly evolving.

[00:20:11] Speaker 00:
Qualified immunity is limited to the knowledge of the officer at the time that they engage in the conduct in question.

[00:20:16] Speaker 00:
Officer Fidiel only knew that Sergeant Cabrera was investigating a complaint.

[00:20:21] Speaker 00:
It appeared to be cordial when he first arrived, and so he left.

[00:20:25] Speaker 00:
And minutes later, he was called for a backup.

[00:20:28] Speaker 00:
At that point, Officer Fidiel had reason to believe that the situation had escalated.

[00:20:33] Speaker 00:
Officer Fidiel's response was not only proper police protocol, but it was reasonable.

[00:20:39] Speaker 00:
Officer Fidiel had no knowledge

[00:20:41] Speaker 00:
of what occurred prior to his return at the scene.

[00:20:44] Speaker 01:
What's your response to Mr. Horry's argument that Officer Cabrera, when he parked his car up at the top of the driveway, still re-entered Mr. Yarrafalchus' property and told the guests that they were not allowed to leave?

[00:21:00] Speaker 00:
Sergeant Cabrera was investigating the situation.

[00:21:05] Speaker 00:
I don't believe that he went back on the property to speak to Yarafaltu, because Yarafaltu was in the house, he went to get the information from the individuals at the scene.

[00:21:15] Speaker 00:
So I don't believe that him instructing them to leave was a seizure of either Yarafaltu or the individuals at the scene.

[00:21:31] Speaker 04:
You all done?

[00:21:34] Speaker 01:
Can I ask you one more question?

[00:21:37] Speaker 01:
You're arguing that it wasn't clearly established what happened here, but Mr. Fidiel said I am the law when he put the handcuffs on Mr. Yarofalchuk, or at least that's what Mr. Yarofalchuk claims.

[00:21:47] Speaker 01:
Is there any tension there?

[00:21:52] Speaker 00:
Mr. Fidiel, we won't concede to him saying that he is the law, but at the end of the day, the arrest was supported by probable cause.

[00:22:02] Speaker 00:
Um, the investigation led, um, Sergeant Fidiel to Yara Falchus' residence.

[00:22:07] Speaker 00:
He admitted that he was at the, at the beach and threatened the, um, officer at the beach.

[00:22:13] Speaker 00:
And, um, regardless if he said, I'm the law, I don't think that's material to this case.

[00:22:21] Speaker 04:
Other questions from my colleague?

[00:22:23] Speaker 01:
No, thank you.

[00:22:23] Speaker 04:
All right.

[00:22:24] Speaker 04:
Thanks very much.

[00:22:25] Speaker 04:
So Mr. Horry, you have a little rebuttal time.

[00:22:29] Speaker 03:
Thank you, Your Honors.

[00:22:30] Speaker 03:
First, I'd address, I know Mr. Glass talked about the Pereira case, and he likes that issue about the police can remain and conduct surveillance.

[00:22:42] Speaker 03:
But I think what was done in this case goes beyond anything that the Court had in mind to describe as surveillance at that time, what Officer Cabrera was doing in directing people, telling people not to leave, calling Officer Fidiel back to come and arrest

[00:22:57] Speaker 03:
uh, uh, Nicuara Falchu goes beyond, uh, any kind of, uh, surveillance that would have been, uh, proper under Pare Aure.

[00:23:05] Speaker 03:
Now, on the qualified immunity issue, um, all the rights that were infringed were all clearly established.

[00:23:12] Speaker 03:
Uh, there's that no warrant, that warrantless seizures in the home without exigent circumstances are prohibited as clearly established by multiple cases.

[00:23:21] Speaker 03:
Uh,

[00:23:21] Speaker 03:
What's a seizure is clearly established by Bostic, police communicating to a reasonable person that he's not predetermined.

[00:23:28] Speaker 03:
What's in the home is the curtilage, that's clearly established.

[00:23:31] Speaker 03:
Where does the curtilage, where does the seizure take place?

[00:23:34] Speaker 03:
The location of the arrested person, that's clearly established in Raymond Johnson.

[00:23:38] Speaker 03:
And how far into the home is too far without a warrant or exigent circumstances, a fraction of an inch.

[00:23:44] Speaker 03:
That's clearly established.

[00:23:47] Speaker 04:
Do you agree that your client was

[00:23:50] Speaker 04:
handcuffed outside the cartilage?

[00:23:53] Speaker 03:
No, he was handcuffed inside the cartilage.

[00:23:55] Speaker 04:
Okay, and so you think the cartilage was outside of the hedge?

[00:24:00] Speaker 04:
The boundary?

[00:24:00] Speaker 03:
No, he was inside the hedge.

[00:24:01] Speaker 03:
He was between the hedges.

[00:24:03] Speaker 04:
That's not what the picture shows.

[00:24:04] Speaker 03:
He was at the entrance of the hedge.

[00:24:06] Speaker 04:
That's not what the picture shows.

[00:24:06] Speaker 03:
It shows him between the hedges.

[00:24:08] Speaker 03:
It doesn't show him outside.

[00:24:10] Speaker 03:
It shows him between the hedges.

[00:24:11] Speaker 03:
Okay.

[00:24:12] Speaker 04:
Other questions about my colleagues?

[00:24:14] Speaker 03:
The opening for the driveway, that's where he was standing.

[00:24:17] Speaker 03:
Okay.

[00:24:17] Speaker 04:
Thanks to all counsel for your argument in this case.

[00:24:20] Speaker 04:
The case just argued is submitted and the court stands in recess for the day.

[00:24:27] Speaker 01:
All rise.