you have probable cause then the existence of some retaliatory motive isn't pertinent so it's one of the probable cause facts we should consider the facts are and these are uncontroverted that first of all one sixty in operation we have this thing we just shut that thing down down the analysis and you come into this whole question of probable cause if you have probable cause or maybe even if you didn't have probable cause under the circumstances you leave the end well it's easier to resolve farther down th you wouldn't have pursued the search the different route and maybe of that you don't want to create an incentive for people who might be subject to investigation to simply start making comics that otherwise would be affected by the first the whole thing gets all mushed together and i and i'm judge i as i'm having a hard time saying that the first amendment they just kind of a half rates because probable cause up to now whether there's an issue of the law was clear under these mixed circumstance believe that that simply means there was evidence of retaliation we should be entitled pursue it except for items that the court specifically excluded when we mention the camera in briefing it was simply an example and the court sees done that where it gets less clear i think is as you move down into the rockies to now here that we were to agree with that the district court that there was probable cause for the initial search warrant for two reasons one is that there are i think five cases that we've cited in our reply brief that say and i'm sorry i didn't cite them until the reply brief but honestly i couldn't get the concept into a search that worked until i finally did something differently writing that brief but maybe it's just a lot of cases where i think i may have found a lot of hope stuff but there are those five cases that say that a person has a first amendment right to videotape in a public place there's another one that says a first amendment right to videotape the activities we saw first and then the three others generally support those two ideas one of them involved for example the videotaping of a demonstration in the there's case law that says we go again unless you want to argue that we'll go back into that old world but if you get beyond the fact that the number of the stature of the specific statute slidin issue and if it has been alleged and if he's investigating this so called crime then the only issue we have is the still camera recording this search right and that's the only thing again that is the only thing that survives summary judgment exactly but there's a cross appeal on the other issues that the court certified by way of people would be yes and then this issue comes up in the context of the cross appeal as well but there are two different concepts that have question of was there a clearly established constitutional right that there's evidence that the officer violated that would be the constitutional right to be free from retaliation for using or not just when you define when you  two cases both say and they were both started prior to the incident that a person has a right to be free from retaliation for using the courts or exercising their first amendment rights in addition that it's kind of concepts that is just simply obvious to any reasonable person without knowing a lot of detail about the case law and if you look at the pro so case which is the supreme court rather recent supreme court case it talked about obvious cases and it's just obvious that you can't use the police power to be intimidate someone from exercising his first amendment right well i think it's ok and maybe i'm just too thick i can understand your theory but i take it you're using the first amendment argument to collapse everything underneath and in other words a probable cause anything related to th if i understand your question pretty much they go into the business and let's say go and speaking that videotape its collapse because that's retaliation and that collapses everything underneath so you never could get any justifiable reason in any analysis  you could if there was either actual probable cause for there was a basis for qualified immunity but you just said there's no actual probable cause because the underlying so called making incident that was bogus it was retaliation right now isn't that disputed by the fact if i'm correct this officer school didn't know about the deal like a switch would produce a retaliation motive until after he had been taped and say exactly what i am saying first of all any reasonable police officer would have known that it's not a crime to video taken a public place period and i can talk about why that i just want to go through the stuff that means if you have to assume that it is actually there can be enforced as unconstitutional and i think there are good reasons why an officer would have known that at that time should have known that which i can talk about not only were there those cases saying that videotaping in a public place and videotaping the activities of a police officer are protected by the first amendment as there's also every day life all around us all you have to do is turn on the all of all of that happens and nobody gets arrested cameras are running with sound every day in sports stadiums all over the country nobody gets arrested for the same things true of reporters interviewing people on the street and then on a you know where people have been convicted of one case in particular where someone was convicted of audio recording a police officer during her arrest if in violation of the statute so there was there was nothing  guidance should be enough and the officer should know it's not a crime to go out in a strip mall and video throw them from some technological race today everybody does it and there's more and more technology allowing you to do it so therefore it's got i don't think i'd go that far although you're saying that everybody videotapes there was probable cause ye except in the retaliation case where you have the mixed mode of analysis then if you found that there was probable cause but there was also evidence of retaliation then i think it's up to the trier of fact to determine which was the actual motive for the retaliation i'm looking for i was looking for a case in that dealt with probable cause mcnally ation to what a reasonable officer might find understand what you're saying i understand what he's saying so how do we analyze both well to the extent that plaintiff's argument is based on this supposition that mr western should have known that the statute itself violated the first amendment that's not an issue that's that's