affidavit in this case the officers reasonably believed that if they had a meth lab in his home and was about to embark on the dangerous explosive process of manufacturing methamphetamine probable cause and i'd like if you prove me wrong yes your honor i'd be happy to and i think when we read this affidavit we have to abide by this court's guidance that first of all we need to give a common sense and practical reading of the affidavit that we need that they had prior information before he arrived and that they followed him and identified him in some way i think again to avoid a hypertechnical reading of the affidavit that has to be what the magistrate inferred and this court as a reviewing court does have to give great deference to that inference and so now unfortunately you haven't been able to convince anyone of this yet they lost in two state courts from boston and jester court now you're here right that is correct and it and the only reason i'm here is because the government does but i'd point to two united states versus huggins where our own judge lecture actually wrote felt so strongly that that affidavit was so bad that she needed to make clear in a separate concurrence how bad that affidavit was and how far from probable you have a situation where a prisoner in jail on drug charges not a particularly credible individual gives except that huggins and others were involved in marijuana and it was the trafficking this was the three year old this three year old information  have i think you have to get into extrinsic evidence to prevail and then but to get into that extrinsic evidence i think there has to be an extension of what the law presently is or we have to follow one of the other circuits and directly from the district court erred horses in relying on facts that the affiant subjectively knew with the time he completed the affidavit but that were not included in the affidavit or presented to the magistrate and so hold while the facts of hove are clearly different and we think it's distinguishable in fact i think the whole court specifically chose its language to contemplate that there are two sorts of information that you just record can consider what's in the affidavit and i quote what is presented the magistrate judge and so who actually supports the government's position here but we're also supported by the fifth circuit by the sixth circuit by the fourth circuit by the seventh circuit in the arse limited holding limited incursion in of this court that outside the affidavit may be considered and in fact leon in massachusetts versus shepherd the companion cases on good faith which started us down this road both of them contemplated the consideration of facts outside the affidavit in leon  prosecution the first place i think it started there because the affidavit started there and it was a state court after that and as we all know the when you start with a state court affidavit it's probably better to keep it straight because you least in the central district we always believe the street corner affidavit and that the magistrate decided not that that didn't need to be included and style what ended that and the warrant was what the japs decided should end up in the warrant so the  that and basically told the judge everything that she knew and she knows that the judge knows that so when she's looking at the warrant she knows that it's because she told the judge that she knows that the judge knows that it was dad because they have that in the conversation on that doesn't know about what the conversation was with the magistrate does that make a difference here well i'm not certain all that matters is what is presented to the magistrate that's what the government's argument is and so so but even but if you're talking about when the officers relying on it and the subjective knowledge at all i think that runs itself i think we have to only focus on what the what was presented if we're going to address these facts and there's two sets of facts not just what the it said but also the exit and as as judge the judge w affidavit he was and i would and i would put i'm sorry go ahead i'm concerned i'm sure i'm very concerned about that to know how this particular police officer said that she'd done hundred survey after david she made all these ransom she know what to do it just seems like with that kind of a keystone kops situation here where nobody did the right thing and i think that's true and i would point the court here to united states versus kirk and united states versus integrate taken solace two cases out of this circuit in which there was a very similar keystone cops episode united states versus kirk the circumstance was that the court failed to it was a murder case as i recall and in that case the they went they got a warrant it had the complete wrong address on it they're searching for a murderer of they go to the house they talk to the parents the parents say this isn't his house he lives over here the agents call  different judge not even the judge who signed out and that judge says to them over the phone go ahead and change the change the address now we've got a real problem because there's nothing in that affidavit that connects him to this new place except not under oath over the phone change the address this court still held that the good faith exception applied even if that violated the fourth amendment neglecting zoologist in this case the agents didn't comply with rule forty one they failed to read the magistrate over the phone the actual affidavit which is required under rule forty one this court held in that case that it could have even been a fourth of and so course in that case like here the agent knew you should probably have all the facts relevant to probable cause nevertheless they and they knew that rule forty one required them to read the affidavit but the judge told them go ahead and this court specifically said the certainly the agents played a role in the mistake but the error was primarily the judges and that's a technical issue here we're dealing with something that is quintessentially in the problems of the magistrate judge which is a probable cause determination that's a place where we definitely don't have one agency and in massachusetts versus judge screwed it up in this case we have something that's definitely in the magistrate's province which is the probable cause determination and i agree with you on that point and the stance that the agent told the judge what she yes and if it does but just like it puts you in a difficult situation to argue with us and tell the emperor that he or she is wearing her clothes and also i think the agents are in a situation to judge says you don't need to put that in there well then if you start there and you start to write again you know that's not going to that's not going to go too well for you but it still you know so is what you're arguing in a situation if the magistrate just doesn't do a good job on violated we're talking about the exclusionary and exclusionary rule is intended and the on said the application of the exclusionary rule is not going to deter magistrate judges is only going to deter agents and so the only reason to apply it is if it's going to deter agents in this case the agent didn't do a great job in the affidavit but she did which we she was supposed to do present an affidavit to a magistrate judge that is arguably a close call and where it's a close call we submit that like the sixth circuit the fourth in the fifth and the seventh that additional facts presented actually presented to the magistrate and there's no dispute that they were presented to the magistrate there's no dispute at all these facts were there and there are additional facts that definitely support the probable cause along with the exit in seeing this case suppressing here does nothing but punish the magistrate i would suggest to this court certainly that it could word of very strong opinion that made it clear that  magistrates should write in stuff that they think is relevant or probable cause an error on the side of inclusion or tell magistrates just to reject the warrant and tell me to come back with a new affidavit that will that will do the job i think but to punish the affidavit in camera to the state court judge and then that judge makes a determination as to whether there's probable cause that's what they did here in the reason was they wanted to protect their wiretap they knew they couldn't do that in a federal case and so by by taking it state they had a greater opportunity to point of the court to lean on suggested that that the california courts the surgeons and the lower court's decision in this case mean absolutely nothing that we would suggest otherwise exactly the same as this and said that the court could not consider as part of the good faith analysis information told to them issuing that is true but not included in the affidavit unfortunately frazier came down and frazier purchases from the defendant and that the affidavit includes some six circuit cases that said that it's reasonable to expect that the drugs would be located in a residence of a suspected drug dealer more than five or ten minutes to include in the affidavit and she admits in the suppression hearing that she knew that the information should have been in there conceding that she should have included that now what was the information should have been in there but even if that even if the information wasn't there our position is that there was the three pieces of information that detective fishburn testified that she left out even if all that information was included it still would not arise to a sufficient probable cause showing the show to satisfy the dictates exception what if she don't look at the affidavit that would have gotten her a long way towards establishing probable cause but that's not what she knew and that's not what was in the affidavit now on the other hand if what she knew from the wiretap was that simply two suspected asian methamphetamine manufacturer says what do you know about this job i hear he's a chemist i think you can help those whom they don't get much further down the road probable cause than they already are but given what  him otherwise they would they wouldn't they would have followed him as opposed to every other person arriving from hong kong days so but the fact that they included that in the affidavit our position is that doesn't get them any further down the road towards establishing probably calls in good faith or alliance than they are right now the only thing that potentially could get them further down the road a probable cause given her testimony at the suppression hearing was this allege or we don't know if he drove around the same walk three times or whether exonerated quickly in the celebrated in an attempt to see if anyone was following him or if he'd for example exited from the far left lane of the freeway good to see if would she have if there were it if the court were to allow her to just say that she told the magistrate anything one instance and it was she had to say in a case where they got a lot more met than they expected that they would have well you know yeah i told the magistrate that there was some kind of surveillance driving him you know he did this and not included in the search warrants and you know that there would be no incentive for the government to essentially abide by the fourth amendment requirements i first liked it just still it may be a losing battle but encourage the court to line up this affidavit against the affidavits that it is found were insufficient but still pass the good faith test i think the affidavit in tate and clark the court to again just line up is that the david start there and look more closely at huggins and clark and tate and danced and found me second i'd like to to the extent that additional facts are being taken into account there's really no question that you can look beyond circuit has yet hold that held the facts presented to the magistrate even if they're outside the affidavit cannot be considered in considering probable cause and so i would i would focus on that finally i would encourage the thank you both of you for your argument thank you this will conclude today's calendar and we'll be in recess top tomorrow morning at nine o'clock