inadequate to support the search for a number of reasons the first was that there was no probable cause anywhere in there to suggest that either mr massaro or his gun would be i don't concede that mr broken that there was probable cause to believe mr brokaw was involved in responsible to that murder however it's irrelevant to this case because he was already in custody before that here was not the grainy a warrant warrant to arrest mr for ok the warrant sheer was to search for the gun at that house there is nothing anywhere in that warrant that suggests that that gun can probable cause to believe that evidence related to the crime and wouldn't it be relevant as the alameda county superior court judge considered to know that mr baroque was living with  wouldn't that be relevant to the nexus terminations whether mr as in this broken might be in possession of if you're looking for a specific gun which is not the gun that was involved in the trash search if you're talking about something in a place that was two hundred miles away and two weeks later the fact that he is related to mr perez and and who shared that apartment by the way with two other women and who the police were not man uses firearms and they say he would take another man's firearm with him two weeks later to a different place hundreds of miles away and keep that fire with him there was nothing in the affidavit to suggest also we know that there were what i would suggest are material this representations and false statements and that was one of which was a very important one of which was that at the time the w open the gate left and he tried to close the gate he completely defied their orders to stop and instead walk backwards you treat it towards the house looking repeatedly back towards the house which is what his district court referred to in  water and eventually made a very sudden movement by diving behind the berm which is about ten feet away from the house and that was a position that clearly gave rise to the inference i think very reasonably to the officers that he was getting in a position investigation which took place immediately after the shooting the asters very forthrightly said that they had shot and what the situation had been and office address their staff that he had initiated the shooting and he the defense and given that there was certainly some confusion about whether people could hear it or not i think that to rely extensively on the transcript as proof positive of what the tape actually said  i'm not sure i didn't i did not have that material when i compared my briefing but i believe from looking at the supplemental excerpts that it was an exhibit to something that was provided over to the defense immediately pair for you to run those two lines of the to do list of a shopping list together so as to say one hundred five gallon all acetone i do not think accurately characterized as what's on that list very brief mention is number one not anything about flying possession you can't tell if there was one that he can't tell if there was two you can't tell who had it or anything from that section of the lorry got that they were both are i mean they're both we do know that on that occasion he was arrested and charged with being a felon in possession of firearms which is a fact that the issuing magistrate can consider in trying to determine whether he's likely to be in possession assertion to this captain on the tapes moments after the incident was sergeant miller the person who shot first sergeant miller was not confused he shot first and yet moments later he was saying to his  of counsel you never put any of these facts in issue and for that reason the district court determined it didn't need to conduct an evidentiary hearing so your case turns or falls entirely on the district court's reading of all of these reports and declarations by the deputies who were involved and we would have to conclude that the district court clearly erred in finding that there was probable findings that were made by the district court to support the protective suite are clearly erroneous and we would have to do that would we not by looking at all of these police reports and declarations of the officers and in essence the tide on our own whether or not there's inconsistency the lack of credibility again just to keep clear of the two separate ones one the one having to do with the two thousand  matter of law to permit the district court to make that factual determine i am giving you a precise example for example the court considered mister they all of us having gun determining whether somebody else was in the house because that's not the question he may have been dangerous even or even if he was dangerous that doesn't mean that somebody else is in the house it doesn't mean that they had probable cause  investigation they just arrested one of the murder suspect they've seen this guy armed with a weapon if this had a fire fight because he's resisting their efforts to arrest him if there was somebody in the house there's no doubt that they are well aware that the police are