appeal the first is the issue of standing which i think is a very short and simple issue and then the second one is the issue of probable cause of the search warrant that was issued on the search  the search warrant it was started out as a suppression hearing that was coupled with what might have turned into a frank's hearing which the court determined was not necessary at the time during the suppression hearing the issue of standing was not raised at all by either the movement mr neeld or the government nor was it addressed by the court at the time when the opinion was issued some eight months later the court determined that mr kneale did not have standing to challenge the search warrant and relied on the pollard case saying that this was that the visits by mr kneale were purely of commercial purpose this really ignores longstanding law and i think the the olson case i think is could is controlling here what it ignores is that mr neil is brothers with the owner of the house there is no there was no evidence before the court that mr that michael in the old the younger brother of my o'neil did not live there that was he was not a permanent residence there he did maintain another residence but there is no evidence that this was not his primary residence or that he did not live there on a substantial basis the other evidence that was before the court was that mr neil meron the oh was it and over not visitor on the two occasions that were before the court mr newell wasn't over not mr for at least one not on the first occasion into knots on the second occasion quite frankly there's more than commercial activity going on here not only is he a family member there are over not visits involved here among you there was no evidence taken at the court there was no testimony taken of court beyond what was house three nights three nights two nights one time and one night another time where if you are was there evidence that the house was furnished of the house the only only thing that is that was brought into evidence is there is a statement by the confidential informant mr dixon that the house appeared to have little furniture or food that's the only thing that regards to now somewhat jokingly raised this in my objection to the report recommendation of what constitutes little furniture and little food if you wanted any college students apartment you might not think anybody live there but quite frankly it's just based upon opinion what constitutes a little furniture a little food we saw the photographs afterwards they took in there was  ure there were sofas there were tables there was food all over the place you know i don't know i would say the one thing that i know this court has told me time and time again never to say i did not conduct these depression hearing i was appointed after  take over this case so i'm not exactly sure what the court saw at the time so and i apologize for saying that because i have been told by this court never to say that but i think it's important to note that the only thing that the court references magistrate references in the report and recommendation is that there are two statements that the there appeared to be little furniture and little food in the house and secondly that it appeared to be for commercial purposes although there was the i know that there was evidence that was looked at by the court that talked about his over not stays and the fact that he was his brother there now the trial court did not address the issue it said we don't need to get to the standing issue because the search warrant itself is sufficient so it just blew past the issue of whether or not there was standing i think it's important for this court to address it because you can't get to the search warrant without addressing whether he had standing or not so i pollard clearly was a visit for commercial purposes there's no question about that in for a couple of hours out and for commercial purposes i would agree you know probably standing doesn't exist but this is a family member who the evidence in the record we know that he stayed at least three nights there there's no other record but other visits i think the court could if required testimony or sought testimony about other visits but the court limited its review to the four corners of the warrant for the most part and some other some other issues but a fill up is important for standing purposes that that the defendant on this visit was there for a longer than making a commercial deal the supreme court seems to think so and also over not gifts are treated more deference than people that come in just to go with it so with respect to this visit this defendant was just there for a deal is that correct or not there's no there's nothing in the record to indicate anything one way or the other the record is bare on that point if one presumes brothers that the it's not in this record there is there is evidence that they traveled outside the house and did other things that's not contained in this record that was not in the issue though as considered by the magistrate so there's nothing in this record one way or the other to indicate that it was for there were personal activities going on  commercial there's just nothing in the record one way or the other so i think you have to go with the standard set forth the notion that says an overnight guest is given more difference in terms of standing than if someone comes in purely for a very short term commercial visit if you want to move on to your other issues sure the the second issue that in the meat of this is argument is the issue of probable cause on the search warrant the main problem as i see it with the search warrant is the credibility or lack thereof of the confidential informant mystics and this is a an issue where a the chicago f b i office obtained a source a person came to them and said hey i've been traveling to knoxville tennessee and i've witnessed a cocaine deal in knoxville tennessee this person was completely unknown to the chicago f b i they had no idea who this person was she gave some bare bones information all of which turned out to be inaccurate quite frankly i mean it's she gave the important thing is she was not able to provide accurate information she was an unknown untested in from informant and she gave inaccurate information she was incorrect about the dates of the trips he had just taken within the past two weeks she was not been able to recall just the dates that she had taken these trips she was she gave an address  the address that she gave was not the address of the house but she gave an address to the house she described the house in knoxville tennessee at arista she give she she said that the address she didn't know what the address was but the address as punched into the g p s was eight hundred be street now that that's not inaccurate but well that's that's accurate information as to what this person did but it's not an acronym it's not actually an accurate is i mean it's like we got to the house by using eight hundred beeman street that's pretty accurate  the house is near eight hundred beeman street right well that if you punch in a hundred street you wouldn't get anywhere near the house but it's accurate to say that she did describe that he punched that in there but she wasn't able to provide an accurate address for the house instead of south beam that's just that's just a start it's a start and there are other things in it she describes the house alternately as being either a one story greenhouse or a two story greenhouse than the police based on that read able to identify which house probably was well that the police the police identified two houses that could potentially be and that was based on the investor the twelve want and then found one of them was owned by what the brother of the other brother yes correct rather but when i mean at this is police work it's not but when shown pictures it doesn't that focus you that this might be the hounds it's a start there's no question about that that's a start of police work or police work based on sure on false that address that had thirty seven and at the right she didn't and that had a green on it she did not she's cheated scribed as being a one story alter there's two emails from the chicago field office one that describes it as being in a one story greenhouse the other describing as being a two story greenhouse it was a one story white house and they said that there is not they say that there's trim on the green but she says she never went in through the front door she says she always in or through the carport that's just that's just save it trying to sa this but there's never any indication that she actually actually accurately describes the house and in fact your red light you can either continue with your remaining five minutes now or you can save it for rebuttal i guess if there is a question i'm trying to finish up if not if i've answered it to judge if to the court of satisfaction ok i mean case i will reserve the balance of my time there i certainly oldham's presentation and i will start with stand in i will give it very brief attention unless the court team's other was appropriate the district court as mr oldham indicated did not midst of this appeal does not believe that that issue is really even before this court and i will make it all give we were if we were to accept the merits argument of your opponent we would need to find that he had standing and then ruled against him so it's ok to presume standing under those circumstances but you wouldn't want us to presume standing in the rule in favor of him would you well no because i think that would be the appropriate outcome but  law standing of course is that if it's burton and we hear about what was presented or what was before the magistrate court regarding standing but if there were other facts that would have shown standing it was the defense burden to show that the defendant says that his client was there for three overnight visits why isn't that enough to give him standing he i think this is based on the confidential informants grand jury testimony that was introduced into the record it at the mansion court level and what she believed testified to she'd been there twice before once and one night visit once a two night visit so that's the three nights and then reported what she said about no furniture etc we were only there to sell drugs once the drugs were gone in the money was in hand back to chicago so that they stayed overnight yes because it took that long to get to sell that as much drugs as they had brought down but it wasn't they weren't i c s i mean rather visit a brother and stay overnight and sell drugs that's their recreational activity and why does that preclude standing and  understand he has the burden to show standing but normally an overnight visitor would have an expectation of privacy and would have standing arguably and why nine here i suppose that it the answer to that would be have to be a reflection of  commercial perch purposes of selling drugs not the other was a societal sort of norms of watching movies going to a restaurant to have a playing monopoly i don't i don't know  t the fact of the matter remains that the record is what it is and i believe the record would not support standing in mr and mr merrill neil's case and i would that's not your primary it's not a  primer i would if i could append to that in terms of there was a little bit of an accuracy about what the proof really would show at this point there is in the record the search warrant return in the search for return which by the way to answer your question and judge more about the nature of merrill newman's visit on this date there is in the record in the search warrant documents in return the times that are shown there that the search for was executed ten minutes after the magistrate judge signed it so in fairness there was no opportunity to discern what type of visit this visit was except for the fact that there were no clothing no toiletries nothing of that nature was recovered during the search and that duffel bag was drugs and that was it so to the the dissent language of moore and so what i would like to do is if i could point your honour's to page thirteen of marguerite and about halfway down the first full paragraph i sort of summarize the historical events reported by the confidential source in this case and what i would suggest just to sort of frame this is if your eyes would bear with me in presume for a moment then instead of a confidential source and i realize i'm getting to an obvious point but if we would presume for a moment that instead of a confidential source what we had here was an undercover officer nobody would bat an eye so it's not the information that the source provided the information was solid it was good there's no question that it would have supported probably cause the only question is should this judge have believed what was written about this source and what she reported and if we were to stop at the end of the historical summation of what the source reported and the f b i for example the day after the second trip the source reports what happened and we go to the judge and we get a warrant we executed i think we would be here in much more similar circumstances activity or reported historically even the day before of course higgins i think was seven days before but you know we would be very similar but i would hasten to point out your honour's that when brought the bag from the trunk of a round car inside contain cocaine he and his brother or a crow yes and that it was cooked into crack cocaine that seven or eight customers came to the house paid cash bought sums of of of of crack cocaine and i think cocaine too and that a certain amount of money was earned or generated in merrill neal took a certain quantity back to chicago and some drugs were still leftover  that's what the confidential source reported but that was not verified by any of the police officers right and that's the point of mind my hypothetical but had this been an undercover but it isn't right exactly exactly so so so far as i understand it the things that are verified by the police are innocent details such as the location of the house the nature of a car whether the car is frequently at the house all of those are in this in details that anybody with a grudge could become a confidential source and say so and so is dealing drugs and they have a green car and they live in a white house and it's on beacon street or whatever i understand i'm so glad you asked that good so why is this anything beyond corroboration that in this in details yes and here's ok but that wasn't all that was corroborated was it because what did the agent do in this case instead of just reporting to the judge what had been reported to him he went out in over three weeks time did everything he could do footwork wise he put video surveillance of the house conducted physical surveillance of the house from mr michael neil and concluded in his own opinion that this was a situation that did at the house that did appear to be drug trafficking related what specifically the agent and and put in the warrant that i volume of high volume of traffic to the house that my recollection of my reading of the record was that was the  item that arguably was crime related that there was a high volume of traffic that was not consistent with a normal house but was consistent with a drug that was the one factual observation now i would argue that although this wouldn't necessarily hold water in trial in a for b context but in this context with the probable cause standard in that search warrant as an investigative tool i would argue that the felony drug when you consider all of that together along with the highly detailed nature of the otherwise arguably innocent facts of a color of a house a car all of these things granted i mean how is the source going to report not going to report those things right that's got to be part of the reporting and that's where i would suggest to to this court that this is where the sort of superficial attraction comes to higgins and dire so where i would go is yes for all of that and then i would also append some things that are a little bit more logical and add a little cool as opposed to first him observations by an agent and these would be you know i hate to say it but almost what feel like little throwaway sort of lines in a brief statement against people interest identity known to law enforcement all these things that are real and they do matter but in terms of human beings are these things are these concepts that are sort of logic driven and they don't really draw out in a person ok why do i really believe what this cia is saying and what i believe is the events of may twenty and twenty one of two thousand and eleven make all the difference irrespective whether anyone believes the trip down whether anyone believes that higgins had any however anyone wants to interview those cases the divergence comes on the trip down in the trip down goes like  so this is about eight thirty of a friday evening in the trip takes the entire night and so that entire night i would like the courts to consider what did the agent do in this case in this is what the agent did and it's in the affidavit the agent got permission to locate the sources phone and confirm that she was in fact en route from chicago to knoxville the source sena text out from where she thought she was in louisville kentucky and and got her location to the agents i mean this is this is the all that is corroboration in this information so far i would disagree that it's innocent because for this  reason we have to i think look at this in with rationality what i would call rationality that you have an informant who is informing the f b i who were were in the middle of another trip she could be they could be car stopped a dog could alert on the car and she's provided all this information the f b i i would suggest it just defies logic but in direct answer to question had this you know maybe even then we would have a little more to talk about not withstand it a condition precedent of arrival or something but just in terms of you know at the point of time the text comes in i'm a little kentucky had it been an interest toward a search warrant you know maybe even then it's a little different but that's not what happened the agents saw the the car in tennessee they figured out from the records it's registered to merrill neal in illinois they see the car arrive at the house the very house that was in the warrant and just reported by the cia conceivably they could be just buying and selling cookies yes into that question i would ask this what if nothing had been found would we really look at this and say this is not what we want one law enforcement to be doing i mean isn't that the question that's the question in this is an agent who didn't do what happened and i'm not criticizing the officers and higgins and i was in their shoes but i know what happened in this case execute the search warrant and i suggest your honor i know i'm biased but i suggest you are this is what we want this is what we want we want agents doing this sort of work and going to neutral judges this is what we want and i find no fault in it i find a defect in it whatsoever it's to me it is example to be held up to perhaps the officers and higgins and done so you see this it's different and it's i take your point to be that it is possible that everything you see is innocent but just increases the possibility that there's something illegal going on which held at the circumstances doesn't tell the circumstances we are under gates and and i don't harp on that because i think that we really can become more comfortable if we almost assume that the law is otherwise right in really look at this and really drill down it's good it's well done thank you your honor to take up my poor i left off earlier one of the things that when i was talking about the facts in this case and some what i consider to be some of the inaccurate facts and some of the inaccurate reporting one of the important things to remember is th agent in this case who did all his work had never spoken with a confidential informant all of his information was being alone heard and i use that term purposely it was being laundered through the chicago field office they were snipping out things that were being sent to agents are not i've never seen the e mails i don't know the phone conversations and i don't know the e mails but i do know the e mails that were exchanged between the chicago field agents and the chicago agents had great doubt about this this person's credibility for example talking about the house i'm in when i say the difference between the the greenhouse the one story to story green house versus the white house with the green tre sarah was the one that verified that it had green trim on it the chicago agent's put two pictures two photographs in front of the confidential informant the confidential informant the first time was unable to identify just completely unable to identify mccourty did their own internal e mails they brought her back a second time the next day and she said possibly only possibly could one of them be the house that she visited only possibly they had their doubts about her now whether that was getting down to agent no sarah not we don't know there were e mails exchanged between the chicago field as there was a conversation that was supposed to have occurred there was an e mail that was exchanged between the chicago saying i think she's lying there was and they had they say later on this was a joke you know six months after the fact they said oh this was a joke but there was a an agent that scheduled it that went to visit the home of the confidential informant comes back and wr e mail saying there was a note on the door say saying going to knoxville see you later but i had great doubts about this conflict with a win in the trip where she was monitored they went arrived at the house the it was owned by the brother of the person they thought they were talking about so they identified a house and then that's where the car came right but i did not write or not that's correct or why are we quibbling about how accurate they were about the house they found the right house and it turned out to be the house that that this car was coming to become it's the house that they've been looking at where there's been all this activity respectfully that's just not the standard that we use in the united states it is true though that it's accurate for  is accurate there's no question that they arrive at the house that can arrive in a house where the where the confidential agents as i've seen crimes committed but we need to know whether this confidential agent is telling us accurate stuff and it turns out that these middle of the night trips to places where there's a lot of activity in the middle of the night well is accurate is that true you can say that's not the standard but is that  and gave some indication of what that house was and maybe it was a little unbelievable or not but they based on that i'd pointed to a house figured out a house and then that's the one they watched they found that it was a house stopped me where that's not in the record identified it as a house where there's a lot of night time brief traffic stop be there they said there's nothing it doesn't say that there's a lot of not not time briefing just says it identifies a lot of traffic i think the warrant says of traffic have a lot of traffic thank you and then in then not saying oh somebody's scumming but it's actually in the car and so is accurately presumably confirmed that that's where they're coming in they go to that house i would know one thing i didn't go to that house they didn't go to that house but i know go to that house so that confirms that any doubt we might have that this is the right house based on her identifying the wrong houses now evaporated has not we don't know that why did they go to that particular  house as being michael kneels house through utility records that that's what you were the wasn't there something she said she thought the number was five thirty seven or something no no she never i don't think she ever addressed the numbers i don't think it's recalling back in the record that she ever addressed the records my time is up if they're in one thousand thank you thank you both for your argument one question that i've been struggling with is i'm trying to find the last couple pages of the search warrant affidavit and i've checked on the computer in the last numbered page that i have it's page ten and i think that ends in the middle of number seventeen in the search warrant affidavit so the two of you could file and oh i see the judge so you don't need to worry about it i will weldment borrow it from him so we thank you both and i and i see mr oldham that you're appointed pursuant to the criminal justice act and we thank you for your representation of your client the case will be submitted and with  clerk call the next case