inception and to your honor's if we could distill appellants there you have this case and a sentence or two i think it could be found on joint appendix page criminal investigation against the power based on charges and allegations that were largely fictional and from the beginning this investigation was done with such knowledge and without any lawful factual predicate and this claim that we make it has to be reviewed on its face i believe it is objectively viable as fundamental and alternately as fatal to the district court's granting a summary judgment as perhaps the underlying bases for reaching that conclusion the timing is premature had we completed a ordinary discovery procedure and the court reaches that same conclusion perhaps we're having a different discussion alternately our claim is twofold and it is somewhat of a literal and figurative overreach so on one hand you have police officers known only crossing boundaries that boundaries by their basic definition are objective we know so i think it would be fair to conclude that these officers have actual or constructive knowledge of the territory palette he or the jurisdiction in which they're paid trained authorized to lawfully practice so we have an overreach of a breaking of the rules that is objective and undeniable some words like malice or something so now that that was my point i didn't quite understand how that those concepts together thank you and your honor even if that did not occur so even if this arrest occurred within lawful boundaries our theory it was nonetheless made without any actual facts and we used the word fiction quite frequently throughout the film change in the or no no no no no answer my question is your claim of fiction i'm trying to understand what your argument is both drug have been i haven't been able to understand it is fiction as to both how is it court there are legal means that that can be permissible so it's not fatal her say or on its face but rather it requires a court nation between city officers a pelleas in this case county sheriff's deputies or perhaps a state officer such as the maryland state police there is a factual premise that's necessary an order to validate the crossing of the border and our contention is those facts which were used to resuscitate or a ballot date or to somehow make and this case we have the opposite where we have a judicial no trying no i dissent in it i thought the state court action indicated this was an issue jurisdictional and therefore in that it create police action that's correct judge so component is out of i don't i don't really understand you are you on the first one your argument first and a i think i think we understand it that the court said and that the government may be stuck but the fact they didn't appeal it that it was may be a question of was it clearly established that these officers couldn't do what they did in the context about immunity that may be on the table but i want to talk about your second claim and your second claim is a constitutional violation of what the fourth amendment structure you talk about terms of motivation and intent i don't think motivation and intent matter if there's a basis for probable cause you agree with me i think i objective standard but right i'm saying if there's objective facts to support probable cause if the officers hated your client if they despised him just on a personal level that doesn't make out a constitutional to indicate there are facts other than just saying they're facts you have to give the court something operate oh i now walk through and try to quite frankly see if i can make the case for you the one thing that i went to was o which preceded the arrest warrants the search warrant factually is that somebody indicated to the police that your client who really had the trailer then the police say they went to the landlord and he said yes your client paid him up that case four hundred fifty dollars a month if you want to review that part which by the way seems sufficient if this buys or that trail even if not including your client that would be wait wait but you haven't read it you just said you don't agree with the facts you don't give any specific facts my point is there were facts that were available to you or a discovery or anything you you but you made no effort to do that and you caption  talked about motivation and intent which are not really things that matter in a probable cause case you cite to another case in which intent motivation do matter but intent and motivation are you is that what you're disagreeing with no of course not your honor and we know full well that qualified immunity is an objective standard it's what a reasonable officer i wasn't really talking about qualified immunity i was still  false we should be entitled to an ordinary discovery process in order to get there and to say that we have the burden of doing so previous coverage when all we have at our disposal is a criminal case where we receive discovery from the state in response to the narrow issues involved in the criminal case that's a chilling ability to prove our claim preterist poverty when we set forth under oath that we'd like to obtain evidence that is related to the motives and the conduct as a matter of fact of these officers and i'm not a lot but why does it matter i  it's an objective standard but in a deck to stand in a police officer knows that they can not take something that never really happened quick sample under control this is hypothetical you can't say we had a control and that was the basis person came to them and said i know about this person so i mean when you when you analyze it get to desegregate it what part of it would destroy even a reasonable officer even believing that there's probable ca far off right now are saying that on its face if you're doing a paper an objective paper challenge to the application for probable cause if you if you read those words if you're saying these words or are divine that your time was paying rent for that trailer you did you deny that four hundred fifty dollars a month he was paying rent for that trailer gone are ok and do you  investigated and so at least a drug sale at that trailer law you just said that's enough for a search warrant so why does anything else said in the affidavit matter to the warrant if it's law on somebody making a misstatement you know in a in an application for warning what we normally do elise and that application we excise the lie all the untruth or whatever you want to call it and then we assess whether or not there's still probable enough for probable cause to do that in motion to suppress a lot not a lot but we do it i'm trying to make the same analogy it seems to me certainly on the motion i mean on the search will want to at least least on ben i don't i don't see where there's any constitutional violation of any sort there may be a state violation of some kind of defamation or slander or false arrest or something like that but i don't want to stand how that makes  argument anywhere that the information in the ward isn't timely they make the argument that the information of the warrant has nothing to do with mr neil and but my point was i try to get my question up and i challenge that mr neeld owned a trade or at least it seems to me that that might be probable cause for an arrest doesn't mean he did it it just means probable cause i think and if that's the case where i don't understand where your argument is i understand you think the officer didn't tell the truth about other things and maybe they did or didn't but i just don't understand how that how that is a problem if in fact there's probable cause which i think detective's failure to comply fully with the notice requirement imposed by section five dash eight zero two eight line of the criminal law article in other words they did not express lee notify the sheriff in this case they were going with the deputy share the deputy sheriff it's undisputed notified her supervisor and it was also brought out below that the state's attorney had been biased by the detectives up their investigation however the circuit court and applying what it deemed to be a hard law to construe because there that we have in this case that they did x outside the jurisdiction of state law isn't that correct it is correct they acted outside of the political boundary  you so how do you defend that qualified immunity i take it yes your honor ok so you can say that it it was no law that clearly established they couldn't do it the way they did it so as far as constitutional violation it may have been state of violation but as far as a constitutional violation there was no clear law it wasn't clearly established that in doing that that which you accept by no appeal on what decision was a state court you still say qualified immunity is that right absolutely because there is outer david of mr neil or his counsel as to what specific facts they intended to move forward with this coverage with judge bennett in reviewing the complaint found that they had not even come remotely close to the pleading threshold of the kind of reckless callous falsity needed under a delaware versus franks search warrant analysis so he deemed that didn't even come to the threshold that you would need to get additional time for discovery because what else do you think they could i should have said in those filings oh your honor i do agree with the beginning that they did not meet the threshold of fifty sixty they should needed to come forward under the franks analysis with specific evidence of the falsity of the allegations made by the is that literally you would read rule fifty sixty out of the existence if the plaintiff's burden were simply met by they didn't tell the truth when you're dealing with issues of qualified needed to provide to judge bennett in this case where the specific false allegations were in the affidavit they've failed to do that and basically under franks with decided was that based on the affidavit for the search warrant the affidavits presented by the detectives in this case that the plaintiffs had not raised any dispute as to those facts so it was undisputed that they had contact with an informant it was under speeded that mr kneale basically ran it the trailer or drugs transactions were taking place it was undisputed that that at least a drug transaction undercover otherwise occurred at that trailer would that be end of four search warrant for that trail yes now if it's undisputed take him my hypothetical but i think establish probable cause to arrest him that there are drug transactions going on at his trailer i think that would be arguable a very close call my if i were the issuing drive judge for a search warrant i would say that there was sufficient probable cause if these transactions had been taking place over a reasonable period of time and probably numerous individuals and i think that's certainly reflected in the affidavit here that you could almost presume constructive knowledge on the part of the individual who is known to live in and frequently rant and rave for the residents that there's sufficient probable cause and so again even with legals basically self serving denials of criminal liability as far as the officers civil liability there was more than ample probable cause and even if you strip down the affidavit that warrant was issued pursuant to a district court's determination probable cause and therefore no violation of the fourth i know that but he but he claims that the that information given to the judicial officer  falls but he said what i was trying to do i was just trying to get to some least common denominator which is the affidavit indicates i think i know the record that investigators went to the owner of the trailer and said who rich that trailer from your career and he said neal pays me four hundred fifty dollars a month correct it seems to me that is an objective fact that i've been focusing on that you could go to and you could have an affidavi from that guy the landlord i don't remember his name or her name you know say they never contacted me i never told anybody absolutely or or even if you didn't do then you could follow an affidavit saying i've talked to him and he did not talk to police now that looks like your state but it could be reducible to admissibility something like that only a very objective fact would be something you could put in the record for the court yes your honor you're correct and the identity of the identity of the informant was known so she could have been approached by neal and his counsel basically saying did they have these discussions with you did they meet with you at this claim in this case back to the the jurisdictional issue certainly as the court knows we raised the defense of qualified immunity because interestingly after all of these years there really is no decision of the supreme court or of this court or really any other circuit ross versus naff out of b and circuit aside because that has been minimized determine objective reasonable sum to the fourth amendment otherwise you'd have fifty different versions of the fourth amendment fifty different versions of what is reasonable under the fourth amendment the officers in this case actively pursued with two words rights the search warrant was executed by them in an adjacent political subdivision with the same mailing address as their political subdivision and it was done in the presence of state police based in somerset county who have jurisdiction throughout the entire state the arrest warrant was  notification in a statute that is designed to expand police jurisdiction not constrict but to a given if you start with the you're stuck with the fact in this case i think that they violated that statute they did not with that the circuit court came to that conclusion because there was no dispute that they had not notified the sh they believe that by notifying the deputy and i got there about that but i don't know why are you talking about that because you didn't appeal that so you you then desta the situation you're stuck with it was a violation of that i don't know why you are going about what that means that it was a close call and it was a technical violation it was a violation i think don't you have to argue on the other side that just one clearly established don't i that i let me that this was a criminal prosecution and bombing the state of maryland i speak on behalf of the officers as offense counsel and their civil suit if i had been in the circuit court i would have made the same arguments that the state made where i believe the distinction is and i think judge should you are absolutely right that simply because they violated state law that was a ruling the state  appeal doesn't mean that they violated the fourth amendment and no case at any level other than neff out of the tenth circuit which again dealt with a state office going on to a federal jurisdiction not basically adjacent state political subdivisions so certainly are clearly established along we have when we have to win because there is no case no case holding that state law is determinative of the reasonable as in probable cause standard cun order i'm still concerned about the threat of that formulation yes because qualified immunity is supposed to take place at the appropriate level focused on the expert jurisdictional nature of the problem here because i'm not sure i would be willing to say broadly that or do we have to get as far as any violation of the state we always look to the historical and seedings of the fourth amendment was this something that was allowed at the time the fourth amendment became law certainly one argument would absolutely you're talking about common low in seventeen seventy five six or something we're just asking under these facts it wasn't established that mace qualified immunity oh absolutely absolutely when you're dealing with i see your point and i agree with you that qualified immunity on the jurisdictional issue is clear the law concerning affidavits and reasonable and probable cause and the construction  what even taking on their best day the appellant's would say is false there is still the skeletal outline of probable cause to justify the issuance of that warrant that is not a qualified immunity ns a given to the nonmoving party are correct now what what fact you say they conceded oh i think that we're talking not about the allegations but in their affidavit  requesting discovery under fifty sixty there is no evidentiary challenge to the fact that mr neil rented this residence that he paid for it but this is not a conspiracy case  there's something in the middle that's missing or complaint and trial summary judgment all right and a summary judgment all facts have to be undisputed material facts that you as a matter of law when and i'm saying that they're saying that that didn't happen the base of their theory is that basically you go or you believe government that there was some the ferias history with this person as i believe was said and you want to wait to get into the are those not factual dispute issues that are in dispute just don't relate to probable cause if that's true would you agree if that is true and you can't get probable cause but a reasonable of objective analysis if in fact ed's point again we proceeded under rule fifty six you know we laid all of our evidentiary facts out in the property if they wanted to come forth in challenging those that the information from the informant wasn't disputes have to be about material facts yes and what's a party put some real judgment in play the party resisting summary judgment is compelled to come forward with more than just of auto auto was i mean it means that you simply cannot come into a federal court in the face of not properly supported summary judgment record and say well here are the allegations of our complaint we need to scarborough where the circuit court generally is going to say that's not a problem go ahead and proceed in the discovery these issues dealing immunity have be resolved at the earliest date of politicalization that  so we place the record before the court if they really thought there was an issue as to the war they had every opportunity to identify to the court to judge bennett the informant is going to say otherwise ames is going to say otherwise white is going to say otherwise and on and on they didn't do that and this court shouldn't be in the position of excusing what i w baby they told it wasn't true but instead that's what you have you have loved to to say i'm going to take a deposition i agree with judge duncan that's what you normally have unlike title seven where you have a structure  that you agree you fully have a chance you haven't produced any about it through the power of the court to the close them but here you can't be will cross the here when you don't give them the tools and then come back say you don't know furrows in the done during the entire criminal process but well if that kind of evidence was developed in that case it certainly wasn't brought forward but given the lapse of time in our s had every opportunity every opportunity to do that and didn't do it instead saying basically simply freedom pleading not good enough under rule fifty six and w in my opinion without a doubt this is not a personality you know we're not it's not a beauty pageant now taking the the rule of thumb and i think what the lower court said here is there is a structure in place they have come forward with a record you have an opportunity you didn't take it now i have to make a determination based on that record and that record shows there is no material you knew genuine dispute as to any material track and that as far as the other issue there simply is no clearly established law even when the officer did file a tip of the fourth amendment it i know i've extended myself in the initial presentation but assuming that i do a few points of the lecture address and first of all we're looking at not just the search warrant but rather the arrest itself so according to appellant you have the search warrant that yielded nothing and then with a search warrant that yoda nothing you have  you could sort of focus a little yes your honor one of the central issues throughout the criminal case as far as what it was of a telephone conversation and which one of the arresting officers testified that he heard through independent third parties mobile phone the voice of mr nail and in that correspondence mr nail was allegedly brokering a drug transaction what mr neil has testified under oath is that he has not been trafficking or selling drugs in any way at any relevant time and to go  along that general path is it's very very difficult based on the facts that we have at our disposal or reasonably could get at the time this pretty discovery motion was filed to say that in any different way that that simply was not made i do not sell drugs it could not have transferred it could not have been me during the drug deal because i am not selling drugs i'm living lawfully outside your municipal limits bothering no one doing nothing that should cause q to make that conclusion we simply have requested should anyone including the federal district court want more color to that story the opportunity to take these gentlemen's depositions get their statements under oath to learn what they were thinking whether this happened or whether or not we had no opportunity to do so their experiences in this regard are in their exclusive possession there is nothing that we could have done at the criminal to us because summary judgment was granted pretty discovery so to say that somehow we could go out and get something that was in their exclusive possession the entire time create discovery is simply not appropriate as it advantage the officers that were in their exclusive possession that were so in the criminal case in the criminal case as indicated to my colleague by my colleague and in very unique clear early in the ordinary state criminal court process proper it isn't often that a motion to dismiss is granted in a criminal case so you don't have the natural gestation cycle of testimony under which ordinarily would occur we would have but which you are which you said in your filings with the district court in opposition to summary judgment this is followed by you in this case deals primarily with the issues of intent and you wanted to get information on just wasn't relevant the response to that your honor i think is we testify that the facts are inaccurate that it didn't happen there are facts in exclusive possession of intent in malice don't matter i want a fourth amendment probable cause determination and so when the court looks at that you say that's what and i did the same thing all it did in a setting want to talk about intent and motive i get what you general view is that these officers made up a story about you but that doesn't go to the question their motivations don't go to whether or not there was another evidence presented so there's not a fourth amendment violation and i completely agree with your honor that in the context of probable cause for subjective intent it's not appropriate to make that challenge but i would also argue that it is appropriate officers not these individual officers that's what qualified immunity is an objective officer not these officers so i don't see it matters there either well in response i mean as my coll that you have a longe that may be something less than clear and you have boundary lines that are going to be afforded deference when considering whether or not that violation is grounds for fourth amendment