that we have this yellow light you need to keep now in it because when it comes on that means you've got two minutes to release to complete your arguments on these arguments are being recorded for the purposes of having this right in the opinions that come out of these proceedings she needs to close the microphone because if you walk around we lose your argument and find i would mention that rebuttal is for about a long and we don't expect you to bring up any new issues in r out of three c eyes and a person for c i to according to the affidavit says that he saw a delivery of controlled substance at mr take his house the problem with the affidavit in this case as we state in our brief is that the the police officer affiant on the search warrant affidavit did not divulge in the affidavit that the police officer never spoke to see i to another detective spoke to see  that's the whole problem in this case the fact that the police officer and his affidavit in support of the search warrant never informed the magistrate judge that the police officer never spoke to see eye to that it was another police officer this case is very similar to the davis case that side in our brief the davis case ninth circuit case out of one thousand nine hundred three is practically on point with the facts of our case and the davis case was in importation  similar to our case which is also a controlled substance case in the davis case the court was confronted with exactly our kind of facts the police officer put in his affidavit in support of the search warrant that he did interview the  when in fact it was another police officer who interviewed the c i the ninth circuit was very nice and forthcoming on the fact that they would say that they said look the vent trescott case teaches us that there's no problem at all with a police officer relying upon another police officers interviewing of a c i as long as the police officer affiant plates and his search warrant affidavit that that police officer didn't interview the c i a nother police officer did so in the davis case they said we would never have to reach a problem in this case if the police officer had merely stated in the affidavit he personally didn't interview the c i but another police officer did the court said that the franks case which is cited in both did makes it somehow less willful on recklessness and great question jane shelley and the davis court addressed that squarely and they said it's an intentional false that they said the police officer knew he didn't the police officer and tensional is there intact to live with and that account of statement when there was no motive for well that the davis court said we don't have to reach whether or not there is an intentional motive to lie the davis court said it's clear that the police officer affiant never interviewed c i yet in the affidavit police officer affianced said he did interview the c i the davis court clearly said we find it to be an intentional misrepresent false misrepresentation in a search warrant affidavit it's fault i should note that yes i was yes or did did did the police officer intend to mislead that the judge davis court said they didn't have to reach intent because it was very clear that it was a false misrepresentation that was intentional by the police officer with respect to the language in the misrepresentation and because that intentional misrepresentation that the davis court said that vitiates the viability of the search warrant and everything that followed from  they said that if you don't have valid statements in a search warrant then that does not allow the magistrate who decides whether or not issues were church warrant to do their job properly but i thought that the franks case that the first prong there were two prong the first one was it must show that the allegations in the affidavit were deliberately deliberate paul sued her deliberate paul thirds are made with a reckless disregard for the truth and we know it was fault but but what was it a deliberate fault good and was it reckless disregard for the truth and you say davis in and i took it says no but but the supreme court in franks versus delaware seems to second prong is met under frank's because the false statements were made with a reckless disregard for their truth and the third probably in franks is matt because the false statements were material to the evaluation of probable cause for the magistrate in issuing the warrant the davis case incorporated those three prongs from franks and said that in this particular case with places we didn't divulge just like in franks by names were made with reckless disregard for the truth and the false statements were material to the evaluation of probable cause that i answer that question all right mr judge pr the davis case also says the failure to put in the affidavit in support the search warrant that the police officer affiant was not the one that interviewed the c i but another place officer did fail to do that makes it impossible for the magistrate to evaluate the existence of probable cause and the davis case also made an important statement and it it said that the fact that probable cause she heard all the witnesses something she could make that determination as to whether whether it was intentional and reckless reckless disregard of the truth or whether it was both within the parameters of acceptability i will say judge jolly that's exactly what the ninth circuit did in davis they said we're going to remand it back so that the district court of the magistrate judge could make a determination and flesh that out it went back on the same facts as our case and davis the magistrate judge in the district court said we don't find it intentional we don't find it tiriel we don't think there's a problem that it came back up to the ninth circuit they said we disagree on the facts of the case but to be fair the judge to she never heard from any of the cia's of course because she determined that there was no reason to divulge their identifications and she never heard from person of interest for that was involved in the case so it's unclear why it was such the facts that are there were actually before would well there could be a discussion perhaps between detective just center and detective parkinson i'd be surprised but there could have been a discussion about what to put in the affidavit come like there wasn't davis however it's our position respect the judge jolly that there is enough information before this court that clearly shows that it was intentional by the police officer just like it was found  intentional in the davis case by the ninth circuit is practically on point with us although or a man it's exactly what was done in the day is kaixian and certainly ones that does it doesn't matter would have been ok because it was the officer who said a confidential informant who is reliable and given me information in the past told me it would have been ok just that it was the wrong officer who with their when is the afghan search one said he didn't speak spanish and he had to rely upon the interpretation by the other police officer the detective just cental on what was said none of that was put in the affidavit and judge pr the in the davis court the district judge magistrate judge tried to argue just that that look this wasn't a big deal a police officer heard it anyway it doesn't really matter that the police officer asked him did put in there that he's not the one that actually interviewed the c i that it was another detective and the ninth circuit sends huge and they said also that franks says that's a big problem also so i think the distinguishing factor judge prado is a detective who sent the didn't speak spanish and he relied completely on the other police officer for the interpretation of  wasn't the drug by of the c i was the day before the indictment alleged the next day april ninth but we do meet the other two prongs squarely we do say that the test going to the cia would have assisted the defense and the determination of the cause in this case and that is the probable cause to terminations what exactly happened because the police officers were not present on the day before the search warrant when the c i and person for did the by supposedly was with the appellant and so it's our position that we were not able to question the c the detective about the cia's reliability because the detective repeatedly said at the suppression hearing that he didn't know the reliability of the c i he didn't know of other than what detective just sent him they told him about in a number of unknown number of times he'd use them in the past and the other main issue on pran three is that there was no showing that c i was still being is and that there was any kind of safety issue with disclosing the effort on sea ice because detective parkinson testified that there was no indication they were still being used and he said there's no please the court i'd like to begin by talking i guess about the three prongs of frank's and i believe that in this case the defense is wanting to skip over the issue of whether it was reckless or intentionally false and just say that any time there is a statement that turns out to be untrue that it is always false intentionally false recklessly false and i would suggest to this court that if you look at judge mathis report recommendation it was adopted by the district court she applies leon good faith that the end which clearly suggests that she implicitly found that it was not intentionally or recklessly falls can you have good faith if when the policeman knows it's not true i mean how can you say it was a good place to lie is up what we're we're getting to him i mean it was he did not get the information some other policeman got the information so it's obvious the policeman unit was giving false information how can that be good but well number one i do think that this case has a little bit of greatness to it in the sense that he was present w cia too was being interviewed by the other detectives he was there and obviously he works in the gang unit the gang unit officers executed the war and he wasn't the only one there so the collective knowledge of the officers well maybe not directly applicable in this context certainly suggests that this was part of an investigation i think that if you were to take the affidavit and simply remove as you pointed out a moment ago that one little a actual observation by c i two that he saw the defendant walk out of his house holding the cocaine in hand it to the passenger in the car and so where you have a situation where the seizing the first hand information in this is not in the sense of anonymous tipster this is someone who is present t observe the facts and those facts were accurately relayed in the affidavit with the perhaps and i think there's no doubt it was imprecise i think those are the words judgment the uses and it could have been much better and obviously law enforcement are not lawyers they make mistakes that's why there's you know tens of thousands of cases talking about leon is that they make mistakes and this was a mistake but i think the question that we have to get to is was it so reckless or intentional as to prevent the application of leon good faith in this case and in my reading of the record that in fact there was probable cause throughout he sets forth the fact that they wint to the location they observed the hand to hand deliveries based on his training experience these were narcotics transactions he queried the database he determined to live there there in fact were  second corroboration was that another informant had provided information that the defendant had received a kilo of cocaine just recently and all of this suggests strongly that in this distinguishable in my mind because he was present there were some language difficulties judge matsch he says that was conducted in part or all in spanish those are difficulties nevertheless at this point in the record though i think if you look at the magistrate's report recommendation adopted by the district court that she finds that under leon that there is no abdication by the magistrate who ruled th for him to say that he got this information from a confidential informant been lucky in our department has been verified absolutely and then that would end in his in i think we really have to look at was it intentionally riklis lee false i think we can agree that it was false and there was a mistake however in this case i think that if you look at what the man distrait had before focused on the fact that the confidential informant had observed the hand to hand delivery in the car and then corroborated by the surveillance that took place one of the things that we often look at is if you take out the infected part thoughts part what do you have that's left you still have probable cause in this case today if we accept your argument where do we draw the line i mean are we going to endorse sloppy work by policeman and say oh no harm no foul he lied but we all know that gosh there was probable cause i mean if we come out with an opinion the treasurer it's ok i mean is i going to shut up signal to policeman that they can be sloppy about putting their affidavit together for a search warrant i mean where do we draw the line where we distinguish that it's ok here but you can't keep doing this but that was the whole as we went from to illinois the gates and then ultimately with leon all of these things that that is a legitimate concern is if you look at the totality of the circumstances if you allow for good faith to apply even if there were defects are you in fact condoning it and i think that this case is different in the sense that the falshood as to that technical aspect ultimately it was not untruth ultimately the defendant was observed walking out of his house with a hand full of an ounce of pokmon handing it to the passenger and so it would be different in my mind that if the fal extended to something that just was flatly not accurate in the sense that the overall thing that the magistrate would have had to relied upon to determine probable possibility although as i stated i believe that if you read the magistrate's report recommendation that by applying leon good faith i think there's a strong current in there that suggests that the implicit  that's and i think that's the strongest point here is that we have corroborating information set up it's not as if parkinson a detective parkinson simply took that one piece of information and went and got a search warrant based on here we have additional information they can goes to the issue of the recipe and reliability even absent that untruthful or lawyer there i mean or does this a fine just on his own come up with on how did this goes down this was a state case your honor oh it was a stake as it's sent into a police department intact is in a state and so we need the u s attorney's office was on the prosecution and but not prior my understanding was that the case came to us after the fact  normally as you know there is often an ongoing investigation and depending on the circumstances certainly there is review and coordination is possible but i can't say that's outside the record here but i believe that is the good faith exception and why it does not apply and what cannot apply to this case judge matsch the in her recommendation in a report determined that there were no false statements and detect apartments in search w warrant and made a medicine central but on appeal under the supreme court found that there wasn't there was insufficient probable cause to actually grant that warrant first place but they weren't going to penalize police officers for doing their job correctly so that opinion really articulate whose job it is to make probable cause determination in this whole process it's left up to the neutral police officer to carry out their work and even if the magistrate makes an error they are still allowed to do their job and go forward with an arrest and search and seizure  we come to understand that it was actually a an observed purchase an allegation of a purchase that person for we come to identify who was not mentioned in the search warrant affidavit observed walked directly from the house to vehicle with cocaine that cocaine might have been in their vehicle at one point or explained sees me in the car in their house at one point but we don't know if they're still cocaine in that house  me that someone saw cocaine and that's a lot different than what actually happened that that makes that statement thoughts a second pick could good good faith apply to that i mean he did not the informant did not she cocaine in the house buddy shot the accused walked out of the house with cocaine i mean there isn't a good place government where i you know your honor i any potential short cuts i think that officers can take because we do want to avoid the the outcome articulated and in leon in the project there in the projects where the magistrates become rubber stamps and that whole discussion i mean it's a it's a