suspected that they have the levy burn and wheeler had murdered jared greene that day officers gathered evidence and began to work on a probable cause affidavit with prosecutor rebecca mccoy and wheeler was arrested based on that affidavit he didn't  lawsuit alleging that the officers well it is the th amendment rights by submitting an affidavit that was untrue and that they arrested him without probable cause wheeler contents of the problem causes two issues st that the officers did not include th key witnesses statement kucing wheeler trying to hire him to get rid of grain and nd that the affidavit indicated that cadaver dogs found a body when they did not find a body when they pellets move for summary judgment based on qualified immunity the district judge show that they were not because since they were not entitled since they were dishonest in their affidavit however the district judge erred in her reading of the affidavit in lot of the testimony of the officers based on their testimony  officer or the suspect was wanted for attempted murder of sawed off shotgun they obtained a warrant for all weapons and ammunition that eventually that was held to be overbroad but the officers relied on the boss of the prosecutor and the bison that their supervisor and i had a affidavit approved by a neutral magistrate in that case because of their reliance on these people specifically the advice of the prosecutor they were entitled to qualified immunity even more on point and my opinion is the case nor the waltz county which comes out of this circuit in that case a deputy had run against the sheriff for the position of sheriff after the election the sheriff asked if she could ask the county attorney if she could fire the deputy county attorney said that she could and she did so i think it's well established in this circuit and generally that that's retaliation however the court held that it could could be seen as well within the breathing very mcchord as a public official and entitled this to share a profound immunity especially because of her reliance  is is somehow insulated because legal counsel is is involved well your honor respectfully if they would provide  lie or if they were being obviously untruthful then no that would not be qualified immunity but that's not what happened here here the officers counsel reading this statement regarding the evidence so let's let's go into some some background on the on the dogs and talk about the language of that affidavit so the detectives have been told by a retired detective that grain had been buried there not that he was the body was still there but that he had been buried there ok so that same type of boarding was used in the affidavit they took dogs out and the dogs indicated at the very area under a deer stand where they told we're told that the body was buried the dogs bark indicated what they do when they find it evidence that something was there ok so the affidavit itself says that it mentions after mention evidence and evidence that basically a body had been buried there i agree that there could have been worded better but i think it a fair reading of the officers reading which is what matters well wait a minute  really a fair reading it's complete it's incomplete and it's incomplete on its face loesser knew it was incomplete what or who was incomplete can you really just say you know it's close enough well respectfully i think the officers testimony is not that he knew it was incomplete in his affidavit the officer testified that the evidence that he was talking about in his affidavit was evidence that the dogs had barked and that's exactly what the prosecutor told him to do was that the dogs barking at that spot was evidence in and of itself and that when that affidavit st ever mentioned evidence that's what he was talking about it's  other other theory and would have been not disclosing the recantation of testimony from one of the witnesses that was being relied on for and that information was not available to the public so even though langley recanted in two thousand the officers still had reason to believe that langley was being truthful because that he provided other information that nobody knew and again in tw but the officer said that same question they didn't know so what did they do they asked the prosecutor and the perp and the prosecutor told them they didn't have to put that in there because once after the arrest for the defense team would be able to find that their discovery and use that because it was available in the case file the she agree with that statement the you just made or does she deny that she told them that they didn't have to put it in there isn't a disputed fact so the prosecutor says that she does the fact that she told them that they could put that in there is on this it was available to discovery the other the police will probably say that she said that she did not tell them to put that in there which she didn't she didn't tell them to put that in there and she didn't tell them to not put them but that in there but she did say and she stands by the fact that she said that she could put that in there and to this day in her most recent affidavit the prosecutor also says that she still believes that the that affidavit is good and that it  supports the finding of probable cause one of the things that went on in this whole thing is they work you can look at the testimony date the officers work side by side with prosecutor mccoy every day constant phone calls constant e mails they  i'm not aware of any training your honor to that effect but i do know that they testified that they can't put everything in an affidavit because it would be too long you have to that's what you're going to add a paragraph or two to this one without  overburdening the judge well your honor i'm just i'm just going to the deposition testimony that states that ok one of the officers that stated in their deposition that you have to be pointed in your affidavit and go straight just to the things that support saying that if the information about the recantation and many included my understanding is when there's an omission like this we were supposed to look at what well would the affidavit look like if the omitted information had been included and then make a judgment whether there was still probable cause and i hear you saying that the recantation information necessarily have undermined the original statement that's correct it does not undermine the original statement there are other things that langley said that he shouldn't have known without having firsthand knowledge of the investigation that would have led a neutral magistrate to to know this guy could have also been truthful whatever he said we were trying to get rid of this guy so you're saying they're still probable cause even if we put that recantation in there and so you're ours are now going to reserve the rest of my look at that in conjunction with the language that was used with evidence was recovered by ever dogs when there was no no such evidence i mean they're talking about it dog barking investigation but they're being directed in told allegedly even though the prosecutor denies that she did that she said she did not tell them what to include or take out of this this arrest affidavit case or the statute of limitations they could still be digging in draining ponds and interviewing witnesses in gatherings scintilla of evidence which could connect to suspect this trial that it does it provide probable cause shortly before committing suicide when they very well could have been scared that could definitely have led to his recantation also these things are in the affidavit there's  the statement that langley made and information about the dogs are not the only thing in that affidavit there's a it's a long after i say long it's a full page or two full pages of information  about different witnesses that had different information that point to brennan wheeler creating this affidavit still leads to probable cause and also as judge that the fact that the dogs had found evidence that body had been buried somewhere and then was no longer they are gives evidence that that body was moved which would be evidence of abuse of the corpse and i think that's where they get that information further and the testimony shows that the judge had made a comment something to the effect of that he wouldn't be offended if after he signed the warrant if they wanted up and  it in the trash i don't think the judge would have been making those comments if he would have known there was a body and that just brings us all back to the fact that the officers were not trying to mislead the judge officers we're not trying to mislead anyone and that's the whole purpose of qualified immunity that i'm a professional judgments in drafting this affidavit about what needed to go in there and in making those judgments they were a lot on the best of a prosecutor the advice of an attorney by seven attorney that had legal training that they didn't half and these officers based on nord and based on a measure schmidt should be able to rely on that advice when they draft and submit this affidavit and it's telling that  police argument didn't he didn't speak to one case and that's because the cases point to qualified immunity the cases show that these officers were trying to be truthful now the affidavit may be poorly written but they shouldn't be judged they shouldn't be liable in a civil court based on poor writing these officers had the right intentions they worked with the prosecutor the entire time they did everything that they could do to to make sure that they were following the advice of the prosecutor and trying to follow the law and they shouldn't be punished for track can't understand your argument that maybe the omissions wouldn't if the problem caused and i don't understand your argument that their intentions were perfectly appropriate why wouldn't it be appropriate to tell the judge about the recantations and tell him more clearly what happened  are and i think that the attention be to be completely transparent intelligencia everything and let the judge decide whether really still meets a probable cause rational so there's quickly run out of time but two things here so st with what the recantation this goes back to the prosecutor telling them that the judge and everyone could see the case file and know about there he can patient i don't think they were trying to hide it from him that i think that that that the judge could could see that he couldn't see it before he decided  whether to sign the warrant well i think i think that they had taken the entire fall to the judge just what the evidence points to and quickly secondly with the with the dogs i don't think they were when they wrote this i don't think they were trying to say that there were they had found a body i think they were trying to say this is exactly what happened honestly i think they were trying to get a little too legally legally as wording with it i don't i don't think they did that on purpose