me please the court joseph plot this for a public hearing klein this is an appeal from summary judgment section one thousand nine hundred three judicial deception case and i want to start by discussing the standard overview because frankly this case turns entirely on the standard of this case was decided on summary judgment as this court held in the bravo and herbie cases and the third circuit held in the reedy case at the summary judgment stage where there are two reasonable explanations for a pla construe the evidence in the light that's least favorable to my client and by doing so it makes exactly the same error the courts made at the district courts made in bravo her view and read in each of those cases  including this court and third circuit reversed a district court that interpreted the evidence in the in the in the wrong light and give me the benefit of the doubt give me a material example were  who is not a doctor insisted that rena be put on dialysis and this was a red flag because individuals don't normally insist that people get put on dialysis right this wasn't full the record shows that  the other does i see what you're saying it well at the summary judgment stage our contention is that this is not true but that even if you take what you say is true that he viewed it in the light construed the record looking at it and saying well i think gary it's evidence of gary's guilt that give me a page in mind we were you what are you reading from i'm looking at the the probable cause in this case yes all of which are being construed in the light least evil to my client for example let me let me take here the number nine dr feldman stated that when gary grief he was genuinely feeling powerful grief and what the trial judge did here is exactly the same thing the trial judge did a disappointed in reedy which was imposed a value judgement on how a person should react to a did ultimately say that even if you hadn't made the showing the court concludes and i'm looking at page eight ten that the june two thousand and eleven affidavit once cracked and supplement it would still have provided the judge with a substantial basis for finding probable cause so sure i think you can argue around the margins as the statement that but how do you get past the materiality portion well i guess let me let talk about each of them separately do you want to talk about the june or you want for the july two thousand and eleven warrant do you want talk about the august two thousand and nine let's argue when you were at the august ok let's talk about august two thousand and nine the entire theory behind this crime is that gary allegedly conspired with dr metzger to obtain percodan he then administered a percodan overdose to his wife he then covered up this crime by putting reno on dialysis and preventing an autopsy and then he profited from the crime by forging a caucus will to the will that's the entire through the affidavit every single one of those facts is false and proven false in the record first especially in the record viewed in the light most favorable to my client first let's talk it's the very percodan that gary is supposed to be used to administer the overdose to his wife and it didn't happen dr feldman told chill soon in an interview a few days before before they didn't see any bottle of percodan at the hospital in ren and ask what i want to know this fact let's talk about the second fact right the entire theory of the affidavit august two thousand i offer david is that rhea died from a perk an overdose but the affidavit conceals and obscures the highly came back negative so the bottom line is that they knew conclusively from these three separate negative tests there was no percodan in her body and so if you're the magistrate signing off on this search warrant don't you want to know that this theory what's left is what's left in the f affidavit to the should to show probable cause right exactly and the answer to that question is clearly no and let me do that i'll do that very present at the hospital right his presence at the hospital and his history of prescription irregularities is irrelevant because one there's no evidence rena died from a drug overdose to dr metzger is no evidence that dr mr rowe prescriptions for gary or rena and three there's an innocent explanation and this goes to the reedy point that i made earlier about you have to view the evidence in the most terrible like to the plaintiff there's an innocent explanation for him being there he's a doctor for gary he knows the family he stopped by to share his condolences all right let me let me let me see if i can short circuit this because you've only got under four minutes i know as i see it what's left is that there was an indication or a threat  that he was controlling and always put her down they had a bad marriage she was she can divorce from gary she was afraid and it had had actually told people she was afraid that gary knew he was very angry when her medications got removed from his home after her death dr metzger who is known to be a very loose prescription writer with a patient who tied up an overdose came to the hospital the night she died julian we'll see forged anita julian dr feldman said kerry didn't want an autopsy ok and there is there anything among the list of things like that that should also have been out i think that there are some things on that list that should be out about the autopsy and and the fourth and i think there's another major point which is the motive to lie the affidavit relies almost entirely on the statements of rena's mother julie and her for every single one of those things and there is really material points i mean that the people who are providing this information want to see gary go to jail so they can take custody of his children but your point though w once you take out the main theories right now and that's what we're saying i think to some extent you are not focusing on what i think my colleagues and i are on the same page in terms of focusing on let's give you all that let's throw out for the sake of argument all of the things that you claim should have been made it what's left are certain set of facts and if we look at those facts and they still provide a substantial basis for pop will cost so that the warrants would have been issued anyway i have lose correct that that's the correct framework that we're looking for believes that then i think that's true what i'm saying is i think if you look at each of these facts each of these there's nine from the second warrant and six from the first each of these  morning on this net please the court lowest go back for a pelleas i think that it's important to point out at least from my perspective that the standard of review that mr kline is advocating in this case is a departure from established ninth circuit rule that the standard in a in a typical judicial deception case is usually stated by the court as a two part test but in practice it's really a three part test and the first part of the t to the motion for summary judgment not conjecture and speculation and later appeal briefs the court has to construe the admissible evidence in the light most favorable to the nonmoving party the list in cases it is a good example of that where there was a dispute about whether or not there was a for there was a for sale sign out in front of a property where an officer was getting a warrant to search that probably the officer admitted that he drove by the property a few days before he wrote the application for the warrant any he saw the for sale sign but didn't put that in the war application the homeowners submitted admissible evidence in opposition to the motion for summary judgment that said there was a sold sign on that on that sign so because there was a dispute in the evidence as to whether or not there was a sold sign the court accepted the plaintiff's allegation evidence as true and for purposes of then doing the materiality analysis assumed that there was a sole signed then you get to the materiality test which is the second step assuming that the plaintiff met his initial burden of showing through substantial evidence that there was a false statement in the affidavit or that there same standard that judges and magistrates all over the country use to determine except perhaps in the third circuit used to determine whether there's probable cause you look at all of the circumstances identified in the in the warrant application and you determine whether there's a fair probability that evidence of the crime might be found at the location that's going to be searched that's an objective standard you do not assume you know what the issue you're not really i'm not arguing here but but i don't think there really construe all the facts against against the police officer that's exactly my point i agree with you one hundred percent mr kline is advocating that in that analysis the magistrate has to construe all the facts in favor of the party against reviewed that's absolutely correct your honor and because that's a that's a question of law that's the point where mr kline wants the court to look at what's left in the affidavit and say well was there in an innocent explanation for that for example his behavior at the hospital and his behavior at the at the funeral there isn't he didn't present any evidence in opposition to the motion for summary judgment that he didn't in fact engage in the behavior that was reported to detective chills and and reflected in the affidavit so there's no dispute as to whether or not that behavior occurred what he wants the court to do is then say when the court is addressing the materiality standard to assume that perhaps there's an innocent explanation for that and i would submit that if that's the standard then very few after very few warrants are going to be issued just hypothetically you have a robbery at a convenience store and you have a witness who places a suspect at the convenience store within minutes of the robbery if there is if the magistrate considering whether or not issue that warrant has to assume that there's an innocent explanation for the suspect being there and then right out of the war an application anything that has an innocent explanation that eye witness account or that eye witness testimony of the witness of the subject being at the convenience store minutes before the robbery goes out and it doesn't it doesn't play into the probable cause analysis and not support probable cause then there is then then the conclusion is that well the material that was taken out or that was a that was improperly omitted was material then you get to what is in essence the third step of the judicial deception analysis and that is did the plaintiffs submit substantial evidence of intentional misrepresentation or deliberate indifference to deliberate disregard to the truth and i think that the district court correctly found in this case that mr kline failed at all three of those levels he for the most part did not present any competent evidence that called into question the truth of any of the statements in the allegation the one notable no no drugs so that was an accurate representation of the fact that in fact percodan wasn't found and he also included a list of the prescriptions that were taken from the klein home by rena innocent explanation in the materiality analysis and that that can't be done with regard to the evidence of whether or not there was intentional misrepresentation or conscious disregard for the truth with regard to the testing for example my calling indicated that the affidavit him materially misrepresented that there was in fact no percodan found i don't think that's the case that the affidavit actually said testing on bio was negative but in any event the only record that the evidence establishes that dr chills that detective chosen had at the time was the investigative report from the coroner's office there is absolutely no evidence that he had the medical reports when he wrote the august two thousand and nine affidavit he can't be can't be intentionally kept intentionally misrepresent something that he doesn't have if he doesn't have the information he can't intentionally misrepresent that information to the court and he can't be deliberately indifferent to the truth there is no legal obligation that a police officer complete an investigation before asking for a search warrant once probable a police officer is within his right to go ask for it for a search warrant that will help the progress the investigation and that's exactly what was done in this case in less there are any other questions i don't have anything else to add no questions thank you very much the argument let's put a minute on the clock encourage the court i refer the court to those decisions but just i guess the big picture point here this is a search warrant in a murder investigation where there is no medical evidence whatsoever of foul play and all of the medical itself not be sufficient i think in total the question is whether it's sufficient that think that that's a suspicious cost purposes but we understand your argument we i think we have it well in hand thank you to both sides of the