the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court biased in had an interest which was ed worse to my client mr austin and that were should have been done to  crime victim statement alone can provide probable cause for search warrant this was what is your best case what is your home one case for your proposition that the fact that a victi case but i have cases that say acosta for example which we said on page three of our reply very talks about circumstances that would raise reasonably prudent officers inten is a question and that really gets to the nd part of our argument we're there are different reports about witnesses willingness to talk and whether or not she invoked her miranda rights i think the government's statements where you know that she makes reflected in officer different chest goes affidavit that wasn't that wasn't available or to memorandum but we would disagree with that only because if you accept our initial proposition that be relying on christopher brown was not sufficient and you have to get to the corroboration for miss phillips then it seems to me you are in a position where either she invoked her miranda rights and said nothing terms of the good faith exception to the exclusionary rule understood but he repeatedly raised a request for a hearing and while he didn't cite frank's the government's correct on that  e implicated it sufficiently enough that the district court whose opinion on this point i think should credit quander stood him to be making a frank i just wanted to touch on the other issue very briefly i know this court has ruled on a number of the post ready for cases i would just point out that the th circuit in united states versus gary  states i will begin probable cause now i think should apply in this case on the top level this individual is not an informant is a witness is a victim and as i lay out the case law on the circuit that that that testimony of a victim witness alone can be sufficient to support probable cause the argument in response is well they were in a fight and so he was biased and i think what's most important  is that was in the affidavit the magistrate was aware of his victim witness status was aware of the circumstances and made him a victim and was able to evaluate all of that in deciding whether to do whether there was or was not  cause but even if we apply the rule that we use for confidential informants i think there's enough here that there still would be probable cause under the criteria that have been set so number one there was a face to face interaction between officer d's princess and mr brown this court has said many times that is all that is something that supports credibility because it allows the officer to judge the person who's telling the making the allegations at best and or second there were statements against interest here by drug you've got a knife he threatened to kill someone those are all potentially crimes and he admitted to those as he was telling offices different cesco what happened that two is in addition credibility rd there was a specific description provided by brown of the defend residence he didn't say there were guns in the house he described where the guns were how the house was laid out and we have this court has said i know in the greenburg case where the discussion is orated by the girlfriend who owned the house who confirmed that there were two states in the house one belonged to her one along to the defense so even if the court didn't accept the government's characterization of the witness and victim role as being enough to resolve this matter when you look at the specifics of the affidavit they also check the boxes that we use to determine whether an informant statement is but  times that if you and i think when the when the court looks at the record closely or is going to see that they are already dealing with multiple crimes in the interaction that happened here in roadside and the kirst affidavit says roadside she invoked then is brought into the cruiser and one of the report says in the cruiser she made some statement but then i had the presence of god at the scene then she's brought back to the police also talks about the say now looking at the reports the other officer in their office or their peers was in there for the same and he doesn't write about the face in his report i would note that the ses only take on meaning if you interviewed if you interviewed mr brown you're talking about days in you're interested in searching the house so who's trying to figure out was there a gun on scene didn't write down anything about save save only matter if you know cesco knows all of that is the search warrant affidavit specifically says i see francesco was in the room here's all the stuff that he said and that to me is there's nothing to say that he's lying about her there's just nothing that supports that so this idea that miranda was waived in way that's true because there are multiple spots on the timeline when there were efforts made to interview the pers sure i mean i don't i don't think that saying or i think i agree that the that the judge went on and determine whether he should have a theory but as far as preservation and maybe the court said well that's enough to judge others but it but it strikes me that when you raise a friend's hearing you have to make a substantial preliminary showing that's a that's a huge part of the franks doctrine and that requires certain showing on two prongs one real evidence that something know reckless or false happened in two that it was material to the probable cause finding and frankly neither of those were really argued here it was basically if you find there was no probable cause  if you find judges no probable cause and under leon you shouldn't give them good faith because there were inconsistency is in the warrant but none of this was framed as i think it needs to be under frank make a substantial preliminary showing and that's why i argue that the claim is not preserved i do understand what the district court did which is why i certainly didn't rely entirely in my brief on plain error i went on to take on the merits but i do think it's important defendants make this issue of preservation under franks at least at the circuit court level we distinguish and find waiver in two different situations one is failure to mention an argument at all and the other is that failure to develop an argument you seem to think it's important that we require people not just to mention a hearing but to go further than out and frame for the district court the the two issues that you just outlined why is that important because when we look at  frank frank was concerned frank has two concerns want to truthfulness an affidavit the other was the regularity of after david our assumed in the in the law in that area and so there is a standard  an area showing it has to be a with evidence with back just to get in the door frank hearing so i think if you're looking for the frank hearing it is incumbent upon the defendant to set forth th a real issue of both recklessness or falsity and materiality is established it's not enough to just certain things they have to be developed to get to to qualify for a frank hearing which is different i think than other areas and if you if we look back at frank it really does talk about the two step process which has significant purposes to protecting from this coming well i can just  discovery into what the government did by asking for franks so as i understand the record here there was never a direct reference to franks there was merely a request for or a hearing and then the district court denying that and makes an assumption that he's raised a franks issue is that correct yes it raises the concept of that they were inaccurate in the affidavit as one of the you know leon which is a different doctor and right leon talked about one way  won't decide issues that were feel we presented to the district court we hold the party who was originally the issue responsible for presentation of the issue to  no to you that i understand all that and and you know but i do think it's important that we recognize what frank's it is and that defendants make these showings ok i did not base my argument on waiver and really how this court should resolve the case you thank you or no thank you thank you you can make your device this time attorney let's check please reintroduce yourself on the record incrimination statement about an informant known to the authorities but in greenberg the investigators had already observed illegal activity at the dates and times where the informant told them it would have the in terms of pranks all you have at the time you're making a franks argument or any sort of addicted to the ability to appear attacking warrant or the discovery reports and they were all attached to the emotion and i think it would be unprecedented at least i'm not aware of any case where a district judge has understood a defendant to have made a certain argument in this court finds that the district judge was wrong the defendant really didn't make that argument one just one example the defendant would always be able to seek rehearing or file a new motion  if he hasn't preserved something but when a judge understands him to have preserved it it strikes me that that really puts the defendant in a position where he won't raise it again during the district court litigation so i think for all those reasons the courts should on the record the defendant did say at one point during the interviews that he knew he was a felon but in the plea colloquy which is also included in the appendix he refers to being you know at some point having mental