we have please the court counsel good morning your honors my name is david mullen and i was appointed to represent derek's do it stuart my point came just after he had initially signed in pled basis for the issuance of the warrant of based on probable cause or if you will whether the absence of drug evidence is evidence of the presence of such drug evidence and i just it does not record  mary of its of its of its ruling this warrant was issued in march of two thousand and seventeen out of the got county state court judge the there were two kinds of information two categories of information person was a reliable informant or the reliability was based on previous use of this informant that contrasts with earth out the brief it seems there were there were two report the first came from the department of human service with the h s a worker and employee reporting of giving a report of regulatory activity now the second one was a report again from a d h s s employee saying it concerned concerned citizen ed had said this that and the other and i thought the affidavit said that the  and then went and interviewed talk to the concerned citizen they that's my reading as well that's corroboration that is not a statement of reliability though all the officer did was talk to my point is there ought to be there on a there ought to be case law that talks about whether information from a from a governmental agent and inherent reliability in part because there is no reason for that government reporting an intergovernmental report of activity to be to be unreliable but the the agency was not stating that there was heroin and a firearm inside the bedroom inside that house that information came from the d h s s concerned citizen which is a citizen and not an employee of v h s as i read it so you're correct there were two d h s individuals and then just a citizen of the first one the first one is contributing it's contributing probable cause relevant information sure it's not it's not as if if this if it gets there's a there's a gun and drugs and in there now a is the person who's reporting with someone else said it person a typically relies on that because a caseworker d h has or they just a support staff who knew the person from the community knew the cop and therefore call the cops  is you know it's the kind it's the anonymous tip argument and my point is i don't think this is anonymous tip at all well it's not that the source is it's another regulatory agency the  specific source is not disclosed but the reviewing magistrate judge i don't think the officer obviously thought that just hearing from someone who was employed by the state was insufficiently the officer as as whether that has the same concerns as the anonymous tip in a drug case  affidavit and add to that the issuing judge had three possibly four opportunities in the indorsement to say whether the information provided to law enforcement was credible and could have added additional evidence given by the aid the officer to the officer at the time it was presented to the judge or there were three blanks for the judge to fill out saying this is credible because this was a person that had given reliable information on previous occasions or for information it's in the affidavit i find this to be really be believable or it's credible because of other information which i'm going to put here the judge left those blanks and we submit  that informants are either reliable or they're not and not having been found to be reliable we're left with the fact and it may be helpful a useful exercise when you go through the affidavit is to insert the word unreliable before informant but each opportunity and say if the if it's if it read that way and the judge didn't say it was credible and so if you read it that way can't really separate because can't reliability be phone two different ways it can be phone first because you find credibility you know with the sources you say this is a reliable source that's not this case the second is it could be found that there are just anonymous we don't even know who they are which apparently is not very reliable at that point what do you do you look to see if there are other points that corroborate and you know if there's corroboration that increases the reliability of it purely and you could be a note under the door right until the question is you take it as a whole you say i don't really care it hasn't really been argued here but even i think all the pieces fit because in that in transcript she she she doesn't go through and make all the findings point by point by point just as well in the first one you have these facts and you have without stating what the facts are and there are other facts a secondary leony put them all together and i think that's probably cause but even if there's not probable cause is protected by leon in the good faith exception why would she wrong on that point the euro has a several points there that i need to respond to number total things up well if the information there's no credibility terminations we're finding or representation even as to credibility of the informants that's a zero so it doesn't really add to the tell the story or look at what you're left with it's what the law enforcement observations are that they're evidence which is the nine year old conviction name came up in a prior investigation or when he left the house twice that morning again we're looking at a search warrant for the house we don't have any evidence that there was traffic to the house we have the individual leaving the house twice goes in meets no drugs were observed transferring hands actually look in certain search one of the people at the meeting and they found no drugs there is a radio transmission from a fellow officer that says i saw another type another one of those kind of things again no detail about whether they actually saw drugs what kind of drugs were being transferred whether money was exchanged words they were very very conclusory and so adding something endings zero to something doesn't make something any larger than it is thank you thank you counsel it's glasgow please the court helpful my name is andrea glasgow i miss united states attorney in the southern district of iowa representing the united states in today's oral argument this court should affirm the district court's ruling denying mr stuart's motion to suppress because there was a substantial basis from which the reviewing magistrate could determine that there was probable cause this is the case of an officer doing exactly what we ask an officer to do to affection effectuate a lawful search in this case deputy for a long received information that mr stewart was involved with drugs he investigated that information he followed up with the source of that information he and fellow officers went out made their own observations he drafted a warrant he had that warrant reviewed by a state prosecutor he then took that warrant drafted the war putting in his years of experience the information and experience that he has specific to drug trafficking and the common practices of those involved in drug trafficking he put in information that he had from prior investigations including mr stewart being previously named as a source of heroin in a prior investigation he included information from a prior incident in february of two thousand and seventeen just a short period of time before this march second search warrant at that time mr stewart deputy for a long follow up with that source and i think to go to one of the points part of what we need to consider here and how this is different than an anonymous source case is one of the concerns there is the ability to hold people accountable for their statements that if someone is just truly making this up if we know who this it is they can be held accountable for that and in this case deputy furlong had the ability to contact this person and did in fact have contact with this person so the concern that someone is wholly making it up without any ability to hold them responsible for that is not a concern that the furlong and fellow officers then went out made observations of mr stewart they observed him to meet with someone who known to be involved in here on distribution who was on probation for a state here on charges that individual then met with another m scuse me that person was on federal supervision that person then met with another individual known to be involved in here on distribution and use who was on state probation for heroin charges when officers approached that individual that individual had in hand here on paraphernalia including a syringe officers then follow mr stewart back to his house at a short time he leaves the house go and gage in what officers appear to be another here on distribution activity or some kind of control distribution activity he then goes to another house in rock island is in that house for only moments x at that house again two officers trained in law enforcement who have experience in narcotics distribution this activity was significant i recognize that the transcript was not provided i apologize for any part we played in that but i think judge rosa said it well  her transcript in the transcript she said the judge was entitled to read the information about the short term trafficking and what's going on based upon what she understands and knows of the drug trafficking world their significance and that kind of traffic and anyone who's been at all involved  investigating prosecuting trying cases defending cases involved in drug trafficking knows that there is significant in that kind of short term trafficking and then she goes on page twenty two they're to go ahead and say that what you still have to pull it all but truly anonymous sources can corroborate each rather and so when you have the piling on of additional information which is consistent with other information received that does start to build so while information itself might not form probable cause which would be part of why detective for one did not seek a warrant in february he's not seeking it soley based on one source but at the time at the point of march second two thousand and seventeen when you have more and more information you have officers observations your receive this information  investigation you observe the meeting with two individuals involved with heroin one of which then is immediately found with heroin paraphernalia and a syringe which would be here in perfectly in his hands the time that officers confront him that then amounts  than if you just think about one thing over here and one thing over there but that's how our view in court looks at a warrant is as a whole and just as my experiences on the trial bench should be the reality of that if in fact a person is a dealer in st quantities of heroin the fact that someone's not found in possession of the actual here when but simply the paraphernalia does that surprise you or does that with that surprise and or an officer in the in this officers position know and i think taking a look at that evidence in the lens of law enforcement experience which is what the officer in the reviewing magistrate is allowed to do that makes complete sense an amount of heroin that a user would typically use is very small here and users are not you know go to costco and b large quantities because they use to the extent that they have so whatever they have the immediately use here which is very addictive drug so for an officer who knows these things when he finds a syringe in here on paraphernalia to him that's indicative of heroin possession whether or not the actual heroin is found it because in fact many addicts just purchase heroin when they're quote heroin sec right when they're coming down in their desperate need so what do they do they use when immediately i can't remember your brief may have said something about unusual do we know one way or another for that not to be filled out i don't think the record contains information on the ordinary practice in the state of iowa i will say for any state court decisions about the significance of it being  i don't i don't think the record contains information on the practice and i don't know that there's any case law on point i think that to go to mr mullins point that there was no veracity fine or truthfulness finding or reliability finding the judge did make or about liability finding this goes back to illinois  i don't think that's fatal but i don't know whether i would court might see it differently there would be a problem with the nexus to the residents of all you have is the following those and they're well i think the o observe them coming and going from that residence so i think that in fact ties them to the residence as well and as well as the heroin overdose in february was tied to that residence as  well so again looking at the totality of the circumstances which is in fact the standard it's not the government conceding anything it's that's the standard of review for a search warrant is a tally of the circumstances looking at the totality of the circumstances and viewing this information through a lens of commonsense with the understanding of the implications and information that officers had based upon their training and experience of narcotics and foresman there certainly was a substantial basis from which the review in court could find probable cause and that determination should be given great deference if this court determines for whatever reason that there wasn't sufficient probable cause then direct the searches in title to the good faith exception outlined under leon there are only three ways in which the good faith exception would not apply the first that there was any sort of false or reckless disregard for the truth there's been no allegation about that there is no support in the record the second being repr stamping that the judge had disregarded her judicial role again there is no support for that allegation in the record the third being that it was so lacking that the officer was not reasonably relying on it when he executed it and again in this case i don't think that that could be a political in this case the warrant was reviewed by a state court prosecutor a state court judge and then ultimately upheld by the district court judge we can't say that an officer is in a better position to determine probable cause than two judges in a prosecutor excuse me two judges in a prosecutor so in this case the the officer had no reason to suspect that this more was deficient and probable cause was lacking and therefore his execution was in good faith and should be uphel no other questions i'll yield the rest of my time was there were quest for franks hearing that i didn't see that no i don't believe so your honor i don't believe there's any support or allegation in the record to suggest that there's any reason to believe there was false or misleading i think i mean the brief argues  so reckless that i think that shouldn't apply and the citation is the franks which of course usually triggers a request for a hearing but that it's still authority for what what it's cited yeah i think that that was thrown in put in there that this informant had been used for forty a rest used over seven years which is absent in this case when you add to that the judge making no determination of credibility that's why you get to the point that them nothing should apply specifically to informant information left that blank so we're left to read the mean that the informants were not credible so there is left with the other information provided by law enforcement and the question is whether node no traffic activity at the ought to be searched just the individual leaving the house twice in the morning is that rise to the level does that tip the scales enough from just a basis to a substantial basis for issuance of the w yes and no i mean to typically reliable other doing is there's nothing in there that they did the investigation found this information now they're just reporting what they heard they're just a conduit and so we're not we're not question we're not question yes yet there was no information that that d h is officer knew there were drugs in the household all he said was the dia chose work or said is that they sell heroin and their daughter tested positive and had a daughter who tested positive for opiates which in the pre sentence report indicate a first report a seventeen year old daughter lived at his residence survived a heroin overdose in february the daughter had a child who tested positive for opiates  disputed whether that daughter was writing at that household or paragraph eight of the pre sentence report or is residing with their biological mother the daughter so there's no nothing from dia just that said it was at that house officers furlong did not have the benefit of  complete the morning's arguments or i'll be in recess tel eight thirty tomorrow