arrested he was charged with very serious criminal conduct and and he was removed from school the question that we have today or the question that we would see as a squared to to address is the concept of probable cause within the concept in the context of a search warrant and this case about no police officers conducted a fairly thorough investigation fairly quickly they had during the course of that investigation gather a number the i'll call first player messing around that they were doing hitting each other etc if then recounts would happen privately in the room the witness statements is that you talk about seem to be consistent with those two accounts disclose that there was a source play and there was this private section that none of these other individuals observed and that there after that was the reaction to what occurred in the room when in the aftermath of what occurred in the room so if you only focus on that last piece the only real i'll use your word sculptor and i don't know whether it is or not a difference of account is the description of a coming out of the complainant laughing and to the plaintiff was was perhaps as little as a minute i have a little trouble with with with with you saying viewing the evidence in the light most favorable to mr dempsey in the context of the officers making a finding  probable probable cause it seems to me the issue is a serious dispute as to the as to what witnesses said some witnesses have the time up to ten minutes alone why wouldn't it be the test that what would it reasonable officer consider at that point that there was the officer has no obligation to draw inferences in favor of mr dempsey in terms of making  determination about what to write to present to the judge and i think that's a fair statement roger obviously the police officer does have some discretion to determine what she is going to to resign or not that as one to ten minutes not say we were going to drive the inference in favor of mr dempsey that it was his littlest one minute the question is what would a reasonable judge what would a judge consider could be the significance of that one  between those two in the case law obviously a police officer in determining whether there's probable cause or not has to determine whether there are fair call ability criminal conduct as a foot based upon the evidence that not and that certain stance magistrate has to be presented with all the facts known to the police officer or at least other material facts under the case law as we move from that probable cause determination to the litigation of this matter the severe consequences you read and acknowledging that there are times when police officers i make mistakes i why isn't that the root probable cause standard he tried to get away from her and she was an aggressor so this is not a case where you have a victim saying something happened and no other evidence you have lots of other evidence the questions the credibility the  if the officer did not have knowledge of the statement then that would that would not be a reckless admission however there are a lot of other statements that are consistent with concerning the conduct between the two and the fact that her there is agreement that there was a period of time when they were alone in in the dorm room there's a period of time with them when no one else was in the room with them now ever and the alleged victim says it occurred from being playful to being an assau prosecute somebody and to get a warrant an arrest warrant for that person but as we look back on the reconstructed affidavit and except at least all of the statements were known to the officer were they were alone you're much less with all the corroboration here i could give rise to probable cause because the probable cause determination requires a credibility of the truth of determination of the witness and all the evidence other is presented undermines witnesses credibility it also explains the facts and or non criminal way reading all of this information together does not create a third probability the criminal conduct was a may please the court my name is james keller and i represent the at least in this matter the coup or has touched on that core issue and really the only issue on appeal in this case which is was there sufficient probable cause even with the allegedly exculpatory information included in the affidavit this did the district court commit reversible error in not reconstructing the affidavit with the inclusion of the alleged exculpatory information your honor my belief was that judge brain did reconstruct the affidavit he states in his opinion it's my job to reconstruct the f o b bit with this information included and then he walks through all of that information and states with this information included i still find that no reasonable officer would find a lack of progress against this judge would i what i would do is i would actually have i would rewrite the affidavit now include that exculpatory information was that done here that was not literally done here although interesting this question looking through the case that it appears that in some cases the district court literally reconstruct the affidavit much as mr dempsey has in his brief in other cases it does not in fact in some cases the third circuit having decided that there should have been a reconstruction talks about the factors that would have been in the  by the wrists and you can see in the record which we produced the supplemental appendix in color bruising to her wrist where she says that she was pinched and struck in the breast and we of the supplemental appendix bruising to her breast where she says i was injured or words in my butt and bruising in my butt and there picture showing bruising to her but so that's the conduct that she says happened in the dorm room alone which is supported by pictures taken at the hospital but on top of that sort of this criminal conduct in the room there was a simple soul there was harassment there was unlawful restraint because she said both times that he was holding down my hands and the second time when asked more precisely she says he pinned me down and i felt like i couldn't get up and we thought that's false imprisonment she also said both times the notion that her story is change your honor is just not the case the first time she was interviewed by a train investigator on september fifth she said that he had me pinned down and he was hard or my language but that's what she said and getting off that later she specifies when he asked me where did and there was also an assault in the hallway because even some of the witnesses that mr dempsey cites to confirm that the last thing that happened in the hallway was really dempsey tackling kelly from behind knocking her to the ground and causing kelly these injuries or bruises and marks to her face holders and arms that those injuries according to her account and the witnesses is inconsistent with those are things that took place in the hallway i mean there are other charge assault complaint was phrased as your honour's pointed out which relates to the facial bruising has to be tied to conduct that occurred in the hallway because that's where the facial bruising occurred however where the it seems that the witness accounts would support read read theory that he was acting in self defense were at a minimum that it was accidental rather than i her explanation of what happened but she tackled me not me down based on reid's apologies after the fact that he's sorry he did that but it got out of hand is she ok based on the facial bruising the records confirming facial bruising the photographs confirming facial bruising so i believe your honor even if those which has been found to be exculpatory statements were included and we were just talking about what happened in the hallway reckless and the written statements when they're brought back in as well as reid's own statement provide support for the idea that she was being aggressive with him and the he was acting in self this reconstructed affidavit and the serial statements that were recklessly and you're on it would be my position that we do know because there would still be a fair probability of evidence from kelly from some of the statements indicating that this was intentional that this was a continuance of what started in the room so you would have those statements but then the question is would an officer considering all that to the eyewitnesses said that the guy who did it was six foot three to six foot five and wilson's five foot ten another witness said i saw wilson in a different place at the time of the offense a third eye witness could not identify wilson in  considered except a tory and should it have been included in the affidavit which judge brain said yes it should have been so let's say those statements are included in the affidavit and before the magistrate there still kelly's story of what happened which was this was the continuation of an assault and i was fighting him because i wanted him to get away from me he was assaulting me i thought he tried to rape me you have for a media statement immediately after this and she talks to her roommate and says reid tried to take advantage of me he was aroused she tells the ari something different than kelly does kelly in terms of saying she doesn't want to file a report that they were just playing and they got out ahead and she wants it to be over to write up a report she knows and this evidence is in the record i've got a field hockey game tomorrow i'm going to get in trouble with my coach because i'm not supposed to be training i don't know i don't know what just happened i don't know how to process this so you know circumstances and including that as judge brinn said he did when we reconstructed the affidavit it makes complete sense because you have a victim someone who believes she was a victim or about to be a victim of sexual assault  her from her description from the description she gave to a roommate mediately after the fact immediately after the fact believe she was fighting for her safety and is confronted by a door a at two thirty in the morning and just wants to go to bed i still think  that under the totality of the circumstances no reasonable juror could determine that a reasonable officer under these circumstances would have found a lack of probable cause so yep that this from what the juror what would a reasonable juror think that a reasonable officer would do and what a reasonable officer presented with evidence from kelley stefana with his own statements present with the pictures that i've shown to the court presented with a room a statement immediately after the fact presented with the hospital record determined that there was a lack of probable cause which only requires a fair probability and i believe judge brinn got it right there is a point in the opinion where the district word says that there can be no liability on the part of the arresting officer and mass no reasonably competent officer would conclude that probable cause existed that that may be the right standard for qualified immunity doesn't that set the bar  actually crashed in the affidavit while it happened sometimes if you look at the cases of the district court level when the thirty rather it does not happen every time so i think judge brinn did perform a reconstruction i think he did state the appropriate standards for probable conclude that there was not probable cause that that may well be the case but don't need to decide that no reasonable to you or i could find the lack of probable cause that that's very different than saying it understand that you say this case is about disputed facts but we have all the witness statements direction is what what information was presented to the officers and we have that we don't have any we have a dispute about what was presented to the officers don't have a dispute as to what was presented to the officers and we know that none of this information was presented to the magistrate right the question is what does this evidence need the facts were not present they create to difference this scenarios as to what happened somebody a finder of fact has to make a credibility determination as to who's to leave and who's not believable context the officers not required to do that it's about whether the officer should have included this information doesn't have to make my shooting and then if i case that says he needed to make a credibility determined the credibility determination needed to be made for probable cause to exist for the us police officer to arrive the magistrate of the opportunity to make that credibility determination by not presenting that credibility to the officer that information to the officer with all this information that  upset and it's our position that only a jury can resolve should we be sending this back to the district court for purposes of doing a reconstruction an affidavit so now you've got your version of the reconstructed affidavit i don't necessarily agree with your version of the reconstructed affidavit because maybe some of the uncalled tory information that was obtained from other witnesses should have been included as well with the affidavit media everything you consider to be