it please the court my name is julie stiles again i'm be here on behalf of the appellant joe in horton and unless the court has questions about other issues i intend to focus my time today on the franks issue the district court here correctly found that there was a material omission that was made with reckless disregard about whether we mislead the magistrate judge into issuing a search warrant the issue before this court today is what the district court should have done next and under the case law in other circuits and in this circuit in its decisions in tate coakley and shorter the answer to that is clear in a case involving a material a mission under franks the district court is supposed to add in a material mission and determine if it defeats probable cause how is that is what the district court did hear the disregarded at in what the defendant submitted as here is the information that was permitted but that information concerns well there's there's two responses i want to make that number one the information that and submitted was not just to was not to establish just what the mission was a large amount of that evidence was submitted to establish the agent's reckless disregard and so certainly the evidence that the agent knew at the time that he submitted the at the david would be relevant to whether it was a negligent admission or whether it was made with reckless disregard or intentional like the  excerpted portion of the grand jury testimony and then the interview yes so there were there were exhibits that were attached and of course at the initial to even get a frank's hearing a defendant has to make a substantial showing that there wasn't that there was  misrepresentation on a mission and it was made with reckless disregard so in order to make it showing we needed to submit affidavits or other showings of proof that to even get the hearing so and we made this point very clearly in the there were numerous objections about the misuse of this information just because information is submitted to show that the agent acted with reckless disregard doesn't mean that that information should be then imported into the search warrant because to get to the other part of your question judge harrison terms of why the judge went beyond what is required under this course this court's precedent the court itself identified what the material admission was in several places and at eleven at the joint appendix eleven seventy five is just part of the judge's decision this is how she characterized the material a mission the agent and prosecutor chose not to disclose to the magistrate judge ample information suggesting that the defendants resided in entirely separate areas within their modest row home having identified what the omission was and why it was material because it would defeat probable cause for the upper floors of the house and explaining that that was made with reckless disregard that is the material mission instead the judge after two days of hearings and with the testimony and considering all this record i think was trying to sift through to figure out what the actual living arrangement was and supplied in numerous facts that were not included in the search warrant way to put it right as she just she took the thing that had been omitted and she put it in context with the sentence that comes right after it i mean it you're asking you're saying that when everybody agrees you take the information the material mission you add it into the search warrant or we're just really talking about how much of you know what kind of context you give that information when you add it in and it wouldn't be weird to say you take the first sentence but not the second sentence i mean what if we give you a hypothetical lot of the sun has set in the interview john enjoy and keep different rooms what i mean by that is that they actually share the upstairs bedroom but john also had a separate room in the basement you're saying the first sentence comes in but not the one that starts with what i mean by that and you know that weird well the problem your honor is yes it's admittedly harder when you're dealing with an omission in ability to make inferences from facts and the officer is saying i'm going to make inferences about these facts and just and assert them as if they are the unmitigated truth and yes there were there were lots of facts that were established at the hearing it wasn't just suggested that the living arrangements were separate the problem is that the judge didn't just add in the next sentence there were actually two categories of additional information that the judge supplied some of those facts refers to the first floor living area that would be the kitchen the dining and the living room that was not the only area the documents came in it was also the second floor with there was a second bedroom and an office and that the documents which a substantial number of the trial exhibits came under the same roof have access to at least the common area of the house maybe not to her bedroom but how is the officer supposed to unravel all of that i mean they've been married for what forty three years and he's interviewed them in their living room and certainly far as their mailing address and all the forms filling out the room holding themselves out as a unit and you would think that people in that kind of living arrangement would have joined access through a common  areas of the house you're on i think if there were if it agent grey was not aware of all of the information suggesting otherwise that it might be reasonable for an officer to rely on a general presumption that married couples living in the same house have access to the entire premises but that's not the situation we have here agent gray had ample evidence not just what was established that not just what the judge added into the to the search warrant but he had he had testimony from in the grand jury from two adult children there were statements from the grand daughters who had lived in the house there were records from social security administration indicating that there were separate units in the building and agent gray conceded he was aware of this information and he chose not to disclose it because he didn't believe it and that is not the standard this is not a case where an officer didn't know or made an honest mistake previously interview yes he had previously interview so that's why he was aware the agent was aware of this here mark my concern is two fold you don't want to discourage police officer from resorting to the warrant procedure in the supreme court has repeatedly failed don't make this don't make this procedure impossibly hard there's a lot of information included in this affidavit none of it untangle which members of a married couple living within the same house with a single mailbox joint billing arrangements and all the rest if you saying you have no policeman's got to decide exactly who has access to which rooms and which room might be off balance if you say you got to go far far down that trail even with all the information here that's to be a much greater intrusion on the privacy of married couples both and one under suspicion but also the one who is not under suspicion here and it wasn't any thing in the affidavit at the time that mrs made mention mrs wharton but you know this this there there are unintended consequences and you you know you are pushing them away pushing officers away from the warrant causing you pushing them into the interior of marital relations and you know what it is to that's just as offensive to the spouse who in turn anderson spouses it is to someone under suspicion to have your privacy up rooted to that extent if you say that what he what he had here which was not enough your honor financer the question the problem here is that the fourth amendment protects individuals from unreasonable searches into their home and the question is not that agent gray had the responsibility to figure this out who the the point is that he had the duty to disclose this information to the magistrate judge so that she could make a determination whether there was probable cause to search the entire house and he failed to disclose that information and he made that with reckless disregard you know the government has not say i daresay that every affidavit submitted to a magistrate judge doesn't put down the whole universe of what and officer knows i mean they just don't in this instance there was a lot of exculpatory information that wasn't it wasn't put in hand and what was put in here they have undivided utility addressed billing they have undivided cable bills and everything they don't have separate mailboxes all those  perfectly true that he represented to the magistrate judge and stablish probable cause here especially given the fact that  things you think sort of been which is the interviews of the two children one who had lived in the house in a long time this was after their mother was indicted they were instructed one case not to speak to the officer and he'd already he'd already talked to them and i said the parents live in a common area your honor i think that the court found that there was a material a mission and it was made with reckless disregard the question before this court is whether the court proceeded properly after that and i think there's a sense in which this is a little bit related putting i guess what once was under materiality which you're right that's sort of so under materiality given all of the true information in the affidavit that suggested they were living there together don't put in the context i mean might that still not add up to probable cause i don't know if that's exactly the question my colleague haven't seen very closely related so the problem is if you if you add in the statement that there was evidence suggesting that mr wharton resided in the basement of mrs not the upper two floors all that's left is the is the statement that the warden said that they had been married for forty three years and there was there were some combined electric and cable bills  primarily directed toward a situation that false information was included but when you get to the point that you know we're going to have zero and find an error with respect look at the case and in this court's decision in tate and there the facts contained in the affidavit were literally true but they were misleading because they failed to mention the fact that they only got access to the trash by committing trespass here agent gray created the misleading appearance that there were that the whartons together occupied the entire revenue residence with and he had i totally agree with you that this affidavit does create the appearance that they acted upon the residence together and to my eye i see what you mean it doesn't say they interviewed them together in the dining room but it does say they interviewed them together in the house and it's unlikely it would have been in one of the two bedrooms and they were together talking i'm sorry losing your voice are stars of the affidavit does not say they interview them together in the dining room but it does say they interview them together in the house and i just think that you are right that when you look at this affidavit through a combination of true statements it creates a very strong impression that they lived together in that house and that even if you add in well but one of the kids who hasn't been there in a long time says they have separate bedrooms there's still probably probable cause to search at least the common areas i mean even two adults living together in a house who have separate bedrooms there's going to be a lot of mixing of items so the  problem is that when you what the court did was it was by creating this reconstructed affidavit by selecting some of the information including information that was not even known to agent gray at the time but we're protecting you back to look at the just what left david was that was it was a bit submitted well the the problem is is because we know that the information was was was made it was there was misleading i don't think we can rely on just the war and if we're going to say ok the common areas would include the first floor that doesn't get us to the second floor which is precisely why these faction be presented to the magistrate judge in the first instance but there's nothing the evidence that was presented in nothing in the evidence that the judge added would get the would get them to the second floor i come back to the point if all of this the interviews and the separate and they did address a lot of times if you have a duplex or something you can have you know nineteen fifteen hundred fifteen be or you have separate mailboxes and then live in income tax returns utility bills cable bills they hold themselves out as a joint couple in the new site that perfectly true information is not sufficient they've got to go follow them what you're asking is that the officers at the investigatory stage at the investigatory stage go into the interior of a family relationship and tear up that family's privacy and when there's a perfectly reasonable person that people who've been married for forty three years together and are still living together under the same roof why i'm sorry if i could just thank you judge much so that the reason that the district court found that agent gray acted with reckless disregard was not because he failed to investigate additional information and pry into a family's marital relationship the reason it was made with reckless disregard is because he had information at the tiny draft of that affidavit from the two adult children from the two grandchildren who reside in that house for years that indicated that they were living separately under the same roof these were two witnesses that testified under oath and that they were otherwise relying on to his to father superseding complaint this was not evidence that was that was that was speculative this was in evidence that they had been a ferret out afterwards this information was known to the agent and me what was on the first formal was on the second floor and it was first of all i can't find where you say it in your brief so say it again i'll assume that you're correct but i will ferret out the to see if there is proof in the record for what you say i mean i'm talking about the actual rooms yes so there was during that during the two days of testimony there was evidence about that the following rooms on the first floor meaning the ground floor not the basement there was a kitchen and there was a dining room and the rest specific testimony about at least those two rooms his bedroom is there there are no bedrooms on the ground floor ok on the second floor of the house there is mrs wharton's bedroom there was a second bedroom that had been occupied by the granddaughters and again this was testified to in motions hearing and an office about earlier was i guess the basement where mr wharton has a separate entrance correct his bed is so that the common areas let's leave it with the what ever they have a date says but what you and i would think of as common areas living room kitchen are all on one floor with no bedrooms that's correct so anybody wants to use the kitchen in that house or go upstairs and socialize at christmas time they are going to the first floor of the house that's correct and this is common areas that's correct and this with this is part of the problem in reconstructing the affidavit because the only evidence that the court reliant on which was in evidence again that was known to agent great at the time  think to get to judge a figure tried to get this right yes but unfortunately the standard when we're in a frank so mission world is not to figure out what the truth actually was the truth is if the point is to figure out what was known to the agent at the time and what was included in the affidavit getting away from the fact i have read all the cases that you cite and all the cases that the government cited and i have not found a case where the defendant in the franks hearing puts in points to additional evidence and the district court yes can you know changes the affidavit take account of that evidence but then looks at other evidence that the defendant has pointed to and read the affidavit that with that evidence innit it have you found such and such case well i you talked about going on what the defendant proposes but that's not what the district court did here she didn't go to evidence other than evidence that you appointed i don't mean you but the defendant well your honor i respectfully disagree i think the court actually did go beyond what the defendant submitted but that's just but but the but the well issue the real issue we can find you know you talked about early in this whole dialogue that we had here you actually attached interview notes or depositions or whatever they were with the children that was the evidence that you  put that in if you had introduced it well pointed to it because again i don't think the standard is who submits it i think the standard is you're correcting the material a mission and what does that mean now that that that that arguably standard is and who submit i  mean i think that is a large part of all these cases you rely on and i think we have a very recent case from late last spring saying agreeing with you that the point of frank's hearing is not to find out what is the truth of the matter and for that reason the government is not allowed to come in and put in a lot of evidence that they should have submitted to the magistrate but didn't the government doesn't get two chances to make its case that seems to be the principle of those cases but i guess i agree with my colleague that principle at least is not implicated here so what's the problem with letting the magistrate judge when she has to reconstruct all in the district or judge when the warrant has to be kind of reconstructed to include the emitted information to give that information some context is there any other area where we would say you have to pay a lot of attention to the it precise weight and value of this information what you may not put it in context what these children meant by my kids have separate rooms you're not allowed to look at that it's just the words they had separate rooms if they clarify that what they meant by that is they have separate rooms but they share common space you can't look at that that just seems like such an unnatural way to think about the weight of evidence no you're right and i don't think that we're advocating for  such a rigid rule of the not that the problem is that the district court not just expanded to provide context but actually supplied information that was that was not included in the affidavit and some of which i don't believe agent children set in describing the living arrangement that's easier on of the the problem is and the reason why decisions like the seventh circuit decision in harris an eighth circuit and reinhold in the district court in games found the reason when when you start getting into creek constructing an stated that they live in the same house but from what he can tell his mother sleeps in the bedroom his dad sleeps in the basement you want that in the next sentences i asked if there was a separate apartment in the basement and he said they share a kitchen and common areas can that come in separate bedrooms clarifies what they mean about their living arrangement the problem is though is that that was not the only other evidence whatever was it so for so say find this stuff comes in what else did she use that she shouldn't have well it's not just what she used and what she shouldn't have the re wharton just just focusing on the shawn working for second he the results so evidence that he said that his father had a separate apartment which of course would address the shower question and that he only cooked in the kitchen during family events so because the court is deciding how to characterize the facts that are put in this is we're creating it we're creating a reconstructed affidavit and then she was deciding ok if i were reviewing this reconstructed affidavit how would i evaluate probable cause and the essence of the frank violation is that there was an omission made that they kept the magistrate judge from assessing whether there was probable cause to search the first and second floor now the exact words the judge or she could have said well he should have disclosed the fact that there was a discrepancy that there was a dispute about the occupancy and then magistrate judge gallagher in the first instance could have said well tell me more and perhaps at the end of the day the search warrant would have been granted for the first floor but the problem is because there was a there a defective warrant we shouldn't be in the business of rewriting the warrant because what we see that argument goes too far for you because you want part of it to be really reworked i mean you don't want you want  wasn't the actual the evidence that was available to agent gray at the time and in effect if the court if the district courts are allowed to reconstruct affidavits based on facts that are developed afterwards this is creating essentially a backdoor good faith exception in the  unfortunately there was information that was added that was not known to agent great the time such is where the showers were located i see i've gone way over my time so th  in this case when the court is faced with an appeal that implicates the material and mission prong of franks the court both the district court and now this panel on appeal and needs to  take note of all of the facts that were brought into the record at the franks hearing and then resolve the question of whether those facts both facts which are favorable to the government and are unfavorable to the government i still provide for an affidavit that has probable cause that creates at least a fair probability that the items that are sought in the search warrant affidavit will be found at the premises th sentially correct your honor which is that only facts known to the government at the time that the affidavit was sworn out are relevant to materiality to whether well right now absolutely the cabby honors with respect  fact that there was no frank's violation here that there was no knowing falsehood that you can't find a reckless disregard of truth he said if  given given all these facts that were included you may say well maybe the officer should have included tact a b s e but you still that still doesn't get to the point that you can say that the officer acted with reckless disregard of truth which is the lesser of of the of the stricter is knowing falshood but you still even if there was no knowing for sure and you still have to have a reckless disregard of truth and using that  acted with a reckless disregard of truth well that's nothing there's nothing reckless ballot well that's absolutely one of the points of the government advances in its brief but we go further than that we say that even if this court were to find that judge calendar work was correct in finding where is that in your brief i thought that that argument was noticeably absent in your brief so i'm interested in that well i would have thought that maybe the government would wrap itself around judge hollanders because that's the only issue that's on appeal here judge rationale but no i don't think that at all so tell me what pages we what i've missed here well  court was correct with respect to not going into her bedroom but that the district court error with respect to i mean the district court was correct in finding that there was a violation in so stopping them from going into her bedroom but in saying that there was a franks violation with respect to it but not with respect to the other evidence which is that are you i may have your honor may have mischaracterized my point i don't i'm not here to tell this court that our brief supports judge hollanders findings with respect to a disregard for entry into the bedroom but no disregard with respect to entry into other parts house that's the case we have in front of us so you're not espousing what judge you're not relying on what she did at all well if i may and i'm trying to figure out if i may your honor that we we believe that any alternative argument in your bree about why we should say she did not hear her going the other way and it would be both rulings are correct give me your argument do you have one yes any why didn't you make you don't ever reach their argument no even even if even if the judge hollanders inclusions of both fact and law are correct defendant john warden still loses because she's arguing that that judge toler didn't go far enough she's not she's not only disputing the hollanders legal conclusions but also her factual determinations which of course is disputing the and factual conclusion with respect to the to the lady's bedroom but you are well there is this presents a sort of odd scenario because of course the evidence that was at the heart of the government's affidavit was found in her bedroom but the key issue is whether you could add to the search war or not right that's the essential issue there is the said you could she she said and with respect to one of those additions they they got what they want and then they went further than she went further and said that i put all this other evidence in and so you won't come to grips with what she did which was to say that since the affidavit was incorrect to begin with i can add in this bid and then they say but it's improper to put in this other bit and you won't come to grips with that well let me let me give it a shot here are ok i'm all ears as i write as i read judge hollanders memorandum opinion she says that she needs not reach the scope of the material mission prong with respect to what may be added back in she said i don't need to reach this issues she said that for me i can deny the defendant's motion just by using the material that the defendant brought in at the hearing right but she didn't cheat she never reached the issue of whether that was all that could be brought in and i suggest to you i totally agree she's she's not reaching the question of can the government put in new evidence at the franks hearing but right so that's because you guys are arguing not only are you not limited in sort of how much of the defendant's information you can put in we can also put in bringing to light new evidence the government may put forward new evidence at the friends hearing and that should also be factored in and she says i don't have to reach out because i'm not doing that here but my understanding is that since the district court ruled we held in the case that in fact the government cannot put in new information at the franks hearing so that's all well and your  her material mission was that they occupied separate quarters but she had barely been to the house in three or four years one could say that the material in mission was that they occupied separate quarters she had barely been to the house and they shared a common a living are areas from time to time and my point is simply that it's very important that the government and the defendant be able to bring out all of the relevant context at the franks hearing and just to take one example interested where that would be and well there's there is one important dispute there and i don't want to take up too much time with it but there is an important spirit about the granddaughters the the two granddaughters essence and secure warden they testified at the franks hearing and they live together in the house and agent gray testified at the same hearing and this is at pages five seventy two to seventy six of the joint appendix is your greatest buy that he never talked to them about that subject and so our position is that that we the government did not know this information that the granddaughters provided about corroborating the separate apartment theory that we were well aware of the statements well aware of the statements but that we did not know about this information from the granddaughters and that we learned of it for the first time at the franks hearing because what happened was that the franks hearing or just prior the defense provided the government with these statements and a lot of frank can't say that that rises to the level of a reckless disregard of truth that that's that's right your honor and also that even if there had met that problem that it was not material that the inclusion of the judge calendar eventually reached the right struck the right balance and reached the right result here which was to exclude the information from the bedroom and say look i may have been some estrangement there and there was a maybe immaterial information material omission about that but that as to the common areas says i'm going to let it  simply because to put you to strip your position down you know i'm affidavit where there's no false information and there's a good bit of information included here it isn't correct there's not this officer whatever he did didn't engage in reckless disregard of truth your honor i have no complaint with that resolution by this panel to the extent that the court affirms stretch colanders i'm sure you don't thing though the our hardest thing is not coming to the bottom line but how an opinion right and that's why i was trying to get you to talk to me about the circumstances that we find ourselves in this case that i didn't find in any of the cases that you cite where they cite and that's where you have had a conclusion that there's been a material emission you've recast the affidavit which i think is what our our our case law says you put back the facts that should have been ok so you've done that and then there is a determination that in finding these new facts that were known to the agent at the time the defendant offered some other facts and is the district court supposed to look at those other facts too or is the district court not supposed to look at those facts and that's what i was hoping you  hearing that was known at the time the affidavit was written that's the that is the dividing line i still don't but i did find the language from and law says that in evaluating a probable cause would have existed if the omitted statements had been included we do not consider any additional facts the iffy and that's the government in this case testified to during the suppression hearing so whatever is going on in the second circuit i feel like this is what i think is going on this case you tell me if i'm wrong you guys have a broader position than the one adopted by the district court below which is when you do this reconstruction you may bring in not only everything the defendant presents but also everything the government presents so long as they knew it when they swore out the affidavit even though they didn't include it just assume with me for a minute that i don't think that position  and that's fine long post states the argument so now we are in this position where at best for you on materiality we're going to bring in not only the precise exculpatory sentences but i don't believe that it's appropriate for that of defense to do either of these things either to introduce evidence as an exhibit to its briefing at the franks hearing and then later ask this court to cabin consideration of those very exhibits that they introduced nor do i believe that there's any precedent in this court that would strip statements that would allow for or require a court to strip statements from statements of both of the adult children is that there was there were shared common areas and those must they were offered by the defense as exhibits and they must be part of the record and be subject to consideration by the  district court and i would just you know briefly just hit a couple of other points heard the understandably the defendant wishes to cast this as a question about whether there was probable cause that these two individuals lived in the house together or lived in separate apartments the standard before this court is to assess whether there was probable cause that the items in the search warrant would be found at the house and this is where issues of access and control are important but another issue which i haven't touched on is important which is that there was evidence that came out that was available to agent gray at the time which was known to the government that the documents that were relevant to the affidavit were received in the single mailbox and were also in joy in words possession there was evidence that she cashed multiple checks in his second false identity into her own account so even if these apartments were split then the agent still justified in seeking evidence of them from all right that's the case just on the basis of the single mailbox and the fact that the government's actually how the government found out about the second identity you're saying that the facts that were included in the affidavit correspondence in the false name his bank records from citibank and any and his employment correspondence at uptown press that all of those had a mailing address of the undivided utrecht road residence what the children where he lives and where documents that are relevant are delivered and kept i see that i've used up my time thank you very much unless the court has any further questions you i want to do very briefly touch on two points because i'm afraid i didn't make myself clear before there are two separate issues that we are advancing number one the court's additions to the search  affidavit we have an initial objection to because number one we don't think it was a fair distillation of the evidence that came out during the hearing but if the court is not persuaded by that then we think that even if even if this court thinks that the additions were appropriate based on everything that the judge heard that still would not give probable cause for anything more than the first floor and the testimony and i wanted to give the court a couple of say frank's violated with respect to going into the bedroom right well your honor i mean our position actually the motions hearing was that they shouldn't go beyond the basement with respect to documents for for john morton and again our position is that we s information to make our special frank frank show me but i can see that the court is not feeling persuaded by the court not being able to rely on defense submissions for all purposes so i wanted to move on to a secondary point that even if the court two i thought that you wanted her to put back in to the affidavit two things and i in error there your honor what you said that the date it was it was insufficient and you need to put two things back in aren't aren't aren't crucial here at least with respect to overlook common areas so i'm just not it's the the whole question is where are you likely to find the information in the in the place and and what the council says you're likely to find the information where he lives continuously and  the place where these documents were delivered i don't know where he's hidden the information i don't know where he stashed it but it's it's it's likely to be found in this home in this house now you can carry that principle too far i think if if there is a private bedroom in the agent learns about it although what i'm saying is i'm not sure that i'm not sure that the whole case bottoms out on the very particular question about who had access to which i could just address a point that i think is on the minds of all all of the panel when the court heard testimony there was there was indication that mr wharton had some access to the first floor there was testimony that he would occasionally use the kitchen when they were family get togethers there's testimony that that would then allow him access to the dining room again for family get togethers and but that's it there was no indication from from these from these two days of testimony from the occupants of the house that mr wharton was ever seen on the up stairs of the house and i wanted to refer the court to pages thirty seven and thirty eight of our brief two pages eleven sixty set sixty three no sixty