case eighteen dash five two five seven united states of america versus nicky ard argument argument not to exceed fifteen minutes per side mr bell you may proceed for the ap morning may please the court my name is david bell and i represent the appellant nikky or in this case at this time i would like to ask for two minutes for a battle time you are so sick case about the power of law enforcement to avoid the requirement of the fourth amendment that a search be reasonable this court should reverse this case grant the motion to suppress and remanded to the district court for three reasons first the triggering event the sale of narcotics was not sufficient to execute an intice of the tory search warrant going to house several miles away second the district court erred in denying a franks hearing after evidence of false statements and reckless disregard for the truth in a warrant was exposed and the remaining content was insufficient for probable cause and third the leon good faith exception does not apply in this case where the issuing magistrate was misled by information in an affidavit that the affine knew was falls when your argument explain in this case there was a full blown trial after the two suppression hearings and all of the foundlings in the matter but the jury heard evidence not only of the actual incident that happened at the at home store the parking lot where admitted to the possession of it before the search actually the search happened right after the they weren't concurrent they didn't happen at the same time the arrest actually happened at that home store the organized crime unit took mr art into custody and then the organized crime unit with two mr ords hounds where mr ords wife ms polk was mr order was not there in the house for the search but after the search then those same officers went back to the organized crime unit office they have their own office in memphis and took the statement from mr or the order was not act missed the statement mr or was taken after the execution of the search warrant but the other thing i would point out is that in the actual trial there were a number of statements that were there was testimony that was given by off detective to live as officer a crit officer flores a petite o'bryant who was in the car with mr orne and many of these statements contradicted each other which we've laid out pretty simply it was just so there's probable cause that there's going to be an arrest that's not the problem here your big concern is the assumption that once you have the arrest it's fair game to look for drugs in the home right that that's your the concern and i realize or we've got case kind of all over but why isn't one way to think about it is you know maybe maybe there is a problem with too quickly assuming if you have drugs on you there's automatically drugs in the home but what if the evidence is about a distribution amount of quality a quantity of drugs it seems to me to be a you know horse of a different stripe if you someone's got if w t we're discussing are drugs that go way beyond what one would consume it does seem like a pretty and again it's probably cause in inferences that's seems like a pretty fair inference to me as opposed to an amount that's just the amount you might consume because you're in or if you're if you're meaning that relying upon that transaction for evidence that there might be drugs back at the house or something like that i will point out that the purchase was made by mr or of the cocaine the person that actually brought the cocaine to the scene was detected to lead as mr or did not bring the cocaine mr are brought some money and i know i got the point but if the amount of the sale yes is enough that's get you way beyond what one would consume that needs it's a fair inference drug distribution once you have a fair and true drug distribution there's a fair inference that the tools of the trade including perhaps more drugs will be at the home so i that why isn't that pretty probable your honor respectfully i disagree that that should be an automatic inference that it's taken not automatic and well it's automatic if it's a sufficiently high amount that's that is the point i'm trying to make i understand that that is buying it right then why would you think it's the whole wealthy if you're gauged in dark drug distribution the only way that would be true is if this was the first time he'd ever done it there was actually testimony that there was a completely separate house that mr or had that he operated as a gambling house in on that same basis the police could go search any house city and any relation but i'm i have i i couldn't agree more about going to  other words if follows it's probability it's not beyond a reasonable doubt i understand this court disagrees this court disagreed in mccoy just back in september the statement that the six circuit made in that case was to  dealer's home may contain contraband the warrant application must connect the drug dealing activity and the residents in this is starting to cite brown here typically this will require some fact showing that the residents had been used in drug trafficking such as an informant who observed drug deals or drug paraphernalia in or around the residence and i think what this court was saying at that point i can i can find you five cases that just say the fact of drugs is enough that even i'm out and i'm i'm trying to i'm trying to focus on of a high amount which is what leads to the distribution inference actually in most of the cases including the most recent cases including just one that came out november the first fitzgerald which was a case i believe judge white was on that those that case actually had a situation where the court found that in such a similar circumstance that there was not probable cause for that warrant to be issued because there had not actually been established that any sort of evidence that something was going it was as substantial a drug sale as this yes actually in that one there was a sixty two paragraph search warrant application for not mistaken in that in the search warrant th sixty two paragraphs long detailed a years long investigation into all of the drug trafficking that at that individual fitzgerald had been involved in we don't have anything like that here we have that anything that one involves more drugs than this one i  if it was a year long situation where there were numerous deliveries but on that particular case no and i don't but i would argue that it's not the amount of the drugs it's important to relate back to a particular place it's whether there is actually an establishment that that place has anything to do with the drug dealing the only thing i stablished hear is that the police officer excuse me live there he lived there that was there that his practice was  paragraph into this affidavit what he he actually requested he was looking for drug proceeds and drug records he wasn't looking for drugs no he state well actually in the affidavit he stating that he wants he wants of search of the house to find anything consistent with the drug dealing and he includes in the affidavit that sometimes people have proceeds and ledgers drug ledgers of the magistrate in this case and quot in from the leon information scuse me the leon language that was misled by information in an affidavit the affine knew was false and of course this court's case in hearings sort of expands that or explains it a little bit better by talking about whether there is deliberate reckless or grossly negligent conduct involved and of course as this court has reviewed the all of the filings in this case and i'm sure the courts reviewed the record of the multiple suppression hearings what happened was we originally filed a motion to suppress and mr ards case and we found out under cross examination of detective to lez that the affidavit which stated first that detectives with the organized crime unit received information from a reliable confidential informant about being involved in the sale of distribution of powder cocaine in the city of memphis the confidential informant observed ard possessing storing and transporting both powder cocaine and crack cocaine in the past and then skips down and says they were a lot the reliable confidential informant and everyone it had a confidential informant c i has provided information in the past that has led to over five felony drug arrests and convictions and i just wanna make sure i understand what you're doing are you focused on the two informants point i'm focusing on the to a point because that's one of the two thing i apologize for just i mean i'm just trying to let you know i'm coming from the right thinking and that's where that's what i'm talking about so we have my question yet so my question is why is it a problem if the good informant is the one that supplied all the relevant information well if the if the detective to lead as had told the magistrate judge that the judicial commissioner that had explained to the judicial commissioner the way this work such as in the fitzgerald case i just reference where there was a sixty two paragraph affidavit detailing the work of a years where the work if sergeant if they excuse me detected to less had done that if he had actually explained what was going on rather than confidential informants into one which is what he did here i'm just i'm just let's let's say it was a mistake let's just say you're right about all that because whatever you want to call it i thought if i were the magistrate i would have said ok stop bothering me about the stuff with farmer just tell me the stuff in the good informant and then what you had that you'd have enough to do what he did that would have been perfect if the magistrate had done that but instead we have a person who deliberately recklessly or grossly negligent disregarded that requirement in addition we found out that in that same affidavit that detective to lead stated that made contact by phone with the undercover and said he was ready to purchase the nine ounces of powder  we found out and had a second suppression hearing including the request for a frank's hearing because we found out that it wasn't actually mr or that contacted the detective it was mr ord that contacted a confidential informant the confidential informant called the detective the detective actually not a law enforcement officers decision to withhold certain information that is relevant to the case and i submit to you that the reason this second point how would it of changed things if it had been more explicit about who said call home well the confidential informant would not have been assumed to be as reliable if it had been for a shorter period of time and the second i'm focused on the second one now yes your second inaccuracy how would that have made a difference well it would have more home g ahead i don't want to cut you off not to just your second inaccuracy is the who called home right accuracy i'm trying to trying to sort out what that would have revealed to the neutral magistrate that would have led to not well it would have revealed to the neutral magistrate that it was actually detected to len's who was contacting this individual not this mr orde who was actually directed directly having contact and calling out of the blue detective to lead after months of this going for and the comfort and the magistrate would have known that the confidential informant was actually involved in that transfer in the purchase of the of the nine ounces of cocaine but instead the matter it had no ability to three are not at issue here the only cons at issue are counts four and five and this counts rules out all of a firearm that was found at mr ards residence the government realizes there's nothing in  search warrant that connects the resident direct there or the residence directly to the legal activity however that's not a necessity in this court has held in many prior occasions that the inference that you like cases are different from our case so the issue here is whether our whether ard was engaged in ongoing drug trafficking and the government maintains there is sufficient information in the search warrant affidavit to indicate that he was engaged in ongoing drug trafficking we have a year long investigation we have a confidential informant the affidavit contains two statements as to the confidential informant the first one is the basis of knowledge statement it says this confidential informant ignace mr art as store and transport drugs in the past doesn't say where there's no indication where it will say where your honor but we are not relying on the direct nexus we're dealing on the inference of ongoing truck traffic activity representing the defendant mr gunter and there were no transactions there is no police observation or confidential information or the confidential informant had not observed any actual transactions in guntur either in this case we even have more facts we have first hand knowledge that the confidential informant observer actually observed art storing possessing transporting so but it's not related to any time or place here if your honor is concerned with staleness again the fact that the fact that this is an ongoing nature defeats the claim of stillness and that's the christian case your honor in christian the court held that the information provided was stale because it was eight months prior in this case we don't have that we have information that was right up to three days as recently as recently as three days prior to this to this arrest tell as surgeon teles communicated with speaks about the second informant in this affidavit the basis of knowledge statement is attributed to the second informant the reliability statement the fact that the second informant had helped him in five prior felony convictions all those statements are attributed to the second believe that that finding is entitle to clear error of you and there is no clear error in this case you know a surgeon tell us to fight it's only the second informant that provided the bulk of the information and as i said none of the statements in the affidavit is is false in this case and his other  that david says that ard made contact with telus the the facts were actually that art called the confidential informant and asked him to contact to connect him with  different from fitzgerald as in fitzgerald we have similarly here we have a c i and a confidential informant as well as as well as phone calls between the defendant and and officer and there is no actually consummated transactions in fitzgerald dealers so this case is no different than fitzgerald so this ever david is not bare bones and there is no false information therefore even if th court were to find that there was no probable cause this affidavit is fine under the good faith exception the other issue that the defendant raises is the sufficiency of the evidence and i don't think there is any genuine dispute thank your honor my opponent in this case brought up a number of different things i do dispute that based on the reading of this affidavit that mr or should be  that he should be classified as what's called an ongoing trust drug trafficker according to the statement that the government's made and the reason why i want to dispute that is just if you look at the actual affidavit that was submitted with the search warrant what it says is that the confidential informant was the first one that mr ard was involved in the sale and distribution of powder cocaine in the city of memphis now we found out later on at the first oppression hearing that that was about a year before that it was from the first confidential informant and i want to make this very clear first confidential informant so we have that and then which ok and the first statement you referred to that he said was the first informant says what mr are being involved in the sale and distribution of powder cocaine in the city of that's the very first statement and that is and that point reiterated later in the if that by the second informant is what i'm getting at the second informant observes mr art according to the statement observed art and it doesn't say the second confidential informant just says the cia observed possessing storing and transporting both powder cocaine and crack cocaine in the past doesn't say where doesn't say how much doesn't say anything about sale of that cocaine all it says is possessing storing and transporting and the reason why i split hairs here with the classification of an ongoing drug trafficker is because no one in this affidavit says anything about that they bought drugs or sold drugs