good morning welcome to the united states court of appeals for the sixth circuit if you represent the appellate even if you've already told the clerk how much time you want to reserve in rebuttal if you've repeated and let us know when you begin that we'd appreciate it we appreciate it also i just want to let everybody know this is a very packed day for the members of the court we have five arguments this morning and of course in the judge's conference immediately after the arguments and then we have on bach hearings again and beginning at one thirty and so in order to make sure that we have adequate time to come up front that to the arguments and that's i have time to repair the courtroom for this afternoon's on bought it we're just going to have to hold everybody so if you're used to a little bit of slippage please know that today we're not going to try to we're going to try to not as slippage and also just a lorry so you can make sure you get everything said that morning your honour's rosberg on behalf of mr green and givens if i could i'd like to reserve three minutes of rebuttal time your honor says a single issue case but the question it presents is a very important one for this court's fourth amendment and that is when is a defendant who alleges that police falsified the existence of controlled drug purchases to get a search warrant entitle to an evidentiary hearing under franks now mr green lived alone and there's no allegations that he was part of any sort of conspiracy so there are only three possible sources for definitive facts about the alleged criminal activity in the war there's mr greene himself the alleged confidential informant and the police now mr green would typically not even be allowed to testify because courts have routinely held that testimony by defendants in these circumstances is self serving even if he was allowed to testify he descension be tasked with proving a negative saying no this didn't but even if he did testify would be it would be very difficult for him to do anything other than say no your honor say no your honor this isn't what happened that leaves the confidential informant who by the very definition of the term is confidential and  false hood under frank's so how does he do that in this case mr greene introduced several categories of evidence that drew the truthfulness of the affidavit into question he drew the doesn't that's not a per se black and white rule but it should draw it should i would submit draw increased scrutiny from the courts because when you're using a form affidavit over and over again which appears to be the case with the youngstown police in this case it's very open to abuse and it should be the subject of increased constitutional concern which this court has noted before so in addition to the affidavit which because it was used for baden from another case contain the sort of in consistencies and oddities that come with using the same form again mr greene had the testimony of his immediate neighbors who said no not matter in this case i think that it should raise an initial red flag that the information if you're going to go about using a form affidavit with very little information change then you should get the information that you change correct so that should be a backdrop for the court's analysis of the other evidence in this case and as i was discussing we have the testimony of neighbors this is a quiet residential street this isn't some sort of busy high rise certainly true judge gilman but this court has held in united states versus black that the testimony of a single neighbor about the existence of drugs smell the smell of marijuana in a neighbor's property was green's not arguing number one neighbors didn't complain or number two there was no surveillance or number three m five ten versus five eight mr green's arguing mr green's argument here which is insisted on since the beginning even when it cut against him is that there was no there were no control purposes there were no control purchases to begin with there was no confidential informant so when we're talking about an affidavit it's almost entirely identical when we're talking about the neighbor testimony when we're talking about inconsistency as in the police testing reports that really make no sense in the context of this case that's where they're going towards paragraph four five and three control we're not arguing that police need to reinvent the wheel here with every affidavit the use of for material is certainly permissible but it should be done in a way that is not so infer begum from case to case that it allows for the natural differences between cases the affidavit that was in use in this case that it looks like from just a search of federal case law has been used in almost identical form in at least four other cases that's good police procedure if this court says this particular warrant an affidavit or are illegal then the police will say well make one sort of like the follow there so make sure you explain the how many times you went to the place siler and i think that the existence of case law in this case the few c f a day that was helpful to police one sense because as you say it it was traits here's what the courts looking for in an affidavit although i wouldn't facades that even as the district court said this affidavit is quote not detailed and it's inert fool if i were grading it it wouldn't get the highest of more i understand your frustration the affidavit so this isn't exactly what you would call a model affidavit and when you get affidavit already is you know let's say a grade c affidavit that becomes used over and over again with only the names and dates needing to be changed and that really opens itself to constitutional abuse by the police put that standing alone i think if that was my only argument here today would be a tough argument that these two are identical but that's not all we have in this case at all we do have the testimony of neighbors saying we look out over this then the result in black would would have had to have been different the neighbor in that case certainly wasn't observing the house twenty four seven and actually the district court in that case said well i'm not sure how significant the neighbor's testimony is because he didn't testify about what he smelled the night of the raid and the court said no there is no reason to believe that the circumstances were so different that we should discredit his testimony and number two the type showing that mr green has to make to obtain to obtain a franks hearing the standard of proof in the hearing itself would be a preponderance of the evidence by implication to make a preliminary showing that the hearing is necessary it would be something less than that so my key argument that i really want to emphasize is that the error in this case is not viewing the evidence of false hood cumulatively which courts have said in the past that's how we have to view things when the defendant is challenging truthfulness and with the district court did here is it parsed everything finally it said well neighbors testimony maybe the neighbors didn't see anything well that only goes to the paragraph informant supposedly paid the same price for varying amounts of drugs that doesn't matter because they're still drugs they're now all of that's correct from a probable cause standpoint but that conflates the probable cause analysis with the franks analysis here question that is true but the argument here was not just that certain paragraphs were were false the argument was the affidavits that the core the morning your honour's may please the court my name is laura ford and i'm here on behalf of the united states i would briefly like to address footnote one in green's reply brief suggesting at this court may consider all the field tests reports that were included in  be the opening brief a problem that suggestion is only one of the two june field tests reports as part of the record and that is the field test report with the june nineteenth day it was included impeach thirty two of the opening brief  and that's supported by page eighty three eighty four of the suppression hearing where defense counsel is referring to the narco power pouch nine twenty four test and that only applies to the  also page eighty three eighty eight eighty nine three ninety three in this and also the suppression hearing exhibit list on page eighty one eighty nine also supports that only that june nineteenth test form was included and the government filed in a district court a notice for that exhibit and we have a page id number for that seven hundred ninety seven but that reflects that that exhibit was marked for trial is exhibit two and only that exhibit for the field test reports was admitted to trial noticeably absent is that june twentieth test form and that's significant because on page five of the reply brief greene concedes that he didn't make this argument about varying drug quantity from the control by school and he certainly can't rely on a test form that isn't really part of the record he can't move to expand the record under federal appellate procedure ten because the purpose of that rules to ensure that the the record accurately reflects what was before the district court not to present something new but beyond trying to make an argument that was not raised below and relying on a test form that wasn't before the district court his argument that the government is missing the point in denying that these controlled by occurred is wrong he has the burden of making a preliminary showing that there's a false statement it is an affidavit and he hasn't done that the fact that the police used to form from another investigation is a template does not establish that a false statement was made the statements are not any less true simply because you started out with a template particularly where this affidavit has been tailored to this specific investigation with respect to the dates the places in the  and i think there's a critical distinction between the p c affidavit in this affidavit and the p c case you'll have to controlled by zeus and they occurred within the same month and actually within a week of each other in this case we have three controlled by us and if you are simply making something up why would you bother to include a control by that occurred six months before the two most recent his theory that the controlled by did not happen just does not hold in this case is pure speculation and he was required to do more in order to obtain a frank's hearing there's absolutely nothing that is incorrect in this affidavit with respect to again with even if the can confidential informant was wrong the using the wrong field test for a form for heroin that still doesn't show that there was a false statement in this case in fact the record reflects that the agent was quite surprised by that at trial and  he'd used the wrong test form until trial and he admitted that it was a mistake and that establishes a it's not a knowing falsehood and it certainly wasn't material to the probable cause finding in this case because the officer testified that  the substance did test positive for cocaine which is reflected on page eight hundred fifteen thousand nine hundred twenty two but going back to the issue about the drug quantity the government believes that that issue is not properly before this court there's nothing to support that because the form that he's relying on isn't part of the record but beyond that twenty dollars was supposed to be informant called no matter what the quantities are yes that it's not even properly before the score but even beyond that the state judge wasn't even relying on quantity in making the probable cause determination as reflected on p j do you want to six drug quantity isn't even mention in the affidavit the relevant point that the judge was looking at was whether there was probable cause to believe that there was crack being sold at this house and that there were these two controlled by is in june which refreshed that earlier controlled by in december but even if you admit omit that you still have is in this case which establish probable cause and with respect to brings neighbors test testimony that was completely inconsequential in this case it really did nothing to further his his  request to have tina frank's hearing because both neighbors worked outside the home they were admittedly absent from the home for periods of time and neither of them were actively watching the house and i think what's critical here  is that the police actually were in a better position to observe the conditions at the house and that's what makes this case distinguishable from the black decision he's relying on in that case there is a suspected marijuana grow and the officer said that they smelled the odor of marijuana from inside their vehicle a neighbor that subsequently presented an affidavit saying while i've been on this property and i've never smoked marijuana in the court said i'm on page three of that opinion that the neighbor may be in a better position to observe the conditions because he'd actually been on the property here we have the the opposite where the police are actually in a better position because they are the ones that are actually watching the house the neighbors weren't doing that in this case i would suggest that if he presented a testimony of i guess a proverbial nosy neighbor that would be one thing but we don't have that in this case there is absolutely nothing about their testimony that undercut or disproved the surveillance in this case in the controlled buys and i guess going back to the controlled by he has to do more than simply deny that they  occurred given that we do have trial testimony in this case from two officers about that carter testified about the surveillance the citizen complaints the control buys in the field tested page ready ten forty two and ten forty eight to sixty suggested on page eight of his reply brief that that testimony was not before the district court when it was making the suppression of terminations is well established in this circuit that this court may consider trial testimony in affirming a district court suppression determination as stated in this court's decision and in a host which is found at six o six fed there are seventy five specifically page eighty and it's a two thousand and six or get opinion short your honour's there is absolutely nothing it was presented that warned of frank's hearing in this case and the district court correctly denied frank's hearing in lissa's court has further questions the government would respectfully request this court affirm the district i like to make a few quick points in response to miss force argument number one talking about the field test that were supposedly not part of the record that's a disputed point and i would submit that there's testimony in the suppression hearing docket number thirty three pages seventy three to seventy four discussing all four of the testing reports and the one test coming positive for heroin i would submit would make no sense out of the context of the other reports the other reports were also discussed at trial ingestion that this affidavit was tailored from the p c affidavit i think is an overstatement it best when officer corder couldn't even be trouble to list his own police experience correctly if you can't do that correctly how much faith can we have that the rest of the affidavit is accurate that mrs ford is correct that there is there are three bodies in this case versus the two in pusey i would submit that the most likely explanation for that is that the first buy in this case coming six months beforehand would have posed issues for a probable cause determination because it wasn't close enough in time to the issuance of the search warrant so to make the affidavit more like the p c case the police would most likely feel the need to add another by now important points on the black case the black case wasn't just about the police saying they smelled marijuana and the neighbor saying he didn't in the black case the police think had conducted thermal imaging they had observed the property they had gotten complaints from the sheriff and from neighbors there was a whole array of reasons that the court that the police ought a search warrant the neighbors testimony didn't go to any of those other reasons it went  just to the one aspect of it which is i smell marijuana and in this case the property in black was a huge property that the shed was a great distance from the house the neighbors in this case were arguably much closer to mr green's property than him b be of any use for these frank's hearings the neighbor mr macho testified that he was a smoker and that he was regularly outside of the house on his porch and that is windows were open to mr green's house at all times so i think that's the standard then we could never use neighbor testimony to sum this up though i think i think that the government and the district court with all respect are missing the forest for the trees here because mr green's argument all along has been there was no confidential informant there were no control purposes purchases so if the only way that mr green can prove that for purposes of getting a frank's hearing is direct testimony from a confidential informant or for the or from the police then he's precluded as a matter of law from obtaining of an evidentiary hearing an evidentiary hearing under franks because those sources are not available that can't be what the supreme court intended and franks and