the sizing what the warrant does not say nothing in the warrant connects ms sounds home with the broader investigation into china's drug trafficking organizations there's information in the warrant about other chinese people who are known to engage in illegal marijuana cultivation and about other chinese people who are connected to them by law enforcement surveillance and there's also information war about other chinese people whose home smells like marijuana who are the subject of tips about there are some houses that are in the same neighborhood that's true i mean all i'll give it i'll give it to you that maybe the evidence is a bit you know i mean some evidence in drive also seems to be based purely on high lecture city usage so you know once we get to that point i mean you could say there's nothing to say that this is more likely to be marijuana growth than mining that point for example and you know just to sort of government is really inviting the court to fill in these blanks and just assume that the same investigative techniques that led to the you know i'm covering of marijuana cultivation with some of these other people also were applied to my clients and uncover some client connection to them but you know this court's precedents forbid that probable cause has to be based on specific facts not just on the officers conclusions from unstated facts and so you know for that reason i think it's really important to just set aside this kind of idea that there is a connection and an unstated connection to the other drug chinese drug traffickers and so you can you can you tell it's going to be you're going to your interpretation of how affidavit doesn't say it's just not in there so you know i don't know what led to that i mean it i think that's part of the problem with the the affidavit right it doesn't say what led to the suspicion it just asserts that it is a suspicious readers you know on i don't believe that we do now i mean my understanding is that there's just that they responded to the house i do want to talk about the the putative connection with nevada place you know that's the only other information that the  only negligent so do you have to meet a clear standard here yes there are in the th circuit it's a clear error standard to reverse that finding i recognize that that's a that's a big lift but i think we can meet it and you know i want to i want to explain why so you know just to be clear i think it's can be really confusing to talk about what the misrepresentation here but i think it's worthwhile emphasizing that there is no person named you know it's young there's a you know times young who lived at nevada place and drove a w and then there's a you know launch young who lived don't drive and drove around for and so any statement referring to a person in the ocean and indicating that that person lived it but was connected to both houses or to both cars is false just like you know if i legal standard for what recklessness means in this conduct you know misrepresentation to a magistrate judge is reckless if it is made despite obvious reasons to doubt its veracity and here there is many obvious reasons that officer b dia should have doubted his conclusion that a person existed and was connected to both houses st as a matter of common sense different people can have similar names we know this from everyday experience and it's obvious that you can assume two people who have similar names are the same person that's why institutions rely on st dates social security numbers fingerprints to identify people and then nd names are actually different you know song is not the same name as you go on and even the clear report that the government  relied on at the suppression hearing indicates that they had a different middle initial it's yo t c on the rd name spong to people who lived at different addresses forest drove different cars and face this is also from the clear report by the that he used to clear the database record when he was putting together at the affidavit that's volume two hundred and sixty five dollars now the clear record that's in that's part of the record isn't what he used at the time he didn't have a related address in about a place right yeah and that was the point the government made and i think it's notable that it shows they have different names or different birth dates and so you know even with this kind of confounding information that maybe they're there they have these addresses were somehow related that at least gives you reason to doubt the truth of the assumption that these are the same person and that the same person owns two houses and then finally i think officer pretty his own testimony that he knew that chinese names quote often get kind of jumbled together depending on who is entering the names which can result in quote confusion and this is from volume six of the record of page seven hundred and twenty two i think that's another reason he should have doubted the veracity of his sub assumption regarding these two different chinese names and assuming they belong to the same person he knew that mistakes were often made when chinese names reported and in fact he actually made that same mistake in draf is that this information isn't reliable and that this assumption that he's making that they're the same person he has reason to doubt that it's true you know that the government and officer pretty a kind of suggest oh you know the fact that these names are confusing sort of is mitigating torreon the cons in this context but i think the opposite is true if you know that there's something these mistakes are often made at the chinese names are often mis reported and that this information isn't reliable that increases your obligation to double check your assumption it doesn't decrease i think this is where the nd circuit decision and hernandez is really instructive you know there's a signal similar situation where spanish names are often risk reported sometimes they drop the nd surname you know sometimes one or the other surname is reported and favor or you have to you have to look at it and i think the same reasoning applies here you know there's bad information about these names he knew there was bad information about these names there were things that should have triggered his you know that we all just that they find assumptions that different people  have the same name and also that one person can't have two birthdays one person can't have two different middle names all of these things were reasons for him to doubt the truth of his assumption that they were not about what about the similarity of the names when you combine notes with the clear report misdoing about a place is a reminder that you know i think that's something that is you know the government relies on that i understand and sixty nine so just on the face of the record it's inconsistent and there's no way to which you know i think that is just a huge red flag you can't just say well what the clear report is wrong about their birth status but it's right about the association between addresses something about the clear report is not right and wise it would have been trivially easy for him to verify that these were different people i mean if you literally had that information at his fingertips but they made that mistake and that and then the next step is they went electricity and i agree it is an indicator of marijuana use but it's illegal marijuana growth but it's equally consistent with for example mining pick when i just looked this up it takes fifty one thousand kilowatt hours of energy to mine a single  that would've been a great investment honestly buying that quick i would say this you know what i think you have to take out the connection to know about a place and then because like i said it's reckless and then once you look at it without that connection just yet elevated electricity usage alone isn't enough to get you to probable cause even if you you know consider it highly consistent with a legal marijuana cultivation like i said it's just as consistent with mining and with respect to my client's house there's nothing that says it's more likely that she's growing marijuana that mining big coin i mean you know they're not going after all they don't have to go out and it's an explanation they don't have to rule out but if it's equally consistent with an innocent explanation that's not probable cause right i mean i don't know that we've ever got to like exact percentages but where alone and in those cases you're looking at an individual home with an elevated energy use here you've got an investigation that is taking place in  neighborhood and yeah there's a couple houses that are outliers and some of those houses in addition to the energy use they also have the odor of marijuana and people call me union and giving ti right and so it's not just one house with high energy news it's a pattern that you're seeing that's consistent with the conspiracy that they prosecuted i guess and i don't know how many years before but so it's all part of the analysis here of a couple of responses to that your st like i said they don't actually connect my client to any other drug traffickers  you know and you could take into account that they're all located about in the same area but i do think it's notable that my clients house didn't smell like marijuana didn't have the same hands wasn't the subject of any reports and you know finally i think you know this is something that the district court touched on it that they were all chinese you know there's over twenty thousand asian residents at aurora and i just don't think the fact of their ethnicity even if you consider it to be part of the probable cause analysis is really probative enough to get you over the line from saying you know do we know that these people do we have reason to believe that these people are more likely to be growing marijuana in their basement than they are these to be minding that coin or  that we have this large drug trafficking operation but we have no connection to our clients or not in our client's home other than they have chinese names and they showed up in a what i would call seriously flawed government database that i began to fight our clients well my clients wife as being connected to an address that she has no connection to their house was in proximity to at least one of the other houses that they were investigating yes yes that is true but  going to allow probable cause based on what happens in a neighbor's house because a neighbor is using high electrical consumption does that justify concluding that our highlights consumption must be a marijuana use well what your client's house might be more suspicious than it would be if it was just sitting there by itself i think the answer is is yes but i think you also need other in dishes because if we're utility companies can come up with high energy usage and go and get a warrant based on that and i think that would be an affront to the privacy protections of the th amendment particularly when it comes to an individual's well and there are no other of the marijuana grow at our clients house there is no there's no evidence of surveillance of of things being brought in brought out equipment being brought in brought out of marijuana odor emanating there and now the  government i think does a little bit of sleight of hand where they try to say well you know the fact that that wasn't there indicates that maybe took good steps to hide it well you know i think that puts the cart before the horse because essentially you could view that argument as saying well privacy rights i do want to turn again to the clear report because i think it's more problematic than even michigan indicate if you look at you know the government introduced a four page  tongue chang the nevada place gentleman you have not only you have english as a potential relative which i don't know where they got that from but so be it but you have his social security number which is a different social security number and you also have another der birthday which is some one thousand nine hundred and sixty so you have three different birthdates two different social security numbers  and variations on these names and the only reasonable conclusion from this information is that there is at least two people who have y o u as part of their  st name or part of their name and sang as the last inning or part of their name and based on that i think disregarding that in concluding they're the same person no reasonable officer should have done that  and no reasonable officer who looked at it would have said ok it's all it's all the same person you've got to source cured and there's three birthdates two addresses two different cars and the cars were never seen at eight at the the the  address which they weren't registered so there's no connection between the cars other than there's discrepancy over the name so i think that it was an obvious error it was an obvious  situation and discrepancy that called out for additional review by officer p d s before he swore the affidavit and i think that therefore because it was obvious it is also an obvious error for purposes of clear error analysis and i think judge moore's conclusion was clearly erroneous in that this is a reckless disregard so the leon exception does not apply and the evidence should be suppressed  i want to spend just one minute on my separate conspiracy issues and largely go from what's in the briefs but essentially the government's argument is and  if this court believes the government's argument but we keep we know the consequence of that but the government's argument is these these people were married they shared the same house therefore she knew what was going on in the basement now given an ordinary house like i have where the basement not locked i think that is a reasonable inference to drop but here you have the evidence to show that the basement was locked by a separately installed locking he you have no evidence the only testimony you have is my client's wife testifying that she had never gone in the basement since they looked at the house you have the officers testimony that they did there was a lock on the basement door and i thought i recall correctly they had to misess that it could be an identified coconspirator because there was plenty of testimony st of all this is a marijuana selling operation the drying portion isn't in the house  house so he's gotta be working with someone to dry it that the fan and the equipment necessary was very heavy and would have taken more than one person to set it up i mean there was plenty of testimony that he had to be working in concert with someone wasn't there there was expert testimony about what they speculated had to be done but i believe if i recall correctly the government's expert said that for one person to set this up by himself and take three to four weeks so yes it is possible to do this by yourself we well but didn't give him any there was plenty of evidence from which the jury could conclude that he was working with someone because among other things why is he growing the marijuana if he's not going to dry it and sell it you know got a one hundred plants camaro your honor i believe that there still there is no evidence to tie my clients to any other person i understand that they are an identified alleged coconspirators but there is no evidence of any of that related to my client all there what what about the idea that mr on the stand and testify have been in that basement since before we bought the house i don't know what he was doing because i didn't ask questions i just did what i was what sounds like a lie to me are credible and so the corollary to her testimony if the jury finds that it's not true is that she had been in the basement she did know what was going on and she was part of it i mean isn't that a necessary conclusion if they found her to not be credible well your honor i note that the government relies on the nd circuit case  addressing this issue and says which says the jury is treated draw negative inference is from an untruthful witnesses testimony as long as there is affirmative testimony to supplement or corroborate these negative influences and it's my position that that evidence doesn't exist and therefore those instances can't be john unless there are further questions i would like to save the last few minutes for rebuttal which michigan will be giving  components the probable cause that the magistrate could have reasonably relied on in issuing the warrant the elevated electricity usage is one the linkage with the license plate between about a place and don't drive is the nd and the  rd is the investigative methodology that identified all d of the target residences including the don't drive residence what's the investigative methodology so paragraph thirty five i think in the search warrant is the best illustration of that it talks about how most of the target residences in this case were identified by linking vehicle registrations from one property to another in order to identify  properties and have to have probable cause to your specific how right so that might be just general background information about how they conducted it but it's the end of the day you've got to have a specific link so i don't really see that that adds being in terms of probable cause to search this particular home i think out of the three things i just cited it's it's the least important i do think however because of the way the war in strafford paragraph thirty five comes right before the surveillance section which then proceeds to explain all these identifications of different target residences so there's a reasonable inference that can be drawn place is the the house we're talking about how it was identified other than just running high lack trickle use for the whole neighborhood aside from the the general statement about investigat methodology i agree judge mchugh that there's nothing explicit in the warrant that says this is how we became interested in the vat of place in the st instance and it certainly would have been a lot better if the warrant a provided that information and it doesn't nor does it give you know you know subject to the criticism of the clear report that made by your colleagues you know that residence as the target residence and talks about the electricity usage both of those paragraphs talk about yoshio long as a person involved and so there's certainly a reasonable inference to be drawn that there's a linkage between about a place and don't drive and that both places have elevated electricity usage and that's all there is right eve got two homes with validated electricity usage on and and a mistaken belie that there's interaction between the two homes at least on one occasion i think what i would add to that is what well why i understand that not a great deal of weight should be given to the general statement about investigative methodology the inclusion of all of the other target residences some of which were in the same neighborhood does provide something else it provides some indication that the investigative methodology is reliable because there's other properties owner or on a house where you can hear the saying ends or out where you observed the people running your garbage cans out right before the truck came by and then running them back i think you'd have a different case but here you've tied two homes that have nothing other than i energy together they have high high energy use and also this name and i guess what i'd like to emphasize is if the court agrees that the district judge did not clearly err in finding that officer video was at worst negligent then the linkage of the names the oceania at both properties is still something that the court can and should rely on in evaluating probable cause because as this court has said in campbell and also much more recently in the rape case which is that which is  published but it's from two thousand and twenty the only statements that are excised in evaluating probable cause are those that are recklessly or intentionally false as this court said in campbell the the idea behind the suppression remedy is not to punish government negligence or just honest mistakes and i think the thing about the clear report regardless of whether the court looks at the at the defense exhibit or the government exhibit the government introduced an excerpt really just to avoid he's at nevada place asking about a vehicle registration this vehicle with a license plate starting with one hundred and ninety eight is registered to a person named yoshi young with no middle name then the what the clear report illustrates is that by running nevada place through clear there is ambiguity in the names but that comes in the context of a case so you know xiang has an a k a yo t xiang and also several other variations of that name so i think it was reasonable for officer but the you know had he looked at that exact version of the clear report in preparing the warrant to say ok this this ambiguity is because of a problem with public records it's not a problem that i know that i have where i'm dealing with two different two different people that i need to further  investigate and while he did testify the suppression hearing he could have looked at d m v photographs and potentially resolve this issue if he had known that he was dealing with potentially two different people  this is really at most just a failure to conduct additional due diligence that would have been possible which is sort of a garden variety kind of of negligence even taking that we accept the mistake that that d s houses are connected you've connected to have says that don't have any in disha a marijuana grow operation other than hi energies you'd agree with that statement right if if the court has reached the point where it's not persuaded that the investigative methodology and the other target residences are not a relevant consideration though i don't know how the other house can be relevant consideration if you don't hide them to know that a play i mean you know mine my neighbor might you know be running a meth lab but you got connect my house t operation not to another house the half happens to have a pool and a hot tub and as i energy so i think there's two things i'd say about that st of all there is a waiver issue that i had i mentioned in the the answer brief and i'd also like to just briefly reemphasize it here that if the court agrees that the district judge didn't clearly err in its finding regarding negligence versus recklessness then the defense has waived all the remaining escape routes from the good faith exception because all that they've argued both in their opening brief and their reply is that the court cannot apply the good faith exception because there was a reckless material omission so if the court ultimately concludes there was no regardless of materiality that there was no recklessness then the court is in the position that because of this waiver that the the court could decide not to address probable cause initially and simply go to the good faith exception and say well we agree with the district court it wasn't reckless therefore the good faith exception precludes suppression you calling to suggest they stated that it was more than the clear report had more than just a case naming conventions and there was also a discrepancy at least some on birth dates which you know would have been should that have been a red red flag i think the clear report is open to interpretation for a lot of reasons i mean also on page three of the government's version of the exhibit which is the four page version there is a list of possible addresses associated with subjects and the subject in that instance is the old line xiang the actual defendant's name and one of those possible addresses associated with the subject is if at a place and then another one is don't have expected just a little bit more here to go over the problem threshold i think in this instance i would i would respectfully disagree only because officer podia was told by the analyst that was running this information that the registered owner was yoshi young with no with no middle name and obviously law enforcement can't shield itself from accountability by by obtaining information from other people and saying oh we just were told something wrong but at this court said in campbell less than seamless communication among different members of law enforcement is is a good example of negligence not recklessness there is some room for  mistakes in that regard or even negligence the other thing i would say is that the the clear report arguably points in both directions but the district court did have the benefit of officer for the being cross examined on that clear report explaining his investigative approach and you know taking responsibility for this mistake in live testimony and so i do think that the district court's finding a negligence and not recklessness is you know rightly deserves that deference and that review for clear air i can just briefly respond to the sufficien record on appeal just that two or more persons agreed to violate the controlled substance laws and that the defendant joined that conspiracy and so while i do think that there is sufficient evidence for the jury to conclude that mr aya conspired with his wife there was also sufficient evidence based on the expert testimony and the heaviness of the equipment's that he also could have conspired with any number of unknown individuals i'm having trouble remembering right now but what was the testimony that led to the officers could smell the marijuana once they were in the house before they opened the basement door i believe it was officer gonzales who testified that essentially once he he walked in the door it was it was immediately apparent to him and i believe special agent make they provided some information about that although he he was later on to the scene probably after that door had basement door had sir i just want to make i think three basic points sort of following the government structure you know just going back to this general lyon's on investigative methodology i think that their government's argument is squarely foreclosed by th court's precedents including united states versus roche five hundred and eighty two s rd one thousand one hundred and ninety two that case was actually really similar kind of shaka affidavit where there's all this stuff about a big investigation and then when they get to the specific house they just say you know we that the suspect lives at this house and this court said you know that's not sufficient to give rise to probable cause you act out you actually have to show the facts that there are five that for you can just assert that it was verified you know nd i just want  linkage the linkage was reckless you know even apart from the clear report there were numerous reasons to doubt that these two people were the same person including just the background fact that you can assume two people with the same name are the same i think that's really basic assumption that we expect law enforcement especially to understand and i think this is exactly the kind of carelessness that really warrants deterrence under the exclusionary rule and so you know once you take those two things out even under the government's you know sort of characterization of the war there really leaves only the elevated electricity usage and the government doesn't seek to justify the war it soley on that ground and i don't think this court should either and you know as we've discussed there is you know while elevated electricity usage is consistent with illegal marijuana cultivation it's equally consistent with other innocent conduct and you know leaving saying that elevated electricity usage and it wasn't as would as mr vireo pointed out you know leave us open to being searched any time our electrical usage got too high especially if you happen to be somebody with a chinese name who lives in the denver metro area and there's