is ready to be h exactly he was he was coming back from a flight he was coming back from china on an international flight arriving at j f k and immediately when he approached customs customs walked into an other room  d officers were there waiting for him and the n y p d officers took his passport and then they scored him to the baggage claim area to claim his baggage and then they conducted the search of the baggage and they arrested him all at the airport question exactly but in this case it was it was then why p d officers with customs just standing by the only question really is was the more clear that that was a problem that is the that is the issue because the district court pretty much carved out a new exception for for a warrantless search by and y p the local officers that they can conduct a search of an international traveler at the airport and established i mean the supreme court stated suing supreme court in one thousand nine hundred seventy nine case torres we puerto rico we are puerto rico had had a local law created public law twenty two that allowed police officers to to conduct a border search at the airport the supreme court struck that struck down that case saying that custom surges of what are searches can only be conducted by the federal government this is a s other circuit cases the it's either because customs is using their authority it's customs related or it's by another federal agency like the f b i whereas here the search was done soley to obtain from whether or not the law prior to this search was clearly established that what the agents were doing what the police were doing was was wrong with a customs agent well local police officers know that they can't conduct a sear at the airport how do you know they know that they know they can't go by themselves but but but the question is when you're accompanied by a customs officer and the customs officers or the customs officer taken him to the police and said here he  is you know you're his bags and then the customs officer left that would be a different story the police would say oh we've got we're reviewing this now we don't have we don't have a customs officer with us but but whether so under those circumstances i think maybe but but that's the issue that that this this was dismissed by summary judgment there are clearly genuine just issues of material fact at dispute as to the customs agents involvement how involved was the customers agent where was the customs agent what kind of authority did the the police in the customs agent what kind of cooperation was occurring between the two parties i mean those are genuine issues of material fact that that the district court acknowledges but the district court gave qualified immunity to the police officer despite the fact say asserting that there it wasn't clearly established when within the district court's own decision the district court acknowledges that it's been beyond vill that a police a local police officer cannot conduct a border search and well it's a and that cuts invasion can't act as a lackey for a local police precinct or serve two bags and other customs agent is there there and the policeman says you take that bag i'll take this bag we've got to save time and then they both search under the circumstances then the customs agent would have their own the already based on their their own reasons for national they're searching for evidence they could tell a customs officer we're searching for evidence to a border surge and the i think customs officer does a border search that's fine that's not that's not what happened here understands that but i'm saying i'm saying that which i know is what the rule is when the policeman is there doing the search but the border agent is is not not actually doing a search but he's there he's a he's also part of that group mission in the district court have fleshed out the facts first so that we understand the exact circumstances of this case mr gore asserting that mr work can can can take the facts in the light most favorable to your client and still make a ruling there's no question about the age that the right of the united states to conduct were searches based on its often authority that it's the customs agents that have the authority to search there are cases out of circuit that allow customs agents to cooperate with d n a or f b i other federal agencies which isn't the situation before us so just because i mean because it never because it never happened that's reasonable to know that it doesn't happen that they're not supposed to do that local there are no cases that local police officers are searching at the international airport because it doesn't happen because police officers know that it shouldn't happen it's so basic and reasonable and that just required knowledge is that it's beyond a bill that it's so basic that it hasn't been said before may it please the court my name is yassmin seen all by and i represent the city defendant in this action i'll go straight to the qualified immunity question i want to note that first the facts  even stronger in terms of the search than appellant acknowledges actually in the complaint the only allegation was that the luggage was searched by customs officer alone on summary judgment undisputed that the police officers in the customs agent searched the luggage together so it's not even that the officers searched the luggage while the customs agent stood by it undisputed that the three of them searched the luggage together the case saw at the time made clear that non customs officials could come under the border search exception but the over to the officers who then walked who asked him do you have do you have luggage do you have the checked baggage and he said yes they walked him over it's unclear at this point whether the customs the same customs agent accompanied them on the walk they walked over to the customs area picked up the bag and at that point the next thing that happens is customs and the two officers searched the luggage together then they went to the precinct i voluntarily dismiss that surviving claim and take this appeal immediately so there's no surviving claim out of that search at the one hundred ninth precinct could you step aside from the qualified immunity question for a minute and  address the concern that's been raised by the plaintiff about the district court's reliance on certain police documents that appear to be internal to the police department the d d five the rest reports and complaint reports and i think that the district court was relying on them to show that as i understand it that those statements were actually made by ms tan to detectives e but those those reports are internal documents they're not documents of public record why are they matters or documents that the district court was entitle to rely on here some of them were not referred to in the complaint you know rule of evidence b two says you can judicially notice documents where the facts can be accurately readily determined from sources whose accuracy cannot reasonably be question here ms mr language's complaining that this was fabricated in essence so why was it appropriate for the district court to look at those documents and take them into consideration in its analysis or i think of the district court considered two different categories of documents some which it found to be incorporated by reference and some which it found to be appropriately considered because they could be judicially noticed in our brief we actually also make that distinction so first as to the documents that are that the district court found to be incorporated by reference those were documents that were specifically referenced in the complaint they need to be relied on in the complaint not just referenced in order for the district court to look at them isn't that correct that's right and the ng did rely on them so for example as to the june or july two thousand and seven seven criminal complaint he specifically said in his complaint that issued a complaint against plaintiff based on statements by defendant ten the purpose of the doctrine of incorporation by reference is to prevent the sort of result that lee ng advocates for here is where he he asserts that he relies on as in his complaint but then he says everything in that complaint is false but also don't look at it that that can't stand that's the reason for a doctrine such as that set forth in chambers the time warner basis for his complaint is i understand it was that these were false statements made to to the detective and maybe even done in a collaborative way and so it was  unusual and maybe inappropriate in the circumstances especially for internal to the police department documents for him to take notice of it and rely on them as he did for the truth that those statements were in fact made to the detective isn't that somewhat out of the ordinary in that circumstance one could question whether it's appropriate to rely on them well it's what meaning is advocating for is is the court accepting that everything that tenth said was false without actually having any access to looking at what she said the district court didn't have didn't necessarily look at them and say that everything she said was true or accurate it looked at it for the purpose of determining whether there was probable cause not and didn't necessarily say everything that ten says in this complaint is true but looked at it for the purpose of was there probable cause for the arrest based on where part of the allegation is and ten were in cahoots in generating statements that would allow to rest on a false basis it seems inappropriate to rely on them as even establishing probable cause potentially i think even if the score were to find that and appropriate on the face of the complaint itself there was probable cause for the arrest so while we do think it was appropriate for the court to look at that document for example and there are some so for example the first order of protection that liang actually seems to quote he knew he knows the actual contents and tries to argue exceptions under the order of protection certainly would be it would be appropriate for the court to look at the rest of the language but taking a step back  as to the criminal complaint we think it was appropriate for the court below to look at it but even if the court were to disagree with that on the face of the complaint itself what liang says is that  ten i recognize that ten made a complaint against me and i was arrested as a result even in the face of that that's sufficient for probable cause for the arrest of the city's position that it's always appropriate for the district court to look at complaints that are internal to the n y p d in the phosphorous case we wouldn't take that position and actually here i wouldn't i wouldn't go so far and actually hear the d d five come under the category of documents that were judicially noticed and we actually don't rely on those here we didn't take a position as to whether whether it was appropriate for the court to do so or not but in our brief we did not rely on language in those documents and he tries to rely on an exception that he thinks is in that order of protection certainly the court should be able to look at the actual language of that what leon keeps trying to do is say everything in all these documents is false but the court has against approximately nineteen defendants is that right that's correct now aside from the claims that have been dismissed with prejudice or any claims that in your view have been abandoned by man on appeal we did not see it as abandoned was it pursued here we were same question it would be for us at the claims is being pursued on appeal a protective order there is a protective order that's that's before us that's that we understood that to be before this court as well in that in that as to that allegation that false arrest claim civil rico can claim a rico conspiracy claim the section one hundred eighty five three claim among now a claim and then as to the search and seizure summary judgment claim we saw that as being limited to are there were multiple search and seizure claims that were raised and the district court dismissed some of them but allowed two of them to survive being voluntarily dismissed those the only claim the only search and seizure claim that liang chose to appeal was the grant of qualified immunity for the j f k luggage charge and the three arrests for probable cause and then there's a civil rico a  circuit the closest case or the most instructive case from the circuit is called the united states we are going into two thousand and six case and and to be clear that case the search in that case was conducted by a customs agent and in that case there is effectively there is a tip from law enforcement to customs saying someone is re entering the country he is a suspect in a crime please  stop and conduct a search of his luggage in the criminal case that criminal defendant moved to suppress the evidence from that search and the court found and he said it was not proper for customs to act on this tip from law enforcement and this court found that the validity of a border search does not depend on whether it's prompted by a criminal investigative motive in that case the custom official by police and the customs you know certainly and there's no there's no there's no there's no case prohibiting this type of search plus a law a reasonable law enforcement agent could look at that case and say you know it was reasonable for for customs to act on a tip would it a reasonable agent could think if i'm standing next to the customs agent and participating in the search that's not unreasonable and also there's no spewed fact and even the cases with the joint task force and the delegation of authority those cases are not from the circuit and they don't clearly establish what would happen in this situation where perhaps there isn't a for what extent of cooperation is necessary perhaps there's not a formal delegation of authority or formal joint task force but it's clear that there is some cooperation here there's nothing cases but here there is no formal agreement there's nothing in the supreme court and nothing in our our case that says there has to be a form that's right so not only is there nothing in that from the circuit or the supreme court directly addressing  even the ninth and six circuits don't don't address this exact situation the one in your view is the state of regarding the relationship between law enforcement and the customs situations like this what kind of agreement very is required my my view of the state of law is that it's unsettled that i don't think it's been presented squarely to this court and even under you know the  gets those cases fall on two opposite ends of the spectrum there's one end of the spectrum where there's this form of agreement right we're all in this together and in those cases the courts have found that law enforcement does come under the of the border search exception but on the other hand there is a case where called sotto sotto from the ninth circuit in which law enforcement based basically acted on its own with no customs agent even present and the court found that clearly wasn't appropriate you would state the say that the law was unsettled in two thousand and seven when this search occurred in a spree manes unsettled in the circuit is that i've seen nothing that suggested to me that that it's far either as to say it's said it's specifically the district court said that we don't i don't go so far as to say a joint task force is necessary because there is no precedent requiring that before you start to ask a question about your position about the orders of protection do you agree that as to those documents as opposed to the internal documents the d five's in the criminal complaints that the district court was they were all sealed because the case was ultimately dismissed but that did you make that argument to the district court yes all these yes all these about that they were sealed until the district court did you move the district court for to reconsider its order because the documents no there was no motion to reconsider filed and did you argue did you yourself also quote from the orders of protection in your complaint we referred to the order we were for to the order of protection but we didn't rely on the order of protection for your adversary says that there were the language quoted from the order of protection in particular the exemption and the order of protection so if that is so maybe you question that why was it appropriate for the district court to look at the entire that wrong because the fact that it was incidental i don't think it was ever disputed at all and there's no reason why the order of protection needed a duplicative document that says exactly what the complaint says doesn't require consideration i mean if the complaint already says what the order of protection says and there's no reason why the district court needs to look at that specific document to confirm a fact that the complaint already says is true either but by the fact that you're right that wasn't the only document that was considered i mean it was a whole host of documents that were from that were sealed from his his criminal case because all three of his criminal cases were all dismissed and so all those documents were sealed and my client would not rely on documents that are uncharged and that he claims is false anyway so he couldn't of relied on on those documents and they were protection is just one of the many documents that right we played baseball  and i'm sorry to say that the police during this timeframe did not act as the constitution requires them to act there was my my clients was in the cell phone business at a very early stage when the cell phones just started his girlfriend ten saw that it was a profitable business and try to obtain orders of protection from a criminal court to keep them away from the store in order to do this she bribed detectives as well as all of other officers what we have are our demo line we have activated cell phones so if we had more discovery because discovery in this case was very limited we would be able to uncover more of the bribery and the conspiracy  that happened commanding officer of the one on one precinct actually took my client's keys to the store away from him and gave it to ted the only thing that the customs agent were searching for was nothing that they wanted but really need to seize the passport and the laptop in order to retain to return the laptop to tan because he was acting for tan so that was the purpose the only purpose of the search was to obtain his