facts without the scrutiny of a jury when there are reasons to doubt it the central fact issue is that the officers and the district court relied upon the officers assertion that they had an informant who gave them information about the plaintiff that informant was never recorded in any place at any time in any way until litigation in the one nine hundred eighty three action but it was corroborated by finding of the gun was that the tip if there was a gun found but that assumes the tip existed which is what we dispute they go eventually found a gun on was found in that roberts was there is some evidence that there was a tip not necessarily your honor they could officers show up they could have been there for any number of reasons unclear randomly and they happened to find roberts and a gun and then they made up the argument not necessarily or are there there was a suggestion by the officers when they have is it your argument more precisely that the tip didn't mention mr jarvis but in fact that there was a tip that there was a gun in the apartment the two pronged you are one is there may have been no tip or two there may have been a tip which significantly different content than what they said the tip contained later after of the searching after finding a gun they may have had a tip about mr roberts that didn't mention a gun they may have had a tip about a gun that didn't mention mr roberts or they might have a tip that entirely different criminal activity that brought them to that apartment and then conformed the tip to what they actually found is no genuine dispute bute is their place on the deposition of least two witnesses that fact that there was a i believe there's a dispute your honor and there's a dispute based on the officers conduct they came to the scene claiming to be looking for a neighbor by name if they didn't know who the neighbor was before coming to the scene how could they have asked for him by name there's a dispute because they didn't inform the district attorney that there were look there on a tip that district attorney was attending to prosecute these people and would have to establish a chain of causation that led the officers there why did they not tell the district attorney that there was a tip that led them to the apartment that could have been the and they had the gun why i mean it doesn't surprise me that they went gone into all the details of what led them to the gun well it surprises me your honor there they detail the various other things about what led them to their what led to the investigation they created a memo books that recorded their daily activities so that they would remember it they created a rest are ports incomplete reports that detail the information of the arrest but they left out this one fact until depositions in this case when it serves their purposes to defend an arrest that had been thrown out by the criminal court there's a lot of ways that they they could have this situation could have gone and importantly we have don't have to prove that they  intent in describing a tip either they may very well not remember what happened this might just be sloppiness on their part but the point is they didn't record this information so we can't test it they say they got the information from a field intelligence officer no one can describe who that fuel intelligence officer was so he or she can be questions they say it was produced by a confidential informant or so they have put in evidence that there was your argument is well there's a genuine issue as to whether there was a tip because of the absence of contemporaneous notes that kind of thing so on on that record including the fact that they showed up and found the gun it's after could a reasonable jury find that there was no yes a reasonable jury could find that there was no tempo or reasonable jury could find that there was a tip with significantly different content than what the officer said which would not serve necessarily serve to create probable cause a reasonable jury could also find that there was a tip but that's the point a jury has to decide that question the district court took the decision away from the jury when it should have been there there's the issue is the district court required plaintiff to produce affirmative evidence of something that no plaintiff could ever produce affirmative evidence of these officers say before any put the before the arrestees ever come into the picture we got information we didn't write it down we didn't record it we didn't keep him for track of where we got it or when we got it or what it specifically it said or who gave it to us but believe us that it was there and you created probable cause that's a very dangerous standards your honor if the police can create information without any documentation not report it four years later and then report it in court and defend their actions based upon that it creates a situation where plaintiffs could never created dispute a fact that's the issue here obviously we have to come with something we can't just give speculation that the this that the tip didn't exist or contain different information but here the lack of corroboration creates that the other thing that creates that is the inconsistency is in what the officers described about the tip their own inconsistency show that they don't remember the facts it with specificity there is some a nation some contemporary contemporaneous evidence officer turner's memo since he was debriefed about a gun at one pm that night that the memorandum notes that the officers went to the apartment to investigate a gun they told the father that received information about a gun in the bedroom of the park you write that that evidence exists in the record yes your honor why isn't that some evidence you can call in a tip you can call and information but there is no evidence that the officers had information that there was a gun in the form they didn't have any information that it was jarvis roberts and that information was contradicted by by other statements and actions of the officers they did describe when they came to the door they described looking for a neighbor by name they came nama search warrant they didn't apply to a judge saying we fear an armed assailant is in this residence with with children they came on armed without protective armor without protective gear from those facts a reasonable jury could the and i see my time is up mansur question of course and yes your honor but the facts of what happened in the apartment are entirely contested the officers allege that they were they found the plaintiffs as well as three other men in the room where they found the gun the plaintiff hotly disputes that claim and obviously the district court respected that dispute because the plaintiffs can give direct evidence of it but that's the real issue that was the disputed fact in this case and defense counsel through the litigation has attempted to dispel that as a disputed fact by drawing on other facts but that's the central point your honor is the officers say that they relied on the plaintiff's presence in the room where they found the gun that question should be put to the jury without resolution of all the even without all the other issues that question still remains and should be put to the jury thank you thank you will hear from the government good morning daniel watts brown for the police i want to start with judge jelly on this last question which has to do with leaving aside the tip all the other information that could have led a reasonable officer to believe that mr robert's here constructively possessed the firearm that was found in the unlocked bedroom in the dresser drawer and i want to step back and i know you all are very familiar with new york state law and construct of the action but when it comes to the question of argue a probable cause the question of clearly established laws are important and so what new york law says here is that a defendant can be convicted of constructive possession of contraband if there's a sufficient level of control over the area where the contraband this founds and as you all are also well aware i'm qualified immunity the question is whether existing precedence places the constitutional question beyond debate and here i think that there's a very legitimate debate when you leave aside the tip whether there's probable c arrest mr one of the people in the bedroom confessed to owning the god that's right your honor and the circumstances of so this is all undisputed facts right now or taking the facts according to you hell it's a convicted was and he was your honor and the circumstances of that confession were suspicious given their time in a red suit was only after the the officers had said to the appellant we believe this going to is yours and talk to him for some time about his claim that he did not live there that the the person who confesses oh i'm sorry i now remember that loaded gun in the dresser drawer is mine and i think that the very least reasonable officers could disagree about he wasn't in the room police are questioning was in the in the living room your honor and it was it was only what i thought they took each one of the privately away to talk to them i wrong about that i don't i don't know your honor i don't think that's material here as as to the question of whether the officers would want to discredit or have a reason to have reason to question a confession that only that only happened after some time passed and where the confessing person it's undisputed claimed that they had forgotten about this weapon and then suddenly remembered it only after the passage of some time turning to the question of arguable probable cause regardless of that's help i think that what's clear and the clearly established law according to the appellant is that there must be some facts suggesting knowledge of the contrabands above and beyond just mere proximity and so the factors that are relevant to that analysis are the extent to which for instance the contraband is in plain view or locked up or somewhere in between those the extent to which the defendant had control over the premises either through ownership or tenancy or residency and then also the degree of access to the room where the contraband is and the there are many gray areas as to all of these factors there's evidence from which reasonable officers certainly could have concluded that that and that was based on the officers testimony which is disputed that they found all four in the bedroom but what we're looking at on summary judgment here is the facts viewed in the appellants favor resting all for the officer stated reason was that they found all four in the bedroom where the gun was recovered from but looking at the at the facts as appellant contends and to be right the appellant was right in the hallway near the bedroom the undisputed the bedroom was unlocked and undisputed that the gun was found in a dresser drawer and it wasn't in some locked container and it was in fact found very quickly by police this wasn't something that was you know very well hidden and so i think a reasonable officer could believe that this case is very similar to the to the facts in the case of people versus pailin which we cite in our brief in which the basis for arresting all four other than the mere presence well you honor the four for two of the people who are not here before this court the basis was was their presence in that bedroom and access on that on that ground officers all testify that the tip was was an additional basis to arrest mr roberts and in fact that fact right that fact strongly supports that this tip existed because otherwise as you're suggesting right the tip in some vitiate probable cause as to the other two others right into the officers or certainly have no reason or incentive to make up a tip that you know hurts their case as against the other two right as you're suggesting there will argue that that's evidence that didn't now that point is disputed and the question for this court is right whether there was probable cause to arrest mr roberts and i think in light of the tip and certainly in light of all the other factors which in turning to the be wrote the officers or at least a reasonable officer could believe based on the information available then that mr roberts not only lived in the apartment but in fact lives in better number two and that's because the officers were focusing their search on only two bedrooms as the copeland to testify that's what the officer said they said were looking at bedroom two and bedroom four because they knew that there was a family with the child and three they knew the grandmother was in better in one so the only two bedrooms the officers were focused on and the uncle said bedroom for belongs to me and my wife which means that if mr roberts lives in the apartment as the officers had reason to believe it had to be in the bedroom where the gun was found which undisputedly has multiple beds in it which further weighs in support of a finding right that he had access to this bedroom had access to that dresser drawer and that's the question on constructive possession and so we posit that reasonable officers at the very least could disagree as to whether mr roberts constructively possesses weapon thank you no there's what we've just heard throughout the argument is a lot of facts we've heard a lot of dispute about who was where who was where they were when they were what the officers knew when they knew it those are fact questions that  resolve the court here is not me great position to evaluate that because you haven't heard any witnesses the district court in same manner does not heard the witnesses or heard them exposed to cross examination and that's what we need here we need fact finding to determine what actually happened that day there's a dispute about where the men were there's a dispute about what the officers knew and when they knew it and we should be allowing a jury to decide that but a qualified immunity overwhelms our desire for factual findings to say that it does unless the fact finding is so tied into the legal question that it cannot be determined as a matter of law which is the case here with respect to counsel's argument that the residence was that issue was known and that would be enough i submit two things first the officers themselves deny that they knew who lived in that apartment as i quoted in the brief and cited two detailed passages the officers were questioned other than being physically present in the bedroom are you aware of anything that  tied any of the four men to that better answer i don't know either way they didn't look for mail they didn't look for anything that would tie the people to that residence not to oversee harvard's claim to live somewhere else to erector out or he still maintains he live somewhere else and he maintains that he was given he gave a different address when he was asked his address was listed in arrest report which the district court relied upon as his address though i had an i d with that or drive the have an id he had no idea and no one knows what information was contained on that i d he does not recall when he changed the id the officers didn't make copies or you actually said they didn't recall even seeing an i d and not in that the ideas not in the record it's not in the record what is on the idea and it's specifically in the record that mr roberts said i don't remember what was on my i d it was not recorded in any way it was possible that it showed his address as that yes your honor he said it's possible it still showed that address where he had lived i don't want it actually shown exactly or no one knows what it shows the officer said they didn't remember if they saw an a dress and couldn't recall why they put the address of the arrest in the arrest report but then the district court relied upon that document which was created by the officers to show the officers could have reasonably known he resided there that's just circular reasoning that doesn't get them residents but even if they had residence this is not like the cases where we have one person who lives in a one bedroom apartment and is attributable to the contraband found their claim he was standing i'm broke when he says he was in a different  apartment there is a floor plan that we provided that was created by the plaintiffs he says he was in the fourth bedroom which is down the hall and that as the officer started to come in he started to see what was going on so there's a little question of fact of that exactly where he was in the hallway but that's the answer he the other plaintiffs who were not residents to the apartment but they were present they were while the officers claim they were all present together in the room each of them did night that fact but they can't they obviously deny that they were there so theoretically they could not say they were there at all they deny that they were in the second bedroom with a gun was where the gun was the don't deny they were in the apartment obviously correct or whether they say they were in the apartment gregory roberts claimed to be in the living room of the apartment and kendall massey said he was in the fourth better him and then was moving about the apartment as the search where was firm and massey berman massiah passed away before this litigation so hasn't given any testimony here he was charged with possession of the gun he was convicted he was charged and convicted on a plea of guilty to possession of the gun and to answer the question of where he gave the statement he initially gave a statement in the living room then gave written and oral statements at the police precinct confirming it was his g