presented in this case is whether the government can by its own fia the private defendant have any practical ability or opportunity to challenge the factual basis for his arrest all americans are protected by the fourth amendment from unreasonable searches and seizures every american is entitled to challenge an unreasonable search by amongst other things traversing a warrant pursuant to the franks decision every american that is except for arthur arthur napier was arrested on october eleventh two thousand  which i have never seen an arthur napier has never seen what we've seen instead is a small fragment redacted from the warrant indicating in the most conclusory and skeletal fashion that there was a cold buys in this case at some unspecified time in september and it sometime in october specified within the first ten days but that's obvious because he was arrested on the eleventh of that well it's well established supreme court law that there are are occasions when identities of people can be kept away from the prying eyes of the defendants as this seems to be nothing more than a than an example of that and it seems to me also that the your side was given an opportunity to have the judge conduct a considerable in camera investigation into this and declined well you rather leave the decline because in camera investigation would be essentially a nullity because what he would be doing his honor however sincere would be shooting into a cloud are think you know this happens all the time informants get investigated they they look at things in camera i did this for twenty three years and this was a standard practice and there are certain balancing privileges that go on and judges do this all the time i can't understand why you would have declined the opportunity to have a judge take a careful look at th we didn't decline the opportunity to have the judge give a careful look at it we had an evidentiary hearing before the judge in which the officer came in as to what the problem was was that there was nothing specific said by the officer i am assuming that had the judge have the informant present who they were dealing with information that either should have been available on pranks or discovery but the problem is that there was no way we would be able to make any kind of inquiry because we didn't know that they could but the problem is  the confidential question was the identity of the informant and there's no way that you could get the information you wanted without disclosing the identity of the informant i think i agree with the last statement by your honor but i disagree with the first statement is the premise the court adopted and i think the premise is wrong the issue was whether we could have enough information to mount a frank's challenge you couldn't do that without the identity of the informant right i don't know that for sure but let's assume it to be true often said the supreme court the suppression hearing is more important than the trial that was this case this case turned on the suppression motion there's no way in which mr nader was going to explain away a pound of cocaine sitting on his kitchen table the question was whether he had a constitutional right to have that cocaine suppressed we couldn't make the essential order a challenge to the seizure of the cocaine because we knew nothing and i mean nothing about how you agree with judge struck that it's a balancing question if we were then to know the identity of the informant in this case no we have an absolute right to bring up frank's motion and if bringing a franks motion means that we get enough specific information that somehow the informants identity is disclosed and the government chooses not to disclose it the government can dismiss the case you don't have an absolute right to anything you have an absolute you have a right to have a frank syria if you are able to produce some information suggesting there ought to be one you didn't even go that far i mean has your client said for example during the month of august i was in cleveland ohio i can't possibly have done what was attributed some sort of a showing like that but i didn't see anything like that either this was simply a raw assertion of power to get the identity end of the informant with nothing behind it well actually i have to disagree with the court's characterization the client said that he would be prepared to say that he did not yield any drugs during september and october that was on his kitchen table by implication with what he might have killed and that the officer simply intuited that he was a drug dealer and arrested him there had been a history of false going for months in the case before according to the officer apparently the defendant's ex pat was invigorated him for some reason and falsely informed on so we know that at least on one occasion there was a false information that came out of the evidentiary hearing but we don't know is when it was that he allegedly dealt the drugs how in the world could anybody do honors included account for twenty four hours a day for a forty day furious for everything that one has done and why don't want to repeat myself but but where your side shot itself in the foot was turning down the opportunity they have the judge conduct this kind of hearing i think your honor i understand the court i appreciate your position but i mean i can't believe that you would have foregone that opportunity you could have still still maintained the position that you're arguing here today and possibly made some headway you know judges frequently find things that prosecutors don't understand and then they tell of the prosecutor l there's a second fallback position that doesn't have a grandiose constitutional question and that is that in two thousand and three when mr napier had been out of custody the work and your plus and no harm had come to an informant and out of breath of scandal had been whispered about right present that kind of evidence that they have some specificity so i think i would submit it if the court disagrees with me i understand that you know if this is irrelevant we just had a case yesterday where in a client disclaimed half the stuff that was in the affidavit in the civil case when this all we know is that the informant met with a police officer a couple miles away in the informant had a cell phone and that's all we know if you want to save time to revive yes yes i sure i thank court my name is ken malecki and i'm an assistant united states attorney for the eastern district of california and of course i represent the united states in this action the honors mr napier is asking this court to do something that is part of the government's been able to want to emphasize before i answer your question your honor that we are not suggesting in any way shape or form that this should be a routine procedure this is a proposed procedure and in fact it is a procedure in the state law in this court makes it clear that drug trafficking crimes often involve violence or i should say drug trafficking the fandoms often involve violence and confidential informants that identities are to be handled carefully in addition he had received belief three misdemeanor convictions for crimes of violence one of them was a domestic violence charge one of them was a resting or excuse me resisting or scratching a peace officer the third was a rather minor violation of offensive words in public at the time of the hearing in this court judge burrell was made aware that there was a pending misdemeanor domestic violence charge against the defendant and he was also made aware by the tech of america at the hearing that was held that the defendant had a rather long rap sheet that included at least one other arrest for a very serious violent offense for which there was no conviction the district courts realize that  examination of the sealed portion of the search warrant affidavit presented very unique facts that would be unique to one individual and one individual only and that is the confidential informant and based upon the defendant's record of drug trafficking based upon his misdemeanor record of violence based upon pending charges based upon the severity of this very case which was a ten year medical and minimum case the judge felt that procedures had to be taken to protect the identity of a confidential informant and the government's a mess the judge in this case and in all other cases and the good of your government's admits that the balancing act was done properly and in answer to the court's question the government has indicated the dangers that the court believed were were fire dangers at the time to the confidential informant but the balancing act the judge threw out conducted also went further he requested that the government provide a redacted portion of the search warrant affidavit that was field basically i was asked to summarize that portion of the search warrant affidavit which was done clearly and there's no dispute the information that was summarized in that redacted portion establish probable cause for the justified the search secondly judge well had the affiant detective meredith testify in court and he was subject to cross examination deck the tech that meredith personally observed both of these transactions now he was at a distance and he did not see the hand ahead exchange but he saw the meeting between the informant and the defendant and these were typical procedures in which the defendant a searched before hand he goes meets the needs of the defendant or the suspect comes back and now he's got drugs that he didn't have before and certainly the cross examination by mister but by and they've your counsel was limited again places times they cetera were were excluded from cross examination submit that under these circumstances they see the pond really are over and the other cases that i have cited the district court had no choice but to find challenges to a search warrant concerning probable cause this case of course probable cause and challenge but to defend it was to bring a franks hearing to once again the district court was vallance in interests when the district court noted that the defendants the defendant's claim that he had not sold crack cocaine to anybody in the last six months was pretty far fetched the search warrant covered a pound of cocaine that uncovered an ounce of crack cocaine  uncovered a scale packaging materials twenty three hundred dollars in cash there was cocaine and the end of crack cocaine on the benefit personally is rested albeit in small quantities and that's what they found and that's but after the fact while what is found can't justify a defective search warrant he can be used by judge burrell with which he did use and in conducting this balancing act the defendant said i need to conduct a frank sharry the reason i need to sold them to that confidential informant who says that i did well this person who claimed that he needs to hold the franks hearing because he sold drugs to no one is in possession of a pound of cocaine twenty three hundred dollars a cash the scale etc judge burrell rightfully realized that that point that the defendants frank's pursuit was the end of a kind of call it farfetched that motion was going nowhere he hadn't made any preliminary indication acquired by franks to to justify the the franks hearing and judge growl and conduct in the balancing act that every right to question the defendant's assertion that he had not sold drugs to anybody in six weeks when the evidence that was uncovered by the search warrant crew quite to the contrary in short the governments of myths that in rare cases there are circumstances in which the identity of a confidential informant must be kept secret and this was one of those circumstances both the reviewing magistrate and it's a lot of county and the district court judge review that portion of the search warrant affidavit that was sealed the district court judge conducted a thorough analysis of the government's interest versus that offends interest and based upon that the analysis determined that the defendant's pursuit of a bronx motion was was farfetched the government's interest in protecting  coming from what question and i would ask you rather to think about this when this opinion what question would any one of you think that you could ask them you know i've been i was i've been in these things hundreds of times in the ones that i've been in if you want to get to what question i could think of are very penetrating judges are not members of the executive branch and i've had judges from all over informants because judges are very aware of the fact that some informants will sell somebody and you can't make that profit other than to say he wasn't there at all the same kind of question that a defense attorneys to objects people to when they go in and they say i was in a cell with jones that he can faster i bought narcotics from him or i saw him commit the burglar i use it i want to see your credit card records to see where you work there's a lot of ways you can pin down where somebody was wait a second you were in oakland or you were in solano making all these telephone calls and you're telling us you were on september whatever it is you were buying drugs from this guy and how does this square mean there's a