reverse that summary judgment finding their mature you issues of fact that preclude summary judgment on the sport the minute fifth amendment and fourteenth amendment claims illegal search and seizure and improper lineup and also that the court find that qualified immunity does not apply to beards beer or bar and we also ask the court find that the district court erred in not striking the hearsay evidence and consider it on s and we also finally asked the court to find that the trial court erred in striking our expert now on july thirty first two thousand and thirteen mr brian pore was sitting in his easy chair in his house on laurel street in north baton rouge his mother was in her eighteen wheeler drive in and from work with a load to her home which was virtually next door to his home when he his door was broken down police officers came man and he was arrested for four robberies that had occurred in baton rouge and the in the month of july his mother's home was broken into she a daughter pregnant daughter there with other then or bystander type liability to the extent there may be such what did beard and bargain specifically do that violated the constitution well let's take barb in you honor let's start with barb and detective barbour was asked the windies on florida during the second robbery he had been there earlier that day and he had interviewed some of the clerks by that time they had gotten a photograph from the still photo that they had gotten from the from the from the the first robbery from the family dollar store that was taken in the parking who is who is my client they then have placed his face although he didn't match the physical descriptions into a photo lineup so they went to the to the store that day that it had been robbed before the windies on florida and they interviewed some of the clerks there and the courts have previously said that the people who robbed the store for wearing masks over their faces and gave very little description of these robbers and there were two that robbed the the windies the first time and my client did not match the physical descriptions that were given by these individuals who witnessed this first robbery nevertheless they went back interviewed these individuals and tried to get them to identify and you keep saying day the problem that i have is it your tending to mush together everybody and i'm asking  question about beard and barb and what to do they do to violate the constitution and then one to know how that connected to anything that because of course if they wrote an affidavit after he was arrested he's already in prison and you know make much difference if they didn't write an affidavit than that also doesn't make a difference so tell me specifically because i understand the concerns with lear but i'm having a little trouble with with beard and bargain other than the bystander argument thanks your honor i was just giving a little same day that particular windies in florida was robbed again bob and went back he talked to the same clark again by that time and with the descriptions that were given he knew that it was not bryan porter who these clerks had identified earlier and he testified to that despite him knowing that brian porter had been disqualified by his i didn't occasion and not matching the identifications that happened on july twenty eighth two days later your honor he went and sure had an affidavit at the request of lear and i've cited that in my brief the citation to that so he was working in concert with lee or at that time your honor he had a duty to speak up and obviously or must have known that this man didn't match the identifications and he testified the reason he didn't reach showed them these photographs  a lot of afterwards because because he knew that it wasn't brian cork two days later he's wearing out an affidavit to go get arrest warrants and start trance so that's a little bit more damage than a backseat the robbery of the plank road he did not investigate the plank road robbery he did not speak to any of those witnesses he did not corroborate anything that was said he swore out an affidavit two days two days later on the thirtieth also that said that brian puir matched the identifications given by these witnesses when in fact he testified under oath that he based that entirely upon what another detective had told him you know that you know they say qualified immunity is to protect you know those that are in the militias they have in t n it are those that are clearly  act this is beyond being in that these three officers got together on july thirtieth for the purpose of swearing out multiple affidavits to bring to the judge judy white to suggest to her by omitting material evidence that brian porter had in fact robbed these a stablish once so the involvement of beer was more than just he was also your ana and the windies on the twenty eighth on the second robbery and interviewed some of the store some of the on the store cards before the second robbery where the record doesn't state that they were all there doing th was on the thirty first forty three did that affidavit which is after this took place so i'm wondering if there's in the contemporaneous time when officer lear prepared his several affidavits were the other two was seeking affidavits to obtain a search warrant that's a page twelve and thirteen of my original brief footnote forty six aside it record on appeal page four eighty three bob and depo at twenty one lines one through record on this case they basically ignored all of the exculpatory evidence that mr bryan porter didn't match these descriptions the first two places that were robbed the store clerk s facial tattoos marks on face in the first two they threw that out they say they never checked into the height the fact all they had was a description of this individual and a photograph the age differences as as the robberies go on the robbers get shorter and shorter the my clients steal six four it's only until the last robbery of the windies on florida when they knew it wasn't mr po this some of these happened on the thirtieth and then on the thirty first the same day as the arrests beard filed an affidavit for attempted armed robbery of the window that that's a different day do you mean they're mostly on the same day or do you think this quote is wrong the thirty first toronto star one some of them are thirtieth in some are on the thirty first you agree with that i don't have leaders in front of me right now your honor but i assume your honor his may have been on the thirty year ok these two were on the thirty first and they were used to charge my client with these two robberies but he'd already robbery from the original robbery of the windies that he was charging now you agree that there could be a gang of several people that go around and everybody has their own shift of who does the robberies it doesn't have to be the identical same three guys that every play right that happens in life that there is a gang of criminals and three of them go and do one place and a different three do another place or two of the same guys go in a different third guy goes i mean it's not required that they all be the same with the facts of this case your honor or are that my client was identified off of the photograph taken from a video in a parking lot on the first robbery so he allegedly was a participant in the first robbery the same weapon that ties all these together is the same weapon it was a sawed off shotgun with duct tape magnetic super tape  so this particular individual that was in this first robbery that they said that it was mr porter had facial tattoos to the witnesses said facial tattoos and they putting right around six foot or so my client didn't have to facial tattoos he's not around six foot that was never any sort of line up other than a photograph and some person allegedly calling into crimestoppers so from there forward this person was allegedly participating in all of these robberies they call them a string of robberies and they allege that my client was involved in this string of robberies when they ran the article in the newspaper when they ran the crime stoppers they talk ask you this if we a know you just agreed that the warrant was proper and his home was searched perhaps violently but searched pursuant to a proper warrant then you would agree that the finding of the illegal weapon would be enough to detain him thereafter not as a fruit of the poisonous tree when they call set but you didn't make the assumption i asked you to make which is assume the worst was proper then the detention would have also been proper on what was found in the home right i know you disagree that the work was proper and that's fine i'm not binding you to that i'm saying if the work was proper then what happened thereafter judge matter time to have to answer that question yes you still have it in fifty three thank you you that were obtained in this matter were they valid and or reasonable the warrants are political two to two incidences the july thirteenth robbery of the family dollar and the july fourteenth robbery of a wendy's during officer liers investigation of these robberies he received credible information descriptive information from eyewitnesses at the scenes of the crime he performed an objective investigation state surveillance video obtained a photo from that surveillance video which by the way that surveillance videos from the inside of the store not the outside of the parking lot that photo was put on local news stations crimestoppers and he was able to obtain a lead and identification of a mr brime porter he took that lead and he decided to go into police databases and review the the  understood i absolutely understand however in this situation there was no actual identification of a tattoo two of the witnesses out of about five or six said one said a possible tattoo around the eye and the other person said possible mark on the forehead nobody gave confirmed there's a tattoo it's a it's a snake on his face there's no descriptive description to the tattoo i mean if we're talking about a mark could have been a mole we don't really know so these are very well it could be the kind of war paint stuff people use of football games correct and that is also something that can be on your face one day and not the other i agree not a tattoo but stuff absolutely and that is also something that officer lawyer takes into consideration that people doing these things can put different kinds of marks on their face to try to throw off identification as a matter of fact in the report you'll see that one person was speaking with a foreign accent and they the witness doubted whether that accent was real so so perpetrators of crimes often do things to try to throw people off well i'm not saying a mark on this exhibit correct and neither did officer earlier and here and there's more surveillance video where that came from so after that he he took his lot he took that he took a photo created for a photographic line of six people or five other people i should say with similar characteristics and features and he presented as line ups two to one let's start with one person from the family dollar who positively identified this individual she also had mentioned that she thought his height was between six one six two again depending on who you are how tall you are and under duress you're never going to get a perfect or you might not get a perfect description of what i did sting point if i'm five feet tall i would pursue people a lot of people is taller than if i'm six feet tall i might perceive people are short because my perspective is looking up or down  that actually influence people yes i think so and as a matter of fact let's say i have heels on today but if i wasn't wearing heels at the time and i saw somebody six foot i might assume that they were speculation right there's nothing in the record  affidavits that were used to apply for the warrant these this is this is a group of detectives that works armed robberies so they all collaborate together you know they get they trade information and such but as you can see from the were all working together but i think that they communicate information that they have together but you know obviously they all know whether or not this wendy's was robbed or you know a second the wendy's was robbed again they they do share that information was the court in a position to rule that they are not involved in this the seeking the affidavits the second two people are we not in a position to rule that are we talking i'm sorry i apologize are we talking about officers  i believe officers bartman and beared are responsible for their investigations in which case they filed those a p c s and the court is correct those were filed after he was arrested  there is no there was no activity on officer liers cases that officer appeared and barbara performed i'm not quite i'm not politics for this because it is a lot of cases there may have been one witness that was interviewed by the you know on a leave your case but that would be the now as far as i do want to go and touch on this real quick as far as stating that if officer beard and barb an kind of information that would show that officer earlier had the wrong guy i don't see that at all because what happened in the july twenty second which is officer beard's investigation and the july twenty ninth investigation we have not that much information gathered from those robberies unfortunately officer beard did interview two suspects what he gathered from that was the same weapon was used sawed off shotgun with duct tape on the handle and that they just couldn't the witnesses couldn't provide a very good description at that point in time then on the twenty nine officer beard and barb an interview today officer barr been interviewed one witness whom said had a couple height requirement ideas as to the perpetrators officer beard had interviewed two witnesses that had couldn't use they couldn't be shown to the witnesses in that robbery couldn't be shown the lineup that's not the case because they were all masked and officer barb and does say that it was that position is because they were maps not because they knew that he was the wrong person it's because the robbers were mass and you can't do  photo lineup when you have masked robbers fully scheme asked robbers in the situations of so that's a point of clarification again going back to the warrant of officer leave year he put in the air that he he had multiple all it's in again in the first robbery he had one positive photo lineup identification that was that stemmed from a crime stoppers  tip and that he you know obviously he had his own discretion in reviewing the evidence and comparing the traits of mr porter in comparison to what the evidence he had at the time and just based upon the lineups alone i believe that that the information that is contained in those in those affidavits for the warrant there is no intentional or misleading there's no no information no misstatements contained in those warrants which is the standard you have to have either a misstatement a false statement or an admission and they have to be made knowingly intentionally or with reckless disregard and it also has to be material to  again two witnesses that describe possible tattoos or possible marks on on a face is simply not enough to include i don't find it to be evidence same thing with height differences these things are subject to perception and you know he an officer has the discretion to to weigh some evidence and decide what he can rely on and what he can't rely on that which is what's required for idea qualified and you know clearly now and basically the case is that i have stated that you know again it is talking about material misrepresentations or material omissions and i think that the definition of material is not going to fall within these possibilities and hype differences so maybe that's where it should go these are not material omissions well it is there anything that would put them on notice that they're required that when witnesses might are required to put that in the affidavit i don't think that there's any any standard as to exactly what needs to be put into an affidavit to support a war it's just basically that you know you provide the evidence that you have the and then you put that before a judge and then the judge is the intimate intermediary that decides whether or not probable cause exists and at that point in time the chain of false arrest is broken assuming that he can or he or she can finds within these guidelines but even if we were decide that they were material again i think he's very reasonable going back to again it's not a case but it is a reasonable the standard is being reasonable reasonable officer has to say to trust well i have five witnesses here and only two of them talk about a possibility of a tattoo and not to mention the fact that those the people that mention the part of civility of the t actually identify positively mr porter in that lineup who does not have a marking on his face again as the court has already mentioned the photo does not have a marking on his face and and like i said were exactly was the marking on the actual criminal the actual robber i believe that one of the individuals that it was arrested had a tear drop just an outline  right but i am not quite sure if he is the actual perpetrator from the family dollar like he said in the court has noted this is this was a group of individuals and obviously not the exact same people that i within the confines of what the officer knew at the time and i made that argument that it doesn't even matter who was inevitably arrested or what he had was because that's not that's not what the officer knew at the time what about this argument that ok at the time the time time maybe they know this but they started gathering more and more information that that called into question porter's complicity here and in doing with it until the three guys were brought to four and then it was clear one porter and then they let him go for that although i think they held him on the other charges which was ultimately dismiss what about that our combat actually is a little incorrect the officer porter had gotten a d n a analysis of the band that was from that analysis he immediately notified the district attorney's office the mr porter had already been arrested and at that point time it's in the hands of the d a s office and just to make mention that the bill of information filed by to go back to barb and and beared the bill of information does not cite the the crimes that were committed the robbers were committed on july twenty second on the twenty ninth they were strictly limited to the crimes that are talked about even if beard and bargain lied no harm no foul argument we're just i don't think that they lied i think that everybody was operating with a similar modus operandi with this guy and with a group of individuals i don't think that there was anything of super significance that would have negated the possibility of crime quarters participation in these crime and again in the in the even in the last robbery you know there was a suspect that was a dead a fight between six one and six four by two individuals so you know that that's just it's not enough and so what were the range of heights for the person that was first identified as porter what were the range who were saying all these people gave diplomatic swing were they so when you're having when you're talking to witnesses and they can't tell you exactly who quarter or whom the each one is they just kind of give you they they talk about who they and what they did the range in total of heights was from five ten to six well six four i guess but really i would say more like six two but that at that point in time there were multiple individuals preaches that when the five ten came about there are multiple individuals that were participating and other individuals they didn't have that were given so it again i don't think that these things rule out porter for as being a suspect at the time from based on the information that he had i can talk about the so anyway going to be a bargain like i said you know he was not arrested for they based upon the affidavit of probable cause that they had filed and again i don't think that there were any physical descriptions that scene is secured then he goes and he just saying they sued the wrong people because it seems like you shouldn't be able to just tear up somebody place whether it's a valid warrant or not i mean it sounds like they can either way to just trash the place and saying there's no recourse for that or just if they sued the wrong people i think that if they wanted to see officer earlier is not their supervisor there is no evidence to show that he witnessed anybody tearing up the place if that even in fact happened also i would argue that the route to search was reasonable because it based upon the well the no knock would be reasonable based upon the dangerous nature of the suspect that they were trying to get and the type of evidence they were trying to recover which is a lot of money and you can stash it in a lot of places in a lot of good places so therefore i do believe that a search of small areas is necessary in that situation but no officer leer did not participate in that there's no evidence of it when they were desperately looking for something you've misplaced in your house or you tearing everything up now you're doing it carefully you maybe you know her you lost her wallet or you lost your id or something you really need maybe or you're in a rush but you're not tearing up your own house that's that's the argument here that yeah you can look and maybe you could even looked intently but you don't need to be ripping up the house there's no evidence that shows that officer earlier saw any of that occur or that he participated in that and i think there's only evidence to show that he did not participate and that he did not see that so we don situation but mostly i say that lear is not involved and again no evidence to support that he saw or could have done anything he again he's not supervisors he couldn't intervene he's just he is just the detective which is a completely different story than the  members of that team as well  and then at the very next place at the windies in florida there was another witness the very snatched the very next robbery that said facial markings that this is this is the actual guy thomas da from crimestoppers saying hey that looks like brian porter and ran with it and that's all they have they want to pay zero and zero interest would you have them do i mean guys are showing up robbing places around baton rouge they have a guy on video wouldn't it be appropriate for them to post that and then to pursue leads again that what a police officer supposed to do to keep us all right but i think a jury that watches crime story or any of these shows is going to say why did they go questioning why didn't they go look at this guy why didn't they follow up somehow looked up his picture he did look at him and the picture of did photo lineups and the photo lineups he should have know when he looked at his picture that he didn't match the other descriptions and he he doesn't even resemble this fellow and the people who who they did a photo lineup that's totally unreasonable itself to do a photo lineup with witnesses who never saw the man's face he was wearing a mask and to bring in they never even brought this photo in with mr porter photo there was basically no follow up he did the easy thing and went to a computer he typed in a name case closed but that was his lead asked is whether there is a case that says you have to put the varying heights in the affidavit and actually this qualified immunity case law has become fairly granular in requiring something more than simply well the law is that you're supposed to put it all material exculpatory information that's a high degree of generality what i'm asking is whether it was something more specific and so if you have a case on that i would be interested in that i don't think  there's a case out there that says when specifically that when there's very in height i e the witnesses say the man's five t n to six foot that came into our store that he's a young person that he has tattoos that that has to go into a warrant for probable cause but the case law says if that is the excuse to tory evidence then that goes into the warrant when you're trying to arrest someone who know that they have to give an american citizen a fair shake but corporal for you go in do a search and seizure of someone's home and their mothers home and arrest them now you're on to another another point that was made was the photo lineup and the the full masks and so forth the photo lineup is fundamentally unfair when these individuals never saw the perpetrators face for them to identify they see as much as i saw it was very important that what they would see is the person's body composure how they walk how they look and they never did and line up