issues the first being charged claims in the prejudiced to client and the second being government misconduct i'd like to focus on the third issue which is the motion of the press and more specific i think i would be usually  child people not to recite facts but i don't understand how this whole thing came about i gather that the warrant was quite separate from the instance that led to this  convention this prosecution here and did they have to fall where was the phone before that when when they stopped the car there were four fallen city they'd take the fourfold standard they searched the four phones then know your honor what happened is that there was a unrelated shooting that occurred on october first of two thousand and six that was investigated by reno police department mr carter was stopped approximately on november thirtieth of two thousand and sixteen at this time the suspect in the shooting had already been taken into custody they were taken into custody early november when they stopped mr carter by the way and one of the nice of somebody would have put this in the braves and it was really a mystery all of a sudden this warrant showing up you can't figure out what he's doing there but go ahead thank your honor and when mr carter was stopped there was two other passengers in the car one in the front and one in the back when the officers  eventually searched the vehicle they found four cell phones and in fact what's really into unknown and part of the issue for the search warrant application is where the cell phones were located one was allegedly on mr carter the other three were either somewhere near mr carter or somewhere else in the car vehicle that was actually not a very developed issue in regards to the actual underlying but the portion and all the rest of him a  law enforcement agency asked for the source one application which you see in the record officer williams and in that he tried to make some nexus or connection as regards to this october first shooting where mr carter really want to stress was not a suspect and that the most curiously is an officer williams really misrepresents i'm going to use that strong word to the court that he observed or heard some kind of communications between mr wagner who was his suspect in the shooting and mr carter who was not but that's a misrepresentation because there is actually no factual basis that there was any communication officer williams when he first listened to phone calls from mr wagner i said that he was talking to an identified male was when he ventured into his  warrant application months later he stated that he heard phone conversations making it plural which was not accurate to carter which again was not accurate now  really interesting is that the judge in a footnote to his order when he denies that evidentiary hearing on the issue states well the government made a logical conclusion or assumption that you know months later officer williams probably heard carter's phone or voice there's nothing to substantiate by and the fact that we're still questioning the facts up here in the ninth circuit on appeal just really why there should have been evidentiary hearing another frank standard and that there should have been evidence or a hearing to clear up very well the officer may have had some basis and may have actually i don't  who was on the phone with mr wagner and therefore would help next but helos all hooks up with this case as you also complain and contended in a different argument that asking for the phone  it's what's the what's the connection between those two things will first is that the phone number that was actually searched while all four phones were searched and only one had evidence revalue to the case that phone number was not any of the phone numbers that was called by mr wagner that fact was a method by the officer in his search warrant application when you read the search warrant application by officer williams it makes it sound like there was ongoing communication that the police were aware of directly between mr carter and mr wagner and then when the government actually states office really in states well and also criminals are know to communicate on the telephone that is essentially his basis which is nonsensical and not really the whole theory under probable cause under the fourth amendment so the mere fact under the phone number and here returning back issue your honor as to he stated a phone number that later turned out to be one of the phones when he was being booked and there was a pretrial motion eliminate that prohibited all statements after and the main issue hartigan argued and the court and the government stipulated that miranda had been not properly executed in this case so every statement after that should have been suppressed and that's why i was arguing that even a statement through a booking after  there was four cell phones that were found in the car one cell phone was on mr carter so far as the record shows that was the same cell phone that he told the police about when they booked him correct that the cell phone number doing the booking process the police knew about it then right well the fact that they're using it and turn it as presumed to have evidence that it is his cell phone and and i would like to clarify the record  actually a little bit more can fusing than that when the officer testified who booked and mr carter he couldn't remember was it one cell phone was it two cell phones he just remember that there was a cover on one side of what i don't understand is that the police had that cell phone number at the beginning might do in the booking process right so when they discovered all that information was so fun and event even in the absence of the search warrant and no because you have to get a search warrant to search someone cell phone and if they had actually tied a proper search warrant application and stated we found this phone on him this was the phone number on this phone we're asking a search this for evidence of this crime that he's been charged with of firearm we want to be here so then if the us that was suppressed then this case has to be retried completely i take it right now your honor we're going back towards the search when application that officer williams because he believes criminals use phones and therefore he thinks that because of the quote communications between carter and wagner because they have one other communication a different phone now there was no proof  and i would like to go back but even though the officer say that he says it was carter he didn't say how he knew i listened to mr carter i met with mr carter i recognized his voice i went back and listened to the prior record and after mr carter relevant i'll start at the beginning with what it says and why it's linked to the phones because i think that's the court's main question is how is this linked to carter's phones specifically so in the affidavit we already heard about the background of the october first shooting right so that leads us to the cell phone the district recognize that this was in fact his girlfriend cell phone not carders but the content and the cause is what's important so in the first call he calls the girlfriend cell phone but actually speaks to carter so he's using this phone as a means to how do you know he was speak of the call to them from the affidavit because we have the officer who heard the call first and knew it was a male he then interacts with carter after he's arrested on nov thirtieth backup that was the  speak to that but it was the same guy so as of november sixteenth when this recorded call happens all we hear is a male's voice asked for two weeks later october thirtieth sorry november thirtieth carders arrested he goes to the booking process the opposite or speaks with him which is perkins and tell him to flee the area regarding the shooting so he's trying to obstruct the investigation about the shooting and he's giving carter instructions on what to do next a lunch he wanted them to float that port i guess it does and the reason why it flows straight to his phones as opposed to some other place to search is because what you hear on the recorded jail calls he's telling harder to go find perkins and tell him to flee so we can infer from that that one place that he's going to make these communications is on his cell phones whether it be call or text but he's instructed to communicate with perkins and tell him to flee and then in the second call same to the girlfriend cell phone he doesn't speak directly with carter but he instructs the girlfriend to stay in communication with carter which again draws another link to carter's phones because it's reasonable to assume that the girlfriend is then going to communicate with carter as perkins instructed her to do  where the evidence came from though because as a practical matter there's going to be no prejudice as to the other three there is simply nothing on them and if you look at the one where the evidence came from that was the one that was in his pocket if you look at officer shires testimony it's pages to  because mr carter didn't make the threshold showing for frank's so here he didn't show a substantial preliminary showing with an offer of proof about intentional or reckless falsity or a mission and he also didn't show materiality so he didn't rise to the so there's a police report that's written on nov seventeenth right after the jail calls so early in the investigation that's at the time when the officer thinks he's an unidentified male but when the affidavit is there and i believe in january more investigation has taken place including the arrest of carter which was by happenstance for the gun but once he's arrested they're still trying to talk to him about this october first shooting and that's what the whole suppression issue was about with his miranda statements it is said we tried to interview him about the shooting miranda was improper the government conceded that and so that information was excluded and i was the same officer who saw the at the gate who was a booking agent when he was arrested is that it it's not the same officer who signed the a but the officer who signed the affidavit is involved in investigating this october first shooting so where does the inference come from that he knew what was carter because his interview was recorded when he was book why is that true i mean there seems to me again and this goes to why there was an evidentiary hearing i mean you can come up with a chain of inference about how he might have known it was carter but we have no idea whether he listened to the table whether he knew his voice whether or whatever but we have an ongoing investigation and then we have an officer asserting that this is carter talking to perkins and so we're assuming that based on that an investigation that's how they concluded that information or you're assuming exactly without  knew his voice or because i'd listen to the tabor because something i think it would be fairly common to see that but i don't think it undermines it without that because what you have is the officer talking about who aggers calling on these jail cause and stating from his own personal knowledge that he knows that it's carter and then we have him talking about what carter should go and do after that which is make communications and to tell you the providence he would have been to have had a franks hearing in this particular dynamic situation finding that the guy knew it was hard i mean it it's kind of taken you know pulling teeth to find out that in fact the guy who signed this wasn't the person who arrested carter or interacted with carter and therefore there is an additional inference which i don't know that the judge realized that he had to have a listen to this that there was a tape number one which isn't in the image after david and true that he listened to the chamber which isn't in the talks all about what information they're gathering and i do want to correct i am saying that my it was i can't explain why you know it was a car but carter was a suspect from the very beginning in the shooting his car was caught on video surveillance and so we know that carter is in play and so it makes sense that if you heard a voice and then you are already looking into carter that you would go and confirm that he was there so there is enough linking the evidence in the affidavit where carter's instructed to go out and tell cuddy to flee and that  be done on his cell phones as well as the fact that he tells the group and keeping communication with carter someone really could commonly be done on the softened so that to keep in communication with carter or to keep communication with whoever was on telephone with or told his girlfriend to keep in you were to assume that the search warrant was not valid and we would still fall back on our alternative arguments that we made to the district court such as that it would still be able to be included based on good faith because again back to the  court thinks that there should have been an evidentiary hearing just on the factual matters there was still no substantial preliminary showing about intentional or recklessly made false statements or emissions and i think that even where they're hearing that that showing could not be made really i think if you build the record and you have that hearing it doesn't necessarily meet their burden of showing that intentional or recklessly made by going to shows for that question if the answer is we didn't have any idea we just said it because we want to get it carter  for because of this other conviction that would be a problem right as what rights are is so i think what would happen just in your hypothetical question judge bach is that you would have a factual hearing they still wouldn't be able to show that intentional frank factual questions on the warrant versus should there have been a frank's hearing and that's where the defendant has met a burden to get frank's hearing so it's kind of two separate questions i think that if the court finds that the record doesn't have enough information in it to lead to what the facts were then that's more of a factual development point just building that record and then maybe the defendant could look at the record and if what happens which are judged by his own side is the obvious he said i had no idea i just made it up well then sure then maybe he could make a franks motion at that time to throw it out but if i were talking about his factual development that's a separate thing from it's your backup point that it would have been improper to have this disregarding whether they knew carter was on the phone at all that it still would have the other facts would have supported but there's nothing in this declaration that makes carter a suspect in the crime is there yes there's a lot in the declaration because it talks about the one up there was an argument at the one bar between carter and i forget the other guy's name but the rival gang members and then the victim and his friend cousin and after that that's when they get to the parking lot there's the shooting it does talk about it so i can give you a page number here page four twenty eight twenty nine of the record there's a lot of background talking about why carter was involved in that shooting so carter is not just pulled out of thin air he's the prime suspect in the shooting from the first day everybody involved in that shooting should have this cell phone you know once we get the jail calls and once we have him instructing carter to make sure their communication that in general what we could have thought they were communicating by phone well i think you have to link it to carter cell phone rather than just saying people communicate by phone so i thank you very much thank you very helpful and you will this is all work in progress go ahead and make your own or if i do agree with you just block that this is the time in a place where there should have been an evidentiary hearing and really have fleshed out these issues that were still what about the suggestion that you didn't adequately asking that you reverse for that issue to have the evidence or a hearing to see where they come up with you then friend says if there is any factual basis or if it was a misrepresentation and therefore undermines the probable cause to the magistrate ok thank you very much let me ask you one last question i presume we could have the hearing without presently overturning the conviction and you just have the hearing at this point and the pending on its outcome would depend whether there was person's whitacre and then as i said who will take a short break