there really probable cause to make an arrest at the time or did the police chief p c put his finger on the scale so to speak and influence the determination with respect to whether or not to arrest based upon probable cause at the outset your honour's i'd like to submit to the court i apologize for not putting it in the brief that the standard of review in this case is de novo it's a fourth amendment finding by judge wexler at the end of a trial or of th granted to the to the defendants and it cost all of our city of new york city of burlington six thirty two f three d forty one this court said in the fourth amendment context that it is a dean of a determination for the p mr tobin who is the defendant who refuses to come to trial he was subpoenaed and didn't show up at the federal court trial and we know he had lived in many respects and he was the one who called  stop at a red light on the northern cuts in front of him because of these roads converging it's easy to understand people's eyes may be diverted to mr to sell me a touch the back of his car i don't know that's not before us the facts of the automobile accident that's an unhappy for us it's not for us is whether the police had probable cause to rast and whether the judge appropriately dismissed this case did the judge make fi judge said in his three paragraph dismissal they further did an investigation based on the undue influence whether was because of another route the chief they made a determination that there wasn't any and that said so he took that issue way from the jury yes he did you want to make this argument that he took he improperly took the issue way from the jury or i thought that your argument was that he just decided in the wrong way when he dismissed the case so i took it away from the jury i mean if you make the argument that it was improper for him to have a directed verdict in that way before it got to the jury well what we argued was that on the appeal our specific argument is that i could read the caption to your they made that determination how could it be the evidence was an aqua poise you have you have you have there is supposedly missed that this so hits him in the back and pushes his car twenty feet to so has the crack on his license plate holder plastic license plate holder there was a scratch on mr tobin's rear bumper there was no evidence of any debris on the street there was of starting points are number one this is a duty to report new information is a duty to report information that that would take this out of the poise where there's a credibility contest between two people and it's not only for the officer on the scene i think justice marshall years ago said you know the strength of the constitution is the most obvious in the interaction between the citizen and the police at that moment in time it's the force of the state that comes into play these are tremendous powers that these police officers have and the degradation of arrest is a very profound effect on an individual's life for that reason for that reason we have the requirement of a neutral magistrate to make a determination probably of that of the argument that you actually made  solo's car saying nobody wants to speak to him because they have already spoken to detective p c and in their minds they are going to make this arrest this is going to be arrest too often your honor i have to say it  it there is there is a tendency these days among law enforcement to say that if we do not believe the information it's no it doesn't constitute brady because we don't agree with the veracity of the witness because i don't believe i'm a probable cause right now yes we are but but but all of this it goes to go this information a neutral magistrate on the following day may have seen this other individuals statement to the police in which he told the police that in fact point though i mean the argument is essentially that there was no probable cause this was a this was a motor vehicle accident there was there was a little there was anger as there always is during car accidents this individual gets on the phone calls from the police chief and and it gets turned into a a big brouhaha the fact that and here's what's really critical i think the fact that gomez says that this is a big deal that this police chief is he speaking to him for seventy eight minutes on the phone he's not telling lieutenant posey he's not telling the tech the bittner that the chief of police is involved in this case and he says he didn't but those are the credibility determinations the jury would have made that's right and in fact i think is a matter of law we impute knowledge when there's an integrated coordinated investigation we impute knowledge among the officers to each other and then and this is precisely why the  does so because it's just too fast so i don't know i wasn't told you standing right next to each other it was their policy in practice always police officers are taught you speak to everybody at scene you take statements from everybody at the scene mean so you're saying that if they don't speak to everybody at the scene then there's there's not probable cause what i'm saying is all of this goes into into the realist into into what and yes what i'm saying is had they interviewed spill enough the evidence would have been the weight of the evidence i mean look it's a fact finding determination i understand the subjectivity involved in this here i'm just trying to figure out what we're asking police officers to do when they come upon a scene and you're saying that if they haven't identified and spoken to every potential witness they don't have probable cause that's what it sounds like you're saying well i think the problem with that the way you've stated the facts is incorrect in this case because even though posey says she was  the all of them except for tobin oh but all the overcrowded yes this case revolves around probable cause and there was ample probable cause for this arrest we want to start  first we had tobin sworn statement to the police officers then they looked at the physical evidence that corroborated his version of events there was damage on his rear bumper and his front hood as well as damage on mr t alteration in the parking lot the parking attendants yes later did come forward and say they saw what they did they did on june third this event took place on june first so he had already been released on bail at that time and then taking into account their revised statements when assistant they reviewed the complaint then he said they still had a sufficient felony complaint to go forward on the charges moved for dismissal you offered j m oh well yes after both parties rest of the county moved for the case to be dismissed what about the issue of the credibility of talking to the police they said they did an investigation it didn't affect anything isn't that a question for the jury no your honor i don't believe it is because there is no evidence that he that there was any undue influence for him to impact suggest that she was aware or was present when the call came the only thing she said she testified that she was unaware that there was a phone call with him until two years later at the first day of cause it doesn't require absolute certainty so i think that having the statement the three individual eye witnesses the physical damage that corroborated mr thompson's version of events in conjunction with detective bittner own investigation which happened after and which he followed up the next day went back to the scene as it left his card in case any of the valleys wanted to change their statements at that time  did his own investigation and it went to early case assessment bureau they looked through the facts of the case and again found that there was probable cause and as i said before this was with the updated valley statements they looked through and said the felony complaint on its everything survives of analysis as far as i've seen with respect to the the detective coming back the following day he who we spoke to the following day was a manager of the of the bryan cooper and he left his cause there and said if anybody has anything to say any of the people have them contact me but and you your honor when i had mentioned this idea of the concept that you know the probable cause determination is a fluid notion that that can evolve even after the rest even after the arrest of the police can develop new information that that talk to him is powerful circumstantial evidence of in fact that there was an understanding based upon chief pc's involvement placing his finger on the scale that results in m finger on the scale but i think that that's part of the credibility determination of the police when i think we would be entitled to a jury instruction that says that knowledge is imputed among the agents is imputed among among the officers responding to the scene and working in tandem on a joint investigation i think that if you look at the circumstantial evidence in the objective sense it shows no more than a car accident and doesn't really roof reflect this this officers correct so the officer stated what they heard and what they relied on right and your theory seems to be that they nonetheless had an obligation to do more because well my theory is that they're lying my theory oh he's a nice guy mr tobin had of your views they were lying about went home and told them all so absolutely yeah i believe the tobin was lying it was perpetuated by by detective gomez and it was perpetuated by the rest of the officers by their inaction by their acts of omission by their not doing what they should have done which was interview and i'm not saying go interview and knock on doors this is a passenger in the car an eyewitness to the scene  versus city of new york eight seventy nine two d ten thirty two they were all in my brief with respect to this this was purely a factual determination that had to be made and the judge took it away from the jury