is that the police knew that her change story was a red flag and for whatever reason they didn't think they had enough based on what she was telling them until two thousand and fifteen this was two thousand and eleven when she met and then they got some progress is that correct  mr wells i wouldn't call it corroboration but i understand the argument well said things to that district judge said corroborates smith i think that the rule twelve stage of the case we can't assume as a matter of law that he did it we don't know who these people were we don't know if the police knew who they were that they were able to assess their reliability so it's sort of comparable to a confidential informant case when you rely on hearsay but it needs to be reliable this is a real twelve developed hardly contradicts the eyewitness id you know i understand that the way to there may not be strong but it can be some again you have the hearsay and he just he didn't know enough to corroborate smith that you sounded very conjectural and circumstantial no no but he was also in one sense very careful because he says i didn't see him shoot me although he could have so that i actually increases his credibility and nd he says and you're right there we can describe it as hearsay but this is not in evidence your issue it's whether this person has some credibility he says people have told me that he shot me he refuses to look me in the eyes and so on and that may not be who are these people see again this is not a summary judgment case where we can assess what the police knew who told cook in wells this maybe he made it up maybe people said this to cook it well that no police officer with credit so at this stage of the case i don't think the complaint on its face establishes as a matter of law that is probable cause and that's equation but at this early stage of the case can you say that a complaint as a matter of law stablish is probable cause i don't think so so for these reasons this court should remand and allow this case to proceed for discovery let me ask you that's not in the complaints i'm not sure that's coming from it wasn't raised below so no one had an opportunity to brief it below my best answer to that inquiry would be at this court finds that there was error in finding probable cause that issue c to believe that this was in fact the shooter in this instance and conversely it's our position that the amended complaint as it is read doesn't contain any specific factual allegations to support a finding fact you waited so long to arrest me what's the explanation for that you get a witness and i'm witness whom you're now saying give you probable cause but you don't act on it for more than five years certainly it's our position  waited four years as i said before they were building a case and now the amended complaint doesn't specifically allege reliability based on that what is it what is it in the record that just want to reiterate the issue of conclusory allegations in the many complaints based on what we allege in the many complaints we can reasonably infer which is the standard on the rule twelve that there was something wrong with eyewitness account from jasmine snaps that normally in a case like this which which is a horrible killing by the way this is a terrible story what happened you would rush to arrest anybody that you think did it and why agree and i waited this long  murder that she was afraid but now she comes forward and she makes the identification i'm not sure why that's not enough it's a matter of law because we don't know enough about what she said in claiming that she thought it was the p was legitimate or reliable abasement common sense we don't know any or probably not an opportunity to go fishing and you have to have a plausible grounds to think that despite her explanation the police had reason to think she wasn't reliable well she had outstanding warrants so you could that doesn't that doesn't necessarily preclude her from telling the truth it may not once you have a full record but at this stage of the case you can draw the inference that she changed the story because she had outstanding work out i mean is there reason to think she got some benefit do you have any plausible reason to think that she benefited from cooperating i think we can make the allegation that that's one of the reason she changed the story but you have to have a good faith basis to think that well but the sequence gives you the basis to make the argument it allows you to take discovery on that issue but this is this is such an early stage of the case to draw as a matter of law to say that her nd interview in which she identifie point for the st time is enough by itself to establish probable cause that's the problem thank you thank you very much