was reckless disregard the whole counsel this is my question isn't it correct that judge last specifically said that now we're not going to have a frank hearing we need a leon hearing based on my finding with respect to the search warrant for the apartment that's correct but the state's argument is that as this court held in bryant's if there's probable cause when doesn't come into play so our argument is that the portrait of found that there was probable cause  and then held that the defendant should have had to meet his burden of even a step saying that he was even entitled to frank's hearing and so should we let's say that we find that there was probable cause which would be grounds but also in bryant park then this what went on and did consider whether that was then they now can brian do we have a situation where the court fail to rule on the fact franks issue yes the court in affidavit supporting both both were considered apparently at the same time by the judge and the first question is is it necessary in order to find probable look at what the judge who issued the warrant the facts that were before the judge who issued the warrant and it's a different situation if you've got two totally different investigations or totally different separate senses here it was at the same time judge leave the record shows that everything was presented and at the same time so we would be relying on the case law that says you look at what the facts that were presented to the issuing judge a apartment alone based on what was in the apartment every day that we would argue that there was enough there but it's certainly strengthened by what was in the talk about the date and even if of course it wasn't probable cause then we would argue that the leon exception does apply and that the court was wrong counsel would you talk a little bit about the issue that judge lahat i think the primary issue was there was allegedly no nexus between the heart man and the defendant in any offense could you explain commonsense you look at everything that was presented to the judge you don't it and if you start looking at the nexus that can narrow the focus too much if the the state would like to clarify also as to the franks and leon standards i had argued in my brief that they were essentially the same they are substantively substantively essentially the same that's i was arguing that because the issue is whether or not we look at franks or leon and i was trying to say that those findings we can consider either way but the important thing is whether no of say that's that's all right and of course the the trial court did go into those issues which under our argument about the similarity of the standards was basically the same question i would like clarify though that of course cited brian for the proposition that we can move forward on the frank's issue are you aware of any case law that says that we're required to do that i mean bryant certainly doesn't stand for that proposition would you agree  think that brian would stand for the proposition that clearly as you know holds that if you find that if there's probable cause you don't there's no early on here right but then craig still applies  clearly would be to a reasonable person to find that he hid his gun in his apartment and there are cases that we would admit without a heck of a lot of analysis older cases say well it's reasonable to assume that if committed a crime of located in an area near his residence and that that is sufficient to justify the issuance of the search warrant for the residence and wouldn't th sure if your honour's referring to judge led saying that well you know somebody just calls in a report of someone crime and then the defendant is found wandering around the area of his residence is it enough that would be open the door to him or miss searches someone's home here again look at the totality and there's a short period of time between there's no doubt that he committed this offense or at least certainly more than reasonable probability and judge l like three in the morning so he wouldn't be expected to just wandering around at that time and also it was more than just somebody calling in a report this was very strong evidence that he had committed this or here there's something missing and they're doing the the gun that was allegedly involved in the criminal activity then within a short period of time when the criminal activity was report so we would we would argue that there clearly was probable cause and then asked to issue to there were three statements the judge went down problematic and as we are you the two of them really i do like to focus on the most problematic one which was that often we've stated in the affidavit that officers advised defendant may have been inside his apartment prior to their right and of course as the judge found  that statement is officers and by an as a cheerleader testified nobody advised him of that so that's what we have we're arguing that since the facts that would support what the officer said that is supports fine in that he wasn't lying and there's nothing in the record that shows that this was a can but a misstatement and it's not sufficient preclude to find that the evidence should be excluded the other statements i rely on are brief the testimony of the lights not remember whether any lights were shining as lieve testify that was one of things that he relied on saying that that defendant may have been inside his apartment prior to the auction rival instead those testified he could not recall whether any of the outside li common area or been by this basically right in the building which would be very close proximity to where he was seen and officer both did testify that piece saw defendant in the common area pretty much right in front of what was later determined the between the on hearing and the franks action with the leon hearing this help automatically following the trial court's finding that there was a lack of probable cause its function is the determine whether or not is appropriate in order to deter future constitutional violations that's precisely what happened here judge last found to be warrant an affidavit did not have probable cause she went to a leon here in i mean the defendant has to make that preliminary showing is that just a review of documentation or do you think that that's a situation where the defendant would have the right to call witnesses that evidence on i think that might be up to the trial we don't know what cannot preemptively rule it would it is the moving on to argument one judge lad who regularly concluded that the issue in judge did not have a substantial basis to find probable cause to determine probable cause there must be a sufficient nexus between the collection there's clearly a nexus and a connection to his home and here unlike mccoy unlike lyons we do not have that nexus if we look at the apartment affidavit all we have is that mr pettus committed an offense he was located in the common area and officers advise that he may have been inside prior to their right now i want to take that last statement first officers we have that as well so he was found he was located in the common area of this complex and as judged by the noted regarding that statement that does not link haddest with apartment nobody saw him and dream or leave his apartment and in fact complex and officer both identified him on the basis of build and build and quote well counsel what about the hammer's case i mean you don't have really anything there and reasoning or its rationale behind that decision it was one sentence and as the first district to hell in several cases it would be wrong to open up our citizens doors on the commission of a crime and the affidavit from a should say i'm plays a significant role in this case says as the state has asserted i mean what's the guy doing out at three for noory not far from this apartment after he just fired a weapon at someone i don't think it does because i think from if we look at the cases more recently decided by courts in our in this court in my answer there has to be a connection there has to be a nexus to the residence we do not have that we have a connection to the common area but not to his apartment the witness in this case was unsure about the registration in the apartment affidavit it reads as if she did not have any question as to the correctness of in the tahu affidavit it is very clear that and consistencies i and they we strongly against officer leaves credibility and that should have been apparent to the issue in judge when deciding whether or not to issue a search warrant in this case and so are you taking the position that it is up the belief a reasonable inference or basis to believe that the instrumentality or evidence of the crime would be found just like me clear she had never before her career suppressed the search never but she said she also stated she was well aware of after a trial court finds that a affidavit and warrant was not supported by probable cause the next step is the determine whether that evidence should be excluded the state has the burden to prove that the good faith exceptional  leon the supreme court sided that another way whether the officer was dishonest or reckless in preparing the affidavit and judged by found the officer of the it was at the least dishonest and most intentionally misled the issue in judging the situation she relied on three issues with this one the first was the previously mentioned registration the fact that officer lead did not include should be russell's misunderstanding or not her the fact that she did not have the knowledge of the correct numbers just like the found office really didn't more than leave out russell's incorrect information leap created a also just what they found that this was a deliberate choice to rephrase up in clearly an attempt to mislead the and what judge vlad took most concerned with was the state of the officers advise that mr pettis may have been inside of his apartment again she found the school to cirie and movements she stated that if a search warrant like that was presented to me i would hope i would have the good sense to say what does that mean because what it is is an attempt to make it sound like had a switch in the apartment because the officers needed a nexus to the apartment to make it legally sufficient to search she stated that i believe it's been phrased very carefully she trying reach some suggestion that he was in his apartment she found the means absolutely nothing has no basis and was carefully phrased to create conclusions that are not factual suppression is appropriate judge glad made these findings of the truck or that officer leave reckless at least recklessly if not intentionally misled the issue progressed with frank's hearing and of course he went on and did the we are good faith hearing and then this court said and actually found itself the defendant's allegations in this case fall far short of the the pleadings or is it an opportunity to present evidence presented witnesses on that show or that has to be made to entitle you to a friend's hearing you have to make that showing then you get a hearing is just not automatically  deprivation because this has all gone into in the trial court that hearing all this and it was it was the same issue the same issues were were presented and there's no showing that there was something else that might have been that look at that and it's should not be overly concerned with what judge lab found it's the law hasn't changed there is no new nexus requirement lyons does not signify  the apartment bryant again says we look at what the officers did not what they didn't do there's no authority for saying that they should've waited and to see what he was going to do and of course that's beside the point of whether that was probably cause to believe that he had deposited the gun in this apartment which we're saying the facts did show there's a reason