ok so we will take this case under advisement our second case for today will be william raines burger against charles van or whenever you're ready mr morgan we'll hear from you true so this case is not about not about williams version of the factual disputes bit led the district court to create to have a hypothetical affidavit the low it's about whether the facts in that hypothetical affidavit and other undisputed information the detective better knew when he submitted it or enough to lead to allow a reasonable police officer to conclude that he had more than a bare suspicion that william was guilty or had committed the crime for which he was arrested be able to consider that other information that officer benner knew that was if in the hypothetical affidavit so i do will concede that at the seventh circuit i think it's a little bit unclear that the case be relied on as the knox case which arises in the context of a parole violation and in the knox case the court looked to the parole violation report which said that particular meeting had taken place and there was a factual dispute about whether that meeting took place that fact fell away and although that fact fell away which was that the basis for the violation report the court looked at other information that the parole officer had at the time and said based on that information it was enough to establish reasonable suspicion in that case was the standard because it's not so let me try this out on you the fourth amendment of  course is ultimately about the reasonableness of of what the police do but if there's a warrant we have one set of rules and if there isn't a warrant in some ways or more restrictions on what the officer can do and certainly if it's in on the scene let's say arrest the officers and hop pursuit you know or something like that then whatever the officer knows could go into the determination of probable cause but when you go to an issuing judicial authority magistrate judge a state judge whoever that judicial authority is and present a package of information for that judicial authority and you say please give me a warrant then it seems to me clear that the way you are relying on that warrant for the validity of the arrest for the validity of the search whatever it may be and things that are inside your head that you don't tell the issuing judicial officer cannot possibly enter into this into the equation now in this instance the only thing we have affidavit if there had been a you know a witness that had testified which sometimes there is if there had been documents that the issuing authority had looked at all of that would be fine but the warrant itself is only as good as what the issuing judge saw now having said that we know from leon that even if the warrant doesn't quite cross the finish line for probable cause if a reasonable officer could have thought that he did that's kind of the analogy to arguable probable cause in the warrant situation so as long as a reasonable officer you know it could have thought that then then you can you can move down that road but i really don't think that it makes any sense in the warrant situation to take the knocks approach which is of course quite a different context there you certainly do want to know whatever it was motivat the probation officer to take its action so i think we need to focus on this what this hypothetical warrant that the district judge constructed and certainly we had obviously a different view of knox and i think that head and i really think it's a good it's a a rule that fails troop the value of going to the judicial officer to get the warrant and and i think that's fair in the context again where it's someone who doesn't he wasn't the investigator say so war you know better apply for the affidavit someone else has but maybe if better had told the the issuing officer the rest of the information he wouldn't have even gotten the warrant which is in fact what happened to him the first time he tries to get a warrant and certainly there's  that an officer can rely on the probable cause to convey to them from another officer and that's that was our if it's conveyed but the no one conveyed anything here venner writes this affidavit and that's that correct but here this isn't a case where better got a warrant and then some other officer relied on the warrant to make an arrest then or is better as the office so why should better have the benefit of the warrant rule if he doesn't tell the issuing judge critical facts he doesn't tell the issuing judge that the d n a swab exonerates mr raines for he doesn't tell the issuing judge doesn't leave the impression that this you know elderly woman isn't so careful about who she opens the door to there or we don't know what the magistrate would have done and better can't have it both ways he can't have a warrant and say oh you know i was working under a warrant and the same time failed to tell the issuing judge facts which would influence that judge's evaluation of the warrant so very briefly and then i'll move on because i agree with you that i think we're fine if we just focus on the hypothetical affidavit here but briefly i did say that  it's a thorough investigation the last many weeks and then the officer just goes and makes a wireless arrest and i think the concern here is if we have the district judges approach that he took  they'll lose that protection let me ask you about incentives mr morgan is the qualified immunity argument that you're making the troubles me is that you seem to offer an incentive to aggressive police officers if you've got a weak case juice up the affidavit leave out the inconvenient facts lie which we have to assume for purposes of this appeal happened here go ahead and why and you'll still get qualified immunity if worst comes to worst that seems to be the incentive that your brief under that established law of the question is if you do that if you make mistakes in your affidavit that you're not talking about mistakes first of all let's go back to this do you agree that for us to have jurisdiction over this appeal we have to assume the detective better lied or at least recklessly provided information to the court yes more so we're stuck with that but what that means and the hypothetical affidavit approach is  fall away right that's how you avoid that's that's the condit don't think there are any further consequences as i it will be because again with qualified immunity we're just trying to figure out a way to take collateral or doctor to get we're trying to find a way just to avoid factual disputes and that's how i inference that the officer knew he did not have probable cause i don't know that it would be entirely inappropriate for the court to consider that as to whether the officer believed he had probably caused the problem is i don't think the officer subjective intent matters here if if probable cause exists it's an objective test if probable cause existed it's an absolute bar to both claims so i don't know that the subjective intent of the officer sort of in i understand you know he he raises it and then mr raines berger has to defeat the qualified immunity but looking at this hypothetical affidavit  unimpressed with with the probable cause you make a big deal out of the use of the word bash that william looks at his mother on the floor and there's something over her head new can see a giant pool of coagulat blood so and he's afraid to lift up the the cloth because he's afraid that will get the bleeding to start again he has he's taken emergency medicine you know e m t sort of classes he knows a few things so he uses the word bashed as opposed to a gunshot as opposed to pound as opposed to anything the letter started checked in the medical profession the word baksh isn't a term of art it's just it's a descriptive word so i'm having trouble making too much of that and i'm also concerned that the fact that her purse and prescription medicines are missing is is not something that helps probable cause fees to the wm in fact it goes quite in the opposite direction if you imagine a thief they're going to grab the person the pills and then they'll wait until they're safely somewhere else just the of the pills have some street value which apparently these did not but that the thief probably doesn't know that at the time they're there stolen so you know the fact that the first firefighter you know thinks that maybe there was a gunshot wound doesn't doesn't really take me one way or the other and then this this misleading account the district judge says i the district judge watches the videos at the kroger the whole thing is just spun in a way as to make it make factual issues about about this and it's you know under johnson against jones well if i had immunity can be a protection from trial but it isn't always when there are factual issues that need to be resolved and so that but the question here is taking those taxes the district court assumed that and applying that to the with blood all over the place somehow or another blood is coming out of her skull you know so he knows that there's that problem we're taking the fact that he goes out so that he can wave the ambulance in since it's a we view apartment complex and he's six which involved a similar kind of sequence where an officer went to federal prosecutors to seek probable cause and a prosecution was told no it's not enough then in essence sp those officers and said that this question of whether probable cause existed was for the jury including whether poor arguable probable cause existed which for the jury it would need to go to trial sounds a the court also critically concluded that it was clearly established that officers who lie and mislead courts in order to establish probable cause are not entitled to qualified immunity because a law is clearly established otherwise so so are you saying in that sense that the it's the subjective motivation of the officer that informs probable cause or something different and i think probable cause is an objective reasonable standard right  has to accept the facts that the district court found that there were at least seven material on missions or false words can i ask you how the alleged lies play into the qualified immunity analysis my question is this are you saying that the fact that the officer lied to prise him of qualified immunity somehow informs the first question which is was this law clearly established was there constitutional violation or does it simply deprive him of the benefit of the arguable probable cause standard even if probable cause even a probable cause in fact didn't exist it would have been reasonable fine officer inquiry is it really focused just on the hypothetical affidavit sounds to me like what you're saying that in clearly focused on as well of course you don't get it because it couldn't be that any reasonable officer would think it was ok to lie i think that question is is almost exactly like your challenge question to mr morgan is that is is the fact that the officer would lie can we take that to have created the inference that he knew that there wasn't probable officer lied in order to obtain the warrant we know that he says we have to have this we have to look at probable cause from an objective reasonable officer and would an objective reasonable officer know given that he lied that there wasn't probable cause in a court said someone standing in the gallon he's the officer the lights shoes would have further reason to doubt the probable cause existed if he knew that mcgann felt it necessary to commit commit perjury in order to procure says indictment which requires that the grand jury find probable cause so i think the court's already used the fact that officers lied in order to help establish the fact that there's really no probable cause and we know officer better knew there wasn't comes in which implicates others excludes william and he ignores that evidence doesn't present that to the court instead creates this false two forty phone call which is the most indicting sort of evidence against lam it places william in his mother's apartment at two forty pm a whole hour before he calls nine one one one and says that hey my mother's been injured you know he says that phone call occurred at three forty two his brother from his mother's phone so you're you're basically i guess at situation where with that's just a disputed issue of fact i understand the theory being it went through chicago so it got a central time stamp somehow on on the phone records and mile to chicago to come but it did and he knew that information plus he admitted his deposition he had information from the police detective that analyzes these phone records before he created a second probable cause affidavit that point i gather is away from well i don't think you need to because i think it's clear that the district court's decision was correct and they're just absolutely no probable cause looking at that one but if you do go outside the war as officer manners permitted or asked you to do and consider other facts which i think raises some factual disputes that would divest this court of this narrow interlocutory jurisdiction then it certainly ought to consider the other facts that create those toward appeal is we don't think the court needs to consider those facts but if it does it should consider them and find that there certainly wasn't probable cause give me a ray of evidence that showed that there wasn't that would support among other things and tunnel vision and i think those are you know the district court said well a lot of that's going to be excluded one perhaps it is yours not that part because that part i think is comes within this court's recent brown decision about expert police testimony and what might be permissible about training in national standards on training and certainly dr gosnell says things i train officers are trained to textures and how to look at things and you don't of course you can consider well you should consider he's a suspect everybody's a suspect but what officer then or did was was to exclude all evidence that it requires enough evidence to conclude that a reasonable officer would conclude that this person committed this crime and if you've got months and months to consider such a weighty crime charges somebody was killing his own mother and you don't even follow up on th survey of the scene he doesn't even go and look in the dumpster or see if there are some trash cans with your desk a question about arguable probable cause so it's your position that taking the hypothetical affidavit the court asks whether probable cause existed but it's your position that the court does not then go on if it concludes that probable cause does not exist does not ask what a reasonable officer think based on this hypothetical affidavit which which includes otherwise excluded  me it's very close very want to very close to leon approach i think it is and i think judge tenders decision is good here is really explores probable cause and argue will probably cause someone that you can and basically says it's the same because if you look at the hypothetical it still seems there are two questions if you look at the hypothetical affidavit you can ask is judge what was saying does this past fourth amendment muster was there probable cause but you could still think even though it doesn't cross the line we're going to cut people some slack there might be room for reasonable officer to make a mistake there and i guess what i'm asking you is are you saying that the defendant accused of lying as officer better was here or fits that question i think that's correct in one part but i don't think it's correct to say that an officer smith sworn is not entitled to an arguable probably cost you know since that's a law but i'm just saying it's the same standard as whether asking a question is whether given the set of facts whether  means you have to know what he did before in order to inform that's what jurist person accounts that an objective we reason off you in those shoes would say wait i have these facts that why did i put all these other facts in the put them in because you know  doesn't constitute probably cause which officer better essentially admitted in his e mail to bashan that there's just it's not even close williams speculates his mother got him in the head correctly doesn't see the smudge on her head that's about totally circumstantial case and they're certainly not enough probable cause thank you all right and thank you very much  district court erred in saying that you just don't apply the or you will probably cost entered when you have a hypothetical affidavit which was essentially the approach the district court took and that's consistent with this court's decisions and whitlock and lever i think it was and lever where the four explicitly said that the hypothetical affidavit approach allows for the availability of qualified immunity and that's the clearly established law center that's the arguable probable cause standard so we come back to the burden to show that it was clearly established that these is just strips down and looks at the hypothetical affidavit and says we're excluding everything else that's not present in this hypothetical affidavit and we're just asking on the facts of this hypothetical affidavit could a reasonable officer conclude there is probable  didn't look at they present some other evidence they say ok fine here's your hypothetical affidavit but what about these other things that might have negated probable cause once it was a sandwich in the district court didn't get to those things so here i think this court can do one of two things it could either say you know based on this hypothetical affidavit there's a nuff that it's it's arguable probable cause now you still have to consider some of the things that the district court didn't reach the d n a evidence and some other things this court could choose to do that on its own in the first instance and sort of look at the evidence and try to find wh disputed what's not and make that determination or maybe it's simply district court you got it wrong the arguable probable cause standard does apply and when you create a hypothetical affidavit and you send the case back up to district court look at those things think either of those approaches