and i want to thank you for your service in the criminal justice act court always appreciate that your honor for the opportunity to argue before you today  course had to get a fishing license to go fishing getting it that my got closer to two years so we could yes or occasionally i would go visit my older brother in colorado to go fishing at the rivers out there he liked to go fly fishing and i knew i had to get a fishing license on colorado much like the state of missouri cannot give me a license to go fishing colorado the magistrate judge in the northern issue of iowa cannot license a fishing expedition of my client's house in the state of nebraska and that's what happened in the case before us we're here today because jurisdiction i'll just tell you that as chief judge i designated a lot of magistrates without permission the statutory authority matters in this case as we presented to the magistrate judge in the brassica as well as the district judge we have before us across the nation between the southern district of iowa and nebraska where this authority was ratified under the statute if this case it occurred with a magistrate judge over the river in council bluffs authorizing search and omaha there wouldn't be a problem because the public order was given down that showed a concurrence of the judges said that magistrate judges in southern district and the brassica had that crossed as a nation in this case the elements under the statute twenty eight u s c six thirty one and that's a given but but here we're talking about probably whether there was a good faith by the officer which is you correct me if i'm wrong but the rule by the supreme court for s judge because the leon good faith rule is not well there's exceptions to the rule of course the supreme court laid down the different exceptions the rule there's two different exceptions that we cite in our brief that we would point  long case that the government cited came up with other instances where the magistrate judge can abandon their judicial role such as in the case cited by long deck or case from the circuit when a judge doesn't fall proper procedures that can be abandoning their judicial role and again that also assumes that the magistrate judge had that judicial role in the first place the second exceptionally i do not  difference i believe it does judge because the abandoning of the judicial role assumes that there is that judicial role in the first place if there is no authority then it completely blows away the abetting the judicial role in the first  place the second exception reciting from leon is that the warrant was so deficient probably cause no reasonable officer could believe it the officer in this case who executed the search as well as presented the warrant officer she met if you look at the warrant the warrant was deficient in probable cause for a few reasons to get into but looking at the warrant that warrant was oversold i mean it was a pretty big sales job of the thirty two page affidavit looking at the mean let me throw this at you you're asking a police officer to have enough knowledge to know that this was this was not a legitimate  and yet you have a at least in the northern district of iowa the magistrate judge with authority and then you have judge talken here in nebraska reviewing it and saying  discarded the law to determine that the magistrate did not have authority yes or this this is not the first case we've had where multiple judges reveal warrant find it's ok and then the court of appeal says it's not  ok that's not a novel issue the heron case i believe we cited to comes up with a warrant where it was lacking in probable cause until and judge signed off of it are sorry signed off on it up until we went to the court of a s warrants can be deficient and then be reviewed by a court later on and find it's not sufficient with probable cause that's why we have been over a review of legal conclusions  this case again well is let me ask you this as a matter of far as i can tell first instance if we ruled that yes this was the magistrate did not have authority and set the law on the eighth circuit say ok you now have to follow all the statutes all in all the districts have to do this correctly in the future there would be precedent for for an officer to do it but at this at this stage be in the air and i command you or whoever came up with with the reserves to find this out that was very well that you would look into this but but the in the first instance to find a warrant from a from a law enforcement perspective as not valid or unauthorized by law that's that's what's bothering me honor it is quite a large remedy as courts have noted excluding evidence however this is a fundamental issue in that we have a judge who did not have authority to grant the warrant  now the constitution doesn't say in the fourth amendment that we have to have a judicial officer is that worn this on the fourth amendment it does say that one has to be issued on probable cause however we do honor and it has to be issued under probably cause i mean we have a legal definition probable cause where it's done by common sense it's not done by hyper technical legal jargon so why don't we just have people authority to issue warrants just as a general matter in here in iowa he could do issued any kind of a war you're in you're in this is a technicality that you raised that he was authorized to issue warrants just not here because the designation was a little bit flawed judge i agree with you that measure judge stranded have the authority to issue warrants in iowa however i would disagree that this is a technicality other courts have found the forty one b violation can be a fundamental or constitutional violation that's from mashad case the government and you're losing me on that yes or the magistrate judge strand again let's say he was sitting in the southern district in council bluffs part of his judicial role could have been the issue warrants just across the river here in omaha however his judicial role up in sioux city in the northern district was limited to that district because there's no crossed as a nation made under the statute well he didn't know he didn't know that all state you're in and so forth so i but yeah these are probably wrong lane but by statute but it's typical for cross designat it was just that they didn't get the paperwork quite order so it seems to me we're getting back to lean on us or are it and i understand that you know it part of it may be that the paperwork didn't get an order up in the northern district and in that case your honor the chief judge smith camp and the chief judge of the so dish of iowa acknowledged in a public order that the statue was complied with and this was done the cross examination was the judges and the judge with camps order didn't say that we've complied with the law and as i understand it that's right and again certainly that's the assumption we're making however more step were taken between the southern district of iowa in the district and rask so again we're making that assumption that judge smith camp either would forgot about doing it with the nordisk or for some reason they didn't ratify the judicial conference from  the legal term that i didn't know until i took this case but again i think it goes back to the warrant lacking probably cause i guess really it may be a question of how you know we say it's a technicality that the that this wasn't done  how far do we go if the if there wasn't an order between the chief judges would that be enough to cause a problem or if there wasn't a designation from the judicial conference would that be you know would that be enough so i see that there is i see your point and i think there is some it does raise some concerns about how where where do we draw the line as far as what  becomes what is a technicality and what is simply a lack of authority yes or in we believe again it's not a technicality it's a substantive right that's at issue it's substantive problem under the statute  under the rule i was a federal district judge i was a federal district judge for six years and i issued dozens of warrants and i have to tell you i never said that i can remember had a thirty two page affidavit as complete as this one ever presented to me so leon just still jumps out at me on this thing yes or see my time's up may have time to respond or question turn and go to thank honor i just i guess my point is the agents when they put things like there's no further calls when there wasn't any calls in the first place between ortiz and arianna or and they put things like we believe based on toll that are calling patterns and subject interviews on perceive they please the court i'm going to stand by the district court's ruling and request this court to uphold it however i'm going to kind of play out worst case scenario  and say to this court what if we say that twenty eight six thirty one the requirements were not met in one way or another or a couple ways we then do go to a rule forty one b violation and i'm going to refer to what i will decision and this was a district of nebraska case where a rule forty violation happened forty one violation happened on the thirty day extension of not giving notice and so what the court did under it forty one p l c this is said we have to look at the two matters is there prejudice or was the reckless disregard and i think that's what happens in this case if there was a violation of the six thirty one a statue was there prejudice well in this case there would be prejudice because the warrant could have been signed by another judge or if another piece of paperwork would the warrant would have been signed so there would be no prejudice the appellate we then now look at if the reckless disregard and in this case we do have unique facts for law enforcement officers to show that there was no reckless disregard we have a magistrate judge that is portraying himself as cross designated he used a number ask us search warrant paperwork he went and got a number ask a magistrate number in order to execute the search warrant and law enforcement themselves were made aware of him being cross designated and doing so in the past so it's the position of the government that even if there is a violation that under this welch analysis that there couldn't be suppression based on the object of reasonability that these officers acted in good faith and still executing this warrant in addition well i have i don't really haven't looked at that case recently but is that a case where the the magistrate did not have was not vested with the statutory authority to problem with the or technicality errs right but where do you have a case where where the judge simply does not have the statutory authority to act in and capacity not complied with do we simply say well it was almost complied with so that's enough when i want to and i think about that what if there had been no order from the district from the chief judges i that  would that be where we draw the line or third not been a an order from the judicial conference would that be the where we draw the line to the to the defect again i think it defect at the end of this it's what the officers reasonably believed and with the judge portraying himself the type of this warrant that they were doing his cross designation ability it still goes back to that they acted in good faith and so that even if the designation was wrong of them what if the individual that signs the warrant is not actually a judge but has portrayed himself as a judge would leon still apply depending on some of the other factors yes because it would be what the officers were made aware of if they believed him to be a judge he portrayed himself to be a judge then it's their understanding and reasonability on that i think this court must assess so you're saying that this court could find that judge strand was not authorized to issue the warrant and let the whole circuit know that probably our magistrates are not probably crossed as it needed but still rely on leon correct to say that this is from the perspective of the of the officer in the supreme court has suppression rules are to punish law enforcement not to punish judges correct an obviously i don't want the court  follow that this wasn't a violation i was just going to worst case scenario that even if that would be the case that leon would still remain prevalent you know i don't know how it's not a violation we don't we don't and do you does the government concede that that that didn't take place that that concurrence in writing did not take place i think the the what happened it is the letter of in article three judges nebraska and iowa northern district i would have voted on it there was no such thing is that have to be concurrence have to be in writing under the statute i ok well thank your honour's well we wish you all the best with your surgery thank you and thanks for coming in at a time mr ruff i think we understand your argument we appreciate it and i and i do compliment you indeed as well thank you be a brilliant law clerk for for trying to get us on track here the court so