i am informed that all parties having cases on our calendar this morning are here so i will turn to that calendar and call ryan lawyer versus drew code on others thank you a second the district court erred as a matter of law in the implied erroneous standard of review in granting pallies renewed motion functionally to dismiss all claims they finally the district court erred by repeatedly failing to take and accept the facts pleaded in the amended complaint as it's required to do and in stead extrapolated out of it a standard that led to the court dismissing all claims on the basis of qualified immunity but if you take out the lie isn't this still probable cause respectfully no judge i mean why not certainly number one there is no basis at all i see just rationally for a court to have found probable cause i had full disclosure been made that a human being handcuffed in  on the face of the planet or one heck of a trapdoor in the shoe secondarily indication in the record as to how large the package was in the record not yet and that's largely because we are as i'm sure your orders are aware we are in the pre answer pretty discovery stage there's but there's nothing that we know and that describes the size of the package one hundred answers and the answer is it certainly will if we proceed to discovery because it is patently obvious in the recording it doesn't make complete sense that's for sure but they walk into the cell and he's lying there surrounded by glassine bags of heroin that had not been there before and why isn't that at least arguable probable cause that he must be the source of those banks second point  judge janet is the vermont state police on like some other organizations has a promulgated written set of regulations and policies those  policies which are part of the record those policies and as pleaded in the complaint require and mandate recording video and audio recording so i agree i mean it with the benefit of hindsight sure they should have looked at the video but but but they didn't but what was i mean and maybe they were negligent in not looking at the video but isn't it still would every reasonable police officer have gone and checked the video first before then they decided they had probable cause to arrest this man i dare suggest yes your honor because of this reason this is a state police barracks we're talking about the kind of the top of the law enforcement food chain we're talking to but it is a place nothing other than the sense of moral morbid curiosity you would think that somebody would want to find out how to handcuffed intoxicated human being could have done this in a shoe finally and perhaps most importantly and we with respect to judge crawford who i've known for a very long time and who i respect very much the judge simply ignored the pleaded allegation in our complaint that the motor for not doing so was a retaliatory motive it's important to remember that my and suggests that he was dealing in her when when he when they knew he wasn't they may not have known that he first was the argument that they knew he was it wasn't his heroin they certainly had reason to enquire c of the uncontested situation confronting them this is anything other than a normal day at the vermont state police barracks that we're talking about here completely novel fact  pattern are you saying that the police planted the heroin in the cell not at all what we are saying is that it is patently obvious and cursory review for a matter of moments patently obvious curser review is that somebody else did it was clearly not my client who was located in hidden under a commode right there and my client drunk was fiddling around with his foot something that's it that's what happened and that's what the video shows that's absolutely so i agree with sand that maybe there were this was negligence not to look at the video before filling out the af davit but if we look at the affidavit without the unfortunates why is there still arguable probable cause that is the issue respectfully we it it undoubtedly contained to know when or recklessly faults allegations that is that the cell was clean before my client was placed in it it wasn't and most egregiously that my client confessed to having the heroin in his shoe he didn't and that is demonstrably true if you remove those two and again juxtapose with the fact that there is this recording regulation and policy we suggest that there is very there is a more than arguably not probable cause under these novel sets of circumstances what's also more important i think in a lot of ways and we get to a degree of conceded that in our briefs this might actually alternately become an issue if the matter is actually allowed to proceed as it should through the answer in discovery phase no question about it but we keep can't be making factual findings right now which judge crawford respectfully did it without authority to do so you can't be making factual findings that lead to a conclusion about a subjective intent of law enforcement that law enforcement made a good faith honest mistake that's the the judge crawford's ruling i think judge crawford also was concluding that you weren't alleging intentional conduct because because the the the tape apparently shows an unintelligible response the way the way i understood budgets crawford was saying and there's an unintelligible response from the plaintiff on the tape and the police officer could reasonably have interpreted to to to be in essence yeah that stuff is mine that's again with due respect judge said that is premature to do that because you don't have any inquiry yet about why the officer did or didn't do that we have absolute with again with respect to judge gropper we have absolutely alleged intentional falsification intentional or reckless that is in the complaint several times sacked it secondarily we have  alleged retaliatory mode of and the law is crystal clear that as at this stage of things the court is required to accept the pleated allegations this is also an issue of qualified immunity with the offices to be free from thank you and may please the court my name is barking that i'm an assistant attorney general with the state of vermont i represent the a pelleas drew koda then pat node and derek rowland deni troopers with the vermont state police we have this court to affirm the district court's april twenty thousand order which granted a pelleas motion for reconsideration and clarification and properly decide to be issue of qualified immunity dismissing appellants complaint in its entirety in so doing the district court properly exercised it allegation in the face of the complaint that officer code falsified a confession i think he correctly said the allegation in the complaint was that the response was unintelligible and i think under the corrected affidavits doctrine even if we were to strike that confession there is still three points appellant was lawfully under arrest he was placed in a holding cell that appeared to be devoid of any heroin and when they showed up to transport him some time later he was asleep and surrounded by a hundred packets of hair i'm so that would have been enough but then they went on to say that he can fast that it was hands and again that was an allegation in the complaint but the allegation was not that he d specifically appellant as we take the complaint is true at this stage of the proceedings we do your honor and i think that the well we take that is true the issue of qualified immunity there is still under the corrected aphids affidavits doctrine  just strike that allegation and look at what a corrected affidavit would show in the corrected affidavit we did not need a confession on the by appellant in order to find probable cause in fact had he denied that the the heroin was his we still would have had probable cause for the possession of heroin shari with you that's why it was totally unnecessary to falsify the affidavit and doesn't that give you sort of a bad feeling about these troopers that they would fall the fight after david when they didn't even have to the heroin itself it spoke for itself i i agree and i think that if we do not have the video in evidence at this time however from the video it is simply an unintelligible response it was not a out now denial it was not a protestation it was simply they asked where they're not the heroin came from issue and appellant admits he was highly intoxicated and had just been roused and at that point what he responded could have been interpreted as an a as at admission that the heroin did come from his shoe and so from the like to the by the way i think it would be fine to look at the tape because it's referred to in the complaint but what what yes it was your honor what was the inquiry did this come from your shoe there was one she was off to the right in the video both shoes and socks were off of shoes how do you respond to the argument that that it doesn't make sense that a packet of one hundred glassine on lots of her own there's no way could have fit inside a shoe i think first i don't believe that is a specific allegation in the complaint second i think the court is allowed to its judicial experience and as your honor correctly pointed out we have a heroin epidemic in the district of vermont and these judges are familiar with how drugs are packaged for transport and your honor correctly pointed out that these are glassine on months but of a one hundred of them i do have a little trouble imagining how a hundred of them and i think there were some of them had rubber bands on them according to a scription somewhere i have difficulty imagining how that could fit in someone's shoe and i understand i believe that one hundred of them packaged together is about the size of a matchbook and you know speaking from my experience i've had cases where people have body packed that amount of heroin into a cell and so i think it was reasonable for the court to conclude that this could have been hidden an issue or it could have been somewhere else but the simple fact was he was handcuffed to a bench and when they came into the shoes off or did anything along those lines but there are some factual questions here yes your your colleague suggests there ought to be some discovery to see exactly what the facts are and  years on to that and we disagree simply because the criminal tribunal found probable cause and therefore there was a presumption that probable cause existed and it was appellants burden to show that the finding of probable cause was based on a the allegedly false statements that he complains of again the square of the line instructs the court to strike those from the affidavit and look at what a corrected affidavit would show and the corrected affidavit would show that the officers reasonable leave reasonably believe that this cell was clean they put appellant in the jail cell he was handcuffed to the bench and when they showed up he had clothes off and heroin surrounding him his shoes were off his socks were off and it was reasonable for them to conclude that he was the source of the heroin and so i believe that just on the face of the complaint this is one of those cases where qualified immunity can be granted on the motion to dismiss stage because those allegations are both on the face of the complaint and in the record where we have included the actual affidavit of probable cause drafted by officer code kota and the court is allowed to consider that as well because it was referenced in the complaint and incorporated  with respect to the allegation that there was malice the court also correctly concluded that this was a good faith mistake while plaintiff says that the allegation of malice needed to be accepted that is not true that is the exact allegation that was addressed by the united states supreme court in ashcroft's the ball and the court there said the court is allowed that is a legal conclusion that the court is allowed to look at the facts on the face of the complaint and determine whether or not they support that legal conclusion it was reasonable for this court to conclude that the facts were otherwise also looking at what a reasonable police officer would the right i mean that's the yes your honor and so that is the whether or not reasonable officers could disagree whether or not probable cause existed and in this case reasonable officers who open a jail cell and find a defendant with heroin surrounding him on the floor it was reasonable for officer conclude that he was the source of the heroin and there was arguable possible arguable probable cause for the possession of heroin charge why wasn't it reasonable to say let's go to the tape i believe the officers did review the tape within a matter of days and the charges were immediately dismissed i should hope yes and in both the district of vermont and in the circuit there is no duty to perform an investigation as appellant sees fit  surprising situation it was a surprising situation already he was handcuffed to the bad right yes your only had to reach with his foot under the commode to get this sound so it wasn't easily avail e and there they are on the floor and why doesn't someone say let's look at the required recording to find out how this happened i believe there's a few points there one i believe this w extremely unique circumstance and i don't think anyone would have full of the more reason to look at the time while i believe that the what actually occurred is almost unbelievable i don't not believe that the first reaction would be he obviously was not the source of the heroin he must of found it in a concrete cell with a stainless steel toilet so i think that that alone you know from the officer standpoint it is whether or not his decision was reasonable on underqualified imune what happened was the troopers missed this packet of heroin that apparently some prior occupant had left there yes your honor and i and i and a little embarrassing that is a little unbelievable and embarrassing it is your honor and we issued a press release correcting the mistake and this was an good face on it misstated years so that if something like this ever happened again they would look at the tape recor filing an affidavit with not true information i believe the vermont state police have changed their procedures with respect to investigating cells prior to putting individuals in the holding  and i see that my time is about to expire thank you very much thank you both will reserve decision