fabrication it was clearly established law that an officer cannot use fabricated evidence to bring prosecution or to prosecute the plaintiff and i believe that it was illegally obtained in this the statements made in connection with the suppression that there was actually evidence that supported probable cause to bring charges what were the lead in this case it's not that it's all the cases that do it intentionally fabricated evidence in this case intentional fabrication  the location of the evidence but i know those cases case where the person was was actually innocent and so they trumped up charges made statements you know planted evidence shows and a person who was an innocent person was charged sometimes regards to the drugs in this truck he very clearly and plainly stated in this litigation the only reason when the officers came to him with a statement that and officers are going to wrote out the state for him where he claimed ownership of the drugs that were found on the other property was because the officer either you claim these or we're starting to arrest your family members outside and he did which was probably not the smartest thing but he been a strong family person as far as his relationships go he took the blame for it and there in that same testimony one of the people that were outside was his aunt who died that resulted from this entire incident and that's why he took the blame so i'm not here to say mr rogers was perfect he pled guilty to the state law targets of selling drugs but it's just like just because you know drugs in your neighbor's house it's not appropriate for the police to say well they're your drugs we're going to charge you with them yes they were found in his this line of cases there's any that you can point to where the misstatements remain in connection with the suppression issue as opposed to whether the person actually committed the crime not suppression per se but and i know there's this whole lately there's been a big clearly established law thing that's been several cases from court lately and this for of course it doesn't have to be the exact same but nonetheless the officers and i think the question of fact that comes in is whether or not it was in intentional fabrication because based on all the evidence that we have it seems apparent that there have been some fabrications of testimony  which ultimately should be for the jury decide was it a fabrication or was it not these inferences to be made by the jury based upon the differences in testimony the documentary evidence which point blank disproves one of the points that the district court relied upon which was well the truck was registered to mr rogers and they knew that when they went to do the search however the i believe it's in the record eighteen eighty nine was a printout which shows that clearly they didn't run the tag information on this drug until after the search taking place so some sort of explanation that someone else some random and identified person who would wouldn't even be admissible would be hearsay we don't know who was but even then if they were in the tie there should still be a print out from when they did it and if they were they would know documentation of only one tag now there was another vehicle a cadillac which was run even later so there weren't back to vehicles which were rampant both of them according to the deposition testimony with the documentary evidence show that the of the truck and if you read the way the report is of course i don't know if it's if you read the report and you take it in chronological order it even says the drugs were found dead inside the drugs were found before he arrived but it says a search of the property down this then the next line says incoming rogers was brought to the scene where he had keys which on the truck however if you're taking the report for what it says the drugs that are been found at that point in time and we all know that officers have a way to unlock the truck the truck you don't need the arrive out of that one of the things that the district court pointed to very specifically was the registration of the red truck which based upon the da contrary evidence they did not know that at the time of the search judge carr who's a justice court judge said that the based on the document what we have documented that cannot be true because it had not been run yet and and there are still questions regarding and this is addressed by judge males and i know their arguments otherwise it's whether or not that phone call ever took place and yes we have the judge testified that he did have remember a phone call but he gave very scant details about that phone call and i would and just as court judges feel these kind of phone calls all the time why would why would that argued is it wasn't an expansion of the search warrant it was just asking the judge for ok but that has not always been the case if they have before in the suppression portions of it referred to it as an expansion of the search warrant which is not allowed as judge m points out in the underlying criminal matter you cannot do that in mississippi you cannot in fact even under federal law there is a way to do that via telephone but it's a very stringent process which recall requires recordings in all these various things none of those were foll property which is the way that he is put in the report it's the way he's testified to that would be a complete misrepresentation and a very reckless representation based upon the court's finding that it was at least two hundred two hundred fifty yards away w a separate address a separate driveway all these other things which just judge karr never wants mentions any of that in fact his testimony was where they told me it looks suspicious and they wanted to go check it out and he said they'd be all right and that's if we can that's assuming that this is the phone call judge karr was talking about because one of the defendants in this case claimed he had two phones he used one phone approximately ten minutes while the search started there's no other records on that phone of any phone calls but then there's another phone number which they can't get the records to that we can't look at but they're saying that he didn't use the phone he used to minutes for the search started college a car which is another inference that a jury should decide ok well we've got a phone why didn't you use this phone or that phone that's a jury question all the when we get to the fourth amendment just the search itself before we even get down the chain to the other for the fourteenth amendment claims misrepresentations as to whether or not they were objecting we raise more with the search itself now if we move into the for the minute claims regarding their misrepresentations and the phillips which is another case which is what the location of the red truck which even the u s attorney thought a motion for reconsideration saying that the perpetual miss characterization of the location the red truck was the reason that the that they opposed the most to suppress and it was the reason for their violence the u s attorney even said that these officers had perpetually mischaracterized the location of the i mean you're great you're on and he did and they did but nonetheless the in my opinion the prosecutor had every right to say judge i'm sorry but this is just like an appliance case my client tells me he did on the red light i'm going to say didn't run the red light until evidence is presented to say otherwise that evidence was clearly presented at the suppression hearing for both sides and the the prosecutor yes he was trying to save himself in that motion but nonetheless he's very clear no one even the assistant u s attorney who handled the case it was another thought motion but nonetheless they want to be sure the judge was aware look this is what they told me he said that if in that warrant assured him of these facts before they suppression it appears you're relying on that filing in criminal so therefore it would be an exception to the hearsay rule but in melton which is one reason i think the district court in the only man in the motion suppress the  in fact in good faith they were not in good faith the fact it fell outside the good faith exception you know that has been my argument in this case over the district court disagreed with me and said that because the officers were not parties in that action the findings of judge meals original motion for summary judgment not the reconsidered part simply overlooked or didn't really address the fourth amendment claim that they misrepresented everything and this comes back to another case which is now being reconsidered on baucus understand it melts  it i'm sorry even the officer who was not the one who put in the misinformation could be held responsible but when you have to go that far we have the actual officer who had the misrepresentations in that case end of the individual had been mis identified in the course so they could be held liable for this in milton the phillips based upon the reckless disregard for that individual here we have a clear reckless disregard misrepresentations of where the truck was not once in officer warren's report says he ever mentioned a phone call does he ever mention a separate property and i think the judge mails stated it although he did say it was hyperbole in the online criminal matter based on what house to well it's at most a hundred yards away and then as we got to depositions he confirmed well maybe about two hundred yards away which also shows that this officer knew he was wrong in what he had put in his report  and you express we can see that the sheriff sheriff johnson you're not appealing against him correct i don't see any argument you make about the dismissal of the county and the city are you also conceding that there's no policy that you can point to you know i think the second part of the qualified immunity tests where there's a constitutional violation all actually i guess that's the first part and sometimes the courts i think two or three of us sometimes that's the easier question the less complicated question is not whether the actions of the officers met some test but whether there was a constitutional violation in first place i think that's what we think that's the avenue here is that as we said in part three i there's are a brief that there's simply no cut no constitutional violation even if you accept that what cults say is a cold case was the law at in two thousand and nine which we which we don't think it was but even if you say it was there was still no constitutional warrant to search that room that's true if if that's clear that that's two separate premises in this case this is a rural setting the building appeared to be a shop building did not appear to be a residence where when you're question of fact about the i mean made the assumption that this was part of his his property but then you get into a question of whether when they when they learned it was roger's truck so the straight man on that well rises truck is they're raising issue about this crane out and then they offered no evidence actual evidence as to what that crane out meant it's just sheer speculation that the print out called in question there was their testimony that they ran truck the point is if you say that they didn't run the tag they still had the keys to the vehicle which they got from rogers well he did speech that now he says the admits that they got these from him when he gave the keys red truck from the three twenty property believe the evidence is they could not see the truck from they saw the truck once they got out once they followed the path around there are because there are other buildings other buildings along in the area and they searched as they got to them and they worked their way around and saw the shot what appeared to be a shot building and the vehicles was that there any evidence that they knew it along to rogers before they actually did this this search that now i don't think they did  of what belonged to a truck or a truck yes the evidence whether testimony was that they ran the plate again there was nothing actual no actual evidence to contradict that second is there is no question other than his speculation that they did the search first  were there was drugs found in the house floor covered the house of course where rogers was doing business or that he was doing business on the cover that and they searched that house and found drugs there and so they also observed him on three or four  but the point i think my point is that even if even if you grant that they didn't have that they didn't know these things it still appeared to be the same property and that's one thing the past that was you know about the only varying though constitutional violation of the fourteenth amendment based on the statement in the right in the report that the that the red truck was found on the property because it didn't shock a conscience and i think we think that was correct  george claim the court did find a constitutional violation just found it wasn't clearly established right i don't think the court actually got to the to the question of whether that was a violation she just i don't envision she read on th apparently was buying at first but he backed off of that in the second opinion but my point is that there is even if you say that that we're looking at here is on the fourth amendment did the search did what officer of or put in his report cause mr warren to be charged for the federal crime of it and they did not because the court says that it says that tom the fourteenth amendment is the deliberate that it was a reasonable supposition that that was on the property so that it was not a false statement but he was not arrested he was not arrested be on the property because it was his the same apparently the same land all connected together no fences in between no clear boundaries node lines of demarcation between the two buildings t structures the second structure was small structure of appear to be a shot there were other structures nonresidential structures on the property which he doesn't dispute were part of the property and then and then the truck is there and it's his truck and his judge we all said in the first ruling you know it's been very unusual for somebody to park their truck on someone else's property you know but then you get to the question of when they found when they knew that it was his truck i don't think that he's really raised that genuine issue on that because it's all speculation no question that they had the keys they got the keys from him at some point yes yes he's saying he thinks they searched that but he has no proof he was not there when they started in observe the search they don't know when it took place violation if the officers act in good faith you're not going to suppress the evidence it doesn't mean there's not a fourth amendment violation on that i can't we we're still not not on the same page about this but maybe i was confused as i read the district court i'm looking back now at the first summary judgment opinion there just reconsideration on the due process that did judge a cock not find that the warrant did not allow the search of three twenty a and the automobile exception did not might not be correct but i'd like to export the you have to show that that the deliberate manufacture of evidence caused a person to be charged they say by putting his report that the truck was found on the property that was the manufacture of evidence but all he did was put in the statement that was his last event he didn't leave not involved at all in bringing the federal charges they never came to him he was he was indicted he was actually arrested on state charges convicted of such charges and sent to the penitentiary and months later he was indicted by a indicted by the federal grand jury but he didn't put the they don't point to any evidence that he was and he was not and that he was in federal custody at any time before they have somebody go before the grand jury and testified from personal knowledge what they found at the scene warren did not there's no evidence no allegation or never testified before the grand jury he could manufacture evidence he didn't manufacture they haven't seen it was not if  and planted the drugs for someone else to find and testify that would be manufacturing evidence simply saying that was found on the property is not manufacturing evidence his statement is not evidence it would be admissible he's got to go to he's got to go and testify the cases  and judge a cockhead development of the testimony is in the record as to what actually happened more so i'll judge of nails really had its beginning was the was the prosecutor's statement which for some reason except  from from officer house perspective a distinction between a warrant and how and what happened here how is a t p d employed not a lake county employee this search and seizure everything that occurred here report he didn't review in the report what he did was what it was brought to his attention that there was this three twenty a building in a red truck that had been failed to have been registered in the point of just the reason he wanted the extension that's the judge's characterization of the phone call third poll how heard questions asked he didn't hear what judge course it's like you're calling mr wait i'm listening to whe when the judge get that idea that they want to an extension unless he was told by the other up by the officer on the other end of the call i don't know and let me say this about judge corps he testified over all i phone call that happened five years ago that the point the issue was whether the phone call was made the details of that phone call i couldn't remember the details of a phone call a five weeks ago probably not impeachment but it's in the record that it characterizes it as an extension which we have to accept as as at was there a good a valid reason to believe that there was not was a valid reason to believe that there was a lot sure you could have concluded that it wasn't but you certainly could have concluded that it was  carried out done that's always the stamp it's done when it's done i don't really think it through question about that it says it was at three thirteen twenty nine printed out of that's when the search is done and that's when it's done now we don't have the in the record that state officer of another officer did only show up when she logged in one should show up when that particular search has done is the way the cancer is more so this in the record but i just want to point out i did says at thirteen twenty nine this wasn't printed out at the site i can assure you that it was not printed out they don't have printers just print out piece of paper like this and then also in regard to some of the timing that was just talked about again i'll go back to the report that was written by officer warren where it says very clearly that agents also discovered approximately two hundred thirty six grams of alleged crack cocaine which was discovered inside a locked rich ever late in the destruct tag part of the property very next sentence it says current rogers was detained at a family member's house so unless he just got everything out  report he's also and again where the summary judgment stage so even if it may or may not be accurate every inference has to be made mr rogers favor so we're just looking at the report at the time the drugs are located in this red truck mr rogers wasn't there is it a family members house pointed out i think it's fairly clear that these were constitutional violations every judge is how that whether judge mills or judge a cop so i won't go into those in detail the question really one thing that was mentioned was this federal court indictment that officer warren was in at and i don't believe it was the grand jury but if we go back to milton v phillips that case is dealing with an officer who gave improper information to another officer who then use that information to get  s attorney was very clear that the report that was used for the indictment purposes was copied from warren so to insulate also warren just because somebody else then used my information it doesn't insulate him from that fact because he didn't take his own report to the grand jury the report and the dea agent to have testified there used officer warns report because the agent wasn't modest and may or may not have been present when this was going on but nonetheless he copied officer warren's report we also it was just talked about some property lines and different things i don't think i can recall there's any photographs in the record or not but there are fences there are tree lines there are multiple demarcations you do have a dirt path that does connect the properties but you also have a mailbox that for the three twenty eight proper you also have a different utility box at three twenty a property and there are  processes in place if you have a question about whether or not a warrant covers a certain area you secure the property and you get a warrant same way you do it for a vehicle the same reason the judge a cocktail the exception did not apply to such a vehicle we have processes in place to protect constitutional rights like this you secure the property you get your warrant and you search it then you don't have these types of questions that's the whole point same way in federal under federal law if you want to call a judge about a warrant you record it so that way we don't have to have these questions of what was said these officers knew what they were doing was at the not proper that's evidence by the fact that they they said they called the judge they knew this was a whole separate property they knew they were processing procedures in