respects one it's dealing with one of the hazier areas of forth the matures prudence which is probable cause second and involves something that is itself quite often discretionary call by a police officer which is weighing evidence are in terms of accurate information from other students were from teachers correct he certainly now knew that there was something going on between the teacher and student a student needed that she did not like mr john and that she had been in trouble in that class  interrogated her and that's one of the things this is a very experienced police officer this is a fellow who had additional training beyond regular you know post examination techniques child abuse investigation i think some forty some hours in that he had a general interrogation class over and above the usual he'd been a school resource officer he'd had no general background on that well as well and so when he went went through the interrogation with the child one of the things that struck him in that made it more veracity more truthful to him was the fact that she acknowledged that she had a problem the teacher so didn't have a mother sources now but it is something that he did glean from the student and the fact that she was so forthright he took into account the fact there was some animosity he tried to shake her in her story because even i mean even kids who i need in kids who are problems get abuse i mean that's something that child abuse investigators know and so for him if you look at his statement what was critical to him was the specificity of the charges the fact that he continually tried to get her to exaggerate to lead her out of her story wasn't able to do it she was very terrible person i hate her they were specific sexual references all of these factors taken together which is of course the textbook definition totality of circumstances for probable cause led him to believe this was truthful i can on the basis of what turns up later you have to sleep what would a reasonable police officer knowing what he knew what the hell i mean made the arrest have concluded not that turns out later on the  what he said when she said she wanted to have a lawyer present when it was a question he said he was then i have no choice but to arrest you know this isn't some one of those i really think was going to be doing something know people who exercise constitutional rights to define my thought you just really personally me and i will do it for that reason was the problem the problem that point is she doesn't suspend everything i think it's for him stepping into a minefield one way or the other because he starts out by saying he was not regarding his custodial interrogation for him conducting the investigation to try and continue questioning her at that point you know would it be regarded because i don't know i don't think it's unreasonable particularly from a qualified immunity standpoint  i'm but for the fact that you have an italian name and that's what puts me over the top that's going to have an effect from kabul cars were that then you start getting into the discriminating doesn't lose out so to speak maybe they've given him an accurate account just because the officer happens to be biased in some way or the other that's probably that's why the fourth amendment but look at my hypothetical it's a fair assumption isn't it that if it had been some other officer or some other officer he wouldn't have arrested or she just arrested because of a coincidence that this particular officer brings to bear in permissible arrest there might be some asters that might not arrest in those circumstances they might prefer further investigation they might want to build a case more now i think it's often the case the police officers do an investigation they might get probable cause early but not arrest for various but if you exercise your discretion based on an evil motive you're probably violating the constitution not for lack of probable cause but because of the other reason whatever could just walk away go talk to some other people write but once he has the ability to write i mean once he has a problem finds out she or he believes he can no longer ask her questions he doesn't have to reverse that he can walk away go talk to some other people yes i know he can yes and he c d for example say gee i didn't get anything out of her but i'm going to do is go talk to the principal ask about this girl and find out what kind of reputation she has here he has probable cause to arrest to that point statement of the suspect that she molested he's got the evidence from the suspect that there was mala station and he doesn't have a contrary statement from her good morning runners and first i'd like to make a quick point which i think is material which is that counsel misstated the record on what i think is a very material point it's all in my brief twelve and then the supplemental excerpts at two forty two and this is that after taking the statement from this alleged victim the officer young quist went first to the just brick headquarters and spoke to a woman named the record is a page from his deposition where he testified to that and that's extremely important in this case because after young quist is justifying his very rapid arrest of m john about an hour into this investigation on the basis that there was some sort of exigency some sort of need to protect students and that's not true he had lots of time to conduct a thorough investigation and get the case tells us where inaccuracies the deputy went to the middle of this domestic disturbance people were being violent with each other you know he had to take action to protect people and you know the ninth circuit in that case made several observations about the need to separate the combatants to make a snap judgment there is no reason to make a snap judgment here there is no reason not to conduct a more thorough investigation and ascertain what all the circumstances were before making an  the circumstances make a difference in this case and when we talk about in fact the statistics show that older girls make false allegations of sexual misconduct more often than younger ones she's kind of in the middle of young and old but the point is that officer young quist knew about her delinquency from the get go it's not true that this is something she could have found out i mean these notes refer to her she repeatedly uses profanity refers to tagging she refers to jumping into gangs she refers to tells her girlfriend in the note about her boyfriend he said fuck them a little this is a ten year old girl she says about the teacher we should you know she should be poisoned or something of which she was dead and that is what brought the investigation here is that the officer was not brought here because of an allegation of sexual misconduct by the teacher the answer was prior to investigate this delinquent ten year old who showed signs of promiscuity the police have been called for her just a few days before she had just come off suspension the vice principal mr like a xeno had been dealing with her over and over again she had a well established reputation for dishonesty and that's why the officer was brought he then takes her to the police station and in an interview that there's absolutely no record of whatsoever there's no contemporaneous note there's no recording in any fashion she supposedly answered in one or two word answers to his questions this incredible story which could have been corroborated or just proved very easily about her being left alone after detention with the teacher on some unspecified day in the last three or four weeks and detentions are recorded as he knew the notes and so on and he could have checked that out so what i think period that she was in said she was in detention and this happened and these have to be recorded sent home to the parents and then sent back and filed with the school also all the kids leave the detention at the same time the detention is only allowed to go a certain point in time he supposed unless there's only one kid being detained but she said there were five or six that's what she said and she said they all left but she didn't give any of their names so she's saying she didn't know the names how do you not know the names of your schoolmates you know everyone i'm wondering about that didn't you say there were four or five other girls at attention but she couldn't say who they were now there's no evidence that she said do you see the problem here your honor is that there is no record of this interview so at the time he says well she said there are four or five people and then when we asked the minister position ok what did you see who they were he said that there was there if she didn't get that she couldn't collecting for me but i think your honor is highlighting what the problem here is which is that there's all sorts of disputed facts well i would like to say that i'm not i'm not entirely moved by vienna she should have known the names of  that sounds pretty plausible to me all the jury could reject that and they could reject that in part on the basis that the trial judge questioned it which is that the defendant's own declaration of this girl  an exaggerated version of what happened she changed one minute to three minutes to change touching one breast to touching both breasts and then when we brought her in for doctors this and she absolutely refused to make any statement about what had happened so that again these are all tribal issues a fact if i could turn to this question of the lawyer and the implication of the lawyer the part of the justification that's given for her arrest is that they had exhausted that avenue now the trial court correctly found that there was a tribal issue of fact as to whether or not he could have just kept asking her questions this was clearly not a custodial interview she was not subject to miranda in any sense she was not given miranda rights all she said is look you've talked to his lawyer i've talked to i just want to make it clear before i answer your question that i've asked for a lawyer to be here not that she was refusing however this impulse solution and what he should have done and what i think citizens are and people are entitled to to expect of police to say ok you want a lawyer then let's go to an interview with a lawyer this is a fact that she was going to have a lawyer does not mean that he was not going to be able to question her and get her started this story that's what should have happened here but you raimi this is a very well known california criminal procedure case by the california supreme court it's a general proposition that private citizens who are witnesses to or victims of a criminal  circumstance where we cast doubt upon our information should be considered reliable so there is a tribal issue here is to whether or not there were circumstances that would catch the cast doubt on this girl's reliability she was being investigated for absolutely your honor and what i think your honor is is not included in the equation is ok he's got this story from her which has got all sorts of problems with it and then he's got all these avenues to see whether or not it can be corroborated or verified or not which reaches begging to be pursued i mean when he arrested mr john in the next room are the files honest girl or the vice principal the principal he talked to the school administrator he still had the opportunity to interview mr john he could have talked to the mother he could have talked to the other girl all this time the teacher is the suspended pending investigation there's simply no reason for him to act precipitously in this fas i think that it's it is what he should have done rather than didn't think he can waltz into this complex situation and in one hour of talking to the news that's what he should have done but the question seems to extreme things like arrest people for despicable felonies you have a duty to conduct some reasonable amount of investigation when the circumstances permit here the circumstances permitted him to see whether or not there was corroboration i don't think by our view of the case pointed to the cases that this information was not sufficiently detailed and was not coming from a sufficiently credible source to constitute probable cause period and we try to cases where people who are accused of crimes which she essentially was although she was ten years old are presumed not to be reliable people who are in a jam like this like she was then she was in big trouble she's just been suspended she's in the police station she had written a note about poisoning her teacher she had written you know they had their notes about her and being involved in tagging another gang related activity and an officer who's not accepting her other answers of a sudden she said something that it not did not have  i think the court is balanced by the many decisions of this court that say that the issue of probable cause in situations like this is one for the jury and it should be for the jury because you are have to bear in mind that the record is said we've got to do to keep off this was spending the entire time in court out of the streets were where they're supposed to be well that may be true but this is not such a case this is a case where there's a rat never should have been made because he did not have reliable information to begin with he did not corroborate it and he did not conduct what this court has said was his duty to investigate to assemble what the totality of the circumstances are you basically had the a statement which made really no sense coming from a person who was in a great deal of trouble who was in custody at the police station trying to dig excessive force case or you know this kind of case and didn't think you could do a better job of being a policeman in the police themselves that's your job but it's very hard to say that after a case like this putting aside the fifth amendment claim and in all these fourth amendment cases the supreme court says you weigh the degree of the governmental intrusion with the individual privacy interests at stake it's one thing to search a locker it's another thing to ruin someone's career by making a felony arrest for child molesting after thirty years of teaching elementary school students public on the phone i don't agree with that i think it it makes a big difference in what the degree of the governmental interest is and what the personal stake is that eight a judge could very easily find probable cause for a search and not probable cause for an arrest and i believe they do that all the time the question here basically is qualified immunity and second was the defendant unfair notice that its conduct was unconstitutional and the trial court found looking at the at the record in the light most favorable to the plaintiff to the party opposing the motion that the answer to both those questions is it's for the plaintiffs but there was not probable cause and there was fair notice there's there's cases that say you cannot rely on people who give information under these circumstances and that there are there is a duty to conduct a reasonable investigation i think the trial court opinion here is very well reasoned and addresses all the points which are just replete with tribal issues even as to whether or not grave site a couple cases and custodial interrogation and the lack of a bright line rule an indication of counsel because one of the points making in that context o now specific argument on the fourth amendment on the fifth amendment separately from i know i'm not about adding the word specific helps you any good you put this matter before the court where believed that he or she had to decide a question of summary judgment on the first amendment cly the judge said well alex one of the issues i have to decide in this case violent various state law is that right and the argument on the federal claims is under qualified immunity it's reasonable no matter where it is you see the reason why we're not going to give just when you've given you've given away that long long is not a matter that this required ruled on that if we had judge mathis here and we told him that's what he ruled on he would think that we were kidding because you're very careful driving i think no doubt about that i mean sixteen and the plaintiff my client is stipulate to dismiss the fifth amendment to narrow the issues for the summary judgment now i did that stipulation i had overlooked it and i thought of it when the argument was going on that's why i raised my hand so that's on page sixteen however that wasn't meant to dismiss the retaliation aspect but this was in the aftermath of charges versus martinez which was a supreme court case that said that the fifth amendment is not violated by a miranda violation in the context of a police interrogation but only in the context of when those statements are introduced in court and i believe that the retaliation claim that is still alive i want to bring that to attention of the court i didn't want to leave this court with my having pointed to that provision of the complaint and then not also i mean identified the stipulation that's clear is that however we dispose of this appeal there will be further proceedings before the district court right on the on the dish state claim that whatever it may be but this is not the end of this case no matter what really well except for the fact that that is the state claims that remain