well in case one seven five eight nine three the united states of america versus william hines oral argument not to exceed fifteen minutes per side ms harris for the appellate good morning and  amanda harris on behalf of united states i'd like to reserve four minutes for a rebuttal by the district court here aired for two reasons first it required a non reasonable standard to establish the credibility of the confidential informants which is not supported by the law and which lead the court to a row knisley hold that the affidavit did not show probable cause second it erred by holding that the good faith exception is when the affiant is also in executing officer of the search warrant here there is no dispute that c s one and c s two provided a nexus between heinz's home and evidence of drug trafficking the only question is whether state court judge show haven't had a substantial basis for a lying on the information from c s one and c s two and the answer is yes first c s one who was known to the affiant and who was described as reliable had previously provided information that hines was selling a large amount of heroin in his home and that tip was corroborated by other information an affidavit including mr rodriguez's twenty fifteen a mission that he had been giving hines kilogram quantities of heroin and cocaine second just as the officers did in gates officers here confirmed c s choose predictions that hines would meet c s two at the legends night club to just discuss a drug deal by following hines from his house to the legends nightclub and by observing his suspicious driving which was heroin the following day which was the day the warrant was executed third both c s one and c s two had a strong basis of knowledge because they had first hand knowledge of hinds that hines was trafficking drugs out of his home since one sawyer went inside the home and c s two had previously seen heroin inside the home and had discussed a shipment of heroin with heinz that they that heinz wanted him to receive at heinz home on the following day and finally here your honour's the officers obtained two independent sources that were consistent with one another prior to getting a warrant both and for months tips provided important information that corroborate each other cooperated mr hines hines is home and evidence of drug trafficking but in any event even if the question of probable cause were a close one which it is not the district court aired here and declined to find to apply the good faith exception to be exclusionary role and erred in at least three ways first i think as mr himes agrees this court in kennison has directly rejected the broad proposition that the good faith exception is unavailable simply because the affiant is also in executing officer second the affidavit was not barebones because the information and the affidavit easily clears the lower hurdle that was provided by this court's decision and curb inter because both c s one and c s two had provided a nexus between the place to be searched and the items to be seized officer executing the search i'm not aware of any you're on a bare bones ground that may come into play if for example like in the supreme court case in shepherd where the problem with the warrant was that it was been made because of the facial disposition see it may have been relevant but under a bare bones analysis of that third part from leon i'm not aware of a court which has said that that makes a difference think is the most important about this case and really the determinative factor in the appeal and that is the standard of review because while it is for this court to apply its own reasoning in its own thinking in terms of the law how the law applies to the facts the courts rules are that it will not stitch together a factual picture of its own it takes the factual picture provided by the district court and will use those facts unless they are clearly erroneous and probably the best doesn't that court need to defer to the jurado because i believe that that comes in in the legal standard because the legal standard when you three judges are are trying to decide is there a substantial basis for the magistrate's decision you're you would not be asking was the magistrate right in in his looking at whether it's our bit better judgment is arbitrarily exercised in the totality of the circumstances right yes all right yes what what do you say country to that i would say that the fact the the the law is it is to be applied to the facts as the district court found in the district court defers to the magistrate just as this court will defer to the magistrate in the legal standard and say it these facts do they provide a substantial basis for the magistrate to do as he did not was a magistrate write him a little perplexed when you start out this way talking about the question of how we review facts because i didn't understand this to turn on a dispute over facts the question was there's going to be the affidavit is what it is it says what it says about about reliability question as to whether that's adequate a legal question is not a factual question through your honor but so how does a standard of review help you here well in the clear air standard it is not just the facts that the district court finds but the inferences that the district court draws the weight that the district court applies to the facts and the definition that i think is the most useful is from this court in the months of a's case for a one fed dirt seven fifty five where there are two permissible views of the same fact a fact finders choice between those permissible views cannot be clearly erroneous who's the fact finder here in that sense then the issuing judge or the district court reviewing judge a district court reviewing this court has said that the district court's facts are to be accepted unless clearly erroneous and for instance others did the district judge here have a hearing and have testimony yes and so that's the set of facts that you're saying we should review under the clear air standard as opposed to what does this affidavit actually say well i would say it what i had in mind your honor was actually that as the court expressed itself in its order it as it goes through the facts it explains the varying weight that it gives different things like for instance the fact that  mr hinds was seen driving defensively on the way to the suppose it encounter the judge gave that very little weight and although it can be given much more weight i think counsel for the united states has shown that it could be given a wind the judge even factor into that that analysis right there that that the erratic driving was on the way to a drug pick up well yes that's important i didn't think the judge did and he i guess your erratic driving he said well yeah you know that's he didn't put it in the in the totality of the circumstance i think you your honor the judge essentially was saying that if he were driving to the grocery store and he saw people behind him that he thought might be the police tailing him he would have done the same thing that that is just the way that drug dealers if that's what mr hines is a that's what drug dealers do and we kind of put the cart before the horse here as i read this opinion it says that the affidavit fails to meet the requirements in in two ways one is that the advantage is that the informants were provided the magistra and there's no statement that either of the informants had provided reliable information in the past both of those are factually true there's no fact dispute there's no inferences there's no everything else he starts out saying that legally that makes these affidavit this affidavit insufficient so that's the first question that you have to get over why is that true that doesn't seem to be true then secondly he goes on to say in the face of that is that then he looks for other cooperating evidence that's where you get to the driving down the one restraint and maybe we do or don't give deference to the significance of driving the wrong one way but if he's wrong on the first one he's wrong that's true but it is the clear air standard that applies to that finding when he says that neither of these informants has ever given information to the to the officers that ever been confirmed in the past that is his finding of fact and if it is clearly erroneous if it is a totally impermissible you could make a finding that they had never given reliable information he says the affidavit doesn't say whether they had not that's an important distinction i would think well but the important question here is is there a case that says what the judge says that if you if you don't give the identities and you don't flush out why they've given reliable information that that in and of itself is a go nogo no i don't find a case that says that there is no case to the facts as he found them and i can defend that i think really what i'd rather do is encourage you judges because it's really for you to to make this assessment as far as the what the law says whether the  facts are enough to be a substantial basis for the magistrate to issue the the warrant but i would like to defer i'm really confused i thought you were you're starting out because you sensed you might have some problems here by by resting on the standard of review and saying you should win because of the standard of review not because of what the affidavit says i should win because of the clear error part of the standard of review because the facts as the judge found them support the ruling that he made and i would say to you three judges the facts as the district court found them would support you in a determination that there was not a substantial basis in this warrant for a finding of probable cause s one as far as the affidavit says had said nothing to the police in the past except once in july two thousand and twelve when he said that there was drug dealing going on at the house the police staked out the house they saw mr hinds coming and going just as if they staked out my house they would see me coming and going they did not see lots of people making short trips known drug buyers they didn't have a controlled by they did not confirm the important part of c s ones assertion they only confirmed that the man lived there which just mckinley acknowledges that that is a finding of fact yes he lives there and yes he's a known drug dealer but that in his view and i think he's correct as a legal question in his view that alone is not enough and i would like to address a couple of the other issues as the district court him for instance the first c a c s n one says that he saw an amount of heroin or sheen in the house the day before now that can be given a great deal of weight but judgement kinley did not the fact finder gave that very little weight because he said that there are insufficient details to make this useful in sufficient detail about one said was that there is an amount there that it could have been an amount for personal use and that large amount that c s two is claiming he's going to be getting at the house she has to hadn't seen a large amount of care when at the house it didn't  c s one only said that he saw an amount didn't say that it was in a really curious going back to your first point that he beat the amount is important to determine whether it's personal use is personal is a personal use amount of  legal no so while we're trying to determine his probable cause even assuming that you're right it was a small amount and not a large what difference does that make well to the  extent that the claim is is drug trafficking is there probable cause of drug trafficking a small amount of heroin would not be in that's only if c s one is reliable and that's where the judge said i don't find him i don't find enough to be says to find this a reliable statement we have a legion of cases don't we were the drug dealing is actually being done in some other location you still get a search warrant to search the drug dealer's house to see if he's got drug records or scales or other and disha you don't have to have any evidence that there is drugs in that particular spot but there would have to be well you'd have to say that there's a heaven you have to have other of it yes but now we've now we've moved one step further to the real goods we've got a statement that there are drugs in that house and then the second conformant says there's a large amount of drug they're going to do a deal for a large amount it would a reasonable officer think that that's the sufficient evidence no i think not and i think that's where  e good face theatre comes in and i think a that the reasonable officer and this is sort of an unsophisticated way of thinking about it but i imagine the ordinary police officer reading the affidavit and what does that officer say  what's his or her first response after it if if it is well this looks good to me let's go in the good faith exception would apply however i think that most officers would read that in their first response would be how do we know these people are telling us the truth because c s one ever given us anything that we actually saw panned out they are trained these police officers are trained and they've all been burned by faithless lying confidential informants it corroboration is as important to the police officers as it is to any judge and i think the police officers first response would be there's not enough here i what is your best case to support that even the good faith exception wouldn't apply here your honor i can't say that i could match any case exactly to what we have here there are numerous cases where in weaver is one that comes to mind but others as there was a bare bones situation exactly you're saying this is a bare bones affidavit no i think what we've are said it was that affidavit might be enough to to carry the day in some circumstances but i think what the court said was in a sense with a plate or not there's not enough corroboration here  the police officer should have spent more time corroborating any of this and if the obvious or head then the what was there in the bare bones i think the way the court phrased it it's finding the court said could i ask you know the question and i'm sorry because i should know the answer to this but we've had several sufficiency the affidavit he says this week and they kind of sometimes run together did you did you concede in your brief that there was some reason there was reasonable to believe that these police officers did know these informants even though they didn't say what their knowledge was no that would not be much that's about this case  about on page fifteen of your brief it seems fair to assume that detective evans knew the identities of his two confidential sources and thus could conceivably track them down if they gave him false information although it's noteworthy that in his affidavit he did not express a claim to know the informants identities i'm sorry your honor yes detective evans i was thinking that the good faith exception that the the police officers who were actually reading that did they know who c s when detective evans did at least it's very reasonable to assume that he did it doesn't that obviate down a lot of the concern about somebody anonymously keep providing false information about somebody else the whole idea is you know i'm and you can track them down if they've provided false information it's better than nothing but let address that one thing in the half minute that i have left c s one said that he saw an amount of heroin let's suppose that the police had gone into the house and found nothing suppose that c s one was lying there is no way in the world that that police or detective evans could go to a prosecutor say i want you to prosecute this man for obstruction of justice because it would have been clear to everybody all c s one had to say was i didn't say that there was enough to be sold i didn't say that you were going to find any the next day i didn't say it was packet hadn't seen it i just said someone amount so there would be no consequences adverse consequences for c s one except that having burned detective evans he would never be used again but that's why police officers care about corroborating people who they don't know already to be reliable runners thank you very much for this opportunity thank you i'd like to begin briefly addressing the standard of review with regard to the probable cause determination this court and the supreme court have been clear that this court evans testified to hearing in front of the district judge yes your honor he did however that was related to other allegations that for example there was a franks violation alleged in the initial motions to suppress so even though in other contexts some motions to suppress require the court to make factual findings franks is an easy example because the court will either find that there was information that was materially emitted or were false in the affidavit itself and that would be a factual finding that this court would review for clear error however when as here the sole question is whether there was a substantial basis for the issuing judge's probable cause determination this court is really looking to the issu judges determination and not the district court's determination this has been emphasized by the supreme court and in terms of with regard to facts for example that may have different interpretations even most recently although it was in a warrant case it was a probable cause case this court and wednesday which was issued after the briefing in this case made clear that reviewing carports are not supposed tease out facts that could have an innocent explanation and consider them on their own and instead this court should consider those facts under the totality of the circumstances and that's the problem with the case of driving here the district court teased out that fact and said it could just be consistent with mr hines behaving like a drug dealer but it was also equally consistent with c s to report that mr hines would meet him at the nightclub and had received a shipment of heroin again there on factual findings because the question is whether a well trained objectively reasonable officer under the circumstances would have known that the that the warrant was not supported by probable cause and again we easily cleared that hurdle here i would just leave you with i think the ultimate problem with regard to going back to probable cause where the district court the court erred was by taking a divide and conquer approach with regard to each of the facts listed the district court's opinion does have a statement looking at the totality of the circumstances on pages nine to ten where  saying looking at the television the circumstances list circumstances and and saying the totality of the circumstances so why is why isn't the district judge doing exactly what you say you should be doing i think the court states the correct standard and but at the end he's  really stating what the affidavit is lacking and it's course been clear that that's not the question for reviewing court the question is what the warrant does contain gates makes that clear in other cases in this court and makes that clear and here there was a plethora of information that's corroborated c s one and c s choose reports and which ultimately provided a strong nexus between the house and illegal activity and for all these reasons your honor we respectfully request that this court reversed the district court's decision thank you thank you thank you both for your argument the case will be submitted with the clerk called the next