know that these cases are directly about the independent source exception you know the supreme court's decision in davis talks about what really matters under the under the exclusionary rule but those go to different exceptions or those go to the attenuation or other or separate exceptions are there any other cases other than the eight circuits madrid case that suggest any chance contact has any impact on the analysis for the independent source  jars of lactose none of these items was disturbed by the agents and so my question is is this just a factual description or are you relying on the fact that the a supporting the warrant here was issued in part on information gleaned after the entry into the house because they're talking about the testing of the methamphetamine and are you relying on cigarette we are relying on those your honor and i do think that they're also says that was important that casey johnson exploited presence in the home which is different from what happened here because of the field testing and the decision to include the drugs in the war wasn't an illegal entry followed by the media arrest of the suspect and then as soon as they're arrested based on the illegal entry asking for consent which the court said would be unconstitutional like rubella what a duck and so it would be an odd rule that says agents didn't feel tested drugs once they got inside and they didn't mention the drugs in the warrant so that i guess that's what i'm trying to pin down to what is the flagrant agent contact that you refer to in your  than they would have been if the initial entry had been stopped and so there's that kind of practical balancing there and each of the other cases one can be absolutely confident that there was no exploitation of the original illegal entry and in that respect this case is different that that's in all of the other cases you know the court of appeals and mary had said we can be absolutely certain that the warrantless entry in no way contributed in the slightest and actually court remands on that point the court says we're not so sure that that's true so we need to find out fact ection the same suger the same so that leads me to the next question though  the house on the warrant they see everything and that and there we are so i gree that's what the district court said and what it did to number one i don't think that that's that that they should work that analysis right but even if you disagree with me on that i think that what this court was getting at in action itself when it made a big point about the fact that the agents didn't observe that the agents although they observed drugs and didn't include it in the warrant was it was trying to get at this noise exploitation and that when they really try and exploit it you have something special and different in that you need to take that into account for the reasons that the circuit also articulated and madrid which is that if you don't take the break with nature of the police misconduct into account then essentially what you're doing that you're giving police  to violate the fourth amendment the second that they have probable cost and drove home with drugs in this court and collins already said that that is not ok that the police need to have either a warrant exigent circumstances or consent to come inside the fact that they believe drugs might be inside is not enough when you said the district court didn't get the franks analysis right are you arguing that she should not have applied a frank's analysis are you arguing that her determination that there was probable cause even brief our one thirty five page well that's a very proud statement the net are you saying that it preserved any possible suppression issue and i took that as preserving really what your main difficult instead eight to seventy so well the officers had probable cause to enter the home i think that's a good reason to go into a home so there was no fourth amendment violation the first place so when it got time to trial the government the government and the district were balancing we need more than just probable cause to enter a home it probably does have an effect on what the later warrant is but everybody agreed throughout that the initial entry was illegal until that moment perhaps what i don't think they would about whether you're on the porch or whether you move through the screen door what have you that would they talk about how important it is have to correct as you said either a warrant consent or extreme circumstances you hear the sounds of flushing or you hear people screaming or you hear you know something that makes the police think we have to go in right now and those are all well recognized so i agree with you entirely judge wood and i think that was the problem here is what the government of the court you know for whatever reason thought there was an additional exception which is when you're going to secure the scene to get a warrant you're also allowed to enter the home even though you can't meet any of those requirements where the government says what the agents did here was lawful of the gate of procedures that didn't really everything by the book the only minor mistake that the government claims agents committed was putting the drugs in the affidavit itself they don't think there was even a problem with the police coming through the other things so i could be entirely judge what i think the problem is that that's not the message that government is getting from the cases of the cases are not excluding the evidence and that's why we need to the evidence here the court has no further question the illegality of the initial entry has no bearing on the second question which is whether the taint you know when i mean that's what we're trying to talk about and what worries me about this case and especially in light the of the a magistrate judge being asked just thinking that maybe they knew this legitimately you know you're going to authorize a search warrant for something where it's already been field tested and you know for a fact that law enforcement knows that it is meant methamphetamine i mean if the if law enforcement knew it was methamphetamine because they had put a tracking device in the package and then the package winds up in the kitchen of the house then that's an different situation you would be able to put in your same package we tested the package before we put the tracking device on it and so on and so forth so you could have a legitimate way of knowing that but this doesn't happen to be one i agree and i would just say two things one is that there is a gap and what i would genuinely hope never happens again and at least in my district or anywhere else exploitation and that is all those cases involved entering illegally seeing things  that the individuals who lived in the house either did or didn't have a reasonable expectation of privacy and there's no reason what's a tension of privacy in the methamphetamine which i think is one distinction between this and madrid where we talk about notebooks and things that a person very personal private but in all of the cases government canvassed all the cases i could find including even cases involving sanctions evidence observed after an illegal entry was included in almost all those cases but evidence was more tainted by this illegal entry has properly gone to a magistrate a state court judge and an authorised official laid out probable cause the issuing officer looks at  yep you no probable cause issues that warrant and the police then having only meanwhile team a has just done nothing but secure go in and search that's what the supreme court's worried about we don't want to say that the police have done anything wrong in that situation because the untainted channel is working the way it should the untainted channel did not work the way it should here well the officer in charge the agent in charge left secure the house in service of getting a warrant if we are told that in every officer in indiana is going to do this well it will only be if you do not uphold it it will create a circuit split and that is it is a strange will under the fourth amendment i have to say when i picked the case up my heart went like down in my stomach i thought i've done many fourth amendment cases and i thought what happened here and i had never heard of cigarettes and i had to read cigarettes several times before  there's even a portion of cigarettes that where the court goes out of its way to say that there is no distinction between a perimeter stakeout and joyous side i have no idea why the court called it necessary to say that there are practical issues i suppose with that in that perimeter stakeout of the law enforcement contact ever matter in assessing independence i just think it should always be an outside consideration the government's position has never been in this case that madrid is eight bad rule is a bad way of treating these cases the government's position which i understand your honor may disagree with is on these facts unlike the ransacking that occurred decisions that they just record made because at issue it was what was the nature of the advance planning and you have you know a couple of different accounts of that if the advanced plan had if all that we have here of course you have to look at the whole record of clearer but if all we had here was detective peter statements this would be an extremely close call because you have the way he testified to this pressure during which you know i made light of  blackwell i believe this is the decision that discussed that is i mean numerous cases discuss it but as a separate remedy beyond that i've been trying to think of the best way to do it because i'm afraid of chris generally rule that where you manage with officers could manufacture and oxygen c but i don't know other than to say it's my takeaway from all of this all of these cases is that this is the most difficult  balance that i've come across to strike in terms of crafting a rule that sends the message that supergirl was excusing isolated behavior and again there are only there are fewer than a dozen cases on this around the country since two thousand i think it great problem but at the same time every time it happens the fourth amendment i think that some clarification about xander might be the clearest way to go about it to say in x when we tried to send this coconspirator and then at that point decided ok we're going to now drive to the other coconspirators apartment for the purpose of entering regardless of permission freeze it and then getting a warrant that seems the same to me and alexander they approached the house message for sure but i thought there was a lot of discussion about creating a circuit split the only circuit split would be created here as if the court actually allows us evidence and because then you'd be creating an especially if you don't take the deliberate nature of the conflict into account because then you'd be creating a split with the eight circuits decision in madrid i think if you look at all the other cases that the government talked about in its brief an argument it's basically three key features here that don't line up with those cases number one it was the deliberate plan  matters is to look at the supreme court's decision in davis where the supreme court said that when the police exhibit a deliberate disregard for the fourth amendment that the benefits of exclusions tend to outweigh the costs and that we appreciate very much your efforts on behalf of your client and for the court and special thanks to government as well i don't know if you're being paid these days but i'm pretty sure that that's what i thought so and so we appreciate the extra effort that everyone is making to the cause of justice along