bolling i think we can dispense with reading the entire list and if you just call the first case for argument will proceed that way first case for argument this afternoon is number fifteen to thirty eight eighty nine north dakota united states versus randy's  and thirteen agent colter had a sworn affidavit that he filled out after interviewing and informant with respect to alleged purchase and delivery of methamphetamines after lengthy interview with this informant his world the affidavit and he determined that the address for the war it was one zero nine five two cane north dakota that was his determination that he made based upon that particular arised probable cause or alleged probable cause within that informant testimony he obtained a warrant with that specific address on it later that evening when he and other law enforcement officials gathered in mckenzie county to work out a plan to execute on the warrant it was an obvious or that had nothing at all to do with that earlier affidavit an interview of the informant that officer mr johansen with nothing else he didn't have anything to do with it he says well but mr started his address is is a different address it's ten eight forty one but mr johansen having had nothing to do with the earlier interviews and not not having the benefit of what the informant saying had had no reason to think that the particularized probable cause would have to do with this ten eight forty one address so then what how does the original officer come up with to ten nine fifty two agent colter your honor originally came up with that address by calling the north dakota department of transportation and asking what addresses you know they had so the government says well it didn't come from the informant it came through the kind of records check that you're describing so why does it matter whether johansen had spoken to the informant if he was just correcting what coulter had done through the records check because your honor we don't know what the informant had intended because she had indicated that she scart as parents address or their homestead and so there was multiple assumptions well started to didn't didn't inform and say that it was that she was buying the methamphetamine at the at his residence and that it could be owned by the parents her words could be interpreted as your honor interpreted them when i see that affidavit  colter i don't believe that the informant ms starr actually said it's where randy lives mr scar lives i don't believe she said that so that's another whole in the entire analysis because so they get to this area where they're they're talking about going in on this warrant mr johansen says well but that's not remiss to risk our lives and so earth and see that the description sort of matched the description given by the informant was a single family dwelling with a large quantity it in a farmstead in north dakota and she did mention something about some construction going on well both the ten thousand and fifty two address which was mr scarred as parents and the ten eight forty one address which was mr scarred as they were both single family dwellings and they both have that and that's one of the problems because what agent coulter should have done when this huge question arose as you know they're anxious the law enforcement they want to get this thing done although there's no exi indicated during the suppression hearing at some point that at that point in time he did look at google earth this is after the first warrant was issued and he sent f b i agent bennett johansen to look at the addresses and then he called the magistrate judge karen klein and what the evidence showed at the suppression hearing was that agent coulter had already called  magistrate klein and we don't know what was said to magistrate klein because there's no recording of it which is another violation to be seen in the totality of the circumstances but the undisputed evidence is that when f b i agent bennett returned from the journey to check these at this address out agent coulter was already on the phone with the magistrate so any argument by  the united states that agent polter had provided any kind of a sufficient nexus to transfer the warrant from the ten nine fifty two address to the penny forty one address is incorrect because that call had already been made and again we don't know exactly what was said during this brief conversation between magistrate kline and mr bennett because it's not i'd like you to identify in more detail for me what place you are actually talking about and if you have taken the next day to do it then it takes the next day to do it our fourth amendment rights are more important with the expedienc of law enforcement in executing a warrant but the other thing that's interesting in the totality of circumstances is there could have been any address given by the north dakota department  transportation it could have been an old college address and all so the chance of this warrant going to a wrong place was complete agent holder should be punished law enforcement should be punished because of this illegal search it was agent coulter that called magistrate klein and represented to her whatever it is that he represented to her we don't really know what it was and got the permission from officer client from magistrate klein to change the address on that warrant and to mark her initials on it that is conduct that should not have occurred that evening that's why the good faith exception does not apply in this case the a circuit test to determine the sufficiency of the description to be searched is whether the place to be searched is described w sufficient particularities to enable and executing officer to locate and identify the premises with reasonable effort what we have here is the informant saying it's a single family house with the quants that are in place in north dakota that could cover ninety nine percent of the farm places in north dakota what agent called or should have done when he's with the informant is get actual directions to what what is she talking about where is she saying she went and allegedly bought methamphetamine that should have been pinpointed at the very get go on this warrant but it was not instead he calls d o t to get an address and the address is looks like a rural address in keene north dakota slaps it on the warrant and then later on that the second part of the test is whether there is a reasonable problem probability that another place might be mistakenly searched we definitely have that here if you take out officer johnson from that equation on the night of october seventh they go to the ten thousand and fifty two place they go to the ten one fifty two place because that was a place on the war that would be one reason why the good faith exception would not apply the reason why i'm arguing that the good faith accept does not and should not apply is because of the actions of the agent coulter is one that interviewed the informant he's one of the elected to get the address from the deal t he's the one that elected not to pinpoint with the informant where on this map ma'am are you saying that you went that's all that he would have had to do and had actually gotten an address but then through agent quarter that night to be of such a it's no exigent circumstances at issue and to start assuming things was clearly wrong it couldn't be argued that he did right thing in the sense that when he got additional information that pointed to to the one hand out to be the correct address he made an effort to correct it he did make an effort to correct your honor but the met the methods and form that he used to try to correct it  was was wrong because what he what he did is he just gets on the phone with the magistrate at six o'clock pm and i can only assume that he allegedly just told her hey i got the put the wrong address on the search more but the issue is whether there was sufficient probable cause and particularities with respect to the ten eight forty one they're just  assuming that they are transferable that they're interchangeable and my argument has been that they're not and it was wrong for agent colter to tell magistrate klein that it think they went there to see if the site could fit into the description given by the informant the problem there is that description given by the informant covers ninety nine percent of farmsteads in north dakota single family dwelling with a large quantity are you saying that there's that many quonset huts in the farming area of north dakota that's our argument your honor because the the google maps indicated such kwanzaa maybe that yes ran in that family quansah yeah and throughout north dakota i would argue that if you go to any kind of a family farm type situation the machinery and a single family house and so to me that wasn't perfect to me that's not particularize to and do you care to save any time for a bottle you're down to the last minute i did save ten minute or five please the court chapman like to start off just kind of where mr chapman left off when one looks at the affidavit that was actually originally submitted in this case the informant the property as possibly being scarred as parents identified homestead and then goes on to describe the home significantly the home that she describes is under construction a the actual the physical home and she talks about the construction that's actually going on and when eight agent coulter obtains the address in this case it simply from the deal records that's when the original warrant is issued when he and the others meet before hand before actually going out to execute the warrant deputy johanson is there significantly in what agent coulter talked about at the or testified to at the suppression hearing is that deputy johansen knew this property well and he knew it because he lives in that area so he knew exactly where to reside the probable cause that the magistrate judge originally found wasn't particular ised as to the ten nine fifty two address that was just the d o t record the probable cause was particularized as to where randy scar to live and in this case it was clear at the time of the briefing before the execution of the search warrant where lived and that was based on what deputy johansen had told agent coulter and he did the correct thing he didn't execute the warrant as it had been written he contacted the magistrate judge was the word written for randy's guards residence or where he lived was that it was written it did spell out that warrant should be executed at the ten nine fifty two residence so when the local officer looked at it and said randy skordas residents and he says that's not where he lives and that's what harassment right that's correct and did the warrant say grand discard his residence which is ten to nine one was at the original language i believe it says i mean look where you are looking what he's trying to find by to see if we have the actual warrant you know that's in our the application i 'm looking at the government's appendix would be a seventeen and it just simply says the premises located at include ten nine fifty two it does not say brand guards residence and just says the premises located at but again that's developed simply from the records from d o t d but the probable cause description that's provided not only by the informant mis nine fifty two she did not provide a numeric resident she provided or numeric address i'm sorry she provided a physical description of where he lives what about the statement though that the parents  may have owned the place where he was residing he's talking the informant is talking about a homestead and there's multiple families who move off of their homestead into town to other locations the homestead is i not necessarily a residence the aft the affidavit never said this is where mr scott as parents currently reside it says that this was possibly the parent homestead well that's totally different it's it's not the same as saying that's where they reside she did the records the johanson searched or did he search any records or didn't know the numeric residence number off the top of his head that he didn't check to did he check whether that was the parents homestead i don't know that there's anything in the record that says that judge  ok but the first number was the parents homestead i believe based on the information well it's where the parents live i believe the ten nine fifty two is where his parents live based upon the information that was submitted by mr chapman in his his suppress so does that mean it was their homestead no i believe that means that's where they currently live judge i would argue that homestead is completely different my my wife's parents homestead is is near hillsboro north dakota label that's why i'm asking that's why i'm asking whether the first address was the parents homestead you're saying the record doesn't show one way or the other are you talking about the ten nine fifty two yes i don't know that the record reflects that i know the record reflects based on the motion that was could occupy one hundred sixty acres and that would that you were your homestead and if you did what the law required then you owned it but homestead is also used in different ways in the law common understanding of the term especially when she talks about mr stern arda now residing there in rural areas that would probably creature well if that's the natural understanding of it then why doesn't that nine fifty two is the correct was the address that matched with the informant was describing if if the because he's driving the parents homestead in the natural meaning is where the parents live now i think maybe you misunderstood what i was talking about she's not talking about that's where the parents live she's talking about where mr scarborough lives being there homestead maybe i'm maybe i'm not being clear well i thought you just had this colloquy judge beam about how the ordinary meaning of homestead when you're talking to an informant is not that can kate act meeting but probably where the people live and it was referred to as the parents homestead not scarves homes are  maybe i wasn't understanding what judge beam was was saying what i see at homestead i look at it as and i think the informant here was looking at it is as a former location where mr and mrs carter have brandy scarred as parents lived at one time have or did not who were just property that young or just property they own randi probably lived were the where the parents homestead existed and they were living someplace else which wasn't there address that he had indicated that he obtained the address in the information from the deputy from deputy johansen who lives in the area so that's what his testimony  also did testify however that he had looked at google maps and viewed the property that he had sent another f b i agent and deputy johansen to to look at the property in particular as well i don't know that the record is clear that that happened he's on the phone with the judge while this is going on in so it's unclear whether that was communicated or or not as far as the google one of the cases i want to make sure that the court when you consider that particular nexus is is to to look at the to lee's case t e l l e z two seventeen fed third five forty seven one of the things that that case which is an eighth circuit case talks about is that when you have evidence that a defendant is engaged in continue a continuing course of criminal activity that allows for a that the defendant is keeping either a supply of drugs or perhaps other evidence related to his drug dealing in his home in his residence all right when you look at the affidavit here it's very clear that the both of the informant miss starr had talked about a continuing course of conduct she had recently received methamphetamine from m skara but she talked about receiving methamphetamine every three to four days over a course of the past year there was also a second informant who is referred to as c s five in in the having gone there and obtained methamphetamine from mr scott at the residence as well so we're talking certainly about a continuous course of criminal activity that this court in in that case in particular and others says when that type of activity occurs there is a reasonable inference that an be drawn that the subject of that trafficking would have either a supply of drugs or some other records or in disha of his or her drug trafficking activity at one's residence we did establish that probable  cause connection or nexus with randy scarred his residence when that was corrected as to where he lived through the contact second contact with the magistrate that nexus goes to that new address ten eight forty one was missing it's mr chairmans contention that you should the searched the elder chapman's residence under the documents that you hand and you wouldn't have found any methamphetamine in there is there right in that what his argument is that that's his argument i believe that he's suggesting that they should have searched that residence well that's what the original warrant said yes would they have found methamphetamine the war was looking for more than just methamphetamine in and of itself it was also looking for any records documents and vicious drug trafficking it wasn't specifically we're just looking for methamphetamine whether they would have found methamphetamine there i don't know it was never executed would they have found other indicia of trafficking possibly they may have  i just wanted to point out i see only have one minute left with reference to the procedural violation here i believe that the evidence here shows that coulter did exactly what this court would have an agent a law enforcement agent do when presented with this particular circumstance finding out that the address is different he did contact the judge he  responsibility than to to do that in modern england get a court reporter or something it is and i don't say that just because i feel that way it's actually written in the rule rule forty one actually does place the obligation on the judge not on the agent what time of day did he contact the judge you recall leave it was it was after five it was between five and seven pm it's it is in a what would the judge do just as a practical matter in your experience if the facts after hours in the court reporters are gone and the judge would typically have as his or her clerk record it with a tape recorder connected up to the fall is it has been my experience the unfortunate part here is you look at the record is that the magistrate here was not in the courthouse and was outside and had to be connected via her via her staff right so then in that situation it's more difficult to comply or act rule i guess you're saying maybe there should have been a conference call arranged or something with the home office where the home office could record it yes yes i think that but that would be an option at least would would have been an option yes right all right well thank you for your argument mr chairman will give you one minute in rebuttal if you could set the clock mr bowling thank you that there was not exit circumstances and then they could've sworn out a new affidavit went back to the informant and phoned out because there is all this confusion and multiple piling on they should have found out from the directly from the informant what address man are you talking about and i are arguing mistake by the magistrate judge really you're arguing now mistake by the magistrate judge which gets you into good faith exception the agent called and the judge was willing to modify the warrant so why don't you at least lose at least under leon even if you're right about what the judge should have done but i still  cast blame on agent coulter primarily your honor i see that my time is up ok well i think we understand your argument and the case is submitted we'll file an opinion in due course