before the court we have a challenge to a search conducted pursuant to a warrant and the defendant has taken the position it and accurately so that the three aspects that were lied to and by the core in affirming the search warrant are part of one continuous contact in a sense that the law enforcement had with the defendant and require suppression as a result of both the combination of the error committed by the district court and its legal conclusions and even accepting the factual findings of the district court specifically the warrant which is actually quite simple and it's found as part of the defendant's appellants filing as their appendix is only two pages long it very simply rely so st sign an initial stop and put by law enforcement of mr gibson and his friend mr miller in essence the circling and that he found it on usual that two men would be walking down a residential street at ten o'clock at night and as a result neighborhoods there should be no th amendment violation by two men simply walking down the street one man drinking i believe it was a sprite or a mountain dew at the time they were called over by the officer the officer described however because the officer claimed he had some knowledge about mr gibson he actually took him to the ground and put him in handcuffs under all of those circumstances year your honor it certainly is particularly in this case where the two men are told to come to the front of the vehicle it's not merely a stop on the sidewalk to chat there not only is their forward motion interfered with but they're actually told to come to the vehicle order to come to the vehicle in a certain way clearly we have a terry stop which becomes an arrest as soon as we have handcuffs on those individuals eventual and mr gibson and mr miller are released and they walk away to go about their business interesting lee the officer claims that he finds a meth underneath his vehicle at some point it's not disputed in the contact with the officer and mr gibson mr gibson either falls because it's icy or or purposely goes to the ground it's not clear and the officer claims he's concerned that the math type was thrown toward the car at that time however the officer never sees anything thrown he hears nothing there's no furtive movement to suggest that such an event happened ultimately we don't know whether that map was in the street previously we don't know if mr miller may have had it on his person and thrown it we don't know if mr gibson may have thrown it as easily if that case had been tried locally they would be insufficient evidence to prove possession of a match however then the same officer officer piercing communicates to the next the server to make a stock of that vehicle mr officer hartmann makes the staff of the vehicle ultimately in the driveway of mr  gibson's car mr gibson actually consents to the search of his car his car is searched not once but twice he is held for forty minutes in handcuffs during that time at which point his wife comes out and tells officers incriminating statements about items in the house after becoming nervous about forty minutes passing the magistrate judge me certain findings and conclusions about the wife's previous cooperation with agents with federal agents yes and to the extent that the warrant was based on those statements which were independently sufficient to sustain the finding of attenuation before the district court so we accept that as conclusively established and unchallenged except your honor obviously this court can look at to it at least under manifest injustice under plain error analysis and we would ask the court at a minimum to do that because i think it's important that we go back to the original search warrant in this case and again though the magistrate at the challenging level took a great deal of evidence about the da about what information other law enforcement officers had at the time the actual search warrant that was presented for signature did not include information in fact they information is completely absent from that search warrant as this court's well aware when we look to the ability of the search warrant we have to look to the four corners of the search for the government doesn't get the benefit of that holding a hearing and saying but we had all this more evidence in this case there was no argument of attenuation that could have been drawn from the search warrant that was offered later on therefore the judge that signed off and the original search warrant did not have any of that information before him had in fact the magistrate had additional information it may or may the court may or may not have understood the context of those statements i would suggest to the court however you mean the judge that the issue of the war yes and well nothing else that happened in this encounter with  warrant is because i think this is important there's no information in here upon which the judge and i know this is not briefed in the briefings but there is no information when i look to the actual warning about what would make mrs gibson even slightly reliable in terms of this information the she saw meth in her home yes but why do we believe her and that is a question that the signing judge would have to address why do we magistrate would say she's been working with the d a and i obviously they believe that she is a credible source of information it could go the other way because it could be not merely that this was the wife of some man being stopped on the street who has no horse in the game but she's actually a government actor at this point she's going to walk rating with the agents for weeks if not months that information is not provided to the mat straight to me who signs off on this warrant he is viewing her as any old wife of an individual who's being investigated and she's not she's actually a government actor herself now that is you i admit i not raised in and these briefs as the courts where i'm standing in for oral argument but i do think that it's something significant that should be considered because when we take out the st two stats the  st at which even accepting the facts as asserted by the magistrate certainly does not raise to the level of probable cause the immediate nd step of the vehicle which takes forty minutes and is two searches clearly is problematic when we're talking about a warrant signed at this point two eighteen am we have an individual who has been detained continuously since about ten o'clock that evening though he's gone from the street to his vehicle and yet when we look at what's presented to the the magistrate for signature what we have are those two stabs and the statements of an innocent wife supposedly that's really not correct and and i would ask the court though i am raising this at the time of of oral argument to allow an initial search warrant i do believe that that is a potential issue i don't believe that there was any information in the record to talk about that that lends late to how diligent the officers may have been  but certainly four hours is a long time believe that the ticket at issue here indicated it was signed at one thousand and thirty nine there is some evidence in the mr gibson was held in handcuffs in the back of the car i can't imagine how that could pass at least be a reasonable amount of time to detain  you good morning your honour's and may have please the court i feel like the th amendment claims have shifted somewhat throughout this case and even more so through the argument here but the bottom line remains that there were no th amendment violations and to the extent that the court thought that there was one in the th amendment violation would not justify the suppression of the search warrant evidence which is the only evidence that the defendant on appeal has expressed any concern about starting with there had been information that had been sent out to the locals that he was suspected of being a drug trafficker there was information that was basically the extent of the information just just something that comes up to sort of let you know that this person is being investigated but they were not involved in the investigation they knew nothing prior to the night of december th about who was a cooperating informant was which was gibson's wife what crime did officer par reasonably believe one teen who are about to be committed when he decides what handcuffs on it's an inference scam because it doesn't seem as if there was any evidence of any criminal activity  whatsoever well at the time that he was investigating at that point i believe that what he would testify to is he was trying to figure out whether these people were attempting to commit a burglary or theft that was what his concern was but as far as the courts question goes he asked the defendant if he could if he was willing to be frisked in the defendant said he was so that's a consensual statement as far as the handcuffing goes the question at that point is was there was there a reasonable suspicion  sufficient to justify an investigative detention to hold the defendant at the scene to investigate whether he was involved in burglary some kind of drug activity the defendant's actions certainly were somewhat erratic odd that might be suggestive of drug usage and so the question at that point is could he briefly detain him at the scene to figure out if any one of those activities might be going on this was an observation  well after so after gibson goes to the ground during this this pat down and is you know i mean he gets in claims he slipped and fell on the ice the officer says it looked to me like he went down intentionally at that point the officer became concerned for his safety called in for backup and while he was waiting because he's outnumbered with two people there he did at that point handcuff both of the men and then the on the other officer show up they question the man and they release them no evidence is found as a result and there's no evidence that after this happened the fact that they may have briefly handcuffed the men for what appears to not have been a particularly lengthy period of time five or ten minutes at the most that that in some way le of the discovery of any evidence or cause anything to happen if if the defendants have any claim miller perhaps it would be some kind of a th amendment claim some kind of a civil rights act like we've heard about earlier today but it would not be a th amendment suppression of evidence case in mr gibson's criminal trial that was even more the case for mr miller's handcuffing mr miller was unconstitutionally handcuffed because he was compliant while mr gibson wasn't that couldn't possibly lead to suppression of evidence from m on argument in the utah versus treif case and many other cases where the court has said if it if it's not you know essentially flowing if it's not essentially flimsy evidence and the evidence is it was not a purposeful or flagrant violation that's what the court has s well and in st itself the court said look they should not have i mean it's very similar to the facts of this case the court shouldn't have engaged in a terry stop with the defendant the court should have tried to have a consensual encounter with the defendant but it's close to the line the circumstances were close and under those circumstances once the ball gets rolling the fact that then there's this independent source that sets it aside i mean i suppose i suppose it it it could be a situation where we are centrally say hey even if there was an independent source if if the government went in like they did in matt versus ohio and committed a flagrant violation we might still suppress the evidence but that's i think what it goes to at any rate we don't think there was a th amendment violation the st place but the the point of the matter is that whatever th amendment violations the court thinks occurred by officer garrison none of that led to that none of that led to the evidence that  supported the search warrant and that's where the probable cause comes in and the defendant at the suppression hearing made clear he wasn't raising a frank's claim he wasn't raising any kind of challenge to the search warrant so for the defendant to come in now and try to ask for supplemental briefing or try to raise some some ability if i see something glaring that the magistrate judge did that i disagree with but judge spring then appropriately did a quick look and said there doesn't appear to be any particular errors in the at analysis of the  doctrine or of the handling of officer hartman's actions and so we don't see any are there so the court wouldn't really even i think on those grounds need to reach the these issues that's what i would say you know i would clarify  record we don't think that there were th amendment violations here we think that the actions of stopping a police car on the street getting out of the car asking the two men to come forward this court has said that those actions are appropriate he spoke in a normal tone of voice he didn't display his weapon he was outnumbered there were two of them and one of him and gibson doesn't act like he's at some kind of freeze hands up terry stop right he walks by the police  mountain dew bottle in the snow for whatever reason he comes back he's kind of wandering back and forth he's kind of answering questions he's acting like this is a consensual encounter we're here we're talking i'm here because i want to talk because i'm willing to talk to you i'm sure you want to talk to the that decision to use handcuffs right eventually the officer can say look and this is not just a case of somebody walking down the street at night right he's in this area he knows as george bower pointed out initially that there's been a lot of crime here  there's been a three or four recent fifths of a t v s or burglaries of houses including one just a block away so he knows that this is an area that's that's that's subject to crime in small town indiana and h driving down the street it's it's a weeknight it's ten pm and it's eighty degrees outside it is not normal under those circumstances for people to be outside now does that fact alone allow him to just stop anybody and you know handcuff them and arrest them of course not but does it perk up his attention to the point that it's ok for him to stop and say what's going on here why are you out on the street you're not walking a dog one of you is wearing pajama pants and a sweatshirt which is not appropriate for a degree weather and i don't i don't know who you are  and i know most of the people in this town so i can't sort of say oh well you know it's the person who lives in this house and so i'm not going to worry about it i thought he recognized gibson and he does i think in his he doesn't belong there from his distinct official here and he knows i know who this guy is because i've seen just reports that he's a suspect a drug trafficker and i don't know of any reason he should be in my town is it possible sure there's possibly a reason why is why he should be here but i don't know why he's here and it's interesting that he's a suspected drug dealer and this is a street nearby where we have theft so he stops he asked some questions and he doesn't get any good answers to his questions the guys behaving erratically the guys putting his hands in his pockets and at that point he can say look there's of nuff going on here that i can briefly detain you to try to figure out what's going on and the reality is at the end of the ten minutes he still doesn't really have a good answer as to why he's there or what he's doing but the officer appropriately says i don't have any cause to arrest you for anything i don't have probable cause to believe you've committed a crime so i'm going to pass and i'm going to i'm going to let you go and that's all appropriate no t that is a violation of the th amendment and then the only claim that's raised at all to the district court is this th of it had it not been for this th amendment violation by officer garrison which we don't see an opposite of violation the st place none of this other stuff would have happened and you talk to street and the carter case from this court and all of these other cases say that's not the law that's not the law to begin with you're not even addressing the lot of the district court even if the court were to consider consider you know somehow or somehow consider preserve i think that carter and st and those other cases fully support the idea that all of the evidence from the search warrant which was fully supported by christa statements is enough and any new argument the defendants trying to raise now about the search warrant itself or some kind of frank's issue is clearly waived if the court has any further questions i'm happy to answer them otherwise i would give back my time and ask the judgment   i do think it's important that we don't just accept that two men can't walk down and it is down the street to be recognized by an officer and that requires them further investigation as the government indicated it was very cold out that day that the mr gibson was putting his hands in his pockets may very well be because he was cold you know frisking him checking his pockets is more than adequate to determine that in fact he has nothing in his pockets it is a parent from the record that officer garrison did in fact know who mr gibson was and in fact had called i believe three other officers to the scene from two other locations in order to continue this what the officer is saying is merely a not even investigative style so i think it's a very unfair characterization to suggest mr gear's officer garrison indicates that there was more information that he had then merely there had been some burglaries a week earlier also the record is quite clear and mr and officer garrison does admit that when asked mr gi very specifically told him where his car was parked whose house they were at and where they were walk into so it then the record does indicate that i believe that the supplemental talking to agent lundy i believe it is an officer one day as the cross designated officer that in fact had more information we i don't believe we have the time for when that communication took place but