person to be arrested on the spot for trying to pay with money that looks and feels perfectly real but turns out to be countered well from my standpoint this case is about waiver of course i'm speaking only for myself at this point but  to begin i assume that you would concede that the factual basis for your argument at this time on appeal is different from the factual basis of the issue raised or i wouldn't instance if you evidence that he ran it is other evidence but when you were before the district court first the argument was terry stop with it was cause for terry stop and then the argument was whether the individuals and the officers specifically could reasonably believe that that the bills were in deep counterfeit and that factual basis as judge smith mentions is totally different from the factual the facts about have to be a deuced with respect to state of mind or your intent is it not well let me talk about the facts your honor the single so i guess you don't want to answer the question that's been posed twice about the difference between the facts suppression hearing in our young men's right that's accurate your honor that's a pretty substantial difference when we place that argument before the district court but district court did not understand it to be an argument exclusively about the actus reus and you can see that from the analysis she sets forth in her opinion she identifies prominently the single fact that bears on intent in any respect whatsoever and that was that there was a passport that had a torn photograph she gives that fact just as much was the fought and the knowledge and the understanding of the officers regarding the counterfeit nature not regarding the state of mind why don't i mean tell me where in her opinion  which is very thorough she refers at all to this element and the and the allegation that there's anything lacking with respect to the state of mind if she doesn't refer to any  knowing state of mind with respect to the counterfeit nature where did you alert her to that we did not specifically raise that or do you think she would have addressed it then rather than this broad totality of the circumstances  says that any probable cause determination requires an examination of the elements of the crime at issue that is the law of this circuit if this report realized that it was natural for the district court to realize that because it's a fundamental proposition of our criminal law that there can't be probable cause to believe someone has committed a crime unless there's both the act and the mental state so are the cause that you focused on that was focused on the district court had to do with knowledge and understanding expertise of the officers that's how it was teed up and that's how the record in the argument with the district court goes and indeed your adversary response just to that point on probable cause so how is anyone on notice that this was an pretty pretty strong medicine from us if we said in a probable cause a district court judge had to look at every element of a crime and make sure that there was probable cause for through the entire the entire theory and purpose behind our at the serial system as it applies to issues is that we narrow isn't that i mean you just don't throw something at a coup or and say resolve it the role of an advocate and the role of advocates in an adversarial system or to address as specifically as possible points and you're not doing that here and in fact it seems to me that your reliance and it's not an for arrest was challenged on one basis then other bases as to the absence of probable cause have been preserved that's my understanding of your argument and in my view that can't be right  we don't are we don't quarrel with the government's interpretation of the prius having howell's that the government did not waive the issue in that case now that's a notable aspect of the parade because in that case the government had conceded tha very different case there was a focus there on exactly what was happening a point in time and you know whether someone was held or it was a very it was focused at exactly the same point the arguments were somewhat  somewhat different but that's very different from the total change in focus that we have here is it not yes every waiver case is their friend because waiver determinations are factually intensive i can't resist just one sentence to say to my mind the main difference between the pre and this case is that the government expressly conceded in the district court the argument raised on appeal we certainly did nothing like that we made one argument about why there wasn't probable cause and you know that in no respect whatsoever that we suggest that was our only point that if we were wrong about that argument and probable cause that exists then how is anyone on notice whether it's the court or your adversary how to respond to the position presented on the motion or if that's if that's your view well we brought one up that kept everything in play sheen on everybody else for not catching it your honor our position is that once a party challenges the absence of probable cause which no one disputes we did under right the city of philadelphia the precedent of this court makes clear that examining probable cause  examination of the elements of the crime at issue so and i believe that that would be necessary regardless of whether wright had crystallized that for us as it hurts judgment i was speaking about right before a judge i don't think the decision can be read any different way than i'm reading it in right defense was criminal trespass there was no dispute that the suspect had broken into someone else's home so if it was enough for a standard and so what it asks the court to do is to look at the policy considerations i think judge lawrence you asked about how any party should know the record here affirmatively demonstrates that the government put on all evidence it has of what officers knew at the time of the arrest and that's clear from the testimony of agent taylor which we set forth a patient two and pages seventeen through eighteen of our reply brief there cannot be any dispute that the government has no other evidence of what police knew so that the purpose of the had expertise to identify bills that would have been no reason for it's a prominently remark upon the tauren passport the only significance the torn passport could have would be that it might indicate some consciousness of guilt that is the only significance that fact could have so the district court in paying attention to that fact did contemplate the necessity of addressing mens rea on a notably your honour's the government itself never argued that the passports accorded probable cause the court reached out to find that because the court was sensitive to the need for some evidence well it should show that these officers had seen it had looked at things of this kind before and knew what they were looking for a knew how to spot it but it really doesn't reflect  you know on the intent or knowledge i mean who knows who knows where he got his passport or knows if he he knew it was you know fake or fortunately there's testimony at trial of mr glen to the effect that joseph ran an indie ran up a whole flight of stairs and he was holding him by the collar when he was waving to the police now don't you think that kind of if if there had been an issue as to whether mr joseph was just a very innocent person who now had no knowledge that these bills were counterfeit don't you think that the government would have wanted to juice in that regard officer i'm brow testified that when she approached mr joseph was standing alongside she never saw any kind of struggle between the bouncer there wasn't there wasn't a specific answer of her question about any stru theory at every chance he changes the rain so i guess until we find something that's probably going to work i'm of the suppression in his suppression briefing he argued one theory about the search when we got to the hearing he argued another theory about probable cause and you're on it you're right the issue was did the officers have expertise enough to identify counterfeit currency so we need to either decide that there was no waiver in order for him to succeed or find that the probable cause determination address and determine whether it's possible cause as to every element as he says we reset and right well i think that that's not what wright says to begin with but know that this record is not required to anticipate every single round that a defendant could have raised but didn't raise even if it just goes to probable cause i mean probable cause alone there could have been any number of issues that are ways that they could have challenge probable cause  and the only way to allow a district court to focus rather than have to anticipate is to require with in this regime a degree of specificity issues or arguments that are raised would you agree absolutely or i counsel were both asked to address whether or not there was some tension between our two pre precedent and our crazy precedent and the government's response seem to suggest the belief that there is no such tension shouldn't be enough as du pree suggests that a party simply raise an argument within a certain legal frame to preserve that argument is that sufficient because that seems to me to be what was in jest didn't do pre at least in judge fisher's concurrence with sure adversary invoked briefly a few minutes ago and were church fisher in a case where of course you get three different opinions are i'm not sure what we make of any of it but he referred to the overarching question now if we're talking about over arching questions we're not really talking about circuit that do not exactly provide what might be referred to as either a test or even factors for considering what is substantially the same would you agree well i think that in cases like this where it is fact specific we all we can do is look at the facts of each case and analogize into priest and it's important to notice that in the pre in the district court and in appeal the government has cited the exact same case in fact  cited the exact same sentence and relied on that sentence for both arguments so du pree unlike this case is not a case where the new argument relied on new factual circumstances or completely new legal here i'm not i'm not arguing the facts or the procedural specifics of the pre i'm arguing i'm asking about the language of the opinion and the language of of our other marks rose tracey all of those cases involve situations where the issue was not raised at all that's exactly like this case here where as you prove the issue was raised the court was twenty i notice on both  statement to the effect that this is that was not a situation where you would have expected some facts additional facts to be a deuced of the argument been made with that be the  test that we should use would that be the standard where for instance some additional facts would have been presented by the government had the issue been raised before the district court is that a is that a workable test or standard for us to apply i think it's would be part of the standard but i don't think it would be the entire standard because the facts are one part that is one factor and it is a factor here your honor exact exactly right but it's also the law it's the least that's the  theory and that would be the facts and go with that theory so well the theory is lack of probable cause to have probable cause the officers have to have cause to believe that a crime has been committed crimes only been committed if every element is present but that's not the law your honor that's not how probable cause is determined probable cause is basically the talent of the circumstances as judged by reasonable men making decisions on a minute by minute basis not legal technicians and if if that were what the waiver will says if that's how to apply that we will in this court's decisions and marks tracy and rose would have decided very differently because that argument is that well look if i raise probable cause on a particular theory at the district court and every possible theory regarding probable cause that i could  you're missing my point i am a sign to get to a tast i'm trying to reach some refinement of our cases which i'm struggling to find and i quite frankly without with without trying to criticize an opinion which doesn't represent a homing of this who are just how language like the overarching question helps you wouldn't frankly how it helps anybody because it lacks any can you know take it out on me later one of the one of the frustrations i've had in reading these cases and dealing with waiver of yours is we throw around terms like issue argument theory reason question are they all the same i mean what do you weigh you with an issue you have an argument with a theory of as i say this is what exactly is being argued and what facts then need to be induced at that during the testimony i'm not quite sure how to define theory any more narrowly for the court but it is it sounds though like you're using theory because that was not the argument theory issue that was raised but if mr joseph asked if we broaden the concept and the idea is well look any time he because he raised the issue of the suitcase the search of the suitcase and the district court in every conceivable argument you can make for challenging the search of the suitcase was necessarily race that makes weaver meaningless that's true products got to be the same argument on or it does have to be the same argument and the just corpus put on notice that it passport no where in her opinion this you mention the word intact nowhere because it's not mentioned in the defendant's brief it's not mentioned during the argument it's not mentioned in cross examination it's not mentioned anywhere so she wasn't what i noticed that she had to address that issue and i would like to point out that that the defendant likes to rely on right in this court that was never cited either i mean i mean so the court was never put on notice this idea of you have to find every element that is not the law first let's not one right says second it's contrary to what every single other circuit court to have decided this issue to consider this issue has decided at seven other circuits have found that it's not necessary to find intent to be able to find probable cause in a count and yes the government would have very much appreciated the opportunity to come back around and disclose that dot you know connect the dots between what the bartender's saw what the security guard saw what they experienced and telling that to the police officers actually without that without the passport the probable cause as to criminality is a little murky you'd have to play up a little more that they're really relying totally on the bartender's say so and they rely on a bartender's experience which does that satisfy probable cause as compared to when the officers look at the passport that was to my mind somewhat necessary as to probable cause as to the fact that there was some commonality well i think it's hard to say looking back because other issues weren't raised so it was focused on certain issues but we have to keep in mind that the officers it's based on the tally the circumstances at the moment everything that the officers are seeing and experiencing mr joseph deny knowing that the money was counterfeit maybe they just didn't believe them but we do have done differently if if the r v was freeze just as it is right now what would you have done before the district i simply would have asked the question of the police officers officer and officer morris and whether they asked the bartender and or the security guard about the defendant's behavior in the club which they then would have relayed he passed through one hundred dollar bills in quick succession when we started to scrutinize and he ran out the door and i had to chase him down obvious evidence of intent it would have been me it's one or two more questions that i would have loved to have been able to ask but i didn't have that opportunity because there was you know it was an issue but you know it was an issue and i wasn't at trial everybody testified so and the issue of probable cause wasn't the issue so again that wasn't asked at trial but we weren't put on notice of that and it's very convenient for  frame the issues for the parties and for the court that's not an undue burden for the defendant to have to do you can't keep changing the argument along the way i mean where does it end at what point do we say enough is enough and i think that h some knowledge and he for example in talking about counterfeit currency here saying it looked perfectly normal and real no it didn't everybody who looked at it knew that it was counterfeit so was the defendant probably could have been put on notice himself that that money that he passed  i have a test for you and i have factors if i may i just have to correct two misrepresentations made by counsel for the government for first of all this money it looks absolutely like real money and the reason we know that is because the defense urged the jury in closing to compare the belt's defense counsel put in a genuine one hundred dollar bill twice told the jury feel these look at this one of the jury to realize how they don't look alike the second point i need to correct has to do with whether the officers would have been able to testify to any knowledge of mr joseph mental state the answer is the fit if we know that appears at pages eighty two and one hundred ten of the appendix at that location secret service agent taylor states that she was the briefed by the arresting officers quote unquote on what they felt their probable cause was and then agent taylor goes on to testify that it was only after she had been in joseph for a long period of time that she quote hind of got the feeling he knew moreover she never confronted mr joseph with any of his suspicious behavior inside the club which also makes it clear the officer didn't tell her any and substantially the same ground as he saw in the district court so what does that mean there is actually no magic phrase to come up with whether it's argument theory or what have you the breath of that standard is substantial similarity is appropriate because it accommodates the policy concerns the factors that it is that should be considered so no sacrilege that you say you urged before the district court and what's the grounds that you're here as your honor has stated fairly enough and your questions to discuss fellow it's that there was not probable cause that's been our argument that size of the crown the urging is no probable cause it's just that yes and you can say you could now say there's no probable cause because the officers were drunk at the time i'm saying that when you apply this it's no holds barred sorry i'm sorry they were drunk at the time and they therefore were not perceiving things that's right we couldn't say that now your honor we absolutely couldn't but you're saying like a probable cause that you've put forward a new fact that the officers were drunk and were not relying on any new facts when we applied the substantial similarity test the two key factors to consider are was the issue raised well enough that the factual record is adequately developed and was the issue raised well enough that the district court had opportunity to consider it and yes it was the issue of the mental state of st joseph was sufficiently raised to put the court on notice and was not from a factual matter different from the facts that needed to be a deuced i'm saying all the facts we need to answer that question are in the record as it happens in this case that's the significance of secret service agent taylor's testimony her testimony cannot be read for any other proposition but that the arresting officers were not aware of havior inside the club so we may be lucky in that regard your honor but when we consider the factors to be considered one was there adequate actual development to be just report had an opportunity consider in this case