well here the next case united states versus marle morning matthew brissenden for mr marlee i think that at the heart of this appeal there are sort of two core legal issues that are present and the st is whether in the context of a franks hearing a district court judge may consider supplemental information in support of probable cause that was not presented to the issuing magistrate and the nd sort of central issue is how do we handle a situation such as this one where it is alleged that illegally obtain information served to sort of the seed with a springboard or the trigger which initiated an entire investigation what is what is the remedy under those circumstances addressing the st issue st i think the answer is relatively straightforward give person other than the wine agrees when he comes back in cleveland to meet with him why would why would there be a substantial chance or probability of criminal activity where someone responds to something like one hundred begin with you when i come back from new york after believing it's someone that he knows about it may be other explanations obviously to that but that's a rather suspicious response starting with the patterns i have to to address not not to try to divide and conquer but i need to address each in turn but starting with the this notion of a pattern what's notable is what came out in front of the district judge was substantially different than what was presented to the issuing magistrate issuing magistrate is told there are multiple calls over a multi week period and that is supposedly the pattern that's at play when they have tamed the order suddenly they appear in front of the district court judge and now they're they're caught and it turns out that there are only four calls over the course of two days and suddenly this becomes if this becomes an i would have a club and they said that this was  for eight cell phone number was from an analysis of call patterns derived from a pen register so they just identified it at least not paragraph as an analysis of patterns right i don't have the the affidavit right in front of me but i can tell you that in in the a d a s affirmation he represented to the judge that there were multiple that the term was multiple calls over a multiple week period which was simply untrue so so you have the shifting narrative as to what constitutes in the affidavit so forget about the multiple calls and you stick with what was testified at least for this part and it's just beyond the pointed out to me that what's what's significant is the guy says you have one hundred to give me and everyone knows what they're talking about and why isn't that enough here's what's troubling to me i mean number one let's keep in mind we don't have a recording of this so we don't know verbatim the tone of what happened we don't know how this played out and certainly you know courts are allowed to defer to an agent's interpretation of narcotics codes but what's so noteworthy here is the defendant in this case never speaks in a code it's the agent who speaks in a code what we have is basically an agent making a cold call to a person he has no idea who it is he's speaking in spanish number one a foreign language and he makes reference to having one hundred to give him and wanting to meet him there's no definite agreement to meet right there is the sort of response that i'm out of town right now and here's the testimony has certainly has misgivings about the original affidavit and then concludes that there is enough i mean why why do we not give that deference she concludes that there's enough based on a number of factors that were not in  this new interpretation of a pattern of calls and also the six hundred and fourteen number as you mentioned she says actually in the hearing well you know what that's a lot more persuasive than anything else that's been presented so clearly that played an important part of the judge's decision what we gotten on mr powers phone as well right and the difficulty is just yes or no everything would that would they have gotten a mr powers phone independent base upon the stern phone they would have gone the power phone well i don't know what was presented with respect to the power phone that wire went up under the auspices of a jamaican authority and that paperwork was never presented in court so we don't know exactly how the power wiretap came about but but clearly there was there was enough to get phone there are no references to any incriminating conversations he has on the stern wiretap it's noted that there is a single instance where he shows up at starnes place of business which is also a jewelry store so that was really all they had as far as a connection with stern goes the real incriminating evidence comes when they obtained the jamaican wiretaps and the power conversations but what is so critical is they could never have tied that those power wire taps my client without the traffic stop because it's the three to seventy one number right during the traffic stop they uncovered this nd cell phone of the clients which is the three to seven number one number the nd as soon as they found out about the three to seventy one number apart from the stop your client they could have gotten they certainly had enough of that point to do the they would have certainly found out who your your client was right but there was nothing that were prevented them from just doing that order a few weeks later and getting these acts information itself is is the fruits that write the information that he possesses and uses that three t based upon those independent sources one suggested well i mean if we're saying that the government eventually would have tracked the three to seventy one number back to the client we should be clear that we are talking about the inevitable discovery doctrine here the government says ng doesn't apply that this is not an inevitable discovery case but it very much is a inevitable discovery case because what the government is saying what the court is suggesting is that sooner or later sooner or later the stern wire taps weeks it was in march right it wasn't like months and months later that at best they had a phone call going on with stern and apparently he showed up at stern's place of business so so i don't know that it follows that inevitably the government would have obtained a geolocation order on the three to seven identified the after misstatements in the a d f and david were corrected to reflect the district court's factual findings from the franks hearing and before omitted information was added that affidavit set forth probable cause the user of the four hundred and forty four phone arranged to meet in new york city moreover that four thousand four hundred and eighty four phone had been in contact with the phone of unknown money launderer and the pattern of those contacts based on the analysis of another agent who was trained in these types of investigations in these types of call activities was suspicious those factual findings were not clearly erroneous and those factual findings support the finding that there was probable have one hundred for you you have the contacts between the four hundred and forty four phone and the mine a lot money launderers phone and you have the response to the i have one hundred dollars for you which is not what are you talking about but which is ok i'll meet you in new york city that's highly suspicious of course when you add the additional info the supplemental info there's even more there are even more grounds to support the probable cause when you're not considering supplemental  dollar because other cases before and after our dollar have stated just as clearly as that in pointed out his reply that all those cases the issue was good faith or something to do with the mental state of the you know the one for officer and not on the issue of whether or not there was probable cause absent the information which one of those cases that would this issue whether or not removing the tape they did the false information would still allow for probable cause i think all those he's correct involve mental state issues right now i did i disagree or one of which one which one of the ones you cite did not involve a good faith determination or some other mental state of the agent they involved qualified immunity which which is it a multi step analysis  the st step of that is to determine whether a constitutional violation occurred later steps to be sure to look at the intent of of the agents who are being sued but the st step is was there a constitutional violation those cases in that context did what you're suggesting which is say for purposes of establishing probable cause wouldn't consider the evidence outside the affidavit i think and you rajaratnam it was not probable cause they were looking at necessity but they were looking at it was a franks framework to look at necessity and they were looking at whether there was whether these misstatements under the franks analysis affected the necessity finding and there was clear language there that it was permissible to alternative grounds right not that but i wouldn't necessarily endorse the consideration of the supplemental information right i believe in the in in the in the circuit court's ruling though there was there was language happened here again is our position that we don't need to get to the supplemental facts to look at probable cause and as that's almost you started to rely on them and so now we're down that road right  one hundred is code that a money launderer would understand and it is proper in the probable cause context to rely on that sort of experience and there were the contacts i'm sorry and there was the response of the four for eight for phones user two that coded language laundering or possibly drug trafficking mr president said that the stern wiretaps did not really yield any incriminating evidence of his client on this issue you know you never will discover your independent evidence can you can you respond to that he said it just all there was was in being at the house of during the during the hearing on two occasions mr morley drove the same nissan maxima that was pulled over in february he drove that in march to visit with stern and a randian quickly each time and then ran out he was under surveillance because the agents had intercepted these calls and heard the meeting being set up so that's not the kind of conduct you would expect from someone who's just visiting a jewelry store to kind of set up this meeting in advance run in and then run out how do we know that the power wire to the jamaican wiretap would have happened independent of any fruits from either the february order or the search of the car so for the powell wiretap the jamaican authorities went up on that there was a the u s authorities provided them information that were tain from the strong wiretap it just showed stern and powell having these incriminating conversations that has nothing to do with obviously what happened in february i cannot say exactly what was submitted to the jamaican authorities  because we don't have their process and that's foreign process but and then from those power wire taps there were multiple calls with mr marley that in turn led to the wire taps on mr marley's phone i would like to say on this point about independent source it's really also want to tell you a sion point mr percent and has made a lot at least in the papers about this case murphy and it is murray that notes that the exclusionary rule extends quote up to the point at which the connection with the unlawful search becomes so what tenure waited as to dissipate the taint and that is what happened here it cannot be the case that mr marley based on something that happened in february tw to sort of purge any memory of mr morley and his identity from their head while he continued to commit a series of crimes and they continued to gather evidence that they would have gathered no matter what unless the panels questions all rest on the submission thank you bill him coming on to the radar screen and then as part of an uninterrupted investigation by the same agents who are engaged in the initial unlawful gathering of information they build a case against this court said in united states  that when a criminal investigation is triggered by the initial collection it's on waffle collection of information that investigation itself now is in the twenty eight jail letters that were submitted to the court the government has said and doesn't even apply to this case or it applies not to downstream evidence has been the art not the derivative evidence but only to the original fruit of the illegal conduct which the government says in this case is basically the g p s course but the government's wrong for two reasons about that and i would invite the court to go back and look at because and very much involved downstream and derivative avenue but even if angle exactly the situation is that it wasn't as if they didn't know who know anything about your client activity before the order that they were looking at your client that was the whole reason for the undercover called in an unknown his identity who he was but they were certainly pursuing him already before the water so the order didn't trigger them looking at your client they were really well i would argue that until the of identified who we hear is that there is no we can be no real investigation into into mr mali but i would say that the government not only has the government not shown that there was a contemporaneous investigation right which is one of the requirements under and but but this court has been very clear that when we're talking about inevitable discovery they have a very specific burden to show with respect to each piece of evidence that they would have it in evitable not hypothetically but inevitably would have come upon that evidence and that includes so in this case part of the fruits of what they obtain when they when they conduct the stop is not not just the g p s tracking data they don't care about where they turn left on main street they wanted to know who he was and they wanted to get what they got the most important thing they got was his other phone number and that phone number is what allows what gives significance to the power conversations the power conversations are are the really the implicating piece of evidence here and the government never would have been able to tie that