as he ran naked holding a shotgun by a side that's an important st line for this court's consideration because there is absolutely no evidence in the record to support that that's what happened and from there the court below engaged in frankly fanciful manipulation of the facts which is inconsistent with how the qualified immunity law should be applied you yourself judge you want before you get to that here because i want you to get into the meat of your argument on the qualified immunity but i have one procedural question for you this is a qualified immunity appeal how do you get to raise and how do we get to review your nd argument about the causal connection between the warrant and mr hoaxes death that's not qualified immunity material right that goes to the ultimate merits of whether or not they can make out their claim but not to whether or not there was a constitutional violation alleged for the either the entry the warrant or the detention  or whether or not there was clearly established law right isn't that isn't that causal connection issue collateral to the qualified immunity appeal regardless of how we solve that appeal or in part i don't think so because the court below said that that line of damages specifically in the next sentence of the order of the court was determined by whether the u warrant was  lawfully secured i know but that has nothing to do with your qualified immunity appeal the district court could have said there is no causal connection all you have is damages for if you can win all you have are damages for the legal entry into the home because there wasn't a valid warrant and maybe for the detention of ms hooks but you don't get damages from mr hookes his death that would have had no impact on your qualified immunity appeal you would have had the same qualified immunity appeal you have now claiming that there was no violation and there was no clearly established law but the causal connection i'm having trouble figuring out how the causal connection point addressing the proximate cause arguments in its order where you can raise it at summary judgment right yes but that doesn't mean and of course the district court ruled on summary judgment as an issue you raised but that doesn't mean that every single issue that district court rules on gets up here an interlocutory appeal through a qualified immunity is searched i agree your honor i would say that this court has the discretion to evaluate claims that are within the the nucleus of issues that are going to be addressed later on appeal and so for purposes of efficiency i think the court at least has the discretion to address those arguments ok i've taken you way beyond the time i wanted to so i want to give you the  heart of your argument all right thank you art well what i was going to say is in reading those st lines and really reading the entire order an analysis of this trick or it runs afoul of you judge jordan's language in your case jackson vs city of miami where you said the purpose of immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation qualified immunity is an immunity from suit rather than mere defense and like an absolute immunity it is effectively lost if the case is a wrong a sickly permitted to go to trial that's exactly what my clients are facing because under these circumstances i would put it to you that despite the unfortunate result which as argued in our brace was brought about by mr hooks and self every step that was taken was at least above the standard of plain incompetence or failure to act on reasonable probable will in order pretty long order and it's one of the things that he tried to point out at least from his perspective was that there were a number of things the warrant application that were either incorrect viewing the summary judgment standard and the facts in the light most favorable to hooks and there were a number of things that were omitted that should not have been omitted for example the length of time that had passed since it was mr francis had said something about delivering methamphetamines to mr hookes the fact that no one had been able to i think they are in that breed of factual information that was adequately disclosed for example that the court below took issue with the term prior and attached a very draconian definition to that that you can't just say prior information you have to say when it is and hold it was these officers didn't just on their own manipulate that information and in fact took the extra step of consulting with a da before seeking the warrant and he even testified that it was clear that that was earlier information it wasn't the primary basis and our argument is even if that were stale that wasn't the central information that was within the application and a half a day they didn't tell the magistrate when that francis information was obtained right that's right you're right they said prior and frazier was the witnesses name and the law doesn't require that they specify that case law says that failure to specify a specific date and time is not material omission and we've cited that in our brief likewise when he says about the fact that nothing had ever come of that allegation but again the case law doesn't say that you have to say what the ultimate result of that investigation was for it be to be material if it had turned that can't always can't be a bright line rule right because if it had been ten year old information and they had investigated and found out that the information was false you would have had to disclose that right absolutely right so i don't know that it would have scuse me i don't know that it would have found its way into an affidavit understood understood but the point is that it depends on context right whether you have to disclose time and where they have to disclose results depends on circumstances the totality of circumstances yes your honor and i would put it to you that in the event that that had been investigated and the result was that there was a decision that there was no evidence to support that the allegation would be facing now is that the failure to include exculpatory information in the warrant would itself have been constitutionally flawed and the law does not require that exculpatory information such as their contention from the plaintiff's side was that because mr garrett had been a drug user that should have been disclosed within the affidavit the case law does not support that either likewise in looking at the word pryor the court should also look at how the district court used the term familiar the court found that it was a material misrepresentation for investigator brewer to say that he was familiar with the residents how many of us in normal usage if you say do you know where so and so the lives you say yeah i'm familiar with that they didn't say i know the layout of the house i know how it's structured i know where this will be stored so busy some man take oppressive reading of what this officer did has to be looked at in the context of what this case is not this is not a case investigation or if he had been pulled over in the aviator rather than surrendering voluntarily and he had two other people in the car and the officers chose not to interview them that's the kind of thing that kingsland in this whole progeny of cases that they rely on is talking about it's not about when here you have a situation where over hours i see my time's up man i don't know get him give him five more minutes please where over an hour it's an experienced investigator doesn't just take cook in line and sinker what this this witness is saying he tries and there is recorded evidence of it he tries to trip him up with other offers for the present he tries to see if he can get him to make mistakes in his story and then what is the court do it says well he did makes mistakes in his story because he said he only stole two guns not three the situation looked at from the perspective of qualified immunity if you have a witness in even in the light most favorable as opposed to the dim light that the court cast on these facts in the light most favorable of this man was not suspected of the crime that he admitted to and other crimes that he was not there was information about there he was suspected of having stolen a truck and he and he eats the told them where that was so there again he's admitting a crime and then there was like a generator and some tools if you read the record he basically threw himself on the mercy of the police and said he was afraid because he had accidently cut into someone who had a large amount of drugs the case law specifically says that in this situation with a large amount of drugs or manufacture distribution haste is often part of what characterizes the process of seeking the warrant but i would put it to you that this this record that's not fitting in the context of seeking a search warrant it is this is a no no this is i'm not going to announce search warrant they didn't seek to arrest this man they didn't seek to do a breach without not going to announce in relation to what they were trying to do they were investigating the information that this witness was giving them i know but i think you have some good points but i mean to say that you vet a story by engaging in thorough examination of the person who's giving you the story that we're talking about the use of words that's not vetting the vetting is when you do some outside investigation to check and make sure that the facts that are being given to you have some semblance of reality well you know none of that done right now that there was that done because there was a reported crime from hook's these wanted what crime the theft of his aviator and materials from his outer  statement that that car was stolen fair enough but you're on to the standard under these situations and where it is found to have been an inadequate investigation more often involves situations where the police encountered three and they just didn't nor two of them there wasn't information that was immediately presented to these officers except the information they had and they had a good faith basis to seek a search warrant for that to further investigate whether there was drug activity frazier earlier that hooks hadn't been involved in the distribution ring of drugs as far as the term redistribution i can't see why cynically say that that term was embraced but i would again say that's a big problem right mr b versus redistribution what was what was in correct in what the officer said to that portion of the affidavit it wasn't totally correct it was not absolutely correct in the sense of the information he had was more that hooks had distributed drugs as opposed to redistributed them as part of a larger ring and so that term could have been misperceived again i don't think that is material to the analysis that is to be applied in terms of reasonable probable cause and i want to i want to further the point your honor that with respect to the cases calling for further investigation and i'll finish my point thank you for my additional time those cases deal with police ignoring immediately available information any of their arrest setting or an already urgent setting and here that the very investigation that the court said was required is exactly what case law says is often not available because with drug distribution there's a sense of urgency and a risk of destruction of property that makes when denying the defendants motion for summary judgment judge bowen wrote if there ever was a case before me involving an assertion of qualified immunity that demanded a trial by jury this is it judge jones conclusion was correct and his order to nine summary judgment should be affirmed i want to start by responding to the claim by defense counsel that the investigating officers brewer and it was with three others as the questioning of garrick took place to ignore any information that shed light on the source of the meth that was in garrets possession when garrett was arrested in the possession of david hookes car yes that information was that he had been living with and camping out with chris willis who during that same interview garrett explained that chris willis was his supplier for meth that chris well as had an abundant supply of meth still a criswell was his home he described it as that is to say garrett described quest criswell this is home as one where there were bags baggies of meth on the floor that you would see if you went there this is in the same interview in which garrett car oh yes yes rather than the how he did thank your honor there's a statement from garrett was that when he when he started breaking into vehicles there at the hooks his home that he went into a i think was a white truck that was adjacent to the home and when he broke into that that he found a plastic bag of some kind neoprene bag and he took and he also for some reason that he never explained he took scales that he claimed to have found the scales and the bag he put into that is to take care put into his personal lock box so when the officers found found garrett when he was arrested on the afternoon of september th two thousand and fourteen garrett had his personal lockbox for which he so only had the key and in that lo box he said oh by the way i've scales and meth in there which is consistent with what consistent with among other things distributing meth himself or distributing with his supplier chris willis  strung out on meth that was the phrase that was used meaning he's already been using meth that he has a regular supplier chris willis and there was still has meth in his possession he even said incredibly that he meaning garrett had considered going to willis to redistribute the meth that he found so if you're an officer there talking with garrett and you know nothing more about care than what he's telling you he tells you he has a supplier of method he's already been using and at the same time he claims oh you know the method was found that i had that i could have been distributing that's really not my i got it from the guy that  just rot well that the meth the meth that i have just told you about police officers when i was not under suspicion for any particular crime doesn't that change the analysis  that's not the facts that we have here that is to say that that in the days before garrett's arrest girt being arrested on september th gear was already known to  officer brooks who was in the inner already known to be strong on meth using meth regularly stealing other property there was a warrant that had been issued for him as a september the  they inspected the shed out of which heritage stolen things inspected the very fiesco out of which garrett later claimed that he took the meth they took fingerprints who was a cooperative victim of a crime and had the officers come on that afternoon and there was no suggestion there was no effort on hooks apart to to refuse them access to any part of his property there was nothing other than cooperating with officers when it came so here again you have brewer learning that unknown meth user who has a regular supplier for meth claims that oh you know the method you found in my possession in my lock box isn't really it reminded me if you if you bear the analogy reminded me of an article that appeared last month in the orlando sentinel the article was to the effect that there was a there was a man who was stopped for a traffic violation by police officers who had who had powder around his nose and when he was asked say was the powder around your nose he said oh that kate cocaine that you see on me it's not it's not my that's exactly what gary tried to do with these officers was to say you know the method you just found on me where i have scales that i could be using to distribute the math it's really one hein i got it from the guy who you have no prior drug history with i got it from the guy that i just robbed from his house which is more likely for the source of the met the source of the mess that is at the heart of whether or not there's a fair probability which is the terminology used for search warrants a fair probability that you would find met at david oaks as home if you obtain and take out and execute the search clause is not merely a probable cause guarantee it is a guarantee that a warrant will not issue unless a neutral in disinterested magistrate independently decides probable cause exists and as the supreme court declared in france were says delaware with some exceptions the th amendment requires quote police to obtain a warrant from a neutral in disinterested magistrate before embarking on a search for that reason intentional or reckless material misrepresentations or omissions in a warrant affidavit violates the th amendment if such conduct results in a warrant without probable cause and as this court reiterated in the recent decision of is versus fair to say that it was a material misrepresentation by the officer to say that his familiar with the house at present house made the argument that the judge had a pretty strong reading on the are familiar he certainly had a strong reading of it but we look at the fact that took place put the warrant into context there are four paragraphs only submitted to the magistrate that there are particular to this warrant being issued and one is in the context of claiming that there have been reports that cooks distributed meth that the officer became familiar with the property by virtue of the investigation what this officer did was he drove no part of the investigation that involved what frazier claimed they had in any way corroborated that david hookes was involved in any criminal activity whatsoever so to say and again yes it's accurate to say he was familiar with the address he looked it up and your dress was was that of david hookes but that doesn't can know that there's any criminality on the part of david hookes associated with what the officer the implication is in again in the context of put it into a warrant seeking the right to search this family's home for drugs the implication is that there was some connection that they learned between books his residence and drug operations that that the officer then concluded that garrett's claim might be true but that was never the case there was never any connection made and if over and above those that they already knew about they had the mendez truck which is the theft that resulted in the warrant that was already outstanding as of september st and of course once garrett's family turned him in by calling up of the brooks and having brooks come to the residence he's in possession that is to say gerritsen possession of the car and whatever's in the car so he's got to fess up to that but they said that he had admitted to other cr when you listen to war or read the transcript of the interview that brewer did gear it is absolutely clear that there was no offense none whatsoever that garrett was asked about that he admitted during the course of that well the district said that this record said in its order that there was actually when when asked in discovery the officers couldn't point to any other offenses right didn't the district court say that in its order and they weren't there their word familiar with any other if any other offenses right that in other words he didn't admit to any additional crimes also  affidavit but why also i said then that's important if he already admitted to several crimes for which he was not under investigation if he had made it to one or two crimes why does it matter that it wasn't really three or four from a probable c perspective well from a probable cause with respect to the search the assertion of garrett admitting to other crimes is associated with whether or not you can believe what he's saying about hook's it goes to credibility the officers vouched for garrett's credibility by claiming that garrett had admitted to crimes about which they were unaware which was not true it didn't in that interview and secondly that he had provided them with information that led to the discovery of other property that they wouldn't have otherwise found but that wasn't true counsel for the defendants referred to garrett helping them find i think helping the helping to find the truck that was the subject of the arrest warrant that had already been issued on september st he didn't help them find the truck they already knew where it was when brooks investigated on september st the warrant that was outstanding for garret brooks was told where the truck was they already knew where that truck was gary didn't lead them to it and in fact when garrett was asked during the interview just look at the interview when he was asked during the interview what i was can you tell us about it you haven't already given us referring to the property his words were  his words were that was everything that is to say he's he's now he garrett is now admitting it claiming that a search of his shed that occurred prior to his arrest that one of these officers had already carried out there resulted in the seizure of a lot of stolen items from his shed during the interview care doesn't admit to other property that then they get to go and find he says what you took on the st quote that was everything that's a page six of the transcript at time one thousand six hundred and thirteen can you please when he was at fifty one sorry i'm just giving you more time true there was arguable probable cause and therefore qualified immunity attaches can you respond to that argument yes or there's no are you were popular when when we ask was the officer's belief reasonable that's the question that we ask with respect to arguable probable cause we look to whether or not the officer had conducted a reasonable investigation and here the answer is no it took only three hours between brewer finding out that he has garrett with meth and the issuance of the search for search warrants issued around ten o'clock brewer finds out about the meth while he's out at garrett's property just a little bit earlier and he he starts calling together the sheriffs response team or swat type team constituted an investigation into care its claim of finding the meth that he had been arrested with at hooks his home none whatsoever he had available to him the information about chris willis that willis was already supplying meth to this man who now claims that the meth and my possession is so excess he didn't do anything to try to follow up with willis he had the most likely information about the source of the meth chris willis and he disregarded it altogether that might be true if the officers hadn't been already aware of mr hucks his name from the prior discussions with frazier correct if it's if it's someone that they've never heard of before then maybe the obvious answer is all of the to brewers ordinary garrets ordinary meth dealer that when they are aware of this person and did have driven by his house why isn't it enough that someone has turned themselves in for a crime and give us information about someone that they already had suspected activities in the past because there was absolutely no corroboration during the course of their investigation concerning frazier that david hookes had had any connection with frazier whatsoever the matter  simply they already knew that and if i may just as to brewer officer brewer had been intimately involved with the frazier investigation in two thousand and nine the frazier investigation resulted in the arrest  of frazier in october of two thousand and nine after eight controlled by the chris brewer was involved after surveillance of frazier's home after recordings of the controlled bars that brewer was familiar with and not once in any of all of that investigative activity was any link ever noticed found or made because there was nothing suspicious that they learned from frazier relative to cook's to nothing whatsoever he's the victim of a crime and the fellow who was caught with the proceeds of that crime says oh that that the the drugs that are on in my possession that are going to result with two with a mandatory sentence of a lot more years those were mine it was like an is like saying that the cocaine that you see on my nose isn't mine so it was unbelievable do you disagree with the statement in the affidavit that says during this investigation fraser had been interviewed by law enforcement and stated that he had been a source of supply from multiple ounces of methamphetamine to hookes which hooks was redistributing to i disagree with that right that's not as i understand one of the statements that you're challenging in the affidavit on the face of it frazier claim that he had distributed drugs to cook's along with two lawyers and other influential people in the county it was an unbelievable contention it was one that the officers who we deposed testified that not only did they not find any corroboration to that claim but frazier they didn't even open up a follow up on hooks they didn't open up a file on any of frazier's claims because it was it was literally pulled out of the sky there was nothing to it and and so that also goes to your contention and judge bowman's conclusion that that's why it was all them although the statement that judge granted thread in and of itself may have been correct that it had to be followed by other information in other words we have not been able to corroborate this no one's been able to prove it we didn't open a case so forth and so on yes here i'm ok mr sears thank you very much thank you you've got your full time for rebuttal thank you your honor but just briefly to respond to the cocaine story i haven't read that article but this is a situation where if we liken mr garrett to the cocaine he calls up the police walks out to them and says here's this cocaine i'm scared to death there's a very different set of circumstances here and this notion that listen to the interview you're told about these other crimes part of the interview was out at the scene where this guy surrenders to police and at mit's to the theft of an aviator that they have no suspect they have surrendered to police he's taken into custody now the facts are that his parents called brooks who was a lifelong friend he came out and they said because they were trying to get him out of trouble well he lied to the police to get him to go to the house and then the officer who knows the family and gauged in a conversation with him he didn't surrender himself and say take me in it's when he confessed to what he had done that he was taken into custody right well walk into the police station and say oh i did this he's told me i will acknowledge he did not walk into the police station instead his lifelong friend came and met him at the property and he confessed to crimes he was not suspected of and that there were no suspects and so i don't think it's anything like the person with cocaine on their face with respect to the statement with regard to frazier i think it's interesting that the very same officers who knew what reasonable probable cause was and so didn't seek search warrants based on what frazier told them when they followed up on it later when they hear something about the same person that actually links him to actual methamphetamine and to a theft that has been reported and this goes back to the mill year mr officer brewer was familiar with the property not only because of these drive bys but in part because garrett didn't really know where he was he had to describe it he didn't go target david hookes his house he didn't even know it and so the familiarity is drawing together that this is the location he's talking about this may not at the end of the day be relevant or dispositive but it's something that i've been wondering about so i ask you to answer the question if you if you can hear me when do people report a car stolen when they have illegal narcotics in the car you know i don't know the answer that your honor but he reported borrowing that car stolen that was his that was not his it was not actually his car and he reported it as his car being stolen so i can't look into the mind of david hookes it was tested positive for methamphetamine after his autopsy was done i can't look into the mind of why he did that but those were the facts that were presented to these officers and the duration of the interview i think is also of import because they've raised the concern about this guy being someone who used meth and so the notion of someone being a previous drug user isn't doesn't go to probable cause but it may go to his ability to recall events and so they interviewed him at length to make sure that he wasn't in flights of fancy about what happened and it corresponded with a property that they knew had been stolen but they had no suspects for and so i think the law is that once reasonable probable cause is a stablis generally a police officer doesn't have to do any further investigation to go get a warrant the king's lynn did officer brewer say about the whole willis admission by mr garrett i don't know that he was cross examined at length on that i think for it cross examined what did he say about it what did he do about it when he when garrett also discloses that willis is also a source of his methamphetamine what does how does brewer take that into account in the overall calculus of things how he took it into account is that it was known that this guy was a meth user any associated with other people who were involved in math and here he is instead of just dumping it back on his guy he comes forward with a significant and larger amount of math that he had ever seen in his life says mr garrett and he admits that it's someone else and so that i don't think the duty of an officer includes that ing every other possible suspect so the answer is that he didn't check whether that is legally relevant or not he did not check i don't think he checked any further because this witness had identified david hookes home as where he got this methamphetamine and so he took the reasonable next step of securing a search warrant for you can you can wrap up if you'd like yeah i haven't had time to address the other arguments but the one point i do want to make is in terms of the detention of to reset it we're not we're not going to get into that nobody tell you the reason why they don't want to cut you off it's part of your appeal but in order for you to be able to raise it he needs to be able to respond to it and so if you if you raise it and talk about it for the st time in your rebuttal argument mr spears has no chance to discuss it but that doesn't mean the issue is waived you presented it in the briefs and he didn't discuss it either will figure we'll try to figure it out ok then to wrap up i would say i would ask the court to look carefully at the case law that both the court and opposing counsel relied on and it doesn't deal with search warrant situations it's mostly with regard to decisions to make arrest just regarding immediately available evidence aren't you thank you both very much we're in recess until tomorrow