from his probation there was absolutely no factual basis for that charge he had been in constant contact with the georgia probation office where his probation had been transferred under the interstate compact provision filed that claim because he was told that was the reason he was arrested for absconding and not because of the payment issue mr defendant holbrooke then wrote a letter to lawsuit by moving for summary judgment a little bit unusual and claiming that they had probable cause to believe that he had failed to make them up to pay the monetary terms of meet the monetary terms of his probation and judge o'steen essentially agreed with them and that is why we are here and there are three basic points about north carolina law the judge o'steen missed this is essentially a black letter case the first is that since at least one nine hundred eighty eight north carolina probation law has been clear a probationer cannot violate his probation unless the term is in writing and given to the probation or in this case the records undisputed that the form this d c c to that is used to give the probation a written terms was never completed it is blank in this record to this day and third under the case law that oral notice these communications between the interstate compact offices in north carolina in georgia cannot as a matter of north carolina law put someone on notice that they are that they have a term of their probation that they have to fulfill it has to be in writing well don't we have to answer the legal question for it was a standard it should have been appl i don't have to answer that question or i think the way you answer that question is yes you do i don't know if you have to the way i was going to present it well it wasn't first but if you want to answer that first i think that the court wrestle with that question first was whether it was a due process standard for the rest or fourth amendment and was satisfied that it was the fourth amendment so if it is the fourth amendment then reason on this is the standard the question is what is reasonable in this and i think it's important to no in in griffin and in knight and in this court's case in midget the courts approved that the officers were acting pursuant to a valid regulation and therefore they could operate under a reasonable suspicion but in this case the officers acting outside the statute they are acting in a way that they have no authority to act they cannot arrest because the term was not put in writing i'm sorry perhaps you didn't answer judge floyd question and i didn't understand it so if you could help me i also was unable to find case law specifically on reasonable suspicion what the standard was which would seem to be a predicate for any conclusion that the law was clear is that not correct and you did you say that that that's not correct no i think it's correct that there has to be  law has to be clearly established i think it is clearly established and i think there's a subtle print if you can perhaps you can help me out it is there circuit precedent on point is the supreme court precedent on point there is circuit and supreme court precedent point that probationers are subject to the fourth amendment to a lesser standard of reasonable suspicion with regard to searches and there's the seventh circuit decision that and here the law was clear that the arrest was invalid because it didn't comport with state criminal law and therefore it is an unreasonable arrest per se whether or not there's  has the same problem date they reason they believe that they had a basis to charge him with and scanty was that they had failed to go back through the eye cut communication process to communicate with them when one of the one of the factual errors in the defense argument to this court is they claim that they saw these ga communications and therefore had a reprieve reason to believe that he had had notice that he should pay but the absconding charge would be bizarre if they had seen those communications because they would have known that he'd just been in the probation office in georgia so it's the similar thing that they have not followed the valid regulations for monitoring or probation or with regard to both charges and on the absconder it's that they didn't communicate as required through the eye cuts process because that's the way you stay in touch with someone and then they come to believe all not at all his position is that he understood the only thing that he got in writing it wasn't from probation it was from his lawyer after he was after he pled he got the bill of costs in the bill a cost which is in the joint appendix has the due date of july seventh two thousand and twelve since he got nothing else he dunder stood in communications with his lawyer that he had to make payment by july seventh two thousand and twelve to be released from probation the judge just got confused about that and said we are trying to claim they were modifying the terms of probation whether it was a modification or the original term the payment plan the charge this trial court judge directed that they set up a payment plan and they failed to do so and then arrested him for not meeting but that had never been established that was an illegal arrest or north carolina law and that is an unreasonable arrest by definition under the fourth amendment because it lacked any legal basis it says if you would charge someone with arrest someone for a criminal violation knowing that they could not satisfy an element of it at the time of the arrest it would be a patently unlawful arrest and that's the problem in this case the legal standard on qualified immunity that there is that the one question is whether the law is clearly established but the other is this notion i think all the parties agree that under harlow you have to if a person is shielded by immunity unless they violate some clearly established statutory or constitutional right here you have a clearly established ashtray right which implicates the fourth amendment under andersen a reasonable officer understands he's violating the law and no reasonable probation officer in north carolina would believe that he could arrest someone where the terms were not in writing and no reasonable officer could believe  in north carolina would believe that or even notice even if he had had these conversations in georgia the way they'd depict them those oral notices were insufficient as a matter of law so if no reasonable officer would think he had the power to arrest the officer is only violating the law in his subject and is not entitled to qualified and for that reason i think that we're that's why i would argue that we're entitled to in this case because it is clear that the law that the arrest was illegal under either charge and that they're not entitled to qualified immunity because no reasonable officer operating under the regulatory scheme in north carolina would believe that he had the power to arrest someone when the terms were not in writing the defendants in response to these arguments in response to sort of judge rose dean's effort to sort of say this fifteen a thirteen forty three c doesn't apply to payment of monetary terms come back and basically make this argument where they don't want you to consider the statute because the version we attach to our brief was dated two thousand and twelve we request from north carolina it vising that joan to been instructed by us supervision officer to make payment and that he was he stated he was going to contact his lawyer about the amount right what you make of that judges understand that under science a judge in open court on the record told this gentleman that he could not drive a car and he drove six times i think the says after being told by a judge in court that he could not drive and they tried to violate him and the north carolina state court said unless that restriction was put in writing it's not enforceable that is the point so even able to find it the fine isn't forcible the fine isn't forcible the timing of the payment can only be enforced if a payment schedule is put in writing and given to the probation or he never received that document which under the regulation is mandatory that's the issue there and judge o'steen thought there was an end it there was an irony in this case just in thought that there wasn't any case law in the state sort of addressing this issue and had pohlmann doc from the concerns about deciding whether one is delegated to the probation officer to set up the payment plan that whether that had to be in writing but this boondoggle so you're saying that you saying that there's no deadline on his payment of the fine it was july seventh according to the bill a cost which is the only written document he received if they had the power to send him t d c d c c two he had signed it he was willing to pay under terms that they sent but for whatever reasons i think just overwhelmed by work they never sent it to em but what i was getting to a moment ago is that judge judge jostein had this problem and concern that he couldn't declare what north carolina law would be as to whether when the when the payment issue is delegated by the trial court to probation whether that has to be in writing the term s p n writing the boom decision in two thousand and thirteen makes that very clear under facts that are all very identical here's a little quote this is a page i'm sorry page three seventy two se second seven fourteen southey second three seventy two at the time of the violation report six months remain on his permission just like here initial judgment had left the scheduling of the payment plan to the probation officer just like here and there was no evidence that the trial of a payment plan was ever put in place so he was acquitted you have to under boone it's clear that when it's delegated probation office they have to put it in writing if they want to use the power of arrest and claim a violation and because the state law as to what is a legal arrest was so clearly established they are not entitled to fourth amendment qualified immunity because the arrest was unreasonable and i make one last point it's interesting here in looking through these cases in preparing for this argument in griffin the court noted that when a judicial warrant is issued as it was in this case that the probable cause standard has to apply and that's at for eighty three us eight seventy eight the constitution prescribes that where the matter is of such a nature as to require a judicial warrant it is also of such a nature as to require probable cause so i think there if you want express language if they're going to issue a warr to arrest a probation or under a griffin where they're acting outside they're acting not following the regulation but acting outside of it they have to have probable cause and regret but even if the standard is reasonable suspicion i think we're i think that running out of time here and i thought a misreading my thing about it was there even if the standard is reasonable suspicion under the facts of this case and under the administrators regulation they did not have reasonable the court your honor is my name is joe finn a really special deputy attorney general with the north carolina attorney general's office examined under at most a reasonable suspicion standard the conduct of the defendant probation and mr holbrook in issuing a warrant for plaintiff's arrest for failing to comply with the terms of his probation entitle them to qualified immunity from plaintiff's climes now two of your honors a mr large yes i think twice what the standard is and whether it's important the standard has not been clearly established for the arrest of probationers you're right judge floyd there is no fourth circuit in particular address modification issues he said in direct response to one of your questions he's not arguing modification he's arguing that it was never in writing in the first place what the payment schedule should be then he's arguing in seek definitively establish what the the modification must be in writing those cases simple as they are say that modifications of conditions of probation not but just general modifications of the condition of probation must be in writing and furnished to the offender for them to be effective and support and arrest in each of those cases those were special conditions of probation they are not the circumstances we have here and they do not involve a modified this does not involve a modification what you have here is the probation officers and the really was the interstate compact office in raleigh implementing a payment schedule guess eighteen months late but implementing a payment schedule with that certified action request that was transmitted to georgia with specific instructions in writing that he was to pay by the end of february of sar by the end of january in two thousand and twelve they received a response to that several days later i think it was february the ninth those responses from georgia were received but the instruction was paid by the end of february here's the mailing address georgia did what it was required to do under the compact it communicated that to the offender now whether they communicated it in writing is unclear but it also is equally unclear then to officers holbrook enter dresser won three steps down the line whether that had been conveyed in writing and thus even if the when the law applied is about a written condition a written modification being furnished to the offender that they were aware that jones had not been provided that communication in writing in any event the the secondary aspect of the boom case that counsel again brings up that is in episode four at least two reasons first of all boone was not the law at the time any of these events occur boone was a two thousand and thirteen decision it has been cited again by counsel as evidence of what north carolina law is it's not the standard what the north carolina law is looking in hindsight for these particular officers in two thousand and twelve when these actions were taken to issue the arrest warrant boone did not exist it had not been decided in addition boone is a case that addresses the evidence that must be presented at a probation revocation hearing to support a conclusion that an arrest was lawful it does not establish whether it's not even a modification case it doesn't reference fifteen a thirteen forty three at all in the opinion what it talks it does have language that i think is helpful to the plaintiff in that it talks about the there's no payment schedule that was provided but the issue in boone was is there any evidence provided at a revocation hearing of a modification aina stablish min of a payment schedule that would support a violation there wasn't at that hearing and the court said in the absence of any evidence at all the probation officers conclusory statement that he's in  ears wasn't enough to support a violation and the day vacated the revocation of the offenders probation so neither suggs nor seek norbu to address the issues here of is the law clearly established that what these officers did violated mr jones's fourth amendment rights is a lot of dollars that is should have been in the first instance in writing the law does a stab that the conditions of probation must be provided to the offender in writing and yes and they were not as to when he should pay at a time that was preceded his release well i think there's reason for the officers to believe them and ask what they believe them as clear that it was not in writing as to when he should have a day prior to the expiration of release no i don't think it is clear that he was never provided right and he was never provided the d c c to form that's clear by the d c c to form in that required in the north carolina law no it was not it is not what the north on the north lawn of north carolina law requires a provision of the terms of the probation in a ride that may be the judgment the the law does not address the d c c to form that is contained in the internal regulations of the division of public or the department of public safety and their community corrections section it discusses providing a d c c to to an offender establishing the terms of the probation but it is not the exclusive means of providing that in writing what alternative means other than the d c c to form that is the expectation for the officers and that stuck with bed that's the only way to do it you have to do it in writing and it was not done initially correct it was not done initially that is correct so now an audit occurs and they say well this person whether valid not well would be incumbent upon offices to make sure that has been done at some point in writing no i don't believe that it is for these officers that the interstate compact process i think complicates the manner in which this arrest warrant was prepared the under the interstate compact and under the regulations even in the north carolina probation manual the interstate compact coordinator who is not holbrooke or trent dresser one is responsible for supervising the payment obligations and any violations of probation for offender sent out of state in this case to georgia for probation now it is not creating the obligation but monitoring the regulation of it being comply with correct correct ok but they don't create it they just monitor to make sure so no but well they they don't create the obligation the obligation was created by the state court when they said the probation officer can establish a schedule admittedly that did not happen our argument is that that happened at least in february when late january when mr lynn in north  the certified action request to georgia advising them to advise mr jones he needed to pay here are the payments or don't you can't you don't know whether that was in writing and not no i don't but that what it is that's your burden to you're going to use the process of the court to arrest someone you pull them out of the population he's working he's doing those things that i think you want probation is to do and you pull him out in a restroom and you don't think is your burden to make sure has been done in writing if you were just if we were discussing the burden of upholding the validity of the arrest and on a subsequent revocation hearing yes i would agree with your honor that would be our obligation as the state to show that that had been undertaken what we've got is a qualified immunity standard of what these officers knew and when they knew it about what had been provided what violations they had been told and been given indications from their superiors in raleigh in the interstate compact office about the violation by mr jones or the believed violations by mr jones of his terms now the officers treat chandra's one and holbrook are two steps down the line from the your honor you appear to have a question you know i was it as i understood it and i think you were getting to it they there they were given to understand because they were in north carolina and they're communicating with their counterparts in georgia and they were given to understand that the supervision officers in georgia had communicated with mr jones that mr jones had been instructed to make payment the address and that mr jones had stated that he would pay off the balance of the f think and i think you're getting to at least as i'd read these rather odd facts they would not necessarily have known about and complete it on the other end of the process in two words if there was a glitch yes but they would not have known beyond what's on the face of those documents those or any other document other than th terms albeit again eighteen months late then i think there are payment terms either way that the initial determination of a violation was made by officials in raleigh m located in guilford county north carolina about eighty ninety miles from raleigh the impact i'm sorry the interstate compact coordinator is the one who under the compact and under d c c regulations identified what he believed to be a violation of the payment or as he prepares an internal violation report passes it down the chain to after confirming that the payment had not been made in accordance with the instructions he had given georgia to give to jones and after confirming for him after receiving word from georgia that the instructions had been conveyed whether or not in writing it is unclear but he initiated the violation report down the chain to ultimately to miss chandra asked why she prepares the violation report and is instructed to follow up she follows up attempts to do so and i think there is some confusion with mr large yes and what the interstate compact regulations require and this goes to the absconding point judge floyd that that you had addressed her efforts are not in violation of the interstate compact terms the interstate compact rule that mr largess has cited in his brief is i think it's for dash one point zero eight four point one zero eight says formal communications must be between compact offices it also says that violation reports and other documents must be transmitted through the interstate compact as well these aren't the her attempts to contact mr jones unsuccessful as they may be were not in violation of those terms they are not formal documents that were being sent for purposes of supervising the offender this was north carolina's responsibility under statute and under the interstate compact to administer the payment obligation the fact that she sent him a letter and attempted to communicate with him by telephone at the information that they had on file was an effort to avoid the violation report that she ultimately filed six weeks after the georgia officials had told north carolina officials that jones had been informed of his obligations and it said he would pay by the end of february so you've got a early late january demand for payment you haven't early february acknowledgement that those instructions were provided and an apparent acknowledgement and agreement from jones that those payments would be provided six weeks later used then only then is mr and dresser one filing a violation report based on the payment conditions it just so happened the same day that she filed the violation report for the payment conditions the letter that she had sent to mr jones at the improper address that he had moved from in georgia is returned so she talks to mr holbrook her supervisor and confirms that yes this satisfies the of scandal provision because she had been unable to contact the last information they had received was six weeks ago he had been contacting he had been in touch with his probation officer in feb there is no requirement under the interstate compact regulations that she have communicated or that she have never communicated or attempted to communicate with jones directly as a result the absconder warrant is not in violation either while it turns out that he was not and he had not of scott and they withdrew those those charges after he had paid the amount and that that withdrew the the violation report on the basis of the nonpayment at the time they are taking these actions it appears to these officers that based on the information available to them they have received direction from their superiors that a violation of the payment conditions has occurred if you want to fault them for not going back to confirm as the plaintiffs apparently w have you do for confirming that there was a d c c to form in the file before initiating the arrest warrant so be it but our position is that there they had reasonable suspicion based on the facts available to them as provided by the interstate compact office in north carolina that there was a sufficient basis to issue an arrest warrant both for the nonpayment and the what about the france for application that accompanied that was made pursuant to the compact that did this that what does that include did that include provision if i'm not mistaken that he abide by the terms and conditions of probation those of course were set on the judgment that was established that there's there's a provision in the interstate compact that the materials are supposed to be forwarded to georgia for purposes of supervision and that it's incumbent on the georgia officials to communicate the terms of the probation that they are supervising him under the judge in north carolina did impose a few special conditions of probation that north carolina would not have any reason or ability to monitor as the sending state under the compact there's there's one final point that i think i would like to address and that is  mr large just argued that his client stood ready to make a payment as soon as someone told him that one was necessary and he says so in his affidavit to the district court in a number of places if only some money and told me in writing that i was this money i would have done something or somebody had called me at my proper number i would have done something i would have immediately contacted north carolina and i think there's some disingenuousness to those statements in that i think judge duncan it was you pointed out when he was contacted by when he was told by the georgia officials whether in writing or in person you have an obligation to pay north carolina expects payment by the end of february or by the end of january in fact his response was he calls his lawyer and he relies on his lawyers advise that he didn't owe the money until july the seventh now whether that's the lawyers correct interpretation or an appropriate interpretation is irrelevant because he didn't take any steps to come firm with north carolina why are you asking for my money i'm not due until july the seventh there is no written payment schedule send it to me and i'll pay it he did nothing he contacted his lawyer and then he went back to the supervision of probation and george's concerns at that point don't have anything to do with the financial obligations george's concerns under the compact our supervision of the terms of the probation not the financial violation of financial obligation that he owed to the state of north carolina so based on the facts that were before the district court there was sufficient basis to conclude that these probation officers had reasonable suspicion to issue a warrant for arrest for both the absconding provision and the nonpayment provision and therefore they were entitled to qualified immunity for that they did not violate you have some time to junk and you think the facts are on let me make them modern and what you just answered the violation report in this case was issued by mr waller on february fo mr jones did not meet with the george of compact officer until february night they can't say that waller relied on the response he issued the violation based on the fact that he was in a rear alone he asked mr holbrook to confirm  second if you look at a page aither appendix page thirty eight to our opening brief this is chapter d g section three hundred of the north carolina the d p the department of exempt emmanuel here it was mr holbrook's obligation back in two thousand and ten when this case was transferred to georgia to make sure a signed d c two was in the file it is subsection p a now help me but my recollection was that it was signed the problem was that it didn't it didn't have it has the amount it doesn't have what we're talking about here there's no dispute that mr jones knew he owed this money  i just wanted to make sure we were on the staff page we are the i think the confusion there was it when we when we originally filed our documents in the district court it was actually almost a year before they filed the d c c to in response to our motion for it to amend the pleading it was the first time we saw he just didn't remember signing it he signed a bunch of papers one day but he had never gotten the form with the schedule in and had a point he he payment because north carolina law says you can't arrest him for violating probation unless you have set it up in a very specific way it's an element of the criminal law in north carolina and that's why if you know that's what the law regarding this would be the probation that would happen from north carolina north carolina could send the form and that's with what you're supposed to do you send the form through i caught that's the regulation he was referring to it's a page  sorry i have it here it's a page one hundred of the joint appendix and it is all notices violation all those kinds of things have to be communicated to the interstate compact exactly and they weren't well if you form was not he may not have been on legal and this is sort of the practical implication of thanks for its question he knew he owed the money and he knew his probation was in the he knew he owed it sometimes he knew in february that he had to pay by july and he told the probation office this there's a factual dispute in this case about what their communication was in georgia his recollection the conversation was simply to say i know i have to pay i'll make a racist through my lawyer and he contacted his lawyer that's what the record in this case would show if we develop it but it's the what you're getting at is kind of this gut level thing a what's wrong but the problem is a matter of north carolina law and ironically suggs and seek now have our appended in west lexus but they have been distinct this these holdings that the statute means what it says have been amended modified by justin it says that the that these that these cases are distinguished by this holding in this case which suggests that you don't have to have to writing which is contrary here's what that you know that the statute is a defendant released on probation must be given a written statement explicitly setting forth the conditions of which he's been released and any modification must also be in writing and what is the modification you're saying that he whether it's a modification or a regional hearing that simply that imposing a payment plan on the existing fine is a modification no i'm not sure whether it would be considered a modification or the original payment plan and it doesn't matter because whether it's one or the other it still has to be treated the exact same way which is use the form that they created in response to this legal mandate and put someone in written notice of what they have to do and when they have to do it by in the court said in one thousand nine hundred eighty if we were allowed written an oral modifications ignore what the statute requires it would render the statute not a tort that's the legal question in this case it may be practical and understandable that one level he's got to pay but the law is clear on what they were  dollars at least three hundred sixty five days to now if you're not in violation if it's only two hundred days pass that's the best issue question that the condition is not paying when you suppose of paying not whether you