our third case for argument this morning is united states against any think you my name is anderson gansler and i represent you tell me this case mike lang if there's one lesson to take away from this case i believe it's the timing matters this case deals with the one with arrest and that standard is time pay it asks did the agents have probable cause at the exact moment of michael lancaster and the answer is no my client's arrest was based solely on the word of an informant mr green who changed his story about a key incriminating detail who had no track record as an informant had no clear motive to cooperate and hardly knew anything about what the criminal activity about what the conspiracy was supposed to be so at that exact moment of my client's arrest as he and mr green  driving down the street away from the location of the ringleader dave there simply wasn't enough to base an arrest that my client and mr green might have been driving to the mcdonald's down the street for breakfast it was three more blocks so at that exact moment in that uncertain situation right wrong and an unproven informant the agent simply did not have probable cause no grand jury no judge would have formally charged michael at that point given what they knew right then so to rest was on the whar and again what do you what do you think the impact of our decision was an us versus england where we determined that the same confidential informants tips were sufficient to establish probable cause to arrest the same crime your honor i if there's one thing could do over in my reply brief i would want to kind of factually lay out the differences there because that case is factually distinct and i think there's actually nothing inconsistent with the holding in that case and granting the motion to suppress in that case we're dealing with a seizure of dave the brother the focal point really of the allegations from the informant a person who has an armed robbery conviction already and is still serving on a bank robbery conviction and it's later in the day it's about an hour or so later there are agents outside his house and at the time of that seizure they see david walk out of his girlfriend's house and right walk right to this white cat and that's very important and credits green on multiple levels first of all it credits him for his earlier information the prior week when he said davis girlfriend with this name she drives like cadillacs of confirmed that information firmly and then it showed that his prediction that he made that morning about dave being at his girlfriend's house was correct right it's been validated it really had it and submarines credibility certainly more than it does in this case and also the record is different because we do trial here and lots of things come out of the trial and one of the things that came out was that green had changed the story for no apparent reason about the number of firearms that he a what exactly was going on that morning and how green story was really kind of inconsistent until you know up to about twenty minutes before green's arrest because it before michael's arrest when the asian is driving to the scene he finally gives them a target but he can't really describe what it is so i think there are simply put you are a lot of factual differences in that case so it makes sense and that case where greens credibility is more established they don't know about these concerning retractions to say ok there we have probable cause that's enough or just i don't know that's an alternative holding the case really primarily focuses on reason suspicion but also then you look at this case and it's an earlier point it's a different seizure and again the timing is crucial they just don't have those predictions that came true in dave's case here and they're faced with a situation where the green is actually driving away from dave the ringleader so it's i think a much weaker case for actually your honor and i think it makes sense to about the number of guns there was still reasonable suspicion but the officers blew right past that they you know they could have conducted a terry stop in this case they decided not to do that instead they you know immediately seize my client threw him in handcuffs  station they actually ruled they actually came to the scene with a bear cat which is sort of an urban assault vehicle it just shows that there was kind of a dramatic overreaction given the proof that they had of mr green's allegations you know one thing i want to know is with regard to informants when we're talking about informants obviously vetting is crucial especially if you have an informant with no track record and mr green simply hadn't been vetted they'd first met him forty's earlier they knew that he had never never been an informant before they knew that he was still serving a federal sense for bank robbery he just had a couple months left he was at a halfway house and he's asking for some compensation like getting his supervision terminated earlier which you know we all know really pales in comparison to the kind of benefit you can get from being an active informant on the street where you know you can make an entire case go away you can get years off your sentence and he was just saying you know i'd maybe like a shorter term of release and the agents didn't even promising him anything so it's a very fishy circumstance he also he didn't make any statements against his own interests there was really no bonafide there so if you think about you know the fluid scale probable cause that's not built up with regard to verification the only things they could verify were a green tell us about what the plan is going to be what is the robbery what's the robbery plan on friday when if talk to him he has no idea on monday he still isn't know he said same midnight text messages he still doesn't know what it is and then he's talking to the of the agents are bailing my client he still doesn't know what the actual plan is then finally they've got a target but the target it gives is he says it's a drug house and he says it's by this one large intersection six way intersection on walkies northwest side he doesn't give any more details he doesn't know anything else so he can't describe the house looks like what the address is what street it's on what kind of drugs they sell there what the name of the dealer is he really knows nothing and that's deeply concerning and i think deeply harmful to his credibility and also it prevents the agents from doing any verification if an informant doesn't give you details you're not able to go out and check them out and really try to you know work with your informant and build the model isn't part of isn't part of greene's credibility the fact that he was at time serving federal sentence and that if he was revealed to have lied to law enforcement agents he could have gotten in very serious trouble your have gotten his supervise release revoked even though he wasn't at the time yet on supervised release he could've gotten it revoked he could've suffered all sorts of consequences that's true he was under a microscope at the time when he had  voluntarily put himself under that microscope so if you're honest i think that cuts both ways because again his motivations for cooperate in a really unclear given that he doesn't have that much to gain but it's a very high risk proposition there is a proposition he had a lot to lose i don't disagree with that but it's not that much different than a normal informant who would say he was just caught with drugs on them is trying to work off a drug case right that person if they lie to the police the police are going to say forget it we're going to go ahead and indict you with this and greene you know is in that same situation so it's really i mean maybe the consequence is because of you know maybe a new case supervisor release being revoked you know one thousand and one charge maybe they're a little bit more but i don't think it's much more than any other informant who you know the government has the goods on right everyone is working to do something everyone is motivated to tell the truth and to try to cooperate and be productive there's a standard condition of supervisor release and i know that angling at the time was not an survives release but there's a standard condition of supervisor release that requires  the defendant to tell somebody in a position of authority the probation officer for some against revised release if the defendant is talking with people interacting with people who the defendant use is engaged or about to be engaged in criminal activity with was the same condition imposed on mr green as part of his placement at the halfway house i don't know that you mission and again the motives that he have here that he had for coming forward just simply don't make sense given you know what we all know about how much you can gain from being an informant so for all those reasons  think it just simply is this is exactly the kind of case where you look at it in comparison to dave's case and you say you know the officers just went too far they had an option available to them they could have conducted a terry stop they decided not to do that and as a result the evidence that i believe the government and the record show the government has acknowledged and i think the record shows that the district judge just simply didn't address the two primary sensing arguments those arguments were not waived because the judge asked this waiver question that that's been allowed by explicitly says you have to do it after the sense is final but before a notice of appeal is advised that didn't happen here it was well after notice of appeal was vised and my client actually said i want to appeal on the judge said i'll have the court do it for you so it was far too late and the record just shows that they did not the judge just didn't engage with those questions and then of course there are serious issues with regard to supervised release the judge here you look at the record he spent less than a page discussing supervisor lee's conditions less than half a page talking about conditions there no given playbook with defense counsel or the government about what the conditions should be whether this should be addressed and i think that's by treating it that the judge however did ask do you need me to say more about this and th know your honor if you look at that question in a context the judge had just explained why supervised release was necessary and then the question that follows is do i need to explain more why supervisor release generally is necessary he was not talking about the particular conditions  look up that page he says you know i'm imposing the standard conditions the mentor wants for the reasons listed in the previous son's report and i'm imposing these other conditions and then he skips over giving any justification for them whatsoever it's just a summary procedure it's kind of a textbook example of how not to treat supervised did he impose any conditions that were not recommended in the prevalence report i don't believe so yes well no i'm sorry he unilaterally altered one without any notice he just said i'm changing this one just what i'm imposing all the other ones came from the present report her case that that could be a problem do you have any comment on our holding him walk that if all the judge dawes is adopt the conditions recommended in the pre sentence report he doesn't really need to say more will block what happened lockyer honor is the judge actually i believe he distributed through the parties in advance of sensing a list of these are the conditions i'm considering right so went out to them and then at the hearing he asked listen you've all had plenty of notice about the conditions i'm thinking about do you have any objections to them they discuss them on the record i really think what occurred in block is miles away from what occurred in this particular case in terms of how supervised release was treated certainly didn't read them on the record and so it might have been a technical violation of the rules and capice but you have you know a thorough discussion and you have plenty of notice there's nothing in the record to assume that that happened here especially given that my client is asked about the present report early on and in a back and forth of the judge and he says you know just there are some things that i didn't like about it and the judge said ok we'll get back to that and then then that never so for those reasons your honor if the court does not grant the motion to suppress we and now the real mr coa case as the case law demonstrates over and over again probable cause is a flexible non technical concept and it rests on practical considerations about everyday life it doesn't require proof of a substantive crime and it doesn't require in this context that informants be infallible it also doesn't require perfect corroboration information that comes from either a known informant or an unknown what we had on december seventeenth two thousand and thirteen was two things the officers knew that michael angwin and his brother had relatively recent convictions for gun related crimes and they had information from a quote reasonably credible informant who had who said that he had seen me angry brothers with firearms in recent days and that they were planning to do an armed robbery morning we submit that under these circumstances it was reasonable to arrest michael langland rather than detain him briefly for questioning i'd like to review some of the factors that made mr green credible  they were covered by this court and its decision in dating the case and in response to your question judge williams i would say there are some differences between the two cases in terms of their posture and how they came before the court but the pivotal issue in dating once case was the reliability of the informant michael green same informant somehow his information about the way escalated is really important when it comes to dating one but has information about the gray s u v and this information about the residence and all the other stuff isn't so i would suggest that the distinctions my opponent tried to make there are really not terribly persuasive on what what the panel there found persuasive and what you will hurt found persuasive are a few things first of all first hand knowledge and i'd like to talk about that for a second this is the first thing green says to agent hank and he says i'm living with a guy and we've discussed our criminal histories involving armed robberies that checks out was previously convicted of bank robbery is day one when the agents able to confirm those facts and it makes sense out of why they would confide in one another about criminal activity past criminal activity and future criminal activity  there was otherwise very little that the two men had in common michael green was a chicago native it was holder michael and excuse me dave anglin was a twenty five year old from milwaukee and incidentally this is what distinguishes the bell case which is cited for the first time in the defendants why briefs where the court was concerned that there has been no information presented i think in that case it was a warrant but there was no no information about the nature of the informants relationship to the defendant well here we do have some context and it helps to make sense out of you know why michael green would have been privy to dave and mike's plan so i think that's a very important factor here much has been made about the the retraction or the walking back of the three guns comments i'm not sure that that really changes the probable cause calculus a great deal one way of looking at that it was that green was trying to clarify a misunderstanding that had risen about what it's there isn't anything inherently nefarious about changing a minor detail like that now maybe if you've been all over the math changing his story lines or something you could say well they oughtn't to have trusted him but here that's at least susceptible end you know a good interpretation this is a quote graters trying to trying to get it right some other thing should familiarity with the angle and greyness a p had phone numbers for them in his cell phone was familiar with mike lang once great accuracy and residence where he lived when he was shown photographs of those two things he confirmed what they were and then of course when they did surveillance on the morning of the seventeenth they saw location for green approximately forty five minutes in advance down to the street intersection and the direction of they're going to have this is another area where my opponent kind of gets in the weeds and he tries to suggest that they're heading in the wrong direction and we do have a factual disagreement here tried to cite the portions of the record that that i think are relevant in my brief and the evidence was that they were goin confusion at least according the council in terms of asking do i need to do anything more that that's subject to interpretation and wasn't specifically directed to the conditions of supervised release well yes your honor the for starters or some variation in how the district courts are or district judges are responding to this court's case law the district judge and block apparently publishes his intended proposed conditions or her intended proposed conditions in advance she or they appear in the p s r i'm not sure it makes a whole lot of difference in terms of putting the defendant on notice of what the post conditions may be that for the adopt and giving that defendant an opportunity to object formally in writing or at the door at the sentencing hearing that didn't happen in this case the my colleague who and who are good at sensing hearing did address those conditions and her remarks and the judge of course also invited the parties to address any arguments that he had not fully taken into account that would have been another point at which defense counsel counsel could have left and said wait a minute  this particular condition is a or it's overbroad or whatever the case may be instead the defendant waited until his appeal to attack the substance of these conditions and and we would submit relying on lewis that there's at least forfeiture here and the failure to object to terms that aren't going to take effect for many years and that can be corrected in the future anyway happen let's say that the defendant was given the notice of the proposed conditions consistent with lewis and let's just assume for the sake of argument and you may be right on this that the district judge gave the defendant an appropriate opportunity at the sentencing hearing to object to any of the proposed conditions of supervisor release and also to request a greater explanation of those conditions let's grant all of that but assume with me that at least one or two of these conditions of supervised release have terminology that has been express disapproved by the second circuit what do you think you think that we ought to do anything about in this particular case well i don't question that there's there's a problem with some of the exactly told in so what's the problem with simply room manning with instruction to clarify the conditions of supervised release well so do we need to be all that or have a full recent acing hearing this well being we don't agree with you there would be no problem with remanding for a limited purpose i must say that in cases like cases like this to illustrate the tremendous burden involved with a full remained of a full recent sing because i am planning to impose anybody have any objection you know because we've put so much light on this whole issue of supervised release well it certainly couldn't have hurt if the court wants to clarify what the preferred procedure is we do have at least one judge in our district who does it the way the district judge can block and that would seem to really make things extra super clear on the other hand as you  point out these issues have them in the in the sunlight for some time they're all they were well known at the time of this particular sense and hearing which is all the more reason to say you know what you had a chance to to argue about this and you government can also make it super clear by saying you know you recognize these are the conditions just want to put on the record these conditions are the conditions the court it plans to impose there's no jackson by the defense if they're mainly see that the government has any role in making sure it's done so we don't have to keep addressing these issues here in the court of appeals yes and i know that at least some prosecutors in my office are making a very conscientious effort to do that in this particular case as i noted earlier the prosecutor said did allude to the proposed conditions and said hey and at least from the government's perspective there's no problem with these conditions  kind of leaving it in the defense counsel scorches say something at that point but certainly to the extent the parties can iron these things out before the sensing hearing even begins and agree about how to get things on the record that would save th cantor by referring to the unpublished decision in dave's case i think the government really highlights the fact that it cannot point to any actual precedent any bind you present that supports a finding of probable cause in this case given all the uncertainties with regard to the the informant and the total lack of clarity he was able to give about what the actual actions were what the actual crimes going also the counsel for the government says they could have had a brief investigative stop kind of waiving off what terry allows terry gives police serious power especially here when we're talking about an armed robbery investigation they could have detained both of them for half an hour forty five minutes to get to handcuff them they could remove them from the car they could have asked for permission to search the car they could  talk to green alone and seen if he had produced any evidence and in fact it turns out that he had been using the reporter that they had given him and a trial later evidence was produced from that so there were certainly avenues that they could have taken and chose not to take  an argument again is not that green had no credibility whatsoever that they shouldn't believe that it's just that at that particular point in time where really it's a ball of confusion they're not sure what's happening when the robbery is going to be off somewhere else they've never seen michael and dave together they don't know what's happening you need to take a deep breath pump the brakes and you know investigate further if you have to take it if you have to stop them if you feel icky after intervene conducted terry stuff that's all the  sitting around in a halfway house talking about me and i'd like to maybe do a robbery some day that's that's not a crime that's a sort of idle chatter until something more happens and when he changes a story about that detail that's important not only just because of where it stands in the case the because it shows he can't keep her story straight for whatever reason with regard to the scope of remain and on and if that the court gets to sense our position is that this is exactly the kind of case where a faulty man is warranted given how little concern and little attention the district judge gave to us now certainly judge limbs you're spot on everyone has an obligation to make sure that these rules are followed but there needs to be some opportunity the district judge is the one leading the charge here he needs to make sure that th the rules of capice are drastic people understand what's happening and the record simply does not reflect that it doesn't reflect that he thought about how supervise release might interact with the rest of the sentence and that's why this quarter's you know granted