course when he was confronted with the fact that he claims to have made any changes when he was confronted with the fact that they had my client's d n a vials from thirty five years at the time because the crime was committed hard because first we look at the first he said he made that decision i think there's an issue of fact and he made no such decision he didn't even know about the evidence from thirty five years ago because of his declaration he said he made no such determination when he was confronted with the fact that the d n a evidence from my client existed from thirty five years ago he said well i didn't like the section i decided that evidence was too old and that i had a chain of custody problems so there is an are they sent my clients have guns to the d n a lab and they get the results back he's innocent there's nothing wrong with this guy they don't tell him for six five months now what  because of its mathematical certainty over a period of time and it becomes greater and greater concern as to how that d n a evidence will be use immunity aspect to say that even if it was an improper omission that a reasonable officer would not have understood that to be a constitutional violation because they wouldn't appreciate or that was material secondly the court did go along and i think you know what's the crack initial analysis to determine whether there is even a constitutional violation there must be not only the omission i would chastity deliberate or reckless but furthermore that it has to be material obviously if you can't really come back and question how the officers are investigating we don't want to be limiting them at least from a civil liability aspect i think a magistrate would have the same concerns to say i have an officer in front of me have an opportunity to get current  there some rule that says if you already have evidence of x but you can't use a search warrant to get more evidence i am not aware that i think that's the nature of the argument basically your honor is well you've already got  sounds like the federal wiretap statute where you have to show in the sassy for the wiretap you have to demonstrate that other methods of getting this information have been utilized and failed or can't be utilized but i've been i know of no such rule at all in the area of search warrants i'm not aware of it either your honor and i think i think that's the essence of the argument in this case what he's holding the city to is saying look your claim that it's necessary i think frankly is just kind of an ultimate conclusion that they obviously wanted d n a samples i might add the beyond to get a d n a sample simply because you may have a sample that could potentially be useful and i might add on the record there is no evidence that the hair sample would have been productive frankly there's no evidence either way what mr little said i think has been slightly mischaracterized here he didn't say i felt that the hair had been compromised the much as he said we had a first novel available life my thought was that would be more appropriate and there may have ben some concerns about the hair he didn't say and i think that goes to government because he was called a suspect in the olympic park bombing and now they don't call people suspects anymore they call them persons of interest just simply because people have a right to have their reputations notch routed by these clouds of guilt springs from and then beyond that i think that the in the officers have to ask them there has to be some parameters i have asked how about the prime number and which we find rights of privacy lurking to our great amazement and surprise that could also be your honor i suppose there are abilities for more fertile minds than mine i just don't have a fur graf i never heard anything from plaintiff's counsel really coming up with any kind of solid legal ground in for that theory and again i was not able to come up with any case honor i would agree that all things considered that's a that's a lot of old approach of a constitutional right it's not a constitutional right and i do think in this instance certainly there is no there's no determination in the record that anybody concluded he was innocent and so then you're in a situation of saying well there is in california law procedure whereby a person can go to court and get a declaration of innocence i'm not sure what stage that attaches to whether it's without any charges ever having been filed or whether charges after t bottom line as you describe it is there was an awful lot of fourth amendment damage done to your client the trial court took a look at the problems with the search warrant says even if you take those out as the law requires the search warrant is still good and that's why the search warrant itself was a constitutional problem and neither was the search what's the problem with that the problem with that is anything other than this d n a evidence was known to the place for thirty five years they never sought to have a warrant they knew  itself i should say and the application for the work is there some case that says if you already have evidence of x that you're precluded from using a search warrant to get more evidence of x i don't believe there is your honor but i think