us this week to assist us with our work and this is our first occasion to sit with us and we're very grateful for her willingness to come here and work for free as senior judges do they make an enormous contribution to the federal judiciary and shoulder about twenty percent of the judiciary's workload i don't know what we would do without him we hope she'll come back we have three cases to hear this morning we're familiar with your briefs and the authority cited in your briefs and it and in at least portions of the record and you should feel free in the limited time available to you to get straight to the heart of your argument we're probably going to have some questions this morning pay attention to the traffic lights at the podium don't treat the red light as aspirational when it shines it's time to wrap it up if we if you're answering a question from the court of course you can finish your answer and that will be on our time it seems to me that that that the records not developed enough for that and that should be handled in a twenty to fifty five motion oh right for this particular for our for position today on i believe  people like your client defendants to have an opportunity to do a thorough investigation so i don't think just talking about you especially while using argument just preserving it for another day  material facts that were emitted from the affidavit and in this case and we're going to shift from the statements of mr davis in those various statements that i know were presented on trial and we're going to focus on the material victims by leaflets on there and they say that they were looking for that mr king's residence because the g p s and cell phone records had him in the vicinity of the crime thing and that they also have witnesses that said that mr king had previously threatened the deceased and that makes and the g p s records also show not only was he in the vicinity of the crime scene but he also left there and went home and that's all you have that makes sense right however at this ham affidavit was they also knew that the same g p s records and cell phone records show that mr king had never stepped foot in the cemetery where the body was found that he was only traveling on the road and if you're only traveling on the road that means you don't have a chance to gain possession of belongings that they're looking for at the time affidavit was issued they also knew that the deceased was with the third party just prior to his death and that's mr montreal davis and that just after his death ten minutes after his death mr davis is seen on camera in the vehicle in the deceased being hit and if he's if he's driving the vehicle he has to have the keys and he has the keys and there's no reasonable reason court would have had a better opportunity to review the total circumstances because there's with this information included in the affidavit there's no reason to believe that these belongings would be at mr king's house if he would never at the cemetery never at the church w his clothes have the big blood on it if he was never there how would he have the opportunity to get hold of belongings because the video the after the murder the video shows that mr davis showed up at rainbow threw in the victim's car and he made a third party that was not mr king and so how did mr king get his belongings with them when the investigator was asked at the suppression hearing why do you think what made me think have some reason to believe that the evidence from a homicidal going to be at mr king's residence in this he was never at the cemetery in the g p s and cell phone records show that and they knew that when they issued the affidavit so this is my problem with the way that the affidavit was written even though it's technically true because technically he was in the percentage of the crime scene at the time the crime was happening and then he drove straight home it's misleading and it's misleading because it fails to tell the court that he was travelling on the road it made it appear as if there was actually an opportunity for mr king to gain possession of these items when in fact that's not the case  and that goes back and this is why i'm saying that king wasn't not represented by counsel during his suppression hearing because the attorney never presented this argument to the court and because he never presented this argument to the court they made their determination based they made a determination based on the statement that mr davis mate and they came to the conclusion that even without mr davis statements the the search for still held up because you have mr king in the vicinity of the area and you have the dress that were made and if you do them on just the threats that were made in him being in the city of the area and going straight home then it would stand but you have to include these other things because if you include these other facts then it will make it will put a bit of finding a probable cause good morning may it please the court my name is sandra stewart and i'm representing the united states in this appeal keeping you busy this week on this very busy i want to turn directly to the arguments that were made in the briefs and that affidavit and there's no contention that the affidavit on its face did not provide probable cause i don't think that that that's an issue but it is important at this background at the time that we knew that law enforcement knew wigan's was his body was found on the one thousand that about four o'clock the next day the family members in response to this press conference that they have they say they come he moved to atlanta he was then living he came back to the area he was living with montral davis and aisha davis who was is an aunt and uncle and mr davis is the one montreal davis is the one who ends up giving the become a suspect when mr davis only became a suspect after he started telling the story about being he's was a bon wigan's and he tells a story about say quine a bunch of people stop that they're driving in the car and identified in gentleman stop them take them to different locations one but you do you have like a date and time when all day yeah it's not until the twenty second that he becomes an actual suspect and goes back to some of the arguments that i was going to that's the background and then then davis and davis are brought in on the twenty first that's when they make their first statements you should davis from the very beginning she said that they are that they are afraid they she doesn't say of who but they say they are afraid they talk to the trial that is and montreaux davis is the first one to say that they are afraid of strong and strong is antonio king and it's when you when the court reviews the records they tell you king went by a different head a lot of different names on the street he was a big he was strong he was bonny he was bunny she had a different names but it's clear that strong refers to antonio king and that that was who they were afraid of so they already know he's afraid they're so afraid they asked me to put up in a hotel room on the twenty first and they are put up in a hotel room on the twenty first then the next day davis and montral davis tell mr smith they end up telling the same story doesn't start off that way but you should davis tells a story that this is what her husband had told her they go back to trail he first tell some other and there were a few more arguments that were made in the brief and i'm not sure that i hit all of them well anyone so the only ones we've talked about this morning are ineffective assistance which i would think you agree with the suggestion that talks about the state from the russell county jail that supposedly shows he was booked in earlier so they could not possibly have been making these are mr yeah the mr davis could not be making these statements that videotape has never surfaced and as far as we know mr never had that we also know that we have videotape of the entire time that mr davis is giving his statement so that it would be contradictory of the evidence that exists so i think that that is she's going to have have to wait to layer and it's true that mr davis told different stories but he didn't tell a different story about mr king being the one who's threatening him and i think that's key here because that is the statement that i think don't we have to include whatever was omitted to consider yawners with inclusion of the facts that we discussed earlier the fact that mr king had never stopped he was only traveling on the road from the cemetery but he never stepped foot on the church park but he and he was not actually present at the time of the murder the fact that we know that mr davis was in fact in possession of the deceased vehicle right after he was murdered the fact that there is no evidence to show that these belongings that they were searching for were in mr king's house because in the day when it comes to the search warrant that's what we're looking forward looking to see if there was a possibility for these belongings that were missing from the big them to be at mr king's house and the theory is that mr king allegedly hire someone to kill his nephew and he went through so much trouble to distance himself from this murder while he didn't turn back around and say ok marry me and stuff it in my house especially when there's nothing to support that that was the case everything points to mr davis and even if mr keene was somehow behind this murder which we're not saying that he was it still doesn't make it reasonable to believe that mr the deceased belongings would be homicide they found a gun that was not related to the murder and they found like a bag of cocaine in a separate room from mr king under a dresser which supported the charges that were there on the charges ye but we're here but if there was no search warrant then they would never been in the house mr king was not been so bailiff for drug trafficking there was no who wouldn't be investigated for drugs had been investigated for homicide and even if he did make those again just one last time you have to look at this this whole tally of the circumstances and you have to use common sense and common sense there that he was never at the cemetery if somebody else was in the  about a complaint august of twenty thirteen saying that mr king had a gun to us he it he wanted to kill me could kill and then so we end he didn't so and then he came out he was going around everywhere  he went too afraid they were just traveling he was just out in the open he wasn't trying to hide he was out no hope an opening going places because this was like you need to sit down somewhere and he just wouldn't and so we will move that the court reverse the judgment entered against mr king and suppress the evidence that was found against him on the grounds that when you include all of the back she can't just pick and choose in a effort to as the government says make yourself look good you cannot do that you have to give the court enough evidence so they can make common sense determination based on the totality of the  circumstances and you cannot mislead the court into thinking something that was technically true was more than what it was thinking thank you mr maher and we know that you were court appointed and we appreciate