good morning they please the court rubber tour torah was on a golf trip with a retired detective and a retired state court judge and he came home to one of the most humiliating experiences of his entire life culminating in a forty nine hour per se unconstitutional detention between his arrest and his arraignment the charges of course were tossed out before him to not proceed well i think it is presumptively under the law however there is nothing in the record that indicates extraordinary circumstances and that's what the government requires setting aside who is responsible but in order for that to be constitutional delay there needs to be extraordinary circumstances there aren't those here you're not you're not charging the government charging  detective danziger and the concern i have is given that that defendant submitted his paperwork at eighty five thousand three hundred and twenty four hours afterwards the question i have is is he responsible for the arraignment not taken place for forty eight hours or do we then have to be concerned that the eighty eight dollars possibly even the court in not sitting after two o'clock is responsible helping out i believe it's fair to say that under one thousand nine hundred and three we follow ordinary tort principles and that means that causation is means that you're going to be responsible for the reasonably foreseeable acts that you set in motion and what we have here is a pattern of delay is other than a limitation called personal involvement that is if i do all our fire do everything that i need to do within a twenty four hour period and then other people who are not defendants in this case fail to do neglect to do whatever they need to do they're after why why should we focus on the twenty four hour  period where i'm a defendant in which i was and because that's that's alternately an issue of fact and there's two parts to this one is whether or not the issue of fact here well on that in that frame when you look at the pattern of delay here mr toward towards arrested at nine hundred and thirty there's a brief interview he is simply held until four hundred and thirty in the afternoon there's no indication that the detective did what ordinarily happens here which is you talk to the district attorney the way these cases get done within twenty hours on average is that the detectives work with the district attorney to make sure the papers get in on time and the complaint is ready so that morning it gets signed or if it's not signed public because you're trying to avoid any inquiry into a probable cause that you know is deficient and that doesn't seem to be evident here well we have delayed specifically for the because the officer was hoping to get mr so really to make an admission this is officer danziger put in his paperwork he was ready for the for the defendant to be arraigned within the permissible time he wasn't looking to delay it at all well i think that's a question for the jury we now know you have to point to some evidence that would allow them to reach that conclusion that he was then looking to delay it i could see where you had the argument if he put in his paperwork one minute before the court closed and he knew that but that's not what happened here the court wasn't closing until two o'clock and he puts his  saying that the court closed that one but i'll give you that for purposes of the argument the whole lengthy period that that went on after that is the a t f actually we don't know when the a t f had the paperwork ready they're making in a us a somewhat we do know is your client or the defendant tech put it in mr danziger put it in that we know we know he didn't sign it into law after the judge was off the bench that wasn't looking to delay it past eight fifty three am i'm saying the danziger understood how the process works and it every single stage we have evidence of specific delays where he was in charge we have the nine hundred and thirty to the and thirty we have the delay until the lineup is performed we then have him just going home rather than working with the district attorney to make sure the papers are ready we have him showing up putting in his papers twenty four hours later and when the benchmark is twenty four hours knowing that other steps have to happen we know that the district attorney may have had the papers done much earlier than the delay before the lineups of the things that he does before he does the lineup is h however yes if the did if detective danziger did the controlled call rather than taking mr tortorella to arraignment because he was looking to try to get vincent surreally in on this crime he was looking for an additional defendant under throws out he sent somebody else to get the property from the shed that would just resolve this whole case right here so as an attempt to exonerate to tour that's a question of fact there are two ways of looking at the evidence on a summary judgment standard in the inferences flow in my favor and i think that looking at that that was your side the mclaughlin and us a bone because under that image investigation is is permissible it's delay for delay sake to avoid a judicial inquiry that's that's the constitutional problem under actually under mclaughlin it says that if you are doing an investigation for the purpose of getting additional information either probably provide probable cause for any arrest then that's unlawful where does it say that well i'll let you in or in rebuttal point is that  where it says that it's impossible even on other individuals are i mean this goes on all the time you have a defendant make a phone call to the next person up in the chain you're saying that  good morning mackenzie fella for detective danziger there is no claim here for excessive delay against a texan danziger because as the court has recognized he was there at the courthouse within twenty four hours ready to conduct your adversary says he knows that is detective danziger knows how the process works and should have realized that wasn't enough time to get it done within the for scribe new york law period so what's your response to that detected insecure knew that most of these things happened pretty quickly actually and so when he was there before the courthouse even opened he had absolutely no reason to think that this would not get done on saturday he was there literally before the courthouse o walker it said that there was i think also perhaps about a forty nine hours lay caused by a trip to a hospital and the court said there's no way that the officer could have seen it before as we were just saying why wasn't it inappropriate for him to interviewing the plaintiff it's the plaintiffs who brought up mr cooley danziger didn't ask anything about him the plaintiff brought up cruelly and said actually karoly asked me to take those things from the shed and then when the detective said well let's call him and see maybe you can get him to admit that and that would exonerate you the plaintiff said ok and so they conduct this call but instead of exonerating the plaintiffs who really says i don't know what you're talking about only further adding to the probable cause against the plaintiffs and by this point the courthouse was closed for the day again this officer does not control the courthouse hours so then the officer goes home very early in the morning thirty minutes before the courthouse is even open he's there waiting he has his paperwork he gives it to the d a they're all waiting around all day there's absolutely no explanation for that for what happened here for why this delay happened except that it wasn't the detectives fault and we're certainly not saying that a forty nine hour delay is great as the plaintiff notes it's presumptively right it's presumptively unconstitutional but the plaintiff is still obligated to show that the defendant he's suing was personally responsible in some way under ninety three for this detective to be personally liable court the supreme court has said that to be suggestive there has to be some sort of police involvement in the wrongful identification procedure and mrs cooley was retired was a civilian that officer danziger with no role in that he gets to the scene he's told that  identification procedure has already been done there's really nothing he can't undo it but what he does is he asks the witness did you get a good look at his face she says yes did are you sure it's him she says yes he goes in campuses the neighborhood they say they didn't see anything he looks emphatically says that's the guy i saw in the backyard that's probably cause or at least arguable probable cause and then the problem call is only increased once he gets to that does the arrest and the plaintiff it myths that he knows these people that he in fact called the hotel and asked them did this guy stay there on this night and they said they couldn't confirm it and while he presents the you know a couple of witnesses who said they didn't answer the phone that day and talked to a detective there's nothing in the  didn't do it but there's nothing i can do that's a really significant admission and there's it's very difficult to flex all of the inferences in the defense's favor the way they're asking in light of that this objectively not kept we do know he's not present when this all happens to the extent he knows the fellow didn't do it you're not pointing anything other than his belief giving you the benefit of there is no dispute that the witness idea and i'm not sure how that isn't objectively probable cause but i want one point i want to make about police involvement by the way that's a due process question as answering my question st so given that there is an eyewitness id how does he is subjective belief diminish the fact that there's objectively probable cause but because he is required to do essentially basic police work to look into whether or not that was a reliable identification procedure cause or arguable probable cause what it means is under our caseload he didn't think the id was reliable that's the inference from this confession is that he was there he looks at all of the information that was available to him and he says i don't think he did it which is another way of saying this identification procedure i'm not buying it she was shown two separate photographs by a civilian who had he done some basic questioning he would have found out perhaps has a dog after the lineup procedure and what it appears happened was that through being shown photographs miss de lucia learned what mr tortorella looked like and then was able to identify him and after all is that all arguments that go to admi and i mean you have to deal with our precedents stansbury in america and i think that actually goes to my favor because what it says and stansberry is the single photograph they look at it and they say and this court said that was not explained that this the distinction stansbury draws is between circumstances that make it more likely that you'll make an identification which may warrant suppression but does not does not vitiate problem cause and circumstances that leave you with no choice but to make the identification usually compulsion of some kind that is what what will not permit probable cause you don't have that here i don't believe that was the case and stands very well i think people the and how do you deal with mary's discussion of that an explanation that that's exactly what stance perry is talking about well circumstances the procedures forced the id procedures that increase the odds of the id to not preclude reliance that is stansberry says that to use our procedures that force the idea because this is a retired detective she knows full well what the proper procedure is but instead she does this improvised two photos two single photographs of the same person which is highly suggestive this wasn't something by this wasn't a choice by the investigating detective this was compelled by an employer and employee and detective danziger didn't further investigate that he didn't question that and it was too suggestive to provide probable cause on its own and yes maybe have you have the site to mclaughlin for me on the page that you think supports the argument you made yes i do i think it's page fifty six and it's true that mclachlan doesn't talk to investigation of other individuals but i still think the inference here is that this was to get additional information to justify the arrest of mr tortorella and i think the inference here is that this single  have one question so when he says i know we didn't do it because of all you can do when he says there's nothing i can do what's he talking about why isn't there anything he can do because the suit because this it seems that mr really spoke to a supervisor and he was getting pressure from the top that's what i think that means and i think that's a reasonable inference under the circumstances this is a strange arrest we have a few well liked former supervising detective calling her old precinct and the accepting everything she says at face value and by the way what we now know is it wasn't mr tortorella and also there was no crime those that motor boat motor belong to mr surreally and yes you can say well the officer didn't know that at the time but i think that's a problem there was nothing compelling this officer to just in a rest mr tortorella hold him in and then do the rest of the investigation because he had brought that single photo to a district attorney the case would been tossed immediately