the method of analysis this court prescribes and evaluating a warrant against claims of material falsehoods or omissions is to extract the falsehoods and add the omissions and then determine whether probable cause exists in this case extracting the false statements only effective text of the warrant is that doe committed the offense of cruelty to children by going on a vacation with her boyfriend including the omitted  least two things would need to be noted in the warrant st that doe behaved in perfect accordance with the uniform advice of a wide variety of professionals familiar with the facts and she doesn't behave in perfect accordance cut to the chase of what i think is troubling me about the case when i look at what the investigator as there was say there was so the division investigator who had said that every time she went over there that she had been touch and appropriately and then we know that that l at least had said that doe had provided permission for the daughters to stay over at the house that  weekend i know that there's conflicting evidence but it does seem to me that the investigator could credit all of that and discredit and disbelie the denials of that other members of the family and and and go forward based on that why am i wrong so you identified three facts that are could think also have motives that maybe not tell the complete truth sometimes they say you know out of the mouth of babes and i'm just wondering if you're in the if you're the smith's theory of the case is correct we're effectively confessions that they did it right so we have a situation here where we're trying to figure out who did the thing right and it's like who are in the right we have six people who are there two people confess and everybody says it wasn't how and haven't we said no as a matter of law i understand we're going you're saying that oral is not credible and these people were very credible but haven't we specifically said in our published case law that in the probable cause context it's not we don't expect officers to resolve credibility determinations or two we don't become part of conflicts in evidence as long as there is some credible evidence from which they can make that conclusion which judge bill pryor is talking about we generally least for arguable probable cause purposes give them that who look at that evidence to support it or not so a couple points on that with the criminal victim reporting a crime they have firsthand knowledge of r l in this case doesn't have that firm foundation to know there's a serious doubt how would you know that she's a family member who's sleeping over that night with the children that we can't how does she not have knowledge about why the children were there i think i got a couple things st i think that especially the eight year old child which is the case here can reasonably infer in the absence of any other information before her that permission was given from the fact that it happened right well that's not what she did hear what she said was they came over to give she described a reason to it because the kids did not like staying with their own co and i know there was a an issue with erin her donald or who that was but that there was an issue right so she described a reason for that purpose it wasn't just she assumed she had of all the people in this case she had the the circumstances and the totality the circumstances don't give rights to problem cause and then there's no doubt an officer could look at the same facts and conclude otherwise so i i don't think you're not wrong what you're saying i guess what i'm asking is why can't officer look at th you know what i'm a marine on the side of and again argue probably cause allows for errors and it could have been enough for it warrant in this case again i think if the officer is going to rely on a statement from one witness who is the least basis to know to the total exclusion of confessions and other statements that he would have a much firmer basis to know at a minimum that calls for greater investigation smith didn't ask  key questions of you know what what authority was given to those kids to really even the people you know these people told her but she also had the i still think no one of the totality of the circumstances and then under the investigation that was done but that's a part of our argument right that only a short visit was authorized and during that short visit donovan aaron's testimony was that doe's understanding was that they were going to be there to rights of the three adults watching six kids right now but one of the problems here is that you know this is so at this this after the fact investigation is after does come home everybody knows there's been a bad it didn't everybody knows there's an investigation and the adults certainly know that the implications for that are very serious right correct and and they are they know that there could be some bad stakes for some of the adults that r l everything that the adults are saying be taken in face value and in good faith when there may be motives that investigator has to contemplate that they cut in a couple of different directions and i think you know going back to that the metaphor of who figuring out figuring out who ran the stop light for example right if we have six people who all say one person did it in two and that's not that's this this is of a lot more serious than that a rental i understood  and point taken the other point that i would like to make and everybody at the red light might not be related and realize oh gosh somebody could be going to prison over this the other point that i would make that would  you know is independently sufficient from our perspective to fully vitiate probable cause is the advice of the professionals the vice of the professional that comes from defects school officials law enforcement and all of whom had investigated this situation at least once who were familiar with the kids through milieu with the situation and told though this was ok but what all don't but although all smith knew was that doe and donna all use mean if you don't mind to hold smith that they had gotten that permission that's all smith knew right so smith knew when smith had the report so let me also fast forward because you're short on time haven't we said that for the arguable probable cause determination that affirmative defenses generally need not be presented their case and we've said it in the context of good faith defenses so i have to have two points on that st is that this is not  a affirmative defense this is an alibi kind of situation where if she did not if she did this with the innocent mind there is no crime right period and  that was given and it was communicated to the inspector smith did anyone give permission for a four night sleep over that that wasn't a question that was asked but each of the professionals advice was time that at least one of the plaintiff's children had been molested at the same house by the same cousin on prior occasion conversation actually involved all three of her children she knew more than that didn't she knew about a two thousand and thirteen incident yes she knew about the two thousand and fourteen incident which happened two weeks before the grandparents visit for the visit to the paternal grandparents in florida writes yes and in that report the paternal grandmother's concern that the mom sort of fluff this office just it's a family thing and we don't you take this seriously yeah i don't want to get any agencies involved and and then and we also have at least indications from one of the child that every time they would go over to our l's house that this would happen right then and plaintiff in her interview with investigator smith said i talk to my children all the time about molestation so when you have a child in forensic interview saying i get molested every time i go to that house and you have a plaintive saying i thought my children all the time about this reasonable officer and assume from those statements the mother knows bad things are still going on in that house and she still leonard gets go to go to that house and that is she had smith had the facts and take reports where there express concern was this is happened before does house mother still letting the kids go back to this house was she doing to protect her kid so your opposing counsel says and you you have to admit you put a lot of weight on oral statement that about to sleep over and i think a lot of the case hinges on that your opposing counsel gets up here and tells us that is not credible and no reasonable officer would rely on that testimony for a number of reasons in their brief lays out i think four or five reasons why she's not credible why tell me why opposing counsel is not correct about that and why a reasonable officer could have relied for arguable probable cause purposes well i think the plaintiff misunderstands the nature of a forensic interview a forensic interview it's not an interrogation nor is it a cross examination it is an interview by a trained interviewer where the purpose of the interview is to find out the facts of what happened and so the interviewer is not going to you know is not bound by the rules of evidence probably doesn't even know the rules of and so interviewers not going to go into the niceties that we would probably go into if we were doing the interview and not going to ask them the questions that we would like to have asked to have asked and so while there are questions we would have liked to have asked it is notable that the forensic interviewer testify in her deposition in this child was coached and yet even though she was coached she still stayed in her forensic interview that it was plaintiff who made the decision for her children to spend the weekend at that house because she did not want her kids staying with her brother because he's mean them that is a very that is that sounds exactly like an explanation that would be given to a child i can see an adult getting that explanation to a child here's why your cousin is really staying with you because well i don't want them stay with there he's me you're opposing counsel also says that that there was an affirmative defense here or at least in the geisha of intent that was significant that that the mother and the the mother of the children and her mother both told them that the mental health professionals counselors that children protective services all said that it was ok because she was in counseling for her children to be with r l in a supervised setting and that was ultimately what what joe intended to happen well i think that this officer required to present that to a magistrate judge not in this case because here's what the guidance was the guidance was it is ok for plaintiff's kids to be a round the cousin i don't know what be around me it is never been explained in this case going to the same school with the cousin is different from having a four nights sleep over with the cousin those are very different situations which require very different supervisory arrangements and sames that great term because brady really comes up in the trial context and is derived from trial rights and not from pre arrest rights but it do we want to should we want prosecutors to present exculpatory evidence to a magistrate judge even saying i don't believe this and here's why i don't believe it but here's the defense that has been presented in here is evidence which contradicts my theory i think there are cases where an officer may be expected to present such exculpatory evidence where such evidence  has more of a as more of a firmer basis you know maybe there's physical evidence that may support the suspects  story to some degree to say because they came the evidence mostly came from the mother or the mother's mother that the officers a lot of make a credibility determination of whether to present that to the to the  think so because we're looking at double and triple hearsay that's always going to his or her search warrant though for further arrest warrant it's one officer swearing out about what they heard i mean that's always going to be the case well  it is but all it's all they're given is they said it's ok for my kids to be around this cousin that doesn't tell the officer much of anything if they  said the cousin's therapist said that it was ok for my kids to have a three or four night sleep over at the cousin's house with jimmy being supervision that might that would be a different situation i probably well what about the what about the information that that  the father in the brother disregarded mr those instructions well that's interesting because number one we don't have any testimony from donald at all we have hearsay from plaintiffs and from again that is simply just conflicting information with the other information that smith had and she was not required to credit that information  because you know these adults had motive to you know make potentially false statements you know plaintiff was scared she didn't lose he kids there was testimony that when smith the paint arrest warrants there was a meeting at the facts as to whether the cousin was going to be removed from donna's home and so there was a possibility that kids are going to be taken out of homes and put in foster care so there's certainly a motivation for adults to change her story and so smith was not obligated to credit those statements since she had other information to the contrary got four minutes thank you a couple responses to co counsel opposing couples argument with regard to oral statement if oral statement is going to be taken against the mountain of other evidence that's one thing but the core question is you know was oral statement and even on its own terms reasonably trustworthy information and i think there are serious doubts about that as you know we've indicated in our briefing that she was a person with the least basis to know it was a stray comment and everyone else testified unequivocally about what happened interview and can ask that the interviewer ask those questions and none of the children were specifically asked that question which speaks to an investigation that was not reasonable and was not designed to get r smith's theory of the case from start to finish as told to the prosecutor as told to even the forensic interviewer was that jimmy was a known prior  jimmy let's back up jimmy had been in prison and had been released and so and so had allowed him to come and move into our home question now how did you learn that jimmy had been in prison and sir it's a different name obviously though told me question do you remember when doe told you that answer like i just stated the date of these interviews so those specifically denied making that statement that statement was made with  our viewers and doe all together this was one of the bases that judge battened reconsidered and the original order he said that basically what you just said and then on reconsideration said ok we're not considering that there's a conflict of evidence there's a conflict of evidence at best yet he gave it seems to every benefit of the doubt here i mean i thought that the order of the motion for reconsideration should really care with which judge that treated this record going back just one second to whether there's a conflict of evidence here this is not a situation where there's a conflicting evidence that an officer needs to step through smith was in that conversation i understand it didn't happen  and then finally even if it was assumed that jimmy was the only caregiver and even if it was assumed contrary to the evidence that donald than aaron weren't also supposed to be there