the statement of a single witness the credibility of that witness is paramount that's been established law in this country for decades it's been recently reaffirmed in the winfrey decision but no other evidence didn't the the lineup in which the in which miller picks half of the lineup he had demonstrated that he had a complete lack of reliability on virtually every issue related to the case as the court knows from the summary judgment evidence after detective pereira's interviewed miller on july thirty first for two hours she testified in her summary judgment evidence that she did not believe that probable cause existed and she specifically said the reason she didn't believe probable cause existed was because of the inconsistency in what miller was saying now particularly noteworthy because in the july thirty first two hour interview as a matter what she thought or the just an objective standard i think it doesn't matter whether looking it's an objective standard the the reason that that in i believe that is noteworthy is because in the first two hour interview she learned she learned from miller that miller claimed that anderson jones had shot and killed the complainant that is the language of the probably cause affidavit which he says was too filled with inconsistency is at that point to be believed so we would have to then believe that somehow on the spectrum he moved towards reliability despite the fact that in the next eight hour interview it was absolutely fatal with inconsistency throughout changing story we have it all listed and i hope that the court it's as if it's obvious from the transcript but it's even more obvious from the record interviews that have been provided to the court this individual was unreliable from wherever he was on the spectrum at the beginning knowing that he was he had some intellectual challenges that he had been smoking synthetic marijuana wherever he was on most credible to not credible he moved towards not credible and she confirmed that and throughout the questioning all he did was move further and further and further towards doc credible  this jones go to jail i'm sorry we need to go to jail august he went to he was arrested on august the first on a for failing to walk in the correct side of the sidewalk and then subs a car for marijuana and so he went to jail on august first for the possession of between two to four ounces of marijuana use and as i understand the section one thousand nine hundred three claim in this case the argument is that he spent seventeen days in jail and he shouldn't been in jail that's the theory yes ok so he goes to jail on marijuana august first two thousand and fifteen is there any dispute that he had marijuana or that he was lawfully arrested but that the possession of somewhere between two to four ounces of aren't you attacking the wrong probable cause you don't need to show he's in jail i mean unless you can tell me was it was there a different custody arrangement for being charged with marijuana versus being charged with capital murder your honor that the court essentially suggesting i believe that if there is probable cause to arrest for walking on the wrong side of a sidewalk which there would be that a police officer a day later could knowingly and intentionally or with reckless disregard for the make material misrepresentations and omissions in an affidavit that would cause a warrant to be issued for a capital murder you know i'm sorry i don't i'm not suggesting that in any way ok what i'm suggesting is that if you want damages under section one hundred eighty three you need to show be any grief and that can be compensated under section one hundred eighty three and what i'm understanding the aggrievement from judge fitz waters decision below from the record from your your brief is that he was in jail from august first to august seventeenth and he should not have been in jail that's that's what i'm understanding are going to be and so my question to you is i thought he was already in jail from august first talk to seventeenth for possession of between two to four ounces of marijuana your honor there's the reality would have to be recognize that on a marijuana charge a class b misdemeanor with a five hundred dollars bond would be quite different than the one million dollar bond that was holding him on the capital murder and did you have evidence that it would have been a different bond for the two to four ounces of marijuana possession that he could have made that bond i don't know that i mean i can find evidence that he could but as a matter of fact any person who's being held on a million or bonded to say that they simply their damages are gone simply because they couldn't because they never had nothing to make the million dollar bond and we would know the answer to whether he could have made a five hundred dollar would be able to get charged with for capital murder for crime of which the bond would be set to where the i think the point is is he being detained because of this murder charge that you think is is fabricated or was he already being detained at night that is that because your damages are being in jail but did the city ever i mean i had the same sort of thoughts but did the city ever move for summary judgment based on the fact that he should have been in jail and that whole time anyway for the marijuana charge not that i'm aware and fitzwater didn't grant summary judgment on that credit fitzwater reconstructed the affidavit and of course we quibble with what we strongly disagree with the what he included in the reconstructed affidavit for example of all of the numerous changes in stories and inconsistency that existed he indicated judge fitzwater indicated miller's account of the crime was inconsistent at times and acted we believe that post but we believe that the correct analysis as set forth by the court in winfrey is that specific omissions of critical material facts bust be included specifically when we are talking about a situation in which they the probable cause arrest on a single witness i believe it is noteworthy to point out that in in winfrey that was a witness who it was claimed was providing facts that were not known to the public and the court said well he was providing a lot of inaccurate facts is what he was doing substances what additional facts do you think should be included in the reconstituted affidavit well we believe i believe that the facts starting w his failure to know how he got to the stu the to the incident i mean it would be a litany of literally everything he said from how the incident how he got there how the alleged suspects got there as to how to how it occurred he testified he claims that the light was off when in fact it was on he says there was one witness or there were no witnesses in there when in fact there was a lady working it in the in the in there he was wrong about where the shooting occurred in sat around he was wrong  the most material of all facts we believe we're not suggesting that every single mistake or inaccuracy by a witness will always have to be included and i recognize there would be some wind in some cases where someone could complain while that small faction of been included in this which had been played however in this case i don't think we have that we have an overwhelming number of facts that cannot be reduced or distilled down to a simple statement of he was at times inconsistent inaccurate detected pereira's in her summary judgment affidavit recognizes that reliability is critical in this case because detective pres in the summary judgment affidavit and before this court says she knows miller to be reliable why because he said he provided facts that were not known to the public thinking about yet miller and in that instance in which he is the only advocates with no other evidence linking it there has to be a basis of some reliability as i mentioned he moves along this said of course that statement about picking him out of a photo lineup means one and only one person each of you and i would venture to say every judge in the country if presented that statement and then learned that half of the people of the six had been picked out would say immediately get that officer down here that is a false statement is blatantly misleading and what ever  reliability this witness had left it was gone when he picks out half of the people now they try and say he was just confused however detective presence testimony is that she told him prior to the lineup that it would be six different people it's simply not correctable by then showing him a one person i want a single photo  is clearly suggested when of the three picks she says is this the one what if she picked the other either of the other two he does say that once she told him there were six different people the summary judgment evidence shows that she told him there were six there were people another reason that we know that her claim that she provided that miller provided reliable information because of this claim that it was not known to the public and that's what they that's what she did had a presence basing it on we know that isn't true because not only does the summary judgment evidence record just clearly established it falls within hours the detached the dallas police department released the individual upon learning of the lineup and they conducted their own investigation and they issued a public statement that after investigating it they determined that the witness was unreliable there were if there were any facts as they suggest that miller had produced that were not known to the public i submit to you that they would be the suspect would not in the least within hours and certainly the d p days official public position on the matter would have been that he circumstances if we get qualified immunity should we allow that to be considered i don't believe that it changes or would offer in type of objective or reasonable this for the officers actions and the reason being that the nickname but it's really nothing more than miller signing anderson jones was the person that did it and ultimately had there been some evidence of that to the public cause but with each passing statement that he made she recognized this guy is not reliable and a judge on a question that you can answer in the ramp up to it and i was going to ask when you come back for rebuttal i would be grateful if you could give me the best record cite for the proposition that mr jones would have gotten out of jail before the seventeenth of august but turning to my first point the appellant's frank's base false arrest claim is based entirely on allegations that perot's made false and misleading statements statements in the in her initial probable cause affidavit the district court considered those a less false statements and also mission and determined that the affidavit should have been reconstructed and in doing so the district court reconstructed the affidavit in the manner in which the appellant asked it included information that was emitted from the affidavit and it also removed the alleged misstatements the district court after having done that still determined the probable cause existed based on the totality of the circumstances known to progress at the time including the fact that miller consistently stated the case he was the person who shot or take it miller confessed that he was an accomplice in the underlying crime one thing i find remarkable is i may not like someone was not there and they did not have the actual individual who shot that they didn't have in custody the actual individual who shot them take it they didn't even know who this individual was k miller said that he knew who k t was and they needed to be able to identify who the shooter was they needed to be able to identify it and not the name katie with the individual who they later determined was ander and once they did that on august the first mr miller went out to the apartment complex and identified katie to another dallas police officer who was she admitted he had a very difficult suspect this was an extremely difficult case she in her judgment and after having can spoken with her supervisor determined that they would want the actual individual who shot if miller was able to identify this individual is the person who shot her take it then they would go ahead and proceed with a resting know as well she made a decision based on what her supervisor told her and her best judgment based on the evidence that she had not because she was intending to your honor in this parenthesis violated d p t policy in the photographic lineup but the violation of a departmental policy does not give rise to a constitutional violation here and though none of the grounds for her employment troubles were misleading the magistrate in connection with the line of all of  at it was an internal procedure it had nothing to do with the totality of the circumstances and the evidence known to rest at the time she had a number of factors that she was considering that were not even part of the part of her internal ministry of procedure and part of that it was the consistency of accomplice to a murder  jones there was no evidence that jones was not the shooter there is no evidence that he was not present at the scene and alibi that he provided pres during the investigation conflict with his girlfriend and what he saw what the stir jones said he more he was complicit with what he said his girlfriend was going to say so when you're looking at the totality of the circumstances and what parentless knew there is at least arguable probable cause to arrest jones for the murder or take inconsistency is to believe jones is the murderer i mean i know it's all trade objective standard but why would d p d what out this violent murder early still as i assume walking out of the streets today if there's probable cause to over that they don't say and if that happens you have to ignore all this if you have great other evidence of probable cause you have to ignore that i want that person go free to question as as the franks test says you ok you throw out the bad part throw out the bad part and look at whether there's still determined that he should be released and not proceed further but that does not mean that probable cause that no reasonable police officer could have determined based on the facts presented to  known and and perhaps in retrospect they could have but all of them are they should have not done no in jail but what we have or the inconsistent statements in d p d decided that going forward on a criminal trial with a media visual giving these kind of inconsistent statements may not meet the standard of proof or at least proof beyond a reasonable doubt for a conviction but the standard here is probable cause and whether the facts known within the police officers knowledge was sufficient to warrant a belief that that the individual who  arrested committed the crime me to a fair probability that's what the standard for probable cause is and that's what the pariahs had in this case and also you are going back to the object of reasonableness of paralysis conduct here there were facts known to her known to miller that were not in the public domain for example the two shots that miller said that he heard two shots that was consistent with what another eyewitness said in this case on a jala who was the other subway employee at the scene at the time of the murder miller stated that he heard two shots shots that was consistent he also said that the shooting occurred in front of the subway which was consistent with what the jala said because she said that or take a was shot at the doorway of the restaurant so those additional facts and they were not made known to the public and the appellant can point to no news articles or reports stating that those specific details were making known to the public and that miller was court point about whether her wrist hold miller that there were going to only be only be six different individuals in the lineup that is not an accurate reflection of the record because what perot's told mill it with was that there were going to be six people in the lineup not six different people and paradis and miller having seen the individuals he believed and it's in the record that he believed that the people that he picked out were the same individuals based on his understanding looking at the photograph but again that the photographic identification was not stated she provided miller's according to miller statement she provided anderson jen was legal name rather then the street name that was a misstateme according to the p d policy but the fact remains that she did and then finally you're on our own too the courts question about the constitutional harm on a fourth amendment claim  here and it was raised in the district court to the district court by the apple a in the apple his plea the court did not resolve this case on that claim he did noted it in a statement and it doesn't matter for us one way or the other great because we can affirm on august first dogs and t which jail or is there only one jail i do not believe that the record states where he was held but typically it would have been at  sterrett in dallas but it doesn't misliking does the record show that there would be a different jail cell or custody level or any sort of any sort of harm or damage that would be done comparing someone who's held for a marijuana possession charge or someone who's held for capital murder charge to put him in the greater security or the shackle them different thing you know nothing the fourth and fourteenth amendment and secondly because you tell it failed to raise a genuine issue of material fact as to whether princes conduct in seeking the warrant was objective lee reasonable thank further evidence of his financial wherewithal to have posted a lower bond i do think the courts could arguably take judicial notice of the fact that a class b misdemeanor bought a beef either dollars but to the extent that the court is troubled with the idea that there was i'm sorry i don't mean to drop the case plus you can only get too far down the road is there evidence that he could have paid five hundred dollars issue that are an issue that it seems that it seems we seem to be pointed at at least from some of your questions and that being that in an instance where there is a constitutional violation but because another the fourth amendment might be foreclosed for some reason the constitutional violation does not just go away and call the carson established that in those since situations a claim under the fourteenth  amendment due process would be proper and that was decided after albright and we believe that in that particular case there was evidence that the young man who was who where fabric evidence was fabricated in the form of a false that caused the more the more serious charges to lie did not simply go away and i'm not suggesting in any way that it does go away and nor might to your point earlier suggesting anything about this case i'm asking just asking your question  you have a fourteenth you have a fourth amendment claim for damages and i'm just trying to figure out what the damages are if he was lawfully held on marijuana pacifically addressing comments made by counsel they still appear to be maintaining that he picked the miller picked him out of the photo lineup she says it's we believe it's misleading i guess that's one that the line is drawn as to whether or not a police  far as the fact that counsel is saying that they would not necessarily have to put into the record these i'm sorry into the affidavit these misstatements and these omissions because they are not  of and still have problems cause a not and we maintain that his reliability is essential for the first statement and she said she didn't believe him and nothing changed and only got worse but the the line a the failure in the line  a gross indication of his lack of reliability if there was anything left at that point it appears that as far as whether there were specific there was any specific information provided by miller that was not known to the public we disagree with counsel statement i would ask you to please on all that go to the record he first says he didn't hear shots then he says there were two shots the witness said there were four shots he was not correct on that he was not correct he twelve the district court's opinion i'm all right the case is submitted we'll call our last case of the day ira sure europe versus shift harden