excuse me the initial illegal search a search warrant can clear up tape of an illegal seizure because that seizure only affects possessory interests whereas the illegal search of the home where mr hoffa was temporarily staying violated his privacy interests well it's only illegal if one believes the witness is friendly to mr hoffa girlfriend and her mom is that fair that is correct your honor the three officers can't agree on who answered the front door officer stuart can remember seeing the phone but he never touched it and that one that sees it through the door windows he sees it through the door and then still couldn't search it correct ok but on the other hand they do seem to be consistent and the court credited it that ultimately they focused on it i guess stuart is the one who appears to have gotten it and your response seems to be well it's improper it's implausible that they wouldn't have seen it right away isn't that really the thrust that is what they said as soon as we came in we saw mr hoffa there and there's the phone that be consistent but you argue that well they didn't see it right away but is that really a killer that's part of it it is the sum total of in consistencies and lack of remembrance officer stuart i saw i didn't touch it eight there in the room with us o'keefe i wasn't there when they found it i was up stairs i don't remember which time it was that i was up stairs but when i came down some unnamed officer can't remember who handed me the phone and then you have officers i am saying i didn't have anything to do with this i was just clearing the house i don't know anything about a phone and so when you have that collective we remember we remember it was in plain view but we don't remember anything else or what we do remember does not make sense with another officer of remembrance that points a finger at a fishy smell and their testimony that all the  says if i read it correctly it page by stuart found the phone lying on the table in the living room that is correct in that he says stuart says he  ok and that but once it was between saw and found correct that was because that stewart denies picking up the phone and stewart says he saw the phone after or contemporaneous with where's the cell phone and it's like if it's out in plain view why is o'keefe asking about a phone and why is it g o p doesn't see it i mean i walked around my house and my cell phone's been on my table and i haven't seen it for a long time the other element of that though your honor is o'keefe once he remembers asking about a cell phone does not he says he was not there when the cell phone was seen or found the key to the one who went up stairs to deal with the april he went upstairs diane went up stairs o'keefe thinks he may have gone upstairs twice he wanted to search the dresser and was looking for evidence that mr hoffa was staying at that house on the west second north street but it just there's there's a disconnect and it's just too significant a disconnect to discount what is that disconnect  stewart says o'keefe was in the room this is not a big house in the room when i saw the cell phone o'keefe says i was upstairs when they found the cell phone i came downstairs some officer handed it to me at least six or seven housing authority officer who arrived at some point there was a third officer so yes eventually there is a lot of law enforcement in this house but it's not clear when they arrived and what they did it and stewart says stewart says i saw you on the phone and then o'keefe goes up stairs and soon thereafter stuart finds the phone what's implausible about that is an incorrect recitation of the testimony  by the district court there are several errors in their recitation right act what what's the correct correct correct is that o'keefe was there in the room talking to mr hoffa when stewart says he saw the phone that's based on stewart's statement based stewart statement stewart statement o'keefe statement do not match up and the judge decides which one is more or less confused than the other certainly it's a commonplace of district court testimony that people are simply confused and sometimes the district court has to make a determination of is it more plausible that they're confused or is it more plausible that they're all why maybe he made the wrong choice or the district court made a decision that they wanted to believe that testify about it being in plain view of he just testified that he did not root through the stressor that didn't have drawers but had the separators and you can see in the district court summary of the fact it discounting as unbelievable that this dresser might have been moved without its doors and that therefore you can't believe this testimony but so much of the richards testimony is eventually either confirmed by the police or the police say well you know i don't really remember that might have happened the way she said i don't want to say it did not aside from the cell phone was i did not root through these clothes in the stressor it was out in plain view and so that it is the crux of the case who you believe in because of the inconsistency and the lack of memory in these officers and i think your honour's have all seen cases that were a year or two old at the time of testimony where officers had remarkably detailed memories of what happened where and when you point us to any case in which our court has set aside just a court to credibility determination in a criminal case united states versus calvin johnson judge boggs wrote the opinion the advantage in mr johnson's case was there was a police videos a car stopped and about we're just dueling witnesses dueling witnesses not that come to mind and i think we have the issue where you know juries are instructed not to give police officers testimony greater weight but that our system routinely does well this is a district judge  actually district court judge did hear the motion to suppress i apologize but yes this is an issue where we're saying the police officers are not being candid with the court about where and i mean what is our standard of review i mean what what what do you have to show in order for us to set aside a district court credibility a term nation about doing witnesses at the court i balders their testimony testifying it is a clear error standard is just straight up clear yes as far as the factual determinations in a motion to suppress it is clear error well the factual determinations are one thing the credibility determinations another and they're also we in the light most likely to support the district court's decision there is that as well your honor and generally credibility determinations are deferred to the fact finder however when you have a situation like this where the officers testimony is suspect as it was in calvin johnson they're having the advantage of the video that belied some of the officers testimony you know this court is able and should in this case say the district court erred that it was clear air that even in viewing the light evidence in the light most favorable to the government that you know they should not have been believed about the cell phone being out in plain view and just to to recap the the key inconsistency is that is it whether stewart and o'keefe were together when stewart found it or whether they were not that is part of it your honor the other part is just the overall lack of memory of anything the other does plainview the steward ever say o'keefe was there when i found it yes that o'keefe was talking to hoffa he was asking where's the cell phone cell phone and stewart said it's right there so why are those two things because officer o'keefe testifies he was upstairs when the phone was found that he came back downstairs and some officer he doesn't is that when o'keefe says stewart gave it to him when he came back downstairs and you're reading and i guess we can read stewart's testimony because you with the way you put it was ok for says x and stewart i should look at on page id number two eighty it's page number thirty eight officer o'keefe testifies when i came back downstairs another officer had found a cell phone and collected there that phone i wasn't there and then on page seventy seven he says i was o'keefe i understand but you had the inconsistency would come if the way you related it stewart said it's right there immediately after o'keefe says where is the phone on pages on page one hundred five that is page id number three forty seven officer stewart testifies i'm wanting to think that detective a keith had asked mr hoffa if you had a phone i believe he told him no that he didn't and i might have made a comment i saw you on the phone through the window he doesn't remember hoffa said anything and then i'm standing there talking to him there might have been an end table or something next to the chair off for him o'keefe that is not clear i think it may have been hoffa and it was during that exchange with o'keefe and stewart that stewart saying he saw the stuff i'll read it for myself but so far you haven't said anything that absolutely says there couldn't be some time for o'keefe to go upstairs that's what i'll look at though that's that's your best part ok thank you  good morning may please the court my name is bill roache and i represent the united states the district court in this case did exactly what it what it was expected to do it listen to testimony from opposing witnesses examined those witnesses itself evaluated their manner of testifying it evaluated their behavior their character and evaluated the reasonable this of their testimony assess the credibility of the witnesses and it made factual findings in those credibility assessments it's factual findings are supported by the record and its decision should be a d in essence the defendant has not shown that his fourth amendment rights were violated based on the factual findings that the district court made and if the pa your honor on page three forty seven one zero five it's page id three forty seven this is officer stewart's testimony about seeing the phone on the table the government asks what did you do then he replies i think that's when o'keefe was talking to him being hoffa asking him if he had a phone and he said no and just visually looking i seen the phone that i had previously seen through the window so he's saying o'keefe is talking to and officer stewart sees the phone doesn't say you picked it up at that point but ok i get your point yes your honor so there is that contradiction along with all the other issues with their memory disk or have any other questions thank you we do not thank you counsel case will be submitted