next matter on our calendar is master of monaco versus county of westchester and others forty five mr master monaco's been in police custody since seven o'clock the night before it's our contention that he needed no medical treatment but in all advance the medical treatment that he was allegedly receiving on friday morning had come to an end the town court in the town of cortland the justice court was open it was open for arraignment mr master monaco was handcuffed to the bed in the emergency department at the hospital even though he was no longer getting any treatment he was not take in to quote the proper court under the new york state law he was put it was never sent to the sec yet rick part of  or the nd floor of the west wing where the psychiatry department may or may not be i also suggest to you that the referent the repeated references in the appellate brief actually make out our case because the police did not because they mentioned the they rely heavily on a diagnosis of which i don't know where they get that from but the police did not send him to the behavioral health center did they not send him where you take people who you believe have a mental disturbance they took him to the medical center for medical treatment a range at the reason isn't there arguable argue no probable cause sufficient to give rise to qualified immunity in what the police did i mean this is not a simple case of an arrest or something of that sort it is somebody who the police have a reason to believe has some problems and do we want to keep the police from doing if i may respond the or the argument with respect to qualified immunity for these police officers has to end around one o'clock in the morning that's about that's before in the morning prior to this after that point all of the officers that are named defendants here and i do post every single officer at his bedside on that post every single supervisor after that and you look in the of the appellate brief today the responses we don't know we don't know who say was open and he was no longer in the emergency unit what did they do with him then thank you sir and i will if that if you would forgive me and just allow me to just make my last point is your last be your last point was right on it's my position here that you can not say it wasn't me i wasn't involved and then still less this court for qualified immunity under qualified immunity you have to step up and say yes i've made those decisions but i was i was correct or was close enough and you tell me that you didn't answer my question not that anyone happened at that time what did they do with your client absolutely nothing and i suggest nothing when you say the police did nothing they kept him him handcuffed add a bed in the emergency department he was not receiving treatment and he was not brought before a judge he was just sitting there and was kept going and it was arraigned about five thirty pm six o'clock at night that's a full five hours later ok there was an entire afternoon that they should have brought him to the proper court and had they based on the mind the minor charges he would have been out the door and that's why did they keep him and i mean he was in home to the local judge where was local family would have been there at the arraignment and based on the minor charges they they would have he would have been released and given a court date they wanted him because they thought he was acting like an asshole they wanted make sure he spent that weekend in thousand so what i'm suggesting to you sir is you don't get qualified immunity when you can't prove what you did with the defendant it shouldn't be plaintiff i'm sorry it shouldn't be the plaintiff's burden to thank you it shouldn't be the plaintiff's burden to prove what they did with him and then they alternately violated your one thousand nine hundred and ninety eight decision by calling in a judge without authority to read them just to ensure that you spent the weekend the good there are ten different factors that show the ill will it's and  with respect to the initial detention in this case the appellate e s constantly rely on disputed facts the big the there was no mare awana smoked in that vehicle smell that even if it's i mean you know let me say this or i specifically asked sergeant pavone whether it's smelled like the smell the you did this the different smell of burnt meaning smoked marijuana and is i followed up with that and his answer is in the brief he said burnt smoked marijuana now that's what he insisted he smelled that that is a dead issue and that it was relied on by the district court for the for in the vehicle this alleged roaches that are in the ashtray that the sergeant claims he saw were never tested yes the marijuana in the tree in the frisbee was tested there is a lab report for marijuana in the frisbee but this alleged these alleged roaches that he saw in the ashtray were never tested they were picked up but not tested they were picked up they are still in the county police headquarters they are they are in the evidence locker they were never tested they do not have roaches were knowing the difference between smoked marijuana and plain marijuana well i mean let's say a policeman said i smelled smoke marijuana and it wasn't smoke but it was plain marijuana does vet mean the policeman is not smelling something well i don't know because i don't know anything about that i specifically asked him that he wanted to make clear that he his testimony was clear as to what he smelled that he clearly said this vote so yes plaintiffs and the and the other occupant of the vehicle said that there was nothing smoked in there the they said there was marijuana in the car much later they found marijuana in the car yes on smoked marijuana spread take to his what they were smoking in those big degrees for a while because it gave him the effect of marijuana and it was legal until they caught on and they outlawed it k two i suggest to you that the key to further supports the plaintiffs claim that pavone is full of it when he says he smelled burnt smoked marijuana why in the world would say they were worried about k two we are right but do it do someone who smoking marijuana doesn't not smoked it's just ingested i believe it's smoked but it's not and there's no marijuana in k to that's the fun of it it was legal and bodegas for a short period of time and it gave those people the feeling of smell want to i submit to you that the key to argument mcnulty supports plaintiffs claim that there's that that did not smell of the appendix the hospital records show that when he got to the hospital this was sometime at one forty five in the morning of the member th he was threatening staff he was altered mental status exhibiting paranoid behavior he was without decision making authority they contacted his father who told the hospital he smoked pot every day and had a psychiatric issue what they did in the records will show you they did tests they did a cat scan they were concerned about this behavior they did a series of tests in the emergency room and while he was in observation between one forty five in the morning and you know what it's like an emergency room until twelve forty five pm when he was in fact this charge the psychiatric  the of the medical records that he was just charged to the hospital psychiatric unit know that he wasn't getting any treatment well i think they were concerned about his behavior and he was had a diagnosis of schizophrenia i don't know what we don't know what treatment he had there's nothing in the record to show what treatment he had was going to ask you or if we find it was arguable probable cause for the stop does that protect the awful detention claim or not i think you have to look at each day separately the answer is it doesn't protect i think i think it does from the point on but i think i also think the record is very clear that once he's in the quote custody or being cared for at the hospital that is almost a separate issue to be looked at and that's a separate claim and i think there's no basis for that claim because that's the merits i'm asking whether probable cause which most of the other claims that like to come to an important point if i may the question of when he was arraigned because the appellant's counsel claimed he wasn't arraigned until he was just charge from the hospital at five hundred and twenty two into the custody of the county jail his arraignment took place while he was in the emergency room and that is reflected at page five hundred and forty nine in the record where judge ponzi writes in fact possible psychiatric issues and drug issues arranged in the emergency room  time was that we know would had to be before twelve forty five pm because that's when he was discharged from the emergency room to the psychiatric unit so it had to be before twelve forty five pm well within the timeframe that is reasonable print arraignment about eighteen hours rather than forty eight hours if i may i would like to go to this issue of the fact that he was arraigned by the town judge of mt pleasant there's absolutely no evidence in the record that the police officers called judge ponzi to get him to come there because he was in he was it because they wanted to keep the plaintiff in the hospital judge punch and he was deposed and he testified for twenty years it's been the procedure in westchester county arraignments in the jail which is in the town of mt pleasant for him to do arraignments and that is permitted by the c p l are one hundred and seventy point one five one which judge her said he relied upon in his decision the hospital in the heart to be a right to be arranged in the hospital because someone cannot be brought to the local court if you're being in the hospital being observed or being cared for this is one of his side lines just as he would arrange people in the hospital you know it's part of his a criminal procedure law new york these are special circumstances where a judge can arraign an individual who is not where the accusatory instrument is not returnable in that court and loud like to turn to the issue of the owner of marijuana and the plaintiff claims callus counsel claims that there is a basis here to find a material issue of fact because the plaintiff claims there was no odor of marijuana in the car and the passenger crimes they were in smoking but what the passenger did testify very clearly and that's it page three hundred and ninety three of the record mr leeper testified that there was and when he got in the car there was an odor of accepted is because flatly contradicted by the record so also contradicted by the fact that when he went to the medical center and they tested him he tested positive for marijuana but more importantly his own passenger testified the car smells of marijuana  said and is vet something we should pay attention to as the difference between two and frankly i have no idea but if they are of a smell of the same  that makes any difference if there is a significant difference we may have a problem i respectfully submit i don't think there's a significant difference between the smell of burnt marijuana or the smell of marijuana in addition with mr lee but also testified was that he believed when he got in the car that mr that the plaintiff had been smoking marijuana in the way he acted he talked about the plaintiff having glassy eyes you can read that in his deposition it's about pages three  dollars about four a one in the regular getting into something which is disputed it's not disputed except for the plaintiff's own self serving testimony in that you don't have to accept that under the law let's go back to the was criminal activity in the past vandalism that criminal mischief racing to the lot so he drives through the lot he sees a car away from the athletic fields with the or with the engine running away from everything  engine running in an area that's high that that is known to have criminal activity is you have to go over to the car and talk to them i believe that would be enough at that point case that says that it's enough  keep the heater on or the radio i only november th but it's not a crime that's what i'm after is and have to be a crime it just has to be reasonable suspicion what what we're used to both suspicion does he have just because the car is in a parking lot  crime area and it's running so far things that i myself have done what makes it what gives the police officer and he a right to talk to them and then he approaches the car and the car tries to drive  away i think that's an additional fact i know i've read you're just you're just send us the santal i know there's a conflict in that case the police relied soley on a furtive looks here they were looking down too but that's not the only factor that provoked and relied upon we relied upon all these factors and i respectfully submit under the nd circuit standards for reasonable suspicion is articulated in us v bell and cormier here it was you look at the circumstances through the eyes of a reasonable and cautious police officer i think he was being cautious this was a very brief stop it escalated very quickly once the window rolled down and he smelled whether it was marijuana or marijuana and when the plaintiff started exhibiting bizarre  thank you both very much