right i think that clears things out our third case for this morning is actually re argument and muhammad against pearson so mr horowitz will hear from you first i think your honor may please the court the case is not particularly complicated at the end of the day the officer simply entered the wrong place and i think that the best way to illustrate why it is the officers and of the wrong place is to compare the search warrant in this case with other cases because it all boils down to the fourth member protections and the particularities mentioned in the affidavit for the search warrant or the search for so in this case all that's mentioned relative to the search for that the judge was made aware of is one sentence or the sentences thirty to thirty six east ninety second street apartment number one in chicago illinois that's what the judge was given ok and if we compare that to all the other cases cited by by us by the responded that it's very the type of detail that's provided in these other cases where there was let's say an exception provided for  mistake which in this case all boils down to the general concept of mistake errors and in an innocent mistake of the officer that sort of thing in the united states versus mcmillan case for example i'm going to read to you what the search warrant said where the court allowed the air or a single family ranch south side of darnell avenue ten in color would material brick material in lower portion no i understand your point that there's a lot of detail what about maryland against garrison where the search warrant says an apartment of twenty thirty six park avenue third floor and it turns out that there are two apartments on the third floor of twenty thirty six park avenue find cases such as the ones you're talking about where there's a lot of detail but you can certainly find cases where the courts say this is just a mistaken description the executing officers knew and there's  contemporaneous record showing that the executing officers knew which place to go so i guess with respect to the latter part of that the i'm with you on the idea that a year and some later for an officer just to elaborate without limit on what he knew is very troublesome but we do have the leeds database search and we do have the d confliction submission which are date but there's a plethora of cases i just read to you that the the supreme court upheld so why aren't describing the apartment as twenty thirty six park avenue third floor and it turns out that's not a singular place there are two apartments on the third floor at that address and they actually as perhaps happened in this case they end up searching the wrong one they end up sort the police end up searching the apartment of the person not the target and the supreme court says you know this wasn't a very good description but the error does not invalidate a warrant they say that undoubtedly would have been valid if it had reflected a completely accurate understanding of the buildings floor plan so it only just looks a lot like your case to me can i respond to that in my reply ok certainly i was there goes my guess is it's going to turn on the exact language but it was a subject matter  cases another officer would have to take the warrant pick it up and say he knows which apartment to go into that's what the seventh circuit has said the seventh circuit has stated that there can be no chance that another apartment or makes a mistake relative to some minor issue let's call the numbering sequence the number for the address but there's only one house with a pink door at the end of the called a sec there's no mistake right now i understand that case the fact that the address number might have been typed incorrectly is just one fact and you look at the whole thing the pink door may be enough to resolve all doubt let me ask another question we have the confidential informant looking at the picture karr and saying yeah you know looks like the right person but are the officers looking for mr karr or are they looking for the drug dealer well the the search the search one affidavit and search warrant stated jamison car so what's peculiar about the case is that the officer looked at the photograph and said i'm looking for jamison car showed to the cia right and then he walks in and then he arrests an african american young man who he knows is not jamison talking in bed he's lying down when they first see him with the girlfriend i think he was in the room yes and so but at the end of the day at the end of the day the relevant component is that he looks at an african american male and he already just looked at this photograph of jamison car and showed it to the cia an old photograph right i don't think you are so ok and so but at the end of the day he saw the photograph and then he brings this man who was not jamison a car a photograph that he saw down to the police station to only confirm the same thing which is an example of i thought they let him loose at the police station because he  another exception to entry in there's a plain view exception there's probable cause for something else but at the end of the day he was not jamison car they arrested him for jamison car and that's that so the same thing that's on at the police station which they brought him down for which he was subject matter of the search warrant the the wrong guy which is exactly the problem with the scenario so i'll get back here on a relative to what the supreme court stated but there's too many other seven circuit opinions which have simply stated over and over and over again that particularity is required but this is not a strict liability regime and the real question is kind of a counterfactual right is even though we now know that in the state was made we will assume that mistake was made at the time when the police think that one aide is the apartment they're supposed to go into based on a search warrant that says hartmann number one is there probable cause to do they are they reasonable thinking this is ok know we're we're dealing with civil liability as well the i can tell you there are three police officers who testified in this case and each police officer said no we should have entered each chicago police officer knew very clearly what the rules were and that they should not have entered and those are officers pursue ski salazar and blessing and if one looks at dhaka number one of five it's the our additional statement a fax number eighteen through twenty two because we must consider with clarity what we're dealing with we're dealing with multi unit well the most you know drawings are all over the city of chicago millions of people live in multiple units while these now if an officer doesn't say one way and one b if we look at these cases where the particularity is described with regards to the tone that the color of the brick the type of roof the type of driveway where the numbers are situated in the address we want look at that level of particulary now we meet there's sort of some strange evidence about c i point to that particular apartment that side of the building where did the c i just certain generally refer to the building that's it's a c i really did where we just look at being up to being a citizen in the city of chicago in a multi unit whiling many of which are people with now lot of means they just happen to be there and many of them live in apartment one day one b one c one d one week they're all open season because that's the because a police officer can go to a judge and say he pointed to an apartment just an apartment and now the officer is off the hook when there's five different places that he can choose ok and so i don't think this is where we would want to go for officers as as a relates to relations with police officers and citizens and i think people want to be secure in their their person and their home and obviously the for the meme is a fundamental right was entitled to qualified immunity so so here's what really worries me about your side of things is what i alluded to mr horwitz we have of course the complaint for the search warrant and we have the search warrant thick i guess i will say and i'm very worried about a regime under which months or possibly years later an officer can say well even though it's not in the complaint i in my own mind knew all of these other things too and i was the executing officer and so therefore there's no problem i think the risk of embellishing the background for a warrant is unacceptable in a situation like that so lots of facts here come in that way officer pearson for example in his testimony talks about the cia saying that the pregnant girlfriend lives with very great that somebody whether officer pearson or another person could just make these things up that it fails the test of saying you've thought it was says these things a well i don't know that there is such a rule that says you have to assess things at the time i haven't seen such a rule in court we do have that and in the complaint for sure warrant that was sworn to by officer pierson is the statement that he drove the c i to the building where she quote pointed to the apart the apartment and identify whether it's the easter the west apartment she just i'm looking at right now everything pointed to the apartment at thirty two thirty six ninety second street and identified it as the apartment where c i met the individual jamison car a k mama so i don't know how i read that even if you've argued it's a singular apartment ok fine it's a singular apartment i don't know whether it's the east or the west or the first floor the third floor or whatever else reading that well i wouldn't think that would matter i mean it's long as ultimately the apartment that searched is the one that she pointed to how ever it got to be that we don't know that i mean it's i mean there are cases where it's on the left hand side of the corridor but that turns out to depend on whether you take the front of the back stairs of course the only way you could ever know that is after the fact and whether or not the there's evidence to the effect that that was the apartment that was searched that in fact that was the apartment that was searched and if there is one contradicted testimony to that effect but let me go  back your honor correctly pointed out that there was a de confliction submission that was made prior to the search right and in that the confliction submission the apartment to the apartment number listed was one a the  inquiry that tracy lived in apartment number one ed and the reason that priest the reason he knew that tracy lived in an apartment one a it was the testimony that was  obtained during the discovery in this case that the c i when he met originally met with the c i told him that the drug sale was made in a specific apartment in that building the same apartment that he drove  to that tracy was a resident of that apartment that the girlfriend was the pregnant girlfriend none of this is in the complaint doesn't that strike you as a problem i mean in the issuing judge has no idea warrant that had apartment number one a on one on it was incorrect in absolutely was incorrect it's a defective right but he also saw the warrant and in the warrant the statement about that you just read a minute ago about the officer driving the c i to the building and pointing to the apartment was made and we know how we got to want to say because and we know that the officer was bound essentially balland to search one  debase that listed tracy as living in the apartment and of course he knew that tracy was a person who lived in the apartment from the conversation that we later learned from in discovery in this case and we also plea would be helpful to now under your theory could anybody any police officer other than officer pearson have executed this warrant lawfully i think not ok that's troubling right i don't think so he didn't use the wanted to shoot it and there's lots of cases that we cite in our brief in which the connection that made that it in which the conclusion that a warrant was valid was that a specific officer who had was involved in pre surgery activity knew which apartment there was and was present either was the executing officer or was present when the execution i'd frankly share chief judge w concerned about the after the fact explanation i can imagine another officer for example taking this war and searching apartment one  b things go badly for the police there i mean year later in civil litigation an explanation is provided that says a one b is the one we really wanted frankly your best evidence is probably the but it seems to me the fact that the two men don't look alike mean there are several inches different in height they're considerably different age of twenty one year old doesn't look like a twenty eight year old right  but but they don't argue that that the that that's a problem with respect to the search what what happens is i just didn't get it i thought they were saying you know he looks at the picture of car and apartment based on the information that we've talked about now the moment they entered the apartment obviously the officer pierson recognized that there was a potential problem with the  with whether or not the male who was in bed with a pregnant girlfriend a fact as i'm saying is completely it's not the dea confliction it's not leads it's nowhere he makes it up later right i mean he isn't that well i agree to the make it up later there's no reason to believe disbelieve the officer who who has who who's testifying under oath to all these things particularly sense among the other facts that he testif to later in the in discovery in this case is that tracy was a person in the apartment that led to the beacon that that and that's ultimately wish the reason that in the di confliction submission that was submitted prior to the search apartment one a which the apartment listed that's a validation point of the warrant requirement is to throw some sunshine on police procedures you know we could just dispense with it altogether if it wasn't in the fourth amendment and if we wanted to and some people have said what's the point you know judges all rubber stamp warrants anyway and i accuse him of doing that but they tend to you know expect from the police a decent complaint or affidavit or whatever the jurisdiction wants to call it supporting the warrant but the issuing judge has it right to expect that all of the relevant information supporting the warrant is in front of the judge something as critical as who is it and what's the number of the apartment unit i think it's pretty central well the  apartment that was searched was apartment one day and that he had valid reasons for believing that it was one a reasons that track to two matters in the record that don't depend on his test chains and in this record is there any way for us to just look at them i can't remember whether they are finding that maybe i can't remember where they are but it's very clear that  i think that the the the problem in this case was that the c i when shown a picture in the police files that's what the record says police files to the police after j machine car from that building just the building not listing any apartment number or anything from the building sheesh he showed it to the c i and the c and said is this the person and she said yes that was very clear i think when he also said all these other things that we mentioned namely that the drug transaction was with the pregnant with not only mobile but the pregnant girlfriend that tracy lived in the building after then information now and i think now his nickname is mo when they watch in the bedroom no but they know but it's one contradicted from evidence other that that's not knowledge that they're drawing no and when when when and to be sure when officer pierson entered the apartment and he saw the male in bed with the pregnant girlfriend he recognized that there was a problem with the identification but a reasonable officer in his position would clicked would have understood immediately what the problem was and that the problem was that the c i was incorrect when she said that's money does that give you even arguable probable cause to arrest the guy well not everybody else was subject to the arrest the shirts continued a reasonable officer would i think they find nothing serves the reason why officer would have allowed the search to continue the other people were not arrested at all they were simply detained during the search which is a lawful thing to do during a valid search and and then they did arrest muhammad now they had reason to arrest muhammad on a on a charge unrelated to the to the bullets that were found the ammunition that was found in in the apartment they  had basis to arrest mom and on the basis of the cia's statement to to officer pearson that the drug transaction had occurred in the apartment and the person who was the star was named relying on well we know after the fact that that show when they got at the moment they're standing there in the bedroom you're saying they're not arresting because at the end they don't well i'm asking you do they know that his nickname is not with that point or they just saying well we know drug dealing was happening in this apartment let's arrest this i don't know when during the course of the search they learned that it was mo we do know through discovery that people other than officer pearson other seller was a pregnant girlfriend that that tracy lived in the apartment and all those things were corroborated when they actually entered the apartment there was a traci there was a pregnant girlfriend who was in bed with a male named mohammad whose nickname later we learned his mother all those things are supported so we know after the fact that the that the hartmann that was searched was of the correct apartment even though it was incorrectly listed on the so as to the last statement that they knew it was one a car family which was the subject matter of the search warrant was identified on the bell as one b so it is impossible to say and reconcile that issue as a possible to say that therefore they know that it was one a do we know which door the police went through they went through the front door i'm sorry they  rammed i think they ran through the back of the right i don't know who the make a difference what was on the mailbox or the bill depending on which door the police entered the officer states that he performed a significant best a geisha and before engaging in this before ultimately submitting the information to the court for the f d a for a search warrant and perform an investigation it's the interesting quality about it is that the object of the investigation is in one b so yes it should it's important that both the name into wine is the name on the one the mailbox so when one examines all this post hoc information for example if we're going to engage in an analysis as to whether the postdoc information is it is relevant inquiry which i submit it's not relevant at all it's what goes to the judge that's what all the cases say than what's clear is that one cannot say wait a minute it's obvious they got the right apartment it's not obvious they got the right approach they got the wrong apartment at there's no they didn't arrest him they didn't and the only rest of temporarily that they got the wrong guy and that's that so with regard to your honor's question about maryland versus kerrison first of all to nine hundred eighty seven supreme court case there's a plethora of seventh circuit cases which have construed  garrus and meaningfully and have interpreted and explained it but regardless in garrison the distinction is not what i was going to before which is the quality of the search warrant how specific it is but it's in that case the court says if the court if the officers knew when they entered before when they secured the search warrant if they knew that there was more than one apartment on the third floor then they must put that information down in that case they found the officers did not know ok so that would be a search warrant identif just want to leave with the underlying importance of two things number one that one of the things argued by counsel was that it was ok to arrest marcus muhammad that the similarity is african american  again multifamily dwellings they are at risk if the trial court's decision is appelle because a officer can omit maybe he knew about the car information on one b and we haven't heard about that yet he can omit that from the trial court or he can get other information from the trial court but the rule is you have the information then you give it to him the day conflicts and you give it to the judge and let the judge make a decision and you can't deviate from that because of the fundamental right protections of the fourth minute stick to what the judge orders you to do only and that's the rule that's what the seventh circuit i said and it's important to make sure that individuals that are living in multi unit dwellings are not at risk because there is a one a one b one c one d component to where they live thank you all right thanks very much thanks to you as well we will take right our fourth case for this