you want to good morning again may please the court as i'm sure you know this is a civil rights action with my client mr smith who at the time was a nineteen year old african american youth who lived in the park hill section of staten island which may say not the higher interest rate i guess i should put it that way in any event he was arrested for offenses involving marijuana i would like the court to know that  at his arraignment approximately thirty hours after his arrest the richmond county d a s office so a fit to dismiss this case against him in its entirety certainly that's not the spa's would have on the issue of probable cause but i think it's an indication the defendants the city have sought to defend this case without any depositions they are trying to establish probable cause for mr smith's arrest through police reports i'd like to spend a couple minutes in a moment going through those reports one why by one i think the city tells us that it's it's brief that i am only questioning them because they might be inadmissible to trial i think there's more than that i think if you look at these reports they are incomplete they are inconclusive and at least in one instance i think they contradict themselves  stating the law correctly however i believe this is an exception in the federal rules of evidence if we can show meeting the plaintiff that there is something inadmissible with something unreliable about those police reports  you may be able to defeat that summary judgment motion relied upon by the city which is what we're appealing for so that state what it is that humans could be offered for the fact that they were made to the defendants  and were relevant to the probable cause inquiry how would you respond if i might your honor only take a moment of so i can go through those reports and try to explain to you what's wrong with them these do directing the court's attention to a twenty this was a case where they used information from a confidential informant to try to develop information leading to a search warrant which in turn was executed by the defendants themselves i think it's extremely important to know that mr smith the appellant the plaintiff and defendant the other on case was not inside that apartment when the warrant was executed the only way the defendants can link mr smith to the drugs that was supposedly found in the apartment is through the doctor of constructive possession that is isn't it isn't it that i mean if if if if those statements were made not for the or truth but simply to indicate that those statements were made to the defendant's  as relevant to the probable cause and karim the hearsay rule wouldn't be implicated when i think that's true but i think i can point out some things that may go to the weight afforded to these documents these police reports which might quote cause the court to disbelieve them these might or should have to i'm sorry or which might cause the court to disbelieve them or which of necessity require the court to do you want to i would not presume to tell you what you have to do i would strongly urge the court that these reports should be disbelieved please bear in mind that the individual who set this whole process in motion is a confidential informant he's a person who gets money for information about drugs and i've dealt with and sure you have sure you there that that's a report that they use to sort of set the stage about this whole thing which paragraph you two and three you're on or there's a bug i supposedly made on february thirteenth from an unnamed individual and then there's a buy on february fourteenth made by an unnamed and would you or from and then an individual there's no details given by this confidential informant as to description of the person he bought from his age his he's in sex his race nothing at all really i would also respectfully point out that if you page through skip me one second please here as as we're looking at these just the one of the underlying question or one of the questions i have about this is it appears to me that the supreme court over a long line of cases back from the sixty's which probable cause is concerned which is all that we're talking about here right we we know nothing about him really your honor it's oh he's he's he's engaged in a couple of successful buys according to the afa well this would strike me that the city if they were going to rely on that should say yes that there were eight buys and this is what happened to them there's no information at all about the prior work of this informant but there's there's information about the current work yes and if you look i'm almost out of time you to say something for a bottle i mean isn't this the kind of the kind of information that the u s supreme court as magistrate judges are allowed to rely on when they issue one yes they can but i don't think that this informant has given enough information to the police to make them reliable wouldn't give a description we need to search warrant based on that yes all right so one judge at least of this of the court has already found that there's probable cause again you want to have to well i'm out of time i'm sorry maybe i can deal with this on both of you please please finish your thought ok none of the normal indications of somebody being in constructive possession of an apartment or present here they never say that mr smith had it has any keys they never say that mr smith has his name on a lease as a matter of fact directing your attention to a twenty one the police do a background check on an apartment that's in paragraphs paragraph five there there is an indication that the utility bills in somebody else's name that's wingy and there's an indication that mr smith has no license there also seems to be an indication that four people not just one were arrested that day how this confidential informant could say with any certainty that this particular bedroom was the bedroom of mr smith is is really beyond me good morning your honor may i please the court and the grunberg representing the defendant officers the record in this case amply shows that the officers have probable cause to arrest smith for criminal possession of marijuana with regard to the identification of smith  before at the confidential informant conducted the two controlled by us from the apartment in question he did identify smith and two other suspects from a photo array and the presence of sergeant turn yassky who led the execution of the search warrant addition the nickname pop it was a nickname that we claim that smith had with his friends that was the nickname chosen by the confidential informant simply for the purpose of identifying smith confidentially  could your honor we know do we know why the charges against you know anything about why the charges were dismissed against smith on the series of events and the charges against him were also dismissed in that case however it's the there was nothing tying that specific person to the apartment here so the confidential informant didn't say all of these people all of these defendants lived in the apartment he specifically said there were three people who lived in the apartment and he drew the officers a diagram indicating which bedroom belong to which person and he had that information because he had gone into the apartment twice to execute these controlled by his from smith and from one other person and as your honor mentioned there are certain and disha reliability at this convention informant had in the past police executed at least eight search warrants and recovered narcotics based on his information a judge in a different case a prior case that examined him and found him reliable and also the circumstances that the officers confronted at the scene only posted his reliability they did find drugs and personnel in the apartment and they also found smith who the confidential informant had previously identified in a photo array as living in the apartment directly outside the building so there's nothing about the circumstances the officers confronted that might have led them to disbelieve the information they receive d with regard to the question of which crime smith was arrested for of course probable cause can go to any crime not just the crime on on the charging document but in this case he was arrested for fifty three criminal possession of marijuana which requires knowing an unlawful possession of twenty five grams or more which is approximately one ziploc bag of marijuana here officers found fifteen bags of apparent marijuana in the bedroom identified as belonging to smith so whether or not he was would have been guilty of possession of that amount of trial which is certainly not something that is an issue in this case there was probable cause to believe that that was over twenty paraphernalia indicating that the marijuana wasn't just stashed away it was being used and then of course the confidential informant stated that he in fact drugs from smith specifically on a previous occasion  and just with regard to the issue of whether there were depositions in this case and just to clarify below the defendants requested permission from the district court to move for summary judgment prior to the clo discovery and stress that here there was really no disputed issue of fact because all of the information that went to probable cause was given to the officers outside of smith's presence so it's hard to know what would be disputed the question was whether that know i hope this answers some of the city's arguments at least the arresting officer here is an individual by the name of daniel parents a lawyer who's at the time he was a police officer i think the person now the us thing officer  is sort of an amorphous thing we know from the search warrant pretty execution plan that he was designated as the arresting officer which means based on my experience that he certainly will complete all the police paperwork he may or may not be the person who physically takes charge of the arresting sergeant you're netsky seems to have a lot of information about this incident that but we have no indication that you on such internet ski gave an order to any given person also why didn't mr penton layo just say listen i put this fellow under arrest i was told by my sergeant to do so we have nothing to indicate that ok or if there was another officer who physically took charge of of mr smith he could have signed a very very simple affidavit we've made the allegation that this arrest without probable cause it now falls to the defendants to establish that it is and i'm running out of time here your honor but i just want to say briefly think i'm sure the courts experience most of these cases on not disposed of say what discovered you want and you didn't identify you didn't identify the discovery i think i think that is true but i also believe that would still be incumbent upon the city defendants to bring that evidence forward if they're going to defeat this motion with with just police reports that the complaint was filed on nov fourteenth yes and the defendants only move for summary judgment in february two thousand and sixteen gray i believe that's true yes and so you didn't seek to take any discovery for over a year is that correct well i think that we had rule twenty six disclosure which comprised at least the my view most of not all of the reports that were produced thank you thank you both your arguments the court will reserve decision thank you very much