polly the district court erred when it denied the motion to suppress under franks v delaware because the police detective in this case made false statements and emitted materially important information about informant credibility and reckless to cirque ard of whether the magistrate would be misled this case is indistinguishable from this court's opinion and united states versus law from two thousand and sixteen the rule of law and other cases is that when a police officer uses information in a warrant affidavit from a source that the police officer knows has lied to the police and particularly about the crime being investigated and about which that's the subject of the warrant it is reckless omission under franks and lol as a matter of law not to advise the magistrate of that informant's credibility problems this is a quote from page one hundred and eighteen when the information forming the basis for probable cause comes from an informant the informants  sorry the officer in this case adverse to the risk is that a personal knowledge requirement that is must she recognized to herself by omitting this i'm likely to miss it's possible i will mislead  not think that there is a person recklessness i'm not sure i understand your question or it's not a gross negligence standard it's a recklessness standard but i'm not sure i understand your honest question she does not i mean it's not intentional standard it's if it's the circumstance of the visitation only mislead means i know this will be misleading detective howard put in the statement that blunt provided information found to be credible and that isn't true statement because he  location of the clothes and he'll reveal the location of the gun both of which proved to be accurate so your honor just going to let me finish she's her intent was to indicate that that testimony which she revealed about the clothes and the gun was accurate now she did not put in the fact that blunt had told a different story when he st started talking to or which would go to his overall credibility but she did reveal that the evidence he provided on which she was relying on was accurate and that in fact was true and so does court went through this in at quite some l interrupt for just one second i think it is and perhaps it would help your argument if you would tell us what she intentionally or what she recklessly withheld it seems to me that she knew  hew knew that blunt had committed the robberies she knew he was in the rock in the pharmacy during the rd robbery ok she knew that he had lied about the purple gun in the defendant was incarcerated during robberies one in two she didn't give in so blunt said that he had that the defendant had participated in all these robbery so she knew that blunt was lying about we should use three things were there other things in the record that she knew blunt was lying about that you could bring to our attention right so thank you judge kane and that's sort of that several of the things i was i was about to say and  this is why the recklessness intent of judge detective howard is exactly like or perhaps worse than that of investigator welch and lowell is because in these facts and other facts that i will that i will bring up judge keenan she you search the lol and franks and gates the role of the magistrate to do is to determine which parts of the statements are credible and non credible and so this is again a quote from well deeming the informant reliable for some purse of purposes but unreliable for others is an did that even though they had him doing it on video is worse than the informant in law pocketing the twenty dollars of by money because the gun was used in the robbery and so it is inherent in the robbery transaction even more so than the twenty dollars a by money in law and that's why this case is controlled by law much as stealing the by money made the informant in the law all unreliable and something that the magistrate should have been able to consider  considering the real then formants reliability darryl blunt lied to the police about hiding the gun used in the robbery in the holding cell at the jail during his interrogation by the police and lied to the police about that and so to check to power you served the role of the magistrate judge by not allowing the magistrate to consider that as part of his credibility determination so it was the lying to the police about the gun that he lied to the police about rebuttal and she said that she definitely more likely than not knew about the gun as well that's finding a gun in the holding cell is certainly a major incident of the thing she said she more likely than not knew about the gun as it happened  as long as it's the investigative team it's not every law enforcement officer in norfolk but as long as the investigative team knows under united states versus loud bell that is sufficient for a misleading warrant affidavit and these these officers are all part of the investigative team and there's going to follow question judge davis it was observed as a very thorough job but i think he left one gap here and that is he made a finding on intentionality but he only addressed reckless disregard with regard to the single issue of whether the defendant was in jail during the st two robberies he said that the police officer officer is that evidence is there anything in the judge's ruling that addresses reckless disregard other than the information regarding the defendant's incarceration during the st two robberies i agree with that analysis guess i've been thinking about this question because i'm sort of a structure a structured analysis type person as well and i think the court in law will itself found reckless disregard i think particularly because it's not a finding of intent intent to get back to the sort of tort law i certainly think it's an option your honor and to be frank and to be clear eyed this shouldn't matter to the legal analysis my client has already finished serving his jail sentence and so it wouldn't actually make a difference in that regard if you do want to remand because he's already out but i think i think if anything the reckless disregard in this case because of the four omissions and because of the hiding of the gun used in the robbery to me that's more agree just on the twenty dollars than by money just because there are four dollars of them so i think if the court wanted to it could find reckless disregard as a matter of law just  of misleading and i think it does answer a judge he has question which is i think it's essential we actually know what reckless meat in this contest so your honor i think that's why i you know i don't want to say that it's gross negligence because i don't think that's what recklessness means but it's not it's clearly not intentional intent to use a you know terrible phrase understanding reckless but it's a bird to choose to run the risk in most circumstances and the question is in some torn circumstances we let gross gross negligence truly gross negligence stand in his recklessness because we can't believe it would not have crossed the person's mind and so my question is is this a funny that it did or did not is that it have to enter the risk have to enter her mind or not it's i think your honor if i may offer if i may offer  to go back to law because you know it's so rare for me to have a case that's there that i think is on all fours like so closely on force with such a fact based case there's there's there's a but there's several quotes i'm not going to review all of them especially because i see my opening time is about to expire there's there's a bunch of language again in pages it's  and sixteen and one hundred and eighteen of law that say things like should have been obvious to invest to investigate her while she and he would every reasonable person would know the magistrate would want to know that there's a lot of language that whether your honor wants to decide that it's a gross gross negligence standard or adverted to the rest or you know that's for your honour's to decide but all of these should have known should have been obvious must have known whatever they are i think they can they get to reckless disregard for misleading the magistrate which is the standard from franks and that that you know i would say that mr kelly i'm not asking for a new rule i'm really just asking this court to enforce the rule that has already been already been and what about the district courts alter d additional ruling that it wasn't is on page one hundred and eighteen dollars of the wall decision that when the magistrate has been misled about informant credibility the remedy under law which is on page twenty team is to it's not to add the information about the informant credibility problem the remedy under law is to excise every piece of information from the warrant that came from the from the informant which in this case is darrell klein and so except some of that information that's the big distinction between law and this law was focusing in on the credibility of an informant this case was not this case was focusing on the credibility of some evidence provided by the defendant that evidence proved to be true and so the real question then is you can't exclude that as a as a prophylactic rule because they there was no decision that he's a credible man well said the attorney matter he was tracing we can you know let me finish please there was a trace in evidence in this case from various different sources and the court was fully persuaded by the carefulness of the detective and her credibility and it seems to me that if you put in everything in this case and not  ete the whole evidence that blunt provided because some of it was actually true then you have the materiality find in the district court made and i don't know how you get around that either so that's the judge by and law actually happened and so that is the argument that was made in law that the law court actually rejected the pocketing of the by money happened after the drug deal is complete and so that does not distinguish this case from lyle in any respect  because the government in law actually made that argument that that there was no reason to to because the popping of the by many with after the person managed to buy the drugs from the defendant that there was no reason to to that that the two things were separate and the court rejected that argument excised all of the information that comes from that from the informant his credibility the magistrate has not had the chance to judge because it's about protecting the structure like the separation of powers role of the magistrate being the person who gets to the government and the defendant disagree about two fundamental questions the color of the entire case the st is what kinds of warrants are these and the nd is is don't rule in law all as broad as the defendant the police can do one of two facts one thing they can do is try to ultra's the veracity of the accuser and in that kind of change the engine in the war that is creating probable cause is to choose one is of dispute and that's what happens in most drug cases involving some potential one but the other thing the police can do is they can go out and they try to cooperate the accusation only independent of the credibility of the person making it and the defendant keeps trying to least four way right way number one i don't want receives a phone call from credit only at the exact moment he is caught on camera during robberies number two the victim in that robbery he what here what information do we have here we have the phone calls we have the phone call during the rd robbery and the phone call before and after the th robbery ok what else do we have here this independently verify we also have the statement during the robbery number three that what darryl blunt said to the person on the phone is we're good in here we're good here indicating it's the transition team been having a little bit of trouble keeping up with you i appreciate that your honor and i will do so the statement that what mr blunt said during the robbery is we're going to hear indicating that he was speaking to an accomplice or a coconspirator came from the victim of that rock so that's also independent and the last thing is the cloak and i want to touch on the clothing for exactly the reason judge meyers mention which means after she had sworn out a residential service and contrary to my friend i think this court made quite clear in mass and further that the collective knowledge doctrine does not apply in the search warrant context like car this is it jay eighty said it's in her notes so part of the reason she says repeatedly as she testify i didn't think who discarded the clothing not is because what she had in your concern about the firearms with an example where i think we might lose there are some cases where the warrant affidavit rests on the notion that somebody has made a statement against interest when they confess to acquit so imagine this affidavit with no independent corroboration so now it looks like law all developed one had come in and said you know what i'm going to give it up i confess i did these robberies but so did my friend greg and detective howard had left out the false statement about because i might lose in that case but the reason that i would lose is because that's an affidavit that turns on the credibility of the speaker what the police officer is saying and that kind of case is job one has given it up he's cut the nonsense he's not cooperating you should and if in the exact same interview he lives obviously a reasonable person would understand that that would go towards undermining probable cause but judge meyers this gets to your point about what is re what the court said in miller against prince george's county is that recklessness in this context is knowledge that leaving the statement out will render the affidavit ruffed of probable cause and i agree with you when chief judge davis made his credibility finding at page six hundred and fifty two of the appendix and he said i've listened to detective howard testify for four hours and she absolutely did not very judicial loyally job of just marching through everything on intentionality and then starting with and specifically addressing reckless disregard leaving out the information on that the defendant had been ripped incarcerated sworn into but then kind of dropped the ball on robberies when an address to the information with regard to the reckless disregard analysis and you're saying that didn't really happen because he said he believed the officer in other words following way the reason detective howard was not being reckless is because she was absolutely convinced she was writing an affidavit based on independent corroboration not the sentence is given the way the circuit has defined recklessness at most on this record i think the court could say if it decided that this for operation of his wasn't strong which i disagree with but i think the most  actual knowledge of the risk of misleading and disagree guarding it and it seems to me that when you are totally innocent of any effort to mislead you're not knowledgeable of a risk that you will be misleading and not paying attention to the risk i agree completely and i think that an application of the definition and there was a young let me ask you question about materiality  time i read through the briefs this kind of kind of flew off the page for me when when i returned to judge davis's argue opinion he seemed to be analyzing materiality in incremental that rather than the materiality collectively does that make a difference here i don't think it does your clock and i don't think it does because i don't think this is a case where the low remedy is appropriate in other words first even the in the lol sphere the has to be no evidence of corroboration it's not even a local faith unless there's no evidence of corroboration and here the evidence for operation is the nd point that i would make about mall is that if the rule in law were as my colleague argue lol would be a much shorter but instead what happens is that the panel in lawful drops a footnote to this court's opinion clothing i'm sorry to speed is not could i let me try to switch microphones your honor maybe that will help ok it looks like she she got had possession of the purple gun it was turned over to her on october credibility i mean he'd he'd denied participation in the robbery and he in fact had in his possession the gun from the th robbery and that's not material i think i might lose because of the i guess i guess our disagreement is how much corroboration is near in this case seems like really being only for operation you've got are those phone calls right but i do i think if i can just call five the issue i think the says where the gun is that turns out to be true information and she finds that out she does not rely on the fact that independently he's credible about things that are not cooperated and he doesn't  you she doesn't lie anywhere on this credibility she did this with lies on the information he provided that had been corroborated and i'm sick she things about that in response to church you know your question because i completely understand the courts the st thing that i would say is in testifies and he gets into a back and forth with the chief judge statements in which he says look your honor i've been a detective in norbert twelve years we do not do search warrants like we were in a drug you know we do not train our people that they are trying to bolster the truthfulness of the people providing information we train our people to independently corroborate the evidence that they get and that's the reason that detective howard is is core to the way we approach our business and i think that means one of two things is happening here right either the entire subdivision for ginia approach is wrong as a matter of law here i sit here saying that yes so you're saying and i don't mean to cut you off but i  example that i would give your honor and the court may group me on this may not imagine the same facts so they know what's involved in one of the rockets but one asks for a lawyer immediately and he never talks to let's if the next public calls darryl what during a robbery and robbery where he's obviously speaking to an accomplice and then block calls him book or an outer the or operator i would think that's enough and here we have the clothing on top of that and for the reasons we don't think the clothing is open up so i think your honor i just disagree about the strength of the corroboration here i think when you if i understand you mr i think what you're saying is that mr blunt's credibility was never relied on because no statement he made was relied on except to the extent it led to other evidence which was verified that is exactly what upset him the got a little bit and my point is doesn't didn't have the right to know  met the standard of probable cause to know that blunt was double dealing in this case didn't he have a right to know that so i've seen a lot of warrants in my time an awful lot of them over the years you know both  prosecutor a defense attorney trial judge and this warrant did this work are these warrants i should say  because that would conflict with other precedent it conflicts with hopefully it conflicts with for example mackenzie good day one of the issues in that case was a witness testify there was a gun in the house it closed conspirator gave an interview where he said there was no got no police existed this is a quote if the omitted statements had been included we consider only the information actually presented to the magistrate so that's a quote again from footnote three of law i would also note that lowell is not distinguishable i think mr young said that because here there while there was not i'm quoting from page one hundred and twelve of law quote before and initiating the controlled by officer search the informant and found no contraband on his person i'm sorry if i've done the wrong i've quoted the wrong thing sorry the sheriff's office corroborated some of the informants information prior to conduct in the controlled by that's one quote lower on the page notes that during the there was actually a telephone recording device being used so that's proper ration of the drug by because it was being recorded at the time so  there was lots of crop aeration of the informant's information and lol and anyway the fact that the informant stole the drug money still served to be information that the magistrate needed to have to himself or herself judge the informants credibility for the reasons that i started my argument with again if you look at the law decision this is about the structural integrity of the warrant process the magistrate judge in a case and it's not mr young says that i think that all information needs to be presented t not my position my position is that when the police know that an informant has allied to them as in this case repeatedly about the transaction about which he is informing on the subject of the warrant that is obviously material information that needs to be that needs to be disclosed and so these are these are quotes from well as well the trustworthiness of the confidential informant lies at the heart of the plot reliability determination and so the relevance of this information should have been obvious to investigator welch i think this goes judge myers concerned about how you determine recklessness as a matter of law if it should have been obvious to the detective that is recklessness as a matter of law that you know to judge keenan's point the court can find as to the  using the blunt testimony substantively she's using it as the gate to evidence and it with respect to if you have a informant who gives you ten pieces of facts a piece as a fact and the informant is correct on four form and lies with respect to six basically she's saying i went out and cooperated before and that's all i'm using i'm not relying on his plan had committed them and so meanwhile as to the probable cause determination the district court in the state calls to the full and the district court in this case i page six hundred and sixty five of the joint appendix held that the phone calls and the facebook information alone were crime and then below it says after she says he's been charged he said he didn't do it so it's clear from context the affiant does not believe he's innocent but your honor i think the fact that he hid the a civilized process that we believe in and i know you to believe in it too thank you very much for the arguments will adjourn court signy die and then get back to you