all righty that brings us to kasi versus thomas they both came to the late both detectives came to believe that they both worked for the city of birmingham they both came to believe that these robberies were committed by the same person because during the robberies the individual would come in and would state that he had a bomb had a plastic and during the investigation we put the the videos of the robberies on a program called crime stoppers which is a local program in birmingham where we feature crimes that have taken place caller asked people to call in if you act can identify this person or recognize this person we got a call from anonymous tip from an individual who said that they recognized the person the person resembled james co and i think somewhere in the record we have the crime stoppers tip in the record there after eight deputy hash brasher with the jefferson county sheriff's department not the city of birmingham but birmingham's in jefferson county detective brasher said he got a call from a confidential informant his confidential informant and the confidential informant informed him that the person who had committed the robberies was a james jeffrey cosey and mr cosey gave the identification of mr cosey how mr causey looked gave his address the had and said he kind of remembered that mr cozy worked at a a paint shop and so the mask that the robber had on looked like a paint shop mask that appeared to look like the same similar tennis shoes at least a brand adidas similar tennis shoes as the person who it made the commit the robbers and also they located  would argue take pills out of people take pills for a lot of different reasons yes but normally you don't have here that if you're taking prescription pills you don't have in the loose bag here here's the problem i have with the pill situation my understanding was that mr cosey represented that he always kept the pills that he had in his safe and that the safe was unopened until he provided the combination which was back at the police station and so it seems to me like there's a material issue a fact because we have to take mr cozies statements a fact is true for purposes of summary judgment there's material issue of fact as to  whether officer officer thomas knew at the time of the arrest about the pills i recognize that it's officer thomas position that he did no thought that's not really the issue the issue is whether there's a material issue of fact about that  record blatantly inconsistent or incredible as a matter of law meaning that relates to the facts that could not have possibly been observed mr cosey in his testimony as made it clear he was not in the house but we doesn't have to be in the house to know that he keeps his pills all the time in his safe and then he doesn't ever keep them lips now it may be that a jury wouldn't believe him when he testified to that his prescription pills and one of the pictures in the record has unfortunately is a black and white picture but it has the prescription bottle in the safe but before that that the technician  to and that's why the times are very important the technician logue the police technician loken located the pills at twenty two forty two we sent the court a tape which was  supplement record when detective thomas began his in his interview with mr cosey downtown and that that tape document fifty two of the record starts off the time is the technician found the pills page two and that is the evidence technicians report where he says excuse the search warrant item to that time fourteen forty two which is two forty two two hours before mr cosey gave this interview and three hours before mr cosey opened his say mr coles declaration were recorded on a document at the police station before the safe was open yes well different just to make sure i understand because i was a little unclear on this wasn't necessarily recorded at two forty two or was it written that it was collected at two forty two at the time that it was recorded because there's a big difference there time collected two forty two now i understand it that's what it says there but what i'm asking you is was it reported at two forty two or was it reported that you know six o'clock at night noting that it was collected two forty t the u s versus allison nine fifty three fifth circuit thirteen forty six at thirteen fifty level circuit case which states that where there is at least minimal communication between different officers cook collective knowledge of the officers determines probable cause for arrest all their knowledge is oh i understand but but the issue is whether or not the officers lying i'm not suggesting that officer thomas is lying but the position of mr cosey as i understood it is that he is lying and so we have to you we have to look and see whether it's demonstrable that he was not lying and if  prescription pills in a safe but the loose pills the thirty two loose pills in the bag is what the officers collected before the safe was open it was a kind let me ask you something else while you're up there i know you're up for your time but i'm not interested now my understanding is that i think it was the confidential informant but in any case also mr cozies roommate both told officer thomas that mr cosey had a tattoo on his hand that said laurie i guess and that when you looked at the photographs that in fact there is no tattoo there right and i mean it and that the office and officer thomas had that with him i mean that seems kind of problematic when you're looking at the totality of the circumstances well the it and i don't know whether that and you could have just checked it you don't even after that you could just look at mr cozies hand and see whether it's there and if it's there i mean you can compare it to the photograph why wouldn't you just do that right not sure of the check and see if mr cosey had a tattoo and whether it was whether there was a tattoo on the person in the photograph right there but that's one issue where mr combs his girlfriend is also say it's cozy except that there is a material issue a fact about that as well because antonov says that she never said that she never said that until she got to the station so that's after the arrest so we can't count on that in this case now maybe a jury would disbelieve her but again that's an issue for another day but what what articulable or the probable cause we're looking for here is not probable cause you're correct arguable it's arguable probable cause yes it's arguable probable cause but it still has to rise to the level of arguable probable cause and we have to look at the totality of the circumstances exactly and when you look at the totality of circumstances if you bills alone are enough even in the case of contradictory evidence that this is the person who robbed the bank because the the actual obvious comparison of the tattoo versus no tattoo in the photo shows otherwise and you have saying it's cozy and you have a tipster saying it's cozy not just it just to be clear no witness said that they knew that cozy had robbed the pharmacy what they said was he looked like the guy in the video exactly yes yes they please a car and david guest pass for jeff because it i would suggest that the last part of the discussion is really what's critical here i suggest this the issue presented  whether an officer who acted on the basis of facts he chose to believe without considering immediately available contrary and  by qualified immunity and i sed don't think that's the case to be clear what mr cousins roommate actually said was he looked at the picture that was shown to him by detective thomas he said this guy has several tattoos on his arm and jeff only has one that was something that was there all officer thomas had do is look at the picture and look at each jeff cozies arm and make that determination that specifically would have exculpated him from the robberies and i think this idea of focusing that as the as office thomas was due on the the pills is sort of waving this bright shiny object let me ask you a question that just so i make sure the facts just because i may not is it your position that  purpose of this argument for the army i'm making now i would concede that i'm not conceding it as a general essay so right now i understand your argument is it doesn't matter whether the repels aren't exactly for legal purposes but for but for purposes of making sure we get the facts right or am i misunderstanding the record as i searching by mr cosey at the pills could not have been found outside of the safe is that mr cozies position that was his position yes well look let me can i try to find out a little bit my understanding is the pills that were in the bag were pills for irritable bowel syndrome and acid reflux so do you do you agree with that  i don't recall actually my recollection was that they had not even been analyzed not at that point right yet but mr cozies affidavit says that there were pills prescribed to him because of his back problems and i think somewhere in the record they're identified as lortab and so wrecked he always kept those pills in his safe so my point is if the pills in the bag were not pills for back pain then mr  affidavit is actually consistent with mr thomas its position that they found pills at the scene i think that's fair and i would also say that if those were the pills then they weren't contraband and they didn't give spills on your on your beer or what what evidence is that that he stole the pills from the pharmacy i mean just the fact he had loose pills lot of people may not keep may they keep him in a bottle maybe they were going traveling somewhere they put them in a bag so it's easier to get him through security at the airport i mean who knows why how people keep their pills i would agree with that i would also say this that under the circumstances what detective thomas knew at the time which was that just because he had prescriptions for pain medication that the best that the discovery of those pills  is would give rise to some suspicion that would require additional investigation that that the discovery of those pills in his room you know wasn't like they were out somewhere in his room all that does is say well we should find out more it doesn't give rise to probable cause anymore then results of suspicion justifying a terry stop and frisk gives rise to probable court cause to arrest and in particular that is the case because none of the other specific things that were mentioned in the the affidavit for the for the robbery none of those things were found the fact is they found some loose pills in his room certainly does not change all the other facts it doesn't give rise even without the fact that he could easily have determined from the tatts is that jeff because he was not the robber other than that still doesn't give rise to even arguable probable cause it gives rise at best to the opportunity to the the suspicion that would require further investigation if they wanted to take the pills and have them analyzed they could have done that but they had no right at that point i would suspicion that indeed the magistrate judge is reporting recommendation said it gave rise to suspicion and then he suggested that because it gave rise to suspicion is reasonably suspicious i think with the words he said because he was reasonably suspicious that under those circumstances he had arguable probable cause to arrest and i think there's a disconnect even in that analysis right there's a difference obviously between reasonable suspicion and probable was controlling here is just the the kings in case and i think if you look at some of the actual language in the king's lynn case and you then compare that information available to them and stead support their actions on selected facts they chose to focus upon that is exactly what officer thomas did here he turned a blind eye to the tattoos that were objected lee right there in front of him and focused by his own admission on the the information he got from the presumed two different sources and again i don't think there's any proof that it wasn't the same person using two different channels to convey the information for whatever reason is there any evidence that these tipsters or informants who are deemed reliable on the contrary i asked officers thomas specifically at his deposition whether he had made any determinations to their we liability rely on the information he got from a fellow officer but officer thomas specifically said in response to a question deposition that he had no idea about the reliability of it and that is why when when officers use confidential informants they ask for for search warrants or they will include in the search in the affidavit that this informant has proven reliable on x number of occasions and as you know that's what's not on the words as far as the records concerned officer thomas never asked the deputy sheriff whether the person was reliable according to the deputy sheriff deputy sheriff never independent into investigation to corroborate whether the informants and foreman and and or tipster are reliable the only corroboration they got police having a police officer go out to the address that was given and observed the car in the driveway but nothing else we've said i have said that that's not really enough because it doesn't show it doesn't indicate any kind of nexus to the crime or predict future behavior i would our stars we know the tipster could have been someone who had a vendetta against him and we just don't know anything about the situation exactly and i think that's why i suggest again since we don't know the names identities of either of these two suppose it's sources well it could easily have been the same person using two different means and providing different in from you know you know similar information i would also note by the way that again all they said is this guy looks like jeff kozik and when i asked officer thomas at his deposition about james hill who two witnesses identified as the guy that was the robber and who also used the same alias as the robber the fact that these guys said it looks like him which he then says was why one of the reasons the basis for his probable cause to arrest even by his own testimony saying it looks like him is not identifying him but as to the mr hill issue mr hill was incarcerated that's why we didn't move further on that well i think there might be some question in the record about whether he was really wasn't but in any case i'm not sure that really matters the question here that matters is whether there was at least arguable probable cause to arrest mr cosey based on what the officers knew or should have known at the time and in that situation i agree with the maj the judge's view of this that we have a distorted difference of opinion on that we but that we have to defer date on how much immunity but when we are there i mean it does seem troubling and i don't know how you explain the whole tattoo situation is there a response you have to that well the tattoo situation wasn't the most i've had to say this way was the most relevant point when we had a bag full of pills when we're looking for someone who was robbing people for pills that is judge bartol noted i mean lots of people do keep pelz in plastic bags especially if they've been traveling they have to get it through security again as judge bartol noted sometimes they'll you know keep it in a bag on their person so how does that how does that pretty much alone provide p c that mr or even because i'm sure there are hundreds of not thousands of people in birmingham and other cities that to take pills and keep them in plastic bags i mean that's not enough to create had that you didn't already have they led us to cozy in that they let us we would not have gone to and that's again i just say my understanding is the way that you were led to cozy was you got a tip and or a confidential informant who said the person in the pictures looks like it could be jeffrey cosey right so that's if that's no more than the confidence you know what what detective brasher said is doesn't seem to me to add anything more than what the the confidential informant and or the tipster said if he had a mess that was the kind of mass that cozy used in his previous job  were things that led the officers to believe when it in even if the our officers did not have probable cause a bust state in believing that you have probably cause still didn't deny the officer from qualified immunity true but i guess there are a lot of issues i have with this but one of them one of my biggest concerns is i don't understand why officer thomas when faced with two different sources including a confidential informant that mr cosey had certain tattoos that were you know they were different from the tattoos that were in the photograph why would an officer thomas at least look at that he questioned him about that when he took in downtown but that's after he arrested him as a detain them and said that is irrelevant right i mean that's irrelevant to whether or not there was arguable probable cause when he arrested him why don't we have to consider the fact that he had this information at his fingertips and at least as i can tell as far as i can tell in the record he did nothing to follow up on what this follow up was when he questioned him later on but before that before that he also had this other information people identifying cosey that the drugs found in the location mr coding that being there to his declaration as just prior is quoted out is consistent with now consistent with what thomas says that these are different drugs these are drugs found on the counter in his declaration which caused the change from the badge to judge's opinion to the district