or four forty three line seventeen and even start which which was page four forty three line seventeen and four forty four line twenty six to twenty eight she indicates there was cause to believe that he was staying with boehner and the staying with is not t fact i think that's a fair amount of evidence that we spend time with his girlfriend well i'm not sure there is and i think let me just point to the fact is that i think that the medical judge left out in her decision i think resigning is more than just spending substantial a prescription bottle and a probation officers card which would indicate certainly that he spent the night there's no doubt that he basically didn't stay there occasionally but the court has to find if you reside there and or to find that he resides there the court would have to basically conclude that that you can say someone lives someplace if they can't get in when someone else is not there i don't know that you say someone lives someplace when they have another residence that they have utilities in and that people say they're living there i think in this case all the evidence shows he doesn't live there and the way you know that is when they went and did the search in this case they had had nobody until that day who saw our mr howard in that apartment not a single person except for this anonymous tipster saw him in the apartment we don't even know whether she saw many apartments and she never said he lived there she said he stayed there which is a very different standard than living there and residing there so wonderfully well certain people can certainly stay if if i go to new york i stay with my parents doesn't mean i intend to reside there i have a place where i reside mr howard had a place where he lived he certainly stayed overnight at his girlfriend's house i'm not saying he did not do that but the search clause is such that you have to reside there and snatch probably constantly to stay there for two days or four days or six days you have to resign there and what the judge used in determining that he resided or stayed there basically two of the criteria she used comfort came from a tipster who we were not allowed to cross examine the other criteria was that they visited him at the owens address and he wasn't there ten or twelve times and the just there was probable cause and she actually runners if i may point out in the record four forty three line twenty six the court concludes that under the totality of the circumstances the officers conducting the search have probable cause to believe howard was residing with foreigner which look support not if the court found that mr howard was an overnight guest i agree with the court on that but i believe that unfortunately within the language of the finding and recommendation the court did on some court i believe that clearly the evidence the facts in the record support a finding that in fact probable cause did exist to believe that mr howard was in fact residing with ms foreigner what do you say well there are numerous opposed to what mr kaufman with what ask this court to rely solely on the took that was provided by the informant when in fact there were at least fourteen factors supporting probable cause to believe that mr howard was residing with miss foreigner the the first information came from the defendant himself that his stated intent was to not only associate with mr foreigner but also to reside with her that was what he said at the outset before all of this to so that he could that he could live with her i don't know what evidence do we have that he that he did that well so things your honor first off he was not at his own residence and out of apartment apartment forty nine on two occasions in very early morning hours including the date of the search and found mr howard's car parked right below apartment forty nine strongly suggesting that in fact he was staying there at least overnight in addition he confirmed with five different people at the apartment complex over a course of a couple of months all of these individuals were recognized mr howard some of them had been introduced to him by mr varner as her boyfriend why is he known by five different individuals that reside this complex as her boyfriend there on a regular basis they've seen his car their initial or when he began he the probation officer began investigating individuals recognized him in his vehicle as having been regularly at the apartment residence of the leave that he in fact resided there his own statements that very day were that he had been staying there miss barner initially when they spoke to her lied and said he's not here i don't know where he is and then when she saw that they had m howard in custody admitted well in fact you know he does stay here and some of his belongings are in the apartment and i think one important fact is if in fact he was an overnight guest then why didn't he take his belongings with him why didn't he take his prescription with him certainly what he would like this court to hold but the problem with that your honor is that if this court so narrowly construed as what it so narrowly defines what constitutes a residence then that's essentially turns over the reins to any defendant who wants to i think that they  that's right your honor but the fact that he had a key should not be determinative i mean i think the facts in harper were far less persuasive than the facts that we have here today mr harper had merely reside with his family somewhere else prior to his incarceration and the officers went they saw him i think the court said once or twice gaining access to the apartment with the key but there was no evidence that he was residing at this place on that particular occasion and the officers found vehicles belonging to his associates not not even his own car here the defendant's car was parked at four and five o'clock in the morning below this apartment over the course of time we have five people that are residing at the apartments or at least working there confirming they know him they've seen him on a regular basis being there he himself admits that day that he stays near his barn or says he's got belongings inside of the apartment after having lied about his presence why is she lying if in fact he's merely an overnight guest she knows she's not supposed to be associating with him she knows that they've been denied permission to reside together and i think that all of these factors certainly lead the probation officer to have probable cause to believe that he was merely carrying through on his for her her address this very same address and said i would like mr howard to move in with me and the probation officer denied that request because of her seven prior felony convictions they have probable cause to go in execute the search and i asked the court to affirm the decision below i think looking at the heart of a case the harper case where they said there's just barely enough is really much more significant than the evidence here in the heart of case yet he the other thing is he had no other address and the other thing is that they confirmed by surveillance seeing him there one or two times during a three so it's obviously much more significant than we have here and the court there said barely they should have gotten a search warrant and as to the court's question as to why did it get a search warrant they could have gotten a search warrant the information they had not only was stale it was uncorroborated they had not seen his core there for fifty six days on the day they did the search the people who indicated he had been there had not seen him for at least i believe three weeks and last law enforcement takes it back another three weeks we basically have almost six weeks where no one saw mr howard there