essence of mr bones claim is that following a series of searches including an x ray that turned up no contraband and no evidence of wrongdoing there was no probable cause to continue to hold him the probable cause didn't exist at that point we think is underscored by the fact that the state court judge then refused to issue a warrant to hold mr bone for a c t scan so at that point the series of searches that had been done were of the driver who had been physically searched with no result the driver again mr page had been subject to a dog sniff with no result mr page and then released the car itself had been searched with no no result in two doctors said x rays were negative and didn't show evidence of value back at the end at this point we think mr bone should have been released and then again the absence of any probable cause s underscored by the state court judges refusal to issue the warrant for the c t scan what do we do with there there was additional evidence that's that the officer still had in their possession after the doctor's opinion the evidence that page of have been stopped earlier a dog would have had alerted to the car and over eight thousand dollars of cash in the car his colleagues and usual history of renting cars and that was consistent with late night drug runs and that there had been a positive alert to the the car that even into the passenger side door they still knew that and they and they had a doctor saying i don't believe that there are drugs in his body that also this can't be conclusive this isn't conclusive that i don't believe there are drugs in his body is the doctor's is that verdict by the doctor is it clear that dissipates probable cause i think so i don't take the last one first i think the statement as x rays are one hundred percent sensitive and but i don't think that has any bearing on the x rays are a medical diagnostic technology that's been used for since the late nineteenth century the court you know all of us understand it's highly accurate and the fact that it's not one hundred percent sensitive it goes both ways it may not show every cent single instance of drugs being hidden in a body but it's also going to show some drugs that in fact aren't there i don't think that's a factor that weighs one way or the other all the other information they have we think is tends to dissipate so they had some information about drug trafficking they had an alert of the car but then they searched the car and they searched mr page and they searched mr bone and they x rayed mr bone and they had dr who said it's not not that it wasn't conclusive but that the x rays were had two doctors a radiologist  r doctor who said the x rays were negative the district court in finding probable cause still existed focused primarily on another trooper sergeant albright who the district court thought if i misunderstood with you and said that it didn't matter one way or the other what they actually results were something to that effect so which is it was supposed to regard the actually results as interpreted by radiologist know that the x rays were maybe inconclusive or not one hundred percent certain and all we're saying is this this idea that x rays aren't one hundred percent sensitive we don't think weight is one way or the other we know in general x rays are definitive piece of medical evidence we've been using them for more than a century turning to sergeant albright he didn't have extensive number history with body packing another doctor reviewed them doctor and then we think there's no reasonable basis to accept you know the opinion of someone who's seen fifteen to twenty over a ten year period versus two neutral don't know that you need to develop a rule but in this case it's clear i think that sergeant albright's believe can't trump the medical opinion of two neutral doctors address arrest one am on march twenty first there is an ex parte probable cause for arrest a germination made some sixty three hours later on march twenty third but he person's arrest there without a warrant he was arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause who would disagree with you that you have to be promptly brought before the magistrate and we read that those cases to say we know we're not saying that probable cause for arrest can't be ex parte as long as the defendant makes an appearance in court contemporary contemporaneously and within forty eight hours the problem here is that the ex parte probable cause for arrest finding comes sixty three hours after his arrest so while outside the line the supreme court has drawn and then he doesn't make an appearance until  three days after that and the government argues if i understand your argument correctly that it's it's enough we don't have to worry that that it's over sixty hours before an office and a magistrate focuses on the probable cause to arrest to detain the person because there is a search warrant that is obtained within seven hours or shortly after seven hours and it amounts to the same thing we disagree strongly and  look probable cause for a search warrant is different than probable cause for arrest but don't different a probable cause and ari's for searches and arrests essentially in this case overlap in a body packaging but i don't i don't think in all cases they do put a body packaging case like this one does don't the enquirer's overlap i don't i don't think so and i don't think that i don't think this is the probable cause for a search warrant as what the supreme court had in mind you can imagine a case where somebody has been forced to carry the drugs in their body that person there might be probable cause to search them but there wouldn't be probable cause necessarily to arrest them it's a different inquiry probable cause for the presence of contraband or evidence of crime versus probable cause that somebody has actually committed a crime johnson about some other matters in the record that this record didn't discuss the the bathroom related episodes it's opinion but they're part of the record and presumably affected right of the behavior of the hatch stopped any country man from being destroyed you call that yes except i think he said he looked and there wasn't any contraband growing ok but this is not a basis for suspicion concern perhaps but even if it is i think what we have in the timeline as we we have all the suspicion we have and we have a dog alert to the car but then we have a series and searches of the driver comments actions you know tend to give they're all dispelled by the fact that they do an x ray of him and two doctors say there's nothing there now you have a motion to supplement the record we do tell us about the the these documents were ever brought to the attention of the district court in a roundabout fashion only because they came into existence well after the hearing and well after the opinion these are on the one hand a memorandum prefer in charges against mr hatch and on the other hand a letter dismissing mr hatch that were confidential in the record there is a counsel of explains the our efforts to obtain them and our ability to obtain them only was successful once he appeal hatch appealed the dismissal we suppose to do the well we say and ask the court to receive them into the record because the court has the discretion to accept such evidence when their materials the bearer directly on the merits of the appe claim and here we think they very directly on the actions and credibility of trooper hatch trooper hatcher was the prime mover in this case and the individual driving this case forward from the start he's and available and disclosed prior to the suppression hearing and counsel didn't cross examine hatch you know we're certainly not saying the government withheld anything but i think what was disclosed was the existence of two lawsuits against mr hatch and just as a matter of ability probably a value of you know the cross examining a state trooper about aren't there these two lawsuits against you is fundamentally different than saying we have as in your employer preferred charges against you for these numerous violations and hasn't the your employer in fact dismissed you for these numerous violations including for deceit and violating people's constitutional rights is just a fundamentally different thing  prove may it please the court my name is joseph perella and i represent the united states pleasure to be here from vermont the guiding principle of the fourth amendment is the mandate that of probable cause versus what the government argues probable cause was being fortified or accumulating first the dueling doctors dr ronn a marker to the judges judge murtha's finding that  that way did the troopers experience more and dr roger marker was reasonable it's important to put yourself in the hospital which i believe the transcripts markham was focused on the fact the trooper said that drugs are constant or are usual bag and condoms when they are body packing cases and dr so meanwhile the troopers including trooper who who has has seen fifteen or twenty over a ten year period they all know and not even in x ray cases but in their general experience they know that body packing cases there's round bags as well as on gated and so in that sense they were reasonable to be a little bit skeptical about d  the written report is much more certain than the rider mappers oral statements so trooper hatch didn't read the written report back to the barracks and  officer determine probable cause to detain within forty eight hours and in the language of mclaughlin it's unreasonable delay or delays for the purpose of gathering additional evidence to justify  and at the moment when they bring him back from the hospital and they read the report and it says there's nothing there maybe it's not that strong but pretty close they have other reasons to be suspicious but it seems like what they s about to do is gather more evidence to go back and get another search warrant and they're not thinking about can we keep detaining this person is their problem do we needed judicial officer to sign off on that so i'm troubled by the fact that evidence this is gathering evidence pursuant to a search warrant a search warrant and this type of body count packing cases for diagnostic testing i think it's reasonable if there if there is a showing  based on all the evidence that there is body packing to wait until the suspect excretes those packages and so there was a search warrant authorizing additional evidence here but they didn't there it's a it's an important distinction here it's important that trooper hatch reached out to the state court judge as mr johnson said and the state court judge to release mr pub on but the intervening event was mr probably was banging his head against the cell he was at the doctors so he was at at the hospital he was on his way back from the few minutes away aps there was no proper to needy to release mr upon at that time the additional information came in regarding dr hartmann which and trooper hatch put as is the alerts in the cell itself and the see that mr problem was sitting out in the car there was no alert on mr page the driver seat and mr johnson's tries to make a lot of hay out of the after his arrest it would seem express pretty implicit in a search warrant for diagnostic testing that you need to detain the person to do the diagnostic testing and then a reasonable amount of time thereafter to excrete so between the two inquiries they can you cite any case where a certain judicial authorization on a search warrant has been taken to satisfy the first i did not cite any cases in my brief i cited a case for the proposition that the probable cause standard is higher but the government shows here this is the state government chose the less accusatory route of a search warrant rather than charging mr pub with a crime the standard was the same but they chose to be prudent and detaining someone without any judicial oversight there was multiple instances of judicial oversight here and and fact that one point judge the state court judge said i'm not going to sign that search warrant so they were preparing to release him and within a few minutes new evidence came in so that shows the reasonableness of the officers action and i and the government contends that  mockers findings they were seeking additional evidence from trooper albright who had much more experience and as i stated before they had reason to be skeptical about dr radha marker because he was focusing on shape but that wasn't the only there there was evidence accumulating from the toilet behavior from dog searches and the intervening a vent of the bringing mr pub on back to the hospital so yes we have the government argued that the doctor in this type of case is an anointed the sole arbiter of probable cause there's totality of circumstances meet all the circumstances not just an x ray and we believe the continuing detention  therefore was reasonable unless the court has more questions the government would rest on its brief thank you very much for your time arbiter here is the neutral detached nagell straight who in this case said no i'm not going to issue a search warrant because there is not probable cause the government makes much of the round versus along and the magistrate says that the testimony officers are going to release the defendant but in the interim he had hit his head against the cell the cell fars and had to be taken back to the hospital well i don't know that he had to be taken back to the hospital he could have been left there in the care of the physicians and released there amongst the doctors who were more than able to care for him and that's what they should have done and this is as as a judge this is a paradigmatic example of the government holding someone to see additional evidence and it's in fact undisputed that that's what they were doing they were trying to get more evidence  in terms of whether a subpoena probable cause to issue a search warrant or probable cause for a rush to government government the government wants it have it both ways if it's going to be probable cause for a search warrant there's a logical problem here because although a search warrant was issued for the x ray a search warrant was then denied for the c t scan it can't be both ways and that's why that's among after though all these searches come back negative including the x rays in terms of nick loughlin aware of any other cases involving body packing detentions and there are a lot of cases that occur at the border  but that that have occurred in the interior that raise this issue about detention the passage of time need for medical exams and so forth no not off the top of my head we'd be happy to look for those if the court thought that was helpful suppression is the remedy here there's no reason to distinguish this fourth amendment violation from other fourth amendment violations and we think the purpose of the exclusionary rule is is furthered here and that's among the reasons why the additional documents are we think probably if they go to trooper hatch in his pattern of