itself was bare bones yesterday but was bare bones and did not require it did not support official belief secondly we believe that the court erred by failing to hold eight franks hearing and i'll explain more about that as we go along the case begins with an effort with by a osage county deputy receiving information that two different places had reported to us one of them was apparently some pipe on a train or the other was a motor they the reports themselves made no mention of the defendant made no mention of this pick up that was there with which the court allowed searching device to be affixed to however the county deputy said i have that he has a confidential informant and said that the confidential informant says that mr smith stole the pipe and stole the motor not only that he says this informant takes him to a location that the informant says is where mr smith takes location is a name no corroboration or investigation was done by the officer to say that this this location was related in any way to mr smith secondly when they get there well didn't think confidential informants say this is where mr smith keeps the stolen property that's true that is what the unnamed unverified confidential informant said but my my point more so is that there was no it all came from the confiden so yes that did come from the informant also coming from the informant apparently well ok so the informant ted took him to this place at that place they don't find a pipe they don't find this motor if i had a motor apparently that had not been mention previous to now that my client stolen any oxygen tanks so the fact that there's an oxygen accident take there in a location again that's not been tied to the defendant other than by the cia's word that doesn't amount to anything citation included and that kind of gets me to actually what doesn't happen in there is no items that were stolen there that were reported still in there is no proof cited that tied mr smith to when you say confirmed i thought it was the f b i i was confirming perhaps jack's but just like judge murphy said we're having to assume a lot of things which st i'd like to talk about good faith there is this entire affidavit is devoid of any probable the cases include a number of things than cases can include either the confidential informants and a drug case a previously made buys for the for the officers or that on three previous occasions their information had proved reliable in the however robillard is not something we can just give a name to there has to be some proof that proves that and so reliability comes from what experienced officers realize they have to include they have to include things that show why the reliable they can't just asserted to the to the magistrate there has to be some validity cited that is the reliability or the veracity or the basis of knowledge and none of that and so we have a situation where there is no corroboration ok we have no proof that this officer did anything other than go to some place that this group's confidential informant said was was associated with mr smith so we have no corroboration in that case then gates would tell us when we need some good growth we need some good reliability or veracity based upon this corroboration in that scenario to say that there was probable cause to believe that there was contraband to be found that else it  there's some similarities here just because you have an actual address and so that is a specific thing then you also have an officer going on their own to the location and seeing these things and then you race in dish initiatives i don't your situation judge the officer had some sort of corroboration there's an dish of drug dealing he also had a specific address to go to and so in that case your judge your fiat is relying upon some information that is now wouldn't that is their problem because if so how is that different from your case because there is no corroboration other than that what the confidential informant said that that else is joe schmoe his house it could have been corners does not have probable cause he's not been able to corroborate any of this other than going out to this place but what does he also know he knows that he omitted the criminal history of the cia that was the thing that really kind of blew my mind is that i filed this motion to suppress i say well it appears like the guy might have criminal information but i didn't know and so then the prosecutor files motions i think he doesn't fact have confident he does have criminal history if the prosecutor claims that he's going to bring the guy to testify to the court if you look at the record it's clear that the court expected to hear this officer come forth and say why did i omit this criminal history oh i would criminal history of the presence of probable cause in other words i can see that the by bringing the inspector you work to oil field where there's allegedly stolen all field equipment not based on the history of this informant being confidential so maybe he was a birth maybe he was the biggest liar of the world but i don't know how criminal history per se which maybe he was arrested you know once twenty years ago or you know sell it had outs of marijuana you know whitel that presents a problem because well just now you're talking about and again a different story because we have wholly uncorroborated other than the confidential informants were ok it says that the c r i describe this the c r i took them to this location c r s says this is still and this is don't so why the criminal history in that situation is important because we say we assume that the magistrate knows that they have criminal history was it murder judge would that change a person's mind was it perjury would that change a person's mind and so we're at the point where i am in front of the appeal court arguing that this guy's criminal history matter we haven't even had to hear and you talk about avery there was a there was a frank's hearing so they not the court no district court no  he had here the magistrate doesn't know what the criminal history was the district court didn't know what the criminal history was and now i'm in front of the appellate court with still no knowledge and that's why we have franks we have to preserve the sanctity of the process in order to ensure explanation for why he might know they still and things are so we have just a myriad of and when you don't make the officer come and testify about why he omitted this criminal history which is that experienced officer and apparently according to the government and start space on something in the reply brief and i fear that perhaps due to my association with this case and a bit of rhetorical flourish in an attempt to provide context i may have escaped what really is the core of this case and i'd like to use this opportunity to refocus on what is the core which i think carries the day for us which is the affidavit good faith and the franks hearing issue so with that your honor may actually swap around based on  what my friend across the aisle had to say and start with this franks hearing issue now it's important i think for the court to understand how we got to where we were in the district court and refer the court initially to  judge in a minute order granting the franks hearing so in our initial response we took the franks here in as a as something on the schedule on further review we decided that perhaps mr right now or start this brief and not carry the substantial pulmonary showing required under franks to protect against things like using the franks hearing as a discovery tool and so we filed a supplemental brief in which we encourage the court to focus within the four corners of the affidavit and to no longer hold the franks hearing the court over mr smith's objection decided not to hold the franks hearing and i think on a page volume one page ninety nine dollars mentioned the initial printing was inadvertent and also during the surprise of the franks motions the hearing on the franks motion i think several times we have heard that if a court to focus within the four corners of the warrant so that is why in the st brief you have some  st principles only the dates massachusetts the upton and some other cases especially the temper in the th circuit and emphasize that probable cause is a practical common sense analysis designed to find a substantial basis for a warrant and from what i found there's typically two paths there one is as defense mr smith three points out of the u s the long approach a reliable form is described as reliable that evidence bu their comments their their evidence and that can lead to sufficient probable cause you alternative is what i what i believe is in the dam our case where it's the corroboration where if you don't know about this informant could be anonymous as it was in gates to this informant which is a cropper ation now why the term alive was used i'm not going to be behind faience mind in that case however it could potentially refer to the fact of the person that's reliable because they provided  reliability me reliability maced past working with this individual giving he reliable information he has a history of harass id all those things that aside confidential informants yes wrong investigation the sheriff did a deputies compiled information from whom we were left to guess regarding the chevrolet operated  least smith we don't know if if it was lent to police man we don't know if he owned it we don't know if he was one of twenty drivers and we don't know the source of that compilation of information and the use of the the hackle by whom not even it doesn't even say by mr smith but still as a fact that tells us why inspector your  your thought that he was using the vehicle to commit crimes and that is what the warrant is for is for his chevrolet truck if that was the greatest compelling what fact is there in that clause that tells us that that he had any legitimate reason to think that the truck was this your honor st i believe that we are which is the that clause that links that qualifies both of those provisions what what was that compilation of information to a layman to be based on that this was the defendant's residence he found that there was no probable cause and he found probably it he found the good faith exception leon applied only because the affidavit made it unequivocally clear that want of multiple verification techniques had been utilized to link the defendant to that residence and so in here the problem is i don't see that there was any verification through any technique other than the the clause that he compiled information i don't see compile information through an informant through you know checking the tag titles at the department of public safety i don't see any verification technique big one thing where we're looking at a nexus you need to take into account sort of not just what the officer says and the many other things but the nature of the evidence necessary as they concealing it or moving it and the reasonable  will someone use some other means to move it but a truck is the logical way to do it and so that i think it really has a reasonable inference given the context that these judges found themselves which i think i thinking a small area you kind of know who drives which truck it's not necessarily life in a city so those reasonable inferences i freely admit will have to carry a lot of water and it was ultimately decides there are more on the hunch on hunch side than the reasonable inference side i would give it's a good thing and i think what i said earlier about roach is what and that's what this report pointed out when it's a close call i think that gets you there and to the extent that  warrant you can very i think reasonably infer that this person this is in fact someone who knows enough about what appears to be concealing a small property some other things to have me fairly close to it so i don't think that this is the generally unsavory characters form it would have been a mystery to the justice reputed blow which is why i don't think that's a silver bullet leading to frank's hearing and that accent there that i haven't seen anything else except i think one brief moment were was officer investigator or was he in a group of investigators that d put the d device tracking device on the finance car i would add i would have well if we're looking we're if we're looking at whether or not we have the officer who have or executed the warrant reasonably relied on the a which i think is some language that the defendants using here now we have to know whether the officer executing the warrant even saw the affidavit i think so your honor but again rebuttal thank you judge had there been a franks here and then we'd know the answers to these questions just murky the ones that you've had to use the word assume for we have no answers to those questions so that's one of the reasons why we should have had a you know what happened there well i didn't draw the judge but what i threw in was the fact that we did not know that there was any criminal history of this to find an excuse me this this informant until i filed a motion that made them say we still by the government's investigation that showed that that man had lived at that address there is no independent examination of by the officer of why this location was a says the or the red pickup that was that was associated with my client this is something that any reasonable officer can do and so this officer not doing it knows that he should have done it he knows there's no corroboration and he furthermore knows that he's got criminal history the c i has criminal history and for some reason he doesn't tell us what it is so not only does good faith not say that if the court decides good faith does say that we still need to have that frank's hearing because we we have some sort of reason that this officer omitted it in the government given every opportunity this like you said the district judge even expected that they had every opportunity and