whether the district court improperly applied facts in favor of the moving party in deciding the summary judgment motion and the nd is a legal issue regarding mr serrano as conduct even taking the fa district court presents it just by way of background mr serrano brought the case with two other plaintiffs his brother michael and samuel garcia against the city of new york an individual at new york city police officers for federal and state law claims including false arrest malicious prosecution all of the causes of action can be found in the appendix it seventeen through twenty three dollars the defendant's move for summary judgment the district court denied summary judgment for samuel garcia and michael serrano and granted it in favor of the city against stephen serrano in doing so we argue that the district court violated the rules of summary judgment motion were to take the evidence of a nonmoving party which is to be believed and all just above justifiable inferences are to be drawn to his favor in doing so the following facts as we present them are true mr serrano and his neighbor who lived in the same apartment complex steven samuel garcia were standing out in front of their apartment complex on july nd two thousand and fifteen what's disputed maybe that's i mean what do you see are the disputed facts short so that street the undercover officer was with his female partner on the other side of the street it was in front of the bronx zoo there's traffic going both ways i believe on the street that is the dispute whether the officer could have heard twenty feet away well the disputed actually what the officer said the officer page two hundred and forty two dollars of the appendix in his witness statement the officer said that mr serrano told a person identified in the witness statement to j d rad that you see two hundred and forty four was an undercover officer and said don't do anything that guy's a cop that didn't happen mr serrano the officers testimony changes in a variety of different statements right in the statement that follows up his call the complaint follow up informational statement on the night of the arrest he says that garcia and michael serrano told serrano that guy is a cop and then he says serrano then signals j d read don't do anything he's a cop which does not seem to me to at least explicitly say inconsistent with his original report yes that's correct your honor and even more damning to the credibility of you see two hundred and forty four dollars is that michael serrano steven serranos brother was inside the family's ground level apartment at all relevant that he was in there at the relevant time that's correct that's correct rather he was out running errands for the family he went back inside the family apartment was on the ground level floor he was getting ready for work he didn't come back outside until you're maintaining that it's a disputed issue of fact that is to say the fact that a reasonable jury could find that the officer somehow never heard this statement and made it up it would be an extraordinary  the officer whether taking whether the officer said that garcia said it that that michael said it the fact of the matter is that michael and samuel were in an engaged in a conversation they had nothing to do with the drug activity that was going on down the street they recognize the person who they later found out was engaged in a drug deal from somebody living in their apartment complex but it's a big it's a big complex it's four or five stories tall it's an it's a city block long it's across the street from the bronx zoo and so they never had any interaction with this person the only reason that they recognized him as they saw him going in and out of the apartment apartment complex they later found out when they were driving around in the in the van going back to the precinct that they lived there through conversation but you know they never placed they never definitively knew that he lived in that facility and as make this statement and we would have to take it as true even serranos statement that he didn't make any signal or gesture towards jay do you read because he says he didn't  were standing within feet of the drug by and so for you see one hundred and fourteen dollars that have any mention at all in addition to the fact that mr garcia michael serrano and stephen serrano all testified to under the federal law the state ok so under the st department nd department there is case law that says the fruit of the poisonous tree doctrine that this court found does not apply to civil claims through towns does apply to state law claims so it it's our argument that because it was an there was an unlawful search and seizure and the marijuana that mr serrano had on him at the time of his arrest was found through a lawful search that he would still have state law malicious prosecution and false arrest claims there are cases that i cite in the initial brief if you can just excuse me for a nd in thirteen on page twenty of initial brief and also on pages eighteen through nineteen of the reply brief that finds that both the st department and nd department have continued to apply a not follow extinguishes any false arrest claim that he may have had on the st point there are three pieces of critical undisputed evidence here that when taken in their totality amount to probable cause the st is that one of the undercover officers undercover officer one thousand one hundred and fourteen was told as he was tasked with buying heroin during this operation and he was told by the dealers that the he was told by a participant in the sale that the dealers were hesitant to solve because the cops were the nd piece of evidence here is that appellant it's undisputed that appellant made a statement he testified he made the statement twice and his deposition and he made a statement said look those two are cops that's something that we know today the u shoe is what the officers knew at the time and is there any what is the testimony that says that the officer heard ste signaled to the person who is j d read right he signaled to him come quote he's a cop doesn't say he said out loud he's a cop and indeed right before that it attributes the out loud statement ignoring reality to think that that is not a statement made out loud and then he testified to me ignoring reality to say it's not a statement mean it made out loud signal just means generally not out loud i'm not signalling to you now i'm speaking to  evidence or something we're asking what a reasonable jury can find but given this arguable discrepancy couldn't a reasonable jury find that the officer did not hear stevenson around and make th making a statement but here we have upon students are on a admit to making a statement and because the officer did hear the statement being made here is about is how individual ised those the probable cause have to be if the officer hears two people conversing and making a statement he's a cop now let's let's assume that if he heard it across the street that would be more than reasonable to infer that the drug dealer also heard it right but he heard two people say it does that justify him in arresting a rd person who is standing nearby who he doesn't say you heard make that point is if i say those are cops and i don't signal that may be a material fact that a jury might consider if i say those are cops i do signal that may put the case over the edge for a jury so that the issue of signally i mean among many other issues seems to be an important one your honor the that deposition inconsistency the officer is sworn testimony is that you heard stevenson around and say this and all the cross examination indicates is that establishes is maybe there was some ambiguity about what he meant in that statement that it doesn't really create an inconsistency but i mean really see this from the eyes of the jury that actually hears that cross examination that runs well officer didn't you say in your report that you heard two other people make this statement well yes i did but i also said wait just answer the question didn't you say that two other people made the statement yes i said that they're on redirect well oh but didn't you also say in that statement that you later heard a signal and the statement he's a cop yeah that's what i said in that statement now the cross examine recross it says officer but though you put that in quotation marks isn't what you actually said that steven serrano signaled in a way that you interpreted as meaning he's a cop isn't that what the report actually says i'll read it that way now couldn't a reasonable jury looking at that direct and cross examination draw the conclusion that it doubts whether the officer actually heard steven serrano that he really is conflating this signal which maybe wasn't made with the statement that you heard emanating from a group that might have included stephen serrano maybe that actually did include stevens what about michael serrano he seems not to have even been there in the jury winds up saying you know on balance we're not persuaded by the argument that he heard anything from stephen your honor the issues of whether michael serrano was present and those that upon testified that this was across the street that was actually not across the street the testimony on page one hundred and eighty eight dollars of the appendix that discusses across the street as in reference to a different undercover officer that he also observed there is no testimony about whether up honks saw was across the street for them he doesn't mention that the two undercover officers at issue that he identified as officers were walking up and down the block but i do want to just pivot to our rd point which is that the officers here obtain unlawful search claim we would like to point out that that claim is not really possible on this record because there was no search before the admission was made so there is no search for which can be the basis of this claim he testified that he officers that he identified were male and female a dark skinned either african american or dark skinned latino across the street and a female officer who he described as a spanish he didn't know the other on the undercover officer who was on his side of the street that was conducting engage in the program the officer that we're talking about is officer to forty four he is the african american or dark skin  serrano identified along with the female cop regarding the the unlawful search and seizure claim mr serrano only stated that he had marijuana it is pocket after he was seized by the arresting officers he didn't volunteer the information before he was under the custody officers he was ordered up against the wall the officer said to him do you have anything on you he said yes i have some marijuana in my pocket at that point that's town's mystically to correct but that but but that goes for unlawful arrest of it doesn't call for the unlawful search and seizure await the unlawful search that you're asserting takes place after that admission is made for talking about an unlawful seizure then you're talking about something that looks to me more like a stop for which only reasonable suspicion they actually went in his pocket and found the marijuana physically doesn't his saying i have marijuana justify the search at least unless the statement itself is the product of a th amendment arguable reasonable suspicion which is a much easier standard for the defendants to meet your honor it was it's our position that the officers did not even have reasonable suspicion to stop mr serrano or mr garcia and then i just want to also before my time runs out get to the cases in which we cited that the district court ignored would be a town of east hampton is the st one it charges that that the district courts up to mr serrano had violated and so what i'm saying is that there is nothing inherently unlawful about mr serrano stating to mr garcia and only mr garcia his belief that the two people across the street i think that's all common ground that there is nothing if if all he did was mention to somebody that he has no reason at all to think is engaged in a drug deal that's not inherently criminal i don't think anyone says a harder ask for the defendants but at the same time if it could be heard by an officer who is at about the same distance away as the drug dealer then it's a pretty strong inference that the drug dealer heard it too and then it's just a question of if somebody did something that objectively lets the drug dealer know does the officer probable cause to draw the further reasonable inference that a reasonable person might think he meant to do that right so i mean i'm just not getting where the fact that it's innocent to just say it to go see it that's the issue is whether he did just whether an officer hearing what he admitted happened i could infer that it wasn't yesterday and that was my intention for for raising the two other cases that i cited and will i recognize that they're not there at circuit level courses that one's a district level court and once a criminal court decision that both of those decisions had the defendant in a criminal court case or the plaintiff in the district court case going up to an undercover officer and yelling out this