court my name is malcolm greenstein i represent carlos nettle officer evidence presented a probable cause affidavit to the texas magistrate that contained numerous false statements  omitted material facts which resulted in the arrest of the wrong carlos now the the magistrate judge said the law was not clearly established it was frank vs delaware and his progeny have long held that an officer violates the th amendment in relation to an arrest warrant if he intentionally or with reckless disregard for the truth makes a false statement or omits a material fact from the warrant application and if the corrected affidavit with the false statement deleted and the omitted facts added would not support a finding of probable cause as we argued in the brief no judge would have found probable cause and issued the warrant to arrest the appellant's if evidence f the david had stated that he knew one other information in evans about the two carlos nereus at the time that he submitted the affidavit he knew what they looked like because he had seen the other carlos nattie oh drive up to the site of the drug dealer's house get out of the house walk to the house and then leave a short time later and drive away so he saw what that person looked like he saw then compared the two neddie o's because of the two driver's licenses and he would have seen that they were substantially different that and he evans testifies again under oath i'm going to perjury that the man he saw go into the house is the appellant miriam right carets so what other information other than these two pictures so for example you have three pages of your i'm sorry i don't have the two hundred and forty five in front of me but he would if evans testified that he looked at the two driver's license photographs that he pulled up the driver's licenses if he had pulled up the driver's license he would have seen the information that's contained in everybody's driver's license which would have been the dates of birth and what the person's look like he also would it's actually that's not what he says in the deposition when he says he has the two pictures and i see the two pictures because those are what you  i have date of birth i have a driver's license number so that's why i'm trying to i'm trying to nail down exactly what evans new because you're saying he he intentionally misleading or he failed to include this and so you have to know what he pictures i understand well the other information he had was apart from what they've visually look like he had information what the vehicle was that he had the address that was related to the license plate of the silver chevy pick up and that was at a tempo street address where theoretically and the other one no i don't my understanding is that is not part of the evidence he ted he was not told by her to go there they went several times themselves and i don't know where he went by himself but they never saw the silver chevy pick up he was never told not to go the top poster eat investigate the address of the person to whom the vehicle belongs in and  don't mean to belabor it i'm just trying to get a straight answer on the question did he i don't see anything in his deposition or in the rest of the record that evans knew about the tapestry he was told by leggett about the way we're address and he was given the two pictures but i don't see anything about how he knew about tapper anything about heights in the about weights anything that any other details other than the two pictures and he swore under penalty of perjury he opens the appellant miria was the one who thought he saw the drug hell i'm sorry he also swung to penalty of perjury that officer king had done a facebook search of carla scenario which was a lot like she said she did not he finally after the deposition a belief admitted or during the deposition admitted he had made a mistake in fact he had not he also in that same affidavit that he swore to under oath said that the residence that was connected to the telephone that was obtained from the tap was a residence and in fact he knew when he signed the affidavit that it was not a residence that it was a business moves certainly twice and the affidavit under oath did not tell the truth and it seems to me that there is a what's the evidence that he knew my worn application no i believe my recollection of what he testified to was that when he was asked whether officer king had done a facebook search of zero which he said in his affidavit that she had after she testified earlier deposition that she had not he then admitted that that was false that she had not done search with wright i think it's undisputed that there was no facebook search the question the judge grazes asking to have a similar one is what is the evidence that he knew there was no facebook search and that's not what he said it and are awaiting heat for the deposition that i'm missing rebuttal but that was his testimony that he had not and i'm not sure it's in the record he had also testified that he used the same language in regard to a number of other affidavits and so he just whether a facebook search had been done if he was reckless then that still satisfies the standards set up by franks versus delaware and that's all that's that is required is that he in addition on um the he took no steps to do the investigation to determine whether or not he had correct person when he had the photographs of the two people he did not go by the top elaine any went several times to  savages and this is not a situation like a shooting or where there's an armed person in the street where an officer has to act quickly this is a situation where o'brian a decision from this court are instructive peggy hart was arrested in charged with intent to distribute marijuana and it was an arrest warrant after the charge was dismissed she sued and the probably cause affidavit said peggy hart is married to stanley hart who was a drug deal turns out that there was a nother peggy hart in the county the wrong person the officer had had and it was held the officer was not reckless because he had no reason to believe that there were two peggy hearts in the county or that the peggy heart linked to the  deal was different than the peggy heart was the subject of the warrant so that compares to this situation where officer evans knew there were two carloads that he owes and he knew that the two dios were different because he had the photographs of both of them and he could compare them to where the officer in the heart case was determined that they did not act yes or no question answer to the question is there anything other than the two pictures on page two hundred and forty five thousand two hundred and forty six that suggest that evans knew there were two partners anything anything besides the fact that he had two drivers license from two different people he didn't know i think that's my question show me in the record i don't see anything other than the two pictures that he had any reason to believe there's no there's not two different social search not two different d o b these are two different driver's license numbers i think he admitted it in his deposition i can't give you the page right now but i can yeah he admitted that he knew there were two different  and in that's near the end of the his the cross examination regarding and he stated that he was aware there were two goal of scenarios so you don't ever let it i can't i can't give it right off the top  my head i can find it for you and very briefly and the independent intermediary doctrine the magistrate judge will rule out that if the facts had been presented to sitting in can look to the search through the telephone number through facebook the source of enter information was agenting she told you that yes ok so he's going by what he was told there's no information that he had cop cooperate individual agent evidence goes through in details how this myth how it was submitted to the lab turns out to be math he goes through in details of a confidential informant or cooperating individuals that c there the fact that there is nothing to show that agent and and in fact i did of knowingly false intentional intentionally false statement or had a reckless disregard for the tr addressed until yesterday so he didn't even know about it so how can you fail to clue to be in it if you didn't even so there's nothing that he even knew about this tapestry of drugs or that three of the record she didn't fact testifies that information in there no it doesn't know so there's nothing there's nothing to show that he knew about this happens to you just in fail to include it now let's talk about the visual  ok you can press the mute button on your scurrying or on your phone so he has the opportunity to see this man come out of there with his residence drive away have a car registered you know and then see these photographs and says clearly this guy and then he did somebody arrest him and anything like that at his residence so you know that's that's that's a nonstarter also there's no evidence that iris saw to answer questions earlier mr narea you go to the bottom and i notice this record in terms of stuff can get confusing but you look at it and the last four numbers of the phone number is zero for twenty two and then you go associations chapel lane addressed is pages lieutenant king where does take place at our office and the circumstances we are corroborating information that we had gained through surveillance and title three so why would these pictures of two different who was asked you've not seen mr netty or have you seen mr neddy upright should today no i have not just his driver's license photo and that's really a question i want to ask you if you had been provided this with the presence of this additional photo of an additional mr neddy zero have warranted further investigation in your view and she answers yes so both exactly like you do and officer evans had seen the carlos nebbiolo who committed the drug but he so we do you look like and then he compared the two photographs what's the evidence that he get a good look at the house when the silver truck go away is there evidence that he got a good look at mary oh next it that he saw there is no evidence to the contrary that he did not the evidence is that he was was on surveillance and that he saw him walk up go inside officer evan sorry never testified that he only got a glimpse of him that he saw him just for a brief moment or that he any had anything but a full opportunity to see mr danio do the drug by the surmise that he only had a short time is merely surmised there's no evidence to the contrary this been presented by the diff by the telly that it was a brief glance it was just a few minutes where he never got a chance to see him and in fact they had put in cameras in the two he testified that were in the trees so theoretically he could have seen when he pulled the cameras out also but when we're talking about a summary judgment it seems to me that that there is sufficient evidence to show that he saw within it carlos that it look