the next case today is united states versus tony lenard appeal number one dash one hundred and thirty two attorney had a seat please introduce yourself for the record and proceed with your argument good morning you may please the court attorney number of undisputed omissions the information that was omitted was uncontested as a matter of fact the information was known to the police and then if mission was accepted as true by the trial judge below  both of these omissions had to do with the sole allegedly controlled purchase of narcotics as described in the search warrant affidavit one of them concerned the omission monitor or monitor or record any of the transaction due to background noise the nd omission and perhaps the more troubling omission is that is the fact that in the undisputed fact that i who was conducting this control purchase met up with someone else while in the vicinity of mr leonard's home that she left with them with this other unidentified unnamed person and this she traveled elsewhere prior to going back to the pre established meeting place to meet with her police handlers i think it is our position that these omissions warrants injured hearing because the had the control purchase of cocaine then properly done it would have been not only the most powerful evidence provided the magistrate of the connection between this is the target residence and illegality but it's also the the so meaningful evidence to corroborate the confidential informant allegations that make up the bend but you have three c s who are all describing not a typical situation of a person having a place in a building and then a separate room used for a separate apartment for drug transactions they would have each made up similar allegations on that level but when you look at the the detail actually provided about the interior of this building and you look at look at the the facts surrounding the reliability and credibility of  i think it very easily could have been they're repeating rumors within the community i mean because they do describe two apartments one that is an apartment and one that is i think they called a trap or a trap space in which the illegality is  alleged to be taking place but when you look at who that's coming from you have well st of all the affidavit is very unclear as to who is who refers to everyone as c i so picking apart that just assuming that each as we said on our brief see once you to unseat three and see one the affidavit sets out minutes remaining it is an individual who had current drug charges was involved in drugs more generally and had past convictions specifically for false public alarm which is giving false information and making false allegations to the police the only indecent of reliability for that for that for c i one is the affianced conclusory assertion that i have deemed him credible which this court has determined is not a particularly powerful basis for finding credibility but wrong  reading the record to say i thought it was i had an incredible impact investigation i have i would tell the check but what is clear is that if there is no allegation that these are investigations that lead to any that he had ever been in that building and that's that's not just my point in terms of the question asked is this mutually cropping information of sufficient detail that that the untested cia has could corroborate one another i would suggest that fact alone that this person who apparently has never been in the building and the same information that this could just be information circulating within the community not based on indeed personal observation but just on not just general knowledge of what was happening context that as i mentioned earlier the omission of the fact that an electronic recording slash monitoring device which is featured in the affidavit was not working or was not producing anything of value  i was not alone met up with someone else while they were there were not apparently followed by the police after they left the the target residence went to some other place and dropped someone off all of this where we have no evidence as to what happened i think that you have the more than careless to think that that information is not pertinent to a showing of probably cause which is being based in large part on that one control purchase lastly so i think just just to mention in brief now what our principle argument here is not that the judge erred in not suppressing this evidence at this juncture the argument is that the judge erred in not allowing an evidentiary hearing  in which to test these allegations now some of the case law as i read it can sometimes be a little confusing and sort of conflate those ideas but clearly the standard under franks for and of an injury hearing is lower than the the preponderance of the evidence required for such for suppression under franks and our position is that that standard was amply met in this case this is not a case in which there are just sort of unsupported speculative allegations by a defendant as to facts that you know were out there these are all established within the record within the discovery that was presented by the government including the recording that shows not that shows no  no monitoring was possible during the course of this transaction and also later on in the same recording you can almost hear i mean you can hear it is uncontested that this yeah i went elsewhere before going back to meet with the polic case in order to obtain frank's hearing a defendant has to make a substantial preliminary showing on both problems of the franks task that is both that the emissions were intentional or reckless and that their edition to the affidavit probable cause and the district court took the i would say the most straightforward route if not all which is the route i would suggest this court take as well and simply consider it performed affidavit added and it you omitted facts and it's apparent that there is still probable cause to search both of the defendants apartments in this case this affidavit is based on mutually corroborating information from three different confidential informants as well as a controlled by that for their corroborate l way i agree your honor that it was not perfectly controlled although they did still follow some of the protocol for a controlled by for example they followed the c i to the apartment where the defendant resided and then  go into the target building but in every case those were multi unit apartment buildings so there's actually no information beyond that which is c i provided by what happened inside of those buildings so in each of those cases there was a possibility as according to knowledge that the cia could have gone to a different apartment secreted the drugs inside the building himself and then come out with them but that would not eliminate the probability that the target was the source of the drug and it's the same here we have to remember that th cia was taken to the target residence a place where three informants had said mr leonard was dealing both croquette crack and cocaine that the c i left with cocaine consistent with the information that had been provided by sources and the cia importantly also told the agents that the cocaine came from mr leonard and i would point out that although the recording and monitoring device we found out after the fact didn't capture much usable information this is a c i who understood that he or she was being followed by agents and recorded or monitor it so i would suggest that that substantially reduces the likelihood that the cia is going to lie to the police about the source of the cocaine again we're dealing with probabilities here and a probable cause standard where we have not a perfect controlled by of and on the last a purchase of cocaine from that if and at his dolling in addition to information from three different informants was which was largely consistent we would submit that that was sufficient for probable cause if they could just address the information from those three informants and the challenge that's it said that none of them are reliable and to that information is not sufficient  what we would submit is that when you have three c i's each of can provide largely consistent information that's getting you a long way towards if not all the way towards probable cause the court doesn't need to decide in this case whether the c i information was  because we do have the purchase of cocaine but what we have here are very detailed information first hand information to the cia had actually seen that and personally and possession of large amounts of and all three of them mention that he was utilizing two apartments which i would suggest is also an usual behavior so when you put that information together can i just if you is it significant that what is the significance of i think all three if i'm wrong correct me all three have also features in their past that might lead one to doubt their credibility is it important to the government's case that there be circumstances and rightly so is that a piece of the totality that matters or if we thought there was nothing in there other than the detailed accounts themselves to suggest the corruption that suggests the reliability of the confiden and then that has to be weighed in light of the features in their past that might lead one to doubt their credibility is that itself enough to deem it all credible or is it important that there are statements like he was credible in past the nature of the information here that it was consistent on three different individuals and approaches that cocaine from mr larry that would probably suffice but we do have more than that and you had asked your honor about  past reliability of the person that we've all been calling c i wine and what we have on page twenty one of the record penances the afghan says this source has been proven reliable by providing me with information that i had gained credible from prior investigations just on that point to do we have case sluggard suggest that statement alone suffices to distinguish the representation of the credibility of the c i relative to simply i deem the  representations to be credible which we've suggested isn't worth very much i don't know that that exact formulation that is used in this affidavit has been discussed by the court but what the court has said generally is that reference to past successful provision of information does their on their credibility and honesty and that's that word successful that this gives me some pause about treating this as a because there's no representation there about it having been successful it's just a statement that it was deemed credible in past investigations not that it led to anything or head in the positive results well i would submit your honor that not every investigation is going to you know lead to a raster or seizure of evidence but that doesn't mean that the informant hasn't provided the police officer with information that the opposite that determine what's credible and so what we have is a representation beyond just he's credible but a reason for why the officer thinks he's credible which is that information he has provided  prior investigations has has panned out essentially even if it didn't lead to any successful enforcement operation and then with c i to your honor that they specifically said shiites who had provided information in the past that had led to arrests that we have even further information about that c i three is a new defendant they don't give anything about that background but again what the court has repeatedly instructed is that when we are looking at the reliability of informants of source information we're not to view each of these factors in isolation but rather to look at it and if so how are they we're not talking about one are even two sources here but three sources provide inconsistent information i would submit given the firsthand nature of the information these are not rumors as  suggested but in fact individuals who saw the defendant in possession of large quantities of drugs and indicated to the police that they could in fact go ahead and buy drugs from the defendant which one of it's the eyes that dead and so under those circumstances we would submit that as a preserved argument we think it's forbidden plain air review should apply but in any event we do believe that affidavit does set forth sufficient nexus to his apartment apartment three as well as apartment two and if i could just briefly outline five fact that we think create that nexus st is the proximity between the defendant so called trap house or party spot and his residence there one floor part so it's reasonable to infer that he's going back and forth between the two locations  in terms of the reliance i'm joined now and those cases in terms of you know cases in which the police have fallen some into a multi unit apartment and have not been able to conclusively monitor what was happening in there that is not what happened in this case those cases say like well you know there's there's a purely speculative argument that someone could have been in some other room and they could have met with them instead what we're dealing with is it isn't a stablished other person whom traveled with the cia to a completely different place before me mcaleese so i think that all those cases do not support that argument here in terms of the c i knowing that they were being monitored because they had been affixed with this unit the reason that that monitoring couldn't occur was because of the incredibly loud music that the c i was playing in the car so i don't think the fact that she knew she or he or she knew that they were being monitored helps the situation given that the c themselves created the circumstance that made monitoring impossible in this case was what the music at the by itself my understanding is that the exit one car got into another car so that was music mean played by someone else and then the music was allowed to get in you know so there was consistent loud music unless people got out to get into other cars is what i gather from listening to the recording itself in terms thank you at this time that concludes the argument in this case attorney had a say in it certainly pez you may disconnect from the hearing