this case make two things clear from the record the first thing is that canine mirvan was not trained to be a sophisticated alert dog instead he was trained to base train to alert based on any level of o including fringe residual or trace odors counsellor or you are you asking us to read the facts from a three day evidentiary hearing and reach of factual conclusion that is the opposite of what the district  sounds to me like you're asking if to reverse that factual determination was the clear or what the court found was that the canine in his unproductive alerts were sort of validated by the fact that he had been trained to respond to alert on trace or residual odor so that there were no at this moment that the dog is wrong i mean a dog can alert on a package that used to contain drugs but there are no drugs in the package when the dog alerts on it doesn't mean that the dog is wrong and in fact that's what the district judge found was that the dog but that's not wrong that's not a fulfill work even though there's nothing in the package that's correct  where does that leave us well that you're saying this dog is not a reliable canine detector and the district court found just the opposite well the problem is that this court's precedent also establishes that when there's a possibility of ready contaminate ready contamination or easy contamination and a dog is not trained in a sophisticated manner then the dogs alert standees own sophisticated manner or you say the dog needs to be trained so that it only alerts when there's something in the package i don't know how you would ever train a dog well you know the case that deals with sophisticated dog training is that twenty two thousand four hundred seventy four dollar case which is a currency seizure case where the evidence in that case was that the dog  specific products of cocaine and that he had been trained in such a way what was the problem with that case that you were dealing with with currency in los angeles apparently seventy five percent currenc tainted in some way by drug residue well that's true but in this case there's also sort of uncontroverted testimony including from the government's expert that packages that are shipped from southern california to hawaii through the postal service are readily and easily contaminated just like cashews in los angeles ok but that but that doesn't necessarily mean that the alert is incorrect coun as i said this this is the totality of the circumstances analysis so we have to look at the fact that the dog alerted plus the other factors that the postal inspector identified in  affidavit which included the source the fact that the package was densely packed that it was addressed for delivery with no signature required all the things that are outlined in the affidavit right that's correct your honor and i would say that really the only thing that really made any difference in this case in terms of probable cause the dogs alert and all of these that's not what the district court found the district court said i'm applying to college in the circumstances approach and i'm going to look at the dog alert plus all these other factors that the agent set forth in the affidavit on that basis i find that the magistrate judge could make a probable cause determination that there's a fair probability that when we open that package we're go find drugs and it isn't that the conclusion that of the three day evidence or here i mean i think that's part of the conclusion but i don't think the court and certainly the district what i don't think put any real weight on the other things that were in the hand densely packed package ten percent i mean there's nothing like that well that's i mean let's look at those other factors and certainly those factors standing alone would be sufficient for probable cause why the law i mean there's totality of the circumstances let me take this a different approach when i was reading what the good judge was saying is the reason for the franks theory he said and i quote e r forty six is hearing isn't about whether the affidavit establishes probable cause or whether there was probable cause or not i have limited the franks hearing to your arguments that what there are material omissions in here regarding certifications and false positives so what he's looking at in this frank's hearing is not even probable cause it's whether there are material omissions regarding certifications and false positives and then he says the result there were some problems with certification but at best negligence as to false positives the abs not material to the finding of probable cause even if some should have been included it was best negligent now what's my standard or review as to that determination which determination the one determination i just told you the determination he made in the franks hearing well for frank's hearing the standard is whether the standard for whether there are omissions or material misstatements is clear error and so if i can find clear his best negligence i don't sign find anything in that transcript or in what happened here to say that's clear error and so on appeal how do i overturn this that's the only way you're going to win on what happened in the pranks hearing because it wasn't to establish probable cause well your honor one of i mean one of the issues is we were limited to a franks hearing we asked well i understand but the franks hearing he tells you what you're going to get at the franks hearing and then he makes his determination as to what he did in the franks hearing and then he comes out with a problem cause why can't i just affirm this based on the fact that you can't overturn the error in the play in the franks hearing because it's clear air review well the judge makes a finding that based on the totality of the circumstances of what was presented at the franks hearing that there was probable cause and we believe that based rankly based on what was presented at the brinks hearing there was a certification but it better problems with sort of a cage but at best negligence there was absolute information but it wasn't material or if it should have been included it was it was best negligence and so therefore it didn't take away from the probable cause the problem cause was tabloids unless you could do something in the pranks theory well we think that based on what was presented about the dogs on sophisticated training in the possibility of contamination based on court's prior precedent that holds that there has to be more than just a dog a very well but i guess you're i guess i'm trying to suggest your argument is just arguing this isn't clear evidence clear of you this isn't a clear determination of the here is that what you're arguing no your honor i'm argue because that seems to be the only thing you can argue well there's the franks hearing is the only place where you put together if you would all the reasons why there were problems with the serve occasion or there were false positives and both of those court says isn't true and therefore on clearer view on my own but the court makes a specific finding that with regard to the false positives those false positives are explained as not being false positives because of the possibility of ready contamination well but what is it what is it you'd like us to hold we'd like you to hold but in this particular case under this constellation of facts and circumstances where we have a dog that has not been trained to ignore trace residual order and there's the possibility of easy and ready contamination of the item or object that's to be searched that the dogs alert standing alone does not establish probable cause a couple of problems a council got a lot of qualifiers in there so you said that you want to do it in this case but the rule that you described after that was very very broad would clearly apply to many many dogs sniff cases and then at the very end use you said that that the dog sniff standing alone was not sufficient to grab power because that's not what the district court so the rule what you've asked us to apply here is the one that you have colloquy with judge tallman who went through all of the other factors the district court went through so it doesn't apply to this case they are the rule that you just asked us to apply well if i could briefly respond your are so many times you have your time's up i'll give you time the lesson i take from gates and harris and all of these probable cause cases is that it's a fact determinative analysis and it's based on common sense and gates i think in a footnote he's footnote eleven says precedent in one case will very rarely be applicable to other cases so i'm asking the court to look at the facts and circumstances of this case the constellation of on sophisticated training easy and ready contamination that even the government's expert says easily happens i've seen it in my career the other things that are in a war which are simply the package basically contains other things inside of it that are densely packed the there is no signature required which is no there's no evidence that that's uncommon the the address and the name matches for the receiver of the package the address for the sender of the package is a real address but there's nobody associated with that that address and it was shipped from southern california council before before you use it and i do have one last question which is in response to something you said to judge smith are are you objecting to the fact that this was a frank's hearing  something else that you wanted the district court to do besides conduct a franks hearing and you've got a little bit of double deference here because the just the just part is going to be examined as to whether the the magistrate was misled in the issuing the probable cause finding in the first place so it s there's a little bit of a of a double deference problem by the time it gets to us or are you objecting to the fact that it was a frank's hearing we objected to that in the district court and this may be a longer answer than a court wanted to invite you to make that argument to us  i don't think we made the argument in that specific manner because we we can leave it to the issue of probable cause but it's a two step process you get the franks hearing but your burden at the franks hearing is to show that material and misleading information was either put forth or excluded from the affidavit if the district court credits your argue right franks violation then it looks at the affidavit and exercises the information that was left out or which was misleading and ask whether the remaining information in the affidavit still establishes probable cause your problem is that you couldn't get past problem one because a district c found that there was no franks violation it is nothing now well if i can if i can take a step back and talk about harris for a minute well let's look at harris harris says the question similar to every inquiry into probable cause is whether all the facts surrounding the dog's alert viewed through the lens of commonsense would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime a sniff is up to you're looking for but not a common sense issue the issue in harris's harris is obviously not a warrant case so harry sucks if it's a dog sniff case but it's not a warrant case and i'll explain why that makes a difference to the analysis so harris says essentially harris first says there's no bright line rule there's no rigid checklist but then it says if you have a dog a lawyer and the dog and there's evidence the dog has been trained and certified then that's enough to establish probable cause in the district court spent three days listening to your ex we're listening to the defense canine training expert credited the government's training expert discredited your expert and found that the dog was  and to get back to this question how can we declare that to be clear air her on a three day evidentiary your honor first of all answer that question based on the tally of the circumstances i think that it's clear and you know this is just a yes whether or not there was the possibility of ready contamination and whether or not the dog was trained in certain ways that is a credible a determination all right they please the court good morning tommy look for the united states your honor it in our brief i would just reiterate our brief that the district court not clearly err in finding probable cause to issue the warrant in this case packages that have coming once come in contact with drugs but no longer contain drugs and there isn't any all there it's just an odor that's left the dog to be entirely accurate and tiredly reliable and alerting on all kinds of things that do not contain drugs and its sounds it sounds like the trainers can answer to tweak the dog's alert system to be able to tell the difference between a strong odor and a lesser odor so how do how does a court determine corporal jeffrey murder in the testimony the defense brief appellant's brief incorrectly argues that the dog was trained on amounts less than a gram the trainer if for this dog was corporal jeff m that examiner the tester the certifier from the honolulu police department who was in a different division from the narcotics and vice dog and jeff merkley was he was a swat team officer did not train the dog  he tested the dog and he did say that there were small amounts of crack cocaine pieces of rock cocaine that were less than a gram that were used in the test but the dog was trained not to alert on testimony that the dog was trained with real drugs and it was trained with drugs of one gram amount are more up to five pounds or and during the test there was a test of large quantities and at times at least that officer wayne silva testified to that both of whom were found to be credible officers found to be credible in their testimony the court went to great lengths to explain the franks hearing steps one and two weren't met never got to step two because step one didn't didn't show that there was any intentional of omission or falsehood there was no reckless intentional omission or falsehood in the court s even if i did find those which he did not there was still probable cause excising the information from the of the certifications from the california counties canine association and the american working dogs association because the court found the the third certification done by the honolulu police department was valid was was accurate was meaningful basically the united states couldn't have better findings and in this from from this district court judge they had a three day hearing they had the dogs training records they had the dogs alert and seizure alert records they had the alert seizure records they got into the postal unit and took pictures and was able to see that they had their own expert they got to call and cross examine or examined corporal merton's of the dog handler they got to examine the postal inspector who as the judge found looking at the totality of the circumstances it was not a well trained dog that was alerted it was also an experienced postal inspector who had done this for nine years and i think his testimony was not in the affidavit was testimony was he had been at that facility for a couple of years and it found over one hundred  densely packed he recognized that drug dealers use priority express mail because they can track the packages it goes through by checking the postal lot website he recognized that this par l the sender of the parcel in the database checked that he did at the post office loading facility for a mobile device wasn't that sender was not associated with the with the reality of california address on the package  prior to express more package and that while the color heaver was associated with the ever beach address the package could be sent through and received without a signature all those things meant this experience a postal inspector caused him to take that package and believe it was suspicious and then run it through for the and i'm not sure how you say this is sophisticated on supposed to unsophisticated dog but the dog the trained dog but the cord from the door well harris the court talked about a well trained dogs alert well show that there's a there's a fair probability and that's all that's required for probable cause that drugs or drug crime will be found in that parcel unless the court has particular questions for me i don't think so thank you very much and we ask the court to affirm we gave you is ok what's the smallest point of drugs that you've used in marvins training and the answer is about a gram and then on page one thirty four of the transcript about the false alerts mervyn was wrong right and he answers well the dog alerts to the odor of narcotics question just like residual odor answer the odor of drugs question right answer so it could be contaminated odor could be lingering odor residual odor continued in the past but does not now can narcotics and i think that and i'm i apologize i don't have the the paycheck may have the patient front of me but steve sloan who is the government's experts there was a line of questioning about specifically about currency and he talks about how you establish a higher threshold amount for the dog to alert to so that in cases like currency social amount of  that piece of equipment and tell you whether you know can it measure the strength of the odor of never heard of and again i think the answer is you make sure that you're using in training in certification a certain amount of the drug ever certain purity so that you're not training the dog using a gram amount that maybe twenty percent pure that really is only two hundred milligrams of the substance so that the dog learns that i'm only going to alert when there's a threshold amount and if you look at a couple of the cases the state cited i think it's the government said i'm sorry think hila sentenced bets in those cases those were active alert dogs and the trainer said in those cases the dog would more strongly alert the more presence of the odor there was so i think it's possible to make sense of the whole problem i have a guess and maybe this is a factual problem dogs can smell things that humans can hear so how can we know when the dog is right and when the dog is wrong i think you may be asking more than even dogs are capable of explaining i don't know and perhaps that's true yarn and i think that that's why the dog sniff analysis is so challenging because it's sort of its own thing it's not a machine it's not an informant that you can cross examine and ask questions about if you're going to do not bring mervyn to court for the hear