proctor abuse of process because there was no probable cause to arrest this individual mr howell was driving his vehicle legally along fourteenth street in clovis new mexico with a passenger she asked to use the telephone after she used the telephone along comes a state policeman who stops my client and tells him to get out of the vehicle in fact going to well before the stop planning to arrest my client on the basis of planted evidence that in our complaint paragraph ten holborow intended to falsely arrested accused mr howe criminal activities that were the sole responsibility of his passenger council let me ask you a question about your complaint and may go a little bit beyond that but i need some help understanding what claims are in the case at this point  mention faults arrest and you mentioned malicious prosecution and they're both specifically addressed in paragraph thirty three of your complaint do we have a the illegal search as well as the false arrest and the false prosecution now here he ruled that the defense the police officer had qualified immunity on the basis action for evidence that was suppressed under the fourth amendment he he seemed to think that i misread the complaint quite confused i am who does probably yes or no can answer clarify my confusion did you bring a fourth amendment illegal search claim on is a no no and did the court decided this on a nonexistent fourth amendment claim he also ruled on false arrest in the false prosecution so would those are issues that are ripe and before us i guess we go into claims based on the new mexico court of appeals claim no the problem with that is that it was not pled as an affirmed the defense nor was it brought up in the motion to dismiss and secondly issues were not necessarily determined by the state supreme court of state court of appeals and so my client didn't correct the law has been established for at least twenty seven years in the tenth circuit an officer that makes a false statement may be liable and under nine hundred eighty three for fifteen sixteen as well there's a case from the very county in which my client was arrested chavis versus curry county of county commissioners where the state supreme court state court of appeals excuse me allowed a nine hundred eighty three action to go forward for a search and seizure so we would submit that the law has been clearly established in the tenth circuit the other issue that  the district court found dispositive there wasn't any causation because the prosecution and the prosecutor states that a police officer who deliberately supplies misleading information that influences the situation to prosecute cannot hide behind a fishers who they have this case whatsoever it's a case where an officer is provided false information in order to frame innocent man and in a civil case the defendant doesn't want that real evidence in that he had done something bad because it would impair his civil claims so we try streaks true that your case is rangers and you're seeing used in a civil case a lot i don't want to get too far afield because we're not using that great of a trust for our but you know there was one of the things i noticed about those cases of the th excluded evidence were cases where the reason for the evidence not coming in in the criminal case was because of some improper conduct by the officer that that we want to deter even though the evidence was real the evidence is damaging they found something really bad but in the criminal case were saying the office conduct is such that we want to deter that conduct by not letting that real evidence come in not real and so so instead of saying we're trying to rely on something the officer did exclude you're trying to say here the evidence is real and therefore there is no reason to exclude that  plants planted evidence my client never had another method the evidence that they found the math pie you're not saying that shouldn't be consider it should not be considered you know i it's it they found  it it was but it's not my client's now i understand but you're not you're not arguing that that should exclude it from consideration but they actually found that's correct it's correct and all reserve the rest of my complaint the complaint as we read it in the court below and i think as the district court interpreted it didn't allege that the officer planted evidence as paragraph eight which is the allegation that officer l r i'm sorry the plaintiff was handed a pack of cigarettes and accepted it without question he cites paragraph eleven that the cigarettes didn't belong to him and that he tried to explain this to the officer and that the officer paragraph seventeen the officer had planned of this arrest from the beginning and that this passenger named for false evidence but then you just read some allegations in the complaint that essentially allege that what i believe was alleged was that there was an informant that was working for the office yes and that the informant planted the evidence but the informant was working with the officer called the officer on the phone so up we operating in a concerted play isn't that enough and notice complaint i don't think the complaint goes far enough to say that the officer had pre planned this from the beginning to arrest him for planted evidence in other words the informant may have planted the evidence to get the point to get the plaintiff but that doesn't necessarily mean that the officer had planned and set it up with the informant to have the informant plant the evidence so he could affect the arrest i don't think that's the link that plaintiff makes in the complaint he does on the grounds that you that there's intervening causes for price macaws and that there was you couldn't exclude evidence those are the issues and the ruling that was made i don't know why we don't have to just address those if we conclude that they're right we affirm it with the wrong reversed and then i guess that when you get remanded you would be perfectly free to argue to the judge that they are bringing a claim that they didn't properly preserve on the complaint and the judge can rule on it but i don't know that that is an issue before us because that wasn't the reason that i understand that the judge reversed and dismissed any hell the judge reverses m that then be free to raise later i not sure i understand the court's question well you're arguing that there's a variance here or that this wasn't planned but i didn't think that was the basis for the judge's discrete judge's ruling i thought the bases with his ruling was there was no proximate cause and that you can't use the exclusionary rule and those stands separate from what you're now saying that well the complaint alleg this informant set him up illegally but there's no allegation that the officer knew that she was going to set him up illegally my point simply is that may or may not be a good claim but we have to rule on what the district judge's rulings were and responsible for this evidence in place of it which is a much different case than simply arresting him for the evidence that was found i don't think my officer succeeds or prevails if the theory is i think it prevails other reasons but i don't court would have gone through the whole analysis of determining that yeah he's saying that the that the criminal cases should have been excluded because it was false evidence but in his civil case he is not arguing for any right and anyone's damages for what happened to him yeah i guess what when then the question is the case law is pretty clear that if officers plan to conspire with others to play in false evidence there may be liability and so that's what he's saying is got to be tried and decided i understand i guess that when i open the argument like my point was that i don't think that that's adequately planned i don't think that link is made between the officer and my only point is that i don't know that the district court ruled on that link i if they may have been inviting you to point that out to me but i believe that that is a that were the way it goes yeah but my understanding of the district court's decision was that you wouldn't exclude the evidence in other words the officer of found the pipe and found the drugs in found the receipt for the cigarettes with plaintiff's birthdate in other words you could consider that for probable cause and there was ample probable cause to support the arrest therefore this qualified immunity would think that that then rises up to that robinson case which says that if the evidence is planted you can't consider i theory that was not set forth in the complaint and it becomes a different case because if he planted the caps just to the just to hopefully clarify this was it you agree that it's a theory that's being argued now to this court yes ok and was it a theory that was argued to the district i believe that i don't know that it was specifically to me it becomes a different case and i understand but if it wasn't argued to the district court i think that's something we would be interested in knowing i understand and i think i opened by saying that in his response brief this is where it's internation that it was planned but he doesn't go so far as to say that the officer knew what was responsible what was the pl decision typically we were reviewing decisions the district court made on the basis of arguments that were presented to the district court and we have a decision by the district court and now we have arguments on appeal that you're saying are our new arguments i think my question i just want to be clear that you're saying that those arguments were not presented to the district court and that's why the district court in the dressing room is in mind is that your argument that is my argument i don't think it got there i don't think that the that the plaintiff advanced that link between what the informant did or is alleged to have  in terms of setting up the plaintiffs i don't think there's a link between that and what the officers knowledge was at the time of the rest so you're saying that when we look at the response to the motion to dismiss and the argument on the motion to dismiss we will not find statements from mr howard's attorneys to the effect that helper audio was complicit in this conspiracy to plant fo and the argument before them on the motions to dismiss what the plaintiff's response to the motion dismisses you saying we read those documents and that transcript we will not find allegations in statements to the district judge that the officer was complicit in an agreement with the confidential informant to plant false evidence i don't think it gets that far i think right there i think that there's an allegation that the informant was working for the officer and that it was the informant that set up the plaintiff but i don't think there's a link between the officer like supplying the drugs were in for asking the informant to supply the drugs to plant the drugs i don't think there's i don't think that why the officer can't be held responsible in this case for the fact that this gentleman was harold tried and convicted for this crime these seems to me that if these theories were so genuine and significant that they would have been raised by his trial counsel when they worked none of these were they were raised on the theory that was advance in the trial where it was a reasonable doubt theory and it's not as though the evidence that was in existence at the time for example the presence of the passenger the knowledge that she had made a telephone call right before the gentleman got pulled over that she was let go without being searched all that stuff was narrow the time a criminal trial advanced it seems to me that that would have gotten raised in a motion to suppress and it wasn't and please a court of this in my response to the motion to dismiss your honor and this is on page fifty six of the appendix in the second paragraph the last full sentence m