stoma drano was arrested and held in state custody for almost six months for an armed robbery she did not commit and with which she had nothing to do know was released from jail and released from police custody when prosecutors dismissed the charges against her quote in the interest of justice because frankly there was not evidence to proceed well officers on the theory then the objective lee reasonable police officer would have believed they had probable cause to arrest mr drano notwithstanding the fact that the district court recognized that there weren't material disputes a fact with respect to the quote historical facts underlying the determination of probable cause this distinction is important at the outset if the question is simply whether or not the material facts underlying probable cause are disputed well then that is a question for the jury and i think the case law is clear groaners that when that is the question probable cause and the facts underlying any disputes regarding those facts must be found determined by a jury and not the court well are there really disputed facts or are there disputed impertinences exactly that's precisely the point and but the rind is that the facts aren't in dispute there's the videos that show what happened there is all of the other facts tell us what fact is in dispute as opposed to inferences or legal conclusions from the facts i believe there are a host of saxon's to be wrong but i believe your point is well taken and that the principal question where consumers are whether or not the inferences that were drawn were properly drawn and whether they were drawn reasonable so i do think the court is very reason once the court makes the determination that despite the existence of factual disputes or disputed inferences on those facts the court can nonetheless grant qualified and if the court finds that the officer's actions were or their belief and probably cause was it doesn't matter if they believed erroneous lead but some but the problem cause for this reason and the reason i make the distinction the court was required to consider facts that contradicted the inference is that it true which i argue were drawn in profit which i'll inferences that disregarded what i contend repellant contends are reasonable as yours clause doesn't your client ok so we have the video we have the video we have certain timing that happened and we have certain clothing that when  your client when they place make contact with her that matched the description we have certain identifications that take place to the officer and she happens to be married to the guy that is the person that gets arrested for the main thing and i think even she says well it may look like may but not me type thing but you know i'm not i'm fatter than the person or i'm this that or the other but probable cause isn't the same as you know what we're talking beyond a reasonable doubt and what you choose to prove and that there are certainly well i think you're going to show the video or whatever but there are instances that someone could make an empress that she was a lookout to the robbery so she certainly looks like the person that's in the robbery she has clothing that matches the description said she gets doesn't there's some photo identification too right with respect to whether all that's true and i would disagree as to some of the factual conclusions may i address them one by one well but we have to go in the mind you know what did the officer you know what what's undisputed about what the obvious or had at the time and and on those facts and appear reasonable officer would have thought that they had probable cause he lives right why would agree but there is one copy i would address if i and that is that none of these officers in this case worked individually as an investigative detective entity rather they operate as a collective entity and for this reason they rely on the collective knowledge doctrine that is that the knowledge of  first with respect to the clothing the record demonstrates that the officer who spotted allegedly in fact we contend was another woman alongside the road beside the dale hernandez the armed robber spotted her at a time when there was no description of the female suspect only a description of the male subsequently the next description was provided identified the female was wearing a black sweatshirt officer have confirmed that the person he saw was wearing a black shirt later the surveillance video was reviewed by another officer they radioed an updated description to officer hoffa and others indicating the female was wearing a red sweatshirt then the record changes and also have claimed to have seen a female in a red sweatshirt walking beside me we don't know what officer huff saw we do know there was a red sweatshirt left right there was a red sweatshirt so we know that officers got up and they say to her sit tight and they know right at that location there's a red sweatshirt found at some significantly from his description of the events at deposition again we can't know for certain what officer huff saw or said however this demonstrates that there is a legitimate factual dispute from which a jury could find that relying solely on officer haas identification probable cause was not objectively reasonable because it failed to consider other facts that militate against that turning to the question of the photo identification no doubt an officer picking miss mcdonald out of a photo lineup is significant  evidentiary value however i contend that the district court erred by failing to consider the contradictory evidence of another identification that did not select miss mcdonald the store clerk chagny bangs under the bright fluorescent lights of a circle k lineup identification your hopes identification roadside they were all made in comparison to a photo in mt the photo of ms neuronal from four years earlier when she was approximately forty pounds lighter and the force you've ever had her first child experience i you know i guess i think these are all great arguments to a jury if you got to that point but this goes to probable cause and i you know i have to confess that in looking at all of this that it's it's to me it falls on the more shocking side of someone bring in one thousand nine hundred eighty three that she was like a she didn't get prosecuted for the robbery because it doesn't she doesn't appear to be factually innocent they dismissed it in the interests of justice but there's a lot of i'm not at all sure that a jury when have convicted or respectfully disagree but since my time is short let me attempt to change your mind on one point it's a little it just seems like you know that shocked that she isn't relieved that she didn't get charged with that and now at this seems to be as i'm just putting my hand out there for you i have two points on that number on your i don't believe that she would have been convicted and we can discuss at length but i herself and in fact that evidence did not indicate in any way that she was involved in a crime second your own a before amount of time let me address the issue of intent because i think that it's clear adelies in their brief acknowledged torres the city of los angeles the ninth circuit he found that there were serious flaws in the photo identification used by the police were any of those flaws in the photo identification used by the police in this case we have an affidavit from our expert on the question which i believe is part of the record although i don't know if it's part of our record on is there was no evidence of acting in concert likely have here and shown in the video so can my mind it's a little harder for you to rely on taurus there may be better drawn showdown with the suspect we suspect was on he had a much better opportunity than officer huff additionally on it and i think this is important we're the district court disregard of certain facts that militate against an objective finding of intent to commit the crime the cases are clear that specific intent event and what you'll see is that during the portion of time when mr hernandez is walking behind the counter in six of the nine frames if we go frame by frame the female was pointing at him and the clerk is looking behind himself to mr hernandez so the inference that the female was i don't i don't know i if i was in a store and somebody anyone pull a gun something is hanging out waiting for the gun you know pointer to saunter out of the store i mean it certainly it at this point thank you thank you to start out with an important point that our united states supreme court made and that is that the constitution does not guarantee that only the guilty will be arrested as the as your honour's pointed out all that is required is for arrest is probable cause and i want to correct some errors that mr coon made in describing the facts of what took place he stated that officer hough never confirmed that th her he stated that the his observation of the female that he saw was that she was wearing a black shirt he never stated that she was wearing a black shirt if you look at his supplement which is an excerpt of the record  one ninety five he states in the report he prepared that he saw the hispanic male with a heavy set hispanic female wearing a red diamondbacks pullover windbreaker he never stated that she was wearing black so clearly he saw the woman that was in the video when he was interviewed by her when he participated in the defense interview in september of two thousand and eleven he said the same thing he's been consistent the entire time that's ok but i think i asked the question early on about it but we have the video we have certain things that are facts it appears to me that appellant is asking is saying that you can draw different inferences for example the showing of the gun and seeming to go that did just that mean don't do the robbery does that mean don't shoot in the robbery when you know there's different ways you can look at the video sort of speaks for itself but because a jury could make different inferences on that point how does that relate to the facts and probable cause your honor the case law is very clear that all that is required is that the officers inferences be reasonable there can be are variety of reasonable inferences to be drawn from the undisputed historical facts which we have here and as long as the officers  inferences are reasonable then a summary judgment is appropriate and the officers inferences here were reasonable mr cool stated to the court that as soon as  mister hernandez displayed the gun to the clerk ms mcdonnell said don't don't and she turned around and immediately left the store that is not what occurred we don't know at what point she said don't don't but because there is no audio to the video but we do know when it is that she left the store we know that they walked in to gather and then i'm going to show the video of mr medrol or mr hernandez when he displays the weapon to the clerk and then i'll show you at what time he pulls the gun and then we'll look at a different view of the same period of time and what the court who did not walk out of the store until he actually pulled the gun so when he displayed it she remained there and participated in the robbery and then it wasn't until she thought he was actually going to shoot the clerk that she walked out of the store but as your honor pointed out she never left she stood by as a lookout for mr hernandez and watched the rest of the robbery and then we'll show you an she's participating in this robbery and is waiting for him and then you'll also see on these two video clips we're going to show you that once the and robbery is completed he mr hernandez looks out the window says to her  s go and then they meet up and they leave as you see in the exterior video so let's take a look at the position the video i believe its position be so  and you'll see mr hernandez walking behind the counter she's covering her face which the officer reasonably infer is she she's aware that there's cameras there thirty eight so let's go back there  and she doesn't turn to leave until nine o seven fifty so she's there for another twelve seconds after the gun is initially displayed to the clerk which would make it reasonable to infer that she was fully aware and participating in the sound robbery knew there was a gun involved and that it wasn't until he actually pulls it out and she thinks he's going to use it to kill the clerk that she wants out of the store  clearly watching the armed robbery take place and they leave together and then officer have sees them walking together and he stops them and he pulls his gun and he describes this during his defense interview which took place in september and eleven which is part of our supplemental excerpt of record mr cool had that transcribed and officer have described how he pulled his gun out and aimed it at them got a good look at her for up to twenty seconds and then when the male took off running he decided to go after him because he was the one that was reportedly armed and he told his madrone had to stay put he's been consistent with that all along and then when he returned she had discarded the red diamondback sweatshirt in terms of mr bayne selecting the wrong individual in the photo lineup all the fact that he selected a filler in both the male photo lineup and the female photo lineup demonstrates that he has a poor memory of the events that took place on his to nine one one which there's also a transcript of that in the supplemental excerpt of record he states to the nine one one operator i'm so confused and in the description he gives don't know that he has a poor memory thoughts and prints ok facts are the photo lineup who we picked right and that and that he didn't pick  right and he didn't pick so so that's what i'm distinguishing between so the officer can you know that in french you're making is you're saying a reasonable officer could make the inference with everything that they have there that they are there or they're not able to say what happened but they they looked at the video they know what they saw and that it's still probable cause right and so i'll address the the reasonableness of that inference but there can be different you know but if you went to a trial some would argue that he couldn't identify and so did that and then say well the officer says that this person you couldn't identify him who's right and then a jury would look at the video and they would decide the right so the question is really what you know i think the imprint your argument i'm hearing you say c m princes can be different but it's what a reasonable officer would have and for right there can be several different reasonable inferences from the side but the counsel for the opponent is saying if you have different inferences that defeat summary judgment or qualified immunity it does not in the case law is clear that there can be a variety of the quote from hartley parks facts may always give rise to a variety of influences yet it is settled law that officers may draw on their own experience and specialized training to make inferences from ended auctions about the cumulative information of val a valuable to them that might well elude an untrained person the fact that other inferences are possible does not mean that there is a triable issue of fact as to whether there was probable cause and officer baker in his declaration states that in his experience when a witness an eyewitness selects fillers as opposed to saying i just don't see the person in this photo lineup but when they actually pick a filler that demonstrates that they have a poor memory of the events and that is that up by scientific evidence we attached the declaration from our eyewitness identification expert john wicks dead and he states and he cites to the scientific evidence that supports that that when a witness selects a filler it means they have a poor memory and the fact that we know miguel hernandez committed the armed robbery that that's undisputed and so the fact that he picked the wrong  man in the photo line at clearly shows he has a poor memory of the events because we know with one hundred percent certainty that miguel hernandez was involved in the armed robbery so i don't think that really changes the equation and we have a police officer divan t who views the one photo says that's definitely her and then that photo is used in a photo lineup and when officer huff is shown the photo lineup he's selection of a of a person in a photo lineup that's tends to show reliability would you answer one issue that we've not touched on sure and that's the statute of limitations sure issue because i would like to at the time there's been legal thank tension the initial appearance where there's been a probable cause determination by the so in your view was the district court wrong and  probable cause the district court didn't rule on the issue of statute of limitations on what the court stated in her order was that she didn't need to reach that issue because she found probable cause the statute of limitations was not ruled on early on we had filed a motion to dismiss her wrist on statute of limitations and she denied it but that's it wasn't the law it's not the law of the case because there  does the detention without legal process and pursuant to such process is that tantamount to a problem cause which is the supreme court means something different i don't know that i'm understand your question but  i'm using the supreme court only on this on the same day as her arrest she became held over pursuant to legal process at her initial appearance and so that is when the fall a cruel of the statute of limitations  run or using ok that the plaintiff was brought before a magistrate on may twenty first right all right and the parties refer to this appearance as an arraignment and then the state court docket says it was actually an initial appearance pursuant to arizona rule of criminal procedure four point two so although we don't know exactly what was happened on that date no formal complaint was filed until three days later and plaintiff was not arraigned until june tenth so right under that rule the court is required to make a determination of probable cause and we cite to the language of that rule in our ok quick question mr cool do i understand your argument that the lady that we just saw in this video there was no probable cause to believe that she was in that store to assist in the robbery that's my contention yes that's your contention in then your next contention is that even if it was the plaintiff in the store not involved with the robbery well your next contention would be that wasn't the plaintiff to begin with no reasonable cause to believe that the person in the store was the plaintiff so to clarify i believe that it was not the plaintiff and that if even if it was play if there is no evidence of intent ok thank you briefly i have six seconds before i'd like to just be perhaps go ten seconds over i don't need much more thank you ask your requests for additional authority rather than torres may i point the court to gastro versus united states which appears in the papers that is thirty nine f thirty fourteen twenty specifically a head no twenty three unless law i think the pages in my briefs i apologize and also united states vs more forty three f second thirteen sixty one at thirteen sixty three for the principle the probable cause is lacking if the circumstances relied upon are susceptible to a variety of credible interpretations not compatible with nefarious activities which is precisely what i contend is the case here lastly right if i may wrap up just three that no identification of the person in custody the physical human was ever made on the photo no arguments there's been never been an agreement about what description of the suspect miss madonna allegedly matched to the officer who did that comparison didn't recall what he compared it to