supplement our briefs and that of the case called webb the sloan which just coincidentally very coincidentally was a case that developed in carson city thirty miles away from this particular case the fact pattern in web vs moen and this particular case are very similar we have a very obvious different result in that case as it stands today because that case went to trial and mr web recovered a rather significant award i bring that up because in this case this case has been with the defense in this case the pelini has attempted to make this appear to be a case which involved a an arrest for a relatively short period of time this is not a case about a bad arrest this is a duty to the police or is it the prosecutor they both have a duty your honor but in this particular case it's brought against the police and the police had the duty because they had the evidence your honor and they concealed that evidence they misrepresented what had occurred they misrepresented the facts in the case and they were sitting on evidence that sloan did not put it upon the prosecutor what webby sloan held was that if the prosecutor prosecutes the case on its own decision despite the police telling them that it's  arrest and there is no no merit there is still municipal liability so what if you apply webby sloan's finding as far as liability you come to the same conclusion and that is you can blame it on this in this case on the prosecutor it doesn't really needs farts of their duty or their liability so in this case the difference is is even though s have liability based on the fact that the prosecutor brought this case knowing that if they had the wrong man in this case the police knew they had the wrong man and they brought the case despite the knowledge of the facts hard did the follow up and found out that there was the other person ultimately there was a follow up your honor the only follow up that they really did was they called in the pager now it's their position and we all meet it's our position that that's a gross misrepresentation that the page or they call the young lady who had the page reporting to them and we have no way to confirm or deny what she told to them but in fact she told our investigator who had that pager his name was pocket and he had lost now the inference obviously is that she wouldn't lie to the police and then tell us the truth and fact that it's our position that the facts when this case is tried will show that they knew that that pager could be linked directly to pocket the key your honor has a has a number on it it has instructions on it merely picking up that phone and calling card a van company they would have found out that that key was registered to a francisco garcia they didn't do any of that now we don't know if they did that or not now is this just gross misconduct or error on the part of the police our pollution your honor that this is not this is not just somebody who was too lazy to do its job your honor that there had to be a conscious decision to to decide that they wanted to try this case against this person with the very very sketchy evidence that they finally took to trial our position is that this was a conscious decision and even during the trial when it was pointed cops make the around and and then whether they had evidence or not the point that exonerated your client is one issue whether they should have done supposed to be doing here so they should do this within their power well the police when they have something that they recognize and they have to recognize this your honor that this particular key is the key to the case they have to know that i mean i can't say that i can't look inside that officer's mind and say that he knew that but i can just tell this court that this is such an obvious key to solving the case that it's not me negligence or even gross negligence it's not even reckless it requires a conscious decision to have this critical piece of evidence and totally ignore it because you know you have somebody in custody that is in this particular case an innocent man but you know you have them in custody with a very suspect identification the identification is is something that all officers know it's taught in basic one o one in law enforcement you know when identification is his at best questionable so they went into it with that and there's there's evidence here that the officers were had up a mindset from the very beginning because their mindset is gives is demonstrated by the fact that one of the officers and it's ratified by lieutenant me that kid was wearing long sweatpants that it had wear pattern on the bottom and it was very obvious during the trial that the wear pattern was just that of wear a pattern that was not from a bicycle see throughout the case as it develops the police repeatedly buttress their case by either misrepresenting what the evidence is or in the case of the key in the page or actually it's more determining whether summary judgment was proper this court need only look at its prior precedent which governs this case which judgment you have been correctly applied that was united states versus bagley united states versus heath ledger in the united states versus hammond and those cases focus on what the officers knew at the time they made the arrest what were the totality of the circumstances in this case the undisputed material facts are these the victim connie jo mickey woke up in her home she saw a male intruder standing above her male intruder left through the daughter's  here and would seem to be the case given the result an obvious and important and if sculpt story piece of evidence that they simply ignore first of all i don't think there's any evidence in the record at all th in the household and were taken as evidence and were entered into evidence i checked with page mark and the only information that they would give me was that a madeleine valencia owned the pager and it is unknown as to what her contact or her knowledge the suspect is it is it is felt possibly that the suspect either remove this pager from another vehicle or had the use of his girlfriend's pager if that is a possibility i was unable to contact madeleine valencia at this time some further investigation and the record will reflect that in one particular instance deputy district attorney roger holmes did ask for a follow up investigation of not only the bike but i believe the set of keys as well but he was doing that at the direction of the district attorney's office now mind you we're not we're not instant and sympathetic with this with this young man's plight the fact that he spent forty three days in jail the fact remains that our legal responsibility was does nevada law require tension hearing within forty eight hours of the rest i'm sorry i didn't hear this nevada law required attention hearing within forty eight hours of arrest that's a good question i'm not a criminal lawyer so i'm sorry i can't answer city is aware this person never had a hearing for the entire forty two days and as far as we know judge hawkins you have a question but my follow up to that was if there is a requirement for a detention hearing within forty eight hours of graft why wasn't that done here well and that's a very good question but that wouldn't have been the responsibility of the sparts police officers to have arranged for that hearing as far as i know that would have been the responsibility arrest quite frankly i think they had the wrong parties before the court in this particular case as judge mckibben pointed out spell it out quite frankly i think that the plaintiffs did not have all the proper party defendants in this case was he should have joined who he should have joined washoe county as judge mckibben rightly pointed out if you have no further questions of me that's all i have reading of charges within seventy two you hours your honor and that's all you're it's not a hearing that happened here your honor it's just merely they're brought in front of a camera and they're told what they're charged with this case is about probable cause your honor and problem will cause is defined in several cases as a totality of circumstances in this case a totality of circumstances have to include all the evidence they can't l law to hold him for up to one hour because they had witnesses he got out of bed your honor he came from his mother from the bedroom next to his mother his mother said he's been here all night he was going to work in two hours the kid had no prior anything and they had a totality of circumstances here that clearly pointed out that they had the wrong guy and they ignored everything except the idea and the i was all there was they could have gone to trial they could've done anything they wanted but they had this other evidence and the evidence was so layering really simple and they had a duty to look at that evidence it was you can't blame it on the da who is anything to us the pager didn't match him and his mother said he was home in bed i mean so they've got one very questionable piece of identification so the evidence thank you your the thank you council your time if you'd like to make a call please hang up and try again if you need help hang up and i'm guy no operator if you'd like to make a call please hang up and try again if you need help paying off and