beyond a reasonable doubt is no it's not it doesn't guarantee that an innocent person will never be arrested or held against their will and ultimately decide no it doesn't and we have here a person who was home was alone she admits when the alarm power wish mysteriously shut off she had used marijuana she was untruthful about using that as a pam and her boyfriend put down hundred sixty five dollars or something more than that and renting a trailer why isn't that probable cause your honor first some of those facts are disputed i don't believe that that's that's accurate would not really matter i mean it's we're dealing here with a no reasonable officer you can be wrong i'm probable cause absolutely there's got to be more than suspicion there's got to be more than this doesn't make sense this is suspicious we're not sure what have just the power packet pulled off on the alarm system where the phantom that came in and did this that oh no one's ever been determined that but it doesn't it doesn't fit a series of facts where she made up the story she republished the letter you got she couldn't be the one that she reported to the police that her attacker forced her into the back room where the power cord was pulled the phone cords out of the wall and poured the phone pulled the phone off the wall it was all over the floor there are pictures it was all over the floor in that room if she was making up that story she certainly would have said and by the way he told me to pull the power cord to it makes no sense that she would have reported one and not the other and the reasonable officer has got to consider that a reasonable officer has got to consider what's the alternative what happened here if what she's saying is not the truth what is the truth detective evanson admitted he had no theory of what happened he didn't know what happened in the money where could it have gone the police came and saw or they never found the money they never found it on her boyfriend who showed up at the scene why would he have showed up at the scene if he was part of this it makes no sense for him to arrive at the scene and submit himself to the police if he was part of this entire money i don't doubt that said to us it might not seem like probable cause i don't doubt that to many detectives that might not have been probable cause but we're dealing with a that's correct they were not in the affidavit they weren't made part of the probable cause that was added into that or there was nothing in there about about drug use there was nothing in there about marijuana there's nothing in there about die as a pam what was in what nothing in there that district court that's just something that's been raised on appeal as judge perry point out it wasn't part of the affidavit it was in the police report but but the concise statement of facts submitted to the district court was solely based on the affidavit we had no reason to address the drug use issues was not but made an issue by the defendants but not and not the issue of the hook in of the the alleged cook at least report after the fact you know and that was not an issue that we were required emphasis on the on the alleged predisposition and i a s officer evans i'm wondering how if at all that should affect us in trying to decide what would these facts what does that have to do with our looking at the facts of record and trying to do it in an objective way because not only in both the defendants and the district court have have indirectly relied on a series of alleged  failure to cooperate or reluctance to cooperate now that's not set forth in their new married facts but they both mention it and say well there was an inference that she didn't cooperate with that with the police and so that can be part of this probable cause but certainly heavily of it into the district court's scotian right it's not in his new maria facts are point regarding his treatment of her was the reason she might have been perceived as failing to cooperate was because from the first time she met him he was accusing her of lying of stealing the money and all kinds of things and under those circumstances it's certainly understandable that she wouldn't be crazy about going back to to meet with them even though she did the day after she was released went from the hospital so it's relevant to understand perhaps her reactions and if you're looking at it in the light most favorable to her why she did or didn't do things she did or didn't do but are you conceding that it's not relevant when one looks objective lee to me a case like this screams out for a jury to look at these facts and determine whether reasonable officer should have found probable cause well i'm certainly going to be interested in mr graves take on this too but i'm interested in yours as well how if we were to determine the probable cause issue by saying no probable cause no reasonable officer can say there was probable cause what would be left of a qualified immunity assertion i don't believe there be anything left the qualified immunity issue so it all boils down i mean whether they have to david's good or bad whether scoff i mean you know all comes down to that single question a reasonable objectively reasonable officers view of whether there is probable cause that right correct and i think there are issues of what facts should be considered in that analysis but that there was no prob  was a robbery and there was oral sex involved and it was done by a white guy in blue jeans and that i think is a fairly common description well i think it was a more specific description than that it was a weapon both of them use  black handgun ok both of them use the same sex act which was a little bit more specific than that they were right off of the same route one thousand which a mile and a half away in granbury township i mean there were numerous similarities and and these were the only two there may have been one other but either two of two or two of three sexual assaults in cranbury township for that year both were led both investigations were led by detective evanson and the state trooper trooper that we deposed this individual was alternately a serial rapist across pennsylvania state trooper who was in charge of the statewide task force said a detective investigating those two cases should have recognized the similarities and he never put them together about how about if that happened in philadelphia i mean there is such a thing as  maybe i think you're looking at a reasonable officer even if if it would have been in philadelphia if it would have been the same detective looking at the cases i think there were enough similarities that that should have stood out he couldn't have been a copycat because the landmark landmark would have been the copycat of magistrate we would be entitled to show the additional facts more favorable to sarah that but didn't disprove probable cause and we think there's a lot out there and you know the landmark attack there is there's lots of things out there that no reasonable officer should have been able to look at this and say there's probable cause that she made up this entire story and took the money which is how there are there are some some facts that evanston did not put in this first affidavit that he could have  that because detective evanson i believe obviously determined that that wasn't relevant to probably because he crossed absolutely i mean if he was directed by the assistant district attorney to only include things are relevant to probable cause and he included what he included i really i'm astounded i realize we have to judge this by the no reasonable officer standard but after that that second incident was in charge about philadelphia here we're talking about this this little round ship or whatever it was two assaults right now three two in the whole year and he's investigating officer on both with a handgun very graphic  description in both instances of the the way the fellow likes to get his pleasure and i think you'd have to concede that the m o is remarkably similar so you have two and they look very very very much alike how is it possible that a reasonable officer can say and still maintain on appeal that it would take a confession or d n a to get him to see a link that was his testimony or will because there are that i guess my question to you then is is that not a confession that this man is not is far from being a reasonable officer so if we're going to look for what a reasonable officer would think we better be looking for someplace other than sussman oh no you're all right so i have with respect i disagree with that assessment when i do then what what what what does it take what does it take does it really is it really the position of the defendants that the only thing that would cause a reasonable officer to link the landmark attack and the attack on ms reedy would be you nay were the assailants and fashion is that your best position that's not our e if there was one that had no evidence no physical evidence that would support what the victim said and that's the really case the landmark case had physical evidence of an attack they occurred in different locations maybe within the same township maybe there were some similarities to this but even the play miles apart i agree and only a few months apart too but i think that there are sufficient differences why is it that the detective evanston thought you know this is this really attack is something i should mention on the serial rapist phone call but it didn't occur to him the same day that maybe he should be thinking twice about  think which by the way detective evanson and this year he asked for that he asked for the serial rape investigation by the  the standard we've got to look to is whether the things that got left out were misstated in his affidavit amount when they're added back in amount probable cause we have to do that in the light most favorable married right so if you say well he knew he knew there was a serial rapist out there and he knew that ms rady misread his case was pertinent to that as him self weighed into those waters is it is it possible to say that that's an immaterial help us get to where reasonable officer sitting that would say you know what let's go arrest her now the court has to take a look at what the court is adding or subtract look at the reconstructed affidavit from the point of view of an objective lee reasonable officer not in favor of the plaintiff as the victim or in favor of the  don't we have to in considering what the reasonable officer would be looking at don't we have to give that set of facts the most favorable possible instruction perspective isn't that in fact what summary judgment demands of us the standard that we're operating under here i don't think so you're i think that there's a two step process and the first step is to find out what the facts are in the case now i'm not saying that you determine the facts you decide the facts like a jury summary judgment purposes you have to look at it in the light most favorable to the nonmoving party ratz true then one once and i think that there's this report said that repeatedly true and the district court i think bend over backwards for the plaintiff in constructing the facts so that the district court could then reconstruct the affidavit now once that's where a pretty heavy reliance on what he characterized as her lack of cooperation and her reticence and and and her becoming upset when questioned about the alarm system if you really look at this in the light most favorable to ms reedy don't you half the say well maybe that has something to do with being called a liar within an hour or two after you've been forced to commit oral sex on a stranger who held a gun to your head and maybe that has something to do with being told if you and your boyfriend are going to go to jail because you know they know you're guilty maybe it has something to do with after giving three f statements on the night of the rape you're told come to the police station tomorrow and write it all down for me again good if you're looking at this in the light most favorable to the victim is ready isn't it possible you'd have to say well maybe that would tend to make a person less than eager to go talk to detective evans i think that you have to take the the two steps first step is to determine what might be the historical facts and if there's a difference between what mr what ms reedy would say and what detective would say like for example that the day of the interview and as a district court did the district court construed the record and construed the facts most favorable to a plan but the second step is to take the facts reconstruct the affidavi and then from the point of view of an objective objection reasonable police officer then you assess those facts and determine whether there's probable cause when you don't is everything the right  one and if you're trying to if you're going to lay emphasis and legal consequence on what you say is her reluctance to cooperate how can you do that without taking account of detective evanson behavior exact of evidence and believe that ms really was hostile let me let me and let me quote to you this is what the district court actually said whether detective evanston had a predisposition towards claims potential fabrication of the entire  incident from the start of his investigation does not change inculpatory information concerning plaintiffs in this i said this about any follow up meeting with active evanson how can that possibly be true to the summary judgment standard if we look at this in the light most favorable to ms reedy how could we say as the district court did well you know what no matter what detective evanston did with respect to her it has nothing to do with her well in decisiveness about a follow up meeting because your honor as a matter of law whether the text of evanson had malice towards her a predisposition against her is irrelevant in the probable cause manifest in the ways that she believes it was manifest from the things he was saying right from the get go when she told nurse fairy he called me a liar there when she's getting a rape kit done assume that assume that as you as you must because the records shows it that he wasn't silent about it he was vocal about it if he's vocal about it how can it be irrelevant to an assertion that she was indecisive a reluctan a mean don't we don't we have to look at the totality of the circumstances in looking to see how her behavior plays into what the district court says amounts to probable cause yes i think you do your honor but you have to what is not material is the attitude of the police officer is not material and secondly the cases hold that a police officer does not have to believe what the victim said so the police officer can look at the facts that otherwise might be very innocent for example detective comes into the emergency room he has certain facts in mind she's the only person there there's no physical evidence twenty minutes before this thing went down is the alarm goes off let's say comes into the he already says sarah you point of view i think his behavior is acceptable and he could reasonably construe her reaction except all that even if we were to accept that it's not getting to the question i'm trying to ask it of evidently doing a job at the district court here laid heavy emphasis on what it called in decisiveness and reluctance of ms reed cooperate something which you could legitimately dispute given that she gave three full statement the night of the rape and a written statement the sixteenth which was literally the next day after she got out of the hospital and said yeah i'll take a polygraph so you could question whether that really meant to not cooperate assuming the district were right that it was something less than full cooperation and the fact that the district court gives that heavy play in its probable cause analysis doesn't that make evans its conduct relevant doesn't mean that we have to look at what evidence did and not ignore it the way the district court i don't think that the district court nor that conduct and i think that what this read this report said it doesn't matter whether detective evanson had a predisposition is irrelevant and that's true as a matter of law anything new that's a rhetorical question because the answer is no the only thing he learned after the three months later there was the landmark and he still did not if he acted sooner the question might be oh why did he acts so soon yeah that would be the question and then when he waited he's got all kinds of sexual assault going oh well i also yes and as his investigation proceeded over those days that's my question what he learned to call that into question over the whole day over those days he spoke with has whether whether there was probable cause i'm going to protect her i don't think so you are because i don't think that the officer has a spell out in the exactly how the suspect perform the acts know as well she reached in the cash register with her left hand or something like that i think that the affidavit has to show sufficient facts that from a reasonable police officers vantage point he would say it is probable that she did this now originally what he put in was almost the in there and had her statements about how how it happened and had the details about the attack and then fourteen says this is this is too much for the affidavit let us down doesn't he say more than  comes back and says well you were an explicit about the emotional distress claim but then she also does not carry her burden under summary judgment to show facts of record that would support the claim and the claim is to briefly address the emotional distress claim if you read the motion in the brief the motion itself at the end does say venice move for entry of final judgment in their favor but there is no specific mention of any either the motion or the his show that i believe his actions from from the outset when he was accusing her of a crime and then falsifying a police report earning false material in the affidavit after her arrest we've talked about meli if we took everything that you describe in the light most favorable where is there any evidence that he was doing these things not because this guy though he was he really believe she was a liar and guilty of the crime but because he wanted to wreck her life and cause her most i believe one of the evidence that we presented the jury is entitled to hear that claim and make that decision whether that was his what part of his motivation in doing this or what was part of his motivation what would cause a police detective to do something like this i really can't explain what why they couldn't fire it from this yes that's correct you're on