amendment rights against unreasonable seizure were violated when he was arrested without a warrant on september th two thousand and ten the officers did not have actual nor arguable probable cause to arrest him and of course the charges against him that serve as the basis for this on lawful arrest were ultimately dismissed the district court was wrong in granting summary judgment on mr highly response arrest claims for three reasons st the officers relied solely on the statement of a highly intoxicated witness in arresting mr heiliger but the law is clear that officers do not have probable cause when their only source of information is incompetent as this highly intoxicated witness was it is undisputed that the statement here came from a witness in the hospital and made it with a blood alcohol level of point twenty five which is over three times the legal limit in new york and he was observed by law enforcement as making random spontaneous statements no reasonable officer could have believed that a statement from a drunken witness would be sufficient to establish probable cause argument to the contrary that officers about the crime why does that resolve the reliability concerns that you've identified it doesn't resolve their a liability concerns st and i don't believe that it  confirmed information known to the officers about the incident and secondly just the fact that the intoxicated witness spoke at length potentially here does  through i believe the story is that  s which i now have before me tell me what exactly where should i look and why should i look  associates that hardly suggests someone whose intoxication is precluding them from making coach and statements and that i thought was the thrust of the unreliability this is all but a lot of that what's your argument that i may be missing in that regard your honor respectfully i don't believe that naming individuals that may or may not be known to the police have a time as being present at the scene of an assault is sufficient to give them a reasonable belief that mr heiliger specifically was committing or had committed an offense the law was clear are you saying that or even arguable probable cause the st is the intoxication and that's a separate question i'm saying if this were made by stone sober person are you arguing that it's  sufficient to establish probable cause yes your honor and it is insufficient because no reasonable officer would believe that a statement that swinish was present  wasn't an issue any more and they knew weeks prior to his rest that the plaintiff was involved in a shooting close restaurant your honor i don't think that's clear from the record and even if it were that doesn't mean that a statement from a highly intoxicated witness claiming that that person was present at this at the scene of a chaotic fight would mean that probable cause to arrest the officers could have taken any number of steps to corroborate the statement indeed the witness himself even suggested such a step herbert said that some of his people were at the scene of the alleged assault and if he talked to them he could find out more about what happened but the officers took no steps they went and thirty first of all the statement after the arrest should not be taken into account as to whether there was probable cause and even in that nd statement even if you had that which they didn't that still does no evidence mr highly or was arrested pursuant to a warrant is that right that the defense did not rely on the warrant in their papers and therefore the arrest should be considered under the warrantless arrest standard that's the case  court name is brian seekers and i represent the city of binghamton investigators d'angelo hawley woody and peters we ask this court to affirm the decision of the northern district of new york because the it properly bound the plaintiff failed to present admissible evidence as opposed to bald speculation any question of fact as to whether there was probable cause was arrest on september th two thousand and ten and for a later charge of tampering with physical evidence for the destruction of his phone there arrested him at that time and i believe that also explains the lay between the time the information was filed and the time he was actually arraigned on it the officers filed it with the city court he's being held on other charges in the broome county jail it's a matter of when the city court issues an order to basis for thinking that it was deliberately broken rather than accidentally or oh well your honor it was a flip phone and it was separated at the hinge and i would submit to you myself can dictate my law whether i decide to break or smash my own sell your phone i paid for it it's mine i believe that it's pretty clear to the officers that he deliberately broke the phone he was talking to it as they rolled up they yelled swish for him to get down he goes down of the ground and the phone is broken when he when they pull him up off the ground and you heard opposing miss kerry's response to my earlier question how do you respond she seems to us that it's not relevant here and you're not relying in when we rely on the back or affidavit of former girlfriend said he destroyed it so he wouldn't have the evidence is that wrong for us or is it just well it's helpful to me but in many respects i understand a court's concern with that because in regards to the level of intoxication of mr and the role it plays in whether there is probable cause to believe the flaw in the argument is that really regards and speculation as to what blows he admits that the officer shouted swish to his name when they arrested him that morning investigator woody new plaintiff as d because he said d how long have i known you he says since you rested my brother walking in the hospital visit and that because they walked by him they should know that there was an alibi for the stabbing no it occurred after the stabbing taken place was not an alibi but implicit in that is they know who i am and when they walk by me they know who i am and they know me by name therefore they should be with alibis for me i mean there's another allegation of that his argument below and in his brief initial brief to this court was that he speculated the city  heiliger shows that multiple officers without identifying themselves approach of their guns drawn yelling at mr heiliger to get down on the ground or they would shoot him and he panicked and well complying with the order to get on the ground his phone broke we respectfully submit that as opposing counsel identified it refers to both d and swish as if they are two different people which suggests confusion or could suggest drunkenness a jury could take that into account in determining whether it was reasonable to rely on herbert statement there also inconsistency is between the pre arrest statement and the post arrest statement that suggest that the witness was simply not credible and he no longer proceedings thank you