the remedy we're seeking that hearing we acknowledge that at this point we can't prove the necessary information in order to suppress the sabbath but we're at least entitled to a hearing on that and the second thing is that this is a little bit different from most most fourth amendment issues the frank's issue is about the integrity of the affidavit and the warrant rather it's and objective determination of probable cause and it's the integrity that has been called into question here i think everybody agrees that the district court did not clearly error in finding that this affidavit contains a false statement so i moved to the second point of frank's analysis which is whether that false statement was material to the determination of probable cause and it was the identification of this black cap was the link between mr daniels and the bank robbery and the only link between the two is his d n a which is found on the black and the misrepresentation in the affidavit told the magistrate judge who signed off on the warrant that the blackcap was identified as being used in the robbery when you take that misrepresentation away the black caps might as well be something that the police officers found on the road there's no association with the robbery and that's why this matter misrepresentation this material as a legal matter the district court made a mistake in not just accessing or deleting this massive misrepresentation from the affidavit but instead of rewriting the affidavit certainly we knew all the facts  objectively there is probable cause but that's not the franks question the franks question is when we sat to one side the misrepresentation even if the result isn't satisfactory even if it's not a sort of affidavit or we've got jumps is there still probable cause because it's about the integrity of the affidavit not objective probable cause so that was a legal mistake we think the district court should offer one option for you know modifying was paragraph eight of the search warrant affidavit in your you know the government of course offers an alternative version in the red brief what your judgments wrong with the government's rewrite so the government's version takes away the nexus between the items that were found and the robbery so our version certainly deletes any reference to the black out there version keep the reasonable to think that there's probable cause to think it too was involved even if the previous paragraph that establishes a link between the mask and the robbery you don't need i think is there a bit of an overstatement on what you're saying you don't lose all connection to the robbery because when you still have this within fifteen minutes you have the officers are covering several items which of course is a black cap right for short distance a couple of blocks away from the bank that was robbed right you don't lose all connection to the robbery no no that's true and and the other difficulty that you run into too is that the affidavit is actually an accurate about where these  about where these items were found we know for example they were they were not all in one location so paragraph they seems to imply they're all in one location but in fact they're in three different locations along i think about two blocks and so if it's if you accept the government through vision you then have to deal with the fact that this paragraph is still misleading because it makes a magistrate judge think these items to recover together when in fact they were discovered at different place and what we point out in our reply brief the state say the police had discovered a plastic bag for example and they got d n a off of that that that corresponded to mr daniels there's that would seem to suggest well you know people may use plastic bags and in robberies and you know so if you find a plastic bag on the road then that makes it up but we don't think that's sufficient you know there are lots of things the police might have discovered in their search for evidence along this route that the robber took but without a specific connection to that actually being used in the bank robbery taking the d n a off they found object is not enough to support probable cause to believe that it actually was used in the robbery let me turn to the third issue which is a preliminary showing that this false statement was made intentionally knowingly or with reckless disregard for the truth and again there's a legal error here by the district court in that the district court came up with its own explanation that would you know make this an innocent mistake rather than  inference that mr daniel suggested that this was in fact recklessly made or intentionally made or knowingly made one of those was demonstrably wrong and it sort of illustrates the dangers of why judges shouldn't create these innocent explanations and that had to do with the criminal information which was filed to commence the case of course and didn't contain this misrepresentation and there's an obvious motivation when you're seeking a search warrant to mislead a magistrate judge into thinking we have probable cause because then when we have the d n a pursuant to the search warrant there's no longer any motivation to tie the blackcap to the robbery that in terms of observations of of the tellers and the the video surveillance so that that's an that's an inference that's a preliminary showing obviously we need a searing in order to prove these things and we need the officer to testify and assess the credibility and then get to the bottom of  facts but in terms of this innocence or or sort of negligence you know we were just including everything the officers found that's not true the officers found a santa hat but of course that wasn't included in either affidavit misrepresentation and that a black cap with mr daniels d n a was discovered and identified as being involved in the robbery so i'll skip the rest of my time for about  a black cap with eye holes cut into it near that intersection and near those other items that were seen by bank employees which were show on video surveillance footage then you have the additional step of the test done on the white clubs on the black cap the black cap which matched database of the d n a so d n a taken from the cap which matched d n a in a database of the defendant then you have the additional status of law and for that identifying the defendant doing daniels and law enforcement obtaining the driver's license information for him and that driver's license identifying that the way daniels was approximately five foot four inches tall  evidence in this case now for france hearing to be granted there has to be an inaccuracy the government does not dispute that the district court found that the defendant made a substantial preliminary showing of an  has to be that accuracy has to be necessary probable cause and it has to be made to liberally or reckless again the government's not disputing on appeal the district court's findings with respect to whether there was a showing of an inaccuracy  the government as noted in a footnote thinks that paragraph a can be read in different ways whether anyone saw that black cap was not necessary for a determination of probable cause government also believes the district court correctly found that the and accuracy was not made deliberately or recklessly given as the district court noted that this was not carved on this was not repeated this was not found anywhere else in the affidavit you have the af describing what the bank employees started paragraph six you have the affidavit describing the bank employees description of the height and weight of the defendant or the robbery that they saw and they have paragraph eight which identifies the three did find the black cat it was near the intersection of one floor avenue and it was in close proximity to other items that were seen and that is what makes it relevant is where it was flooded found and what it was found next to or do you simply delete the missed the misstatement that the district court found which is that someone saw the black cat if you look at paragraph eight you can draw a single line through that statement and delete the omission or delete the misrepresentation which is was not seen in doing so the district court essentially addressed the exact issue complaint of the case law indicates that if there's a material mission that that can be added and if you look at what the district court did the government smiths that's what the district court was trying to accomplish by simply making clear that the after get to dot's expressly state that no one had seen the black cat that a sum and substance of what the district court did in that leads to the same result if you don't consider whether anyone road whether you can call it evidence or you can use it in the case well if it's found on the road next to other items that were used in the robbery yes it becomes rel relationship between the items that were recovered it simply says these items were identified as being used in the robbery and we found them near the back and has nothing says nothing about where they were in relation to to each other  information that is helpful to the afghans so that the whole point of the franks hearing is the affiant made a misrepresentation we don't buttress his misrepresentation by including information he should've put in and in fact the suggests is striking striking those three lines but we but the government also says well and this creates probably cause because the blackcap was found in proximity to the other items but there's nothing in the affidavit to say that the black cap toy gun partially wrap the tape that wasn't no that's correct they were covered all those items right and so what we know is that those items were recovered in three different locations what the affidavit said is that they were they recovered these items near the intersection of glen floor avenue and green avenue so that's that's an impersonation i'm not sure if that's all right a misrepresentation because we know they were actually recovered in three different areas but there's nothing about you know for example if the affidavit it said dolly unmasked was discovered on top of the black path then then we don't have a problem right there's probable cause you know to believe that but that's just not in the affidavit and we can't import