right welcome we're going to give you you know fifteen twenty minutes per side say some time for rebuttal the microphones are for recording that for if occasion so for our benefit and anybody else keep your voice  every adult member of his home accounting for when he was at home during the day and establishing if you have today but your true that there were no visitors to the house other than residents of the house throughout the day the other purchase at the door as a christian some of these cases where he says i came to the door he goes back into the apartment comes back with the drugs then that would make sense the problem with him in this case for that interpretation is the first informant story which is that he comes and there's a conversation the front room about running drugs they go back into the kitchen in there there's you know bunch of marijuana into as well as two drugs on the table and there's further is off in another room in a bedroom they're going to hear hey there's somebody else out here who's having a conversation with mr moss so i mean there's enough detail here to establish if these witnesses where is where is the reckless disregard for the truth right the potential here is basically with the officer it's similar to chambers that the officer is recklessly pressuring somebody who that namely the c i says that he's bought every other day from the last for the past three years at yes he went to the time he's due on the date of the conversation is going on there's nothing affirmative or in the record that says it would been difficult to just send him in there and see if he can come out with drugs if he can then you know for a fact if there's maryland and that is there any is there any requirement in the law that that's what i'd least officer has to do to get it right not when he independent showing of informants reliability if he's willing to show up in front of a judge because he's as it's similar to be identified informants anonymous informant thing in the united states context if you can identify a person who a person is then the fact that they're you know exposing themselves to potential punishments is enough to get rid of you know any other lack of reliability in evidence reliability for what the person saying so in this case the mere fact that the witness  first place so that gets me back to the first question where is the reckless disregard for the truth in a police officer which is what frank says it's about it's exactly in the same way as chambers you know going back to your case really it's true we don't have an actual affidavit from the confidential informant here we don't even know who the case is where you're going to be able to find out who the confidential informant is without the state simply revealing it  being forced to reveal it are extremely rare but that is the scenario basically that's most likely and what this evidence is suggesting we have a guy who has no history of working with officer packie before suggests quite possible he's just been picked every time you have a confidential informant that is a source of information used to obtain a warrant we're going to infer that there was some misconduct i force a person involved pressuring even even without any showing to them that well you know we've got more here than you would necessarily have another case say there's a there's a specific details here the potentially set this case apart from other ones namely of course the fact that there's no history of reliable tips here there's a number of cases out there including a towbar in castro which i think were quickly decided for other reasons for a rate to potentially distinguishable on this ground in those cases both officers said t feed informants that they were lying on it had a history of providing them with reliable information about is the rule that you're advocating that the informant has no history with the with the at work there should be a presumption hard and fast rules in this context simply because everything so fact depends if we're in a situation i mean you start piling on facts and stipulating that there aren't a dish will fix if there's no history of you know reliability from the informant if the police officer doesn't do you know anything independently all by yet controlled by something like that something to you know specifically verify you know this guy partially unreliable according to his account there's two guns in the kitchen nobody gives testimony that any guns are found anywhere in the house you know not affirmative but it's suggestive yes if the question is you know what the officer did to that this person and that's definitely part of the question there may be situations in which it wouldn't be reasonable to require an officer to additionally you know that in the undercover  s not undercover excuse me a confidential informant story if you know you know again potentially a person has a great history of reliable tips or the look to guidance for guidance into what sort of consideration should be guided guiding a trial court judge rhetoric every case that was decided including cases or affirming the grant of a decision it's not you know hard and fast rule but they definitely you know put up signpost interested parties and that they all lived in you know the mr boss's house and knew him and potentially were on good terms with him the trial court said you know that's not going to be enough in every case sandwich you know again that's been demonstrated it was that all the interested parties said they were someplace else so it was impossible for the transactions with the way they see us here all the interested parties are in that in the apartment it's  actually imagining specifically a defendant who is just generally a very invested in happening what they're trying to say with that is you know this isn't the post conviction carry a context you can't just have a you know a defendant show up provid myself i didn't do it think it was the yeah the phillips case offended says i was sleeping all day therefore i couldn't have done it well you know i think you know you've done a great job of elucidating all of the factors from the various cases but what my colleague is suggesting i think is the problem that we have and there is in order for us to overturn it we would have to say that no reasonable judge could ever come to this conclusion based upon the information presented to th aren't sort of the simple i didn't do it affidavits in the sense that they're coming from people other than the defendants and that they're specifically detailed enough that you know if they're true you know the c i story can't peacher if they're lying guy doesn't have a record of reliable information he's not happy he's not doing anything more than necessary to get this guy in front of the judge and get himself into the building that we could have you know the cia before the that's a bet is missing here i mean definitely this isn't a slam dunk case as chambers was for that reason but in terms of what the standard is for the trial court we have to go back to the center here ultimately you court has to be guided by reasonability on this moron's a standard that's good enough to flush out what is described as spurious cases but is something that's not going to be you know impossible to meet in a situation where there's no reasonable probability that something untoward has happened if the standard is going to be unless you find the confidential informants and he had much perjuring himself under you know in an affidavit i mean that's basically never going to happen what you've essentially done if that is the standard is you've managed to find a sort of classification of cases where french challenges are effectively going to be impossible but they are very rare they are rare but you look all around the country i mean they're just really difficult it's difficult but i mean the standard is it shouldn't be impossible if you're carving out a specific sort of setting given the police a checklist of sort of basically here's everything you would have to do regardless of you know what other other of the other what reliability of an adversarial hearing is i mean the french court specifically pointed that out when they were creating the rule it's a reason for you know great deference to a fact finder when they're deciding between two versions of a story but in a situation like this the mere that you know the confidential informant is coming in and talking to the judge it's enough to create you know a financial case of probable cause even in the absence of any other you know background liability at the smith case  but it's not enough to crates you know a reliable guarantee with the police that's because it's always going to be able to detect reckless disregard for the truth to say such as you should take these cases completely out of the all of the circumstances in this case we're dealing with an informant reza no history of reliability the police don't do the bare minimum more than necessary to establish probable cause we have affidavits from everybody voss could reasonably expect to fin court and friends ultimately know the complete ban on voracity challenges violated the fourth amendment but seven considerations call for a very limited exception and frank's live in the defense of the nec case sought to challenge different than what was stated in the affidavit so frank that specifically carved out a very limited exception for the express purpose of deterring governmental misconduct and preventing deliberate misrepresentation on the part of officer something brings in three his own and two other affidavits to say we were all in our sister's house for the entire evening and so the buy could not have occurred where was the government misconduct here well listen heightened abuse of discretion seen in which your honour's have noted that even though a court may look to a similar set of facts and find an evidentiary hearing was granted does not mean that because it does not mean that the reviewing court should find that evidence she or in the opposite that hearing is not granted where one was warranted but in fines if we look to the considerations that the supreme court set forth in limiting this exception the franks court specifically accepted that that may be a reality  setting forth this rule it noted that one of the considerations is that reviewing courts should be careful not to interfere with criminal convictions for the sole purpose of deterring governmental misconduct because that means to be too great of a burden to place  so even if a separate court would have found that a case factually similar to the center and was granted a hearing in this and say that's not mean that another case should be should reach a same result the because it makes it so impossible for defendants to challenge to warrant affidavits but that's not what course does it best serves the purpose of france which was to deter governmental misconduct but doesn't chambers illustrate why you can't have a black and white role like this that if the if the confidential informant appears before the issuing it takes it out of franks as a matter of law in chambers but illustrates why you can't have th i chambers delusionary it's what the supreme court was willing to accept in france where going back to my original point that this may happen were in evidence here hearing is not granted but we later find out that it may have been warranted this is a casualty of setting forth this very limited rule was that so you would says they would take the position that chambers at the appellate level was wrongly decide yes your honor because again the supreme court and the u s supreme court in the illinois supreme court has set forth that this may be the case and times but it is true great of a breakthrough took place on our society in our system to provide they just because we find out later that a hearing was who may have been warranted there's the trial court was wrong at the whether or not there was governmental misconduct so what do you make of mr winters point that we have a confidential informant with no history with it least not in the application and because he says he sharon but again chambers sets forth their very example where the evidence hearing hearing was not granted but later we found out that it was warranted that will happen but according to centauri in frank's itself that is ok a number of the places he visited that day but he still maintains that he was at home for at least eight to ten hours of that day and while he was there he claims that this drug dealer not occurred but if we looked at people versus cas in this case in addition to failing to make a specific allegation of deliberate faso an officer and part of officer pappy they also fail to preclude that any drug deal occurred that day there are about into to now is where he is at locks no ticket stubs nothing showing that he went to these places on that day and while in his brief opposing counsel i seriously people may not keep receipts for the small purchases anything to show that he was telling the truth would have been helpful and know where the people setting for this question set forth a bright line rule that you have to present x amount of evidence to meet the standard but there's nothing here other than the self serving and potentially b you're sharing these affidavits don't preclude this possibility that this judge transaction occurred and if we follow the president set forth in this district this court should affirm the trial court's ruling and noting that no evidentiary hearing was warranted was granted that decision would be final to some degree and this is the case the present why these affidavits are not sufficient and the child what was reasonable in making that determination for those reasons and for the reasons  of two things first i want to briefly address this logic from go astray either the burden for evaluating the reliability of the informant shifts from a police officer to the judge when the informants obviously producing information from a judge has some effect that's the smith case if they're willing to subject themselves to potential perjury punishments that provide some additional reliability but it's not as though there's some sort of shift of who's the decision maker the decision  always with the judge the judge's job to decide whether or not there is probable cause official to issue a warrant again the important thing here is not the opportunity to look at the witnesses face necessarily asking questions specifically said in smith it doesn't matter for purposes of whether or not the witness showing up helps establish reliability whether he was actually asked questions what's important is demonstrating that he was willing to potentially expose himself to them into a perjury we second guess on that basis and say well you should have done control i would have known there's a couple things going first of all that the police officer has some clues at that point but he doesn't have all of them for instance when the search eventual goes off it turns out that the information in there isn't entirely good there's you know a lot of marijuana in the house pets none of the kitchen which is where he says he saw it and the guns are missing secondly you know again the officer doesn't necessary you know even if the judge asked the officer did you pressure this guy too much with the officer going to say no no no you know we just had a conversation that's why it's essential to be able to look at the entire circumstances as well as the affidavits they're being presented by the defendant after the facts and just one worth brief factual detail about you know the absence of you know ticket stubs receipts something after the fact you know as a point on the briefs you know obviously these are the sorts of things that people don't normally you know keep around at least when they don't have a reason to believe that they're going to have to do it  the application for the warrants the earliest that could have happened is you know once the state files it certainly stance or discovery and begins producing documents to the defense that's at least two months later by that point the flowers remains gone out of the balloon if that's the trial court's reason for getting rid of for not holding a hearing in this case i would have given it to you but you just didn't have the receipts that just doesn't make