dog executed his voluntary statement on march twenty seventh of zero seven he didn't include most of the facts required to make out a tampering with a witness in the fourth degree a witness in a pending action or proceeding what did he say i'm sorry did he say about that he said i didn't say anything about him being a witness he didn't say a word about him being about to be called as a witness he didn't say there was a proceeding and he didn't say there was an action being about to be called as a witness and that's why the police make repeated reference to arguable or probable witness or potential witness that had nothing to do with the tampering statute the stand why isn't the why isn't the perception of the individuals involved relevant if you're suggesting that that has to be a provable fact that he was going to be a witness because that's what's required to make number of those turned out not to be provable by the government beyond a reasonable doubt but this wasn't a charge that was actually ledged neither in his voluntary statement of three twenty seven zero seven nor in the accusatory instrument which w backed into the same date there isn't a legally sufficient series of allegations aside from which in the voluntary statement there's no offense state now there's been some suggestions made that you don't need an offense state but if you read the tampering with the full and of what the greet you do because you have to know that the person is a witness in a case or in a perceiving or back to the accusatory instrument is what we're looking at i'm sorry this is the accusatory instrument that we're testify they're going to ask me if i was a citizen or legal in the united states of america well you just told us that he doesn't reference test first he he did not record he said that my client is that correct that that was what you started your argument with yes ok and i'm reading something i'm just trying to understand the document it says accusatory instrument it's  fifty ninety five if you want to take a look at it and it says i think he's tried to scare me if i go to the court to testify because he asked me if i was a citizen or legal in the united states of america in the usa i thought he preferences testifying in court but mr magoo never said anything about a witness or a pending proceeding there's testified mean where  testify other than in a court proceeding well that almost bugs you answer my question before you go well what does the word test where do you where else do you testify church i guess but i don't think we're but he was going to testify he never did testify except in a contrived situation on march twenty one of those other well sometimes tampered with witnesses don't testify because they're scared so it has to be about testify it seems to me well sajid doesn't say that but the glendale testified that what he meant by scared was that he asked a lot of questions and maybe confusion and he said i'm not worried about going to  let's set that aside for a second just looking at the q story instrument on fifteen ninety five when he wrote i think he was trying to scare me that if i go to court to testify they would ask me if i was a citizen with legal is that is it your contention that that is not a basis for arguable probable cause absolutely because in order to have arguable probable cause an officer has to ha objectively reasonable basis for believing there was probable cause or someone says to them i was called and i was scared and someone was trying to stop me from testifying in court is that is that not enough under fifteen points and i think not because to me point ten is explicit in requiring the person to actually be a witness or about to be called as a witness in a proceeding or an action and speculative hypotheses don't work under that statute i can't your view is that in those circumstances a the arresting official or there might be needs  obtaining statement confirm that that person is actually going to be a witness in whatever legal proceeding absolutely and in this case had to say because he wrote out the first involuntary statement that he was a witness or about to be what is in a particular proceeding or action he said none of that he didn't even give an offense date for the proposed suppose of conversation with my client and i think that the absence of an offense state and if you look through the record there are multiple different offense states that are given and none of them cause a let me ask you something and i just don't know enough about you fifty one ten what is the statement were the following if you ever in the future testify against me i'm going to kill you that's not tampering with a witness as a hypothetical if you are at some point in time and that's not what the tampering statute says but the the lack of the allegations of the critical elements in that statute should have been a warning to all the police that they couldn't be an allegation or sufficient allegation of tampering in the fourth degree everybody who came in contact with those allegations must have known that the  illegal because there was no tampering with a witness in the fourth degree allegedly not that is it's i think your argument as i understand it now is that there was no action or proceeding that's true is that right there was no action or proceeding at the time my client made the phone call which was april sixth of zero six and they fished around fox came up with a date that was months after my client was arrested they had all client made the call that was april of zero six april sixth of six that's why they were looking around the fights when the call was made yes they were looking around to find some kind of proceeding that would match up with the april sixth but on april sixth one  dunn was not a state actor he did not conspire with any state actors there was no meeting of the minds or pre arranged plan between done in any state actor officer fox was the only want to determine to arrest me again the pilot office r fox made that determination solely based on the lindows voluntary statement he was he was not asked to arrest the appellant by done by detective harney by a d a no or anybody else  glinda went to the police department to give the voluntary statement on his own done did not tell him to go there done did not go into the police department with glenda go into gave the voluntary statement to officer fox they were the only two in the room at the time and like i said officer fox used that and that alone as the basis to arrest a palette done did not even know fox officer fox never met him before that day he was introduced to him that day for the first time and he didn't give information to him he just introduced goalie just introduced him that was a fox testified that he had no idea there was any civil litigation between a pilot and don the first time he learned about that was during this case the i believe the the fact that fox there was a separation between officer fox and done shows that there can be no done was not acting under color of state law to fire to the arrest that aside i do believe there was probable cause to arrest appellant did admit to making a phone call to glenda and in his handwritten notes when he was on the phone with lindo he wrote two things would not be testifying and did not witness water damage he did not write his address down like appellant said the purpose of the call was to get his address for the liberty mutual arbitration and that was depending proceeding appellate admitted to making a phone call and it was a pending proceeding  well i believe that the matters to you are to show what the officer has the knowledge the officer has at that point i believe to to give probable cause yes it might not be enough for a conviction later on down in the case but at that time and that's what we have to look at ask for advice legal advice on how they should proceed it was no different in this case after he got off the phone with a da no he told the dispatcher to call officer fox and from patrol officer park came in and he took a lindows statement and that was it officer detective carney had nothing to do with the case after he had no involvement in the case after that he never spoke with fox about the case after that he never told them to arrest a pal and it was soley based on  tampering with a witness says you have a serious argues that you've got to take an extra step even with respect to arguable probable cause under two fifteen ten and that's that you've got to satisfy yourself some level that the circumstances based on the information he receives from a witness and he believes to be credible and to have enough information that would allow him to extra step as i think it's getting more information is there for proceeding you could get you could get there from the victim witness you can get that correct and he and he did that based on his interview of mr kalinda based on his affidavit that running from even to one of his paragraphs early on in the paragraphs he he states that he was told by mr mcgee that he was a witness in a lawsuit and he was going to be called and if he was ca they were going to ask him questions as to his citizenship and if he was not a legal citizen is that that's in a fifty ninety one you're there is enough information in that affidavit that would give a reasonable police officer the information in order to arrest mr mcgee in regards to witness tampering with we're in fifteen ninety one are it's state's your honor that he said you know exactly he said you know that what you're referring to when you're sort of summarizing correct you're on is using your name i said no i don't know he said that he is because if you go to the court to go to ask you if you are legal in usa as if you go to the court the phrase if you go to the court so that would establish enough information for and you this is not his first language that is correct however he was asked if you need a translator he said he did not there was a translator communicate to the police officer and he actually wrote this out himself this is his hat on at the police officers standing there in the record because i didn't see them and i may well have missed them office notes from officer fox that supplement if you will his interviewer who does not i'm not aware of any other notes you're on now in regards also if i may just because of the conspiracy there is who stated that he did have a minor interaction with him when he did some work at his house other than that that was it no one none of the police officers were aware of a pending lawsuit prior to i want to go through that with you from a just so you can help me understand the record none of the officers were aware that the lindo worked for dunn is that right that is correct and were they aware that reasonable information it's credible information but you would you would agree that the police department did not investigate kalinda allegation before some work before you go to someone for witness tampering particularly in connection with the statute that requires a court proceeding something other than a reference to call if you go to court an actual court proceeding in which the complainant is involved as well as the possible person who's going to be arrested statement that was enough correct that while that also detective carney had also communicated with the system district attorney prior to that as  counsel had mentioned he had a couple of cases and one of them was to mcgee matter and he did consult with assistant district to district attorney in order to ascertain whether that was enough just i think he was told that it was just mr to interview mr melinda and a statement obtained whatever information suffice himself there's no record that he understood that from detective on you or anybody else some of the rest that there was a an actual pending court proceeding besides other than this written stick statement from this to correct none of them knew there was a court proceeding at the time they were told by mr glinda that there was a he was told it was a core proceeding and he was going to be called in as a witness and that he was threatened by mr mcgee that if he came he would be asked certain questions about his citizenship and he could be in trouble let me come at this a slightly different direction where was there any corroborating evidence of in this case that would support go in those allegations as anything beyond go in those allegations well mr mcgee testified himself that he did admit that he made the phone call they sickly what go lindo told the officers was that mcgee told him that he was coming there was going to be a procedure that is correct he was going to be called as a witness and he was going to be asked about his status and he was going to be in trouble at his correct so everything that mr glinda has said came to him from mr mcgee that is correct and then mr goh indo said and i hung up and told him to leave me alone and home not exactly ok that's a fifteen ninety one  with respect to speaking with a radio you know of that was never raises the defense that they got advice from counsel it was never briefed by them on appeal i think the issues academic with respect to your client who's to whom all of this is attributed your client says there's going to be a proceeding you're going to be called you're going to be in trouble you're going to be asked and you're going to be in trouble right know yes in the statement a fifteen ninety one the lindo says it all came from your client also talking about qualified immunity we're not dealing with the merits of this allegation right well there has to be an objective basis to believe that there was reasonable c and based on the allegation made by the lindo he didn't even make out close to the allegations of tampering mr love that we're parsing through these words and what the meaning of the words are that may be true that may be true but would you agree with me that there is a way to read it's not crystal clear that that means that it's a purely hypothetical some person might be needed as he's referred to a co i don't think so because he testified that he wasn't aware that at the time of the mcgees phone call he wasn't aware that testimony we're talking about if the police officers got this statement at fifty ninety one do you agree that the statement that we've been focused on is someone it may be ambiguous your honor but it has nothing to do with the tampering with a witness in the fourth degree statute and that's what we're stuck with if i met just briefly address the other issues that were raised they said that dunn was not a state actor the recording of march twenty seventh zero seven shows that he and horney had linked up had met it's just discussed the case and horney and dunn had agreed that with the missions against interest by  that my client should be prosecuted not once but potentially twice the thomas l a reference was scuttled as being a thin case and then potentially because dunn was gathering documents they would go with a perjury charge depending on what happened in the civil contract case fox did not contrary to what was said make the decision to make the arrest harney testified that he made the final decision harney on the three twenty seven recording made the decision then himself he said we're going with the tampering whether fox did nothing except on his own he was told by a party who  them and who introduced done to fox said his subordinate is worker wants to make a complaint handled it and then harney contrary to what was said before actually going to go into his testimony was present when he met with fox and gave his voluntary statement oh horney was there on behalf of dun dun was there according to you and on the make sure he came to court i mean to the police department done contrary to what was said earlier it was in police headquarters i was there introduced to fox by h thrown off them a good job and they had a dispute so they want to infer something and further that was it we were going to the liberty mutual have matter that did not occur at the time of the phone call by my client who doesn't match up that doesn't fit into the tampering statute fox altered lindows statement by twice in reference to him and it into  police documents that go into i had told them about an ongoing civil proceeding and the lindo never said that fox knew he was making something up and he knew that the allegations in the voluntary statement didn't match up with the tampering statute you it's true i have to remember that we have to record that somewhere