well your argument now in the case of the united states against in determining probable cause existed to issue the search warrant a search warrant was a stand law enforcement affidavit and the affidavit was based on who anonymous tips in true transaction and they keep the fire under observation during the deal that did neither one of that none of that was fact was occurred in either one of the controlled by but in the morning at the district court addressed that i mean this is a somewhat different variation on this theme of course that the actual buyer and seller didn't know that they were playing a part in this law enforcement  exercise and so they certainly weren't going to have a pre buy and sell search or be fitted with a wire the rest of their they're thinking that they're just doing ordinary drug transactions and the district court considers whether there was a serious risk that these anonymous people already have the drugs on them you know because that would be what you're afraid of right they they get they get observed going into the door that leads to mr bacon's residence they get observed leaving and then we get the drugs but you're right that you can't rule out the possibility that these anonymous folks already had it in a pocket a certain amount of drugs but the district court says how likely was that i mean we don't have to have perfection for probable cause and they especially this the one where the methamphetamine gets added to the order at the last district court thinks it's it's good enough to make somebody think that the drugs that were recovered afterwards came from that residence so maybe you should address just reports recently there are you're obtaining the drugs are based only on their credibility because nobody observed them in addition to you know start it that's not nobody had ability really is it it's just we don't know what they ha on their person but that's not really even credibility it's just this sort of there's some factual gaps that are impossible to fill if you're going to use these unwitting intermediaries and maybe your attack is simply on this as a police strategy since inherently you'll never know what the unwitting intermediary was carrying before the transaction well i guess you know that is part of the point  individuals or are going in and you can't track with that individual is doing that we don't know if they really got the drugs from the defendant here or from somebody else well and if you focus on the nd control by which is very prince hearing why we can't require a franks hearing what in it because of frank's hearing as to found out the affidavit itself and whether or not something was misleading in the affidavit that was material to the probable cause determination but the district court judge or the judge when he issued the search warrant here had the information in the affidavit that these individuals when in on their own without being searched before or afterwards correct and dance where we would argue that that's clear error that there was no probable cause and that is a separate question you said that the individual going into the home without being searched before or afterwards at a minimum required to frank's hear franks hearing is a separate issue that's whether or not there were some misrepresentation either affirmative or by omission that would have impacted the probable cause determination before the judge issuing the warrant i apologize if i move misspoke when i was talking about frank's hearing i guess i was speaking to what the detective knew about the buyers what if anything the detective knew about irons and whether or not they were truly anonymous to him had he known that they were drug dealers themselves because post suppression hearing they were both arrested for dealing drugs during the relevant time these control so that's what i meant when i said that the pranks here and it's more about what the detective knew them host arrest occurred quite a bit afterwards and they were after the warrant was submitted so why how could that information possibly have been put in the warrant affidavit no i understand what you're saying but the drug deal that these wires were arrested for the drug deals occurred during the relevant time of the controlled by as i believe they occurred between november and december the same time it is controlled by is occurring so these are drug dealers who are then asked to be quote i'm getting informants that nobody common sense for the judge to know that these individuals are drug dealers rd not cooperating they individually it separately tell two different c eyes that they could get drugs from mr bacon they get drugs they they are exposing themselves to criminal liability because they're getting drugs and they don't have any kind of deal with the government they don't know the government is even watching why  sufficient to put the court on notice that these are drug dealers going in and getting the drugs from the developed here i don't know that everybody who buys drugs is a drug dealer i think that many people buy drug simply for their own use and i and i think that's what that is neatly early in that what they did here the little person didn't maybe gets an extra for his own use but he got the drugs and gave them to the confidential informants that we know because a confidential informants were searched both before and afterwards and they had the drugs on them after the fact so whether or not they had a personal drug habit that i don't think is is relevant to this we know they were drug dealers in this instance well i don't know that i would say that the big issue in court knew that because again an individual could buy drugs for themselves and then pass them along to somebody else i don't warrant to break into somebody's house and again it's courts impel you know when you're going to somebody's house it's more intrusive and more destructive not that there's a different standard but it's still something  credibility of the buyers and the lack of the searches weighed against probable cause but those were cooperators and the rationale behind disclosing the credibility  cooperators is they're cooperating they're either paid informants so they might be trying to get more money from more information provided on to law enforcement or they're trying to get their sentence lowered and so the more help they presumably give the the greater the likelihood of getting their sentence lowered is there's a reason that the credibility of confidential informants who are cooperating with the government why their credibility is so central but those same rationales don't apply to an unwitting participant who is exposing himself to criminal prosecution for a drug deal so why is that credibility issue so important here as to the on willing participants well again in the franks decision the court held that the lack of credibility weighed against a probable cause in that the lack of search was weighed against probable cause but denied the franks hearing because because the issue in court knew that that information was missing mr bacon wasn't prejudiced and  again to obtain a franks hearing all you have to you just have to make a substantial policeman every showing of a material admission and we would argue that the court itself provided that material commission when i held that the lack of credibility and the lack of the searches weighed against probable cause and but then went and to hold but that's ok because the issue in court knew that and under that standard  it's hard to know how you would ever get it issue in court reversed where the court acknowledges the material admissions in still in still a polls the decision so i think we meet the st prong of our frank hearing and then the nd prong the material admissions made with reckless disregard this court has held that credibility emissions provide sufficient circumstantial twenty four c and the court in that words goes to the supreme court's opinion in staples and bases its opinion unstable but there is testimony in the record the nine five inch one was just obviously sure maybe the other one was on the margins but we just need one right well even even the nine five i don't think there is any i think there was testimony from the expert i forget if it was the expert or the police officer talking about the test and how he had to be trained you know order to measure you know the barrel of a shock and where do you start measuring where do you what what is included so there was plenty of testimony in the trial transcript about the whole procedure around being able to measure the barrel so nine dollars certainly is shorter than the fourteen dollars but i still think there is insufficient evidence and i still think knowledge is required under nine there was insufficient evidence but destructive good by right that has operate argument assuming there is sufficient evidence on that we don't even need to decide the knowledge issue would you agree with  insufficient evidence and again this district announced the standard in the act would case you had to have a fully assembled just directed device that could detonate or ready access to all necessary components and the testimony caleb anderson a task force officer in the nd volume on h two hundred and twenty says and i quote i could absolutely tell it was going to be short at sixteen inches he says a visual inspection just looking at it he had reason to explosive expert michael adelson says on page one hundred and forty two dollars of the transcript that both suffices in this case for design to explode lighting the fuse would cause them to explode even catherine boyle the chemical expert who testified about the nature of the powder said that all three pour explosives she says on page one hundred and three dollars that all three were low explosives in what exploded can find that so there was reasonable evidence for a jury to find that it was was a destructive device and judge say need you are right the jury made special findings that he possessed both a destructive device and a short barrel rifle for count five which is the title twenty and finds it was insufficient evidence on tape destructive device i don't think that the primary argument there is the testimony that there was so much clay and other material i suppose mixed up i guess two different responses st there were two destructive devices issue she gave testimony that the pipe the materials inside that the powder inside of that was an explosive and then from the budget public which if your honor wants to  the pictures in the record it's kind of like a beer keg except probably about size football and so de agents took two different samples of the powder from the public and twelve and one hundred and fourteen and miss boyle the chemistry expert did say that one hundred and fourteen did not explode unless it was segregated from the clay but she said the other sample taping taken from the exact same explosive device did explode and it was an explosive so you know there was sufficient evidence that there was powder in the public and in and of itself to cause it to explode in addition to  cocaine fent math and that's not controlled substances and she says the net weight was two hundred and seventeen grams so there were two different individuals including a certified expert that testified that that quantity was two hundred and sevent all again though as with other things in this appeal this court doesn't have to reach that issue because there's no dispute that mr bacon had five hundred grams of meth in his house and that sufficient to trigger the sentencing range as to count one your honour's turning to the problem unless this court has a further questions on the sufficiency of the probable cause analysis and judge which you're right that you can't rule  possibility of unwitting informants as you call them at trucks on them but probable cause doesn't require you to rule it out in this court's talked about that in the sit well cases mckinney cases and numerous other cases that theoretical possibility  isn't to rule out probable cause and if there might be some question i guess if you dealt with one controlled by involving what we're calling unwitting informants but there too and i think judge saini if you had the nail on the head t true different buys and i'd kind of add one other point to that which is we're not worried about whether the defendants got the drugs from mr bacon or someone else but we're worried about in the public cause analysis is whether there's probable cause to believe there's drugs inside the apartment so the anybody informants didn't have to say that they got the drugs from bacon and you know the progression of the case is interesting because judge bring in basically make step point in her st order on probable cause and then it turns out both the unwitting informants are arrested and she says she didn't really mean to be you know looking into the future and saying it didn't matter what these unwitting informants were dealing drugs themselves the question is whether the drugs were in the house and so that's a probable cause upstairs with him already and with his own drugs in his pocket and gotten more drugs from mr bacon or maybe no drugs from from the residence maybe maybe whoever was in the residence was all out that day i mean we don't know and if in fact in order to comply with the deal this unbolting informant thought that he or she was and they turned over their own little stash in their pocket you know we would have a very different case and i just wonder is there any burden on the government to explain why you think there are other than just those so people wouldn't go upstairs if they had some drugs that seems very so we have two different confidential informants who list two different formats both of whom i believe it's two weeks apart go into the same presidents and come out with drugs and so i think to the extent that this court's looking for some assurance in a probable cause analysis that's where it is well i get it so i will agree with you they go in to the same residence and at the time they come out they have drugs but the missing piece is we don't know whether they already had drugs at the moment they walked into that residence shirt and judge i think that could also be x the case with that what we think of as more traditional kept attentional for make cases they're searched what's to prevent them from has hidden the drugs you know inside the stoop at the door and then pinning it on the rd party at the house or somehow having secreted the drugs ahead of time well it's there and that's what i asked about but the government takes many steps to do the best they can anyhow to ensure that doesn't happen that's what the priests the pre transaction pat downs are all about and other protective measures yeah and i think you got it right that there are only so many steps you can do when you're talking about the somebody at formant because they don't know they're involved in this control transaction so you can't search them you can't tell the peers what you need to comply with you can't wire them from sound which and i was asking whether to technique itself of using the unwitting informant i mean i've been here for a long time and i can't think of very many if any other cases that have used this particular long for enforcement harkat and judge i haven't seen it before frankly either but i think what's important i guess if extent that the court has some questions about it is that the cases we've cited all the other courts of appeals that have looked at this issue have noted the pluses and minuses of using the informant but ultimately everyone  and the officers followed up on it i guess that because at one point the district court suggested that the anonymous tips jurors didn't matter for probable cause and that seemed to be a kind of a big statement give it everything to help support probable cause because you have two other people say mr bacon at this address is dealing drugs out and they did provide verifiable information that detective wise did go verify that he was affiliated with this address that he was dealing out of an impala which was registered to him detective wise goes in x i observes the apartment it sees mr baking going in and out of bed he tracks down the cars he does confirm that mr bacon has a prior conviction for dealing substances and if those are certainly feathers on the scale of probable cause and so i do think they support the finding