authorize a deputized u s marshal working on a joint federal state task force to obtain and execute a state search warrant for the purpose of apprehending state fugitives under the virginia versus more line of cases that does not constitute a fourth amendment violation second public cause supported the search warrant in this case and third suppression was not an appropriate remedy because there was good faith so first of any peace officer in alameda county just as it is required under california law there's nothing invalid about them facially the only issue that the district court found that was erroneous was that special agent carlson who was a deputized u s marshal functioning on a state federal joint task force considered himself a peace officer for those purposes and that was a reasonable conclusion and the correct conclusion under twenty eight u s c five sixty six and five sixty four which is the federal regulations regarding the use of federal satie's regarding the u s marshals a u s marshal is authorized to investigate fugitive matters but california gets to decide this question not not the united states right that's why i think your reliance on federal statutes is just not on point no we disagree here we have the certainly the supremacy clause plays a big role which is to the extent that there is a co between those statutes and california law which is an article question because the interpretation of the statutes by the district court i think i don't think the united states can tell the state of california you must allow our officers to be treated as issued the warrants to him then then they should have under state law and then there's a separate question whether that then constitutes a constitutional violation that state law there the second question is whether special isn't carlson made an error and we are saying that there was no error on his part because he was a deputized u s marshal so he had the authority and he had the belief that he could was basically empowered all the powers of a state sheriff sharia ruling here was incorrect and i guess i just don't believe that i think he was exactly right in what he said there i agree with you there's a whole separate question as to whether you ever got to suppression but maybe you could move off of the state law violation thing and just get to the rest violation and this court has been very clear that that matters for two reasons if it's a technical violation that doesn't necessarily implicate the core of the fourth amendment then suppression is not the remedy unless unless the defendants can show that there was prejudice in the sense that there wouldn't have been a search warrant issued or that it would have been conducted in a less abrasive way or if there's evidence that shows that the agent in this case acted in a deliberate intentional way to circumvent the rules so we think that most if there was a violation of the statutory law here this is and i'm in it was it was a technical violation i think that is certainly clear under this court's law if you analogize it to the rule forty one cases where you have luck and you haven't read or cases where search warrants were issued by or obtained by somebody who was not authorized or will forty one to obtain the warrant or whether there were the state judge was not really authorized to issue a telephonic warrant under rule forty one this court has said those mistakes are technical they're not fundamental so we look at whether there should be suppression there shouldn't be unless prejudice or an intentional misconduct type of circumvention is proved and that its charter did not find that there was some kind of intentional evasion of the federal magistrate or no i don't think he did i mean if you look at the order in the orders are striking in the sense that if  you at the orders there is a lot of lot of use of the subjunctive it's there may have been a violation there may have been misleading there may have been a lot but at bottom what judge properly found after the frank's hearing after listening to the testimony of special agent c that there was no no falsity that there was nothing that he said that was wrong and that most he didn't know what was the law he didn't know california state law and in fact not only did he not know the state judges apparently did not know and the alameda county district attorney's did not know which is why seem to think it was necessary to disseminate his his decision very broadly so we think that there was no intentional  this is on excerpts of record one forty three one forty four that the fact that you have are just being a felony a fugitive and the fact that he dropped the phone was enough to provide public cause that that phone was going to search the phone for evidence of crimes not to locate a fugitive and i guess when i when you take out the counterfeit credit cards part of it i don't know that there's probable cause left to think that artist were he was outstanding on and those included identity theft he also the affidavit also says that he fled officers when they tried to apprehend him on april fifth and that a cooperating witness said that he was conspiring with coppins in a conspiracy commit credit card fraud and in constant communication which was corroborated by his flight when the officers went and the thing about i think is very important to remember too is that probable cause and this is what the ninth circuit said and broke just doesn't require evidence that is enough to convict or even that it's higher than fifty percent it's just a fair probability it's actually a fairly low standard and i point to support to the confidential informant i mean that there is no basis of knowledge offered there's no information whatsoever about the reliability of that informant and you're right so you do need cooperation and i guess the only call cooperation you can point to is that he fled when i mean there's a dispute over whether the officers even themselves as such but why would the his flight be cooperation of what the confidential informant told you well it's robbery some because the the defendant was sorry the cooperating witness and this is not an anonymous tipster a cooperating witness who's been working with the i said that he was working with hopkins and he was currently basically engaged in crimes and so the flight of the officers is a show of consciousness of guilt and again i point this court to broach the ropes case at five fifty eight f third at ninety seven where this court says that probable cause just requires more than bare of suspicion so you have to have more than  quote have to have a showing even a showing that the officers a belief is more likely that true than false and i think in this context you have probable cause for the artists and also for the hoskins warrants but even if this court disagrees with in this situation you don't have any evidence that special agent carlson had any reason to believe that the credit card search with a legal case but put under our decisions in vassi in one was so i thought we had held pretty categorically that if evidence was evidence i think there's a good faith i mean i think the biggest evidence for that is that just talk area excising that out so that there was probable cause and he changed his mind but the fact that he changed his mind of a very very competent federal judge can change his mind about whether there is probable cause or not that shows that a person who is a law enforcement agent held to a different standard would not look at this as a barebones affidavit and that is the standard under leon that is the standard under davis were to say that there is no public cause on the artists warrant we still think that exclusion is not the appropriate remedy because there was good faith because it was not a bare bones affidavit and you have a situation where you have an agent who basically did what he thought he was allowed to and this is supported by the federal law he is supported by the training he received and it's really supported by does tiger's own decision where he said you know i think that there are a lot of things wrong here but it's fundamentally it seems like there's a institutional misconception about the authority of state talking about the different we're talking a probable cause just forget about the whole state law overlay  excise the observation of the counterfeit credit cards all you've got is this you know a confidential informant with no information about the reliability no information about the basis of knowledge and your so called cooperation of his flight which and again there's no connection between what the confidential information was really into the agent and whatever their encounter was with the amount i don't know the liquor store and that's it and you're saying that it a reasonable officer could think that  we got the phone and we think there's evidence on the phone that's going to track him down of course there would be probably as for that that is definitely not what the warrant does and i think that's maybe why judge shari was thinking yeah well maybe there's probable cause but when you look at the warrant it isn't has nothing to do with tracking down a fugitive it's all about we want to find evidence on the phone that he's committed these other crimes well i think that the issue is again that if dodger a judge a cop shop would initially swear think that there was enough and then maybe not this does require a careful was something that just maybe it was not caught by the state the state judge was provided with unlawfully obtained evidence that definitely did support probable cause for the very purposes that the warrant was spelled out for so the i don't know how you can fault that the judge th wasn't didn't do anything i'm not faulting the state judge well first of all i'm not saying that this the search was actually illegal it's there's a distinction which is that the government felt that it couldn't defend or rely on that because there wasn't enough proof to show that some other agent case comes to us we have to assume that it was illegally obtained ok so otherwise you're going to have to have an overt enter here it seems to me to to flesh that out so as it comes to us we have to assume it was illegally obtained should not have been in the warrant and it can't be taken into account when kind of sort of collective kind of humility of error type of notion and so that is also an inappropriate sort of application of the suppression remedy and so we think that this court even of it thinks that there is an issue about good faith it can't just five i think the issue is whether there was probably cause us to five five five number being hopkins's number so that this court i think can look very specifically to two paragraph eight of eight it tells you where carlson got or the cooperating witness got the phone number from bridge and then it talks about that person who is a known associate of hawkins and it talks about that person you know having case and certainly seems to me to show that special agent cross and have a good faith reliance on that and felt that that was cooperative so even again we think that this establishes public calls which is a low standard but even if it didn't right with your own course john jordan on behalf of my client in el artists in this case so you are i disagree strongly with many of the points put by the government i think this is really an extraordinary case court set out that according to carlson he came into the door of the girlfriend of his to artists which he claimed in a high climb area the tenderloin of san francisco was unlocked he knocked it magically opened and the agents then went in and did it suddenly very concerned for mr artist his health they did a search of the entire apartment including photographing credit cards so clearly illegal search cleeve isolating stiegel i don't think we can make a judgment on this record as to whether that aspect of the search was illegal i think it's rather the observation of the counterfeit credit cards that the government has refused to defend your honor let's just focus briefly on the war itself is your honor picked out of this is the warrant itself i think it's five pages is one page you know that has the so called facts or the for the probable cause there's information in there that there isn't there a warrant the numbers of the warrants the courts the warrants were issued out of the dates of the warrants none of that's basis for that none of it's there it's just one bold accusation after another that really you are applying well known ninth circuit case law cannot get each and every one at most you're left with as you're on a pointed out inference that there are perhaps valid warrants out for him so therefore we can search for him that's now were put in the arch so there's no guidance given to anyone executing the warrant why why i'm always looking for why isn't the warrant  perhaps properly construed as having a dual purpose both to get evidence of credit card fraud or identity theft whatever it was and to track down a state future either one of them should be in there i wish neither one of them is again to give guidance ever seen why can't it be viewed as as seeking evidence as to both of those purposes because there is a lot of evidence actually to support the notion that this guy is a fugitive that he fled from us we can't we couldn't apprehend him so there's no reason to put that in there if all you're trying to do is get evidence of credit cards right where you are i think you have to put in a base other well known once a bit well you have to put in some bases for either of them to give guidance to the officers who are going to be executing the search warrant as to what to do doing that he never mentioned that this long evidentiary hearing any name of any state agent that was going to help him authorize a search and then we get the extraordinary situation of after multiple briefings in this case several hearings a full blown franks hearing where judge chabra directly asked agent carlson did you execute the search for mr artist this phone and he said yes it turns out that's false we find out later that he war because somebody is not careful i mean you have to be more you know factual than that you know you want to but here where he's not careful about that where he writes a warrant where he doesn't put in anything about reliability of informants what you're saying because he was not careful about that he wasn't careful about something else i'm saying he was not careful in his series of things as judge charge me pointed out there was a serious violations here and i think you're honest can't consider that deciding whether to rely here i don't i don't is right that the leon inquiry focuses on the whether the officer is justified on and relying on the face of alliterative the warrant as a stablish in probable cause and you know being specifically specific and the like it doesn't have to anything to do with all these issue here not applying while i think i have to yes we do have to see the lectern there thank you very much good afternoon your honour's my name is steven grewal me please the court i also represented mr hopkins below at the district court level and i'm just going to jump right in and carry the baton that my colleague was brought thus far chabra observed that this was not just one isolated event where something happened here are some defect was here but the judge said that there was a systematic pattern of recklessness conduct in this case as well as his testimony at the evidentiary hearing so that he is neither well trained nor particularly concerned with complying with the law in conducting his and forth meant to get it right but maybe respond to the question i pos your colleague which is that the police on good faith inquiry when you're talking about an agent who did get a warrant issued to him i think that you're sort of limited to the four corners of what fourth amendment law dictate in terms of the fish of validity of the warrant so all of one where there is an no longer a neutral magistrate one where there has been material misrepresentations neither of those none of those but the two others apply and that is a facially defective warrant trait that has nothing to do with what we just talked about with the inquiry that leon demands it has to do with basically the four corners of the war and when and when judge tribe remade the factual finding that there was no reliable evidence to make the informant reliable that that made took it into that category earlier when nobody could really get let's talk about probable cause for your client's warrant yes because there was a statement by this informant that this number belong to your client  and then there's the cooperation of that you're right there's no explanation as to why that informant would be reliable on that point but there is cooperation in the sense that the number shows up on you know his and your client's  seen i have a redacted version so i have not seen anything but i would respectfully disagree that there is any corroboration because one of the things that mr carlson never talked about in his warrant was the fact that the area code that came up was a three two which is a texas area code not an area code in the bay area or california for that matter so that in my opinion slants against corroboration no no cooperation in the sense that the concern is number to your to your client i'm just saying that when your your client's good friend artist you know that number calls his phone that seems to be some cooperation this isn't just some random made up number no but i  think it has a significant your honor when we look at how it's displayed in the search warrant which is paragraph ten the agent told the magistrate that there were incoming calls coming in with that particular number that turned out to be untrue and he did his own declaration which is part of the record where he and i believe i brought it with be here but what he says it's in the three three two of the excerpt of records he says in his kind of paragraph fifteen and sixteen that he's fees the number first on the cell phone and then he goes to the informant and says is that the number that's a different scenario i would submit then the informant on his own saying this is the number the sequence of events is not as quickly made in the affidavit it's the other sequence as he later talked about in the declaration so so i would respectfully say that the corroboration which is already and the events that he later then comes back in changes in this declaration as to how he presented the information of the telephone number to the informant well it was not the informant saying that his own to phone right and then on some separate occasions presumably later in time this informant informed him that that number corresponded to were your client a spirit they said on paragraph sixteen that on april sixth he then went to the informant and the informant advised me that the current number for the hobson's was the one locked on the screen right so why isn't that provide some independent cooperation that these two things or are in fact well there is that connection but i  saying your honor they don't have to tally and circumstances of this case with all the observations that were made by judge that that standing alone is unreliable given the fact that there is nothing further beyond that particular witness this particular informant it's insufficient in my opinion and the judge made the factual finding that he did i think see anything that made it reliable that that was the number associated with mr hopkins  say that good faith applied in this particular case to save the warrant and i think one of the things the judge talked about that i brought to the court's opinion attention was mr hopkins was arrested in april fourteenth of april eleventh two thousand and sixteen the state of the feds filed a complaint three days later he stayed in state custody for is defined then was indicted federally and brought over to the northern district of california on indictment in february of two thousand and seventeen i got involved in the case and then there was all the discovery that came by and it included air excluded in this entire discovery of thousands of pages and pages including some cell site simulator affidavits a search warrants that were done for the other co defendants by the u s attorney and the agent working the case but this particular warrant was not included in it mr carlson's was not and it was only through my work as a defense attorney that i was able to on earth that and then get this warrant and then ultimately having to you know deal with it as we are right now i would say that that's an indicator of bad things i don't know if it was because the agent was concerned about the lack of probable cause that he had in the warrant or because he was trying to hide the fact that a cell flight simulator was used in order to find mr mr hopkins and i think that that was one of the reasons why it took so long to get this particular information and certainly was one of the things the judge cited to in coming to his conclusion that leon did not apply ok very good thank you very much let's put two minutes on the cost of we're going to hold you to that so try to be concise and thank your article so the california law may govern what state judges can do but the suppression order here was directed at the actions of special agent carlson and even if california law is at issue here this court that's a question that really california state judges are state courts should be looking at in this case what we have is we have  making a ruling about what was authorized under california law and disseminating that so that should not stamp and even if there was a violation of california law we maintain that was not a violation made by a special agent c them but by the state court judges and any kind of violation here it does not amount to a fourth amendment violation we think this is fundamental this is the entire foundational error of judge tapia is two orders he calls it the foundational order in his suppression order the  published one so we think that that merits correction the other thing that is a very fundamental error in judge toggery is suppression orders is his application of the suppression remedy and exclusionary rommany i don't think i have to talk too much about that because as this co has or the panel has already talked about he wasn't applying the leon factors he was looking much broader and he was looking into this cumulative error in courting a cumulative error kind of a doctrine into the suppression area which is not supported under davis it's not supported bank decision and dreier it was going to allow the government to self correct based upon a new finding of law about what actually the clarification of the legal scope so we find that in this case there wasn't a fundamental error and so there should not be