[00:00:00] Speaker 03:
24-2059, United States versus Norton.

[00:00:05] Speaker 03:
Mr. Braun?

[00:00:16] Speaker 04:
Good morning, Your Honors, Counsel.

[00:00:19] Speaker 04:
May it please the Court, I'm James Braun on behalf of the United States.

[00:00:25] Speaker 04:
Over the years, the Supreme Court and this Court have consistently said

[00:00:30] Speaker 04:
that the exclusionary rule exists to deter official misconduct.

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And the rule of Franks v. Delaware furthers that purpose by allowing a defendant to challenge an affiant's deliberate misstatement or omission in an affidavit if it's material to probable cause.

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And this court has also noted that the police may not insulate one officer's deliberate or reckless misstatement or omission

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simply by relaying it through an officer affiant who is ignorant of its falsity or existence.

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But by its own terms, the Franks rule has a limited scope as to when exclusion of evidence is mandated.

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And here, the district court erred by extending Franks to apply to an off-duty officer from another jurisdiction with no official role in the investigation who just happened to witness a crime.

[00:01:24] Speaker 02:
Can I interrupt you there?

[00:01:25] Speaker 02:
You say no official role in the investigation.

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The district court made a specific finding that if it was required that there be participation in an investigation, that that was true here.

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And you're not challenging that finding as clear and convincing, are you?

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We are challenging that as a legal conclusion.

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We don't challenge the seven facts on which the court relied to reach that conclusion, but similar to a

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district court's legal conclusion that certain facts mean an officer complied with the knock and announce rule or certain facts as a matter of law equal probable cause.

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Here, the district court's conclusion that those facts mean Chief Romero played a sufficient role in this investigation, we're arguing as a matter of law, that's an incorrect conclusion.

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It's also not a conclusion that he played an official role in the investigation.

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It's just that the court believed he played a sufficient role in the investigation.

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And if I could briefly summarize the facts, in October of 2021, University Police Chief Clarence Romero and his wife

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were having drinks at a bar in Las Vegas, New Mexico, when local law enforcement arrived to execute arrest warrants for several members of the Mongols Motorcycle Club.

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Chief Romero was off duty.

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He and his wife observed an interaction between the defendant and his girlfriend that led Chief Romero to believe the girlfriend had taken an object from the defendant's waistband, and he believed it was a gun.

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At the time, though, at the scene,

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Chief Romero and his wife said that they saw the defendant's vest go up, but they didn't see if the girlfriend took anything or put anything into the waistband.

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But officers found a gun in the girlfriend's purse.

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The defendant was determined to be a felon, and the FBI adopted the case against the defendant.

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When Special Agent A.C., who was assigned to the case, decided to prepare an affidavit for a DNA search warrant,

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He reached out to Chief Romero, and Chief Romero told him that he had observed the defendant or the defendant's girlfriend take an object from the defendant's waistband and put it into her purse.

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Did he reach out to any other witnesses in the bar in doing his search warrant investigation or preparation?

[00:03:59] Speaker 04:
No, he did not.

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Why did he reach out to Chief Romero?

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Because Chief Romero's information was the most relevant.

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He's the one who had actually observed something.

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And there was a discrepancy between what was in the deputy's probable cause statement and what was in a report as to the exact details of that.

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And Agent Acy wanted to clarify that.

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Well, what bothered the district court, and I guess bothers me, is that the government elevated

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the chief's status as a law enforcement officer albeit off duty to effectively bolster the credibility of its submission to the district court and you know why was it relevant to describe Romero's status in the search warrant affidavit if he'd been a post office worker or

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from the Social Security office?

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Would that have been information that the government would have included in the search warrant?

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And really, to come to my question, if the affidavit omitted his status as a law enforcement official, do you think the district court would have found probable cause based on this application?

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I do, based on the application that a witness observed the defendant's girlfriend take an object from the defendant's waistband and put it in her purse and then a gun was found in the purse.

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I believe that a judge would have found probable cause based on that, regardless of Chief Romero's background.

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And I think Chief Romero's background would have been relevant even if he was retired and not an active law enforcement officer.

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The fact that he is a law enforcement officer, certainly that could add some background, some credibility to his statement, but it doesn't answer the question of whether he is an officer for purposes of attribution under Frank's.

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When did the discrepancy in statements become apparent?

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I think it became apparent to Agent Acy right away.

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When he was asked to adopt the case, he received reports.

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He saw the probable cause statement.

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He saw that... So when he prepared the affidavit, he knew there was a conflict.

[00:06:29] Speaker 04:
Right.

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And that's why he decided to go straight to the source, thinking that was the best thing to do to see what the actual facts were.

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Wasn't his testimony that because he was a law enforcement officer,

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I thought it would be best to go right to the source.

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It was.

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Yes.

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But again, I think that would have been true even if Agent A.C.

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was a retired law enforcement officer.

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The idea that this is somebody who I can just talk to directly to see what did he see?

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Did he see something?

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Did he not see something?

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But again, for Frank's purposes, where the goal is to, first of all, Frank's being a limited rule to the affiant or a fellow officer who is

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providing information to the affiant, Chief Romero did not play that role here.

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And to start in the district court's analysis when it attributed Chief Romero's... Are you asking for a bright line rule here that an off-duty officer who's not part of the investigation can never be a government

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employee for Frank's purposes?

[00:07:43] Speaker 04:
No, we're not asking for a bright line.

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What's your line?

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The line would be that if the officer is engaged in his official duties and an off-duty officer can morph into an officer engaged in his official duties at some point in their involvement.

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Is it a fact question then?

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Well, you have to find facts to determine as a matter of law does that equal an officer

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for Frank's purposes.

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There is a scenario where Romero, in this case, could have become part of the team and be a government employee for Frank's purposes?

[00:08:22] Speaker 04:
I imagine there could be.

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Now, the fact that he's from a different jurisdiction and he was outside of his jurisdiction, that may change things.

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But in Garcia Zambrano,

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the officer there who was off duty working at an apartment complex, he arguably did morph into someone engaged in his official duties because he solicited the help of his own department.

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He interviewed witnesses, and he wrote a report.

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He wrote what seems to be from the opinion, and it wasn't fleshed out because it wasn't an issue in that appeal.

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But he wrote a report, and that is an official act.

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And so there, he did seem to

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transformed from an off-duty officer to someone engaged in his official duties.

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But again, the court even in Zambrano, Garcia Zambrano, didn't have to decide that issue because it wasn't raised.

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And I think it makes sense that it wasn't raised in that case because there would have been a much better argument that the officer was engaged in his official duties because of his extensive involvement in that investigation.

[00:09:27] Speaker 02:
Well, here the off-duty police officer sort of inserted himself into the investigation, and that help was accepted.

[00:09:36] Speaker 02:
They involved him, didn't they?

[00:09:39] Speaker 04:
Well, they didn't necessarily involve him in the investigation.

[00:09:43] Speaker 02:
He offered certain tips on, you know, there may be... Well, they didn't say, step back, go away, this is none of your business.

[00:09:50] Speaker 04:
No, but he also wasn't inserting himself into the melee.

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And that would be different if he said, I'm a law enforcement officer.

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I'm going to confront the girlfriend and ask if there's anything in her purse, or I'm going to confront the defendant.

[00:10:04] Speaker 04:
He waited.

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He actually acted more like a civilian witness in that context, understanding that he was outside of his jurisdiction.

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He waited for everything to die down.

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Then he asked to speak to the deputy.

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And he reported facts the same way we would expect many citizen witnesses to do.

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He happened to observe things based on his law enforcement background.

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But again, that would be true even if he was a retired law enforcement officer.

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And there is no indication that the other officers accepted his involvement and interviewed witnesses he suggested or looked at video he suggested.

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Really, the reason that the FBI agent made him involved in the investigation is because he was a witness.

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He had witnessed facts that were relevant to the case.

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And so he talked to him the way an agent might talk to any witness.

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Do you think that because they knew he was involved in a trained law enforcement officer, that they gave greater credence to what he was saying and his powers of observation and his instincts?

[00:11:09] Speaker 04:
I think in the second affidavit,

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Because we have two affidavits here, second affidavit that's not an issue on this appeal.

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Agent A.C.

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went into more detail about Chief Romero's background and the fact that he had experience with motorcycle clubs.

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I don't think he did that in the first affidavit.

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This is what somebody observed and those observations from a named witness.

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It's not like it was an unnamed informant that made it credible enough for search warrant affidavit purpose, but that that witness had observed

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The girlfriend take an object from his waistband and put it in her purse, and a gun was found in the purse.

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That was enough to establish probable cause.

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And that didn't necessarily rely on Chief Romero's background and experience.

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But again, even if it did, Chief Romero could have had the same background and experience as a retired law enforcement officer.

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That wouldn't make him an officer for Frank's purposes, whose misstatement can be attributed to the government.

[00:12:09] Speaker 02:
Well, are you saying a retired officer statement

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could never be attributed, a false statement could never be attributed to the officer who signs the affidavit?

[00:12:20] Speaker 04:
I'm not saying never, but in a context similar to this where, say, a retired officer is at a bar, observes a crime, and relates facts about that to the investigating officers, there would be no basis for attributing any misstatement by that retired officer.

[00:12:40] Speaker 04:
to the government for Frank's purposes because, again, Frank's is a limited rule.

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And the district court held as an initial matter that Chief Romero's statement was attributable to the government for the simple fact that he was a government employee and there was no Supreme Court or 10th Circuit case that limited Frank's to just government employees who play an official role in the investigation.

[00:13:06] Speaker 04:
But all of the cases, with one exception, that talk about this

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Involve exactly that, whether it's Kennedy, where the non-affiant officer was a local officer dog handler who was assisting in his official role with DEA, whether it's the Kennedy case, or sorry, the De Leon case out of the Ninth Circuit, where it's two investigators in their official duties investigating a case, one's the affiant, one's not.

[00:13:35] Speaker 04:
All of those cases cited involve

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non-Affian officers who are acting in their official capacity.

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And that makes sense because Franks is designed to deter official misconduct, misconduct engaged in by someone while engaged in their official duties.

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Could AC have reviewed, wasn't there a body cam?

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footage that would have disclosed the initial interview.

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Am I remembering that correctly?

[00:14:02] Speaker 04:
There was, and Agent A.C.

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had not written that.

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If he'd listened to that, it would have highlighted the discrepancy in Romero's testimony?

[00:14:11] Speaker 04:
It would have.

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It would have highlighted it more, but again, then he goes and talks to Chief Romero, and Chief Romero says, well, this is what I saw.

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Now, it may be that Agent A.C.

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would have then asked him

[00:14:22] Speaker 04:
Well, but you said this at the beginning, why the discrepancy, and that would have been clarified, or Agent A.C.

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would have laid out the discrepancy better in his affidavit.

[00:14:30] Speaker 04:
Yeah, he should have laid it out in the affidavit.

[00:14:32] Speaker 04:
Right, right.

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But he hadn't reviewed that here.

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Now, going back to the cases that talk about this issue and that involve officers acting in their official capacity, the one exception is Garcia Zambrano.

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And in that case, that wasn't decided, it wasn't raised.

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And again, there's a good argument that that officer

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was engaged in his official duties because he wrote a report.

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And he did so much in conjunction with his own department.

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I have 24 seconds left.

[00:14:58] Speaker 04:
I can reserve that for rebuttal.

[00:15:01] Speaker 04:
Thank you.

[00:15:13] Speaker 00:
Good morning.

[00:15:14] Speaker 00:
Violet Edelman for Sean Norton.

[00:15:17] Speaker 00:
As the government has acknowledged, the purpose of the exclusionary rule is to prevent law enforcement officers from engaging in official misconduct to violate a person's constitutional rights.

[00:15:29] Speaker 00:
Consistent with this purpose, Franks makes clear that the government must be accountable for statements in an affidavit for a search warrant made not only by the affiant, but also statements made by other government employees, regardless of their role in the investigation.

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And this rule is straightforward.

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It's been applied uniformly by the circuits, including this one.

[00:15:50] Speaker 03:
What's the misconduct that we're focused on here?

[00:15:54] Speaker 00:
It was the reckless disregard for the truth in the reporting by.

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By AC?

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By Romero?

[00:16:02] Speaker 00:
No, by Chief Romero.

[00:16:05] Speaker 00:
And so the government's effort to narrow the rule in terms of its application to Chief Romero.

[00:16:10] Speaker 03:
How does the exclusion of the evidence have any deterrent effect here

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the law enforcement agency in charge.

[00:16:19] Speaker 00:
Well, I'm not sure the question is about whether it's the law enforcement agency in charge since we know it applies to officers who aren't part of the same agency.

[00:16:31] Speaker 03:
I guess the exclusionary rule, the exclusion of evidence here would deter people like Chief Romero from inserting themselves in

[00:16:44] Speaker 03:
Kind of random investigations?

[00:16:46] Speaker 00:
Well, I don't think it would deter him from being involved in the investigation.

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It would ensure that he reports what he sees accurately.

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He is a law enforcement officer.

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He spent 35 years in law enforcement and worked for the same task force that was investigating this crime.

[00:17:06] Speaker 03:
But it's kind of a one-off.

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I mean, he happens to be a witness during a raid.

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lack of case law in this area probably suggests that this sort of behavior doesn't happen very often.

[00:17:18] Speaker 03:
And what purpose would really be served by excluding this evidence when it's such an unusual fact circumstance that seems to never come up maybe once a decade?

[00:17:30] Speaker 00:
Well, it may present itself rarely.

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But the fact is that Chief Romero inserted himself into the investigation and did so as a law enforcement officer.

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And then the other agents,

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in the case were relying on him because of his status as law enforcement and his experience and background in training and certainty about what he said he saw.

[00:17:54] Speaker 02:
Well, and I guess your position would be that they deferred to him and didn't do the normal checks that they would do with a non-trained witness, like looking at the other statements that contradicted the interview.

[00:18:13] Speaker 00:
Right.

[00:18:14] Speaker 00:
And that's what, as you pointed out before, Your Honor, when Agent Acey said he decided he would go straight to the source because he was law enforcement and he credited what Chief Romero was saying.

[00:18:25] Speaker 00:
So Chief Romero himself became involved because of his experience in training, but also he was treated by the rest of the agents that were involved in the case.

[00:18:36] Speaker 00:
And in fact, probably the magistrate who was issuing the warrant, and that's where it became material

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to a finding of probable cause.

[00:18:43] Speaker 02:
Let me ask you this.

[00:18:45] Speaker 02:
The district court indicated that Chief Romero was in fact involved in the investigation here, and that if that was a requirement, it was met.

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What's our standard review on that?

[00:19:01] Speaker 02:
Are we dealing with a finding of fact, a conclusion of law, or a mixed question of law and fact?

[00:19:08] Speaker 00:
Well, I think that

[00:19:10] Speaker 00:
The only way, given the district court's findings, that the government can ask for reversal here is if it's asking for a bright line rule that either a person is on the task force that's actively investigating the rule or not.

[00:19:27] Speaker 00:
That seems like a bright line rule to me that it doesn't square with Frank's.

[00:19:31] Speaker 00:
But anything else where we're looking into what the person actually did to determine whether they were sufficiently involved in the investigation,

[00:19:39] Speaker 00:
That becomes a fact question that has to be reviewed for clear error in terms of the district court's factual findings.

[00:19:47] Speaker 00:
And the district court made plentiful factual findings to support its conclusion that under any standard, even one like the one the government might be asking for, Chief Romero was involved in the investigation to the point where he is subject to franks.

[00:20:07] Speaker 00:
I would also say that,

[00:20:08] Speaker 00:
The involvement in the investigation, to the extent that that would afford any deterrent effect or supports the purposes of Franks as a deterrent, it's baked into the rule the way that it is.

[00:20:23] Speaker 00:
Because once a law enforcement officer is speaking to other law enforcement officers and that statement becomes material to a finding of probable cause, that's involvement in the investigation enough.

[00:20:37] Speaker 00:
But certainly here, where you have someone with 35 years of experience who served on the very task force that was investigating the crime, who was proactively looking at the situation.

[00:20:48] Speaker 00:
And even before he saw anything, wondering whether someone might have a firearm, and then waited around and spoke to Deputy Vigil.

[00:20:59] Speaker 00:
And everything he did, he conducted himself as someone who is investigating the case.

[00:21:04] Speaker 02:
And in fact, let me ask you.

[00:21:07] Speaker 02:
One of the things I struggle with here is if you excised just the untruthful portion, you would still have Chief Romero seeing rather unusual conduct, the girlfriend going over as soon as the other officers come in, standing in front of him and they saw the shirt, the vest lift.

[00:21:31] Speaker 02:
I mean, we, the probable cause sometimes is furtive motions

[00:21:35] Speaker 02:
If you excise that information, do we not have a valid warrant?

[00:21:41] Speaker 00:
Well, the district court concluded that we didn't.

[00:21:44] Speaker 02:
And that's an issue of law, right?

[00:21:48] Speaker 00:
It is ultimately probable cause as an issue of law.

[00:21:52] Speaker 00:
But that's not something that the government has brought before this court in this appeal.

[00:21:57] Speaker 00:
It's also still inseparable from Chief Romero's status as law enforcement.

[00:22:05] Speaker 00:
I think there was more also discrepancy than even just coming down to whether he saw an object or not.

[00:22:14] Speaker 03:
If the affidavit excised his status as a law enforcement official, do you think probable cause would be established?

[00:22:26] Speaker 00:
It's hard to know what would have happened if he hadn't been discussed as a law enforcement officer.

[00:22:36] Speaker 00:
No, I don't.

[00:22:37] Speaker 00:
And I also think that it's hard to do in this case because everything about his participation was so connected to his law enforcement background.

[00:22:52] Speaker 00:
And presumably, if he was just a confidential informant, his statements would have been credited a different way.

[00:23:03] Speaker 00:
I mean, I think we look at reliability when we're looking at probable cause.

[00:23:07] Speaker 00:
And he's inherently more reliable as a chief of police than just some unidentified witness or a witness who doesn't have any sort of connection to law enforcement.

[00:23:22] Speaker 01:
I have one question, please.

[00:23:28] Speaker 01:
What do we do with the fact

[00:23:40] Speaker 00:
Well, I think because that issue is not presented in this appeal, there is no reason to disturb the district court's finding.

[00:23:50] Speaker 00:
And it's not something that the parties have had the opportunity to brief or evaluate.

[00:23:57] Speaker 00:
So the only question today is whether Chief Romero is a law enforcement officer subject to Frank's and anything else is outside the scope of this

[00:24:11] Speaker 00:
appeal.

[00:24:12] Speaker 02:
What is the rule you'd like us to adopt, the bright line rule?

[00:24:17] Speaker 02:
Is it all government employees, the post-delivery guy, the dog catcher?

[00:24:26] Speaker 02:
I mean, what's your rule?

[00:24:28] Speaker 00:
Well, there is no reason to adopt any rule different than what this court said in Kennedy, which is that the government is accountable for statements made by all government employees.

[00:24:40] Speaker 00:
I think it's possible there are cases that might present different facts where the question might be more squarely before this court, and there might be more to dispute.

[00:24:49] Speaker 00:
But here, there's no question, because Chief Romero was a law enforcement officer.

[00:24:53] Speaker 00:
And that's really the person that this rule is aimed at.

[00:24:59] Speaker 03:
There is no bright line test.

[00:25:03] Speaker 03:
It's your sense of case by case, fact specific determination.

[00:25:08] Speaker 00:
The Brightline test is statements by a non-affiant government employee in this circuit.

[00:25:16] Speaker 00:
I mean, sometimes other circuits have used other words, like official.

[00:25:21] Speaker 00:
But there's never been any question that a law enforcement officer qualifies under that standard.

[00:25:27] Speaker 00:
So there's no need to change the prevailing test.

[00:25:30] Speaker 03:
I don't think a law enforcement officer from, you know, if somebody from the Texas Rangers happened to be

[00:25:38] Speaker 03:
Santa Fe and saw this, I don't think that alone would confer frank status to you or government employee status.

[00:25:48] Speaker 00:
Well, I think there are cases definitely where people from other jurisdictions and other states have passed along information, and it goes through a chain of different law enforcement or government officers.

[00:25:58] Speaker 00:
But I mean, this case is a question where we have someone who is a seasoned law enforcement officer, a current

[00:26:08] Speaker 00:
law enforcement officer and has extensive experience with the very type of investigation that was going on here.

[00:26:16] Speaker 03:
Well, there has to be some kind of materiality evaluation, doesn't there?

[00:26:20] Speaker 00:
Well, and that's true.

[00:26:22] Speaker 00:
That's baked into whether something gets suppressed under Franks because it has to be material.

[00:26:29] Speaker 00:
And so that requirement is really already there in the rule.

[00:26:33] Speaker 00:
What the government is doing is trying

[00:26:35] Speaker 00:
import some threshold requirement and the only thing that rule does or adds to the rule as it exists is threaten to open the door to the kind of misconduct that we're trying to deter.

[00:26:49] Speaker 00:
Investigations are not static and they're not linear, they're dynamic and sometimes they don't have an obvious starting point and sometimes officers who aren't assigned to the investigation will be instrumental to the way that a search warrant is obtained.

[00:27:05] Speaker 00:
There is no way to make a narrower rule that will not actually subvert what Franks is doing, which is making sure that law enforcement is deterred.

[00:27:18] Speaker 00:
And it is careful, consistent with their training in constitutional rights, to respect those constitutional rights.

[00:27:30] Speaker 03:
Help me out a little, because I'm

[00:27:33] Speaker 03:
I'm trying to envision what an opinion would look like that supports your position.

[00:27:38] Speaker 03:
And I guess the question presented would be, for Frank's purposes, an individual becomes a government employee when... Can you finish that sentence for me?

[00:27:54] Speaker 00:
For Frank's purposes, an individual who is a government employee

[00:28:00] Speaker 00:
is subject to this rule.

[00:28:02] Speaker 03:
That's not going to work for me, I'll tell you right now.

[00:28:05] Speaker 03:
Just because he's a federal, state, or local government, that's too broad.

[00:28:11] Speaker 00:
Well, the rule here really could- You can disagree with that, but give me a narrower- It could be quite narrow in that it applies to Chief Romero.

[00:28:21] Speaker 00:
I mean, even if there's some requirement of his involvement, being the person who instigates an investigation

[00:28:29] Speaker 00:
using your experience and status as law enforcement to conduct that investigation and in your relation to other officers and giving a statement that then becomes material to probable cause, that is enough.

[00:28:44] Speaker 00:
So there's no need to go any further or contemplate any other situation, because this one falls so squarely within the realm of Franks and Kennedy.

[00:28:58] Speaker 00:
If there are no further questions.

[00:29:00] Speaker 03:
Judge Maldock, do you have any follow-up questions?

[00:29:04] Speaker 03:
No, I'm through.

[00:29:05] Speaker 03:
Thank you, counsel.

[00:29:06] Speaker 03:
Thank you.

[00:29:07] Speaker 03:
And give him a minute.

[00:29:13] Speaker 04:
Thank you, Your Honor.

[00:29:14] Speaker 04:
Judge Tinkiewicz, to answer your question, an individual becomes a government employee when they are acting in their official capacity.

[00:29:21] Speaker 04:
And there are always exceptions to bright line rules, but to the extent we're asking for one, that would be it.

[00:29:26] Speaker 04:
And it's entirely consistent with Frank's, the object of which is to deter official misconduct, conduct by someone acting in their official capacity.

[00:29:36] Speaker 04:
And it's also consistent with Kennedy, where it's implicit that government employee means someone acting as a government employee.

[00:29:43] Speaker 03:
But it's kind of fuzzy in Zambrano.

[00:29:47] Speaker 03:
It's a little fuzzy whether that officer was in its official capacity or not.

[00:29:52] Speaker 03:
And I'm just wondering.

[00:29:57] Speaker 03:
you know, kind of a random encounter like this and, you know, basically the officers on the scene enlist him to help out with the investigation.

[00:30:11] Speaker 03:
So he's not really officially part of the team, but he's like a consultant or, you know, I deputize you for the purposes of the next hour to help us rummage through the

[00:30:24] Speaker 03:
through the liquor cabinet and the trash bin looking for guns.

[00:30:29] Speaker 03:
Wouldn't that work?

[00:30:30] Speaker 03:
If they had done that, that might be different.

[00:30:32] Speaker 04:
If they had said, we want you to help.

[00:30:34] Speaker 03:
We want you to... You think that would constitute official capacity?

[00:30:38] Speaker 04:
It certainly could.

[00:30:40] Speaker 04:
And if they had said, please go handcuff a few of those people, keep order, go talk to that witness, they would be essentially deputizing him.

[00:30:49] Speaker 04:
But that's not what happened here.

[00:30:50] Speaker 02:
Is it relevant to the inquiry how the affiant used the witness's status as a law enforcement officer in obtaining the warrant, relying on their training and their perception and their instincts as

[00:31:08] Speaker 02:
a law enforcement officer with 35 years of experience in explaining why a warrant meets the probable cause standard.

[00:31:18] Speaker 04:
I don't think that would morph the witness into an official officer for these purposes because, again, Chief Romero could have been retired and the same thing would apply.

[00:31:29] Speaker 02:
Do you have any case that says that a retired law enforcement officer who does something similar to what happened here

[00:31:38] Speaker 02:
could not fall under the Franks rule?

[00:31:41] Speaker 04:
No, but to the extent Kennedy says it applies to government employees, again, we would argue government employees acting in their official capacity, but a retired government employee, we would submit, does not fall into that category.

[00:31:54] Speaker 04:
And there are lots of witnesses who might have specialized knowledge that would be relevant in an affidavit.

[00:32:01] Speaker 04:
If it's a retired postal employee, and this is a postal theft case and that person just happens to be a witness You might put that into the affidavit if the witness is a nun you might say sister Margaret saw this and that makes her more credible But that doesn't turn any of them into a government agent Judge ball locking any questions No, thank you counsel times expired your excuse of the case is submitted