in this unusual type of hearing we regret very much that we can't be in new orleans and hope this will all end soon and we'll get back to normal operating procedure it's been in particularly of this mode hearing one thing does not change we do not allow our video or photos or recordings of the proceedings just as if we were in new orleans we don't ask you both to make sure your telephones muted so that we don't get interruptions and we will give each of you five minutes extra not at five minutes uninterrupted at the beginning of your presentation in order to try to hurt confusion that said i will call st and as always of course we will we like record hopefully this will go fine may please the court fill in for alfredo uggla the question in this case is whether border agents are permitted to conduct a warrantless forensic search of a cell phone at any international port of entry the answer is no such a search is not permitted by the th amendment the supreme court has made clear to us that cell phones have a great degree of th amendment protection because of the huge amount and wide variety of information that can be accessed through them in riley the court considered whether the search instant to arrest exception allowed a cell phone to be searched it concluded that it did not in so doing the court told us three things that are important about cell phones and they're critical to this case the st is that cell phones are not containers the nd is the cell phones our searches of cell phones are quantitatively different than other searches because of the amount of data that is involved the rd thing is that searches  different because of the types and varieties of records that may be accessed through a cell phone a knowledge of records the core pointed out is greater than one might hold in one's entire house although riley was considering the specific question of whether a search incident to arrest allowed a search of a cell phone if provided us with useful guidance the  and perhaps biggest thing is that it said our holding is not that cell phones are immune from search is that generally a warrant is required the corps provided us with guidance as to how to consider cell phone searches in the context of warrants exceptions which such as search incidents or border searches what the court told us was that we have to look to the three concerns the st is the amount of intrusion the nd is the government interest and the rd is a jurisprudential concern to not an exception from is justified cation when we consider those factors i think it tells us their forensic warrantless forensic search of a sofa own is not allowed but the th amendment riley court made it very clear not simply in the context of search incidents but spent a lot of time comparing cell phone searches to other searches the court said this comparing a search was cell phone to an ordinary container was like comparing a horseback ride to a flight to the moon so you didn't agree of intrusion that a cell phone search involves is tremendous and the supreme court has told us that in riley and reinforced it in carpenter when they required a warrant for cell phone records carpenter is less directly relevant but it reinforces the idea that cell phones are extremely cell phone searches are extremely intrusive the government interest in the border exception has always been interdiction of contraband interdiction of contraband is not the same as the kind of general rummaging search that the supreme court recognized a search of a cell phone is a search of a cell phone that qualitative difference may be more than anything is what makes the border exception not relevant this is as if border agents are allowed to search through your entire hole your bank records even into information that may never have entered the united states that you may access from your phone from a different country so the degree of intrusions great the interest are not the same it's not a matter of finding contraband therefore the border exception cannot be used to justify a warrant require reasonable suspicion and that cell phone searches at the border must be limited in scope to search for digital contraband now a st glance the use of reasonable suspicion suggests that warrant is not required but in fact read together those two holdings reasonable suspicion and reasonable suspicion of digital contraband tell us that in the normal case the usual case it warrant is required to conduct  cell phone service it is only in the exceptional case and that it too is entirely consistent with what riley told us because riley told us the chief justice reminded us in rejecting the government's arguments that case specific exceptions may still justify a warrantless search of a particular cell phone and so in fashioning the test that it did using the reil all recognize that now mr idlers case does not require does not contain any evidence of order nor do i believe the government has made a claim that the agents suspected th phone contained ishall contraband for the final question to run i don't need the whole five minutes all right it wasn't that kind of case in fact  based on it was digital contraband under the act it wasn't didn't have language limiting border searches to digital content what what some called digital contraband did it i think it did your honor they're there holding it seems fairly clear to me that judge by view saying that it's all me when i'm the agents reason to suspect the phone contains digital  know caught or maybe they relied on caught him but these this is the cano holding your honor i do believe that that the court said specifically only when they recently suspected that particular phone contained digital contraband could they conduct a warrantless forensic search and so the two rules there read together tell us that a warrant is required in the usual situation say i there's nothing in the record that tells us what happened in this case i don't know if the different security requested one i don't know if you request one it was turned down but a defendant on his own cannot appeal  motion to suppress if he pleads guilty and has not explicitly reserved it in writing and you near your letter brief in response you mean you said two things number one that the cell phone that be included as part of the stipulation it was not included but as i point out in my letter the denial of a motion to suppress effects a defendant's rights because it has a effect on all  and that's particularly true if he can't get a conditional guilty plea he may have wanted to go to trial the state these facts were gnawing a concession of guilt they were here are some facts your honor and then the judge found that they would be sufficient this is not a case like willing him which the government sites in which the evidence was overwhelming they not only had the physical evidence from the pawn shop in that case but they had a confession by mr will him after he had been advised of his miranda rights what happens here is you're faced with the choice of if these records can come in it affects my decision to go to trial it affects my trial tactics had the most in suppressed been granted to the defendant and his counsel would have been in a different position and might very well have made a different decision about the jury trial  group they were would have been subject to impeachment at a trial your honor because their stories over the course of the night they told each told about three different stories they were wildly different but they did differ detail and there would have provided a substantial amount of impeachment information for mr i glad to use the trial but with the concern that the government would use the phone records which show that he had been in mexico and that he had made calls in mexico which i think is much more incriminatory and certainly is corroborative of the government's theory that the women statement should be believed and so the the existence of the phone records to be used at trial was had a harmful effect on his decisions of prejudiced his chances  trial and if if as in the usual case the court were to send this matter back we would be in a pretrial position and he would have a chance to either go to trial or he'd have better negotiating leverage because the government would feel perhaps less confident in its case because if it's witnesses all right and then the other question i have is well if if you admit the existence of hot harmless error in principle but you don't say it live here if we go back to the merits are you seriously contending that this should be the st border search case in history where a warrant is required or you  using some kind of reasonable suspicion well again your honor i think if you look at can know that can know in effect requires a warrant because it cards out it's a specific subset of cases in which forensic searches of cell phones are permitted and that is in the future say an affair requires a warrant but i don't read kind of every way where do you find that why i think it it's you read there to holdings together judge will it the st holding is that was it that a forensic search of a cell phone at the border is not permitted however they hold that a forensic search is permissible is not generally permitted but is permissible if the agents reasonably suspect that the phone contains digital contraband so reading those two together if there's no evidence and in this case there isn't evidence that anyone suspected digital contraband then we go back to the general rule which for cell phones us really tells us is that warrant is required you have to read the two together you can know but i believe when you read those who holdings together what they're saying is in the usual case we would expect agents to apply for a warrant if the agents come in and testify to facts that led them to reasonably suspect that the phone contained digital contraband then required so in the us a judge jones is question yes our position is that a warrant be required if the court in providing guidance to the officers would it may want to interest in protecting the integrity of the border neither can know who or recognize that you know that absolutely i do not disagree with that or are you don't dispute that individuals have a much more sharply decreased expectation of privacy at the border direct that's the general rule i think that some rule has to be evaluated in lay of the very strong statements that the supreme court has given us and riley about the great degree of protection and even widely left open the possibility that as the court said quote other case specific exceptions may still justify a warrantless search of a particular phone unquote even riley left that  honor i would say that a case specific exception and then they were on talk but exigent circumstances is different than a categorical exceptions such as search incident or order search that said can you point us to a single about what they must say did they specifically hold that a warrant is required no but what they did hold was that he was aren't loose forensic search is not permitted and that warrantless forensic search is what occurred in this case and that's the only question for the courthouse to reach if the court decides that a test a reasonable suspicion test like can know should apply mr i q i was to prevail well i'll leave you with  this which is but no and no team from qana i call it tunnel so it's no accident but anyway it says manual searches of cellphones at the border are reasonable without individualized suspicion whereas forensic examination of a cell phone requires or a showing of reasonable suspicion my personal view is a complete get your why aren't idea only by making the novel holding the people wobble holding the border searches are limited to contraband and that's what you also need to depend on rebuttal and will move over to card had the objective lever is the mobility that a search warrant was not required for that search and rd the th amendment under the border search exception does not reasonable trier of fact that the defendant is guilty that is very much the case here as willingham talked about and the suppression of the shotgun in that should've the in this case because in fact it is harmless error that evidence that was suppressed from the forensic search of the cell phone sim card amounted to a call log something that could have been obtained from a locked cell phone merely by a manual search it was six phone calls placed on an unknown date and time to numbers  mexico the only additional information that was recovered was that that cell phone was obtained their purchase and mexico and that evidence was not submitted during the stability bench trial it d was not stipulated to it had nothing to do with the stability or facts that led to the judge to find beyond a reasonable doubt that  arguments because in your twenty eight chain letter you talked about that the harmless error argument was and the alternative argument that it was the government's view that because aguilar here going to reserve his right to appeal when he stipulated to the facts necessary for his conviction that the harmlessness and the waiver rules don't apply so you're arguing harmless error in the future so to prevent the continuing course of conduct and entry of contraband the government also has a national security interest in the border which has to be considered border case and did not consider all the factors that come into play at some of the reduced ringback expectation of privacy of individuals at the border which the spring corps addressed in the circuit courts of addressed and in fact that reduced expectation of privacy at the border has led to even a look lower standard for things such as body cavity search to centrally a six calls we don't know the dates and times of those calls and this record this is not the appropriate record for the court can serve the broader considerations i'm a little confused about what you saying because judge by these opinion distinguishes between what he calls manual and forensic searches and the manual he says manual search in that case is ok which didn't cover  of that's ok without reasonable suspicion is high and if i'm if i remember correctly and but this was not what you call a manual search has to ten days and apparently they  took a part or something like that so this would fall under his definition of the forensic search and the fact that it may have been a barn or bone that only had nothing on it except the call log doesn't mean that it was not a forensic search search we even say i absolutely agree with that it just the substance could have easily been recovered in an unlocked phone it was only a friend's like search because the phone was locked and the ages for on able to get recovering what was in this case essential a two page report with six calls going and are out which is why this case is not the case to delve into the deeper issues that require examination on the th amendment issue but not evidence here fabrice's reasonable suspicion yes yes judge shelley easily established as reasonable suspicion because all the evidence i react to some or the rest of their argument is about where the warrant is needed that where it just seems to me that reason with suspicion that's the highest standard it's you apply at the border and the that in fact we have a problem because the government limited so argument to acknowledging reasonable suspicion because that's the highest level to this point that any binding process and all this suspicion the government believes is required required for forensic searches like this at the border the government's position to this point your honor is that there is no elevated level of suspicion required for th pornography i would certainly suggest that what another reason why this is not the case to do this for their examination of the parliament is this is still emerging technology there is there are things out there like c involving narcotics methamphetamine in this case already that our government has a view it may be a left field question but does the government have a view on what the proper role of congress should be body feels it's necessary it would be very helpful and developing ringback the kind of issues that are required really to be expanded on here such as those security concerns related to cyber security  you know malicious code dick come into the country things like bit coin you know contraband can include cash currency things like that bitcoin is  currency that really those issues really need the bell of men in the legislative body to sort of figure out where the government's position is on that and again this is just not the case for  our harmless error argument judge shelley is the fact that this evidence was not submitted and the stability back to that was not contained in those stipulated or facts it did not go to the finding of guilt defendant who goes to trial on the stipulation while reserving the right to appeal from a suppression ruling quote will not be deemed to have waived the suppression issue nor will the ship delay ssion render the the certain jurisdictionally from exercising its authority where it's not a live controversy it's moot so rather than a substantive analysis of harmless error that's more of a a cell phone search had on objectively reasonable belief that they were operating in good faith on the basis of the border from the conduct that search and rd because of the th amendment does not require a search warrant or honor as to the interest that the government has at the border again i think we look to riley riley tells us that the three things we look at are the intrusion of privacy the government interest and some other interests that are implicated but those interests do not allow the sort of free ranging searched through every bit of information that might be accessed on the fall the border exception is not an exception to search your entire life if it's an exception to prevent the entry of contraband and i think judge will it to a certain extent congress is already in house for a very long to the case specific every rule such as the ruling can all is essentially a case specific role well let me just stop you there ana ok me year after this year or more after the search in this case what you'd be asking us to do is to adopt a later define a later you know defined scope of search and then do away with good fa no your honor because what we know from the supreme court in davis versus united states which is five hundred and sixty four us t twenty nine is that the good faith rule applies to appellate precedent when officers act according to binding appellate precedent there is no binding appellate precedent specifically authorizing a warrantless search of a cell phone no court had authorized that in this circuit the supreme court had not authorized it and i think a reasonable view of riley would lead any reasonably cautious government lawyer and we know that these agents are advised by the many wars that homeland security in the justice department has as to what they can and cannot do riley tells us there's a very very high degree of protection but the important thing for good faith is there's not a precedent on point authorizing a warrantless forensic search and that davis tells us is the test it's not that there isn't a case saying it's wrong this is a case saying the agents right and the reason for that of course is that the th amendment restrains the government it reasonable suspicion here i think under a konoha rule there wasn't reasonable since we don't have evidence that the agents reason we suspected digital contraband so they didn't have a right to do a warrant is implicitly warrant and that reasonable suspicion of digital contraband there isn't reasonable suspicion of digital contraband in this record the government did not testify that they thought there was digital contraband on that phone they just want to look at his phone because they took it because that's what they do they search when they see something at the border but that's not permitted by tunnels and i think you all right thank you both we appreciate your arguments and to see you again in new orleans i hope so too judge thank you very much