have two lines of argument one is they should have searched the phone at all and nd of all even if they did they eventually exceeded the scope of what the proper search should have been without a warrant so actually i'm willing to concede that they have a right to do a limited search and quite honestly believe that if they had just done what they were planning to do and just looked through and found text messages between the confidential other words they were talking to him he's he's got his cell phone and they just ask him to turn over is phone and he does so in the research in this instance you have the state of california the california highway patrol issuing a memo to the officers who are searching the phone telling them limit the search the telephone numbers and just checked in messages relating to those five telephone numbers before they ever get the phone these officers are told not that they can search the entire phone but that they have to limit the search it is by telephone number so there are starting off with the understanding that that's all they're going to be allowed l'oreal's when he's ordered to go into the office and read it he is handed a letter in which he says you're going to turn over your phone and we are going to search for work product because that's consistent with the  hotel in reading and they're searching the phone at that point in time they know they're only supposed to be taking text relating to this witness but when they find it's taking too long they then decide we're going to download all of the data they expect to be there the reason that it took too long they did have a plan in place to just extract text messages or maybe phone calls as well between those somewhat problematic but is there evidence that they reviewed any messages after downloading into the computer other than the five numbers that they were allowed to turns over the phone and at that point in time it's his belief based on a letter that's being given you know it's going to be limited to just the work product and that's what was not told by anyone williams or anyone else that he could search the entire phone i think i'm kind of know my pocket for it or not now you've got you've got about  an officer in this case that you can't search a person's cell phone whether it's a c h p officer or anyone else without a warrant and if that's in the course of a workplace investigation and it's a personal cell phone that devices that had been supplied by the government through the employee were controlled by the government and so for example and on it was a bigger that was supplied by the police or so in this case you have a personal cell phone he has got away in this case because he he consented to the search then the question is did the search go too broadly and i mean i'd be interested in your view what basis do you have that just downloading the information to a laptop without reviewing it without any evidence that anyone actually reviewed evidence you know the broad information that was downloaded constitutes a search in in of itself well it's it's not necessarily a search and this was the argument made by the defendants in this case is that by simply loading the data we've not violated his constitutional rights that's wrong even in opposition to the motion for summary judgment and it was not brought up on appeal so i believe that was waived on appeal with regard to up early robert foster and i just threw that sorry to interrupt utilized it was a searched it was destroyed thereafter now they were the search part of a bit to see if i understood your argument and maybe this goes to your you know your position that it was a reasonable seizure but that the possessory interest was no greater by downloading if they had the phone in their hand they had been sent to hold the phone to the bone in that sense yes which is an interesting question i mean i phone with that is that the government's position here i think that that is our position and a reasonable position i don't think in this i guess this goes to the qualified immunity argument more and the clearly established law part of that if you look at the united states the comprende drug testing case and this is a it is a criminal case i don't think it's on point with our cases o'connor and quon which authorize the workplace misconduct investigation exception to the warrant requirement but they have there's a long quote in that case that talks about the downloading of electronic data and how over he can't be liable for at the district court found that he was connected enough to be able to be found liable for it but i think when you're talking about the reasonableness and the clearly established part of it if you look at the coverage of the drug testing  matters who did it and there was a separation and it was officer best to get her to read a who said look this is this is what we have to do because my programs that i brought with me today to extract those certain texts are justified as that it's a sexual part and then whether it's limited in scope it was a temporary backup they only extracted the text from those certain numbers and then they the only evidence that we have is that  next day and then they could have deleted everything or of these do everything that they did next track that would have been subject to those five numbers they could have deleted all the following the is that what happened or what does the evidence  investigator to raise deposition testimony was that he did not remember exactly when he deleted it off the nd laptop what happened what they say to download it maybe a temporary backup on one laptop then he transferred it to a separate laptop that had different tools on it to extract those text his testimony is that i believe it is that he deleted the st creation of the backup on to the original laptop he deleted that immediately right after he put it on to the nd laptop then his testimony is that he doesn't exactly remember when he deleted it off the nd laptop but that it is his custom and practice  unreasonable i don't see that that was withdrawal of his consent he never said look i'm not consenting to searching my phone anymore i want it back right now he was calling to find out when he was going to get it back because it was taking longer than they had originally said it would take but there was never regarding consent and there was never consent given to have the officers i mean i know these are speculative answers but what you waited the officers maybe the better way to ask it is did the officers then have a duty to explain the situation why they were having problems with that and ask for additional consent motive with an understanding that you know will delete this well i don't even i but that decision wasn't made at that point officer laurie oakes had called three to four hours in hand and they said they were still you know they were still i don't know exactly but and it's not clear from the record it's not on the record is my understanding about the conversation and exactly what they said hey we have we brought this tool to extract the texas not working because of the condition of the phone so now we're having to scroll through and take a video of your tens of thousands of texts with confidential informant mellow and that's why it's taking so long i don't know we don't know if that's what the conversation was but it was it was three it was hours after that that when they continued to scroll and takes green shots of attacks and i think after somebody had accidentally hit the call button and they realized it might be impacting integrity of the information that they said you know look we've got to find a better way for this and that's when they made the decision to make the temporary backa acquirement i mean one of the things i'm hearing about this you're relying on well it wasn't a criminal matter it was a workplace misconduct investigation that i believe the o'connor case and the quantum clearly say that getting a warrant in this type of situation is not practical think that they wouldn't be able to get a warrant in a criminal situation particularly given the various criminal investigations that officer laryea his conduct impacted  federal criminal investigations i imagine there's a crime in there somewhere and finally to the qualified immunity argument that ultimately the district court rested on we would argue that of course it's not clearly established in terms of a workplace misconduct investigation an employee has has voluntarily commingled their work life and their personal life that there's nothing out there that says that this was clearly established and the burden here is on the appellant to show that the law was clearly established when the search happened in two thousand and fourteen all we have then is kwan and o'connor there being cases since then recent case more recent qualified immunity for the entire search of an officer's personal cell phone and again in that case there's no issue about having a general order  employer saying that you can and you can you can just work on your personal phone but if you do so that is subject to search and that is property of your employer so the cases that are out there show that the law  if you look at these two officers and certainly only the appellee lunardi and investigator direct way in the situation they were in there it was not clearly established that they could keep the phone for ten or twelve or twenty four more hours thanks heaps scrolling through and taking pictures of those text that that was constitutional but then the creation of a temporary back out so that those very same acts could be extracted and then the rest of the information deleted that that was not reasonable there were there's nothing out there that would tell them that that was the case and i think if we go back to communicate with his confidential informant he chose not to use that work provided cell phone just so that he could cover this illicit relationship that he had with her and when he chose to do that he chose under the general order to subject his phone to search and that commingling we would argue lessens the reasonableness is expectation of privacy on its entire phone i think the o'connor case speaks to that transcendant to that by choosing to have these tens of thousands of tax but the confidential informant to cover up his relationship counsel you over time so i have to cut you off at this point thank you  but there was only a consent to search of the bible but when they did the position is when they downloaded be entire that was no more of a seizure then the consent that consent had already been given to seize the entire party if there had been evidence that they've exceeded the scope of the search i think you'd have a better argument but what your point about the seizure why is this unconstitutional seizure be  expressly was you can do st of all if you remember the conversation they said we want to download your work product from your phone i'll do i'll help you get you know give us your phone so  from i mean clearly he consented to give them the phone otherwise he i mean there's nothing that would have stopped him from saying no way you don't don't touch my phone i mean it would have made this a more interesting  house because they were there looking for the files because the analogy here to me is you know you want these five or these five own you want data relating to mellow you don't just sees this stuff relating to what you're searching