please the court the fourth amendment violation that happened below is conceded to be a violation and we have the question of whether the exclusionary rule should officers fourth amendment violation is excused if he is relying on certain authority in leon it was a judge in davis it was an appe judge and so that reliance is different than saying well the officer had a good faith belief or he was acting reasonably under the circumstances the government has to point to a particular appell government well i think that's right and regrettably neither the district judge nor mr jenkins himself apparently looked up the decision and looked at the day i think part of the confusion may have been that this was  gated after mr jenkins as other federal case and so this was several years after two thousand and twelve and i think everybody assumed the search had had post dated that that decision but i do fault the government because they introduced this problem they the judge made a ruling excluding the evidence and the government came back and said no you should keep it in because of this case that had no relatives because it is so stated  search it is regrettable that nobody caught it but i the other point that i would make about that particular case that is the case that is specific appellate finding precedents there's a reason the government cited that  e that's the sort of specificity that a police officer can rely on not the analogous cases like ortiz or rob even the seventy's supreme court decisions that have nothing to do with so that's why the government cited that decision and of course they were they were wrong to do that in the district court was wrong except the government's recommendation on that score obviously the court has heard a similar case  gary and i'm aware of the makeup of that panel in this panel so i want to ask the court over rule but i do think it is it is distinguishable a close reading of that case talks about the difference between a search incident to arrest where the searches of the person the arrest deed rather then a search of something that is located in the vicinity of the arrestee that's the distinction that the court the supreme court made in chadwick  distinguishing robinson and others and that's the distinction that the court in gary just last year relied upon to say a cell phone seized from a person when they are arrested could have been justified by those earlier cases because the search is in effect that is located on the person of interest he has long been held to be permissible under the fourth amendment this cell phone was recovered in the car mr jenkins was in on his person mr jenkins had been removed from the car it was a it was a messy car and they found the self and then they took it back to the police to which they were mean to do this all phones were ringing right this would be harmless beyond a reasonable doubt a large part of the evidence was linking mr jenkins to that cell phone number because a large part of the evidence was these title three wiretaps between the caraway the drug dealer and and mr jenkins or his on this issue of harmless error mr henderson is the theory that without the cell phone the defense was going to argue that caraway had the wrong guy you know identifying him  as the one on the phone when he's the guy who came after the phone calls i think that's the defense i mean mr caraway was testifying pursuant to cooperation agreements with the government his credibility would have been subject to person it was found in a compartment in the car so it wasn't you know they didn't catch him red handed i'd say but that that's why the phone evidence is important because it's corroborating to say well he we know that this is who he was talking to because this is the number that corresponded to the wiretap that we have that's it's an important piece of evidence there is other corroborating evidence what i'd suggest is this is not harmless beyond a reasonable doubt i think there is a reasonable doubt sounds at me like the difference between absolutely slamming shut the door in an overwhelming case frankly well the rights and reasonable doubt i think is a difficult  in the first place which is that mr jenkins was charged as a conspiratory in a larger scale conspiracy carrying a mandatory minimum sentence of ten years of course the jury hung on that counts and if they hadn't if they had convicted we'd and sufficiency of the evidence challenge this was not a conspiracy this is a textbook definition of a buyer seller relationship mr jenkins wasn't linked to any other person in this conspirac so called spears he has no connection to this pipeline of cocaine from mexico to texas to st louis he's got it as a dealer who he goes to and has bought maybe two or three times from small amounts of you know coke cocaine so when the district court then the sad as well this offense is very serious and when i consider whether to run the sentence consecutively or concurrently with your other sentence i have to take well that particular connection comes when the district court evaluates the thirty five fifty three a factor the nature and circumstances of the offense what the district court says is this is a large conspiracy it involved quite a large amount of cocaine breathtaking is going too far but at least it's something that's rather stunning this is on page twenty five and then on page twenty seven and twenty eight the court connects that and says what's important to the court in seriousness of the crime and appropriate punishment the gore believes it should run consecutive and that's on page twenty eight it's very clear to me that the court is deciding the concurrent versus consecutive issue on the seriousness of the offense and the court continuously says the reason this is offensive serious to go this is a large scale cocaine conspiracy not because this is your standard street level drug dealing involving  relatively small amounts of cocaine mr henderson my concern is you've argued in your reply brief that there was no need to raise an objection at the time but the pre sentence report identifies  mr jenkins as involved in the conspiracy in objections that were made to his relevant conduct if i recall correctly were withdrawn in the district court the the only relevant conduct th ever going to be assessed against him was the relevant conduct pertaining to the on charged transactions that had occurred before the conspiracy amounts were never on the table as i and he's identified as being involved in the what i call boilerplate when we have these multiple multiple defendant cases the probation service often lists these are all the people who are charged in the conspiracy and these were their roles in the conspiracy i don't think that that's something that a defense attorney would have to object to that particular wording because the rest of the pre sent report is only about his possession with the intent to distribute at the sentencing hearing itself nobody brings up that this this is part of a conspiracy  doesn't ask for for example one hundred twenty months of off the guidelines because we think he was involved in the conspiracy the first time we hear that this decision is going to be based on a conspiracy comes at the imposition of sentence so for that please the court that this search took place with respect to mr jenkins took place the search that took place on january of two thousand and twelve took place today there is no question that suppression would be warranted based upon miley versus california but given the state of the law in january of two thousand and twelve there was no error here because an officer could reasonably rely on binding precedent to search important or to be held that a pager an electronic device that was found on an arrestee which was searched incident to arrest for its number and for its recent calls that were made to the page analogous to what exactly happened here which is that his cell phone was searched for its phone number and for its call log in addition to an address book so that while a cell phone might be a different electronic device it was searched in the context of finding a pallet pressman at the time that allowed for a search of the pager for those limited items as well i think to me that your case you didn't seem to support  following a traffic stop that the cell phones in that case were found in the arrestees pocket that was later that day the detective started quote unquote pushing buttons and discovered that one of the phones was assigned a number that was relevant to  drug purchase and that had been conducted and this court held that the cell phone search was lawful under binding circuit precedent that allowed the search of personal effects and usually associated with an arrestee even if the search was not contemporaneous with the arrest and that their search was conducted with the object of the reasonable good faith believe that it was lawful and therefore that the evidence should not be excluded and this court cited in support of that holding united states versus robinson the case i earlier mentioned about the crumpled cigarette package and the rest is pocket right and this this wasn't in this case though we're not dealing with items removed from the proof the defendant's person not in the course of the arrest and so i tend to agree with with judge grosvenor's implication that this is looking for an extension of ortiz particularly given ortiz's dependence on the fr between what we might call qualified immunity for civil liability for a police officer and the davis good faith fixed action which i guess i might characterize qualified immunity is available to an officer where there is not clear a clear prohibition in place but they have a seems to me to be much narrower and i'd invite you to comment on that as requiring quite explicit authorization as specific  as the search warrant and leave well in in united states versus davis where the explicit holding was when the police conduct a search and objective we really reasonable reliance on binding upon the president the exclusionary rule does not apply and that excluding evidence in those cases deters no police misconduct and imposes substantial societal costs and it does the question to well let me put the question this way then the question is how do we want police officers to act in the face of legal uncertainty well i think that the that police officers should be able to look at the state of the law and be able to act upon you know holdings of the court and i do submit that that the pager that the electronic device in that case did support a search incident to a rast and that in terms of what davis talked about in terms of the exclusionary rule and application of the exclusionary rule that the purpose of applying it depends on the level of  culpability of law enforcement that when the police exhibit jointly brit reckless or grossly negligent disregard for fourth amendment rights the deterrent value of exclusion is strong and tends to outweigh the resulting costs but when the police act with an objective really reasonable good faith believe that their conduct is lawful or when their conduct involves only simple isolated negligence the deterrence rationale loses much of its force and exclusion cannot pay its way or you interpret in  qualified immunity i think that some of that language is there and that's reflected in leon where leon talks about whether an officer has an objective really reasonable good faith believe that their conduct is lawful at all in leon you have explicit permission from a jury yes security help search with the warrant and i'd be very troubled i don't i don't read davis as broadly as you do i'd be very troubled by the notion that the police can conduct warrantless searches searches unless specifically prohibited i thought the fourth amendment was supposed to push them in the opposite direction and  lopez talked about the definition of a container it spoke of new york versus delton that a container could be defined as any object capable of holding another object and so in defining a can or a container in that manner  officer dres ik on both january fourteenth two thousand and twelve and january twenty eighth of two thousand and twelve they had intercepted wiretap phone calls on carroll ways phone indicating that a drug deal was about to take place they knew that that drug deal was about to take place at the gate which was carol ways father's tire shop the established surveillance and specifically focusing on january twenty eighth having seen caraway and graham go to the barber shop then go to a diner and then sitting on the gate and observing the activities sergeant pins black g m c yukon enter into the gate leave shortly there after maintaining consistent surveillance and that illinois state police trooper who made independent probable cause to search to stop the the yukon and search the yukon that we find eighty one grams of cocaine in a panel and i think what's notable also in addition to the fact that we have the survey allowance  by the agents that was consistently maintained on the twenty eighth you had the testimony of the court cooperators caraway and graham talking about that transaction on the twenty eighth and then the traffic stop more trooper look having smelled an odor of marijuana and searched the interior of the vehicle finding that eighty one grams of cocaine upon showing it to the appellant he hung his head in resignation and his statements made at illinois state police headquarters include that he was going span from december mid december of two thousand and eleven and to the beginning of february of two thousand and twelve that in those discussions there was evidence of numerous drug transactions to include at the very least on the fourteenth of january at in addition to the phone calls that were being monitored on the wire he also testified at trial that there would have been numerous face to face meetings that it was how he primarily conducted his business and so the evidence the focus at least the initial part was the initial search of the car so after jenkins is pulled over he's asked to step out of the vehicle based upon the odor of marijuana i think that the district court was stating that arizona versus  search and terms of a p c sir based upon the odor of marijuana and the proceedings on the motion to suppress it with respect to the cell phone again it was not specifically raised but we do believe that it applies in this case i can't has a specific holding that if there is reason to believe that evidence is within a vehicle or any containers there and that it may be properly searched incident your rast i do see that the red light is on if there are no furthe think your honor one thing i would say again about davis is i direct the court's direct attention to united states versus man in two thousand and ten the court was making waves about you know officers may want to secure warrants for electronic devices this was not something that was clear cut in terms of gantt since we just discussed that they didn't search the cell phone in the car gantt has nothing to do with the search of the cell phone it wasn't office person it wasn't within his reaching distance which really is the holding of dance a dance has little to do with this but asked of the conspiracy i've bought my wife flowers several times from my local grocery store every time i go in i don't conspire with them to purchase flowers to distribute flowers i buy them from them because they sell flowers and so i go and buy them and then i distribute them or i give  my wife that's not a conspiracy that's a typical buyer seller relationship and i've gone several times i've never phoned them ahead of time to make sure there are flowers there but i could that doesn't form a conspiracy i'm going to the person who provides me flowers and i'm buying it from them so it was clear to call this a conspiracy unless the court has further questions dressed people thank you thank you very much mr henderson thanks to both counsel the cases taken under