mr hammond phone number he took no action nor did any of the other four officers investigating the case that is entirely consistent with the conclusion that there were no exigent circumstances existed during h instead waited until late afternoon on monday to do anything but nothing had changed from sunday to monday afternoon indeed a detective hearing how he admitted at the suppression hearing that he had no specific necessity but that is wrong indeed the government's contrary arguments here like those in between no ring hollow even though it maintains there were tears and would rob again yet no one particularly not any of the officers even in indiana tried to locate him and for more than a day despite having a home address thirty minutes from the team were sufficient to seek a warrant for a suspect who had committed to robbing again in the day and a half here surely is the district court credited the officers testimony that he was concerned that hammond was going to rob again and he had a gun that's reviewed under a clearly erroneous standard how can we conclude that that conclusion of the district court is clearly erroneous i don't think you need to conclude that conclusion is clearly erroneous  ly had that same fear on sunday morning when he had all the information and one hundred and fifty even before the officers went to go look for pitino they had credible evidence that one he had already shot someone in a previous robbery and two that he had committed to rob me again and then flee in chicago yes still this court held there was sufficient time to obtain a warrant so the district court conclusion and the printing of that testimony may be true but that doesn't under cut the reality that there was sufficient time here so there are two aspects here and there are were there essentially exigent circumstances and was there sufficient time to get a warrant the district court factual findings that i just indicated went toward the exigent circumstances is it your argument that we don't need to address that or consider that because there was sufficient time to get a warrant and they didn't do that now i i don't i don't think they're necessarily two different elements the test is are there extreme circumstances such that there is no time for a reasonable objective perspective to seek a warrant the circumstances here and the facts on the ground clearly demonstrate none of the officers believed that there was insufficient time to obtain a warrant indeed multiple officers testified that there was no impediment to them seeking a warrant on sunday so mr townson putting aside our case law on exigent circumstances if you look at the good faith exception here that the district court relied on specifically that the officer acted in good faith relying on twenty seven o two that particular statute does not have a warrant requirement or a time limit that there was insufficient time to seek a warrant how should that play into our good faith analysis so twenty seven o t c for which all holes deep or for ease of reference is a red herring here because it doesn't address the predicate question of what the government needs to seek a seat for in fact the government did minutes that c four is a complication of the accident circumstances what seaport does your terminology is written it gives the provider the out it allows the provider to turn it over it's not written in terms of the government's burden or what the government has to do but why does that matter for a good faith reliance because even get to good faith reliance you still have to have the exigent circumstances test met and all of the cases circumstances and a good idea are you arguing that because of the language in c four or because you think it order to get good faith reliance that there has to be the separate prong of exigent circumstances met do you understand where it is exigent circumstance argument you're making coming from in terms of the good faith reliance not the extant circumstances exception of the government relates to what the officers must present to get an order that is if you don't you know when to make sure i understand you are you saying that because i'm hearing two different things are you saying that the government can't rely on c four because the way it is drafted it's drafted to protect the provider or are you saying in order for the government to rely on c four they also have to have exigent circumstances well i think that is a dangerous doctrine to the good law enforcement burden it's written in terms of the provider yeah that is one way to look at it i think they can rely on me in good faith here to cover up when they don't have extreme circumstances that would mean that the government  requires it so that element to the extent you're calling that exigent circumstances is written in here what it doesn't say is you don't have time to get a warrant which is what's in the exigent circumstances d involving danger of death or serious physical to physical injury to any person requires disclosure i'm not sure that makes a difference but disclosure without the way i think is where i was going with the media but in any event to accept that argument you're on it would affect the way to be that for the government to rely upon it would be for eighteen brought to good faith i want to talk about a couple of the other doctrine the government attempts to use to overcome the lack of action service or st independent source doctrine the government of course has the burden to prove this in the lower court never ruled on it now of course this court may affirm for any basis on the record but won't do so when those bases require factual findings as these in the lower court never have in any  search the government here admits a seventeen of its briefs the two thousand seven hundred and three d order expressly contain information the government had through the pain requests and the government knew exactly what the fruits of the twenty seven to three d order would be when they asked for c s the law because they already had similar to marketing government cannot demonstrate that they saw the two thousand seven hundred and three order independent of what they already knew order and obtaining of the historic cell site not the real time but the historic cell site information because it's tainted with information that they obtained from this your argument th amendment violation of getting it without an order is that correct and it's correct so it's my read of that application only discloses that the government had obtained a smaller collection of the records and does not disclose anything about the contents of those records so why would that be a violation because it so in the order the government specifically says they need this just a lot to determine if mr hamad is in the location of the robberies if he frequents those locations but the government already knew that they knew he was in those locations but why does that matter if the government tethered to what it had seen or seized during your lawful search if you know exactly what it was going to get and that's why it doesn't untethered mean that they're not relying on it they're not relying on the tainted information of course they want they knew they wanted the information to confirm his whereabouts during that relevant time period that any good investigator would know that's what you want this information for but isn't the tethered problem whether or not when you go to get the court order that the information you're using is tainted dollars well two points your honor the government i believe quotes at their briefs that they had the information the application the lower court of course concluded that the application  no factual findings here that the government would have sought the information the c s alive had they are not already known what it would show and indeed i think it could be suggested here that the government was seeking the c f o life on the twenty  dollars c for demonstrated good faith and rd to the extent of both of those arguments would be rejected that the independent source doctrine would still be allowed a mission of the historical c s i and that therefore any error would be harmless beginning with the question of whether there was a th amendment violation just seemed we were framed i believe the argument the same way that you do and that kentucky versus change and which is that there are two elements st where the exigent circumstances and nd was there no time to seek a warrant on the nd question which i would deal with st was there no time to seek a warrant while there is limited evidence in the record all of the evidence that is in the record on this point suggests that the answer to that question is yes there was no time to seek a warrant if you go to pages fifty eight and fifty nine of the suppression transcript detective you're in delhi was asked you know could you have obtained a warrant in time and he said i would not have been able to obtain the phone records the placed mr hammond at the scene of each robbery within that time for me i would not have received the results depending on the character some carriers can take days some can take up to two weeks if you go to the care about low decision from the nd circuit it's the findings you're consistent with that you care about well the officers testified it takes about six hours to get a warrant from a judge and then it can take days to get the records from the phone carrier mr hallett there seems to be a bit of confusion is the appropriate inquiry under exigent circumstances whether or not you could obtain a warrant for the real time or a warrant for the defendant's arrest well i think the question is the same regardless i mean to the extent that we have  the factual the facts that you just read from the testimonies suggest that he couldn't have gotten the real time records fast enough to find him the district court's ruling seems to suggest it wouldn't matter if they had an arrest warrant for the defendant because the arrest warrant would not have located the defendant whereas the real time would so there does seem to be a distinction and mean to the extent that we could have obtained in arrest warrant i agree with the district court i don't know what that would have gotten us we didn't know where the defendant was so if we could have obtained a real time c s o warrant within the more time than the amount of time we have now it's also not entirely clear on the record exactly when detective here in delhi learned exactly who mr hammond was and what the relevan phone number was however i would disagree with my opponent's characterization that it was sunday morning it appears that the earliest it could have been was sunday evening because on page thirty five of the suppression transcript that's when agent the doubts he says he learned got all the pieces connected together as to who hammond was and hammonds hartnell the other information i don't think the phone number alone could have given us exigent circumstances only by connecting the phone number to mr hand and his image that was on the videos as well as the matching car as well as the fact that he had similar prior armed robberies i think only when all that information was mine was there possibly a probable cause and of course accident you know the mere fact that  was an emergency is now we have to have probable cause so i think that we've established there was no time to seek a warrant and then circling back to the st point i do think that under the presidents of this for another course that there were extreme circumstances there was  serial robber who was going out if not every night every two or three nights with you is you were on the trigger of a loaded gun threatening to kill people if they didn't turn over money and under you know  impact of c four and reliance on that stand shoot for a good faith exception what's the government's position on whether or not the government can rely on c statute at a time prefer when it was not even clear that any of this information had any th amendment protections and the government complied with the stash and then good faith would be triggered does it  us the government relied on the provision of the statute which allowed the government to go and get a court order so the statute is written in terms of what the government has to do to upton this information does not say the government has to go tick to do x y and z in order for the protect provider to turn this over c four is written in terms of what the provider can and complied in good faith with statutory provisions that said eighty mt can't turn over this information that we're not even sure has at the time and when the seventeen has protections then i think as long as they comply with the statute i think that they are covered that's said i don't again know that the court needs to reach it because to the extent that the government didn't violate the th amendment because exigent circumstances existed and there was no time to seek warrant it doesn't make any had any th amendment protections whatsoever so back in two thousand and seventeen yes i think we could have relied on c four in good faith to say oh we have to do is comply with that statute and we can obtain these materials before that it needs to disclose the information without delay but if it is it is as as we've all been discussing here today the statute is focused on what eighteen she thinks and what  based on the information that it's been provided that there is an emergency involving danger of death or physical injury and doesn't believe that disclosure is necessary without the left so those are the rules that he has to follow in order i don't think it was you know i don't think it does i think that the way that we know that a t and t believe that the statute was complied with is because they disclose the information if congress had wanted to require specific written you know if we can show that there is some sort of emergency i guess we're where i might kick in would be you suppose there was a situation where there was some kind of emergency but it wasn't an emergency that was likely to result in serious physical injury some kind of injury to probably a building that nobody's in is going to be blown up and we went and we gave that information to a c n c we would have complied with the th amendment and if the opponent my opponent wanted to come back and say just a further refine the hypothetical let's say the exigent circumstances doctrine does not apply based on the facts of the case but the statute and the officer reminding good faith and the providers solitary statute and it's suppression denied i don't i don't i don't know that's a tough question are right and i think at that point things would probably collapse back into a more generalized good faith question about whether the officer had a reasonable belief in exigent circumstances if the officer reasonably believed exigent circumstances existed based on all facts known to him or her at the time it seems like the exclusionary rule wouldn't even get in on the other hand if the officer you know knew if the office under those circumstances it seems like an unlikely scenario but i don't want to you know depending on how our twenty seven dollars of two is interpreted it could operate as an end run around the warrant requirement in a post yeah i don't think that that i mean my experience has not been that that song companies internet service providers are just dying to provide information to us i mean that's just not they haven't exactly been super friendly with the government the government hasn't been super friendly with them lately so i understand the concern i am but i don't think that it would be too likely that that would occur i think it is the trigger in effect a carpenter that allows us just isn't to see for context we can't go in show up under see under  rely on something that didn't require a warrant and lest you have one of the other th amendment exceptions i would think so i would think since we know warren is a liar he couldn't rely on c four unless we knew that the th amendment was complied with because exigent circumstances exist we didn't provide all of that information we have to show that we would have saki information which we surely would have if we had done this in the st place we would have been seeking the historical information to try to determine who the robin was and i would always want that evidence that the unconstitutional information here also i know these officers were all working together that they were all independent this information was obtained by a police officer in michigan the federal government went back position that your application under twenty seven of three d had tainted information then no your honor the only information that even remotely relates to this is one paragraph eighteen all it says is that mr hamdan was arrested which he constitutionally could have been regardless of whether we are or how we arrested him and that the government had previously obtain phone records i mean i suppose that that one specific fact to the extent that we obtained those phone records unconstitutionally is would technically be considered tainted but we didn't tell the judge that we have changed records unconstitutionally we don't think we did so i don't think that that fact i don't think was not discussed below we think as even the th circuit recognized there was a reasonable argument that every instance of hobbs act robbery is either robbery or extortion under the guidelines and to the extent the court disagrees with that george miller was very clear in this case and you know i've never heard judge miller i know the court says that judges can say at any time i would have given a sentence regardless i mean george miller law and usually follows the guidelines and for him to say i don't really think the guidelines have it's kind of application here and i think the ultimate question in this case is really am i going to give this guy a life sentence or not because he's demonstrated repeatedly that when he's out he's going to commit robberies and that's what i'm going to do i think the court should take that to heart as it has in many prior cases and say it's overwhelmingly clear here that this particular guideline or did not make a difference especially when we consider what that guideline here is right we're going to go back and tell the judge judge we know that all of this defendant's prior indiana robbery offenses for robbing gas stations in indiana are crimes of violence however if it is not a c offender because his most recent acts arriving in the end of gas stations violation of hobbs act robbery is not a crime of violence and therefore his guideline range should be low that's just not the kind of information that most district judges are going to listen to and say oh ok well then i definitely need to get this defendant a lower sentence i mean i just think as a as a you know the guidelines are what they are and they say what they say and sometimes they say things that are reason well and sometimes they don't but in this instance the district court judge understand your plain air argument putting that aside has any circuit found that have sicked rapper bre qualifies as a crime of violence under the guidelines they have not your honor of the four cases that we either because the error was harmless for because the error here is not plain the court should say that issue for another day i do believe the sensing commission is looking at the issue and if they ever have a quorum we might get a correction or clarification i your honor i want to focus on good faith because the government doesn't meaningfully attempt to distinguish this court's extant circumstances case law here we have no evidence whatsoever that the s b a was even complied had a right not to provide it and every other case that we have found there is a documentary evidence of this exchange so that a court can actually adjudicate whether or not it was complied with now the government hasn't a single case to this court in which such as dearth of evidence as in this case that it can be has been found to satisfy the there can be no good faith reliance on c for the we of course still believe that c four isn't really a clickable here but there can be no good faith reliance is no evidence for the government to make its burden here and the government doesn't have a response that other than well because eighteen to you provided the  we surely would have gotten this information but there's no factual basis for that the government didn't lay a factual record and there's no factual findings that they surely would have done anything and i think my colleague said well we had no idea who mr hammond was well that's not correct they knew exactly on sunday who mr hammond was they had to name it all as information they didn't need to see s l i to find out who he was they had his home address they could have gone to try to find him on sunday if there was such a not a crime of violence with respect to mr haulers argument regarding whether or not this was a you know close case or plain obvious this court doesn't engage in that type of analysis typically when there is a guideline is miscalculation in james in fact say he would have sentenced mr hammond to the same sentence regardless of how we calculated the guidelines but that doesn't hold d here for a couple reasons st the lower court here have no idea that the correct guidelines range would have not classified mr hammond as a career bender and so when he's making those statements he's doing so without the knowledge that he is wildly departing from the top end of a guideline range mr ammons guideline range was