good morning good morning i'm good steward on behalf of the appellant court i'd like to start with the rather large and obvious fact that the government never raise the parole status of my client in the district court our position is that at this point they can't raise their precluded from raising it and this becomes simply a cell tower carpenter case one of the things the government also pushed in addition to the parole status of the client was good faith and i think that's an important arguments on the issue but what distinguishes the courty case from the other circuits is the fact that the other circuits have had binding precedents in place where is this court had not ruled had given us a hint but hadn't actually ruled on the cell tower issues and whether or not the council if i could just interject you opened by saying the government had not raised the parole status in the district court i just wanna make sure i understand the basis for that i'm looking at the declaration of mr get in which looks like it's at the are twenty eight and mr giddings testifies or might have been detected guinn's testifies further told me that your client was still on parole for this violation was subject to parole terms yes that's correct so how was it not raised in the district court was never raised by the government they never brought to judge state in the fact that my client was on parole they never argued any will mean that they it's in the declaration that was filed the district course and was brought to this report's attention it was but again it was not part of their argument and i would submit to the court that judge state never ruled on how can this court review what happened in the district court if she didn't rule parole that's the elephant in the room how do you change that for you don't i mean he's not it's if you were not on parole for that which changed it but he is on parole certainly but in all cases if the other side doesn't bring up the matter in the district court the court can't just sue a spot they come across and argue or decide on that particular issue that's what i'm saying is unlike the g p s issue which they argue that judge state  ed and normally the normal progression with the cell tower no one ever discussed it in the district court just because it's in a small part of the record doesn't mean that this was part of something that judge stated considered and ruled upon she did not and just to be clear you're talking about just as a cell tower they didn't raise the prolife you correct ok i'm sorry i misunderstood but you're not you're not contesting that they raise it as for the search of the trunk and i wish i could but ok ok thank you that's the point for clarification thank you so again focusing back on the cell tower and good faith again this court had not ruled we had a huge in the radios case which was unpublished but maybe the difference i would put it was at the time that it happened at the time that they use that information it was legal so why wouldn't that have if it was legal at that because this supreme court case didn't come till after so the good faith this what did the officers think at the time and if the it was legal at the time how can we you know how can we later punish them for that right well for one it was i mean because it was legal for people that one time parole at the time for one thing it was an officer s attorney and i would suggest that they have to be held to a higher standard this is just us all but it but but following supreme court president at the time isn't if the supreme court precedent you're saying is essentially they would have had to have anticipated that at a point in the future you would have needed a search warrant to get that information no they would simply have had to recognize that there was no binding precedent and under those circumstances they should've gone for a search warrant not risk simply doing an application now carpenter we are arguing is retroactive and we should get the full benefit of it the issue although not the carpenter name but the issue was litigated in the district court and i forgot i'm going to try and save two minutes of the it was the carpenter name didn't actually come up until my opening brief when i indicated that it was pending and then of course it was decided before my reply was filed but this was the issue that we think it goes beyond that that it's actually a harassing situation of a parolee and therefore because of the three factors that we set out in our brief that it shouldn't be a legal search at that point the car trunk of course is is a different situation than what we have in the cell tower the cell tower is much more squarely and i would suggest clearly the government's acquisition of the cell information was illegal because they didn't have the search warrant as we're now except our carpenter was sent to carpenter didn't deal with whether a parolee would have that trip so so i mean assuming if you want to talk about nightmares for you we could actually say it we c say the good faith applies but then we could also say that it's a pearl a with very minimal rights and so the carpenter doesn't apply to perl a's we don't have to go there if we found a good faith exception but if you want to talk to pray to horrible's we're free to do that too and i would be meat for me your honor and the court could do that as to the g p s and the trunk search the court i suggest can't do that on the cell tower information because again they didn't argue it down in the district court at state and never ruled on it so therefore we're stuck where the government stuck with their good faith argument and this comes back to our situation where i suggest this case is different than almost any other case alleging good faith is because it's not the cop on the beat it's an assistant s attorney who is imputed to know the law and in fact we know that he knew the law because in his application of eleven pages he spent seven pages setting out other circuit authority for the fact that they don't need to get a search warrant by implication he knows that he needed a search warrant or at least there was no binding precedent in this circuit at the time he had some hints again from maria's the unpublished opinion just like a quick one liner but he also had the two district court opinions judge cohen judge alston from san francisco both saying one in a published opinion the other one not that they believe that a search warrant was necessary therefore as a well trained assistant us attorney he should know that he needed to go for a search warrant at that point he took the gamble he took a flyer and just went with the application rather than going with a search warrant and i would suggest at this point the government needs to pay the price for that is sitting over in a police car so at this point it's not a search incident to that arrest because he couldn't have reached to that area was in the glove box was in his backseat something like that so search incident to arrest i don't believe saves the rely on and invoke the good faith exception under davis and that is a principle that this court has explicitly repudiated in lustig when this court found that the good faith exception extended to searches of cell phones post  rightly this court said that what matters is the rationale of the precedent not factual equivalence and even though there wasn't a fax lee equivalent case from this circuit holding that the twenty seven zero three d process and procedures  constitutional there was binding precedent from the supreme court holding that searches of information obtained by or held by third parties did not run afoul of an individual's fourth amendment rights and i guess of the supreme court and carpenter declined to extend the third party doctrine of smith versus maryland which was the one nine hundred seventy nine case in united states b miller in one nine hundred seventy six case should the unique nature of c s l i records so why the third party doctrine apply to this case you are not suggesting that the third party doctrine applies to this case just that precaution or it was reasonable for the united states for the government for the officers acting on the information that they had to believe that the third party do affect this case but you are in shipments the issue was whether and to what extent the officers could search a third party's car based on the presence of a parolee in that car and although the california supreme court in that case didn't express an opinion as to whether in that particular case a search of the car trunk would be permissible it did indicate that officers could search any compartment of the car where officers reasonably expected the parolee could have stowed items and again this is a third part car here we're dealing with mr cortis car he was the driver and the so occupant of the vehicle but as long as officers have reason to believe or reasonably expect that the parolee could have placed materials in the compartment that they're searching then they can search that compartment and here the officers actually watched mr court today case a bank and then place items in the trunk of his car under those circumstances your honor the government's admits that there actually was probable cause to search the trunk of mr cortez automobile because they again had probable cause to arrest him a magistrate judge had found probable cause to believe that he had committed the strings of bank robberies that were under investigation and then they again for over half an hour watched mr corteen a case of bank in a tire that was similar to this suspect for the the california supreme court the government's admits would uphold a search of the trunk in this particular case let me ask you about the g p s even though court has minimal privacy and trust because of this parolee status why doesn't track in the movement s tracker on his car constitute a fourth amendment search under united states v jones i mean obviously we know if you weren't a parolee you got you can't get a search warrant but the g p s on so how far do we go with movements at least in the movement of his car was so diminished and the state's interest in in monitoring such parolees was so heightened in this particular case that the interest in any interest that mr cort or lack of evidence and what what is the evidence in the record that could support harassment none your honor i in this particular case in fact there was individualized suspicion at that point at that point in time that the officers place a g p s tracker to believe that mr corti had in fact again committed the string of bank robberies in those facts included that there was a string of robberies with a similar modus operandi there was a car registered at the address that mr carty provided to his parole officer that was seen on surveillance camera around the scene of the october twenty seventh union bank robbery he was on parole at that time for a prior bank robbery and although an individual criminal history is standing alone not sufficient to support individual it not sufficient to support probable cause  certainly can factor into the question whether his individualized suspicion to believe that an individual is engaged in ongoing criminal behavior and also an officer that was familiar with mr cortis prior bank robbery that he committed  surveillance video in the footage from the bank or a string of being robberies that were under investigation and concluded that the suspect while mast did have similar clothing and appeared to be mr corti under those circumstances your honor the government's image that there was at least reasonable suspicion if not probable cause to believe that mr court he was involved in the string another string of armed bank robberies and given that level of individual i suspicion it wouldn't be harassing to focus on mr  suspect of these ongoing bank robbery so what he calls harassing you say is good police work and my summarizing it is that yes your honor and i would also point out that the supreme court and this court have explicitly repudiated the idea that a that officers working on an investigation in which they are honing in on a suspect who happens to be a parolee are violating the principles of conditions that would preclude them from being arbitrary capricious and harassing in stokes th court recognized that knights explicitly rejected the subterfuges line of reasoning on which mr cortizone brief argument for harassment is based and given that this subterfuge line of reasoning has been explicitly rejected officers are allowed to focus on a parolee particularly when they believe that parolees engage in ongoing criminal behavior and to that end i would point out that mr court he was actually as a condition of his parole of course precluded from engaging in additional criminal conduct and here they had individual i suspicion to boot individual has reason to believe that mr courtenay himself was engaging in ongoing criminal conduct and going criminal conduct that the state has a particular interest in investigating it here again this was a violent crime right he was he was suspected of being involved in a string of armed robberies at that point in time as this court recognized in johnson when it held that riley doesn't require a warrant when to search a parolees cell phone  the government did not argue in the district court that mr is cortis status as a parolee itself would allow the government to obtain c s i data pursuant to a twenty seven or three d order and without a warrant but that information was before the district court the government did advance the argument that mr mr corey's parole status allowed the search of the trunk and the g p s search this all of these motions were heard at the same hearings with the information once again before the district court and this court has all of the information that it would need to rule on that basis and this court can affirm for any reason supported by the record and here the record does support a conclusion that mr cordy's status as a parolee overcomes his any legitimate expectation of privacy that he might have in his location data and for the same reasons that this court held that the parolee status of the individual and johnson overcame his legitimate expectation of privacy in his cell phone which the government submit is a heightened privacy interests as compared to his location information for the same reason that those privacy interests are overcome in the government does not need to obtain a warrant in order to search on individual cell phone they have been does not need to obtain a warrant in order to search in individuals in order to get c s a law information that  maintained by a third party in other words who probably has no expectation of privacy period not necessarily no expectation of privacy your honor but just a reduced a significantly reduced expectation of privacy particularly when they are on notice that they are subject to suspicion as perl search condition like the suspicion was broken search condition at issue here and mr courtenay was was explicitly on notice and he knew that he would subject to that commission i think all right thank you for  s in the written response from the government as to the cell tower there were no references at all to parole at the time judge stating ruled on the cell tower motion it was one sentence i think i find i deny the motion because a good face and that was it there's no way that the government can now bootstrap the parole argument back into this case as to the cell tower clearly they've made how it sounds like good police work i mean your guys on parole for a series of robberies they're investigating how much for a series of proper a send there's now that it's it's like it you know it looks like they would have been not doing their jobs if they hadn't looked into your client and again so i don't how is that harassing him i mean i need to clarify that that is as to the g p s and perhaps the truck it is not as to the cell  tower and i think that's just a huge distinction if you're just arguing the standard the standard is arbitrary capricious and harassing the yes that's where you're using the word yes ok yes right yes yes i am and i set out three reasons why we think that's true in the brief